1. Amicus ACADEMICS FOR THE SECOND AMENDMENT

ACADEMICS FOR THE SECOND AMENDMENT (A2A) is a not for profit Minnesota corporation headquartered in St. Paul, MN. A2A fosters open, rigorous discussion of the constitutional right to arms. Its purposes include sponsoring legal, historical and philosophical scholarship on the topic and stimulating greater public knowledge and understanding of such scholarship. A2A’s specific activities have included the circulation of open letters and other materials among scholars and the sponsorship of scholarly meetings, e.g. one held in connection with the 1994 annual meeting of the American Association of Law Schools in Orlando, FL. Current members of the A2A board are law professors Joseph E. Olson (Hamline), Robert J. Cottrol (Rutgers) and James Viator (Loyola-New Orleans).

2. Amicus CONGRESS OF RACIAL EQUALTY

CORE also seeks to rid the Black Community of pathologies afflicting it as a result of slavery and the subsequent century of racial discrimination. Among the most devastating of those pathologies is crime; another is drug abuse. CORE operates programs to prevent drug abuse and to assist the Black community in fighting it and crime in general. CORE has involved itself in the fight against these pathologies because they are the scourge of Black neighborhoods.

3. Amicus NATIONAL ASSOCIATION OF CHIEFS OF POLICE

enforcement officers on the federal, state and local levels nationwide. Its president is Dennis Ray Martin, formerly Chief of Police of Elbee-Maple Grove Township, MI. Its offices are located at 3801 Biscayne Blvd., Miami, florida 33137, telephone (305)

4. Amicus AMERICAN FEDERATION OF POLICE

5. Amicus SECOND AMENDMENT FOUNDATION

509(a) (1). It works to secure, preserve and expand the right to keep and bear arms.

I. THE SECOND AMENDMENT GUARANTEES LAW-ABIDING, RESPONSIBLE ADULTS A PERSONAL RIGHT TO POSSESS ARMS

the very concept of the Second Amendment as a states’ right was completely unknown to the authors of the Bill of Rights (hereinafter described as the Founders or the Founding Fathers).

In contrast, articles accepting the Amendment as an individual right are published on their own merits and in top rank law reviews. 4 The authors include outstanding liberal

constitutional scholars such as Akhil Amar, Sanford Levinson and William Van Alstyne— none of whom own guns or expected that the evidence would force this position on them. In his just published piece, Prof. Van Alstyne, a former member of the ACLU national board, describes the individual right/states’ right-only debate as being between those who take the Bill of Rights seriously and those who do not. 5

B. The text of the Second Amendment clearly guarantees an individual right ("right of the people").

Constitution whereby the House was to be elected by popular vote and the Senate by the state legislatures.)

C. The very concept of a states’ right-only is an anachronism— a concept unknown to the authors of the Bill of Rights.

Moreover, Congress had before it when it voted on the Bill of Rights a commentary on them by the Federalist writer Tench Coxe; that commentary, which was specifically endorsed by James Madison, author of the Bill of Rights, defined the purpose of the Second Amendment as to guarantee people against the confiscation of "their private arms." 8

As recently as Planned Parenthood v. Casey,— U.S. 120 L.Ed.2d 674, 696 (1992) this Court has listed the Second Amendment interchangeably with other explicitly guaranteed personal rights. 10 This follows the precedent of the Founders who themselves routinely made the same connection, linking the right to arms with freedom of religion and speech, etc. under such joint descriptions as "private rights", "human rights", "essential and sacred rights" (quoting Madison, Monroe and Gallatin respectively)." 11

the rights that Republicans in the Thirty-ninth Congress relied on as absolute rights of the citizens of the United States were the right[s] to freedom of speech due process. . . and to bear arms. 12

19th Century legal and constitutional commentary on the Amendment is epitomized by Justice Story’s description of

it as "The right of the citizens to keep and bear arms" 13 and his explanation of its purposes as follows: "One of the ordinary modes, by which tyrants accomplish their purpose without resistance is, by disarming the people and making it an offense to keep arms" 14

It may be supposed from the phraseology of [the Second Amendment] that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent . . . . The meaning of the provision undoubtedly is that the people from whom the militia must be taken shall have the right to keep and bear arms, and they need no permission or regulation of law for that purpose. 15

prior generations— most especially including the Founders themselves— had no inkling.

