No. 18-280
`
`In the
`Supreme Court of the United States
`
`NEW YORK STATE RIFLE & PISTOL
`ASSOCIATION, INC., et al.,
`
`v.
`
`CITY OF NEW YORK, et al.,
`
`Petitioners,
`
`Respondents.
`
`On Writ Of CertiOrari tO the United StateS
`COUrt Of appealS fOr the SeCOnd CirCUit
`
`AMICUS CURIAE BRIEF OF THE MADISON
`SOCIETY FOUNDATION, INC., IN SUppORT
`OF pETITIONERS FOR REVERSAL
`
`DonalD e. J. KIlmer, Jr.
`Counsel of Record
`law offIces of DonalD KIlmer, aPc
`1645 Willow Street, Suite 150
`San Jose, CA 95125
`(408) 264-8489
`don@dklawoffice.com
`
`Counsel for Amicus Curiae
`
`288378
`
`A
`
`(800) 274-3321 • (800) 359-6859
`
`
`
`In the
`Supreme Court of the United States
`
`NEW YORK STATE RIFLE & PISTOL
`ASSOCIATION, INC., et al.,
`
`v.
`
`CITY OF NEW YORK, et al.,
`
`Petitioners,
`
`Respondents.
`
`On Writ Of CertiOrari tO the United StateS
`COUrt Of appealS fOr the SeCOnd CirCUit
`
`AMICUS CURIAE BRIEF OF THE MADISON
`SOCIETY FOUNDATION, INC., IN SUppORT
`OF pETITIONERS FOR REVERSAL
`
`DonalD e. J. KIlmer, Jr.
`Counsel of Record
`law offIces of DonalD KIlmer, aPc
`1645 Willow Street, Suite 150
`San Jose, CA 95125
`(408) 264-8489
`don@dklawoffice.com
`
`Counsel for Amicus Curiae
`
`288378
`
`A
`
`(800) 274-3321 • (800) 359-6859
`
`
`
`i
`QUESTIONS PRESENTED
`
` The question presented is:
`
` Whether the City's ban on transporting a licensed,
`locked, and unloaded handgun to a home or shooting
`range outside city limits is consistent with the Second
`Amendment,
`the Commerce Clause, and
`the
`constitutional right to travel.
`
`
`
`ii
`TABLE OF CONTENTS
`
`Questions Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . i
`
`Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
`
`Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . .iv
`
`I.
`
`II.
`
`Interest of Amicus . . . . . . . . . . . . . . . . . . . . . . . 1
`
`Argument Summary. . . . . . . . . . . . . . . . . . . . . 1
`
`III. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . 3
`IV. Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
` A. A Militia-Centric View of the Right to
`Keep and Bear Arms is Ahistorical . . . . . . . . . 4
`1. Historic Background: Classical
` Republicanism vs. Jeffersonianism . . . . . . . .6
`
`2. The Right to Arms vs. The Militia in
` Early American Statecraft. . . . . . . . . . . . . . 9
`a. Initial Contrast:
` Thomas Jefferson vs.
` George Mason . . . . . . . . . . . . . . . . . . 9
`
`b. Sequel:
` Virginia vs. Pennsylvania . . . . . . . .11
`
`
`
`iii
`c. Proposals for a Federal Bill of
` Rights in the State Ratifying
` Conventions, 1787-88 . . . . . . . . . . . 14
`
`d. Virginia Proposes Adding a
` Militia Clause to the Right
` To Arms . . . . . . . . . . . . . . . . . . . . . . .16
`
`3. The Right to Arms Clause vs. the
` Militia Clause and the Framing of
` The 14th Amendment. . . . . . . . . . . . . . . . . 18
`
` B. The Recognition of a Multi-Purpose
`Second Amendment Undermines
`The Validity of New York’s Premises-Only
`Arms Licenses. . . . . . . . . . . . . . . . . . . . . . . . . 20
`
`V.
`
`Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
`
`
`
`iv
`TABLE OF AUTHORITIES
`Federal Cases
`
`District of Columbia v. Heller,
`554 U.S. 570 (2008) .........................1, 3, 21, 22, 24
`
`Stevens v. United States,
`440 F.2d 144 (6th Cir. 1971) ................................4
`
`United States v. Kozerski,
`518 F. Supp. 1082 (D.N.H. (1981).......................4
`
`United States v. Warin,
`530 F.2d 103 (6th Cir.) .........................................4
`
`Federal Statutes
`
`Militia Act of May 8, 1792....................................18, 24
`
`State Statutes
`
`Militia Act of April 1, 1775, .......................................24
`(Laws of the Colony Of New York
`Passed in the Years 1774 and 1775.
