A Cautionary Note for Readers of “The People” of the Second Amendment: Citizenship and the Right To Bear Arms

Eugene Volokh - UCLA School of Law

Posted in

[Editor's note: This comment is in response to the following law review article: Pratheepan Gulasekaram, "The People" of the Second Amendment: Citizenship and the Right To Bear Arms, 85 N.Y.U. L. REV. 1521 (2010). Professor Gulasekaram's response is also available on the Legal Workshop.]

I read with interest “The People” of the Second Amendment: Citizenship and the Right To Bear Arms,1 and I agree with its conclusion that the Second Amendment should be read to protect law-abiding noncitizens as well as citizens. But it seems to me that there may be a mistake in the article’s historical assertions.

The article appears to assert that poor whites, women, and noncitizens were often legally barred from owning guns in the early years of the United States, or at least that they were subject to especially heavy gun controls:

  • “[P]recolonial and early colonial gun laws in some states limited such rights [to bear arms] to subsects of the citizenry: white males deemed loyal to state interests.”2
  • From the early years of the republic through the mid-twentieth century, explicit and thinly veiled alienage and racial prohibitions helped maintain racial exclusivity in firearms possession.”3
  • “The pre-Revolution and founding-era firearm restrictions were harbingers for the themes that have consistently pervaded gun regulation. . . . [S]ince only “First-Class citizens” were allowed to vote, bear arms, and serve on juries, many other citizens—poor whites, women, minors, free blacks—were denied many fundamental rights presently associated with citizenship.”4
  • “Pre–Revolutionary War gun regulation did not necessarily depend on categories of legal citizenship but rather on a conception of membership in the national community contingent upon race, wealth, and gender.”5
  • “Prevailing firearm laws in various states allowed for the disarmament of Catholics and poor whites.”6
  • “By the time of the Constitution’s framing, statutes in the several states made guns a privilege of ‘First-Class Citizens,’ meaning that only select citizen males could legitimately exercise the right to bear arms.”7
  • [A]rms bearing was considered congruent to voting, holding public office, or serving on juries—rights associated with each other and denied even to many citizens.”8
  • “Militia membership and its attendant firearms rights and obligations were not extended to include poor whites until the first decades of the nineteenth century.”9
  • “This racialized, gendered, and class-stratified understanding of persons permitted to own guns—and exercise other core political rights—began finding legislative imprimatur in immigration and militia regulations [citing sources from the early Republic]. . . . Individual state constitutions codified restrictions on ‘Negroes, Mulattoes, and Indians’ serving in state militias or expressly limited firearms to ‘free white men.’”10
  • “This ‘lone-democracy’ syndrome of the framers also explains the relationship between firearms and voting at the founding. Both were rights of ‘First-Class Citizens’ and could be denied to most Blacks, women, and aliens.”11 Elsewhere, the article refers to this passage using the parenthetical “discussing gun-ownership restrictions in early republic.”12

These statements are claims about restrictions on civilian gun possession—about who was “permitted to own guns,” who was “prohibit[ed]” from owning guns, who was subject to “firearms restrictions” and “gun regulation,” whose “disarmament” was “allowed” by various “laws,” and so on—and not merely about who could be excluded from militia duty.

Yet unfortunately, none of the sources that the article cites actually shows that early American laws barred poor whites,13 women, and noncitizens from owning guns. Perhaps there are such early sources. But the article does not cite them, nor do the sources that the article cites on these matters sufficiently support the article’s assertions.

  1. The article cites Saul Cornell’s Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory, which does say that, under the Pennsylvania Test Acts, “[o]nly citizens who were willing to swear an oath to the state could claim the right to bear arms.”14 But in context, Professor Cornell’s article asserts only that those who wouldn’t swear such an oath could be disarmed even if they were citizens. It does not point to any laws disarming noncitizens on the grounds that they were not citizens; the Test Acts did not have a citizenship requirement.15 The article also cites another passage from Professor Cornell’s article, which says that “the meaning of the right to bear arms, unlike virtually any other right described in either state constitutions or the federal Constitution, was colored by the inchoate notions of class and rank that shaped American politics in this period.”16 But, however the “meaning” of the right may have been “colored,” that passage points to no statutes that actually limited gun ownership by women, poor whites, or aliens.
  2. The article cites Akhil Reed Amar’s The Bill of Rights,17 which speculates that the Framers broadly conceptualized the right to bear arms as a political right, and that political rights belonged to “First-Class Citizens.” But Professor Amar’s excellent book cites no materials reporting that women, poor whites, or noncitizens were actually prohibited by law from owning guns. At most, the book seems to suggest that the Framers might have seen such prohibitions as constitutionally permissible had a legislature proposed them. Professor Amar does not assert that such restrictions actually existed.
  3. The article supports its statement that “[i]ndividual state constitutions . . . expressly limited firearms to ‘free white men’”18 by citing the Tennessee Constitution of 1834.19 But this provision did not “limit[]” firearm possession to men; at most it may have allowed the legislature to limit firearms possession by women, though even that is not clear.20 And I know of no Tennessee statutes that actually purported to restrict gun ownership by women, even if such statutes would have been constitutional under that provision.
  4. The article notes that a 1915 article “baldly asserts” that “[w]omen . . . may be prohibited from carrying weapons.”21 The use of the adverb “baldly” suggests some skepticism about the 1915 article’s assertions, and the skepticism seems justified: The 1915 article indeed cites no support for its assertion, and I know of no other sources that would support such a claim. Neither The “People” of the Second Amendment nor the 1915 article cites Nunn v. Georgia, the one pre–Civil War source that did discuss the question, and that expressly said that the right to bear arms is a “right of the whole people, old and young, men, women, and boys.”22
  5. The article supports the assertion that “[m]ilitia membership and its attendant firearms rights and obligations were not extended to include poor whites until the first decades of the nineteenth century”23 by citing and quoting Richard FSlotkin’s book chapter, Equalizers: The Cult of the Colt in American Culture: “Colonial militias excluded from service those residents who were not classed as freemen, a category that included poor whites . . . . The expansion of citizenship rights . . . through the Age of Jackson extended the franchise and the right and obligation of militia service to the white male portion of the excluded classes.”24 But the book chapter does not say anything about the “attendant firearms rights” of militia membership, nor does it give evidence that poor whites lacked such “firearms rights.” It is not clear that the book chapter’s assertions about the exclusion of poor whites from militia membership are generally correct (except those assertions as to some colonies’ exclusion of indentured servants,25 a category that was conceptually and practically quite different from poor whites26). But in any case, the chapter’s assertions, even if accurate about the militia, do not show that any “firearms rights” were actually denied to poor whites.

The article does include a footnote that says, “I am not arguing that women were prevented from owning arms; rather, prevailing statutes and legal opinions gendered arms bearing in important ways.”27 So the careful reader might grasp that the article’s claims about women—but not the article’s claims about poor whites and noncitizens—are not what they first appear.

But I am afraid that some readers might understandably miss that footnote. And if they see it, they might understandably be confused, because it is difficult to reconcile that footnote with the article’s statements that:

  • “[S]ince only ‘First-Class citizens’ were allowed to . . . bear arms . . ., . . . women . . . were denied many fundamental rights presently associated with citizenship.”
  • “[G]un regulation [depended] on a conception of membership in the national community con¬tin¬gent upon . . . gender.”
  • “[O]nly select citizen males could legitimately exercise the right to bear arms.”
  • “[A]rms bearing was considered congruent to voting.”
  • “[F]irearms . . . could be denied to most . . . women.”

These statements do seem to assert that “women were [legally] prevented from owning arms.”
It is of course possible that custom or informal social understandings might have imposed de facto restrictions on gun ownership, even if the law did not. But none of the sources that the article cites offer evidence of that possibility, either.28

When the article was available in draft on the Social Science Research Network (SSRN), I e-mailed the author asking whether he had found some sources showing that women, poor whites, and noncitizens had indeed been disarmed by law. I asked again after the Law Review published the article. But while the author kindly and promptly replied to my e-mails, neither response pointed to any sources that actually showed that women, poor whites, or noncitizens were legally constrained from owning guns.
It thus seems to me that the article may leave the reader with a mistaken understanding of the matter. I thought this was worth communicating to readers. And I thought it was also worth asking why the Law Review did not insist, as part of its cite-checking function, that the article be made more accurate on this point.

