OUR 2ND AMENDMENT
By Dave Kopel
"In America we may
reasonably hope that the people will never ease to regard the right of keeping and bearing
arms as the surest ledge of their liberty." - St. George Tucker
As the 1998 elections get into high gear, pro-rights volunteers are getting involved in
primary and general election campaigns all over the country. The grassroots volunteer
strength of Second Amendment activists is the fundamental reason why the right to keep and
bear arms is so much healthier in America than in other countries. The anti-gun lobbies
know this, and one of their major objectives is to discourage you, the American gun owner,
from working to defend your Constitutional rights.
For example, at the Handgun Control, Inc. world-wide web site, there is a special area
"just for gun owners." The section contains materials written by HCI staff
insisting that the idea that the Second Amendment guarantees a right of individual
Americans to keep and bear arms is a "myth" and a "fraud" invented by
the National Rifle Association. If you read this material and fell for it, you would
likely become much less energetic in political work to defend the Second Amendment.
But in truth, HCI's claim that
the individual's right to keep and bear arms is a "fraud"; is itself a creative
compilation of selective quotations, facts taken out of context and omission of the large
body of contrary evidence.
In Stalin's Soviet Union (one of the many countries where domestic disarmament paved the
way for genocide), a person who fell out of political favor became a
"non-person." If you owned the Soviet encyclopedia, you would receive
instructions from time to time ordering you to cut out an entry referring to somebody who
had newly been declared an unperson. Excised from the encyclopedia, the
"non-person" would never again be mentioned by the government, and any private
person who even acknowledged that the "non-person" had ever existed would be
risking a long stretch in the concentration camps.
HCI's campaign to persuade
Americans that the Second Amendment has nothing to do with individual rights depends on
turning many of the greatest American judges and legal scholars into non-persons. HCI
simply pretends that these people never existed, because to acknowledge their existence
would be to admit that it HCI's description of the Second Amendment which is the
Consider, for example, St. George Tucker. He is a person whom you will regularly encounter
in the many scholarly law review articles which agree that the Second Amendment guarantees
a right of every American adult citizen to own and carry guns. But if all you knew was
what you read from the anti-gun lobbies, St. George Tucker would be a non-person.
Tucker, the most important
legal scholar of the early American republic, was just starting his legal career in
Virginia when the American Revolution intervened. Tucker threw himself into the Patriots'
cause enthusiastically, leading a gun-running operation in which his four small ships sent
indigo to the West Indies and Bermuda in exchange for firearms.
After independence had been won, St. George Tucker became one of the most distinguished
Virginia lawyers; he taught law at William and Mary from 1790 until 1804, when he was
appointed a judge of Virginia's High Court of Appeals. Tucker was also the leading
abolitionist in Virginia, calling an end to slavery his "dearest wish."
In 1790, St. George Tucker
began work on a treatise, published in 1803, which became the greatest law book in
America. Tucker's project was to create an American edition of Blackstone's Commentaries.
In 1760, the English lawyer Sir William Blackstone had written a four-volume Commentaries
on the Law of England. Blackstone's explication of every facet of English law (which, of
course, was also the law in America) became essential reading for every lawyer.
Tucker set out to create an American edition of Blackstone. Adding his own analysis to
Blackstone's, Tucker aimed to create a legal guidebook specifically suited to American
In particular, Tucker
demonstrated that the American law of the early 19th century provided far greater
protection of civil liberty than did the English law that Blackstone had described in
For example, Blackstone had written that the liberty of the press meant that the
government could not censor something before it was written; but after publication, the
government could punish someone for having criticized the king. But Tucker's American
edition of Blackstone explained that in America, thanks to the First Amendment, one could
not be punished for criticizing the government.
Nearly two centuries later, in the landmark free speech New York Times v. Sullivan (1964),
Supreme Court Justice Hugo Black observed that Tucker set forth "the general view
held when the First Amendment was adopted and ever since."
Justice Black was not alone in
his high esteem of St. George Tucker.
