Constitutional Primer #7 - Property Rights

Constitutional Primer #7

Property Rights

June 6, 2004

By Timothy B. Lewis of the Constitutional Freedom Foundation

Meridian Magazine

http://www.MeridianMagazine.com

To submit a Letter to the Editor: editor@meridianmagazine.com

The Importance Of Property Rights

In John Locke's Second Treatise of Government (1689), chapter five discusses property. He said

“every man has a property in his own person. This nobody has a right to but himself. The labor of his body, and the works of his hands, we may say, are properly his. Whatsoever then he removes out of the state of nature... [and] mixes his labor with...makes it his property.”^{^[1]}[For example, planting and harvesting grain, catching fish or game, etc.]

“God, by commanding to subdue, gave authority so far to appropriate. And the condition of humane life, which requires labor and materials to work on, necessarily introduces private possessions.”^{^[2]}

He then talked about how man’s cultivation of an acre of land might produce more useful things than grow naturally on a hundred acres of raw land and that when we invented permanent mediums of exchange like gold, silver, etc. that could facilitate commerce between people in trading the various surpluses they created from their labors, we allowed people to store the value of their labor and thus induced them to be industrious and productive. And we also allowed people to specialize in the application of their labors thus maximizing the creation of goods and services which benefit all of society. For example, some might choose to be farmers and others miners, manufacturers, doctors, etc. He recognized that if man could not benefit from barter and trade, he would have less incentive to produce anything more than his bare necessities. Said he:

“[A]s different degrees of industry were apt to give men possessions in different proportions, so this invention of money gave them the opportunity to continue and enlarge them.”^{^[3]}

He did not see any moral problem with some having more than others so long as there was enough to go around and people were free to do as they pleased regarding how diligent they wanted to be in their labors.^{^[4]}

The French philosopher Montesquieu observed:

“Nature is just to all mankind; she rewards them for their industry, whilst she renders them industrious by annexing rewards in proportion to the greatness of their labor. But if an arbitrary power deprives people of the recompenses of nature, they fall into a disrelish of industry, and then indolence and inaction seem to be their only happiness.”^{^[5]}

Locke asked why man would ever leave a state of nature where “he be absolute Lord of his own person and possessions?” He answered because “the enjoyment of [that right] is very uncertain, and constantly exposed to the invasion of others.” Therefore he, and other like-minded people, agree “to unite for the mutual preservation of their Lives, Liberties and Estates, which I call by the general name, Property. The great and chief end therefore, of mens uniting into commonwealths, and putting themselves under government, is the preservation of their property.”^{^[6]}

Jeremy Bentham (1748-1832), one of the fathers of the moral philosophy called “Utilitarianism”, called the law that secures property rights “the noblest triumph of humanity over itself.”^{^[7]}

The Scottish political economist Adam Smith’s most famous work was Wealth of Nations published in 1776. He also published a series of Lectures on Jurisprudence. His first lecture on jurisprudence began:

“The first and chief design of every system of government is to maintain justice: to prevent the members of society from encroaching on one another’s property, or seizing what is not their own. The design here is to give each one the secure and peaceable possession of his own property.”^{^[8]}

Influenced by the foregoing thinkers, many from our founding era expressed similar sentiments:

John Rutledge: "Property was certainly the principal object of Society."^{^[9]}

Alexander Hamilton: "One great objt. of Govt. is personal protection of the security of property."^{^[10]}

John Adams: "Property must be secured or liberty cannot exist."^{^[11]}

"The right of property," Arthur Lee of Virginia declared, "is the guardian of every other right, and to deprive a people of this, is in fact to deprive them of their liberty."^{^[12]}

In a letter published on April 7, 1774 in the London Gazetteer, which sought to explain to the British the reasons for the Boston Tea Party, the unknown author said:

“...for the end of Government is the preservation of property, and there can be no property where there is an arbitrary power of taxation...[T]he law of nature, being founded in reason and justice, admits of property; for the better preservation of which, and for the use and enjoyment of it in peace and quiet, men entered into society. If therefore, any man, or body of men, claim a right to take away at pleasure from other men their property, and to dispose of it as they please[,] such claim tends to a dissolution of society, and is repugnant also to the law of nature, as it would place mankind in a worse condition than the state of nature, wherein they had liberty to defend their right against the injuries of others.”^{^[13]}

That is an interesting idea – in the state of nature, every man could effectively defend against those who wished to dispossess him of his property, but how does one effectively defend one’s self when it is his own powerful government which seeks to despoil him?

The Magna Carta

The British Library tells us:

“Magna Carta is often thought of as the corner-stone of liberty and the chief defence against arbitrary and unjust rule in England . In fact it contains few sweeping statements of principle, but is a series of concessions wrung from the unwilling King John by his rebellious barons in 1215. However, Magna Carta established for the first time a very significant constitutional principle, namely that the power of the king could be limited by a written grant.

“King John's unsuccessful attempts to defend his dominions in Normandy and much of western France
led to oppressive demands on his subjects. Taxes were extortionate; reprisals against defaulters were ruthless, and John's administration of justice was considered capricious. In January 1215 a group of barons demanded a charter of liberties as a safeguard against the King's arbitrary behaviour. The barons took up arms against John and captured London in May 1215.

“By 10 June both parties met and held negotiations at Runnymede, a meadow by the River Thames. The concessions made by King John were outlined in a document known as the 'Articles of the Barons', to which the King's great seal was attached, and on 19 June the barons renewed their oaths of allegiance to the King. Meanwhile the royal chancery produced a formal royal grant, based on the agreements reached at Runnymede, which became known as Magna Carta (Latin for the 'Great Charter').”^{^[14]}

In addition to setting forth the principle that the King could be effectively constrained by a written document, the Magna Carta did at least two other things. First, it established the principle that raising revenues was only just and acceptable when it was done with the consent of those who were to be taxed. Second, it set up some legal protections or impediments when it came to governmental attempts to take away people’s life, liberty, or property. It provided: ‘No freeman shall be taken, imprisoned, disseised [i.e. dispossessed of property]...except by the lawful judgment of his peers and by the law of land.’ This later evolved into the notion of “due process of law.”

In our colonial times, the colonists’ notion of their ‘rights as Englishmen” largely derived from this Charter and when they felt like they were being treated as only second-class Englishmen, to say the least, they were a bit irritated.

The Dominion Of New England

Another good book to have in your library is The Guardian of Every Other Right: A Constitutional History of Property Rights, by James W. Ely, Jr. I will quote from him extensively hereafter. All paragraphs which simply begin in quotation marks, are from his book

“Long before the American Revolution, British imperial policy aroused the colonists to defend their property rights....English authorities sought to gain stronger control over the colonies. Rejecting the notion that the colonies enjoyed separate constitutional status, officials viewed the colonies as mere possessions of the Crown. One result of this new imperial system was the Dominion of New England, an administrative experiment that consolidated all the New England colonies and New York under a regional government. Created in 1686, the Dominion was ruled by a royal governor, Sir Edmund Andros, and an appointed council. In a sharp break with the constitutional history of the early colonies, there was no representative assembly. * * *

“....Anxious to undercut the Puritan notion of absolute landownership, imperial authorities asserted that the colonists held land under a tenurial relationship with the king. By attacking the basis of economic independence, the Crown hoped to render the colonies more politically obedient to England and raise revenue from quitrents [annual payments to the king.] Accordingly, Andros required all existing land titles to be reviewed for confirmation and charged a fee for new grants. * * *

“...In April 1689...Boston mobs arrested Andros and overthrew the Dominion of New England. This episode underscored the colonists’ determination to safeguard, in the worlds of Suffolk County inhabitants, ‘our English nations liberties and propertyes’ from imperial interference. Further, the colonists’ bitter experience with the Dominion made them especially sensitive to arbitrary interference with land titles.”^{^[15]}

Land Ownership Was Widely Distributed

“[C]olonial society was predominantly property owning and middle class. Economic advancement was within the reach of most colonists, and even day laborers could earn enough to acquire land. These fortunate economic conditions, coupled with the broad distribution of land, explain why the colonists were so receptive to the property-conscious tenets of English constitutional thought.”^{^[16]}

John Locke's Compact Theory Of Government

“...John Locke...asserted in his famous Second Treatise on Government (1689), that legitimate government was based on a compact between the people and their rulers. The people gave allegiance to the government in exchange for protection of their inherent or natural rights. Deviation by the rulers from this fundamental agreement provided grounds for their overthrow.

“Of particular importance was the theory of property rights in Locke's political philosophy. According to Locke, private property existed under natural law before the creation of political authority. Indeed, the principal purpose of government was to protect these natural property rights, which Locke fused with liberty. Thus, he asserted that people organized government to preserve ‘their Lives, Liberties, and Estates.’ Because the ownership of property was a natural right, the powers of government were necessarily limited by its duty to safeguard property. Locke argued that the legislature could not arbitrarily take property and that the levy of taxes without popular consent 'invades the Fundamental Law of Property, and subverts the end of Government.'

“It is difficult to overstate the impact of the Lockean concept of property. Strongly influenced by Locke, the eighteenth-century Whig political tradition stressed the rights of property owners as the bulwark of freedom from arbitrary government. Property ownership was identified with the preservation of political liberty. As John Trenchard explained in 1721, ‘All Men are animated by the Passion of acquiring and defending Property, because Property is the best Support of that Independency, so passionately desired by all Men.’ Lockean thinking also permeated English common law. In his Commentaries on the Laws of England (1765-1769) William Blackstone built on Locke's formulation and defined property rights in sweeping terms. ‘So great moreover,’ Blackstone observed, ‘is the regard of the law for private property, that it will not authorize the least violation of it.’ Whig political thought profoundly shaped public attitudes in colonial America , and Blackstone’s Commentaries were widely studied as a summary of English law. Consequently, both their circumstances and philosophical heritage induced the colonists to affirm the sanctity of property rights. To the colonial mind, property and liberty were inseparable, as evidenced by the colonists’ willingness to break with England when the mother country seemingly threatened property ownership."^{^[17]}

The English Common Law Regarding Eminent Domain

“Blackstone agreed that the legislature could take private property but insisted that the owner was entitled to receive ‘a full indemnification and equivalent for the injury thereby sustained.’ He regarded compensation as an established common law principle.”^{^[18]}

“In addition to constitutional guarantees of property rights, most of the states expressly adopted English common law, unless repugnant to the state constitution or unsuitable to the American conditions, as the basis for jurisprudence. This important step minimized legal upheaval and ensured that continuity would be the hallmark of postrevolutionary administration of justice.”^{^[19]}

The Revolutionary Era

“Influenced by the Whig political tradition as well as English common law, colonial leaders assigned property rights an essential place in the evolution of revolutionary constitutionalism. English policies that threatened colonial economic interests served to strengthen the philosophical link between property ownership and the enjoyment of political liberty. Accordingly, it was entirely logical that the right of property was among the highest social values in the new republic. Early state constitutions emphasized the legal protection of property rights. One scholar has aptly concluded that ‘the sanctity of private property was central to the new American social and political order.’”^{^[20]}

“‘Liberty and Property’ became the motto of the revolutionary movement.”^{^[21]}

“Maintaining that Parliament had no right to levy taxes on Americans, many colonists stressed the economic dimensions of liberty. The revolutionary slogan ‘No Taxation Without Representation’ reflected the view that taxes imposed without consent were a type of confiscation that destroyed the right of property ownership.”^{^[22]}

“American thinking about the constitutional significance of private property was in no sense original or distinctive. Clearly, the revolutionary attitude toward economic issues was partly molded by self-interested considerations. However, the colonial leaders drew heavily on the time-honored English Whig philosophy that regarded protection of private property as crucial to the preservation of freedom....

