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Amendment II (the Second Amendment) of the United States Constitution\'s Bill of Rights declares a well-regulated militia as "being necessary to the security of a free State" and prohibits infringement of "the right of the people to keep and bear arms." The meaning of the Second Amendment is one of the most misunderstood and disputed among the entire Bill of Rights."There is probably less agreement, more misinformation, and less understanding of the right to keep and bear arms than any other current controversial constitutional issue." Statement from the American Bar Association in "National Coalition to Ban Handguns Statement on the Second Amendment", June 26, 1981 convenience link:http://www.guncite.com/journals/senrpt/senrpt27.html"Few subjects in American jurisprudence have produced as much work by legal scholars, so little of which is of use to practicing attorneys, as the Second Amendment to the U.S. Constitution." from "A Lawyer\'s Guide to the Second Amendment" by Steven H. Gunn, Brigham Young University Law Review, 1998
One key controversy revolves around who is prohibited from infringement and whether the Second Amendment prohibits individual States from infringing upon this right."And yet, despite the importance of the topic and all the attention devoted to it, we still lack a fully satisfying account of the relationship between the first ten amendments and the Fourteenth." by Amar, Akhil. The Bill of Rights and the Fourteenth Amendment, 101 Yale Law Journal 1193, 1224-1225 (1992). The most recent Supreme Court precedent, from 1875, is that the Second Amendment is only a limit on the power of the federal government, (see United States v. Cruikshank) but some people contend that it extends to state jurisdictions.Curtis, Michael Kent [1986] (1994). No State Shall Abridge, Second printing in paperback, Duke University Press. ISBN 0-8223-0599-2.
Another major point of contention is whether it protects an individual right to personal firearms2008 U.S. Department of Justice Heller amicus brief., 2004-08-24 or a collective State militia right.Holder, Angela Roddy (1997). The Meaning of the Constitution. Barron\'s Educational Series, pp. 64. ISBN 0-7641-0099-8. At present, two of the thirteen federal circuits have adopted an individual rights view. A Second Amendment case is currently under review by the Supreme Court (District of Columbia v. Heller), having been granted certiorari, to resolve this jurisdictional split. United States v. Emerson, Parker v. District of Columbia, and Silveira v. Lockyer There is also a "modified collective" view that holds the right is protected for individuals to bear arms based on their needs while serving in a militia.Dorf, Michael C. (2001),Findlaw-Writ[1]
Other points of disagreement include the meaning of the militia clause"What exactly is the militia, and how does protecting a right to keep and bear arms contribute to a "well-regulated" one?" from "What does the Second Amendment Mean Today?" by Michael C. Dorf http://lawreview.kentlaw.edu/articles/76-1/Dorf%20macro2.pdf and the meaning of infringement, in other words, at what point does reasonable regulation of firearms constitute infringement?"At what point regulation or prohibition of what classes of firearms would conflict with the Amendment, if at all, the Miller case does little more than cast a faint degree of illumination toward an answer." at Findlaw http://caselaw.lp.findlaw.com/data/constitution/amendment02/"One overlooked issue in the voluminous literature on the Second Amendment is what standard of review should apply to gun control if the Amendment is read to protect an individual right to bear arms." in "SCRUTINIZING THE SECOND AMENDMENT" by Adam Winkler http://michiganlawreview.org/archive/105/4/winkler.pdf All federal courts have found that reasonable firearm regulation is allowable, while an outright firearm ban is currently the subject of Supreme Court review in District of Columbia v. Heller.
The Second Amendment, as passed by the House and Senate, reads:
| “ | A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. | ” |
The original and copies distributed to the states, and then ratified by them, had different capitalization and punctuation:
| “ | A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed. | ” |
Both versions are commonly used in official government publications. The original hand-written copy of the Bill of Rights, approved by the House and Senate, was prepared by scribe William Lambert and hangs in the National Archives.
There is some question as to whether the Second Amendment contains a comma after the word "militia," or after the phrase "to keep and bear arms." Different versions of the Amendment appear in various U.S. government documents.
The Second Amendment is formed with an opening phrase, followed by a declarative clause. The opening phrase is known to grammarians as an ablative absolute construction. The significance of this grammar was certainly understood to the framers who were more schooled in Latin grammar than is common in modern times.Merkel, William G.; Uviller, H. Richard (2002). The militia and the right to arms, or, How the second amendment fell silent. Durham, N.C: Duke University Press, Page 150. ISBN 0-8223-3017-2. “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 best — if not the only — way to protect the state government and the liberties of its people against uprisings from within and incursions or oppression from without."” This was a grammar structure that was common during that era.The Commonplace Second Amendment by Prof. Eugene Volokh, UCLA Law School, 1998. "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."
