Archive | Militia

Knives and the Second Amendment

The Second Amendment guarantees the right to keep and bear “Arms”–not solely “firearms.” While firearms have always been the paradigmatic Second Amendment arm, there are many other types of arms which are protected by the Second Amendment. By far the most common of the other arms are knives.

Now at the printer is the first detailed scholarly analysis of Knives and the Second Amendment. 47 University of Michigan Journal of Law Reform, vol. 47, pages 167-215 (Fall 2013). The article is co-authored by Clayton Cramer, Joseph Olson, and me. We argue that:

  • Under the Supreme Court’s standard in District of Columbia v. Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.
  • There is no knife that is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on carrying handguns set the upper limit for restrictions on carrying knives.
  • Prohibitions on carrying knives in general, or of particular knives, are unconstitutional. For example, bans of knives that open in a convenient way (e.g., switchblades, gravity knives, and butterfly knives) are unconstitutional. Likewise unconstitutional are bans on folding knives that, after being opened, have a safety lock to prevent inadvertent closure.

The article provides an explanation of various types of knives, of criminological evidence regarding knives, and of the 19th century panic and case law about Bowie Knives and Arkansas Toothpicks. We then apply the Second Amendment to modern knife laws. We cover the utility of knives for personal self-defense and for militia use, and the constitutional significance of technological changes in knives since 1791. Finally, the article considers some modern prosecutions, statutes, and cases from Washington, Oregon, Indiana, New York, and D.C. We conclude that even under the weakest relevant standard (intermediate […]

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Origins of the English Militia

David Hume’s’s  The History of England (1778)  tells the story of the Danish conquest of England. (vol. 1, chapter 2 “The Anglo-Saxons”). After a series of wars, the Danes drove King Alfred off the throne, forcing him to flee incognito, disguised as a peasant. Alfred then

retired into the center of a bog, formed by the stagnating waters of the Thone and Parret, in Somersetshire. He here found two acres of firm ground; and building a habitation on them, rendered himself secure by its fortifications, and still more by the unknown and inaccessible roads which led to it, and by the forests and morasses, with which it was every way environed. This place he called Aethelingay, or the Isle of Nobles;t and it now bears the name of Athelney. He thence made frequent and unexpected sallies upon the Danes, who often felt the vigour of his arm, but knew not from what quarter the blow came. He subsisted himself and his followers by the plunder which he acquired; he procured them consolation by revenge; and from small successes, he opened their minds to hope, that, notwithstanding his present low condition, more important victories might at length attend his valour.

In fact, Alfred did emerge later, after having scouted the Danes by going into their camp disguised as a harper. He did eventually drive out many of the Danes, and subdue the rest. He then set about creating better conditions for security from invasion, and from the tyranny which the Danes had once imposed:

The king, after rebuilding the ruined cities, particularly London,e which had been destroyed by the Danes in the reign of Ethelwolf, established a regular militia for the defence of the kingdom. He ordained that all his people should be armed and registered; he assigned them a regular

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“A Good Musket” and Bearing Arms

I’ve been discussing whether the right to bear arms is infringed by laws limiting people to bearing only one “arm”, as a proposal by Illinois Gov. Quinn seeks to do.

Perhaps the best evidence for a singular reading of “arms” is the Second Militia Act of 1792, section 1, which provides, in part, that a militia member must:

provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock./

(emphasis added).

These requirements, which track Colonial milita rules, do not purport to define or even regulate the right to bear “arms;” rather, it sets a minimum for the arms militiamen mush furnish at their own expense. Its about duties, not rights. Still, the relevant section of the Act concludes, after many further details, that “every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements required as aforesaid” shall have certain immunities from suit.

