In 2008 the Supreme Court ruled that the term “bear arms,” in the Second Amendment, did not refer only to the carrying of arms in an organized militia but to “the right of a citizen to bear arms in defense of himself and the state.” Among the many arguments posed by the Court in reaching this decision, Justice Scalia relied heavily on what he considered similar wording in nine of the 24 state constitutions drafted between 1776 and 1820. Because the Second Amendment was approved in 1791, what Scalia failed to take into consideration was the breakdown of this nearly 45-year-long timeframe. By examining the pre-versus-post 1791 evidence, the findings reported below failed to confirm the Court’s conclusion. Instead, the findings revealed that the majority of states that inserted the above clause in their constitutions did so only after 1791 through provisions in the Bill of Rights, and their decisions, therefore, had no bearing on the content of the Second Amendment.
Background
Of the first ten amendments to the Constitution, arguably, one of the most contentious is the wording in the Second Amendment which was ratified by Congress as part of the Bill of Rights on December 15, 1791. Over the years the interpretation of this wording (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”) has been the subject of numerous lower court appeals[1] and has been challenged in the United States Supreme Court on several occasions, the earliest being 1875[2] with the latest occurring in 2022.[3] The most important of these Supreme Court challenges, however, was rendered on June 26, 2008, in a ruling by Justice Scalia in District of Columbia v. Heller.[4] The case involved the plaintive, Richard Heller, a police officer in Washington, D.C., who requested from the District of Columbia permission to keep a registered handgun in his home for self-defense. In a 5 to 4 ruling the Court found in favor of Heller.
Since 2008 a number of highly critical reports have appeared noting the Court’s “poor judicial craftsmanship… its revisionist rewriting of constitutional history” and its use of largely inappropriate peripheral evidence.[5] Despite these many critiques, however, what has been overlooked thus far is the appropriateness of the historical evidence used by Scalia in support of this ruling. While on the surface, the Second Amendment refers to the bearing of arms only in the context of a “well regulated Militia,” drawing upon the wording in several of the state constitutions of the times, Scalia as an “originalist,” claimed that:
“In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: nine state constitutional provisions written in the 18th century or the first two decades of the 19th… enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.” It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit.“[6]
What Scalia failed to take into consideration in providing this rationale was the breakdown of the timeframe cited above. Since the period in question extended from 1776 through 1820, and encompassed 24 states, it is reasonable to ask where, throughout this nearly 45-year-long period, did these nine state constitutional provisions fall? If these provisions occurred before the Second Amendment was approved (1791), it could be that many of the states had indeed preferred the alternative wording suggested by Scalia from the very start of deliberations. On the other hand, if they occurred after the Amendment was ratified other factors may have contributed to the states’ preferred wording. In either case, as the following evidence shows, by failing to take into consideration the breakdown of this timeframe, it was clearly inappropriate as well as presumptuous for the final ruling to state that “The Court’s interpretation is confirmed by analogous arms- bearing rights in [the] state constitutions that preceded and immediately followed [the approval of] the Second Amendment.”[7]
The Historical Evidence
Because many of the state constitutions were subject to reappraisal between 1776 and 1820, the following list contains, in chronological order, all 24 states based on the dates when their final constitutions were approved. Also provided is whether each constitution addressed or did not address the right to keep and bear arms and, if addressed, the relevant wording in the key sentence or sentences.
New Hampshire (constitution approved January 5, 1776): did not address.
South Carolina (constitution approved March 26, 1776): did not address.
Virginia (constitution approved June 12, 1776): “That a well regulated militia, composed of the body of the people, trained in arms, is the proper, natural and safe defence of a free State…” (Bill of Rights, clause 13)
New Jersey (constitution approved July 2, 1776): did not address.
Delaware (constitution approved September 10, 1776): did not address.
Pennsylvania (constitution approved September 28, 1776): “That the people have a right to bear arms for the defense of themselves and the state…” (Section 13)
Maryland (constitution approved November 11, 1776): did not address.
North Carolina (constitution approved December 18, 1776): “That the people have a right to bear arms, for the defence of the State…” (Article 17)
Georgia (constitution approved February 5, 1777): did not address.