D. This Court’s decisions consistently treat the Second Amendment as a guarantee of individual right.

only view have misunderstood this as a holding that the only firearms the Amendment protects are those of the National Guard and/or organized state militias. Though that was what the Solicitor General argued, 17 this Court did not accept that argument— even though it was unopposed because no brief was filed on the other side.

ulation 19 ). Having fixed on this military-weapon standard, the court reversed because (for obvious reasons) Miller had not even made an attempt to show that, as a matter of fact, a sawed off shotgun is a military weapon. For equally obvious reasons, in abeyance of such a showing, this Court was not in a position to judicially notice that a sawed off shotgun is (or is not) a military weapon. 307 U.S. at 178.

family. 21 That rationale substantially limits the kind of weaponry which might otherwise fall within Miller’s holding that the Amendment protects militia-type weaponry. Today

as in the 18th Century, the basic arms with which one would defend home and family are the same as those with which one would render militia service: ordinary civilian small arms. But the concept of military-type arms could include kinds of arms which would be highly inappropriate for repelling a burglar or rapist: machineguns, bazookas, artillery and so forth. Both the text of the Second Amendment and its core purpose of protecting home and family suggest that while Miller is not incorrect as a limitation on the arms the Amendment protect, additional limitations exclude from that protection all but small arms (which must also be of military quality for the implication that this excludes very cheap, shoddy firearms from the Amendment’s protection see *"Original Meaning", 82 MICH. L. REV. supra, 260).

E. The implications of the states’ right-only view cannot withstand examination.

But the states’ right-only view holds that the Amendment was intended to guarantee that states may equip their forces with arms sufficient to counterbalance the military force of the federal government. Thus any honest, conscientious treatment of the states’ right-only view requires asking: Doesn’t this position involve the conclusion that every state may, if it wishes, stockpile not just small arms but artillery, bombers, aircraft carriers, ICBMs and nuclear weapons for the use of its forces? 23 If the proponents of the states’ rightonly view have some honest, principled basis for a negative answer to the foregoing question, they have failed to offer it in their articles. Those articles "answer" such questions by ignoring them. States’ right-only articles explore none of that view’s implications beyond the naked claim that the Amendment does not preclude government from banning and confiscating all privately owned firearms.

view rests on the preferred 18th Century meaning of "militia"— not some formal military unit, but a system under which each household was required to be armed and virtually every military-age male was required to own arms and appear for training and/or service when called to do so. 24

But in the states’ right-only view the word "militia" refers to a formal military unit, a body of troops serving the state. Indeed, it is regularly asserted by partisans of that view that the "militia" is the National Guard, notwithstanding this Court’s holding in Perpich v. Department of Defense, 496 U.S. 334 (1990).

But if these claims of the states’ right-only analysts are correct, how can one escape the conclusions: a) that the Amendment repeals Art. I § 10, cl. 3, of the original Constitution which forbids states to "keep troops" without the consent of Congress; and b) that Perpich was wrongly decided, a cognate effect of the Amendment having been to modify Art. I, § 8, cls. 15 and 16 by exalting state power over the militia vis-a-vis federal? 25

To reiterate, partisans of the states’ right-only view have not even attempted to grapple with these questions. Though their articles purport to champion a states’ right view, in fact it is just a makeweight— a disingenuous gibberish-concept which is presented without analysis of its content or implications solely to evade the inconvenient truth that the Amendment precludes the prohibition and confiscation of all firearms.

II. ALTHOUGH THE RIGHT ENCOMPASSES RESPONSIBLE ADULTS, NEITHER CHILDREN, FELONS NOR THE MENTALLY UNBALANCED HAVE ANY RIGHT TO ARMS UNDER THE SECOND AMENDMENT

classical republican political philosophy, the concept of a right to arms was inextricably and multifariously tied to that of the "virtuous citizen." Free and republican

institutions were believed to be dependent upon civic virtu which, in turn, depended upon each citizen being armed— and, therefore, fearless, self-reliant and upright. Since possession of arms was the hallmark of a citizen’s independence, the ultimate expression of civic virtu was his defensive use of arms against criminals, oppressive officials and foreign enemies alike. One implication of this emphasis on the virtuous citizen is that the right to arms does not preclude laws disarming the unvirtuous (i.e. criminals) or those who, like children or the mentally unbalanced, are deemed incapable of virtue 27

Felons, children and the insane were no more included in the right to arms than in the franchise, the two being "intimately linked" in the thinking of the Founding Fathers and prior and subsequent republican theorists. 28 See also discussion in "The Right to Arms", 36 OKL. L. REV. supra at 96 and of the same exclusion from state constitutional right to arms provisions in Dowlut & Knoop, "State Constitutions and the Right to Keep and Bear Arms", 7 OKLH. CITY U. L. REV. 177, n. 71 at p. 192 (1982).

