"No freeman shall ever be debarred the use of arms "Thomas Jefferson, proposed Virginia Constitution, Jeffferson Papers (Boyd ed., 1950, vol. 1, p. 344.

". . . to disarm the people, that it was the best and most effectual way to enslave them. . . . ." George Mason, 3 Elliot Debates (on the Constitution) 300.

"The great object is, that every man be armed. . . . Everyone who is able may have a gun," Patrick Henry, 3 Elliot Debates 386.

"Have we the means of resisting disciplined armies, when our only defence, the militia is put in the hands of Congress?" Patrick Henry, 3 Elliot Debates 48.

"And that the said constitution be never construed to authorize Congress . . . to prevent the people of the United States, who are peaceable citizens, from keeping their own arms. . . . " Samuel Adams, Philadelphia Independent Gazatteer, August 20, 1789

"And what country can preserve its liberties, if its rulers are not warned from time to time that this people preserve the spirit of resistance? Let them take arms. . . . The tree of Liberty must be refreshed from time to time, with the blood of patriots and tyrants." Thomas jefferson, Letter to William S. Smith, 1787, in S. Padover (ed.), Jefferson, ON DEMOCRACY (1939), p.20

"Are we at least brought to such a humillating and debasing degradation, that we cannot be trusted with arms for our own defense? Where is the difference between having our arms in our possesion and under our own direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?" Patrict Henry, 3 Elliot Debates 168-169.

"Conrress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American. . . . (The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the [eople." Tench Coxe, Pennsylvania Gazette, February 20, 1788.

Some argue that the use of the term "Militia" in the Second Amendment limits the rights protected by the Second Amendment to members of organized State military bodies. They claim the right to keep and bear arms is a "collective" not "individual" right and that the U.S. Supreme Court has affirmed that "collective" interpretation in four decisions.

That contention, however, cannot be historically or legally substantiated. And glib references to Supreme Court decisions in defense of that position also fall flat when closely examined.

"I ask who are the militia? They consist now of the whole people, except a few public officials."

Mason's definition contains within it the history of the Colonies' struggle against George III and that of the English people themselves against oppression by tyrannical sovereigns.

Mason's words did not spring from the newly independent Colonies' immediate experience alone. Rather, they were steeped in the tradition cherished by the English as the basis of their freedom-the Common Law.

In the minds of the English citizenry and the Victorious ex-Colonists, the greatest danger to free men was the threat to or loss of their personal liberty.

  ". . . The liberties of Englishmen ... consist, primarily, in the free enjoyment of personal security, of personal liberty and of private property ... and "so long as these remain inviolate, the subject is perfectly free."

  Blackstone allowed that "every species of tyrannical oppression must act in opposition to one or other of these rights." And in defense of their liberties, Blackstone noted those avenues open to British subjects.

  The first entitles the subject to "the regular administration and free course of justice in the courts of law." Next, they may "petition the King and Parliament for redress of grievances." Lastly, the people have "the right of having and using arms for self-preservation and defense."

  The English citizenry's access to personal arms and an innate mistrust of a standing Crown controlled army were foremost in importance to English freedom.

  During Saxon times, there was no standing army, no police. The peace was kept within each Tything (grouping of ten families), Hundred (ten Tythings), or Shire (county) by the populace themselves. When a fugitive or suspect was loose upon a Shire, all able-bodied men were required to join in the "Hue and Cry" to bring him to justice. Likewise, all able-bodies males were liable to military service when the need arose.

  With Henry II came the Assize of Arms of 1181 (the first attempt by a Norman King to reinstitute the duty of the freeman to protect his home) which dictated the type of arms and armor to be kept according to the subject's rank or wealth. The Statute of Winchester under Edward I in 1285 later required that ". . . every man between 15 years of age and 60 years shall be assessed and swom to armour according to the quality of their lands and goods."

  Forty-three years later Edward III, in the Statute of Northampton, warned against the wearing of arms in public: "No man great or small ... [shall] go nor ride armed by night nor by day, in fairs, markets nor in the presence of justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the King and their bodies to prison at the King's pleasure."

