[Copyright (c) 1997 Maryland Law Review, Inc.; David B. Kopel, Christopher C. Little. Cite as: 56 Md. L. Rev. 438]

V. The Right Guaranteed by the Second Amendment: A
Critique of Domestic Disarmament's Legal Analysis

In support of the legality of confiscating all firearms, the Communitarian Network sets forth the "exclusively collective right" interpretation of the right to keep and bear arms. [381] Like "collective property" in a communist nation, the collective right to keep and bear arms supposedly belongs to the people as a whole, rather than to people as individuals, but in fact belongs exclusively to the government. [382] Yet, as antigun writer Ralph J. Rohner acknowledges, the argument that there is a community right to keep and bear arms, but not an individual one, raises the "metaphysical difficulty of how something can exist in the whole without existing in any of its parts." [383] If the right to keep and bear arms inheres in the universal (the people), then it must also inhere in the particulars (individual persons).

Although the collective right theory has no support from the United States Supreme Court, [384] and precious little from legal scholarship, it does receive some support in dicta in lower federal court opinions (often cases in which gun criminals raise frivolous Second *511 Amendment defenses). [385] After his retirement from the bench, the late Chief Justice Warren Burger also endorsed the collective right theory. [386] In addition, there is certainly no shortage of members of what Sanford Levinson calls the "elite bar," [387] who, having never read a law review article or legal case about the Second Amendment, confidently maintain to their less-educated fellow citizens that the Second Amendment does not protect an individual right to own guns. On this intellectual foundation, the Communitarian Network's supporters "join with those who read the Second Amendment" as a guarantee of an exclusively collective right, that is, "as a communitarian clause, calling for community militias, not individual gun slingers." [388]

This section analyzes in detail the Communitarian Network's case for the Second Amendment as an exclusively collective--nonexistent--right. Domestic Disarmament is one of the most recent presentations of the collective right thesis, and thus provides a useful vehicle for inquiry into the meaning of the Second Amendment. If, contrary to the thesis of Domestic Disarmament, the Second Amendment does guarantee an individual right, much of the remaining argument of that position paper is rendered irrelevant; the tradition of civil libertarianism in this country is one in which individual rights are protected even when they exact a toll on society or when the majority happens to be hostile to the exercise of those rights. [389]

On the other hand, if the Communitarian Network is right about the Second Amendment, there are several constitutional issues that could present obstacles to Domestic Disarmament's proposal for total gun confiscation. In particular, forty-three states have constitutional provisions protecting the right to keep and bear arms, which, although not a barrier to federal legislation, would prevent the regional implementation of gun confiscation proposed by Domestic Disarmament. *512 [390] Second, the Fifth Amendment to the United States *513 *514 Constitution [391] generally requires "just compensation" when the government *515 confiscates private property, although the destruction of contraband may in some cases fall outside the compensation requirement. [392] Finally, some courts, including the United States Supreme Court, have been unwilling to treat the congressional power to regulate "Commerce . . . among the several States" [393] as a carte blanche to regulate or ban the mere intrastate possession of a firearm or other object. [394]

The Second Amendment issue is important not just because most policy advocates would not wish to propose a law that would be declared unconstitutional. No matter how persuasive a reader might find the Second Amendment exposition that follows, there is no guarantee that the federal courts would strike down a gun confiscation law. If gun confiscation actually garnered enough support to pass both houses of Congress and to be signed into law by the president, it is far from certain that the Supreme Court--no matter how clear the original intent of the Constitution's Framers and relevant precedent--would interpose itself. For example, the Equal Protection Clause of the Fourteenth Amendment [395] was quite under-enforced by federal courts until the 1950s; [396] the First Amendment [397] was given little judicial protection until after World War I. [398]

Yet law is more than a prediction of what the courts may do. Nothing can change the history of the creation of the Second Amendment, and nothing can erase the Supreme Court decisions on the subject up to the present. America's gun owners, particularly those that are politically active, have not memorized every comma in Patrick *516 Henry's speeches, nor can they give the page cites for United States v. Miller. [399] Many gun owners, however, do know the general outlines of the legal history of the right to keep and bear arms in the United States. A harmonious communitarian society must be founded on popular acceptance of the legitimacy of the law. For the Supreme Court to uphold domestic disarmament would not, in the eyes of many millions of gun owners, delegitimize gun ownership; instead, such a decision would delegitimize the Supreme Court, the federal government, and the citizenry's obligation to obey the law. [400] Should the Supreme Court ever rule that ordinary citizens have no legal protection from gun confiscation, the decision would, quite literally, be considered by many millions of armed citizens to be a repudiation of the Constitution and the social contract, and to be a declaration of war.

A. The Origins of the Second Amendment

The right to keep and bear arms in America is rooted in both English common law and the philosophy of natural law that the Framers viewed as superior to the common law. Historian Robert Shalhope observes that the Framers drew upon state constitutions setting forth rights rooted in nature as well as in the traditional rights of Englishmen as sources for the content of a national bill of rights. [401] Shalhope writes:

[T]hese sources continually reiterated four beliefs relative to the issues eventually incorporated into the Second Amendment: the right of the individual to possess arms [for self-defense], the fear of a professional army, the reliance on militias controlled by the individual states, and the subordination of the military to civilian control. [402]

*517 The right to self-defense (and the corresponding right to arms) has long been considered a natural right in the political traditions of Western culture [403] and was affirmed to be one of the rights of Englishmen under the 1689 British Constitution. [404]

Not only is there a long-standing right to self-defense at common law, but the widespread belief in the duty of an individual arms-bearer's participation in the common defense dates back beyond the Middle Ages. [405] Prior to the Norman Conquest, citizens of England *518 were legally obligated to keep and bear privately owned arms to ensure their preparation in the event that they were called upon to defend their country. [406] Freemen in England served in the "fyrd," a people's militia whose duty it was to defend against invasion, to suppress insurrections, and to perform citizens' arrests. [407] Later, "assizes of arms" were required by English kings. [408] The Assize of Arms of Henry II, [409] issued in 1181, required the whole body of freemen to possess arms. [410] Subsequent assizes expanded the responsibilities of the populace in keeping and bearing their arms for defense against criminals and invaders. [411] This state of affairs rendered a standing army unnecessary for national defense. [412]

The right of resistance also became a component of the right to keep and bear arms in England. In the thirteenth century, the tyranny of King John led to the revolt of his subjects, culminating in the obtrusion of the Magna Carta upon him for his signature. [413] Although the Magna Carta was first won in the battle of Runnymeade, it repeatedly had to be defended with force, as did lesser-known reforms, such as the Provisions of Oxford (1258), which were also reluctantly signed by a king who was confronted with armed force. [414] The first of these rebellions, rebellions that eventually included two full-scale civil wars, began only a few months after the Magna Carta was signed. [415] In 1264 Simon de Montfort led an uprising, known as the Barons' War, against John's son, King Henry III. [416] The uprising involved *519 not only knights in armor but also commoners bringing their own weapons to battle. [417] After initial victory, the uprising was eventually defeated. [418] The losers nevertheless carried on resistance from sanctuaries in forests, fens, and castles. [419] The Magna Carta and other reforms, such as the Provisions of Westminster, were finally accepted as binding upon a monarchy which acknowledged that the king himself was subject to the rule of law. [420] Because the people of Wales and Scotland often engaged in armed resistance to the English military, they maintained substantially more autonomy than they would otherwise have enjoyed. [421]

Thomas Jefferson's dictum--"the tree of liberty must be refreshed from time to time with the blood of patriots & tyrants" [422] could be a rough summary of the violent history of medieval England. As Stuart Hays observes: "Thus the right of lawful revolution was born into the constitutional law of England. This is of major import because without the right to revolt there is less reason to preserve the right to bear arms." [423] Great Britain also saw numerous instances of guerrilla or revolutionary uprisings against invading foreign armies, including the guerrilla war of "Wiliken of the Weald" against French invaders in southern England, [424] and the revolt led by William Wallace of Scotland, which, in the long run, secured independence for Scotland against the claims of English monarchs. [425]

Incipient theories of political resistance were advanced by medieval theologians such as Manegold of Lautenbach. [426] The libertarianism of Manegold and others was further shaped during the Protestant *520 Reformation by both Lutherans and Calvinists, but especially by the latter. This new "liberation theology" was to undergo a process of refinement during the following centuries, culminating in the English Civil War, the political philosophy of John Locke (on which the Declaration of Independence was later to be largely based), the Glorious Revolution of 1688, and, finally, the American Revolution. [427] The provision regarding the right to keep and bear arms in the Declaration of Rights that issued from the Glorious Revolution is the immediate forebear of the Second Amendment to the United States Constitution. [428] It was the British government's attempt to seize arms that sparked violent resistance and the beginning of the American Revolution, not only at Lexington and Concord, [429] but also in Virginia. [430]

*521 Domestic Disarmament makes no mention of the numerous, extant political writings from eighteenth-century America that expound upon the right to keep and bear arms. These writings posit that bearing arms is an individual right based upon English common law and natural law, a right that is a logical corollary to the natural right of self-defense. [431] A necessary implication of the right of self-defense, in the view of the eighteenth-century American, was the right to resist tyranny with force of arms, a right also rooted in the common law of England. [432] The right to revolution lies at the heart of the Second Amendment's guarantee of the right to keep and bear arms.

This is clearly evident in the words of James Madison, the draftsman of the Second Amendment. In Federalist No. 46, Madison defines the militia as the totality of armed civilians. [433] In response to the Anti-Federalists' fear that the proposed power of Congress to raise a standing army could lead to federal tyranny, Madison responded that any misuse of the army "would be opposed [by] a militia amounting to near half a million citizens with arms in their hands" [434] (the total adult white male population at the time), and that such a democratic counterforce would be well able to meet the threat. In contrast to the Communitarian Network's wistful notions about adopting European gun control models for America, Madison wrote of "the advantage of being armed, which the Americans possess over the people of almost every other nation." [435] If the Europeans enjoyed this right, he added, "the throne of every tyranny in Europe would be speedily overturned, in spite of the legions which surround it." [436]

Madison's personal notes, prepared for a speech he later delivered before Congress, describe the Bill of Rights, stating that "they relate first to private rights." [437] Thus, the Second Amendment primarily protects a "private" right to arms, not a "public" or "collective" one. Madison's notes also contain a reference to the English Bill of Rights, which he had used in the process of drafting America's Bill of Rights. [438] Madison listed certain objections to the English Bill of *522 Rights, noting that they were too narrow, because they restricted "arms to Protestants." [439] The new Federal Bill of Rights would guarantee the right to keep and bear arms to all Americans, not just to a select group such as Protestants, or to select federal forces such as the National Guard and the army. [440]

The early American concept of a militia-of-the-whole was one whose arms are individually possessed and used to deter both crime and tyranny. [441] The writings of both Federalists and Anti-Federalists belie the Communitarian Network's position that the term "well-regulated militia" must necessarily refer to a "select militia" of uniformed government employees.

The works of early American political authors on the right to arms illuminate the connection in the text of the Second Amendment between the preservation of the well-regulated militia and the right of the people, as the aggregate of American citizens, to keep and bear arms. Furthermore, the Founders did not tie the right exclusively to the militia, for many of their writings take for granted the common law right to keep and bear arms for self-defense. [442] Corroborative evidence that they believed in the right to arms for self-defense is also found in records pertaining to floor debate of the Second Amendment, in which the Senate rejected an amendment to add the words "for the common defence" following "bear Arms." [443]

The above paragraphs are, of course, only a brief sketch of the extensive body of historical evidence about the original intent of the Second Amendment that has been published over the last two decades. A few facts related to that corpus of scholarly literature are relevant here. First, the corpus has by now grown quite large. Second, as Glenn Harlan Reynolds observes, the nearly unanimous "standard *523 model" [444] of the Second Amendment among scholars who have actually investigated the issue is that the Second Amendment was intended to guarantee an individual right to keep and bear arms. [445] *524 The more persuasive, serious scholarship arguing that the Second Amendment is not an individual right argues on the basis of changed circumstances, [446] rather than claiming that the Second Amendment was meant only to protect governments. [447]

One can find proponents of the type of gun policy advocated by the Communitarian Network, but these advocates were precisely the individuals against whom the Americans were revolting. For example, when British victory appeared in sight in 1777, Colonial Undersecretary William Knox authored a plan--"What Is Fit to Be Done in America?" [448] Knox suggested establishment of a state church, unlimited tax power, a governing aristocracy, a standing army, repeal of the militia laws, a ban on arms manufacture, a ban on arms imports without a license, and that "the Arms of all the People should be taken away." [449]

Domestic Disarmament does not, however, argue that the standard model of the Second Amendment is wrong. Domestic Disarmament simply *525 ignores it entirely, brushing it off with the observation that there are diverse opinions about what the Second Amendment means. [450] There are certainly diverse opinions about the scope of the Second Amendment right to keep and bear arms, but in the scholarly world at least, there is little diversity as to what the Second Amendment is fundamentally about.

