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The Second Amendment (Amendment II) to the United States Constitution is the part of the United States Bill of Rights that protects a right to keep and bear arms.[1] The Second Amendment was adopted on December 15, 1791, along with the rest of the Bill of Rights. The American Bar Association has noted that there is more disagreement and less understanding about this right than of any other current issue regarding the Constitution.[2]
Saul Cornell has claimed that for almost a century after the ratification of the Bill of Rights, the intended meaning and application of the Second Amendment drew less interest than in modern times.[3]
Notable U.S. Supreme Court interpretations of the Second Amendment include those in United States v. Cruikshank (1875), Presser v. Illinois (1886), Miller v. Texas (1894), Robertson v. Baldwin (1897), United States v. Miller (1939) and District of Columbia v. Heller (2008).
There are several versions of the text of the Second Amendment, each with slight capitalization and punctuation differences, found in the official documents surrounding the adoption of the Bill of Rights.[4] One such version was passed by the Congress, which reads:[5]
| “ | 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. | ” |
Another version is found in the copies distributed to the states, and then ratified by them, which had this capitalization and punctuation:[6]
| “ | 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. | ” |
The original hand-written copy of the Bill of Rights, approved by the House and Senate, was prepared by scribe William Lambert and resides in the National Archives.
The concept of a universal militia originated in England.[7][8][9] The requirement that subjects keep and bear arms for military duty[10][11][12][13] dates back to at least the 12th century when King Henry II, in the Assize of Arms, obligated all freemen to bear arms for public defense. King Henry III required certain subjects between the ages of fifteen and fifty (including non-land-owning subjects) to bear arms. The reason for such a requirement was that without a regular army and police force (which was not established until 1829), it was the duty of certain men to keep watch and ward at night to capture and confront suspicious persons. Every subject had an obligation to protect the king’s peace and assist in the suppression of riots.[14]
In response to complaints that local people were reluctant to take up arms to enforce justice for strangers, The Statute of Winchester of 1285 (13 Edw. I) declared that each district or hundred would be held responsible for unsolved crimes. Each man was to keep arms to take part in the hue and cry when necessary.[15]
Following the Protestant overthrow of the Catholic King James II, the Protestant controlled Parliament obliged the newly installed Protestant monarchs William and Mary to enact the English Bill of Rights of 1689 which granted Protestants a series of liberties including the right to arms for self defense: "That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law."[16] For instance, in 1780 after some riots, the recorder of London - the city attorney - was asked if the right to arms protected armed groups, he wrote: "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."[17] At least one historian describes this as the first instance when the customary duty to bear arms transitioned into a right.[18][19] Other historians describe this as an example of the traditional restricting of weapons access for one class of people over another, in this case the Protestant victors over the vanquished Catholics.[19][20] Additionally, this reflected the popular dread of a standing army and the preference instead for a select militia. These values would have a long life both in England and America.[19]
Sir William Blackstone's Commentaries on the Laws of England describes the right to arms in England during the eighteenth century:
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 I W. & M. st.2. c.2. 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.[21]
The right of some English subjects to possess arms was recognized under English common law; however many English subjects were not permitted by law to possess arms.[18] Regarding these constraints, St. George Tucker wrote in 1803:
In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.[22]
In no particular order, early American settlers viewed the right to arms and/or the right to bear arms and state militias as important for one or more of these purposes:[23][24][25][26][27][28][29][30][31][32]
Which of these considerations they thought were most important, which of these considerations they were most alarmed about, and the extent to which each of these considerations ultimately found expression in the Second Amendment is disputed.