“Adhering to the English Whig tradition, colonial leaders viewed the security of property as the principal function of government. It followed that any government that rendered property rights insecure violated the very purpose of its existence. Such a government would forfeit the allegiance of its citizens and would be open to rebellion.”^{^[23]}

Jefferson Borrowed from John Locke

"Jefferson borrowed heavily from the compact theory of John Locke. Locke used the expression 'life, liberty, and estates' to describe the natural rights that government was formed to protect. Jefferson, however, substituted the phrase 'pursuit of happiness' for 'estates,' a change that should not be understood as rejecting the emphasis on property rights in revolutionary ideology. The concept of happiness as an end of government was widely accepted in the eighteenth century and was generally equated with economic opportunity. As Willi Paul Adams noted, 'The acquisition of property and the pursuit of happiness were so closely connected with each other in the minds of the founding generation that naming only one of the two sufficed to evoke both.' The right to obtain and possess property was at the heart of the pursuit of happiness. Still, Jefferson's formulation was significant because it stressed the importance of acquiring property rather than just the protection of existing property arrangements."^{^[24]}

State Abuses Of Property Rights During The Revolutionary War: Bills Of Attainder, Ex Post Facto Laws, And Debtor Discharge Laws

“[T]he revolutionary era saw widespread depredations of property held by both loyalists and creditors. By the end of the 1780s, many American leaders were bothered by this gap between the philosophical commitment to private property as a fundamental value in a free society and the infringement of these rights by state legislatures. Ultimately their discomfort fueled the drive for a new form of government that would afford greater protection for property.”^{^[25]}

“Under well-settled principles of English common law, the property of traitors was subject to forfeiture. In 1777 the Continental Congress urged the states to seize property owned by Loyalists for the public benefit. This recommendation initiated a wave of confiscations from New Hampshire to Georgia . Relying on legislative power to punish traitors, state lawmakers enacted bills of attainder that declared named persons to be guilty of treason or the offense of adhering to the enemy. Persons so designated were banished, and all their real and personal property was confiscated.”^{^[26]}

So the later Constitutional prohibition against Bills of Attainder, was a type of property protection. Some of these state actions smacked of changing the rules after the fact – i.e. making something retroactively illegal that was not illegal at the time it occurred. Later, the Constitution prohibited such ex post facto ("after the fact”) laws.

“Debts owed to British merchants were another target of the state legislatures....In 1777 the [Virginia] legislature appropriated all debts owed to British subjects. Virginians were authorized to pay the state what they owed and to obtain a discharge of their indebtedness. This sequestration scheme was designed to raise money for the state treasury at the expense of enemy aliens. Moreover, Virginians closed their courts to suits by British creditors.”^{^[27]}

It shouldn't be too hard to imagine what type of impression this gave to foreign nations and the negative impact it had on our ability to secure further financing from international sources. But taking a broader perspective, if one group of creditors/property owners could be so easily plundered at the whim of state legislatures, why would anybody else feel secure in the hope that his own property rights would be held inviolate by those legislatures?

The Post-Revolutionary Period: Popularly Elected State Legislatures Continued To Aid Debtors At The Expense Of Creditors

After successfully plundering their British creditors, debtors turned their focus onto their American creditors. The mood seemed to be driven by short-term considerations. Few seemed to realize that all credit would eventually dry up if creditors perceived their rights to repayment as being inherently insecure under the law. But on the other hand, we must keep in mind that the punishment for debtor default at this time was still very severe – in some cases, even debtors’ prison was a possibility. This underscores what will later be discussed about the need for legal balance between the competing debtor and creditor factions.

“In response to depressed economic conditions during the postrevolutionary period, state lawmakers often paid little heed to abstract considerations of property rights. They turned instead to debtor-relief laws and the issuance of paper money, measures designed to aid debtors at the expense of creditors. State legislatures repeatedly intervened in debtor-creditor relations with a host of laws staying executions for debts, permitting the payment of obligations in installments, and making depreciated paper currency legal tender. Rhode Island’s paper-money scheme, requiring creditors to accept almost valueless currency, was especially egregious. Another notorious measure was South Carolina’s Pine Barren Act of 1785, which permitted debtors to tender distant property or worthless pineland in discharge of their obligations. Creditors and merchants viewed such laws as simply a confiscation of their wealth by fraudulent means. James Madison, for example, opposed the issuance of paper currency in Virginia, warning that paper money ‘affects Rights of property as much as taking away equal value in land.’”^{^[28]}

So the later Constitutional prohibition against states issuing Bills of Credit (i.e. paper money) was a type of property protection. So too was the later Constitutional delegation of authority to the federal government to pass uniform bankruptcy laws, and the prohibition against states impairing contracts.

“[T]he Pennsylvania legislature in 1785, at the behest of radicals and agrarians, revoked the corporate charter of the Bank of North America. The first incorporated bank in the United States, the Bank of North America received charters from both the Continental Congress and Pennsylvania....Critics [of the bank] charged that the Bank promoted the accumulation of wealth, hampered the circulation of paper money, and was incompatible with democratic government....To conservatives the repeal of the Bank’s charter was further evidence that state governments could not be relied on to respect property rights.”^{^[29]}

Without knowing for sure, but connecting some dots on my own, perhaps this is why the federal government chartered national banks and purposefully taxed all state banks out of existence through a federal tax discussed in the last article. Maybe this was to make it impossible for states to revoke any more bank charters which would naturally result in economic dislocations. Again, if this were the case, then this too could be construed as a purposeful attempt to protect private property over the long run from the deprivations of state legislatures. But such a philosophic justification would hardly satisfy the owners of those state banks whose investments therein were destroyed in the process. Again, this whole paragraph is mere speculation on my part.

In Plundering Property, State Legislatures Ignored Their Own State Constitutions

“State constitutional provisions to safeguard property proved ineffective against this legislative onslaught.”^{^[30]}

“Judicial impotence was dramatically illustrated in [the Rhode Island Supreme Court case of] Trevett v. Weeden (1786), a case involving Rhode Island’s controversial paper-money scheme. At issue was a proceeding instituted by a private party on behalf of the state against a butcher who declined to sell meat for depreciated paper money. His refusal violated a penal law imposing a fine on persons refusing paper money at face value....The court unanimously dismissed the complaint. Furious legislators censured the court and debated a proposal to remove the judges. Such excesses support Forrest McDonald’s conclusion that ‘Americans were not as secure in their property rights between 1776 and 1787 as they had been during the colonial period.’ Not surprisingly, conservatives grew alarmed about legislative redistribution of wealth and became increasingly convinced that the state governments were unable to protect economic rights.”^{^[31]}

The National Congress Also Issued Unsecured Paper Money To Its Regret

“Congress [too] resorted to the emission of unsecured paper currency. Inflation raged unchecked, inflicting substantial losses on persons holding paper money. This fiscal embarrassment undermined the ability of Congress to secure further credit. Disputes over public finance dominated the political agenda of the Confederation period and highlighted the broad divisions in American society between mercantile interests and agrarians.

Debtor Insurrections Prompted States To Send Delegates To The Constitutional Convention

“The heated struggle between debtors and creditors raised the specter of domestic insurrection. Indebtedness bore heavily on farmers, and forcible resistance to the collection of debts spread in rural areas....

“A...serious outbreak, known as Shay’s Rebellion, occurred in western Massachusetts during the fall and winter of 1786-87. Protesting high taxes and a depressed economy, farmers petitioned the state government to issue paper money, which would ease the payment of debts. Many farmers feared foreclosure or imprisonment for debt as merchants pressed to collect unpaid obligations. The refusal of Massachusetts lawmakers to enact a paper-money scheme sparked protest directed against lawyers, the court system, and the collection of debts. Bands of farmers closed the courts in the western portion of the state and prevented the execution of judgments against debtors. By threat of force, the Shaysites thus achieved temporary relief for indebted farmers.

“Merchants and creditors in eastern Massachusetts viewed these events with horror. They saw the disruption of the courts as undermining contractual obligations, rendering property rights insecure, and portending anarchy....Inadvertently the Shaysites convinced many political leaders that a stronger national government was necessary.* * *

“....Frightened by the prospect of domestic turmoil, many state legislatures appointed delegates to the Philadelphia meeting during them most threatening months of the Shaysite insurgency.”^{^[32]}

People Began To See The Need For A Stronger Central Government In Order To Preserve Property Rights

“By 1787 many political leaders were convinced that only a more energetic national government could sufficiently protect property ownership, regulate commerce, and restore public credit. Ironically, the assaults on property rights during the Confederation period stimulated greater constitutional safeguards for property holders.”^{^[33]}

“[T]here was a large measure of consensus among the framers. Most favored a more vigorous national government that could protect property rights, promote commerce, establish credit by paying the public debt, and suppress insurrection....

“....Harboring little faith in the people....[the framers] viewed popular government [at the state level] as a potential threat to property rights. The convention debates were conducted at a high intellectual level. Dominated by northern merchants, southern planters, and lawyers, the delegates for the most part were wealthy individuals. This fact has caused some historians to contend that the framers’ property-conscious attitude reflected their economic self-interest. Although one can never entirely dismiss economic motives, such an analysis seems unduly simplistic, as it does not give enough attention to the philosophical climate that helped define the framers’ constitutional outlook. The doctrine that property ownership was essential for the enjoyment of liberty had long been a fundamental tenet of Anglo-American constitutional thought.”^{^[34]}

Federalist No. 10 And The Unequal Distribution Of Property

In Federalist No.10, Madison observed:

“[It is the] diversity in the faculties of men, from which the rights of property originate....The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.”^{^[35]}

“But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views.”^{^[36]}

“The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.”^{^[37]}

He said that such is the natural result in a state of liberty. One way to destroy factions, therefore, is to destroy liberty. But then he cautions, it could never be more truly said that such a course of action:

“is worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.”^{^[38]}

Even after recognizing that liberty and the unequal faculties of men will produce an unequal distribution of property and that such inequality produces the most durable source of political factions, he does not propose any sort of egalitarian leveling by force of law. In fact, he called attempts to equally divide property a “wicked project” along with the rage for paper money and the abolition of debts.^{^[39]} He said that taxing one group of people to benefit another would “trample on the rules of justice.”^{^[40]}

Heavy Government Regulation Was Not Invented During The “New Deal.” We Tried It Before The Revolution But Discarded The Practice Afterwards Upon The Publication Of Adam Smith’s “Wealth Of Nations.”

