For anyone who frequently discusses the Second Amendment, there is no avoiding the debate over whether it protects an individual or collective right. The prevailing view accepted by the Supreme Court in 2008 is that the amendment protects every individual’s right to keep and bear arms. But many detractors, especially gun-control advocates, still argue it only covers a collective or militia right.
When the individual right view started to gain ground (or, rather, regain ground) in the late 20th century, a common line of attack was that the pro-gun side was essentially making it all up. And it’s one that’s been repeated even at the highest levels of the legal profession.
“The gun lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American People by special interest groups that I have seen in my lifetime,” Former Chief Justice Warren Burger said in a 1991 PBS interview.
Gun-control advocates still use this argument, with The Intercept asserting in a June 2022 article that “no law review article from 1888 (when they were first indexed) through 1959 ever concluded the Second Amendment guaranteed an individual right to a gun.”
There are three ways to test the claim that the NRA and other gun-rights advocates created the individual-right view in the last several decades: What did the founders say? What did older case law say? And what did prominent second-generation American legal scholars and elected officials say?
The courts and the public writ large have already deeply examined the first two options.
For example, Madison’s argument in Federalist 46 that Americans have “the advantage of being armed” that governments denied to “the people of almost every other nation” has been widely cited in public debate. The same can be said for Tench Coxe proclaiming in Remarks on the First Part of the Amendments to the Federal Constitution, under the pseudonym “A Pennsylvanian,” as part of the June 18, 1789 edition of the Philadelphia Federal Gazette that “the people are confirmed by the article in their right to keep and bear their private arms.”
So, let’s focus on the final category: how did early American legal scholars interpret the Second Amendment? While various quotes are cited here and there, such as former Supreme Court Justice Joseph Story’s 1833 claim that “the right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic,” this area remains forgotten by most people.
But, thanks to the digitization of old texts on Google Books and Google Scholar, access to second-generation American viewpoints is easier now than ever before.
A review of 19th-century scholarly writings reveals there were two dominant camps when it came to the Second Amendment. The first included those who took a nearly absolute view that it guaranteed access to any weapon. Then there were those that believed the right was primarily limited to weapons most useful for warfare. However, the idea that the Second Amendment protected an individual right connected the two sides.
The Expansive View
Several people of note in the 19th century spoke of the Second Amendment and the right it protects in ways that are near-indistinguishable from the most fervent of pro-gun voices today. If it were true the individual-right view was invented in the last few decades, people espousing this sort of view in the 19th century, frankly, should not exist. But they did exist and in surprising numbers, especially among abolitionists.
Adam Seybert, a doctor who served in Congress from 1809 to 1815, wrote a book in 1818 whose title was quite the mouthful: Statistical Annals: Embracing Views of the Population, Commerce, Navigation, Fisheries, Public Lands, Post-Office, Establishment, Revenues, Mint, Military and Naval Establishments, Expenditures, Public Debt and Sinking Fund of the United States of America.
Yet, as comically lengthy as his title was, Dr. Seybert’s view on the Second Amendment was concise and to the point. Dr. Seybert explained that “our constitution guarantees to every citizen the right ‘to keep and bear arms,’ while in other countries this very important trust is controlled by the caprice and tyranny of an individual.”
Dr. Seybert was not alone, and others went even further to talk about how the right the Second Amendment protects applies not just to defense against tyranny or foreign invasion but also personal defense. Joel Tiffany, a prolific 19th-century American author, stated this quite clearly in his 1850 work A Treatise on the Unconstitutionality of American Slavery Together with the Powers and Duties of the Federal Government in Relation to that Subject. Tiffany wrote that the right to bear arms “is accorded to every subject for the purpose of protecting and defending himself, if need be, in the enjoyment of his absolute rights to life, liberty, and property. And this guaranty is to all without any exception; for there is none, either expressed or implied.”
Lysander Spooner, one of the earliest and most influential libertarian political philosophers, added in 1845 that the Second Amendment “obviously recognizes the natural right of all men ‘to keep and bear arms’ for their personal defence; and prohibit both Congress and the State governments from infringing the right of ‘the people’ — that is, of any of the people, — to do so.”
