Second Amendment to the United States Constitution

The Second Amendment (Amendment II) to the United States Constitution protects the right to keep and bear arms. It was ratified on December 15, 1791, along with nine other articles of the United States Bill of Rights.<ref>Template:Cite web</ref><ref>Template:Cite book</ref><ref>Template:Cite web</ref> In District of Columbia v. Heller (2008), the Supreme Court affirmed that the right belongs to individuals, for self-defense in the home,<ref>Template:Cite news</ref><ref>Template:Cite news</ref><ref>Template:Cite news</ref><ref>Template:Cite web</ref> while also including, as dicta, that the right is not unlimited and does not preclude the existence of certain long-standing prohibitions such as those forbidding "the possession of firearms by felons and the mentally ill" or restrictions on "the carrying of dangerous and unusual weapons".<ref>Template:Cite web</ref><ref name="Epstein">Template:Cite book</ref> In McDonald v. City of Chicago (2010) the Supreme Court ruled that state and local governments are limited to the same extent as the federal government from infringing upon this right.<ref>Template:Cite news</ref><ref>Template:Cite web</ref> New York State Rifle & Pistol Association, Inc. v. Bruen (2022) assured the right to carry weapons in public spaces with reasonable exceptions.

The Second Amendment was based partially on the right to keep and bear arms in English common law and was influenced by the English Bill of Rights 1689. Sir William Blackstone described this right as an auxiliary right, supporting the natural rights of self-defense and resistance to oppression, and the civic duty to act in concert in defense of the state.<ref>Template:Cite web</ref> While both James Monroe and John Adams supported the Constitution being ratified, its most influential framer was James Madison. In Federalist No. 46, Madison wrote how a federal army could be kept in check by the militia, "a standing armyTemplate:Nbsp... would be opposed [by] militia." He argued that State governments "would be able to repel the danger" of a federal army, "It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops." He contrasted the federal government of the United States to the European kingdoms, which he described as "afraid to trust the people with arms", and assured that "the existence of subordinate governmentsTemplate:Nbsp... forms a barrier against the enterprises of ambition".<ref name="emerson">Template:Cite web</ref><ref>Madison, James; Hamilton, John. C. (ed.); The Federalist, No. 46, p. 371; 1864.</ref>

By January 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several amendments were proposed, but were not adopted at the time the Constitution was ratified. For example, the Pennsylvania convention debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to the Bill of Rights to assure ratification. In United States v. Cruikshank (1876), the Supreme Court ruled that, "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments Template:Sic means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government."<ref>Template:Cite web</ref> In United States v. Miller (1939), the Supreme Court ruled that the Second Amendment did not protect weapon types not having a "reasonable relationship to the preservation or efficiency of a well regulated militia".<ref>Template:Cite web</ref><ref name="crs2a">CRS Report for Congress District of Columbia v. Heller: The Supreme Court and the Second Amendment April 11, 2008, Congressional Research Service T.J. Halsted, Legislative Attorney, American Law Division. Order Code RL34446 Template:Cite web</ref>

In the 21st century, the amendment has been subjected to renewed academic inquiry and judicial interest.<ref name="crs2a" /> In District of Columbia v. Heller (2008), the Supreme Court handed down a landmark decision that held the amendment protects an individual's right to keep a gun for self-defense.<ref>Template:Cite news</ref><ref name="brennancenter.org">Template:Cite web</ref> This was the first time the Court had ruled that the Second Amendment guarantees an individual's right to own a gun.<ref>Template:Cite news</ref><ref>Template:Cite news</ref><ref name="brennancenter.org" /> In McDonald v. Chicago (2010), the Supreme Court clarified that the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment against state and local governments.<ref name="nytimes.com">Template:Cite news</ref> In Caetano v. Massachusetts (2016), the Supreme Court reiterated its earlier rulings that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding," and that its protection is not limited only to firearms, nor "only those weapons useful in warfare." In addition to affirming the right to carry firearms in public, NYSRPA v. Bruen (2022) created a new test that laws seeking to limit Second Amendment rights must be based on the history and tradition of gun rights, although the test was refined to focus on similar analogues and general principles rather than strict matches from the past in United States v. Rahimi (2024). The debate between various organizations regarding gun control and gun rights continues.<ref>Template:Cite book</ref>

Text

There are several versions of the text of the Second Amendment, each with capitalization or punctuation differences. Differences exist between the version passed by Congress and put on display and the versions ratified by the states.<ref>The second amendment's capitalization and punctuation are not uniformly reported; another version has three commas, after "militia", "state", and "arms". Since documents were at that time copied by hand, variations in punctuation and capitalization are common, and the copy retained by the first Congress, the copies transmitted by it to the state legislatures, and the ratifications returned by them show wide variations in such details. Letter from Marlene McGuirl, Chief, British-American Law Division, Library of Congress (October 29, 1976).</ref><ref name="Clause and Effect">Template:Cite news</ref><ref name="archives">Template:Cite web</ref><ref>Template:Cite book</ref> These differences have been a focus of debate regarding the meaning of the amendment, particularly regarding the importance of what the courts have called the prefatory clause.<ref>Template:Cite web. Business Insider. Retrieved on July 1, 2016.</ref><ref name=":0">Template:Cite news</ref>

The final, handwritten original of the Bill of Rights as passed by Congress, with the rest of the original prepared by scribe William Lambert, is preserved in the National Archives.<ref>Template:Cite web</ref> This is the version ratified by Delaware<ref name="Which Is the Constitution?">Davies, pp. 209–16.</ref> and used by the Supreme Court in District of Columbia v. Heller:<ref>Template:Cite journal</ref> Template:Blockquote

Some state-ratified versions, such as Maryland's, omitted the first or final commas:<ref name="Which Is the Constitution?" /><ref>Template:Cite book</ref><ref name="Clause and Effect" /> Template:Blockquote

The ratification acts from New York, Pennsylvania, Rhode Island, and South Carolina contained only one comma, but with differences in capitalization. Pennsylvania's act states:<ref>Template:Cite book</ref><ref name="loc">Template:Cite web</ref><ref>Template:Cite web</ref>

The ratification act from New Jersey has no commas:<ref name="Which Is the Constitution?" />

Pre-Constitution background

Influence of the English Bill of Rights of 1689

The right of Protestants to bear arms in English history is regarded in English common law as a subordinate auxiliary right of the primary rights to personal security, personal liberty, and private property. According to Sir William Blackstone, "TheTemplate:Nbsp... last auxiliary right of the subjectTemplate:Nbsp... is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which isTemplate:Nbsp... declared byTemplate:Nbsp... statute, 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."<ref name="Blackstone 1765">Template:Cite book</ref>

The English Bill of Rights of 1689 emerged from a tempestuous period in English politics during which two issues were major sources of conflict: the authority of the king to govern without the consent of Parliament, and the role of Catholics in a country with a staunchly Protestant majority. Ultimately, the Catholic James II was overthrown in the Glorious Revolution, and his successors, the Protestants William III and Mary II, accepted the conditions that were codified in the bill. One of the issues the bill resolved was the authority of the king to disarm his subjects, after James II had disarmed many Protestants that were "suspected or knowne" of disliking the government,<ref>Bogus, Carl T. "The Hidden History of the Second Amendment". https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/davlr31&id=319&men_tab=srchresults.</ref> and had argued with Parliament over his desire to maintain a standing (or permanent) army.Template:Efn The bill states that it is acting to restore "ancient rights" trampled upon by James II, though some have argued that the English Bill of Rights created a new right to have arms, which developed out of a duty to have arms.<ref>Joyce Lee Malcolm, Right to keep and bear arms|To Keep and Bear Arms.</ref> In District of Columbia v. Heller (2008), the Supreme Court did not accept this view, remarking that the English right at the time of the passing of the English Bill of Rights was "clearly an individual right, having nothing whatsoever to do with service in the militia" and that it was a right not to be disarmed by the Crown and was not the granting of a new right to have arms.<ref>"They accordingly obtained an assurance from William and Mary, in theTemplate:Nbsp... (Bill of Rights), that Protestants would never be disarmed:Template:Nbsp... This right has long been understood to be the predecessor to our Second Amendment ... It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament." Template:Cite web</ref>

The text of the English Bill of Rights of 1689 includes language protecting the right of Protestants against disarmament by the Crown, stating: "That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law."<ref name="c21WillMarSess2">Template:Cite web</ref> It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament.<ref>Barnett, Law, p. 172.</ref>

The statement in the English Bill of Rights concerning the right to bear arms is often quoted only in the passage where it is written as above and not in its full context. In its full context it is clear that the bill was asserting the right of Protestant citizens not to be disarmed by the king without the consent of Parliament and was merely restoring rights to Protestants that the previous King briefly and unlawfully had removed. In its full context it reads:<ref name="c21WillMarSess2" />

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

The English Bill of Rights includes the proviso that arms must be as "allowed by law". This has been the case before and after the passage of the Bill. While it did not override earlier restrictions on the ownership of guns for hunting, it is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments.<ref>"Where a later enactment does not expressly repeal an earlier enactment which it has power to override, but the provisions of the later enactment are contrary to those of the earlier, the latter by implication repeals the earlier." R v. Burke, [1998] EWHC Admin 913; "[T]he Bill of RightsTemplate:Nbsp... was declaratory of the common law. It contained in it its own words of limitation, namely that the right to have arms for self-defence is limited by the words 'and as allowed by Law'. The law is a changing thing. Parliament by statute can repeal the common lawTemplate:Nbsp... Where the Bill of Rights says that 'the Subjects may have arms for their defence suitable for their condition and as allowed by law', 'and as allowed by law' means 'and as allowed by law for the time being'[.]" R v. Burke, [1999] EWCA Civ 923.</ref>

There is some difference of opinion as to how revolutionary the events of 1688–89 actually were, and several commentators make the point that the provisions of the English Bill of Rights did not represent new laws, but rather stated existing rights. Mark Thompson wrote that, apart from determining the succession, the English Bill of Rights did "little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already Template:Sic."<ref>Template:Cite book qtd. in Maer and Gay, p. 4.</ref> Before and after the English Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm.<ref name="isbn0-674-89307-7">Malcolm, To Keep and Bear Arms, p. 51.</ref> In 1765, Sir William Blackstone wrote the Commentaries on the Laws of England describing the right to have arms in England during the 18th century as a subordinate auxiliary right of the subject that was "also declared" in the English Bill of Rights.<ref name="Blackstone 1765" /><ref name="Bodenahamer">Ely and Bodenhamer, pp. 89–91.</ref><ref name="HeymanChigagoKent">Heyman, pp. 253–59. "Finally, we should note that (contrary to Kates's assertion), Blackstone nowhere suggests that the right to arms derives from 'the common law'. Instead, this is a right that is secured by 'the constitution', and in particular by the Bill of Rights."</ref><ref>Template:Cite web</ref>

Although there is little doubt that the writers of the Second Amendment were heavily influenced by the English Bill of Rights, it is a matter of interpretation as to whether they were intent on preserving the power to regulate arms to the states over the federal government (as the English Parliament had reserved for itself against the monarch) or whether it was intent on creating a new right akin to the right of others written into the Constitution (as the Supreme Court decided in Heller). Some in the United States have preferred the "rights" argument arguing that the English Bill of Rights had granted a right. The need to have arms for self-defence was not really in question. Peoples all around the world since time immemorial had armed themselves for the protection of themselves and others, and as organized nations began to appear these arrangements had been extended to the protection of the state.<ref>{{efn|E.g., King Henry II's Assize of Arms and the Statute of Winchester of 1285. See: Template:Cite encyclopedia</ref> Without a regular army and police force, it had been the duty of certain men to keep watch and ward at night and to confront and capture suspicious persons. Every subject had an obligation to protect the king's peace and assist in the suppression of riots.<ref name="Levy1999">Levy, pp. 136–37.</ref>

Influence of the British Militia Act 1757

In 1757 Great Britain's Parliament created the Militia Act 1757 (30 Geo. 2. c. 25), "An Act for better ordering of the militia forces in the several counties of that part of Great Britain called England".<ref>Template:Cite web</ref> This act declared that "a well-ordered and well-disciplined militia is essentially necessary to the safety, peace and prosperity of this kingdom," and that the current militia laws for the regulation of the militia were defective and ineffectual. Influenced by this act, in 1775 Timothy Pickering created "An Easy Plan of Discipline for a Militia".<ref>Template:Cite web</ref> Greatly inhibited by the events surrounding Salem, Massachusetts, where the plan was printed, Pickering submitted the writing to George Washington.<ref>Template:Cite web</ref> On May 1, 1776, the Massachusetts Bay Councell resolved that Pickering's discipline, a modification of the 1757 act, be the discipline of their Militia.<ref>Template:Cite web</ref> On March 29, 1779, for members of the Continental Army this was replaced by Von Steuben's Regulations for the Order and Discipline of the Troops of the United States.<ref>Template:Cite web</ref> With ratification of the Second Amendment, after May 8, 1792, the entire United States Militia, barring two declarations, would be regulated by Von Steuben's Discipline.<ref>Template:Cite web</ref>

America before the U.S. Constitution

File:Minute Man Statue Lexington Massachusetts cropped.jpg

Ideals that helped to inspire the Second Amendment in part are symbolized by the minutemen.<ref name="Saul_Cornell_two_models">Template:Cite book</ref>Template:Full citation needed

King Charles I authorized the use of arms for special defense and safety, on land and at sea, against:

• destructive forces<ref name="Roberts">Template:Cite book</ref>
• invasive forces<ref name="Roberts" />
• detrimental forces<ref name="Roberts" />
• annoying forces<ref name="Roberts" />

The Military Company of Massachusetts had already ordered munition before the authorization was signed. Early Americans had other uses for arms, besides the uses King Charles had in mind:Template:EfnTemplate:Efn<ref name="isbn0-300-08901-5">Levy, p. 136.</ref><ref name="Merkel62withquote">Merkel and Uviller, pp. 62, 179 ff, 183, 188 ff, 306. "[T]he right to bear arms was articulated as a civic right inextricably linked to the civic obligation to bear arms for the public defense."</ref><ref name="isbn1-57607-347-5pg155">Spitzer, pp. 155–59.</ref><ref name="isbn0-253-21040-2">Dulaney, p. 2.</ref><ref name="Bogus2001">Template:Cite book</ref><ref name="isbn0-8223-3017-2pg189">Merkel and Uviller, pp. 62, 179ff, 183, 188ff, 306.</ref>

• safeguarding against tyrannical governments<ref>Template:Cite magazine</ref>
• suppressing insurrection, allegedly including slave revolts,<ref name="Bogus1998">Template:Cite journal</ref><ref name="Hartmann2013">Template:Cite news</ref><ref name="Slave_Insurrection_motherjones">Template:Cite web</ref> though professor Paul Finkelman has pointed out that the claim of a specific intent to protect the ability to put down slave revolts is not supported by the historical record<ref name="finkelman">Template:Cite web</ref>
• facilitating a natural right of self-defense<ref name="papers.ssrn.com">Hardy, p. 1237. "Early Americans wrote of the right in light of three considerations: (1) as auxiliary to a natural right of self-defense; (2) as enabling an armed people to deter undemocratic government; and (3) as enabling the people to organize a militia system."</ref>

Which of these considerations were thought of as most important and ultimately found expression in the Second Amendment is disputed. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776 asserted that, "the people have a right to bear arms for the defence of themselves and the state."<ref>Template:Cite web</ref>

During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, including many who were loyal to British rule. As defiance and opposition to British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists known as Patriots, who favored independence from British rule. As a result, some Patriots created their own militias that excluded the Loyalists and then sought to stock independent armories for their militias. In response to this arms build-up, the British Parliament established an embargo of firearms, parts and ammunition against the American colonies<ref name="DeConde2001">Template:Cite book</ref> which in some instance came to be referred to as Powder Alarms. King George III also began disarming individuals who were in the most rebellious areas in the 1760s and 1770s.<ref>Template:Cite web</ref>

British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Right, Blackstone's summary of the Declaration of Right, their own militia laws and common law rights to self-defense.<ref name="HalbrookHardy">Template:Cite journal cited in Halbrook, A Right to Bear Arms, p. 7.</ref> While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense.<ref name="HalbrookHardy" /> Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars' interpretation of Blackstone.<ref>Charles, "Arms for Their Defence?", p. 4.</ref>

The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 objecting to the Crown suppression of colonial opposition to the Townshend Acts:<ref name="HalbrookHardy" /><ref>Template:Cite web</ref> Template:Blockquote

The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with regular French army and naval forces and various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist militia and Hessian mercenaries. Following the Revolution, the United States was governed by the Articles of Confederation. Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the standing army was reduced to as few as 80 men.<ref name="isbn0-472-03370-0pg91-92">Anderson and Horwitz, pp. 91–92.</ref> They considered it to be bad that there was no effective federal military crackdown on an armed tax rebellion in western Massachusetts known as Shays' Rebellion.<ref>Template:Cite web</ref> Anti-federalists, on the other hand, took the side of limited government and sympathized with the rebels, many of whom were former Revolutionary War soldiers. Subsequently, the Constitutional Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.<ref name="isbn1-4051-1674-9pg398">Pole and Greene, p. 386.</ref><ref name="isbn1-85109-669-8">Vile, p. 30.</ref> Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power.<ref name="isbn0-8223-3017-2pg79">Merkel and Uviller, p. 79.</ref>

Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that James Madison "did not invent the right to keep and bear arms when he drafted the Second Amendment; the right was pre-existing at both common law and in the early state constitutions."<ref>McAffee and Quinlan, p. 781.</ref> In contrast, historian Jack Rakove suggests that Madison's intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed.<ref name="Rakove">Rakove, p. ?Template:Page needed</ref>

One aspect of the gun control debate is the conflict between gun control laws and the right to rebel against unjust governments. Blackstone in his Commentaries alluded to this right to rebel as the natural right of resistance and self preservation, to be used only as a last resort, exercisable when "the sanctions of society and laws are found insufficient to restrain the violence of oppression".<ref name="Blackstone 1765" /> Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation,<ref name="Millis">Millis, p. 49. "The founders sought to balance military, as they did political, power, between people, states, and nation[.]"</ref> as Alexander Hamilton explained in his "Concerning the Militia" essay published in 1788:<ref name="Millis" /><ref name="FederalistPapers29" /> Template:Blockquote

There was an ongoing debate beginning in 1789 about "the people" fighting governmental tyranny (as described by Anti-Federalists); or the risk of mob rule of "the people" (as described by the Federalists) related to the increasingly violent French Revolution.<ref>Template:Cite web</ref> A widespread fear, during the debates on ratifying the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens,Template:Efn or prohibiting citizens from arming themselves.<ref name="HalbrookHardy" /> Though it has been argued that the states lost the power to arm their citizens when the power to arm the militia was transferred from the states to the federal government by ArticleTemplate:NbspI, SectionTemplate:Nbsp8 of the Constitution, the individual right to arm was retained and strengthened by the Militia Acts of 1792 and the similar act of 1795.<ref>US Constitution Article 1 Section 8: "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."</ref><ref>Template:Cite web The national government has an exclusive right to provide for arming, organizing, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States. The state governments have the power of appointing the officers, and of training the militia, according to the discipline prescribed by Congress, if they should think proper to prescribe any. Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army.</ref>

More recently some have advanced what has been called the insurrectionist theory of the Second Amendment whereby it is the right of any citizen to take up arms against their government should they consider it illegitimate. Such a reading has been voiced by organizations such as the National Rifle Association of America (NRA)<ref>Template:Cite book</ref> and by various individuals including some elected officials.<ref>Template:Cite thesis</ref> Congressman Jamie Raskin, however, has argued that there is no basis in constitutional law or scholarship for this view.<ref name="20230927NYTRaskin">Template:Cite news</ref> He notes that, not only does this represent a misreading of the text of the Amendment as drafted, it stands in violation of other elements of the Constitution.<ref name="20230927NYTRaskin" />

State Constitutional Precursors to the Second Amendment

Related Articles & Sections within the first State Constitutions Adopted after May 10, 1776. Note: On May 10, 1776, Congress passed a resolution recommending that any colony with a government that was not inclined toward independence should form one that was.<ref>Template:Cite book</ref>

Virginia, June 12, 1776 Virginia's Constitution lists the reasons for dissolving its ties with the King in the formation of its own independent state government. Including the following: Keeping among us, in times of peace, standing armies and ships of war. Effecting to render the military independent of, and superior to, the civil power. * These same reasons would later be outlined within the Declaration of Independence. A Declaration of Rights. Section 13. 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; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.<ref>Template:Cite web</ref>

Pennsylvania, September 28, 1776 Article 13. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the 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.<ref>Template:Cite web</ref> This is the first instance in relationship to U.S. Constitutional Law of the phrase "right to bear arms". Article 43. The inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed;<ref>Template:Cite journal</ref> It is relevant that Pennsylvania was a Quaker colony traditionally opposed to bearing arms. "In settling Pennsylvania, William Penn had a great experiment in view, a 'holy experiment', as he term[ed] it. This was no less than to test, on a scale of considerable magnitude, the practicability of founding and governing a State on the sure principles of the Christian religion; where the executive should be sustained without arms; where justice should be administered without oaths; and where real religion might flourish without the incubus of a hierarchical system."<ref>Template:Cite book</ref> The non-Quaker residents, many from the western Counties, complained often and loudly of being denied the right to a common defense. By the time of the American Revolution, through what could be described as a revolution within a revolution, the pro-militia factions had gained ascendancy in the state's government. And by a manipulation through the use of oaths, disqualifying Quaker members, they made up a vast majority of the convention forming the new state constitution; it was only natural that they would assert their efforts to form a compulsory state militia in the context of a "right" to defend themselves and the state.<ref>Template:Cite journal</ref>

Maryland, November 11, 1776 Articles XXV–XXVII. 25. That a well-regulated militia is the proper and natural defence of a free government. 26. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature. 27. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.<ref>Template:Cite web</ref>

North Carolina, December 18, 1776 A Declaration of Rights. Article XVII. 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.<ref>Template:Cite web</ref>

New York, April 20, 1777 Article XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth. And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.<ref>Template:Cite web</ref>

Vermont, July 8, 1777 Chapter 1. Section XVIII. That the people have a right to bear arms for the defence of the themselves and the State; and as standing armies, in the 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.<ref>Template:Cite web</ref>

Massachusetts, June 15, 1780 A Declaration of Rights. Chapter 1. Article XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.<ref>Template:Cite web</ref>

Drafting and adoption of the Constitution

In March 1785, delegates from Virginia and Maryland assembled at the Mount Vernon Conference to fashion a remedy to the inefficiencies of the Articles of Confederation. The following year, at a meeting in Annapolis, Maryland, 12 delegates from five states (New Jersey, New York, Pennsylvania, Delaware, and Virginia) met and drew up a list of problems with the current government model. At its conclusion, the delegates scheduled a follow-up meeting in Philadelphia, Pennsylvania for May 1787 to present solutions to these problems, such as the absence of:<ref>Vile, p. 19.</ref><ref name="Schmidt39">Schmidt et al., p. 39.</ref>

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

It quickly became apparent that the solution to all three of these problems required shifting control of the states' militias to the federal Congress and giving it the power to raise a standing army.<ref name="isbn0-300-09562-7">Williams, pp. 41–44.</ref> Article 1, Section 8 of the Constitution codified these changes by allowing the Congress to provide for the common defense and general welfare of the United States by doing the following:<ref>Template:Cite web</ref>

• raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
• provide and maintain a navy;
• make rules for the government and regulation of the land and naval forces;
• provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
• provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.

Some representatives mistrusted proposals to enlarge federal powers, because they were concerned about the inherent risks of centralizing power. Federalists, including James Madison, initially argued that a bill of rights was unnecessary, sufficiently confident that the federal government could never raise a standing army powerful enough to overcome a militia.<ref name="FederalistPapers46">The Federalist Papers No. 46 (James Madison) (concerning the influence of state and federal governments).</ref> Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.<ref>Template:Cite web</ref><ref>Template:Cite book</ref> Anti-federalists, on the other hand, advocated amending the Constitution with clearly defined and enumerated rights providing more explicit constraints on the new government. Many Anti-federalists feared the new federal government would choose to disarm state militias. Federalists countered that in listing only certain rights, unlisted rights might lose protection. The Federalists realized there was insufficient support to ratify the Constitution without a bill of rights and so they promised to support amending the Constitution to add a bill of rights following the Constitution's adoption. This compromise persuaded enough Anti-federalists to vote for the Constitution, allowing for ratification.<ref>Foner and Garraty, p. 914. "The Massachusetts compromise determined the fate of the Constitution, as it permitted delegates with doubts to vote for it in the hope that it would be amended."</ref> The Constitution was declared ratified on June 21, 1788, when nine of the original thirteen states had ratified it. The remaining four states later followed suit, although the last two states, North Carolina and Rhode Island, ratified only after Congress had passed the Bill of Rights and sent it to the states for ratification.<ref>Adamson, p. 63.</ref> James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June 8, 1789, and was adopted on December 15, 1791.

Debates on amending the Constitution

The debate surrounding the Constitution's ratification is of practical importance, particularly to adherents of originalist and strict constructionist legal theories. In the context of such legal theories and elsewhere, it is important to understand the language of the Constitution in terms of what that language meant to the people who wrote and ratified the Constitution.<ref>Template:Cite web Article quotes Robert Bork: "If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended."</ref>

Robert Whitehill, a delegate from Pennsylvania, sought to clarify the draft Constitution with a bill of rights explicitly granting individuals the right to hunt on their own land in season,<ref>Template:Cite book</ref> though Whitehill's language was never debated.<ref>Template:Cite book</ref>

Argument for state power

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

In contrast, Article I, Section 8, Clause 16 of the U.S. Constitution states:<ref>Template:Cite web</ref>

Government tyranny

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

George Mason also argued the importance of the militia and right to bear arms by reminding his compatriots of the British government's efforts "to disarm the people; that it was the best and most effectual way to enslave themTemplate:Nbsp... by totally disusing and neglecting the militia." He also clarified that under prevailing practice the militia included all people, rich and poor. "Who are the militia? They consist now of the whole people, except a few public officers." Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.<ref name="emerson" /><ref>Template:Cite book</ref>

Writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included "the right to keep and bear arms" in a list of basic "human rights", which he proposed to be added to the Constitution.<ref>Template:Cite book</ref>

Patrick Henry argued in the Virginia ratification convention on June 5, 1788, for the dual rights to arms and resistance to oppression:<ref>Template:Cite book</ref>

To maintain slavery

Preserving slave patrols

File:Slave Patrol.jpg

An illustration of Mississippi slave patrol

In the slave states, the militia was available for military operations, but its biggest function was to police the slaves.<ref name="20130117BlackMinnPost" /><ref>Template:Cite web</ref> According to Dr Carl T. Bogus, Professor of Law of the Roger Williams University Law School in Rhode Island,<ref name="20130117BlackMinnPost" /> the Second Amendment was written to assure the Southern states that Congress would not undermine the slave system by using its newly acquired constitutional authority over the militia to disarm the state militia and thereby destroy the South's principal instrument of slave control.<ref name="1998DavisLawReviewBOGUS" /> In his close analysis of James Madison's writings, Bogus describes the South's obsession with militias during the ratification process:<ref name="1998DavisLawReviewBOGUS">Template:Cite web</ref>

This preoccupation is clearly expressed in 1788<ref name="1998DavisLawReviewBOGUS" /> by the slaveholder Patrick Henry:<ref name="20130117BlackMinnPost">Template:Cite news</ref> Template:Blockquote

Therefore, Bogus argues, in a compromise with the slave states, and to reassure Patrick Henry, George Mason and other slaveholders that they would be able to keep their slave control militias independent of the federal government, James Madison (also slave owner) redrafted the Second Amendment into its current form "for the specific purpose of assuring the Southern states, and particularly his constituents in Virginia, that the federal government would not undermine their security against slave insurrection by disarming the militia."<ref name="1998DavisLawReviewBOGUS" />

Legal historian Paul Finkelman argues that this scenario is implausible.<ref name="finkelman" /> Henry and Mason were political enemies of Madison's, and neither man was in Congress at the time Madison drafted Bill of Rights; moreover, Patrick Henry argued against the ratification of both the Constitution and the Second Amendment, and it was Henry's opposition that led Patrick's home state of Virginia to be the last to ratify.<ref name="finkelman" />

Most Southern white men between the ages of 18 and 45 were required to serve on "slave patrols" which were organized groups of white men who enforced discipline upon enslaved blacks.<ref>Template:Cite book</ref> Bogus writes with respect to Georgia laws passed in 1755 and 1757 in this context: "The Georgia statutes required patrols, under the direction of commissioned militia officers, to examine every plantation each month and authorized them to search 'all Negro Houses for offensive Weapons and Ammunition' and to apprehend and give twenty lashes to any slave found outside plantation grounds."<ref>Template:Cite web</ref><ref name="20180222RawStory">Template:Cite news</ref>Template:Unreliable source?

Finkelman recognises that James Madison "drafted an amendment to protect the right of the states to maintain their militias," but insists that "The amendment had nothing to do with state police powers, which were the basis of slave patrols."<ref name="finkelman" />

To avoid arming free blacks

Firstly, slave owners feared that enslaved blacks might be emancipated through military service. A few years earlier, there had been a precedent when Lord Dunmore offered freedom to slaves who escaped and joined his forces with "Liberty to Slaves" stitched onto their jacket pocket flaps.<ref>Template:Cite book</ref> Freed slaves also served in General Washington's army.

Secondly, they also greatly feared "a ruinous slave rebellion in which their families would be slaughtered and their property destroyed." When Virginia ratified the Bill of Rights on December 15, 1791, the Haitian Revolution, a successful slave rebellion, was under way. The right to bear arms was therefore deliberately tied to membership in a militia by the slaveholder and chief drafter of the Amendment, James Madison, because only whites could join militias in the South.<ref>Template:Cite journal</ref>

In 1776, Thomas Jefferson had submitted a draft constitution for Virginia that said "no freeman shall ever be debarred the use of arms within his own lands or tenements". According to Picadio, this version was rejected because "it would have given to free blacks the constitutional right to have firearms".<ref>Template:Cite journal</ref>

Conflict and compromise in Congress produce the Bill of Rights

James Madison's initial proposal for a bill of rights was brought to the floor of the House of Representatives on June 8, 1789, during the first session of Congress. The initial proposed passage relating to arms was:<ref name="aoc-p451">Template:Cite web</ref>

On July 21, Madison again raised the issue of his bill and proposed that a select committee be created to report on it. The House voted in favor of Madison's motion,<ref>Template:Cite web</ref> and the Bill of Rights entered committee for review. The committee returned to the House a reworded version of the Second Amendment on July 28.<ref>Template:Cite web</ref> On August 17, that version was read into the Journal:<ref>Template:Cite web</ref> Template:Blockquote

In late August 1789, the House debated and modified the Second Amendment. These debates revolved primarily around the risk of "mal-administration of the government" using the "religiously scrupulous" clause to destroy the militia as British forces had attempted to destroy the Patriot militia at the commencement of the American Revolution. These concerns were addressed by modifying the final clause, and on August 24, the House sent the following version to the Senate: Template:Blockquote

The next day, August 25, the Senate received the amendment from the House and entered it into the Senate Journal. However, the Senate scribe added a comma before "shall not be infringed" and changed the semicolon separating that phrase from the religious exemption portion to a comma:<ref>Template:Cite web</ref> Template:Blockquote

By this time, the proposed right to keep and bear arms was in a separate amendment, instead of being in a single amendment together with other proposed rights such as the due process right. As a representative explained, this change allowed each amendment to "be passed upon distinctly by the States".<ref>Letter from Roger Sherman to Simeon Baldwin (August 22, 1789) qtd. in Bickford, et al., p. 16 See also letter from James Madison to Alexander White (August 24, 1789) qtd. in Madison, Writings, pp. 418–19.</ref> On September 4, the Senate voted to change the language of the Second Amendment by removing the definition of militia, and striking the conscientious objector clause:<ref>Template:Cite web</ref> Template:Blockquote

The Senate returned to this amendment for a final time on September 9. A proposal to insert the words "for the common defence" next to the words "bear arms" was defeated. A motion passed to replace the words "the best", and insert in lieu thereof "necessary to the" .<ref>Template:Cite web</ref> The Senate then slightly modified the language to read as the fourth article and voted to return the Bill of Rights to the House. The final version by the Senate was amended to read as: Template:Blockquote

The House voted on September 21, 1789, to accept the changes made by the Senate.

The enrolled original Joint Resolution passed by Congress on September 25, 1789, on permanent display in the Rotunda, reads as:<ref>Template:Cite web</ref> Template:Blockquote

On December 15, 1791, the Bill of Rights (the first ten amendments to the Constitution) was adopted, having been ratified by three-fourths of the states, having been ratified as a group by all the fourteen states then in existence except Connecticut, Massachusetts, and GeorgiaTemplate:Sndwhich added ratifications in 1939.<ref>Template:Cite web</ref>

Militia following ratification

File:Ketland1.jpg

Ketland brass barrel smooth bore pistol, common in Colonial America

During the first two decades following the ratification of the Second Amendment, public opposition to standing armies, among Anti-Federalists and Federalists alike, persisted and manifested itself locally as a general reluctance to create a professional armed police force, instead relying on county sheriffs, constables and night watchmen to enforce local ordinances.<ref name="DeConde2001" /> Though sometimes compensated, often these positions were unpaidTemplate:Sndheld as a matter of civic duty. In these early decades, law enforcement officers were rarely armed with firearms, using billy clubs as their sole defensive weapons.<ref name="DeConde2001" /> In serious emergencies, a posse comitatus, militia company, or group of vigilantes assumed law enforcement duties; these individuals were more likely than the local sheriff to be armed with firearms.<ref name="DeConde2001" />

On May 8, 1792, Congress passed "[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States" requiring:<ref name="1Stat272" /> Template:Blockquote

The act also gave specific instructions to domestic weapon manufacturers "that from and after five years from the passing of this act, muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound."<ref name="1Stat272">Template:Cite web</ref> In practice, private acquisition and maintenance of rifles and muskets meeting specifications and readily available for militia duty proved problematic; estimates of compliance ranged from 10 to 65 percent.<ref name="isbn0-8223-3017-2 pg294">Merkel and Uviller, pp. 293–294.</ref> Compliance with the enrollment provisions was also poor. In addition to the exemptions granted by the law for custom-house officers and their clerks, post-officers and stage drivers employed in the care and conveyance of U.S. mail, ferrymen, export inspectors, pilots, merchant mariners and those deployed at sea in active service; state legislatures granted numerous exemptions under Section 2 of the Act, including exemptions for: clergy, conscientious objectors, teachers, students, and jurors. Though a number of able-bodied white men remained available for service, many simply did not show up for militia duty. Penalties for failure to appear were enforced sporadically and selectively.<ref name="isbn0-8223-3017-2 pg120" /> None is mentioned in the legislation.<ref name="1Stat272" />

The first test of the militia system occurred in July 1794, when a group of disaffected Pennsylvania farmers rebelled against federal tax collectors whom they viewed as illegitimate tools of tyrannical power.<ref name="isbn0-87023-295-9">Szatmary, p. 107.</ref> Attempts by the four adjoining states to raise a militia for nationalization to suppress the insurrection proved inadequate. When officials resorted to drafting men, they faced bitter resistance. Forthcoming soldiers consisted primarily of draftees or paid substitutes as well as poor enlistees lured by enlistment bonuses. The officers, however, were of a higher quality, responding out of a sense of civic duty and patriotism, and generally critical of the rank and file.<ref name="DeConde2001" /> Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.<ref name="DeConde2001" /> In October, President George Washington and General Harry Lee marched on the 7,000 rebels who conceded without fighting. The episode provoked criticism of the citizen militia and inspired calls for a universal militia. Secretary of War Henry Knox and Vice President John Adams had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production.<ref name="DeConde2001" /> Congress did subsequently pass "[a]n act for the erecting and repairing of Arsenals and Magazines" on April 2, 1794, two months prior to the insurrection.<ref>Template:Cite web</ref> Nevertheless, the militia continued to deteriorate and twenty years later, the militia's poor condition contributed to several losses in the War of 1812, including the sacking of Washington, D.C., and the burning of the White House in 1814.<ref name="isbn0-8223-3017-2 pg120">Merkel and Uviller, p. 12.</ref>

In the 20th century, Congress passed the Militia Act of 1903. The act defined the militia as every able-bodied male aged 18 to 44 who was a citizen or intended to become one. The militia was then divided by the act into the United States National Guard and the unorganized Reserve Militia.<ref>Template:Cite journal</ref><ref>Template:Cite journal</ref>

Federal law continues to define the militia as all able-bodied males aged 17 to 44, who are citizens or intend to become one, and female citizens who are members of the National Guard. The militia is divided into the organized militia, which consists of the National Guard and Naval Militia, and the unorganized militia.<ref>Template:Cite web</ref>

Scholarly commentary

Early commentary

The "Federal Farmer"

In May 1788, the pseudonymous author "Federal Farmer" (his real identity is presumed to be either Richard Henry Lee or Melancton Smith) wrote in Additional Letters From The Federal Farmer #169 or Letter XVIII regarding the definition of a "militia": Template:Blockquote

George Mason

In June 1788, George Mason addressed the Virginia Ratifying Convention regarding a "militia:" Template:Blockquote

Tench Coxe

In 1792, Tench Coxe made the following point in a commentary on the Second Amendment:<ref>"Remarks on the First Part of the Amendments to the Federal Constitution", Federal Gazette, June 18, 1792, at 2, col. 1</ref><ref name="guncite">Template:Cite web</ref><ref name="Halbrook1998" />

Tucker/Blackstone

The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker. He annotated a five-volume edition of Sir William Blackstone's Commentaries on the Laws of England, a critical legal reference for early American attorneys published in 1803.<ref name="tucker">Tucker, p. 490</ref><ref>Template:Cite web</ref> Tucker wrote:<ref name="BlackstoneTucker1803">Template:Cite book</ref> Template:Blockquote

In footnotes 40 and 41 of the Commentaries, Tucker stated that the right to bear arms under the Second Amendment was not subject to the restrictions that were part of English law: "The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government" and "whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England." Blackstone himself also commented on English game laws, Vol. II, p. 412, "that the prevention of popular insurrections and resistance to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws."<ref name="tucker" /> Blackstone discussed the right of self-defense in a separate section of his treatise on the common law of crimes. Tucker's annotations for that latter section did not mention the Second Amendment but cited the standard works of English jurists such as Hawkins.Template:Efn

Further, Tucker criticized the English Bill of Rights for limiting gun ownership to the very wealthy, leaving the populace effectively disarmed, and expressed the hope that Americans "never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty."<ref name="tucker" />

William Rawle

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

Speaking of the Second Amendment generally, Rawle wrote:Template:Sfn<ref>Template:Harvtxt Preceded by "The people of each state, by the amended constitution, pledge themselves to each other for the sacred preservation of certain detailed principles, without which the republican form of government would be impure and weak. ...

The first is a declaration that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable, yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.

The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed." (pp. 121-122)</ref> Template:Blockquote

Rawle, long before the concept of incorporation was formally recognized by the courts, or Congress drafted the Fourteenth Amendment, contended that citizens could appeal to the Second Amendment should either the state or federal government attempt to disarm them. He did warn, however, that "this right [to bear arms] ought notTemplate:Nbsp... be abused to the disturbance of the public peace" and, paraphrasing Coke, observed: "An assemblage of persons with arms, for unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace."Template:SfnTemplate:Sfn

Joseph Story

Joseph Story articulated in his influential Commentaries on the Constitution<ref>Template:Cite book</ref> the orthodox view of the Second Amendment, which he viewed as the amendment's clear meaning:<ref name="Story1865">Template:Cite book</ref><ref name="Story" /> Template:Blockquote

Story describes a militia as the "natural defence of a free country", both against foreign foes, domestic revolts and usurpation by rulers. The book regards the militia as a "moral check" against both usurpation and the arbitrary use of power, while expressing distress at the growing indifference of the American people to maintaining such an organized militia, which could lead to the undermining of the protection of the Second Amendment.<ref name="Story">Template:Cite book</ref>

Lysander Spooner

Abolitionist Lysander Spooner, commenting on bills of rights, stated that the object of all bills of rights is to assert the rights of individuals against the government and that the Second Amendment right to keep and bear arms was in support of the right to resist government oppression, as the only security against the tyranny of government lies in forcible resistance to injustice, for injustice will certainly be executed, unless forcibly resisted.<ref>Spooner, pp. 17–18.</ref> Spooner's theory provided the intellectual foundation for John Brown and other radical abolitionists who believed that arming slaves was not only morally justified, but entirely consistent with the Second Amendment.<ref>Renehan, pp. 172–74.</ref> An express connection between this right and the Second Amendment was drawn by Lysander Spooner who commented that a "right of resistance" is protected by both the right to trial by jury and the Second Amendment.<ref>Spooner, p. 17.</ref>

The congressional debate on the proposed Fourteenth Amendment concentrated on what the Southern States were doing to harm the newly freed slaves, including disarming the former slaves.<ref>Cramer, p. ?Template:Page needed</ref>

Timothy Farrar

In 1867, Judge Timothy Farrar published his Manual of the Constitution of the United States of America, which was written when the Fourteenth Amendment was "in the process of adoption by the State legislatures":<ref name="Halbrook1998" /><ref>Template:Cite book</ref>

Judge Thomas Cooley

Judge Thomas M. Cooley, perhaps the most widely read constitutional scholar of the nineteenth century, wrote extensively about this amendment,<ref>Template:Cite journal</ref><ref name="Cooley1871">Template:Cite book</ref> and he explained in 1880 how the Second Amendment protected the "right of the people":<ref name="Cooley1880">Template:Cite book</ref>

Commentary since late 20th century

File:Handgun collection.JPG

Assortment of 20th century handguns

Until the late 20th century, there was little scholarly commentary of the Second Amendment.<ref>Garry Wills, A Necessary Evil: A History of American Distrust of Government, Simon and Schuster, 1999, p. 252. ("Until recently, the Second Amendment was a little-visited area of the Constitution. A two thousand-page commentary on the Constitution put out by the Library of Congress in 1973 has copious annotation for most clauses, but less than a page and a half for the Second Amendment.")</ref> In the latter half of the 20th century, there was considerable debate over whether the Second Amendment protected an individual right or a collective right.<ref name="rkba1982">Template:Cite book</ref> The debate centered on whether the prefatory clause ("A well regulated militia being necessary to the security of a free State") declared the amendment's only purpose or merely announced a purpose to introduce the operative clause ("the right of the People to keep and bear arms shall not be infringed"). Scholars advanced three competing theoretical models for how the prefatory clause should be interpreted.<ref>Template:Cite web</ref>

The first, known as the "states' rights" or "collective right" model, held that the Second Amendment does not apply to individuals; rather, it recognizes the right of each state to arm its militia. Under this approach, citizens "have no right to keep or bear arms, but the states have a collective right to have the National Guard".<ref name="Halbrook1998">Template:Cite book</ref> Advocates of collective rights models argued that the Second Amendment was written to prevent the federal government from disarming state militias, rather than to secure an individual right to possess firearms.<ref name="Klukowski 2008">Template:Cite journal</ref> Prior to 2001, every circuit court decision that interpreted the Second Amendment endorsed the "collective right" model.<ref>Template:Cite journal</ref><ref>Template:Cite journal</ref> However, beginning with the Fifth Circuit's opinion United States v. Emerson in 2001, some circuit courts recognized that the Second Amendment protects an individual right to bear arms.<ref>Template:Cite journal</ref><ref>Template:Cite book</ref>

The second, known as the "sophisticated collective right model", held that the Second Amendment recognizes some limited individual right. However, this individual right could be exercised only by actively participating members of a functioning, organized state militia.<ref name="Barnett2004">Template:Cite book</ref><ref name="Klukowski 2008" /> Some scholars have argued that the "sophisticated collective rights model" is, in fact, the functional equivalent of the "collective rights model".<ref>George A. Mocsary, Explaining Away the Obvious: The Infusibility of Characterizing the Second Amendment as a Nonindividual Right, 76 Fordham Law Review 2113, 2133 (2008).</ref> Other commentators have observed that prior to Emerson, five circuit courts specifically endorsed the "sophisticated collective right model".<ref>Kenneth A. Klukowski, Citizen Gun Rights: Incorporating the Second Amendment Through the Privileges or Immunities Clause, 39 New Mexico Law Review 195, 200 (2009) (citing United States v. Wright, 117 F.3d 1265, 1273–74 (11th Cir. 1997); United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996); United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977); Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942)).</ref>

The third, known as the "standard model", held that the Second Amendment recognized the personal right of individuals to keep and bear arms.<ref name="Halbrook1998" /> Supporters of this model argued that "although the first clause may describe a general purpose for the amendment, the second clause is controlling and therefore the amendment confers an individual right 'of the people' to keep and bear arms".<ref>Template:Cite journal</ref> Additionally, scholars who favored this model argued the "absence of founding-era militias mentioned in the Amendment's preamble does not render it a 'dead letter' because the preamble is a 'philosophical declaration' safeguarding militias and is but one of multiple 'civic purposes' for which the Amendment was enacted".<ref>George A. Mocsary, "Explaining Away the Obvious: The Infusibility of Characterizing the Second Amendment as a Nonindividual Right", 76 Fordham Law Review 2113, 2134 (2008).</ref>

The question of a collective right versus an individual right was progressively resolved in favor of the individual rights model, beginning with the Fifth Circuit ruling in United States v. Emerson (2001), along with the Supreme Court's rulings in District of Columbia v. Heller (2008), and McDonald v. Chicago (2010). In Heller, the Supreme Court resolved any remaining circuit splits by ruling that the Second Amendment protects an individual right.<ref name="isbn1-933995-17-3">Shapiro, p. 148.</ref> Although the Second Amendment is the only Constitutional amendment with a prefatory clause, such linguistic constructions were widely used elsewhere in the late eighteenth century.<ref name="Volokh1998">Volokh, "Commonplace", p. 793. "The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause. Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era: State Bills of Rights contained justification clauses for many of the rights they secured."</ref>

Warren E. Burger, a conservative Republican appointed chief justice of the United States by President Richard Nixon, wrote in 1990 following his retirement:<ref>Template:Cite book</ref> Template:Blockquote

And in 1991, Burger stated:<ref>Template:Cite webTemplate:Cbignore</ref> Template:Blockquote

In a 1992 opinion piece, six former American attorneys general wrote:<ref>Template:Cite news</ref> Template:Blockquote

Research by Robert Spitzer found that every law journal article discussing the Second Amendment through 1959 "reflected the Second Amendment affects citizens only in connection with citizen service in a government organized and regulated militia." Only beginning in 1960 did law journal articles begin to advocate an "individualist" view of gun ownership rights.<ref>Template:Cite journal</ref><ref>Template:Cite web</ref> The opposite of this "individualist" view of gun ownership rights is the "collective-right" theory, according to which the amendment protects a collective right of states to maintain militias or an individual right to keep and bear arms in connection with service in a militia (for this view see for example the quote of Justice John Paul Stevens in the Meaning of "well regulated militia" section below).<ref name="Sevens dissent" /> In his book, Six Amendments: How and Why We Should Change the Constitution, Justice John Paul Stevens for example submits the following revised Second Amendment: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms when serving in the militia shall not be infringed."<ref>Template:Cite web</ref>

Meaning of "well regulated militia"

An early use of the phrase "well-regulated militia" may be found in Andrew Fletcher's 1698 A Discourse of Government with Relation to Militias, as well as the phrase "ordinary and ill-regulated militia".<ref>Template:Cite book</ref> Fletcher meant "regular" in the sense of regular military, and advocated the universal conscription and regular training of men of fighting age. Jefferson thought well of Fletcher, commenting that "the political principles of that patriot were worthy the purest periods of the British constitution. They are those which were in vigour."<ref>Template:Cite letter</ref>

The term "regulated" means "disciplined" or "trained".<ref name="Merkel361">Merkel, p. 361. "Well-regulated meant well trained, rather than subject to rules and regulations."</ref> In Heller, the U.S. Supreme Court stated that "[t]he adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training."<ref name="ReferenceA">Heller, Opinion of the Court, Part II-A-2.</ref>

In the year before the drafting of the Second Amendment, in Federalist No. 29 ("On the Militia"), Alexander Hamilton wrote the following about "organizing", "disciplining", "arming", and "training" of the militia as specified in the enumerated powers:<ref name="FederalistPapers29" />

Template:AnchorJustice Scalia, writing for the Court in Heller:<ref>Template:Cite web</ref> Template:Blockquote

Justice Stevens in dissent:<ref name="Sevens dissent">Template:Cite web</ref> Template:Blockquote

Meaning of "the right of the People"

Justice Antonin Scalia, writing for the majority in Heller, stated:

Scalia further specifies who holds this right:<ref>Template:Cite journal</ref> Template:Blockquote

An earlier case, United States v. Verdugo-Urquidez (1990), dealt with nonresident aliens and the Fourth Amendment, but led to a discussion of who are "the People" when referred to elsewhere in the Constitution:<ref name="Kopel1999">Template:Cite book</ref> Template:Blockquote

According to the majority in Heller, there were several different reasons for this amendment, and protecting militias was only one of them; if protecting militias had been the only reason then the amendment could have instead referred to "the right of the militia to keep and bear arms" instead of "the right of the people to keep and bear arms".<ref>Template:Cite book</ref><ref>Template:Cite journal</ref>

Meaning of "keep and bear arms"

In Heller the majority rejected the view that the term "to bear arms" implies only the military use of arms:<ref name="District of Columbia v Heller" /> Template:Blockquote

In a dissent, joined by justices Souter, Ginsburg, and Breyer, Justice Stevens said:<ref name="District of Columbia v Heller (No. 07-290)">Template:Cite web</ref> Template:Blockquote

A May 2018 analysis by Dennis Baron contradicted the majority opinion:<ref>Template:Cite news</ref> Template:Blockquote

A paper from 2008 found that before 1820, the use of the phrase "bear arms" was commonly used in a civilian context, such as hunting and personal self-defense, in both American and British law.<ref>Template:Cite journal</ref> One scholar suggests that the right to "keep and bear arms" further includes a right to privately manufacture firearms.<ref>Template:Cite journal</ref>

Analysis of grammar and syntax

The Second Amendment is viewed by scholars as divided into two clauses, a prefatory clause, and an operative clause.

The prefatory clause includes the text:

A well regulated Militia, being necessary to the security of a free State,

Followed by the operative clause:

the right of the people to keep and bear Arms, shall not be infringed.

Under the standard model, the prefatory clause is understood to be merely amplifying the operative clause. The prefatory clause was meant as a non-exclusive exampleTemplate:Sndone of many justifications for the Second Amendment.<ref name="Bodenahamer" /> This interpretation is consistent with the position that the Second Amendment protects an individual right.<ref name="isbn1-55786-594-9">Frey and Wellman, p. 194.</ref>

Under the collective right models, the prefatory clause was considered essential as a pre-condition for the main clause.<ref name="isbn0-8223-3031-8">Merkel and Uviller, p. 150. "The linguistically correct reading of this unique construction is as though it said: 'Congress shall not limit the right of the people (that is, the potential members of the state militia) to acquire and keep the sort of arms appropriate to their military duty, so long as the following statement remains true: "an armed, trained, and controlled militia is the bestTemplate:Sndif not the onlyTemplate:Sndway to protect the state government and the liberties of its people against uprisings from within and incursions or oppression from without."'"</ref> This interpretation claimed that this was a grammar structure common during the era the Second Amendment was written and that this grammar dictated that the Second Amendment protected a collective right to firearms to the extent necessary for militia duty.<ref>Template:Cite web</ref><ref>Winterer, pp. 1–21</ref> Many linguistic scholars reject this interpretation of the grammar and syntax, asserting, "...that the prefatory clause is neither internal nor conditional; instead, it's temporal and external, meaning the opening words introduce its context and purpose."<ref>Template:Cite web</ref>

The comma between the word "Arms" and "shall" also has been involved in debate centered around the meaning and interpretation of this one comma between the two words.<ref name=":1">Template:Cite web</ref><ref>Template:Cite web</ref><ref name=":0" /> Some argue that "...long-standing British tradition minimized punctuation's effect on laws" and that therefore this comma has little significance on the real meaning of the Second Amendment.<ref name=":1" />

The Second Amendment uses "passive voice" in its language as opposed to "active voice." Only the First Amendment to the United States Constitution uses "active voice" ("Congress shall make no law.")<ref name=":1" /> Debate around whom the Second Amendment applies to has also centered around this "passive voice" used in its wording.<ref>Template:Cite journal</ref> A Reason magazine analysis from January 2025 stated on the subject of the "passive" versus "active" voice used in the Second Amendment that:

The Bill of Rights' passive voice consistently elevates one object: individual rights. As for the subject, the Framers could neither specify nor predict what or who could infringe upon said rights. Thus, the Constitution, especially following the 14th Amendment's ratification, safeguards these rights from an exhaustive catalog of unscrupulous subjects—namely, state actors (e.g., cops, Congress, presidents, judges, city councils, etc.) that could violate these freedoms.<ref name=":1" />

Supreme Court cases

In the century following the ratification of the Bill of Rights, the intended meaning and application of the Second Amendment drew less interest than it does in modern times.<ref name="Saul_Cornell_neither_model">Template:Cite book</ref>Template:Full citation needed The vast majority of regulation was done by states, and the first case law on weapons regulation dealt with state interpretations of the Second Amendment. A notable exception to this general rule was Houston v. Moore, Template:Ussc, where the U.S. Supreme Court mentioned the Second Amendment in an aside.Template:Efn In the Dred Scott decision (1857), the opinion of the court stated that if African Americans were considered U.S. citizens, "It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the rightTemplate:Nbsp... to keep and carry arms wherever they went."<ref>Template:Cite web</ref>

State and federal courts historically have used two models to interpret the Second Amendment: the "individual rights" model, which holds that individuals hold the right to bear arms, and the "collective rights" model, which holds that the right is dependent on militia membership. The "collective rights" model has been rejected by the Supreme Court, in favor of the individual rights model, beginning with its District of Columbia v. Heller (2008) decision.

The Supreme Court's primary Second Amendment cases include United States v. Miller, (1939); District of Columbia v. Heller (2008); and McDonald v. Chicago (2010).

Heller and McDonald supported the individual rights model, under which the Second Amendment protects the right to keep and bear arms much as the First Amendment protects the right to free speech. Under this model, the militia is composed of members who supply their own arms and ammunition. This is generally recognized as the method by which militias have historically been armed, as the Supreme Court in Miller said:<ref>Template:Cite web</ref> Template:Blockquote

Of the collective rights model that holds that the right to arms is based on militia membership, the Supreme Court in Heller said:<ref>Template:Cite web</ref> Template:Blockquote

United States v. Cruikshank

In the Reconstruction Era case of United States v. Cruikshank, Template:Ussc, the defendants were white men who had killed more than sixty black people in what was known as the Colfax massacre and had been charged with conspiring to prevent blacks from exercising their right to bear arms. The Court dismissed the charges, holding that the Bill of Rights restricted Congress but not private individuals. The Court concluded, "[f]or their protection in its enjoyment, the people must look to the States."<ref>Cruikshank, at 552.</ref>

The Court stated that "[t]he Second AmendmentTemplate:Nbsp... has no other effect than to restrict the powers of the national governmentTemplate:Nbsp..."<ref>Cruikshank, at 553.</ref> Likewise, the Court held that there was no state action in this case, and therefore the Fourteenth Amendment was not applicable:<ref>Cruikshank, at 554.</ref> Template:Blockquote

Thus, the Court held a federal anti-Ku-Klux-Klan statute to be unconstitutional as applied in that case.<ref name="isbn1-933995-25-4">Doherty, p. 14.</ref>

Presser v. Illinois

In Presser v. Illinois, Template:Ussc, Herman Presser headed a German-American paramilitary shooting organization and was arrested for leading a parade group of 400 men, training and drilling with military weapons with the declared intention to fight, through the streets of Chicago as a violation of Illinois law that prohibited public drilling and parading in military style without a permit from the governor.<ref name="DeConde2001" /><ref>Template:Cite news</ref>

At his trial, Presser argued that the State of Illinois had violated his Second Amendment rights. The Supreme Court reaffirmed Cruikshank, and also held that the Second Amendment prevented neither the States nor Congress from barring private militias that parade with arms; such a right "cannot be claimed as a right independent of law". This decision upheld the States' authority to regulate the militia and that citizens had no right to create their own militias or to own weapons for semi-military purposes.<ref name="DeConde2001" /> The Court however observed with respect to the reach of the Amendment on the national government and the federal states and the role of the people therin: "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."<ref>Template:Cite web</ref> In essence the court said: "A state cannot prohibit the people therein from keeping and bearing arms to an extent that would deprive the United States of the protection afforded by them as a reserve military force."<ref name="Cramer1994">Template:Cite book</ref>

Miller v. Texas

In Miller v. Texas, Template:Ussc, Franklin Miller was convicted and sentenced to be executed for shooting a police officer to death with an illegally carried handgun in violation of Texas law. Miller sought to have his conviction overturned, claiming his Second Amendment rights were violated and that the Bill of Rights should be applied to state law. The Supreme Court ruled that the Second Amendment did not apply to state laws such as the Texas law, writing:<ref name="DeConde2001" /> "As the proceedings were conducted under the ordinary forms of criminal prosecutions there certainly was no denial of due process of law."<ref>Miller, at 539.</ref>

Robertson v. Baldwin

In Robertson v. Baldwin, Template:Ussc, the Supreme Court stated in dicta that "the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons."<ref>Robertson, at 281.</ref>

United States v. Schwimmer

United States v. Schwimmer, Template:Ussc, concerned a pacifist applicant for naturalization who in the interview declared not to be willing to "take up arms personally" in defense of the United States. The Supreme Court cited the Second Amendment indirectly by declaring that the United States Constitution obliges citizens "to defend our government against all enemies whenever necessity arises is a fundamental principle of the Constitution"<ref name="20210627JustiaSCCSchwimmer">Template:Cite web</ref> and by declaring further that the "common defense was one of the purposes for which the people ordained and established the Constitution."<ref name="20210627JustiaSCCSchwimmer" />

United States v. Miller

In United States v. Miller, Template:Ussc, the Supreme Court rejected a Second Amendment challenge to the National Firearms Act prohibiting the interstate transportation of unregistered Title II weapons:<ref>Miller, at 175.</ref> Template:Blockquote

In a unanimous opinion authored by Justice McReynolds, the Supreme Court stated "the objection that the Act usurps police power reserved to the States is plainly untenable."<ref>Miller, at 177–78.</ref> As the Court explained:<ref>Miller, at 178.</ref> Template:Blockquote

Gun rights advocates claim that the Court in Miller ruled that the Second Amendment protected the right to keep arms that are part of "ordinary military equipment".<ref>Template:Cite web</ref> They also claim that the Court did not consider the question of whether the sawed-off shotgun in the case would be an applicable weapon for personal defense, instead looking solely at the weapon's suitability for the "common defense".<ref>Template:Cite news</ref> Law professor Andrew McClurg states, "The only certainty about Miller is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact."<ref>McClurg, p. 139. "But when all is said and done, the only certainty about Miller is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact. For example, Professor Eugene Volokh describes Miller as 'deliciously and usefully ambiguous' in an article about using the Second Amendment as a teaching tool in constitutional law. That is probably the most accurate statement that can be made about the case."</ref>

District of Columbia v. Heller

Judgment

File:Supreme Court US 2006.jpg

The justices who decided Heller

According to the syllabus prepared by the U.S. Supreme Court Reporter of Decisions,<ref name="RecorderOfDecisionsHellerSummary">Template:Cite web</ref> in District of Columbia v. Heller, Template:Ussc, the Supreme Court held:<ref name="RecorderOfDecisionsHellerSummary" /><ref name="CornellHellerSummary">Template:Cite web</ref>

The Heller court also stated (Heller, 554 U.S. 570 (2008), at 632) its analysis should not be read to suggest "the invalidity of laws regulating the storage of firearms to prevent accidents."<ref>Template:Cite web</ref> The Supreme Court also defined the term arms used in the Second Amendment. "Arms" covered by the Second Amendment were defined in District of Columbia v. Heller to include "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another". 554 U. S., at 581."<ref>Caetano v. Massachusetts', 577 U.S. ___ (2016), slip op. Template:Webarchive at 6–7 (Alito, J., concurring in the judgment).</ref> The Michigan Court of Appeals 2012 relied on Heller in the case People v. Yanna to state certain limitations on the right to keep and bear arms:<ref>Template:Cite web</ref>

There are similar legal summaries of the Supreme Court's findings in Heller as the one quoted above.<ref name="WitkinSummary">Template:Cite web</ref><ref name="MooreSummary">Template:Cite web</ref><ref name="GlinSummary">Template:Cite web</ref><ref name="OLRResearchSummary">Template:Cite web</ref><ref name="OyezHellerSummary">Template:Cite web</ref><ref name="LCAVHellerSummary">Template:Cite web</ref> For example, the Illinois Supreme Court in People v. Aguilar (2013), summed up HellerTemplate:'s findings and reasoning:<ref name="ISC People v. Aguilar 2013">Template:Cite web</ref> Template:Blockquote

Notes and analysis

Heller has been widely described as a landmark decision because it was the first time the Court affirmed an individual's right to own a gun.<ref>Template:Cite web</ref><ref>Template:Cite news</ref><ref>Template:Cite news</ref><ref>Template:Cite news</ref><ref>Template:Cite news</ref> To clarify that its ruling does not invalidate a broad range of existing firearm laws, the majority opinion, written by Justice Antonin Scalia, said:<ref>Template:Cite newsTemplate:Dead link</ref><ref name="longstanding">Heller, Opinion of the Court, Part III.</ref> Template:Blockquote

The Court's statement that the right secured by the Second Amendment is limited has been widely discussed by lower courts and the media.<ref>Template:Cite news</ref><ref>Template:Cite news</ref><ref>Template:Cite book</ref><ref>Template:Cite book</ref> According to Justice John Paul Stevens he was able to persuade Justice Anthony M. Kennedy to ask for "some important changes" to Justice Scalia's opinion, so it was Justice Kennedy, who was needed to secure a fifth vote in Heller,<ref name="20181126NYTLiptak">Template:Cite news</ref> "who requested that the opinion include language stating that Heller 'should not be taken to cast doubt' on many existing gun laws."<ref name="20210426Vox.comMillhiser">Template:Cite web</ref> The majority opinion also said that the amendment's prefatory clause (referencing the "militia") serves to clarify the operative clause (referencing "the people"), but does not limit the scope of the operative clause, because "the 'militia' in colonial America consisted of a subset of 'the people'.Template:Nbsp... "<ref>Template:Cite web</ref>

Justice Stevens' dissenting opinion, which was joined by the three other dissenters, said:<ref>Template:Cite web</ref> Template:Blockquote

Stevens went on to say the following:<ref name="auto">Heller, Opinion of the Court, Part II-A-1-b.</ref> Template:Blockquote

This dissent called the majority opinion "strained and unpersuasive" and said that the right to possess a firearm exists only in relation to the militia and that the D.C. laws constitute permissible regulation. In the majority opinion, Justice Stevens' interpretation of the phrase "to keep and bear arms" was referred to as a "hybrid" definition that Stevens purportedly chose in order to avoid an "incoherent" and "[g]rotesque" idiomatic meeting.<ref name="auto" />

Justice Breyer, in his own dissent joined by Stevens, Souter, and Ginsburg, stated that the entire Court subscribes to the proposition that "the amendment protects an 'individual' rightTemplate:Sndi.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred".<ref>Template:Cite web</ref>

Regarding the term "well regulated", the majority opinion said, "The adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training."<ref name="ReferenceA" /> The majority opinion quoted Spooner from The Unconstitutionality of Slavery as saying that the right to bear arms was necessary for those who wanted to take a stand against slavery.<ref>Template:Cite web</ref> The majority opinion also stated that:<ref name="Heller">Template:Cite web</ref> Template:Blockquote

The dissenting justices were not persuaded by this argument.<ref name="urlJustices Rule for Individual Gun Rights – NYTimes.com">Template:Cite news</ref>

Reaction to Heller has varied, with many sources giving focus to the ruling referring to itself as being the first in Supreme Court history to read the Second Amendment as protecting an individual right. The majority opinion, authored by Justice Scalia, gives explanation of the majority legal reasoning behind this decision.<ref name="CornellHellerSummary" /> The majority opinion made clear that the recent ruling did not foreclose the Court's prior interpretations given in United States v. Cruikshank, Presser v. Illinois, and United States v. Miller though these earlier rulings did not limit the right to keep and bear arms solely to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia (i.e., those in common use for lawful purposes).<ref name="CornellHellerSummary" />

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

Justice Ginsburg was a vocal critic of Heller. Speaking in an interview on public radio station WNYC, she called the Second Amendment "outdated", saying:<ref>Template:Cite web</ref> Template:Blockquote

According to adjunct professor of law at Duquesne University School of Law Anthony Picadio, who said he's not anti-gun but rather "anti-bad-judging", Justice Scalia's reasoning in Heller is the product of an erroneous reading of colonial history and the drafting history of the Second Amendment.<ref name="20190210PittsburghPostGazetteO'Neill">Template:Cite journal</ref> He argued that the Southern slave states would never have ratified the Second Amendment if it had been understood as creating an individual right to own firearms because of their fear of arming free blacks.<ref>Template:Harvnb</ref> After a lengthy historical and legal analysis Anthony Picadio concluded: "If the Second Amendment had been understood to have the meaning given to it by Justice Scalia, it would not have been ratified by Virginia and the other slave states."<ref name="20190210PittsburghPostGazetteO'Neill" /> Picadio pointed out that the right acknowledged in Heller was not originally to be an enumerated right. Instead, he argues, there would be more respect for the Heller decision, if the right acknowledged in Heller would have been forthrightly classified as an unenumerated right and if the issue in Heller would have been analysed under the Ninth Amendment to the United States Constitution.Template:Sfnp He finished with the following observation: "The pre-existing right that the Heller Court incorporated into the Second Amendment is very narrow. As recognized by Justice Alito in the McDonald case, it protects only "the right to possess a handgun in the house for the purposes of self-defense." This narrow right has never been extended by the Supreme Court."Template:Sfnp

McDonald v. City of Chicago

Template:Main On June 28, 2010, the Court in McDonald v. City of Chicago, Template:Ussc, held that the Second Amendment was incorporated, saying that "[i]t is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."<ref>Template:Cite web</ref> This means that the Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government.<ref name="nytimes.com" /> It also remanded a case regarding a Chicago handgun prohibition. Four of the five justices in the majority voted to do so by way of the Due Process Clause of the Fourteenth Amendment, while the fifth justice, Clarence Thomas, voted to do so through the amendment's Privileges or Immunities Clause.<ref>Template:Cite web</ref> In United States v. Rahimi (2024) the Supreme Court stated "that the right to keep and bear arms is among the “fundamental rights necessary to our system of ordered liberty.” McDonald v. Chicago, 561 U. S. 742, 778 (2010)."<ref>Template:Cite web</ref>

Justice Thomas, in his concurring opinion, noted that the Privileges or Immunities Clause refers to "citizens" whereas the Due Process Clause refers more broadly to any "person", and therefore Thomas reserved the issue of non-citizens for later decision.<ref name="alien">Template:Cite book</ref> After McDonald, many questions about the Second Amendment remain unsettled, such as whether non-citizens are protected through the Equal Protection Clause.<ref name="alien" />

In People v. Aguilar (2013), the Illinois Supreme Court summed up the central Second Amendment findings in McDonald:<ref name="ISC People v. Aguilar 2013" /> Template:Blockquote

Caetano v. Massachusetts

Template:Main On March 21, 2016, in a per curiam decision the Court vacated a Massachusetts Supreme Judicial Court decision upholding the conviction of a woman who carried a stun gun for self-defense.<ref name="LDenniston">Template:Cite web</ref> The Court reiterated that the Heller and McDonald decisions saying that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding", that "the Second Amendment right is fully applicable to the States", and that the protection is not restricted to "only those weapons useful in warfare".<ref>Caetano v. Massachusetts', 577 U.S. ___ (2016), slip op. Template:Webarchive at 2 (per curiam).</ref> The term "bearable arms" was defined in District of Columbia v. Heller, 554 U.S. 570 (2008) and includes not only firearms, but any "[w]eapo[n] of offence" or "thing that a man wears for his defence, or takes into his hands", that is "carr[ied]Template:Nbsp... for the purpose of offensive or defensive action". 554 U. S., at 581, 584 (internal quotation marks omitted)."<ref>Caetano v. Massachusetts', 577 U.S. ___ (2016), slip op. Template:Webarchive at 4, footnote 3 (Alito, J., concurring in the judgment).</ref>

New York State Rifle & Pistol Association, Inc. v. City of New York, New York

Template:Main The Court heard New York State Rifle & Pistol Association Inc. v. City of New York, New York on December 2, 2019, to decide whether a New York City ordinance that prevents the transport of guns, even if properly unloaded and locked in containers, from within city limits to outside of the city limits is unconstitutional. The New York Rifle & Pistol Association challenged the ordinance on the basis of the Second Amendment, the Dormant Commerce Clause, and the right to travel.<ref>Template:Cite web</ref> However, as the city had changed its rule to allow transport while the case was under consideration by the Court, the Court ruled the case moot in April 2020, though it remanded the case so the lower courts could review the new rules under the petitioners new claims.<ref>Template:Cite news</ref>

New York State Rifle & Pistol Association, Inc. v. Bruen

Template:Main New York law prohibits the concealed carry of firearms without a permit. The issuance of such permits was previously at the discretion of state authorities, and permits were not issued absent 'proper cause'. The New York State Rifle & Pistol Association and two individuals who had been denied permits on the grounds that they lacked proper cause, challenged the licensing regime as a violation of the Second Amendment, with the District Court and the Second Circuit Court of Appeals ruling in favor of the state.<ref>Template:Cite web</ref> The Supreme Court ruled on June 23, 2022, in a 6–3 decision that the New York law, as a "may-issue" regulation, was unconstitutional, affirming that public possession of firearms was a protected right under the Second Amendment. The majority stated that states may still regulate firearms through "shall-issue" regulations that use objective measures such as background checks.<ref>Template:Cite news</ref> In its June 2024 United States v. Rahimi decision, the Court refined the Bruen test, stating that in comparing modern gun control laws to historic tradition, courts should use similar analogues and general principles rather than strict matches.<ref>Template:Cite web</ref>

United States Courts of Appeals decisions before and after Heller

Before Heller

Until District of Columbia v. Heller (2008), United States v. Miller (1939) had been the only Supreme Court decision that "tested a congressional enactment against [the Second Amendment]".<ref name="crs2a2">CRS Report for Congress District of Columbia v.Heller: The Supreme Court and the Second Amendment April 11, 2008, Congressional Research Service T.J. Halsted, Legislative Attorney, American Law Division. Order Code RL34446 Template:Cite web</ref> Miller did not directly mention either a collective or individual right, but for the 62-year period from Miller until the Fifth Circuit's decision in United States v. Emerson (2001), federal courts recognized only the collective right,<ref>Cases v. United States, 131 F.2d 916 (1st Cir. 1942); United States v. Toner, 728 F.2d 115 (2nd Cir. 1984); United States v. Rybar, 103 F.3d 273 (3rd Cir. 1997); Love v. Peppersack, 47 F.3d 120 (4th Cir. 1995); United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971); United States v. Warin, 530 F.2d 103 (6th Cir. 1976); Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1983); United States v. Hale, 978 F.2d 1016 (8th Cir. 1993); Hickman v. Block, 81 F.3d 98 (9th Cir. 1996); United States v. Oakes, 564 F.2d 384 (10th Cir. 1978); and United States v. Wright, 117 F.3d 1265 (11th Cir. 1997)</ref> with "courts increasingly referring to one another's holdingsTemplate:Nbsp... without engaging in any appreciably substantive legal analysis of the issue".<ref name="crs2a2" />

Emerson changed this by addressing the question in depth, with the Fifth Circuit determining that the Second Amendment protects an individual right.<ref name="crs2a2" /> Subsequently, the Ninth Circuit conflicted with Emerson in Silveira v. Lockyer, and the D.C. Circuit supported Emerson in Parker v. District of Columbia.<ref name="crs2a2" /> Parker evolved into District of Columbia v. Heller, in which the U.S. Supreme Court determined that the Second Amendment protects an individual right.

