Since the "well-regulated militia" referred to in the second amendment is the subject of a compatible network of special Federal and State laws and since the proposed amendments to the Federal Firearms Act exempt from their application activities by Federal and State authorities, it is evident that the second amendment is no obstacle to the passage of the amendments. However, because the second amendment refers to "the right of the people to keep and bear arms" it is sometimes argued that this concept impedes Federal legislation even if it be conceded that the second amendment relates only to the organized militia. For this reason this memorandum provides an analysis of this concept. (d) The concept of the right of the people to bear arms

While the Constitution cannot be said to be the source of a right to keep and bear arms, its wording indicates that a preexisting right was recognized. A majority of court decisions, both State and Federal, assume without discussion or determination of the issue that the right to bear arms exists in the people as individuals either because it is deemed to be a natural right or because conferred by State constitutions.

However, it is well settled that there is nothing inherent in the right making it absolute. Inasmuch as "arms" is traditionally a military term and the statement of the right in the Federal and several State constitutions is connected with the necessity for a well-regulated militia, it has been concluded that, if such a right is personal in nature, it is at least restricted to members of a well regulated or, synonymously, organized State militia. "The word 'arms' in the connection we find it in the Constitution of the United States, refers to the arms of a militiaman or soldier, and the word is used in its military sense." English v. The State, 35 Tex. 473, 477 (1872). "[T]he provision in question [the counterpart to the second amendment in the bill of rights of Kansas] applies only to the right to bear arms as a member of the State militia, or some other military organization provided for by law." City of Salina v. Blaksley, 72 Kan. 230, 83 Pac. 619, 620 (1905). (Brackets supplied.)

The

While a few older State cases went so far as to hold that all citizens had the unabridgable right to bear arms for self-protection as well as for militia purposes and that a statute prohibiting the carrying of concealed weapons was violative of the second amendment (see Bliss v. Commonwealth, 2 Litt. (Ky.) 90, 13 Am. Dec. 251 (1822)), that point of view is virtually extinct. Supreme Court stated as an axiom in 1897 that the second amendment "is not infringed by laws prohibiting the carrying of concealed weapons", Robertson v. Baldwin, 165 U.S. 275, 282. The overwhelming majority of State cases follow the doctrine expressed in Commonwealth v. Murphy, 44 N.E. 138 (Mass. 1896), that "it has been almost universally held that the legislature may regulate and limit the mode of carrying arms." Therefore, a State statute regulating, and in certain instances prohibiting, the carrying of enumerated deadly weapons is not repugnant to the second amendment or its counterpart in the State's constitution. English v. State, 35 Tex. 473 (1872). Likewise, an act prohibiting the carrying of revolvers without a license does not violate either the Federal or State constitution; neither does a State law forbidding possession of concealed weapons. Strickland v. State, 72 S.E. 260 (Ga. 1911); Haile v. State, 38 Ark. 564 (1882).

Moreover, no body of citizens other than the organized State militia, or other military organization provided for by law, may be said to have a constitutional right to bear arms. City of Salina v. Blaksley, 72 Kans. 230, 83 Pac. 619 (1905); Presser v. Illinois, 116 U.S. 252 (1886).

The modern tendency among judges and legal scholars is to regard the right to bear arms as existing in narrowly limited circumstances. The present state of the law concedes at the most that "the second amendment only forbids Congress so to disarm citizens as to prevent them from functioning as State militiamen." 1o If this statement accurately reflects the prevailing trend of the law, it follows that any act of Congress which does not in fact prevent an eligible citizen from functioning as a State militiaman is not proscribed by the second amendment. The preceding discussion and conclusion are based on what many courts assume to be true, that the right to bear arms as referred to in the Constitution is personal in nature. However, respectable authority supports the view that the second amendment merely affirms the right of the States to organize and

1 McKenna, "The Right To Keep and Bear Arms," Marq. L. Rev. 138, 143 (1928).

maintain militia. That is, it applies to "the people" as the body politic of each State." Support for this is found in English history."8

Several early cases suggested that the right to bear arms “is one of those rights reserved to the States." 19 In Aymette v. State, 21 Tenn. 154, 158 (1840), the court declared, "The single individual *** is not spoken of or thought of as 'bearing arms.'" People ex rel. Leo v. Hill, 126 N.Y. 497, 27 N.E. 789, 790 (1891). contains language of similar import: "The power to control and organize the militia resided in the several States at the time of the adoption of the Constitution of the United States and was not taken away by that instrument."

The leading case of City of Salina v. Blaksley, 72 Kans. 230, 83 Pac. 619 (1905). has been interpreted as going so far as "expressly to decide that the word 'people' means only the collective body and that individual rights are not protected by the constitutional clause." McKenna, "The Right To Keep and Bear Arms." 12 Marq. L. Rev. 138, 145 (1928). Mr. McKenna proceeded to suggest that future courts might say "that the States may have their well-regulated militia even though individuals possess no weapons of their own, provided the States supply the necessary armament upon mobilization" (at 149). This they do, under Federal and State provisions, as described above.

The foregoing analysis reveals that there is nothing in the meaning, scope, or application of the second amendment to impede passage of Federal legislation limiting interstate traffic in firearms to licensed or excepted persons and prohibiting sales by licensees to juveniles and convicted felons.

APPENDIX

THE ORIGIN OF THE SECOND AMENDMENT

The original proposal of what is now the second amendment was introduced by James Madison in the House in the first session of the First Congress, and it read as follows:

"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." 1 Annals of Cong. 434 (1789).

This, along with the other proposals, was referred to a select committee. As reported by the committee, it was phrased in somewhat different language:

"A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms." Id. at 749.

Both proposals were obviously designed in part to protect the individual conscientious objector, and in both, this concept was phrased in individual terms: i.e., "no person." In referring to the right to bear arms, however, both proposals used the collective term. "the people," and the committee proposal is even more specific, "the body of the people." The contrast in terminology supports the view that the right to bear arms was intended as a collective right while the protection of religious scruples was a personal benefit.

The Senate debates in the First Congress are not reported. The House debates were confined to the question of the retention of the conscientious-objector provision, but Elbridge Gerry of Massachusetts did comment briefly on the history of the proposal. He noted that the Crown had quartered troops in Massachusetts and had forbidden the organization of a colonial militia. He said the purpose of organizing and maintaining a militia was to prevent the establishment of standing armies "the bane of liberty." Id. at 749-750. He expressed the view that if States were not permitted to make their own choice with respect to conscientious objectors, they might be unable to raise a militia, and the consequence of this would be the development of a standing army. Ibid. His concern was the weakening of State militias, and there was no mention of any individual “right” to bear arms.

There is no indication in the Annals as to how the final language of the second amendment was decided upon. While the religious-scruple clause was omitted.

17 See attached appendix entitled, "The Origin of the Second Amendment."

18 Haight, "The Right To Keep and Bear Arms." 2 Bill of Rights Review 31-33 (1941, Mr. Haight was chairman of the Bill of Rights Committee of the American Bar Associa tion when the article was published. See also Emery, "The Constitutional Right to Keep and Bear Arms," 28 Harv. L. Rev. 473 (1915).

19 Ibid.

the final version does retain the use of the collective term "the people," and the debates which are reported support the view that the second amendment was designed to protect and preserve the State militias. No mention was made of any individual "right" to possess, carry or use arms and there is no indication of any concern with this.

In considering the scope of the second amendment, it is appropriate to review the various provisions in State constitutions and bills of rights which were in effect in 1789. By the time the Bill of Rights was ratified in December 1791, there were 14 States in the Union. Most of these had adopted constitutions or declarations of rights following the signing of the Declaration of Independence. Rhode Island alone was still operating under its Charter of 1663. That charter authorized the colony to organize and maintain a militia, but, as might be supposed, there was no mention of any "right" to bear arms.

Delaware and New Jersey had both adopted constitutions in 1776, but neither contained a bill of rights and there was no mention of a "right" to bear arms. Connecticut had a declaration of rights, adopted in 1776, but it was also silent with respect to bearing arms.

