CONSTITUTIONAL LAW
AND
GUN CONTROL TODAY
COURSE:
721.
A research paper "by Frank G. Gelsone,
submitted to Richard W. Hemingway, Dean, Texas Tech
School of Law.
Spring, 1981.
233
Frank G. Gelsone
Dean Richard W. Hemingway
Course:
721
Spring, 1981
Constitutional law
and
Gun Control Today
To what extent can the federal government, or government of the states, regulate the private ownership,
possession, or use of firearms?
This is a hotly de-
bated basic question in the continuing issue of gun
control in the United States.
In answering this ques-
tion, this paper attempts to present, define and clarify
the major legal issues concerning the Constitutionality
of gun control, as well as extremely important issues
which are often overlooked.
The fundamental law of our United States is the
U.S. Constitution.
Its 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."
Does this Amend-
ment protect a right of individual citizens to posses
and use firearms?
What has been characterized as the
-1
majority opinion of Constitutional scholars
is pre-
sented first in this paper, followed by an intense
examination and criticism of that view.
OQK
2
It is well recognized that there has been no de2
finitive ruling on what the Second Amendment means ;
but, the weight of opinion interprets the Amendment as
designed to prevent Congress from disarming the state
militias, not to prevent the regulation of privately
owned firearms.
The arguments supporting this ma-
jority opinion can be divided into three main catagories:
1) the history of the Second Amendment; 2) the
syntax and wording of the Amendment; and 3) the U.S.
Supreme Court interpretations of that Amendment.
According to the majority, the key historical fact
leading to the enactment of the Second Amendment was
the eighteenth century fear of standing armies.^
Be-
cause of hostile "boarders and a rugged frontier, the
federal government was authorized to maintain a standing army.
But the Second Amendment was part of a
system of Constitutional checks to guard against a
repressive use:
"(a) a two year limit on Congression-
al appropriations for the army;
(b) the natural hos-
tility of the people to maintain a large peacetime
force; and (c) reliance on the state militia to balance any
5 inordinate growth or threat from such an
H>
army.
c.
Hamilton said, in the Federalist XLVI,
that a
standing army can never exceed a small percentage of
3
the population, while the militias would be composed of
all the able-bodied men in each state.
Therefore, a
standing army would never be able to defeat the combined militias of the states and impose repressive policies.
But at the same time, in the early days of our
nation, the militias were almost the only force able to
defend our country.
So, Congress was given the power
to authorize command of the militias as a uniform force
in times of emergency.
The Second Amendment is part of our Bill of Rights
and studying the Amendment as part of the whole sheds
a sharper light on the Second Amendment itself.
A de-
lightful study of the Bill of Rights was written by
7
William 0. Douglas:
A Living Bill of Rights.
Justice Douglas quotes Thomas Jefferson in defining the Bill of Rights:
"a Bill of Rights is what the
people are entitled to, against every government on
earth, general or particular, and what noo just government should refuse or rest on inference."
To the judge
and lawyer, our Bill of Rights also has come to mean the
guarantees of freedom contained in the body of the
Constitution itself.
These as well as the first ten
Amendments are, in truth, our Bill of Rights, since they
are guarantees of the rights of the individual against
either federal or state governments, or both.
Taken
4
together, these various guatantees of individual rights
proclaim that we the people have rights which Presidents
and governors, Congress and state legislatures, federal
and local agencies, state and federal judges, must respect.
Another writer stated that with the adoption of
the Bill of Rights, the Constitution "ceased to he a
mere political contrivance . . . and came to he regarded
as a symbol of the American way of life. . . .
Through
the adoption of the Bill of Rights the spirit of the
Declaration of Independence was infused into the Constitution. . . .
The Constitution became an instruQ
ment of democracy."
Justice Doulgas considered freedom from military
10
rule a basic right.
The colonists complained of the
existence of standing armies to King George III in the
Declaration of Independence, and those "complaints are
reflected in the Second,
Third, and Fifth Amendments to
11
the Constitution."
But even Justice Doulgas fails to realize that the
Second Amendment secured a right for all Americans.