  There is some doubt about the effectiveness of the law. Wrote J.J. Jusserand-French ambassador to the U.S., Pulitzer prize-winning historian, and student of 14th century England-in 1895: ". . . manners being violent, the wearing of arms was prohibited, but honest folk alone conformed to the law, thus facilitating matters for the others. . . ." Moreover, the English courts interpreted Edward's decree to apply only when the individuaI bore his arms in such a way as to terrify the populace. Nonetheless, that statute is often cited in defense of modem-day prohibitions against carrying arms.

  Henry VIII, in 1541, after several vain attempts to prohibit the then new firearms to all but nobles and men of wealth, permitted, and indeed encouraged (because all able-bodied men continued to be obliged to render military service) the ownership and use of most firearms. His earlier actions had not been, however, an attempt to disarm the citizenry; rather, he feared the citizenry would neglect their archery skills if they were not prohibited from engaging in recreational activities with firearms which, at the time, were not sufficiently developed to be useful for military purposes. The long bow at the time was the mainstay of the military.

  The continental tradition of maintaining a crown-controlled standing army was introduced to England by Charles 11 and continued with James 11. Under Charles 11, moreover, guns, bows, and hunting dogs were forbidden to those without title or wealth. His reasons: to prevent poaching by the hungry rabble and to disarm the citizenry to prevent their opposition to his tyranny. His successor, James II, increased Charles's army from 5,000 to 30,000 and forbade arms to all Protestants, an act that proved James's undoing.

  With James's abdication, Parliament presented William and Mary with a Declaration of Rights to which they had to assent before being allowed to take the throne. Included was the right of all Protest ts to have arms for their personal defense. That document, it must be emphasized, did not create new rights. Rather, it recited those extant within the Common Law. And, as Blackstone states in the section of his Commentaries subheaded "Of the Absolute Rights of Individuals": "the fifth and last auxiliary right of the subject ... isthat of having arms for their defence. . . ." Blackstone's explanation of the rationale behind that inalienable right is that it is a ". . . natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."

  The British experience that led to the Declaration of Rights prompted Blackstone to comment concerning the concept of a standing army:

  "In a land of liberty, it is extremely dangerous to make a distinct order of the profession of arms. . . ." The laws [of England] know no such state as that of a perpetual standing soldier, bred up to no other profession than that of war. . . . Nothing then . . . ought to be more guarded against in a free state than making the military power ... a body too distinct from the people ... it should wholly be composed of natural subjects; it ought to be enlisted for a short and limited time: the soldiers also should live intermixed with the people. . . ."

  In post-revolutionary America, the authors of the Constitution, well versed in Blackstone's Commentaries on the Common Law and fresh from battle with George III's forces, agreed with Blackstone's reservations against the concept of a standing army.

  Among the natural and Common Law rights which were sought to be preserved was the right to self-defense. And among the latter concerns about the powers of Congress was the concern that Congress had been given too much power over the militia. As expressed by George Mason, the power to "provide for ... arming ... the Militia" might, particularly if viewed as an exclusive power of Congress, purposefully be neglected by Congress to "render the militia useless ... [and] have a pretence of establishing a standing army" with which to deprive citizens of their freedoms. To prevent such an occurrence, Mason and other Antifederalists wished the proposed Constitution amended to remove from Congress what they were concerned would be viewed as an exclusive power to provide for arming the militia.

  By the time the Constitution had been ratified, it was clear, because of tremendous public support, to Federalists (those who supported the Constitution as then written) and Antifederalists alike, that guarantees of individual rights would have to be added to the Constitution. Thus, when the First Congress met, the Federalists agreed to give up their objections to the addition of a Bill of Rights if the Antifederalists would give up their attempts to restructure the federal-state division of power.