The ratification period discourses and commentaries on the right to keep and bear arms (too numerous to cite here) stand in stark opposition to the exclusively collective right interpretation. Unfortunately, Domestic Disarmament fails to deal with the issue of the Framers' original intent. Instead, Domestic Disarmament is based solely on dubious interpretations of several United States Supreme Court cases in which, allegedly, the Court "has repeatedly ruled, for over a hundred years, that it does not prevent laws that bar guns." [451] A closer analysis of these cases yields a quite different conclusion.

B. The United States Supreme Court and the Right to Keep and
Bear Arms

The Second Amendment reads: "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." [452] Domestic Disarmament's legal analysis, written by law student Linda Abdel-Malek, begins with the assertion that the "Supreme Court has unequivocally stated that [the right-to-keep-and-bear-arms clause] is just a portion of the entire amendment, and should not be taken out of context." [453] Abdel-Malek confidently states that the High Court, "looking at the Second Amendment as a whole, has repeatedly ruled that it refers to the desire of the constitutional Framers to protect state militias from disarmament by the federal government, not to protect individual citizens against disarmament by the states." [454]

In support of this position, Abdel-Malek cites the four United States Supreme Court cases typically relied upon by advocates of gun prohibition: United States v. Cruikshank, [455] Presser v. Illinois, [456] Miller v. *526 Texas, [457] and United States v. Miller. [458] In addition, Domestic Disarmament references three recent actions of the High Court--Lewis v. United States, [459] Quilici v. Morton Grove, [460] and Farmer v. Higgins [461] --to buttress the assertion that "the Supreme Court has [recently] maintained its strong stance against interpreting the Second Amendment as a protection of an individual citizen's right to possess weapons." [462] Much of the remainder of this Article discusses the cases cited by Domestic Disarmament, as well as other Supreme Court cases that Domestic Disarmament fails to cite.

1. Dred Scott v. Sandford and Its Aftermath.--The infamous 1857 decision of Dred Scott v. Sandford [463] held that free blacks are not citizens. [464] If blacks were actually citizens of the United States, the Court warned, they would enjoy the right to "the full liberty of speech . . .; [and the rights] to hold public meetings upon political affairs, and to keep and carry arms wherever they went." [465]

In the years following the Civil War, the South engaged in a systematic program to deprive freedmen of their civil rights, including the right to keep and bear arms. [466] Senator Henry Wilson supported civil rights legislation aimed at curbing these injustices by voiding all laws that mandated inequality of rights based on race. [467] Senator Wilson explained: "In Mississippi, rebel State forces, men who were in the rebel armies, are traversing the State, visiting the freedmen, disarming them . . . ." [468] Several Congressmen argued that the scheme *527 to disarm blacks was contrary to the Second Amendment, with which the southern states should be forced to comply. [469]

It was in response to this version of "domestic disarmament" and other unconstitutional abuses that the Civil Rights Act of 1866 [470] was passed. [471] Later, Congress sought to bolster the provisions of that legislation through the Fourteenth Amendment. [472] The debates over that Amendment clearly reveal that its drafters wanted to ensure that the Second Amendment's guarantee of an individual right to keep and bear arms would apply to all United States citizens. During the debate, Senator Jacob Howard (R., Mich.) referenced "the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press; . . . [and] the right to keep and bear arms." [473] He added: "The great object of the first section of (the Fourteenth) amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees." [474]

This evidence of legislative intent directly contradicts the Communitarian Network's notion that the Second Amendment does not guarantee an individual right. These quotations illustrate that the Reconstruction Congress, which enacted the Civil Rights Act of 1866 and later the Fourteenth Amendment, meant to protect freedmen against deprivation of their Second Amendment right to keep and bear arms, in effect reversing the result of Dred Scott. Clearly, the High Court in Dred Scott also believed the Second Amendment to be a guarantee of an individual right to keep and bear arms, although not a right that *528 extended beyond the white population. [475] Unfortunately, Domestic Disarmament devotes the same consideration (none) to evidence of the original intent of the drafters of the Fourteenth Amendment as it pays to the original intent behind the Second Amendment.

2. United States v. Cruikshank.--Perhaps no Supreme Court case relating to the Second Amendment is as violently ripped out of context by Domestic Disarmament (or by other gun-prohibition advocates) as United States v. Cruikshank. [476] Cruikshank involved the prosecution of white terrorists for infringing the First and Second Amendment rights of blacks in Louisiana. [477] The Court held that the Fourteenth Amendment granted Congress no power to legislate against private actors who were interfering with the exercise of constitutional rights. [478] Consistent with the then-recently decided Slaughter-House Cases, [479] the Court stated in dicta that the Privileges and Immunities Clause of the Fourteenth Amendment [480] did not protect Americans against state or local infringement of most federal constitutional rights. [481] Cruikshank stands for the proposition that the Bill of Rights operates as a restraint upon the government only, and not upon private citizens.

If the Communitarian Network were merely citing Cruikshank for the proposition that the Second Amendment does not protect Americans against state (rather than federal) gun confiscation, it would have a respectable argument. The Communitarian Network, however, reads Cruikshank as proving far more--that there is no individual right at all in the Second Amendment. [482] Having criticized standard model Second Amendment theorists for taking the Amendment's phrase "the right of the people to keep and bear Arms" out of context, [483] Abdel-Malek's Domestic Disarmament performs a brazen decontextualization of its own. She writes that the Court in Cruikshank opined that *529 the right to keep and bear arms "'is not a right granted by the Constitution.'" [484] Therefore, Abdel-Malek asserts, it is not an individual right. [485]

The Supreme Court reached no such conclusion. Nothing in Cruikshank states that the right to arms is not protected against federal infringement; a review of that section of the opinion in which this quote is found makes this clear:

The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It "derives its source," to use the language of Chief Justice Marshall, in Gibbons v. Ogden, "from those laws whose authority is acknowledged by civilized man throughout the world." It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection. [486]

Similarly, the Court added:

The right . . . of "bearing arms for a lawful purpose" . . . is 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 . . . means no more than that it shall not be infringed by Congress . . . leaving the people to look for their protection against any violation by their fellow-citizens [not by Congress] to what is called . . . the "powers which relate to merely municipal legislation . . . ." [487]

When the Supreme Court in Cruikshank opined that the right to keep and bear arms "is not a right granted by the Constitution," [488] it was stating that the right to arms (like the right to assembly) existed prior to the Constitution. Hence, the right is not "granted" by the Constitution. The Constitution does not "grant" the right to keep and bear arms any more than it grants the right to peaceably assemble. This is so because under American political theory the Bill of Rights does not grant any rights; the Bill of Rights merely gives explicit recognition *530 to preexisting common law or natural law rights, many of which were previously enumerated in state constitutions. [489] Reading the actual language of Cruikshank leaves no room for Domestic Disarmament's assertion that there is no such thing as a right to arms guarantee in the Constitution.

3. Presser v. Illinois.--Domestic Disarmament cites Presser v. Illinois [490] as an instance in which the High Court reaffirmed Cruikshank. The issue in Presser, however, had nothing to do with whether the Second Amendment protected an individual right, but rather the constitutionality of a particular gun control measure--a ban on parading a privately formed, armed group down public streets. [491]

The Court had no difficulty upholding the law. First, it ruled that that type of legislation does not infringe upon the right of the people to keep and bear arms. [492] In addition, as Cruikshank made clear, the Second Amendment "is a limitation only upon the power of Congress and the National government, and not upon that of the States." [493] (Presser and Cruikshank, of course, far predate the Supreme Court's enforcement of provisions of the Bill of Rights against state governments by incorporation into the Fourteenth Amendment.)

Article I, Section 8 of the Constitution grants Congress certain powers over the militia. [494] In dicta, the Court in Presser noted that, *531 even if there were no Second Amendment, the states could not disarm their citizens, because such disarmament would deprive Congress of its Article I power to regulate militia training and, in certain circumstances, to call forth the militia: "[T]he States cannot, even laying the constitutional provision in question [the Second Amendment] out of view, prohibit the people from keeping and bearing arms . . . ." [495] The "militia," furthermore, is not a term that refers to a select fighting force, such as the National Guard, but instead to "all citizens capable of bearing arms." [496]

Once again, a case cited by the Communitarian Network in support of the proposition that the government may totally disarm individuals sets forth exactly the opposite proposition.

4. Miller v. Texas.--Domestic Disarmament cites Miller v. Texas [497] in support of the proposition that "a state law forbidding the carrying of dangerous weapons on the person . . . does not abridge the privileges or immunities of citizens of the United States," [498] and seizes upon this language in a further attempt to support the exclusively collective right interpretation.

Miller v. Texas arose from a criminal proceeding in which a resident of Texas had been convicted of and sentenced to death for murder. [499] Having lost in state district and appellate courts, the defendant appealed to the United States Supreme Court, "assigning as error" that his Second, Fourth, Fifth, and Fourteenth Amendment rights had been violated. [500]

Consistent with Cruikshank and Presser, the Court stated that "the restrictions of these amendments operate only upon the Federal power." [501] Yet the Court also appeared to view the incorporation issue as not entirely resolved, but also not appropriately before the Court in the instant case: "[I] f the Fourteenth Amendment limited the power of the States as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court." [502]

*532 As with Cruikshank and Presser, there is absolutely nothing in Miller v. Texas to support Domestic Disarmament's assertion that the Second Amendment is not an individual right.

5. Robertson v. Baldwin.--Three years after Miller v. Texas, the Supreme Court in Robertson v. Baldwin, [503] consistent with Dred Scott, Cruikshank, Presser, and Miller v. Texas, indicated in dicta that the Second Amendment guarantees an individual right, albeit not an unlimited right. Referring to the "fundamental law" as reflected in the Bill of Rights, the Court noted:

The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. [504]

The Court added that these exceptions constituted such things as legislation prohibiting libel, which the Court observed does not abridge the First Amendment right to freedom of speech, and the prohibition of carrying concealed weapons, which does not abridge the Second Amendment right to keep and bear arms. [505] The latter statement reveals that the Court believed the Second Amendment protects an individual right, for there were no statutes prohibiting state militias from carrying concealed weapons. Concealed carry proscriptions are aimed only at private citizens, not at militias. [506]

Domestic Disarmament does not discuss Robertson v. Baldwin, which, obviously, is fatal to the assertion that the Supreme Court has always treated the Second Amendment as less than an individual right.

6. United States v. Miller.--The 1939 case of United States v. Miller [507] is the most recent Supreme Court decision addressing in depth the Second Amendment. Domestic Disarmament devotes one paragraph *533 to the case, seizing, as it did with Cruikshank, on a single phrase from the opinion and turning that phrase into meaning its opposite. [508] United States v. Miller deserves more thorough analysis. This decision is "[t]he nearest the U.S. Supreme Court has come to a direct construction of the Second Amendment." [509]

In United States v. Miller, defendant bootleggers Jack Miller and Frank Layton were arrested for carrying an unregistered sawed-off shotgun, [510] a weapon controlled by the National Firearms Act of 1934 (NFA). [511] In the trial court, the defendants alleged, inter alia, that the NFA violated the Second Amendment. [512] The federal district court agreed and quashed the indictment. [513] The government petitioned the Supreme Court for review of the case, which was granted. [514]

One corollary of Article III's requirement that federal courts hear only "cases or controversies" is that litigants must have standing. [515] Thus, a defendant in a criminal case cannot object to evidence discovered as a result of an illegal search of someone else's property. If the Second Amendment guaranteed only a right of states to have their militias, the Supreme Court could have resolved the case in a single paragraph by observing that Layton and Miller were not the governments of Oklahoma or Arkansas and, therefore, had no standing to bring the case. Alternatively, if the Second Amendment guaranteed some kind of collective right of individuals to participate in state militias,

Miller would have rejected the defendant's Second Amendment argument for lack of standing. Since the accused (a bootlegger) did not claim to be in the military or the National Guard nor otherwise acting "in defense of the nation," the Court would have denied him standing to be heard challenging a law as supposedly violating the Second Amendment. . . . But Miller does not treat the issue as one of standing at all nor does it suggest that individuals cannot invoke the Amendment or that it is not a matter of fundamental *534 individual right. Rather, the Court dealt with the challenge on its merits--implicit in which is that the accused did have standing to invoke the Amendment. [516]

Until Miller v. United States, the Court had said virtually nothing about the history of the Second Amendment. Cruikshank did observe that the right to keep and bear arms predated the Constitution, [517] and Robertson had noted that all of the Bill of Rights, including the Second Amendment, implicitly included exceptions found in English common law (such as the permissibility of a prohibition on carrying concealed weapons). [518] In United States v. Miller, however, the Supreme Court offered several paragraphs of historical analysis of the Second Amendment, paragraphs that to this day are the last words the Court has spoken on the Amendment's history.

