Second Amendment to the United States Constitution

From Wikipedia, the free encyclopedia

United States of America
This article is part of the series: United States Constitution
Original text of the Constitution
Preamble Articles of the Constitution I ∙ II ∙ III ∙ IV ∙ V ∙ VI ∙ VII
Amendments to the Constitution
Bill of Rights I ∙ II ∙ III ∙ IV ∙ V VI ∙ VII ∙ VIII ∙ IX ∙ X Subsequent Amendments XI ∙ XII ∙ XIII ∙ XIV ∙ XV XVI ∙ XVII ∙ XVIII ∙ XIX ∙ XX XXI ∙ XXII ∙ XXIII ∙ XXIV ∙ XXV XXVI ∙ XXVII
Other countries ·  Law Portal  view • talk • edit

U.S. Firearms Legal Topics
Assault weapons ban
ATF (law enforcement)
Brady Handgun Act
Federal Firearms License
Firearm case law
Firearm Owners Protection Act
Gun Control Act of 1968
Gun laws in the U.S. — by state
Gun laws in the U.S. — federal
Gun politics in the U.S.
National Firearms Act
Second Amendment
Straw purchase
Sullivan Act (New York)
Violent Crime Control Act

The Second Amendment (Amendment II) to the United States Constitution is a part of the Bill of Rights that protects the pre-existing individual right to possess and carry weapons (i.e. "keep and bear arms") in case of confrontation.^[1] Codification of the right to keep and bear arms into 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 army or select militia,^[2] since history had shown that a tyrant's ability to suppress political opponents was accomplished by simply taking away the people's arms.^[3] In District of Columbia v. Heller, the Supreme Court ruled that self-defense is a central component of the right.^[4]

Before the Heller decision on June 26, 2008, 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."^[5] Previously, the Supreme Court did not address the amendment directly, or did so in limited or ambiguous terms.

Because Heller involved the District of Columbia, which is not a state, controversy remains concerning whether the Second Amendment prohibits only the federal government from infringing upon the right, or whether it extends to state and local jurisdictions by way of incorporation through the Fourteenth Amendment.^[6][7]

Contents 1 Text 2 Precedent 3 Early commentary 4 Origin 5 Creation 5.1 Conflict and compromise 5.2 Ratification 5.3 Historical sources 6 History 6.1 Early commentary about the Second Amendment in state courts of the United States 6.2 Antebellum and Reconstruction 6.2.1 “Shall not be infringed” 6.2.2 Models of interpretation 7 Presidential administrations 8 Congressional legislation 9 Important case law 9.1 District of Columbia v. Heller 9.2 United States v. Miller 9.3 United States v. Cruikshank 9.4 Presser v. Illinois 10 Colonial right to possess arms under English Common Law 11 State ratification conventions 12 Notes 13 See also 14 External links

[edit] Text

The Second Amendment, as passed by the House and Senate, reads:

“

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

”

The original and copies distributed to the states, and then ratified by them, had different capitalization and punctuation:

“

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

”

Both versions are commonly used in official government publications. The original hand-written copy of the Bill of Rights, approved by the House and Senate, was prepared by scribe William Lambert and hangs in the National Archives. In District of Columbia v. Heller, the Supreme Court cites the House and Senate text.^[8]

The Amendment is the only part of the Bill of Rights that is formed with a prefatory clause, followed by an operative clause; however, such constructions were widely used elsewhere.^[5]

[edit] Precedent

The concept of a universal militia originated in England.^[9][10][11] The requirement that subjects bear arms and serve military duty,^{[12][13][14][15]} 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.^[16] This remained relatively unchanged until 1671, when Parliament created a statute that drastically raised the property qualifications needed to possess firearms. In essence, this statute disarmed all but the very wealthy. In 1686, King James II banned without exception the Protestants' ability to possess firearms, even while Protestants constituted over 95% of the English subjects. Not until 1689, with the rise of William of Orange, was this reversed by the English Declaration of Rights which declared that "Subjects which are Protestants may have Arms for their defence suitable to their Conditions, and as allowed by Law".