DATED: June 1, 1994.

Respectfully submitted,

Don B. Kates

Counsel for Amici—

Don B. Kates, Esq.
Randy E. Barnett, Esq.
Patrick J. Basial, Esq.
James A. Beaver, Esq.

Additional Counsel:

Robert Carter, Esq.
Lloyd R. Cohen, Esq.
Robert Cottrol, Esq.
Donald A. Dripps, Esq.
Stephen J. Herzberg, Esq.
Henry Mark Holzer, Esq.
D. Bruce Johnsen, Esq.
Nicolas J. Johnson, Esq.
David N. Mayer, Esq.
Dale A. Nance, Esq.
Joseph E. Olson, Esq.
Daniel Polsby, Esq.
Glenn Harlan Reynolds, Esq.
Charles E. Rice, Esq.
Wallace Rudolph, Esq.
Justin Smith, Esq.
Robert B. Smith, Esq.
George Stickler, Esq.
Richard Warner, Esq.
Robert Weisberg, Esq.

NOTES

1. See, e.g. the following (all authored or co-authored by authors of the present brief): Cottrol and Diamond," ‘Never Intended to be Applied to the White Population’: Firearms Regulation and Racial Disparity, The Redeemed South’s Legacy to a National Jurisprudence?" forthcoming in CHICAGO-KENT L. REV. (1995); Cottrol and Diamond, "The Second Amendment: Toward an Afro-Americanist Reconsideration", 80 GEORGETOWN L. J. 309 (1990); Kates, "Toward a History of Handgun Prohibition" and Kates and Salter, "The Necessity of Access to Firearms by Dissenters and Minorities Whom Government is Unwilling or Unable to Protect" in D. Kates (ed.) RESTRICTING HANDGUNS: THE LIBERAL SKEPTICS SPEAK OUT (1979). See also S. Halbrook, "THAT EVERY MAN BE ARMED": THE EVOLUTION OF A CONSTITUTIONAL RIGHT (1984). text@note1

2. United States v. Lopez, 2 F.3d 1342, n. 46 (5th Cir. 1993). text@note2

3. Ehrman and Henigan, "The Second Amendment in the 20th Century: Have You Seen Your Militia Lately", 15 U. DAYTON L. R.EV.5 (1989) and Henigan, "Arms, Anarchy and the Second Amendment", 26 VALPARAISO U. L. REV. 107 (1991)— both written by general counsel of Handgun Control, Inc.; Fields, "Guns, Crime and the Negligent Gun Owner", 10 N. KY. L. R. (1982) (article by non-lawyer lobbyist for the National Coalition to Ban Handguns); Spannaus, "State Firearms Regulation and the Second Amendment", 6 HAMLINE L. R. 383 (1983) (Minnesota attorney general).

