The Second Amendment and State Constitutions

by Clayton Cramer
This appeared as "State Constitutions and the Second Amendment", American Rifleman, February, 1992 Considerable attention has been given in the last several years to the original meaning of the Second Amendment; the assumption once commonly made in the academic community -- that the Second Amendment does not protect an individual right -- seems to be on the decline. Much of the recent scholarship recognizes the individual rights interpretation of the Second Amendment, but it seems that the state constitutions adopted during the early years of the Republic have been given insufficient attention in relation to this interpretation.

State Constitutions Adopted Before The Bill of Ri hts

ot surprisingly, many of the provisions contained in the !ill of Rights "ere present, in one form or another, in the state constitutions in effect at the time the Constitution "as ratified; various ancestors of the Second Amendment can be readily discerned in these documents. #he state constitutions adopted before the Constitution and !ill of Rights can help tell us "hat meaning $the right to %eep and bear arms$ had in the political vocabulary of the men "ho "rote, debated, and ratified these documents. &ennsylvania's ())* constitution declared+ $#hat the people have a right to bear arms for the defence of themselves and the state...$ ,(- .ermont's constitutions of ())) and ()/*

similarly proclaimed+ $#hat the people have a right to bear arms for the defence of themselves and the State...$ ,0South Carolina's ())* constitution, "hich combines elements of both the American 1eclaration of 2ndependence and a state charter, contains the telling claim+ ,3-ostilities having been commenced in the Massachusetts !ay, by the troops under command of 4eneral 4age, "hereby a number of peaceable, helpless, and unarmed people "ere "antonly robbed and murdered... #he colonists "ere therefore driven to the necessity of ta%ing up arms, to repel force by force, and to defend themselves and their properties against la"less invasions and depredations. ,5#his isn't a statement of a right to %eep and bear arms, but it certainly suggests that an individual being $unarmed$ "as undesirable, and $ta%ing up arms, to repel force by force$ "as considered an appropriate response. 2f, as some people claim, the Second Amendment reflected concerns about the enlarged po"ers of the central government, and "as intended to protect the $right$ ,6- of state governments to maintain military forces independent of the national government ,7- , "hy do &ennsylvania's and .ermont's state constitutions contain broad, e8plicitly individual guarantees of the right to %eep and bear arms9 #he evidence is clear that at least some of the ne"ly independent states sought to protect the right of their citizens to individual self-defense. At first glance, other state constitutions adopted during this period of time seem to support a $collectivist$ reading of the Second Amendment. Massachusetts's ()/:

Constitution asserts+ $#he people have a right to %eep and bear arms for the common defence.$ ,*- Similarly, the orth Carolina Constitution of ())* guarantees the people's $right to bear arms, for the defence of the State$. ,)#his may be an indication that a broad right to %eep and bear arms "as not intended, since it is hard to imagine "hy $for the common defence$ "ould be added to such an assertion, unless it "as intended to limit the breadth of that right. !ut before "e too ;uic%ly assume that $for the common defence$ "as intended to restrict or eliminate an individual right, it is important to remember that standing armies had been used by Crom"ell as an e8cuse to disarm the <nglish population, on the grounds that the militia "as no longer needed, once a standing army "as provided $for the common defence$. !y articulating $for the common defence$ as a reason for individual citizens to possess arms, the Massachusetts and orth Carolina constitutions may have intended to e8clude this e8cuse for disarming the people. #he clause, $for the common defence,$ had significant dissenters. orthampton, Massachusetts, re;uested a less restrictive "ording to this provision of the ()/: constitution+ $#he people have a right to %eep and bear arms as "ell for their o"n as the common defence.$ =illiamsburg, Massachusetts, made a similar ob>ection. ,/An additional interesting element of the Massachusetts Constitution is that ?ohn Adams drafted the $right to %eep and bear arms$ clause. 2n light of Adams' other "ritings on the sub>ect, it seems hard to imagine his intent "as to deny an individual right. 2n ()):, !ritish soldiers had opened fire on an unruly and threatening mob of colonials, in an incident commonly %no"n as the !oston Massacre. Adams "as the la"yer "ho defended