The reference to “arms” raises the possibility that the term could apply to a single firearm. But event this inference is not clear. The militiamen had to have bayonets (their officers, swords), which might be part of “arms” rather than “accoutrements.” To my untrained eye, a late 18th-century bayonet would be an accoutrement, because it looks difficult to wield independently of the musket, unlike modern bayonets, which are attachable knives. However, my first, impressionistic take on contemporary usage is that bayonets were called “weapons,” suggesting they were part of arms. For example, “Attention was paid to inculcate the use of the bayonet, and a total reliance on that weapon.” Another officer recommended that “only by vigorous and persevering charges with that weapon that […]

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Is the Right to Bear Arms Plural?

Tomorrow, Illinois’ concealed carry laws will become ineffective, having been held unconstitutional by the Seventh Circuit several months ago. The Court kept the unconstitutional law on life support for a few months to give the legislature time to craft a replacement measure. Springfield responded, but now that bill has been vetoed by Governor Quinn.

If the legislature does not override or accept the Governor’s veto by tomorrow, Illinois will go from being one of the most restrictive states for gun regulation to one of the most open.

The Governor issued an “amendatory veto” – declaring what additions or changes he would make to the legislation. Several of these raise serious Second Amendment problem (the legislature’s bill was not free of these, but Quinn’s is much worse). Here I’ll examine just one, which is in tension with the constitutional text itself: limiting people to carrying only one gun.

Arms is a plural term, and the presumption should thus be that the right to bear them extends to more than one firearm. To be sure, “arms” is one of those terms where the plural can refer to the singular. But it is not one of those “sheep” words where there is no singular; arm, firearm, weapon or gun would all clearly indicate the singular, but those words were not used.

Johnson’s Dictionary, notes that grammatically arms lacks a singular form even when used singularly, but defines it as “weapons” rather than weapon, suggesting the dominance of the plural use.

The straight textual argument may be particularly relevant here as the Seventh Circuit struck down the Illinois gun ban using a straight reading of “bear arms” – bear means to carry, and thus the right must extend to carrying in public. Given that the Court held “bear” must be taken seriously, […]

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The Dick Act and Gun Control

The first federal statutes governing the Militia of the United States were enacted in 1792.  There were some revisions in 1795. During the Civil War, an amendment removed the language that had restricted federal militia membership to free whites.

The old militia statutes were repealed and replaced by the Militia Act of 1903, 32 Stat. 775, commonly known as the ‘‘Dick Act’’ for its sponsor Representative Charles W.F. Dick, a Major General in the Ohio National Guard.

The Dick Act gave formal federal recognition—and financial support—to the National Guard, which had begun as a volunteer state-based civic organization after the Civil War. According to the Dick Act, the ‘‘organized militia’’ of the United States is the National Guard, plus Naval Militias maintained by some states. 10 U.S.C. §311(b)(1).

The Dick Act also defines the ‘‘unorganized militia.’’ The unorganized militia is all able-bodied men between 17 and 44 years of age who are United States citizens (or ‘‘have made a declaration of intention to become
citizens’’), and who do not belong to the organized militia. 10 U.S.C. §311(a), (b)(2). They are subject to call-up by the federal government in order to ‘‘execute the Laws of the Union, suppress Insurrections [or] repel Invasions,’’ under the Constitution’s Militia Clauses. (Clause 15 of Article I, sect. 8 is the “Calling Forth” clause. Clause 16 grants Congress the power to organize, arm, and discipline the militia.)

The best book on the early history of the National Guard, including the Dick Act, is Jerry M. Cooper, The Rise of the National Guard: The Evolution of the American Militia, 1865-1920 (2002). During the late 19th and early 20th century, the National Guard and the National Rifle Association were very closely intertwined.

The Dick Act has long been a part of the Second Amendment debate in the United […]

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Louisiana amendment to strengthen right to arms, on November ballot

In state elections, the most important vote this November will be in Louisiana. A referendum there would significantly strengthen protection of the right to keep and bear arms in the state, and would set a very significant national precedent.

Before the Civil War, the Louisiana Constitution did not mention a right to arms. The Louisiana Supreme Courts, however, viewed the federal Second Amendment as directly applicable to state government. So in State v. Chandler (1850), the court held that the Second Amendment protected a general right to carry arms, but that a legislature could ban concealed carry.

A new state constitution, adopted in 1879, provided: “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 abridged. This shall not prevent the passage of laws to punish those who carry weapons concealed.” La. Const., art. 3. The first sentence is, of course, nearly verbatim from the Second Amendment.

A century later, firearms prohibitionists had convinced some courts to reinterpret the Second Amendment so as to make it practical nullity. Supposedly, the Second Amendment right was not an individual right, but instead a “state’s right” or “collective right”–which meant that individual gun ownership could be entirely outlawed. Because the Louisiana Constitution’s language so closely paralleled the Second Amendment, there was a danger that a Louisiana court could interpret the state constitutional language to protect nothing at all. Indeed, some courts in other states had already done so, regarding state law language that copied the Second Amendment.

So in 1974, the Louisiana constitutional right was strengthened, with new language: “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying […]

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Podcast on the creation of the Second Amendment

For my co-authored textbook Firearms Law and the Second Amendment, I’ve been doing a series of podcasts on each chapter. Now available is the podcast for Chapter 4, which covers the Philadelphia Convention, the ratification debates, the creation of Bill of Rights, and St. George Tucker’s contemporaneous exposition of the original meaning of the Second Amendment.  The podcast is 45 minutes. Here are the links for Aspen Publishers web page for the textbook, and the Amazon page. It’s also available from BN.com (Barnes & Noble). […]

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D-Day thoughts

In a column from 2000, I examined what military historians suggest might have happened if the D-Day landings had been repulsed. Or what if they had taken place in 1943 instead of 1944? The short answers are that if D-Day had failed, Stalin would have ended up occupying almost all of German, which would have significantly changed the balance of power in the Cold War. Had the Allies invaded France in 1943, rather than invading Sicily, they probably would have made faster progress than they did in 1944. VE Day would have come a year earlier, with the Allies capturing most of Germany.

In 1994, Dan Gifford and I wrote that “D-Day was almost a German holiday.” That is, in the darkest days of the war, defending U.S. coastal areas was a crucial concern. Fortunately, the states were able to call forth their self-armed citizen militias for coastal defense, while the U.S. Army and National Guard were busy elsewhere.

  […]

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New textbook: Firearms Law and the Second Amendment: Regulation, Rights and Policy

The first law school textbook on the Second Amendment is now available from Aspen Publishers. The co-author are Nick Johnson (Fordham), Michael O’Shea (Oklahoma City), George Mocsary (Connecticut), and me. Here’s the publisher’s page for the textbook, from which professors can request a free review copy. The book is also available for civilian purchase from Amazon.

We also have our own website for the book. There, you can read the detailed Table of Contents, and the Preface. The website is in an early stage of development; eventually, it will include detailed research guides and topic suggestions for students who are writing seminar papers. If you a professor and one of your students writes a seminar paper which makes a genuine contribution to knowledge about a topic, we invite you to send the us paper for publication on the website.

The textbook will have an accompanying Teacher’s Manual. We are currently finishing that up, and aim to have it available before the Fourth of July. (It’s free for professors who get a review copy, and forbidden for anyone else.)

Besides the 11 chapters in 1,008 pages of the printed book, there will also be four more on-line only chapters, available to purchasers of the printed book. These chapters will be: 12, Social science about firearms policy. 13, International law. 14, Comparative law. 15, A detailed explanation of firearms and their function. (Chapter 1 of the printed book provides a brief explanation of firearms and their function; the on-line chapter will go into much greater detail [e.g., what is a lever action gun?], and will have illustrations and photos.)

Finally, Firearms Law is the first law school textbook to be the subject of a podcast series. The published podcasts are: Chapter 3, The Colonies and the […]

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How the British Gun Control Program Precipitated the American Revolution

I posted a draft of this article a few months ago, and I thank VC readers for some helpful comments in improving it. The final version has been published by the Charleston Law Review, and is available on SSRN. Here’s the abstract:

This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.