Tucker's American Blackstone (as the five-volume set became known) has been cited over
forty times by the U.S. Supreme Court, from early times right up to the present.
From the 1803 publication of the American Blackstone until 1827, Tucker's treatise was the
only treatise available on American law. Almost every new lawyer began his studies by
reading Tucker's Blackstone, and some lawyers never read anything else.
Thus, anyone with a sincere interest in the original meaning of the American right to arms
would want to know what the American Blackstone had to say.
Tucker's American Blackstone
reprinted Blackstone's commentary on what Blackstone called the five "auxiliary
rights of the subject." These were rights (such as the right to seek legal redress in
court, and the right to petition) whose main purpose was to safeguard primary rights
(personal liberty, personal security, and property). Blackstone had written:
"The fifth and last auxiliary right of the subject, that I shall at present mention,
is that of having arms for their defense suitable to their condition and degree, and such
as are allowed by law. Which is also declared by the same statute 1 W. & M. st. 2 c.
2, and its indeed, a public allowance under due restrictions, of the natural rights of
resistance and self-preservation, when the sanctions of society and laws are found
insufficient to restrain the violence of oppression."
Blackstone was explaining the
1689 English Bill of Rights, which provided: "That the Subjects which are Protestants
may have Arms for their Defense suitable to their Conditions, and as allowed by Law."
Tucker added his own analysis in two footnotes:
"The right of the people to keep and bear arms shall not be infringed. Amendments to
the C.U.S. Art. 4 and this without any qualification as to their condition or degree, as
is the case in the British government."
In other words, the American
right to arms (like the American right to freedom of the press) was broader than its
British counterpart; the American right contained none of the limitations expressed in the
British right. (Tucker cited what we today call "the Second Amendment" as
"article 4" because the Bill of Rights, as originally proposed to states,
contained two amendments which were not immediately ratified by the states, while the
latter ten amendments were speedily ratified. Thus, the modern First Amendment was
originally proposed as the third amendment.)
Tucker's other footnote explained: "Whoever examines the forest, and game laws in the
British code, will readily perceive that the right of keeping arms is effectually taken
away from the people of England. The commentator himself [Blackstone] informs us, Vol. II,
p. 412, that the prevention of popular insurrections and resistance [sic] to government by
disarming the bulk of the people, is a reason oftener meant than avowed by the makers of
the forest and game laws.'"
Tucker's footnote thus quoted
from another part of Blackstone, in which Blackstone had described the English game laws,
with their restrictions on the ownership of hunting weapons, as having the covert intent
of disarming the non-aristocratic population.
Later, in the discussion of the section of Blackstone criticizing the British game laws,
Tucker added his own criticism of British practice, contrasting it with the robust right
to arms in America:
"The bill of rights, 1 W.
and M. says Mr. Blackstone, (Vol. 1, p. 143) "secures to the subjects of England the
right of having arms for their defense, suitable to their condition and degree." In
the construction of these game laws it seems to be held, that no person who is not
qualified according to law to kill game, hath any right to keep a gun in his house. Now,
as no person, (except the game-keeper of a lord or lady of the manor) is admitted to be
qualified to kill game, unless he has 100l. per annum, &c. it follows that no other
can keep a gun for their defense; so that the whole nation are completely disarmed, and
left at the mercy of the government, under the pretext of preserving the breed of hares
and partridges, for the exclusive use of the independent country gentlemen. In America we
may reasonably hope that the people will never cease to regard the right of keeping and
bearing arms as the surest pledge of their liberty."
In fact, Tucker was wrong in
his dire description of England; after the overthrow of James II in 1689, the game laws
were no longer interpreted so as to disarm the common people. The law presumed that a
commoner's gun was intended for self-defense (a right guaranteed by the 1689 Bill of
Rights), unless the circumstances showed that the gun was used for unlawful hunting.
But the point here is not whether Tucker accurately understood English circumstances, but
what Tucker's widely-read treatise shows about the state of American law. Tucker's remarks
unambiguously described "the right of keeping and bearing arms as the surest
pledge" of liberty. This is hardly consistent with HCI's assertion that the Second
Amendment was never considered an important personal right.
Tucker's American Blackstone
contained several appendices, including a lengthy appendix analyzing the new American
Constitution. This appendix was the first legal analysis of the new Constitution. The
constitutional law Appendix was used as a legal textbook for many decades throughout the
Although Tucker had addressed the Second Amendment in his footnotes to Blackstone, the
Constitutional Appendix gave Tucker the opportunity for a fuller exposition of the
"This may be considered as
the true palladium of liberty.... The right of self defense is the first law of nature: in
most governments it has been the study of rulers to confine this right within the
narrowest limits possible. Wherever standing armies are kept up, and the right of the
people to keep and bear arms, is under any colour or pretext whatsoever, prohibited,
liberty, if not already annihilated, is on the brink of destruction. In England, the
people have been disarmed, generally, under the specious pretext of preserving the game: a
never failing lure to bring over the landed aristocracy to support any measure, under that
mask, though calculated for very different purposes. True it is, their bill of rights
seems at first view to counteract this policy: but the right of bearing arms is confined
to protestants, and the words suitable to their condition and degree, have been
interpreted to authorize the prohibition of keeping a gun or other engine for the
destruction of game, to any farmer, or inferior tradesman, or other person not qualified
to kill game. So that not one man in five hundred can keep a gun in his house without
being subject to a penalty."
The Second Amendment, as Tucker
explained, was intended to protect "right of self defense." So contrary to HCI's
Second Amendment mythology, the Second Amendment is not only about the militia. (Although
the promotion of a well-regulated militia to protect liberty from foreign and domestic
threats certainly was one important part of the Second Amendment.)
And as Tucker observed, the right to arms also included the right to hunt game. Besides
explicating the Second Amendment as an individual right essential for liberty, Tucker also
argued that even without the Second Amendment, Congress could not disarm "any
person," because disarmament could never be "Necessary and Proper." (The
Constitution authorizes Congress to enact laws which are "Necessary and Proper"
to the execution of powers granted to Congress, such as regulating interstate commerce, or
creating a post office.):
"If, for example, congress
were to pass a law prohibiting any person from bearing arms, as a means of
insurrections, the judicial courts, under the construction of the words necessary and
proper, here contended for, would be able to pronounce decidedly upon the
constitutionality of these means." Tucker continued, using the example of
congressional disarmament as an illustration for the necessity of judicial power to
declare laws unconstitutional.
Suppose that the gun prohibition lobbies' claims were correct: the Second Amendment
protected only state governments, not individuals. If so, it is indeed strange that not
one of the architects of the Constitution offered any objection to St. George Tucker. Most
of the framers of the Constitution, including Madison, were alive in 1803 and actively
engaged in public affairs. Many were lawyers, and it would have been impossible for them
to fail to notice the leading lawyer's book in the United States.
And it is also strange that
HCI, which so vehemently insists that everyone except NRA dupes knows the Second Amendment
was never intended to protect a personal right, never lets any of its followers know that
HCI's theory of the Second Amendment is contradicted in every respect by the leading law
book of early America. As Tucker demonstrates, the Second Amendment right is individual,
not a state's right; it belongs to everyone, not just militia members; its purposes
include collective defense against tyranny, individual defense against lone criminals, and
President James Madison, the author of the Second Amendment, made clear his own opinion of
Tucker's legal scholarship. He appointed St. George Tucker to the federal court for
Virginia, a post the great jurist held with distinction until his death in 1827.
For further reading: St. George
Tucker, Blackstone's Commentaries, with Notes of Reference to the Constitution and Laws of
the Federal Government of the United States and the Commonwealth of Virginia (Union, N.J.:
The Lawbook Exchange, 1996). Tucker's Blackstone can be found at some law libraries, and
at some other libraries with strong history collections. The books were brought back into
print in 1996 by a legal publisher, although the $450 price for the set puts them beyond
the reach of most consumers.