`Kept [&] Published under Direction of
`Frederick Cook, Secretary Of State,
`Pursuant To Chapter One
`Hundred And Seventy-one, Laws
`or Eighteen Hundred And Eighty-eight.
`Chapter 10, Laws of 1775, [Chapter LXII]).)
`
`Militia Act of April 3, 1778, ......................................24
`(Laws of the State of New York
`Passed at the Sessions Of The Legislature,
`
`
`
`v
`Held in the Years 1777, 1778, 1779, 1780,
`1781, 1782, 1783 and 1784, inclusive.
`Albany: James B. Lyon, State Printer,
`1894. Volume 1. Session 1, Chapter 33)
`
` N.Y. Penal Law § 400.00 .....................................22, 23
`
`Secondary Sources
`
`JOHN ADAMS, DIARY AND AUTOBIOGRAPHY.................11
`(L. H. Butterfield ed. 1964)
`
`Bernard Bailyn, ...........................................................8
`THE IDEOLOGICAL ORIGINS OF THE
`AMERICAN REVOLUTION, 285 (1977)
`
`DEBATES AND PROCEEDINGS IN THE ............................15
`CONVENTION OF THE COMMONWEALTH
`OF MASSACHUSETTS HELD IN THE
`YEAR 1788 (Boston 1856)
`
`Michael D. Doubler, ..................................................19
`CIVILIAN IN PEACE,
`SOLDIER IN WAR (2003)
`
`JONATHAN ELLIOT, .....................................................18
`DEBATES IN THE SEVERAL STATE
`CONVENTIONS ON THE ADOPTION
`OF THE FEDERAL CONSTITUTION
`(2d ed. 1836, reprinted 1966)
`
`PAPERS OF THOMAS JEFFERSON ...................................9
`(J. Boyd ed., 1950)
`
`
`
`vi
`Stephen P. Halbrook, ................................................19
`THAT EVERY MAN BE ARMED:
`THE EVOLUTION OF A CONSTITUTIONAL
`RIGHT (1984)
`
`Harding, .....................................................................13
`PARTY STRUGGLES OVER
`THE FIRST PENNSYLVANIA
`CONSTITUTION, ANNUAL
`REPORT OF THE AMERICAN
`HISTORICAL ASSOCIATION (1895)
`
`JOURNAL OF THE FIRST SESSION .................................14
`OF THE SENATE (1820)
`
`Niccolo Machiavelli, ....................................................6
`THE PRINCE AND THE DISCOURSES
`45 (Mod. Library ed. 1950) (1513)
`
`PAPERS OF JAMES MADISON ........................................17
`(Robert Rutland &
`Charles Hobson, eds., 1964)
`
`James K. Mahon, .......................................................18
`HISTORY OF THE MILITIA
`AND THE NATIONAL GUARD (1983)
`
`J. McMaster & F. Stone, ............................................14
`PENNSYLVANIA AND THE
`FEDERAL CONSTITUTION
`1787-1788 (1888)
`
`Thomas Paine, ...........................................................19
`THE AMERICAN CRISIS, No. I (1776)
`
`
`
`vii
`EDMUND RANDOLPH'S ESSAY ON THE ..........................10
`REVOLUTIONARY HISTORY OF VIRGINIA,
`44 VIRGINIA MAGAZINE OF
`HISTORY AND BIOGRAPHY 35, 44 (1936)
`
`David Robertson, ........................................................16
`DEBATES AND OTHER PROCEEDINGS
`OF THE CONVENTION OF VIRGINIA
`(2d ed. Richmond 1805)
`
`Bernard Schwartz, ................................................15, 17
`THE BILL OF RIGHTS:
`A DOCUMENTARY HISTORY (1971)
`
`J. Selsam, ...................................................................13
`THE PENNSYLVANIA CONSTITUTION
`OF 1776: A STUDY IN REVOLUTIONARY
`DEMOCRACY (1936)
`
`Robert Shalhope, ....................................................7, 13
`The Armed Citizen in the Early Republic,
`49 LAW & CONTEMP. PROBS. 125, 128 (1986)
`
`CHARLES TANSILL, ED., ...............................................17
`DOCUMENTS ILLUSTRATIVE OF THE
`FORMATION OF THE UNION OF THE
`AMERICAN STATES (1927)
`
`
`
`1
`I. INTEREST OF AMICUS1
`
`The Madison Society Foundation, Inc., (MSF) is a
`not-for-profit 501(c)(3) corporation based in California.
