(I include here all the state rights to keep and bear arms enacted in 1820 or before, plus the provision from the first [1842] Constitution of Rhode Island, the last of the original states to set up a constitution.)

Second Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

English Bill of Rights: That the subjects which are protestants may have arms for their defence suitable to their conditions and as allowed by law (1689).22

Alabama: That every citizen has a right to bear arms in defence of himself and the state (1817).23

Connecticut: Every citizen has a right to bear arms in defense of himself and the state (1818).24

Indiana: That the people have a right to bear arms for the defense of themselves and the State, and that the military shall be kept in strict subordination to the civil power (1816).25

Kentucky: [T]he right of the citizens to bear arms in defense of themselves and the State shall not be questioned (1792).26

Maine: Every citizen has a right to keep and bear arms for the common defence; and this right shall never be questioned (1819).27

Massachusetts: The people have a right to keep and to bear arms for the common defence (1780).2

22

28

1 Wm. & Mary sess. 2, ch. 2 (1689).

23 ALA. CONST. art. I, § 23 (1819).

24 CT. CONST. art. I, § 17 (1818). Connecticut had no Constitution until 1818.

25 IND. CONST. art. I, § 20 (1817).

26 KY. CONST. art. XII, § 23 (1792).

27 MAINE CONST. art. I, § 16 (1819).

28 MASS. CONST. pt. 1, art. 17 (1780).

Mississippi: Every citizen has a right to bear arms, in defence of himself and the State (1817).29

Missouri: That the people have the right peaceably to assemble for their common good, and to apply to those vested with the powers of government for redress of grievances by petition or remonstrance; and that their right to bear arms in defence of themselves and of the State cannot be questioned (1820). 30

North Carolina: [T]he people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power (1776).31

Ohio: 1802: That the people have a right to bear arms for the defence of themselves and the State; and as standing armies, in time of peace, are dangerous to liberty, they shall not be kept up, and that the military shall be kept under strict subordination to the civil power.

32

Pennsylvania: That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power (1776).3

The right of the citizens to bear arms in defence of themselves and the State shall not be questioned (1790).34

Rhode Island: The right of the people to keep and bear arms shall not be infringed (1842).35

Tennessee: [T]he freemen of this State have a right to keep and bear arms for their common defence (1796).36

Vermont: [T]he people have a right to bear arms for the defence of

29 MISS. CONST. art. I, § 23 (1817).

30 MISSOURI CONST. art. XIII, § 3 (1820).

31 N.C. CONST. Bill of Rights, § XVII (1776).

32 OHIO CONST. art. VIII, § 20 (1802).

33 PENN. CONST. Declaration of Rights, cl. XIII (1776).

34 PENN. CONST. art. IX, § 21 (1790).

35 R.I. CONST. art. I, § 22 (1842). Rhode Island had no Constitution until 1842.

36 TENN. CONST. art. XI, § 26 (1796).

themselves and the State-and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power (1777).37

Virginia: That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power (1776).38 [The Virginia Constitution didn't mention a right to keep and bear arms until 1971.]

II.

CALLS FOR THE RIGHT TO KEEP AND BEAR ARMS FROM STATE Ratification CONVENTIONS39

Five of the states that ratified the Constitution also sent demands for a Bill of Rights to Congress. All these demands included a right to keep and bear arms. Here, in relevant part, is their text:

New Hampshire: Twelfth[:] Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.

Virginia: ... Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.

New York: ... That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State; That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection. That Standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, excess in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.

North Carolina: Almost identical to Virginia demand, but with "the body

37 VT. CONST. ch. I, art. 16 (1777).

38 VA. CONST. art. I, § 13 (1776).

39 See THE COMPLETE BILL OF RIGHTS 181-83 (Neil H. Cogan ed. 1997).

of the people, trained to arms" instead of "the body of the people trained to arms."

Rhode Island: Almost identical to Virginia demand, but with "the body of the people capable of bearing arms" instead of "the body of the people trained to arms," and with a “militia shall not be subject to martial law" proviso as in New York.

III.

"THE RIGHT OF THE PEOPLE" IN OTHER BILL OF RIGHTS PROVISIONS

First Amendment: Congress shall make no law. . . abridging... the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..

Ninth Amendment: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Tenth Amendment: [Speaking of "the powers. . . of the people" rather than "the right . . . of the people"] The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

IV.

SOME OTHER CONTEMPORANEOUS CONSTITUTIONAL PROVISIONS WITH A SIMILAR GRAMmatical StrUCTURE

40

Rhode Island Free Press Clause: The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty.

41

Massachusetts Free Press Clause: The liberty of the press is essential to the security of freedom in a state it ought not, therefore, to be restricted in this commonwealth.42

40 See generally Eugene Volokh, The Commonplace Second Amendment, 73 NYU L. Rev. 793 (1998) (giving more such provisions, and discussing them in more detail).

"R.I. CONST. art. I, § 20 (1842).

42 MASS. CONST. pt. 1, art. XVI (1780); see also N.H. CONST. pt. 1, art. XXII (1784) ("The Liberty of the Press is essential to the security of freedom in a state; it ought, therefore, to be inviolably preserved").

Massachusetts Speech and Debate Clause: The freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation of prosecution, action or complaint, in any other court or place whatsoever.43

New Hampshire Venue Clause: In criminal prosecutions, the trial of the facts in the vicinity where they happen is so essential to the security of the life, liberty, and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed. . . .“

A.

William Blackstone, Commentaries on the Laws of England (1765)¶5

In the three preceding articles we have taken a short view of the principal absolute rights [personal security, personal liberty, private property] which appertain to every Englishman. But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as outworks or barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property. 1. The constitution, powers, and privileges of parliament. . . .

2. The limitation of the king's prerogative . . . .

3. [A]pplying to the courts of justice for redress of injuries.

4.

...

[T]he right of petitioning the king, or either house of parliament, for the redress of grievances.

5. The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute.. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

[T]o vindicate [the three primary rights], when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular

43 MASS. CONST. pt. I, art. XXI (1780); see also N.H. CONST. pt. I, art. XXX (1784) (same); VT. CONST. chap. I, art. XVI (1786) (same, but with “either house of" omitted).

"N.H. CONST. pt. I, art. XVII (1784).

45 William Blackstone was the leading British legal commentator of the 1700s, and was widely read in the Colonies; he was writing about the more limited right found in the English Bill of Rights.