Examine a portion of his dissent in Adams v. Williams,
407 U.S. 143 (1972):
"A powerful lobby dins into the
ears of our citizenry that . . . gun purchases are Constitutional rights protected by the Second Amendment.
. . .
There is under our decisions no reason why stiff
OIQ
^oO
5
state laws governing the purchase and possession of pistols may not be enacted.
There is no reason why pistols
may not be barred from anyone with a police record.
There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test.
There
is no reason why all pistols should not be barred to
everyone except the police." 12
This lack of respect for the Second Amendment was
not shared by the most famous Demcrat of all, President
ii
Thomas Jefferson:
. . . and what country can preserve
its liberties if its rulers are not warned from time
to time that this people preserve the spirit of resis13
tance.
let them take arms."
James Madison said that
"/"t/he ultimate authority . . . resides in the people
alone/under our Constitution, due to/the advantage of
being armed which the Americans
possess over the people
14
of almost every nation."
A thorough study of the checks and balances embodied in our Constitution reveals not only a balance
between federal and state government, but also, a balance between the civil government and the people.
Historically, there was not just a fear of standing armies, but also a fear of an overly dominant
national government to deal with foreign powers.
needed a central military.
It
At the same time, the indi-
261
6
vidual states required the protection of their sovereignty.
This goal was acheived by preserving the power,
not just the authority, to defend itself by means of a
state militia, consisting of all the able-bodied men
between approximately sixteen and forty-five years of
15
age.
The Second Amendment does prevent the federal
government from disarming the state militias, but it
does much more than just that.
The Constitution also provides a balance between
the military power and civilian authority.
It was not
enough for the civil authority to merely have command
over the military, but it also retained the power to
prevent a repressive use of the military.
The military
commanders were directly responsible to the government
in the chain of command.
Commanders could be replaced
at the will of the government, and the military was
paid by the government.
But the final deterent to mili-
tary oppression was an equally armed civilian body.
Virtually the whole male population had a duty to this
end, in the militias of the states.
A third balance embodied in the Constitution is
the balance of power between the civil government and
the people.
The civil government's sole source of auth-
ority is the people, individually and collectively.
The government has been'authorized by the people to
261
7
amass military power, while the people retained control
of their civil government through their voting rights,
and a .countervailing power through their individual and
collective rights to keep and bear arms.
The majority opinion states that the right to keep
and bear arms is only a collective right, a right to
have an armed National Guard.
Therefore, since each
state does have a National Guard, Congress can not violate the Second Amendment by prohibiting all private
ownership of firearms.
There is no violation unless
16
Congress attempts to disarm the Guard.
But an individual right is one granted to each
individual, and a collective right is granted to all
the people.
The only distinction "between collective
and individual rights is that a collective right can "be
exercised by the entire citizenry in mass.
right of self government.
Such is the
It has been virtually im-
possible for each of us to be directly involved in the
governing process, except through our right to vote.
We elect representatives to exercise our collective
right of governing.
Notice, however, the right to vote
is retained by all persons, individually and collectively.
Some types of individual rights, such as cer-
tain defenses in court, can only be exercised by a
certain individual.
But when an individual is deprived
8
of his effective voting right, because of illegal apportionment, everybody affected has standing to sue.
Whether something can be complained of individually or
collectively depends on how important the right is to
society;
whether everyone is potentially affected.
The
right to keep and bear arms is one such right that is
both individual and collective.
Each individual has
a small piece of the power for defense of self.
But
the defense of state, to be effective, must be exercised by a large majority of the people together.
We
can use a large number of representatives to fight our
national wars, but in the event of national or military
repression, each person has the duty to defend government by the people.
It must also be reiterated here
today's presumed equivalent to the militia is the Na17
tional Guard.
This armed force consists of only a
small percentage of the population.
become a standing army of the states.
It has, in fact,
The only way to
maintain the Constitutional balance against both federal and state standing armies today, is to enforce the
individual right to keep and bear arms. Though the
National Guard is called a state militia through federal
1R
law,
this does not at all mean that it even closely
resembles the militia of the framers time.
