The Right of the People


The Right of the People


“The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose.”3  —Thomas Cooley, General Principles of Constitutional Law

To whom does the right to keep and bear arms belong? The text, history, and tradition of the Second Amendment make clear that it protects an individual right of private citizens to keep and bear personal arms for self-defense.

The language itself is unambiguous: The right to keep and bear arms belongs to “the people.” The phrase “the right of the people” appears several other times in the Bill of Rights, including in the First and Fourth Amendments, and at no other point does it refer to anything other than an individual right of private citizens. Finally, if the drafters of the Second Amendment had meant merely to clarify that the “power” of maintaining well-regulated militias belonged to the state governments, they certainly knew how to better distinguish between “the people” as individuals and the state governments as elected representatives of their people. Consider, for example, the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This textual understanding is cemented by a century of uninterrupted post-ratification legal scholarship showing a common consensus that the Second Amendment protects an individual right, as opposed to some collective right of states to maintain militias. From St. George Tucker’s “American Blackstone” to Jonathan Elliot’s record of debates from state ratification conventions, from James Bayard to William Rawle and Joseph Story, the right to keep and bear arms was unquestionably viewed as a right of the individual citizen, and not a prerogative of state governments or a collective right to be exercised only in the context of official militia service.

The Second Amendment today cannot be properly understood apart from its relationship to the Fourteenth Amendment, which was ratified in 1868. Prior to the Fourteenth Amendment, the Bill of Rights—including the Second Amendment—protected only against infringements by the federal government. The Founders presumed that state constitutions would sufficiently protect the natural rights of citizens against infringements by state governments. With respect to state protections of the right to keep and bear arms, this proved to be largely true. Overwhelmingly, state constitutions and state governments respected a broad and—especially compared to modern gun control measures—virtually unrestricted right of individual citizens to possess and carry firearms.

A major motivation behind the Fourteenth Amendment was the stark reality that, in the aftermath of the Civil War, southern states simply refused to protect the fundamental rights and liberties of the newly freed slaves, including, specifically, their right to keep and bear arms. Many states in the former Confederacy passed overtly racist laws designed to keep former slaves disarmed and defenseless against private, state-sanctioned attempts to instill fear through violence, as well as to continue their submission. As Congress debated the Fourteenth Amendment and the various Reconstruction bills that preceded it, Senators and House Members routinely decried the widespread disarmament of freedmen in the South. The historical record could not be clearer that, at the time of the Fourteenth Amendment’s ratification, the public widely understood the right to keep and bear arms as individual in nature, centered on self-defense, and encompassed within the Fourteenth Amendment’s scope as a fundamental right of citizenship upon which states could no longer infringe.

Any person, white or black, may be disarmed, if convicted of making an improper and dangerous use of weapons; but no military or civil officer has the right or authority to disarm any class of people, thereby placing them at the mercy of others. All men, without the distinction of color, have the right to keep arms to defend their homes, families or themselves.”4  —Circular of Brigadier General Davis Tillson, Assistant Commissioner for Georgia during Reconstruction


3. Thomas Cooley, General Principles Of Constitutional Law 281–82 (2d Ed. 1891)
4. Circular No. 5 Of Brig. Gen. Davis Tillson, Acting Ass’t Comm’r Georgia Bureau Of Refugees, Freemen, And Abandoned Lands (Dec. 22, 1865), Reprinted In U.s. Government Printing Office, 1256 United States Congressional Serial Set Ex. Doc. No. 70, At 65 (1866).

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