When Colonists protested British efforts to disarm their militias in the early phases of the 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.^[17] 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."^[18]

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."^[19] Heyman has similarly argued that the common law right of self defense was legally distinct from the right to bear arms.^[20] In District of Columbia v. Heller, however, the Supreme Court ruled that self-defense is a central component of the right.^[21]

[edit] Early commentary

The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker, also known as The American Blackstone. He authored a set of law books in 1803 that annotated Sir William Blackstone's Commentaries on the Laws of England (discussed at length later, under Colonial Rights) for American use, and that formed, in many cases, the sole legal written works read by many early American attorneys.^[22] 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."^[22] 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.^[23]

Further, Tucker writes of the English Bill of Rights:

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.^[22]

Tucker also wrote of the British,

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.^[22]

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:

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.^[24]

§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-Federalists who feared federal control over the militia:

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.^[25]

[edit] Origin

The first part of the 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.^[26]

In 1786, a decade after the Declaration of Independence was signed, the United States existed as a loose national government under the Articles of Confederation. This confederation was perceived to have several weaknesses, among which was the inability to mount a Federal military response to an armed uprising in western Massachusetts known as Shays' Rebellion.

In 1787, to address these weaknesses, the 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.^[27] Although the Anti-Federalists were ultimately unsuccessful at blocking ratification of the Constitution, through the Massachusetts Compromise they laid the groundwork to ensure that a Bill of Rights would be drafted, which would provide constitutional guarantees against encroachment by the government of certain rights.

The Federalists on the other hand held that a Bill of Rights was unnecessary, particularly since the federal government could never raise a standing army powerful enough to overcome the militia. Leading Federalist James Madison wrote:

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.^[28]

Similarly, Federalist Noah Webster wrote:

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.^[29]

One example given by Webster of a "power" that the people could resist was that of a standing army:

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.^[30]

The controversy of a standing army for the United States existed in context of the Continental Forces that had won the American Revolutionary War which consisted of both the standing Continental Army created by the Continental Congress and of State and Militia Units. In opposition, the British Forces consisted of a mixture of the standing British Army, Loyalist Militia, and Hessian mercenaries.

Federalists, on the other hand, believed that federal government must be trusted and that the army and the militias "ought certainly to be under the regulation and at the disposal" of federal government. This belief was fundamentally stated by Alexander Hamilton:

The 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.^[31]

The origin of the Second Amendment also occurred in context of an ongoing debate about "the people" fighting governmental tyranny, (as described by Anti-Federalists); or the risk of mob rule of "the people", (as described by the Federalists). These feelings can be seen in the "a force superior" quote of Noah Webster above, and in contrast, when John Adams wrote of his fears about Anti-federalists in the ongoing revolution in France:

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.^[32]

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. ^[33]

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?^[34]

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?^[35]

Patrick Henry during debate also states:

The militia, sir, is our ultimate safety. We can have no security without it.^[36]

Reaching a compromise between these widely disparate positions was not easy, but nonetheless, a compromise was negotiated with the result being the Second Amendment.

[edit] Creation

[edit] 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 Washington had 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 was to become the Second Amendment, as brought to the floor of the U.S. House of Representatives of the first session of the First Congress was:

The 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.^[37]

The Bill of Rights that Madison introduced on June 8 was not composed of numbered amendments intended to be added at the end of the Constitution. The Rights instead were to be inserted into the existing Constitution. The right to keep and bear arms was not to be inserted in Article I, Section 8 that specifies Congress's power over the militia. The sentence that later became the Second Amendment was to be inserted in the Article I, Section 9, between Clauses 3 and 4, following the prohibitions on suspension of habeas corpus, any bill of attainder, and any ex post facto law, all civil rights asserted by individuals as a defense against government action.^[37] Additionally, these provisions can all be interpreted as limits on congressional power, a view that has been advanced by supporters of the individual rights view of the Amendment.^[38] Debate in the House on the remainder of June 8 focused again on whether a Bill of Rights was appropriate, and the matter was held for a later time. On July 21, however, Madison raised the issue of his Bill and proposed a select committee be created to report on it. The House voted in favor of Madison's motion,^[39] 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.^[40] 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.^[41]

The Second Amendment was debated and modified during sessions of the House on August 17 and August 20.^[42] 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.^[43]

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.^[44]

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.^[45] 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.^[46]

This version was transmitted to the states for ratification.