The Court observed: "The sentiment of the time [of the ratification of the Second Amendment] strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia--civilians primarily, soldiers on occasion." [519] The Court then commented at length upon American political writings of the eighteenth century, [520] which "show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense . . . [a]nd further, that . . . these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." [521] The Court included long guns and attachable bayonets in its description of personally owned weapons. [522]

Thus, United States v. Miller contains the following propositions about the well regulated militia:

1. It is composed of all male citizens, and is not a "select" body of uniformed federal or quasi-federal troops. (The current United States Code defines the "unorganized" militia in essentially the same terms.); [523]

*535 2. Militia firearms were generally not supplied by a state armory, but were personally owned firearms brought to militia service; [524]

3. These firearms were to be used for hostile purposes, rather than for recreation. [525]

Consistent with its definition of the militia, the Court in United States v. Miller then asked whether these self-armed civilians--that is, these two members of the unorganized militia--had been denied their Second Amendment right by a law making the unregistered possession of a sawed-off shotgun illegal. The Court answered:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. [526]

Not only was the militia's usefulness of sawed-off shotguns beyond the scope of common knowledge for which a court could take judicial notice, no one had offered any argument to the Court suggesting that such a shotgun had militia utility. The reason that no argument was offered was that neither Layton, Miller, nor their counsel appeared before the Court. The defendants had disappeared while free pending appeal, and, accordingly, their attorney was not allowed to make an appearance before the Court. [527] Had an attorney been allowed to argue (before the Court, or on remand, if Miller and Layton had ever been captured, which they were not), she could have proven that short-barreled shotguns had been used during World War I [528] and, thus, are "part of the ordinary military equipment." In the absence of this evidence, however, the Court concluded that the NFA's requirement to register the personal ownership of sawed-off shotguns was not shown to be facially unconstitutional. [529] The case was remanded for further factfinding concerning whether sawed-off shotguns were "part *536 of the ordinary military equipment." [530] Miller and Layton having vanished, the factfinding on remand never took place.

As Domestic Disarmament avers, the Supreme Court's historical analysis begins in United States v. Miller with the assertion that the Second Amendment focuses on the preservation of a well-regulated militia and that the Amendment "must be interpreted and applied with that end in view." [531] Domestic Disarmament's selective quotation of United States v. Miller, however, evades the fact that the opinion treats ordinary, self-armed citizens as possessing Second Amendment rights.

All of the Supreme Court cases discussed thus far are useful cases for gun control advocates. Dred Scott could bolster a ban on gun ownership by noncitizens. [532] Presser, Cruikshank, and Miller v. Texas all provide some support for the position that the Fourteenth Amendment does not forge the Second Amendment into a barrier to state gun controls. Robertson supports laws banning or regulating the carrying of concealed weapons. United States v. Miller endorses bans on whatever types of weapons can be determined not to be useful in a militia context, such as weapons only useful for sports. [533]

*537 What none of these cases comes close to supporting is the gun prohibition viewpoint that the Second Amendment does not protect the right of ordinary citizens to possess firearms. Unfortunately, the incessant repetition in Domestic Disarmament that the Supreme Court has "repeatedly held" that the Second Amendment does not guarantee an individual right achieves a certain degree of credibility to its audience--at least the large portion of the audience that never bothers to read the cases for which the proposition is cited.

United States v. Miller is the last substantive gun case to be reviewed by the Supreme Court. Domestic Disarmament asserts, however, that three recent actions by the Supreme Court have "maintained its strong stance against interpreting the Second Amendment as a protection of an individual citizen's right to possess weapons." [534] The three actions referred to are Lewis v. United States [535] and the Court's refusal to hear two substantive gun rights cases--Quilici v. Morton Grove [536] and Farmer v. Higgins. [537] Three more recent cases, in which the Supreme Court actually does mention the Second Amendment--United States v. Verdugo-Urquidez, [538] Moore v. City of East Cleveland, [539] and Planned Parenthood v. Casey [540] --are not mentioned. All six shall be discussed herein.

7. Lewis v. United States.--Here, at last, Domestic Disarmament actually does have a case that could be read as implying that the Second Amendment does not guarantee an individual right. In Lewis v. United *538 States, [541] the Court upheld a federal statute prohibiting gun possession by convicted felons. [542] The Court averred:

These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller (the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia"). [543]

There are two ways to interpret this statement. According to Halbrook: "Since felons were always excluded from the militia, the Court's wording of the holding in Miller clearly indicates its acceptance of a Second Amendment right of law-abiding individuals to possess any firearms with any militia uses." [544] Alternatively, it is possible that the Court's words could be construed to mean that, because no one has a right to have a gun, a law against felons owning guns does not infringe on constitutional rights. The Lewis case is, in a sense, the high-water mark for the anti-individual view of the Second Amendment, because one can read the Court's words as gun prohibitionists want them read, without doing violence to the Court's plain meaning or taking the words out of context. [545] Several other cases, however, two of which were decided after Lewis, make Domestic Disarmament's reading of Lewis appear untenable.

8. United States v. Verdugo-Urquidez.--Although United States v. Verdugo-Urquidez [546] was decided two years before Domestic Disarmament was published, Abdel-Malek omitted it from her analysis. Because the case is one in which the Court interpreted the meaning of constitutional language by referring to "the community," [547] the case's absence from a communitarian position paper is surprising.

*539 Although Verdugo-Urquidez does not address firearms directly, it is nonetheless squarely opposed to the exclusively collective-right theory. The issue before the Court in Verdugo-Urquidez was whether a warrantless search by American drug agents of a residence in Mexico, whose Mexican owner had been arrested on drug charges in the United States, was a violation of the Fourth Amendment's provision that the people be protected against unreasonable searches and seizures. [548] The Court found it necessary to define the phrase "the people" as it occurs in the Bill of Rights. [549] In doing so, the Court specifically enumerated those amendments in which the term "the people" is used, namely the First (with regard to right of assembly), Second, Fourth, Ninth, and Tenth Amendments. [550] In these five Amendments, "the people" is "a term of art" referring to "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." [551] Therefore, by implication, just as the other Amendments protect individual rights, the Second Amendment guarantees the individual right to keep and bear arms. [552]

9. The Modern Fourteenth Amendment Cases.--Having used nineteenth-century Fourteenth Amendment cases to build the rather *540 shaky foundation for the thesis that the Second Amendment does not protect individual rights, Domestic Disarmament surprisingly ignores three twentieth-century Fourteenth Amendment Supreme Court cases in which the Second Amendment is mentioned.

Starting in the mid-twentieth century, the Court began undoing the damage of the Slaughter-House Cases and Cruikshank, and began making the Bill of Rights enforceable against the states, holding that the Due Process Clause of the Fourteenth Amendment [553] forbade states to infringe upon fundamental liberties. [554] Exactly what kind of substantive liberties were within the scope of due process was not easy to settle. Starting in the 1960s and continuing to the present, the Court has wrestled with the question of whether various reproductive or family rights should be protected by the Fourteenth Amendment. In these cases, the Second Amendment has made a recurring guest appearance.

In the 1961 case Poe v. Ullman, [555] the Court considered whether married persons had a right to use contraceptives. The second Justice Harlan, in a dissent that gained ascendancy a few years later in Griswold v. Connecticut, [556] wrote that the Fourteenth Amendment did guarantee a right of privacy. [557] Developing a theory of exactly what the Fourteenth Amendment Due Process Clause did protect, Justice Harlan wrote that the Clause covered, but was not exclusively limited to, "the precise terms of the specific guarantees elsewhere provided in the Constitution," such as "the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures." [558]

It is impossible to read Justice Harlan's words as anything other than a recognition that the Second Amendment protects the right of individual Americans to possess firearms. Obviously, the Due Process Clause of the Fourteenth Amendment protects a right of individuals against government; it does not protect government, nor is it some kind of collective right. It is notable that Justice Harlan felt no need to defend or elaborate his position that the Second Amendment guaranteed an individual right. Despite Domestic Disarmament's assertion that "[o]ver the past 114 years the Supreme Court has ruled at least *541 three times that the Second Amendment has nothing to do with individual rights to bear arms," [559] it was unremarkable to Justice Harlan that the Second Amendment guaranteed the right of individual people to keep and bear arms.

Justice Harlan's opinion in Poe was a dissent, but like some other famous dissents, one that later became law. [560] In the 1976 case of Moore v. City of East Cleveland, [561] the Court heard a challenge to a zoning regulation that made it illegal for extended families to live together. [562] In a plurality opinion, the Court struck down the ordinance. [563] To explain the content of the Fourteenth Amendment's Due Process Clause, the plurality opinion quoted Justice Harlan's earlier words, including his words about the Second Amendment. [564]

The statement that the Second Amendment right to keep and bear arms is one of the "specifically enumerated" individual rights that are part of the "full scope of liberty" guaranteed by the Fourteenth Amendment against state infringement appeared yet again in the majority opinion in Planned Parenthood v. Casey. [565] Although Planned Parenthood appeared the same year as Domestic Disarmament, Poe and Moore long predated Domestic Disarmament.

Notwithstanding the claim of Domestic Disarmament, [566] the Court has never affirmed, much less repeatedly affirmed, that the Second Amendment is not an individual right. To the contrary, it is impossible to read the Court's (meager) writings about the Second Amendment as anything but a recognition that the Amendment guarantees individual Americans a right that complete federal gun prohibition would abridge.

*542

C. Lower Federal Courts

Two lower federal court cases are discussed in Domestic Disarmament. [567] The cases, as far as they go, are not inconsistent with the thesis of Domestic Disarmament; neither can they support the heavy burden that Domestic Disarmament demands of them. In both cases, the Supreme Court denied certiorari. [568] Domestic Disarmament insists that the certiorari denial is an "affirmation" of the Court's "century" of "repeatedly" holding that the Second Amendment is not an individual right. [569] As detailed above, the Court has done nothing of the kind, and as the Supreme Court has stated, certiorari denials are not decisions on the merits. [570]

Because the two circuit court cases cited by Domestic Disarmament are frequently mentioned in the gun control debate, they shall be discussed herein. In terms of whether federal prohibition of all firearms is constitutional, however, nothing in these lower court opinions can change the plain language of the Second Amendment, as recognized repeatedly by the Supreme Court, that individual Americans have a right to keep and bear arms.

1. Farmer v. Higgins.--Farmer v. Higgins [571] arose as a result of Congress's enactment of the Firearms Owners' Protection Act, [572] aimed at correcting abuses stemming from enforcement of the 1968 Gun Control Act. [573] A rider was tacked onto the bill prohibiting the possession or transfer of machine guns manufactured after May 19, 1986, unless such possession or transfer occurred "under the authority of the United States." [574] J.D. Farmer, a Georgia firearms manufacturer, interpreted this to mean that, as long as a gun manufacturer applied to the BATF for permission to transfer or possess a machine *543 gun pursuant to federal regulations, the BATF's permission would subsequently be granted "under the authority of the United States." [575]

The BATF believed, contrarily, that the 1986 law banned the possession or transfer of post-1986 machine guns to anyone but law enforcement officials, who by the nature of their jobs would be acting "under the authority of the United States." [576] (It was not clear how state or local law enforcement officials would be acting "under authority of the United States.") BATF consequently denied Farmer's application to manufacture a machine gun for his own possession. [577] Farmer brought suit in response.

The complicated legislative history of federal machine gun regulations viewed in its relationship to constitutional issues led District Court Judge J. Owen Forrester to conclude that, while Farmer's "proffered interpretation [of the 1986 statute] . . . is not without flaws of its own, it is clearly the proper choice between the two." [578] One reason for preferring Farmer's interpretation was that courts should construe statutes so as not to render them unconstitutional, and BATF's interpretation would be constitutionally defective. Judge Forrester concluded:

The most obvious constitutional challenge to [the BATF's interpretation] is presented by the second amendment. A particular weapon need only bear some reasonable relationship to the preservation or efficiency of a well-regulated militia to fall within the scope of the second amendment. As noted by plaintiff, "Machineguns manufactured and registered after May 19, 1986 are part of the ordinary military equipment; their use could contribute to the common defense; and lawful transfer and possession thereof have a reasonable relationship to the preservation or efficiency of a well-regulated militia." [579]

Here Forrester dutifully followed the United States v. Miller decision, holding that Farmer, as a member of the popular militia, had a right under the Second Amendment's guarantee to possess any military-type small arm. [580]

*544 The government appealed the decision, [581] and Farmer's attorney briefed both the statutory and the constitutional issues. Circuit judges Joseph Hatchett, Thomas Clark, and Lewis Morgan issued a brief opinion, addressing primarily the statutory question, finding for the BATF, and reversing Forrester's decision. [582]

As to the constitutional issue, the Eleventh Circuit judges had much less to say--one sentence, in fact: "We have considered Farmer's remaining arguments and find them to be without merit." [583] With that facile pronouncement, the court simply dodged the central issue.