`It seeks to promote and preserve the Constitution of
`the United States, in particular the right to keep and
`bear arms. MSF provides the general public and its
`members with education and training on this
`important right. MSF contends that this right includes
`the right of a law-abiding citizen to purchase firearms
`in all states and territories, subject to federal law.
`
`II. ARGUMENT SUMMARY
`The Second Amendment has two clauses, one
`affirming the importance of a well regulated militia,
`the other guaranteeing the right of the people to keep
`and bear arms. The relationship between these two
`clauses has engendered debate within the Court. In
`District of Columbia v. Heller, 554 U.S. 570 (2008), for
`example, the dissent argued that the militia clause
`“confirms that the Framers' single-minded focus in
`crafting the constitutional guarantee 'to keep and bear
`
`1
` No counsel for a party authored this brief in whole or
`in part, and no counsel for a party made a monetary
`contribution intended to fund the preparation and
`submission of this brief. No person other than the
`amicus curiae, or its counsel made a monetary
`contribution to its preparation or submission. Counsel
`for Petitioners and Counsel for Respondents consented
`to this filing in accordance with this Court’s Rules.
`
`
`
`2
`arms' was on military uses of firearms, which they
`viewed in the context of service in state militias.” Id. at
`643 (Stevens, J., dissenting). The majority treated the
`militia clause as a preamble to the arms clause, and
`discussed the role of preambles in construing operative
`clauses. Id. at 577-78.
`We suggest that the relationship of the two clauses
`is best understood in light of their history and
`evolution.2 Neither was meant to or understood as
`limiting the scope of the other. The militia clause and
`the right to arms clause had separate origins,
`philosophical underpinnings, and were demanded by
`separate constituencies. They were only joined together
`at the Virginia ratifying convention of 1788, the
`eleventh hour of the Framing. The phrasing of one as
`an apparent preamble to the other was more stylistic
`than substantive.
`We further suggest that this bifurcated pedigree of
`the 1791 Second Amendment, along with a Fourteenth
`Amendment re-ratification in 1868, strongly implies
`that a personal, individual “right to keep and bear
`arms” is: (A) broader and more vigorous than any
`militia-based right; and (B) that neither of the two
`clauses is a limitation on the other; and (C) that both
`clauses support a liberal (not limiting) interpretation
`of the other.
`
`2
` Amicus Curiae are indebted to Dave Hardy of
`Tucson, Arizona, for a great deal of the research and
`scholarship in this brief.
`
`
`
`3
`III. STATEMENT OF FACTS
`New York City prohibits its residents from
`possessing a handgun without a license, and the only
`license the City makes available to most residents
`allows its holder to possess her handgun only in her
`home or en route to one of seven shooting ranges
`within the city.
`The City thus bans its residents from transporting
`a handgun to any place outside city limits, even if the
`handgun is unloaded and locked in a container
`separate from its ammunition, and even if the owner
`seeks to transport it only to a second home for the core
`constitutionally protected purpose of self- defense, or to
`a more convenient out-of-city shooting range to hone its
`safe and effective use.
`The City asserts that its transport ban promotes
`public safety by limiting the presence of handguns on
`city streets. But the City put forth no empirical
`evidence that transporting an unloaded handgun,
`locked in a container separate from its ammunition,
`poses a meaningful risk to public safety.
`Moreover, even if there were such a risk, the City's
`restriction poses greater safety risks by encouraging
`residents who are leaving town to leave their handguns
`behind in vacant homes, and it serves only to increase
`the frequency of handgun transport within city limits
`by forcing many residents to use an in city range
`rather than more convenient ranges elsewhere.
`
`
`
`4
`IV. ARGUMENT
`A. A Militia-Centric View of the Right to
` Keep and Bear Arms is Ahistorical.
