Publication Date
November 18, 2021
David B. Kopel
Second Amendment, nineteenth century, Supreme Court
This article lets the nineteenth century legal community speak for its elf by dealing with the treatises and cases of the century, as well as Congressional and political debates. There is a great
deal to learn from what the nineteenth century had to say about the Second Amendment. Most importantly, we can resolve whether the Second Amendment has historically been considered to protect an individual right . Additionally, an examination of the Second Amendment in the nineteenth
century provides useful guidance about what types of gun control are constitutionally permissible.
Part II of this article analyzes the Second Amendment scholarship of the three great constitutional treatises of early nineteenth century—St. George Tucker’s American Blackstone, William Rawle’s A View of the Constitution of the United States of America, and Joseph Story’s Commentaries on the Constitution of the United States—as well as some lesser commentators from the 1830s, 1840s, and 1850s. Part II also includes a study of Justice Story’s dicta about the Second
Amendment in the 1820 case Houston v. Moore.
Part III addresses nineteenth century state constitutions and state case law regarding the right to arms. These constitutional texts and their judicial interpretation offer valuable insights into the meaning of the Second Amendment .
The Civil War is the subject of Part IV, which discusses Dred Scott, the writin gs of anti-slavery human rights activists and the confiscations of arms before and during the War.
Part V deals with the aftermath of the Civil War, including Congressional debates about the infringements by unreconstructed Southern states of the freedmen’s right to arms; the Fourteenth Amendment ; and the Supreme Court’s Cruikshank decision. Part V concludes with a discussion of the growth in labor unrest, restrictive gun laws aimed at labor agitators, and the Supreme Court’s Presser decision.
Scholarly commentators of the later nineteenth century are the subject of Pa rt VI. Thomas Cooley is the giant of this period, but there were also more than a dozen other constitutional treatises from the period, as well as the first law review articles on the right to arms.
Part VI I brings the article to the fin-de-siècle, by looking at two Supreme Court cases mentioning the Second Amendment in dicta; it also peeks a head into the early twentieth century at the most important Second Amendment “states’ right” ruling—the Kansas case of Salina v . Blaksley. Part VII also examines the implications that he nineteenth century records have for modern firearms policy, and for the scholarship of David Williams and Carl Bogus.
The Conclusion discusses which modes of Second Amendment analysis are plausible and which modes are implausible in light of the nineteenth century’s Second Amendment interpretation.
Recommended Citation
Kopel, David B. and Kopel, David B., The Second Amendment in the Nineteenth Century (November 1, 1998). Brigham Young University Law Review, Vol. 1998, No. 4, 1998, Available at SSRN:

get firearms facts & research

explore our repository