It is interesting to note that government regulation of prices and business conduct was not a new discovery on American soil during the early twentieth century. It was common prior to the Revolution. For example, county courts fixed the rates to be charged for food, drink, and accommodations at taverns; millers were required to grind grain for a set charge; the prices for ferry service was fixed; market laws imposed sanitary rules, enforced quality standards, and limited the hours of business; the size, quality and price of bread was fixed along with meat prices and firewood prices; wages and hours of business were likewise fixed by law. The law required "public markets" where all the prices were pre-set. However, these laws were poorly enforced and met with strong public resistance to the point that a free market developed despite these many laws.^{^[41]}

"Bostonians took the lead in extolling entrepreneurial freedom and criticizing anticompetitive behavior. They attacked the public market 'as a breach upon their natural rights and liberties' and argued that market regulations should 'not deprive us of the liberty common to Englishmen.' Farmers and butchers in New York, unhappy with a rate schedule for meat and other provisions, weaved together political and economic principles to challenge price regulations. In 1763 a group of rural citizens proclaimed: 'We thought we were born free Englishmen, and had the liberty, as such, to sell our own effects at our own liberty.' "^{^[42]}

So contrary to the impressions of most, the New Deal era was not where the whole debate started in America regarding economic regulation. It was alive and active prior to the Revolution and was basically rejected by our founding fathers in favor of Adam Smith's free market economic theories.

Smith published his seminal economic treatise Wealth of Nations in 1776. It was widely distributed and read in America . He argued that government intervention was unneeded and, in fact, would cause more harm than good. He believed the “invisible hand” of enlightened self-interest and the law of supply and demand would naturally regulate the economy in the most efficient and productive way -- that the free market would produce the most abundance and distribute that abundance widely among all levels of society. By and large, our founding generation was persuaded by Smith’s arguments, and America adopted them with great success.

In addition to Madison’s Federalist No. 10 quoted above, in Hamilton’s Federalist No. 12 and others, one can again easily see the free market influence of Adam Smith’s Wealth of Nations:

“The prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares.

“By multiplying the means of gratification, by promoting the introduction and circulation of the precious metals, those darling objects of human avarice and enterprise, it serves to vivify and invigorate the channels of industry, and to make them flow with greater activity and copiousness. The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer, – all orders of men, look forward with eager expectation and growing alacrity to this pleasing reward of their toils.”^{^[43]}

“...men accustomed to investigate the sources of public prosperity upon a large scale, must be too well convinced of the utility of commerce....”^{^[44]}

“An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished, and will acquire additional motion and vigor from a free circulation of the commodities of every part. Commercial enterprise will have much greater scope, from the diversity in the productions of different states....[The larger volume of materials will result from] the competitions of trade and from the fluctuations of markets.

“...the aggregate balance of the commerce of the United States would bid fair to be much more favorable than that of the thirteen States without union or with partial unions.”^{^[45]}

Hamilton further observed that if we were to break up into two or three separate confederacies rather than form one strong Union, “we shall clearly discover that a separation would be not less injurious to the economy, than to the tranquillity, commerce, revenue, and liberty of every part.”^{^[46]}

The Views Of Jefferson On The Proper Role Of The Law

Jefferson instructed:

“Our legislators are not sufficiently apprized of the rightful limits of their powers; that their true office is to declare and enforce only our natural rights and duties, and to take none of them from us. No man has a natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him; every man is under the natural duty of contributing to the necessities of the society; and this is all the laws should enforce on him; and, no man having a natural right to be the judge between himself and another, it is his natural duty to submit to the umpirage of an impartial third. When the laws have declared and enforced all this, they have fulfilled their functions, and the idea is quite unfounded, that on entering into society we give up any natural right. The trial of every law by one of these texts, would lessen much the labors of our legislators, and lighten equally our municipal codes."^{^[47]}(emphasis added)

What Did Jefferson Mean By “The Pursuit Of Happiness?”

Jefferson also said:

"With all these blessings, what more is necessary to make us a happy and prosperous people? Still one thing, fellow citizens--a wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned."^{^[48]}

"To take from one, because it is thought his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers, have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, the guarantee to everyone the free exercise of his industry and the fruits acquired by it."^{^[49]}

"If we can prevent the government from wasting the labors of the people, under the pretense of taking care of them, they must become happy."^{^[50]}

Jefferson, as one will recall, coined the phrase “pursuit of happiness” in the Declaration of Independence and also stated therein that “all men are created equal.” From the foregoing quotations, we can reasonably conclude that he would not equate the modern welfare state with “happiness” or the type of “equality” he referred to in the Declaration.

The Dilemma: The Government Must Have Enough Power To Control The People But Then, How Do We Make It Control Itself?

James Madison Observed:

“What is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”^{^[51]}

Frederic Bastiat: People Could Not Delegate To Their Government Powers They Did Not Hold Themselves Beforehand; Thus, Self Defense Is The Sum Total Of The Law

Presumably building upon what John Locke said,^{^[52]}in 1850 the French political economist Frederic Bastiat defined the law as:

“the collective organization of the individual right to lawful defense”[of his life, liberty and property.] “[T]he common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force — for the same reason — cannot lawfully be used to destroy the person, liberty or property of individuals or groups....Since no individual acting separately can lawfully use force to destroy the rights of others, does it not logically follow that the same principle also applies to the common force that is nothing more than the organized combination of the individual forces?”^{^[53]}

In other words, similar to Locke, he felt that we as individuals could not delegate to our government powers and authorities that we ourselves did not possess individually and naturally on our own. If it is wrong for me to rob somebody else to satisfy my wants, it is likewise wrong for my government to do the same thing on my behalf.

When the government exceeds these bounds and seeks to take from one person and give to another, it commits what Bastiat called “legal plunder.” And he said: “It is impossible to introduce into society a greater...evil than this: the conversion of the law into an instrument of plunder.***Do not listen to this sophistry by vested interests....The present-day delusion is an attempt to enrich everyone at the expense of everyone else....”^{^[54]} Elsewhere in his book The Law, he coined the very thought-provoking term “philanthropic tyranny” to criticize the process of forcing people to be affirmatively good towards one another by the force of law.^{^[55]}

He further commented:

“...the purpose of the law is to prevent injustice from reigning. In fact, it is injustice, instead of justice, that has an existence of its own. Justice is achieved only when injustice is absent. But when the law, by means of its necessary agent, force, imposes upon men a regulation of labor, a method or subject of education, a religious faith or creed — then the law is no longer negative; it acts positively upon people. It substitutes the will of the legislator for their own wills; the initiative of the legislator for their own initiatives. When this happens, the people no longer need to discuss, to compare, to plan ahead; the law does all this for them. Intelligence becomes a useless prop for the people; they cease to be men; they lose their personality, their liberty, their property.”^{^[56]}(the italicized emphasis was his)

What Did The Framers Of The Constitution Specifically Do To Protect Property Rights?

Seeing all the plundering of property going on through the state legislatures and the harmful impediments to commerce erected by the states, the framers did several things in the Constitution to stop the excesses.

As discussed in the prior article, the commerce clause^{^[57]}gave Congress the power to regulate interstate and international commerce. For well over a century of our national existence under the Constitution, this power was only used in a negative sense, to block various state laws that negatively impacted such commerce. Not until the New Deal era, did the Supreme Court interpret it as some sort of open-ended federal police power to regulate everything under the sun no matter how tenuous the connection to interstate commerce.

The states were prohibited from issuing bills of credit^{^[58]}, or paper money, and Congress was given the exclusive power to coin money and regulate the value thereof.^{^[59]} Along with this power, Congress was given the power to punish counterfeiting. No more would states be able to plunder the creditor class by forcing them to accept worthless money in satisfaction of the debts that were owed to them. And, in order to move the regulation of debtor-creditor relations up to the federal level, Congress was given authority to establish uniform rules of bankruptcy.^{^[60]}

Congress was given power to establish postal roads^{^[61]}which, of course, also allowed it to build and regulate infrastructure critical to the flow of interstate commerce.

Congress was given authority over patents and copyrights.^{^[62]} Even though some states had laws concerning these, they were not uniform and the framers thought that such intellectual property rights should be defined and regulated uniformly at the national level to promote commerce. This was probably also done because, unlike tangible real and personal property, these intangible property rights transcended state boundaries and had national and international effects.

In order to repair the damage done to our image around the world and to reopen our access to foreign credit, the new federal government under the Constitution assumed all of the prior debts of the government under the Confederation.^{^[63]}

The federal government was prohibited from imposing direct taxes except on a per capita basis.^{^[64]} By this rule, the wealthy could not be plundered as a class since whatever taxes were imposed on them would likewise have to be imposed on the poor, who could ill afford to pay them. This was an automatic governor over the possible egalitarian temptation to the federal government to use the force of law to redistribute wealth. After all, one cannot redistribute without first being able to take in a discriminatory fashion. Things obviously changed after the adoption of the 16^th Amendment and the expansionary interpretations of the commerce clause and the taxing and spending powers discussed in the prior article.

The federal government was prohibited from playing favorites among the states in regulating commerce.^{^[65]} All duties, imposts and excises had to be uniform throughout the states.^{^[66]}

States were prohibited from entering treaties, alliances, or confederations with other nations^{^[67]}thus denying them the ability to gain commercial advantage over their sister states like they did under the Articles of Confederation. Along the same lines, states were prohibited from imposing imposts or duties on imports or exports; and from laying duties on tonnage.^{^[68]}

Both the federal government and the states were prohibited from passing bills of attainder and ex post facto laws.^{^[69]} We saw how the states were effectively confiscating private property under these mechanisms during and after the Revolutionary War. In a broad sense, one could look at the prohibition against ex post facto laws also as a type of property protection even though in the first Supreme Court case to interpret that provision, the Court took a narrow view of it and ruled that it only applied to criminal matters and not to retroactive state enactments which affected property interests and contractual obligations.^{^[70]} That case occurred before John Marshall joined the Court as Chief Justice and one can only wonder how it would have come out under his leadership. Sensing a common theme throughout his jurisprudence of staunchly protecting property rights through the application of the contracts clause, I suspect the prohibition against ex post facto laws would not have had such a narrow construction under his leadership for it would have been one more tool to do what he obviously wanted to do: protect property rights.

Of particular importance during the early years of the country, states were prohibited from impairing the obligation of contracts.^{^[71]} To protect property rights, the Marshall Court struck down many state laws as unconstitutional under this clause. In later years, however, it fell into disuse as our respect for property rights diminished and our desire to regulate the economy increased.

In addition to all of the foregoing, the 5^th Amendment prohibited the federal government from taking private property without giving just compensation in return. This too, was obviously designed to protect property rights.

Although the 5^th Amendment’s prohibition against the federal government depriving people of “life, liberty or property without due process of law” was originally thought of as simply a procedural mechanism to ensure fair judicial processes, it was later used by the Court to protect property rights indirectly by the Court’s overseeing the inherent fairness or justice of federal legislation. The later application of this “substantive due process” idea to the states under the 14^th Amendment, was discussed in a prior article.

The “Separation Of Powers” & “Checks And Balances” Were Also Indirectly Intended To Protect Property Rights

In addition to the foregoing specifics which were designed to directly protect property rights, we should also consider the institutional impediments built into the system which were intended to indirectly protect property rights.

"Although numerous clauses in the Constitution deal with specific economic interests, they contain no language that broadly affirmed the right of property. Unlike many of the early state constitutions, the federal Constitution did not proclaim the natural right of property ownership or declare that a person could not be deprived of property except by due process. These striking omissions, however, may be understood by taking into account the larger political considerations that guided deliberations of the constitutional convention.

