Our 2nd Amendment: The Original Perspective

Our 2nd Amendment: The Original Perspective

by David B. Kopel

"In America we may reasonably hope
that the people will never cease
to regard the right of keeping and bearing arms
as the surest pledge of their liberty."
--St. George Tucker

The grassroots volunteer strength of Second Amendment activists is the fundamental reason why the right to keep and bear arms is so much healthier in America than in other countries. The anti-gun lobbies know this, and one of their major objectives is to discourage you, the American gun owner, from working to defend your Constitutional rights.

For example, the gun-ban group formerly known as Handgun Control, Inc.'s web site contains materials written by HCI staff insisting that the idea that the Second Amendment guarantees a right of individual Americans to keep and bear arms is a "myth" and a "fraud" invented by the National Rifle Association. If you read this material and fell for it, you would likely become much less energetic in political work to defend the Second Amendment.

But in truth, HCI's claim that the individual's right to keep and bear arms is a "fraud", is itself a creative compilation of selective quotations, facts taken out of context, and omission of the large body of contrary evidence.

In Stalin's Soviet Union (one of the many countries where domestic disarmament paved the way for genocide), a person who fell out political favor became a "non-person." If you owned the Soviet encyclopedia, you would receive instructions from time to time ordering you to cut out an entry referring to somebody who had newly been declared an unperson. Excised from the encyclopedia, the "non-person" would never again be mentioned by the government, and any private person who even acknowledged that the "non-person" had ever existed would be risking a long stretch in the concentration camps.

HCI's campaign to persuade Americans that the Second Amendment has nothing to do with individual rights depends on turning many of the greatest American judges and legal scholars into non-persons. HCI simply pretends that these people never existed, because to acknowledge their existence would be to admit that it is HCI's description of the Second Amendment which is the "myth."

Consider, for example, St. George Tucker. He is a person whom you will regularly encounter in the many scholarly law review articles which agree that the Second Amendment guarantees a right of every American adult citizen to own and carry guns. But if all you knew was what you read from the anti-gun lobbies, St. George Tucker would be a non-person.

St. George Tucker, creator of an American edition of Blackstone's Commentaries, was appointed by President James Madison to Virginia's High Court of Appeals where he served as a jurist from 1804 until his death in 1827.

Tucker, the most important legal scholar of the early American republic, was just starting his legal career in Virginia when the American Revolution intervened. Tucker threw himself into the Patriots' cause enthusiastically, leading a gun-running operation in which his four small ships sent indigo to the West Indies and Bermuda in exchange for firearms.

After independence had been won, St. George Tucker became one of the most distinguished Virginia lawyers; he taught law at William and Mary from 1790 until 1804, when he was appointed a judge of Virginia's High Court of Appeals. Tucker was also the leading abolitionist in Virginia, calling an end to slavery his "dearest wish."

In 1790, St. George Tucker began work on a treatise, published in 1803, which became the greatest law book in America. Tucker's project was to create an American edition of Blackstone's Commentaries.

In 1760, the English lawyer Sir William Blackstone had written a four volume Commentaries on the Law of England. Blackstone's explication of every facet of English law (which of course, was also the law in America) became essential reading for every lawyer.

Tucker set out to create an American edition of Blackstone. Adding his own analysis to Blackstone's, Tucker aimed to create a legal guidebook specifically suited to American conditions.

In particular, Tucker demonstrated that the American law of the early 19th century provided far greater protection of civil liberty than did the English law that Blackstone had described in 1760.

For example, Blackstone had written that the liberty of the press meant that the government could not censor something before it was written; but after publication, the government could punish someone for having criticized the king. But Tucker's American edition of Blackstone explained that in America, thanks to the First Amendment, one could not be punished for criticizing the government.

19th Century Constitutional Law Treatises which Address the Second Amendment

All legal treatises or essays from the nineteenth century which discussed the Second Amendment treated it as an individual right. If two publication dates are listed for a book, the first date is the date of original publication, and the second date is for a modern reprint. Most of the books are available on the Internet through Amazon.com (http:/www.amazon.com) or can be special-ordered at a local bookstore. Many of the reprint editions are by Fred B. Rothman & Co., Littleton, Colorado.

St. George Tucker, Blackstone's Commentaries, with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and the Commonwealth of Virginia (1996) (1803). William Blackstone's Commentaries on the Laws of England was a major English treatise from the 1760s. Tucker's edition added substantial additional commentary, updating Blackstone to reflect the evolution of American law.

William Rawle, A View of the Constitution of the United States of America (1970, reprint of 2d ed. 1829).

Joseph Story, Commentaries on the Constitution (1833), available in full text on the Internet at http://www.constitution.org/js/js_000.htm.

Joseph Story, A Familiar Exposition of the Constitution of the United States (1840). Numerous modern reprints available.

Henry St. George Tucker, Commentaries on the Law of Virginia (1831). Henry St. George Tucker was a distinguished Virginia judge and law professor, and a distant relative of St. George Tucker (above).

Benjamin L. Oliver, The Rights of an American Citizen; with a Commentary on State Rights, and on the Constitution and Policy of the United States (1832).

James Bayard, A Brief Exposition of the Constitution of the United States 3-4 (1992, reprint of 2d ed., 1845).

Francis Lieber, On Civil Liberty and Self-Government (enlarged ed., 1859)

Lysander Spooner, The Unconstitutionality of Slavery (1845).

Lysander Spooner, A Defence of the Fugitive Slaves 27 (1850). Spooner's works are available in a variety of modern anthologies of his writing.

Joel Tiffany, Treatise on the Unconstitutionality of American Slavery (1849) Joel Tiffany, A Treatise on Government and Constitutional Law Being an Inquiry into the Source and Limitations of Governmental Authority according to the American Theory (1867).

C. Chauncey Burr, Notes on the Constitution of the United States (1861).

Timothy Farrar, Manual of the Constitution of the United States (1993)(1867).

George W. Paschal, The Constitution of the United States Defined and Carefully Annotated (1868).

Joel Prentiss Bishop, Commentaries on the Criminal Law (3d ed., 1865)

Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes (1873).

John Pomeroy, An Introduction to the Constitutional Law of the United States (1870).

Oliver Wendell Holmes , Jr., editor and author of additional commentary, for James Kent, Kent's Commentaries on American Law (Holmes edition, 1873, reprinted 1989) (1826, original Kent treatise)

Herbert Broom & Edward A. Hadley, editors and authors of additional commentary, for William Blackstone, Commentaries on the Laws of England (1875).

H. von Holst, The Constitutional Law of the United States of America (1988) (Alfred Bishop Mason translator, 1886).

John Innes Clark Hare, American Constitutional Law (1889).

John Ordronaux, Constitutional Legislation in the United States: Its Origin, and Application to the Relative Powers of Congress, and of State Legislatures (1891).

Samuel Freeman Miller, Lectures on the Constitution of the United States (1980) (1893).

Henry Campbell Black, Handbook on American Constitutional Law (1895).

George Boutwell, The Constitution of the United States at the End of the First Century (1987) (1895).

James Schouler, Constitutional Studies: State and Federal (1971) (1897).

William Draper Lewis, editor and author of additional commentary, for William Blackstone, Commentaries on the Laws of England (1897).

Charles E. Chadman, Constitutional Law, Federal and State: Being a Clear and Complete Analysis of the Constitution, Together with a Summary of the Leading Decisions and Basic Principles which Go to Make up the Fundamental Law of the State and Nation (1899).

John Randolph Tucker, The Constitution of the United States (1981) (1899).

Nearly two centuries later, in the landmark free speech New York Times v. Sullivan (1964), Supreme Court Justice Hugo Black observed that Tucker set forth "the general view held when the First Amendment was adopted and ever since."

Justice Black was not alone in his high esteem of St. George Tucker.

Tucker's American Blackstone (as the five-volume set became known) has been cited over forty times by the U.S. Supreme Court, from early times right up to the present.

From the 1803 publication of the American Blackstone until 1827, Tucker's treatise was the only treatise available on American law. Almost every new lawyer began his studies by reading Tucker's Blackstone, and some lawyers never read anything else.

Thus, anyone with a sincere interest in the original meaning of the American right to arms would want to know what the American Blackstone had to say.

Tucker's American Blackstone reprinted Blackstone's commentary on what Blackstone called the five "auxiliary rights of the subject." These were rights (such as the right to seek legal redress in court, and the right to petition) whose main purpose was to safeguard primary rights (personal liberty, personal security, and property). Blackstone had written:

"The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. st. 2 c. 2, and its indeed, a public allowance under due restrictions, of the natural rights of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."

Blackstone was explaining the 1689 English Bill of Rights, which provided: "That the Subjects which are Protestants may have Arms for their Defense suitable to their Conditions, and as allowed by Law."

Tucker added his own analysis in two footnotes:

"The right of the people to keep and bear arms shall not be infringed. Amendments to the C.U.S. Art. 4 and this without any qualification as to their condition or degree, as is the case in the British government."

In other words, the American right to arms (like the American right to freedom of the press) was broader than its British counterpart; the American right contained none of the limitations expressed in the British right. (Tucker cited what we today call "the Second Amendment" as "article 4" because the Bill of Rights, as originally proposed to states, contained two amendments which were not immediately ratified by the states, while the latter ten amendments were speedily ratified. Thus, the modern First Amendment was originally proposed as the third amendment.)

Tucker's other footnote explained: "Whoever examines the forest and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England. The commentator himself [Blackstone] informs us, Vol. II, p. 412, that the prevention of popular insurrections and resistance [sic] to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws.'"

Tucker's footnote thus quoted from another part of Blackstone, in which Blackstone had described the English game laws, with their restrictions on the ownership of hunting weapons, as having the covert intent of disarming the non-aristocratic population.

Later, in the discussion of the section of Blackstone criticizing the British game laws, Tucker added his own criticism of British practice, contrasting it with the robust right to arms in America:

" 'The bill of rights, 1 W. and M.' says Mr. Blackstone, (Vol. 1, p. 143) 'secures to the subjects of England the right of having arms for their defense, suitable to their condition and degree.' In the construction of these game laws it seems to be held, that no person who is not qualified according to law to kill game, hath any right to keep a gun in his house. Now, as no person, (except the game-keeper of a lord or lady of the manor) is admitted to be qualified to kill game, unless he has 100l. per annum, & c. it follows that no other can keep a gun for their defense; so that the whole nation are completely disarmed, and left at the mercy of the government, under the pretext of preserving the breed of hares and partridges, for the exclusive use of the independent country gentlemen. In America we may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty."

In fact, Tucker was wrong in his dire description of England; after the overthrow of James II in 1689, the game laws were no longer interpreted so as to disarm the common people. The law presumed that a commoner's gun was intended for self-defense (a right guaranteed by the 1689 Bill of Rights), unless the circumstances showed that the gun was used for unlawful hunting.

But the point here is not whether Tucker accurately understood English circumstances, but what Tucker's widely-read treatise shows about the state of American law. Tucker's remarks unambiguously described "the right of keeping and bearing arms as the surest pledge" of liberty. This is hardly consistent with HCI's assertion that the Second Amendment was never considered an important personal right.

From the 1803 publication of American Blackstone.
Until 1827, St. George Tucker's treatise was
the only treatise available on American law.

Tucker's American Blackstone contained several appendices, including a lengthy appendix analyzing the new American Constitution. This appendix was the first legal analysis of the new Constitution. The constitutional law Appendix was used as a legal textbook for many decades throughout the United States.

Although Tucker had addressed the Second Amendment in his footnotes to Blackstone, the Constitutional Appendix gave Tucker the opportunity for a fuller exposition of the Amendment:

"This may be considered as the true palladium of liberty.... The right of self defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms, is under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorize the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty."

The Second Amendment, as Tucker explained, was intended to protect the "right of self defense." So contrary to HCI's Second Amendment mythology, the Second Amendment is not only about the militia. (Although the promotion of a well-regulated militia to protect liberty from foreign and domestic threats certainly was one important part of the Second Amendment.)

And as Tucker observed, the right to arms also included the right to hunt game. Besides explicating the Second Amendment as an individual right essential for liberty, Tucker also argued that even without the Second Amendment, Congress could not disarm "any person," because disarmament could never be "Necessary and Proper." (The Constitution authorizes Congress to enact laws which are "Necessary and Proper" to the execution of powers granted to Congress, such as regulating interstate commerce, or creating a post office.):

"If, for example, congress were to pass a law prohibiting any person from bearing arms, as a means of preventing insurrections, the judicial courts, under the construction of the words necessary and proper, here contended for, would be able to pronounce decidedly upon the constitutionality of these means."

Tucker continued, using the example of congressional disarmament as an illustration for the necessity of judicial power to declare laws unconstitutional.

Suppose that the gun prohibition lobbies' claim were correct: the Second Amendment protected only state governments, not individuals. If so, it is indeed strange that not one of the architects of the Constitution offered any objection to St. George Tucker. Most of the framers of the Constitution, including Madison, were alive in 1803 and actively engaged in public affairs. Many were lawyers, and it would have been impossible for them to fail to notice the leading lawyer's book in the United States.

And it is also strange that HCI, which so vehemently insists that everyone except NRA dupes knows the Second Amendment was never intended to protect a personal right, never lets any of its followers know that HCI's theory of the Second Amendment is contradicted in every respect by the leading law book of early America. As Tucker demonstrates, the Second Amendment right is individual, not a state's right; it belongs to everyone, not just militia members; its purposes include collective defense against tyranny, individual defense against lone criminals, and hunting.

President James Madison, the author of the Second Amendment, made clear his own opinion of Tucker's legal scholarship. He appointed St. George Tucker to the federal court for Virginia, a post the great jurist held with distinction until his death in 1827.

For further reading: St. George Tucker, Blackstone's Commentaries, with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and the Commonwealth of Virginia (Union, N.J.: The Lawbook Exchange, 1996). Tucker's Blackstone can be found at some law libraries, and at some other libraries with strong history collections. The books were brought back into print in 1996 by a legal publisher, although the $450 price for the set puts them beyond the reach of most consumers.

This article first appeared in The American Guardian, July, 1998.

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