`The core debate over the Second Amendment's
`meaning is whether the amendment's second clause,
`protecting the right to keep and bear arms, should be
`limited by its first clause, describing the importance of
`a well-regulated militia. That
`is, whether the
`individual right to arms exists only to the extent
`necessary to serve in such a militia.3
`
`3
` See District of Columbia v. Heller, 554 U.S. 570,
`636 2008 (Stevens, J., dissenting) ("The question
`presented by this case is not whether the Second
`Amendment protects a "collective right" or an
`"individual right." Surely it protects a right that can be
`enforced by
`individuals."). This militia-centric
`construction is actually a recent development. Until
`the 1990s, the militia-centric theory of the Second
`Amendment
`rejected an
`individual
`rights
`interpretation in favor of a right of states to have some
`manner of militia organization. See, e.g., Stevens v.
`United States, 440 F.2d 144, 149 (6th Cir. 1971);
`United States v. Warin, 530 F.2d 103, 105 (6th Cir.),
`cert. denied, 426 U.S. 948 (1976); United States v.
`Kozerski, 518 F. Supp. 1082, 1090 (D.N.H. (1981).
`
` That position was always untenable. The Framers
`uniformly used "right of the people" to describe
`individual rights in the First and Fourth Amendment;
`and in the Ninth Amendment’s reservation of rights to
`the people.
`
`
`
`5
`The militia-centric view assumes that the two
`clauses of the Second Amendment must have reflected
`a single purpose, so that one clause was implicitly
`meant to define the limits of the other. Reasoning by
`implication is essential, since no one of the Framing
`generation ever stated that the right to arms clause
`was restricted by the militia clause.
`A careful look at the relevant history suggests,
`however, that the Second Amendment has two clauses
`because it has two purposes, and was meant to satisfy
`two different sets of critics of the original Constitution.
`In 1789-91 there were Americans who desired the
`guarantee of an individual right to arms, and there
`were Americans who desired to protect the militia as
`an
`institution. Only at the Virginia ratifying
`convention – in the eleventh hour of framing the Bill of
`Rights – did it occur to the Framers that both
`provisions could be embodied in a single amendment.
`Nor was this drafting convention unusual. Each of
`the first eight entries in the Bill of Rights sets forth
`multiple rights in a single amendment. The Ninth
`Amendment reminds us that even that list is not
`exhaustive.
`The common core of our First Amendment concerns
`matters of the intellect and spirit; the common
`denominators of the Fourth, Fifth, and Sixth
`Amendments preserve due process, protect the
`integrity of property rights, and promise fair criminal
`proceedings; the Seventh Amendment preserves a civil
`justice system based on juries, and the Eighth
`Amendment sets limits on pretrial detention and
`civil/criminal punishments.
`
`
`
`6
`The core of our multi-purpose Second Amendment
`is the acknowledgment of the individual’s moral
`authority to use force in defense of self. It is with this
`foundation, that the Second Amendment’s own militia
`clause, and the other militia clauses in the U.S. and
`State Constitutions, along with federal and state
`statutory authorities for militias, can be interpreted as
`a means for citizens to come to the defense of their
`community, state, and nation. This is accomplished
`through the allocation and decentralization of martial
`power between the national government and the
`states; but all of this is only made possible by the
`bedrock of a fundamental right to self defense held by
`individuals.
`1. Historical Background: Classical Republicanism
`vs. The Jeffersonian Vision.
`Late 18th century American political thought was
`dominated by two approaches, which differed in
`emphasis. The older of the two is today identified as
`the Classical Republican. This approach drew upon
`Niccolo Machiavelli's early, pro-republican writings, as
`imported into English political thought by James
`Harrington.
`To Machiavelli, a republic (a "free state," in Second
`Amendment terms) could not safely be defended by a
`hired, full-time army. Any army strong enough to
`defend a republic would be strong enough to topple it,
`and take political power and wealth for its members.
`“Mercenary captains are either very capable men or
`not; if they are, you cannot rely upon them, for they
`will always aspire to their own greatness, either by
`oppressing you, their master, or by oppressing others
`
`
`
`7
`against your intentions; but if the captain is not an
`able man, he will generally ruin you.” NICCOLO
`MACHIAVELLI, THE PRINCE AND THE DISCOURSES 45
`(Mod. Library ed. 1950) (1513).
