8. The NRA and any number of gun enthusiasts argue
the Second Amendment protects the right to have a gun
for “self-defense.” See e.g., Brief for the NRA Supporting
Respondent, Heller, 128 S. Ct. 2783 (2008) (No. 07-
290). For an analysis of the self-defense right and
firearms under international law, see David B. Kopel,
Paul Gallant & Joanne D. Eisen, The Human Right of
22 B. Y.U. J. PUB. L. 43 (2007).
9. Cornell & DiDino at 499 (“Another anachronism in
contemporary Second Amendment scholarship is the tendency to read modern notions of self-defense into the
Founding Era. The linkage between firearms and self-defense in the Founding Era and the early Republic was
much more tenuous.”) (citing Don B. Kates, Jr., The
Second Amendment and the Ideology of Self-Protection,
9 CONST. COMMENT. 87 (1992) and Nelson Lund, The
Second Amendment, Political Liberty, and the Right to
39 ALA. L. REV. 103 (1987)). See also
Kozuskanich at 424–25 (“The surviving print material
from the Revolution reveals that the American colonists
were not concerned about arming themselves for personal
self-defense; they were preoccupied with mobilizing
communities so that they could defend themselves.”)
On the “right of revolution” theme in connection with
the Second Amendment and the ultimate futility of relying
on the gun for security from crime see David C. Williams,
Civic Constitutionalism, The Second Amendment, and the
Right of Revolution,
79 IND. L. J. 379 (2004).
Amendment’s reservation of “retained” rights.
10 This would encompass
a fundamental natural right of self-protection that predates the
Constitution and the Second Amendment.
Even a man well schooled in loading and firing a flintlock would need
some time to prepare his gun—by then his home would have been burglarized with his wife and daughter ravaged!
12 Far more expedient was a
club or sword.
13 In fact, firearms accounted for only a small percentage
of homicides before the Civil War, which demonstrates the general
impracticality of using the guns of that time for individual defense.
Though history does not readily support the modern argument that
the Second Amendment provides an individual right to self-defense,
it does show that the framers intended the Second Amendment to be
part of the protection against tyranny.
15 They knew all too well the history of the Stuart monarchs. They also knew the role guns played in
starting the Revolution.
Again, however, this leads to the same debate as to whether the protection against tyranny was an individual or a collective one. Madison’s
FEDERALIST No. 46 extols the virtues of the militia as the protection
against a national tyrant using the army.
17 This would indicate a collective reading of the Second Amendment. But the fact was that militias
were usually made up of individuals with individual guns, which would
10. For example, in United States v. Lopez, 514 U.S. 549
(1995), the Supreme Court held that while Congress has
broad lawmaking authority under the Commerce Clause, it
is not unlimited, and does not apply to carrying handguns.
17. Although both sides of the gun debate selectively quote
from Associate Justice Joseph Story’s COMMENTARIES ON THE
U.S. CONSTITUTION (5th ed., Melville M. Bigelow 1891) (1833)
describing the Second Amendment, his reasoning appears very
much to echo Madison’s FEDERALIST No. 46 arguments:
The importance of this article will scarcely be doubted by
any persons, who have duly reflected upon the subject. The
militia is the natural defence of a free country against sudden
foreign invasions, domestic insurrections, and domestic
usurpations of power by rulers. It is against sound policy for a
free people to keep up large military establishments and stand-
ing armies in time of peace, both from the enormous expenses,
with which they are attended, and the facile means, which they
afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of
the people. The right of the citizens to keep and bear arms has justly been considered, as the palla-
dium of the liberties of a republic; since it offers a strong moral check against the usurpation and
arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable
the people to resist and triumph over them. And yet, though this truth would seem so clear, and the
importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among
the American people there is a growing indifference to any system of militia discipline, and a strong
disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep
the people duly armed without some organization, it is difficult to see. There is certainly no small
danger, that indifference may lead to disgust, and disgust to contempt; and thus
gradually undermine all the protection intended by this clause of our national bill of
Justice Story also described the Second Amendment’s original meaning as a