There are two things on which supporters of the individual-rights view of the Second Amendment and supporters of the collective-rights view seem to agree. First, historical claims have played an especially important role in debates about the Second Amendment. And, second, the conventional understanding of the Second Amendment has, unfortunately, often been based on incomplete or erroneous historical claims. I believe it is therefore especially important that all of us who work in this area be particularly careful in our historical assertions.

Acknowledgments:

Eugene Volokh (volokh@law.ucla.edu) is Gary T. Schwartz Professor of Law, UCLA School of Law. He wishes to give many thanks to Stuart Banner and Steve Yeazell for their feedback, and to Amy Atchison and Vicki Steiner at the UCLA Law Library for their indispensable research help.

  1. 85 N.Y.U. L. REV. 1521 (2010).
  2. Id. at 1538 (emphasis added). I assume that “precolonial and early colonial” should have been “pre-Republic and early Republic.”
  3. Id. at 1543 (emphasis added).
  4. Id. at 1545 (emphasis added) (footnote omitted).
  5. Id. at 1546 (emphasis added).
  6. Id. (emphasis added) (citing sources that discussed disarming of Catholics, but no sources that discussed disarming of poor whites).
  7. Id. at 1546–47 (emphasis added).
  8. Id. at 1547 (emphasis added).
  9. Id. (emphasis added).
  10. Id. (emphasis added) (footnote omitted).
  11. Id. at 1549–50 (emphasis added) (footnote omitted). This appears to be an assertion that certain people were restricted from owning guns, as the “discussing gun-ownership restrictions in early republic” quotation shows; it does not seem to be just an assertion that they lacked a constitutional right to own guns and were thus vulnerable to such legislative restrictions. Indeed, the analogous behavior to which the passage points—voting by blacks, women, and aliens—was actually prohibited in many or nearly all jurisdictions. See JOHN HOPE FRANKLIN & ALFRED A. MOSS, JR., FROM SLAVERY TO FREEDOM: A HISTORY OF AFRICAN AMERICANS 168–72 (8th ed. 2000) (noting mixed access to voting rights for free blacks in various states following gradual emancipation programs); Judith Apter Klinghoffer & Lois Elkis, “The Petticoat Electors”: Women’s Suffrage in New Jersey, 1776–1807, 12 J. EARLY REPUBLIC 159, 172 (1992) (discussing the one state in which voting rights were extended to women for a time); Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. PA. L. REV. 1391, 1399–1406 (1993) (noting mixed pattern as to voting rights of aliens).
  12. 85 N.Y.U. L. REV. at 1538 n.93 (emphasis added).
  13. I have seen assertions that some colonies limited gun possession by indentured servants, though without citations to any such statutes; the assertions have directly or indirectly relied on Michael A. Bellesiles, Gun Laws in Early America: The Regulation of Firearms Ownership, 1607–1794, 16 LAW & HIST. REV. 567, 575–76 (1998), but that article did not cite any statutes that supported such an assertion.
    But even if the legislature did bar gun ownership by indentured servants, “poor whites” is quite different from “indentured servants,” both as a practical matter and as a conceptual matter. Practically, indenture periods typically lasted only two to seven years; after the period expired, the person was no longer an indentured servant but was still white and likely still poor. See DAVID W. GALENSON, WHITE SERVITUDE IN COLONIAL AMERICA 102 (1981) (reporting four years as “the normal duration of an adult’s indenture in both” of the “two largest surviving collections” of recorded servant contracts); RICHARD B. MORRIS, GOVERNMENT AND LABOR IN EARLY AMERICA 316 (1946) (reporting indenture terms of two to seven years); E. Merrick Dodd, From Maximum Wages to Minimum Wages: Six Centuries of Regulation of Employment Contracts, 43 COLUM. L. REV. 643, 661 (1943) (reporting a typical indenture term of five years); Aaron S. Fogelman, From Slaves, Convicts, and Servants to Free Passengers: The Transformation of Immigration in the Era of the American Revolution, 85 J. AM. HIST. 43, 52 (1998) (“[F]our-year contracts were normal for adult immigrants in the English colonies.”). Conceptually, indentured