Explore The NRA Universe Of Websites

APPEARS IN Legal & Legislation

Our 2nd Amendment: The Original Perspective

Monday, October 4, 1999

By by David B. Kopel

"In America we may reasonably hope
that the people will never cease
to regard the right of keeping and bearing arms
as the surest pledge of their liberty."
--St. George Tucker





The grassroots volunteer strength of Second Amendment activists is the fundamental reason why the right to keep and bear arms is so much healthier in America than in other countries. The anti-gun lobbies know this, and one of their major objectives is to discourage you, the American gun owner, from working to defend your Constitutional rights.

For example, the gun-ban group formerly known as Handgun Control, Inc.`s web site contains materials written by HCI staff insisting that the idea that the Second Amendment guarantees a right of individual Americans to keep and bear arms is a "myth" and a "fraud" invented by the National Rifle Association. If you read this material and fell for it, you would likely become much less energetic in political work to defend the Second Amendment.

But in truth, HCI`s claim that the individual`s right to keep and bear arms is a "fraud", is itself a creative compilation of selective quotations, facts taken out of context, and omission of the large body of contrary evidence.

In Stalin`s Soviet Union (one of the many countries where domestic disarmament paved the way for genocide), a person who fell out political favor became a "non-person." If you owned the Soviet encyclopedia, you would receive instructions from time to time ordering you to cut out an entry referring to somebody who had newly been declared an unperson. Excised from the encyclopedia, the "non-person" would never again be mentioned by the government, and any private person who even acknowledged that the "non-person" had ever existed would be risking a long stretch in the concentration camps.

HCI`s campaign to persuade Americans that the Second Amendment has nothing to do with individual rights depends on turning many of the greatest American judges and legal scholars into non-persons. HCI simply pretends that these people never existed, because to acknowledge their existence would be to admit that it is HCI`s description of the Second Amendment which is the "myth."

Consider, for example, St. George Tucker. He is a person whom you will regularly encounter in the many scholarly law review articles which agree that the Second Amendment guarantees a right of every American adult citizen to own and carry guns. But if all you knew was what you read from the anti-gun lobbies, St. George Tucker would be a non-person.



St. George Tucker, creator of an American edition of Blackstone`s Commentaries, was appointed by President James Madison to Virginia`s High Court of Appeals where he served as a jurist from 1804 until his death in 1827.



Tucker, the most important legal scholar of the early American republic, was just starting his legal career in Virginia when the American Revolution intervened. Tucker threw himself into the Patriots` cause enthusiastically, leading a gun-running operation in which his four small ships sent indigo to the West Indies and Bermuda in exchange for firearms.

After independence had been won, St. George Tucker became one of the most distinguished Virginia lawyers; he taught law at William and Mary from 1790 until 1804, when he was appointed a judge of Virginia`s High Court of Appeals. Tucker was also the leading abolitionist in Virginia, calling an end to slavery his "dearest wish."

In 1790, St. George Tucker began work on a treatise, published in 1803, which became the greatest law book in America. Tucker`s project was to create an American edition of Blackstone`s Commentaries.

In 1760, the English lawyer Sir William Blackstone had written a four volume Commentaries on the Law of England. Blackstone`s explication of every facet of English law (which of course, was also the law in America) became essential reading for every lawyer.

Tucker set out to create an American edition of Blackstone. Adding his own analysis to Blackstone`s, Tucker aimed to create a legal guidebook specifically suited to American conditions.

In particular, Tucker demonstrated that the American law of the early 19th century provided far greater protection of civil liberty than did the English law that Blackstone had described in 1760.

For example, Blackstone had written that the liberty of the press meant that the government could not censor something before it was written; but after publication, the government could punish someone for having criticized the king. But Tucker`s American edition of Blackstone explained that in America, thanks to the First Amendment, one could not be punished for criticizing the government.




19th Century Constitutional Law Treatises which Address the Second Amendment

All legal treatises or essays from the nineteenth century which discussed the Second Amendment treated it as an individual right. If two publication dates are listed for a book, the first date is the date of original publication, and the second date is for a modern reprint. Most of the books are available on the Internet through Amazon.com (http:/www.amazon.com) or can be special-ordered at a local bookstore. Many of the reprint editions are by Fred B. Rothman & Co., Littleton, Colorado.

St. George Tucker, Blackstone`s Commentaries, with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and the Commonwealth of Virginia (1996) (1803). William Blackstone`s Commentaries on the Laws of England was a major English treatise from the 1760s. Tucker`s edition added substantial additional commentary, updating Blackstone to reflect the evolution of American law.

William Rawle, A View of the Constitution of the United States of America (1970, reprint of 2d ed. 1829).

Joseph Story, Commentaries on the Constitution (1833), available in full text on the Internet at http://www.constitution.org/js/js_000.htm.

Joseph Story, A Familiar Exposition of the Constitution of the United States (1840). Numerous modern reprints available.

Henry St. George Tucker, Commentaries on the Law of Virginia (1831). Henry St. George Tucker was a distinguished Virginia judge and law professor, and a distant relative of St. George Tucker (above).

Benjamin L. Oliver, The Rights of an American Citizen; with a Commentary on State Rights, and on the Constitution and Policy of the United States (1832).

James Bayard, A Brief Exposition of the Constitution of the United States 3-4 (1992, reprint of 2d ed., 1845).

Francis Lieber, On Civil Liberty and Self-Government (enlarged ed., 1859)

Lysander Spooner, The Unconstitutionality of Slavery (1845).

Lysander Spooner, A Defence of the Fugitive Slaves 27 (1850). Spooner`s works are available in a variety of modern anthologies of his writing.

Joel Tiffany, Treatise on the Unconstitutionality of American Slavery (1849) Joel Tiffany, A Treatise on Government and Constitutional Law Being an Inquiry into the Source and Limitations of Governmental Authority according to the American Theory (1867).

C. Chauncey Burr, Notes on the Constitution of the United States (1861).

Timothy Farrar, Manual of the Constitution of the United States (1993)(1867).

George W. Paschal, The Constitution of the United States Defined and Carefully Annotated (1868).

Joel Prentiss Bishop, Commentaries on the Criminal Law (3d ed., 1865)

Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes (1873).

John Pomeroy, An Introduction to the Constitutional Law of the United States (1870).

Oliver Wendell Holmes , Jr., editor and author of additional comment
TRENDING NOW
ATF Proposed Rule a Blatant Attack on American Gun Industry

News  

Saturday, May 8, 2021

ATF Proposed Rule a Blatant Attack on American Gun Industry

Two weeks ago we reported on a leaked document that appeared to be a new ATF proposed rule to amend several key definitions in federal firearm regulations

Washington: Second Amendment Banned in First Amendment Spaces After the Signing of Anti-Gun Measure

Friday, May 14, 2021

Washington: Second Amendment Banned in First Amendment Spaces After the Signing of Anti-Gun Measure

On Wednesday, despite the thousands of calls, emails, and other communication from NRA Members and Second Amendment supporters, Senate Bill 5038 advanced out of the legislature and was signed into law

Illinois: Gun Seizure Bill Resurrected, Passes House

Thursday, May 13, 2021

Illinois: Gun Seizure Bill Resurrected, Passes House

Yesterday, House Bill 1092, to expand Illinois’ program of suspending Second Amendment rights without due process, was resurrected after it previously had been re-referred to the House Rules Committee.

Texas: Senate Passes HB 1927

Thursday, May 6, 2021

Texas: Senate Passes HB 1927

Early this evening, after more than 6 hours of debate and discussion on more than two dozen amendments, the Texas Senate passed House Bill 1927, constitutional carry legislation, on an 18-13 vote.

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

New York Times Throws ATF Pity Party

News  

Monday, May 10, 2021

New York Times Throws ATF Pity Party

The publication of a lengthy New York Times or Washington Post opinion piece disguised as news that commiserates about the purportedly beleaguered state of the ever-so valiant Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). 

Canada’s “Dead” Long-Gun Registry Still Used by Police

News  

Monday, May 10, 2021

Canada’s “Dead” Long-Gun Registry Still Used by Police

Concerning the repudiated long gun registry and the federal police agency responsible for implementing and enforcing Canada’s gun laws.  

Texas: Constitutional Carry Bill Heading to Conference Committee

Thursday, May 13, 2021

Texas: Constitutional Carry Bill Heading to Conference Committee

The Texas House has sent House Bill 1927, constitutional carry legislation sponsored by Rep. Matt Schaefer (R-Tyler), to a conference committee to work out the differences between the House- and Senate-passed versions of the bill.

NICS Numbers Tell a Story

News  

Monday, May 10, 2021

NICS Numbers Tell a Story

NICS numbers rise. Readers know the rest. Self-reliance and firearms ownership are time-honored American traditions.

Nevada: Gun Ban Bill Passes Committee, Headed to the Senate Floor

Thursday, May 13, 2021

Nevada: Gun Ban Bill Passes Committee, Headed to the Senate Floor

Yesterday, the Senate Judiciary Committee passed Assembly Bill 286 with an amendment, to end the centuries old practice of making firearms for personal use.

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.