NCPA - National Center for Policy Analysis

Founding Fathers Wanted The Citizenry Armed

May 10, 2002

Legal scholars contend that U.S. Attorney General John Ashcroft is simply reflecting the intent of the Founding Fathers when he holds that the Second Amendment was intended to protect an individual right of the people to keep and bear arms.

Although gun-control advocates today complain that Ashcroft's position is a departure from his department's traditional position, most judges and scholars throughout history have affirmed the view that gun ownership is an individual right.

  • Supreme Court Justice Joseph Story -- probably the second-most respected 19th-century justice after John Marshall -- also took the view that the right belongs to "the citizens," not the states.
  • Michigan Supreme Court Justice Thomas Cooley -- the leading constitutional law commentator of the late 1800s -- concurred.
  • In fact, from the late 1700s to the early 1900s, the individual-rights view of the Second Amendment was the nearly unquestioned interpretation.
  • Virtually no court or interpretation of that era reasoned that the Second Amendment protected the rights of states.

In modern times, in the 1986 Firearms Owners' Protection Act, Congress specifically reaffirmed "the right of citizens to keep and bear arms." The 1939 U.S. v. Miller decision by the Supreme Court said the right extends to arms related to the militia, but stressed "militia" meant "all males physically capable of acting in concert for the common defense."

 Source: Eugene Volokh (University of California-Los Angeles), "The Radical Amendment," Wall Street Journal, May 10, 2002.

 

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