That Every Man Be Armed: The Evolution of a Constitutional Right. Revised and Updated Edition.

Introduction: Firearms Prohibition and Constitutional Rights

xix ✯ INTRODUCTION FIREARMS PROHIBITION AND CONSTITUTIONAL RIGHTS T he United States Supreme Court has recently reiterated that the right to keep and bear arms is one of many other “specific guarantees . . . provided in the Constitution.” More specifically, the Court listed these rights: “the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.”1 Moore v. East Cleveland (1977), the opinion in which this language appears, clarifies little else about a subject the high court has rarely spoken on—the right to keep and bear arms. Moore seems to place the right recognized in the Second Amendment on a level of equal significance as the rights protected by the First and Fourth Amendments. Posed in a discussion of the rights incorporated into the Fourteenth Amendment, the opinion also appears to imply that the right to have arms is protected from state infringement. On the other hand, in 1969 the Supreme Court dismissed an appeal seeking to invalidate New Jersey’s Gun Control Act for want of a “substantive federal question.”2 Of course, that act did not prohibit the possession of arms but only required a police permit to buy them, a permit available to all law-abiding citizens. In its entire history, the Supreme Court has spoken only rarely and sketchily on the meaning and applicability of the right to keep and bear xx INTRODUCTION arms. But the rapidly escalating and comprehensive forms of firearms control , regulation, and prohibition at both federal and state levels must at some point provoke a more definitive response from the Court. Since, after all, the Bill of Rights guarantees this right, at some point the Court may no longer be able to avoid defining more comprehensively the meaning of the Second Amendment and determining whether the Fourteenth Amendment guards the right from state infringement. The objective of this study is to provide the basis for just such a definition and determination , and thereby to contribute a comprehensive jurisprudence of the right to keep and bear arms. Both federal and state courts may perhaps indefinitely defer decisions on matters such as the nature and scope of the Third Amendment’s proscription of the peacetime quartering of soldiers, for no case or controversy seems likely to arise from the question.3 However, increasingly restrictive forms of gun-control legislation, which have been or may be enacted, prompt the exposition of the constitutional limits of such legislation. The possible conflict of the escalating firearms control legislation at both state and federal levels with both constitutional and statutory provisions, as well as with common law, makes resolution of the nature of the right to have arms imperative. This right needs to be defined not only in terms of the requirements of the Second and Fourteenth Amendments (and possibly the Ninth and Tenth), but also in terms of state constitutions and civil rights laws that contain no explicit provisions protecting the right to possess arms or that have provisions which differ in wording from the Second Amendment. Indeed, the definitional parameters of a right to keep and bear arms protected by the Fourteenth Amendment, if such right exists, may differ from state provisions even where the language of those provisions is identical with the Second Amendment, since federal standards for protection of fundamental rights may be held to be more stringent than standards set by states.4 The federal gun-control legislation of 1968 provides severe penalties only for acts that are mala prohibita (evil only by reason of a legislative act) and not for those that are mala in se (inherently evil).5 A nonfirearms dealer who sells or gives any firearms to a resident of a state other than his own commits a felony. Technically, a father who presents the family rifle to his son who resides in another state is subject to imprisonment of five years and a fine of five thousand dollars.6 Generally, arms can be bought, sold, or otherwise transferred by xxi INTRODUCTION nonlicensed persons only within one’s home state. Persons who engage in the business of buying or selling arms or ammunition must acquire a federal firearms license. However, what constitutes engaging in such business has never been clearly defined; accordingly, innocent-minded citizens have been arrested by agents of the Bureau of Alcohol, Tobacco, and Firearms.7 Possession of shotguns with barrels of less...