the soldiers at trial. Adams, citing 3a"%ins' &leas of the Cro"n, admitted that individuals had a right to be armed, but portrayed the colonial mob as e8ceeding the limits of the la" by arming themselves for offensive purposes. Adams argued+ 3ere every private person is authorized to arm himself, and on the strength of this authority, 2 do not deny the inhabitants had a right to arm themselves at that time, for their defense, not for offence, that distinction is material and must be attended to. ,@Adams "ould later argue $arms in the hands of citizens ,may- be used at individual discretion$. ,(:So "hat does $for their common defense$ mean9 1on Aates, the San Brancisco gun rights attorney asserts+ Although some early state constitutions guarantee a right to arms for $common defense,$ they are necessarily not guaranteeing a state's right nor are they differentiating individual self-defense against criminals from community defense by an organized military force. Rather, "hat they are e8pressing is the common la" concept that an individual serves the entire community "hen he %ills a felon "ho "as attac%ing him, but only serves his private interests Cand disserves those of the community generallyD "hen he %ills another citizen "ho has attac%ed him in the course of a private ;uarrel. #his concept is the source of the common la" distinction, "hich is so foreign to us, bet"een $>ustifiable$ homicide and $e8cusable$ or se defendendo homicide Ci.e., in the course of a private ;uarrelD. ,((-

Ef course, Aates is a partisan; he has an interest in ta%ing such a position. Can "e find evidence from non-partisan sources about the meaning $for the common defense$9 Fes. 2n the #ennessee State Supreme Court decision, State v. Simpson C(/55D, a laborer named Simpson "as charged "ith the crime of $affray$+ =illiam Simpson, laborer, on the first day of April,... (/55, "ith force and arms,... being arrayed in a "arli%e manner, then and there in a certain public street and high"ay situate, unla"fully, and to the great terror and disturbance of divers good citizens of the said state, then and there being, an affray did ma%e, in contempt of the la"s of the land, to the evil e8ample of all others in the li%e case offending, and against the peace and dignity of the state. ,(0Simpson "as convicted. En appeal, the #ennessee Supreme Court overturned the conviction, both on the basis that merely be armed in public "as not the crime of $affray$, but also, "ith respect to a statute of <d"ard 222 that prohibited the carrying of arms+ !ut suppose it to be assumed on any ground, that our ancestors adopted and brought over "ith them this <nglish statute, or portion of the common la", our constitution has completely abrogated it; it says, $that the freemen of this state have a right to %eep and to bear arms for their common defence.$ Article ((, sec. 0*. 2t is submitted, that this clause of our constitution fully meets and opposes the passage or clause in 3a"%ins, of $a man's arming himself "ith dangerous and unusual "eapons,$ as being an independent ground of affray, so as of itself to constitute the offence cognizable by indictment. !y this clause of the constitution, an e8press po"er is given and secured to all the free citizens of the state

to %eep and bear arms for their defence, "ithout any ;ualification "hatever as to their %ind or nature... ,(5Gess than forty years later, ?ustices elson H #unney of the #ennessee Supreme Court used a similar argument in their dissenting opinion, in Andre"s v. State C(/)(D ,(6- ; thus, this understanding of $common defense$ "as not uni;ue. #he orth Carolina Supreme Court has also ruled about the meaning of their constitution's $right to bear arms, for the defence of the State$ clause, in the decision State v. 3untly C(/65D. #he defendant "as convicted of+ riding or going armed "ith unusual and dangerous "eapons to the terror of the people... an offence at common la"... ,(73untly's actions "ould today ;ualify as $brandishing a firearm$ or even $assault "ith a deadly "eapon$. 3untly's attorney sought the protection of the orth Carolina constitutional protection of the right to bear arms. =hile the orth Carolina Supreme Court upheld his conviction, "hat is significant is that they did not argue that the right "as a $collective$ right+ =hile it secures to him a right of "hich he cannot be deprived, it holds forth the duty in e8ecution of "hich that right is to be e8ercised. 2f he employ those arms, "hich he ought to "ield for the safety and protection of his country, to the annoyance and terror and danger of its citizens, he deserves but the severer condemnation for the abuse of the high privilege, "ith "hich he has been invested. ,(*and+