`Harrington sought to escape Machiavelli's dilemma
`by envisioning a republic defended by a militia of
`freeholders, who also held the franchise. No matter
`how powerful such a militia, it could not seek to topple
`the government to seize political power – as voters, its
`member already had it – nor to seize wealth – as
`freeholders, its members had that as well.
`Harrington's innovation, however, lay in
`joining
`land ownership with
`the
`possession of arms as the twin bases of
`virtuous citizenship. Because he was both
`armed and landed, Harrington's virtuous
`citizen had the necessary independence to
`maintain his life, liberty, and property
`against all who would deprive him of
`them. From Harrington, libertarians
`came to conceptualize civic virtue in
`terms of
`the armed
`freeholder:
`upstanding, courageous, self-reliant,
`individually able to repulse outlaws and
`oppressive officials, and collectively able
`to overthrow domestic tyrants and defeat
`foreign invaders.
`Robert Shalhope, The Armed Citizen in
` the Early Republic, 49 LAW & CONTEMP.
` PROBS. 125, 128 (1986)
`This Classical Republican approach thus saw
`property ownership, the franchise, and militia duty as
`
`
`
`8
`identical and coextensive; only this triple relationship
`could give a polity stability and independence.
`Individual rights were not its focus. Its goal was
`stability rather than individual rights.
`Late 18th century America came to see the rise of
`a second political world-view, which was at the time
`identified as "Radical" thought, and which today is
`identified as Jeffersonian or proto-Jeffersonian.
`Between these two points [American
`independence and the drafting of the first
`state constitutions] was a continuous,
`unbroken line of intellectual development
`and political experience. It bridged two
`intellectual worlds: the mid-eighteenth
`century world, still vitally concerned with
`a set of ideas derived ultimately from
`classical antiquity – from Aristotelian,
`Polybian, Machiavellian, and
`seventeenth-century English sources, and
`the quite different world of Madison and
`Tocqueville.
`IDEOLOGICAL
`Bernard Bailyn, THE
`ORIGINS OF THE AMERICAN REVOLUTION,
`285 (1977)
`This new movement saw things differently than
`had the Classical Republicans. The electoral franchise
`was not to be limited to landowners: everyone who
`contributed to the state should have a voice in its
`affairs. The militia system was a tool, not the sole key
`to stability. Thomas Paine, a prominent leader of the
`Radical movement, did not hesitate to write in late
`1776 that “a summer's experience” had sufficed to show
`
`
`
`
`
`9
`the militia's weakness, and that “I always considered
`militia as the best troops in the world for a sudden
`exertion, but they will not do for a long campaign.”
`Thomas Paine, THE AMERICAN CRISIS, No. I (1776).
`Paine's language would have been rank political heresy
`to a Classical Republican.
`2. The Right to Arms vs. The Militia in Early
` American Statecraft.
`In 1776, with the colonies preparing to declare
`their independence, several colonies chose to replace
`their Royal charters with written constitutions,
`prefaced by a declaration of rights. It swiftly became
`apparent that the drafters, at this stage of history, saw
`something of a binary choice between praising the
`militia (a tenet of Classical Republicanism), and
`recognizing an individual right to arms (reflecting
`Radical/Jeffersonian values). The concept that, since
`the two provisions were not inconsistent, a state might
`adopt both, does not seem to have occurred to those
`framing these early constitutions.
` a. Initial Contrast: Jefferson vs. Mason
`Virginia's Constitution and Declaration of Rights
`were the first adopted after independence. Thomas
`Jefferson (then serving in the Continental Congress)
`drafted a constitution and submitted
`it
`for
`consideration; portions of his draft were incorporated
`into the final document. 1 PAPERS OF THOMAS
`JEFFERSON 337 (J. Boyd ed., 1950).
`Jefferson: An Individual Right to Arms and
` Universal Manhood Suffrage.
`Jefferson's draft was actually a reflection of a
`
`
`
`10
`proto-Jeffersonian vision of universal participation in
`government. He would have extended the franchise to
`any taxpayer, divided state lands among landless
`citizens, stopped importation of slaves, and ended
`Virginia's establishment of religion. His draft of a
`declaration of rights did not even mention the militia,
`but did include a clearly individual right to arms: “No
`freeman shall ever be debarred the use of arms.” 1
`PAPERS OF THOMAS JEFFERSON, supra, at 344.4
`Virginia Convention: Praise for Militia and
`Freeholder-Only Suffrage.
