This material originally appeared on Kim Weissman's
Congress Action Newsletter

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

Supreme Court Justices

JOSEPH STORY: (Justice of the United States Supreme Court, 1812 - 1845)

“In England...A large proportion of the most valuable of the provisions in Magna Charta, and the bill of rights in 1688, consists of a solemn recognition, of limitations upon the power of parliament; that is, a declaration, that parliament ought not to abolish, or restrict those rights. Such are the right of trial by jury; the right to personal liberty and private property according to the law of the land; that the subjects ought to have a right to bear arms...” – Commentaries on the Constitution of the United States (1833; Book III at 718, § 1858)

“The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”
Commentaries on the Constitution of the United States (1833; Book III at 746, § 1890)

“One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men. – Familiar Exposition of the Constitution of the United States (1840)

MORRISON R. WAITE: (Chief Justice of the United States Supreme Court, 1874-1888) (majority opinion in United States v. Cruikshank, 92 U.S. 542 (1875):

“The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called…the ‘powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,’ ‘not surrendered or restrained’ by the Constitution of the United States.”

WILLIAM B. WOODS: (Justice of the United States Supreme Court, 1880-1887) (majority opinion in Presser v. Illinois, 116 U.S. 252 (1886):

Quoted the Cruikshank holding that “…the right of the people to keep and bear arms ‘is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence.’”

JAMES C. McREYOLDS: (Justice of the United States Supreme Court, 1914-1941) (majority opinion in United States v. Miller, 307 U.S. 174 (1939):

“The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

WILLIAM REHNQUIST: (Justice of the United States Supreme Court, 1972-1986; Chief Justice of the United States Supreme Court, 1986-2005) (majority opinion in United States v. Verdugo-Urquidez, 494 U.S. 259) (joined by Justices White, O’Connor, Scalia, and Kennedy):

“The Fourth Amendment phrase ‘the people’ seems to be a term of art used in select parts of the Constitution and contrasts with the words ‘person’ and ‘accused’ used in Articles of the Fifth and Sixth

Amendments regulating criminal procedures. This suggests that ‘the people’ refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” “While this textual exegesis is by no means conclusive, it suggests that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

ANTONIN SCALIA: (Justice of the United States Supreme Court, 1986- ) (A Matter of Interpretation, 1994):

“…few tears [would be] shed if and when the Second Amendment is held to guarantee nothing more than the state National Guard, this would simply show that the Founders were right when they feared that some future generation might wish to abandon liberties that they considered essential, and so sought to protect those liberties in a Bill of Rights. We may tolerate the abridgement of property rights and the elimination of a right to bear arms; but we should not pretend that these are not reductions of rights. … Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that.”

CLARENCE THOMAS: (Justice of the United States Supreme Court, 1991- ) (majority opinion in Staples v. United States, No. 92-1441)(1994); (joined by Justices Rehnquist, C.J., and Scalia, Kennedy, and Souter):

“...the fact remains that there is a long tradition of widespread lawful gun ownership by private individuals in this country.”; “Here, the Government essentially suggests that we should interpret the section under the altogether different assumption that one would hardly be surprised to learn that owning a gun is not an innocent act. That proposition is simply not supported by common experience. Guns in general are not deleterious devices or products or obnoxious waste materials, that put their owners on notice that they stand in responsible relation to a public danger.”; “...despite their potential for harm, guns generally can be owned in perfect innocence.”

Table of Contents

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.

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jan 2006