The Farmer court's silence helped it avoid what might have been an insurmountable problem. United States v. Miller, [584] which the Eleventh Circuit had no authority to overrule, had devised its militia-weapon test in order to uphold a law regulating a particular type of weapon (a sawed-off shotgun), [585] but the rationale of United States v. Miller would appear to protect under the Second Amendment those guns with the greatest firepower, including especially machine guns. Curtly side-stepping United States v. Miller's precedent was a sensible decision for a court that wanted to uphold the machine gun ban.

Although gun prohibition groups sometimes cite Farmer as one of the supposed litany of circuit court of appeals cases holding that there is no individual right to bear arms, the three-judge panel's single sentence is being asked to carry a heavy burden. Equally consistent with the Eleventh Circuit's single sentence is the view that there is an individual right to arms, but the right is not infringed by a ban on machine guns.

The Supreme Court rarely grants certiorari in questions of federal statutory interpretation if there is not a circuit split and the Solicitor General is not urging review. Because only the Eleventh Circuit had interpreted the 1986 statute, the Supreme Court, unsurprisingly, denied certiorari.

2. Quilici v. Village of Morton Grove.--The highlight of the small case-law foundation for handgun prohibition is Quilici v. Village of Morton Grove, [586] a 1982 case from Illinois. Unfortunately, Domestic Disarmament misconstrues the case, making it into one in which the *545 Supreme Court "maintained its strong stance" in favor of gun prohibition. [587] Again, certiorari denials are not decisions on the merits. [588] Although Abdel-Malek claims that denial of certiorari occurs because the appealed decision "is consistent with Supreme Court precedent," [589] denial occurs due to many other reasons as well, as the Supreme Court grants only one out of every one hundred petitions for writs of certiorari. [590] If the certiorari denials in the 99 out of 100 cases were taken as proof that the lower court decision was found by the High Court to be "consistent with Supreme Court precedent," we would live in a confused legal world indeed.

In cases that the Supreme Court does not want to hear, but still wants to make a statement about the law, the Court issues a summary affirmance. [591] The summary affirmance makes the result (but not the rationale) of the lower court into national law. [592] Notably, the Supreme Court did not issue a summary affirmance in either the Farmer case or the Quilici case. In 1969, the Court did issue a summary affirmance in another gun case, Burton v. Sills, [593] in which the New Jersey Supreme Court upheld New Jersey's strict (but not prohibitory) gun licensing law. [594] Thus, to the extent anything can be inferred from the Supreme Court's treatment of lower court cases, there exists support for the constitutionality of state gun regulation, but no support for the proposition that there is no right at all to possess a firearm.

In Quilici, the Village of Morton Grove, Illinois, banned the sale and possession of handguns. [595] A lawsuit was filed based largely upon state and federal constitutional guarantees of the right to keep and bear arms. [596] The trial court judge ruled, inter alia, that Morton Grove's exercise of its police power permitted the ban on handguns, *546 as long as it did not ban all guns. [597] Before hearing the appeal, Chief Judge Bauer, who would author the Quilici opinion, had refused to disqualify himself after he stated on a television talk show that he thought the law was constitutional. [598] The case was appealed, and the trial court was upheld by two-to-one, Chief Judge William Bauer and Senior Circuit Judge Harlington Wood voting to affirm [599] and Circuit Judge John Coffey dissenting. [600]

Quilici pertains only to the issue of handguns, and not to the issue of the individual right to keep guns in general. It cannot be cited, therefore, in support of the Communitarian Network's assertion that "the Supreme Court has repeatedly ruled, for over a hundred years, that [the Second Amendment] does not prevent laws that bar guns." [601] Even the majority in Quilici agreed that a wholesale ban on firearms, such as the Communitarian Network desires, would be unconstitutional. [602]

Thus, Quilici does not support Domestic Disarmament's claim that there is no individual right to own a gun at all; nevertheless, it will be discussed in more detail because it is so commonly cited by gun prohibitionists.

Chief Judge Bauer and Senior Circuit Judge Wood were clearly unhappy with the appellants' arguments in Quilici. [603] In the discussion of the Second Amendment, for example, Bauer and Wood chided the appellants for "reluctantly conceding" that Presser ruled that the Second Amendment was only a restraint upon the federal government. [604] In spite of this concession, the appellants "nevertheless assert that Presser also held that the right to keep and bear arms is an attribute of national citizenship which is not subject to state restriction." [605] This assertion "is based on dicta out of context." [606] The appellants merely offered an argument, sniffed Bauer and Wood, that "borders on the frivolous and does not warrant any further consideration." [607]

*547 Domestic Disarmament defends the majority's charge that the appellants took certain utterances in Presser out of context. [608] The Court in Presser wrote that "the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms." [609] The appellants' attorneys quoted this statement in support of the proposition that a state may not enact gun bans. [610] Abdel-Malek retorts: "In its entirety, the phrase reads that the states cannot prohibit people from bearing arms, 'so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.'" [611] This, she claims, is a reference to the role of the standing army. [612] Adbel-Malek's claim is logically untenable; when citizens serve in the standing army, they are supplied with weapons by the federal government. No state law could possibly affect the federal government's supplying weapons to the federal army or navy, and the Presser Court would not have wasted a drop of ink on such a bizarre proposition. The Presser Court was not discussing the federal army power at all; rather, the Court was discussing the federal militia power, which appears in constitutional clauses separate from those involving the army. [613]

The full paragraph from Presser reads:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserve military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect. [614]

Clearly, the standing army is not in view here, but rather the "reserve" or "unorganized" militia, which is composed of "all citizens capable of *548 bearing arms." [615] The quotation above, in essence, says that, because the Constitution grants the federal government certain powers to use the militia, the states may not disarm the reserve force or unorganized militia, which is a self-armed force (as the Court in United States v. Miller would observe). State laws forbidding the parading of private organizations, however, do not have this effect--that is, the effect of disarming the civilian militia. [616] Abdel-Malek is correct in her assertion that to quote Presser's language about the common law right to keep and bear arms is to quote dicta, but it is dicta near the heart of the decision, and it is most certainly not taken out of either the immediate textual or the broader historical context. In fact, it is the majority in Quilici and its defenders, such as the communitarians, who have disregarded both. Therefore, it is not so much that the appellants' argument borders on the frivolous as it is that the majority opinion borders on judicial malfeasance.

After correctly noting that Presser is still good law and that incorporation of the Second Amendment is an issue yet to be decided by the Supreme Court, Judges Bauer and Wood, in their majority opinion in Quilici, took up United States v. Miller:

In an attempt to avoid the Miller holding that the right to keep and bear arms exists only as it relates to protecting the public security, appellants argue that "[t]he fact that the right to keep and bear arms is joined with language expressing one of its purposes in no way permits a construction which limits or confines the exercise of that right." They offer no explanation for how they arrived at this conclusion. [617]

In fact, United States v. Miller never stated "that the right to keep and bear arms exists only as it relates to protecting the public security." [618] As the Court in Miller v. United States did say, and as the Quilici court conspicuously avoided quoting, the militia's arms protected by the Second Amendment were to be "supplied by themselves." [619] The *549 Court in United States v. Miller clearly viewed defendants Miller and Layton as reserve militia members to whom the Second Amendment's protection applied. [620] The decision merely excepts sawed-off shotguns from "the ordinary military equipment" constitutionally possessable by American citizens. [621]

Because the logic of United States v. Miller is clear concerning the type of small arms the Second Amendment protects, Judges Bauer and Wood lastly addressed whether handguns are military weapons. [622] Their finding is expressed in an astounding footnote:

Appellants devote a portion of their briefs to historical analysis of the development of English common law and the debate surrounding the adoption of the second and fourteenth amendments. This analysis has no relevance on the resolution of the controversy before us. Accordingly, we decline to comment on it, other than to note that we do not consider individually owned handguns to be military weapons. [623]

Like Domestic Disarmament (which ignores all historical evidence and scholarship), the Quilici majority dismissed the original intent behind the Second and Fourteenth Amendments as irrelevant. [624]

In contrast to sawed-off shotguns (whose possible militia use was not common knowledge to the Court in United States v. Miller), it is well known that handguns are useful in combat, [625] and, hence, would seem to be, by the United States v. Miller test, plainly covered by the Second Amendment. The Quilici court slides around this fact by stating that "individually owned handguns" are not "military weapons." [626] Quilici's formulation violates United States v. Miller. Layton and Miller owned their own sawed-off shotguns. [627] The Court in United States v. Miller did not rule against Miller and Layton simply by pointing out that Miller and Layton's privately owned, sawed-off shotguns were not "military weapons" (in that the guns were not owned by the United States Army). [628] For the Quilici court to assert that the mere fact the *550 handguns were individually owned was proof that the guns were outside the protection of United States v. Miller [629] was directly contrary to it.

In a dissenting opinion in Quilici, Judge Coffey criticized the majority opinion for "impermissibly interfer[ing] with basic human freedoms" and for "cavalierly dismiss[ing] the argument that the right to possess commonly owned arms for self-defense and the protection of loved ones is a fundamental right protected by the Constitution." [630] After citing a number of Supreme Court decisions supporting the notion that the right to privacy and self-defense are interwoven fundamental rights, Judge Coffey wrote:

A fundamental part of our concept of ordered liberty is the right to protect one's home and family against dangerous intrusions . . . . Morton Grove, acting like the omniscient and paternalistic "Big Brother" in George Orwell's novel, 1984, cannot, in the name of public welfare, dictate to its residents that they may not possess a handgun in the privacy of their home. To so prohibit the possession of handguns . . . renders meaningless the Supreme Court's teaching that "a man's home is his castle." [631]

The Supreme Court refused to hear the case. [632] Again, there is no inference to be drawn from this fact in favor of the exclusively collective-right theory advanced by the Communitarian Network. It is certainly possible to agree with Sanford Levinson, however, that the repeated refusal of the High Court to hear substantive gun rights cases such as Quilici and Farmer is almost shameless. [633]

That the Supreme Court has avoided a direct Second Amendment case since 1939 suggests that the Court is not interested in investing the same kind of institutional energy in protecting the Second Amendment that it has invested in protecting other rights, such as freedom of speech or equal protection. For many of the gun controls that might come before the Court, we would not be surprised to see *551 the Rehnquist Court treat the Second Amendment the same way it treats the Fourth Amendment: to acknowledge the individual right and then to uphold almost any particular control or infringement the government would propose. [634] Complete prohibition and confiscation, as proposed by Domestic Disarmament, could not be upheld as moderate regulation. It could only be upheld by holding that the Second Amendment guarantees no individual right at all. That holding would be inconsistent with everything that the Supreme Court has said about the Second Amendment.

The notion advanced by the Communitarian Network that the Second Amendment protects "community militias" but not individual citizens [635] is an "either/or" fallacy. In guaranteeing the preservation of the militia, the Second Amendment thereby guarantees the individual right to keep and bear arms. It is both community militias and individuals, not either/or.

Conclusion

In conclusion, this Article answers the questions posed at its beginning by prodisarmament writer Ronald Goldfarb: [636]

"Is there an individual right to self-defense that cannot be abrogated?" [637] Common law, the original intent of the Framers, and case law indicate that there is a right to self-defense against both criminal and government predators, and as Blackstone notes, the logical corollary of that right is the individual right to keep and bear arms. [638] Contrary to the Communitarian Network, the United States Supreme Court has never denied this. Although courts often grant governments considerable leeway in enacting gun control, total gun prohibition appears to be plainly unconstitutional. [639]

*552 "How do we balance the necessary policing with the public's right of privacy and its constitutional protections against illegal searches and seizures?" "How would disarmament be accomplished?" In light of the certain resistance to the imposition of domestic disarmament, these are anybody's guess. Goldfarb perhaps senses the impossibility of the endeavors when he asks: "Would a real ban on guns fail as dismally as the attempt to ban alcohol?" [640] Indeed, a repeat of the alcohol prohibition disaster would be the best-case scenario. The worst case--almost a certainty if the government actually attempts to confiscate all guns--would be a civil war, in which at least some elements of the military and police would join the resistance.