response to moderate Anti-Federalists who feared federal control over the militia:
It is difficult fully to comprehend the influence of such objections, urged with
much apparent sincerity and earnestness at such an eventful period. The answers
then given seem to have been, in their structure and reasoning, satisfactory and conclusive. But the amendments proposed to the constitution (some of which have been
since adopted) show that the objections were extensively felt and sedulously cherished. The power of Congress over the militia (it was urged) was limited, and concurrent with that of the states. The right of governing them was confined to the single
case of their being in the actual service of the United States, in some of the cases
pointed out in the Constitution. It was then, and then only, that they could be subjected by the general government to martial law. If Congress did not choose to arm,
organize, or discipline the militia, there would be an inherent right in the states to do
it. All that the Constitution intended, was, to give a power to Congress to ensure uniformity, and thereby efficiency. But if Congress refused, or neglected to perform the
duty, the States had a perfect concurrent right, and might act upon it to the utmost
extent of sovereignty. As little pretence was there to say, that Congress possessed
the exclusive power to suppress insurrections and repel invasions. Their power was
merely competent to reach these objects; but did not, and could not, in regard to the
militia, supersede the ordinary rights of the States. It was, indeed, made a duty of
Congress to provide for such cases; but this did not exclude the co-operation of the
Regarding Justice Joseph Story and the Second Amendment, see TUSHNET at
20–22; Henigan at 119–20 (noting that the individual rights proponents usually fail
to fully quote Justice Story).
Cramer & Olson at 719–20 argue that “[a]s a
practical matter, the often decisive first shot [of an
18th-Century pistol] can be discharged in virtually
equal time [as a modern pistol].” Even if they are
correct, Cramer & Olson do not account for loading
time—a modern clip takes seconds at most!
A clip stores multiple rounds of ammunition
together as a unit, ready to fit into the gun’s magazine. A magazine is
anywhere ammunition is stored, such as on a ship or inside the gun itself.
Also, because magazines may be integral to the firearm (fixed) or removable (detachable), the clip and magazine are often confused for each other.
11. Thematically this is still one of the arguments about guns.
12. Loading a Muzzleloader
1. Measure powder charge.
2. Pour measured powder down barrel.
3. Place patch and ball on muzzle.
4. Tap ball into barrel with starter.
5. Take out ramrod.
6. Ram ball down barrel.
7. Be sure ball is completely seated.
8. Clear vent hole with pick if necessary.
9. On flintlock muzzleloader, pour powder into pan
and close frizzen.
10. On percussion lock muzzleloader, place cap on nipple.
From The South Carolina Hunter Safety Course,
www.hunter-ed.com/sc/course/index.htm (under Unit
Five follow “Basic Muzzleloader Safety and Skills”
link) (last visited Jan. 18, 2015).
13. Interesting to note, Blackstone demonstrated the law of self-defense with the example of a sword, not a firearm: “The law says,
if a man attack you by a sword, you have no right to kill him, till you
have made every attempt to escape.” Quoted in Kozuskanich at 445.
15. Noah Webster, a leading Federalist, wrote that tyranny is the exercise of some power over a man, which is not warranted by law, or necessary for the public safety. Before a standing army can rule, the people
must be disarmed; as they are in almost every kingdom in Europe.
Also, John Adams argued that arms in the hands of citizens
allow them to defend themselves at their discretion. LEVY at 143. As
Henry Neville, an enlightenment political thinker influential with the
American founding generation, wrote, “democracy is much more
powerful than aristocracy, because the latter cannot arm the people
for fear they could seize upon the government.” Quoted in Field &
Hardy at 408. See also generally Williams.
14. Cornell & DiDino at 499 (citing ERIC H. MONKKONEN, MURDER IN NEW
32 (2001)). See also Cramer & Olson at 699 for an in-depth
discussion of gun regulation and the contemporary definitions of
“pistols” and “firearms” in colonial America and the early republic.
16. Levison at 657: (“[A]
state facing a totally disarmed population is in a far better position, for good or for
ill, to suppress popular demonstrations and uprisings than
one that must calculate the possibilities of its soldiers and
officials being injured or killed.”).
The NRA made a compelling case about the citizen’s
right to bear arms with its ad campaign featuring this photo
from Tiananmen Square. Tiananmen Square, China, June 1989
9519mm pistol magazine
M1 rifle clip