The mili-
tias were the body of the people, the majority of indi-
9
viduals, 19 and the right to keep and bear arms was retained by those individuals.
Granting the right to
keep and bear arms to a National Guard would not be
equivalent to a right retained by an entire male population.
Rather than restrict the right to the National
Guard, our judiciary should obviously interpret the
right to include all women.
Still examining the history of the Second Amendment,
a discussion of another position of the majority is in
order.
The majority states that the right to keep and
bear arms was not granted by the U.S. Constitution 20
21
and that the right did not exist in common law.
The
majority concludes, therfore, that the states have the
right to restrict or extinguish the right to keep and
bear arms.
This position puts the scholarship of the
majority in question.
First, there is some evidence that the right to
keep and bear arms was recognized under the common law.
The eighteenth century British jurist, Sir William
Blackstone, listed the "absolute right of individuals"
that were recognized and enforced under the common
law. 22 Among these rights was "the right of having
23
and using arms for self-preservation and defense."
As important as the collective and individual right of
defense of state, so is the right of self-defense.
243
10
Self-defense is merely the same right of defense of
state (all the people) on a smaller scale (the individual
or a few people).
Blackstone's comments of self-defense
illustrates that defense of self is an inherent right of
man, even older than nations.
/Self-defense/ considers that the
future process of law is hy no means
an adequate remedy for injuries accompanied hy force: since it is
impossible to say to what wanton
lengths of rapine or cruelty outrages of this sort might be carried,
unless it were permitted a man immediately to oppose one violence with
another. Self-defense, therefore, as
it is justly called the primary law
of nature, so it is not, neither can
it be in fact, taken away by the law
of society.24
Even though Blackstone has been ridiculed by the major25
ity writers as losing favor among todays scholars,
his commentaries have been relied upon repeatedly by
the United States Supreme Court as"the definitive statement on the common law and as the basis for minimal
?6
standards of our own constitutional rights."
Some scholars have indicated that the right was
limited somewhat in England, in that it was not 27
an absolute right, as was the right to a jury trial.
They
state that since the right was not absolute, it was,
therefore, not fundamental.
But no right is absolute.
For instance, there are even limits on free speech.
261
11
That does not mean that the right of free speech is not
fundamental.
In presenting their opinions, these ma-
jority opinion scholars often refer to an English law
that prevented the lower economic class from possessing
po
arms.
They are simply citing a clear abuse of state
authority.
Similar legislation has been proposed to-
day, attempting to ban Saturday Night Specials, and if
passed would effectively limit the use of handguns, by
the poor, for defense.
A rich man would still be able
to buy his expensive Colt or Smith and Wesson.
Secondly, American law did not simply begin in
1776.
Americans had arms before 1776, and even freed
themselves from English law through revolution.
The
Contitution was not just an embodiment of the common
law of England, but also of the American tradition.
Be-
fore and during the revolution, the American citizens
owned, individually and collectively, rifles, muskets
(smooth "bores) with bayonets, musketoons and carbines,
fusils, swords, spontoons (a spear between six and
seven feet long), pistols, wall guns, and even artillery.29
Thirdly, even though the Constitution did not create a right to keep and bear arms, it did recognize
that right by stating that it shall not be infringed.
Consider now, the second major area of study re-
261
12
garding the Second Amendment, the wording itself.
It is
illuminating to examine proposed amendments from which
the Second Amendment developed.
Of the amendments pro-
posed by the Virginia Convention, June 27, 1788, the
Seventeenth read:
That the people have a right to keep
and bear arms; that a well regulated
Militia composed of the body of the
people trained to arms is the proper,
natural and safe defense of a free
State. That standing armies in time
of peace are dangerous to liberty,
and therefore ought to be avoided,
as far as the circumstances and protection of the Community will admit;
and that in all cases the military
should be under strict subordination
to and governed by the Civil power.
The first part of the proposed amendment states
that the right to keep and bear arms rests in the people.
This is obviously a vital fundamental right to
the security of a free nation, by virtue of the fact
that it was the body of those people that comprised the
militia as indicated by the plain language of the proposal and the semi-colon.