"What would be done with the existing 200 million firearms?" [641] This question assumes that the government could successfully collect 200 million firearms. All empirical considerations show this to be a flight of fancy.

"What about hunters and other sportsmen?" [642] The legislative assaults upon recreational firearms advocated by the Communitarian Network will only bring hordes of heretofore uninvolved gun owners into an already large and irate resistance movement.

"What is the danger of creating a disarmed public?" [643] The first danger of successful gun prohibition is that it leaves the public at the mercy of violent criminals who, being criminals, will not disarm. Second, successfully disarming the American public would indeed, to answer Goldfarb's query, "make the law enforcement establishment too powerful." [644] This was, in fact, the fear of those who insisted upon enshrining the right to arms in both state and federal constitutions as a check and balance upon the power of government. More fundamental, further disconnecting citizens from responsibility for the safety of themselves and their communities will foster the learned helplessness, alienation, and moral degeneration that the Communitarian Network attempts to combat. [645]

If personal responsibility is to remain an important theme in communitarian thought, then communitarians should come to realize what most people realize: only personal beings capable of moral behavior *553 can be responsible for harm inflicted on others. Social responsibility, especially in America, is not engendered by legal constraints imposed upon individuals from the outside, but rather by self-regulation and virtue. The demonization of the gun must end if rational policies are to be formulated and implemented.

For these reasons, a policy of domestic disarmament would not serve communitarian interests. Conversely, policies encouraging responsible gun ownership in society would not only preserve the current crime-inhibiting effect, but would also contribute to the re-creation of a healthy militia-of-the-whole, which the Framers believed necessary for a sound republican order. [646]

That the American people should be encouraged to be armed and trained in order to counter violence seems radical and runs directly counter to the notion that more gun control equals less gun crime. The initial reaction to the proposition that an armed and well-trained America reacquainted with republicanism will be a kinder and gentler nation may be incredulity. Such a reaction is, however, merely a gauge of how far we have departed from our roots.

Etzioni and the Communitarian Network recognize (rightly so) the worthlessness of the vanilla-pale agenda of the gun control lobbies. Domestic Disarmament performs a tremendous service to the debate on gun control because it forces one to think strategically--to look beyond the raging, but often trivial, debates over the vanilla-pale gun control measure-of-the-month. Once vanilla-pale measures are abandoned, there remain three options. First, there is the Communitarian Network's gun confiscation proposal. Second, there is the option of simply getting the government out of the gun policy business. This second choice has been the status quo in America for most of its history. This policy at least has the advantage of avoiding the disastrous consequences of coercive domestic disarmament.

There is a third, better option, however, and that is for the government--particularly local governments--to take an active role in encouraging firearms responsibility. If Americans are to remain free--and to live as securely as freedom allows--then it must be recognized that guns play an important and necessary role in American society, and that Americans have inherited the right to arm themselves against those foreign or domestic enemies who would deprive them of life and liberty.

There is much in the Communitarian Network's agenda that is meritorious from the standpoint of neorepublicanism. Policies do *554 need to be formulated that help heal families and reform government schools. To the extent that communitarianism is serious about the need for a restored sense of community, it will commit itself to the decentralization necessary to achieve it. Strong rights do presume strong responsibilities in republican ideology, as well as in communitarian ideology.

Unfortunately, the kind of responsibility that the Communitarian Network and its followers like President Clinton advocate (in spite of claims to the contrary) seems to be a government-enforced, authoritarian version, which of course does not advance the cause of civic responsibility at all. Individual rights need not be traded for communal security. Indeed, according to republican theory, "the common good was not in opposition to individual freedoms. Republicans typically believed that part of the common good was individual liberty for all." [647]

Although gun ownership does currently exact a significant toll on society, it by no means follows that the right to arms should be effaced in the name of collective security. The costs of that solution are not only significant, but communally disastrous. Domestic disarmament is not the answer. Rather, the answer to gun-related violence in America is to be found in the spiritual and civic renewal of its citizenry and in the citizenry's rediscovery of its republican heritage as a responsible, arms-bearing people.

[381] Domestic Disarmament, supra note 1, at 6 ("[T]he notion ... that there is a right to bear arms by private individuals is not to be found in the Constitution.").

[382] Id. at 29-35.

[383] Ralph J. Rohner, The Right to Bear Arms: A Phenomenon of Constitutional History, 16 Cath. U. L. Rev. 53, 55 n.10 (1966).

[384] See infra notes 451-635 and accompanying text.

[385] See infra notes 567-635 and accompanying text.

[386] Warren E. Burger, The Right to Bear Arms, Parade, Jan. 14, 1990, at 4.

[387] Levinson, supra note 147, at 639 n.13. Levinson does not use this term in a pejorative sense, but merely as a description of the eminent jurists and legal scholars who mistakenly believe that the collective-right view is the established doctrine. See id.

[388] Platform, supra note 5, at 21.

[389] The very point of a written constitution is that it remains law until amended. With reference to the threat of what some have called the "tyranny of the majority," James Madison warned:

Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents ....

5 The Writings of James Madison 272 (G. Hunt ed., 1904).

[390] Alabama: "That every citizen has a right to bear arms in defense of himself and the state." Ala. Const. art. I, § 26.

Alaska: "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." Alaska Const. art. I, § 19.

Arizona: "The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men." Ariz. Const. art. 2, § 26.

Arkansas: "The citizens of this State shall have the right to keep and bear arms for their common defense." Ark. Const. art. 2, § 5.

Colorado: "The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons." Colo. Const. art. 2, § 13.

Connecticut: "Every citizen has a right to bear arms in defense of himself and the state." Conn. Const. art. I, § 15.

Delaware: "A person has the right to keep and bear arms for the defense of self, family, home and state, and for hunting and recreational use." Del. Const. art. I, § 20.

Florida: "The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law." Fla. Const. art. I, § 8.

Georgia: "The right of the people to keep and bear arms, shall not be infringed, but the General Assembly shall have the power to prescribe the manner in which arms may be borne." Ga. Const. art. I, § 1, para. V.

Hawaii: "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." Haw. Const. art. 1, § 15.

Idaho: "The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony." Idaho Const. art. I, § 11.

Illinois: "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed." Ill. Const. art. 1, § 22.

Indiana: "The people shall have a right to bear arms, for the defense of themselves and the State." Ind. Const. art. 1, § 32.

Kansas: "The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power." Kan. Const. Bill of Rights, § 4.

Kentucky: "All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: ... Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons." Ky. Const. § 1, para. 7.

Louisiana: "The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person." La. Const. art. I, § 11.

Maine: "Every citizen has a right to keep and bear arms for the common defense; and this right shall never be questioned." Me. Const. art. I, § 16.

Massachusetts: "The people have a right to keep and bear arms for the common defence. And as, in times of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it." Mass. Const. Pt. I, art. XVII.

Michigan: "Every person has a right to keep and bear arms for the defense of himself and the state." Mich. Const. art. I, § 6.

Mississippi: "The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power where thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons." Miss. Const. art. 3, § 12.

Missouri: "That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed Weapons." Mo. Const. art. 1, § 23.

Montana: "The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons." Mont. Const. art. II, § 12.

Nebraska: "All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty and the pursuit of happiness and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied by the state or any subdivision thereof. To secure these rights, and the protection of property, governments are instituted among people, deriving their just powers from the consent of the governed." Neb. Const. art. I, § 1.

Nevada: "Every citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes." Nev. Const. art. 1, § 11, cl. 1.

New Hampshire: "All persons have the right to keep and bear arms in defense of themselves, their families, their property, and the State." N.H. Const. pt. I, art. 2-a.

New Mexico: "No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms." N.M. Const. art. II, § 6.

North Carolina: "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; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice." N.C. Const. art. I, § 30.

North Dakota: "All individuals are by nature equally free and independent and have certain inalienable rights, among which are those enjoying and defending life and liberty; acquiring possessing and protecting property and reputation; pursuing and obtaining safety and happiness; and to keep and bear arms for the defense of their person, family, property, and state, and for lawful hunting, recreational, and other lawful purposes, which shall not be infringed." N.D. Const. art. I, § 1.

Ohio: "The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power." Ohio Const. art. I, § 4.

Oklahoma: "The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons." Okla. Const. art. II, § 26.

Oregon: "The people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power." Or. Const. art. I, § 27.

Pennsylvania: "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned." Pa. Const. art. I, § 21.

Rhode Island: "The right of the people to keep and bear arms shall not be infringed." R.I. Const. art. 1, § 22.

South Carolina: "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. As, in times of peace, armies are dangerous to liberty, they shall not be maintained without the consent of the General Assembly. The military power of the State shall always be held in subordination to the civil authority and be governed by it. No soldier shall in time of peace be quartered in any house without the consent of the owner nor in time of war but in the manner prescribed by law." S.C. Const. art. I, § 20.

South Dakota: "The right of the citizens to bear arms in defense of themselves and the state shall not be denied." S.D. Const. art. VI, § 24.

Tennessee: "That the citizens of this State have a right to keep and bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime." Tenn. Const. art. I, § 26.

Texas: "Every citizen shall have the right to keep and bear arms in the lawful defence of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime." Tex. Const. art. I, § 23.

Utah: "The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes, shall not be infringed; but nothing here shall prevent the legislature from defining the lawful use of arms." Utah Const. art. I, § 6.

Vermont: "That the people have a right to bear arms for the defence of themselves and the State--and as standing armies in 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." Vt. Const. ch. I, art. 16.

Virginia: "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, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of 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." Va. Const. art. I, § 13.

Washington: "The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of Men." Wash. Const. art. I, § 24.

West Virginia: "A person has the right to keep and bear arms in defense of self, family, home and state, and for lawful hunting and recreational use." W.Va. Const. art. III, § 22.

Wyoming: "The right of citizens to bear arms in defense of themselves and of the state shall not be denied." Wyo. Const. art. 1, § 24.

[391] U.S. Const. amend. V. The Fifth Amendment provides, in pertinent part: "[P]rivate property [shall not] be taken for public use, without just compensation." Id.

[392] See Bennis v. Michigan, 116 S. Ct. 994, 996-1001 (1996).

[393] The Commerce Clause provides that Congress shall have the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8.

[394] See United States v. Lopez, 115 S. Ct. 1624, 1634 (1995) (holding that the Gun-Free School Zones Act exceeded congressional power under the Commerce Clause).

[395] The Equal Protection Clause of the Fourteenth Amendment provides: "No State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1.

[396] See Julius L. Chambers, Thurgood Marshall's Legacy, 44 Stan. L. Rev. 1249, 1252 (1992) (describing the NAACP's litigation strategy to use "the previously unenforced Reconstruction Amendments to the Constitution" to advance the rights of African Americans).

[397] The First Amendment provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. amend. I.

[398] See Dennis v. United States, 341 U.S. 494, 503 (1951) (stating that the Court did little to protect free speech prior to Schenck v. United States, 249 U.S. 47 (1919)); see also David Kairys, Freedom of Speech, in The Politics of Law 237 (David Kairys ed., 1990) ("[S]hortly [after World War I] speech was legally protected by the Supreme Court.").

[399] 307 U.S. 174 (1939). For a discussion of United States v. Miller, see infra notes 507-540 and accompanying text.

[400] In this connection, Randy Barnett warns:

When courts ... distort the Constitution to rationalize the ultra vires actions of government, and when academics and political activists aid and abet them in this activity by devising ingenious rationalizations for ignoring the Constitution's words, they are playing a most dangerous game. For they are putting at risk the legitimacy of the lawmaking process and risking the permanent disaffection of significant segments of the people .... [T]hen they must rely solely on intimidation and punishment to obtain compliance with the law.

Randy E. Barnett, Foreword: Guns, Militias, and Oklahoma City, 62 Tenn. L. Rev. 443, 458 (1995).

[401] See Robert E. Shalhope, The Ideological Origins of the Second Amendment, 69 J. Am. Hist. 599, 608 (1982).

[402] Id. Among these state right-to-arms provisions is that found in the Pennsylvania Declaration of Rights of the Constitution of 1776, which affirms:

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.

5 Francis Newton Thorpe, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now Heretofore Forming the United States of America 3083 (1909) (reprinting the Pennsylvania Constitution of 1776).

Language affirming the right of the people to keep and bear arms "in defense of themselves and the state," or similar language, is found in most state constitutions today. See supra note 390. Under American political theory, these constitutional provisions do not create the right to keep and bear arms; they only serve to guarantee them explicitly, as rights antecedent to the Constitution that are rooted in nature, common law, or both.

