Supreme Court Discusses “Pre-Existing Right” to Keep and Bear Arms

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


There have been several recent national news reports concerning the dramatic increase in the sale of firearms, particularly in Texas, since the election of Barack Obama as the next president of the United States. The day after Obama was elected, the Cheaper than Dirt gun store in Fort Worth, Texas sold $101,000 worth of merchandise. Guns stores throughout Virginia have reported that sales have increased by 50 percent since Election Day. The FBI reported that by October 26, 2008 there were 62,000 more background checks for gun purchases than in October 2007 – a 25% increase.


There is an unbridled fear among gun advocates that President-elect Obama has some “secret” plan to disarm America. This fear exists despite a ruling by the United States Supreme Court on June 26, 2008 upholding a decision by the United States Court of Appeals for the District of Columbia, Parker v. District of Columbia, 478 F.3d 103 (D.C. Cir. 2007), that struck down a longstanding ban on the possession of handguns in the District of Columbia. See: District of Columbia b. Heller, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).


The Second Amendment to the United States Constitution provides: “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”


The language of this amendment has been the subject of constitutional interpretation since its adoption on September 17, 1787. Over the last three decades the meaning of the Amendment has been one of the most hotly debated social and political issue in America. Two basic interpretations have evolved from this debate – both of which were put squarely before the Supreme Court in Heller.


Gun control proponents argue that the Second Amendment protects only the right to possess and carry a firearm in connection of with militia service.

The opponents of gun control, however, argue that the Second Amendment protects an individual right to possess a firearm unconnected to militia service and the individual has a right to use that firearm in self-defense and protection of the home.

Neither interpretation is precisely correct as the Court made clear in Heller. The Second Amendment did not establish the individual “right” to keep and bear arms. The Second Amendment merely protects the “pre-existing right” to keep and bear arms from infringement by the government.


The Supreme Court made this abundantly clear nearly one hundred years after the adoption of the Second Amendment: “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment [simply] declares that it shall not be infringed …” See: United States v. Cruikshank, 92 U.S. 542, 533 (1876). See also: Robertson v. Baldwin, 165 U.S. 275, 281 (1897)[Second Amendment did not create “novel principle” but rather codified a right “inherited from our English ancestors.”]


The origin of the American right to keep and bear arms comes from the womb of our mother England. The Heller court discussed this historical context:


“Between the Restoration and the Glorious Revolution, the Stuart Kings of Charles II and James II succeeded in using select militias loyal to them to suppress political dissent, in part by disarming their opponents … Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies .. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed.” Heller, supra, 128 S.Ct. at 2797.


This English right to keep and bear arms was brought to America by the colonists. It was an individual right that had no connection with service in a militia. By the time the American colonists declared their independence from King George III and England, the right had become what famed legal scholar Sir William Blackstone called “the natural right of resistance and self-preservation” and “the right of having and using arms for self-preservation and defence.” It was this “natural right” that prompted the colonists to rebel and violently resists the efforts by King George during the 1760s and 1770s to disarm them. One colony, New York, adopted an article in 1769 that said “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.”


This English-derived right was reinforced by four American states that adopted analogues of the Second Amendment between independence and ratification of the Bill of Rights. Two of these states, Pennsylvania and Vermont, specifically adopted the natural right to keep and bear arms independent of militia service. The Pennsylvania Declaration of Rights of 1776 provided that “ … the people have a right to bear arms for the defence of themselves, and the state.” Vermont adopted an identical constitutional provision. Heller, supra, 128 S.Ct. at 2802.


The Heller court pointed out that between 1789 and 1820, “nine states adopted Second Amendment analogues. Four of them—Kentucky, Ohio, Indiana, and Missouri—referred to the right of the people to ‘bear arms in defence of themselves and the State.’ Another three States—Mississippi, Connecticut, and Alabama—used the even more individualistic phrasing that each citizen has the ‘right to bear arms in defence of himself and the State.’ Finally, two States—Tennessee and Maine—used the ‘common defence’ language of Massachusetts…That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived the right.” Heller, supra, 128 S.Ct. at 2803.


The historical evidence is quite compelling that the original Federalists and state governments considered the right to keep and bear arms so fundamental that they used their constitutions to not only create but protect this right. The Heller court turned to three prominent founding-era legal scholars to support the historical premise that the Second Amendment was adopted to “protect” (not create) an individual’s right to keep and bear arms independent of militia service.


Writing in Blackstone’s Commentaries in an article entitled “View of the Constitution of the United States,” St. George Tucker said of the Second Amendment: “This may be considered as the true palladium of liberty … The right of self-defense is the first law of nature …” Heller, supra, 128 S.Ct. at 2805.