  In the course of reaching this great compromise, a number of comments were made concerning the right to keep and bear arms, the militia, and the standing army. For example, Representative n ge Gerry of Massachusetts stated: "What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty." Thus, Gerry saw the existence of the militia as making unnecessary a standing army, a tool easily manipulated by a tyrannical federal government attempting to deprive citizens of their liberty. The militia, on the other hand, which maintained the character of the "citizen soldier" -men from every walk of life-would resist any efforts by a despotic federal government to erode individual liberties.

  Men like Gerry, therefore, staunchly believed in and defended the individual's right to keep and bear arms since they believed that an armed citizenry was the best defense against maladministration by government, a sentiment which had been expressed by Alexander Hamilton and James Madison in the Federalist Papers.

  Plainly evidencing their belief in an armed citizenry being the safest and natural means of defending a nation of freemen is the fact that that term "well regulated" was used to modify the word "militia" in the Second Amendment. The use of that term demonstrates the Framers' intent that the militia, consisting of all able-bodied persons, be proficient and experienced in the use of firearms, a condition that could most effectively be arrived at if every person owned and was familiar with firearms.

  Following ratification of the Bill of Rights, Congress enacted the Militia Act of 1792 that required that all able-bodied white males between the ages of 18 and 44 be enrolled in the militia and that every citizen so'enrolled provide himself with certain arms and equipment. It is plain that the word "militia," as used in the Second Amendment, includes this enrolled militia since, if " militia" referred only to a formal military body, "well regulated" would be superfluous as it is in the very nature of a formal military body to be proficient and experienced, in the use of firearms.

  Although the enrolled militia was not established by federal law until 1792, that law was merely a recodification of the state militia laws which in turn dated back to English laws, such as the previously cited Statute of Winchester, and before that to Saxon practice before the Conquest.

  There is virtual unanimity among constitutional scholars that one of the purposes of the Second Amendment was to prevent a tyrannical federal government from depriving citizens of their liberties. But a formal military body completely controlled by the federal government could not fill that critical role. Thus, only the constitutional militia, i.e., "all citizens capable of bearing arms," could serve the purpose addressed by the Second Amendment. The Second Amendment and the Militia Act were enacted almost simultaneously, less than six months apart, and together created what, the Framers conceived as the nation's bulwark against tyranny.

  The United States Code [10 U.S.C. § 311 (a)] states:

  "The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age. . . ." It goes on to pay token acknowledgement to the fact that women, of late, have attained some official recognition of their citizen status by including ". . . female citizens, who are commissioned officers of the National Guard." That restriction against women, of course, is in complete disregard of Mason's "the whole people" statement.

  Most importantly, the U.S. Code divides the militia into two classes: "(1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. " [ 10 U. S. C. § 311 (b). ]

  Under the theory of government by which the United States was established, the final check against an unjust Federal government was and is the armed whole body of the people-the "unorganized militia" which has always existed under the law. It is obvious that the National Guard whose every member, whose every weapon, whose every move is subject to the authority of the President-cannot be the militia protected by the Second Amendment.

  The Supreme Court recently ratified this virtually unlimited control by the federal government in the case of Perpich v. Department of Defense (1990). The Court there held that the power of Congress over the National Guard is plenary (entire, absolute, unlimited) and such plenary power is not restricted by the Constitution's Militia Clause. The Second Amendment was not even mentioned by the Court, probably because it does not serve as a source of power for a state to have a National Guard.

  The unorganized militia continues to exist as the final check against military tyranny and the ultimate protection in foreign defense. This national defense need limits even state prerogatives involving the right to keep and bear arms. In its decision in Presser v. Illinois (1886), the Supreme Court stated:

  "It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the Constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government." (Emphasis added.)

  And the most important Supreme Court decision involving the Second Amendment, U.S. v. Miller (1939), recognized that "the Militia comprised all males physically capable of acting in concert for the common defense.... And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. " (Emphasis added.)

  In 1833, U.S. Supreme Court Justice Joseph Story wrote in his Commentaries on the Constitution of the United States of the militia as ". . . the natural defense of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers.

  He said further:

  ". . . The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."

