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The Second Amendment (Amendment II) to the United States Constitution is the part of the United States Bill of Rights that protects a right to keep and bear arms. The meaning and scope of this right has been described as among the most contested of the rights codified in the Bill of Rights.
Contents

Text

There are two versions of the text of the Second Amendment, each with slight capitalization and punctuation differences. The Second Amendment, as passed by the House and Senate, reads:[1]
“     A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.     ”

The original and copies distributed to the states, and then ratified by them, had different capitalization and punctuation:[2]
“     A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.     ”

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 resides in the National Archives.
Background

English Common Law

The rights of British subjects to possess arms was recognized under English common law. Sir William Blackstone’s Commentaries on the Laws of England describes the right to arms:

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.[3]

The rights of the Colonists to possess arms was stated in Revolutionary era newspaper articles. Notably, a Boston Journal of the Times printed April 13, 1769:

Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such nature, and have been carried to such lengths, as must serve fully to evince that a late vote of this town, calling upon its inhabitants to provide themselves with arms for their defense, was a measure as prudent as it was legal: such violences are always to be apprehended from military troops, when quartered in the body of a populous city; but more especially so, when they are led to believe that they are become necessary to awe a spirit of rebellion, injuriously said to be existing therein. It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.[4]

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

Here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defense, not for offence…[5]

When Colonists protested British efforts to disarm their militias in the early phases of the American 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.[6] Thomas B. McAffee & Michael J. Quinlan 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.”[7]

Early commentary

The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker. He annotated a five-volume edition of Sir William Blackstone’s Commentaries on the Laws of England, a critical legal reference for early American attorneys.[8]

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.”[8] 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.[9]

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.[8]

§1202 of the book 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.[10]

Lysander Spooner commenting on bills of rights states 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.[11]

Later commentary

Two grammatical descriptions of the Second Amendment have been historically discussed.

In one description, known to grammarians as an ablative absolute, the Second Amendment has been considered formed with an opening justification clause, followed by a declarative clause.[12][13] Under this interpretation, the opening phrase is considered essential as a pre-condition for the main clause.[14] This was a grammar structure that was common during that era.[15] This grammatical description is considered by some to be consistent with the concept of the Second Amendment as protecting a collective right to firearms for members serving in a select militia.[16]

Another description of the Second Amendment has it being grammatically formed with an opening “prefatory clause” followed by an “operative clause”, meaning that the opening phrase is meant as a non-exclusive reason for the amendment. This description is consistent with the concept of the Second Amendment as protecting an individual right to firearms.[17] In Heller, the Supreme Court chose and endorsed this description of the Second Amendment.[18] Although the Second Amendment is the only Constitutional amendment that has a prefatory clause, such constructions were widely used elsewhere.[19]

In the wake of Sanford Levinson’s important Yale Law Journal article on the Second Amendment published in 1989 there was a flood of new scholarship on the Second Amendment. Much of this scholarship was published by pro-gun rights advocates, but a number of serious academics also entered the debate. By 1999 the weight of scholarship had appeared to shift toward an individual rights interpretation. If one actually looked closely at the scholarship and discounted multiple articles by the same author the balance was only slightly in favor of the individual rights view.

According to Saul Cornell, in recent decades Second Amendment scholarship has taken the form of “law office history”, a form of advocacy scholarship intended to influence the way courts decide constitutional questions. This legal scholarship has influenced the way briefs are written and also may have been used by judges when deciding a case.[20] Similarly, also according to Saul Cornell, the simplified choices of only two models, of the original individual right interpretation and of the later collective right interpretation of the Second Amendment, were both in error: “The original understanding of the Second Amendment was neither an individual right of self-defense nor a collective right of the states, but rather a civic right that guaranteed that citizens would be able to keep and bear those arms needed to meet their legal obligation to participate in a well-regulated militia.”[21][22]

To keep and bear arms vs. to bear arms

Civilian usage meaning

The people’s right to have their own arms for their defense is described in the philosophical and political writings of Aristotle, Cicero, John Locke, Machiavelli, the English Whigs and others.[23] Though possessing arms appears to be distinct from “bearing” them, the possession of arms is recognized as necessary for and a logical precursor to the bearing of arms.[24] Particularly in the event of oppression or slaughter of people by governments or racial majorities, researchers have noted that exercise of the right to bear arms internationally is intrinsically linked to a people’s ability to possess them,[25] and that the possession of arms is the distinction between a freeman and a slave.[26]

Don Kates, a civil liberties lawyer, cites historic English usage describing the “right to keep and bear their private arms.”[27]

Likewise, Sayoko Blodgett-Ford notes non-military usage of the phrase in the Pennsylvania ratifying convention:

“[T]he people have a right to bear arms for the defense of themselves and their own state, or the United States, or the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed…”[28]

In commentary written by Justice Cummings in United States v. Emerson, the United States Court of Appeals for the Fifth Circuit concluded in 2001 that:[29]

there are numerous instances of the phrase ‘bear arms’ being used to describe a civilian’s carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the ‘people’ [or 'citizen' or 'citizens'] “to bear arms in defense of themselves [or 'himself'] and the state,’ or equivalent words, thus indisputably reflecting that under common usage ‘bear arms’ was in no sense restricted to bearing arms in military service. See Bliss v. Commonwealth, 13 Am. Dec. 251, 12 Ky. 90 (Ky. 1822).[30]

Similarly, in a released Senate report on the Right to Keep and Bear Arms, Senator Orrin Hatch, chairman, U.S. Senate Judiciary Committee, Subcommittee on the Constitution, states:

They argue that the Second Amendment’s words “right of the people” mean “a right of the state” — apparently overlooking the impact of those same words when used in the First and Fourth Amendments. The “right of the people” to assemble or to be free from unreasonable searches and seizures is not contested as an individual guarantee. Still they ignore consistency and claim that the right to “bear arms” relates only to military uses. This not only violates a consistent constitutional reading of “right of the people” but also ignores that the second amendment protects a right to “keep” arms. “When our ancestors forged a land “conceived in liberty”, they did so with musket and rifle. When they reacted to attempts to dissolve their free institutions, and established their identity as a free nation, they did so as a nation of armed freemen. When they sought to record forever a guarantee of their rights, they devoted one full amendment out of ten to nothing but the protection of their right to keep and bear arms against governmental interference. Under my chairmanship the Subcommittee on the Constitution will concern itself with a proper recognition of, and respect for, this right most valued by free men.”[31]

Likewise, the U.S. Supreme Court ruled in District of Columbia v. Heller (2008), No. 07-290, that “[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”[32]

Military service meaning

Some historians have claimed that prior to and through the 18th century, the expression “bear arms” appeared exclusively in military contexts, as opposed to the use of firearms by civilians.[33][34][35][36]

“In late-eighteenth-century parlance, bearing arms was a term of art with an obvious military and legal connotation. … As a review of the Library of Congress’s data base of congressional proceedings in the revolutionary and early national periods reveals, the thirty uses of ‘bear arms’ and ‘bearing arms’ in bills, statutes, and debates of the Continental, Confederation, and United States’ Congresses between 1774 and 1821 invariably occur in a context exclusively focused on the army or the militia.”[33]

However, this conclusion is disputed and may be due to selection bias, which arises from the use of a limited selection of government documents that overwhelmingly refer to matters of military service.[37] Commenting on this previous research, other historians note:

“Searching more comprehensive collections of English language works published before 1820 shows that there are a number of uses that…have nothing to do with military service…[and] The common law was in agreement. Edward Christian’s edition of Blackstone’s Commentaries that appeared in the 1790’s described the rights of Englishmen (which every American colonist had been promised) in these terms ‘everyone is at liberty to keep or carry a gun, if he does not use it for the [unlawful] destruction of game.’ This right was separate from militia duties.”[37]

The Oxford English Dictionary defines the term to bear arms as: “to serve as a soldier, do military service, fight,” dating to about the year 1330.

Garry Wills, author and history professor at Northwestern University, has written of the origin of the term bear arms:

“By legal and other channels, the Latin “arma ferre” entered deeply into the European language of war. Bearing arms is such a synonym for waging war that Shakespeare can call a just war ” ‘justborne arms” and a civil war “self-borne arms.” Even outside the special phrase “bear arms,” much of the noun’s use echoes Latin phrases: to be under arms (sub armis), the call to arms (ad arma), to follow arms (arma sequi), to take arms (arma capere), to lay down arms (arma pœnere). “Arms” is a profession that one brother chooses the way another choose law or the church. An issue undergoes the arbitrament of arms.” … “One does not bear arms against a rabbit…”.[38]

Garry Wills also cites Greek and Latin etymology:

“… “Bear Arms” refers to military service, which is why the plural is used (based on Greek ‘hopla pherein’ and Latin ‘arma ferre’) – one does not bear arm, or bear an arm. The word means, etymologically, ‘equipment’ (from the root ar-* in verbs like ‘ararisko’, to fit out). It refers to the ‘equipage’ of war. Thus ‘bear arms’ can be used of naval as well as artillery warfare, since the “profession of arms” refers to all military callings.”[39]

Well regulated militia

On what constitutes a well regulated militia, Alexander Hamilton wrote:

A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.[40]

Adoption

The prefatory clause of the Second Amendment is a shortened version of language found in the 1776 Virginia Declaration of Rights, largely the work of George Mason. Similar language appears in many Revolutionary Era state constitutions. This Declaration states:

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; 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.[41]

In 1786, a decade after the Declaration of Independence was signed, the United States existed as a close alliance of sovereign states 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.[42]

In 1787, to address these weaknesses, the Constitutional 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.[43] 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.

Federalists such as James Madison on the other hand held that a Bill of Rights was unnecessary, arguing that the federal government could never raise a standing army powerful enough to overcome a militia.[44] Similarly, Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.[45][46]

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, which was 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.

The origin of the Second Amendment 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) related to the ongoing revolution in France.[47]

A widespread fear during the debates on the ratification of the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens.[48] Anti-Federalist Patrick Henry during the opening debates of the Virginia Ratification Convention stated his strong belief that arms are required to secure rights and freedoms from those that would take them away.[49] George Mason during that debate also showed his distrust of Congress and the possibility that it would not fund the arming for the militia as an excuse for the creation of a standing army, which could later to be used as an instrument of tyranny by Congress.[50]

State ratification conventions

One of the main opposition points of contention was the Constitution’s omission of a bill of rights. The majority of the Convention would not allow proposed amendments or a bill of rights to be appended to Pennsylvania’s December 12, 1787 Ratification of the Constitution. On December 18, 1787, the Pennsylvania Minority published The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents. The right to bear arms was the seventh in its proposed bill of rights.

“7. That the people have a right to bear arms for the defense of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals;”[51]

While individual rights supporters lay great stress on this Pennsylvania text, critics have pointed out that its language was never copied despite its wide distribution.

Five of the state ratification conventions for the U.S. Constitution made explicit requests or demands for the protection of rights to keep and bear arms. Four of these states also clearly defined that a well-regulated militia consists of “the body of the people trained to arms” or “the body of the people capable of bearing arms”. These four states – New Hampshire, New York, Virginia and Rhode Island – attached proposed bills of rights to their approvals of the Constitution. The fifth, North Carolina, refused to ratify the Constitution and submitted a bill of unalienable rights of the people that must be protected before they would sign.[52] North Carolina ratified the Constitution on November 21, 1789, after the Congress approved the Bill of Rights and submitted it to the states for ratification.