Five States had constitutions specifically providing for the organization and maintenance of a militia but making no reference to bearing arms. The Georgia constitution of 1777, article XXXIV and XXXV, was concerned with the structure and regulation of the militia. The South Carolina constitution of 1778, article XLII, merely provided that the militia should be subordinate to the civil authorities. Maryland and New Hampshire had very similar provisions relating to the necessity and purpose of the militia: "That a well-regulated militia is the proper and natural defence of a free government" (Md. Const. of 1776, Art. XXV); “A well regulated militia is the proper, natural, and sure defence of a state" (N.H. Const. of 1784, Art. XXIV). New York apparently did not contemplate a self-armed militia since the constitution of 1777, article XL, required the State to maintain a militia in both war and peace and to maintain "a proper magazine of warlike stores," at State expense, for the use of the militia.

Three States expressly recognized the "right of the people to bear arms" for the defense of the State. Article XVII of the Massachusetts constitution of 1780, began: "The people have a right to keep and to bear arms for the common defense." The remainder of that article described the militia of the State. Article XVII of the North Carolina constitution of 1776 began: "That the people have a right to bear arms, for the defence of the State ***" The remainder of the article forbade maintenance of a standing army and insured civilian control over the militia. Both these constitutions consistently used the term "people" in referring to collective rights, such as the right of self-government. Where individual rights were guaranteed the terms "men," "individuals," "persons," "citizens," or "subjects" were used. The Virginia Bill of Rights of 1776, section 13, provided, "That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural and safe defence of a free State ***. That section further provided that there should be no standing army and that the militia should be controlled by the civil authority.

If an individual right to bear arms for private purposes was recognized in these States in 1789, it was not a right guaranteed by the State constitutions or charters. On the other hand, the right to maintain a militia for the defense of the State was apparently jealously guarded. It is certainly arguable then that it was Federal infringement of the militia that concerned these States when the First Congress assembled, rather than any individual right to bear arms.

There were two State constitutions which might be construed as recognizing as individual right to bear arms in self-defense. The Pennsylvania constitution of 1776, article XIII, provided: "That the people have a right to bear arms for the defence of themselves and the state ***." However, the remainder of that article was concerned with the prohibition against a standing army and the guarantee of civilian control of the militia. Moreover, "people" seems to have been used in a collective sense throughout the constitution and other terms were used to indicate individual rights. It is more likely that article XIII was intended to refer only to the common defense, not to individual self-defense. The Vermont constitution of 1777, article XV, provided: "That the people have a right to bear arms for the defense of themselves and the States"; it also prohibited a standing army and required civilian control of the militia. In view of the history of this problem, it is reasonable to conclude that the phrase "defence of themselves" referred only to collective defense and did not include individual self-defense.

Thus, at the time of the adoption of the second amendment neither Congress nor the States indicated any direct concern with an individual "right" to OWL, carry or use firearms for private purposes. If such a “right” existed, it was ne clearly expressed in State constitutions or declarations of rights. Both the States and the Congress were preoccupied with the distrust of standing armies and the importance of preserving State militias. It was in this context that the second amendment was written and it is in this context that it has been interpreted by the courts.

Attorney General KATZENBACH. Clause 3 of section 8 of article I of the Constitution provides that the "Congress shall have Power To Regulate Commerce with Foreign Nations and among the several States, and with the Indian Tribes."

The Federal Firearms Act is based on this, the commerce clause, as is the amendment which the subcommittee is considering.

I will not now take your time to present a legal dissertation on this point, but with your permission offer for the record a memorandum prepared by the General Counsel of the Treasury Department, which makes abundantly clear that the commerce clause of the Constitution supports all that is undertaken in S. 1592. Mr. Chairman, it is incredible that anyone could doubt it.

Senator DODD. It is to me, too.

(The document referred to was marked "Exhibit No. 8" and is as follows:)

Memorandum to the Secretary.

EXHIBIT No. 8

From: Fred B. Smith, Acting General Counsel.

GENERAL COUNSEL, TREASURY DEPARTMENT, Washington, May 17, 1965.

Subject: Constitutional basis for Federal firearms control legislation.

The proposed legislation to amend the Federal Firearms Act is based on the same constitutional provision as was the act itself, clause 3 of section 8, article I,

"Section 8. The Congress shall have power *** To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;". Commerce regulation is one of the enumerated "great" powers of Congress which is supplemented by the "implied" power under clause 18 of section 8, article I:

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

The Supreme Court in an often quoted 1819 decision interpreted this clause and stated regarding its effect on the congressional exercise of the enumerated powers:

"We admit, as all must admit, that the powers of the Government are limited. and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the National Legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." McCulloch v. Maryland, 4 Wheat. 316, 420 (1819).

The Federal power to regulate interstate commerce in firearms by means of the Federal Firearms Act has been exercised since its enactment in 198 and has been upheld by the courts. Cases v. United States, 131 F. 2d 916 (1st Cir. 1942), cert. denied, 319 U.S. 770, reh. denied, 324 U.S. 889. The proposed amendments to the act extend the operation of its provisions into the foreign commerce field and expand the area of interstate commerce regulation.

The power conferred on Congress by the Commerce clause is plenary. In an early Supreme Court decision, still cited as the leading case on this constitution grant of authority, Chief Justice Marshall wrote:

"We are now arrived at the inquiry-what is this power? It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. * * *" Gibbons v. Ogden, 9 Wheat. 1, 196 (1824).

Although arising from the same source, in its application and limitation the congressional power to regulate foreign commerce differs somewhat from its power to regulate interstate commerce.

A. AS APPLIED TO FOREIGN COMMERCE

The proposed legislation would prohibit the importation of surplus military firearms and severely restrict certain other firearms importations (e.g., firearms not suitable for lawful sporting purposes). The Supreme Court has held that, under its commerce regulating power, Congress may, if it desires, completely prohibit importation of articles of commerce. In a 1915 decision concerned with regulation of opium traffic the Court took this position, and quoted from a previous decision as follows:

***** Whatever difference of opinion, if any, may have existed or does exist concerning the limitations of the power, resulting from other provisions of the Constitution, so far as interstate commerce is concerned, it is not to be doubted that from the beginning Congress has exercised a plenary power in respect to the exclusion of merchandise brought from foreign countries; not alone directly by the enactment of embargo statutes, but indirectly as a necessary result of provisions contained in tariff legislation. It has also, in other than tariff legislation, exerted a police power over foreign commerce by provisions which in and of themselves amounted to the assertion of the right to exclude merchandise at discretion. This is illustrated by statutory provisions which have been in force for more than 50 years, regulating the degree of strength of drugs, medicines and chemicals entitled to admission into the United States and excluding such as did not equal the standards adopted.' Brolan v. United States, 236 U.S. 216, 218, 219 (1915), quoting Buttfield v. Stranahan, 192 U.S. 470, 492. See also Yee Hem v. United States, 268 U.S. 178, 183. An early exercise of this congressional power is seen in the act of March 2, 1907, entitled, "An Act to prohibit the importation of slaves into any part or place within the jurisdiction of the United States from and after the first day of January in the year of our Lord one thousand eight hundred and eight" (2 Stat. 426).

Since the field of foreign commerce is external and involves relations with foreign nations, it is in an area of exclusive Federal jurisdiction with State interference prohibited by section 10 of Article I of the Constitution. Hence, the reservation of State power over police matters and intrastate commerce arising from the 10th amendment are not limitations over the regulation of foreign

commerce.

Neither is the fifth amendment a limitation on the exercise of the foreign commerce regulation power. Regarding this matter the Supreme Court has said: "As a result of the complete power of Congress over foreign commerce, it necessarily follows that no individual has a vested right to trade with foreign nations, which is so broad in character as to limit and restrict the power of Congress to determine what articles of merchandise may be imported into this country and the terms upon which a right to import may be exercised. This being true, it results that a statute which restraints the introduction of particular goods into the United States from considerations of public policy does not violate the due process clause of the Constitution." Buttfield v. Stranahan, 192 U.S. 470, 493 (1904). See also Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 335 (1909).

B. AS APPLIED TO INTERSTATE COMMERCE

The proposed legislation, in order to achieve effective control over interstate transactions in firearms, would impose licensing requirements on all persons engaged in activities of a commercial nature with respect to firearms, without regard to whether their activities are interstate or intrastate, and would impose restrictions and requirements on all licensees with respect to certain transactions not necessarily interstate in nature. A major objective of the proposed amendments to the Federal Firearms Act is to assist State and local authorities, in the exercise of firearms controls within their borders under their police power, through effective control of interstate and foreign traffic in firearms. A reasonable