4. [THROUGHOUT THIS BRIEF ARTICLES WRITTEN BY SIGNATORIES OF THIS BRIEF ARE MARKED WITH AN ASTERISK] Van Alstyne, "The Second Amendment and the Personal Right to Arms", 43 DUKE L. 3. 1236 (1994), Amar, "The Bill of Rights and the Fourteenth Amendment", 101 YALE L. 3. 1193, 120511, 1261-2 (1992); *Kates, "The Second Amendment and the Ideology of Self-Protection" 9 CONST. COMM. 87 (1992); *Cottrol & Diamond, "The Second Amendment: Toward an AfroAmericanist Reconsideration", 80 GEORGETOWN L.J. 309 (1991); Amar, "The Bill of Rights as a Constitution", 100 YALE L. 3. 1131, 1 164ff. (1990); Levinson, "The Embarrassing Second Amendment", 99 YALE L. J. 637 (1989); *Kates, "The Second Amendment: A Dialogue", 49 LAW & CONTEMP. PROBS. 143 (1986); Malcolm, Essay Review, 54 GEO. WASHINGTON U. L. REV. 582 (1986); Fussner, Essay Review, 3 CONSTITUTIONAL COMMENTARY 582 (1986); Shalhope, "The Armed Citizen in the Early Republic", 49 LAW & CONTEMP. PROBS. 125 (1986); Halbrook, "What the Framers Intended: A Linguistic Interpretation of the Second Amendment", 49 LAW & CONTEMP. PROBS. 153 (1986); *Kates, "Handgun Prohibition and the Original Meaning of the Second Amendment", 82 MICH. L. REV. 203 (1983) (hereinafter described as "Original Meaning"); see also Scarry, "War and the Social Contract: The Right to Bear Arms", 139 U. PA. L. REV. 1257 (1991); Williams, "Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment", 101 YALE L. 3. 551 (1991).

5. Alstyne, 43 DUKE L. J. supra at 1254-5. Compare Professor Levinson’s analysis: If the Second Amendment is to be read out of the Constitution "in the name of social prudence. . . why do we not apply such consequentialist criteria to each and every part of the Bill of Rights? As Ronald Dworkin has argued, what it means to take rights seriously is that one will honor them even when there is significant social cost in doing so. If protecting freedom of speech, the tights of criminal defendants, or any other part of the Bill of Rights were always (or even most of the time) clearly costless to the society as a whole, it would truly be impossible to understand why they would be as controversial as they are. . . . ‘Cost-benefit’ analysis, rightly or wrongly, has come to be viewed as a ‘conservative’ weapon to attack liberal rights. Yet one finds that the tables are strikingly turned when the Second Amendment comes into play." 99 YALE L. 3. supra at 657-58. text@note5

6. See Payton v. NY, 445 U.S. 573, 596, n. 44 (1980) citing Sensayne's Case and see discussion of other medieval cases to the same effect in *"Original Meaning", 82 MICH. L. REV. supra at a. 5. text@note6

7. Prof. Van Alstyne approvingly quotes (43 DUKE L. J. 1243, n. 19) a leading analyst of the Amendment’s history: "‘If anyone entertained [the states’ right-only view] in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis." (S. Halbrook, "THAT EVERY MAN BE ARMED": THE EVOLUTION OF A CONSTITUTIONAL RIGHT supra at 83). See generally, J. Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT (Harvard U. Press, 1994), ch. 8. text@note7

8. Emphasis added. The commentary appeared in Federalist newspapen around the nation, including those in Philadelphia where Congress was then sitting. See "Original Meaning," 82 MICH. L. REV. supra at 223-4; the commentary’s full discussion of the Second Amendment reads: "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article [i.e., amendment] in their right to keep and bear their private arms." Id. text@note8

9. *"Original Meaning", 82 MICH. L. REV. supra at 223. text@note9

10. In Moore v. East Cleveland, a plurality opinion had previously quoted the second Justice Harlan in listing "the freedom of speech, press, and religion the right to keep and bear arms; the freedom from unreasonable searches and seizures" as part of the "full scope of liberty" guaranteed by the Constitution. 431 U.S. 494, 502 (1976), quoting Poe v. Ullman, 367 U.S. 497, 542-43 (1961) (Harlan, J., dissenting). text@note10

11. For these and numerous other quotes from the 1787-91 debates see *"Original Meaning", 82 MICH. L REV. supra at 223-24 and 228-9, citing original sources. text@note11

12. M. Curtis, NO STATE SHALL ABRIDGE 104 (Duke University Press, 1986); see pp. 52, 53, 56, 72, 88, 140-1 and 164 for debate extolling the right to arms or equating it to free expression, religious liberty, due process, jury trial and against unreasonable search, etc., etc. text@note12