“For all their devotion to property rights, the framers were content to rely primarily on institutional and political arrangements to safeguard property owners. The basic constitutional scheme was to protect individual rights, including property, by limiting the exercise of government power through elaborate procedural devices. The framers expected that the separation of powers among the branches of the federal government would create a political climate of checks and balances in which property interests would be safe. Believing that unrestrained democracy posed a threat to liberty and property, the framers looked to the strong executive and the independent judiciary as curbs on legislative interference with property rights. Extolling the separation of powers, John Adams later explained: ‘The great art of lawgiving consists in balancing the poor against the rich in the legislature, and in constituting the legislative a perfect balance against the executive power....The essence of a free government consists in an effectual control of rivalries.’

“Further, the framers anticipated that property owners would dominate the new government and that such persons could be relied on to respect property rights. Hamilton, for instance, predicted that Congress would be largely composed of ‘landholders, merchants, and men of the learned professions.’ Under English law, participation in political affairs had long been confined to property owners, and a few delegates favored establishing a property requirement for suffrage and membership in Congress. It proved difficult, however, to formulate uniform standards. Accordingly, the Constitution allowed the states to determine the qualifications for voting. When the Constitution was written, virtually every state imposed a property or taxpaying qualification on suffrage and set higher property qualifications to hold public office....[But the framers] failed to foresee the rapid emergence of universal ...suffrage...a move that would upset their calculations."^{^[72]}

The Senate’s Role

Consider too what the Federalist Papers said about the Senate – their wisdom and experience would allow them to put the brakes on impetuous missteps by the more democratically oriented House of Representatives. Madison in Federalist numbers 62 and 63 observed:

“Another advantage accruing from this ingredient [the Senate] in the Constitution...is, the additional impediment it must prove against improper acts of legislation....[A]s the facility and excess of lawmaking seem to be the diseases which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation.”^{^[73]}

“[Having two houses of Congress will serve as] a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient.”^{^[74]}

“The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.”^{^[75]}

“It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood...or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”^{^[76]}

“The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on the continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.”^{^[77]}

“But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity; and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.”^{^[78]}

“...such an institution [the Senate] may be sometimes necessary as a defense to the people against their own temporary errors and delusions....[T]here are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?”^{^[79]}

The Senate was to “safeguard [the people] against the tyranny of their own passions;”^{^[80]}be “an anchor against popular fluctuations;”^{^[81]}and appropriately “blend stability with liberty.”^{^[82]} Commenting on the inconstant nature of pure democracy, which can sometimes be stirred up into almost a mob-like mentality in its abuse of individual rights, had Athens had something like the moderating influence of a Senate, “Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens [Socrates, etc.] the hemlock on one day and statues on the next.”^{^[83]}

Hamilton said:

“The objects of government may be divided into two general classes: the one depending on measures which have singly [or solely] an immediate and sensible operation; the other depending on the succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. The importance of the latter description to the collective and permanent welfare of every country, needs no explanation.”^{^[84]}

Madison agreed when he said that in order for Congress to promote the good of the whole, it must take into account “indirect and remote considerations” not just the “immediate interest.”^{^[85]}

In other words, legislators should not just consider the direct and immediate results of their legislation, but should also try to foresee indirect and delayed consequences before deciding upon a course of action. It was anticipated that by virtue of the way they would be selected, Senators would be better than their colleagues in the House at discerning the long-term importance of such indirect and delayed consequences. So it was hoped that our Senate could prevent the federal government from falling prey to the same impetuous democratic political pressures which caused so many problems at the state level during the Confederation period when property rights were so insecure.

Unfortunately, as discussed in the prior article, the 17^th Amendment changed the way Senators are selected. Rather than being selected by the various state legislatures, they are now popularly elected by the people directly. In addition to taking away their natural affinity towards protecting states’ rights, this change also subjected them to the same type of popular political pressures which have constantly influenced their colleagues in the House of Representatives. So it is now just as easy for Senators to consider only the direct and immediate consequences of things and also fall prey to the “tyranny of the people’s own errors, delusions, and passions” and not wisely serve as an intended anchor of restraint over Congress.

Property Rights Were Critical To Economic Prosperity And Individual Liberty

“The Federalist attachment to property went beyond the philosophical position that property constituted the basis of civil society and a safeguard of liberty. Federalists also emphasized the economic utility of private property. In their view, a strong national economy rested on private ownership. Security of property and respect for contractual arrangements facilitated the development of investment capital, a crucial feature of a commercial society....this market economy would generate additional wealth and ultimately benefit all citizens of the new republic through increased services and goods.

“Consequently, economic reform was a major Federalist priority. Supporters of the Constitution blamed inadequate government under the Articles for loss of credit, lower land values, and decay of commerce during the 1780s.”^{^[86]}

In a recent article making recommendations about how we can be more successful in our foreign aid efforts to help alleviate poverty around the world, the authors (O’Driscoll and Hoskins) made the following comments which are consistent with the foregoing discussion:

“The two essential elements of property rights are (1) the exclusive right of individuals to use their resources as they see fit as long as they do not violate someone else’s rights and (2) the ability of individuals to transfer or exchange those rights on a voluntary basis. The extent to which those elements are honored and enforced will determine how effectively prices in an economy will allocate goods and services. Both experience and theory indicate that economies with effective price systems are better at producing wealth. In short, the stronger the private property rights system, the better the economy is at efficiently allocating resources and expanding wealth-creating opportunities.* * *

“[T]he fact remains that effective protection of property is the only effective means for societies to make use of what they own, in the most efficient way, to promote both economic growth and prosperity.* * *

“[In considering the corrupt, poverty-stricken countries of the world,] the absence of secure property rights is the cause of corruption, and the creation of private property rights would be the cure for corruption. If they could operate in an environment of secure property rights, the world’s poor would have the solution to their own plight.”^{^[87]}

“Throughout much of American history, economic liberty was an essential component of constitutionalism. From the time of Chief Justice John Marshall, the Supreme Court has favored the creation of a national market and safeguarded the rights of property owners. Moreover, property rights have often been associated with transcendent political values....The protection given to property was fully consistent with one major theme of American constitutionalism – the restraint of government power over the individual. Historically, property ownership was viewed as establishing the economic basis for freedom from governmental coercion and the enjoyment of liberty.”^{^[88]}(emphasis added)

Conclusion

As one reads this bit of American history, one is doubly impressed with the idea that somehow, God must have helped us succeed since our chances for ultimate failure were so high. We have read Washington’s and Madison’s comments on their perceptions about Providential protection and aid during the Revolutionary War itself. But considering how close we were to anarchy and economic collapse after the war and how the powerful European nations hoped for our ultimate demise, one has to wonder if Heaven didn't somehow smile upon our founding generation and inspire it to do what was necessary to pull us out of our political death spiral. Considering how our Constitution was ultimately received around the world as one of the greatest political documents of all time, and the amazing economic and political success that followed its passage, it is not hard to believe that something special was going on here both through divine scripting and inspiration. When one reads the writings of the founders and framers, one is impressed that these men were among the smartest and wisest political minds of all time. What are the chances that they all could have been born at the same general time and place simply by accident? Certainly some will say that’s all it was -- coincidence -- but personally, I have a very hard time believing that.

Inspired by Adam Smith’s writings, as well as others, the founding generation saw the need for the protection of property rights and the creation of a free market economy unfettered by a lot of government regulation. Once it accomplished those things, the world watched in amazement as America quickly rose to become a major world power.

At first, we viewed property rights as being first class rights necessary to sustain liberty, but as time went on, they dropped in stature to only second class rights deemed worthy of sacrifice in our quest for “social justice” and the regulation of our free market economy from the early part of the twentieth century onwards.

In closing, I should point out one more thing. What about my prior discussion about states’ rights? In a prior article I extolled the virtues of states’ rights but in this one, the states don't come off looking very good. If one will remember from the first article, we were trying to find the appropriate middle-road between two extremes -- too little state sovereignty (in colonial times) and too much during and immediately after the Revolutionary War. We must consider the context of things. As discussed in this article, the framers could see that the states did not show enough respect for basic property rights and economic rights and hence, they were later reigned in significantly under our Constitution concerning these areas. Commerce, which was necessarily built upon these things, had to be protected at the federal level if we were to promote national economic prosperity which was sorely lacking at that point in time. Out of jealously, selfishness, and short-sightedness, the states instituted policies which effectively caused the whole country to suffer economically. Enough people could see the need to curb those abuses that democratic changes could occur through the adoption of the Constitution.

However, neither the Federalists nor the Anti-Federalists saw any problems with the states controlling their local moral environments under their police powers. As discussed in prior articles, the various trade-off decisions regarding the appropriate amount of separation between church and state, the regulation of speech, criminal laws, rights of the accused, etc. were left entirely to the states. Few, if any, saw any need to change those aspects of state sovereignty. However, drastic changes in this arrangement ultimately came about a century and a half later -- not democratically driven by any pressing national needs, but through inappropriate judicial activism by robed theorists legislating from the federal bench. But as discussed earlier, the appropriate balance between liberty and law is fundamentally a matter for democratic determination, not judicial.

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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 Second Amendment
The Second Amendment is among the most misunderstood provisions of the U.S. Constitution. That is not because it is particularly difficult to understand. On the contrary, for more than a hundred years after it was adopted, hardly anyone seemed the least bit confused about what it meant. The confusion, and some serious mistakes, only became widespread in the twentieth century, when influential people began to think it was a good idea to disarm the civilian population. Because the plain meaning of the Second Amendment rather obviously creates an obstacle to these disarmament schemes, the temptation to misinterpret this provision of the Constitution became very strong.
Until very recently, all the federal courts that had considered the matter had done just that, consistently misinterpreting the Second Amendment in a way that left it essentially meaningless. Two years ago, however, a federal judge in Texas did what many had considered unthinkable: he struck down a federal statute on the ground that it violated the Second Amendment.¹ The United States Court of Appeals for the Fifth Circuit has now reversed that judgment and upheld the statute, but it did so in an opinion that revived the straightforward constitutional interpretation that had prevailed throughout the nineteenth century.²
The Supreme Court has never addressed the question at all. Will that court follow the well-reasoned approach of the Fifth Circuit? Or will it instead ratify the predominant view of other courts that the Second Amendment should be deprived of any significance? No one knows. Whatever the future may hold, however, it is worth taking the trouble to understand the Constitution itself. This essay aims to provide a basic understanding of the meaning of the Second Amendment, and thus to enable the reader to exercise the kind of independent judgment with which American citizens are entitled to evaluate the work of all our courts.
THE TEXTUAL PUZZLE

