- Second Amendment to the United States Constitution
The Second Amendment (Amendment II) to the
United States Constitutionis a part of the United States Bill of Rightsthat protects the pre-existing individual right to possess and carry weapons (i.e. "keep and bear arms") in case of confrontation. [District of Columbia, et al., Petitioners v. Dick Anthony Heller. 554 U.S. ____ (2008), page 19. "Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a "pre-existing" right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.'"] Codification of the right to keep and bear armsinto the Bill of Rights was influenced by a fear that the federal government would disarm the people in order to impose rule through a standing armyor select militia, [District of Columbia, et al., Petitioners v. Dick Anthony Heller. 554 U.S. ____ (2008), page 25. "The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric."] since history had shown the way tyrants eliminated resistance to suppression of political opponents was simply to take away the people's arms and make it an offense for people to keep them. [District of Columbia, et al., Petitioners v. Dick Anthony Heller. 554 U.S. ____ (2008). " [H] istory showed that the way tyrants had eliminated a militia consisting of all the ablebodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents." (Page 25) "In addition, in a shorter 1840 work Story wrote: 'One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.'" (Page 36)] In " District of Columbia v. Heller" (June 26, 2008), the Supreme Court ruled that self-defenseis a central component of the right.District of Columbia, et al., Petitioners v. Dick Anthony Heller. 554 U.S. ____ (2008), page 26. "JUSTICE BREYER’s assertion that individual self-defense is merely a 'subsidiary interest' of the right to keep and bear arms, see "post", at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self-defense had little to do with the right’s "codification"; it was the "central component" of the right itself."]
Before the "Heller" decision, there was much disagreement as to whether it protected a collective right or an individual right, because the amendment begins with a prefatory clause that refers to a "well regulated militia." [Dorf, Michael C. (
2001-10-31), [http://writ.news.findlaw.com/dorf/20011031.html Federal Court Of Appeals Says The Second Amendment Places Limits On Gun Control Legislation] , Findlaw's Writ] cite journal|last=Volokh|first=Eugene|authorlink=Eugene Volokh|coauthors=|year=1998|month=|title=The Commonplace Second Amendment|journal=New York University Law Review|volume=73|issue=3|pages=793|issn=00287881|url=http://www.law.ucla.edu/volokh/common.htm|accessdate=|quote=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.] Previously, the Supreme Court had not directly addressed the amendment, or had only done so in limited or ambiguous terms. [cite web|url=http://www.nytimes.com/2007/11/13/washington/13scotus.html|title=Case Touches a 2nd Amendment Nerve|author=Linda Greenhouse|date=2007-11-13|accessdate=2008-08-30|quote=The Supreme Court has never answered the Second Amendment question directly, and it has been nearly 70 years since the court even approached it obliquely...Asked during his confirmation hearing what he thought that sentence meant, Chief Justice John G. Roberts Jr. responded that the Miller decision had 'side-stepped the issue...']
A minority have argued that because the District of Columbia, which is not a state, was the only government involved in "Heller", uncertainty remains concerning whether the Second Amendment applies to state and local jurisdictions by way of incorporation through the Fourteenth Amendment. However, the Court's unambiguous declaration that the right to bear arms is an individual privilege, taken with the Fourteenth Amendment's clear stricture that, " [n] o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," appears to conclusively support incorporation.cite journal|last=Amar|first=Akhil Reed|authorlink=|coauthors=|year=1992|month=|title=The Bill of Rights and the Fourteenth Amendment|journal=Yale Law Journal|volume=101|issue=|pages=1193 [1224-1225] |issn=00440094|url=http://www.saf.org/LawReviews/Amar1.html|accessdate=|quote=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.] [cite book|last=Curtis|first=Michael Kent|title=No State Shall Abridge|edition=Second printing in paperback|origyear=1986|year=1994|publisher=Duke University Press|pages=|isbn=0822305992]
The original and copies distributed to the states, and then ratified by them, had different capitalization and punctuation:
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
scribeWilliam Lambert and hangs in the National Archives. In "District of Columbia v. Heller", the Supreme Court cited the House and Senate text. [Part II-A of the Opinion of the Court]
Origin of the right
The concept of a universal militia originated in England. [Cite journal|last=Cottrol|first=Robert J.|title=Part I Guns in American Culture|journal=Focus on Law Studies|volume=XVIII|issue=2|year=2003|url=http://www.abanet.org/publiced/focus/spring_03.pdf|publisher=American Bar Association|accessdate=01-08-08] [Cite journal|last=Breen|first=T. H.|title=English Origins and New World Development: The Case of the Covenanted Militia in Seventeenth-Century Massachusetts|journal=
Past & Present|volume=57|issue=1|pages=74–96|year=1972|url=http://past.oxfordjournals.org/cgi/content/citation/57/1/74#search=%22Lindsay%20Boynton%2C%20The%20Elizabethan%20Militia%22|doi=10.1093/past/57.1.74] [cite book |last=Boynton|first=Lindsay Oliver J.|title=The Elizabethan Militia 1558–1638|year=1971|oclc=8605166|isbn=0-7153-5244-X|publisher=David & Charles] The requirement that subjects bear arms and serve military duty [Oxford English Dictionary, Second Edition, 1989] cite book|title=The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent|last=Uviller|first=H. Richard.|authorlink=|coauthors=Merkel, William G.|year=2002|publisher=Duke University Press|location=Durham, NC|isbn=0822330172|pages=pp. 23, 194 ] cite book|title=Firearms and violence. A critical review|last=Pepper|first=John|authorlink=|coauthors=Petrie, Carol; Wellford, Charles F.|year=2005|publisher=National Academies Press|location=Washington, DC|isbn=0309091241|pages=290] cite journal|last=Wills |first=Garry|authorlink=Garry Wills|coauthors=|year=1995|month=|title=To Keep and Bear Arms: The Origins of an Anglo-American Right|journal=New York Review Of Books|volume=42|issue=14|pages=62|issn=00287504|url=|accessdate=|quote=] 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 his own armor and weapon for military service. This was of such importance that Crown officials gave periodic inspections to guarantee a properly armed militia. King Henry III required every subject between the ages of fifteen and fifty (including non-land owning subjects) to own a weapon other than a knife. The reason for such a requirement was that in the absence of a regular army and police force (which was not established until 1829), it was the duty of every man to keep watch and ward at night to capture and confront suspicious persons. Every subject had an obligation to protect the king’s peace and assist in the suppression of riots.cite book|title=Origin of the Bill of Rights|last=Levy|first=Leonard W.|authorlink=|coauthors=|year=1999|publisher=Yale University Press|location=New Haven, CT|isbn=0300078021|pages=136–137] This remained relatively unchanged until 1671, when Parliamentcreated 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, was this reversed by the English Bill of Rights which declared that "Subjects which are Protestants may have Arms for their defence suitable to their Conditions, and as allowed by Law".
English Common Law
As British subjects, Protestant colonists had a conditional right to possess arms according to the English Bill of Rights of 1689.
The rights of British subjects to possess arms was recognized under English
common law. Sir William Blackstone's " Commentaries on the Laws of England", were highly influential and were used as a reference and text book for English Common Law. In his Commentaries, Blackstone described the right to arms.
The 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:
John Adams, lead defense attorney for the British soldiers on trial for the
Boston Massacrestated at the trial:
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 Adamsinvoked the common law of self-defense. [ [http://www.abanet.org/publiced/focus/spring_03.pdf John Adams and common law of self-defense] ] Thomas B. McAffee & Michael J. Quinlan stated "… Madison did not invent the right to keep and bear armswhen he drafted the Second Amendment—the right was pre-existing at both common law and in the early state constitutions." [Cite journal|last=McAffee|first=Thomas B.|coauthors=Quinlan, Michael J.|title=Bringing Forward the Right to Keep and Bear Arms: Do Text, History, or Precedent Stand in the Way?|year=1997|month=March|pages=781|journal= North Carolina Law Review|url=http://www.saf.org/LawReviews/McAffeeAndQuinlan1.html]
Prior to "Heller", others sometimes perceived a distinction between the right to bear arms and the right to self-defense; Robert Spitzer 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." [cite journal|last=Spitzer|first=Robert J.|title=Lost and Found: Researching the Second Amendment|journal=
Chicago-Kent Law Review|volume=76|issue=1|year=2000|pages=349–401|url=http://lawreview.kentlaw.edu/articles/76-1/Spitzer%20Macro2.pdf] Heyman has similarly argued that the common law right of self defense was legally distinct from the right to bear arms. [Cite journal|last=Heyman|first=Steven J.|title=Natural Rights and the Second Amendment|journal= Chicago-Kent Law Review|volume=76|issue=1|year=2000|pages=237–290|url=http://lawreview.kentlaw.edu/articles/76-1/heyman%20macro2.pdf] In " District of Columbia v. Heller", however, the Supreme Court ruled that self-defense"is" a central component of the right.