`Virginia's legislature chose instead a constitution
`and bill of rights drafted by committee, and taken
`predominantly from the proposals of the more
`conservative George Mason. (Edmund Randolph, a
`member of the legislature, wrote that Mason's plan
`“swallowed up all the rest.” EDMUND RANDOLPH'S
`ESSAY ON THE REVOLUTIONARY HISTORY OF VIRGINIA, 44
`VIRGINIA MAGAZINE OF HISTORY AND BIOGRAPHY 35, 44
`(1936)).
`The resulting Declaration omitted any mention of
`individual arms rights and substituted a recognition
`that: “A well-regulated militia, composed of the body of
`the people, trained to arms, is the proper, natural, and
`
`4
` In his second and third drafts, Jefferson added
`“[within his own lands or tenements]”. Id. at 353, 363.
`Jefferson used brackets to denote language that was
`tentative or optional. 1 PAPERS OF THOMAS JEFFERSON,
`supra, at 347 n. 10. Jefferson, like other large
`landowners he may have worried about poaching.
`
`
`
`11
`safe defence of a free State.” Virginia Declaration of
`Rights, §13 (1776). In accord with the tenets of
`Classical Republicanism,
`the constitution
`left
`undisturbed Virginia's longstanding requirement of
`property ownership for voting, 3 HENING'S LAWS OF
`VIRGINIA 173 (1699).
` b. The Sequel: Virginia vs. Pennsylvania.
`Two months later, Pennsylvania became the second
`state to adopt a declaration of rights. The drafters had
`Virginia's Declaration was a model, and John Adams
`wrote that Pennsylvania's “bill of rights is almost
`verbatim from that of Virginia.” JOHN ADAMS, DIARY
`AND AUTOBIOGRAPHY 391 (L. H. Butterfield ed. 1964).
`Note the qualifier, “almost,” when comparing Virginia’s
`effort with the Pennsylvania effort:
`Virginia:
`Section 1. That all men are by nature equally
`free and independent and have certain inherent
`rights, of which, when they enter into a state of
`society, they cannot, by any compact, deprive or
`divest their posterity; namely, the enjoyment of
`life and liberty, with the means of acquiring and
`possessing property, and pursuing and obtaining
`happiness and safety.
`Section 12. That the freedom of the press is one
`of the great bulwarks of liberty, and can never
`be restrained but by despotic governments.
`Section 13. That a well-regulated militia,
`composed of the body of the people, trained to
`arms, is the proper, natural, and safe defense of
`a free state; that standing armies, in time of
`
`
`
`12
`peace, should be avoided as dangerous to liberty;
`and that in all cases the military should be
`under strict subordination to, and governed by,
`the civil power.
`Pennsylvania:
`I. That all men are born equally free and
`independent, and have certain natural, inherent
`and inalienable rights, amongst which are, the
`enjoying and defending
`life and
`liberty,
`acquiring, possessing and protecting property,
`and pursuing and obtaining happiness and
`safety.
`XII. That the people have a right to freedom of
`speech, and of writing, and publishing their
`sentiments; therefore the freedom of the press
`ought not to be restrained.
`XIII. That the people have a right to bear arms
`for the defence of themselves and the state; and
`as standing armies in the time of peace are
`dangerous to liberty, they ought not to be kept
`up; And that the military should be kept under
`strict subordination to, and governed by, the
`civil power.
`For the opening paragraph, the Pennsylvanians
`simply copied that of Virginia, editing it a bit. In the
`case of the second, they expanded the wording. But in
`the case of the third paragraph, did something more
`dramatic: they deleted the Virginia militia provision
`entirely and substituted a guarantee of a clearly
`individual right to arms. Indeed, the word "militia" is
`not to be found anywhere in the Pennsylvania
`
`
`
`13
`Declaration of Rights, and only once in its 1776
`Constitution (§7: legislators may not hold office, other
`than in the militia).
`We can also compare its extension of the franchise.
`Unlike Virginia, Pennsylvania enfranchised any
`taxpayer over the age of 21. Pa. Const. § 6 (1776).