[edit] Ratification

On December 15, 1791, the requisite three-fourths of the states needed to make the Bill of Rights part of the Constitution was achieved upon the ratification of the Bill of Rights by the Virginia legislature.

[edit] Historical sources

The House Journal^[47] and Senate Journal^[48] 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^[49] (AoC) which were compiled forty to seventy years after the debates, using the best sources which could then be found, which at the time was primarily newspaper reports.

The Debates in the Several State Conventions, on the Adoption of the Federal Constitution^[50] by Jonathan Elliot (1836), contains additional information concerning the desire by Anti-Federalists to amend the Constitution, and the intent of the amendments that were negotiated and adopted attempting to answer their concerns.

[edit] History

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 18 U.S. 1 (1820), where the U.S. Supreme Court mentioned the Second Amendment in an aside, but Justice Story "misidentified"^[51] it as the "5th Amendment."

[edit] Early commentary about the Second Amendment in state courts of the United States

In Bliss v. Commonwealth (1822, KY),^[52] 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.”^[53] 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."^[54]

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."^[52] The "constitution" mentioned in this quote refers to Kentucky's Constitution.^[55] 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.^[56]

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."^[57] 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."^[58][59]

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.”^[60]

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",^[61] 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."^[61]

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.^[61][62]

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.”^[63] 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.^[64]

In 1905, the Kansas Supreme Court in Salina v. Blaksley^[65] made the first collective right judicial interpretation.^[66] 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.""

[edit] Antebellum and Reconstruction

With Abolition and the Civil War, the question of the rights of freed slaves to carry arms and to belong to militia came to the attention of the Federal courts.

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)

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.^[67]

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 Amar noted in the Yale Law Journal^[68] the basis of common law for the first ten amendments of the U.S. Constitution, which would include the Second Amendment, "following John Randolph Tucker's famous oral argument in the 1887 Chicago anarchist Haymarket riot case, Spies v. Illinois":

Though originally the first ten Amendments were adopted as limitations on Federal power, yet in so far as they secure and recognize fundamental rights—common law rights—of the man, they make them privileges and immunities of the man as citizen of the United States…^[6]

In District of Columbia v. Heller, No. 07-290, the Supreme Court ruled:

"In sum, we hold 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."

[edit] “Shall not be infringed”

Regarding a meaning of "shall not be infringed", the Supreme Court stated in Robertson v. Baldwin, 165 U.S. 275 (1897),

“The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the "Bill of Rights," were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;..."

[edit] Models of interpretation

Modern legal theorists have identified three models used to interpret the Second Amendment. Professor Michael Dorf has described these models as follows:^[69]

The first and second both emphasize the preamble, or "purpose" clause, of the Amendment — the words "A well regulated Militia, being necessary to the security of a free State." The third does not. The first model holds that the right to keep and bear arms belongs to the people collectively rather than to individuals, because the right's only purpose is to enable states to maintain a militia; it is not for individuals' benefit. The second model is similar to the first. It holds that the right to keep and bear arms exists only for individuals actively serving in the militia, and then only pursuant to such regulations as may be prescribed. Under either of the first two models, a private citizen has no right to possess a firearm for personal use. But the court rejected these two models in favor of a third, the individual rights model. Under this third model, the Second Amendment protects a right of individuals to own and possess firearms, much as the First Amendment protects a right of individuals to engage in free speech.

[edit] Presidential administrations

The right to bear arms was occasionally addressed by President Ulysses S. Grant who stated in an address to Congress on April 19, 1872^[70] that "to deprive colored citizens of the right to bear arms" was among the goals of the Ku Klux Klan. Grant later served as president of the National Rifle Association in 1883.