[403] That one may defend oneself with deadly force seems to be taken for granted by ancient cultures. Cicero, one of the Roman orators held in high esteem by America's Founders, wrote:

And indeed, gentlemen, there exists a law, not written down anywhere but inborn in our hearts; a law which comes to us not by training or custom or reading but by derivation and absorption and adoption from nature itself; a law which has come to us not from theory but from practice, not by instruction but by natural intuition. I refer to the law which lays it down that, if our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselves is morally right. When weapons reduce them to silence, the laws no longer expect one to await their pronouncements. For people who decide to wait for these will have to wait for justice too--and meanwhile they must suffer injustice first. Indeed, even the wisdom of the law itself, by a sort of tacit implication, permits self-defense, because it does not actually forbid men to kill; what it does, instead, is to forbid the bearing of a weapon with the intention to kill.

Cicero, In Defense of Titus Annius Milo, reprinted in Selected Political Speeches 222 (M. Grant trans., 1969), cited in Richard E. Gardiner, To Preserve Liberty: A Look at the Right to Keep and Bear Arms, 10 N. Ky. L. Rev. 63, 66-67 (1982).

[404] See Halbrook, supra note 148, at 38.

[405] In an effort to end the practice of relying on foreign mercenaries, the Byzantine Emperor Maurice handed down the following directive circa 579 A.D.: "We wish that every young Roman [subject of Byzantium] of free condition should learn the use of the bow, and be constantly provided with that weapon and with two javelins." Strategikon, reprinted in I The Art of War in the Middle Ages 178-79 (C. Oman trans., 1924), cited in Deno John Geanakoplos, Byzantium: Church, Society, and Civilization Seen Through Contemporary Eyes 98 (1984).

In the ninth century, Emperor Leo VI urged, in essence, the creation of a popular militia skilled in guerrilla warfare:

We therefore wish that those who dwell in castle, countryside, or town, in short, every one of our subjects, should have a bow of his own. Or if this be impossible, let every household keep a bow and forty arrows, and let practice be made with them in shooting both in the open and in broken ground and in defiles and woods. For if there come a sudden incursion of enemies into the bowels of the land, men using archery from rocky ground or in defiles or in forest paths can do the invader much harm; for the enemy dislikes having to keep sending out detachments to drive them off, and will dread to scatter far abroad after plunder, so that much territory can thus be kept unharmed, since the enemy will not desire to be engaging in a perpetual archery skirmish.

Tactica, reprinted in I The Art of War in the Middle Ages 179 (C. Oman trans., 1924), cited in Deno John Geanakoplos, Byzantium: Church, Society, and Civilization Seen Through Contemporary Eyes 98-99 (1984).

[406] See Halbrook, supra note 148, at 37-54.

[407] See id. at 38.

[408] See id.

[409] Assize of Arms, 27 Hen. 2, art. 3 (1181), reprinted in Sources of English Constitutional History 85 (Carl Stephenson & Frederick George Marcham eds. & trans., 1937).

[410] Id.

[411] See Gardiner, supra note 403, at 66.

[412] See id. at 67.

[413] See Thomas B. Costain, The Conquering Family 253-61 (1962).

[414] See Thomas B. Costain, The Magnificent Century 197-203 (1962).

[415] See id. at 217-53.

[416] See id.

[417] See id.

[418] See id. at 271-72.

[419] See id. at 217-53.

[420] See id.

[421] See id. at 53-58.

[422] See supra note 150.

[423] Stuart R. Hays, The Right to Bear Arms: A Study in Judicial Misinterpretation, 2 Wm. & Mary L. Rev. 381, 385 (1960).

[424] See Thomas B. Costain, The Three Edwards 61 (1962).

[425] See Costain, supra note 414, at 59-71, 78-84. The revolt of the Scottish hero, William Wallace, against King Edward I has recently been brought to American consciousness in the movie Braveheart. Braveheart (Paramount 1995). For discussion of the life of William Wallace, see Costain, supra note 414, at 59-71, 78-84.

[426] Manegold is one of a number of medieval "libertarians" who wrote extensively on the right to resist a despotic ruler. In language that prefigures the Declaration of Independence, he argued that:

[I]f the king ceases to govern the kingdom, and begins to act as a tyrant, to destroy justice, to overthrow peace, and to break his faith, the man who has taken the oath is free from it, and the people are entitled to depose the king and to set up another, inasmuch as he has broken the principle upon which their mutual obligation depended.

IV A.J. Carlyle, Medieval Political Theory in the West 164 (1950) (translating and paraphrasing Manegold's Latin text in Ad Gebehardum).

[427] It has been noted by several church scholars that American resistance theory was directly influenced by Protestant resistance theories, and that the fiery Scottish reformer John Knox "was a key link in the development of the political ideology that culminated in the American Revolution." Richard Greaves, Theology and Revolution in the Scottish Reformation: Studies in the Thought of John Knox 126-56 (1980). The Protestant contribution to American political theory actually began with Martin Luther and John Calvin, and can be traced "from John Calvin to Phillipe de Duplessis-Mornay, from Phillipe de Duplessis-Mornay to John Knox, from John Knox to John Milton, from John Milton to John Locke, and from John Locke to Alexander Hamilton." R.H. Murray, The Political Consequences of the Reformation 105 (1960).

[428] See Joyce Lee Malcolm, The Right of People to Keep and Bear Arms: The Common Law Tradition, 10 Hastings Const. L.Q. 285, 313-14 (1983).

[429] See Stephen P. Halbrook, Encroachments of the Crown on the Liberty of the Subject: Pre-Revolutionary Origins of the Second Amendment, 15 U. Dayton L. Rev. 91, 112 n.107 (1989); Essex Gazette, supra note 143.

[430] After the Americans routed the Redcoats at Concord, William Pitt urged the House of Lords to attempt reconciliation with the Americans, instead of attempting to subjugate them by force, and warned that the armed American people were a formidable opponent: "My Lords, there are three millions of whigs. Three millions of whigs, my Lords, with arms in their hands, are a very formitable body. 'twas the whigs my Lords, that set his Majesty's royal ancestors upon the throne of England." 1 William Gordon, The History of the Rise, Progress and Establishment of the Independence of the United States 443 (1788, reprint 1964), quoted in David T. Hardy, Origins and Development of the Second Amendment 60 (1986). Later, during the war, Pitt told the House of Lords: "If I were an American, as I am an Englishman, while a foreign troop was landed in my country, I would never lay down my arms--never--never--NEVER! You cannot conquer America." William Pitt, Earl of Chatham, Speech in the House of Lords (Nov. 18, 1777), quoted in Kopel, supra note 13, at 352 n.73.

Shortly before the outbreak of war, one of Britain's leading political philosophers blamed the royal governors' oppression of the American colonists upon the fact that the governors were emboldened by the presence of a standing army. See 2 James Burgh, Political Disquisitions 473, 476 (1775), quoted in Hardy, supra, at 49. Burgh's book was enormously influential in America. See Bernard Bailyn, The Ideological Origins of the American Revolution 41 (1967).

[431] See Kates, supra note 228, at 89-94.

[432] See id. at 101-02 ("In America from the immediate pre-Revolutionary period through the debates over the Constitution, this equation of personal self-protection with resistance to tyranny ... recurs again and again.").

[433] The Federalist No. 46, at 90 (James Madison) (Neill H. Alford, Jr. et al. eds., 1983).

[434] Id.

[435] Id.

[436] Id. at 91.

[437] James Madison, J.M.'s Notes for Speaking for Amendmts in Congress 1789, reprinted in Hardy, supra note 430, at 73.

[438] See id.

[439] Id.

[440] Perhaps the oddest reinterpretation of the original intent of the Second Amendment is Garry Wills's theory that the Second Amendment, rather than guaranteeing a right of individuals, or a right of state governments, actually means nothing at all. See Garry Wills, The New Revolutionaries, N.Y. Rev. Books, Aug. 10, 1995, at 50. The Second Amendment has no content whatsoever, Wills argues, and was a conscious fraud perpetrated on the American public by James Madison, who used clever draftsmanship to render the Amendment meaningless. See id. Further, according to Wills, Madison's secret intention about the Second Amendment (never before discerned by any scholar other than Wills) should control over the intent of the state legislatures that ratified the Amendment, naively thinking that they were ratifying the right of the American people to keep and bear arms. See id.

[441] See supra note 260 and accompanying text.

[442] See Halbrook, supra note 148, at 51, 64-66, 81; Kates, supra note 228, at 87.

[443] United States Senate, Proceedings on Amendments Proposed by the House (excerpt), Sept. 9, 1789, reprinted in The Origin of the Second Amendment, supra note 148, at 712.

[444] Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 463 (1995).

[445] See, e.g., Senate Subcomm. on the Constitution of the Comm. on the Judiciary, 97th Cong., 2d Sess., The Right to Keep and Bear Arms (1982); E. Foner & J. Garrity, The Reader's Companion to American History 477-78 (1991) (entry on "Guns and Gun Control"); Stephen P. Halbrook, A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees 48 (1989); Leonard W. Levy, Original Intent and the Framers' Constitution 341 (1988); Malcolm, supra note 161, at 164; The Oxford Companion to the United States Supreme Court 763-64 (Kermit L. Hall et al. eds., 1992) (entry on the Second Amendment); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193, 1284 (1992); Amar, supra note 232, at 1164; Charles L. Cantrell, The Right to Bear Arms, 53 Wis. B. Bull. 21 (1980); David Caplan, The Right of the Individual to Bear Arms, 1982 Det. L. Rev. 789 (1982); Cottrol & Diamond, supra note 148, at 314-17; Robert J. Cottrol & Raymond T. Diamond, Public Safety and the Right to Bear Arms, in The Bill of Rights in Modern America After 200 Years (David J. Bodenhamer & James E. Ely, Jr. eds., 1993); Robert Dowlut, The Current Relevancy of Keeping and Bearing Arms, 15 U. Balt. L.F. 32 (1984); Robert Dowlut, The Right to Arms: Does the Constitution or the Predilection of Judges Reign?, 36 Okla. L. Rev. 65 (1983); Richard Gardiner, To Preserve Liberty: A Look at the Right to Keep and Bear Arms, 10 N. Ky. L. Rev. 63 (1982); Halbrook, supra note 429; Stephen P. Halbrook, The Right of the People or the Power of the State: Bearing Arms, Arming Militias and the Second Amendment, 26 Val. U. L. Rev. 131 (1991); David T. Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 Harv. J.L. & Pub. Pol'y 559 (1986); David T. Hardy, The Second Amendment and the Historiography of the Bill of Rights, 4 J.L. & Pol'y 1 (1987); Kates, supra note 323, at 204; Don B. Kates, Jr., Second Amendment, in 4 Encyclopedia of the American Constitution 1639-40 (Karst & Levi eds., 1986); Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 Law & Contemp. Probs. 143 (1986); Kates, supra note 228, at 87; Stephanie A. Levin, Grassroots Voices: Local Action and National Military Policy, 40 Buff. L. Rev. 321, 346-47 (1992); Levinson, supra note 147, at 637; Nelson Lund, The Second Amendment, Political Liberty and the Right to Self-Preservation, 39 Ala. L. Rev. 103 (1987); Joyce Lee Malcolm, The Right of the People to Keep and Bear Arms: The Common Law Tradition, 10 Hastings Const. L.Q. 285 (1983); Marina, supra note 157, at 417; James Gray Pope, Republican Moments: The Role of Direct Popular Power in the American Constitutional Order, 139 U. Pa. L. Rev. 287, 328 (1990); Reynolds, supra note 289, at 670-73; Elaine Scarry, War and the Social Contract: Nuclear Policy, Distribution, and the Right to Bear Arms, 139 U. Pa. L. Rev. 1257 (1991); Robert E. Shalhope, The Armed Citizen in the Early Republic, 49 Law & Contemp. Probs., Winter 1986, at 125; Shalhope, supra note 401, at 599; William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236 (1994); David Vandercoy, The History of the Second Amendment, 28 Val. U. L. Rev. 2007 (1994); Robert J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary Right, 104 Yale L.J. 995 (1995) (reviewing Malcolm, supra note 161); F. Smith Fussner, Book Review, 3 Const. Commentary 582 (1986) (reviewing Halbrook, supra note 148); Joyce Lee Malcolm, Book Review, 54 Geo. Wash. U. L. Rev. 582 (1986) (reviewing Halbrook, supra note 148); cf. Nicholas J. Johnson, Beyond the Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment, 24 Rutgers L.J. 1 (1992); John Choon Yoo, Our Declaratory Ninth Amendment, 42 Emory L.J. 967 (1993). But see, e.g., Cress, supra note 199; Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5 (1989); Samuel Fields, Guns, Crime and the Negligent Gun Owner, 10 N. Ky. L. Rev. 141 (1982); Henigan, supra note 151, at 107; Warren Spannaus, State Firearms Regulation and the Second Amendment, 6 Hamline L. Rev. 383 (1983).

[446] See Donald L. Beschle, Reconsidering the Second Amendment: Constitutional Protection for a Right of Security, 9 Hamline L. Rev. 69, 103 (1986); Williams, supra note 6, at 551-615.

[447] See Halbrook, supra note 148, at 83. Halbrook observes:

If anyone entertained this [government-only] notion 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.

Id. One need only read the editorials, letters, speeches, and other documents that survive from the revolutionary era and the early republic to see how deeply the creators of the United States and of the Second Amendment viewed arms as a positive good, and an armed people as a sign of civic virtue. One excellent place to begin such an exploration is The Origin of the Second Amendment, supra note 148, a collection of all known source documents relating to the right to arms, from the opening of the Constitutional Convention to the ratification of the Second Amendment.

[448] See Halbrook, supra note 429, at 118-19.

[449] 1 Sources of American Independence 176 (1978); see Halbrook, supra note 429, at 118-19. It is not unfair to note that the Communitarian agenda is not entirely inconsistent with the nongun portion of Knox's agenda. It is the "paranoid" gun groups that Etzioni mocks which have been among the most concerned about the use of the standing army in domestic law enforcement (such as the "drug war"), while the Communitarian Network has never written a word of objection to such a gross violation of the standards of civil society. See, e.g., Gun Owners of America, Dole Still Spinning the News--Callers Bring out More Contradictions, June 19, 1995 (quoting Sen. Feingold's opposition to the military's assuming internal law enforcement responsibilities); The NRA Institute for Legislative Action, The Right and the Left Have Met in the Middle, NRA Bullet Points, Oct. 30, 1995 (noting that a coalition, including the NRA, ACLU, and other civil rights organizations recommended to Congress that the military never be misused in a domestic law enforcement role). Moreover, the Communitarian Network is not any ally of the tax limitation movement. Although the Communitarian Network certainly is not an advocate of a British-style hereditary aristocracy, much of the movement's thrust does involve a preference for imposing order by a political and intellectual elite, and a snide contempt for the political beliefs of ordinary Americans. See supra notes 37-38 and accompanying text.

[450] Domestic Disarmament, supra note 1, at 10.

[451] See Platform, supra note 5, at 21.

[452] U.S. Const. amend. II.

[453] Domestic Disarmament, supra note 1, at 29.

[454] Id.

[455] 92 U.S. 542 (1875).

[456] 116 U.S. 252 (1886). Abdel-Malek consistently mislabels the case "Pressner" v. Illinois. See Domestic Disarmament, supra note 1, at 30, 32, 34, 38.

[457] 153 U.S. 535 (1894).

[458] 307 U.S. 174 (1939).

[459] 445 U.S. 55 (1980).

[460] 464 U.S. 863 (1983), denying cert. to 695 F.2d 261 (7th Cir. 1982), aff'g 531 F. Supp. 1169 (N.D. Ill. 1981).

[461] 498 U.S. 1047 (1991), denying cert. to 907 F.2d 1041 (11th Cir. 1990).

[462] Domestic Disarmament, supra note 1, at 32.

[463] 60 U.S. (19 How.) 393 (1856).

[464] Id. at 404 ("We think [blacks] are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.").

[465] Id. at 417.

[466] See Morison, supra note 101, at 705-25.

[467] See Stephen P. Halbrook, Personal Security, Personal Liberty, and "The Constitutional Right to Bear Arms": Visions of the Framers of the Fourteenth Amendment, 5 Seton Hall Const. L.J. 341, 351 (1995).

[468] Cong. Globe, 39th Cong., 1st Sess. 674 (1866), cited in Stephen P. Halbrook, The Jurisprudence of the Second and Fourteenth Amendments, 4 Geo. Mason U. L. Rev. 1, 21 (1981).

[469] Representative Henry Raymond (R., N.Y.), for example, stated: "Make the colored man a citizen of the United States and he has every right which you or I have as citizens of the United States under the laws and Constitution of the United States.... [among which is] a right to bear arms." Id. at 23. Representative Roswell Hart (R., N.Y.) argued during these debates that the Constitution established a "republican form of government" in which "the right of the people to keep and bear arms shall not be infringed." Id. Hart contended that it was the duty of the federal government to guarantee that the states maintain a similar form of government. See id. Complaining of the actions of the white Mississippi militia, Representative Sidney Clarke (R., Kan.) declared: "Sir, I find in the Constitution of the United States an article which declares that 'the right of the people to keep and bear arms shall not be infringed.' For myself, I shall insist that the reconstructed rebels of Mississippi respect the Constitution in their local laws." Id.

[470] Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27 (codified as amended at 42 U.S.C. § 1982 (1994)).

[471] See Halbrook, supra note 467, at 347-51.

[472] U.S. Const. amend. XIV.

[473] Cong. Globe, 39th Cong., 1st Sess. 2765 (1866), cited in Halbrook, supra note 468, at 24.

[474] Id.; see also Amar, supra note 445, at 1225.

[475] See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 450 (1856).

[476] 92 U.S. 542 (1875).

[477] Id. at 550.

[478] Id. at 554.

[479] 83 U.S. (16 Wall.) 36 (1873).

[480] The Privileges and Immunities Clause of the Fourteenth Amendment provides that "[no] State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." U.S. Const. amend. XIV, § 1.

[481] Dicta in several modern Supreme Court cases suggest that the Court views the Second Amendment as one of the "specifically enumerated" guarantees in the Bill of Rights that are protected by incorporation through the Due Process Clause of the Fourteenth Amendment. See infra notes 549-552, 555-565 and accompanying text.

[482] Domestic Disarmament, supra note 1, at 30.

[483] Id. at 29-30.

[484] Id. at 30 (quoting United States v. Cruikshank, 92 U.S. 542, 553 (1875)).

[485] Id.

[486] Cruikshank, 92 U.S. at 551 (emphasis added) (citation omitted).

[487] Id. at 553 (emphasis added) (citation omitted).

[488] Id.

[489] Under the Cruikshank Court's theory, preexistent natural rights, such as peaceable assembly and the bearing of arms, were not among the privileges and immunities of American citizens protected by the Fourteenth Amendment; privileges and immunities consisted only of the small class of rights that actually were created--not just recognized--by the Constitution, such as the right of interstate travel. See id. at 551-53.

Having written on the gun issue for over a decade, the authors of this Article must emphasize their frustration at the frequency with which gun prohibition advocates take the phrase from Cruikshank out of context, citing it for the opposite of its original meaning. Perhaps this is poetic justice for the Slaughter-House Cases/Cruikshank Court, which just as blithely (but somewhat more artfully) inverted the intended meaning of the Privileges and Immunities Clause of the Fourteenth Amendment.

[490] 116 U.S. 252 (1886).

[491] Id. at 254.

[492] Id. at 265-66. Arguably, the Court was wrong in its brusque conclusion, but the Court's determination that a particular law does not infringe upon the right to bear arms is not relevant to the issue of whether there is any right at all.

[493] Id. at 265.

[494] Article I, Section 8, Clause 15 of the Constitution gives Congress the power to

provide for calling forth the Militia to execute the laws of the Union, suppress Insurrections and repel Invasions." U.S. Const. art. I, § 8, cl. 15. In addition, Article I, Section 8, Clause 16 gives Congress the power to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the states respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

U.S. Const. art. I, § 8, cl. 16.

[495] Presser, 116 U.S. at 265.

[496] Id.

[497] 153 U.S. 535 (1894).

[498] Domestic Disarmament, supra note 1, at 31 (citing Miller v. Texas, 153 U.S. 535 (1894)).

[499] Miller v. Texas, 153 U.S. at 535.

[500] Id. at 535-36.

[501] Id. at 538.

[502] Id.

[503] 165 U.S. 275 (1897).

[504] Id. at 281.

[505] Id. at 281-82.

[506] Cf. Cramer & Kopel, supra note 373, at 685-86 ("Since 1987, states have increasingly adopted a new breed of concealed handgun permit laws that make easier the process for many adults to get a permit to carry a concealed handgun. While most residents of these states are unlikely ever to apply for a concealed weapon permit, the process is a matter of choice." (footnotes omitted)).

[507] 307 U.S. 174 (1939).

[508] Domestic Disarmament, supra note 1, at 31.

[509] Halbrook, supra note 148, at 164.

[510] United States v. Miller, 307 U.S. at 175.

[511] Ch. 757, 48 Stat. 1236.

[512] United States v. Miller, 307 U.S. at 176.

[513] Id. at 177.

[514] At the time, the Criminal Appeals Act allowed direct appeal to the Supreme Court when a federal statute was declared unconstitutional. See Criminal Appeals (Nelson) Act of Mar. 2, 1907, ch. 2564, 34 Stat. 1246 (repealed).

[515] For a critique of the standing doctrine as not based on the text or original intent of the Framers of the Constitution, see Glenn H. Reynolds, Penumbral Reasoning on the Right, 140 U. Pa. L. Rev. 1333 (1992).

[516] Don B. Kates, Jr., et al., "Amicus Brief of International Wound Ballistics Association, Doctors for Integrity in Research and Public Policy, Colorado Association of Law Enforcement Firearms Instructors, National Association of Chiefs of Police, Congress on Racial Equality, American Federation of Police, Independence Institute, Second Amendment Foundation, and Veterans of Foreign Wars," Robertson v. City and County of Denver, 874 P.2d 325 (Colo. 1994) (No. 93SA91).

[517] United States v. Cruikshank, 92 U.S. 542, 553 (1875).

[518] Robertson v. Baldwin, 165 U.S. 275, 281 (1897).

[519] United States v. Miller, 307 U.S. 174, 179 (1939) (emphasis added).

[520] See supra notes 431-443 and accompanying text.

[521] United States v. Miller, 307 U.S. at 179 (emphasis added).

[522] Id. at 181.

[523] 10 U.S.C. § 311 (1994).

[524] United States v. Miller, 307 U.S. at 180-82.

[525] Id. at 178.

[526] Id.

[527] Id. at 175.

[528] See Kevin M. Cunningham, When Gun Control Meets the Constitution, 10 St. John's J. Legal Comment. 59, 69 (1994); NRA-ILA, ILA Research & Information Fact Sheet: Ten Myths About Gun Control 11 (visited Mar. 28, 1997) <http://www.nra.org/research/10myths.html>.

[529] United States v. Miller, 307 U.S. at 178.

[530] Id. at 178, 183.

[531] Id. at 178.

[532] Dred Scott has never formally been overruled, although other portions of it are no longer law as a result of the Fourteenth Amendment. See Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1303 (1995).

[533] The conclusion follows from the Court's language that the individual ownership of a firearm that does bear a reasonable relationship to the preservation or efficiency of the civilian militia is protected by the Second Amendment. See United States. v. Miller, 307 U.S. at 178. Notably, the Court did not state that the type of gun in question must be essential to the militia; the type of gun need only bear a reasonable relationship to the preservation of this reserve, self-armed fighting force called the militia. See id. Today, nearly every type of firearm in America bears this type of relationship, because nearly every gun--including most handguns and hunting rifles--either has a military pedigree or was adopted by the military after attaining civilian popularity, and can still today be considered "part of the ordinary military equipment," id., especially because familiarity with its use could translate into enhanced ability to use more purely military arms. Id. The evolution of small arms technology reveals that advances in firearms design were usually made in connection with the needs of the military. Single shot breech loaders were improvements over muzzle loaders, and the former were later superseded by higher capacity guns with lever and bolt actions. These have been superseded by semiautomatic and automatic firearms with multiround capacity. Most of today's hunting rifles are merely variants of the battle rifles used in the last century, such as the Mauser. See Edward Clinton Ezell, Small Arms of the World 844 (12th ed. 1983). There is little difference, furthermore, between a high-powered deer rifle and the modern sniper rifle; both were designed to kill large mammals (human or nonhuman) at a distance.

Had the Court in United States v. Miller performed a more extensive analysis of the writings of the Framers, it would have discovered that the right to keep and bear arms at common law is connected just as much with the right to self-defense as with the perpetuation of the civilian militia. See Shalhope, supra note 401, at 612. It would, therefore, be wrong to infer from the Court's language about interpreting and applying the right "with that end in view" that it must be done solely with that end in view. United States. v. Miller, 307 U.S. at 178. If that was what the Court meant, the Court was wrong. Even if the Court meant that the Second Amendment relates solely to the militia, United States v. Miller affirms the right of ordinary Americans, as individuals, to possess militia-type firearms. See id. at 179.