During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, which included a number who were loyal to British imperial rule. As defiance and opposition to the British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists, known as Patriots, who favored independence from British rule. As a result, these Patriots established independent colonial legislatures to create their own militias which excluded the Loyalists and then sought out to stock up independent armories for their militias. In response to this arms build up, the British Parliament established an embargo on firearms, parts and ammunition on the American colonies.[34]
British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, Blackstone's summary of the Declaration of Rights, their own militia laws and common law rights to self-defense.[35] While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense.[35]
The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 Boston objecting to the British army suppression of colonial opposition to the Townshend Acts:
Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such nature, and have been carried to such lengths, as must serve fully to evince that a late vote of this town, calling upon its inhabitants to provide themselves with arms for their defense, was a measure as prudent as it was legal: such violences are always to be apprehended from military troops, when quartered in the body of a populous city; but more especially so, when they are led to believe that they are become necessary to awe a spirit of rebellion, injuriously said to be existing therein. It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.[35]
The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist Militia and Hessian mercenaries. Following the Revolution, the United States was governed by the Articles of Confederation. An unworkable division of power between Congress and the states caused military weakness, and the standing army was reduced to as few as 80 men.[36] There was no effective federal military response to an armed uprising in western Massachusetts known as Shays' Rebellion.[37] Subsequently, the Philadelphia Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.[38][39] Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power.[40][41]
Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that James Madison "did not invent the right to keep and bear arms when he drafted the Second Amendment; the right was pre-existing at both common law and in the early state constitutions."[42] In contrast, historian Jack Rakove suggests that Madison's intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed.[43]
One aspect of the gun control debate is the conflict between gun control laws and the alleged right to rebel against unjust governments. Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation,[44] as Alexander Hamilton explained in 1788:
[I]f circumstances should at any time oblige the government to form an army of any magnitude[,] that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.[44][45]
Some scholars have said that it is wrong to read a right of armed insurrection in the Second Amendment because clearly the founding fathers sought to place trust in the power of the ordered liberty of democratic government versus the anarchy of insurrectionists.[46][47] Other scholars, such as Glenn Reynolds, contend that the framers did believe in an individual right to armed insurrection. The latter scholars cite examples, such as the Declaration of Independence (describing in 1776 “the Right of the People to … institute new Government”) and the New Hampshire Constitution (stating in 1784 that “nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind”).[48]
There was an ongoing debate in the 1780s about "the people" fighting governmental tyranny (as described by Anti-Federalists); or the risk of mob rule of "the people" (as described by the Federalists) related to the ongoing revolution in France.[49] A widespread fear, during the debates on the ratification of the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens,[50] prohibiting citizens from arming themselves[35] or the federal government prohibiting the southern tradition of using their state militia for slave control.[31]
  James Madison (left) is known as the “Father of the Constitution” and "Father of the Bill of Rights"[51] while George Mason (right) with Madison is also known as the “Father of the Bill of Rights”[52]
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  Patrick Henry (left) believed than a citizenry trained in arms was the only sure guarantor of liberty[53] while Alexander Hamilton (right) believed that transferring control of the militia to the national government was essential to quell domestic insurrection.[54]
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Faced with the problems of governing the newly-formed United States due to deficiencies with the Articles of Confederation, in March 1785 a number of people from Virgina and Maryland met at the Mount Vernon Conference to resolve these weaknesses. This was followed with another meeting at Annapolis the following year which called for a convention of the thirteen states to fix these serious weaknesses critical for the country to survive. Major problems included the inability to provide security against foreign invasion or to check quarrels between states or insurrection within states, a failure to provide for uniform interstate commerce, and a failure to provide a national authority paramount over the states.[55] It was agreed to schedule a meeting in Philadelphia to resolve these problems in May 1787—today often called the Constitutional Convention.[56] It quickly became apparent that the solution to the first problem, security from invasion and security from interstate conflict and insurrections, would require shifting control of the states' militias to the federal congress and also giving it the power to raise a standing army.[57] This became codified in Article 1, Section 8 of the Constitution:
The Congress shall have power to ... provide for the common defense and general welfare of the United States; ... (12) To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; (13) To provide and maintain a navy; (14) To make rules for the government and regulation of the land and naval forces; (15) To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; (16) To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.
These proposed new federal powers encountered strong distrust among a minority of representatives who were concerned about the risks inherent in centralized power, and they sought protection against these risks. A debate about this conflict ensued.
Federalists including James Madison initially argued that a bill of rights was unnecessary, asserting that the federal government could never raise a standing army powerful enough to overcome a militia.[58] Similarly, federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.[59][60] Anti-federalists advocated amending the Constitution with clearly defined and enumerated rights, in order to provide more explicit constraints on the new government and protect against a risk of the new federal government disarming the state militias. Several proponents counter-argued that by listing only certain rights, other unlisted rights would fail to be protected. Amidst this debate, a compromise was reached. The majority agreed to ratify the proposed new Constitution, including the shift to federal control of the states' militia and creation of a standing army, while also agreeing to consider the implementation of an itemized bill of rights at the first session of the new federal Congress. The Constitution was declared ratified June 21, 1788, when nine of the original thirteen states had ratified it. The remaining four states later followed suit, although the last two states ratified after Congress passed the Bill of Rights. James Madison drafted what ultimately became the United States Bill of Rights, which was proposed to the first Congress on June 8, 1789 and came into effect on December 15, 1791.
James Madison's initial proposal for a bill of rights was brought to the floor of the House of Representatives on June 8, 1789, during the first session of Congress. The initial proposed passage relating to arms was:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.[61]
On July 21, Madison again raised the issue of his Bill and proposed a select committee be created to report on it. The House voted in favor of Madison's motion,[62] and the Bill of Rights entered committee for review. The committee returned to the House a reworded version of the Second Amendment on July 28.[63] On August 17, that version was read into the Journal:
A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.[64]
The Second Amendment was debated and modified during sessions of the House on in late August of 1789. These debates revolved primarily around risk of "mal-administration of the government" using the "religiously scrupulous" clause to destroy the militia as Great Britain had attempted to destroy the militia at the commencement of the American Revolution. These concerns were addressed by modifying the final clause, and on August 24, the House sent the following version to the U.S. Senate:
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.
