Guns now take the lives of 99 Americans every day -- 15 of them are children and teenagers. We at Handgun Control, Inc. believe that reducing this carnage requires regulating handguns much the same way we regulate automobiles -- by licensing handgun owners, registering handgun transfers, and applying consumer safety standards to handgun manufacturers. To those who disagree with us, I say: make the best case you can on policy grounds. But stop the pretense that a fundamental constitutional liberty is at stake. We can no longer afford to allow the national debate over guns and violence to be dominated by a dangerous constitutional illusion.

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Senator ASHCROFT. Now, I would like to call our fourth and final panel forward to testify. Joyce Lee Malcolm is professor of history at Bentley College in Waltham, MA. Carl Bogus joins us from the Roger Williams School of Law in Rhode Island, where he is a professor of law.

Stephen Halbrook is a practicing attorney whom you have met earlier. Robert Cottrol is professor of law and history at George Washington University. Robert Spitzer has traveled from Cortland, NY, where he is the Distinguished Professor of Political Science at the State University of New York. And, finally, not to be outdone, Professor Eugene Volokh has traveled all the way from Los Angeles, where he teaches law at UCLA.

I am very pleased to welcome you. I will introduce you each prior to your remarks and indicate that I would be pleased now to first call on Joyce Lee Malcolm, professor of history at Bentley College in Waltham, MA.

PANEL CONSISTING OF JOYCE LEE MALCOLM, PROFESSOR OF HISTORY, BENTLEY COLLEGE, WALTHAM, MA; CARL T. BOGUS, PROFESSOR OF LAW, ROGER WILLIAMS UNIVERSITY SCHOOL OF LAW, BRISTOL, RI; ROBERT J. COTTROL, PROFESSOR OF LAW AND HISTORY, GEORGE WASHINGTON UNIVERSITY, WASHINGTON, DC; ROBERT J. SPITZER, PROFESSOR OF POLITICAL SCIENCE, SUNY CORTLAND, CORTLAND, NY; STEPHEN P. HALBROOK, FAIRFAX, VA; AND EUGENE VOLOKH, PROFESSOR OF LAW, UNIVERSITY OF CALIFORNIA, LOS ANGELES, SCHOOL OF LAW, LOS ANGELES, CA

STATEMENT OF JOYCE LEE MALCOLM

Ms. MALCOLM. Thank you very much for inviting here today. Senator ASHCROFT. May I just interrupt for a second? I am going to ask you to try and keep this to 5 minutes. This is an interesting, emotionally-charged setting. We will restart the clock so I will not impair your 5 minutes, but I have been derelict in deferring to members of the Senate, and I frankly have consumed some of your time, for which I apologize. But I would like to ask you to try and keep this tight and submit what you can't say for the record. We are very pleased that you have come.

Ms. MALCOLM. That is the hardest thing you can ask an academic, is to be brief, but I will be very brief.

The second amendment is the only constitutional amendment whose basic meaning is a cause for debate. But for most of its history, there was no confusion about its intent. There was no doubt that it incorporated an individual right. And what I would like to do is to just take a quick look at part of that history, the English right to be armed which the American colonists had inherited, and the drafting of the second amendment, for the guidance that they can give on its incorporation of an individual right.

The English people had a duty for what they called time out of mind to keep arms for their own defense, and also for a variety of peacekeeping duties. In 1689, when they had an opportunity to draft a bill of rights, they incorporated a right for individuals to be armed. The language is quite different from the second amendment. It reads that "the Subjects, which are Protestants, may have

Arms for their defense Suitable to their Condition and as allowed by Law."

And I should say to begin with that Protestants constituted about 90 percent of the population, so that was most Englishmen. Now, it is possible that these final clauses, "Suitable to their Condition" and "as allowed by Law," might have been used to keep the right quite restrictive. But if you look at the expert opinion, the legal experts, the court cases and the statutes in the years that followed, it is very, very clear that there was an individual right for Englishmen to be armed and I would like to just cite three of these comments from around the time of the American Revolution.

Blackstone referred to it as one of those rights that was designed to "protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property." He saw it as the natural right of resistance and self-preservation, and when all of the individuals used this opportunity together, it enabled them to restrain the violence of oppression.

