The Right To Bear Arms Isn’t Just for Militias

by Stephen P. Halbrook
National Law Journal, October 9, 1995

“Bearing Arms” [NLJ, Sept. 25] endorses Garry Wills’ argument that “the right of the people to keep and bear arms” really means “the power of the states to maintain organized militias.” Yet to the framers, the term “bear arms” did not exclude carrying arms for personal defense. The Pennsylvania Declaration of Rights of 1776 stated that “the people have a right to hear arms in defense of themselves, and the state.”

James Wilson, a delegate to the Constitutional Convention of 1787 and later a Supreme Court justice wrote that the Pennsylvania guarantee justified homicide in “defence of one’s person.” The right “to bear arms in the defence of themselves,” according to Justice Wilson, derived from the Saxon regulation that the people were bound “to keep arms for the preservation of the kingdom, and of their own persons.” 3 J. Wilson. “Works” (1804).

The right to “keep” arms is also a personal right. Samuel Adams proposed in the Massachusetts constitutional ratification convention a declaration that Congress be forbidden to “prevent the people of the United States who are peaceable citizens, from keeping their own arms.” Contemporaries believed that this right was recognized in the Second Amendment. Independent Gazetteer, Aug. 20, 1789.

The Constitution consistently uses the terms “the right of the people” to describe individual rights in the First, Second, Fourth and Ninth amendments, as recognized in U.S. v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). The Constitution uses the term “power” to describe what a government may do. Art. I. Sec. 8, provides that “Congress shall have power . . . to provide for organizing . . . the militia . . . reserving to the States respectively, the appointment of the officers, and the authority of training the militia. Gun control advocates claim that the Second Amendment must be read only in the context of the states’ power to maintain a militia, but if that had been the framers’ intention, they would not have used the phrase ‘right of the people.’”

Mr. Wills’ revelation of the true meaning of the Second Amendment is based on his view that Bill of Rights guarantees promote crime, an argument others have applied to the rights against self-incrimination and to counsel. Yet private crime pales into insignificance compared to the crimes against humanity committed by 20th century police states, which always disarm those who are to be subjected to genocide.