William Rawle, a prominent member of the Pennsylvania Assembly that ratified the Bill of Rights, published a treatise in 1825 about the Second Amendment: “The first [principle] is a declaration that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent … the corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed.


“The prohibition is general. 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.” Heller, supra, 128 S.Ct. at 2805-06.



Tucker and Rawle were followed by Joseph Story who, in 1833, published his famous Commentaries on the Constitution of the United States that equated the English Bill of Rights’ guarantee of the “right to bear arms” with the Second Amendment:

“§ 1891. A similar provision [to the Second Amendment] in favour of Protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being declared, ‘that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law’ …” Heller, supra, 128 S.Ct. at 2806.


Thirty-eight years after Story made these observations the Tennessee Supreme Court interpreted them to mean: “[t]he passage from Story, shows clearly that this right was intended  … and was guaranteed to, and to be exercised and enjoyed by the citizens as such, and not by him as a soldier, or in defense solely of his political rights.” See: Andrews v. State, 50 Tenn. 165, 183 (1871).


Throughout periods of social turmoil in this country, the Second Amendment has proven to be a legal beacon for the right to bear arms in self-defense in these conflicts. For example, during slavery, abolitionists routinely invoked the Second Amendment to justify the right to use arms in self-defense while engaged in efforts to free slaves. Citing Blackstone’s declaration of the right, antislavery advocate Joel Tiffany in 1849 wrote that “the right to keep and bear arms, also implies the right to use them if necessary in self-defence: without this right to use the guaranty would have hardly been worth the paper it consumed.” Heller, supra, 128 S.Ct. at 2807.


Seven years later, in a famous Senate speech, Senator Charles Summer discussed the Second Amendment in connection with the “Bleeding Kansas” conflict:


“The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red men and the beast of the forest. Never was this efficient weapon more needed in just self-defence, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guarantee, embodied in the Amendments to the Constitution, that ‘the right of the people to keep and bear arms shall not be infringed,’ the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmed—of course, that the fanatics of Slavery, his allies and constituents, may meet no impediment.” Heller, supra, 128 S.Ct. at 2807.


Throughout the 220 years of the Second Amendment, states and municipalities have imposed limited restrictions on the right to keep and bear arms. But the Heller court pointed out that only a few of these laws came close to the severe restrictions imposed by the District of Columbia’s ban on handguns. Justifying its decision to strike down the ban, the court stated:

“It is no answer to say … that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause [militia] and the protected right cannot change our interpretation of the right.” Heller, supra, 128 S.Ct. at 2818.


An overwhelming majority of Americans believe they have a “natural right” to keep and bear arms, especially the preferred handgun. While gun opponents may quibble with the language of the Second Amendment, the historical evidence is indisputable that this natural right pre-existed the amendment and the only purpose of the amendment is to protect this natural right. Gun opponents may argue that this “natural right” has out-lived its usefulness – that the very nature of organized society today creates a need to either curtail or eliminate the right. That may be a legitimate issue for social debate, although whatever limited merits it may have will most likely never prevail.


But the purpose of the Second Amendment is no longer the subject for social debate. Heller effectively ended that debate. The decision is clear that the amendment was created by the framers and ratified by all the states solely and exclusively to protect the pre-existing right of the individual citizen to keep and bear arms.


Of course, this right, as with most rights, is not unlimited. The Heller court specifically pointed out that “from Blackstone through 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose … [and] nothing in our opinion [today] should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller, supra, 128 S.Ct. at 2716-17.


This caveat notwithstanding, the bottom line of Heller is this: law-abiding citizens have a natural right, protected by the Second Amendment, to purchase, keep, and bear arms (especially a handgun) for self-defense and for defense of their home. It is difficult to understand why anyone would want to “control” or eliminate that fundamental constitutional protection. Law-abiding gun owners do not pose a threat to society. To the contrary, they protect society from criminal anarchy.


Gun control advocates see “guns” as the “problem” of criminal violence. The problem of criminal violence is not, and has never been, lawful gun ownership. The real problem lies, first, with those who think it is, and, second, with those who unlawfully own and use guns for criminal reasons. The efforts of gun control advocates are unfortunately misdirected. The only issue of “control” should be legal and social control of the human vice of violence. The old adage “people, not guns, kill” is correct. The tragedy of criminal gun violence will never be cured by confiscating the handguns of law-abiding citizens. That will only result in more innocent law-abiding citizens losing their lives to those who believe violence is a natural social response to any of life’s myriad confrontations.


There was reason for hope that the hotly contested “gun control” debate would drift quietly into that proverbial good night following the Heller decision. But apparently that is not to be.  Barack Obama’s election has not only rekindled the debate but set it ablaze with unnecessary fear and paranoia.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair