However, in 1808 Congress provided that a certain number of arms should be annually supplied to the whole of the enrolled militia. An annual appropriation of $200,000 was provided for this purpose. The arms were to be distributed to the States in the proportion that each militia bore to the whole, and in accordance with State regulations, while title to the arms was to pass to the States. This arrangement continued until 1897 when Congress, dissatisfied with the 1808 act, doubled the annual appropriation and required the States to create and maintain a regular, enlisted, organized, and uniformed, active militia in order to be eligible for the Federal arms. Moreover, Congress required the States to account for the property furnished and provided that it was to remain the property of the United States. Soon thereafter Congress provided that the "regularly organized armed and equipped militia" (generally known as the State National Guard) could exchange its arms, either furnished by the Federal Government or purchased by the State out of its own appropriation, for an equivalent number of caliber .45 Springfield rifles." Congress also provided that the States could purchase for the use of their militia other arms and supplies from the Army for cash.10 It was recognized that the States continued to purchase arms and equipment for their militia from their own appropriations."

From 1887 to the present day the Federal Government has supplied arms to the State militia under legislation prescribing the kind, quality, care, and accounting of such arms, with the provision that the arms remain the property of the United States.12

In 1903 Congress provided that the "regularly enlisted, organized, and uniformed active militia in the several States" should constitute the "organized militia" and be known as the National Guard (or such other name as the State might give), that all other able-bodied men between the ages of 18 and 45 should be known as the Reserve Militia, that Federal equipment could be distributed only to the organized militia, and that any State could procure from the War Department additional arms for its organized militia where that body met certain specified training requirements.13 Since that time the organized militia of the States has been the National Guard (and the Naval Militia), and the remaining eligible manpower form "the unorganized militia" which has no status until members are called into the National Guard under State or Federal law (see 10 U.S.C. 311). This distinction between the organized militia known as the National Guard (or the Naval Militia) and the unorganized reserve is followed in State laws. (For example, see New York, military law, sec. 2; Pennsylvania, 51 P.S., secs. 1–202 1–203; Virginia, sec. 44-1 ;and Texas-Vernon's Ann. Civ. St. Art. 5765.)

14

It appears from the foregoing that for nearly a century and a half Congress has provided for the arming of the enrolled, organized militia, the arms being similar to or identical with those provided to the defense forces, and that for at least the past half century no member of the organized militia has been required or permitted to supply his own arms.15 Moreover, during almost all of the 20th century the only organized militia has been the National Guard, and since 1914 the Naval Militia. These may consequently be described as the "well-regulated militia" of the present day.

"Act of Apr. 23, 1808, c. 55, 2 Stat. 490; see the pertinent part of the debates in Congress on this act in 18 Annals of Congress 2176, 2181-2185, 2195-2197 (April 1808). 8 Act of Feb. 12, 1887, c. 129, 24 Stat. 401; sec. S. Rept. 41 and H. Rept, 1267, 49th Cong.

11 28 Congressional Record 2933.

12 See acts in this century so providing: Act of Jan. 21, 1903. c. 196, sec. 13, 32 Stat. 775, 777; act of May 27, 1908, c. 204, sec. 8, 35 Stat. 399, 401-402; act of June 3, 1916, c. 134, secs. 67. 83-87, 39 Stat. 166, 199-200, 203-205; act of Aug. 10, 1956, c. 1041, 70A Stat. 615 (32 U.S.C. 710(a)).

13 Act of Jan. 21, 1903, c. 196, sec. 1, 32 Stat. 775.

14 The organized Naval Militia was created in 1914: see act of Feb. 16, 1914, c. 21, 38 Stat. 283; it was to be composed of State Naval Militia which had been established in some of the States approximately beginning in 1880 and thereafter; see H. Rept. 94 and S. Rept. 167, 63d Cong., and 10 U.S.C. 7851.

15 As early as December 1807, Congress recognized that the requirement that militiamen provide their own weapons (see footnote 2) had not been adhered to in many parts of the United States (17 Ann. of Cong., 1040-1041). In 1903 this 1792 requirement that each enrolled militiaman provide his own "musket or firelock" was finally repealed (act of Jan. 21, 1903, c. 196. sec. 25, 32 Stat. 775, 780). It was then recognized that even the requirement of enrollment had been obsolete for over 100 years (H. Rept. 1094, 57th Cong., 11).

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.)

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. The 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." 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

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."

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," "eitizens," 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.

I

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 own, carry or use firearms for private purposes. If such a "right" existed, it was not 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 1938 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: