Second Amendment to the United States Constitution

Template:USBillofRights Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, declares the necessity for "a well regulated militia", and prohibits infringement of "the right of the people to keep and bear arms".

Text

The Second Amendment, as passed by the House and Senate and later ratified by the States, 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."

The hand-written copy of the Bill of Rights which hangs in the National Archives had slightly different capitalization and punctuation inserted by William Lambert, the scribe who prepared it. This copy 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."'

Both versions are commonly used by "official" Government publications.

Origin of the Second Amendment

Economic depression was gripping the country, a loose confederation of independent states formed after a popular revolution of 'the people' against the colonial tyranny of England. This new confederation of states had tried to raise taxes in an attempt to recover from massive debt remaining from the war, when a group of 2,000 farmers lead by Daniel Shays organized to rebel against these unfair taxes. They attacked courthouses, and even attempted to seize an arsenal filled with guns.

Many agreed that the federal taxes were unfair and viewed this rebellion as a just action of 'the people' against the 'tyranny' of government. These people were opposed to a strong federal government, and were known as Antifederalists. Yet, many disagreed, believing that the new confederation of states were doomed to failure if 'the people' could not raise taxes to recover from the economic crisis. These people favored a stronger federal government and were known as Federalists. Eventually, the State of Massachusetts raised a militia to quash the insurrection.

Antifederalists also feared creation of a standing army that could eventually endanger democracy and civil liberties as had happened recently in the American Colonies and Europe. Leading Antifederalists proposed an amendment to the Constitution to address this risk. A part of the Antifederalist belief was that if "the whole body of people are armed" they can defend against the risk of tyranny from a standing army. This belief is reflected by Noah Webster who wrote:

"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 pretense, raised in the United States."[1]

The controversy of a standing army for the United States existed in context of the Continental Forces that had won the Revolutionary War which consisted of both the standing Continental Army created by the Continental Congress and of State and Militia Units. In opposition, the British Forces consisted of a mixture of the standing British Army, Loyalist Militia, and mercenaries (e.g., Hessians).

Federalists, on the other hand, believed that federal government must be trusted and that the army and the militias "ought certainly to be under the regulation and at the disposal" of federal government. This belief was well stated by Alexander Hamilton:

"The power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy."[2]

The origin of the Second Amendment also occurred in context of an ongoing debate about "the people" fighting governmental tyranny, (as described by Antifederalists); or the risk of mob rule of "the people", (as described by the Federalists). These feelings can be seen in the "a force superior" quote of Noah Webster above, and in contrast, when John Adams wrote of his fears about Antifederalists in the ongoing revolution in France:

"The State is in critical Circumstances, and have been brought into them by the Heat and Impatience of the People. If nothing will bring them to consideration, I fear they will suffer[3]"

Reaching a compromise between these widely disparate positions was not easy, but none-the-less, a compromise was negotiated with the result being the Second Amendment.

Creation of the Second Amendment

Conflict and compromise

In the early months of 1789, the United States was engaged in an ideological conflict between Federalists who favored a stronger central government and Antifederalists skeptical of a strong central government. This conflict was accentuated by the recent news of a brewing, potentially violent, revolution in France with similar Antifederal tensions. Also, the conflict in beliefs continued between northern states, that generally favored Federalist values, and southern states that tended to share Antifederalist values.

Intense concerns gripped the country of the potential for success or failure of these newly-formed United States. The first presidential inauguration of George Washington had occurred just a few short weeks earlier. A spirited public concern and debate from this time is captured in numerous heated newspaper articles, personal diaries and letters from this pivotal time in United States history.

Antifederalists supported the proposal to amend the Constitution with clearly-defined and enumerated rights to provide further constraints on the new government, while opponents felt that by listing only certain rights, other unlisted rights would fail to be protected. Amidst this debate, a compromise was reached and James Madison drafted what ultimately would become the United States Bill of Rights and that was proposed to the Congress on June 8, 1789.

The original text[4] of what was to become the Second Amendment, as brought to the floor to the first sesson of the first congress of the U.S. House of Representatives 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."

It should be noted the Bill of Rights that Madison introduced on June 8th were not numbered amendments intended to be added at the end of the Constitution. The Rights instead were to be inserted into the existing Constitution. The sentence that later became the Second Amendment was to be inserted in the First Article, Section Nine, between clauses 3 and 4, following the prohibition on suspension of habeas corpus, bills of attainder, and ex post facto laws, all individual civil rights (or alternatively, these provisions might all be interpreted as limits on congressional power, a view that has been advanced by supporters of the collective rights view of the Amendment, see Jack Rakove, "The Highest State of Originalism," Chicago-Kent Symposium.) (Annals of Congress, 1st Cong., 1sesss., 451) (Rutland, rev.ed., 196-202)

Debate in the House on the remainder of the 8th focused again on whether or not a Bill of Rights was appropriate, and the matter was held for a later time. On July 21st, however, Madison 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 (Journal July 21), and the Bill of Rights entered committee for review. No official records were kept of the proceedings of the committee, but on July 28th the committee returned to the House a reworded version of the Second Amendment (AoC pp. 669). On August 17th, that version was read into the Journal (AoC pp. 778):

"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 itself was debated and modified during sessions of the House on August 17th and August 20th.[5] 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 revolution. These concerns were addressed by modifying the final clause, and on August 24th 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 25th, 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."

On September 4th, the Senate voted to change significantly 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 9th. A proposal to insert the words "For the common defence," next to the words "Bear Arms" was defeated [6]. 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 21st to accept the changes made by the Senate, however 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." (HJ pp. 305):

It is this version that was transmitted to the states for ratification.

Historical Sources

The House Journal[7] and Senate Journal[8] are the official records kept by the legislature at the time debate was taking place. Because these journals are often sparse, they are frequently augmented by the Annals of Congress[9] (AoC) which were compiled forty to seventy years after the debates, using the best sources which could then be found, primarily newspaper reports.

The Debates in the Several State Conventions, on the Adoption of the Federal Constitution [10] by Jonathan Elliot (1836), contains additional information concerning the desire by Antifederalists to amend the Constitution, and the intent of the amendments that were negotiated and adopted attempting to answer their concerns.

Commas in the Second Amendment

There is some question as to whether the Second Amendment contains a comma after the word "militia", and a parallel debate as to whether the presence or lack of this comma influences the overall meaning of the Amendment.

Both the U.S. Senate Journal and the Annals of Congress show the final version of the Second Amendment as not containing this comma. On September 25, 1789, the completed Bill of Rights was written to parchment by a House scribe. In this version, now held by the National Archives, the comma was inserted. All other surviving original texts of the Bill of Rights, including the copies sent to the states for ratification, do not contain the comma.

Comparing versions of this and other Amendments as officially enrolled in the journals, as they were progressively modified and sent between chambers, shows that scribes of the era took liberty with the capitalization and punctuation of text they wrote.

The U.S. Government is inconsistent in the use of the comma in publications. The Statutes at Large (the official permanent record of all laws enacted) does not include the comma [11]. The Government Printing Office (GPO) has produced versions both with and without this comma.

Ratification of the Second Amendment

On December 15, 1791, the Virginia legislature ratified the Bill of Rights, rounding out the requisite three-fourths of the states needed to make the Amendments part of the Constitution.

---

Early Commentary on the Second Amendment

The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker, also known as The American Blackstone.[12] He authored a set of law books in 1803 that annotated Sir William Blackstone's Commentaries on the Laws of England (discussed at length later, under Colonial Rights), for American use, and that formed, in many cases, the sole legal written works read by many early American attorneys.[13] Tucker, the leading Jeffersonian constitutional theorist, was widely read, even by those, who rejected his interpretation of the Constitution.

On the Second Amendment, he wrote, in two footnotes: "[fn40] 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." "[fn41] 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. The commentator himself informs us, Vol. II, p. 412, "that the prevention of popular insurrections and resistence 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."[14] Blackstone discussed the right of individual self defense, in a separate section of his treatise on the common law of crimes. Tucker's annotations for that latter section made no mention of the Second Amendment, but cited the standard works of English jurists such as Hawkins. For two radically different views of Blackstone on the Second Amendment, see Heymen, Chicago-Kent and Volokh, Senate Testimony.

Further, Tucker writes of the English Bill of Rights, that, "The bill of rights, 1 W. and M, says Mr. Blackstone, (Vol. 1 p. 143,) secures to the subjects of England the right of having arms for their defence, suitable to their condition and degree. In the construction of these game laws it seems to be held, that no person who is not qualified according to law to kill game, hath any right to keep a gun in his house. Now, as no person, (except the game-keeper of a lord or lady of a manor) is admitted to be qualified to kill game, unless he has 100l. per annum, &c. it follows that no others can keep a gun for their defence; so that the whole nation are completely disarmed, and left at the mercy of the government, under the pretext of preserving the breed of hares and partridges, for the exclusive use of the independent country gentlemen. In America we may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty." [15]

Tucker also wrote of the British, "True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty."[16]

Another one of the most important early commentaries on the Second Amendment was the 1833 book Commentaries on the U.S. Constitution authored by Associate Justice of the Supreme Court Joseph Story. Both sides in the modern gun debate have excerpted parts of this commentary to support their particular points of view:

§ 1890 [17] of the book describes the Second Amendment:

"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."

§1202 [18] of the book describes Power over the Militia and analyzes the origins of the Second Amendment. Justice Story clearly viewed the original meaning of the Amendment as a concession to moderate Anti-Federalists who feared federal control over the militia:

"It is difficult fully to comprehend the influence of such objections, urged with much apparent sincerity and earnestness at such an eventful period. The answers then given seem to have been in their structure and reasoning satisfactory and conclusive. But the amendments proposed to the constitution (some of which have been since adopted) show, that the objections were extensively felt, and sedulously cherished. The power of congress over the militia (it was urged) was limited, and concurrent with that of the states. The right of governing them was confined to the single case of their being in the actual service of the United States, in some of the cases pointed out in the constitution. It was then, and then only, that they could be subjected by the general government to martial law. If congress did not choose to arm, organize, or discipline the militia, there would be an inherent right in the states to do it. All, that the constitution intended, was, to give a power to congress to ensure uniformity, and thereby efficiency. But, if congress refused, or neglected to perform the duty, the states had a perfect concurrent right, and might act upon it to the utmost extent of sovereignty. As little pretence was there to say, that congress possessed the exclusive power to suppress insurrections and repel invasions. Their power was merely competent to reach these objects; but did not, and could not, in regard to the militia, supersede the ordinary rights of the states. It was, indeed, made a duty of congress to provide for such cases; but this did not exclude the co-operation of the states. The idea of congress inflicting severe and ignominious punishments upon the militia in times of peace was absurd. It presupposed, that the representatives had an interest, and would intentionally take measures to oppress them, and alienate their affections. The appointment of the officers of the militia was exclusively in the states; and how could it be presumed, that such men would ever consent to the destruction of the rights or privileges of their fellow-citizens. The power to discipline and train the militia, except when in the actual service of the United States, was also exclusively vested in the states; and under such circumstances, it was secure against any serious abuses. It was added, that any project of disciplining the whole militia of the United States would be so utterly impracticable and mischievous, that it would probably never be attempted. The most, that could be done, would be to organize and discipline select corps; and these for all general purposes, either of the states, or of the Union, would be found to combine all, that was useful or desirable in militia services."

Historical interpretations of the Second Amendment

During its first ten or 12 decades, the intended meaning of the Second Amendment, and how the Amendment applied, drew less interest than it does in modern times. The vast majority of regulation was done by states and the first case law on the right to bear arms dealt with state provisions, not the Second Amendment. The notable exception to this general rule was Houston v. Moore, (1820) [19], where the U.S. Supreme Court mentioned the Second Amendment in an aside, but Justice Story "misidentified" it as the 5th Amendment. The Second Amendment would not attract serious judicial attention again until the Reconstruction era case of Cruikshank. (Several public officials, including James Madison and Supreme Court Justice Joseph Story, retained the confusing practice of referring to each of the ten amendments in the Bill of Rights by the enumeration found in the first draft; Had Justice Story followed this practice, he would have described the Second Amendment as the Fourth, but in this case he simply stated the number wrong.)

In Dred Scott v. Sandford, 60 U.S. 393 (1856) (the "Dred Scott Decision") [20], one of the points of the Supreme Court's finding was the objection that: "It would give to persons of the negro race, who were recognised as citizens in any one State of the Union . . .the full liberty . . .to keep and carry arms wherever they went." This indicates that the right to carry arms was considered to be universal for citizens of the United States, though it is not clear that to 'carry arms' and to 'bear arms' was considered synonymous. However, it is clear by this wording that "to keep arms" was considered distinctly different than to "carry arms", and that both actions were considered to be protected for "citizens in any one State of the Union". Of course, these comments were made in passing, non-binding, and hence their legal significance is questionable.

Modern interpretations of the Second Amendment

During the last two decades, the intended meaning of the Second Amendment, and how the Amendment applies in the twenty-first century, is one of the most frequently debated topics in American politics. The reason may stem in part from the perceived encroachments on, or enhancements of, individual rights to arms, amidst the increased prominence of gun control positions in modern politics.

The modern Second Amendment debate centers on questions such as:

• Who does the Amendment mean by "the People"?
• Why does the Amendment protect the right to 'keep and bear arms', and not protect just the right to 'bear arms'.
• Does "bear arms" or "keep and bear arms" mean the same now as it did in 1789?
• Is there significance that the Amendment is constructed of two clauses?
• Is there significance that the phrase "defense of himself/themselves and the State" was included in some State Constitutions at the time but not included in the Federal Second Amendment?

In addition, the debate additionally often involves discussion focused on more precise details around the word "militia" from the first clause portion of the Second Amendment, such as:

• Who or what does the Amendment mean by the "militia"?
• What relationship does "militia" today have with "militia" in 1789?
• What is meant by "well regulated", relative to "militia"?
• Does the mention of "militia" in the Second Amendment mean that maintaining viable militia is the 'obvious purpose' of the Second Amendment?

It also often involves topics on differences in historical meanings and thoughts such as:

• What does "shall not be infringed" mean?

It also expands to include discussions on the impact among states, such as:

• Does the Amendment prohibit States from regulating arms?
• Does the Amendment permit some States to deviate from interpretations of the Amendment as taken by other States.

The debate is not simple. The Second Amendment contains archaic vocabulary and grammar. In addition there is the possibility that the Second Amendment was drafted deliberately with ambiguous meaning as part of the process of negotiation and compromise necessary in Congress in its passage. The following provides more background and insight into the central questions previously identified.

"The People"

As to the meaning of "the People", a Supreme Court definition exists. As stated by the Supreme Court in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), [21]

""the people" seems to be a term of art used in select parts of the Constitution and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."

Steven A. Silver, writing for the Free Republic, claims that this class of persons consists solely of American Citizens. [22]

Of course, as Richard Primus and Jack Rakove have noted, the right of the people to assemble, was generally understood not to refer to individuals in isolation. The Pennsylvania Declaration of Rights affirmed a right of the people "to regulate their internal police," another formulation in which this right was used in a more collective sense.

However, as noted earlier by the Supreme Court in 1886, the Second Amendment is not restricted to American Citizens. In Presser v. Illinois (1886) before the high court, Presser made an attempt to link the Second Amendment as being a privilege or immunity of citizens of the United States. This attempt was found lacking, as the Supreme Court stated

" The plaintiff in error [Presser] next insists that the sections of the Military Code of Illinois under which he was indicted are an invasion of that clause of the first section of the fourteenth amendment to the constitution of the United States which declares: 'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.' "

Additionally, the Supreme Court stated in Presser v. Illinois,

The constitution and laws of the United States will be searched in vain for any support to the view that these [Second Amendment] rights are privileges and immunities of citizens of the United States..."

Hence, because the Second Amendment did not apply solely to citizens of the United States, "the people" mentioned in the Second Amendment are not necessarily American citizens, but are instead, simply "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community".

"To keep and bear arms"

Relative to the "bear arms" meanings, an extensive study found " ...that the overwhelming preponderance of usage of 300 examples of the "bear arms" expression in public discourse in early America was in an unambiguous, explicitly military context in a figurative (and euphemistic) sense to stand for military service"[23] Further, the Oxford English Dictionary on Historical Principles declares that a meaning of "to bear arms" is a figurative usage meaning "to serve as a soldier, do military service, fight". This study casts doubt on the modern definition of 'bear arms' to mean 'carry firearms'.

Yet, in a 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, and well known gun rights proponent, counters this belief by stating

"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." [24]

"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."[25]

For a judicial interpretation, the United States Court of Appeals for the Fifth Circuit stated in 2001 that

"there are numerous instances of the phrase "bear arms" being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the "people" [or "citizen" or "citizens"] "to bear arms in defense of themselves [or "himself"] and the state," or equivalent words, thus indisputably reflecting that under common usage "bear arms" was in no sense restricted to bearing arms in military service."[26]

A number of scholars have challenged the 5th Circuit's history.[27] Several of the earliest state constitutions used variants of the Pennsylvania (September 28, 1776) model, affirming a right to "bear arms in defense of themselves and the state." Thus, North Carolina's declaration of rights (December 18, 1776) stated that "The people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."[28] Less than two decades later (1796), Tennessee affirmed that "The freemen of this State have a right to keep and bear arms for their common defence."[29]

According to these same scholars, a more individualistic formulation emerged only during the Jacksonian era.[30] Alabama's constitution of 1819 declared that "that every citizen has a right to bear arms in defence of himself and the state." In Buzzard v. State (1842), the Arkansas high court took notice of these two different constitutional models of arms bearing. More recently, Stanford Law professor Robert Weissberg has noted that the shift in the language of arms bearing provisions challenges the historical accounts put forth by supporters of the collective rights and individual rights accounts. [University of Chicago Law Review (2004)]

Two models

Glenn Reynolds, Second Amendment scholar and individual gun rights proponent, has categorized the modern debate regarding the Second Amendment into two models[31]:

• Standard Model (or Individual Right Model): The Second Amendment protects the rights of an individual to own arms. The "militia" of the Second Amendment consists of the armed citizenry at large, but in no way is the individual right dependent on actual service in militia duty.
• States' Right Model (or Collective Right Model): The Second Amendment protects only the historical right of States to form well regulated militias. Today's equivalent of a "well-regulated militia" is the National Guard which has more limited membership than its early counterpart and depends on government-supplied, not privately-owned, arms. Gun control laws and arms regulations in general have no effect on the arming of today's militia since those laws invariably do not apply to arms used in the context of military service. Therefore, such laws raise no serious Second Amendment issues.

A number of other theories exist as alternatives to these two models. Recent court decisions have characterized a debate that no longer fits a simple dichotomy. Among the views in this broad middle are the limited individual right, the expansive collective right, and the civic rights model. These models attract considerable attention among scholars and will likely figure in the next round of cases.

For a review of modern interpretations of the Second Amendment, and the debate surrounding them today, see Gun politics in the United States.

Early commentary about the Second Amendment by state courts

The Second Amendment of the United States Constitution is a Federal provision. Each of the Fifty States also has its own State Constitution addressing their specific state. Forty-four States have chosen to embody explicitly a right to arms into their State's Constitution[32], and six States have chosen explicitly not to do so.

Of the forty-four states that have chosen to embody explicitly a right to arms into their State's Constitution, approximately thirty-one have explicitly chosen to include the right to arms for 'individual right', 'defense of self', 'defense of home' or similarly worded reasons. Approximately thirteen States, as with the Federal Constitution, did not choose to include explicitly 'individual', 'self' or 'home' wording associated with a right to bear arms for their specific state.

Of the forty-four states that have chosen to embody explicitly a right to arms into their State's Constitution, approximately twenty-eight have explicitly chosen to include the right to arms for 'security of a free state', 'defense of state', 'common defense' or similarly worded reasons, as with the Federal Constitution. Approximately sixteen States did not choose to include explicitly 'free state', 'defense of state' or 'common defense' wording for their specific state.

It remains a matter of dispute whether the decision to include explicitly these types of wording, or not, in these state constitutions, has any relevance on whether implicit 'individual' rights exist, or whether such rights (if any) are implictly protected by the States' Constitutions, or by the Federal Constitution's Second Amendment.

Regarding the State Constitutional rights to bear arms, the State courts have addressed the meaning of their specific state rights under their specific state's constitution. Two different models have emerged in state jurisprudence.

In Bliss v. Commonwealth (1822, KY) [33], which evaluated the right to bear arms in defence of themselves and the state pursuant to Section 28 of the Second Constitution of Kentucky (1799), the right to bear arms in defence of themselves and the state was interpreted as an individual right, for the case of a concealed sword cane. As stated by the Kentucky High Court, "But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution."[34] The "constitution" mentioned in this quote refers to Kentucky's Constitution. [35] As mentioned in this quotation "as it existed at the adoption of the constitution" would have had to have been the pre-existing right in force when Kentucky's First Constitution was drawn in 1799. (Note: The Second Amendment had been in effect only since December 15, 1791 and was still a relatively new concept at the time of the drawing of Kentucky's Constitution in 1799.)

The case prompted outrage in the Kentucky House, all the while recognizing that Section 23 of the Second Constitution of Kentucky (1799), which stated "That the right of the citizens to bear arms in defence of themselves and the State shall not be questioned." (Commonwealth of KY Const. of 1799, art. X, § 23) did guarantee individuals the right to bear arms in defence of themselves and the state.

The result was that the law of the Commonwealth of Kentucky was eventually over-turned by constitutional amendment with Section 26 in Kentucky's Third Constitution (1850), banning the future carrying of concealed weapons, while still asserting that the bearing of arms in defence of themselves and the state was an individual and collective right in the Commonwealth of Kentucky. This recognition, of the individual and collective right to bear arms in defence of themselves and the state, has remained to the present day in the Commonwealth of Kentucky's Fourth Constitution enacted in 1891, in Section 1, Article 7, that guarantees "The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons." As noted in the Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in the 1980’s, vol. 10, no. 1, 1982, p. 155, "The first state court decision resulting from the "right to bear arms" issue was Bliss v. Commonwealth. The court held that "the right of citizens to bear arms in defense of themselves and the State must be preserved entire, . . ." This holding was unique because it stated that the right to bear arms is absolute and unqualified. In contrast to this, all states currently regulate the possession and use of firearms to some extent."[36] It is worth noting, however, that two states, Alaska and Vermont, do not require a permit or license even to this day for carrying a concealed weapon, following Kentucky's original position.

In contrast, in State v. Buzzard (1842, Ark), the Arkansas high court adopted a militia-based reading of the right to bear arms under state law, and upheld the 21st section of the second article of the Arkansas Constitution that declared, "that the free white men of this State shall have a right to keep and bear arms for their common defense"[37][38], while rejecting a challenge to a statute prohibiting the carrying of concealed weapons. Buzzard had carried a concealed weapon and stood "indicted by virtue of the authority of the 13th section of an act of the Legislature prohibiting any person wearing a pistol, dirk, large knife or sword-cane concealed as a weapon, unless upon a journey, under the penalties of fine and imprisonment." The Arkanasa high court further declared "That the words "a well regulated militia being necessary for the security of a free State," and the words "common defense" clearly show the true intent and meaning of these Constitutions [i.e., Ark. and U.S.] and prove that it is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then the people, neither individually nor collectively, have the right to keep and bear arms." 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.

Modern gun rights advocates have disputed this history, claiming that the individual right was the orthodox view of the right to bear arms under state law in the 19th century, citing the previously-mentioned Bliss v. Commonwealth, and even State v. Buzzard, which recognized the right of an individual to carry a weapon concealed, when upon a journey, in an affirmative defense. Since 1873, some legal and constitutional historians have sided with Bishop and not the individual rights model; see the symposium in Chicago Kent Law Review 76 and the Fordham Law Review vol 73. Other legal and constitutional historians have sided with the Individual Rights Model; see the testimony of Eugene Volokh, [39].

In 1905, the Kansas Supreme Court in Salina v. Blaksley [40] made the first collective right judicial interpretation, despite the U.S. Supreme Court ruling in Presser v. Illinois which some people view as having ruled otherwise in 1886. The Kansas high court declared:

"That the provision in question applies only to the right to

bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal Constitution, which says: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be

infringed."

The modern formulation of the debate over the Second Amendment as an individual/collective rights dichotomy entered Federal law and scholarship when it was employed in a widely-cited Harvard Law Review article in 1915 by the Chief Justice of the Maine Supreme Court, Lucilius A. Emery (in The Constitutional Right to Keep and Bear Arms, 28 Harv. L. Rev. 473-477.) He noted that "the right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against the common enemy, foreign or domestic."[41]

The federal government and the Second Amendment

Executive branch

• Dec. 3, 1901, President Theodore Roosevelt called for a reform of the militia system, declaring to Congress that:

"our militia law is obsolete and worthless. The organization and armament of the National Guard...should be made identical with those provided for the regular forces. The obligations and duties of the Guard in time of war should be carefully defined, and a system established by law under which the method of procedure of raising volunteer forces should be prescribed in advance. It is utterly impossible in the excitement and haste of impending war to do this satisfactorily if the arrangements have not been made long beforehand."

In response, Congress passed the Militia Act of 1903, which, despite its name, essentially did away with the type of militia that had been common at the time of the Revolution. The fact was that modern warfare needed trained men with modern weaponry, and the law provided for these in a regular army as well as the National Guard, founded in 1903. Although the Guard is the descendant in many ways of the old unorganized militia, it is a far more disciplined and trained entity, since their program is now held to high standards set by the regular army. The members get their weapons from the national government, and do not own them individually.

• Following the assassination attempt on President-elect Franklin Delano Roosevelt in 1933, President Roosevelt advocated and Congress passed the National Firearms Act of 1934. The general mood at the time of the assassination attempt was that a deranged man had committed the act. [42]

• An individual right to bear arms was occasionally addressed, for instance by President Ulysses S. Grant, who mentioned in an address to Congress on April 19, 1872[43] that "to deprive colored citizens of the right to bear arms" was among the goals of the Ku Klux Klan. Ulysses Grant later served as president of the National Rifle Association in 1883.

• Recent presidential administrations have agreed that the Second Amendment, in the words of President Ronald Reagan's Solicitor General, Charles Fried:

"guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to . . . a well-regulated militia.'"

This point of view may indicate that the people have a right, in the context of a miliita, to bear many of the military style weapons currently banned in the United States.

• President George H.W. Bush's Solicitor General, Kenneth Starr, concluded that

"possession of [a] firearm did not fall within the rights guaranteed by the Second Amendment."

• In 2001, the Justice Department under Attorney General John Ashcroft issued a memorandum opinion stating that the Second Amendment protects an individual right to bear arms. Some critics of John Ashcroft have noted that his objectivity is questionable, considering his lifelong membership of the National Rifle Association, well known as individual gun right proponents, though he was not acting in an official capacity of the NRA at the time. The opinion stated:

"the Second Amendment secures a personal right of individuals, not a collective right that may be invoked only by a State or a quasi-collective right restricted to those persons who serve in organized militia units." [44]

Legislative branch

• Militia Act of 1903 Created the United States National Guard by federalizing a portion of the State militias which were converted into regular troops kept in reserve for the United States Army.

• In 1933, Congress reorganized the National Guard under its power to "raise and support armies" in order to "create the National Guard of the United States as a component of the Army". This was done to avoid the constitutional limits on deployment of the militia which can be called forth only "to execute the laws of the Union, suppress insurrections and repel invasions." "U.S. House. Committee on Military Affairs, National Bill: Report [to Accompany H.R. 5645] Pages 2-5. May 16,1933. 73d Cong., 1st sess. Washington: U.S. GPO, 1933. H.Rpt. 73-141."

• 1934 National Firearms Act Ostensibly, this act was brought about by the lawlessness and rise of gangster culture during prohibition, such as the St. Valentine's Day massacre on February 14, 1929. President Franklin D. Roosevelt hoped this act would eliminate automatic-fire weapons like machine guns from America's streets. Other firearms, such as short-barreled shotguns and rifles, gun accessories like silencers, and other "gadget-type" firearms hidden in canes and such were also targeted. In addition, the creation of a $200 tax, for sawed-off shotguns typically worth at most $10, which applied each and every time the firearm changed hands, would enhance tax revenue for the Federal Government. Initially, the act included handguns, but the complaints of women who could more easily handle handguns than long guns reversed this additional position, and handguns were not included in the National Firearms Act.

However, prohibition was repealed by the Twenty-First Amendment on December 5 1933, and the gangster era largely ended with prohibition. (After prohibition ended, the illegal distributors of beer and whiskey, who had been some of the largest buyers of automatic weapons and sawed-off shotguns for illegal purposes, largely changed to other lines of work where automatic weapons were not needed. Legal breweries and distributors had no further need for automatic weapons for increasing market share.) According to some authors such as John Ross in his novel Unintended Consequences, the 1934 National Firearms Act was brought about instead to provide jobs during the Great Depression for Government agents who previously had been enforcing prohibition laws, and who otherwise would have been out of work, and unable to find new jobs.

Likewise, the creation of a $200 tax for an item worth at most $10 generated almost no revenue. During the first few years after the National Firearms Act was created, less than two dozen sawed off shotguns were registered and had the tax paid. As a revenue enhancing measure, the Act produced essentially no revenue, while providing considerable work for Government agents.

• 1938 Federal Firearms Act Congress aimed this law at those involved in selling and shipping firearms through interstate or foreign commerce channels.

• 1964 18 U.S.C. § 1715 "Pistols, revolvers, and other firearms capable of being concealed on the person" immediately became nonmailable, except in limited circumstances, in response to highly-public and televised handgun assassinations, such as of Lee Harvey Oswald in 1963. Although critics at the time deemed this an infringement of the Second Amendment right of the People to keep and bear arms, the courts ruled that this law did not preclude the People to keep and bear arms; it regulated only the purchase of concealable arms via US Postal mail.

• 1964 49 U.S.C. § 1472 Carrying weapons aboard aircraft, even openly, became prohibited. The Second Amendment right of the People to bear arms ended at the door to the plane.

• 1968 Gun Control Act (GCA68) The assassination of John F. Kennedy, who was killed by a mail-order rifle that belonged to Lee Harvey Oswald, inspired this major revision to federal gun laws. The subsequent assassinations of Martin Luther King and presidential candidate Robert F. Kennedy fueled its quick passage. License requirements were expanded to include more dealers, and more detailed record keeping was expected of them; handgun sales over state lines were restricted; the list of persons dealers could not sell to grew to include those convicted of felonies (with some exceptions), those found mentally incompetent, drug users, and more. The act also defined persons who were banned from possessing firearms.

The key element of this bill outlawed mail order sales of rifles and shotguns; up until this law, mail order consumers had only to sign a statement that they were over 21 years of age for a handgun to be shipped by common carrier (18 for rifle or shotgun), as the earlier 1964 law had already prohibited most handguns from the US Postal Mail; it also detailed more persons who were banned from possessing certain guns, including drug users, and further restricted shotgun and rifles sales.

• 1982 Senate Judiciary Subcommittee Hearing on the Right to Bear Arms In 1982, a bipartisan subcommittee (consisting of 3 Republicans and 2 Democrats) of the United States Senate investigated the Second Amendment and reported upon their findings.

The report was written by noted Second Amendment legal scholars Stephen Halbrook[45] and David Hardy[46] who are well known individual gun right advocates. This report included the following opinions:

"The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner."[47]

Concluded that seventy-five percent of BATF prosecutions were "constitutionally improper", especially on Second Amendment issues. [48]

• 1986 McClure-Volkmer Act This act addressed those BATF abuses noted in the 1982 Senate Judiciary Subcommittee opinions. It re-opened interstate sales of long guns on a limited basis, allowed ammunition shipments through the US Postal Service (a repeal of part of GCA68), ended record keeping on ammunition sales, except for armor piercing, permitted travel between states supportive of Second Amendment rights even through those areas less supportive of these rights, and addressed several other issues that had effectively restricted the Second Amendment rights of the People.

• 1993 Brady Handgun Violence Prevention Act This act initially provided a five-day waiting period for handgun purchases and expired on November 30, 1998. It was replaced by an NRA-sanctioned, mandatory, computerized criminal background checking system to be conducted prior to any firearm purchase from a federally-licensed firearms dealer.

Judicial branch

Main article: Firearm case law

The question of the US Supreme Court rulings, or lack thereof, on the meaning of the Second Amendment has left supporters on all sides of the debate open to interpret the actions of the court as they see fit.

Current Judicial Precedence

At present, with certain exceptions and disputes, the courts generally find it acceptable under the Second Amendment for federal, state and local juridictions to:

• Regulate or not regulate militias
• Enact, or not enact, child-safety lock legislation
• Ban or permit handgun possession
• Regulate or not regulate handgun possession
• Prohibit or allow the carrying of concealed firearms and/or weapons
• Regulate or not regulate the carrying of concealed firearms and/or weapons
• Ban or permit assault weapons
• Prohibit posession of firearms by persons who have been:

1. Involuntarily committed to a mental institution
2. Convicted of a felony
3. Convicted of a misdemeanor crime of domestic violence [49][50] or not, as in one jurisdiction the Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence law was ruled a violation of the 2nd and 5th Amendments and was ruled unconstitutional for two years [51] though that decision was reversed on appeal[52] and the Supreme Court has not granted certiorari
4. Convicted of a misdemeanor crime of domestic violence and in the military, and being unable as a soldier in uniform to handle any weapons, although per Department of Defense policy, crew-served weapons such as tanks, missiles, and aircraft are exempt from the Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence law and may be handled or used by a soldier previously-convicted of a crime of domestic violence [53] despite the same individual not being allowed to handle or use a pistol. For additional information see Department of Justice publication CRM 1117.
5. Dishonorably discharged from the military

• Require the licensing of firearms dealers
• Ban or regulate bombs, artillery, and explosives
• Require or not require the registration of firearms
• Ban or permit the possession of firearms and ammunition on county-owned property
• Ban or not ban the possession of weapons of any kind on Federal property (Although weapons are generally banned on most Federal property, National Parks in some parts of Alaska encourage hikers to carry firearms for protection against wild animals.[54],[55])
• Prohibit firearm possession anywhere in licensed liquor establishments, or to prohibit firearm possessions only in the bar areas of some businesses, or to permit the carry of concealed weapons in any facility other than Federal facilities
• Require or not require handgun owner identification cards
• Require or not require the presentation of identification prior to buying ammunition
• Ban or permit ballistic fingerprinting databases

These precedences are variable and are generally not settled[56], and are mostly permitted to be ruled according to local law, as the Federal District courts have not ruled unformly either for and against various forms of several of these provisions, and the Supreme Court has not yet ruled uniformly. Although the courts permit laws and regulations as itemized above, that is not meant to imply that all jurisdictions have these laws, as they do not. For example, most jurisdictions do not require handgun owner identification cards, nor do they require the presentation of any identification to buy ammunition.

Second Amendment Theory

In 1915, Supreme Court Chief Justice Lucilius A. Emery from Maine wrote an article in the Harvard Law Review on the Right to Keep and Bear Arms[57], and argued that "The guaranty does not appear to have been of a common-law right" [and] "I submit that the right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against the common enemy, foreign or domestic."

According to 1998 research and testimony [58] by Eugene Volokh, a well known individual gun rights proponent; the Supreme Court has ruled in passing in 22 out of 27 times while quoting or paraphrasing only "the right of the people to keep and bear arms" language of the Second Amendment without ever mentioning the Militia Clause, and this treatment has evidenced clear support of the Second Amendment as protecting an individual right and not as protecting a collective right.][59] However, Akhil Reed Amar, a leading scholar of constitutional law, writes in the left-leaning journal The New Republic that the word people is also used in a collective sense in the US Constitution: "The amendment speaks of a right of 'the people' collectively rather than a right of 'persons' individually.' And it uses a distinctly military phrase: 'bear arms.'" [60]

According to Volokh, the federal courts of appeal have often subscribed to the states' right approach, instead of to the individual right approach.[61] They also have not agreed upon any single interpretation of the Second Amendment. The Fifth and Ninth circuits have shown different judicial thinking, tending to favor the individual and collective rights models respectively. Most circuits have followed the Ninth's reading, [http://www.lcav.org/content/secondamendment.asp Despite these inconsistencies among the lower courts, the Supreme Court has not granted certiorari to any recent case hinging on the Second Amendment.

On the other hand, it also has been said by the Brady Center, well known advocates for gun control, that: "No federal court in history has overturned a gun law on Second Amendment grounds."[62]. Also, "... the meaning of the Second Amendment has been settled since the U.S. Supreme Court ruling in U.S. v. Miller, 307 U.S. 174 (1939). In that case, the Court ruled that the "obvious purpose" of the Second Amendment was to "assure the continuation and render possible the effectiveness" of the state militia.

Since Miller, the Supreme Court has addressed the Second Amendment twice more, upholding New Jersey's strict gun control law in 1969 and upholding the federal law banning felons from possessing guns in 1980. Furthermore, twice - in 1965 and 1990 - the Supreme Court has held that the term "well-regulated militia" refers to the National Guard."[63]

These pro-collective gun rights positions are disputed by some pro-individual gun rights people, as discussed below:

The 1969 case in question was Burton v. Sills, 394 U.S. 812 (1969), [64]Sills being the attorney general for New Jersey, and Burton being the individual charged with violating New Jersey's gun control law. The essential issue at question was whether New Jersey's strict gun control law violated Burton's Second Amendment right. The appeal by Burton was dismissed "for want of a substantial federal question" by the US Supreme Court, thereby letting stand the lower court decisions, and leaving in place New Jersey's strict gun control laws. The key factor was that Burton could apply for a New Jersey gun permit, and hence his Second Amendment right was not infringed, only regulated. The Supreme Court affirmed with Burton v. Sills, 53 N.J. 86 (1968)[65] that:

"...Congress, though admittedly governed by the second amendment, may regulate interstate firearms so long as the regulation does not impair the maintenance of the active, organized militias of the states."

The 1965 decision relative to the definition of Militia arises in Maryland v. United States, 381 U.S. 41 (1965). In this case, an airliner collided with a National Guard jet, and a need for a definition of National Guard arose. In this ruling, the U.S. Supreme Court wrote,

"The National Guard is the modern Militia reserved to the States by Art. I. 8, cl. 15, 16, of the Constitution." [66]

Clauses 15 and 16 of the Constitution are:

• To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
• 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;

Clearly, the National Guard is an example of the Militia of Clauses 15 and 16. However, there remains an open question whether the modern National Guard was the sole version of the well-regulated Militia described by the Second Amendment. Maryland v. United States does state that "The National Guard is the modern Militia". But pro-individual gun right advocates argue that an unorganized militia would be an equally "well-regulated militia". Pro-collective gun right advocates question this argument in light of the "...active, organized militias..." wording of Burton v. Sills.

Further clarification was provided in 1990, in Perpich v. Department of Defense, 496 U.S. 334 (1990). In this case, the U.S. Supreme Court ruled that, "The Dick Act divided the class of able-bodied male citizens between 18 and 45 years of age into an "organized militia" to be known as the National Guard of the several States, and the remainder of which was then described as the "reserve militia," and which later statutes have termed the "unorganized militia." ... "In 1908, however, the statute was amended to provide [496 U.S. 334, 343] expressly that the Organized Militia should be available for service "either within or without the territory of the United States." Hence, the National Guard is not the same as the unorganized militia. [67]

The primary Supreme Court cases that address Second Amendment issues are U.S. v. Miller [1939], U.S. v. Cruikshank [1875], and Presser v. Illinois [1886]. The rulings for all three of these cases found that individual use of arms could be restricted. Yet, elements of these cases have been cited by supporters of both sides of the firearms debate to support their positions.

Because Americans really like killing each other, the Second Amendment is a useful tool for saving terrorists time and money.

Important Case Law

United States v. Miller

US v. Miller is the Supreme Court's fullest discussion of the Second Amendment. In this case, the court rejected a Second Amendment challenge to a federal law prohibiting the interstate transportation of sawed-off shotguns "in the absence of any evidence" as neither the appellant nor the appellant's attorney were present at the proceedings, while holding that the “obvious purpose” of the Amendment was to “assure the continuation and render possible the effectiveness” of the state militia and it “must be interpreted and applied with that end in view.”

Since Miller, the meaning of the Second Amendment has been addressed in more than 200 federal and state appellate cases. Those cases have consistently rejected Second Amendment challenges to firearms laws, with one exception[68] since overturned on appeal. Though the U.S Supreme Court has not directly ruled on the Second Amendment since 1939, by its refusal to hear appeals, its actions have been consistent with Miller. The court has consistently refused to review lower court decisions rejecting Second Amendment challenges to firearms laws, despite numerous opportunities to do so.

Jack Miller and Frank Layton were indicted for transporting an unregistered short-barreled (sawed-off) shotgun across state lines, in violation of the National Firearms Act of 1934, as the result of a Federal raid searching for illegal whiskey that found only sugar. Layton made a plea bargain, but Miller moved to dismiss the case on the grounds that the National Firearms Act violated his Second Amendment right to bear arms. The District Court agreed with Miller and quashed his indictment, and this decision was in turn appealed to the Supreme Court, which reversed the ruling of the lower court.

After reciting the original provisions of the Constitution dealing with the militia, the Supreme Court observed that "[w]ith obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted with that end in view." The significance of the militia, the Court continued, was that it consisted of "civilians primarily, soldiers on occasion." It was upon this force that the States could rely for defense and securing of the laws, on a force that "comprised all males physically capable of acting in concert for the common defense," who, "when called for service . . . were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." Therefore, "[i]n the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the 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."

The specific wording "in the absence of any evidence" is essential to an understanding of the procedural nature and scope of the ruling. Neither Miller, his co-defendant Frank Layton, nor their attorney, appeared before the Supreme Court; the Justice Department attorneys presented their case without any opposition from the appellants. Lacking evidence, the court could not make any emphatic statements in their ruling. The court could not say that the weapon was protected by the Second Amendment, because no case was presented in support of that position.[69]

U.S. v. Miller was remanded to the lower court for further consideration. However, as Miller was deceased by this time, no further action was taken; the question of whether a short-barreled shotgun has actual military utility, and thus whether a punitive tax on such guns violates the Second Amendment, was unresolved.

Supporters of the standard model read Miller to support the right of individuals privately to possess and bear their own firearms, while supporters of the States' right model read Miller as endorsing the view that the Second Amendment exists specifically to "assure the continuation and render possible the effectiveness" of the militia.

United States v. Cruikshank

In this case, the high court made the following statement: "The right [claimed in this case] is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States."

This high court statement is significant for two reasons: First, because "[t]he Second Amendment...has no other effect than to restrict the powers of the national government...", the States are allowed to regulate arms. It also means that the right of bearing arms for a lawful purpose is a pre-existing right, pre-dating even the Constitution, and that there is clear recognition of this pre-existing right by the Second Amendment in terms of the language that it uses in "the right of the People to keep and bear Arms, shall not be infringed." This means that the right of the People to keep and bear Arms is not a right granted by the Second Amendment, but an unenumerated right, protected by the Ninth Amendment, which states simply "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Second Amendment merely prevents infringing this pre-existing right. The right to keep and bear arms, being such an unenumerated right, of course clearly is not a right granted by the Constitution.

The Fourteenth Amendment forbids the States to violate "the privileges or immunities of citizens of the United States". The court in Cruikshank argues that because the right to bear arms belongs to all humanity, regardless of whether the Bill of Rights had ever been written, because it is a pre-existing right, it is not a "privilege ... of citizens of the United States" and therefore is not protected by the Fourteenth Amendment. Such an argument has since been contradicted many times by decisions holding that other clauses of the Bill of Rights, which also merely forbid Congress to violate certain rights rather than creating them, apply to all levels of government.

Presser v. Illinois

Presser v. Illinois, 116 U.S. 252 (1886), is one of only two post-Civil War 19th Century U.S. Supreme Court cases to address the Second amendment, the sole other one being the previously-mentioned U.S. v. Cruikshank. [70]

In this 1886 case, Presser was part of a citizen militia group, the Lehr und Wehr Verein (Study and Resistance Association), a group of armed ethnic German workers, associated with the Socialist Labor Party, and formed to counter the armed private armies of companies in Chicago. The Socialist Labor Party would itself be associated with the May 4, 1886 Haymarket Riot in Chicago. Presser v. Illinois was decided only four months before the riot. [71]

"The indictment charged in substance that Presser, on September 24, 1879, in the county of Cook, in the State of Illinois, "did unlawfully belong to, and did parade and drill in the city of Chicago with an unauthorized body of men with arms, who had associated themselves together as a military company and organization. without having a license from the Governor, and not being a part of, or belonging to, 'the regular organized volunteer militia' of the State of Illinois, or the troops of the United States." A motion to quash the indictment was overruled. Presser then pleaded not guilty, and both parties having waived a jury the case was tried by the court, which found Presser guilty and sentenced him to pay a fine of $10."

Basically, Presser,

in December, 1879, marched at the head of said company, about four hundred in number, in the streets of the city of Chicago, he riding on horseback and in command; that the company was armed with rifles and Presser with a cavalry sword; that the company had no license from the governor of Illinois to drill or parade as a part of the militia of the State, and was not a part of the regular organized militia of the State, nor a part of troops of the United States, and had no organization under the militia law of the United States."

Presser claimed the law violated his rights under the Second Amendment.

With Presser v. Illinois, the Supreme Court ruled:

"..the fact that the [second] amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.".

Presser reaffirmed the Cruikshank decision that the Second Amendment acts as a limitation upon only the federal government and not the states. Cruikshank and Presser are consistently used by the lower courts to deny any recognition of individual rights claims and provides justification to State and Local municipalities to pass laws that regulate guns.

However, the high court stated,

"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect."

Additionally, they ruled that the State could regulate militias, with no violation of the Second Amendment, for

"To deny the power would be to deny the right of the State to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine."

The traditional reading of Presser is that it affirms the states' rights view articulated in Cruikshank. Modern supporters of the individual rights view have challenged this claim, viewing the case as affirming a right to keep and bear arms as a necessary condition to have a universal militia. [[72]]

Other cases of note

For a comprehensive list, see firearm court cases.

The Colonial right to possess arms under English Common Law

As British subjects, Protestant colonists had a conditional right to possess arms according to the English Declaration of Rights of 1689.

• "That the subjects which are Protestants may have Arms for their Defence suitable to their Conditions, and as allowed by Law." House of Commons Journal 29 [73]"

The rights of British Subjects to possess arms was recognized under English Common Law. Sir William Blackstone's Commentaries on the Laws of England, were highly influential and were used as a reference and text book for English Common Law. In his Commentaries, Blackstone described the right to arms.

• "The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, 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."*--William Blackstone,'1 Commentaries on the Laws of England" 136

The rights of the Colonists to possess arms was stated in Revolutionary Era Newspaper Articles. Notably a Boston Journal of the Times printed April 13,1769.

• "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."*

""Boston, March 17," in New York Journal, Supplement, April 13,1796 at 1, Col.3, quoted in Stephen Halbrook, A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees"

John Adams, lead defense attorney for the British soldiers on trial for the Boston Massacre stated at the trial:

• "Here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defense, not for offence..."*

"L. Kinvin Wroth and Hiller B. Zobel, ed., Legal Papers of John Adams" 3:248

"According to the Militia Act of 1792 the President as commander and chief has a right and a need to know who the militiamen are and what the militia resources are as a national resource. In the eighteenth century the public had a claim on privately owned weapons for public purposes."[74][75] This has relevance to the modern question sometimes raised, whether the Second Amendment prohibits gun registration or confiscation of private guns by the Federal Government.

The State Ratification Conventions

Five of the State Ratification Conventions for the U.S. Constitution made explicit requests or demands for the protection of rights to keep and bear arms. Four States also clearly defined what a well-regulated militia consists of "the body of the people trained to arms" or "the body of the people capable of bearing arms". Four States attached proposed bills of rights to their approvals of the Constitution, the fifth, North Carolina, refused to approve the Constitution and submitted a bill of unalienable rights of the people that must be protected before they would sign. ((It is worth noting that "to arms" and "bearing arms" mean to fight for a military purpose, as opposed to 'having arms' for self defense.)(In the context of a militia the term trained to arms means trained in the use of arms for military purposes, capable of bearing arms means fit for service. Neither term means to fight. In each case the right to keep and bear arms is distict from the following phrase stating the safe defense of a free state is a militia consisting of all the people. The militia phrases are not written as limits of the people's right.))

New Hampshire, June 21,1788

• "XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion."*

"Elliot, Debates of the Several State Conventions" 1:326

Virginia, June 27,1788

• "17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state:"*

"Elliot, Debates of the Several State Conventions" 3:645-6, 652-61

The Virginia Ratification Convention Committee that produced Virginia's proposed bill of rights included, James Madison, Patrick Henry, George Mason, James Monroe and John Marshall.

"Elliot, Debates of the Several State Conventions" 3:656

New York, July 26,1788

• "That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state."*

"Elliot, Debates of the Several State Conventions" 1:328

North Carolina, August 1,1788

• "17. That the people have a right to keep and bear arms; that a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state;"* North Carolina ratified the constitution on November 21,1789, after Congress approved the Bill of Rights and submitted them to the States for ratification.

"Elliot, Debates of the Several State Conventions" 4:216,226,244

Rhode Island, May 29,1790

• "XVII. That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state;"*

"Elliot, Debates of the Several State Conventions" 1:335

Historical quotations

The documented debate in the House and Senate over the Second Amendment is sparse, especially when compared to debate over other articles of the Bill of Rights. For this reason, contemporaneous writings and speeches of the Founding Fathers are often referenced by those who would better understand the original intent and historical context of the Second Amendment. Scholars on both sides of the debate generally cite the same texts but interpret their meaning in different ways. One important issue in this debate stems from the use of rejected or proposed amendments to reconstruct the original understanding of the Second Amendment. As is true for any issue in constitutional history, the problem of context is essential. The following statements were made by various founding fathers prior to the adoption of the Second Amendment. While most date from before the wording of the second amendment was established, two were made during the 1789 debates over its adoption:

John Adams

• "To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws." --John Adams, A Defence of the Constitutions of the United States 475 (1787-1788)

James Madison

James Madison is considered the "Father of the Constitution," and was the primary author of the Bill of Rights.

• "The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for the common liberties and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the late successful resistance of this country against the British arms will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments of the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." --James Madison, Federalist No. 46, 1788

George Mason

George Mason is considered the "Father of the Bill of Rights." Mason wrote the Virginia Declaration of Rights, which detailed specific rights of citizens. He was later a leader of those who pressed for the addition of explicitly stated individual rights as part of the U.S. Constitution.

• "[W]hen the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually. . . . I ask, who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor. . . ." --George Mason, Virginia's U.S. Constitution ratification convention, 1788

• "That the People have a right to keep and bear Arms; that a well regulated Militia, composed of the Body of the People, trained to arms, is the proper, natural, and safe Defence of a free state." -- Within Mason's declaration of "the essential and unalienable Rights of the People," --George Mason, later adopted by the Virginia ratification convention, 1788

Patrick Henry

• "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 inevitabley ruined." --Patrick Henry, Virginia's U.S. Constitution ratification convention, 1788

"Elliot, Debates of the Several State Conventions" 3:45

Thomas Jefferson

• "No freeman shall ever be debarred the use of arms." -- Thomas Jefferson, Proposed Virginia Constitution, June, 1776

• "Laws that forbid the carrying of arms. . . disarm only those who are neither inclined nor determined to commit crimes. . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." -- Thomas Jefferson, Commonplace Book, 1774-1776, quoting from On Crimes and Punishment, by criminologist Cesare Beccaria, 1764

George Washington

• "A free people ought not only to be armed but also disciplined;"

-- George Washington -- First Annual Message to Congress January 8,1790

"Providence Gazette, January 16,1790 at 2., quoted in Young, The Origin of the Second Amendment"

Others

• "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions." Publius, Federalst Papers No. 51 Feb.8, 1788

• "The said Constitution [shall] 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." --Samuel Adams, Massachusetts' U.S. Constitution ratification convention, 1788

• "A militia when properly formed are in fact the people themselves...and include all men capable of bearing arms...To preserve liberty it is essential that the whole body of the people always posses arms, and be taught alike, especially when young, how to use them...The mind that aims at a select militia, must be influenced by a truly anti-republican principle." --Melancton Smith , Additional Letters From The Federal Farmer, 1788

• "The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them." --Tench Coxe, Delegate to Continental Congress, Oct. 21, 1787

• "Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."--Tench Coxe, Federal Gazette, June 18,1789, writing in support of the Madison's first draft of the Bill of Rights

• "[A]rms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The balance of power is the scale of peace. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not others dare not lay them aside. And while a single nation refuses to lay them down, it is proper that all should keep them up. Horrid mischief would ensue were one half the world deprived of the use of them; for while avarice and ambition have a place in the heart of man, the weak will become a prey to the strong. The history of every age and nation establishes these truths, and facts need but little arguments when they prove themselves." --Thomas Paine, Thoughts On Defensive War, 1775

• "The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people." --Fisher Ames, Letter to F.R. Minoe, June 12, 1789

Historical examples of disarmament

This section explores some examples of the kinds of actions that historically already had been taken, and against which the Amendment would have been meant to provide protection.

• Just prior to the American Revolutionary War, British troops were seizing gunpowder and cannons (some of which are fairly-well documented to have been stolen from the British) from armories.

• About 1680, King Charles II of England used the Militia Act to disarm his Whig opponents.

• In 1686, Catholic King James II of England made use of both the Militia Act and the Game Act to disarm his Protestant opponents. After he was deposed, the English Bill of Rights 1689 included perhaps the first written articulation of a right to bear arms: "That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law".

External links

• U.S. National Archives: Transcription of the Bill of Rights
• Annotated U.S. Constitution – Second Amendment (FindLaw)
• Second Amendment "Fact Sheet" (National Rifle Association)
• Second Amendment "Fact Sheet" (Brady Campaign to Prevent Gun Violence)
• Right to Keep and Bear Arms (1982 Opinion of the U.S. Senate)
• The Chicago-Kent Law Review, Symposium on the Second Amendment
• Whether the Second Amendment Secures an Individual Right (2004 Opinion of the U.S. Attorney General)
• Analysis of 2004 Opinion of the U.S. Attorney General (Violence Policy Center)
• Sources on the Second Amendment and Rights to Keep and Bear Arms in State Constitutions (Prof. Eugene Volokh, UCLA)
• http://www.secondamendmentcenter.org/
• Second Amendment Law Library
• CRS Annotated Constitution: 2nd Amendment
• Legal Community Against Violence