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 annotated a five-volume edition of Sir William Blackstone's "Commentaries on the Laws of England" (discussed at length later, under Colonial Rights), published in Philadelphia in 1803, for American use; it formed, in many cases, the sole legal written works read by many early American attorneys. [http://davidkopel.com/2A/LawRev/19thcentury.htm St. George Tucker Commentary] ] Tucker was a leading Jeffersonian constitutional theorist and 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: quote|The bill of rights, 1 W. and M, says Mr. Blackstone, (Vol. 1 p. 143), secures to the subjects of England the right of having arms for their defence, suitable to their condition and degree. In the construction of these game laws it seems to be held, that no person who is not qualified according to law to kill game, hath any right to keep a gun in his house. Now, as no person, (except the game-keeper of a lord or lady of a manor) is admitted to be qualified to kill game, unless he has 100l. per annum, &c. it follows that no others can keep a gun for their defence; so that the whole nation are completely disarmed, and left at the mercy of the government, under the pretext of preserving the breed of hares and partridges, for the exclusive use of the independent country gentlemen. In America we may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.
Tucker also wrote of the British, quote|True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to Protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.
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:quote|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. [Cite book|last=Story|first=Joseph|authorlink=Joseph Story|year=1833|title=Commentaries on the U.S. Constitution|pages=§1890|url=http://www.lonang.com/exlibris/story/sto-344.htm]
§1202 of the book describes "Power over the Militia" and analyzes the origins of the Second Amendment. Justice Joseph Story clearly viewed the original meaning of the Amendment as a concession to moderate
Anti-Federalistswho feared federal control over the militia:quote|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. [Cite book|last=Story|first=Joseph|authorlink=Joseph Story|year=1833|title=Commentaries on the U.S. Constitution|pages=§1202|url=http://www.lonang.com/exlibris/story/sto-322.htm]
The first part 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 of the 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. [cite web|url=http://www.constitution.org/bcp/virg_dor.htm|title=Virginia Declaration of Rights, 1776|publisher=Constitution.org|date=|accessdate=2008-09-25]
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 Massachusettsknown as Shays' Rebellion.
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
democracyand civil liberties as had happened recently in the American Coloniesand Europe. [Cite book|authorlink=Garry Wills |last=Wills|first=Garry|year=1999|title=A Necessary Evil, A History of American Distrust of Government|location=New York, NY|publisher=Simon & Schuster|isbn=0-6848-4489-3] Although the Anti-Federalists were ultimately unsuccessful at blocking ratification of the Constitution, through the Massachusetts Compromisethey 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 standing army powerful enough to overcome the militia. Leading Federalist
James Madisonwrote: quote|Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the state governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. (at Wikisource)]
Noah Websterwrote: quote|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] One example given by Webster of a "power" that the people could resist was that of a standing army: quote|Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. [cite book|last=Young|first=David E.|title=The Origin of the Second Amendment: A Documentary History of the Bill of Rights 1787-1792|edition=2nd Ed.|year=2001|publisher=Golden Oak Books|pages=38-41|isbn=0-9623664-3-9|quote=A Citizen of America (Noah Webster) October 10, 1787Pamphlet: An Examination into the leading principles of the Federal Constitution]
The controversy of a
standing armyfor the United States existed in context of the Continental Forces that had won the American Revolutionary Warwhich consisted of both the standing Continental Armycreated by the Continental Congressand 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:quote|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. [ (at Wikisource)]
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 Adamswrote of his fears about Anti-federalists in the ongoing revolution in France:quote|The State is in critical Circumstances, and have been brought into them by the Heat and Impatience of the People. If nothing will bring them to consideration, I fear they will suffer. [ [http://www.masshist.org/digitaladams/aea/cfm/doc.cfm?id=L17931222ja&mode=popuplg&pop=L17931222ja_2 John Adams second quote] ]