Following the assassination attempt on President-elect Franklin Delano Roosevelt in 1933, President Roosevelt advocated and the Congress passed the National Firearms Act of 1934. The general mood at the time of the assassination attempt was that a deranged man had committed the act.^[71]

In 2001, the Justice Department under Attorney General John Ashcroft issued a memorandum opinion stating that the Second Amendment protects an individual right to bear arms.^[72]

In 2004, the Justice Department under Ashcroft issued "Whether the Second Amendment Secures an Individual Right", a lengthy memorandum opinion tracing the historical development of the Second Amendment supporting its earlier conclusion. The opinion stated:

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.^[73]

[edit] Congressional legislation

The 1934 National Firearms Act 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.

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. According to 18 U.S.C. § 1715, "Pistols, revolvers, and other firearms capable of being concealed on the person" became nonmailable, except in limited circumstances, in response to highly-public and televised handgun assassinations, such as of Lee Harvey Oswald in 1963. Although critics at the time deemed this an infringement of the Second Amendment right of the People to keep and bear arms, the courts ruled that this law did not preclude the People to keep and bear arms; it regulated only the purchase of concealable arms via U.S. Postal mail. With the passage of 49 U.S.C. § 1472, carrying weapons aboard aircraft, even openly, became prohibited.

The 1968 Gun Control Act was passed in response to the assassination of John F. Kennedy, who was killed by a mail-order rifle that belonged to Lee Harvey Oswald. The subsequent assassinations of Martin Luther King and presidential candidate Robert F. Kennedy fueled its quick passage. 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; up 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 Senate investigated the Second Amendment and reported upon their findings. This report included the following opinions:

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.^[55]

It concluded that seventy-five percent of Bureau of Alcohol, Tobacco, Firearms and Explosives prosecutions were "constitutionally improper", especially on Second Amendment issues.^[74]

The 1986 McClure-Volkmer Act addressed those BATF abuses noted in the 1982 Senate Judiciary Subcommittee opinions. It re-opened interstate sales of long guns on a limited basis, allowed ammunition shipments through the U.S. Postal Service (a repeal of part 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 the Second Amendment rights of the People. 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. Political scientist Earl Kruschke states, however, regarding these fully-automatic firearms owned by private citizens in the United States, that "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."^[75]

The 1993 Brady Handgun Violence Prevention Act 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.

[edit] Important case law

See also: Firearm case law in the United States

The primary 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).

[edit] District of Columbia v. Heller

Main article: District of Columbia v. Heller

In District of Columbia v. Heller, 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," invalidating a District of Columbia gun control statute that had banned guns within Washington D.C.

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.^[76] Four dissenting justices strongly disagreed, calling the majority reading "strained and unpersuasive."

[edit] United States v. Miller

Main article: United States v. Miller

In United States v. Miller, 307 U.S. 174 (1939), the court rejected a Second Amendment challenge to a federal law prohibiting the interstate transportation of unregistered Title II weapons, ruling that

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 the 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.

This case 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".

[edit] 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 in the 19th century. Though many of the federal rights delineated in the federal Bill of Rights have subsequently been incorporated by the Court as states rights, 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".

[edit] Presser v. Illinois

Main article: Presser v. Illinois

Presser v. Illinois, 116 U.S. 252 (1886), affirms the view articulated in Cruikshank that the Second Amendment only restricts the power of the federal government. Modern supporters of the individual rights view see the case as affirming a right to keep and bear arms as a necessary condition to have a universal militia; the conflict between these viewpoints was argued in court in 1982 in the case of Quilici v. Village of Morton Grove.^[77]

[edit] Colonial right to possess arms under English Common Law

As British subjects, Protestant colonists had a conditional right to possess arms according to the English Declaration of Rights of 1689.

• "That the subjects which are Protestants may have Arms for their Defence suitable to their Conditions, and as allowed by Law."^[78]

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 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.^[79]

The rights of the Colonists to possess arms was stated in Revolutionary era newspaper articles. Notably a Boston Journal of the Times printed in 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.^[80]

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…^[81]

[edit] State 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;"^[82]

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.^[83]

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 Monroe and 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;"

[edit] Notes