The next day, August 25, the Senate received the Amendment from the House and entered it into the Senate Journal. When the Amendment was transcribed, the semicolon in the religious exemption portion was changed to a comma by the Senate scribe:
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.[65]
By this time, the proposed right to keep and bear arms was in a separate amendment, instead of being in a single amendment together with other proposed rights such as the due process right. As a Representative explained, this change allowed each amendment to "be passed upon distinctly by the States."[66] On September 4, the Senate voted to change the language of the Second Amendment by removing the definition of militia, and striking the conscientious objector clause:
A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.[67]
The Senate returned to this Amendment for a final time on September 9. A proposal to insert the words "for the common defence" next to the words "bear arms" was defeated.[68] The Senate then slightly modified the language and voted to return the Bill of Rights to the House. The final version passed by the Senate was:
A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.
The House voted on September 21, 1789 to accept the changes made by the Senate, but the Amendment as finally entered into the House journal contained the additional words "necessary to":
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.[69]
On December 15, 1791, the first ten amendments (the Bill of Rights), having been ratified by three-fourths of the states, were appended to the Constitution.
In the first couple decades following the adoption of the Second Amendment public opposition to a standing army persisted, a widely held opinion among the minority Anti-Federalists and to a lesser extent among the majority Federalists.[70] This opinion also extended to opposition to a professional armed police force, with the responsibility to carry out local ordinances falling to sheriffs in counties and constables and night watchmen in cities and towns. These officials were sometimes compensated, but more often served as a civic duty without payment. In these early decades with rare exceptions these full time law enforcement officers were not armed with firearms, but rather were armed only with clubs.[70] In large emergencies a call up was issued for the posse comitatus, militia companies, or vigilantes to assume law enforcement duties and these groups were much more likely to be armed with firearms.[70] The Uniform Militia Act of 1792 obliged every free able-bodied white male citizen between the ages of 18 and 45 to be included in the national militia. It also required these men to provide their own arms and ammunition.[71] In practice individual acquisition and maintenance of rifles and muskets to be held ready for militia duty proved problematic, with compliance estimates ranging between 10 and 65 percent of militiamen bringing their private arms to the militia musters.[72] Additionally, compliance with the Uniform Militia Act of 1792 gradually fell into disfavor and disrepute. The State legislatures granted increasing numbers of exemptions to universal militia obligation, with exemptions granted to clergy, conscientious objectors, teachers, students, jurors, mariners and ferrymen. While in practice, the remainder of able bodied white men remained obligated for service, an increasing number of people simply did not or could not show up for militia duty. The penalty for failing to show up for duty was enforced only sporadically and selectively.[73]
The first test of the militia system occurred in July 1794, when a group of disaffected Pennsylvania farmers rebelled against federal tax collectors whom they viewed as illegitimate tools of tyrannical power.[74] Initial attempts of the four nearby states to raise a militia to be nationalized to suppress this insurrection proved inadequate. When officials resorted to drafting men, they faced resistance to a draft. The rank and file that resulted from this effort to raise a militia consisted mainly of draftees or paid substitutes and the poor of society who enlisted not out of duty but instead for the enlistment bonus payments. The officers who responded to the militia call up were of a higher quality and had responded out of a sense of civic duty and patriotism, but were generally critical of the rank and file. Most of the 13,000 rank and file lacked their own weapons and the war department had to provide nearly two-thirds of them with guns. In October, President George Washington and General Harry Lee marched on the 7,000 rebels who conceded without fighting. The aftermath of this experience using a militia for national defense led to criticism of the self-armed citizen concept to provide for arming of a universal militia system. Secretary of War Henry Knox and President John Adams in the following years lobbied the Congress to establish federal armories to hold weapons which were mostly imported and to encourage the domestic gunsmiths to increase local production.[75] This degradation of the militia persisted, and within twenty years, the poor performance of the militia during the War of 1812 resulted in several wartime setbacks including being cited as the cause of the sacking of Washington, D.C. and the burning of the White House in 1814.[73]
The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker. He annotated a five-volume edition of Sir William Blackstone's Commentaries on the Laws of England, a critical legal reference for early American attorneys published in 1803.[76]
In footnotes 40 and 41 of the Commentaries, Tucker stated that the right to bear arms under the Second Amendment was not subject to the restrictions that were part of English law: "The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government." and "Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England." Blackstone himself also commented on English game laws, Vol. II, p. 412, "that the prevention of popular insurrections and resistance to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws."[76] Blackstone discussed the right of self-defense in a separate section of his treatise on the common law of crimes. Tucker's annotations for that latter section did not mention the Second Amendment but cited the standard works of English jurists such as Hawkins.[77]
Further, Tucker criticized the English Bill of Rights for limiting gun ownership to the very wealthy, leaving the populace effectively disarmed, and expressed the hope that Americans "never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty."[76]
The orthodox view of the meaning of the Second Amendment was articulated by Joseph Story in his influential Commentaries on the Constitution. In his view the meaning of the Amendment was clear:
The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.[78]
In this quote, Story describes a militia as the "natural defence of a free country," both against foreign foes, domestic revolts and usurpation by rulers. The book regards the militia as a "moral check" against both usurpation and the arbitrary use of power, while expressing distress at the growing indifference of the American people to maintaining such an organized militia, which could lead to the undermining of the protection of the Second Amendment.[78]
Abolitionist Lysander Spooner, commenting on bills of rights, stated that the object of all bills of rights is to assert the rights of individuals against the government and that the Second Amendment right to keep and bear arms was in support of the right to resist government oppression, as the only security against the tyranny of government lies in forcible resistance to injustice, for injustice will certainly be executed, unless forcibly resisted.[79] Spooner's theory provided the intellectual foundation for John Brown and other radical abolitionists who believed that arming slaves was not only morally justified, but entirely consistent with the Second Amendment.[80] An express connection between this right and the Second Amendment was drawn by Lysander Spooner who commented that a "right of resistance" is protected by both the right to trial by jury and the Second Amendment.[81]
Two grammatical descriptions of the Second Amendment have been historically discussed.
In one description, known to grammarians as an ablative absolute construction, the Second Amendment has been considered formed with an opening justification phrase or qualifying clause, followed by a declarative clause where the opening phrase modifies the main clause much as an adjective would modify a noun.[82][83][84][85] Under this interpretation, the opening phrase is considered essential as a pre-condition for the main clause.[86] This was a grammar structure that was common during that era.[87] This grammatical description is considered by some to be consistent with the concept of the Second Amendment as protecting a collective right to firearms for members serving in a select militia.[88]
Another description of the Second Amendment has it being grammatically formed with an opening "prefatory clause" or amplifying clause followed by an "operative clause", meaning that the opening phrase is meant as a non-exclusive, example reason for the amendment.[89] This description is consistent with the concept of the Second Amendment as protecting a "modified individual rights view" of the right.[90] In Heller, the Supreme Court endorsed this description of the Second Amendment.[91] Although the Second Amendment is the only Constitutional amendment that has a prefatory clause, such constructions were widely used elsewhere.[92]
Yet another grammatical interpretation of the amendment holds that the first clause is simply explanatory and not a qualifying or an amplifying clause. So while militia service is the stated justification for protecting the right to keep and bear arms, it is not a pre-condition on that right.[93] This is believed because the later clause of the amendment still guarantees the right to "the people," and, therefore, it cannot be limited to only members of a select militia.[94] This style of syntax was common for the time and similar language can also be found in the Copyright Clause of the U.S. Constitution.[95]
In the wake of Sanford Levinson's 1989 Yale Law Journal article on the Second Amendment, there was renewed scholarly interest in the Second Amendment. Scholars in law, history and political science weighed in, including Akhil Reed Amar, Saul Cornell, Leonard Levy, Jack Rakove, Laurence Tribe, William Van Alstyne and Garry Wills. By 1999, the weight of scholarship had appeared to shift towards an interpretation of the Second Amendment with an individual rights component.[96]
According to Saul Cornell, in recent decades Second Amendment scholarship has taken the form of “law office history”, a form of advocacy scholarship intended to influence the way courts decide constitutional questions. This legal scholarship has influenced the way briefs are written and also may have been used by judges when deciding a case.[97]
Similarly, also according to Saul Cornell, the simplified choices of only two models, of the older individual right interpretation and of the later collective right interpretation of the Second Amendment, were both in error: "The original understanding of the Second Amendment was neither an individual right of self-defense nor a collective right of the states, but rather a civic right that guaranteed that citizens would be able to keep and bear those arms needed to meet their legal obligation to participate in a well-regulated militia."[98][99] David Thomas Konig has also expressed this viewpoint, saying "No individual right existed unrelated to service in a well-regulated militia; no effective militia could serve its purpose without an armed citizenry." He also stated that the collective and individual right interpretations are really "products of present-day normative agendas that have polarized the debate into two competing and largely ahistorical models."[100]
In contrast, senior NRA attorney David Hardy specifically dismisses Saul Cornell's civic right model as the overarching reason, while also criticizing Saul Cornell's tendency to cite only writers that support militia interpretations of the Second Amendment though omitting mention of the works of additional early writers that spoke instead of a multiplicity of reasons for the Second Amendment. According to David Hardy, the civic duty is only one of several purposes intended by the Second Amendment.[23]
The meaning and scope of the right to keep and bear arms has been described as among the most controversial of the rights codified in the Bill of Rights.[2][101] Similarly, in his book, Out of Range, Mark Tushnet concluded there was no clear meaning of the Second Amendment.[102]
The people's right to have their own arms for their defense is described in the philosophical and political writings of Aristotle, Cicero, John Locke, Machiavelli, the English Whigs and others.[103] Though possessing arms appears to be distinct from "bearing" them, the possession of arms is recognized as necessary for and a logical precursor to the bearing of arms.[104]
The Oxford English Dictionary (OED) defines the phrase To bear arms as "to serve as a soldier, do military service, fight." The OED dates this use to 1795.[105][106][107] Garry Wills, an author and history professor at Northwestern University, has written of the origin of the term bear arms:
By legal and other channels, the Latin "arma ferre" entered deeply into the European language of war. Bearing arms is such a synonym for waging war that Shakespeare can call a just war " 'justborne arms" and a civil war "self-borne arms." Even outside the special phrase "bear arms," much of the noun's use echoes Latin phrases: to be under arms (sub armis), the call to arms (ad arma), to follow arms (arma sequi), to take arms (arma capere), to lay down arms (arma pœnere). "Arms" is a profession that one brother chooses the way another choose law or the church. An issue undergoes the arbitrament of arms." ... "One does not bear arms against a rabbit...[108]
Garry Wills also cites Greek and Latin etymology:
... "Bear Arms" refers to military service, which is why the plural is used (based on Greek 'hopla pherein' and Latin 'arma ferre') – one does not bear arm, or bear an arm. The word means, etymologically, 'equipment' (from the root ar-* in verbs like 'ararisko', to fit out). It refers to the 'equipage' of war. Thus 'bear arms' can be used of naval as well as artillery warfare, since the "profession of arms" refers to all military callings.[109]
Don Kates, a civil liberties lawyer, cites historic English usage describing the "right to keep and bear their private arms."[110]
Both military and nonmilitary usage of the phrase is found in the Pennsylvania "minority report" published after the ratifying convention
That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers."[111]
Historian Jack Rakove, in an amicus brief signed by a dozen leading historians filed in District of Columbia. v. Heller,[112] identifies several problems with the Kates and Blodgett-Ford argument. Coxe's reference describes the ownership of weapons, not the purpose for which the weapons were owned. Thus, privately owned weapons were state mandated as a means of meeting one's legal obligation to contribute to public defense. Other historians have noted that the Second Amendment was as much a civic obligation as it was a right in the modern sense.[113] The meaning of the Pennsylvania dissent of the minority is even more hotly disputed. Historians have also noted that this text, written by the Anti-Federalist minority of a single state, was hastily written, never actually reached the floor of the convention, and was never emulated by any other ratification convention.[114][115][116][113][117]
Richard Uviller and William G. Merkel have argued that prior to and through the 18th century, the expression "bear arms" appeared primarily in military contexts, as opposed to the use of firearms by civilians.[13][118][119][57] According to Uviller and Merkel:
In late-eighteenth-century parlance, bearing arms was a term of art with an obvious military and legal connotation. ... As a review of the Library of Congress's data base of congressional proceedings in the revolutionary and early national periods reveals, the thirty uses of 'bear arms' and 'bearing arms' in bills, statutes, and debates of the Continental, Confederation, and United States' Congresses between 1774 and 1821 invariably occur in a context exclusively focused on the army or the militia.[118]
Uviller and Merkel's conclusion is questioned by Clayton Cramer and Joseph Olson, who argue that while previous scholarly examination of the phrase "bear arms" in English language documents published around the time of the Constitution does show almost entirely military uses or contexts, that this perhaps is reflective of a selection bias problem arising from the use of a limited selection of government documents that overwhelmingly refer to matters of military service.[120] According to Cramer and Olson:
Searching more comprehensive collections of English language works published before 1820 shows that there are a number of uses that...have nothing to do with military service...[and] The common law was in agreement. Edward Christian’s edition of Blackstone’s Commentaries that appeared in the 1790’s described the rights of Englishmen (which every American colonist had been promised) in these terms 'everyone is at liberty to keep or carry a gun, if he does not use it for the [unlawful] destruction of game.' This right was separate from militia duties."[120]
Mark Tushnet claims that "bear arms," when used separately from "keep" in the late 18th century, could refer to hunting or other activities. On the other hand, he also concludes that when the terms are used together, they specifically refer to weapons in connection with military use.
The term "well regulated" in the Second Amendment has been interpreted as a usage of the term "regulated" to mean "disciplined" or "trained".[122] On what constitutes a well regulated militia, Alexander Hamilton wrote in Federalist No. 29:
If a well regulated militia be the most natural defence of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security....A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.[45]
Some scholars, such as Saul Cornell, have contended that modern militia movements are not what could be considered "well regulated", since they often lack fixed leadership and may have unstructured training regimes.[123]
For almost a century following the ratification of the Bill of Rights, the intended meaning and application of the Second Amendment drew less interest than it does in modern times.[3] The vast majority of regulation was done by states, and the first case law on weapons regulation dealt with state interpretations of the Second Amendment. The notable exception to this general rule was Houston v. Moore, 18 U.S. 1 (1820), where the Supreme Court mentioned the Second Amendment in an aside, but Justice Story "misidentified" it as the "5th Amendment."[124]
The primary U.S. Supreme Court Second Amendment cases include United States v. Cruikshank (1875), Presser v. Illinois (1886), Miller v. Texas (1894), Robertson v. Baldwin (1897), United States v. Miller (1939) and District of Columbia v. Heller (2008). A key legal question is whether the Second Amendment is held to apply to state and local governments by way of the Fourteenth Amendment. Cruikshank and Presser predate the modern criteria by which it is determined whether a particular part of the Bill of Rights applies to state and local governments. Because Heller did not make such a determination, it remains an open question. McDonald v. Chicago, currently before the Court, addresses this question.
In the case of Dred Scott v. Sandford, 60 U.S. 393 (1856), the Supreme Court's decision denying citizenship to former slaves and their descendants included the following relevant wording:
[I]n no part of the country except Maine did the African race, in point of fact, participate equally with the whites in the exercise of civil and political rights....More especially, it cannot be believed that the large slaveholding states regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another state. For if they were so received, and entitled to the privileges and immunities of citizens, it .... would give to persons of the Negro race, who were recognized as citizens in any one State of the Union, the right to ... keep and carry arms wherever they went.[125]
The Court was referring here to the Privileges and Immunities Clause of the original unamended Constitution.[126] This is to be distinguished from the Privileges or Immunities Clause, which was adopted as part of the Fourteenth Amendment in 1868.
The Second Amendment attracted serious judicial attention with the Reconstruction era case of United States v. Cruikshank, 92 U.S. 542 (1875). In Cruikshank, the defendants were white men who had killed more than sixty blacks known as the Colfax massacre and had been charged with conspiring to prevent blacks from exercising their right to bear arms. The Court dismissed the charges, holding that the Bill of Rights restricted Congress but not private individuals. The Court concluded, "[f]or their protection in its enjoyment, the people must look to the States."
The Court stated that "[t]he Second Amendment…has no other effect than to restrict the powers of the national government…". Likewise, the Court held that there was no state action in this case, and therefore the Fourteenth Amendment was not applicable:
The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another.[127]
Thus, the Court held a federal anti-Ku-Klux-Klan statute to be unconstitutional as applied in that case.[128]
Regarding the Second Amendment and the incorporation doctrine, the Supreme Court, in District of Columbia v. Heller, said in 2008:
With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the first amendment did not apply against the states and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.[129]
Regarding the assertion in Heller that Cruikshank said the First Amendment did not apply to the states, Professor David Rabban wrote that the Cruikshank Court "never specified whether the First Amendment contains 'fundamental rights' protected by the Fourteenth Amendment against state action....”[130]
In Presser v. Illinois, 116 U.S. 252 (1886), Herman Presser headed a German-American paramilitary shooting organization and was arrested for leading a parade group of 400 men, training and drilling with military weapons with declared intention to fight, through the streets of Chicago as violation of Illinois law which prohibits the public drilling and parading in military style without a permit from the Governor.[131][132]
At his trial, Presser argued that the state of Illinois had violated his Second Amendment rights. In rejecting his case the Supreme Court reaffirmed Cruikshank, holding that the Second Amendment restricts only the authority of the Congress to maintain the public security. This decision upheld the states authority to regulate the militia and that citizens had no right to create their own militias or to own weapons for semi-military purposes.[131]
In Miller v. Texas, 153 U.S. 535 (1894), Franklin Miller was convicted and sentenced to be executed for shooting a police officer to death using an unlicensed handgun, in violation of Texas law. Mr. Miller sought to have his conviction overturned, claiming his Second Amendment rights were violated and that the Bill of Rights should be incorporated to state law. The Supreme Court ruled in line with Presser and Cruikshank that the Second Amendment did not apply to state laws such as the Texas law for which Mr. Miller has been convicted.[133]
In Robertson v. Baldwin, 165 U.S. 275 (1897), the Court stated that laws regulating concealed arms did not infringe upon the right to keep and bear arms, and thus were not a violation of the Second Amendment. Specifically, the Supreme Court stated:
“The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the "Bill of Rights," were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;..."[134]
In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court heard arguments from only the Solicitor General[135][136] and rejected a Second Amendment challenge to the National Firearms Act prohibiting the interstate transportation of unregistered Title II weapons:
Jack Miller and Frank Layton "did unlawfully...transport in interstate commerce from...Claremore...Oklahoma to...Siloam Springs...Arkansas a certain firearm...a double barrel...shotgun having a barrel less than 18 inches in length...at the time of so transporting said firearm in interstate commerce...not having registered said firearm as required by Section 1132d of Title 26, United States Code, ...and not having in their possession a stamp-affixed written order...as provided by Section 1132C..."[137]
A demurrer had been filed, which alleged:
The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution, U.S.C.A. - '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.[138]
A federal district court, ruled Section 11 of the National Firearms Act of 1934 to be in violation of the Second Amendment's restriction forbidding such infringement and so it quashed the indictment.
In a unanimous opinion, authored by Justice McReynolds, the Supreme Court reversed the District Court decision[139] stating that:
Considering Sonzinsky v. United States (1937), 300 U. S. 506, 300 U. S. 513, and what was ruled in sundry causes arising under the Harrison Narcotic Act -- United States v. Jin Fuey Moy (1916), 241 U. S. 394, United States v. Doremus (1919), 249 U. S. 86, 249 U. S. 94; Linder v. United States (1925), 268 U. S. 5; Alston v. United States (1927), 274 U. S. 289; Nigro v. United States (1928), 276 U. S. 332 -- the objection that the Act usurps police power reserved to the States is plainly untenable.[140]
The Court further explained:
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to any preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.[141]
Miller is cited by gun-rights advocates, because they claim that the Court ruled that the Second Amendment protected the right to keep arms that are part of "ordinary military equipment."[142] It has also been cited by gun control advocates because they claim that the Court did not consider the question of whether the sawed-off shotgun in the case would be an applicable weapon for personal defense, instead looking solely at the weapon's suitability for the "common defense."[143] Law professor Andrew McClurg states, "The only certainty about Miller is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact."[144]
The Supreme Court, in a landmark decision, in District of Columbia v. Heller, 128 S.Ct. 2783 (2008) ruled that "[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home" and "that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."[145][146][147][148]
To clarify that its ruling does not invalidate a broad range of existing firearm laws, the Court said:[149]
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[150]
The Court held that the amendment's prefatory clause serves to clarify the operative clause, but does not limit or expand the scope of the operative clause.
The dissenting opinion, written by Justice Stevens, stated that:
The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.[151]
This dissent called the Opinion of the Court "strained and unpersuasive" and said that the right to possess a firearm exists only in relation to the militia and that the D.C. laws constitute permissible regulation.
Justice Scalia, in the Opinion of the Court, called Justice Stevens' interpretation of the phrase "to keep and bear arms" incoherent and grotesque.[152]
Justice Breyer, in his own dissent and speaking only for himself, stated:
I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes: (1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred.[153]
Regarding the term "well regulated", the U.S. Supreme Court said in District of Columbia v. Heller:
[T]he adjective "well-regulated" implies nothing more than the imposition of proper discipline and training.[154]
Justice Scalia, writing for the court, quoted Spooner from The Unconstitutionality of Slavery as saying that the right to bear arms was necessary for those who wanted to take a stand against slavery.[155]
The majority opinion in Heller also stated that:
A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter.[156]
The dissenting justices were unpersuaded by this argument.[157]
On September 30, 2009, the Supreme Court granted certiorari in, and so decided to review, McDonald v. Chicago. This case closely parallels NRA v. Chicago. A central issue before the Court will be whether the Second Amendment applies to the states.[158][159] Oral argument took place on March 2, 2010.[160]
Since Heller, more than eighty other lawsuits challenging gun control laws under the Second Amendment have been decided in federal court.[161][162] Five federal lawsuits were filed by the National Rifle Association (NRA) requesting the Second Amendment be applied to state and local governments via the Fourteenth Amendment.[163] Four of these lawsuits were dropped following the repeal of the local gun restrictions at issue in those cases.[164] The fifth, NRA v. Chicago, has been rejected by the United States Court of Appeals for the Seventh Circuit. A similar challenge was rejected by the United States Court of Appeals for the Second Circuit in Maloney v. Rice. In Nordyke v. King, the United States Court of Appeals for the Ninth Circuit, sitting en banc, has not yet ruled on whether the Second Amendment applies to state and local governments via the Fourteenth Amendment.[165] Cass Sunstein, stated in a Harvard Law Review article that, "[t]he [Supreme] Court will proceed cautiously, upholding most of the [firearms] laws now on the books and invalidating only the most draconian limitations. It is very early, to be sure, but thus far, the lower courts are taking exactly this path."[166]
On September 29, 2009, the Supreme Court discussed whether to review NRA v. Chicago.[167][168][169] The Court instead granted certiorari in, and so decided to review, McDonald v. Chicago, a case that closely parallels NRA v. Chicago.[170][171]
The following are post-Heller cases, along with summary notes:
Historians describe that the original interpretation of the Second Amendment was a "civic duty" interpretation, whereas the "individual rights" interpretation did not emerge until several decades after the Second Amendment was drafted, and was later followed by the "collective rights" interpretation.[99][57][133][114] As the 19th century unfolded, two different models emerged from early state jurisprudence: one based on an individual rights view and the other on a collective rights view.[99]
The first state court decision resulting from the "right to bear arms" issue was Bliss v. Commonwealth, which involved a provision of Kentucky’s state constitution that used language quite different from that of the Second Amendment, and that has since been amended to allow control of concealed weapons.[133][186][187] The state court held that "the right of citizens to bear arms in defense of themselves and the state must be preserved entire, ..." [188] Many years later, the United States Court of Appeals for the Fifth Circuit would cite Bliss in the case of United States v. Emerson:
there are numerous instances of the phrase 'bear arms' being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the 'people' [or 'citizen' or 'citizens'] "to bear arms in defense of themselves [or 'himself'] and the state,' or equivalent words, thus indisputably reflecting that under common usage 'bear arms' was in no sense restricted to bearing arms in military service. See Bliss v. Commonwealth, 13 Am. Dec. 251, 12 Ky. 90 (Ky. 1822).[189]
In contrast to the Bliss decision, a concurring opinion in the 1842 Arkansas Supreme Court case of State v. Buzzard said that the Second Amendment of the federal Constitution did not guarantee a right of individuals to possess firearms; however, according to gun rights advocate David Kopel[190] that concurring opinion in Buzzard expressed a view that was unusual in the nineteenth century.[191]
Joel Prentiss Bishop’s influential Commentaries on the Law of Statutory Crimes (1873) took Buzzard's militia-based interpretation, a view that Bishop characterized as the “Arkansas doctrine", as the orthodox view of the right to bear arms in American law.[192][193]
Political scientist Earl Kruschke has categorized both Bliss and Buzzard as being “cases illustrating the individual view.”[194] Professor Eugene Volokh revealed, in the California Political Review, that a statement in a concurring opinion in Buzzard was the only support for a collective right view of the right to keep and bear arms in the 19th century.[195]
In Nunn v State of Georgia, 1 Kelly 243 (1846), the Georgia Supreme Court stated that any federal or state law prohibiting the right to bear arms openly of any person, in the smallest degree, was in conflict with the Constitution and therefore void. The Georgia Supreme Court also stated:
Nor is the right involved in this discussion less comprehensive or valuable: "The right of the people to bear arms shall not be infringed." The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!
We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void.[196]
Nunn had also alleged that the state law barring concealed carry, had violated the Second Amendment. Concerning that, the Georgia Supreme Court had said:
The preamble which was prefixed to these amendments shows, that they originated in the fear that the powers of the general government were not sufficiently limited. Several of the States in their act of ratification recommended that further restrictive clauses should be added...But...does it follow that because the people refused to delegate to the general government the power to take from them the right to keep and bear arms, that they designed to rest it in State governments? Is it not an inalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disfranchisement from Congress, they ever intended to confer it on the local legislatures. This right is too dear to be confided to a republican legislature.[197]
With the Civil War and the abolition of slavery, the question of the rights of former slaves to bear arms came to the attention of the country.[198] Akhil Reed Amar noted, in the Yale Law Journal,[199] the common law basis for the Bill of Rights, which includes the Second Amendment, "following John Randolph Tucker's famous oral argument in the 1887 Chicago anarchist Haymarket riot case, Spies v. Illinois":
Though originally the first ten Amendments were adopted as limitations on Federal power, yet in so far as they secure and recognize fundamental rights—common law rights—of the man, they make them privileges and immunities of the man as citizen of the United States…[200]
Another point of disagreement concerns the point at which regulation or prohibition of firearms constitutes infringement.[201][202] All federal courts, including the Supreme Court, have found that reasonable firearm regulation is allowable.[203]
In 1905, the Kansas Supreme Court in Salina v. Blaksley[204] made a collective right judicial interpretation.[205] The Kansas high court declared: "That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal Constitution, which says: '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.'"
In the Congress, the debate on the Fourteenth Amendment also concentrated on what the Southern States were doing to harm the newly freed slaves. One particular concern was the disarming of former slaves.[206]
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