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
Justice Scalia Made Clear the Second Amendment and Heller Prohibit “Assault Weapon” Bans

News  

Second Amendment  

Gun Laws  

Friday, July 13, 2018

Justice Scalia Made Clear the Second Amendment and Heller Prohibit “Assault Weapon” Bans

On July 9, Sen. Chris Murphy (D-Conn.) offered the following ham-handed statement in an attempted attack on President Donald Trump’s U.S. Supreme Court nominee, D.C. Circuit Judge Brett Kavanaugh. Brett Kavanaugh is a true Second Amendment radical. ...

Delaware: Governor Signs Bill Legalizing Sunday Deer Hunting

Hunting  

Friday, July 13, 2018

Delaware: Governor Signs Bill Legalizing Sunday Deer Hunting

On July 11th, Governor John Carney signed Senate Bill 198 into law to expand hunting opportunities in Delaware by eliminating the prohibition against hunting for deer on Sundays and allowing for the harvesting of deer on Sundays ...

California DOJ Withdraws Proposed Regulations Expanding Application of “Assault Weapon” Definitions

Wednesday, July 11, 2018

California DOJ Withdraws Proposed Regulations Expanding Application of “Assault Weapon” Definitions

On Monday, the California Department of Justice, Bureau of Firearms (“CA DOJ”) officially withdrew the proposed regulations that would have expanded the improperly adopted “assault weapon” definitions, to apply in all circumstances. This withdrawal comes ...

NRA Files Comments in Support of Trump Administration’s Export Reform Effort

News  

Friday, July 13, 2018

NRA Files Comments in Support of Trump Administration’s Export Reform Effort

On Monday, the public comment period closed on a pair of rulemakings that could finally free American gun owners and small businesses from being trapped in a minefield of federal regulations designed for exporters of ...

Judge Brett Kavanaugh Has Earned NRA Members’ Support

News  

Second Amendment  

Friday, July 13, 2018

Judge Brett Kavanaugh Has Earned NRA Members’ Support

NRA members can feel confident throwing their enthusiastic support behind President Donald Trump’s nomination of Judge Brett Kavanaugh to the U.S. Supreme Court. Throughout his time on the bench, Judge Kavanaugh has demonstrated deep respect ...

California: MASSIVE Data Breach and Significant Registration Problems with CA DOJ’s “Assault Weapon” Registration System

Saturday, July 7, 2018

California: MASSIVE Data Breach and Significant Registration Problems with CA DOJ’s “Assault Weapon” Registration System

Following the closure of the “assault weapon” registration period, NRA and CRPA received complaints from hundreds of individuals who were unable to register their firearms as required because CA DOJ’s online application system was unable ...

Mission Impossible: California Court Upholds Microstamping Law

News  

Tuesday, July 3, 2018

Mission Impossible: California Court Upholds Microstamping Law

It is not surprising that gun control activists who harp endlessly about “common sense” gun restrictions and the need for ever more legislative reforms (here, here and here, for example) aren’t particularly interested in whether the various bans and ...

NRA Applauds Brett Kavanaugh's Nomination to the U.S. Supreme Court

News  

Monday, July 9, 2018

NRA Applauds Brett Kavanaugh's Nomination to the U.S. Supreme Court

Fairfax, Va. -The National Rifle Association (NRA) applauds the nomination of Judge Brett Kavanaugh to fill Justice Anthony Kennedy’s seat on the United States Supreme Court. 

Too Young or Too Old... To Own a Gun?

News  

Friday, July 6, 2018

Too Young or Too Old... To Own a Gun?

A common theme among anti-gun extremists is what we often refer to as the “Goldilocks” approach to limiting access to firearms by law-abiding citizens.  Rather than admit that the ultimate goal is to disarm all ...

Hawaii: Governor Signs Trigger Modification Ban Into Law

Friday, July 13, 2018

Hawaii: Governor Signs Trigger Modification Ban Into Law

On Monday, July 9th, Governor David Ige signed Senate Bill 2046, which makes it a crime to manufacture, import, sell, gift, lend, or possess certain trigger modifications. 

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.