19TH CENTURY CONSTITUTIONAL LAW
WHICH ADDRESS THE SECOND AMENDMENT
All legal treatises or essays
from the nineteenth century which discussed the Second Amendment treated it as an
individual right. If two publication dates are listed for a book, the first date is the
date of original publication, and the second date is for a modern reprint. Most of the
books are available on the Internet through Amazon.com (http:/www.amazon.com) or can be
special ordered at a local bookstore. Many of the reprint editions are by Fred B. Rothman
& Co., Littleton, Colorado.
|St. George Tucker, Blackstone's Commentaries, with Notes of Reference
to the Constitution and Laws of the Federal Government of the United States and the
Commonwealth of Virginia (1996) (1803). William Blackstone's Commentaries on the Laws of
England was a major English treatise from the 1760s. Tucker's edition added substantial
additional commentary, updating Blackstone to reflect the evolution of American law.
|William Rawle, A View of the Constitution of the United States of
America (1970, reprint of 2d ed. 1829).
|Joseph Story, Commentaries on the Constitution (1833), available
in full text on the Internet at http://www.constitution.org/js/js_000.htm.
|Joseph Story, A Familiar Exposition of the Constitution of the
United States (1840). Numerous modern reprints available.
George Tucker, Commentaries on the Law
of Virginia (1831). Henry St. George Tucker was a distinguished Virginia judge and law
professor, and a distant relative of St. George Tucker (above).
|Benjamin L. Oliver, The Rights of an American Citizen; with a
Commentary on State Rights, and on the Constitution and Policy of the United States
Bayard, A Brief Exposition of the
Constitution of the United States 3-4 (1992, reprint of 2d ed., 1845).
|Francis Lieber, On Civil Liberty and Self-Government (enlarged ed.,
|Lysander Spooner, The Unconstitutionality of Slavery (1845).
|Lysander Spooner, A
Defense of the Fugitive Slaves 27 (1850).
Spooner's works are available in a variety of modern anthologies of his writing.
|Joel Tiffany, Treatise on the Unconstitutionality of American
|Joel Tiffany, A Treatise on Government and Constitutional Law
Being an Inquiry into the Source and Limitations of Governmental Authority according to
the American Theory (1867).
|C. Chauncey Burr, Notes on the Constitution of the United States
|Timothy Farrar, Manual of the Constitution of the United States
|George W. Paschal, The Constitution of the United States Defined and
Carefully Annotated (1868).
|Joel Prentiss Bishop, Commentaries on the Criminal Law (3d ed., 1865)
|Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes (1873).
|John Pomeroy, An Introduction to the Constitutional Law of the
United States (1870).
|Oliver Wendell Holmes
, Jr., editor and author of additional
commentary, for James Kent, Kent's Commentaries on American Law (Holmes edition, 1873,
reprinted 1989) (1826, original Kent treatise)
|Herbert Broom &
Edward A. Hadley, editors and authors
of additional commentary, for William Blackstone, Commentaries on the Laws of England
|H. von Holst, The Constitutional Law of the United States of
America (1988) (Alfred Bishop Mason translator, 1886).
|John Innes Clark Hare, American Constitutional Law (1889).
|John Ordronaux, Constitutional Legislation in the United States:
Its Origin, and Application to the Relative Powers of Congress, and of State Legislatures
Freeman Miller, Lectures on the
Constitution of the United States (1980) (1893).
|Henry Campbell Black, Handbook on American Constitutional Law (1895).
|George Boutwell, The Constitution of the United States at the End of
the First Century (1987) (1895).
|James Schouler, Constitutional Studies: State and Federal (1971)
|William Draper Lewis, editor and author of additional commentary, for
William Blackstone, Commentaries on the Laws of England (1897).
Chadman, Constitutional Law, Federal
and State: Being a Clear and Complete Analysis of the Constitution, Together with a
Summary of the Leading Decisions and Basic Principles which Go to Make up the Fundamental
Law of the State and Nation (1899).
Randolph Tucker, The Constitution of
the United States (1981) (1899).