The concept of a universal militia, consisting of all free white men bearing their own arms, that lies at the heart of the Second Amendment, originated in England. Cottrol, Robert J. (2003). "Part I Guns in American Culture". Focus on Law Studies XVIII (2). The requirement that subjects bear arms, serve military dutyOxford English Dictionary, Second Edition, 1989Uviller, H. Richard. & Merkel, William G.: The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent , pp 23, 194. Duke University Press. ISBN 0-8223-3017-2Pepper, John; Petrie, Carol; Wellford, Charles F.: Firearms and violence, Page 290. National Academies Press, 2004. ISBN 0309091241Wills, Garry. To Keep and Bear Arms. New York Review Of Books, Sept. 21, 1995., dates back to at least the 12th century when King Henry II obligated all freemen to bear arms for public defense (see Assize of Arms). At that time, it was customary for a soldier to purchase, maintain, keep, and bring their own armor and weapon for military service. This was of such importance that Crown officials gave periodic inspections to guarantee a properly armed militia. This remained relatively unchanged until 1671, when Parliament created a statute that drastically raised the property qualifications needed to possess firearms. In essence, this statute disarmed all but the very wealthy. In 1686, King James II banned without exception the Protestants\' ability to possess firearms, even while Protestants constituted over 95% of the English subjects. Not until 1689, with the rise of William of Orange, did the Protestants possess firearms once again with the newly enacted law that reads, "That the Subjects which are Protestants may have Arms for their defence suitable to their Conditions, and as allowed by Law".
The tradition of securing a military force through a duty of universal military obligation for all able-bodied males follows from the Elizabethan era militia in England.Breen, T. H. (1972). "English Origins and New World Development: The Case of the Covenanted Militia in Seventeenth-Century Massachusetts". Past & Present 57 (1): 74–96. Boynton, Lindsay Oliver J. (1971). The Elizabethan Militia 1558–1638. David & Charles. ISBN 0-7153-5244-X. OCLC 8605166.
The English Declaration of Rights (1689) affirmed freedom for Protestants to "have arms for their defence suitable to their conditions and as allowed by law." When Colonists protested British efforts to disarm their militias in the early phases of the Revolution, colonists cited the Declaration of Rights, Blackstone\'s summary of the Declaration of Rights, their own militia laws, and Common Law rights to self-defense. While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the militia, there is no evidence that the British sought to restrict the traditional common law right of self-defense. Indeed, in his arguments on behalf of British troops in the Boston Massacre, John Adams invoked the common law of self-defense.John Adams and common law of self-defense
Some have seen the Second Amendment as derivative of a common law right to keep and bear arms; Thomas B. McAffee & Michael J. Quinlan, writing in the North Carolina Law Review, March 1997, Page 781, have stated "... 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."McAffee, Thomas B.; Quinlan, Michael J. (March 1997). "Bringing Forward the Right to Keep and Bear Arms: Do Text, History, or Precedent Stand in the Way?". North Carolina Law Review: 781.
Others perceive a distinction between the right to bear arms and the right to self-defense; Robert Spitzer has stated: "...the matter of personal or individual self-defense, whether from wild animals or modern-day predators, does not fall within, nor is it dependent on, the Second Amendment rubric. Nothing in the history, construction, or interpretation of the Amendment applies or infers such a protection. Rather, legal protection for personal self-defense arises from the British common law tradition and modern criminal law; not from constitutional law."Spitzer, Robert J. (2000). "Lost and Found: Researching the Second Amendment". Chicago-Kent Law Review 76 (1): 349–401. Heyman has similarly argued that the common law right of self defense was legally distinct from the right to bear arms.Heyman, Steven J. (2000). "Natural Rights and the Second Amendment". Chicago-Kent Law Review 76 (1): 237–290.
The potential connection between the right of self defense and the new constitutional protection of a right to keep and bear arms contained in the Second Amendment depends on the distinction whether \'keep and bear arms\' is synonymous more broadly with the right of individual self defense or does \'keep and bear arms\' pertain more narrowly towards use of arms in a military context, or, in the case of the Common Law while still under the British, in service of the King and country. Judges in the twentieth century split over how to interpret this connection; some saw the Common Law right and the protection of a right to keep and bear arms contained in the Second Amendment as identical; others viewed these as being legally distinct. Texts from the era of the Second Amendment are largely silent on this important question.
In 1786, a decade after the Declaration of Independence was signed, the United States existed as a loose national government under the Articles of Confederation. This confederation was perceived to have several weaknesses, among which was the inability to mount a Federal military response to an armed uprising in western Massachusetts known as Shays\' Rebellion.
In 1787, to address these weaknesses, the Philadelphia Convention was convened with the charter of amending the Articles. When the convention concluded with a proposed Constitution, those who debated the ratification of the Constitution divided into two camps; the Federalists (who supported ratification of the Constitution) and the Anti-Federalists (who opposed it).
Among their objections to the Constitution, anti-Federalists feared creation of a standing army not under civilian control that could eventually endanger democracy and civil liberties as had happened recently in the American Colonies and Europe.Wills, Garry (1999). A Necessary Evil, A History of American Distrust of Government. New York, NY: Simon & Schuster. ISBN 0-6848-4489-3. Although the anti-Federalists were ultimately unsuccessful at blocking ratification of the Constitution, through the Massachusetts Compromise they laid the groundwork to ensure that a Bill of Rights would be drafted, which would provide constitutional guarantees against encroachment by the government of certain rights.
The Federalists on the other hand held that a Bill of Rights was unnecessary, particularly since the Federal Government could never raise a standard army powerful enough to overcome the militia. Leading Federalist James Madison wrote:Similarly, Federalist Noah Webster wrote:
Insert the text of the quote here, without quotation marks.
One example given by Webster of a "power" that the people could resist was that of a standing army:
Tyranny is the exercise of some power over a man, which is not warranted by law, or necessary for the public safety. A people can never be deprived of their liberties, while they retain in their own hands, a power sufficient to any other power in the state.An Examination of the Leading Principles of the Federal Constitution
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The controversy of a standing army for the United States existed in context of the Continental Forces that had won the American Revolutionary War which consisted of both the standing Continental Army created by the Continental Congress and of State and Militia Units. In opposition, the British Forces consisted of a mixture of the standing British Army, Loyalist Militia, and Hessian mercenaries.
Federalists, on the other hand, believed that federal government must be trusted and that the army and the militias "ought certainly to be under the regulation and at the disposal" of federal government. This belief was fundamentally stated by Alexander Hamilton:The origin of the Second Amendment also occurred in context of an ongoing debate 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). These feelings can be seen in the "a force superior" quote of Noah Webster above, and in contrast, when John Adams wrote of his fears about Antifederalists in the ongoing revolution in France:
The power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.The Federalist No. 29 (at Wikisource)
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Reaching a compromise between these widely disparate positions was not easy, but nonetheless, a compromise was negotiated with the result being the Second Amendment.
In the early months of 1789, the United States was engaged in an ideological conflict between Federalists, who favored a stronger central government, and Antifederalists, who were skeptical of a strong central government. This conflict was accentuated by the recent news of a brewing, potentially violent revolution in France with similar Antifederal tensions. Also, the conflict in beliefs continued between northern states, that generally favored Federalist values, and southern states, that tended to share Antifederalist values.
Intense concerns gripped the country of the potential for success or failure of the newly-formed United States. The first presidential inauguration of George Washington had occurred just a few short weeks earlier.
Antifederalists supported the proposal to amend the Constitution with clearly-defined and enumerated rights to provide further constraints on the new government, while opponents felt that by listing only certain rights, other unlisted rights would fail to be protected. Amidst this debate, a compromise was reached, and James Madison drafted what ultimately became the United States Bill of Rights, which was proposed to the Congress on June 8 1789.
The original text of what was to become the Second Amendment, as brought to the floor of the U.S. House of Representatives of the first session of the First Congress was:The Bill of Rights that Madison introduced on June 8 was not composed of numbered amendments intended to be added at the end of the Constitution. The Rights instead were to be inserted into the existing Constitution. The right to keep and bear arms was not to be inserted in Article I, Section 8 that specifies Congress\'s power over the militia. The sentence that later became the Second Amendment was to be inserted in the Article I, Section 9, between clauses 3 and 4, following the prohibition on suspension of habeas corpus, bills of attainder, and ex post facto laws, all individual civil rights asserted by individuals as a defense against government action. (Additionally, these provisions can all be interpreted as limits on congressional power, a view that has been advanced by supporters of the individual rights view of the Amendment.Rakove, Jack (2000). "The Second Amendment: The Highest State of Originalism". Chicago-Kent Law Review 76 (1): 103. ) Debate in the House on the remainder of June 8 focused again on whether a Bill of Rights was appropriate, and the matter was held for a later time. On July 21, however, Madison raised the issue of his Bill and proposed a select committee be created to report on it. The House voted in favor of Madison\'s motion, Journal of the House of Representatives of the United States, Volume 1: pp. 64 and the Bill of Rights entered committee for review. No official records were kept of the proceedings of the committee, but on July 28, the committee returned to the House a reworded version of the Second Amendment. Annals of Congress, House of Representatives, 1st Congress, 1st Session: pp. 669 On August 17, that version was read into the Journal:
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The Second Amendment was debated and modified during sessions of the House on August 17 and August 20. Militia debate of 1789 These debates revolved primarily around risk of "mal-administration of the government" using the "religiously scrupulous" clause to destroy the militia as Great Britain had attempted to destroy the militia at the commencement of the American Revolution. These concerns were addressed by modifying the final clause, and on August 24, the House sent the following version to the U.S. Senate:
Insert the text of the quote here, without quotation marks.
The next day, August 25, the Senate received the Amendment from the House and entered it into the Senate Journal. When the Amendment was transcribed, the semicolon in the religious exemption portion was changed to a comma by the Senate scribe:
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.
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:
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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. Journal of the Senate of the United States of America, Volume 1: pp. 77 The Senate then slightly modified the language and voted to return the Bill of Rights to the House. The final version passed by the Senate was:
Insert the text of the quote here, without quotation marks.
The House voted on September 21 1789 to accept the changes made by the Senate, but the Amendment as finally entered into the House journal contained the additional words "necessary to":
A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.
Insert the text of the quote here, without quotation marks.
This version was transmitted to the states for ratification.
On December 15, 1791, the Virginia legislature ratified the Bill of Rights, rounding out the requisite three-fourths of the states needed to make the Amendments part of the Constitution.
The House JournalHouse Journal and Senate JournalSenate Journal are the official records kept by the legislature at the time debate was taking place. Because these journals are often sparse, they are frequently augmented by the Annals of CongressAnnals of Congress (AoC) which were compiled forty to seventy years after the debates, using the best sources which could then be found, which at the time was primarily newspaper reports.
The Debates in the Several State Conventions, on the Adoption of the Federal ConstitutionJonathan Elliot Commentary by Jonathan Elliot (1836), contains additional information concerning the desire by Antifederalists to amend the Constitution, and the intent of the amendments that were negotiated and adopted attempting to answer their concerns.
The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker, also known as The American Blackstone. He authored a set of law books in 1803 that annotated Sir William Blackstone\'s Commentaries on the Laws of England (discussed at length later, under Colonial Rights), for American use, and that formed, in many cases, the sole legal written works read by many early American attorneys.St. George Tucker Commentary Tucker, the leading Jeffersonian constitutional theorist, was widely read, even by those who rejected his interpretation of the Constitution.
In footnotes 40 and 41, he wrote: "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. The commentator himself informs us, Vol. II, p. 412, "that the prevention of popular insurrections and resistance to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws." Blackstone discussed the right of individual self defense in a separate section of his treatise on the common law of crimes. Tucker\'s annotations for that latter section made no mention of the Second Amendment but cited the standard works of English jurists such as Hawkins.For two radically different views of Blackstone on the Second Amendment, see Heyman, Chicago-Kent, and Volokh, Senate Testimony.
Further, Tucker writes of the English Bill of Rights:Tucker also wrote of the British,
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Another one of the most important early commentaries on the Second Amendment was the 1833 book Commentaries on the U.S. Constitution authored by Associate Justice of the Supreme Court Joseph Story. Both sides in the modern gun debate have excerpted parts of this commentary to support their particular points of view:
§ 1890 of the book describes the Second Amendment:§1202 of the book describes Power over the Militia and analyzes the origins of the Second Amendment. Justice Story clearly viewed the original meaning of the Amendment as a concession to moderate Anti-Federalists who feared federal control over the militia:
The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.Story, Joseph (1833). Commentaries on the U.S. Constitution, §1890.
It is difficult fully to comprehend the influence of such objections, urged with much apparent sincerity and earnestness at such an eventful period. The answers then given seem to have been in their structure and reasoning satisfactory and conclusive. But the amendments proposed to the constitution (some of which have been since adopted) show, that the objections were extensively felt, and sedulously cherished. The power of congress over the militia (it was urged) was limited, and concurrent with that of the states. The right of governing them was confined to the single case of their being in the actual service of the United States, in some of the cases pointed out in the constitution. It was then, and then only, that they could be subjected by the general government to martial law. If congress did not choose to arm, organize, or discipline the militia, there would be an inherent right in the states to do it. All, that the constitution intended, was, to give a power to congress to ensure uniformity, and thereby efficiency. But, if congress refused, or neglected to perform the duty, the states had a perfect concurrent right, and might act upon it to the utmost extent of sovereignty. As little pretence was there to say, that congress possessed the exclusive power to suppress insurrections and repel invasions. Their power was merely competent to reach these objects; but did not, and could not, in regard to the militia, supersede the ordinary rights of the states. It was, indeed, made a duty of congress to provide for such cases; but this did not exclude the co-operation of the states. The idea of congress inflicting severe and ignominious punishments upon the militia in times of peace was absurd. It presupposed, that the representatives had an interest, and would intentionally take measures to oppress them, and alienate their affections. The appointment of the officers of the militia was exclusively in the states; and how could it be presumed, that such men would ever consent to the destruction of the rights or privileges of their fellow-citizens. The power to discipline and train the militia, except when in the actual service of the United States, was also exclusively vested in the states; and under such circumstances, it was secure against any serious abuses. It was added, that any project of disciplining the whole militia of the United States would be so utterly impracticable and mischievous, that it would probably never be attempted. The most, that could be done, would be to organize and discipline select corps; and these for all general purposes, either of the states, or of the Union, would be found to combine all, that was useful or desirable in militia services.Story, Joseph (1833). Commentaries on the U.S. Constitution, §1202.
For over a century following the ratification of the Bill of Rights, the intended meaning of the Second Amendment, and how the Amendment applied, drew less interest than it does in modern times. The vast majority of regulation was done by states, and the first case law on weapons regulation dealt with state interpretations of the Second Amendment. The notable exception to this general rule was Houston v. Moore, (1820),Houston v. Moore, 18 U.S. 1 (1820). where the U.S. Supreme Court mentioned the Second Amendment in an aside, but Justice Story "misidentified"Several public officials, including James Madison and Supreme Court Justice Joseph Story, retained the confusing practice of referring to each of the ten amendments in the Bill of Rights by the enumeration found in the first draft; had Justice Story followed this practice, he would have described the Second Amendment as the Fourth, but in this case he simply stated the number incorrectly it as the "5th Amendment."
In Bliss v. Commonwealth (1822, KY),Bliss v. Commonwealth, 2 Littell 90 (KY 1882). which evaluated the right to bear arms in defence of themselves and the state pursuant to Section 28 of the Second Constitution of Kentucky (1799), the right to bear arms in defense of themselves and the state was interpreted as an individual right, for the case of a concealed sword cane. As stated by the Kentucky High Court, "But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution." The "constitution" mentioned in this quote refers to Kentucky\'s Constitution.Right to Keep and Bear Arms, U.S. Senate. 2001 Paladin Press. ISBN 1581602545. As mentioned in this quotation "as it existed at the adoption of the constitution" would have had to have been the pre-existing right in force when Kentucky\'s First Constitution was drawn in 1799.The Second Amendment had been in effect only since December 15, 1791, and was still a relatively new concept at the time of the drawing of Kentucky\'s Constitution in 1799.
The case prompted outrage in the Kentucky House, all the while recognizing that Section 23 of the Second Constitution of Kentucky (1799), which stated "That the right of the citizens to bear arms in defence of themselves and the State shall not be questioned."Commonwealth of KY Const. of 1799, art. , x§ 23 did guarantee individuals the right to bear arms in defense of themselves and the state.
The result was that the law of the Commonwealth of Kentucky was eventually over-turned by constitutional amendment with Section 26 in Kentucky\'s Third Constitution (1850), banning the future carrying of concealed weapons, while still asserting that the bearing of arms in defense of themselves and the state was an individual and collective right in the Commonwealth of Kentucky. This recognition, has remained to the present day in the Commonwealth of Kentucky\'s Fourth Constitution enacted in 1891, in Section 1, Article 7, that guarantees "The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons." As noted in the Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in the 1980’s, vol. 10, no. 1, 1982, p. 155, "The first state court decision resulting from the "right to bear arms" issue was Bliss v. Commonwealth. The court held that "the right of citizens to bear arms in defense of themselves and the State must be preserved entire, . . ." This holding was unique because it stated that the right to bear arms is absolute and unqualified. In contrast to this, all states currently regulate the possession and use of firearms to some extent."Pierce, Darell R. (1982). "Second Amendment Survey". Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in the 1980\'s 10 (1). Two states, Alaska and Vermont, do not require a permit or license for carrying a concealed weapon, following Kentucky\'s original position.
