The Founders' Documents
(and more)
on the Right to Keep and Bear Arms

In 1814 the Thirteenth Congress, during the administration of President James Madison, enacted another bill to more effectively organize and discipline the militias of the several States and continued the requirement that every able-bodied white male citizen be enrolled in the militia, and further, the requirement that each such citizen should arm himself when appearing for militia training. The bill went on to state that every citizen exempt from common militia training or exempt from militia duty generally, should also be required to arm himself. The Militia Act, in essence, mandated that virtually every citizen of the nation (except clergy) own a firearm.

A half century later in 1866, the Thirty-ninth Congress was concerned with the aftermath of the Civil War. If there was ever a time that could be used to justify restrictions on the private ownership of firearms, it would have been after a period during which a significant number of citizens in the nation had conducted open warfare against the national government, using, very often, privately owned firearms. The issues involved what would become the Civil Rights Act of 1866, and the Fourteenth Amendment to the United States Constitution. In February of 1866 the Senate debated extending military protection and jurisdiction over States or districts that had been in rebellion, and had as a consequence applied different laws to white persons than to any others because of race, color, or previous conditions of slavery. The civil rights to be extended to all citizens by that military jurisdiction included, despite the recent war, the right of bearing arms, and for the stated purpose, significantly, of self protection and the protection of private property (“security of person and estate”).

In May of 1866 the Senate debated adoption of the Fourteenth Amendment to the Constitution to protect the “privileges or immunities of citizens of the United States”. Senator Jacob M. Howard of Michigan explained exactly what those privileges or immunities of individual citizens were, to include those “personal rights guaranteed and secured by the first eight amendments”, including the right to keep and bear arms.

As recently as February, 1982, the United States Senate, Committee on the Judiciary, Subcommittee on the Constitution, of the Ninety-seventh Congress, Second Session, issued a massive report titled “The Right to Keep and Bear Arms”. The subcommittee examined history and legal precedent, and took evidence from interest groups across the political spectrum before concluding that the right to keep and bear arms was unquestionable a right belonging to individual citizens.

Mr. Parker observed, “the clause which enacts that every man in the United States shall ‘provide himself’ with military accoutrements would be found impracticable… [and] that provision should be made for arming such persons at the expense of the United States.”

Mr. Jackson said, “that he was of the opinion that the people of America would never consent to be deprived of the privilege of carrying arms.” “In a Republic every man ought to be a soldier, and prepared to resist tyranny and usurpation, as well as invasion…”.

Mr. Giles said, “He did not suppose that it was intended that the United States should make a present of the arms thus furnished – but the motion does not provide for their return when not in use.”

Mr. Vining observed, that “No provision is made for the return of the arms to the public.” “He then offered an addition to the motion, providing for the return of the arms to the commanding officer.”

Mr. Wadsworth, seeking clarification, observed that, “The motion at first appeared to be in favor of  poor men, who are unable to purchase a firelock; but now it seems, minors and apprentices are to be provided for.”

Mr. Wadsworth then pointed out the great danger of providing large numbers of citizens with firearms and requiring that those arms be returned after use, which could become an excuse to disarm large numbers of citizens: “Is there a man in this House who would wish to see so large a proportion of the community, perhaps one-third, armed by the United States, and liable to be disarmed by them? Nothing would tend more to excite suspicion, and arouse jealousy dangerous to the Union.”

“…I can not press too much on the attention of Congress such a classification and organization of the militia as will most effectually render it the safeguard of a free state. If experience has shown in the recent splendid achievements of militia the value of this resource for the public defense, it has shown also the importance of that skill in the use of arms and that familiarity with the essential rules of discipline which can not be expected from the regula­tions now in force. With this subject is intimately connected the necessity of accommodating the laws in every respect to the great object of enabling the political authority of the Union to employ promptly and effectually the physical power of the Union in the cases designated by the Constitution.”

The Congress thereupon enacted “An act more effectually to provide for the national defense by establishing a uniform militia throughout the United States”.)