it is to be remembered that the carrying of a gun per se constitutes no offence. Bor any la"ful purpose -- either of business or amusement -- the citizen is at perfect liberty to carry his gun. 2t is the "ic%ed purpose -- and the mischievous result -- "hich essentially constitute the crime. 3e shall not carry about this or any other "eapon of death to terrify and alarm, and in such manner as naturally "ill terrify and alarm, a peaceful people. ,()e" For%'s ())) State Constitution is an interesting case. 2t contains no guarantee of an individual right to %eep and bear arms -- but contains an interesting obligation+ And "hereas it is of the utmost importance to the safety of every State that it should al"ays be in a condition of defence; and it is the duty of every man "ho en>oys the protection of society to be prepared and "illing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as "ell in peace as in "ar, shall be armed and disciplined, and in readiness for service... And that a proper magazine of "arli%e stores, proportionate to the number of inhabitants, be, forever hereafter, at the e8pense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State. ,(/#he $duty of every man$ included personal defense of the State; even conscientious ob>ectors "ere obligated to pay for a substitute for their militia duties. #he $militia of this State, at all times hereafter,... shall be armed and disciplined, and in readiness for service...$ strongly suggests that e" For% intended a citizen's militia along the lines of

the S"iss model. 2n light of the definition of $militia$ provided for us by 4eorge Mason at the .irginia ratifying convention+ Mr. 4<ER4< MASE . Mr. Chairman, a "orthy member has as%ed "ho are the militia, if they be not the people of this country, and if "e are not protected from the fate of the 4ermans, &russians, Hc., by our representation9 2 as%, =ho are the militia9 #hey consist no" of the "hole people, e8cept a fe" public officers... Inder the present government, all ran%s of people are sub>ect to militia duty. Inder such a full and e;ual representation as ours, there can be no ignominious punishment inflicted. ,(@and similar sentiments e8pressed by Richard 3enry Gee ,0:- , ?ames Madison ,0(- , oah =ebster ,00- , and #ench Co8e ,05- , it "ould appear that, in the "ords of &atric% 3enry, $#he great ob>ect is, that every man be armed... <very one "ho is able may have a gun.$ ,062s this a right, or an obligation, to %eep and bear arms9 2f the Second Amendment derives from such an obligation, the $collectivist$ claim that no individual right "as intended, has some superficial appeal. =hile every man "ould be armed under such a system, e8cept for the $religiously scrupulous$, the arms "ould be for the purpose of collective defense. A broad individual right might e8ist independent of this clause -- but some evidence "ould be re;uired to prove it. #he state constitutions from this period are divided+ those of &ennsylvania, .ermont, and orth Carolina are clearly protective of an individual right; Massachusetts' constitutional protection, based on the #ennessee and orth Carolina Supreme Court decisions

discussed above, appears to be an individual right, as "ell as a protection against standing armies; only e" For%'s constitutional provision might be considered support for the $collectivist$ interpretation -- and its language is not even some"hat similar to the Second Amendment.

State Constitutions After Ratification

2n the same "ay that state constitutions adopted before the !ill of Rights can tell us something about the ancestry of the Second Amendment, the state constitutions containing a $right to %eep and bear arms$ clause adopted after the !ill of Rights can tell us something about the meaning commonly ascribed to the Second Amendment after its passage. #here is no shortage of such clauses to consider; the ;uestion is ho" long the adoption of constitutions "ith $right to %eep and bear arms$ clauses remains relevant to the issue of original intent. 2 have chosen, rather arbitrarily, to e8amine those constitutions adopted before (/67. Enly a fe" adults alive at the time the !ill of Rights "as ratified "ould have lived past this date. 2n this formative period of American history C()/@-(/67D, there are a total of fifteen constitutions, adopted by nine states, one territory, and one independent nation Cthe Republic of #e8asD ,07- that contain a $right to bear arms in defense of himself and the State$ ,0*- , or some slight variant. !ecause these provisions specify $in defense of himself$, it is unambiguous that the right protected in each case is individual. #hese must

be considered as evidence for the individualist school, since the language used is similar to, and doubtless borro"ed from, the Second Amendment. !y comparison, there are only three constitutions in this period that specify $for the common defence$ or $for their common defence$+ the Maine State Constitution of (/(@, and the #ennessee State Constitutions of ()@* and (/56. !ut as "e have already seen in Simpson v. State C(/55D, and Andre"s v. State C(/)(D, the #ennessee Supreme Court unambiguously recognized that an individual right to bear arms for self-defense "as protected, even in the presence of the ;ualifier, $for their common defense$. #ennessee's $right to %eep and bear arms$ provision is notable for another reason. #he ()@* and (/56 constitutions contain the same language, "ith one minor difference. #hat minor change may tell us something interesting about the origins of gun control. 2n article J2, the ()@* #ennessee state constitution says+ Sec. 0*. #hat the freemen of this State have a right to %eep and to bear arms for their common defence. ,0)2n article 2 of the (/56 constitution+ Sec. 0*. #hat the free "hite men of this State have a right to %eep and to bear arms for their common defence. ,0/2t "ould appear that by (/56, #ennessee's constitution-ma%ers felt it necessary to racially restrict the right of %eeping and bearing arms. at #urner's rebellion, in August, (/5( ,0@- , had provo%ed great fear in the South+

1espite the fact that after (/5( no more slave insurrections "ere seen in the South, it "as precisely then that the South became most victimized by its o"n fears, being $rac%ed at intervals,$ as Clement <aston "rites, $by dar% rumors and imagined plots.$ #hese periodic upheavals over suspected revolts -- characterized by furious vigilante hunts and "ild confusion, all based on mirage -- constitute one of the more bizarre chapters in Southern history. 2ndeed, the very absence of slave uprisings all during this period, and thus their very imaginary character, may have been the real %ey to their frightfulness. ,5:and+ Inder the antebellum color-caste system, the status of free egroes in #ennessee steadily deteriorated. #he state legislature, in (/5(, barred the immigration of free blac%s into the state... #he constitutional convention of (/56 produced a further restriction by "ithdra"ing the legal right to vote "hich free blac%s previously had held in #ennessee. ,5(=hile not surprising -- racism has fre;uently been at the root of $gun control$ la"s -- it does suggest that the right protected "as individual. 2f this clause had only protected a $collective right$ of the state militia, the same result Cdisarming free blac%sD, could have achieved by simply refusing to allo" free blac%s into the state militia. 2ndeed, in the period before the Civil =ar+ $Enly orth Carolina permitted free blac%s to bear arms in the ran%s of its militia...$ ,50- 2f $for their common defence$ did not provide a sufficient basis for disarming individual free blac%s, it suggests that individual o"nership and carriage of arms "as not dependent on being in militia service.

#here are some e8ceptional state constitutions that are not clearly in either camp. #he Rhode 2sland State Constitution of (/60 uses the second clause of the Second Amendment by itself+ $#he right of the people to %eep and bear arms shall not be infringed.$ ,55- Since Rhode 2sland's constitution also guarantees $#he right of the people to be secure in their persons, papers and possessions against unreasonable searches and seizures$ and $#he people shall continue to en>oy and freely e8ercise all the rights of fishery, and the privileges of the shore$, it is difficult to imagine $the people$ referring only to a $collective right.$ 1oes the use of $the people$ indicate that such rights applied only to such collective entities as a militia, or does it indicate the plural of $persons$9 Almost certainly, it meant $all individuals$, since section 0( restricts the $right in a peaceable manner to assemble for their common good, and to apply to those invested "ith the po"ers of government, for redress of grievances$ to $citizens$. ,56- #he framers of the Rhode 2sland constitution clearly made a distinction bet"een $people$ and $citizens$, "ith $people$ referring to individual rights shared by all; to assert that $the people$ refers only to a collective right stretches one's credulity. #he e" For% State Constitution of (/0( carries over the language of the ())) constitution, "hich provides some evidence to >ustify the argument that the purpose of the $"ell regulated militia$ clause "as for a collective defense. 2n comparison "ith the state constitutions adopted before the Second Amendment, the constitutions adopted after it heavily support the individual rights position. Bifteen of the t"enty constitutions adopted after the Constitution unambiguously protect an individual right; Rhode 2sland's constitution appears to protect an individual right; and of the

remaining four, t"o are #ennessee's state constitutions, "hich #ennessee Supreme Court decisions and historical evidence clearly sho" "ere recognized as protecting an individual right.

The !"idence #f State Constitutions $s %ostly #n #ur Side

1etermining "hat is truth in history consists of marshalling evidence, both for and against a proposition. Gi%e many ;uestions in history, there is evidence "ith respect to the Second Amendment that could be misinterpreted as evidence against the individual rights position; but the evidence on our side is over"helming. #he state constitutions are, of course, not the only evidence for the meaning of the Second Amendment, or the strongest evidence -- but they are one more confirmation that $the right of the people to %eep and bear arms$ "as intended to protect an individual right.

Clayton <. Cramer is a soft"are engineer "ith a telecommunications manufacturer in orthern California. 3is first boo%, !y #he 1im And Blaring Gamps+ #he Civil =ar 1iary of Samuel Mc2lvaine, "as published by Gibrary Research Associates in (@@:. Mr. Cramer is currently "riting a boo% on the original intent and >udicial history of Second Amendment.