It was that body of the
people that was the natural and safe defense of a free
state.
The people have the power to defend and preserve
the government by the people.
The second part of the
amendment develops the principle that the military is
subordinate to the people.
The first part of the pro-
posed amendment was to guarantee the second.
261
It does
13
not follow that the government can disarm the people
while providing the military with sophisticated weaponry.
An amendment was offered by James Madison on June
8, 1789.
"The right of the people to keep and bear
arms shall not be infringed;
a well armed and well
regulated militia being the best security of a free
country:
but no person religiously scrupulous of bear-
ing arms shall be sompelled to render military service
31
in person."
This proposal embodies the meaning of
the Virginia proposal, that the people were the best
defense of a free country;
but Congress rejected the
protection of conscientious objectors to war.
had the duty of defense.
Everyone
Power, through arms was (and
is) essential to survival.
The Senate passed the Amendment as ratified by the
people:
"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."
The
majority opinion interprets the phrase, "A well regulated militia, being necessary to the security of a
free State
. . ."as the purpose of the Second Amend32
ment.
That is not entirely wrong, but the majority
deviates from the path of logic and reason when it concludes that, therefore, the Second Amendment only pre-
261
14
vents Congress from disarming the National Guard.
The
true meaning of that phrase, as illustrated above, is
that the defense of the country rests in the people;
and the rest of the Amendment prevents Congress from
disarming those people.
The majority interprets the next five words of the
Second Amendment, " . . .
as a collective right.
the right of the people
..."
It is contended that when the
Constitution uses words to refer to an individual right
it uses the words "person(s)", "citizen(s)", and "subject(s)".
The argument goes on to say that even
though the Fourth Amendment uses the phrase " . . . the
right of the people . . . ", it retains an individual
right only because it also uses the word "persons".
That is incredible reasoning.
states:
The Fourth Amendment
"The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated . .
As stated above, the Fourth Amendment secures individual
rights.
The rights secured in the first part of the
Fourth Amendment can accurately be restated as follows:
1) the right of the people to be secure in their persons against unreasonable searches and seizures shall
not be violated;
2) the right of the people to be
secure in their houses against unreasonable searches
261
15
and seizures shall not he violated;
3) the right of
the people to he secure in their papers shall not he
violated;
4) the right of the people to be secure in
their effects shall not be violated.
The Fourth Amend-
ment protects the right of all the people and each of
the people.
The word "persons" refers to the right of
all of us to be free from unreasonable searches of our
bodies and clothing and free from unreasonable arrest.
Looking at the part of the Bill of Rights contained
in the first ten
mendments, we see that all ten pro-
tect individual rights.
the
The First Amendment protects
right of the people to peacefully assemble, and
to petition the Government for a redress of grievances,
as well as preventing the establishment of a state
church,
protects the right of everyone to practice the
religion of their choice and those who are atheists
from having to practice one,
and, more importantly,
it protects freedom of speech and of the press.
These
rights benefit all of us collectively and individually.
The Fourth Amendment protects the right of the people.
The Fourth, Fifth, Sixth, Seventh, and Eighth, protect
all the people, whether guilty or not.
The Ninth
Amendment protects the rights of the people not listed
in the Constitution.
The Tenth Amendment retains the
rights that the people did not give the government,
16
to the people.
The Third Amendment protects the right
of individual home owners.
It is plainly irrational
and unconstitutional to interpret the Second Amendment, which reserves a right of the people, which works
in conjunction with other Amendments that reserve individual rights, as an Amendment which does not protect
individual rights.
The tail argument and this eviscerated rationale
of the "majority", is that the phrase
11
. . . to hear
arms . . . " refers only to military weapons and, there34fore, does not cover peivate firearms.
At the time
of the framing of the Constitution, the army and militias (private citizens) carried the same types of
weapons.
Todays private citizens own and use princi-
pally rifles, pistols (handguns), and shotguns.
All
are simply modernized versions of the individual weapons
used in the American Revolution.
