St. George Tucker and Joseph Story, the first great commentators on arms

If you want to know what a law meant when it was written, ask the people who read it first. Not the people who have since built careers explaining what they wish it had said, but the lawyers and judges who sat with the freshly ratified text and taught it to their students. Courts do this all the time with statutes. It works just as well with the Constitution, and for the Second Amendment the first readers happen to have left us their notes.

Two of them stand above the rest. St. George Tucker, a Virginia judge and law professor, published the first American edition of Blackstone's Commentaries in 1803, with his own notes on the Constitution in an appendix. Joseph Story, a Justice of the Supreme Court and a Harvard professor, published his Commentaries on the Constitution of the United States in 1833. Both men wrote about the right to keep and bear arms. Both used the same word for it. And when the Supreme Court decided District of Columbia v. Heller in 2008, it cited both.

Who was St. George Tucker?

Tucker was born in Bermuda in 1752 and came to Virginia to study law at William and Mary. He fought in the Revolution, was wounded at Guilford Courthouse, and afterward became a judge. In 1790 he succeeded George Wythe, the teacher of Thomas Jefferson and John Marshall, as professor of law at the College of William and Mary. He later served on Virginia's highest court and on a federal district court.

His great work was an edition of William Blackstone's Commentaries on the Laws of England, the standard text of English law in the eighteenth century. Blackstone was a monarchist's guide to a monarchy, and American lawyers needed a version for a republic. Tucker supplied it in 1803 in five volumes. He annotated Blackstone with notes on American law, and he added a long appendix on the Constitution of the United States and the constitution of Virginia. For a generation of American lawyers, "Tucker's Blackstone" was the way they learned the law.

What did Tucker write about arms?

Blackstone had listed the "auxiliary rights" of Englishmen, among them the right of having arms for their defense, "suitable to their condition and degree, and such as are allowed by law." The idea is covered in Blackstone's fifth auxiliary right and how it shaped American thinking on arms. Tucker annotated that passage and pointed to the Second Amendment. His note called the right the true palladium of liberty. A palladium, in the classical sense, is a safeguard on which the safety of a city depends, named for the statue of Pallas that the ancients believed protected Troy.

He then made two arguments in the same note. The first was about the right itself. As I read his note, Tucker held that the right of self-defense is a basic right of nature, that rulers in most governments have tried to confine the people's right to arms within narrow limits, and that where the people are disarmed liberty is in danger. I paraphrase because I could not confirm the exact wording of his longer passage against a reliable text, and I would rather give you his point than a quotation I cannot vouch for. The point ties the right of arms to the older and more basic right of self-defense, so that arms are understood as the means of that right.

The second argument was about English law. Tucker observed that in England the right had been narrowed, in practice, by the game laws, under which, he wrote, the people were disarmed on the pretext of preserving game. His point was that a right on paper can be hollowed out by a regulation that sounds technical. His point, as I read it, was that regulation can be used to disarm the people. The warning is old and it is still current: a right can be lost by the side door of a licensing or permission scheme, a theme taken up in The Sullivan Act of 1911 and the century New York spent rationing carry permits.

Who was Joseph Story?

Joseph Story was born in Marblehead, Massachusetts, in 1779. He was a prodigy. President James Madison appointed him to the Supreme Court in 1811, when he was thirty-two, the youngest person ever nominated to the Court. He remained on the Court until his death in 1845. He wrote the opinion in Martin v. Hunter's Lessee (1816), which established the Supreme Court's power to review state-court judgments on federal questions, and he wrote for the Court in the Amistad case in 1841, which freed the captives who had taken over the ship.

From 1829 he also taught at Harvard Law School as the Dane Professor of Law. Between the bench and the classroom he produced a shelf of treatises, and in 1833 he published his three-volume Commentaries on the Constitution of the United States. It was a comprehensive treatise on the Constitution, and for decades it was a standard account. It is a nationalist work: Story believed in a strong Union and disagreed with the Southern states' constitutional theories. That makes his comments on the Second Amendment more telling, because nobody could accuse him of being a states'-rights partisan with an axe to grind.

What did Story write about arms?

In his chapter on the Second Amendment, Story wrote that the right of the citizens to keep and bear arms has justly been considered the palladium of the liberties of a republic. He explained why: it offers a strong moral check against the usurpation and arbitrary power of rulers, and it will generally, even where rulers succeed at first, enable the people to resist and triumph over them. Put in plain terms: a government that knows the people are armed has to think twice.

Then he pivoted to a worry. It was a worry about the militia, the institution the amendment names in its first clause. Story observed that, despite the importance of a well regulated militia, there was among the American people a growing indifference to any system of militia discipline, which he feared could harden into disgust and contempt and gradually weaken the protection the clause was meant to give. He was describing a decline. Americans of 1833 were less interested in mustering and drilling than their grandfathers had been. The militia of the Revolution, the body of the armed people, was fading into a social event and a tax on one's time.

Story did not draw the conclusion that the amendment was therefore obsolete. He drew the opposite one. A free government depended on a people who were armed and trained, and a people who forgot how would find their liberty weaker. It is the same conclusion the Congress of 1903 reached about the Army's volunteers, as the story in How Congress once set out to make every American a rifleman in 1903 shows.

Why did the Supreme Court cite both men in Heller?

In Heller, Justice Scalia's majority opinion had to decide what the Second Amendment meant to the people who adopted it. The Court's method was to look at the text, the history and the early interpretations. Early commentators were useful evidence because they were contemporaries or near contemporaries, trained lawyers, and willing to say what the clause meant in plain language.