Conflict and compromise

Anti-Federalists supported a 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 became the Second Amendment, as brought to the floor of the House of Representatives of the first session of the First Congress was:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.[53]

The Bill of Rights introduced by Madison on June 8 was not composed of numbered amendments intended to be added at the end of the Constitution. Instead, the Bill of Rights was to be inserted into the existing Constitution. The sentence that became the Second Amendment was to be inserted in Article I, Section 9, between Clauses 3 and 4, which list individual rights, instead of Article I, Section 8, Clauses 15 and 16, which specify the Congress’s power over the state militias.[53] 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, 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,[54] and the Bill of Rights entered committee for review. No official records were kept of the committee’s proceedings, but the committee returned to the House a reworded version of the Second Amendment on July 28.[55] On August 17, that version was read into the Journal:

A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.[56]

The Second Amendment was debated and modified during sessions of the House on August 17 and August 20.[57] These debates revolved primarily around risk of “mal-administration of the government” using the “religiously scrupulous” clause to destroy the militia as Great Britain had attempted to destroy the militia at the commencement of the American Revolution. These concerns were addressed by modifying the final clause, and on August 24, the House sent the following version to the U.S. Senate:

A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

The next day, August 25, the Senate received the Amendment from the House and entered it into the Senate Journal. When the Amendment was transcribed, the semicolon in the religious exemption portion was changed to a comma by the Senate scribe:

A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.[58]

On September 4, the Senate voted to change the language of the Second Amendment by removing the definition of militia, and striking the conscientious objector clause:

A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.[59]

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.[60] The Senate then slightly modified the language and voted to return the Bill of Rights to the House. The final version passed by the Senate was:

A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.

The House voted on September 21, 1789 to accept the changes made by the Senate, but the Amendment as finally entered into the House journal contained the additional words “necessary to”:

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.[61]

This version was transmitted to the states for ratification.

On December 15, 1791, the Virginia General Assembly ratified the Bill of Rights, thereby achieving the ratification of three-fourths of the states needed to add the Bill of Rights to the Constitution.

Case law

For almost 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.[62] The vast majority of regulation was done by states, and the first case law on weapons regulation dealt with state interpretations of the Second Amendment. The notable exception to this general rule was Houston v. Moore, 18 U.S. 1 (1820), where the Supreme Court mentioned the Second Amendment in an aside, but Justice Story “misidentified” it as the “5th Amendment.”[63]

Regarding the state interpretations of these state and the federal constitutional rights to bear arms, state courts have addressed the meaning of these specific rights in considerable detail. Two different models emerged from early state jurisprudence: one based on individual rights and the other on a militia-based view. Saul Cornell has described how the individual rights viewpoint did not emerge until several decades after the Second Amendment was drafted and was later followed by the collective rights viewpoint.[22]

Early commentary in state courts
See also: Right to keep and bear arms

Antebellum

Bliss v. Commonwealth (1822, KY)[64] addressed the right to bear arms pursuant to Art. 10, Sec. 23 of the Second Constitution of Kentucky (1799):[65] “That the right of the citizens to bear arms in defence of themselves and the state, shall not be questioned.” This was interpreted to include the right to carry a concealed sword in a cane. This case has been described as about “a statute prohibiting the carrying of concealed weapons [that] was violative of the Second Amendment.”[66]

The Kentucky High Court stated in Bliss, “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.”[64] The “constitution” mentioned in this quote refers to Kentucky’s Constitution.[31]

The case prompted outrage in the Kentucky House, all the while recognizing that Section 23 of the Second Constitution of Kentucky (1799) did guarantee individuals the right to bear arms. Subsequently, the Bliss ruling, to the extent that it dealt with concealed weapons, was overturned 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 Article 7, Section 1 of the Commonwealth of Kentucky’s Fourth Constitution, enacted in 1891, which 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.”[67][68]

Reference to Bliss is seen in the defense argument subsequently given against a murder charge in Kentucky against Mattews Ward, who in 1852 pulled out a concealed pistol and fatally wounded his brother’s teacher over an accusation regarding eating chestnuts in class. Ward’s defense team consisted of eighteen lawyers, including U.S. Senator John Crittenden, former Governor of Kentucky and former attorney general of the United States. The defense successfully defended Ward in 1854 through an assertion that “a man has a right to carry arms; I am aware of nothing in the laws of God or man, prohibiting it. The Constitution of Kentucky and our Bill of Rights guarantee it. The Legislature once passed an act forbidding it, but it was decided unconstitutional, and overruled by our highest tribunal, the Court of Appeals.” As noted by Cornell,

“Ward’s lawyers took advantage of the doctrine advanced in Bliss and wrapped their client’s action under the banner of a constitutional right to bear arms. Ward was acquitted. … Outside of Kentucky the case drew equally scathing condemnations. A lengthy article in the Monthly Law Reporter denounced the “atrocity of the deed for which the prisoner was indicted.” The case was a “disgrace” that ultimately revealed more about “Kentucky justice” than it did about American Law. Ward had clearly benefited from the anomalous holding in Bliss. Still, even outside of Kentucky the ideas advanced by Ward’s laywers had entered the legal mainstream. Although the civic model articulated in Aymette and Buzzard represented the dominant approach to this issue, the alternative individual rights conception presented by Bliss would only grow stronger over time.”[69]

Although Bliss held that regulating concealed guns was an infringement of the right to keep and bear arms under state law, and also was interpreted as being prohibited by the Second Amendment by former attorney general of the United States John Crittenden.

In contrast, in State v. Buzzard (1842, Ark), the Arkansas high court adopted a militia-based, political right, 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”,[70] 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.” Justice Lacy, in a dissenting opinion in Buzzard, summarizing the majority viewpoint to which he disagreed, 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.”[70]

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.[70][71]

Political scientist Earl Kruschke has categorized both Bliss and Buzzard as being “cases illustrating the individual view.”[72] Professor Eugene Volokh revealed, in the California Political Review, that a statement in a concurring opinion in Buzzard was the only support for a collective right view of the right to keep and bear arms in the 19th century.[73] Claims such as these have prompted Harvard Law Professor Mark Tushnet to remark that scholars and advocates who argue that there is little or no evidence to support the militia based view of the Second Amendment are simply “blowing smoke.” In his book, Out of Range, Tushnet concluded that the historical evidence was nearly a draw.[citation needed]

In Nunn v State of Georgia, 1 Kelly 243 (1846), the Georgia Supreme Court stated that any federal or state law prohibiting the right to bear arms openly of any person, in the smallest degree, was in conflict with the Constitution and therefore void. The Georgia Supreme Court also stated:

Nor is the right involved in this discussion less comprehensive or valuable: “The right of the people to bear arms shall not be infringed.” The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!

We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void.[74]

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

The preamble which was prefixed to these amendments shows, that they originated in the fear that the powers of the general government were not sufficiently limited. Several of the States in their act of ratification recommended that further restrictive clauses should be added…But…does it follow that because the people refused to delegate to the general government the power to take from them the right to keep and bear arms, that they designed to rest it in State governments? Is it not an inalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disfranchisement from Congress, they ever intended to confer it on the local legislatures. This right is too dear to be confided to a republican legislature.[75]

Reconstruction

With the Civil War and the abolition of slavery, the question of the rights of former slaves to carry arms and to bear arms in militia came to the attention of the country.[76]

In Dred Scott v. Sandford, 60 U.S. 393 (1856) (the “Dred Scott Decision”), 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.”

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)[77]

When the Fourteenth Amendment was drafted, Representative John Bingham of Ohio used the Court’s own phrase “privileges and immunities of citizens” to include the individual rights mentioned in the Bill of Rights under its protection and guard these rights against state legislation.[78]

In the Congress, the debate on the Fourteenth Amendment also concentrated on what the Southern States were doing to harm the newly freed slaves. One particular concern was the disarming of former slaves.[79]

The Second Amendment attracted serious judicial attention with the Reconstruction era case of United States v. Cruikshank. In Cruikshank, the U.S. Supreme Court 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.”

The meaning and scope of the right to keep and bear arms has been described as among the most contested of the rights codified in the Bill of Rights.[80][81]

The Supreme Court ruled three times in the 19th Century that the Second Amendment only limits the federal government. In the Supreme Court case of Cruikshank, neither the First Amendment nor the Second Amendment were considered incorporated against the states.[82] Subsequent to this Supreme Court case, the First Amendment has been incorporated against the states, but the Second Amendment has not been incorporated. Presently, there are on-going lawsuits attempting to force the incorporation of the Second Amendment against state and local governments.[83]

Akhil Reed Amar noted, in the Yale Law Journal,[84] the common law basis for the Bill of Rights, which includes 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…[85]

Another point of disagreement concerns the point at which regulation or prohibition of firearms constitutes infringement.[86][87] All federal courts, including the Supreme Court, have found that reasonable firearm regulation is allowable.[88]

In 1905, the Kansas Supreme Court in Salina v. Blaksley[89] made a collective right judicial interpretation modeled on Cruikshank.[90] The Kansas high court declared: “That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal Constitution, which says: ‘A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.’”

U.S. Supreme Court
See also: Firearm case law in the United States

The primary U.S. Supreme Court Second Amendment cases are United States v. Cruikshank (1875), Presser v. Illinois (1886), Miller v. Texas (1894), United States v. Miller (1939) and District of Columbia v. Heller (2008).

United States v. Cruikshank
Main article: United States v. Cruikshank

In United States v. Cruikshank, 92 U.S. 542 (1875), the Supreme Court ruled that because “[t]he Second Amendment…has no other effect than to restrict the powers of the national government…”, the federal government may not punish individuals for depriving citizens of their right to bear arms. The courts did not recognize the doctrine of Incorporation at this point, through rights claims under the Fourteenth Amendment.[91] Significantly with respect to the meaning of the amendment, the Court found that the Second Amendment prohibited the federal government from infringing on the right of individuals “to bear arms for a lawful purpose”. Though many of the rights delineated in the federal Bill of Rights have subsequently been incorporated by the Court as also restricting state law, the Court has not done so for the Second Amendment.

The Court also stated:

This is not a right granted by the Constitution, neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes.[92][93]

Presser v. Illinois
Main article: Presser v. Illinois

In Presser v. Illinois, 116 U.S. 252 (1886), Herman Presser, mounted on horseback, led a Battalion-size group of men, in parade dress down the streets of Chicago. Mr. Presser, in command, carried a cavalry sword and the men marched with rifles at shoulder-arms. He was indicted for violating certain sections of the Illinois Military Code, which forbade such parades without first obtaining a permit from the Governor of that State. At his trial, Presser had argued that “the entire statute under which he was convicted was invalid and void because [such power was] forbidden to the states by the constitution of the United States,” wherein he included the Second Amendment. As to this latter contention, the Court said:

But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. It was so held by this court in the case of U.S. v. Cruikshank, 92 U.S. 542, 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms “is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against violation of the fellow-citizens of the rights it recognizes…”[94]

The Court then cited, in addition to Cruikshank, nine other cases in support of that. Presser had also insisted that the state’s Military Code was “an invasion of that clause of the first section of the fourteenth amendment to the constitution of the United States.” Said the Court: “It is only the privileges and immunities of the citizens of the United States that the clause relied on was intended to protect.”[95] The Court then said in addition:

In the case of New York v. Miln, 11 Pet. 102, 139, this court said: “We choose rather to plant ourselves on what we consider impregnable positions. They are these: that a state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, where that jurisdiction is not surrendered or restrained by the constitution of the United States…” The argument of the plaintiff in error that the legislation mentioned deprives him of either life, liberty, or property without due process of law, or that it is a bill of attainder or ex post facto law, is so clearly untenable as to require no discussion.[96]

Thus, the Presser Court, by stating “the amendment is a limitation only upon the power of Congress and the national government, and not upon that of the state,” re-affirmed Cruikshank, wherein it had stated: “The second amendment declares that it [the right] shall not be infringed, but this, as has been seen, means no more than it shall not be infringed by congress.”

Miller v. Texas

In Miller v. Texas, 153 U.S. 535 (1894), the issue before the U.S. Supreme Court was whether an appeal should be dismissed on technical grounds. After refuting the grounds of the motion, the Court nonetheless dismissed the appeal, saying:

We think there is no federal question properly presented by the record in this case, and that the [appeal] must be dismissed upon that ground”.[97]

Regarding Miller’s state-court argument that the Texas law forbidding the carrying of weapons was “in conflict with the second and fourth amendments to the constitution of the United States…”, the Court stated:

We have examined the record in vain, however, to find where the defendant was denied the benefit of these provisions, and even if it were, it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts.[98]

The Court then went on to say:

And if the fourteenth amendment limited the power of the states as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court.

United States v. Miller
Main article: United States v. Miller

In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court heard arguments from only the Solicitor General[99][100] and rejected a Second Amendment challenge to the National Firearms Act prohibiting the interstate transportation of unregistered Title II weapons, ruling:

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to any preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Miller is often cited by gun-rights advocates, because the Supreme Court ruled that the Second Amendment protected the right to keep arms that are part of “ordinary military equipment.”[101] 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.[102]

District of Columbia v. Heller
Main article: District of Columbia v. Heller

The Supreme Court, in a landmark decision,[103][104][105][106] in District of Columbia v. Heller, 128 S.Ct. 2783 (2008) ruled that “[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home” and “that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”

The Court held that the amendment’s prefatory clause serves to clarify the operative clause, but does not limit or expand the scope of the operative clause. Justice Stevens, in his dissent, called the Opinion of the Court “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. Justice Scalia, in the Opinion of the Court, called Justice Stevens’ interpretation of the phrase “to keep and bear arms” incoherent and grotesque.[107]

Regarding the Second Amendment and the incorporation doctrine, the Supreme Court said:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the first amendment did not apply against the states and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.[108]

Post Heller federal cases

Since Heller, over sixty lawsuits related to firearms legislation have been filed in federal court.[109] Five federal lawsuits have been filed by the National Rifle Association (NRA) requesting the Second Amendment be incorporated via the Fourteenth Amendment.[110] Four of these lawsuits have been settled out of court with the removal of longstanding gun bans, but without a ruling on incorporation.[111][112][113][83] The fifth, McDonald v. Chicago, has been rejected at the district court level and that decision has been appealed. Cass Sunstein, in a Harvard Law Review article which he authored, cited Dorosan and Mullenix for his belief that:

[t]he [Supreme] Court will proceed cautiously, upholding most of the [firearms] laws now on the books and invalidating only the most draconian limitations. It is very early, to be sure, but thus far, the lower courts are taking exactly this path.[114]

Examples of ongoing and recent post-Heller cases, along with summary notes, are listed as follows:

* United States v. Dorosan – On June 30, 2008, the Fifth Circuit upheld 39 CFR 232.1(1), which bans weapons on postal property, sustaining restrictions on guns outside the home, specifically in private vehicles parked in employee parking lots of government facilities, despite Second Amendment claims that were dismissed. The employee’s Second Amendment rights were not infringed since the employee could have instead parked across the street in a public parking lot, instead of on government property.[115][116]

* Mullenix v. BATF – On July 2, 2008, a United States district court judge upheld a federal law that restricts importation of machine guns.[117]

* United States v. Lewis – On July 3, 2008, the Third Circuit upheld, against a Second Amendment challenge, a federal law prohibiting possession of firearms with obliterated serial numbers.[118]