All of the types of
provate firearms today are also used hy our military
forces, including, hut not limited to, shotguns, highly powered scoped rifles, and\ handguns
(including
35
snuhhed-nosed 38's hy airmen).
Even if the Second
Amendment retained the right of the people to keep and
"bear only military weapons, it would not limit the
types of privately owned firearms today.
It would in-
clude machine-guns, hand-grenades, tanks, artillery
261
17
with a range of even twenty-five miles, and more!
The third major area of study focuses on the
Supreme Court cases relating to the Second Amendment.
Some members of the majority opinion admit that
there has been no definitive decision by the U.S.
Supreme Court as to the meaning of the Second Amend36
ment.
All of the majority seem to predict that the
Supreme Court would, in the future hold that the Second
Amendment only prevents
Congress from disarming the
37
National Guard.
There have only been five Supreme
Court cases that have dealt with the Second Amendment
directly.
The majority developed their prediction not
from the holding of the cases, but from the dictum.
The majority relies on an 1876 case, U.S. v. Cruik38
hank , to argue that there is not any right to keep
39
and bear arms.
The issue was whether a group of white
citizens could be held in violation of the Enforcement
Act of 1870, for depriving two Negros of certain Constitutional rights, among them, the right to keep and
bear arms.
The Court said the second and tenth counts
(those involving the right to keep and bear arms) were
defective because it was not a right granted by the
Constitution. "The Second Amendment declares that it
40
means no more than it shall not be infringed by Congress."
shall not be infringed; but this, as has been seen,
18
This case does not mean that there is not a right to
keep and bear arms.
The Court recognized that there
was a right that could not be infringed by Congress.
The next important case was Presser v. Illinois,
41
decided in 1886.
Presser was convicted of violating
an Illinois lav/ that prohibited drilling a body of men
with arms without the consent of the governor.
The
Court said that " w e think it clear that the sections
under consideration, which only forbid bodies of men
to associate together as military organizations, or to
drill or parade with arms in cities and towns unless
authorized by law, do not infringe on the right to
keep and bear arms."^
The Court reiterated the pro-
position that the Amendment only limits the national
government.
But the Court did declare that "the states
cannot . . . 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
43 performing their duty to
the general government."
This case did not say that
the above restriction was the only limit on a state's
authority to prohibit its citizens from keeping and
bearing arms (as contended by some of the majority).
The cases of Miller v. Texas in 1894^, and Robertson
v. Baldwin in 189745 , perpetrated the principle that
261
19
the Second Amendment was not applicable to the states.
In Miller, the Court upheld the Texas law forbidding
the carrying of concealed weapons.
Baldwin
concerned
another concealed weapons law.
In 1939, in U.S. v. Miller46, the Supreme Court
followed its older rulings expanding Presser.
The
Court upheld the National Firearms Act of 193447,
which was a restriction on gangster weapons of the
48
time.
During Prohibition, organized crime had blos-
somed and the government had an extremely hard time
getting convictions.
One tool developed for lav/ en-
forcement was the National Firearms Act.
Attempts were
feade to get the gangsters behind bars by prosecuting for
firearms violations and income tax evasion.
Control-
ling organized crime was a national necessity, a
necessity which led to the repeal of Prohibition.
These historical facts indicate that finding the National Firearms Act unconstitutional as a prior restraint on individual rights, would not have been
accepted graciously.
As Presser had said in dictum,
the states could not "deprive the United States of
their rightful resource for maintaining the public
security".
Miller said that since the prohibited weap-
on (a sawed-off shotgun) did not have a reasonable
relation to the preservation or efficiency of a well
261
20
regulated militia, prohibition of such a weapon did not
violate the Second Amendment.
The Court did seem to
recognize that the militia consisted of all able-bodied
males and that these males were required to be armed
and carry ammunition, the arms and ammunition being
privately owned.
Digging into historical commentaries,
the Court finds that a militia was also defined as a
4-9
"body of citizens enrolled for military discipline."
But the Court did not find that only members of an
organized militia were protected by the Second Amendment, nor could it logically have done so.
All males
could have been called for duty who were physically
able to perform.