13. Emphisis added. J. Story, COMMENTARIES ON THE CONSTITUTION 746 (1833). text@note13

14. J. Story, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES 264 (1st pub. 1833, repub., 1893). For other 19th Century constitutional commentators, please see: Prof. Levinson citing Thomas Cooley and Theodore Shroeder to the same effect, 99 YALE L. .1. supra at 649-70); "Original Meaning", citing St. G. Tucker (1803) and Rawle (1825) as 18th and 19th Century commentators who endorsed the individual right view without apparent consciousness that any other was possible (82 MICH L. REV. supra at 244-247); and 9 CONST. COMMENTARY 87, n. 1 (1992) citing Pomeroy (1868), von Hoist (1885), Schouler (1897), J. Tucker (1899), Putney (1908) and Black (1910). text@note14

15. T. Cooley, GENERAL PRINCIPLES OF CONSTITUTIONAL LAW 281-2 (2d ed., 1891, 1st pub. 1880). text@note15

16. United States v. Cruikshank, 92 U.S. 542, 553 (1875) dismissed an indictment charging that Klansmen deprived blacks of the right "of ‘bearing arms for a lawful purpose.’ This is [a pre-existing natural right,] not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen (from the Court’s identical discussion of the First Amendment right of assembly; 92 U.S. at 552], means no more than that it shall not be infringed by Congress. This is one of the amendments [i.e. the Bill of Rights] that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes. . . ."; Presser v. Illinois. 116 U.S. 252, 265 (quoting the foregoing from Cruikshank and holding that neither the First nor Second Amendments apply against the states); Miller v. Texas. 153 U.S. 535 (1894) (same: Second and Fourth Amendments); Robertson Miller v. Texas Baldwin, 165 U.S. 275, 281-2 (1897) (addressing the Second Amendment indistinguishably from other guarantees of personal rights). text@note16

17. "Second, the [Solicitor General Robert] Jackson brief argued that the right was a collective one that [only] protected the people when carrying arms as members of the state militia." 1 R. Cottrol, GUN CONTROL AND THE CONSTITUTION xxvii (Introduction) (NY Garland, 1993). text@note17

18. 307 U.S. at 178. In adopting this standard Miller expressly cites a 19th Century Tennessee case in which it originated. For a discussion of the cases under the Tennessee Constitution and their relation to the Second Amendment, see *Reynolds, "The Right to Keep and Bear Arms Under the Tennessee Constitution", forthcoming in 61 TENN. L. REV. # 2 (Winter, 1994). text@note18

19. 307 U.S. at 179: "The signification attributed to the term ‘militia’ appears from the debates in the Convention, the history and legislation of the colonies and the states, and the writings of approved commentators. . .[:] all males physically capable of acting in concert for the common defense.... [O]rdinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." Emphasis added. text@note19

20. See, e.g. Shalhope, "The Armed Citizen in the Early Republic", 49 LAW & CONTEMP. PROBS. 125 (1986): The Amendment encompassed "two distinct principles: (1) individuals had the right to possess arms to defend themselves and their property; and (2) states retained the right to maintain militias composed of these individually armed citizens.") and J. Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLOAMERICAN RIGHT 162-3 (Harvard U. Press, 1994): "The Second Amendment was meant to accomplish two distinct goals. .. . First, it was meant to guarantee the individual’s right to have arms for self-defense and self-preservation. . . . These privately owned arms were meant to serve a larger purpose [militia service] as well. . . and it is the coupling of these two objectives that has caused the most confusion. The customary American militia necessitated an armed public . . . the militia [being] . . . the body of the people." text@note20

21. Not only was this the most basic of natural rights, the possession of arms for that purpose was regarded as basic to the virtue, the moral fortitude of a republican citizenry. The Founders "believed that the perpetuation of a republican spirit and character in their society depended upon the freeman’s possession of arms as well as his ability and willingness to defend both himself and his society." Shalhope, supra, 49 LAW & CONTEMP. PROBS. at 138. See generally 9 CONSTITUTIONAL COMMENTARY supra at 94-6: "Arms possession for protection of self, family and polity was both the hallmark of the individual’s freedom and one of the two primary factors in his developing the independent, selfreliant, responsible character which classical liberal political philosophers deemed necessary to the citizenry of a free state. Ix] The Anglo-American legal distinction between free man/armed and unfree/disarmed flowed naturally into the classical liberal view that the survival of free and popular government required citizens of a special character— and that the possession of arms was one of two keys in the development of that character. From Machiavelli and Harrington classical liberal philosophy derived the idea that arms possession and property ownership were the keys to civic virtu. In the Greek and Roman republics from whose example they took so many lessons, every free man had been armed so as to be prepared both to defend his family against outlaws and to man the city walls in immediate response to the tocsin warning of approaching enemies. Thus did each citizen commit himself to the fulfillment of both his private and his public responsibilities. [x] The very survival of republican institutions depended upon this moral (as well as physical) commitment— upon the moral and physical strength of the armed freeholder sturdy, independent, scrupulous, and upright, the self-reliant defender of his life, liberty, family, and polity from outlaws, oppressive officials, despotic government, and foreign invasion alike. That the freeholder might never have to use his arms in such protection mattered naught. (Indeed, one basic tenet classical political theory took from its criminological premises was that of deterrence: if armed and ready, the free man would be least likely ever to actually have to defend. Simply to be armed, and therefore able to protect one’s own, was enough; this moral commitment both developed and exemplified the character of the virtuous republican citizen.)" text@note21