servants—unlike poor whites—surrendered many rights: their right to choose where to work, their right to move to a different area, and in some colonies their rights to marry and to bear children. See, e.g., Act Concerning Marriages, 1705 Va. Acts 441, 444 (Hening 1823) (extending the term of service of servants who marry, and penalizing people who marry indentured servants); Ch. 109, 1701 Pa. Laws 34–35 (Mathew Carey & John Bioren, 1803) (same); Altemus v. Ely, 3 Rawle 305 (Pa. 1832) (discussing such a statute); Alfred L. Brophy, Law and Indentured Servitude in Mid–Eighteenth Century Pennsylvania, 28 WILLAMETTE L. REV. 69, 103 (1991) (“[F]emale servants who became pregnant could be compelled to serve an extra two years.”). “These servants were in a very degraded situation. They were a species of property, holding a middle rank between slaves and freemen; they might be sold from hand to hand; and they were under the correction of laws exceedingly severe.” Respublica v. Keppele, 2 Dall. 197, 197 (Pa. 1793) (Bradford, J.). That indentured servants were also denied the right to bear arms for the duration of their indentures says little about how the right was understood with regard to whites who were free of indentures, even poor whites.
  14. Saul Cornell, Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory, 16 CONST. COMMENT. 221, 229 (1999).
  15. Act of Mar. 31, 1779 (Test Act of 1779), ch. 836, 9 Pa. Stat. 346, 346–48; Act of June 13, 1777 (Test Act of 1777), ch. 756, 9 Pa. Stat. 110, 110–14.
    The 1790 Pennsylvania Constitution, though not the 1776 Pennsylvania Constitution, did describe the right to keep and bear arms as a right of “citizens.” PA. CONST. of 1790, art. IX, § 21. The Kentucky Constitution did the same, KY. CONST. of 1792, art. XII, § 23, though no other pre-1810 states had such provisions. See Eugene Volokh, State Constitutional Rights To Keep and Bear Arms, 11 TEX. REV. L. & POL. 191, 208–09 (2006) (listing provisions by date). Two Framing-era proposals for amendments to the United States Constitution likewise would have limited the right to citizens. In Convention of the Delegates of the People of the State of New Hampshire, June the 21st, 1788, reprinted in 1 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 326 (Jonathan Elliot ed., 2d ed. 1876) (proposing that “Congress shall never disarm any citizen unless, such as are or have been in actual rebellion”); DEBATES AND PROCEEDINGS IN THE CONVENTION OF THE COMMONWEALTH OF MASSACHUSETTS 86 (William White ed., 1856) (indicating Samuel Adams’s suggested amendment at the Massachusetts ratifying convention “that the said Constitution be never construed to authorize Congress . . . to prevent the people of the United States, who are peaceable citizens, from keeping their own arms”). But I could not find evidence that noncitizens in any state were actually prohibited from owning arms; these provisions reveal only that some legislatures had the power to impose such prohibitions, not that those legislatures did impose such prohibitions.
  16. Cornell, supra note 14, at 235.
  17. AKHIL REED AMAR, THE BILL OF RIGHTS 48, 258–59 (1998).
  18. 85 N.Y.U. L. REV. at 1547.
  19. TENN. CONST. of 1834, art. I, § 26.
  20. “Men” might well have been a general reference to people, not just males. The statutory revisions and codifications that, as it happens, began to be enacted in the late 1820s and 1830s routinely provided that in matters of statutory interpretation, masculine references would generally include the feminine. See, e.g., Act of Dec. 10, 1828, ch. 20 § 11, 1828 N.Y. Laws 19, 21; Act of Mar. 21, 1835, § 26, 1835 Mo. Laws 379, 383; 1836 Mass. Rev. Stats. ch. 2, sec. 6, cl. 2; An Act Concerning the Revised Statutes, 1836 Miss. Rev. Stat. 9, 10; 1838 Ark. Rev. Stat. ch. 129, sec. 21; Act of 1839, 1839 Wis. Sess. Laws 35. It seems likely that this was the general rule of textual interpretation at the time, and would have been seen as the rule by the drafters of the 1834 Tennessee Constitution. Tennessee did not codify its statutes until 1858, see Samuel C. Williams, A History of Codification in Tennessee, 10 TENN. L. REV. 61, 69 (1932), but that codification likewise included a similar provision, 1858 Tenn. Code § 50.
    The 1796 Tennessee Bill of Rights referred to the right as possessed by “freemen,” TENN. CONST. of 1796, art. XI, § 26, but this too may well have included women. That same Bill of Rights likewise characterized the right to due process and the right not to be prosecuted without a grand jury indictment—rights that to my knowledge were not seen at the time as limited to male criminal defendants—as rights of “freemen.” TENN. CONST. of 1796, art. XI, §§ 8, 14. See also, e.g., 1 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (3d ed. London, A. Millar et al. 1766) (defining “freeman” as “[o]ne partaking of rights, privileges, or immunities,” with no limitation to men, while defining “freewoman” on the same page as limited to women); 1 JACOB GILES, THE LAW-DICTIONARY (London, T. Longman et al. 1797) (giving a similar definition for “freeman”); TIMOTHY CUNNINGHAM, A NEW AND COMPLETE LAW-DICTIONARY (3d ed. London, J.F. & C. Rivington 1783) (same).
    The term “freeman” was, in some other states, sometimes used to refer only to property owners. But in Tennessee it generally meant either a free person or, slightly more narrowly, a citizen. For examples of “freeman” being used as the antonym of slave, see TENN. CONST. of 1796, art. I, § 26 (“[N]o freeman shall be taxed higher than one hundred [a]cres [i.e., than the amount equivalent to the property tax imposed on a hundred acres of land], and no slave higher than two hundred acres on each poll.”); Fields v. State, 9 Tenn. (1 Yer.) 156, 159 (1829) (using “freeman” as the opposite of “slave”); Vaughan v. Phebe, 8 Tenn. 5, 20–21 (1827) (same). “Poll” in § 26 was used in the sense of “a head; . . . so poll money, poll silver, sometimes called a capitation tax, is a tax upon the people at so much a head,” 2 RICHARD BURN & JOHN BURN, A NEW LAW DICTIONARY 220 (London, A. Strahan & W. Woodfall 1792)—it did not refer to voters, since of course slaves could not vote. For the one case I found that interpreted “freeman” in the Tennessee Bill of Rights as being equivalent to “citizen” rather than “free man,” in the context of concluding that a freed slave nonetheless could not be a “freeman,” see State v. Claiborne, 19 Tenn. (Meigs) 331, 341 (1839).
  21. Lucilius A. Emery, The Constitutional Right To Keep and Bear Arms, 28 HARV. L. REV. 473, 476 (1915).
  22. 1 Ga. 243, 251 (1846).
  23. 85 N.Y.U. L. REV. at 1547 (emphasis added).
  24. Richard Slotkin, Equalizers: The Cult of the Colt in American Culture, in GUNS, CRIME, AND PUNISHMENT IN AMERICA 54, 56 (Bernard E. Harcourt ed., 2003).
  25. See, e.g., Act of May 22, 1756, reprinted in PROCEEDINGS AND ACTS OF THE GENERAL ASSEMBLY OF MARYLAND, 1755–1756 450 (J. Hall Pleasants ed., 1935) (excluding “Servants” alongside “Slaves” from the militia). The cited book chapter does not provide a footnote accompanying its assertions about poor whites being excluded from the militia, and sources cited in the same paragraph in the chapter suggest the opposite. See JOHN K. MAHON, HISTORY OF THE MILITIA AND THE NATIONAL GUARD 14 (1983) (“[A]ll [the colonies] . . . believed that a military obligation rested on every free, white male settler.”); ALLAN R. MILLETT & PETER MASLOWSKI, FOR THE COMMON DEFENSE: A MILITARY HISTORY OF THE UNITED STATES OF AMERICA 3 (1984) (“Colonial laws regularly declared that all able-bodied men between certain ages automatically belonged to the militia.”); id. at 4 (“Every colony’s law detailed how destitute citizens could be armed at public expense.”); AMERICAN MILITARY HISTORY 28 (Maurice Matloff ed., 1973) (describing militias as being “generally based on the principle . . . that every able-bodied free male from sixteen to sixty should render military service”).
  26. See Bellesiles, supra note 13, at 575 (defining indentured servants as “unfree white laborers”).
  27. 85 N.Y.U. L. REV. at 1547 n.129.
  28. Cf. James Lindgren & Justin L. Heather, Counting Guns in Early America, 43 WM. & MARY L. REV. 1777, 1777–78, 1811, 1818 (2002) (reporting that eighteen percent of women’s probate inventories in one sample and thirty-eight percent in another reflected a gun as one of the woman’s assets at the time she died).

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