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Congressional brief in McDonald v. Chicago »

Available here. Co-authored by Joseph Olson (Hamline), David Hardy, and Clayton Cramer. Key point: From 1789 to 1860, popular and legal understanding of the Second Amendment became much less militia-centric. Well before Reconstruction, the Second Amendment was considered to be mainly a guarantee of a right to own and carry guns for personal protection. Back in 1998, I wrote a hundred-page article, The Second Amendment in the Nineteenth Century, 1998 BYU Law Review 1359, which focused mainly on cases and treatises. Olson/Hardy/Cramer have gone further, and brought forward extensive evidence about the understanding of the public and of elected public officials. Along the way, the brief also corrects some misunderstandings about the 19th-century Second Amendment which appeared in Justice Stevens’ dissenting opinion in Heller.

Categories: Congress, Constitutional History, Fourteenth Amendment, Guns, Press    

    20 Comments

    1. J. Aldridge says:

      Well before Reconstruction, the Second Amendment was considered to be mainly a guarantee of a right to own and carry guns for personal protection.

      I think maybe you mean from various state court opinions that bearing arms became linked to guns for personal defense under state constitutions and not the 2A. However, these court holding were not always universally accepted by future state courts.

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      November 23, 2009, 3:05 pm

    2. DJ says:

      Achingly well-written. And persuasuive. Thanks for all the hard work.

      What does Akhil Amar think of all of the attention?

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      November 23, 2009, 3:28 pm

    3. Clayton E. Cramer says:

      J. Aldridge:
      I think maybe you mean from various state court opinions that bearing arms became linked to guns for personal defense under state constitutions and not the 2A. However, these court holding were not always universally accepted by future state courts.

      No, based on statements in commentaries, newspaper articles, and various petitions, concerning the Second Amendment.

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      November 23, 2009, 3:57 pm

    4. Order of the Coif says:

      Academics for the Second Amendment’s treasury, never great, has been depleted by the expenses of producing this amicus brief. We need to raise $20,000.

      If you can send a contribution, use this URL http://academicssecondamendment.blogspot.com/
      (push the “donation” button) or send a check to A2A, P. O. Box 131254, St. Paul, MN 55113. Your contribution IS tax deductible.

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      November 23, 2009, 3:59 pm

    5. J. Aldridge says:

      Clayton E. Cramer: No, based on statements in commentaries, newspaper articles, and various petitions, concerning the Second Amendment.

      Are you sure you are not confusing commentaries over the right of the people to provide the military protection themselves rather than a standing army?

      [DK: Read the brief.]

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      November 23, 2009, 4:20 pm

    6. Clayton E. Cramer says:

      J. Aldridge:
      Are you sure you are not confusing commentaries over the right of the people to provide the military protection themselves rather than a standing army?[DK: Read the brief.]

      But then J. Aldridge couldn’t continue his broken record about his imagined meaning of the Second Amendment. I would also recommend reading Cramer, Clayton E., Johnson, Nicholas James and Mocsary, George A., ‘This Right is Not Allowed by Governments that are Afraid of the People’: The Public Meaning of the Second Amendment When the Fourteenth Amendment was Ratified. George Mason Law Review, Vol. 17, 2010. Available at SSRN: http://ssrn.com/abstract=1491365 for gobs and gobs of citations to materials that clearly demonstrate that the Second Amendment was understood as an individual right for the purpose of self-defense throughout the period before ratification of the Fourteenth Amendment. 

      Even if J. Aldridge was correct that the Framers of the Second Amendment intended this as a collective, militia right–it is abundantly clear that by the time the Fourteenth Amendment was under consideration, there was overwhelming agreement that the Second Amendment protected an individual right–and that the Fourteenth Amendment imposed that on the states.

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      November 23, 2009, 4:41 pm

    7. J. Aldridge says:

      Clayton E. Cramer: Available at SSRN: http://ssrn.com/abstract=1491365 for gobs and gobs of citations to materials that clearly demonstrate that the Second Amendment was understood as an individual right for the purpose of self-defense throughout the period before ratification of the Fourteenth Amendment. 