  Story, like the Framers of the Constitution before him, condemned "large military establishments and standing armies in time of peace." They were, to his mind, too ready a means for "ambitious and unprincipled rulers to subvert the government, or trample upon the rights of the people. "

  To quote the late Supreme Court Justice Louis Brandeis:

  "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."

  The guardians of our basic liberties are not formal bodies of police or military. They are not mercenaries hired to preserve and defend the rights of free men and women. The guardians of civil liberty are those, each individual, who would enjoy that liberty

  The first three cases (United States v. Cruikshank, in 1876, Presser v. Illinois, in 1886, and Miller v. Texas, in 1894), involving infringements by either private individuals or by a state, held only that the right to keep and bear arms "shall not be infringed by Congress."

  The historical circumstances leading to the Cruikshank and Presser cases should give civil libertarians second thoughts before pointing to either in defense of any anti-firearms legislation scheme.

  In 1875, barely a decade after blacks became ander Tillman, "of African descent and persons of color," were set upon by a group of white men who, according to the charges brought against the whites, had denied Nelson and Tillman their constitutional rights. Among other acts, the white night-riders had confiscated Nelson's and Tillman's weapons. Thus, because they were citizens of the United States under the Fourteenth Amendment, federal prosecutors charged that Nelson and Tillman were protected by the Second Amendment and had a right to keep and bear arms.

  The Court said, however, that the national government could not protect individuals' rights from infringement by individual private citizens, in this case Klansmen. That there was a pre-existing individual right to keep and bear arms was not disputed by the Court, but the Second Amendment (like the First Amendment, also discused in the case) was found to be a restriction on the Federal government alone.

  In the 1880s, during a period of anti-immigrant feeling, a gentleman of Teutonic extraction named Presser led a parade of 400 armed men through the streets of Chicago. Presser's mini-army also sported a German name. Illinois charged Presser with unlawfully assembling a military company and parading, under arms, without a license. Upon Presser's appeal, the U.S. Supreme Court held, in 1886, that the States could regulate such parades since parading on the public streets by groups of armed men-as distinguished from the mere carrying of firearms by individuals-was not an exercise of the right to keep and bear arms.

  The final 19th century case, Miller v. Texas (1894), relied on Cruikshank and non-Second Amendment cases to reaffirm that the Bill of Rights restricted only the Federal government. The Court held that the Second Amendment and the Fourth Amendment's prohibition of unreasonable search and seizure "operate only upon the Federal power, and have no reference whatever to proceedings in state courts."

  Writing at the end of the nineteenth century, shortly after the Miller v. Texas court decision, Judge Thomas Cooley, the most influential constitutional scholar of his day, stated:

  "It may be supposed from the phraseology that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent.... The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose." (General Principles of Constitutional Law in the United States, 1898.) Similar Supreme Court decisions holding that the guarantees of the Bill of Rights were limitations solely upon the Congress, and not the States, were reversed in a series of decisions beginning more than thirty years later. Those decisions, based upon the Fourteenth Amendment, held that various of the provisions of the Bill of Rights limited not only the Congress, but the states as well. It should be borne in mind that three of the four decisions on the Second Amendment-Cruikshank, Presser, and the first Miller case-dealt only with its applicability to the States, not to its meaning. Not until much later did the Supreme Court hold that any of the provisions of the Bill of Rights-including the First Amendment freedoms of speech and press-were individual rights limiting both the Congress and the States.

  While such a decision was sought by the Justice Department, which was the only party presenting an argument in the case, the Court decided only that the National Firearms Act of 1934 was constitutional absent the presentation of evidence to the contrary.

  The major flaw in the process which led to the Miller decision was the fact that the defendants-Miller and Layton-did not appear and were not represented by counsel before the Supreme Court. A lower federal court had released them from custody and they had disappeared.

  In his study, "Restoring the Balance: The Second Amendment Revisted" (The Fordham Urban Law Journal, Vol. V, No. 1, Fall 1976), attorney

  David 1. Caplan reasoned, "The Court did not benefit from the vigorous presentation of conflicting views which is considered a basic advantage of our adversary system of justice. The case was argued solely by the government attorneys who failed to alert the Court to the existence of several holdings clearly in favor of the individual's right to keep and bear arms."

  Despite a one-sided presentation, the actual decision in the case involved only the narrow issue of whether a specific type of firearm-a sawed-off shotgun-had been proven suitable for militia use and was thus protected by the Second Amendment. The court ruled only that:

  "In the absence of [the presentation of] any evidence tending to show that possession of or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation of efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." (Emphasis added.)

  The burden was placed on the defense to show that "sawed-off" shotguns were suitable military weapons. But there was no representation of the defense and the Court was unaware, when it made its ruling, that some 30,000 short-barrelled shotguns had been purchased by the U.S. Government and used in World War I as "trench guns." And it could not know that such guns would continue to be used in World War 11 and through the Viet Nam War.

  More importantly, however, the Supreme Court implicitly recognized that the rights guaranteed by the Second Amendment protected all individuals and not merely those who are members of the militia since it was completely unconcerned with whether Miller or Layton were members of the militia.

  One of the shortcomings of the Supreme Court's decision in Miller can be seen in the Court's use of precedent. The Court cited but one case, Aymette v. State (1840), in support of its position that Second Amendment protection was limited to weapons of ordinary warfare or whose use could contribute to the common defense. That case involved Tennessee's constitution where the protection of the citizens' right to arms was specifically "for their common defense." Not mentioned by the Court was the fact that the "common defense" clause was condemned by the first U.S. Senate when it was suggested that the limit be placed on the proposal for what became the Second Amendment. And even with the "common defense" restriction, the broad Aymette case findings were rejected by later Tennessee State court decisions as too restrictive of the individual right to keep and bear arms.

  In more recent years, state courts, like the Supreme Courts of Colorado (City of Lakewood v. Pillow, 1972), Oregon (State v. Kessler, 1980), and Montana (State v. Nickerson, 1952), and the Courts of Appeals of Indiana (Schubert v. DeBard, 1980), Missouri (Taylor v. McNeal, 1975), and New Mexico (City of Las Vegas v. Moberg, 1971), in interpreting state constitutional provisions similar to the Second Amendment, have concluded that the right to keep and bear arms guarantees the right to keep arms, such as pistols and revolvers, for self-defense.

  Caplan adds, "As a consequence of the failure of government counsel to direct the Supreme Court's attention to the subsequent treatment of the right to keep and bear arms in Tennessee, and the failure of the Court to consider the legislative history of the Second Amendment, the Miller case should be narrowly read, even assuming that the Court decision it correctly. . . . In any event, contrary to the widespread popular belief that the Supreme court of the United States has definitively spoken on the issue of the constitutionality of gun-control legislation, the issue remains far from settled. "

  Since the decision made reference to the "efficiency of a well regulated militia, " even anti-gun legal scholar Sanford Levinson has commented: "It is difficult to read Miller as rendering the Second Amendment meaningless as a control on Congress. Ironically, Miller can be read to support some of the most extreme anti-gun control arguments, e.g., that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly relevant to modem warfare, including, of course, assault weapons. Arguments about the constitutional legitimacy of a prohibition by Congress of private ownership of handguns or, what is much more likely, assault rifles, might turn on the usefulness of such guns in military settings."

  *Levinson, "The Embarrassing Second Amendment," 99 Yale L.J. 637, 654-55 (1989). Other constitutional theorists, such as Don Kates, would argue that the "keep and bear arms" provision defends the types-and modem equivalents-of guns which could be borne by a single person, where bazookas, rocket launchers, and the like are more similar to artillery which in the 18th century would have required more than one person and possibly even animals to be carried and used; and, therefore, the Second Amendment does not protect such arms, while protecting modem versions of infantry rifles.

people" rather than to "persons"-as in most of the Bill of Rights-Chief Justice William Rehnquist wrote, " 'the people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.'. . . While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the.First and Second Amendments . . . refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with the country to be considered part of that community." (U.S. v. Verdugo-Urquidez (1990)).