Tucker and Story both read the amendment as protecting an individual right with a public purpose. Neither treated it as a power of the states or as a right confined to enrolled members of the militia. Tucker linked it to the Blackstonian right of having arms for defense and called it the true palladium of liberty. Story linked it to the moral check on rulers. The Court also cited William Rawle, a Philadelphia lawyer whose 1825 View of the Constitution of the United States read the amendment as a general prohibition, and James Kent's Commentaries on American Law, which Heller cited for the observation that state courts had debated the constitutionality of limits on carrying weapons. The consistent testimony of the earliest commentators was one of the strongest pieces of evidence in the case for the individual-rights reading.

The objection, and the answer

The strongest objection to relying on commentators runs as follows. These are the opinions of private authors, however distinguished. They are not law. They wrote decades after the amendment was drafted, and they may reflect the views of their own generation, not those of the framers. And a selective quotation can make a commentator sound more categorical than he was: Story's comment, for example, appears in a discussion of the militia, so perhaps he was talking about a collective right after all.

That is a fair caution, and it should be answered with more than assertion. Here are three points.

1. Distance in time is smaller than it looks. Tucker published in 1803, twelve years after ratification, and he was a Virginia lawyer and judge who had lived through the Revolution and the ratification debates. He was not an antiquarian reconstructing a lost age. He was a participant.
2. The commentators are witnesses to meaning, not makers of law. No one claims that Tucker's note is a statute. The question is what the words meant when they were adopted, and a contemporary lawyer's account of the clause is evidence of that meaning, of the sort a court has always used.
3. They agree. Tucker, Rawle and Story came from different regions. Story was a New England nationalist and Tucker was a Virginia republican. When the testimony of witnesses of that kind lines up, the sensible inference is that they were describing something plain.

As for the claim that Story was only talking about the militia, read the sentence again. He says the right of the citizens to keep and bear arms is the palladium of the liberties of a republic. The subject of the sentence is the citizen. The point is that the citizens' arms are the security, and the militia is the organized form of it. The two ideas support each other, and the best summary is in the words of the amendment itself, whose operative clause protects "the right of the people." The grammar argument appears in The right of the people means the same thing in the First, Second and Fourth.

A third witness, and why the chorus matters

Two commentators make a pair. A third makes a chorus. William Rawle, a Philadelphia lawyer who had been offered the post of Attorney General by Washington and declined, published A View of the Constitution of the United States in 1825. Rawle wrote that the prohibition in the Second Amendment is general, a sentence Heller quotes, and I read him as saying that the amendment limits Congress and protects the people.

Line the three up. Tucker is a Virginian writing in 1803. Rawle is a Pennsylvanian writing in 1825. Story is a Massachusetts man writing in 1833. They teach in different schools, hold different views on the great questions of the age, and would have argued with each other about the tariff or the bank. On the Second Amendment they speak with one voice. If the collective-right reading had been the original understanding, one of them would have mentioned it. None did.

Notice also what kind of evidence this is. In a courtroom, a witness who is a stranger to the case, with no stake in the outcome, who testifies to what a contract meant at the time it was signed, carries real weight. The commentators were that kind of witness. They were not arguing about a modern gun statute, because there were none to argue about. They were explaining a freshly written sentence to students who would soon be judges and legislators. That is why the language is so unguarded, and why it is so useful.

What these commentators teach today

I want to pull three lessons from the pair, because a post about old books should help someone act.

• Pay attention to the first readers. Law professors in each generation reinterpret the Constitution in light of their own concerns. The first generation had no such incentive, and its readings deserve special weight.
• Treat "reasonable regulation" with suspicion when the regulator is hostile to the right. Tucker's warning about game laws is a warning about any rule that is neutral on its face and disarming in effect. The test is not the label but the result.
• A right needs a culture to sustain it. Story's worry was that people had lost interest in training. A right that nobody exercises, nobody teaches and nobody understands is a right at risk. Gun owners who take a child to the range, and teachers who explain what the amendment says, are doing the work Story recommended.

There is some pleasure in the irony here. Modern critics of the individual-rights reading often describe it as a recent invention of lobbyists. They must then explain how a Virginia law professor in 1803 and a New England Justice in 1833 managed to invent it in advance, in prose that is hard to mistake. The most economical explanation is that it was simply what the amendment meant, and that the new theory is the novelty.

For more on the founding-era material that these men were drawing on, see Madison's Federalist 46 and the advantage of being armed that tyrants fear and The 1689 English Bill of Rights and the arms clause Americans refused to copy. For the militia definition they had in front of them, see George Mason and the well regulated militia composed of the body of the people.

The case in brief

1. St. George Tucker's 1803 edition of Blackstone called the right to keep and bear arms the true palladium of liberty and tied it to the Blackstonian right of having arms for defense.
2. Tucker warned that rulers try to confine the people's right to arms, and observed that England had done so through game laws.
3. Joseph Story's 1833 Commentaries called the right of citizens to keep and bear arms the palladium of the liberties of a republic, a check on rulers, and lamented a growing indifference to the militia.
4. Heller cited both men as early evidence that the amendment protects an individual right, and their testimony agrees despite their different regions and politics.
5. The objection that commentators are not law is answered by their status as contemporary witnesses to what the words meant.

What you can do: find the full text of the Second Amendment chapter in Story's Commentaries in a public library or a legal archive, read it for yourself, and share one sentence of it with a friend.