The London recorder, who was the legal adviser for the city, in 1780 said "The right of his majesty's Protestant subjects, to have arms for their own defense, and to use them for lawful purposes, is most clear and undeniable * * * And that right, which every Protestant most unquestionably possesses, individually, may, and in many case must, be exercised collectively ****

Justice Bayley, in 1819, in a charge to a jury asked, “But are arms suitable to the condition of people in the ordinary class of life, and are they allowed by law?" And his answer was "a man has a clear right to arms to protect himself in his house. A man has a clear right to protect himself when he is going singly or in a small party upon the road **** So it is clear that there was an individual right that Americans inherited.

Now, it is possible that when drawing up our own Bill of Rights, we decided to narrow that right or even to waive that individual right. But an examination of the drafting of the second amendment makes clear Congress' intent to protect an individual right. In keeping with the colonial practice, English restrictions on religion were swept aside and there is no provision for what was suitable to a person's condition or allowed by law.

The American amendment, as you know, was prefaced by the assertion that a well regulated militia is necessary to the security of a free State. Was it meant, therefore, only to ensure the right of militia members to be armed, as some people claim? If that was the intent of the Congress, to arm the militia, then it is hard to understand why a House committee removed the stipulation that the militia be described as well-armed, and the Senate rejected a proposal to add, after the words "to keep and bear arms," the phrase "for their common defense."

Although militia service was expected of men of a certain age, usually from 18 to 45, and a militia, as you pointed out, was regarded as safe for the republic, and it was certainly regarded as much safer than a professional army, the Senators did not want to limit possession of weapons to common defense. It is the right of the people to be armed that Congress sought to protect.

It has also been argued that the amendment was meant to return some power over the militia to the States. And if that was

what it intended, it did not do that. It says nothing about any transfer of power. What it does do is state that the militia that is necessary to the security of a free State, and it proclaims the right of the people to keep and bear arms.

As William Rawle, who was George Washington's candidate for the first Attorney General, described the protection of the second amendment, he said, "No clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a State legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."

There is overwhelming evidence that the second amendment was intended to protect an individual right, and almost unanimous scholarship at this point, and it is time to concede that simple truth. The alternative, with all this evidence on hand, is to willfully misread a constitutional guarantee that some people find inconvenient and this is an ominous precedent. It is a far quicker means of changing the Constitution than the amendment procedure and a tactic that, as others have said, endangers all our rights.

I would just like to close with a comment by Justice Benjamin Cardozo when he pointed out that "The great ideals of liberty and equality are preserved against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, the scorn and derision of those who have no patience with general principles, by enshrining them in constitutions, and consecrating to the task of their protection a body of defenders." And the members of this body, the Senate, are pledged to be among those defenders. Thank you.

Senator ASHCROFT. Thank you very much, Professor Malcolm. [The prepared statement of Ms. Malcolm follows:]

THE SECOND AMENDMENT AND THE INDIVIDUAL'S RIGHT TO BE ARMED

Joyce Lee Malcolm

During the first public discussion of articles that would become our bill of rights, the Philadelphia Federal Gazette and Philadelphia Evening Post explained to readers the intent of the future Second Amendment: "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed...in their right to keep and bear their private arms. There was no doubt then, or for decades to come, that the Second Amendment protected private arms and embodied an individual right. It was a right that did double duty, however: the individual could protect himself and the liberties of his fellow-citizens. This had been one of the colonists' rights as Englishmen, and it was one that, as Americans, they would strengthen and broaden.

Since medieval times ordinary Englishmen had been legally required to keep weapons for individual defence and to fulfill their peacekeeping duties. In the late seventeenth century this duty became a right. Englishmen had become thoroughly alarmed when Charles II and James II began to disarm their political opponents and to increase the size of their army. James's flight in 1688 provided an opportunity to shore up and expand popular rights before installing a new monarch. The resulting Bill of Rights included the guarantee that "the Subjects, which are Protestants, may have Armes for their defence Suitable to their Condition and as allowed by Law. "2 Although this language left room for restrictions to be imposed, legal experts and court decisions in the years that followed make it crystal clear that the typical Englishmen had a right to keep firearms. Writing just prior to the American Revolution, William Blackstone saw this as a right designed to "protect and maintain inviolate the