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. Edward F. Cooke states:
In the eighteenth century people feared that Congress might, by passing a law, prohibit the states from arming their citizens. Then having all the armed strength at its command, the national government could overwhelm the states. [cite book|author=Cooke, Edward Francis|title=A detailed analysis of the Constitution|publisher=Rowman & Littlefield Publishers|location=Lanham, Md|year=2002|pages=100|isbn=0-7425-2238-5|quote=This is another protection against a possible abuse by Congress. The right protected is really the right of a state to maintain an armed militia, or national guard, as we call it now. In the eighteenth century people feared that Congress might, by passing a law, prohibit the states from arming their citizens. Then having all the armed strength at its command, the national government could overwhelm the states. Such a circumstance has never happened, but this amendment would prevent it. The Second Amendment does not give anybody or everybody the right to possess and use firearms. The states may very properly prescribe regulations and permits governing the use of guns within their borders.]
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
Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined. … O sir, we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone; … Did you ever read of any revolution in a nation, brought about by the punishment of those in power, inflicted by those who had no power at all? … Will your mace-bearer be a match for a disciplined regiment? [cite web|url=http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(ed0038|title=)): Elliot's Debates -Thursday, June 5, 1788|publisher=Memory.loc.gov|date=|accessdate=2008-09-25]
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.
The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless—by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them, &c. … Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army. … But when once a standing army is established in any country, the people lose their liberty. When, against a regular and disciplined army, yeomanry are the only defence,—yeomanry, unskilful and unarmed,—what chance is there for preserving freedom? [http://memory.loc.gov/cgi-bin/query/D?hlaw:1:./temp/~ammem_lDJe::]
Patrick Henry during debate also states:
The militia, sir, is our ultimate safety. We can have no security without it. [http://memory.loc.gov/cgi-bin/query/D?hlaw:1:./temp/~ammem_d2Ve::]
Reaching a compromise between these widely disparate positions was not easy, but nonetheless, a compromise was negotiated with the result being the Second Amendment.
tate ratification conventions
The Pennsylvania ratification convention was the second State Convention to ratify the U.S. Constitution and the first at which there was significant Anti-Federalist opposition. 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 Bears arms was the seventh in their 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;" [reprinted in "The Origin of the Second Amendment, A Documentary History of the Bill of rights" 154-175 (David E. Young)]
Many delegates to subsequent State Ratification conventions were familiar with "The Address and Reasons of the Pennsylvania Minority", "The Letters from the Federal Farmer to the Republican 18", and other Anti-Federalist writings supporting a right to bear arms.
Five of the state ratification conventions for the U.S. Constitution made explicit requests or demands for the protection of rights to keep and bear arms. Four states also clearly defined what a well-regulated militia consists of "the body of the people trained "to arms" or "the body of the people capable of "bearing arms". Four states attached proposed bills of rights to their approvals of the Constitution, the fifth, North Carolina, refused to approve the Constitution and submitted a bill of unalienable rights of the people that must be protected before they would sign. [Elliot, "Debates of the Several State Conventions" 1:326, 3:652-61, 1:327-29, 4:244, 1:335]
New Hampshire, June 21, 1788
*"XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion."
Virginia, June 27, 1788
*"17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state:"
The Virginia Ratification Convention Committee that produced Virginia's proposed bill of rights included
James Madison, Patrick Henry, George Mason, James Monroeand John Marshall.
New York, July 26, 1788
*"That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state."
North Carolina, August 1, 1788
*"17. That the people have a right to keep and bear arms; that a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state;"
North Carolina ratified the constitution on November 21, 1789, after Congress approved the Bill of Rights and submitted them to the states for ratification.