      If it was understood as an individual right for purposes of self defense, why was there laws for keeping a certain gun and amount of ammo and powder? Why was there laws that would fine you for not having a gun? 

      Why did the framers feel individuals needed a constitutional right to protect themselves personally with a gun and ignoring all other natural rights? I think Francis Bird got it right:

      This was the very purpose of adopting this second amendment to the federal constitution—to put this matter of the independence of the State militia beyond the domain of controversy; and this is the right guaranteed by this amendment,—the right of the people to bear arms, not for “making defence under special exigencies,” which could in no possible manner come under the control of Congress, and needed no guarantee, but to bear them as a part of the military power of the State.

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      November 23, 2009, 5:19 pm

    8. Clayton E. Cramer says:

      J. Aldridge:
      If it was understood as an individual right for purposes of self defense, why was there laws for keeping a certain gun and amount of ammo and powder? Why was there laws that would fine you for not having a gun? Why did the framers feel individuals needed a constitutional right to protect themselves personally with a gun and ignoring all other natural rights? I think Francis Bird got it right: 

      There was both a right to own a gun for self-defense, and a duty to do so for the protection of the society. If this was simply an obligation to be armed for collective defense, there would be no need to make an explicit statement of it. Why not include a “right to pay taxes for the common good” in the Bill of Rights as well?

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      November 23, 2009, 5:51 pm

    9. J. Aldridge says:

      Clayton E. Cramer: If this was simply an obligation to be armed for collective defense, there would be no need to make an explicit statement of it. 

      Unless it was feared Congress could disarm the peoples militias and replace with standing armies.

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      November 23, 2009, 6:25 pm

    10. Allan Walstad says:

      Clayton: Ok, I should read the brief. I promise to have a look when I take my next break from grading exams. Meanwhile, could you tell me if it mentions the distinction between the organized and unorganized militia? This seems to me to be the crux. As is so often the case, the same word refers to two related but distinct things. We’re all part of the militia, AND organized units may be assembled for the common defense, also referred to as “the militia.”

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      November 23, 2009, 6:30 pm

    11. Clayton E. Cramer says:

      J. Aldridge:
      Unless it was feared Congress could disarm the peoples militias and replace with standing armies.

      Certainly a concern of the time–but language that would have explicitly protected militias as a substitute for “right of the people” was offered–and voted down by the First Congress.

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      November 23, 2009, 6:54 pm

    12. Clayton E. Cramer says:

      Allan Walstad: Clayton: Ok, I should read the brief.I promise to have a look when I take my next break from grading exams.Meanwhile, could you tell me if it mentions the distinction between the organized and unorganized militia?This seems to me to be the crux.As is so often the case, the same word refers to two related but distinct things.We’re all part of the militia, AND organized units may be assembled for the common defense, also referred to as “the militia.”

      By the time the Fourteenth Amendment is under consideration, organized militias are actually the problem that needed fixing! There were Southern militias disarming freedmen and white Unionists.

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      November 23, 2009, 7:01 pm

    13. J. Aldridge says:

      Clayton E. Cramer: Certainly a concern of the time–but language that would have explicitly protected militias as a substitute for “right of the people” was offered–and voted down by the First Congress.

      Scruples was voted down too. I wouldn’t make anything of it.

      The people of Massachusetts had a constitutional right to keep and bear arms and that was explained to not mean the natural right of self-defense:

      Not for self-defence, Mr. Attorney-General and Messrs. Justices, for that is a natural right, and needs no constitutional guarantee; but for the “common defence.” The Attorney-General graciously admits “the right of individuals peaceably to organize themselves into armed bodies, at their own expense, for military instruction or defence against lawless violence.” –Francis Bird

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      November 24, 2009, 2:56 am

    14. Clayton E. Cramer says:

      J. Aldridge:
      Scruples was voted down too. I wouldn’t make anything of it.The people of Massachusetts had a constitutional right to keep and bear arms and that was explained to not mean the natural right of self-defense: 

      1. The Mass. Const. guarantee says “for the common defence” — an addition proposed for the Second Amendment, but voted down.

