Second Amendment to the United States Constitution

The Bill of Rights in the National Archives.

Close up image of the Second Amendment

The Second Amendment (Amendment II) to the United States Constitution is the part of the United States Bill of Rights that protects the right of the people to keep and bear arms. It was adopted on December 15, 1791, along with the rest of the Bill of Rights.

Two recent Supreme Court decisions, District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), interpreted the Second Amendment. In Heller, the Court ruled that the Second Amendment protects an individual's right to possess a firearm, unconnected to service in a militia; and to use that arm for traditionally lawful purposes, such as self-defense within the home. Additionally, the Court enumerated several longstanding prohibitions and restrictions on firearms possession that it found were consistent with the Second Amendment. In McDonald, the Court determined that the Second Amendment limits state and local governmental authority to the same extent that it limits federal authority.

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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. One such version was passed by the Congress, which reads:

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:

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.

Pre-Constitution background

English history

The right to have arms in English history is believed to have been regarded as a long established natural right in English law, auxiliary to the natural and legally defensible rights to life. The English Bill of Rights states that it is acting to restore "ancient rights" trampled upon by James II, though some have argued that the English Bill of Rights created a new right to have arms which developed out of a duty to have arms. In District of Columbia v. Heller (2008), the Supreme Court did not accept this view, remarking that the English right at the time of the passing of the English Bill of Rights was "clearly an individual right, having nothing whatsoever to do with service in the militia" and that it was a right not to be disarmed by the crown and was not the granting of a new right to have arms.

The text of the English Bill of Rights of 1689 includes language protecting the right of Protestants against disarmament by the Crown. This document states:

That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.

The English Bill of Rights statement about the right to have arms is often quoted only in the passage where it is written as above and not in its full context. Quoting out of context gives the false impression that it was creating a new right to arms (which it was not) and only allowed Protestants the right to have arms (which is false). In its full context it is clear that the bill was asserting the right of Protestant citizens not to be disarmed by the King without the consent of parliament and was merely restoring rights to Protestants which the previous King briefly and unlawfully had removed. Furthermore the full context reveals that Catholics (termed "papists" in the text) already had the freedom to have arms before the bill and thus and continued to have this right after the passing of the bill. In its full context it reads:

Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome (list of grievances including) ... by causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law, (Recital regarding the change of monarch) ... thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors in like Case have usually done) for the Vindicating and Asserting their ancient Rights and Liberties, Declare (list of rights including) ... That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.

The latter half of the 16th century was one of great instability based on religious divisions (between Catholics and the growing numbers Protestants) and differences that set parliamentarians (the landed gentry) against the King, principally over the King's desire for a standing army, and the King's right to govern without Parliament. The English Civil War did not totally resolve the power dispute between the primarily Protestant Parliament and the Catholic-leaning monarchy. From the civil war until the Glorious Revolution, militias occasionally disarmed Catholics, and the King, without Parliament's consent, likewise occasionally disarmed Protestants. After the parliamentarians effectively ousted James II in favor of William and Mary, Parliament passed the English Bill of Rights. The English Bill of Rights contained text that aspired to bind future Parliaments, though under English Constitutional Law no Parliament can bind any later Parliament. Nevertheless, the English Bill of Rights remains an important constitutional document, more for enumerating the rights of Parliament over the monarchy than for its clause concerning a right to have arms.

Both the U.S. and English texts are about protecting a right to arms. In the U.S. case, until the first decade of the 21st century, it was believed to have been about solely preventing infringement by the federal government, while in the English case it protects the rights of Protestants from encroachment by the King. The English right could be modified by Parliament, and until recently it was believed the state legislatures could freely regulate firearms without any Second Amendment restrictions. However, the Supreme Court in Heller ruled that the Second Amendment protected the right to keep and bear arms for self-defense. In McDonald v. Chicago (2010) that protection was extended to include infringement by state and local governments.

The historical link between the English Bill of Rights and the Second Amendment, which both codify an existing right and do not create a new one, has been acknowledged by the U.S. Supreme Court.

The English Bill of Rights includes the proviso that arms must be as "allowed by law." This has been the case before and after the passage of the Bill. While it did not override earlier restrictions on the ownership of guns for hunting, it was written to preserve the hunting rights of the landed aristocracy and is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments. Parliament though has repeatedly increased restrictions on firearms and other defensive weapons to make the legal possession of them virtually impossible. These actions have generally reflected the British public's concerns over their potential misuse as offensive weapons. Heller noted that the American right is not absolute and is subject to legislative controls preventing access to firearms by felons and the mentally ill. However, the American position of a "constitutional right" rather than a "freedom" subject to regulation means that the liberty to own, hold and use a firearm in the United States for self defense cannot be amended simply by changing statutory law, as happened in Great Britain and for many years by each of the state legislatures. The newly interpreted constitutional position is also a factor.

There is some difference of opinion as to how revolutionary the events of 1688-89 actually were, and several commentators make the point that the provisions of the English Bill of Rights did not represent new laws, but rather stated existing rights. Mark Thompson wrote that, apart from determining the succession, the English Bill of Rights did "little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already posessed [sic]." With regard to arms rights, some American writers have ignored the evidence in the text of the bill which shows it to be a restoration of lost rights to Protestants and that Catholics already had the freedom to bear arms, preferring instead to see religious discrimination in gun rights. Others have similarly ignored the earlier game laws that had already severely restricted firearms to those with gaming rights, preferring to see it as an act of socioeconomic discrimination. The game laws had not interfered with the basic duty of certain English people to keep arms for militia service but it was the caching of large quantities of weapons by Catholics that was deemed to be potentially threatening during transition from the old militia to the new. Before and after the English Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm. In 1765, William Blackstone wrote the Commentaries on the Laws of England describing the right to have arms in England during the 18th century as a natural right of the subject that was "also declared" in the English Bill of Rights.

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.

Although there is little doubt that the writers of the Second Amendment were heavily influenced by the English Bill of Rights, it is a matter of interpretation as to whether they were intent on preserving the right to regulate arms to the states over the federal government (as the English Parliament had reserved for itself against the monarch) or whether it was intent on creating a new right akin to the right of others written into the Constitution (as the Supreme Court recently decided). Some in the U.S. have preferred the "rights" argument arguing that the English Bill of Rights had granted a right (which arguably it did not, and certainly not a constitutional one). The need to have arms for self defence was not really in question. Peoples all around the world since time immemorial had armed themselves for self protection and the protection of others and as organized nations had begun to appear these arrangements had been extended to the protection of the state. Without a regular army and police force (which in England was not established until 1829), it had been the duty of certain men to keep watch and ward at night and to confront and capture suspicious persons. Every subject had an obligation to protect the king's peace and assist in the suppression of riots. As England progressively transferred the right to maintain order against internal and external threats to special bodies such as the police and the armed forces, Parliament began to restrict criminals' access to guns through legislation such as the Pistols Act.

Experience in America prior to the U.S. Constitution

In no particular order, early American settlers viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes:

• deterring undemocratic government;
• repelling invasion;
• suppressing insurrection;
• facilitating a natural right of self-defense;
• participating in law enforcement;
• enabling the people to organize a militia system,

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. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776 asserted that, "the people have a right to bear arms for the defence of themselves and the state".

Ideals that helped to inspire the Second Amendment in part are symbolized by the minutemen.

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.

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. 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. Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars' interpretation of Blackstone.

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.

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. There was no effective federal military response to an armed uprising in western Massachusetts known as Shays' Rebellion. Subsequently, the Philadelphia Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size. 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.

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." 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.

One aspect of the gun control debate is the conflict between gun control laws and the right to rebel against unjust governments. Blackstone in his Commentaries alluded to this right to rebel as the natural right of resistance and self preservation, to be used only as a last resort, exercisable when "the sanctions of society and laws are found insufficient to restrain the violence of oppression". 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, 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.

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. 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").

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. 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, or prohibiting citizens from arming themselves. Arguably the states lost the power to arm their citizens when the power to arm the militia was transferred from the states to the federal government by Article 1, Section 8 of the US Constitution.

Drafting and adoption of the Constitution

Further information: [[:Deliberations]]

Template:Infobox Awards Struggling under the inefficiencies of the Articles of Confederation, delegates from Virginia and Maryland assembled at the Mount Vernon Conference in March 1785 to fashion a remedy. The following year, at a meeting in Annapolis, Maryland, 12 delegates from five states (New Jersey, New York, Pennsylvania, Delaware, and Virginia) met and drew up a list of problems with the current government model. At its conclusion, the delegates scheduled a follow-up meeting in Philadelphia, Pennsylvania for May 1787 to present solutions to these problems, such as the absence of:

• interstate arbitration processes to handle quarrels between states;
• sufficiently trained and armed intrastate security forces to suppress insurrection;
• a national militia to repel foreign invaders.

It quickly became apparent that the solution to all three of these problems required shifting control of the states' militias to the federal congress and giving that congress the power to raise a standing army. Article 1, Section 8 of the Constitution codified these changes by allowing the Congress to do the following:

• provide for the common defense and general welfare of the United States;
• raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
• provide and maintain a navy;
• make rules for the government and regulation of the land and naval forces;
• provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
• 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.

Some representatives mistrusted proposals to enlarge federal powers because they were concerned about the inherent risks of centralizing power. Federalists, including James Madison, initially argued that a bill of rights was unnecessary, sufficiently confident that the federal government could never raise a standing army powerful enough to overcome a militia. Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army. Anti-federalists, however, advocated amending the Constitution with clearly defined and enumerated rights providing more explicit constraints on the new government. Many anti-federalists feared the new federal government might choose to disarm state militias. Federalists countered that in listing only certain rights, unlisted rights might lose protection. Nevertheless, upon realizing there was insufficient support to ratify the Constitution without a bill of rights, federalists conceded, promising that upon enactment they would support amending the Constitution with a bill of rights. Enough anti-Federalists were persuaded by this compromise to vote for the Constitution, allowing for ratification. 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, North Carolina and Rhode Island, ratified only after Congress had passed the Bill of Rights and sent it to the states for ratification. James Madison drafted what ultimately became the United States Bill of Rights, which was proposed by the first Congress on June 8, 1789, and was adopted on December 15, 1791.

Ratification debates

There was substantial opposition to the new Constitution because it moved the power to arm the state militias from the states themselves to the federal government. This created a fear that the federal government by neglecting the upkeep of the militia could have overwhelming military force at its disposal, through its power to maintain a standing army and navy, in any confrontation with the states, encroaching on the powers the states had reserved for themselves and even engaging in a military takeover. Article VI of the Articles of Confederation states:

No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the united States in congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the united States, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.

In contrast, Article I, Section 8 of the U.S. Constitution states:

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

A foundation of American political thought during the Revolutionary period was the well justified concern about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is "a chimerical idea to suppose that a country like this could ever be enslaved . . . Is it possible . . . that an army could be raised for the purpose of enslaving themselves or their brethren? or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?" Noah Webster similarly argued:

Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.

George Mason argued the importance of the militia and right to bear arms by reminding his compatriots of England's efforts "to disarm the people; that it was the best and most effectual way to enslave them . . . by totally disusing and neglecting the militia." He also clarified that under prevailing practice the militia included all people, rich and poor. "Who are the militia? They consist now of the whole people, except a few public officers." Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.

The framers thought the personal right to bear arms to be a paramount right by which other rights could be protected. Therefore, writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included "the right to keep and bear arms" in a list of basic "human rights" which he proposed to be added to the Constitution.

Patrick Henry, also in the Virginia convention, eloquently argued for the dual rights to arms and resistance to oppression: "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined." Thus, the federalists agreed that an armed populace was the ultimate check on tyranny.

While both Monroe and Adams supported ratification of the Constitution, its most influential framer was James Madison. In Federalist No. 46, he confidently contrasted the federal government of the United States to the European despotisms which he contemptuously described as "afraid to trust the people with arms." He assured his fellow citizens that they need never fear their government because of "the advantage of being armed...."

By January of 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several specific amendments were proposed, but were not adopted at the time the Constitution was ratified. The Pennsylvania convention, for example, debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to amendments to assure ratification. Samuel Adams proposed that the Constitution:

Be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defence of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of their grievances: or to subject the people to unreasonable searches and seizures.

Conflict and compromise in Congress produce the Bill of Rights

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.

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, 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. 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.

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.

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." 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.

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. 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.

On December 15, 1791, the Bill of Rights (the first ten amendments to the Constitution) was adopted, having been ratified by three-fourths of the states.

Militia in the decades following ratification

During the first two decades following the ratification of the Second Amendment, public opposition to standing armies, among Anti-Federalists and Federalists alike, persisted and manifested itself locally as a general reluctance to create a professional armed police force, instead relying on county sheriffs, constables and night watchmen to enforce local ordinances. Though sometimes compensated, often these positions were unpaid—held as a matter of civic duty. In these early decades, law enforcement officers were rarely armed with firearms, using clubs as their sole defensive weapon. In serious emergencies, a posse comitatus, militia company, or group of vigilantes assumed law enforcement duties; these individuals were more likely than the local sheriff to be armed with firearms.

On May 8, 1792, Congress passed "[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States" requiring:

[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia...[and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

The act also gave specific instructions to domestic weapon manufacturers "that from and after five years from the passing of this act, muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound." In practice, private acquisition and maintenance of rifles and muskets meeting specifications and readily available for militia duty proved problematic; estimates of compliance ranged from 10 to 65 percent. Compliance with the enrollment provisions was also poor. In addition to the exemptions granted by the law for custom-house officers and their clerks, post-officers and stage drivers employed in the care and conveyance of U.S. mail, ferrymen, export inspectors, pilots, merchant mariners and those deployed at sea in active service; state legislatures granted numerous exemptions under Section 2 of the Act, including exemptions for: clergy, conscientious objectors, teachers, students, and jurors. And though a number of able-bodied white men remained available for service, many simply did not show up for militia duty. Penalties for failure to appear were enforced sporadically and selectively. None are mentioned in the legislation.

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. Attempts by the four adjoining states to raise a militia for nationalization to suppress the insurrection proved inadequate. When officials resorted to drafting men, they faced bitter resistance. Forthcoming soldiers consisted primarily of draftees or paid substitutes as well as poor enlistees lured by enlistment bonuses. The officers, however, were of a higher quality, responding out of a sense of civic duty and patriotism, and generally critical of the rank and file. Most of the 13,000 soldiers lacked the required weaponry; the war department provided 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 episode provoked criticism of the citizen militia and inspired calls for a universal militia. Secretary of War Henry Knox and President John Adams had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production. Congress did subsequently pass "[a]n act for the erecting and repairing of Arsenals and Magazines" on April 2, 1794, two months prior to the insurrection. Nevertheless, the militia continued to deteriorate and twenty years later, the militia's poor condition contributed to several losses in the War of 1812, including the sack of Washington, D.C. and arson of the White House in 1814.

Scholarly commentary

Early commentary

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.

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." 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.

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."

Tucker's commentary was soon followed, in 1825, by that of William Rawle in his landmark text, A View of the Constitution of the United States of America. Like Tucker, Rawle condemned England's "arbitrary code for the preservation of game," portraying that country as one that "boasts so much of its freedom," yet provides a right to "protestant subjects only" which it "cautiously describ[es] to be that of bearing arms for their defence" and reserves for "[a] very small proportion of the people[.]" In contrast, Rawle characterizes the second clause of the Second Amendment, which he calls the corollary clause, as a general prohibition against such capricious abuse of government power, declaring bluntly:

No clause could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence 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.

Rawle, long before the concept of incorporation was formally recognized by the courts, or Congress drafted the Fourteenth Amendment, contended that citizens could appeal to the Second Amendment should either the state or federal government attempt to disarm them. He did warn, however, that "this right [to bear arms] ought not...be abused to the disturbance of the public peace" and observed, paraphrasing Coke, that "[a]n assemblage of persons with arms, for unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace."

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.

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.

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. 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. 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.

In the Congress, the debate on the Fourteenth Amendment concentrated on what the Southern States were doing to harm the newly freed slaves. One particular concern was the disarming of former slaves.

Later commentary

Three grammatical interpretations traditionally informed jurists, scholars and the general public on interpretations of the Second Amendment.

One interpretation, known to grammarians as a nominative absolute construction, proposes the Second Amendment consists of 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. Under this interpretation, the opening phrase is considered essential as a pre-condition for the main clause. This was a grammar structure that was common during that era. 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.

Another interpretation holds the Second Amendment contains an opening prefatory or amplifying clause followed by an operative clause. The opening phrase is meant as a non-exclusive example—one of many reasons for the amendment. This interpretation is consistent with the position that the Second Amendment protects a modified individual right. In Heller, the Supreme Court endorsed this description of the Second Amendment. Although the Second Amendment is the only Constitutional amendment with a prefatory clause, such constructions were widely used elsewhere.

A third interpretation views the first clause as simply explanatory; neither a qualifying nor 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. Adherents to this interpretation observe that the latter clause of the amendment still guarantees the right to "the people," and, therefore, is not limited to members of a select militia. This style of syntax was common for the time and similar language exists in the Copyright Clause of the U.S. Constitution.

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.

Saul Cornell describes the product of Second Amendment scholarship in recent decades as "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 is used by judges when deciding a case.

Moreover, Cornell contends the simplified dichotomy between the older individual right interpretation and the later collective right interpretation of the Second Amendment is false: "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." David Thomas Konig ascribes to a similar viewpoint, writing: "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."

In contrast, senior NRA attorney David Hardy specifically dismisses civic rights as the overarching motivation for the Second Amendment and criticizes Saul Cornell's tendency to cite only writers that support militia interpretations of the Second Amendment while omitting mention of the works by early writers that identified manifold reasons for the Second Amendment. David Hardy maintains civic duty is but one of several purposes intended by the Second Amendment.

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. Similarly, in his book, Out of Range, Mark Tushnet concluded there was no clear meaning of the Second Amendment.

Meaning of "to keep and bear arms"

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. The concept of a universal militia originated in Roman times, where every citizen was a soldier and every soldier was a citizen. 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.

Oxford Dictionaries Online, a dictionary of modern English, defines the phrase To bear arms as "carry firearms". The on-line Merriam-Webster's Collegiate Dictionary defines 'bear arms' as "to carry or possess firearms". In District of Columbia v. Heller, the U.S. Supreme Court used this common meaning of the phrase by stating, "If bear arms means, as we think, simply the carrying of arms".

While a number of authors, lawyers and historians have advocated the view that the term "to bear arms" implies only the military use of arms, the courts have disregarded this viewpoint by pointing out that the term to bear arms also has a private component. In Parker v District of Columbia it was pointed out that

it would hardly have been unusual for a writer of the times (or now) to have said that, after an attack on a house by thieves, the men set out to find them "bearing arms".

In Parker it was also pointed out that "In contract to the collective rights theorists' extensive efforts to tease out the meaning of "to bear" the conjoined, preceding verb "keep" has been almost entirely neglected" The court further states that many of the theories attempting to show that "to keep" implies military usage are "outlandish" and gives the following example on word usage advanced by Garry Wills

One authority cited by the District has attempted to equate “keep” with “keep up,” a term that had been used in phrases such as “keep up a standing army” or, as in the Articles of Confederation, “every state shall keep up a well regulated and disciplined militia . . . .” See Wills, supra, at 66. The argument that “keep” as used in “the right of the people to keep . . . Arms” shares a military meaning with “keep up” as used in “every state shall keep up a well regulated militia” mocks usage, syntax, and common sense. Such outlandish views are likely advanced because the plain meaning of “keep” strikes a mortal blow to the collective right theory. Turning again to Dr. Johnson’s Dictionary, we see that the first three definitions of “keep” are “to retain; not to lose,” “to have in custody,” “to preserve; not to let go.” Johnson, supra, at 540. We think “keep” is a straightforward term that implies ownership or possession of a functioning weapon by an individual for private use. Emerson, 270 F.3d at 231 & n.31; accord Silveira, 328 F.3d at 573-74 (Kleinfeld, J.). The term “bear arms,” when viewed in isolation, might be thought ambiguous; it could have a military cast. But since “the people” and “keep” have obvious individual and private meanings, we think those words resolve any supposed ambiguity in the term “bear arms.”

Garry Wills, an author and history professor at Northwestern University, writes 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...

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.

Don Kates, a civil liberties lawyer, cites historic English usage attributed to Tench Coxe describing the "right to keep and bear their private arms."

Per Sayoko Blodgett-Ford, both military and nonmilitary usages of the phrase exist 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."

Historian Jack Rakove, in an amicus brief signed by a dozen leading historians filed in District of Columbia. v. Heller, identifies several problems with the Kates and Blodgett-Ford arguments. 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. This amicus brief however, observes that Pennsylvania, because of Quaker influence, refused to pass laws organizing a militia for two decades prior to the Revolution, and refused to organize a militia even during wartime when frontier counties petitioned the colonial government. How the right to arms is based on membership in the militia, when there is no militia, is unexplained. Other historians note that the Second Amendment describes what was as much a civic obligation as it was a right in the modern sense. The meaning of the Pennsylvania dissent of the minority is even more hotly disputed. Historians note 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. In 1982, on the other hand, a Republican-majority U.S. Senate subcommittee claimed the Pennsylvania minority report as a source for the Bill of Rights, and the majority opinion in Heller referred to this report as being "highly influential". Also in this "highly influential" 1982 released Senate report on the Right to Keep and Bear Arms, Senator Orrin G. Hatch, chairman, U.S. Senate Judiciary Committee, Subcommittee on the Constitution, stated:

They argue that the Second Amendment's words "right of the people" mean "a right of the state" — apparently overlooking the impact of those same words when used in the First and Fourth Amendments. The "right of the people" to assemble or to be free from unreasonable searches and seizures is not contested as an individual guarantee. Still they ignore consistency and claim that the right to "bear arms" relates only to military uses. This not only violates a consistent constitutional reading of "right of the people" but also ignores that the second amendment protects a right to "keep" arms. "When our ancestors forged a land "conceived in liberty", they did so with musket and rifle. When they reacted to attempts to dissolve their free institutions, and established their identity as a free nation, they did so as a nation of armed freemen. When they sought to record forever a guarantee of their rights, they devoted one full amendment out of ten to nothing but the protection of their right to keep and bear arms against governmental interference. Under my chairmanship the Subcommittee on the Constitution will concern itself with a proper recognition of, and respect for, this right most valued by free men."

In contrast, Richard Uviller and William G. Merkel argue 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. 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.

Clayton Cramer and Joseph Olson question Uviller and Merkel's conclusion, arguing 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, this may reflect a selection bias arising from the use of a limited selection of government documents that overwhelmingly refer to matters of military service. 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 1790s 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.

Mark Tushnet claims that "bear arms," when used separately from "keep" in the late-18th century, could refer to hunting or other activities. However, when used together, they specifically refer to weapons in connection with military use.

When used separately in the eighteenth century, 'keep' and 'bear' had their ordinary meanings -you could keep a weapon in your house, and then you'd bear it outside. When used together, though, the meaning is more restricted. The evidence is overwhelming that 'keep and bear' was a technical phrase whose terms traveled together, like 'cease and desist' or 'hue and cry.' 'Keep and bear' referred to weapons in connection with military uses, even when the terms used separately might refer to hunting or other activities.

Legal commentator and author Patrick J. Charles analyzed "keep arms" and "bear arms" in 18th century statutes and military treatises and concludes that both phrases were legal terms of art used to describe arms in a military context.

Meaning of "well regulated militia"

The term "regulated" means "disciplined" or "trained". In Heller, the U.S. Supreme Court stated that "[t]he adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training." Regarding a well regulated militia, Alexander Hamilton wrote in Federalist No. 29:

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.

Regarding regulation and training of the 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...confiding the regulation of the militia to the direction of the national authority...(and) reserving to the states...the authority of training the militia".

Historical models of interpretation

According to well known gun rights activist David Kopel, since at least 1999, “In the written opinions of the Justices of the United States Supreme Court, the Second Amendment does appear to be reasonably well-settled--as an individual right.”

Before this, legal theorists historically used three models to interpret the Second Amendment. In 2001, Professor Michael C. Dorf described these three historical models as follows:

The first and second both emphasize the preamble, or "purpose" clause, of the Amendment — the words "A well regulated Militia, being necessary to the security of a free State." The third does not. The first model holds that the right to keep and bear arms belongs to the people collectively rather than to individuals, because the right's only purpose is to enable states to maintain a militia; it is not for individuals' benefit. The second model is similar to the first. It holds that the right to keep and bear arms exists only for individuals actively serving in the militia, and then only pursuant to such regulations as may be prescribed. Under either of the first two models, a private citizen has no right to possess a firearm for personal use. But the court rejected these two models in favor of a third, the individual rights model. Under this third model, the Second Amendment protects a right of individuals to own and possess firearms, much as the First Amendment protects a right of individuals to engage in free speech.

Earlier in the 20th Century, United States federal courts commonly interpreted the Second Amendment per a collective right model. This interpretation formally changed in the 21st Century with the 2001 Fifth Circuit ruling in United States v. Emerson, in the 2008 Supreme Court ruling in District of Columbia v. Heller, and in the 2010 Supreme Court ruling in McDonald v. Chicago. All of those rulings upheld the individual rights model when interpreting the Second Amendment.

Saul Cornell, on the other hand, believes this record of historical interpretation is false: "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." David Thomas Konig ascribes to a similar viewpoint, writing: "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." Although the term civic right does not appear in Heller, Justice Stevens, in his dissent, agreed with the interpretation advanced by Uviller, Konig, and Cornell. Stevens opined that the Second Amendment protects a right that may be enforced by individuals. In contrast to the majority opinion, that individual right was defined by the Amendment preamble as the preservation of a militia. Stevens found that Aymette v. State, a case decided by the Tennessee Supreme Court in 1840, confirmed his view.

Supreme Court cases

See also: Firearm case law in the United States

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. 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."

State and federal courts historically have used two models to interpret the Second Amendment: the now generally accepted individual rights model, and the "collective rights" model which holds that the right is dependent on militia membership. While having influenced a number of past court cases, the "collective rights" model has been discarded by the U.S. Supreme Court, in favor of the individual rights model.

The primary U.S. Supreme Court Second Amendment cases include Robertson v. Baldwin, (1897); United States v. Miller, (1939); District of Columbia v. Heller, (2008); and McDonald v. Chicago (2010).

In Heller and McDonald the U.S. Supreme Court supported the individual rights model, under which the Second Amendment protects the right to keep and bear arms much as the First Amendment protects the right to free speech. Under this model the militia is composed of members who supply their own arms and ammunition. This is generally recognized as the method by which U.S. militias have historically been armed.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

Of the collective rights model that holds that the right to arms is based on militia membership, the U.S. Supreme Court, in Heller, had this to say:

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.

Dred Scott v. Sandford

Main article: Dred Scott v. Sandford

In the case of Dred Scott v. Sandford, 60 U.S. 393 (1856), the Supreme Court's decision to deny 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.

The Court was referring to the Privileges and Immunities Clause, located in Article IV of the Constitution. This is to be distinguished from the Privileges or Immunities Clause, which was adopted as part of the Fourteenth Amendment in 1868.

United States v. Cruikshank

Main article: United States v. Cruikshank

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 in what was 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.

Thus, the Court held a federal anti-Ku-Klux-Klan statute to be unconstitutional as applied in that case.

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.

Regarding the assertion in Heller that Cruikshank said the First Amendment did not apply to the states, Professor David Rabban writes that the Cruikshank Court "never specified whether the First Amendment contains 'fundamental rights' protected by the Fourteenth Amendment against state action...."

Presser v. Illinois

Main article: Presser v. Illinois

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.

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, and held that the Second Amendment prevents neither the states nor Congress from barring private militias that parade with arms; such a right "cannot be claimed as a right independent of law." 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.

Miller v. Texas

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 applied to state law. The Supreme Court ruled that the Second Amendment did not apply to state laws such as the Texas law which Mr. Miller had violated. The Court wrote that, "As the proceedings were conducted under the ordinary forms of criminal prosecutions there certainly was no denial of due process of law."

Robertson v. Baldwin

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;..."

United States v. Miller

Main article: United States v. Miller

In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court heard arguments from only the Solicitor General 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..."

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.

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 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.

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.

Gun-right advocates cite Miller because they claim that the Court ruled that the Second Amendment protected the right to keep arms that are part of "ordinary military equipment." Gun control advocates cite Miller 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." 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."

District of Columbia v. Heller

Main article: District of Columbia v. Heller

Judgment

According to the Cornell School of law summary, and the syllabus prepared by the US Supreme Court Recorder of Decisions, in this decision the Supreme Court held:

(1) The 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. Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.

(d) The Second Amendment ’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.

(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

(2) Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.

(3) The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.

Other legal summaries of the court's findings in this case are similar.

Notes and analysis

This has been widely described as a landmark decision. To clarify that its ruling does not invalidate a broad range of existing firearm laws, the majority opinion, written by Justice Scalia, said:

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.

The majority opinion held that the amendment's prefatory clause (referencing the "militia") serves to clarify the operative clause (referencing "the people"), but does not limit the scope of the operative clause, because "the 'militia' in colonial America consisted of a subset of 'the people'...."

Justice Stevens' dissenting opinion, which was joined by the three other dissenters, said:

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.

This dissent called the majority opinion "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. In the majority opinion, Justice Stevens' interpretation of the phrase "to keep and bear arms" was referred to as a "hybrid" definition that Stevens purportedly chose in order to avoid an "incoherent" and "[g]rotesque" idiomatic meeting.

Justice Breyer, in his own dissent and speaking only for himself, stated that the entire Court subscribes to the proposition that "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".

Regarding the term "well regulated", the majority opinion said: "The adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training." The majority opinion 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. The majority opinion 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.

The dissenting justices were unpersuaded by this argument.

Immediate reaction after the Heller ruling was varied, with many sources giving focus to the portions of the ruling that pertained to the fact that the ruling was the first in the history of the Supreme Court to read any individual right meaning as being protected by the Second Amendment. The majority opinion drafted by Justice Antonin Scalia, gives explanation of the majority legal reasoning behind this decision. The majority opinion made clear that the recent ruling did not foreclose the Court’s prior interpretations given in United States v. Cruikshank, Presser v. Illinois, and United States v. Miller though these earlier rulings were not to limit the right to keep and bear arms solely for militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia (i.e., those in common use for lawful purposes).

Heller pertained to three District of Columbia ordinances involving restrictions on firearms amounting to a total ban. These three ordinances were a ban on handgun registration, a requirement that all firearms in a home be either disassembled or have a trigger lock, and licensing requirement that prohibits carrying an unlicensed firearm in the home, such as from one room to another.

Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Because Heller conceded at oral argument that the District's licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumed that a license will satisfy his prayer for relief and did not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.

McDonald v. Chicago

Main article: McDonald v. Chicago

Judgment

On June 28, 2010, ruling that the Second Amendment limits state and local governmental authority to the same extent that it limits the federal government. It also remanded a case regarding a Chicago handgun prohibition.

Notes and analysis

Four of the five Justices in the majority voted to do so by way of the Due Process Clause of the Fourteenth Amendment, while the fifth Justice (Clarence Thomas) voted to do so through the amendment's Privileges or Immunities Clause.

Lower federal court decisions since Heller

Since Heller, more than eighty other lawsuits challenging convictions and gun control laws under the Second Amendment have been visited by federal courts. The following are post-Heller cases, divided by Circuit, along with summary notes:

First Circuit

• United States v. Rene E., 583 F.3d 8 (1st Cir. 2009) - On August 31, 2009, the First Circuit affirmed the conviction of a juvenile for the illegal possession of a handgun as a juvenile, under 18 U.S.C. § 922(x)(2)(A) and 18 U.S.C. § 5032, rejecting the defendant's argument that the federal law violated his Second Amendment rights under Heller. The court cited "the existence of a longstanding tradition of prohibiting juveniles from both receiving and possessing handguns" and observed "the federal ban on juvenile possession of handguns is part of a longstanding practice of prohibiting certain classes of individuals from possessing firearms — those whose possession poses a particular danger to the public."

Second Circuit

• Maloney v. Rice, 554 F.3d 56 (2d. Cir. 2009) - On January 28, 2009, the Second Circuit ruled that the Second Amendment does not apply to state and local governments. Also, New York was ruled to have a "rational basis" for banning possession of nunchaku. On June 29, 2010, in light of McDonald v. Chicago, the Supreme Court vacated this decision and remanded this case.

Third Circuit

• United States v. Lewis - On July 3, 2008, the Third Circuit upheld, against a Second Amendment challenge, a federal law prohibiting possession of firearms with obliterated serial numbers.
• United States v. Walters - On July 15, 2008, the Third Circuit upheld, against a Second Amendment challenge, a federal law that prohibits possession of firearms within 1,000 feet of a school zone and so denied a request to dismiss an indictment of Rupert Walters.

Fourth Circuit

• United States v. Hall, 551 F.3d 257 (4th. Cir. 2009) - On August 4, 2008, the Fourth Circuit upheld as constitutional the prohibition of possession of a concealed weapon without a permit.

• United States v. Chester, 2010 U.S. App. LEXIS 3739 (4th Cir. Feb. 23, 2010) (Unpublished) - On February 23, 2010, the Fourth Circuit vacated William Chester's conviction for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9). The court found that the district court erred in perfunctorily relying on Heller's exception for "presumptively lawful" gun regulations made in accordance with "longstanding prohibitions". Citing the Seventh Circuit's decision in Skoien, the Fourth Circuit remanded the case to the district court with the instruction that it "identify the basis of [Chester's] claim to Second Amendment protection and make a record to support it; to which the Government may respond."

Fifth Circuit

• United States v. Dorosan, 350 Fed. Appx. 874 (5th Cir. 2009) - On June 30, 2008, the Fifth Circuit upheld 39 CFR 232.1, which bans weapons on postal property, sustaining restrictions on guns outside the home, specifically in private vehicles parked in employee parking lots of government facilities, despite Second Amendment claims that were dismissed. The employee's Second Amendment rights were not infringed since the employee could have instead parked across the street in a public parking lot, instead of on government property.

• United States v. Bledsoe, 334 Fed. Appx. 771 (5th Cir. 2009) - The Fifth Circuit affirmed the decision of a U.S. District Court decision in Texas, upholding 18 U.S.C. § 922(a)(6), which prohibits "straw purchases." A "straw purchase" occurs when someone eligible to purchase a firearm buys one for an ineligible person. Additionally, the court rejected the request for a strict scrutiny standard of review.

• United States v. Scroggins, 551 F.3d 257 (5th Cir. 2010) - On March 4, 2010, the Fifth Circuit affirmed the conviction of Ernie Scroggins for possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The court noted that it had, prior to Heller, identified the Second Amendment as providing an individual right to bear arms, and had already, likewise, determined that restrictions on felon ownership of firearms did not violate this right. Moreover, it observed that Heller did not affect the longstanding prohibition of firearm possession by felons.

Sixth Circuit

• Hamblen v. United States, 2009 FED App. 439P (6th Cir.). The Sixth Circuit affirmed a denial of the petitioner's motion to vacate convictions for possession of machine guns and possession of unregistered firearms, in violation of 18 U.S.C. § 922(o)(1) and 26 U.S.C. § 5861(d), respectively. The court observed that Heller explicitly excluded from Second Amendment protection any weapons "not typically possessed by law-abiding citizens for lawful purposes." The court rejected the petitioner's argument that the federal restrictions were nevertheless unconstitutional, stating that, "whatever the individual right to keep and bear arms might entail, it does not authorize an unlicensed individual to possess unregistered machine guns for personal use."

Seventh Circuit

• United States v. Skoien, 587 F.3d 803 (7th Cir. 2009) - Steven Skoien, a Wisconsin man, convicted of two misdemeanor domestic violence convictions appealed his conviction based on the argument that the prohibition violated the individual rights to bear arms, as described in Heller. After initial favorable rulings in lower court based on a standard of intermediate scrutiny, on July 13, 2010, the Seventh Circuit, sitting en banc, ruled 10-1 against Skoien and reinstated his conviction for a gun violation citing the strong relation between the law in question and the government objective. Skoien was convicted and sentenced to two years in prison for the gun violation and likely will be subject to a lifetime ban on gun ownership. Pro-gun editorials have sharply criticized this ruling as going too far with the enactment of a lifetime gun ban while editorials favoring gun regulations have praised the ruling as "a bucket of cold water thrown on the 'gun rights' celebration".

Eighth Circuit

• United States v. Perkins, 526 F.3d 1107 (8th Cir. 2008) - On September 23, 2008, the Eighth Circuit upheld 26 U.S.C. § 5841 which prohibits the receiving or possession of an unregistered firearm.

Ninth Circuit

• United States v. Heredia-Mendoza - On November 18, 2008, the Ninth Circuit upheld 18 U.S.C. § 924(c)(1)(A) which mandates stricter sentencing for use of a firearm during crimes of violence or drug trafficking. The court rejected the defendant's claim of unconstitutionality because the law criminalized possession of gun for self defense in the home.

• Nordyke v. King, 563 F.3d 439 (9th Cir. 2009) - On July 29, 2009, the Ninth Circuit decided to vacate both parts of an April 20 ruling in this case and to rehear this case en banc on September 24, 2009. That April 20 decision, by a three-judge panel of the Ninth Circuit, had ruled that the Second Amendment does apply to state and local governments, while also upholding an Alameda County, California ordinance which makes it a crime to bring, or possess, a gun or ammunition onto county property. After the en banc panel heard oral argument, the Ninth Circuit decided to delay ruling on the case until the Supreme Court decides if it will review any of three cases it has been asked to hear.

Tenth Circuit

• United States v. Artez, 290 Fed. Appx. 203 (10th Cir., 2008) - On August 29, 2008, the Tenth Circuit upheld the federal ban on possession of un-registered sawed-off shotguns.

Eleventh Circuit

• United States v. Boffil-Rivera - On August 12, 2008, the United States District Court for the Southern District of Florida ruled the prohibition of possession of firearms by persons illegally or unlawfully in the United States, under 18 U.S.C. § 922(g)(5), to be constitutional. The court stated that "Heller casts no shadow on the statute on a facial challenge". The Eleventh Circuit later affirmed the jury's verdict.

Early state court decisions

Further information: [[:Early commentary in state courts]]

Historians describe the original interpretation of the Second Amendment as a "civic duty" interpretation, whereas the "individual rights" interpretation did not emerge until several decades after the Second Amendment was drafted, followed by the "collective rights" interpretation. 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.

The first state court decision to turn upon a "right to bear arms" was Bliss v. Commonwealth, 12 Ky. 90 (1822), a case involving a provision of Kentucky's state constitution written using language quite different from that of the Second Amendment. That provision has since been amended to allow control of concealed weapons. The state court held that "the right of citizens to bear arms in defense of themselves and the state must be preserved entire, ..." Many years later, the United States Court of Appeals for the Fifth Circuit would cite Bliss in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001):

[T]here 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, 1822 WL 1085 (Ky.1822).

In contrast to the Bliss decision, a concurring opinion in the 1842 Arkansas Supreme Court case of State v. Buzzard, 4 Ark. 18 (1842) found 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 that concurring opinion in Buzzard expressed a view that was unusual in the 19th century.

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.

Political scientist Earl Kruschke describes Bliss and Buzzard as "cases illustrating the individual view." 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.

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.

Nunn also alleged that the state law barring concealed carry violated the Second Amendment. Concerning that, the Georgia Supreme Court 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.

Another point of disagreement concerns the point at which regulation or prohibition of firearms constitutes infringement. All federal courts, including the Supreme Court, have found that reasonable firearm regulation is allowable".

In City of Salina v. Blaksley, 72 Kan. 230 (1905), the Kansas Supreme Court interpreted the Kansas analog to the Second Amendment as providing a collective right. 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". On November 2, 2010, Kansas effectively overruled Blaksley by adopting a state constitutional amendment providing for an individual right to keep and bear arms.

See also

• Gun politics in the United States
• Incorporation (Bill of Rights)#Amendment II

References

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• Lund, Nelson. "Heller and Second Amendment Precedent". Lewis & Clark L. Rev.
• Malcolm, Joyce Lee (1986). "Book Review: That Every Man Be Armed". 54. {{cite journal}}: Cite journal requires |journal= (help)
• Malcolm, Joyce Lee (1993). "The Role of the Militia in the Development of the Englishman's Right to be Armed — Clarifying the Legacy". J. On Firearms & Pub. Pol'y. 5.
• McAffee, Thomas B. (1997). "Bringing Forward the Right to Keep and Bear Arms: Do Text, History, or Precedent Stand in the Way?". N.C. L. Rev. {{cite journal}}: Unknown parameter |coauthors= ignored (|author= suggested) (help); Unknown parameter |month= ignored (help)
• McClurg, Andrew (1999). "Lotts' More Guns and Other Fallacies Infecting the Gun Control Debate". J. Of Firearms & Pub. Pol'y. 11.
• Merkel, William (Summer 2009). "Heller and Scalia's Originalism" (PDF). Lewis & Clark L. Rev. 13 (2).
• Pierce, Darell R. (1982). "Second Amendment Survey". N. Ky. L. Rev. 10 (1).
• Rakove, Jack (2000). "The Second Amendment: The Highest Stage of Originalism". Chi.-Kent. L. Rev. 76.
• Reynolds, Glenn (1995). "A Critical Guide to the Second Amendment". Tenn. L. Rev. 62 (461).
• Schmidt, Christopher (2007). "An International Human Right to Keep and Bear Arms". Wm. & Mary Bill of Rts. J. 15 (3): 983. {{cite journal}}: Unknown parameter |month= ignored (help)
• Smith, Douglas (2008). "The Second Amendment and the Supreme Court". Geo. J.L. & Pub. Pol'y. 6.
• Volokh, Eugene (1998). "The Commonplace Second Amendment". NYU L. Rev. 73 (793).
• Volokh, Eugene (November/December 1998). "Testimony of Eugene Volokh on the Second Amendment, Senate Subcommittee on the Constitution, September 23, 1998". Cal. Pol. Rev. {{cite journal}}: Check date values in: |date= (help)
• Weisselberg, Charles D. (2009). "Selected Criminal Law Cases in the Supreme Court's 2007-2008 Term, and a Look Ahead" (PDF). Court Review. 44.
• Wills, Garry (1995). "To Keep and Bear Arms". N.Y. Rev. Of Books. 42 (14). ISSN 0028-7504.
• Winkler, Adam (February 2007). "Scrutinizing the Second Amendment". Mich. L. Rev. 105.
• Winkler, Adam (June 2009). "Heller's Catch 22". UCLA L. Rev. 56.

Other publications

• Maer, Lucinda; Gay, Oonagh (2009). (Document). Parliament and Constitution Centre. {{cite document}}: Missing or empty |title= (help); Unknown parameter |contribution= ignored (help); Unknown parameter |url= ignored (help)

External links

• National Archives Scanned Image of the Bill of Rights, including the Second Amendment