For much of the twentieth century, there were two schools of thought about the meaning of the Second Amendment. Virtually the entire legal establishment, including most federal courts, contended that it protects only the right of state governments to maintain military organizations like the National Guard, or at most the right of military personnel to have arms while serving in that capacity. On the other hand, people who read English in the normal way thought that it protects a private right of individual citizens to keep and bear arms. If the framers of the Second Amendment had simply provided that "the right of the people to keep and bear arms shall not be infringed," even a lawyer would have trouble denying that it creates an individual right like the others in the Bill of Rights. But that is not what they did. Instead, they appended an explanatory introduction, so that the constitutional text says: "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 Second Amendment is the only provision in the Bill of Rights that contains a prefatory statement of purpose. This prefatory language may seem to create an inconsistency or tension between the stated purpose and the operational language used by the framers to advance that purpose. If the Constitution protects a personal and individual right to keep and bear arms, why does the text begin with a reference to a "well regulated militia" and its role in fostering the security of a free state? On the other hand, if the Framers meant to ensure that the militia was "well regulated," why did they choose to pursue that goal by guaranteeing an apparently much broader "right of the people to keep and bear arms"?
Modern commentators have proposed two principal ways to resolve the apparent tension between the prefatory phrase and the operative clause. One approach is to argue that the Second Amendment creates a right of the state governments to maintain organized militia forces that will enable them to offer military resistance against the federal government. This "states' right" or "collective right" theory is extremely important because it has been widely accepted in the courts for several decades. It is important to note, however, that the U.S. Supreme Court has never endorsed it. In fact, the Supreme Court has so far said very little about the Second Amendment, and nothing really definitive.³
The main alternative approach, common in late twentieth century academic commentary, is to argue that the apparent tension within the Second Amendment is illusory because its Framers conceived of the "militia" as a broad-based institution that effectively included all of "the people." In effect, the states' right theory depends upon conflating "the people" with the state governments, while this alternative argument depends on conflating "the people" with the "well regulated militia."
Both theories are wrong. The judicially regnant collective right theory is completely wrong, and demonstrably so. The alternative theory is correct to the extent that it treats the right to arms as one belonging to individuals rather than to governments, but it goes astray in trying to "match" the militia with the people. Properly understood, the Second Amendment means exactly the same thing that it would have meant had the prefatory phrase about the militia been omitted. That prefatory phrase helps to illuminate the animating purpose of the Second Amendment, and it addressed a very specific eighteenth century political issue, but it does not create any tension or inconsistency with the operative clause, and it certainly does not alter or modify the meaning of the operative clause.
THE OPERATIVE CLAUSE

Before examining the prefatory language, let us look more closely at the operative clause. It is worth emphasizing at the outset that this language is no more ambiguous or unclear than other provisions of the Bill of Rights. It states with unmistakable clarity that "the right of the people to keep and bear Arms, shall not be infringed." This language is parallel to that used in the First and Fourth Amendments:
Congress shall make no law… abridging… the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.⁴
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.⁵

All three amendments were framed together, and the First and Fourth Amendment rights have always been treated as individual rather than governmental rights. The framers of the Bill of Rights were apparently confident, and with good reason, that nobody would ever interpret the First Amendment to create a right that could only be exercised by lobbyists working for the state governments. And they were similarly confident that the Fourth Amendment would not be limited to protecting state bureaucrats from unreasonable searches and seizures. The utter strangeness of the states' right theory of the Second Amendment is immediately apparent when one tries to imagine why the framers of the Bill of Rights would have used an identical phrase-"the right of the people"-to describe two rights indubitably belonging to individual citizens and one right belonging solely to state governments or at most to certain employees of the state governments.
This sense of strangeness is reinforced when one reads the final provision of the Bill of Rights, which provides:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.⁶

This provision makes it unmistakably clear that the framers of the Bill of Rights knew very well that there is a meaningful distinction between "the states" and "the people." Interpreting the word "people" in the Second Amendment to refer to the state governments requires one to assume that the framers of the text were unbelievably sloppy or whimsical in their use of language. If one is going to make assumptions like that, one might just as well go all the way and assume that the Second Amendment uses the word "arms" to mean the upper limbs of the human body.
The bizarreness of assuming that "the people" means "the state governments" does not quite disprove the collective right theory. Legal draftsmen do make mistakes, including sloppy mistakes. Perhaps more important, legal draftsmen also sometimes assume, and not always justifiably, that their language will be interpreted by people who accept certain unstated premises and shared understandings.
Take, for example, the constitutional provision forbidding the enactment of "ex post facto" laws.⁷ Many normal users of the English language might not have a clue about the meaning of this term, which isn't in English. Someone who knew a little Latin might easily figure out that it constitutes a prohibition against retroactive legislation. But only someone versed in the law would realize that it might extend only to retroactive criminal laws. As it happens, the "ex post facto" language actually generated some confusion at the Constitutional Convention, and it is less than clear whether there was any consensus about its meaning among those responsible for ratifying the Constitution.
We shall need to be alert to the possibility that the Second Amendment uses language in a way that is foreign to modern or colloquial usage. With respect to the debate between the collective right and individual right interpretations, the only term in the operative clause that might be affected by this possibility is "the people." When we look at the original Constitution, it becomes plain that this term is sometimes used to include only a subset of the entire citizenry. The Preamble, for example, tells us that the Constitution was established by "the people,"⁸ but we know that many citizens were barred from participating in the state ratifying conventions. Similarly, Article I requires that members of the House of Representatives be elected by "the people,"⁹ but we know that women were not permitted to vote and that property qualifications were common at the time. So it's not at all impossible that "the people" referred to in the Second Amendment is a subset of the citizenry.
But "the people" still can't be the state governments. The Constitution nowhere uses the term "the people" to refer to state governments. Article I, for example, originally specified that the House of Representatives will be elected by "the people," but that Senators will be chosen by the legislature of each state.¹⁰ The importance of the linguistic distinction is confirmed by the Seventeenth Amendment, which created a new rule providing that Senators would be elected "by the people" of each state. Similarly, the members of the electoral college are appointed by each state in whatever way the state legislature directs, which may involve election by the people or some other means.¹¹ The Constitution never identifies the people with their state governments.
Interpreting the Second Amendment so as to identify the people with the state governments-an identification that the Constitution nowhere else even suggests-is far fetched for an additional immediately obvious reason. One of the most basic principles of American political thought-beginning long before our Constitution was made, continuing down to the present day, and unmistakably implied in the Constitution's Preamble-is that the people are sovereign, while legitimate governments are mere creatures of the people. To take only one of countless examples, Chief Justice John Marshall considered the following proposition self-evident: "That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected."¹² Treating any government as if it were the people would tacitly claim a status for the government that has never been publicly respectable in the United States. There is simply no reason to think that the Second Amendment does any such thing.
THE MILITIA PREFACE

It should come as no surprise that there are so many obvious problems with reading the operative clause of the Second Amendment to protect any sort of right belonging to state governments. If the Constitution had simply provided that "the right of the people to keep and bear arms shall not be infringed," nobody could maintain with a straight face that the provision could mean anything other than that individuals have that right. Doubts about the plain and obvious meaning of that clause have been raised only because of the prefatory phrase "A well regulated Militia, being necessary to the security of a free State . . . . "
Before looking at these words more closely, we should pause to focus on a few things that the Second Amendment does not say:

It emphatically does not say that it protects the right of the militia to keep and bear arms.

Nor does the Second Amendment say that the people's right to arms is sufficient to establish a well regulated militia, or that a well regulated militia is sufficient for the security of a free state.

Nor does the Second Amendment say that the right of the people to keep and bears arms is protected only to the extent that such a right fosters a well regulated militia or the security of a free state.

As these observations suggest, the grammar of the Second Amendment emphasizes the indefiniteness of the relation between the introductory participial phrase and the main clause. If you parse the Amendment, it quickly becomes obvious that the first half of the sentence is an absolute phrase (or ablative absolute) that does not modify or limit any word in the main clause. The usual function of absolute phrases is to convey information about the circumstances surrounding the statement in the main clause, such as its cause. For example: "The teacher being ill, class was cancelled."
The importance of this can be illustrated with a simple example. Suppose the Constitution provided:
A well educated Electorate, being necessary to self-governance in a free State, the right of the people to keep and read Books, shall not be infringed.¹³

This provision, which is grammatically identical to the Second Amendment, obviously means the following: because a well educated electorate is necessary to the health of a free state, the right of the people to keep and read books shall not be infringed. The sentence does not say, imply, or even suggest that only registered voters have a right to books. Nor does the sentence say, imply, or even suggest that the right to books may be exercised only by state employees. Nor does the lack of identity between the electorate and the people create some kind of grammatical or linguistic tension within the sentence. It is perfectly reasonable for a constitution to give everyone a right to books as a means of fostering a well educated electorate. The goal might or might not be reached, and it could have been pursued by numerous other means. The creation of a general individual right, moreover, would certainly have other effects besides its impact on the electorate's educational level. And lots of legitimate questions could be raised about the scope of the right to books. But none of this offers the slightest reason to be mystified by the basic meaning of the sentence.
The Second Amendment is no different. Modern readers may have difficulty in seeing how a general right of individuals to keep and bear arms could contribute to a well regulated militia and to the security of a free state, and we shall explore that question in more detail below. But the text of the Second Amendment offers not the slightest warrant for presupposing that the answer to the question is that its framers were semi-literate fools who meant to say something like "The states shall have the right to maintain independent military forces for use against the federal government."
THE PATENT AND COPYRIGHT CLAUSE AND THE CONSTITUTION'S PREAMBLE

The Second Amendment is unique among the elements of the Bill of Rights in containing an explanation of its purpose. But one provision of the original Constitution is similar to the Second Amendment in this respect. The Patent and Copyright Clause provides:
The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.¹⁴

Unlike the Second Amendment, this constitutional provision really does seem to imply through its grammatical structure that its statement of purpose serves a definite limiting function. On its face, the provision grants Congress a power to pursue a stated goal and to do so only by specified means. The natural reading of the provision is that Congress may grant copyrights to authors and patents to inventors only if doing so will promote the progress of science and useful arts. From this natural and logical reading, it would seem to follow that Congress has no power at all to grant copyrights to pornographers or racist hate mongers, whose writings do nothing to promote the progress of science or useful knowledge. Similarly, it would seem to follow that Congress has no power to grant copyrights to Luddites, who are actively seeking to retard the progress of science and the useful arts.¹⁵
Notwithstanding these obvious implications from the text of the clause, Congress has extended copyright protection to all manner of writings that obviously contribute nothing, or less than nothing, to the progress of knowledge. And the courts have never held or even suggested that Congress has thereby exceeded its authority. If the grammatically limiting language of the Patent and Copyright Clause does not in fact limit the power granted by that clause, the prefatory language of the Second Amendment-which does not serve a limiting function grammatically-cannot possibly limit the scope of the right in the amendment's operative clause.
Similarly, the Constitution's Preamble says that its purposes include the establishment of "justice" and promotion of the "general welfare." Nobody thinks that this authorizes the courts to strike down every unjust statute or every special interest pork barrel appropriation. Moreover, state constitutions from the founding period were littered with explanatory prefaces like the one in the Second Amendment, and they have never been construed to change the meaning of the operative clauses to which they were appended.¹⁶
The conclusion is inescapable: the prefatory language of the Second Amendment does not imply, or even suggest, that the operative clause means anything different than what it would mean without the prefatory explanation.
THE PURPOSE OF THE SECOND AMENDMENT

At this point, one might reasonably ask: If the prefatory phrase simply explains the operative clause, without limiting or qualifying it, what in the world does an individual right to arms have to do with a well-regulated militia? The answer to this question requires some historical background, and it requires some additional attention to the text of the original Constitution.
First, it must be recalled that the founding generation had a deep and widespread mistrust of peacetime standing armies. Many Americans believed, on the basis of English history and the colonial experience, that central governments are prone to use armies to oppress their own people. One way to reduce that temptation would be to allow the government to raise armies (consisting of full-time paid troops) only when they're needed to fight foreign adversaries. For other purposes, such as responding to sudden invasions or similar emergencies, the government could be restricted to using a militia consisting of ordinary civilians who receive a little bit of unpaid military training on a part-time basis.
This was part of a tradition deeply rooted in English history, but the original Constitution did not take this approach, for reasons we'll explore. But before going into the details, we should focus on five features of the original Constitution that are crucially important in understanding the Second Amendment.

First, the militia is not the army. The Constitution has separate provisions for each and it never confuses or blends the two.¹⁷

Second, Congress was given almost plenary authority over the army and the militia alike. The only powers reserved to the states were the rights to appoint militia officers and to train the militia according to rules prescribed by Congress.¹⁸

Third, the Constitution nowhere defines the militia. There is abundant historical evidence that the founding generation saw a fundamental difference between armies (usually composed of professional soldiers) and the militia (consisting of civilians temporarily summoned to meet public emergencies). But there is also abundant evidence that the founding generation was acutely aware that the militia could readily be converted into the functional equivalent of an army. There had been examples of this in England, and we have an example today in the form of the National Guard, which is now a fully integrated component of the federal armed forces.¹⁹

Fourth, the Constitution imposes no duties whatsoever on the federal government, either with respect to armies or with respect to the militia. Congress is not required to organize the militia in any particular way, or to keep it well regulated, or indeed to do anything at all to secure its existence.

Fifth, the Constitution expressly prohibits the states from keeping troops without the consent of Congress.²⁰

Turning back to the Second Amendment with these facts in mind, it becomes apparent why the Second Amendment cannot possibly have been meant to constitutionalize a right of the states to keep up military organizations like the National Guards. That theory implies that the Second Amendment silently repealed or amended two separate provisions of the Constitution: the clause giving the federal government virtually complete authority over the militia, and the clause forbidding the states to keep troops without the consent of Congress. When the Bill of Rights was adopted, nobody so much as suggested that it would alter these provisions, and nobody claims such a thing today. Indeed, these two provisions of the original Constitution have allowed the federal government essentially to eliminate the state militias as independent military forces by turning them into adjuncts of the federal army through the National Guard system. Under the states' right theory of the Second Amendment, the National Guard system must be unconstitutional, which everyone (including the Supreme Court) agrees is not the case.
The five elements of the original Constitution described above also help to explain the relationship between its introductory phrase and its operative clause. The relationship turns out to be deceptively simple, once we set aside the frame of mind encouraged by our experience with the modern bureaucratic Leviathan.
When we talk about making some aspect of life "well regulated" today, we usually mean that it should be heavily regulated, or at least more regulated. But this is simply a modern prejudice. The term "well regulated" does not imply heavy regulation, or more regulation. When you pause over the term, you should easily recognize what would have been much more immediately apparent to any eighteenth-century reader: something can only be "well regulated" when it is not overly regulated or inappropriately regulated.
Recall that the original Constitution gave Congress almost unlimited authority to regulate the militia. As the operative clause of the Second Amendment makes clear, its purpose is simply to forbid one kind of inappropriate regulation (among the infinite possible regulations) that Congress might be tempted to enact under its sweeping authority to make all laws "necessary and proper" for executing the powers granted by the Constitution.²¹ What is that one kind of inappropriate regulation? Disarming the citizenry from among which any genuine militia must be constituted.
Congress is permitted to do many things to ruin the militia, and to omit many things that are necessary for a well regulated militia. Congress may pervert the militia into the functional equivalent of an army, or even deprive it completely of any meaningful existence. A lot of those things have in fact been done, and many members of the founding generation would have strongly disapproved. But the original Constitution allowed it, and the Second Amendment did not purport to interfere with congressional latitude to regulate the militia. What the Second Amendment does is to expressly forbid one particular, and particularly extravagant, extension of Congress' authority to make laws "necessary and proper" for exercising its control over the militia. Whatever the federal government does or fails to do about the militia, the Second Amendment forbids it from disarming citizens under the pretense of regulating the militia.
THE CONSTITUTIONAL CONVENTION

At this point, one might object that simply forbidding one particular inappropriate regulation makes a pretty trivial contribution to fostering a well regulated militia. There is some truth in this objection, but less than one may think at first.
The Second Amendment was a response to a more specific and difficult political problem than most other provisions in the Bill of Rights. Because of historical memories going back to the period before the English Revolution of 1689, and because of actual memories of abuses by British troops in the colonies, the founding generation was marked by a strong and widespread aversion to peacetime standing armies. The militia system was treasured by many people primarily because the existence of a well regulated militia, composed of civilians readily available for emergency military service, tended to deprive the government of an excuse for maintaining standing armies.
Not everyone shared this sentiment. Alexander Hamilton, for example, thought the militia system was stupid, primarily because it violated the basic economic principle of the division of labor.²² More important, however, even those who treasured the militia recognized that it was fragile. And the reason it was fragile was the same reason that made Hamilton think it was stupid: citizens were always going to resist undergoing unpaid military training, and governments were always going to be strongly tempted to acquire more professional (and therefore more efficient and tractable) forces.
This led to a dilemma at the Constitutional Convention. Experience during the Revolutionary War had demonstrated convincingly that militia forces could not be relied on for national defense. The decision was therefore made to give the federal government almost unfettered authority to establish armies, including peacetime standing armies. But that decision created a threat to liberty, especially in light of the fact that the Convention also decided to forbid the states from maintaining armies without the consent of Congress.
One solution might have been to require Congress to establish and maintain a well-disciplined militia. This would have deprived the federal government of the excuse that it needed peacetime standing armies, and it would have established a meaningful counterweight to any rogue army that the federal government might create. That possibility was never taken seriously, and for good reason. How could a Constitution define a well-regulated or well-disciplined militia with the requisite precision and detail? It would almost certainly have been impossible.
Another solution might have been to forbid Congress from interfering with state control over the militia. This was also unworkable. Fragmented control over the militia would inevitably have resulted in an absence of uniformity in training, equipment, and command, and no really effective fighting force could have been created.
In effect, the choice was between a militia under state control, which would be too weak to prevent federal tyranny, and a militia under federal control, which almost by definition could not be expected to prevent federal tyranny. This conundrum couldn't be solved, and the Convention did not purport to solve it. Neither does the Second Amendment. What the Second Amendment does is ameliorate the problem to a very limited extent. Faced with a choice between a standing army and a well-regulated militia, the federal government might well prefer to establish a standing army and allow the militia to fall into desuetude. But faced with the choice between a well-trained militia and an armed but undisciplined citizenry, the government might prefer to keep the militia in good order. In this way, and in this way alone, the Second Amendment could contribute to fostering a well-regulated militia.
This interpretation of the Second Amendment is consistent with the historical evidence. Consider, for example, just one illustration from the ratification debates about the original Constitution. A number of Anti-Federalists argued that federal control over the militia would take away from the states their principal means of defense against federal oppression and usurpation, and that European history demonstrated how serious the danger was. James Madison responded that such fears of federal oppression were overblown, in part because the new federal government was structured differently from European governments. But then he pointed out a decisive difference between America and Europe: the American people were armed and would therefore be almost impossible to subdue through military force, even if you assumed that the federal government would try to use its armies to do so. Here is what he said in The Federalist No. 46:

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain that with this aid alone they would not be able to shake off their yokes.

Implicit in the debate between the Federalists and Anti-Federalists were two shared assumptions: first, that the proposed new Constitution gave the federal government almost total legal authority over the army and the militia; and, second, that the federal government should not have any authority at all to disarm the citizenry.
The disagreement was only over the narrower question of how effective armed civilians could be in protecting liberty. Anti-Federalists undoubtedly regarded the armed citizenry, and hence the Second Amendment itself, as a rather trivial safeguard against federal oppression. They may well have recognized that it had some value, for the mere existence of arms among the populace would raise the costs and risks of governmental oppression. But they could easily and plausibly have believed that there was no realistic prospect, even in the eighteenth century, that an unorganized and untrained body of citizens could prevail in battle against a determined federal government deploying a genuine army.
The very inadequacy (from an Anti-Federalist point of view) of the protection that an armed citizenry could offer against federal oppression, however, also rendered the Second Amendment completely noncontroversial. It is true that it could not satisfy Anti-Federalist desires for constitutional provisions aimed at preserving the military superiority of the states over the federal government. Attempting to satisfy that desire would have been hugely controversial, and it would have entailed amending the original Constitution. Nobody suggested that the Second Amendment could have any such effect, but neither did anyone suggest that the federal government needed or rightfully possessed the power to disarm American citizens. And not a single person ever so much as hinted that the Second Amendment created or protected any sort of right belonging to state governments.
As a political gesture to the Anti-Federalists, a gesture highlighted by the Second Amendment's prefatory language, express recognition of the right to arms was something of a sop. But the provision was easily accepted because everyone agreed that the federal government should not have the power to infringe the right of the people to keep and bear arms, any more than it should have the power to abridge the freedom of speech or prohibit the free exercise of religion. Like those freedoms, the right to keep and bear arms is an individual right belonging to every citizen, and one that nobody thought the federal government would have a legitimate reason to infringe.
Where does this leave us? It leaves us with a great many interesting and important questions about the meaning of the Second Amendment. But before those questions can be addressed properly, we have to free ourselves from the notion that the constitutional right to keep and bear arms is essentially tied up with military service, or that it was meant to create a right of states to maintain a military counterweight against the federal government. Such notions have no basis in the text or history of the Constitution.
THE SECOND AMENDMENT TODAY²³

The Second Amendment was not the least bit controversial when it was adopted, except among some Anti-Federalists who complained that it was too weak. This may seem quite odd to the modern reader, for it is self-evident to almost all of us that some forms of gun control are indispensable in a civilized society. Even the most ardent libertarians recognize that private citizens should not possess nuclear weapons or shoulder-fired antiaircraft rockets, and very few people think that everyone should be able to buy a machinegun or a flamethrower at the hardware store. But don't the laws restricting access to these weapons infringe the right of the people to keep and bear arms?
Two principal factors explain the relative insouciance of the founding generation. First, the "arms" referred to in the Second Amendment probably included only those that a single person could carry and operate (not artillery), and these so-called small arms were fairly primitive in the late eighteenth century. No Stinger missiles. Not even revolvers or other rapid-fire devices, let alone machineguns. Furthermore, the weapons carried by soldiers were no more lethal or subject to abuse than those typically kept by civilians for hunting and self defense.
Second, and much more important, the Second Amendment (and the rest of the Bill of Rights as well) originally restricted only the federal government, not the state governments. There was little need for the Framers to be concerned about the details of the inevitable tradeoffs between individual freedom and public safety because the Constitution left the states free to balance those competing goals in whatever ways they thought fit. Every state was left free by the federal Bill of Rights to establish an official religion, to require a government license in order to publish a newspaper, or to abolish the right of trial by jury. Similarly, the states were left free to regulate the private possession of weapons in whatever way seemed appropriate to them. The Framers could therefore have reasonably expected that new issues, like those raised by technological developments in weaponry, could and would be addressed by the state governments as they arose.
Beginning in the late nineteenth century, the Supreme Court began making some (though not all) provisions of the Bill of Rights operate as restrictions on the states as well as on the federal government. The story underlying this legal development is too complex to summarize here,²⁴ but the important point is this: The Supreme Court has never decided whether the Second Amendment will be applied against state laws, and it is impossible to predict what answer the Court will give if it ever chooses to decide the question. This uncertainty has considerable practical significance because almost all of the most severe gun control laws on the books today are state (and local) laws rather than federal laws.
Whether the Second Amendment is applied to the federal government alone, or to state and local governments as well, we have to ask whether it has become outmoded. If one focuses on the concern that primarily animated the founding generation-preventing tyranny-it is quite plain that an armed citizenry is much less important today than it was when the Second Amendment was adopted. Two hundred years of relative political stability have assured us that we have less reason to fear political coups than we might have had when the nation was young. And the great leaps forward in military technology have created a situation in which armed civilians would be less effective in resisting a tyrannical government than their eighteenth century counterparts.
This does not mean, however, that an armed citizenry is completely useless as a deterrent to government oppression. The mere existence of a large stock of arms in private hands inevitably raises the expected costs of governmental repression, and thereby makes it less likely to occur. This insight emphatically does not depend on the assumption that the federal government must be kept militarily inferior to the unorganized militia. On the contrary, it requires only a recognition of the simple fact that decisions about the use of military force are rationally determined, not by the feasibility or even the probability of ultimate success but rather by the ratio of an operation's expected benefits to its expected costs (with the magnitude of the prospective costs and benefits discounted by the probability of their being incurred and attained respectively). Anyone who doubts that proposition should spend a moment trying to figure out why the United States lost the Vietnam War and why the Soviets failed to subdue Afghanistan.
Anyone who thinks the anti-tyranny function of the Second Amendment is completely irrelevant today should also spend some time considering the historical experience of black Americans. At least until quite recently, one of the chief purposes of many gun control laws was to help secure the political subordination of the black population.²⁵ That goal was successfully achieved for a long time, but it might not have been so easy if blacks had enjoyed the same right of access to firearms that the white population reserved for itself.
Apart from the Second Amendment's role in deterring government oppression, the right to arms has another purpose that is every bit as important and urgent today as it was in the eighteenth century. That purpose is to enable American citizens to defend themselves, not against direct oppression by the government, but against oppression from which the government fails to protect them. The principal source of such oppression today is violent criminals.
Those responsible for the adoption of the Second Amendment accepted the individual right of self-defense as the natural basis for the right to arms. Like William Blackstone, and no doubt heavily influenced by him and other natural rights theorists, the people who gave us the Second Amendment drew no fundamental distinction between an individual's right to defend himself against a robber or a marauding Indian and that same individual's right to band together with others in a state-regulated militia. The inseparability of these concepts was reflected in two early state constitutions, which provided: "That the people have a right to bear arms for the defence of themselves and the state . . . ."²⁶ The breadth of the purpose of the right to arms was also apparent in the very first proposal for a bill of rights, which came from an Anti-Federalist minority at the Pennsylvania ratifying convention. The right to arms provision in this proposal reads:
That the people have a right to bear arms for the defence of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power.²⁷

The Pennsylvania minority report became an influential Anti-Federalist document, and it appears to have reflected typical republican concerns. Virtually every proposal for a bill of rights included a right to arms (which appeared with twice the frequency of demands for protecting the freedom of speech). Additional language praising the militia was added only in three states that acted late in the ratification process.²⁸
The individual right of self-defense, moreover, was also tied up with the institution of the militia. The eighteenth century militia did not serve merely as a military force in the modern sense. One of the militia's functions in eighteenth century America was to serve as an informal police force in a society that did not have organized government agencies designed to apprehend criminals. Indeed, the Constitution itself recognizes this by authorizing use of the militia "to execute the Laws of the union." More fundamentally, the armed defense of oneself and one's family against criminals was regarded as a legitimate and necessary defense of the community itself, in much the same way that private prosecutors were expected to help enforce the criminal laws.²⁹
The development of modern police forces has not eliminated this function. Although we seldom call out the traditional militia to keep the peace any more, this practice has in fact survived into modern times. More important, the police do not and cannot protect law-abiding citizens from criminal violence. The impotence of our governments in the face of criminal violence is so obvious that it is simply preposterous to maintain that those individuals with the means and the will to arm themselves are not thereby enhancing their ability to exercise their natural right of self-defense. This thought may not occur to wealthy people who can shelter themselves in low-crime enclaves and who care not at all about their less fortunate neighbors. But no one knows it better than the police, who vigorously defend their own right to carry firearms when they are not on duty (and often after they retire as well), even while some of them advocate disarming those whom the police cannot protect.
Contrary to a widespread misconception, moreover, violent crime is not reduced by disarmament laws aimed at the general population. The founder of modern criminology, Cesare Beccaria, offered the essential insight that explains this phenomenon over two centuries ago:
False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm those only who are neither inclined nor determined to commit crimes . . . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.³⁰

Thousands of experiments with firearms restrictions in American states and localities over a long period of time have now provided a rich source of empirical evidence against which Beccaria's conclusion can be tested. When evaluated using the standard tools of quantitative social science, this evidence does not indicate that American gun control laws restricting the availability of firearms to the general population reduce violent crime.
This fact deserves the utmost emphasis, although it is not practicable to attempt a detailed summary of the empirical studies here. The conclusions of these studies should not be surprising, for they can only seem counterintuitive to those who fall into the fallacy identified by Beccaria, of wishing to "take fire from men because it burns, and water because one may drown in it." Firearms can be used for both illegitimate purposes and for legitimate purposes. Restrictions on civilian access to firearms cannot even claim to make any sense unless they can plausibly be expected to reduce illegitimate violence more than they reduce legitimate acts of self- defense and law enforcement. Illegitimate violence occurs in three main ways: (1) an individual procures a gun in order to use it in crime; (2) an individual procures a gun for legitimate purposes, but ends up misusing it spontaneously; and (3) a gun obtained for legitimate purposes kills or injures someone through an accident.
The problem associated with the first category is extremely unlikely to be ameliorated by firearms restrictions that apply to the general population, essentially for the reason identified by Beccaria. The demand for guns by criminals is highly inelastic, while the supply is very elastic indeed. Criminals simply are going to obtain firearms so long as the cost of obtaining them does not exceed the benefits the criminal expects them to bring. How could gun control laws change this cost-benefit ratio? If the penalties for possessing firearms were raised to a very high level, many potential victims would certainly be disarmed. A significant fraction of criminals, however, would continue to arm themselves in the expectation of violent encounters with other criminals (as in the drug trade) or with the police.
At the same time, we would expect to see guns used less frequently in some crimes that involve preying on civilians, such as burglary and robbery, because the potential victims would themselves be less likely to be armed. That, however, does not mean that these crimes would themselves decrease. On the contrary, substitution effects would occur. Other weapons, such as knives and clubs, would be used instead of guns to commit the same crimes. There might, in addition, be some substitution of burglaries for robberies. Similarly, stringent gun control laws might well cause the criminals who commit crimes like robbery to be more careful to seek physically weaker victims like women and the elderly. No one has ever explained why such substitution effects should count as a gain in social welfare, especially when potential victims would also be more vulnerable to those criminals who would continue to use firearms. The judicial obligation to enforce the Second Amendment is not contingent on someone's proving that an armed citizenry is a cure-all for crime, any more than the obligation to enforce the First Amendment depends on its ability to eliminate lies and corruption from the public discourse.
In theory, general restrictions on the possession of firearms by civilians could reduce the incidence of violence arising from the other two categories. Accidents, however, are a trivially small cause of firearms deaths. That leaves the so-called "crimes of passion"-unplanned murders that would not occur if the perpetrator did not happen to have ready access to a firearm. The effect of gun control laws on this category of crime is extremely difficult to isolate, for a variety of reasons. First, the criminal justice system's statistical records do not distinguish systematically between planned and unplanned crimes. Second, many apparently spontaneous murders in which a gun was used, especially those resulting from domestic disputes, might have been committed with other weapons if a gun had been unavailable. Third, the number of spontaneous murders prevented by gun control laws would be partially offset, or more than offset, by murders (including some spontaneous murders) that took place only because the gun control laws themselves caused the victims to be unarmed when they were attacked.
The virtual inevitability of substitution effects and offsetting effects suggest that there is no particularly good reason to expect that general restrictions on firearms would reduce the overall incidence of gun violence. In fact, the empirical evidence has not shown any such effect, while it has shown that crime victims are quite successful in using firearms to defend themselves.³¹ It may be possible to devise regulations that would reduce the incidence of spontaneous murders and negligent shootings without significant negative offsetting effects, but such regulations might also be distinguished for constitutional purposes from the usual restrictions that apply indiscriminately to the general population.
This does not imply that a well armed populace is a panacea for the problem of violent crime. The same merciless realities that prevent the usual forms of gun control from accomplishing their stated purposes also ensure that civilian access to firearms can continue to co-exist quite easily with a high rate of crime. It does imply, however, that the government is on very weak ground when it offers vague and speculative social welfare goals to justify depriving a complaining individual of the right to have tools that are manifestly helpful in serving that individual's interest in defending himself (and especially herself, since women are generally more physically vulnerable to violent attacks than men and much more likely to be the victims of certain violent crimes).
In any event, the judicial obligation to enforce the Second Amendment is not contingent on someone's proving that an armed citizenry is a cure-all for crime, any more than the obligation to enforce the First Amendment depends on its ability to eliminate lies and corruption from the public discourse. In terms suggestively reminiscent of Beccaria's critique of gun control laws, Justice William Brennan eloquently explained why it is a mistake to think that freedom should be abolished merely because some people are bound to misuse it:
The constitutional protection [provided by the First Amendment] does not turn upon "the truth, popularity, or social utility of the ideas and beliefs which are offered." As Madison said, "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press."…[T]o persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.³²

Someone who strongly disapproved of our raucous and often degrading marketplace of ideas could easily believe that the freedoms of speech and press protected by the Court's First Amendment jurisprudence do not have enough social utility (even "in the long view") to outweigh the excesses and abuses to which they frequently lead. The constitutional test, however, cannot depend on its acceptability to people who take that position, even if they are very numerous or politically influential. As the quotation above suggests, and as hundreds of decisions over the course of many decades confirm, the courts do not demand that First Amendment rights be held to such a standard. Doing so would obviously amount to repealing the First Amendment by judicial fiat. Instead, the Court has declared that the Constitution creates a strong presumption in favor of individual freedom, and has imposed a heavy burden of justification on governments that impose restrictions on speech or the press.
The differences between the First and Second Amendments are obvious enough, but the similarities are more important. In both cases, the Constitution establishes a rule that protects a human activity that its Framers regarded as a natural right: thought and self-governance in the one case and self-defense in the other. In both cases, the Constitution reflects a determination that the social benefits of giving legal protection to the instruments needed for the pursuit of those goals will outweigh the inconveniences arising from their misuse. In both cases, the erection of this barrier against the state governments will necessarily involve the courts in the business of balancing the public welfare against the interests of those individuals whose liberty the government wants to restrict. In neither case, however, does the accretion of this power to the courts justify them in striking the balance differently than an honest reading of the Constitution suggests.
Supreme Court Justices, it is true, are drawn from a class of people who are among the least vulnerable to violent criminals. The reputations of individual Justices, moreover, are highly dependent on the good will of the journalists and academics who depend on the freedom of speech for their livelihoods and social ascendancy. This may make it easier for members of the Court to appreciate the value of the First Amendment than to see why the Second Amendment still matters. If they gave the matter the disinterested attention that we have a right to expect from our judicial magistrates, however, the Justices should acquire serious doubts about the constitutionality of many currently popular restrictions on firearms. I will conclude with brief discussions of three examples, not in an effort to carry out the impossible task of offering a comprehensive exposition of an undeveloped jurisprudence, but to illustrate that serious legal questions need to be raised about statutes whose constitutionality is too often taken for granted.
First, consider the federal ban on certain so-called "semiautomatic assault weapons." This law applies to nineteen guns specifically identified by make and model, and to any other rifle (except some that are specifically exempted) that both accepts a detachable magazine and possesses any two of the following characteristics: a folding or telescoping stock, a bayonet lug, a flash suppressor, a pistol grip, or a grenade launcher.³³
This statute is fundamentally irrational because it restricts access to certain weapons on the basis of essentially cosmetic features, leaving functionally identical arms unaffected. There is no general principle related to public safety that one can use to distinguish two otherwise identical carbines, one of which has a pistol grip and folding stock and the other of which has a grenade launcher but none of the other four suspect attachments. Nor can one rationally explain why a carbine that has a flash suppressor should become illegal when a bayonet lug is added, but should then become legally innocuous when either the lug or the flash suppressor is removed.
Ironically, this "assault weapon" statute is so deeply arbitrary that it cannot itself actually undermine the purposes of the Second Amendment in any appreciable way. It bans only a limited class of weapons configured with certain random accouterments, leaving essentially identical arms unrestricted and leaving citizens free to keep any of the accouterments ready to be attached to the weapon if need be.
This does not imply, however, that courts should uphold the regulation. As the Supreme Court has recognized in the analogous area of the First Amendment, leaving legislatures free to engage in whimsical infringements on fundamental rights prepares the way for more serious assaults on individual liberty. Just as no court would interpret the First Amendment to allow Congress to ban the use of words that contain diphthongs, even if perfectly adequate synonyms for all such words remained available, so the courts should decline to authorize equally trivial but irrational infringements on the right to arms.
A Court that takes its constitutional responsibilities seriously would also be likely to invalidate laws that affect less bizarrely defined classes of weaponry. Consider, for example, the law in Washington, D.C., where virtually all civilians are forbidden to possess any handgun that was not registered prior to September 24, 1976.³⁴ Because citizens are permitted to possess rifles and shotguns, though only if they comply with onerous registration requirements and only if they keep them unloaded and disassembled,³⁵ the infringement on the right to keep and bear arms is not absolutely complete. The infringement is nonetheless very substantial, for handguns have important functional advantages in self-defense, primarily arising from their concealability, portability, and maneuverability in confined spaces like those in which many city residents live. Moreover, to the extent that handguns can be and are replaced by rifles and shotguns, the likely effect of the law is to increase the number of deaths from gunfire because shoulder-fired weapons are generally much more lethal than handguns.³⁶
It is unlikely that the government could present any plausible argument for concluding that the handgun ban serves a genuine public purpose in a way that justifies the infringement of constitutional rights. To see how problematic the constitutionality of this law is, imagine that the government banned cable television from Washington, D.C. on the theory that the corrupting nature of television programming was contributing to the city's notoriously high rate of violent crime. This would not be an irrational statute. The government has an obvious and legitimate interest in reducing such crime, and there is research indicating that television programming may be a contributing factor to high crime rates.³⁷ Indeed, the evidence to support this conclusion may be significantly stronger than any evidence suggesting that Washington's gun ban could have an ameliorative effect on the rate of violent crime.³⁸ It is inconceivable that any court would uphold such a ban on cable television, and it is not the least bit obvious that the Supreme Court would have any greater justification for upholding the existing gun control law.
Finally, consider the restrictions that our governments commonly place on carrying weapons in public. If the courts took the right of self-defense as seriously as they should, and thought through its implications with respect to the tools needed to exercise that right when it matters, they would have to confront the fact that the Second Amendment protects both the right to keep arms and the right to bear them. That does not mean that the government can put no restrictions on the people's right to carry weapons about in public, any more than the First Amendment forbids government from imposing certain kinds of restrictions on the exercise of free speech. It does mean, however, that the government should face a heavy burden when called upon to justify such restrictions, which often operate to deprive the people of access to weapons in just those circumstances when they are most needed.³⁹
This burden might be quite difficult to meet. An important body of evidence began to develop after the state of Florida dramatically loosened its restrictions on the carrying of concealed weapons in 1987. Although it has long been true that American jurisdictions with the most restrictive gun controls have also tended to have the highest crime rates, it has also been plausible to suppose that the restrictive laws were a result rather than a cause of the high crime rates. Like many states with high crime rates, Florida had traditionally left considerable discretion to issue concealed-carry permits in local government officials, and most urban areas issued very few permits. In 1987, the state adopted a new system, in which an applicant who passed a background check and took a training class was automatically issued a permit upon payment of a small fee. Infinitesimal numbers of concealed-carry permit holders used their guns for criminal purposes, and criminal violence overall may well have dropped because of the new law.⁴⁰ In fact, there is apparently direct evidence that Florida criminals began to target tourists specifically because they knew that tourists are less likely than residents to be armed.⁴¹ This direct evidence tended to confirm the results of a careful study of the attitudes of imprisoned felons, who reported both considerable sensitivity to the odds of their victims being armed and numerous occasions on which they had refrained from committing a crime because of the prospect that the chosen victim might be armed.⁴²
Florida's well-publicized success with liberalized carry laws encouraged other states-including Virginia-to adopt similar reforms, and it has now become possible to make meaningful statistical estimates of the effect that concealed-carry laws have on crime rates. A very sophisticated study by John R. Lott, Jr. used cross-sectional time-series data at the county level to confirm a strong connection between giving law-abiding citizens the right to carry a concealed weapon and a large deterrent effect on violent crime.⁴³ The Lott study, which is far more successful in controlling for relevant variables than previous gun control studies, dramatically confirms Beccaria's theoretical insight and refutes long-standing conventional wisdom. When the chances of encountering an armed victim go up, violent crime goes down, and this effect is particularly pronounced in urban areas with high crime rates. While it may be true that high rates of violent crime provoke stricter gun control laws, those laws in turn drive the rates even higher. If the entire nation had adopted concealed carry laws like Florida's in 1992, Lott's evidence indicates, many thousands of murders and rapes would have been prevented. In the face of such evidence, it is hard to see why courts should allow governments to rely on slogans and prejudices as a reason for stripping potential victims of their right to protect themselves from violent predators.
This is not to say, of course, that empirical social science can offer meaningful assistance with every question that will arise concerning the costs and benefits of gun control laws. If the Second Amendment were treated like the First Amendment, cases involving restrictions on the right to carry weapons in public would present the courts with some difficult questions, and they would surely make some mistakes. That, however, is simply one more way in which the Second Amendment resembles the First Amendment.
A RAY OF LIGHT

The United States Court of Appeals for the Fifth Circuit recently took the first crucial step toward a restoration of the Second Amendment to its rightful place in our constitutional jurisprudence. In United States v. Emerson, that court emphatically embraced the conclusion that the right to keep and bear arms is a private right belonging to individual American citizens. In a lengthy and scholarly opinion, the court offered a careful textual exegesis and a thorough review of the relevant constitutional history. On the basis of this analysis, the court unequivocally repudiated the views of the many other appellate courts that had adopted the collective- or states'-right theory of the Second Amendment.
Notwithstanding its embrace of the individual-right interpretation, the Fifth Circuit upheld the federal criminal statute under which Emerson had been prosecuted. That statute forbids an American citizen to possess firearms while he is subject to a state court restraining order that prohibits the use or threat of physical violence against his "intimate partner" or child. A serious constitutional question arose because such a restraining order had been issued to Emerson as part of a routine divorce case even though (1) the divorce court judge had not explicitly ruled that there was any actual danger of such violence, and (2) the record of the state court proceeding contained no evidence of any direct threats by Emerson against his wife or child. The trial court had concluded, plausibly enough, that Emerson should not lose his Second Amendment rights merely because a state judge had ordered him to obey laws that he had never broken or threatened to break.
In reversing the trial court, the Fifth Circuit interpreted Texas law to forbid the issuance of such restraining orders in the absence of "a realistic threat of imminent physical injury to the protected party," but it also concluded that federal law forbids a federal court from inquiring whether this requirement was actually met or not in a particular case. The court also implied quite clearly that if a state's law did permit a restraining order to issue without a realistic threat of lawless violence, the Second Amendment would be violated by a federal statute that automatically disarmed someone merely because he was subject to such an order.
In effect, the court is telling those who want to retain their Second Amendment rights that they should not acquiesce in the issuance of restraining orders that are based on factually unsupported assumptions about their proclivity to violence. One might reasonably argue that American citizens should not be able to lose their fundamental constitutional rights as easily as Emerson lost his rights in this case. And one would be right to worry about cases in which state courts are far too quick to perceive a threat of violence that doesn't really exist. But the Fifth Circuit was not behaving outlandishly when it concluded that this particular disarmament statute was adequately supported by overriding governmental interests in preventing the misuse of firearms. And, perhaps more important, the court regarded this as a genuinely close case, for it acknowledged that the nexus between the government's legitimate goal and the means it chose to advance that goal appeared to be only "minimally" sufficient to uphold the statute. For once, a federal appellate court has actually taken the Second Amendment seriously, and that is a great step forward for constitutional law.
CONCLUSION

The Second Amendment unambiguously and irrefutably establishes an individual right to keep and bear arms. This conclusion, which is dictated by the language of the Constitution, is confirmed by an abundance of historical evidence. Nor is it contradicted by anything yet discovered in the Constitution's legislative history or in the historical background that illuminates the understandings of those who adopted the Bill of Rights.
The precise scope of the Second Amendment's guarantee, however, and its proper application in a world that has changed enormously since 1791, cannot be determined solely by reference to the Constitution's text and history. Subsequent developments in the technology of weapons and in military technique have rendered the armed citizen wholly impractical as a substitute for standing armies and much less potent as a deterrent to despotism. At the same time, the increased destructive potential of small arms has raised new questions about the type of "arms" that may appropriately be left in civilian hands and about the regulations that may constitutionally be imposed on civilians' use of their weapons. These questions will assume real importance if the Supreme Court takes up the Second Amendment with the same serious attention that it has given to the First Amendment and other provisions of the Bill of Rights.
Despite all the changes that have occurred, the Second Amendment can continue to serve its fundamental purpose. That purpose is to secure the natural right of self-defense, which is no less threatened when government deprives its citizens of the tools for resisting criminal predators than it would be if the government itself turned outlaw. This simple but momentous insight is the key that opens the door for a serious Second Amendment jurisprudence, and it thus gives the constitutional scheme of ordered liberty its best hope of surviving in the crucible of litigation.