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rev.1

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. It was adopted on December 15, 1791, along with the rest of the Bill of Rights however The right to arms predates the Bill of rights as the Natural law right of self-defense and as the civic duties to act in concert as posse comitatus and or in defense of the state. The 2nd amendment recognizes this right. Neither the courts nor scholars paid much attention to the the 2nd amendment for many years. While the courts trended in a vague and paradoxical way towards a now discarded "States Rights" theory, they never denied an individual right to arms. Scholars have since demonstrated that the amendment was written to protect the rights of individuals, the "standard view". Accepted by the courts in Heller and incorporated against the States in MacDonald. The "Sophisticated Collective" or "Individual/ Collective" was endorsed by the disent in Heller.

rev 2

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. It was adopted on December 15, 1791, along with the rest of the Bill of Rights however The right to arms predates the Bill of rights as the natural rights of self-defense and to resist oppression as the civic duties to act in concert as posse comitatus and or in defense of the state. The 2nd amendment recognizes this right.

In the 19th and 20th centuries, the Supreme Court ruled on several occasions that the amendment did not bar state regulation of firearms, considering the amendment to be “a limitation only upon the power of Congress and the National government and not upon that of the States.” The Supreme Court has ruled that the Second Amendment protects an individual right to possess and carry firearms and is incorporated against the States via the due process clause of the 14th amendment. This represented the first time since the 1939 case United States v. Miller that the Supreme Court had directly addressed the scope of the Second Amendment.

In 2008 and 2010, the Court issued two landmark decisions to officially establish an "individual rights" interpretation of the Second Amendment. In District of Columbia v. Heller, 554 U.S. 570 (2008), 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 within many longstanding prohibitions and restrictions on firearms possession listed by the Court as being consistent with the Second Amendment. In McDonald v. Chicago, 561 U.S. 3025 (2010), the Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government.

outline

1 Text
2 Pre-Constitution background
 2.1 Influence of the English Bill of Rights of 1689
 2.2 Experience in America prior to the U.S. Constitution
3 Drafting and adoption of the Constitution
4 Ratification debates
5 Conflict and compromise in Congress produce the Bill of Rights
6 Militia in the decades following ratification

• Post-ratification Commentary/Early commentary
• State equevalants
• Pre-Civil War Case Law
• Post-Civil War Legislation/14th amendment and debate

In the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves. See generally S. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876 (1998) (hereinafter Halbrook); Brief for Institute for Justice as Amicus Curiae. Since those discussions took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources. Yet those born and educated in the early 19th century faced a widespread effort to limit arms ownership by a large number of citizens; their understanding of the origins and continuing significance of the Amendment is instructive.

• 4. Post-Civil War Commentators.

7 Scholarly commentary

7.3 Meaning of "well regulated militia" 7.4 Meaning of "the right of the People" 7.5 Meaning of "keep and bear arms" 8 Supreme Court cases 8.1 United States v. Cruikshank 8.2 Presser v. Illinois 8.3 Miller v. Texas 8.4 Robertson v. Baldwin 8.5 United States v. Miller 8.6 District of Columbia v. Heller 8.6.1 Judgment 8.6.2 Notes and analysis 8.7 McDonald v. Chicago 9 United States Courts of Appeals decisions before and after Heller 9.1 Before Heller 9.2 After Heller

dump source

CHRONOLOGICAL CODING OF "COURT" (C) AND "INDIVIDUALIST" (I) LAW JOURNAL ARTICLES 1912 C The Constitutional Right to Keep and Bear Arms and Statutes Against Carrying Weapons, 46 AM. L. REV. 777 (1912). 1913 C Right to Bear Arms, 16 LAW NOTES 207 (1913). 1915 C Lucilius A. Emery, The Constitutional Right to Keep and Bear Arms, 28 HARV. L. REV. 473 (1915). 1928 C Daniel J. McKenna, The Right to Keep and Bear Arms, 12 MARQ. L. REV. 138 (1928). 1934 C John Brabner-Smith, Firearm Regulation, 1 LAW & CONTEMP. PROBS. 400 (1934). 1939 C Willimina Montague, Second Amendment, National Firearms Act, 13 S. CAL. L. REV. 129 (1939). C A.S.V., Second Amendment, 14 ST. JOHN'S L. REV. 167 (1939). 1940 C V. Breen et al., Federal Revenue As Limitation on State Police Power and the Right to Bear Arms-Purpose of Legislation As Affecting Its Validity, 9 J. B. ASS'N KAN. 178 (1940). C Frederick Bernays Wiener, The Militia Clause of the Constitution, 54 HARV. L. REV. 181 (1940). CHICAGO-KENT LAW REVIEW 1941 C George I. Haight, The Right to Keep and Bear Arms, 2 BILL RTS. REV. 31 (1941). 1950 C F.J.K., Restrictions on the Right to Bear Arms: State and Federal Firearms Legislation, 98 U. PA. L. REV. 905 (1950). 1960 1 Stuart R. Hays, The Right to Bear Arms, A Study in Judicial Misinterpretation, 2 WM. & MARY L. REV. 381 (1960). 1965 C John G. Fletcher, The Corresponding Duty to the Right of Bearing Arms, 39 FLA. B. REV. 167 (1965). 1 Robert A. Sprecher, The Lost Amendment, 51 A.B.A. J. 554 (1965). 1966 C Peter Buck Feller & Karl L. Gotting, The Second Amendment: A Second Look, 61 Nw. U. L. REV. 46 (1966). C Ralph J. Rohner, The Right to Bear Arms: A Phenomenon of Constitutional History, 16 CATH. U. L. REV. 53 (1966). 1967 C Firearms: Problems of Control, 80 HARV. L. REV. 1328 (1967). C James L. Mann, II, Note, The Right to Bar Arms, 19 S.C.L. REV. 402 (1967). 1 Nicholas V. Olds, Second Amendment and the Right to Keep and Bear Arms, 46 MICH. ST. B. J. 15 (1967). C Richard F. Riseley, Jr., The Right to Keep and Bear Arms: A Necessary Constitutional Guarantee or an Outmoded Provision [Vol. 76:349 2000] LOST AND FOUND: RESEARCHING THE SECOND AMENDMENT 387 of the Bill of Rights, 31 ALB. L. REV. 74 (1967). 1968 C Stanley Mosk, Gun Control Legislation: Valid and Necessary, 14 N.Y. L.F. 694 (1968). 1969 C Constitutional Limitations on Firearms Regulation, DUKE L.J. 773 (1969). C Arnold Grundeman, Constitutional Limitations on Federal Firearms Control, 8 WASHBURN L.J. 238 (1969). C Ronald B. Levine & David B. Saxe, The Second Amendment: The Right to Bear Arms, 7 HOUS. L. REV. 1 (1969). C Edward H. Sheppard, Control of Firearms, 34 MO. L. REV. 376 (1969). 1970 1 James A. McClure, Firearms and Federalism, 7 IDAHo L. REV. 197 (1970). 1971 C John Levin, Right to Bear Arms: The Development of the American Experience, 48 CHI.-KENT L. REV. 148 (1971). C Michael K. McCabe, To Bear or to Ban-Firearms Control and the "Right to Bear Arms," 27 J. MO. B. 313 (1971). 1972 C Judge George Edwards, Commentary: Murder and Gun Control, 18 WAYNE L. REV. 1335 (1972). 1973 C Thomas A. Wallitsch, Right to Bear Arms in Pennsylvania: The Regulation of Possession, 11 DUQ. L. REV. 557 (1973). CHICAGO-KENT LAW REVIEW 1974 I David T. Hardy & John Stompoly, Of Arms and the Law, 51 CHI.-KENT L. REV. 62 (1974). C Robert J. Riley, Shooting to Kill the Handgun: Time to Martyr Another American "Hero," 51 J. URB. L. 491 (1974). 1 Jonathan A. Weiss, A Reply to Advocates of Gun-Control Law, 52 J. URB. L. 577 (1974). 1975 C Roy G. Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2 HASTINGS CONST. L.Q. 961 (1975). 1976 1 David I. Caplan, Restoring the Balance: The Second Amendment Revisited, 5 FORDHAM URB. L.J. 31 (1976). 1 James B. Whisker, Historical Development and Subsequent Erosion of the Right to Keep and Bear Arms, 78 W. VA. L. REV. 171 (1976). 1977 C Maynard Holbrook Jackson, Handgun Control: Constitutional and Critically Needed, 8 N.C. CENT. L.J. 189 (1977). C John C. Santee, Right to Keep and Bear Arms, 26 DRAKE L. REV. 423 (1977). 1978 1 David I. Caplan, Handgun Control: Constitutional or Unconstitutional?-A Reply to Mayor Jackson, 10 N.C. CENT. L.J. 53 (1978). [Vol. 76:349 2000] LOST AND FOUND: RESEARCHING THE SECOND AMENDMENT 389 1980 C Robert L. Elliott, Right to Keep and Bear Arms, 53 WIS. B. BULL. 34 (1980). 1 Charles L. Cantrell, The Right to Bear Arms: A Reply, 53 WIS. B. BULL. 21 (1980). 1981 1 Stephen P. Halbrook, Jurisprudence of the Second and Fourteenth Amendments, 4 GEO. MASON L. REV. 1 (1981). 1982 C Martin C. Ashman, Handgun Control by Local Government, 10 N. KY. L. REV. 97 (1982). C Mark Benedict, Constitutional Law-Second Amendment Right to Bear Arms-Quilici v. Village of Morton Grove, 16 AKRON L. REV. 293 (1982). C Peggy Bernardy & Maureen E. Burns, Of Lawyers, Guns, and Money: Preemption and Handgun Control, 16 U.C. DAVIS L. REV. 137 (1982). 1 David I. Caplan, The Right of the Individual to Bear Arms: A Recent Judicial Trend, 4 DET. C.L. REV. 789 (1982). I Robert Dowlut & Janet A. Knoop, State Constitutions and the Right to Keep and Bear Arms, 7 OKLA. CITY U. L. REV. 177 (1982). C Eric S. Freibrun, Banning Handguns: Quilici v. Village of Morton Grove and the Second Amendment, 60 WASH. U. L.Q. 1087 (1982). 1 Richard E. Gardiner, To Preserve Liberty-A Look at the Right to Keep and Bear Arms, 10 N. KY. L. REV. 63 (1982). 1 Alan M. Gottleib, Gun Ownership: A Constitutional Right, 10 N. KY. L. REV. 138 (1982). CHICAGO-KENT LAW REVIEW I Stephen P. Halbrook, To Keep and Bear Their Private Arms: The Adoption of the Second Amendment, 1787-1797, 10 N. KY. L. REV. 13 (1982). C Kurt F. Kluin, Gun Control: Is It a Legal and Effective Means of Controlling Firearms in the United States?, 21 WASHBURN L.J. 244 (1982). C Darell R. Pierce, Second Amendment Survey, 10 N. KY. L. REV. 155 (1982). 1983 C Sidney R. Barrett, Jr., The Right to Bear Arms and Handgun Prohibition: A Fundamental Rights Analysis, 14 N.C. CENT. L.J. 296 (1983). C Howard I. Bass, Quilici v. Village of Morton Grove: Ammunition for a National Handgun Ban, 32 DEPAUL L. REV. 371 (1983). 1 Robert Dowlut, The Right to Arms: Does the Constitution or the Predilection of Judges Reign?, 36 OKLA. L. REV. 65 (1983). 1 Stephen P. Halbrook, Tort Liability for the Manufacture, Sale, and Ownership of Handguns?, 6 HAMLINE L. REV. 351 (1983). 1 Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204 (1983). 1 Joyce Lee Malcolm, The Right of the People to Keep and Bear Arms: The Common Law Tradition, 10 HASTINGS CONST. L.Q. 285 (1983). C W. Spannaus, State Firearms Regulation and the Second Amendment, 6 HAMLINE L. REV. 383 (1983). 390 [Vol. 76:349 2000] LOSTAND FOUND: RESEARCHING THE SECOND AMENDMENT 391 1985 1 Stephen P. Halbrook, The Right to Bear Arms in the First State Bills of Rights: Pennsylvania, North Carolina, Vermont, and Massachusetts, 10 VT. L. REV. 255 (1985). 1986 C Donald L. Beschle, Reconsidering the Second Amendment: Constitutional Protection for a Right of Security, 9 HAMLINE L. REV. 69 (1986). 1 Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to "Bear Arms," 49 LAW & CONTEMP. PROBS. 151 (1986). 1 David T. Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 HARV. J.L. & PUB. POL'Y 559 (1986). C M. Truman Hunt, The Individual Right to Bear Arms: An Illusory Public Pacifier?, 4 UTAH L. REV. 751 (1986). 1 Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 LAW & CONTEMP. PROBS. 143 (1986). 1 Robert E. Shalhope, The Armed Citizen in the Early Republic, 49 LAW & CONTEMP. PROBS. 125 (1986). 1987 C Peter E. Carlson, Quilici and Sklar: Alternative Models for Handgun Control Ordinances, 31 WASH. U. J. URB. & CONTEMP. L. 341 (1987). I David T. Hardy, The Second Amendment and the Historiography of the Bill of Rights, 4 J.L. & POL. 1 (1987). 1 Nelson Lund, The Second Amendment, Political Liberty, and the Right to Self-Preservation, 39 ALA. L. REV. 103 (1987). CHICA GO-KENT LAW REVIEW 1989 C Wendy Brown, Guns, Cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson's The Embarrassing Second Amendment, 99 YALE L.J. 661 (1989). C Michael 0. Callaghan, State v. Buckner and the Right to Keep and Bear Arms in West Virginia, 91 W. VA. L. REV. 425 (1989). 1 Robert Dowlut, Federal and State Constitutional Guarantees to Arms, 15 U. DAYTON L. REV. 59 (1989). C Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. DAYTON L. REV. 5 (1989). I Stephen P. Halbrook, Encroachments of the Crown on the Liberty of the Subject: Pre-Revolutionary Origins of the Second Amendment, 15 U. DAYTON L. REV. 91 (1989). I Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637 (1989). C Mark Udulutch, The Constitutional Implications of Gun Control and Several Realistic Gun Control Proposals, 17 AM. J. GRIM. L. 19 (1989). 1990 I Bernard J. Bordenet, The Right to Possess Arms: The Intent of the Framers of the Second Amendment, 21 U. WEST L.A. L. REV. 1 (1990). I Thomas M. Moncure, Jr., Who Is the Militia-The Virginia Ratifying Convention and the Right to Bear Arms, 19 LINCOLN L. REV. 1 (1990). I Eric C. Morgan, Assault Rifle Legislation: Unwise and Unconstitutional, 17 AM. J. GRIM. L. 143 (1990). [Vol. 76:349 2000] LOST AND FOUND: RESEARCHING THE SECOND AMENDMENT 393 I Stefan B. Tahmassebi, Gun Control and Racism, 2 GEO. MASON U. Civ. RTS. L.J. 67 (1990). 1991 1 Akhil Reed Amar, The Bill of Rights As a Constitution, 100 YALE L.J. 1131 (1991). C Catherine L. Calhoun, Constitutional Law-Eleventh Circuit Interprets Firearms Owners' Protection Act to Prohibit Private Possession of Machine Guns, 25 SUFFOLK U. L. REV. 797 (1991). I Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309 (1991). C Debra Dobray & Arthur J. Waldrop, Regulating Handgun Advertising Directed at Women, 12 WHITrIER L. REV. 113 (1991). I Stephen P. Halbrook, The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment, 26 VAL. U. L. REV. 131 (1991). C Dennis A. Henigan, Arms, Anarchy and the Second Amendment, 26 VAL. U. L. REV. 107 (1991). I Thomas M. Moncure, Jr., The Second Amendment Ain't About Hunting, 34 HOw. L.J. 589 (1991). C Michael T. O'Donnell, The Second Amendment A Study of Recent Trends, 25 U. RICH. L. REV. 501 (1991). C Elaine Scarry, War and the Social Contract: Nuclear Policy, Distribution, and the Right to Bear Arms, 139 U. PA. L. REV. 1257 (1991). CHICAGO-KENT LAW REVIEW C David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 YALE L.J. 551 (1991). 1992 1 Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992). 1 Nicholas J. Johnson, Beyond the Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment, 24 RUTGERS L.J. 1 (1992). 1 Don B. Kates, Jr., The Second Amendment and the Ideology of Self-Protection, 9 CONST. COMMENTARY 87 (1992). C Robert A. O'Hare, Jr. & Jorge Pedreira, An Uncertain Right: The Second Amendment and the Assault Weapon Legislation Controversy, 66 ST. JOHN'S L. REV. 179 (1992). 1 Jay R. Wagner, Gun Control Legislation and the Intent of the Second Amendment: To What Extent Is There an Individual Right to Keep and Bear Arms?, 37 VILL. L. REV. 1407 (1992). 1993 C Sayoko Blodgett-Ford, Do Battered Women Have a Right to Bear Arms?, 11 YALE L. & POL'Y REV. 509 (1993). C Carl T. Bogus, Race, Riots, and Guns, 66 S. CAL. L. REV. 1365 (1993). 1 Stephen P. Halbrook, Rationing Firearms Purchases and the Right to Keep Arms: Reflections on the Bills of Rights of Virginia, West Virginia, and the United States, 96 W. VA. L. REV. 1 (1993). 1 Pasquale V. Martire, In Defense of the Second Amendment: Constitutional and Historical Perspectives, 21 LINCOLN L. REV. 23 (1993). [Vol. 76:349 2000] LOST AND FOUND: RESEARCHING THE SECOND AMENDMENT 395 I Michael J. Quinlan, Is There a Neutral Justification for Refusing to Implement the Second Amendment or Is the Supreme Court Just "Gun Shy"?, 22 CAP. U. L. REV. 641 (1993). 1994 C Kevin A. Fox & Nutan Christine Shah, Natural Born Killers: The Assault Weapon Ban of the Crime Bill- Legitimate Exercise of Congressional Authority to Control Violent Crime or Infringement of a Constitutional Guarantee?, 10 ST. JOHN'S J. LEGAL COMMENT. 123 (1994). 1 Don B. Kates, Jr., Gun Control: Separating Reality From Symbolism, 20 J. CONTEMP. L. 353 (1994). 1 Glenn Harlan Reynolds, The Right to Keep and Bear Arms Under the Tennessee Constitution: A Case Study in Civic Republican Thought, 61 TENN. L. REV. 647 (1994). I William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 DUKE L.J. 1236 (1994). 1 David E. Vandercoy, The History of the Second Amendment, 28 VAL. U. L. REV. 1007 (1994). C Thomas J. Walsh, The Limits and Possibilities of Gun Control, 23 CAP. U. L. REV. 639 (1994). 1995 C Richard M. Aborn, The Battle over the Brady Bill and the Future of Gun Control Advocacy, 22 FORDHAM URB. L.J. 417 (1995). C Jacqueline Ballinger, Comment, Torts: Torts and Gun Control: Sealing Up the Cracks and Helping Licensed Dealers Avoid Sales to Unqualified Buyers, 48 OKLA. L. REV. 593 (1995). C Sayoko Blodgett-Ford, The Changing Meaning of the Right to Bear Arms, 6 SETON HALL CONST. L.J. 101 (1995). CHICAGO-KENT LAW REVIEW I Michelle Capezza, Controlling Guns: A Call for Consistency in Judicial Review of Challenges to Gun Control Legislation, 25 SETON HALL L. REV. 1467 (1995). Robert J. Cottrol & Raymond T. Diamond, "Never Intended to Be Applied to the White Population": Firearms Regulation and Racial Disparity- The Redeemed South's Legacy to a National Jurisprudence?, 70 CHI.-KENT L. REV. 1307 (1995). Brannon P. Denning, Can the Simple Cite Be Trusted?: Lower Court Interpretations of United States v. Miller and the Second Amendment, 26 CUMB. L. REV. 961 (1995). Anthony J. Dennis, Clearing the Smoke from the Right to Bear Arms and the Second Amendment, 29 AKRON L. REV. 57 (1995). William G. Dennis, A Right to Keep and Bear Arms? The State of the Debate, 49 WASH. ST. B. NEWS 47 (1995). C Chuck Dougherty, The Minutemen, the National Guard, and the Private Militia Movement: Will the Real Militia Please Stand Up?, 28 J. MARSHALL L. REV. 959 (1995). C Colonel Charles J. Dunlap, Jr., Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment, 62 TENN. L. REV. 643 (1995). I T. Markus Funk, Gun Control and Economic Discrimination: The Melting-Point Case-in-Point, 85 J. CRIM. L. & CRIMINOLOGY 764 (1995). 1 Michael I. Garcia, The "Assault Weapons" Ban, the Second Amendment, and the Security of a Free State, 6 REGENT U. L. REV. 261 (1995). [Vol. 76:349 2000] LOST AND FOUND: RESEARCHING THE SECOND AMENDMENT 397 I Stephen P. Halbrook, Congress Interprets the Second Amendment: Declarations by a Co-Equal Branch on the Individual Right to Keep and Bear Arms, 62 TENN. L. REV. 597 (1995). 1 Stephen P. Halbrook, Personal Security, Personal Liberty, and "the Constitutional Right to Bear Arms": Visions of the Framers for the Fourteenth Amendment, 5 SETON HALL CONST. L.J. 341 (1995). I Stephen P. Halbrook, Second-Class Citizenship and the Second Amendment in the District of Columbia, 5 GEO. MASON U. CIV. RTS. L.J. 105 (1995). C Andrew D. Herz, Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility, 75 B.U. L. REV. 57 (1995). 1 Nicholas J. Johnson, Shots Across No Man's Land: A Response to Handgun Control, Inc.'s, Richard Aborn, 22 FORDHAM URB. L.J. 441 (1995). I David B. Kopel & Richard E. Gardner, The Sullivan Principles: Protecting the Second Amendment from Civil Abuse, 19 SETON HALL LEGIS. J. 737 (1995). C Rachel J. Littman, Gun-Free Schools: Constitutional Powers, Limitations, and Social Policy Concerns Surrounding Federal Regulation of Firearms in Schools, 5 SETON HALL CONST. L.J. 723 (1995). 1 Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 TENN. L. REV. 461 (1995). 1 Glenn Harlan Reynolds & Don B. Kates, The Second Amendment and States' Rights: A Thought Experiment, 36 WM. & MARY L. REV. 1737 (1995). CHICAGO-KENT LAW REVIEW C Thomas E. Romano, Firing Back: Legislative Attempts to Combat Assault Weapons, 19 SETON HALL LEGIS. J. 857 (1995). 1 Gregory L. Shelton, In Search of the Lost Amendment: Challenging Federal Firearms Regulation Through the "State's Right" Interpretation of the Second Amendment, 23 FLA. ST. U. L. REV. 105 (1995). C Jill A. Tobia, The Brady Handgun Violence Prevention Act: Does It Have a Shot at Success?, 19 SETON HALL LEGIS. J. 894 (1995). 1996 I Randy E. Barnett & Don B. Kates, Jr., Under Fire: The New Consensus on the Second Amendment, 45 EMORY L.J. 1139 (1996). 1 Scott Bursor, Toward a Functional Framework for Interpreting the Second Amendment, 74 TEXAS L. REV. 1125 (1996). 1 Brannon P. Denning, Palladium of Liberty? Causes and Consequences of the Federalization of State Militias in the Twentieth Century, 21 OKLA. CITY U. L. REV. 191 (1996). 1 Brannon P. Denning & Glenn Harlan Reynolds, It Takes a Militia: A Communitarian Case for Compulsory Arms Bearing, 5 WM. & MARY BILL RTS. J. 185 (1996). 1 Roland Docal, The Second, Fifth, and Ninth Amendments- The Precarious Protectors of the American Gun Collector, 23 FLA. ST. U. L. REV. 1101 (1996). 1 Inge Anna Larish, Why Annie Can't Get Her Gun: A Feminist Perspective on the Second Amendment, 1996 U. ILL. L. REV. 467 (1996). I R.J. Larizza, Paranoia, Patriotism, and the Citizen Militia Movement: Constitutional Right or Criminal Conduct?, 47 MERCER L. REV. 581 (1996). [Vol. 76:349 2000] LOST AND FOUND: RESEARCHING THE SECOND AMENDMENT 399 1 Nelson Lund, The Past and Future of the Individual's Right to Arms, 31 GA. L. REV. 1 (1996). C Joelle E. Polesky, The Rise of Private Militia: A First and Second Amendment Analysis of the Right to Organize and the Right to Train, 144 U. PA. L. REV. 1593 (1996). 1 Kevin D. Szczepanski, Searching for the Plain Meaning of the Second Amendment, 44 BuFF. L. REV. 197 (1996). 1997 C Donald W. Dowd, The Relevance of the Second Amendment to Gun Control Legislation, 58 MONT. L. REV. 79 (1997). 1 Frank Espohl, The Right to Carry Concealed Weapons for SelfDefense, 22 S. ILL. U. L.J. 151 (1997). C Robert Harman, The People's Right to Bear Arms-What the Second Amendment Protects: An Analysis of the Current Debate Regarding What the Second Amendment Really Protects, 18 WHITTIER L. REV. 411 (1997). C John Dwight Ingram & Alyson Ann Ray, The Right(?) to Keep and Bear Arms, 27 N.M. L. REV. 491 (1997). I David E. Johnson, Taking a Second Look at the Second Amendment and Modern Gun Control Laws, 86 KY. L.J. 197 (1997). 1 David B. Kopel & Christopher C. Little, Communitarians, Neorepublicans, and Guns: Assessing the Case for Firearms Prohibition, 56 MD. L. REV. 438 (1997). I Thomas B. McAffee, Constitutional Limits on Regulating Private Militia Groups, 58 MONT. L. REV. 45 (1997). CHICAGO-KENT LAW REVIEW I Thomas B. McAffee & Michael J. Quinlan, Bringing Forward the Right to Keep and Bear Arms: Do Text, History, or Precedent Stand in the Way?, 75 N.C. L. REV. 781 (1997). David E. Murley, Private Enforcement of the Social Contract: DeShaney and the Second Amendment Right to Own Firearms, 36 DUQ. L. REV. 15 (1997). L.A. Powe, Jr., Guns, Words, and Constitutional Interpretation, 38 WM. & MARY L. REV. 1311 (1997). 1998 Todd Barnet, Gun "Control" Laws Violate the Second Amendment and May Lead to Higher Crime Rates, 63 MO. L. REV. 155 (1998). C Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. DAVIS L. REV. 309 (1998). I Brannon P. Denning, Gun Shy: The Second Amendment As an "Underenforced Constitutional Norm," 21 HARV. J.L. & PUB. POL'Y 719 (1998). C Steven H. Gunn, A Lawyer's Guide to the Second Amendment, 1998 BYU L. REV. 35. 1 David Harmer, Securing a Free State: Why the Second Amendment Matters, 1998 BYU L. REV. 55. C Brendan J. Healey, Plugging the Bullet Holes in U.S. Gun Law: An Ammunition-Based Proposal for Tightening Gun Control, 32 J. MARSHALL L. REV. 1 (1998). 1 David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. REV. 1359. 1 Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. REV. 793 (1998). [Vol. 76:349 2000] LOST AND FOUND: RESEARCHING THE SECOND AMENDMENT 401 C David C. Williams, The Unitary Second Amendment, 73 N.Y.U. L. REV. 822 (1998). 1 Kevin J. Worthen, The Right to Keep and Bear Arms in Light of Thornton: The People and Essential Attributes of Sovereignty, 1998 BYU L. REV. 137. 1999 I Roland H. Beason, Printz Punts on the Palladium of Rights: It Is Time to Protect the Right of the Individual to Keep and Bear Arms, 50 ALA. L. REV. 561 (1999). 1 Stephen P. Halbrook & David B. Kopel, Tench Coxe and the Right to Keep and Bear Arms, 7 WM. & MARY BILL RTS. J. 347 (1999). C Kevin T. Streit, Can Congress Regulate Firearms?: Printz v. United States and the Intersection of the Commerce Clause, the Tenth Amendment, and the Second Amendment, 7 WM. & MARY BILL RTS. J. 645 (1999).

aus

• http://www.nationalreview.com/article/425021/australias-1996-gun-confiscation-didnt-work-and-it-wouldnt-work-america-mark-antonio
• http://c8.nrostatic.com/sites/default/files/Lee%20and%20Suardi%202008.pdf
• http://c3.nrostatic.com/sites/default/files/Baker%20and%20McPhedran%202007.pdf

new

dissent https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=6350&context=lalrev hennigan lund

statute of northampton

https://guncite.com/court/state/25nc418.html STATE v. ROBERT S. HUNTLEY. 1. The offence of riding or going armed with unusual or dangerous weapons, to the terror of the people, is an offence at common law, and is indictable in this State.

2. A man may carry a gun for any lawful purpose of business or amusement, but he cannot go about with that or any other dangerous weapon, to terrify and alarm, and in such manner as naturally will terrify and alarm a peaceful people.

3. The declarations of the defendant are admissible in evidence, on the part of the prosecution, as accompanying, explaining, and characterizing the acts charged.

Appeal from Settle, J., Spring Term, 1843, of Anson.

The defendant was tried upon the following indictment:

The jurors for the State upon their oath present, that Robert S. Huntly, late of the county aforesaid, laborer, on the first day of September, in the present year, with force and arms, at and in the county aforesaid, did arm himself with pistols, guns, knives, and other dangerous and unusual weapons, and being so armed, did go forth and exhibit himself openly, both in the daytime and in the night, to the good citizens of Anson aforesaid, and in the said highway and before the citizens aforesaid, did openly and publicly declare a purpose and intent, one James H. Ratcliff and other good citizens of the State, then and there being in the peace of God and of the State, to beat, wound, kill, and murder, which said purpose and intent, the said Robert S. Huntley, so openly armed and exposed and declaring, then (p.419)and there had and entertained, by which said arming, exposure, exhibition, and declarations of the said Robert S. Huntley, divers good citizens of the State were terrified, and the peace of the State endangered, to the evil example of all others in like cases offending, to the terror of the people, and against the peace and dignity of the State.

On the trial it was insisted on the part of the defendant, that allowing all the facts charged in the indictment to be true, they constituted no offence for which the defendant could be punished as for a misdemeanor. His Honor instructed the jury, that if the facts charged in the indictment were proven to their satisfaction, the defendant had been guilty of a violation of the law, and that they ought to render their verdict accordingly. In the investigation before the jury it appeared, among other things, that the defendant was seen by several witnesses, and on divers occasions, riding upon the public highway, and upon the premises of James H. Ratcliff (the person named in the indictment), armed with a double-barrelled gun, and on some of those occasions was heard to declare, "that if James H. Ratcliff did not surrender his negroes, he would kill him"; at others, "if James H. Ratcliff did not give him his rights, he would kill him"; on some, that "he had waylaid the house of James H. Ratcliff in the night about daybreak, and if he had shown himself he would have killed him; that he showed himself once, but for too short a time to enable him to do so, and that he mistook another man for him, and was very near shooting him." On one occasion, that "he would kill James H. Ratcliff if he did not surrender his negroes, and that as for William Ratcliff, he was good for him anyhow on sight; that there were four or five men whom he meant to kill." All these declarations were objected to by the defendant's counsel, but were received by the Court, as accompanying and qualifying and explaining the defendant's riding about the country armed with a double-barrelled gun. The jury having found the defendant guilty, his counsel moved for a new trial upon the grounds, first, that the declarations of the defendant before mentioned, were improperly (p.420)received; secondly, because the Judge should have told the jury, that supposing all the facts charged in the indictment to be true, still the defendant was entitled to their verdict. The motion was overruled, and judgment having been pronounced, the defendant appealed.

Attorney-General for the State.

Winston for the defendant.

Gaston, J. On the trial it was insisted by the defendant's counsel, and the Judge was required so to instruct the jury, that if the facts charged in the indictment were all true, they nevertheless constituted in law no offence of which they could find the defendant guilty. His Honor refused this prayer, and instructed the jury that if the facts charged were proved to their satisfaction, it was their duty to find him guilty. The same ground of defence has been taken here by way of a motion in arrest of judgment; but we are of opinion that in whatever form presented, it is not tenable.

The argument is, that the offence of riding or going about armed with unusual and dangerous weapons, to the terror of the people, was created by the statute of Northampton, 2 Edward III, ch. 3, and that, whether this statute was or was not formerly in force in this State, it certainly has not been since the first of January, 1838, at which day it is declared in the Revised Statutes, ch. 1, sec. 2, that the statutes of England or Great Britain shall cease to be of force and effect here. We have been accustomed to believe, that the statute referred to did not create this offence, but provided only special penalties and modes of proceeding for its more effectual suppression, and of the correctness of this belief we can see no reason to doubt. All the elementary writers, who give us any information on the subject, concur in this representation, nor is there to be found in them, as far as we are aware of, a dictum or intimation to the contrary. Blackstone states that "the offence of riding or going armed with dangerous or unusual weapons, is a (p.421)crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the statute of Northampton, 2 Edward III., ch. 3, upon pain of forfeiture of the arms, and imprisonment during the King's pleasure." 4 Bl. Com., 149. Hawkins, treating of offences against the public peace under the head of "Affrays," pointedly remarks, "but granting that no bare words in judgment of law carry in them so much terror as to amount to an affray, yet it seems certain that in some cases there may be an affray, where there is no actual violence, as where a man arms himself with dangerous and unusual weapons in such a manner as will naturally cause a terror to the people, which is said to have been always an offence at common law and strictly prohibited by many statutes." Hawk. P. C., B. 1, ch. 28, sec. 1. Burns & Tomlyns inform us that this term "Affray" is derived from the French word "effrayer," to affright, and that anciently it meant no more, "as where persons appeared with armour or weapons not usually worn, to the terror of others." Burns' Verbo "Affray." Dier do. It was declared by the Chief Justice in Sir John Knight's case, that the statute of Northampton was made in affirmance of the common law. 3 Mod., 117. And this is manifestly the doctrine of Coke, as will be found on comparing his observations on the word "Affray," which he defines (3 Just., 158) "a public offence to the terror of the King's subjects, and so called because it affrighteth and maketh men afraid, and is enquirable in a leet as a common nuisance," with his reference immediately thereafter to this statute, and his subsequent comments on it (3 Inst., 160), where he cites a record of 29 Edward I., showing what had been considered the law then. Indeed, if those acts be deemed by the common law crimes and misdemeanors, which are in violation of the public rights and of the duties owing to the community in its social capacity, it is difficult to imagine any which more unequivocally deserve to be so considered than the acts charged upon this defendant. They attack directly that public order and sense of security, which it is one of the first objects of the common (p.422)law, and ought to be of the law of all regulated societies to preserve inviolate--and they lead almost necessarily to actual violence. Nor can it for a moment be supposed that such acts are less mischievous here or less the proper subjects of legal reprehension, than they were in the country of our ancestors. The bill of rights in this State secures to every man, indeed, the right to "bear arms for the defence of the State." While it secures to him a right of which he cannot be deprived, it holds forth the duty in execution of which that right is to be exercised. If he employs those arms, which he ought to wield for the safety and protection of his country, to the annoyance and terror and danger of its citizens, he deserves but the severer condemnation for the abuse of the high privilege with which he has been invested.

It was objected below, and the objection has been also urged here, that the Court erred in admitting evidence of the declarations of the defendant, set forth in the case, because those, or some of them, at least, were acknowledgments of a different offence from that charged. But these declarations were clearly proper, because they accompanied, explained, and characterized the very acts charged. They were not received at all as admissions either of the offence under trial, or any other offence. They were constituent parts of that offence.

It has been remarked that a double-barrel gun, or any other gun, cannot in this country come under the description of "unusual weapons," for there is scarcely a man in the community who does not own and occasionally use a gun of some sort. But we do not feel the force of this criticism. A gun is an "unusual weapon," wherewith to be armed and clad. No man amongst us carries it about with him, as one of his every day accoutrements--as a part of his dress--and never, we trust, will the day come when any deadly weapon will be worn or wielded in our peace-loving and law-abiding State, as an appendage of manly equipment. But although a gun is an "unusual weapon," it is to be remembered that the carrying of a gun, per se, constitutes no (p.423)offence. For any lawful purpose--either of business or amusement--the citizen is at perfect liberty to carry his gun. It is the wicked purpose, and the mischievous result, which essentially constitute the crime. He shall not carry about this or any other weapon of death to terrify and alarm, and in such manner as naturally will terrify and alarm a peaceful people.

Per Curiam. No Error.

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State v. Newsom, 27 N.C. (5 Ired.) 250 (1844). [HTML] 13k

State v. Huntley, 25 N.C. (3 Ired.) 418, 40 Am. Dec. 416 (1843). [HTML] 12k

State v. Buzzard, 4 Ark. (2 Pike) 18 (1842). [HTML] 64k

State v. Morgan, 25 N.C. (3 Ired.) 186 (1842). [HTML] 21k

State v. Duzan, 6 Blackf. 31 (Ind. 1841). [HTML] 2k

Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840). [HTML] 21k

State v. Reid, 1 Ala. 612, 35 Am. Dec. 44 (1840). [HTML] 23k

Commonwealth v. Riley, Thacher's Crim. Cas. 471 (Mass. 1837). [HTML] 15k

State v. Mitchell, 3 Blackf. 229 (Ind. 1833). [HTML] 1k

Simpson v. State, 13 Tenn. (5 Yer.) 356 (1833). [HTML] 15k

Gray v. Combs, 30 Ky. (7 J.J. Mar.) 478 (1832). [HTML] 23k

Grainger v. State, 13 Tenn. (5 Yerg.) 459 (1830). [HTML] 11k

Commonwealth v. Blanding, 3 Pick. 304 Mass. (1825). [HTML]

Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 13 Am. Dec. 251 (1822). [HTML] 11k