From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least if their purpose is to disarm the public, rather than for the normal purposes of import controls (e.g., raising tax revenue, or protecting domestic industry). We can discern that broad attempts to disarm the people of a town, or to render them defenseless, are anathema to the Second Amendment; such disarmament is what the British tried to impose, and what the Americans fought a war to ensure could never again happen in America. Similarly, gun licensing laws which have the purpose or effect of only allowing a minority of the people to keep and bear arms would be unconstitutional. Finally, we see that government violence, which should always be carefully constrained and controlled, should be especially discouraged when it is used to take firearms away from peaceable citizens. Use of the military for law enforcement is particularly odious to the principles upon which the American Revolution was based.

Readers interested in more detail on the role of […]

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Laws about gun ownership in early America

Regarding Eugene Volokh’s post below about an NYU L. Rev. article, “The People” of the Second Amendment: Citizenship and the Right To Bear Arms. I just scanned the article, and there appears to be only a single footnote which directly cites any state statutes from before 1800. Note 125, accurately cites standard statutory compilations from Massachusetts and Connecticut for laws against selling firearms to Indians. Although the author is apparently unaware that by 1661 (Connecticut) and 1688 (Massachusetts) the laws were changed to allow gun sales (and even gun carrying in towns) by friendly Indians. The article suffers very severely from its near-exclusive reliance on secondary sources for the pre-1800 period, especially since some of those sources are highly tendentious.

To summarize the information from Chapter 3 of my forthcoming textbook Firearms Law and the Second Amendment: Regulation, Rights, and Policy (Aspen Publishers, available in late Jan. 2012) regarding American law pre-1800:

Women: No restrictions. Of course they did not serve in the militia. Laws requiring “householders” (whether or not they were in the militia) to have arms were common, and these usually included a woman who was the head of the house (e.g., a widow).

Free blacks: Some states had no restrictions, some states had bans on their owning guns. Free blacks served in some state militia, not in some other states, and in some states policies changed depending on military necessity. They were excluded from the federal militia by the Second Militia Act of 1792.

Slaves: Several states banned gun ownership, or allowed ownership only with the master’s permission.

Poor whites: To claim that they were excluded from gun ownership or from militia service is absurd. There were absolutely no property or wealth restrictions on gun ownership, nor on service in the militia. To the contrary, many […]

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The rise and fall of the Second Amendment “collective right”

My recent article for America’s 1st Freedom traces the rise and fall of the theory that the Second Amendment is not an individual right, but instead is a “collective right,” which, like “collective property” in a communist country, supposedly belongs to everyone collectively, but in fact belongs to no-one. The theory was created by a federal district judge in 1935, formally named by the New Jersey Supreme Court in 1968, and became popular among lower federal courts during the next quarter-century.

Historical and textual analysis made it increasingly clear that the theory was completely implausible, and it was unanimously rejected by the U.S. Supreme Court in the 2008 case District of Columbia v. Heller. In that case, all nine justices agreed that the Second Amendment right was individual, while they disagreed about its scope. […]

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The Bernardine Dohrn of the early 20th century: The terrorist professor at U of Texas law school

My DU colleague Thomas Russell, who used to teach at the University of Texas Law school, has a written a paper, available on SSRN, which urges the University of Texas Law School to rename Simkins Hall, a law and graduate male student dormitory named for William Stewart Simkins. Simkins taught equity, contracts, procedure, and related topics at UT for three decades in the early 20th century. He was also a founder of the Ku Klux Klan in Florida, and every year at UT he gave a formal speech extolling the Klan.

Most of Russell’s paper concentrates on Simkins’ career at UT, as well as the 1954 decision (five weeks after Brown v. Board was announced) to name the dormitory after him. I was curious to learn more about Simkins had actually done with the Florida Klan, so I read Michael Newtown’s book The Invisible Empire: The Ku Klux Klan in Florida. […]

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