Rhode Island, May 29, 1790
*"XVII. That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state;"
Conflict and compromise
In the early months of 1789, the United States was engaged in an ideological conflict between
Federalists, who favored a stronger central government, and Anti-Federalists, 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 Anti-Federal tensions. Also, the conflict in beliefs continued between northern states, that generally favored Federalist values, and southern states, that tended to share Anti-Federalist 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 Washingtonhad occurred just a few short weeks earlier.
Anti-Federalists 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 became the Second Amendment, as brought to the floor of the House of Representatives of the first session of the First Congress was: quote|"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." [http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=227 "Annals of Congress"] , House of Representatives, 1st Congress, 1st Session: pp. 451] 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. Instead the Bill of Rights was 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 the Congress's power over the militia. 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. [Cite journal|last=Rakove|first=Jack|title=The Second Amendment: The Highest State of Originalism|journal=
Chicago-Kent Law Review|volume=76|issue=1|year=2000|pages=103|url=http://lawreview.kentlaw.edu/articles/76-1/Rakove%20macro2.pdf]
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, [ [http://memory.loc.gov/cgi-bin/ampage?collId=llhj&fileName=001/llhj001.db&recNum=62&itemLink=r?ammem/hlaw:@field(DOCID+@lit(hj001114))%230010063&linkText=1 "Journal of the House of Representatives of the United States"] , Volume 1: p. 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. [ [http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=351 "Annals of Congress"] , House of Representatives, 1st Congress, 1st Session: pp. 669] On August 17, that version was read into the Journal:quote|"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." [ [http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=390 "Annals of Congress"] , House of Representatives, 1st Congress, 1st Session: p. 778]
The Second Amendment was debated and modified during sessions of the House on August 17 and August 20. [ [http://www.constitution.org/mil/militia_debate_1789.htm 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: quote|"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: quote|"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." [ [http://rs6.loc.gov/cgi-bin/ampage?collId=llsj&fileName=001/llsj001.db&recNum=60&itemLink=r%3Fammem%2Fhlaw%3A%40field%28DOCID%2B%40lit%28sj001133%29%29%230010075&linkText=1 "Journal of the Senate of the United States of America"] , Volume 1: p. 63]
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: quote|"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." [ [http://rs6.loc.gov/cgi-bin/ampage?collId=llsj&fileName=001/llsj001.db&recNum=68&itemLink=r%3Fammem%2Fhlaw%3A%40field%28DOCID%2B%40lit%28sj001133%29%29%230010075&linkText=1 "Journal of the Senate of the United States of America"] , Volume 1: p. 71]
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. [ [http://rs6.loc.gov/cgi-bin/ampage?collId=llsj&fileName=001/llsj001.db&recNum=74&itemLink=r?ammem/hlaw:@field(DOCID+@lit(sj001133))%230010075&linkText=1 "Journal of the Senate of the United States of America"] , Volume 1: p. 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: quote|"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": quote|"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." [ [http://memory.loc.gov/cgi-bin/ampage?collId=llhj&fileName=001/llhj001.db&recNum=302 "Journal of the House of Representatives of the United States"] , Volume 1: p. 305]
This version was transmitted to the states for ratification.
On December 15, 1791, the
Virginialegislature 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.
The House Journal [ [http://memory.loc.gov/ammem/amlaw/lwhj.html House Journal] ] and Senate Journal [ [http://memory.loc.gov/ammem/amlaw/lwsj.html Senate 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 Congress [ [http://memory.loc.gov/ammem/amlaw/lwac.html Annals of Congress] ] (AoC) which were compiled forty to seventy years after the debates, using the best sources which could then be found, which were primarily newspaper reports of the time.
"The Debates in the Several State Conventions, on the Adoption of the Federal Constitution" [ [http://rs6.loc.gov/ammem/amlaw/lwed.html Jonathan Elliot Commentary] ] by Jonathan Elliot (1836), discusses Anti-Federalist proposals to amend the Constitution, and the intent of the amendments that were negotiated and adopted to meet their concerns.
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", ussc|18|1|1820, where the Supreme Court mentioned the Second Amendment in an aside, but Justice Story "misidentified" [Several public officials, including
James Madisonand 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."
