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The Second Amendment & State Constitutions

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 Rights

Not surprisingly, many of the provisions contained in the Bill of Rights were present, in one form or another, in the state constitutions in effect at the time the Constitution was ratified; various ancestors of the Second Amendment can be readily discerned in these documents. The state constitutions adopted before the Constitution and Bill of Rights can help tell us what meaning "the right to keep and bear arms" had in the political vocabulary of the men who wrote, debated, and ratified these documents.

Pennsylvania's 1776 constitution declared: "That the people have a right to bear arms for the defence of themselves and the state..." [ Francis Newton Thorpe, ed., The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies , (Washington, Government Printing Office: 1909), 5:3083.] Vermont's constitutions of 1777 and 1786 similarly proclaimed: "That the people have a right to bear arms for the defence of themselves and the State..." [ Thorpe, 6:3741, 6:3753-3754.]

South Carolina's 1776 constitution, which combines elements of both the American Declaration of Independence and a state charter, contains the telling claim:

[H]ostilities having been commenced in the Massachusetts Bay, by the troops under command of General Gage, whereby a number of peaceable, helpless, and unarmed people were wantonly robbed and murdered... The colonists were therefore driven to the necessity of taking up arms, to repel force by force, and to defend themselves and their properties against lawless invasions and depredations. [ Thorpe, 6:3242.]
This isn't a statement of a right to keep and bear arms, but it certainly suggests that an individual being "unarmed" was undesirable, and "taking up arms, to repel force by force" was considered an appropriate response.

If, as some people claim, the Second Amendment reflected concerns about the enlarged powers of the central government, and was intended to protect the "right" [ Some would argue that a government having "rights" is a notion that the Framers would find peculiar, since governments are mere creations of individuals, who alone have rights. See Forrest McDonald, Novus Ordo Seclorum , (Lawrence, KS, University Press of Kansas: 1985), 60-66, for a survey of the ideas of John Locke, and their influence on the formation of the American government.] of state governments to maintain military forces independent of the national government [ David J. Steinberg, "Other Views of the Second Amendment", in The Right To Keep And Bear Arms , 97th Congress, 2d session (1982); (Washington, Government Printing Office: 1982), 25.] , why do Pennsylvania's and Vermont's state constitutions contain broad, explicitly individual guarantees of the right to keep and bear arms? The evidence is clear that at least some of the newly 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 1780 Constitution asserts: "The people have a right to keep and bear arms for the common defence." [ Thorpe, 3:1892.] Similarly, the North Carolina Constitution of 1776 guarantees the people's "right to bear arms, for the defence of the State". [ Thorpe, 5:2788.]

This may be an indication that a broad right to keep and bear arms was not intended, since it is hard to imagine why "for the common defence" would be added to such an assertion, unless it was intended to limit the breadth of that right. But before we too quickly assume that "for the common defence" was intended to restrict or eliminate an individual right, it is important to remember that standing armies had been used by Cromwell as an excuse to disarm the English population, on the grounds that the militia was no longer needed, once a standing army was provided "for the common defence". By articulating "for the common defence" as a reason for individual citizens to possess arms, the Massachusetts and North Carolina constitutions may have intended to exclude this excuse for disarming the people.

The clause, "for the common defence," had significant dissenters. Northampton, Massachusetts, requested a less restrictive wording to this provision of the 1780 constitution: "The people have a right to keep and bear arms as well for their own as the common defence." Williamsburg, Massachusetts, made a similar objection. [ Stephen P. Halbrook, That Every Man Be Armed , (Oakland, CA, The Independent Institute: 1984), 64-65.]

An additional interesting element of the Massachusetts Constitution is that John Adams drafted the "right to keep and bear arms" clause. In light of Adams' other writings on the subject, it seems hard to imagine his intent was to deny an individual right. In 1770, British soldiers had opened fire on an unruly and threatening mob of colonials, in an incident commonly known as the Boston Massacre. Adams was the lawyer who defended the soldiers at trial. Adams, citing Hawkins' Pleas of the Crown, admitted that individuals had a right to be armed, but portrayed the colonial mob as exceeding the limits of the law by arming themselves for offensive purposes. Adams argued:

Here every private person is authorized to arm himself, and on the strength of this authority, I 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. [ L. Kinvin Wroth and Hiller B. Zobel, ed., Legal Papers of John Adams , (Cambridge, MA, Harvard University Press: 1965), 3:248.]
Adams would later argue "arms in the hands of citizens [may] be used at individual discretion". [ Halbrook, 65.]