The historical evidence concerning the dual purpose of the right to arms was taken into account by the Oregon Supreme Court in 1980, when it ruled that the constitutional history behind both the Oregon and federal rights to arms plainly guarantees that individual ownership of "the modern day equivalents of the weapons used by colonial militiamen" as well as of "handcarried weapons commonly used for defense" is protected. State v. Kessler, 614 P.2d 94, 98-99 (Or. 1980).

[534] Domestic Disarmament, supra note 1, at 32.

[535] 445 U.S. 55 (1980).

[536] 464 U.S. 863 (1983), denying cert. to 695 F.2d 261 (7th Cir. 1982), aff'g 532 F. Supp. 1169 (N.D. Ill. 1981).

[537] 498 U.S. 1047 (1991), denying cert. to 907 F.2d 1041 (11th Cir. 1990).

[538] 494 U.S. 259 (1990).

[539] 431 U.S. 494 (1976).

[540] 505 U.S. 833 (1992).

[541] 445 U.S. 55 (1980).

[542] Id. at 67.

[543] Id. at 65 n.8.

[544] Halbrook, supra note 148, at 172.

[545] The only Supreme Court opinion that clearly agrees with Domestic Disarmament's legal thesis is a 1972 dissent written by Justice Douglas in the Fourth Amendment case of Adams v. Williams, 407 U.S. 143 (1972). Outraged at the warrantless frisk of a person who was found to be carrying a firearm illegally, Justice Douglas suggested that the real problem was not a lack of police search powers, but the ease with which handguns could be acquired. Id. at 150 (Douglas, J., dissenting). He quoted and cited United States v. Miller for the proposition that the Second Amendment would not prohibit a ban on all pistols. Id. at 150-51.

[546] 494 U.S. 259 (1990).

[547] United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).

[548] Id. at 261-63. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

[549] Verdugo-Urquidez, 494 U.S. at 264-66.

[550] Id. at 265.

[551] Id.

[552] As Halbrook observed regarding the exclusively collective right interpretation: "The phrase 'the people' meant the same thing in the Second Amendment as it did in the First, Fourth, Ninth and Tenth Amendments--that is, each and every free person." Halbrook, supra note 148, at 83.

While the Ninth Amendment is a reservation of rights, specifying that unenumerated rights are retained by "the people," U.S. Const. amend. IX, the Tenth Amendment is a reservation of power, specifying that "powers not delegated" to the federal government "are reserved to the States respectively, or to the people." U.S. Const. amend. X. The Tenth Amendment reservation of rights to the people does not arise today in litigation, because a lawsuit claiming that the federal government has exceeded its enumerated powers can proceed directly to a discussion of the scope of whatever enumerated power is at issue. See, e.g., McCulloch v. Maryland, 17 U.S. 316, 322-26 (1819) (discussing the scope of various legislative powers enumerated in the Federal Constitution). The fact that the reservation of powers "to the States" in the Tenth Amendment creates a right for state governments does not mean that the alternative reservation of powers to the people creates a right for state governments.

[553] U.S. Const. amend. XIV, § 1.

[554] See generally Jerold H. Israel, Selective Incorporation: Revisited, 71 Geo. L.J. 253 (1982) (discussing how the United States Supreme Court came to hold certain guarantees of the Bill of Rights applicable to the states).

[555] 367 U.S. 497 (1961).

[556] 381 U.S. 479 (1965).

[557] Poe, 367 U.S. at 539 (Harlan, J., dissenting).

[558] Id. at 549 (emphasis added).

[559] Domestic Disarmament, supra note 1, at 11.

[560] See Griswold, 381 U.S. at 479, 499 (Goldberg, J., concurring) (citing with approval Justice Harlan's dissenting opinion in Poe).

[561] 431 U.S. 494 (1976).

[562] Id. at 496 & n.2, 497.

[563] Id. at 506.

[564] Id. at 501-02. After retiring from the bench, Justice Powell, who had written the Moore opinion, commented that "it is not easy to see why the Second Amendment, or the notion of liberty, should be viewed as creating a right to own and carry a weapon [handguns] that contributes so directly to the number of murders in our country." Lewis F. Powell, Jr., Capital Punishment, 102 Harv. L. Rev. 1035, 1045 (1989). Justice Powell apparently believed that the Second Amendment guarantees an individual right to keep and bear arms, but only long guns and not handguns. See id. Thus, his position is consistent with strict gun control, but not with Domestic Disarmament's call for gun prohibition. [Hypertext note: In an early 1990s interview on the McNeil-Lehrer News Hour, retired Justice Powell said that he thought the 2d Amendment guaranteed no right to own any type of firearm.]

[565] 505 U.S. 833 (1992). The portion of the opinion of the Court (Part II) was written by Justices O'Connor, Kennedy, and Souter. Id. at 843. Justices Blackmun and Stevens joined in Part II of the opinion. Id. at 922.

[566] See supra note 454 and accompanying text.

[567] Domestic Disarmament, supra note 1, at 32-33 (discussing Quilici v. Village of Morton Grove, 532 F. Supp. 1169 (N.D. Ill. 1981), aff'd, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983) and Farmer v. Higgins, 907 F.2d 1041 (11th Cir. 1990), cert. denied, 498 U.S. 1047 (1991)).

[568] See supra note 567.

[569] Domestic Disarmament, supra note 1, at 33.

[570] See Ponte v. Real, 471 U.S. 491, 501-02 (1985); Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 366 n.1 (1973); United States v. Carver, 260 U.S. 482, 490 (1923).

[571] 907 F.2d 1041 (11th Cir. 1990), cert. denied, 498 U.S. 1047 (1991).

[572] 18 U.S.C. § 921 (1994).

[573] 26 U.S.C. §§ 5801-5812 (1994).

[574] See 27 C.F.R. § 179.105(a), (b) (1989) (defining the implementing regulations proscribing private possession of machine guns and the applicable "grandfather clause"); id. § 179.105(e) (defining the exception for transfer or possession "by or under the authority of" the United States).

[575] Farmer, 907 F.2d at 1043.

[576] Id. at 1042.

[577] Id.

[578] Farmer v. Higgins, Civil Action No. 1:87-CV-0440-JOF, slip op. at 12 (N.D. Ga. Jan. 5, 1989).

[579] Id. at 11.

[580] Id. (citing Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (citing United States v. Miller, 307 U.S. 174, 178 (1939))).

[581] Farmer, 907 F.2d at 1042.

[582] Id. at 1042-45.

[583] Id. at 1045.

[584] 307 U.S. 174 (1939).

[585] Id. at 178.

[586] 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).

[587] Domestic Disarmament, supra note 1, at 32.

[588] "The refusal of the Supreme Court to hear such cases cannot be taken as indicative of the Court's view of the Second Amendment." Robert J. Cottrol, Introduction to Gun Control and the Constitution: Sources and Explorations on the Second Amendment xxx (Robert J. Cottrol ed., 1994).

[589] Domestic Disarmament, supra note 1, at 32.

[590] See Stephen R. McAllister, Practice Before the Supreme Court of the United States, Kansas Bar Ass'n, Apr. 1995, at 5.

[591] See 16 Charles Alan Wright et al., Federal Practice and Procedure § 4014 (1977).

[592] See id.

[593] 394 U.S. 812 (1969) (per curiam), dismissing appeal from 248 A.2d 521 (N.J. 1968). [Hypertext edition note: The Supreme Court action was not a summary affirmance. It was dismissal of the appeal for want of a substantial federal question. The legal result and implication are the same.]

[594] Burton, 248 A.2d at 530-31.

[595] Quilici v. Village of Morton Grove, 695 F.2d 261, 263 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).

[596] See Quilici v. Village of Morton Grove, 532 F. Supp. 1169, 1171 (N.D. Ill. 1981), aff'd, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).

[597] Quilici, 695 F.2d at 265.

[598] See Robert Dowlut, Federal and State Constitutional Guarantees to Arms, 15 U. Dayton L. Rev. 59, 70 n.77 (1989).

[599] Quilici, 695 F.2d at 263.

[600] Id. at 271 (Coffey, J., dissenting).

[601] Platform, supra note 5, at 21.

[602] Quilici, 695 F.2d at 268.

[603] Id. at 267-69.

[604] Id. at 269.

[605] Id.

[606] Id.

[607] Id.

[608] Domestic Disarmament, supra note 1, at 32.

[609] Presser v. Illinois, 116 U.S. 252, 265 (1896).

[610] Quilici, 695 F.2d at 269.

[611] Domestic Disarmament, supra note 1, at 32-33 (quoting Presser, 116 U.S. at 265).

[612] Id. at 33.

[613] U.S. Const. art. I, § 8, cl. 12 (army); cl. 15-16 (militia).

[614] Presser, 116 U.S. at 265-66.

[615] Id. at 265.

[616] As to what Presser means by "public security," Halbrook (one of the losing attorneys in Quilici) wrote that "[t]he 'public security' concept at common law included justifiable homicide of violent felons and citizens' arrests of fleeing felons who could not otherwise be apprehended." Halbrook, supra note 148, at 161. Thus, there is no reason to maintain that Presser's connecting of the right to keep and bear arms with "public security" implied an exclusively collective right. The well-regulated militia mentioned in the Second Amendment was a self-armed force in the 1700s and was reaffirmed to be such by the Supreme Court in United States v. Miller, 307 U.S. 174, 179-80 (1939).

[617] Quilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir. 1982) (citation omitted), cert. denied, 464 U.S. 863 (1983).

[618] Id.

[619] United States v. Miller, 307 U.S. at 179.

[620] Id. at 179-81.

[621] Id. at 178.

[622] Quilici, 695 F.2d at 270-71.

[623] Id. at 270 n.8.

[624] Id. at 269-70.

[625] See Ted Shelsby, Beretta to Increase Output at Gun Plant; Military Contract to Bring More Work to Accokeek Plant, Balt. Sun, July 30, 1996, at 1C, available in 1996 WL 6630129; Ted Shelsby, Beretta Wins Navy Contract; $18.5 Million Worth of Guns Ordered, Balt. Sun, Sept. 21, 1995, at 1C, available in 1995 WL 2464978.

[626] Quilici, 695 F.2d at 266-67.

[627] United States v. Miller, 307 U.S. at 175.

[628] Id. at 178-82. In fact, the Court in United States v. Miller clearly implied that military-style small arms are constitutionally possessable by American citizens. See id.

[629] Quilici, 695 F.2d at 270-71.

[630] Id. at 278 (Coffey, J., dissenting).

[631] Id. at 280. Because Judge Coffey apparently viewed Presser as preventing any direct application of the Second Amendment against a subdivision of the State of Illinois, he argued that the right to own a handgun in one's home was among the unenumerated personal liberties protected by the Ninth and Fourteenth Amendments. Id. at 278-80. For more on the Ninth Amendment as an arms guarantee independent of the Second Amendment, see Johnson, supra note 445, at 2-12.

[632] Quilici v. Village of Morton Grove, 464 U.S. 863 (1983), denying cert. to 695 F.2d 261 (7th Cir. 1982).

[633] Levinson, supra note 147, at 654.

[634] See, e.g., Arizona v. Evans, 115 S. Ct. 1185 (1995) (allowing searches without probable cause when based on reliance on erroneous computer data).

[635] Domestic Disarmament, supra note 1, at 29-35.

[636] See supra text accompanying note 88.

[637] See supra note 88 and accompanying text.

[638] See 1 William Blackstone, Commentaries 136 (1765) (stating that the right to bear arms is one of five "auxiliary subordinate rights of the subject, which serve principally ... to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property").

[639] See Rabbitt v. Leonard, 413 A.2d 489, 491-92 (Conn. 1994) (interpreting state constitutional right to arms provision as upholding ban on so-called assault weapons, but stating that a ban on all guns would be unconstitutional); cf. Robertson v. City & County of Denver, 874 P.2d 325, 328 (Colo. 1994) ("[T]he state may regulate the exercise of that right [to bear arms] under its inherent police power so long as the exercise of that power is reasonable.").

[640] See supra note 88 and accompanying text.

[641] See supra note 88 and accompanying text.

[642] See supra note 88 and accompanying text.

[643] See supra note 88 and accompanying text.

[644] See supra note 88 and accompanying text.

[645] Radical criminologist Raymond Kessler criticized gun control as an effort to make poor people more dependent on the state and, hence, less likely to challenge assertively the social order. See Raymond G. Kessler, Gun Control and Political Power, 5 L. & Pol'y Q. 381, 383 (1983).

[646] See Williams, supra note 6, at 563-86.

[647] Id. at 564 n.56.

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