Early commentary in state courts
In "Bliss v. Commonwealth" (1822, KY),cite court|litigants=Bliss v. Commonwealth|vol=2|reporter=Littell|opinion=90|date=KY 1882|url=http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/bliss_v_commonwealth.txt] 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. This case has been described as about “a statute prohibiting the carrying of concealed weapons [that] was violative of the Second Amendment.”United States. Anti-Crime Program. Hearings Before Ninetieth Congress, First Session. Washington: U.S. Govt. Print. Off, 1967, p. 246. quote: "…unabridgable right to bear arms for self-protection as well as for militia purposes and that a statute prohibiting the carrying of concealed weapons was violative of the Second Amendment (see Bliss v. Commonwealth, 2 Litt. . (Ky) 90, 13 Am. December 251 (1822)…"] Others, however, have seen no conflict with the Second Amendment by the Commonwealth of Kentucky's statute under consideration in "Bliss" since "The Kentucky law was aimed at concealed weapons. No one saw any conflict with the Second Amendment. As a matter of fact, most of the few people who considered the question at all believed amendments to the U.S. Constitution did not apply to state laws."cite book
title=A Well regulated militia: the battle over gun control
location=North Haven, CT
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." 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" was the pre-existing right in force when Kentucky's First Constitution was drawn in 1799. [The Second Amendment became effective
December 15, 1791, and was still a new concept 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.
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 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." [cite journal|last=Pierce|first=Darell R.|title=Second Amendment Survey|journal=Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in the 1980's|volume=10|issue=1|year=1982|pagest=155] [Two states,
Alaskaand Vermont, do not require a permit or license for carrying a concealed weapon to this day, following Kentucky's original position.]
The importance of "Bliss" is also seen from the defense 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.”cite book
title=A WELL-REGULATED MILITIA — The Founding Fathers and the Origins of Gun Control in America
publisher=Oxford University Press
location=New York, New York
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",Cite court|litigants=State v. Buzzard|vol=4|reporter=Ark. (2 Pike)|opinion=18|year=1842|url=http://www.constitution.org/2ll/2ndcourt/state/191st.htm] 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.cite book
title=A WELL-REGULATED MILITIA – The Founding Fathers and the Origins of Gun Control in America
publisher=Oxford University Press
location=New York, New York
quote=”Dillon endorsed Bishop's view that "Buzzard's" “Arkansas doctrine,” not the libertarian views exhibited in "Bliss, captured the dominant strain of American legal thinking on this question.”]
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. Similarly, political scientist Earl Kruschke has categorized both "Bliss" and "Buzzard" as being “cases illustrating the individual view.”cite book
author=Kruschke, Earl R.
title=Gun control: a reference handbook
location=Santa Barbara, Calif
Eugene Volokhrevealed, 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.Cite journal|last=Volokh|first=Eugene|title=Testimony of Eugene Volokh on the Second Amendment, Senate Subcommittee on the Constitution, September 23, 1998|journal= California Political Review|date=November/December 1988|pages=pp. 23|url=http://www.law.ucla.edu/volokh/beararms/testimon.htm#14|quote="A recent exhaustive study reveals that there was exactly one statement in the 1800s cases or commentaries supporting the collective rights view, a concurring opinion in an 1842 Arkansas state court case."]
In 1905, the
KansasSupreme Court in "Salina v. Blaksley" [Cite court|litigants=City of Salina v. Blaksley|vol=72|reporter=Kan.|opinion=230|year=1905|url=http://www-2.cs.cmu.edu/afs/cs/user/wbardwel/public/nfalist/salina_v_blaksley.txt] made the first "collective right" judicial interpretation.cite book
title=A WELL-REGULATED MILITIA – The Founding Fathers and the Origins of Gun Control in America
publisher=Oxford University Press
location=New York, New York
quote=”… the Kansas Supreme Court had used a similar formulation of the right to bear arms a decade earlier, describing this right as one that “refers to the people as a collective body.””] 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.'"
Antebellum and Reconstruction
Dred Scott v. Sandford", ussc|60|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.quote|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 Binghamof Ohioused 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.Cite paper|author=Kerrigan, Robert|title=The Second Amendment and related Fourteenth Amendment|date=June 2006|format=PDF|url=http://secondamendment.and.fourteenth.googlepages.com]
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 "
United States v. 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 Amarnoted 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":Quote|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…
The Supreme Court stated in "Robertson v. Baldwin", ussc|165|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;..."