`Why the difference in outlook? Pennsylvania's
`politics had taken a dramatic turn. Independence had
`been opposed by Quakers and Pietists and the coastal
`merchant class, all of whom had long dominated the
`legislature. Patriot forces managed to purge them, and
`voted to have the constitution drafted by an elected
`convention. See generally Harding, PARTY STRUGGLES
`OVER THE FIRST PENNSYLVANIA CONSTITUTION, ANNUAL
`REPORT OF THE AMERICAN HISTORICAL ASSOCIATION
`371-72
`(1895); J. Selsam, THE PENNSYLVANIA
`CONSTITUTION OF 1776: A STUDY IN REVOLUTIONARY
`DEMOCRACY (1936).
`The contrast between Jefferson's and Mason's
`proposals, and between those of Virginia and
`Pennsylvania, illustrate how in 1776 militia/arms
`provisions were seen as a binary choice: a constitution
`either recognized one or the other, but not both, and
`the choice reflected whether the drafters leaned toward
`Classical Republicanism (freehold-only suffrage) or a
`Jeffersonian vision (universal manhood suffrage).
`The Virginia model was adopted by Maryland,
`Declaration of Rights §XXV
`(1776), and
`the
`Pennsylvania one by Vermont, Vt. Constitution, Ch. I,
`art. 16 (1777). At this point, no one seems to have
`sensed that a state could both praise the militia and
`guarantee an individual right to arms.
`
`
`
`14
`To be sure, there was a third model, which can
`fairly be called a militia-centric individual right. This
`approach was typified by Massachusetts, which
`protected a right to keep and bear arms “for the
`common defense.” MA. Const., Pt. I, art. 17 (1780). We
`need not examine its history in detail, since “for the
`common defense” met with objection, Robert Shalhope,
`supra, at 134-35, and a proposal to add it to the Second
`Amendment was voted down in the First Senate: “On
`motion to amend article the fifth, by inserting the
`words “for the common defense next to the words ‘bear
`arms:’ it passed in the negative.” JOURNAL OF THE
`FIRST SESSION OF THE SENATE 77 (1820).
` c. Federal Bill of Rights in State Conventions.
`During the ratifying conventions in the states
`(1787-1788), there were three relevant calls for a bill of
`rights. The dominance of the individual right to arms
`model was here complete. All three called for an
`individual right to arms: the militia as an institution
`was mentioned only by way of criticism.
`The Pennsylvania minority5 report was drafted by
`delegates who were scarcely supporters of the militia
`as an institution. One of their complaints was that:
`[T]he personal liberty of every man,
`probably from sixteen to sixty years of
`age, may be destroyed by the power
`Congress have
`in organizing and
`governing of the militia. As militia they
`
`5
` Minority, because Pennsylvania's traditional power
`bases had recovered power since being purged in 1776.
`
`
`
`15
`may be subjected to fines of any amount,
`levied in a military manner; they may be
`subjected to corporal punishments of the
`most disgraceful and humiliating nature;
`and to death itself, by the sentence of a
`court-martial.
`J. McMaster & F. Stone,
`PENNSYLVANIA AND THE FEDERAL
`CONSTITUTION 1787-1788, 480 (1888)
`The Pennsylvania minority called
`for an
`amendment to the proposed constitution, guaranteeing:
`That the people have a right to bear arms
`for the defense of themselves and their
`own State, or of the United States, or for
`the purpose of killing game; and no law
`shall be passed for disarming the people
`or any of them, unless for crimes
`committed, or real danger of public injury
`from individuals.
`Id., at 462.
`There is no mention of the militia, but there is a
`clearly articulated individual right to arms.
`In the Massachusetts ratifying convention, Sam
`Adams called unsuccessfully for a guarantee that “the
`said Constitution be never construed to authorize
`Congress to infringe the just liberty of the press, or the
`rights of conscience; or to prevent the people of the
`United States, who are peaceable citizens, from
`keeping their own arms…” DEBATES AND PROCEEDINGS
`IN THE CONVENTION OF THE COMMONWEALTH OF
`MASSACHUSETTS HELD IN THE YEAR 1788, at 86-87
`
`
`
`16
`
`(Boston 1856).
`In New Hampshire's ratifying convention,
`proponents of a bill of rights for the first time won a
`majority vote, with the convention ratifying but calling
`for a guarantee that “Congress shall never disarm any
`Citizen except such as are or have been in Actual
`Rebellion.” 1 Bernard Schwartz, THE BILL OF RIGHTS: A
`DOCUMENTARY HISTORY 761 (1971).
`With New Hampshire's vote, the proposed
`constitution had the nine ratifications required for it to
`bind those states that had signed on. We are at the
`Eleventh Hour of the Constitution's history – and no
`one had yet proposed a federal bill of rights that said
`anything about the militia as a system.
`The 1776 Pennsylvania guarantee, not its Virginia
`rival, was the exclusive model for those Americans
`calling for a federal bill of rights.
` d. Virginia Proposes a Militia Clause.
`The scene then shifted to Virginia, which
`twenty-two years before had adopted a constitution
`that called for a “well-regulated militia.” George
`Mason, the probable source of that provision, told the
`ratifying convention that:
`Forty years ago, when the resolution of
`enslaving America was formed in Great
`Britain, the British parliament was
`advised by an artful man, who was
`governor of Pennsylvania, to disarm the
`people--that was the best and most
`effectual way to enslave them--but that
`they should not do it openly; but to
`
`
`
`17
`them sink
`let
`them and
`weaken
`gradually, by
`totally disusing and
`neglecting the militia.
`David Robertson, DEBATES AND OTHER
`PROCEEDINGS OF THE CONVENTION OF
`VIRGINIA 270 (2d ed. Richmond 1805)
`Note how Mason's argument reflected a shift from
`the world-view of 1776. Mason's 1776 view had been
`that the militia as an institution was essential to a free
`state. Mason's 1788 argument was that individual
`disarmament was a precondition to the destruction of
`liberty, and neglecting the militia was
`just a
`preliminary step to that disarmament.
`Perhaps as a result of this changed outlook, the
`Virginia delegates achieved an insight that had
`escaped those who had drafted all prior guarantees of
`rights. The choice was not either-or: there was nothing
`inconsistent in both protecting an individual right to
`arms and also praising the militia as an institution. In
`short, they could satisfy both the Classical Republicans
`and the Jeffersonians.
`The Virginia proposal called for a guarantee “that
`the people have the right to keep and bear arms; that
`a well regulated militia, composed of the body of the
`people trained to arms, is the proper, natural and safe
`defence of a free state ....” 1 Bernard Schwartz, supra,
`at 842. Before the Virginia proposals, all calls for a
`federal bill of rights had focused exclusively on an
`individual right to arms; the Virginians merely
`appended a clause praising the militia. The Virginia
`approach was subsequently adopted by New York,
`CHARLES TANSILL, ED., DOCUMENTS ILLUSTRATIVE OF
`
`
`
`18
`THE FORMATION OF THE UNION OF THE AMERICAN
`STATES 1035 (1927), and formed the basis of James
`Madison's draft of what become the Bill of Rights. 12
`PAPERS OF JAMES MADISON 58 (Robert Rutland &
`Charles Hobson, eds., 1964)
`Madison was willing to allow a phrase praising the
`militia, but not the parts of the Virginia proposals that
`would have given substantial guarantees to the militia
`as a system. The Virginia proposals also called for a
`state power to organize and arm its militia should
`Congress fail to do so. 3 JONATHAN ELLIOT, DEBATES IN
`THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF
`THE FEDERAL CONSTITUTION 660 (2d ed. 1836, reprinted
`1966). This proviso Madison did not include in his draft
`of what became the Bill of Rights. The right to arms
`would receive a substantive guarantee. The nod to the
`militia concept would involve mere lip service.
`3. The Right to Arms Clause vs. the Militia
` Clause and the Framing of the
` 14th Amendment.
`The decades after the Framing saw the militia
`system known to the Framers (i.e., near-universal and
`mandatory) rapidly fade.
`The 1792 Militia Act broadly empowered the states
`to exempt persons from militia duty. Act of May 8,
`1792, 1 Stat. 271, 271 §2 (exempting “all persons who
`now are or may hereafter be exempted by the laws of
`the respective states”). Many states, particularly in the
`north, took advantage of the power given. Soon after
`the war of 1812, Ohio and Delaware abandoned
`mandatory militia service. Massachusetts, Maine,
`Ohio, Vermont, Con
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