The Right to Keep and Bear Arms
The right to keep and bear arms is derived from and inseparably linked to the right of self-defense. Thus, by nature it is an individually possessed right, as are all rights protected in our Constitution.
The Founding Fathers, the Framers of the Constitution and Bill of Rights, and those whom the Supreme Court (U.S. v. Miller, 1939) referred to as "approved commentators" could not have been more clear about the nature of the right and the purpose of the Second Amendment.
Thomas Jefferson said, "No free man shall be debarred the use of arms." Patrick Henry said, "The great object is, that every man be armed." Richard Henry Lee wrote, "To preserve liberty it is essential that the whole body of people always possess arms." Thomas Paine noted, "(A)rms . . . discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property."
Prominent Federalist Tench Coxe asked, "Who are the militia? Are they not ourselves?. . . Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American. . . . (T)he unlimited power of the sword is not in the hands of either the federal or state governments but, where I trust in God it will ever remain, in the hands of the people."
In introducing the Bill of Rights in the House of Representatives, James Madison noted that the amendments "relate first to private rights." Sen. William Grayson observed that they "altogether respected personal liberty." Tench Coxe wrote, "(T)he people are confirmed by the next article (of amendment) in their right to keep and bear their private arms."
Constitutional scholars have noted that there is no historical basis for the claim that the Second Amendment protects a so-called "collective right" of the states. Stephen P. Halbrook writes, "If anyone entertained this 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." (That Every Man Be Armed, Univ. of N.M. Press, 1984)
Historian Joyce Lee Malcolm, testifying before Congress in 1995, told Rep. John Conyers, "It is very hard, sir, to find a historian who now believes it is only a `collective right.` . . (T)here is a general consensus that in fact it is an individual right."
The Supreme Court recognized that the right to arms is an individual right in U.S. v. Cruikshank (1876), Presser v. Illinois (1886), Miller v. Texas (1894), U.S. v. Miller (1939) and U.S. v. Verdugo-Urquidez (1990). In U.S. v. Cruikshank, the Court also recognized that the right preexisted the Constitution.
In U.S. v. Emerson, on Oct. 16, 2001, the U.S. Court of Appeals for the Fifth Circuit found that the Second Amendment protects an individual right to keep and bear arms, and that this right is subject only to "limited, narrowly tailored specific exceptions" that "are not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country. . . . All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans." Other federal court decisions have been divided on whether the right is individual or "collective."
The National Guard, established in 1903, is not the militia referred to in the Second Amendment. For more than 400 years, the term "well regulated militia" has meant the people, with privately owned weapons, led by officers chosen by themselves. Tench Coxe said that the militia "are in fact the effective part of the people at large." Richard Henry Lee said that the militia "are in fact the people themselves." George Mason said that the militia consist "of the whole people."
The Guard is subject to absolute federal control (Perpich v. Dept. of Defense, 1990) and thus is not the "well regulated militia" referred to in the Second Amendment. "The Militia of the United States" is defined under federal law to include all able-bodied males of age and some other males and females (10 U.S.C., sec.311; 32 U.S.C., sec.313), with the Guard established as only its "organized" element.
GENERAL INFORMATION
Privately owned firearms in the U.S.: Over 200 million, including 65-70 million handguns. The number rose by 52 million during the 1990s. (BATFE)
Gun owners in the U.S.: 60-65 million; 30-35 million own handguns
American households that have firearms: Approx. 45%
Hunters 16 years of age and older, nationwide: 15 million (NSSF)
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