In contrast, in State v. Buzzard (1842, Ark), the Arkansas high court adopted a militia-based reading of the right to bear arms under state law, and upheld the 21st section of the second article of the Arkansas Constitution that declared, "that the free white men of this State shall have a right to keep and bear arms for their common defense",State v. Buzzard, 4 Ark. (2 Pike) 18 (1842). while rejecting a challenge to a statute prohibiting the carrying of concealed weapons. Buzzard had carried a concealed weapon and stood "indicted by virtue of the authority of the 13th section of an act of the Legislature prohibiting any person wearing a pistol, dirk, large knife or sword-cane concealed as a weapon, unless upon a journey, under the penalties of fine and imprisonment." The Arkansas high court further declared "That the words "a well regulated militia being necessary for the security of a free State", and the words "common defense" clearly show the true intent and meaning of these Constitutions [i.e., Ark. and U.S.] and prove that it is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then the people, neither individually nor collectively, have the right to keep and bear arms." Joel Prentiss Bishop’s influential Commentaries on the Law of Statutory Crimes (1873) took Buzzard\'s militia-based interpretation, a view that Bishop characterized as the “Arkansas doctrine", as the orthodox view of the right to bear arms in American law.
Modern gun rights advocates have disputed this history, claiming that the individual right was the orthodox view of the right to bear arms under state law in the 19th century, citing the previously-mentioned Bliss v. Commonwealth, and even State v. Buzzard, which recognized the right of an individual to carry a weapon concealed, when upon a journey, in an affirmative defense. Since 1873, some legal and constitutional historians have sided with Bishop and not the individual rights model. see the symposium in Chicago Kent Law Review 76 and the Fordham Law Review vol. 73 Other legal and constitutional historians have sided with the Individual Rights ModelVolokh, Eugene (November/December 1988). "Testimony of Eugene Volokh on the Second Amendment, Senate Subcommittee on the Constitution, Sept. 23, 1998". California Political Review: pp. 23.
In 1905, the Kansas Supreme Court in Salina v. BlaksleyCity of Salina v. Blaksley, 72 Kan. 230 (1905). made the first collective right judicial interpretation, despite the U.S. Supreme Court ruling in Presser v. Illinois which some people view as having ruled otherwise in 1886. The Kansas high court declared:The modern formulation of the debate over the Second Amendment as an individual/collective rights dichotomy entered Federal law and scholarship when it was employed in a widely-cited Harvard Law Review article in 1915 by the Chief Justice of the Maine Supreme Court, Lucilius A. Emery. He noted that "the right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against the common enemy, foreign or domestic."Emery, Lucilius A. (1914–1915). "The Constitutional Right to Keep and Bear Arms". Harvard Law Review 28: 473–477.
That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal Constitution, which says: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."
With Abolition and the Civil War, the question of the rights of freed slaves to carry arms and to belong to militia came to the attention of the courts.
In Dred Scott v. Sandford, 60 U.S. 393 (1856) (the "Dred Scott Decision"),Dred Scott v. Sandford, 60 U.S. 393 (1856). the Supreme Court indicated that: "It would give to persons of the negro race, who were recognized as citizens in any one State of the Union . . .the full liberty . . .to keep and carry arms wherever they went." This may indicate that the right to carry arms was considered to be universal for citizens of the United States, though it is not clear that the terms to \'carry arms\' and to \'bear arms\' were considered synonymous. Both actions may have been considered to be protected for "citizens in any one State of the Union". These comments were obiter dicta (non-binding).
The Dred Scott Decision contains additional significant wording.
More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.(emphasis added)
When the Fourteenth Amendment was drafted, Representative John A. Bingham of Ohio used the Court\'s own phrase "privileges and immunities of citizens" to include the first Eight Amendments of the Bill of Rights under its protection and guard these rights against state legislation.Kerrigan, Robert (June 2006). "The Second Amendment and related Fourteenth Amendment" (PDF).
The debate in the Congress on the Fourteenth Amendment after the Civil War also concentrated on what the Southern States were doing to harm the newly freed slaves. One particular concern was the disarming of former slaves.
The Second Amendment attracted serious judicial attention with the Reconstruction era case of Cruikshank which ruled that the Fourteenth Amendment did not cause the Bill of Rights, including the Second Amendment, to limit the powers of the State governments; stating that the Second Amendment "has no other effect than to restrict the powers of the national government."
Akhil Reed Amar notes in the Yale Law Journal, April 1992, Page 1193, the basis of Common Law for the first ten amendments of the U.S. Constitution, which would include the Second Amendment, "following John Randolph Tucker\'s famous oral argument in the 1887 Chicago anarchist Haymarket Riot case, Spies v. Illinois":
Though originally the first ten Amendments were adopted as limitations on Federal power, yet in so far as they secure and recognize fundamental rights—common law rights—of the man, they make them privileges and immunities of the man as citizen of the United States...Amar, Akhil Reed (April 1992). "The Bill of Rights and the Fourteenth Amendment". Yale Law Journal: pp. 1193.