22. *9 CONSTITUTIONAL COMMENTARY supra at 89-103 citing examples and quoting and analyzing Locke, Sidney, Montesquieu, Blackstone, Madison, Jefferson, Paine and numerous others. See discussion and quotations in footnote 2O supra. text@note22

23. Space permits mentioning just one of the textual and logical limitations implicit in the individual view which are inapplicable to the states’ right-only view. The Amendment guarantees the right to "keep and bear arms": Since an 18th Century man could not bear (i.e. pick up) cannon, the intent seems limited to small arms. By parity of reasoning it would not include even now-portable arms, like bazookas, because they are comparable in destructiveness to an 18th Century cannon.

24. *"Original Meaning", 82 MICH. L. REV. supra at 214-8 ("In short, one purpose of the Founders having been to guarantee the arms of the militia, they accomplished that purpose by guaranteeing the arms of the individuals who made up the militia." Id. at 215), Shalhope, 49 LAW & CONTEMP. PROB. supra at 133 ("Individuals had the right to possess arms to defend themselves and their property; and states retained the right to maintain militias composed of these individually armed citizens."). See also note 18 supra and Amar, 100 YALE L. J. supra at 1166 as quoted in note 25 infra. text@note24

25. In fact, the concept of militia held by partisans of the states’ right only view is simply not the "militia" concept to which the Amendment refers: "Nowadays, it is quite common to speak loosely of the National Guard as ‘the state militia,’ but 200 years ago, any band of paid, semiprofessional part-time volunteers, like today’s Guard, would have been called ‘a select corps’ or ‘select militia’— and viewed in many quarters as little better than a standing army. In 1789, when used without any qualifying adjective, ‘the militia’ referred to all Citizens capable of bearing arms.... [So] ‘the militia’ is identical to ‘the people’. .. ." Amar, supra, 100 YALE L. J. at 1166, emphasis in original. See also: J. Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT 162-3 (Harvard U. Press, 1994): "The argument that today’s National Guardsmen, members of a select militia, would constitute the only persons entitled to keep and bear arms has no historical foundation. [Emphasis in original.]" text@note25

26. It should be noted that those exempt from being called to militia duty (whether to drill, for police/watch purposes or for actual service in the field) were not thereby exempt from the militia laws’ separate and independent requirement that every law abiding, responsible adult be armed: "the duty to keep arms applied to every household, not just those containing persons subject to militia service. Thus the over-aged and seamen, who were exempt from militia service, were required to keep arms for law enforcement and for the defense of their homes from, criminals or foreign enemies." *"Original Meaning", 82 MICH. L. REV. supra, 215-6 (citing laws requiring arms for all but magistrates and clergymen). text@note26

27. Emphasis added: *Kates, "The Second Amendment: A Dialogue", 49 LAW & CONTEMP. PROBS. 143, 146 (1986). See generally Halbrook, "What the Framers Intended: A Linguistic Interpretation of the Second Amendment", 49 LAW & CONTEMP. PROBS. 153 (1986). text@note27

28. Amar, 100 YALE L. J. supra 1164, at In. 152; "Original Meaning", 82 MICH L. REV. supra 232 at fn. 118; for examples see. S. Halbrook, A RIGHT TO BEAR ARMS: STATE AND FEDERAL BILLS OF RIGHTS AND CONSTITUTIONAL GUARANTEES 62.3, 108 (Greenwood, 1989). text@note28