* United States v. Walters – On July 15, 2008, the Third Circuit upheld, against a Second Amendment challenge, a federal law that prohibits possession of firearms within 1,000 feet of a school zone and so denied a request to dismiss an indictment of Rupert Walters.[119]

* McDonald v. Chicago – In this case, on December 18, 2008, a United States district court judge upheld a Chicago, Illinois gun ban. A request for appeal was filed with the Seventh Circuit and is presently pending, though, according to Chris Cox of the NRA’s Institute for Legislative Action, the Seventh Circuit “ruled adversely in 1982.”[120] Law Department spokeswoman Jennifer Hoyle speculated that this case will ultimately be settled in the Supreme Court of the United States.[121]

* United States v. Kennedy – On November 25, 2008, a magistrate judge ruled that the Adam Walsh Child Protection and Safety Act violated the due process rights of the defendant. The magistrate judge ruled:

Pretrial Services recommends that Defendant be prohibited from possessing a firearm, which is a mandatory condition under the Walsh Act. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment created an individual right to possess firearms. In footnote 27, Justice Scalia noted that a law regulating a specific, enumerated right such as the right to keep and bear arms was subject to more than a rational basis level of scrutiny. If the government’s position in this case is sustained, this constitutional right would be taken away not because of a conviction, but merely because a person was charged. This right would be lost notwithstanding a lack of showing that Defendant is a potentially violent individual, or that he even owns firearms. Certainly no particularized need has been established in this case that the Defendant should prohibited from possessing a firearm. As such, they will restrict his freedom to such a substantial degree that they do nonetheless implicate a protected liberty interest, which may not be revoked without according Defendant procedural due process; specifically, an individualized determination as to whether the onerous mandatory conditions are needed to assure the Defendant’s future appearance or to avoid a danger to the community. No such determination has occurred here.[122]

On January 16, 2009, that ruling was affirmed in federal district court.[123]

* United States v. Arzberger – On December 31, 2008, a federal court held that because the Adam Walsh Child Protection and Safety Act did not permit an individualized determination, that it was, on its face, a due process violation. This case dealt with whether it was reasonably necessary, as a condition of bail, that an accused person be required to surrender his Second Amendment right to possess firearms, but without giving that person an opportunity to contest the reasonableness of such a condition. It was noted by Southern District of New York Magistrate Judge James Francis:

To the extent, then, that the Second Amendment creates an individual right to possess a firearm unrelated to any military purpose, it also establishes a protectible liberty interest. And, although the Supreme Court has indicated that this privilege may be withdrawn from some groups of persons such as convicted felons, there is no basis for categorically depriving persons who are merely accused of certain crimes of the right to legal possession of a firearm.[124]

Judge Francis has said that, prior to Heller, it would not have been considered unreasonable to require a defendant be required to surrender a firearm as a condition of pretrial release. Specifically, according to Judge Francis this all changed with the recent U.S. Supreme Court decision in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), where the court changed the course of Second Amendment jurisprudence by creating what he said was a “protectible liberty interest” in the possession of firearms. Thus, in the absence of an individualized determination at a bail hearing, requiring the defendant to give up any firearms violates due process, he said.[125]

Presidential administrations

The right to bear arms was addressed by President Ulysses S. Grant who stated, in an address to the Congress on April 19, 1872, that “to deprive colored citizens of the right to bear arms” was among the goals of the Ku Klux Klan.[126] In 1883, Grant served as president of the National Rifle Association.

In 2001, President Bush directed the Justice Department under Attorney General John Ashcroft to issue a memorandum stating that the Second Amendment protects an individual right to bear arms.[127]

In 2004, President Bush, through the Justice Department under Ashcroft, also issued Whether the Second Amendment Secures an Individual Right, a lengthy memorandum which traced the historical development of the Second Amendment supporting its earlier conclusion. The memo stated:

The Second Amendment secures a personal right of individuals, not a collective right that may be invoked only by a State or a quasi-collective right restricted to those persons who serve in organized militia units.[128]