The famous newspaper publisher and abolitionist Horace Greeley said in an 1867 speech to a Black church in Richmond that “our Federal Constitution gives the right to the people everywhere to keep and bear arms; and every law whereby any State legislature undertakes to contravene this, being in conflict with the Constitution of the United States, had no longer any legal force.”
William Rawle, a lawyer who served as U.S. district attorney for Pennsylvania from 1791 to 1800, shared a similarly expansive view of Second Amendment protections at the federal and state level. In his 1825 work A View of the Constitution of the United States, Rawle wrote that “no clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”
The idea espoused that states could not infringe on the right to bear arms was not universally recognized, though. Some believed the Second Amendment, and the rest of the Bill of Rights, limited only the federal government. This view appears to have become more prevalent in the wake of 1876’s United States v. Cruikshank. In that case, the Supreme Court overturned federal convictions for white men who murdered dozens of black men during the 1873 Colfax Massacre and held the First and Second Amendment protections don’t apply to state governments or the actions of individuals.
The idea that there is a state/federal dichotomy in the Second Amendment’s application was explained by Horace Edgar Flack in his 1906 dissertation on the adoption of the 14th amendment.
“The right to keep and bear arms is recognized in the national Constitution, but only to the extent of saying that the Federal Government could not deny the right, and not at all limiting the power of the States to determine who might exercise that right,” Flack wrote.
Henry Campbell Black, the original author of Black’s Law Dictionary, wrote in his 1895 Handbook of American Constitutional Law that “The Second Amendment means no more than that it shall not be denied or infringed by congress or the other departments of the national government. The amendment is no restriction upon the power of the several states.”
Only much later, as the Supreme Court slowly rejected its previous determination in Cruikshank and incorporated each right to the states through the 14th Amendment, would that point of view recede. The Court wouldn’t get around to incorporating the Second Amendment until 2010’s McDonald v. Chicago.
Still, we know the 19th-century scholars who disagreed on incorporation agreed on the individual nature of the Second Amendment right. Rawle wrote in the same 1825 book that a single individual carrying arms could only be a crime if there were “circumstances giving just reason to fear that he purposes to make an unlawful use of them.”
And Flack outlines how the 14th Amendment was widely seen as extending gun-rights protections for individuals to block state actions. Senator Lyman Trumbull, who had co-authored the 13th Amendment, said of the 14th, “this bill, if enacted into law, would deprive the States of their police power, and would nullify the laws of his State which forbade negroes to keep fire-arms or ammunition.” Flack noted Trumbull’s claim “was not questioned by any one.” He further argued that “since Mr. Trumbull also seemed to recognize that the right to keep arms was a right to which all were entitled, we may conclude that this right was intended to be conferred upon negroes if the States permitted white men to enjoy it.”
Federal infringement of the right invited anger and protest as well. During the civil war, the federal government often exercised direct control of arms for the war effort, and this was met with angry appeals to the Second Amendment. Clement Laird Vallandigham, the Representative for Ohio’s 3rd Congressional District from 1858 to 1863 and leader of the Copperhead faction of anti-war Democrats during the American Civil War, protested such federal arms control in one of his speeches: “Sir, the Constitutional right to keep and bear arms, carries with it the right to buy and sell arms; and fire-arms are useless without powder, lead, and percussion caps. It is our right to have them[…].”
Lastly, Thomas M. Cooley, one of the leading legal minds of the 19th century and Chief Justice of Michigan’s Supreme Court from 1864 to 1885, wrote definitively about the Second Amendment. In his 1898 book The General Principles of Constitutional Law in the United States of America, Cooley not only addressed but ultimately dismissed the suggestion the amendment protected only a “militia right.”
“It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent[…],” he wrote. “The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose.”
The More Limited View
There were certainly people in the 19th century who were not as absolute in their views of the Second Amendment. But, while these individuals typically believed the government could limit weapons commonly used in crime, they also saw the Second Amendment as protecting an individual right to own weapons that were most useful for soldiers. In other words, they believed there was a personal right to own and carry only military weapons.
Joel Prentiss Bishop, an influential legal mind of the time who has now drifted into obscurity, wrote in his 1868 Commentaries on the Criminal Law that “the provision protects only the right to ‘keep’ such ‘arms’ as are used for purposes of war, in distinction from those which are employed in quarrels and brawls and fights between maddened individuals.”
Others who remain famous to this day shared Bishop’s view. Black also wrote in his 1895 handbook that the Second Amendment “is a natural right, not created or granted by the constitutions[…]The ‘arms’ here meant are those of a soldier. They do not include dirks, bowie knives, and such other weapons as are used in brawls, fights, and riots. The citizen has at all times the right to keep and bear arms of modern warfare[…]It does not tend to restrict the right of the citizen to bear arms for lawful purposes, but only punishes a particular abuse of that right.”
As to the right to carry, Black continued: “This right is not infringed by a state law prohibiting the carrying of concealed deadly weapons[…] But a law which should prohibit the wearing of military weapons openly upon the person, would be unconstitutional.” Suffice it to say, Black and many others from his time would likely be surprised that open carry is seen as the more aberrant behavior in most places today while concealed carry is the norm. Yet there is no denying that he did believe there was an individual right to both keep arms and bear them, albeit one limited to “arms of modern warfare” in both contexts.
Charles Humphreys shared these views as well. He wrote in his 1822 book A Compendium of the Common Law in Force in Kentucky To which is Prefixed a Brief Summary of the Laws of the United States that “Riding or going armed with dangerous or unusual weapons is a crime against the public peace, by terrifying the people of the land, which is punishable by forfeiture of the arms, and fine and imprisonment. But here it should be remembered, that in this country the constitution guarranties to all persons the right to bear arms; then it can only be a crime to exercise this right in such a manner, as to terrify the people unnecessarily.”
John Norton Pomeroy, another major legal scholar of the 19th century, best explained the view that securing a well-armed militia is not mutually exclusive with an individual right but is instead wholly dependent on it. In his 1888 book “An Introduction to the Constitutional Law of the United States,” Pomeroy wrote that “The object of this clause is to secure a well-armed militia[…]But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms.”
However, Pomeroy added that restricting concealed weapons or barring individuals from accumulating “quantities of arms with the design to use them in a riotous or seditious manner” was acceptable. He concluded that the Second Amendment “is analogous to the one securing freedom of speech and of the press. Freedom, not license, is secured; the fair use, not the libelous abuse, is protected.”
Perhaps the most famous commentary that squares the militia portion of the Second Amendment with the individual-right view came from St. George Tucker, an influential law professor at the College of William & Mary who President James Madison later made a U.S. district judge. He wrote an American version of Blackstone’s Commentaries on the Laws of England, the first of its kind and a valuable reference work for many American lawyers and law students of the time. Tucker argued in the commentary that “The right of self defence 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.”
Anna Laurens Dawes, author and daughter of Senator Henry Laurens Dawes, also embraced the view of a more qualified individual right. In her 1885 book “How We Are Governed,” Dawes wrote, “Lest an indirect effort be made to interfere with the Republic, the Constitution goes on to forbid any law preventing the people from keeping and bearing arms. A law prohibiting the use of weapons would take away all possibility of resisting any injustice[…]But it has been carefully explained by statute that this does not allow the carrying about of pistols and other concealed weapons. This practice is dangerous in every way.”
Quite similarly, in her 1900 work Our Government Brief Talks to the American Youth on Our Governments, General and Local, Laura Donnan explained that the Second Amendment “does not mean that only organized state militia may keep and bear arms, but it means that every citizen may do so[…] However, it does not mean that men are allowed to carry concealed weapons.”
The common assertion that the individual-right interpretation of the Second Amendment is a gun-lobby myth invented in the latter half of the 20th century is, to repurpose Justice Burger’s famous quote, “one of the greatest pieces of fraud, I repeat the word fraud, on the American People by special interest groups that I have seen in my lifetime.” The historical record shows that 19th-century Americans, whatever other disputes they had about the provision, widely viewed the Second Amendment as protecting an individual right.