During the last four decades, discussions of the Second Amendment have featured in American politics most notably in relationship to gun politics, and to a smaller extent towards the role, if any, of a modern militia in society and even to gays in the militaryMerkel, William G.; Uviller, H. Richard (2002). The militia and the right to arms, or, How the second amendment fell silent. Durham, N.C: Duke University Press, Chapter 7. ISBN 0822330318. Clayton Cramer on Homosexuals, the National Guard, and the 2d Amendment [Archive - THR]. Retrieved on 2008-01-08.Gay Rights Watch: Schwarzenegger Signs CA\'s SB 1441 Into Law. Retrieved on 2008-01-08..
The modern gun control politics involves Second Amendment questions such as:
In addition, the modern militia debate often involves discussion focused on more precise details around the word "Militia", such as:
It also expands to include discussions on the impact on the states:
"The Embarrassing Second Amendment" by Sanford LevinsonLevinson, Sanford (1989). "The Embarrassing Second Amendment". Yale Law Journal 99: pp. 637–659. indicates the six approaches to constitutional analysis outlined in Constitutional Fate by Philip Bobbitt:
The legal grammar of constitutional argument comprise these six approaches — or "modalities", as Bobbitt terms them. These approaches are the rhetorical structures within which "law-talk" as a recognizable form of conversation is carried on in analysis of United States constitutional law:
However, as noted earlier by the Supreme Court in 1886, the Second Amendment is not restricted to American citizens. In Presser v. Illinois (1886) before the high court, Presser made an attempt to link the Second Amendment as being a privilege or immunity of citizens of the United States. This attempt was found lacking when the Supreme Court stated
"the people" seems to be a term of art used in select parts of the Constitution and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
Additionally, the Supreme Court stated in Presser v. Illinois,
The plaintiff in error [Presser] next insists that the sections of the Military Code of Illinois under which he was indicted are an invasion of that clause of the first section of the fourteenth amendment to the constitution of the United States which declares: \'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.\'
The constitution and laws of the United States will be searched in vain for any support to the view that these [Second Amendment] rights are privileges and immunities of citizens of the United States...
See Also: Right to bear arms
The meanings of the term "keep and bear arms" are integral to the debate and much of the amendment jurisprudence relies on such interpretations.
Relative to the "bear arms" meanings, one study found "...that the overwhelming preponderance of usage of 300 examples of the \'bear arms\' expression in public discourse in early America was in an unambiguous, explicitly military context in a figurative (and euphemistic) sense to stand for military service".Study on term "bear arms" Further, the Oxford English Dictionary on Historical Principles declares that a meaning of "to bear arms" is a figurative usage meaning "to serve as a soldier, do military service, fight".
The United States Declaration of Independence uses the expression "bear arms" in the sense of military duty on a ship.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country.
In Amyette v. State the Tennessee Supreme Court stated in 1840 that the term "bear arms" "has a military sense, and no other" and further stated "A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane."Amyette v. State, 21 Tenn. 154 (1840).
The word "keep" has also been subject to scrutiny. In the recent case of Parker v. District of Columbia (to be reviewed by the United States Supreme Court under the name District of Columbia v. Heller, below), the court analyzed two different interpretations, one claiming "keep" meant to upkeep the weapons, and another claiming "keep" meant personal retention.
From the opinion: "Turning again to Dr. Johnson\'s Dictionary , we see the first three definitions of keep are "to retain; not to lose," "to have custody," "to preserve; not to let go." Johnson, supra , at 540. We think "keep" is a straightforward term that implies ownership or possession of a functional weapon by an individual for private use."Parker v. District of Columbia, 478 F.3d 370 (2007).
In a released Senate report on the Right to Keep and Bear Arms, Senator Orrin G. Hatch, chairman, U.S. Senate Judiciary Committee, Subcommittee on the Constitution, and well known gun rights proponent, statesFor a more recent judicial interpretation, the United States Court of Appeals for the Fifth Circuit stated in 2001 that
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Several scholars have challenged the 5th Circuit\'s history.Cornell, Saul (2001). "Constitutional History After the New Cultural History: A New Paradigm for the Second Amendment". Several of the earliest state constitutions used variants of the Pennsylvania (September 28, 1776) model, affirming a right to "bear arms in defense of themselves and the state." Thus, North Carolina\'s declaration of rights (December 18, 1776) stated that "The people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."Constitution of North Carolina: A Declaration of Rights, &c., December 18 1776}} Less than two decades later (1796), Tennessee affirmed that "The freemen of this State have a right to keep and bear arms for their common defence."1796 Constitution of the state of Tennessee
Regarding a meaning of "shall not be infringed", the U.S. Supreme Court stated in Robertson v. Baldwin, 165 U.S. 275 (1897),
“The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the "Bill of Rights," were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;... “Robertson v. Baldwin, 165 U.S. 275 (1897).