New York (constitution approved April 20, 1777)): “…it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it, this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service.” (Article 40)
Vermont (constitution approved July 8, 1777): “That the people have a right to bear arms for the defense of themselves and the State…” (Chapter I, Section 15)
Massachusetts (constitution approved October 25, 1780): “The people have a right to keep and to bear arms for the common defence…” (First Part, Article 17)
Rhode Island (constitution approved May 29, 1790): “That the people have a right to keep and bear arms that a well regulated militia, including the body of the people capable of bearing arms, is the proper, natural and safe defense of a free state.” (Clause 17)
Kentucky (constitution approved June 1, 1792): “The rights of the citizens to bear arms in defence of themselves and the State shall not be questioned.” (Section 23)
Tennessee (constitution approved February 6, 1796): “That the freemen of this State have a right to Keep and to bear Arms for their common defence.” (Article 11, Section 26)
Ohio (constitution approved February 19, 1803): “That the people have a right to bear arms for the defense of themselves and the State…” (Article 8, Section 20)
Louisiana (constitution approved January 22, 1812): “The free white men of this State, shall be armed and disciplined for its defence…The militia of this state shall be organized in such manner as may be hereafter deemed most expedient by the legislature.” (Article 3, Section 22)
Indiana (constitution approved June 29, 1816) “That the people have a right to bear arms for the defence of themselves, and the state…” (Article 1, Section 20)
Mississippi (constitution approved August 15, 1817): “Every citizen has a right to bear arms in defence of himself and the State.” (Preamble, Section 23)
Illinois (constitution approved August 26, 1818): “The militia of the State of Illinois shall consist of all free male able-bodied persons, negroes, mulattoes and Indians excepted, resident in the state between the ages of 18 and 45 years…and shall be armed, equipped and trained as the general assembly may provide by law.” (Article 5, Section 1)
Connecticut (constitution approved October 12, 1818): “Every citizen has a right to bear arms in defence of himself and the state.” (First Article, Section 17)
Alabama (constitution approved July 5, 1819): “Every citizen has a right to bear arms in defence of himself and the State.” (Article I, Section 23)
Maine (constitution approved October 29,1819): “Every citizen has a right to keep and bear arms and this right shall never be questioned.” (Article I, Section 16)
Missouri (constitution approved July 19, 1820): “…that their right to bear arms, in defense of themselves and of the state cannot be questioned.” (Article 13, Section 3)
Evaluation of the Evidence
Of the 24 states under consideration, thirteen had approved their final constitutions prior to December 15, 1791 (New Hampshire, South Carolina, Virginia, New Jersey, Delaware, Pennsylvania, Maryland, North Carolina, Georgia, New York, Vermont, Massachusetts, and Rhode Island). Of these only Pennsylvania and Vermont had incorporated provisions in their constitutions that resembled those mentioned by Scalia. Five others (Virginia, North Carolina, New York, Massachusetts, Rhode Island) granted the right to bear arms only for the purpose of a common defense (serving in a militia) while the rest failed to address this matter.
Given this five-to-two ratio it certainly would have been reasonable for Congress to have accepted the current wording in the Second Amendment as an outgrowth of Article 1, Section 8 in the Constitution (”provide for the common defence…of the United States”), prior to submitting this Amendment to the states for their approval. It is also worth mentioning that during the Congressional debates in 1789 on the content of the Bill of Rights, arguments over the exact wording to employ in this amendment took place on 11 occasions (June 8, July 21,28, August 17,20,21,24, September 4,9,25, 28). Because the phrase, “bear arms in defense of himself and the state” did not appear in either the House or the Senate minutes, it would appear that this matter was never an issue of concern.[8]
After 1791, however, the situation changed considerably. Of the eleven states whose constitutions were approved between 1792 and 1820, seven states now included provisions that were in keeping with Scalia’s argument (Kentucky, Ohio, Indiana, Mississippi, Connecticut, Alabama, Missouri) whereas only one (Tennessee ) used the phrase “bear arms for the common defence.”
In view of the striking difference between this before and after 1791 evidence, it was clearly unjustified for the Court to have rendered the above conclusion. Moreover, if any of the 24 states had disagreed with the wording in the Second Amendment and meant to change the wording as Scalia’s argument suggests, Article V in the Constitution would have provided them with the proper legal means for doing so, yet neither the 11 new states nor the 13 original states had chosen this option. Why was this the case? To answer this question two closely related factors come to mind, both of which stem from events that unfolded after 1791. As explained in more detail below, the first was the rationale behind the passage of the Bill of Rights which granted the 11 new states the right to insert into their constitutions a provision to bear arms for the purpose of self-protection that could not be overruled by the Federal Government. The second, as also explained below, applied to the 13 original states, which prior to the ratification of the Federal Constitution, had enjoyed the right to private gun ownership under the protection of British Common Law. With ratification, however, they lost this protection, but now they too could rely on the Bill of Rights if they inserted an appropriate self-protection gun ownership clause in their revised constitutions.
The Rational Underlying the Bill of Rights
Although many safeguards had been built into the main body of the Constitution to prevent the rise of a monarchy, George Mason, a Virginia delegate to the Congressional Congress in 1787 as well as an Anti-Federalist and strong supporter of states’ rights, argued that more needed to be done. In a letter to George Washington, Mason listed an array of objections that began with his major concern.
“There is no Declaration of Rights [in the constitution]; and the Laws of the general Government being paramount to the Laws & Constitutions of the several States, the Declaration of Rights in the separate States are no Security [for the sanctity of the states].”
Unless substantial alterations were made to the Constitution, his letter ended with the dire warning that,
“This Government will commence in a moderate Aristocracy; it is at present impossible to foresee whether it will, in its Operation, produce a Monarchy, or a corrupt oppressive Aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other.”[9]
For Luther Martin, a fellow delegate from Maryland, and also an Anti-Federalist, the issue over the need to protect the rights of the individual states came to a head with the approval of the following clause in Article VI of the Constitution.
“This Constitution, and Laws of the United States which shall be made in Pursuance thereof… shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
According to Martin, the major purpose of this clause was to permit:
“[The] general government to negative the laws passed by the state legislatures -a power which I considered as totally inadmissible…The more the system advanced, the more was I impressed with the necessity of not merely attempting to secure a few rights [for the states] but of digesting and forming a complete bill of rights, including those of states and of individuals, which should be assented to and prefixed to the constitution, to serve as a barrier between the general government and the respective states and their citizens; because the more the system advanced the more clearly it appeared to me that the framers of it did not consider that either states or men had any rights at all.”[10]
Both Mason and Martin strongly believed that a bill of rights needed to be part of the Constitution to prevent the Federal Government from nullifying or overriding any of the laws passed by the individual state legislatures. At their urging, together with many other Anti-Federalists, James Madison began the process of preparing such a bill shortly after George Washinton’s inauguration (April 30, 1789). Using as an initial guide Mason’s Virgina Declaration of Rights, Madison completed the task roughly two months later. A bill consisting of 17 rights was submitted to the states for their approval on September 25, 1789.[11] Of this number, ten including the Second Amendment, were ratified on December 15, 1791. Owing to the key role played by the Anti-Federalists in their advocacy in favor of states’ rights, it is not surprising that Herbert J. Storing,[12] in his comprehensive review of this material, would summarize a major purpose of the Bill of Rights in the following manner.
“[in a Republican government] the supremacy of the people does not secure the rights of individual and minorities against the majority…one of the functions of a [federal] bill of rights in a republican government is to serve as a check against [a] majority faction…A bill of rights therefore ought to set forth the purposes for which the compact [with the Federal Government] is made, and serves to secure the minority against the usurpation and tyranny of the majority.”
Accordingly, a central aim of the Bill of Rights was to ensure that any of the rights enshrined in the state constitutions would remain intact and not be disturbed or replaced by actions of the Federal Government or by laws in the Federal Constitution. In 1908 Supreme Court Justice John Marshall Harlan, agreed with this position.
“[When] the first Congress met, there was entire unanimity among statesmen of that day as to the necessity and wisdom of having a National Bill of Rights which would, beyond all question, secure against Federal encroachment, all the rights, privileges and immunities which, everywhere and by everybody in America, were then recognized as fundamental in Anglo-American liberty…” [13]
This point was even underscored by Harold Underwood Faulkner in the 7th edition of his widely used textbook on American history. “The first ten amendments, proclaimed in effect in 1791, are restrictions on the federal government.” By way of example the following words appeared in his preamble to the first three amendments in the Bill of Rights.[14]
First Amendment: Congress Must not Interfere with Religion, Speech or Press.
Second Amendment: Congress Must not Deny the States a Militia.
Third Amendment: Congress Must not Quarter Soldiers on the People.
In essence, with the ratification of the Federal Bill of Rights in 1791 citizens throughout the United States now had sufficient protection under their own state constitutions to bear arms as they saw fit as long as this right was clearly specified in their state’s constitution. Hence, there was no need for the states, after 1791, to introduce a new amendment to the Constitution under Article V to comply with their desire to “bear arms in defence of themselves and the state.” The states’ own constitutions could be crafted to address this matter, and of special importance, because of the Bill of Rights, the states’ wishes could not be overturned by the Federal Government.
The British Common Law
“The [British] Bill of Rights of 1688 made it clear that Parliament considered that there was a right for citizens to have arms and by the mid-18th century the [British] Common Law was very clear in recognizing a constitutional right to have arms which Parliament had no authority to breach in general terms.”[15]
Prior to and during the early years of the American Revolution the thirteen colonies had operated under the above provisions and personal firearm ownership was not only granted but was extremely common, although the overall extent of ownership was not realized until recently. From an assessment of over 1500 probated wills during the colonial period in Maryland, Massachusetts, New Jersey, Pennsylvania, Rhode Island, Vermont, and Virginia it is now known that the level of personal household gun possession was substantial.[16] In Maryland and Virginia, for example, the average household level of gun ownership in the 1750s was 87% and in the 1760s-1770s it was 77%. Among the very wealthy it was 74%, and even among the working class it was 64%.[17]
With the ratification of the United States Constitution in 1791, however, personal gun ownership protection under British Common Law no longer applied. To obtain this protection, it is not surprising that seven of the 11 states admitted to the union between 1792 and 1820, would have incorporated into their state constitutions, the dual-purpose clause “That the people have a right to bear arms for defense of themselves and the State.” In other words, with the protection now afforded by the Bill of Rights, and in particular the Tenth Amendment that mirrored the language of Article II in the Articles of Confederation (“Each state retains its sovereignty, freedom, and independence…” )[18] the citizens of these new states, at that time, would have been assured that no one, including the federal government, could revoke their right to own guns. In short, with the disappearance of British Common Law protection over private gun ownership in 1791, coupled with the immediate gain by the states of this protection under the Bill of Rights after 1791, here too there would have been no need for any of these states to make use of Article V in the Constitution. It is also worth mentioning that of the original 11 states that had not incorporated these provisions in their constitutions prior to 1792, after 1792 five also did so, again with full knowledge that they too had the protection of the Bill of Rights (Rhode Island, 1843, Georgia and North Carolina, 1868, New Hampshire, 1982, Delaware, 1987).
Conclusion
By failing to recognize the importance of 1791 both in terms of the ratification of the Bill of Rights and the loss of British Common Law protection over the right to private gun ownership, Justice Scalia was clearly at fault for not taking into consideration these two extremely important aspects of constitutional history. Had he done so in addition to conducting a proper analysis of the individual state constitutions that emerged between 1776 and 1820, presumably he would have reached a very different conclusion. In any event, the outcome of the present investigation further underscores Justice Breyer’s global evaluation of the faulty use of historical evidence in the Heller decision.
“We attempted to determine the scope of the Second Amendment right to bear arms by conducting an historical analysis…Many experts now tell us that the Court got it wrong in a number of ways. That is understandable given the difficulty of the inquiry that the Court attempted to undertake. The Court’s past experience with historical analysis should serve as a warning against relying exclusively, or nearly exclusively, on this mode of analysis in the future.”[19]
[1] Bill Brady, “Is it really worth insisting upon: A new test for the Second Amendments,” Huston Law Review, 60, no. 1, (2022), 197.
[2] United States v. Cruikshank, 92 U.S. 542 (1875).
[3] New York State Rifle & Pistol Assn v. Bruen, 597 U.S. 1 (2022).
[4] District of Columbia v. Heller, 554 U.S. 570 (2008).
[5] Saul Cornell, “The right to carry firearms outside of the home: Separating historical myths from historical realities.” Fordham Urban Law Journal 39, no. 5 (2012), 1696. New York State Rifle & Pistol Assn, 26-29 Breyer, J., dissenting).
[6] District of Columbia v. Heller at 584-5.
[7] District of Columbia v. Heller at 571.
[8] Neil H. Cogan, The Complete Bill of Rights (New York, NY: Oxford University Press, 1997), 169-181.
[9] John P. Kaminski and Gaspare J. Saladino, Commentaries on the Constitution: Public and Private, (Madison, WI: State Historical Society of Wisconsin, 1981), 1:348-350.
[10] John P. Kaminski and Gaspare J. Saladino, Commentaries on the Constitution: Public and Private,( Madison, WI: State Historical Society of Wisconsin, 1986), 4:452, 456.
[11] Cogan, 180.
[12] Herbert J. Storing, What the Anti-Federalists Were For (Chicago, Ill: The University of Chicago Press, 1981), 68.
[13] Twining v. State, 211 U.S. 78 at 120 (Harlan, J., dissenting).
[14] Harold U. Faulkner, American Political & Social History (New York, NY: Appleton -Century Crofts, Inc., 1957, 7th ed.) lxvi-lxvii.
[15] Colin Greenwood, “Firearm Controls in Britain, Part I The History of Firearms Controls in Great Britain” (Memorandum, Public Records, April 13, 2013. Appendix B)
[16]James Lindgren and Justin L. Heather, “Counting guns in early America.” William and Mary Law Review, vol 43, 2002), 1777-1842.
[17] Lindgren and Heather, 1815.
[18] See, Kurt T. Lash “The original meaning of an omission: The Tenth Amendment, Popular sovereignty and “expressly” delegated power,” Loyal Law School: Legal Studies Paper No. 2007-31 (October, 2007).
[19] Breyer, 29.