Senator Howard first described what was meant by “a citizen of the United States”: “A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws. … [The Constitution] put the citizens of the several States on an equality with each other as to all fundamental rights…And how did they antecedently become citizens of the several States? By birth or by naturalization.”

Senator Howard then went on to enumerate the fundamental rights enjoyed by all citizens of the United States (the privileges or immunities of individual citizens that were to be protected by the proposed Fourteenth Amendment), first quoting a court case enumerating “those privileges or immunities which are in their nature fundamental, which belong of right to all citizens of free governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent and sovereign.” To this list Senator Howard, without objection from the assembled senators, “added the personal rights guaranteed and secured by the first eight amendments of the Constitution: such as the freedom of speech and of the press…the right to keep and bear arms. … all these immunities, privileges, rights thus guaranteed by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts.” [emphasis added] -- Congressional Globe, Journal of the Senate, page 2765.

Preface by Senator Orrin G. Hatch, Chairman of the Subcommittee:

“James Madison would be startled to hear that his recognition of a right to keep and bear arms, which passed the House by a voice vote without objection and hardly a debate, has since been construed in but a single, and most ambiguous, Supreme Court decision, whereas his proposals for freedom of religion, which he made reluctantly out of fear that they would be rejected or narrowed beyond use, and those for freedom of assembly, which passed only after a lengthy and bitter debate, are the subject of scores of detailed and favorable decisions. Thomas Jefferson, who kept a veritable armory of pistols, rifles and shotguns at Monticello, and advised his nephew to forsake other sports in favor of hunting, would be astounded to hear supposed civil libertarians claim firearm ownership should be restricted. Samuel Adams, a handgun owner who pressed for an amendment stating that the ‘Constitution shall never be construed . . . to prevent the people of the United States who are peaceable citizens from keeping their own arms,’ would be shocked to hear that his native state today imposes a year’s sentence, without probation or parole, for carrying a firearm without a police permit.”

“…when the Congress and the people spoke of a ‘militia’, they had reference to the traditional concept of the entire populace capable of bearing arms, and not to any formal group such as what is today called the National Guard. The purpose was to create an armed citizenry, which the political theorists at the time considered essential to ward off tyranny. From this militia, appropriate measures might create a ‘well regulated militia’ of individuals trained in their duties and responsibilities as citizens and owners of firearms. If gun laws in fact worked, the sponsors of this type of legislation should have no difficulty drawing upon long lists of examples of crime rates reduced by such legislation. That they cannot do so after a century and a half of trying -- that they must sweep under the rug the southern attempts at gun control in the 1870-1910 period, the northeastern attempts in the 1920-1939 period, the attempts at both Federal and State levels in 1965-1976 --establishes the repeated, complete and inevitable failure of gun laws to control serious crime.” [emphasis added]

“When our ancestors forged a land ‘conceived in liberty’, they did so with musket and rifle. When they reacted to attempts to dissolve their free institutions, and established their identity as a free nation, they did so as a nation of armed freemen. When they sought to record forever a guarantee of their rights, they devoted one full amendment out of ten to nothing but the protection of their right to keep and bear arms against government interference. Under my chairmanship the Subcommittee on the Constitution will concern itself with a proper recognition of, and respect for, this right most valued by free men.” [emphasis added]

“The right to bear arms is a tradition with deep roots in American society. Thomas Jefferson proposed that ‘no freeman shall be debarred the use of arms,’ and Samuel Adams called for an amendment banning any law ‘to prevent the people of the United States who are peaceable citizens from keeping their own arms.’ The Constitution of the State of Arizona, for example, recognizes the ‘right of an individual citizen to bear arms in defense of himself or the State.’ Even though the tradition has deep roots, its application to modern America is the subject of intense controversy.” [emphasis added]

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Massachusetts' attorney Kim Weissman closed his website, Congress Action Newsletter, and has graciously selected TYSK as the repository for his very popular Second Amendment Information. Mr. Weissman and TYSK both hope that you will find what is contained here informative and enlightening and useful in refuting the claims, falsehoods, and distortions offered by those that want to restrict or eliminate the one pillar of the Bill of Rights which protects all others.