Modern legal theorists have identified three models used to interpret the Second Amendment. Professor Michael Dorf has described these models as follows:Dorf, Michael C. (2001-10-31), Federal Court Of Appeals Says The Second Amendment Places Limits On Gun Control Legislation, Findlaw\'s Writ
| “ | The first and second both emphasize the preamble, or "purpose" clause, of the Amendment — the words "A well regulated Militia, being necessary to the security of a free State." The third does not. The first model holds that the right to keep and bear arms belongs to the people collectively rather than to individuals, because the right\'s only purpose is to enable states to maintain a militia; it is not for individuals\' benefit. The second model is similar to the first. It holds that the right to keep and bear arms exists only for individuals actively serving in the militia, and then only pursuant to such regulations as may be prescribed. Under either of the first two models, a private citizen has no right to possess a firearm for personal use. But the court rejected these two models in favor of a third, the individual rights model. Under this third model, the Second Amendment protects a right of individuals to own and possess firearms, much as the First Amendment protects a right of individuals to engage in free speech. | ” |
Until recently, United States federal courts have consistently interpreted the Second Amendment to protect a "collective right" to keep and bear arms.Holder, Angela Roddy (1997). The Meaning of the Constitution. Barron\'s Educational Series, pp. 64. ISBN 0-7641-0099-8. Two recent exceptions to this trend have occurred in federal circuit courts: The 2001 Fifth Circuit court ruling United States v. Emerson and the 2007 D.C. Circuit court ruling Parker v. District of Columbia, both of which ruled that the Second Amendment protected an "individual right" to keep and bear arms. Presently, nine of the United States Courts of Appeals have supported a collective rights model, while two United States Courts of Appeals have supported an individual rights model, and the Second Circuit court has not addressed the question.Liptak, Adam. "A Liberal Case for Gun Rights Sways Judiciary", New York Times, 2007-05-06. It should be noted that a ruling of a United States Court of Appeals applies only to the states (and other jurisdictions) that are within the "circuit" in which that ruling was made. Map of each circuit\'s jurisdiction
our militia law is obsolete and worthless. The organization and armament of the National Guard...should be made identical with those provided for the regular forces. The obligations and duties of the Guard in time of war should be carefully defined, and a system established by law under which the method of procedure of raising volunteer forces should be prescribed in advance. It is utterly impossible in the excitement and haste of impending war to do this satisfactorily if the arrangements have not been made long beforehand.
In response, Congress passed the Militia Act of 1903, which, despite its name, essentially did away with the type of militia that had been common at the time of the Revolution. Modern warfare needed trained men with modern weaponry, and the law provided for these in a regular army as well as the National Guard, founded in 1903. Although the Guard is the descendant in many ways of the old unorganized militia, it is a far more disciplined and trained entity, since their program is now held to high standards set by the regular army. The members get their weapons from the national government and do not own them individually.
Following the assassination attempt on President-elect Franklin Delano Roosevelt in 1933, President Roosevelt advocated and Congress passed the National Firearms Act of 1934. The general mood at the time of the assassination attempt was that a deranged man had committed the act.Assassination Attempt on Franklin Roosevelt.
The right to bear arms was occasionally addressed by President Ulysses S. Grant who stated in an address to Congress on April 19, 1872Richardson, James D.. A Compilation of the Messages and Papers of the Presidents; volume 7, part 1: Ulysses S. Grant. that "to deprive colored citizens of the right to bear arms" was among the goals of the Ku Klux Klan. Ulysses Grant later served as president of the National Rifle Association in 1883.
In 2001, the Justice Department under Attorney General John Ashcroft issued a memorandum opinion stating that the Second Amendment protects an individual right to bear arms.Memorandum Re: United States v. Emerson, 2001-11-09 Some critics have asserted that Ashcroft\'s objectivity is questionable, considering his lifelong membership in the National Rifle Association, an organization of individual gun right proponents (though he was not acting in an official capacity of the association at the time).
In 2004, the Justice Department under Ashcroft issued "Whether the Second Amendment Secures an Individual Right", a lengthy memorandum opinion tracing the historical development of the Second Amendment supporting its earlier conclusion. The opinion stated:<