After Heller

Since Heller, the United States courts of appeals have ruled on many Second Amendment challenges to convictions and gun control laws.<ref name="Winkler14">Winkler, "Heller's Catch 22", p. 14.</ref><ref name="AdamLiptak-3-17-09-NYTimes.com">Template:Cite news</ref>

D.C. Circuit

• Heller v. District of Columbia, Civil Action No. 08-1289 (RMU), No. 23., 25Template:SndOn March 26, 2010, the D.C. Circuit denied the follow-up appeal of Dick Heller who requested the court to overturn the new District of Columbia gun control ordinances newly enacted after the 2008 Heller ruling. The court refused to do so, stating that the firearms registration procedures, the prohibition on assault weapons, and the prohibition on large capacity ammunition feeding devices were found to not violate the Second Amendment.<ref>Template:Cite web</ref> On September 18, 2015, the D.C. Circuit ruled that requiring gun owners to re-register a gun every three years, make a gun available for inspection or pass a test about firearms laws violated the Second Amendment, although the court upheld requirements that gun owners be fingerprinted, photographed, and complete a safety training course.<ref>Template:Cite magazine</ref>
• Wrenn v. District of Columbia, No. 16-7025Template:SndOn July 25, 2017, the D.C. Circuit ruled that a District of Columbia regulation that limited conceal-carry licenses only to those individuals who could demonstrate, to the satisfaction of the chief of police, that they have a "good reason" to carry a handgun in public was essentially designed to prevent the exercise of the right to bear arms by most District residents and so violated the Second Amendment by amounting to a complete prohibition on firearms possession.<ref>Template:Cite magazine</ref>

First Circuit

• United States v. Rene E., Template:WestTemplate:SndOn August 31, 2009, the First Circuit affirmed the conviction of a juvenile for the illegal possession of a handgun as a juvenile, under Template:Usc and Template:Usc, rejecting the defendant's argument that the federal law violated his Second Amendment rights under Heller. The court cited "the existence of a longstanding tradition of prohibiting juveniles from both receiving and possessing handguns" and observed "the federal ban on juvenile possession of handguns is part of a longstanding practice of prohibiting certain classes of individuals from possessing firearmsTemplate:Sndthose whose possession poses a particular danger to the public."<ref>Rene E., at 12–15.</ref>

Second Circuit

• Kachalsky v. County of Westchester, 11-3942Template:SndOn November 28, 2012, the Second Circuit upheld New York's may-issue concealed carry permit law, ruling that "the proper cause requirement is substantially related to New York's compelling interests in public safety and crime prevention."<ref>Template:Cite news</ref>

Third Circuit

• Range v. Attorney General of the United States, Civil Action No. 21-2835Template:SndOn June 6, 2023, the Third Circuit ruled that the Second Amendment prohibited a lifetime ban on firearms possession as a result of a conviction for a nonviolent crime.<ref>Template:Cite news</ref>

Fourth Circuit

• United States v. Hall, Template:WestTemplate:SndOn August 4, 2008, the Fourth Circuit upheld as constitutional the prohibition of possession of a concealed weapon without a permit.<ref name="Winkler15">Winkler, "Heller's Catch 22", p. 15.</ref>
• United States v. Chester, 628 F.3d 673 (4th Cir. 2010)Template:SndOn December 30, 2010, the Fourth Circuit vacated William Chester's conviction for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of Template:Usc.<ref>Template:Cite web</ref> The court found that the district court erred in perfunctorily relying on Heller's exception for "presumptively lawful" gun regulations made in accordance with "longstanding prohibitions".<ref>Part III of the decision.</ref>
• Kolbe v. Hogan, No. 14-1945 (4th Cir. 2016)Template:SndOn February 4, 2016, the Fourth Circuit vacated a U.S. District Court decision upholding a Maryland law banning high-capacity magazines and semi-automatic rifles, ruling that the District Court was wrong to have applied intermediate scrutiny. The Fourth Circuit ruled that the higher strict scrutiny standard is to be applied on remand.<ref>Template:Cite news</ref> On March 4, 2016, the court agreed to rehear the case en banc on May 11, 2016.<ref>Template:Cite web</ref>

Fifth Circuit

• United States v. Dorosan, 350 Fed. Appx. 874 (5th Cir. 2009)Template:SndOn June 30, 2008, the Fifth Circuit upheld Template:CodeFedReg, which bans weapons on postal property, sustaining restrictions on guns outside the home, specifically in private vehicles parked in employee parking lots of government facilities, despite Second Amendment claims that were dismissed. The employee's Second Amendment rights were not infringed since the employee could have instead parked across the street in a public parking lot, instead of on government property.<ref>Weisselberg, pp. 99–100.</ref><ref>Template:Cite web</ref>
• United States v. Bledsoe, 334 Fed. Appx. 771 (5th Cir. 2009)Template:SndThe Fifth Circuit affirmed the decision of a U.S. District Court decision in Texas, upholding Template:Usc, which prohibits "straw purchases". A "straw purchase" occurs when someone eligible to purchase a firearm buys one for an ineligible person. Additionally, the court rejected the request for a strict scrutiny standard of review.<ref name="Winkler15" />
• United States v. Scroggins, Template:WestTemplate:SndOn March 4, 2010, the Fifth Circuit affirmed the conviction of Ernie Scroggins for possession of a firearm as a convicted felon, in violation of Template:Usc. The court noted that it had, prior to Heller, identified the Second Amendment as providing an individual right to bear arms, and had already, likewise, determined that restrictions on felon ownership of firearms did not violate this right. Moreover, it observed that Heller did not affect the longstanding prohibition of firearm possession by felons.

Sixth Circuit

• Tyler v. Hillsdale Co. Sheriff's Dept., Template:WestTemplate:SndOn December 18, 2014, the Sixth Circuit ruled that strict scrutiny should be applied to firearms regulations when regulations burden "conduct that falls within the scope of the Second Amendment right, as historically understood".<ref>Tyler v. Hillsdale Co. Sheriff's Dept., 775 F.3d 308, 317–19 (6th Cir. 2014) (internal quotations omitted).</ref> At issue in this case was whether the Second Amendment is violated by a provision of the Gun Control Act of 1968 that prohibits possession of a firearm by a person who has been involuntarily committed to a psychiatric hospital. The court did not rule on the provision's constitutionality, instead remanding the case to the United States district court that has earlier heard this case.<ref>Template:Cite web</ref> On April 21, 2015, the Sixth Circuit voted to rehear the case en banc, thereby vacating the December 18 opinion.<ref>Tyler v. Hillsdale County Sheriff's Dep't, 2015 U.S. App., Lexis 6638 (2015)</ref>

Seventh Circuit

• United States v. Skoien, Template:WestTemplate:SndSteven Skoien, a Wisconsin man convicted of two misdemeanor domestic violence convictions, appealed his conviction based on the argument that the prohibition violated the individual rights to bear arms, as described in Heller. After initial favorable rulings in lower court based on a standard of intermediate scrutiny,<ref name="SLAW_0714">Template:Cite web</ref> on July 13, 2010, the Seventh Circuit, sitting en banc, ruled 10–1 against Skoien and reinstated his conviction for a gun violation, citing the strong relation between the law in question and the government objective.<ref name="SLAW_0714" /> Skoien was convicted and sentenced to two years in prison for the gun violation, and will thus likely be subject to a lifetime ban on gun ownership.<ref name="urlCourthouse News Service">Template:Cite web</ref><ref name="urlLeagleSkoien">Template:Cite web</ref> Editorials favoring gun rights sharply criticized this ruling as going too far with the enactment of a lifetime gun ban,<ref name="urlJournalTimesSkoien">Template:Cite web</ref> while editorials favoring gun regulations praised the ruling as "a bucket of cold water thrown on the 'gun rights' celebration".<ref name="urlHeniganSkoien">Template:Cite news</ref>
• Moore v. Madigan (Circuit docket 12-1269)<ref>Template:Cite news</ref>Template:SndOn December 11, 2012, the Seventh Circuit ruled that the Second Amendment protected a right to keep and bear arms in public for self-defense. This was an expansion of the Supreme Court's decisions in Heller and McDonald, each of which referred only to such a right in the home. Based on this ruling, the court declared Illinois's ban on the concealed carrying of firearms to be unconstitutional. The court stayed this ruling for 180 days, so Illinois could enact replacement legislation.<ref>Template:Cite web</ref><ref name="NYT20121218">Template:Cite news</ref><ref>Template:Cite web</ref> On February 22, 2013, a petition for rehearing en banc was denied by a vote of 5–4.<ref>Template:Cite web</ref> On July 9, 2013, the Illinois General Assembly, overriding Governor Quinn's veto, passed a law permitting the concealed carrying of firearms.<ref>Template:Cite web</ref><ref>Template:Cite news</ref><ref>Template:Cite journal</ref><ref>Template:Cite news</ref>

Ninth Circuit

• Nordyke v. King, 2012 WL 1959239 (9th Cir. 2012)Template:SndOn July 29, 2009, the Ninth Circuit vacated an April 20 panel decision and reheard the case en banc on September 24, 2009.<ref name="volokh.com">Template:Cite news</ref><ref>Template:Cite news</ref><ref name="urlAppeals Court Sets Rehearing on Ruling That Eased Gun Restrictions – NYTimes.com">Template:Cite news</ref><ref>Template:Cite web</ref> The April 20 decision had held that the Second Amendment applies to state and local governments, while upholding an Alameda County, California ordinance that makes it a crime to bring a gun or ammunition on to, or possess either while on, county property.<ref name="Nordyke">Template:Cite web</ref><ref>Template:Cite web</ref> The en banc panel remanded the case to the three-judge panel. On May 2, 2011, that panel ruled that intermediate scrutiny was the correct standard by which to judge the ordinance's constitutionality and remanded the case to the United States District Court for the Northern District of California.<ref>Template:Cite web</ref> On November 28, 2011, the Ninth Circuit vacated the panel's MayTemplate:Nbsp2 decision and agreed to rehear the case en banc.<ref>Template:Cite web</ref><ref>Template:Cite news</ref> On April 4, 2012, the panel sent the case to mediation.<ref>Template:Cite web</ref> The panel dismissed the case on June 1, 2012, but only after Alameda County officials changed their interpretation of the challenged ordinance. Under the new interpretation, gun shows may take place on county property under the ordinance's exception for "events", subject to restrictions regarding the display and handling of firearms.<ref>Template:Cite web</ref>
• Teixeira v. County of Alameda, (Circuit docket 13-17132)Template:SndOn May 16, 2016, the Ninth Circuit ruled that the right to keep and bear arms included being able to buy and sell firearms. The court ruled that a county law prohibiting a gun store being within 500 feet of a "[r]esidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served" violated the Second Amendment.<ref>Template:Cite web</ref>
• Peruta v. San Diego No. 10-56971 (9th Cir. 2016), (Circuit docket 13-17132)Template:SndOn June 9, 2016, pertaining to the legality of San Diego County's restrictive policy regarding requiring documentation of "good cause" before issuing a concealed carry permit, the Ninth Circuit upheld the policy, finding that "there is no Second Amendment right for members of the general public to carry concealed firearms in public."<ref>Template:Cite web</ref>
• Young v. State of Hawaii No. 12-17808 (9th Cir. 2021)Template:SndAn en banc ruling of the Ninth Circuit on March 26, 2021, upheld the validity of Hawaii's law that barred open carry of guns outside of one's home without a license. The Ninth Circuit ruled that there was no right to carry weapons in public spaces, and states have a compelling interest for public safety to restrict public possession of guns.<ref>Template:Cite news</ref>

See also

• 2nd Amendment Day
• Second Amendment sanctuary
• Gun ownership#United States gun ownership
• Gun culture in the United States
• Gun law in the United States#Second Amendment
• Gun politics in the United States
• List of amendments to the United States Constitution
• Right to keep and bear arms (worldwide)
• Second Amendment Caucus – a Congressional caucus dedicated to supporting the right to bear arms
• Uniform Firearms Act – a set of statutes in Pennsylvania that define and amplify the right to bear arms in that state's ConstitutionTemplate:Colend

References

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