(. Brancis e"ton #horpe, ed., #he Bederal and State Constitutions, Colonial Charters, and Ether Erganic Ga"s of the States, #erritories, and Colonies, C=ashington, 4overnment &rinting Effice+ (@:@D, 7+5:/5. 0. #horpe, *+5)6(, *+5)75-5)76. 5. #horpe, *+5060. 6. Some "ould argue that a government having $rights$ is a notion that the Bramers "ould find peculiar, since governments are mere creations of individuals, "ho alone have rights. See Borrest Mc1onald, ovus Erdo Seclorum, CGa"rence, AS, Iniversity &ress of Aansas+ (@/7D, *:-**, for a survey of the ideas of ?ohn Goc%e, and their influence on the formation of the American government.

7. 1avid ?. Steinberg, $Ether .ie"s of the Second Amendment$, in #he Right #o Aeep And !ear Arms, @)th Congress, 0d session C(@/0D; C=ashington, 4overnment &rinting Effice+ (@/0D, 07. *. #horpe, 5+(/@0. ). #horpe, 7+0)//. /. Stephen &. 3albroo%, #hat <very Man !e Armed, CEa%land, CA, #he 2ndependent 2nstitute+ (@/6D, *6-*7. @. G. Ainvin =roth and 3iller !. Kobel, ed., Gegal &apers of ?ohn Adams, CCambridge, MA, 3arvard Iniversity &ress+ (@*7D, 5+06/. (:. 3albroo%, *7. ((. 1on !. Aates, ?r., $#he Second Amendment+ A 1ialogue$, in Ga" and Contemporary &roblems, 6@+( ,=inter (@/*-, (6), note 06. (0. Simpson v. State, 7 Ferg. C#enn.D 57* C(/55D, 57*, 57) C(/55D. (5. Simpson v. State, 7 Ferg. C#enn.D 57*, 57@, 5*: C(/55D. (6. Andre"s v. State, 5 3eis%ell (*7, (@5, (@6 C(/)(D. (7. State v. 3untly, 5 2redell 6(/ C(/65D. #his case has been fre;uently miscited as State v. 3untley -- though perhaps because the name is spelled both "ays in the decision. (*. State v. 3untly, 5 2redell 6(/, 600 C(/65D. (). State v. 3untly, 5 2redell 6(/, 600, 605 C(/65D. (/. #horpe, 7+0*5). (@. ?onathan <lliot, #he 1ebates of the Several State Conventions on the Adoption of the Bederal Constitution, C e" For%, !urt Bran%lin+ (///D, 5+607-60*. 0:. oah =ebster, An <8amination into the Geading &rinciples of the Bederal Constitution, 60-65, in &aul Bord, ed., &amphlets En #he Constitution of the Inited States, C!roo%lyn, F+ (///D, 77- 7*. 0(. ?acob <. Coo%e, ed., #he Bederalist, CMiddleto"n, C#, =esleyan Iniversity &ress+ (@*(D, 50:-50(. 00. oah =ebster, An <8amination into the Geading &rinciples of the Bederal Constitution, 60-65, in Bord, 77-7*.

05. #ench Co8e, &ennsylvania 4azette, 0: Beb. ()//, in 0 1ocumentary 3istory of the Ratification of the Constitution CMfm. Supp.D at ())/-()/:, ;uoted in 3albroo%, */. 06. <lliot, 5+5/*. 07. State Constitutions+ Connecticut C(/(/D, 2ndiana C(/(*D, Aentuc%y C()@0 H ()@@D, Michigan C(/57D, Missouri C(/0:D, Mississippi C(/()D, Ehio C(/:0D, &ennsylvania C()@:D, #e8as C(/67D, .ermont C()@5D. Also, see the Republic of #e8as C(/5/D. Although a foreign country, the Republic of #e8as "as settled and controlled by Americans, "ho "rote a constitution e8pressing sentiments similar to the I.S. Constitution. 0*. #horpe, 0+(:7@. 0). #horpe, *+5606. 0/. #horpe, *+560/. 0@. Stanley M. <l%ins, Slavery, CChicago, Iniversity of Chicago &ress+ (@*/D, 0:@. 5:. <l%ins, 00:. 5(. ?oseph 3. Cart"right, #he #riumph of ?im Cro", CAno8ville, # , Iniversity of #ennessee &ress+ (@)*D, 6. 50. !ernard C. alty, Strength Bor #he Bight+ A 3istory of !lac% Americans in the Military, C e" For%, Macmillian+ (@/@D, 0:. 55. #horpe, *+5006. 56. #horpe, *+5006.