U.S. Supreme Court
The primary U.S. Supreme Court Second Amendment cases are "
District of Columbia v. Heller" (2008), " United States v. Miller" (1939), " Presser v. Illinois" (1886) and " United States v. Cruikshank" (1875).
"District of Columbia v. Heller"
In "District of Columbia v. Heller", [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&navby=case&vol=000&invol=07-290#opinion1 554 U.S. ___] , decided on June 26, 2008, the Supreme Court ruled that "The 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 neither limits nor expands the scope of the operative clause. Justice Stevens, in his dissent, called the majority reading "strained and unpersuasive," and says 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. [District of Columbia, et al., Petitioners v. Dick Anthony Heller. 554 U.S. ____ (2008), page 13. "Giving 'bear Arms' its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase 'keep and bear Arms' would be incoherent. The word 'Arms' would have two different meanings at once: 'weapons' (as the object of 'keep') and (as the object of 'bear') one-half of an idiom. It would be rather like saying 'He filled and kicked the bucket' to mean 'He filled the bucket and died.' Grotesque."]
"United States v. Miller"
In "United States v. Miller", ussc|307|174|1939, the Supreme Court rejected a Second Amendment challenge to the
National Firearms Actprohibiting the interstate transportation of unregistered Title II weapons, ruling that: quote|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".
"United States v. Cruikshank"
In "United States v. Cruikshank", ussc|92|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 in the 19th century. [The first case to apply any part of the Bill of Rights to the states was "Chicago, Burlington & Quincy Railway Co. v. Chicago" ussc|219|549|1897] Though many of the federal rights delineated in the federal Bill of Rights have subsequently been incorporated by the Court as rights against the states, the Court has not done so for the Second Amendment. Significantly with respect to the meaning of the amendment, the court found that the Second Amendment prohibited the national government from infringing on the right of individuals "to bear arms for a lawful purpose".
"Presser v. Illinois"
In "Presser v. Illinois", ussc|116|252|1886, the Court reaffirmed "Cruikshank", holding that the Second Amendment limits the authority only of the federal government.
The right to bear arms was addressed by President
Ulysses S. Grantwho 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. [cite book|last=Richardson|first=James D.|title=A Compilation of the Messages and Papers of the Presidents; volume 7, part 1: Ulysses S. Grant|url=http://www.gutenberg.org/files/13012/13012-8.txt] In 1883, Grant served as president of the National Rifle Association.
assassinationattempt on President-elect Franklin D. Rooseveltin 1933, President Roosevelt advocated and the Congress passed the National Firearms Actof 1934. The general mood at the time of the assassination attempt was that a deranged man had committed the act. [Cite web|title=Assassination Attempt on Franklin Roosevelt|url=http://www.u-s-history.com/pages/h1516.html]
In 2001, the Justice Department under Attorney General
John Ashcroftissued a memorandum opinion stating that the Second Amendment protects an individual right to bear arms. [ [http://www.usdoj.gov/ag/readingroom/emerson.htm Memorandum "Re: United States v. Emerson"] , 2001-11-09]
In 2004, the Justice Department under Ashcroft issued a lengthy memorandum opinion, entitled "Whether the Second Amendment Secures an Individual Right", which traced the historical development of the Second Amendment supporting its earlier conclusion. The opinion stated:Quote|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. [http://www.usdoj.gov/olc/secondamendment2.pdf "Whether the Second Amendment Secures an Individual Right"] ,
National Firearms Act
National Firearms Actof 1934 dealt with firearms, such as machine guns, short-barreled shotguns and rifles, gun accessories like silencers, and other "gadget-type" firearms hidden in canes and such were also targeted. In addition, the creation of a $200 tax for sawed-off shotguns, typically worth at most $10, which applied each and every time the firearm changed hands, would enhance tax revenue for the federal government. Initially, the act included handguns, but the complaints of women who could more easily handle handguns than long guns reversed this additional position, and handguns were not included in the National Firearms Act. The creation of a $200 tax for an item worth at most $10 generated almost no revenue. During the first few years after the National Firearms Act was created, less than two dozen sawed off shotguns were registered and had the tax paid. As a revenue enhancing measure, the act produced essentially no revenue while providing considerable work for government agents.