      2. The principal author of the 1780 Mass. Const. was John Adams–whose discussion of this subject in his 1786 Defence of Constitutions of the United States of America is quite clear that the government had the authority to regulate non-governmental militias–but that private defense was outside the government’s authority.

      You lose again.

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      November 24, 2009, 12:05 pm

    15. Clayton E. Cramer says:

      J. Aldridge: ess.

      Scruples was voted down too. I wouldn’t make anything of it. 

      Care to clarify what “Scruples” refers to?

      I am sure that you wouldn’t make anything of it: a direct attempt to make the Second Amendment mean what you want it to mean, and it goes down to defeat.

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      November 24, 2009, 12:07 pm

    16. Federal Farmer says:

      Even if J. Aldridge was correct that the Framers of the Second Amendment intended this as a collective, militia right–it is abundantly clear that by the time the Fourteenth Amendment was under consideration, there was overwhelming agreement that the Second Amendment protected an individual right–and that the Fourteenth Amendment imposed that on the states. 

      Heck there is quite a bit of understanding even today that the Bill of Rights always applied to all forms of government. Many times when I discuss this case with my fellow laymen they express credulity that they technically don’t have a RKBA effective against whatever state they live in.

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      November 24, 2009, 5:20 pm

    17. Paladin says:

      I’m just a layman — cetainly not a lawyer nor an Academic. My question is: If I am endowed by my creator with certain unalienable rights such as, but not limited to I might add, the right to life, liberty and the pursuit of happiness, do I not also have the right to defend those rights?

      If I do have the right to defend my right to life, for instance. Whereupon this planet would that right be rightfully infringed and under what conditions?

      I have read the Heller decision and many of the Amici’s relating thereto alond with the opinion of the Court of Appeals which thrust this case into SCOTUS and have researched as many of the references therein as I could without belonging to the legal community and not having the access to court cases etc. that they have; I have also read some of the Amici Briefs in the MacDonald v Chicago case and the decision of the Court of Appeals from which this case sprung; and it appears to me that there is gozzubles of empirical evidence that Americans have the right to carry a firearm on their person anywhere they go for the purpose of self-defense. Obviously, governments have illegitimately “infringed” this right virtually from inception of the US Constitution. Corrupt judges have dreamed up all kinds of BS to rationalize their violation of their Oaths to support the US Constitution as the “supreme law of the land.” The “Incorporation Doctrine” is just such legal QUACKERY!

      The American people only have four boxes they can turn to in protecting their individual liberties: 1. The Soap Box: that doesn’t work as evidenced by the consistent refusal of our elected so-called “representatives” to heed any of our emails, faxes, calls etc to them regarding all the “emergency” legislation that has been and is being FORCED DOWN OUR THROATS by the criminals in Congress and also state Governors/Representatives (so-called), 2. The Jury Box: Corrupt courts have intentionally, with malice and aforethought, developed procedures to deny the accused the right to remind or inform the jurors of their “nullification” rights. So that’s of no effect any longer (at least for the time being.), 3. The Jury Box: Well ACORN, SEIU and other like, criminal organizations have corrupted the voting process to the point most Americans no longer consider it legitimate. So, that’s no longer viable, and, finally, 4. The CARTRIDGE Box: That’s where I and millions of other patriots have ended up. I’ve increased my ammo inventory by 7,000 rounds this year alone. While I hope I don’t have to use it, I’m prepared to do so because I’M MAD AS HELL AND I’M TAKING IT ANYMORE!

      The SCOTUS would be well-advised to clarify once and for all that Americans have the right, if not the duty, to keep and bear arms at all times, in all places where the governement is NOT providing armed, effective security and searching all entrants for weapons, etc. Unless the government assumes FULL RESPONSIBILITY for our safety and actually provides armed, effective protection, they have no legitimate power to “infringe” on the people’s right to keep and bear arms for their self-defense!

      Just sayin’

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      November 24, 2009, 7:57 pm

    18. Paladin says:

      Oops, that was supposed to read, “... and I’m ‘NOT’ taking it anymore.”

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      November 24, 2009, 8:01 pm

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