The Supreme Court interpretation of the Constitution has changed drastically since the early cases
discussed above.
As long as each citizen had the same
rights in a state and state restrictions applied to 50
all citizens, there was no Constitutional violation.
The Supreme Court had not then started to apply the
freedoms guaranteed by the Bill of Rights to the states,
through the Fourteenth Amendment.
During the time of
the Miller case, the Court had refused the concept of
incorporating the entire Bill of Rights through the
liberty and due process clause of the Fourteenth Amendment.
The Court started with the ordered liberty,
261
21
fundamental fairness test.
But over time, through many
cases, the Supreme Court protected individual rights
from state abuse.
Virtually the same standards which
tested federal violation of individual rights, now test
state violations.
Gun control legislation (especially the 1968 Gun
Control Act, which makes it a felony to commit simple
errors in filling out a form*?'') have not "been fully
litigated in the courts.
Proposed legislation calls
for registration, eventual prohibition of at least
handguns, and immediate prohibition of inexpensive
52
handguns.
A thorough discussion of the ramifications of
recognizing the Second Amendment as a right retained
by all Americans is beyond the scope of this paper;
but, the student of Constitutional Law will recognize
developing issues of prior restraint, equal protection,
due process, and government intrusion of privacy.
A
recent Supreme Court case held that criminals do not
have to register their firearms since filling out the
forms would violate their right 53
against self-incrimination under the Fifth Amendment.
One wonders what
sense is there, then, in registering gun ov/ners?
It
may by more appropriate to register criminals.
The Second Amendment is not the only protection
22
of the right to keep and hear arms for the citizens of
Texas.
That individual right has heen retained by
Texans since the Republic.
The Confederate States, Texas among them, fought
bloody and devastating battle after battle for selfdetermination.
The Civil War was the military en-
forcement by the northern states of the principle that
a state could not secede from the Union.
Texas was
readmitted to representation (in the federal government) in 1870, only after the people had ratified the
54new Texas Constitution of 1868.
Section 1 was a
statement of submission to the federal government.
"The Constitution of the United States, and the laws
and treaties made and to be made in pursuance thereof,
are acknowledged to be the supreme law
this corre-
sponds with Article VI, Section 2 of the U.S. Constitution—the supremacy clause.;
that this consti-
tution is framed in harmony with and subordination
thereto;
and that the fundamental principles embodied
herein can only be changed subject to the national
authority."
But while submitting, Texas constitutionally provided against future tyranny of the federal government
by adopting at least three important articles.
The
first is Section 13, which states, "Every person shall
261
23
have the right to keep and "bear arms, in the lawful
defense of himself or the state, under such regulations
as the legislature may prescribe."
Section 13 pur-
ports to grant the right to keep and bear arms.
But,
it is the people granting the right to themselves.
Therefore, this section merely retains the right they
had since before Texas was a republic.
It can accur-
ately be said that without arms, Texas could never have
become an independent state.
In 1836, a convention
assembled on the Brazos River in Texas, framed the 1836
Constitution of the Republic of Texas, and proclaimed
55
a declaration of independence.
The fourteenth arti-
cle of the Declaration of Rights (the Bill of Rights
of that Texas constitution) provided that "Every citizen shall have the right to bear arms in defense of
himself and the republic.
The military shall at all
times and in all cases be subordinate to the civil
power."
Apart from the right to keep and bear arms in
Section 13 of the 1868 Texas Constitution, Section 17
stated that "The military shall at all times be subordinate to the civil authority.", and the militia was
put under the power of the governor in Article VII.
Therefore, Texas resisted complete domination by
the Union by placing in its constitution the right of
the people to keep and bear arms; the supremacy of the
o m
/CKJ
i
24
civil authority over the nilitary, and the command of
the militia under the governor.
Note that the right of
the people to keep and hear arms does not depend on
the existence of a militia.
There is a balance of
power under the Texas Constitution similar to that
found in the U.S. Constitution.
The civil authority originates and is maintained
by the people.
That civil authority has control over
the military, and the power to prevent an oppressive
use of the military or civil authority is retained by
the people.
Section13 of the 1868 Constitution provides that
the legislature is empowered to regulate arms.
How
restrictive can the Texas regulation of arms be?
Clear-
ly to allow prohibition of arms is to abdicate defense
of self and state, rights clearly provided for under
the constitution.
Therefore, the authority to regu-
late arms is United to regulating the state military
(National Guard) and the criminal use of arms, not an
authority to prohibit possession or regulate to the
extent that those regulations would tend to limit
possession of firearms by law-abiding citizens.
The current Texas constitution adopted by the
voters on February 15, 1876, makes the limitation on
the state government crystal clear.
"Every citizen
25
shall have the right to keep and bear arms in the lawful defense of himself or the State;
but the legisla-
ture shall have the power, by law, to regulate the
56
wearing of arms, with a viev/ to prevent crime."
The
interpretive commentary on this section of Article 1
of the Constitution of the State of Texas, as published
by Vernon, provides a cogent and concise discussion
on what the right to keep and hear arms means in Texas.
The right of the people to bear
arms has been said to be a natural
right of the people, a right involving the latent pov/er of resistance
to tyrannical government. This right
seems to have been a badge of the
teutonic freeman, and closely associated with his political privileges.
Armed freemen made up the military
host of the tribe. In England, a
law known as the Assize of Arms enacted in:1181 required every freeman
to provide himself with a douhlet of
mail, iron skull-cap and lance. . . .
The right to leep and bear arms
was guaranteed in the Constitution of
the Republic of Texas in 1836, in part
as a result of this historical English
and United States background, but also
in consequence of the denial of the
right by the Mexican Government. The
Texas Declaration of Independence
complains: "It the Mexican Government has demanded us to deliver up
our arms, which are essential to our
defense—the rightful property of
freemen—and formidable only to tyrannical governments."
"Arms", as used in the provision,
certainly includes the arms used in
warfare or defense, i. e. those used
26
by a militiaman or a soldier. However, it has "been said that the
right to keep arms does not extend
to those employed in private broils
or affrays as distinguished from
arms used for the purposes of war.
See English v. State, 35 T. 473
(1871).
Nevertheless, in a later case,
the Supreme Court of Texas refused
to adopt the principle that the word
"arms" refers only to the arms of a
militiaman or soldier, being of the
opinion that such a construction
was too narrow. It declared: "The
arms which every person is secured
the right to keep and bear (in defense of himself or the state, subject to legislative regulation),
must be such arms as are commonly kept,
according to the customs of the people, and are appropriate for open
and manly use in self-defense, as
well as such as are proper for the
defense of the state. If this does
not include the double-barreled
shot gun, the huntsman's rifle, and
such pistols at least as are not
adapted to being carried concealed,
then the only arms which the great
mass of the people of the state
have, are not under constitutional
protection." State v. Duke, 42 T.
455 (1875).57
Another limitation on the Texas legislature is
the individual right to keep and bear arms in the U.S.
Constitution, since the Texas Constitution professes
to be in harmony and subordinate to the U.S. Constitution.
In Texas, the right to keep and bear arms is
a constitutionally fundamental right, preserving the
freedom, authority, and power of the people.
or* A
27
It has been the purpose of this paper to show
that the Second Amendment of the U.S. Constitution preserves the right of the individual American to own,
possess, and use firearms, and that the right of Texans
is additionally secured by Article 1 i 23 of the Constitution of the State of Texas.
Self-defense is the
primal right, even more fundamental than freedom of
speech, and defense of state is simply the development
of the concept of self-defense relative to the concept
of country.
Neither an individual, nor a country,
can effectuate defense of self or of state without
the means to oppose violence with violence.
The
right of the people to keep and bear arms is the most
fundamental right embodied in our constitutions.
261
NOTES
1
J. Peltason, Corwin & Peltason*s Understanding the
Constitution 144 (7th ed. 1976).
See:
Congressional Research Service, The Constitution
of the United States:
Analysis and Interpretation
1035-36.
2
Id.
5
Id-
4
United States v. Miller, 307 U.S. 174 at 179 (1939).