  In addition, the Perpich case (discussed above) undermined any argument that the Second Amendment was to prevent the Federal government from interferring with the state's militia understood as being the National Guard.

  Similarly, in recent years there has been a plethora of articles-by lawyers, historians, and academicians-almost uniformly concluding that the Founding Fathers indeed intended an individual right to keep and bear arms, for protection of person and property, from foreign aggression, and from domestic tyranny. So persuasive is the evidence that even academic advocates of "gun control" like University of Texas law professor Sanford Levinson, and gun-ban columnist Michael Kinsley, have concluded the Second Amendment was intended to protect an individual right, whatever merits they may see in restrictive gun laws.

  Levinson wrote: "I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of shear opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even 'winning,' interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation."

  Levinson went on to note: "As Fred Donaldson of Austin, Texas wrote, commenting on those who defended the Supreme Court's decision upholding flag-burning as compelled by a proper (and decidedly non-prudential) understanding of the First Amendment, '[11t seems inconsistent for [defenders of the decision] to scream so loudly' at the prospect of limiting the protection given expression 'while you smile complacently at the Second torn and bleeding. If the Second Amendment is not worth the paper it is written on, what price the First?' The fact that Mr. Donaldson is an ordinary citizen rather than an eminent law professor does not make his question any less pointed or its answer less difficult."

  Prudence, if not intellectual honesty, would seem to commend some concern to how much regard tens of millions of firearms owners should pay to constitutional strictures protecting elements of society they may not care for, if told the Second Amendment, as understood by its Framers, should be treated as a chimera unworthy of repeal before violation.

  Hearings on the Second Amendment conducted in 1982 by the Subcommittee on the Constitution of the U.S. Senate Judiciary Committee concluded that ". . . the history, concept and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner."

  The individual right to freely choose to own firearms was reaffirmed by the U.S. Congress in 1986 in its enactment of the Firearms Owners' Protection Act. In amending the Gun Control Act of 1968, the U.S. Congress reiterated its intent in 1968, and further sought to prevent abusive and unlawful actions by authorities against law-abiding citizens. In addition, Congress declared that the rights of citizens included: "to keep and bear arms under the second amendment to the United States Constitution; to security against illegal and unreasonable searches and seizures under the fourth amendment; against uncompensated taking of property, double jeopardy, and assurance of due process of law under the fifth amendment; and against unconstitutional exercise of authority of the ninth and tenth amendments."

  Under the tenth amendment, powers not delegated by the Constitution to the federal government are reserved to the states or to the people. The Constitutions offorty-three states explicitly guarantee the right to keep and bear arms reflecting their endorsement of this bedrock principle embodied in the U.S. Constitution's Bill of Rights.

Sprecher, "The Lost Amendment," 51 Am. Bar Assn. J. 554 & 665 (2 parts) (1965)

Comment, "The Right To Keep and Bear Arms: A Necessary Constitutional Guarantee Or An Outmoded 

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McClure, "Firearms And Federalism," 7 Idaho L.R. 197 (1970)

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Whisker, "Historical Development And Subsequent Erosion Of The Right To Keep And Bear Arms," 78 W. Va. L.R. 171 (1976)

Caplan, "Handgun Control: Constitutional Or Unconstitutional?," 10 N.C. Central L.J. 53 (1978)

Cantrell, "The Right Of The Individual To Bear Arms," 53 Wis. Bar Bull. 21 (Oct. 1980)

Halbrook, "The Jurisprudence Of The Second And Fourteenth Amendments," 4 Geo. Mason L. Rev. 1 (1981)

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(1982)

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Kates, "Handgun Prohibition and the Original Meaning of the
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Hardy, "Armed Citizens, Citizen Armies: Toward AJurisprudence Of The Second Amendment," 914arv. Jour. of Law & Pub. Policy 559 (1986)

Hardy, ORIGINS AND DEVELOPMENT OF THE SECOND AMENDMENT, Southport, Conn: Blacksmith (1986)

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