Federal Firearms Act
The Federal Firearms Act of 1938 was aimed at those involved in selling and shipping firearms through interstate or foreign commerce channels.
In 1964, two codes were passed in response to highly-public and televised handgun assassinations in 1963: usc|18|1715 and usc|49|1472. The first prohibits, except in limited circumstances, the mailing of "Pistols, revolvers, and other firearms capable of being concealed on the person". The second prohibits the carrying of weapons aboard aircraft.
Gun Control Act
Gun Control Act of 1968was passed in response to the assassinations of John F. Kennedyby Lee Harvey Oswald, using a mail order rifle, and the subsequent assassinations of Martin Luther King, Jr.and presidential candidate Robert F. Kennedy. License requirements were expanded to include more dealers, and more detailed record keeping was expected of them; handgun sales over state lines were restricted; the list of persons dealers could not sell to grew to include those convicted of felonies (with some exceptions), those found mentally incompetent, drug users, and others. The act also defined persons who were banned from possessing firearms.
The key element of this bill outlawed mail order sales of rifles and shotguns. Until this law, mail order consumers only had to sign a statement that they were over 21 years of age for a handgun to be shipped by common carrier (18 for rifle or
shotgun), since the earlier 1964 law had already prohibited most handguns from the U.S. Postal mail. Additionally, it detailed more persons who were banned from possessing certain guns and further restricted shotgun and rifles sales.
In the "Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 97th Congress, Second Session" (February 1982), a bipartisan subcommittee (consisting of 3 Republicans and 2 Democrats) of the
United States Senateinvestigated the Second Amendment and reported upon their findings. This report included the following opinions:Quote|The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.It concluded that seventy-five percent of Bureau of Alcohol, Tobacco, Firearms and Explosivesprosecutions were "constitutionally improper", especially on Second Amendment issues. [cite web|title=Gun Law News: Firearm Owners Protection Act of 1986|url=http://www.gunlawnews.org/FOPA-86.html]
The McClure-Volkmer Act of 1986 addressed the abuses noted in the 1982 Senate Judiciary Subcommittee report. It reopened interstate sales of long guns on a limited basis, allowed ammunition shipments through the U.S. Postal Service (a partial repeal of the Gun Control Act), ended record keeping on ammunition sales, except for armor piercing, permitted travel between states supportive of Second Amendment rights even through those areas less supportive of these rights, and addressed several other issues that had effectively restricted Second Amendment rights. However, the act also contained a provision that banned the sale of machine guns manufactured after the date of enactment to civilians, restricting sales of these weapons to the military and law enforcement. Thus, in the ensuing years, the limited supply of these arms available to civilians has caused an enormous increase in their price, with most costing in excess of $10,000. Regarding these fully-automatic firearms owned by private citizens in the United States, political scientist Earl Kruschke said "approximately 175,000 automatic firearms have been licensed by the Bureau of Alcohol, Tobacco, and Firearms (the federal agency responsible for administration of the law) and evidence suggests that none of these weapons has ever been used to commit a violent crime."cite book|author=Kruschke, Earl R.|title=Gun control: a reference handbook|publisher=ABC-CLIO|location=Santa Barbara, Calif|year=1995|pages=p. 85|isbn=0-87436-695-X|oclc=|doi=]
Brady Handgun Violence Prevention Act
Brady Handgun Violence Prevention Actof 1993 initially provided a five-day waiting period for handgun purchases, which expired on November 30, 1998. It was replaced by a mandatory, computerized criminal background checking system to be conducted prior to any firearm purchase from a federally-licensed firearms dealer.
Firearm case law in the United States
Gun politics in the United States
Right to keep and bear arms
* [http://www.archives.gov/exhibits/charters/bill_of_rights.html National Archives Scanned Image of the Bill of Rights, including the Second Amendment]
* [http://www.guncite.com/gc2ndfqu.html Quotes of the Founding Fathers on the right to keep and bear arms]
* [http://www.law.cornell.edu/supct/html/07-290.ZS.html "District of Columbia v. Heller" decision]
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