5
Illinois Bar Association, Your Bill of Rights 24.
7
W. Douglas, A Living Bill of Rights (1961).
8
Id. at 15.
9
E. DumbauId, The Bill of Rights 140-41 (1957).
10
W. Douglas. A Living Bill of Rights 45 (1961 ).
11
12
h!
Adams v. Williams, 407 U.S. 143 at 150 (1972).
13
Hardy, The Second Amendment as a Restraint on State
and Federal Firearm Restrictions, in Restricting
Handguns The Liberal Skeptics Speak Out 171 (1979)
14
[hereinafter cited as HardyJ.
id.
263
2
15
United States v. Miller, 307 U.S. 174 at 181 (1939).
16
C. Bakal, The Right To Bear Arms 299 (1966).
17
Id. at 305.
18
Id.
19
Hardy, supra note 13, at 174.
Of)
United States v. Cruikhank, 92 U.S. 542 at 553 (1876).
21
22
23
24
The Right to Bear Arms, supra note 16, at 299.
1 W. Blackstone, Commentaries*!40.
h!
3 W. Blackstone, Commentaries*4.
25 The Right to Bear Arms, supra note 16, at 299.
26
Caplan, Gun Control Jeopardizes All Our Constitutional
Rights, The American Rifleman 81 (Oct., 1979) (a publication of the National Rifle Association).
27
Emery, The Constitutional Right to Keep and Bear Arms,
28
Harv. L. Rev. 473 (1915).
28
An art for the better preservation of the game, and
for securing warrens not inclosed, and the several
fishings of this realm, 1651, 22&23 Car. 2, c. 25,
i 2.
(This lav/ granted the authority to confiscate
weapons of poachers.
Starving peasants who shot wild
9 .
3
animals on open land were considered poachers as the
game belonged to the crown).
29 Horn, The Guns of the Revolution, Shooter's Bible 1019 (1976) (a Stoeger Press publication).
50
E. DumbauId, The Bill of Rights and What It Means
51
Today 182 (1957).
Id. at 206.
32
The Right to Bear Arms, supra note 16, at 304.
33
Id. at 305.
34
35 Id. at 306.
This information was obtained by the author through
experiences in the U.S. Army, stationed in Vietnam
36
in 1971-72.
J. Peltason, Gorwin & Peltason's Understanding the
37
58
Constitution 144 (7th ed. 1974).
Hardy, supra note 13, at 172.
United States v. Cruikhank, 92 U.S. 542 (1876).
59
The Right to Bear Arms, supra note 16, at 298.
40
United States v. Cruikhank, 92 U.S. 542 at 553 (1876).
41
Presser v. Illinois, 116 U.S. 252 (1886).
42
Id. at 265.
265
4
44
Miller v. Texas, 153 U.S. 535 (1894).
45
Robertson v. Baldwin, 165 U.S. 275 (1897).
46
United States v. Miller, 307 U.S. 174 (1939).
47
I.R.C. §§ 5801-5872 (originally enacted as the National
Firearms Act ch. 757, 48 Stat. 1235 (1934)).
48
_
American Enterprise Institute for Public Policy Re49
search, Gun Control, No. 9, 3 (1976).
United States v. Miller, 307 U.S. 174 at 179 (1939).
50
Slaughter-House Cases, 83 U.S. 36 (1873).
51
Gun Control Act of 1968, Pub. L. 90-618, § 102, 82
Stat. 1213 (1968).
52
See:
55
Haynes v. United States, 390 U.S. 85 at 90-95 (1968).
H.R. 11193 (94th Congress, 1st session).
See also:
H.R. Rep. No. 1956, 90th Cong., 2d Sess.
35 (1969); S. Rep. No. 1501, 90th Cong., 2d Sess. 26,
42,48,52 (1969).
•54
^
9 W. Swindler, Sources and Documents of United States
55
Constitutions 249 (1979).
Id. at 296.
56
Tex. Const, art. 1, I 23.
2C6
1 Vernon's, Annotated Constitution of the State of
Texas 492-93