So what does "for their common defense" mean? Don Kates, the San Francisco 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, what they are expressing is the common law concept that an individual serves the entire community when he kills a felon who was attacking him, but only serves his private interests (and disserves those of the community generally) when he kills another citizen who has attacked him in the course of a private quarrel. This concept is the source of the common law distinction, which is so foreign to us, between "justifiable" homicide and "excusable" or se defendendo homicide (i.e., in the course of a private quarrel). [ Don B. Kates, Jr., "The Second Amendment: A Dialogue", in Law and Contemporary Problems , 49:1 [Winter 1986], 147, note 24.]
Of course, Kates is a partisan; he has an interest in taking such a position. Can we find evidence from non-partisan sources about the meaning "for the common defense"? Yes. In the Tennessee State Supreme Court decision, State v. Simpson (1833), a laborer named Simpson was charged with the crime of "affray":
William Simpson, laborer, on the first day of April,... 1833, with force and arms,... being arrayed in a warlike manner, then and there in a certain public street and highway situate, unlawfully, and to the great terror and disturbance of divers good citizens of the said state, then and there being, an affray did make, in contempt of the laws of the land, to the evil example of all others in the like case offending, and against the peace and dignity of the state. [ Simpson v. State , 5 Yerg. (Tenn.) 356 (1833), 356, 357 (1833).]
Simpson was convicted. On appeal, the Tennessee Supreme Court overturned the conviction, both on the basis that merely be armed in public was not the crime of "affray", but also, with respect to a statute of Edward III that prohibited the carrying of arms:
But suppose it to be assumed on any ground, that our ancestors adopted and brought over with them this English statute, or portion of the common law, our constitution has completely abrogated it; it says, "that the freemen of this state have a right to keep and to bear arms for their common defence." Article 11, sec. 26. It is submitted, that this clause of our constitution fully meets and opposes the passage or clause in Hawkins, of "a man's arming himself with dangerous and unusual weapons," as being an independent ground of affray, so as of itself to constitute the offence cognizable by indictment. By this clause of the constitution, an express power is given and secured to all the free citizens of the state to keep and bear arms for their defence, without any qualification whatever as to their kind or nature... [ Simpson v. State , 5 Yerg. (Tenn.) 356, 359, 360 (1833).] [emphasis added]
Less than forty years later, Justices Nelson & Tunney of the Tennessee Supreme Court used a similar argument in their dissenting opinion, in Andrews v. State (1871) [ Andrews v. State , 3 Heiskell 165, 193, 194 (1871).] ; thus, this understanding of "common defense" was not unique.

The North 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. Huntly (1843). The defendant was convicted of:

riding or going armed with unusual and dangerous weapons to the terror of the people... an offence at common law... [ State v. Huntly , 3 Iredell 418 (1843). This case has been frequently miscited as State v. Huntley -- though perhaps because the name is spelled both ways in the decision.]
Huntly's actions would today qualify as "brandishing a firearm" or even "assault with a deadly weapon". Huntly's attorney sought the protection of the North Carolina constitutional protection of the right to bear arms. While the North Carolina Supreme Court upheld his conviction, what is significant is that they did not argue that the right was a "collective" right:
While it secures to him a right of which he cannot be deprived, it holds forth the duty in execution of which that right is to be exercised. If he employ those arms, which he ought to wield 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, with which he has been invested. [ State v. Huntly , 3 Iredell 418, 422 (1843).]
it is to be remembered that the carrying of a gun per se constitutes no offence. For any lawful purpose -- either of business or amusement -- the citizen is at perfect liberty to carry his gun. It is the wicked purpose -- and the mischievous result -- which essentially constitute the crime. He shall not carry about this or any other weapon of death to terrify and alarm, and in such manner as naturally will terrify and alarm, a peaceful people. [ State v. Huntly , 3 Iredell 418, 422, 423 (1843).] [emphasis added]
New York's 1777 State Constitution is an interesting case. It contains no guarantee of an individual right to keep and bear arms -- but contains an interesting obligation:
And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing 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 well in peace as in war, shall be armed and disciplined, and in readiness for service...
And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State. [ Thorpe, 5:2637.]
The "duty of every man" included personal defense of the State; even conscientious objectors were obligated to pay for a substitute for their militia duties. The "militia of this State, at all times hereafter,... shall be armed and disciplined, and in readiness for service..." strongly suggests that New York intended a citizen's militia along the lines of the Swiss model. In light of the definition of "militia" provided for us by George Mason at the Virginia ratifying convention:
Mr. GEORGE MASON. Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not protected from the fate of the Germans, Prussians, &c., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers... Under the present government, all ranks of people are subject to militia duty. Under such a full and equal representation as ours, there can be no ignominious punishment inflicted. [ Jonathan Elliot, The Debates of the Several State Conventions on the Adoption of the Federal Constitution , (New York, Burt Franklin: 1888), 3:425-426.]
and similar sentiments expressed by Richard Henry Lee [ Noah Webster, An Examination into the Leading Principles of the Federal Constitution , 42-43, in Paul Ford, ed., Pamphlets On The Constitution of the United States, (Brooklyn, NY: 1888), 55-56.] , James Madison [ Jacob E. Cooke, ed., The Federalist , (Middletown, CT, Wesleyan University Press: 1961), 320-321.] , Noah Webster [ Noah Webster, An Examination into the Leading Principles of the Federal Constitution , 42-43, in Ford, 55-56.] , and Tench Coxe [ Tench Coxe, Pennsylvania Gazette , 20 Feb. 1788, in 2 Documentary History of the Ratification of the Constitution (Mfm. Supp.) at 1778-1780, quoted in Halbrook, 68.] , it would appear that, in the words of Patrick Henry, "The great object is, that every man be armed... Every one who is able may have a gun." [ Elliot, 3:386.]

Is this a right, or an obligation, to keep and bear arms? If the Second Amendment derives from such an obligation, the "collectivist" claim that no individual right was intended, has some superficial appeal. While every man would be armed under such a system, except for the "religiously scrupulous", the arms would be for the purpose of collective defense. A broad individual right might exist independent of this clause -- but some evidence would be required to prove it.

The state constitutions from this period are divided: those of Pennsylvania, Vermont, and North Carolina are clearly protective of an individual right; Massachusetts' constitutional protection, based on the Tennessee and North Carolina Supreme Court decisions discussed above, appears to be an individual right, as well as a protection against standing armies; only New York's constitutional provision might be considered support for the "collectivist" interpretation -- and its language is not even somewhat similar to the Second Amendment.

State Constitutions After Ratification

In the same way that state constitutions adopted before the Bill of Rights can tell us something about the ancestry of the Second Amendment, the state constitutions containing a "right to keep and bear arms" clause adopted after the Bill of Rights can tell us something about the meaning commonly ascribed to the Second Amendment after its passage.

There is no shortage of such clauses to consider; the question is how long the adoption of constitutions with "right to keep and bear arms" clauses remains relevant to the issue of original intent. I have chosen, rather arbitrarily, to examine those constitutions adopted before 1845. Only a few adults alive at the time the Bill of Rights was ratified would have lived past this date.

In this formative period of American history (1789-1845), there are a total of fifteen constitutions, adopted by ten states, and one independent nation (the Republic of Texas) [ State Constitutions: Connecticut (1818), Indiana (1816), Kentucky (1792 & 1799), Michigan (1835), Missouri (1820), Mississippi (1817), Ohio (1802), Pennsylvania (1790), Texas (1845), Vermont (1793). Also, see the Republic of Texas (1838). Although a foreign country, the Republic of Texas was settled and controlled by Americans, who wrote a constitution expressing sentiments similar to the U.S. Constitution.] that contain a "right to bear arms in defense of himself and the State" [ Thorpe, 2:1059.] , or some slight variant. Because these provisions specify "in defense of himself", it is unambiguous that the right protected in each case is individual. These must be considered as evidence for the individualist school, since the language used is similar to, and doubtless borrowed from, the Second Amendment.

By 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 1819, and the Tennessee State Constitutions of 1796 and 1834. But as we have already seen in Simpson v. State (1833), and Andrews v. State (1871), the Tennessee Supreme Court unambiguously recognized that an individual right to bear arms for self-defense was protected, even in the presence of the qualifier, "for their common defense".

Tennessee's "right to keep and bear arms" provision is notable for another reason. The 1796 and 1834 constitutions contain the same language, with one minor difference. That minor change may tell us something interesting about the origins of gun control. In article XI, the 1796 Tennessee state constitution says:

Sec. 26. That the freemen of this State have a right to keep and to bear arms for their common defence. [ Thorpe, 6:3424.]
In article I of the 1834 constitution:
Sec. 26. That the free white men of this State have a right to keep and to bear arms for their common defence. [ Thorpe, 6:3428.] [emphasis added]
It would appear that by 1834, Tennessee's constitution-makers felt it necessary to racially restrict the right of keeping and bearing arms. Nat Turner's rebellion, in August, 1831 [ Stanley M. Elkins, Slavery , (Chicago, University of Chicago Press: 1968), 209.] , had provoked great fear in the South:
Despite the fact that after 1831 no more slave insurrections were seen in the South, it was precisely then that the South became most victimized by its own fears, being "racked at intervals," as Clement Easton writes, "by dark rumors and imagined plots." These periodic upheavals over suspected revolts -- characterized by furious vigilante hunts and wild confusion, all based on mirage -- constitute one of the more bizarre chapters in Southern history. Indeed, the very absence of slave uprisings all during this period, and thus their very imaginary character, may have been the real key to their frightfulness. [ Elkins, 220.]
Under the antebellum color-caste system, the status of free Negroes in Tennessee steadily deteriorated. The state legislature, in 1831, barred the immigration of free blacks into the state... The constitutional convention of 1834 produced a further restriction by withdrawing the legal right to vote which free blacks previously had held in Tennessee. [ Joseph H. Cartwright, The Triumph of Jim Crow , (Knoxville, TN, University of Tennessee Press: 1976), 4.]
While not surprising -- racism has frequently been at the root of "gun control" laws -- it does suggest that the right protected was individual. If this clause had only protected a "collective right" of the state militia, the same result (disarming free blacks), could have achieved by simply refusing to allow free blacks into the state militia. Indeed, in the period before the Civil War: "Only North Carolina permitted free blacks to bear arms in the ranks of its militia..." [ Bernard C. Nalty, Strength For The Fight: A History of Black Americans in the Military , (New York, Macmillan: 1989), 20.] If "for their common defence" did not provide a sufficient basis for disarming individual free blacks, it suggests that individual ownership and carriage of arms was not dependent on being in militia service.

There are some exceptional state constitutions that are not clearly in either camp. The Rhode Island State Constitution of 1842 uses the second clause of the Second Amendment by itself: "The right of the people to keep and bear arms shall not be infringed." [ Thorpe, 6:3224.] Since Rhode Island's constitution also guarantees "The right of the people to be secure in their persons, papers and possessions against unreasonable searches and seizures" and "The people shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore", it is difficult to imagine "the people" referring only to a "collective right." Does 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"? Almost certainly, it meant "all individuals", since section 21 restricts the "right in a peaceable manner to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances" to "citizens". [ Thorpe, 6:3224.] The framers of the Rhode Island constitution clearly made a distinction between "people" and "citizens", with "people" referring to individual rights shared by all; to assert that "the people" refers only to a collective right stretches one's credulity.

The New York State Constitution of 1821 carries over the language of the 1777 constitution, which provides some evidence to justify the argument that the purpose of the "well regulated militia" clause was for a collective defense.

In comparison with the state constitutions adopted before the Second Amendment, the constitutions adopted after it heavily support the individual rights position. Fifteen of the twenty constitutions adopted after the Constitution unambiguously protect an individual right; Rhode Island's constitution appears to protect an individual right; and of the remaining four, two are Tennessee's state constitutions, which Tennessee Supreme Court decisions and historical evidence clearly show were recognized as protecting an individual right.

The Evidence Of State Constitutions Is Mostly On Our Side

Determining what is truth in history consists of marshalling evidence, both for and against a proposition. Like many questions in history, there is evidence with respect to the Second Amendment that could be misinterpreted as evidence against the individual rights position; but the evidence on our side is overwhelming. The 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 keep and bear arms" was intended to protect an individual right. 

Clayton E. Cramer is a software engineer with a telecommunications manufacturer in Northern California. His first book, By The Dim And Flaring Lamps: The Civil War Diary of Samuel McIlvaine, was published by Library Research Associates in 1990. Mr. Cramer is currently writing a book on the original intent and judicial history of Second Amendment.