Second Amendment to the United States Constitution

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The Second Amendment (Amendment II) to the United States Constitution's Bill of Rights declares a well-regulated militia as "being necessary to the security of a free State" and prohibits infringement of "the right of the people to keep and bear arms." The meaning of the Second Amendment is among the most contested of any amendment contained in the Bill of Rights.[1][2]

One key controversy revolves around who is prohibited from infringement and whether the Second Amendment prohibits individual States from infringing upon this right.[3] The Supreme Court has ruled that the Second Amendment only limits the power of the federal government, (see United States v. Cruikshank 92 U.S. 542 (1875)) but it has been contended that it extends to state jurisdictions by way of the Fourteenth Amendment.

Another major point of contention is whether it protects an individual right to personal firearms[4] or a collective State militia right. At present, two of the thirteen federal circuits have adopted an individual rights view. A Second Amendment case is currently under review by the Supreme Court (District of Columbia v. Heller), having been granted certiorari, to resolve this jurisdictional split.[5] There is also a "modified collective" view that holds the right is protected for individuals to bear arms based on their needs while serving in a militia.[6]

Other points of disagreement include the meaning of the militia clause[7] and the meaning of infringement; specifically, at what point does regulation or prohibition of firearms constitute infringement?[8][9] All federal courts have found that reasonable firearm regulation is allowable, while an outright firearm ban is currently the subject of Supreme Court review in District of Columbia v. Heller.


[edit] Text

The Second Amendment, as passed by the House and Senate, reads:
Leftquot.png 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. Rightquot.png

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

Leftquot.png 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. Rightquot.png

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.

[edit] Grammar

The Second Amendment is formed with an opening phrase, followed by a declarative clause. The opening phrase is known to grammarians as an ablative absolute construction.[10] The significance of this grammar was certainly understood to the framers who were more schooled in Latin grammar than is common in modern times. This was a grammar structure that was common during that era.

[edit] Precedent

The concept of a universal militia, consisting of all free white men bearing their own arms, originated in England. The requirement that subjects bear arms, serve military duty,[11][12][13][14] dates back to at least the 12th century when King Henry II obligated all freemen to bear arms for public defense (see Assize of Arms). At that time, it was customary for a soldier to purchase, maintain, keep, and bring their own armor and weapon for military service. This was of such importance that Crown officials gave periodic inspections to guarantee a properly armed militia. 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.[15] This remained relatively unchanged until 1671, when Parliament created a statute that drastically raised the property qualifications needed to possess firearms. In essence, this statute disarmed all but the very wealthy. In 1686, King James II banned without exception the Protestants' ability to possess firearms, even while Protestants constituted over 95% of the English subjects. Not until 1689, with the rise of William of Orange, did the Protestants possess firearms once again with the newly enacted law as part of the English Bill of Rights that reads, "That the Subjects which are Protestants may have Arms for their defence suitable to their Conditions, and as allowed by Law".

The tradition of securing a military force through a duty of universal military obligation for all able-bodied males follows from the Elizabethan era militia in England.

The English Declaration of Rights (1689) affirmed freedom for Protestants to "have arms for their defence suitable to their conditions and as allowed by law." When Colonists protested British efforts to disarm their militias in the early phases of the 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.[16]

Some have seen the Second Amendment as derivative of a common law right to keep and bear arms; Thomas B. McAffee & Michael J. Quinlan, writing in the North Carolina Law Review, March 1997, Page 781, 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."

Others perceive a distinction between the right to bear arms and the right to self-defense; Robert Spitzer has stated: "...the matter of personal or individual self-defense, whether from wild animals or modern-day predators, does not fall within, nor is it dependent on, the Second Amendment rubric. Nothing in the history, construction, or interpretation of the Amendment applies or infers such a protection. Rather, legal protection for personal self-defense arises from the British common law tradition and modern criminal law; not from constitutional law." Heyman has similarly argued that the common law right of self defense was legally distinct from the right to bear arms.

[edit] Origin

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

In 1787, to address these weaknesses, the Philadelphia Convention was convened with the charter of amending the Articles. When the convention concluded with a proposed Constitution, those who debated the ratification of the Constitution divided into two camps; the Federalists (who supported ratification of the Constitution) and the Anti-Federalists (who opposed it).

Among their objections to the Constitution, Anti-Federalists feared creation of a standing army not under civilian control that could eventually endanger democracy and civil liberties as had happened recently in the American Colonies and Europe Although the Anti-Federalists were ultimately unsuccessful at blocking ratification of the Constitution, through the Massachusetts Compromise they laid the groundwork to ensure that a Bill of Rights would be drafted, which would provide constitutional guarantees against encroachment by the government of certain rights.

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

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.

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.[17]
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.

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.

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.[18]

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 Antifederalists, who were skeptical of a strong central government. This conflict was accentuated by the recent news of a brewing, potentially violent revolution in France with similar Antifederal tensions. Also, the conflict in beliefs continued between northern states, that generally favored Federalist values, and southern states, that tended to share Antifederalist values.

Intense concerns gripped the country of the potential for success or failure of the newly-formed United States. The first presidential inauguration of George Washington had occurred just a few short weeks earlier.

Antifederalists supported the proposal to amend the Constitution with clearly-defined and enumerated rights to provide further constraints on the new government, while opponents felt that by listing only certain rights, other unlisted rights would fail to be protected. Amidst this debate, a compromise was reached, and James Madison drafted what ultimately became the United States Bill of Rights, which was proposed to the Congress on June 8 1789.

The original text of what was to become the Second Amendment, as brought to the floor of the U.S. House of Representatives of the first session of the First Congress was:

The 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.[19]

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, bills of attainder, and ex post facto laws, all individual civil rights asserted by individuals as a defense against government action. Additionally, these provisions can all be interpreted as limits on congressional power, a view that has been advanced by supporters of the individual rights view of the Amendment.

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,[20] 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.[21] 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. [22]

The Second Amendment was debated and modified during sessions of the House on August 17 and August 20.[23] 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.[24]

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. [25]

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.[26] 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.[27]

This version was transmitted to the states for ratification.

[edit] Ratification

On December 15, 1791, the Virginia legislature ratified the Bill of Rights, rounding out the requisite three-fourths of the states needed to make the Amendments part of the Constitution.

[edit] Historical sources

The House Journal[28] and Senate Journal[29] 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[30] (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[31] by Jonathan Elliot (1836), contains additional information concerning the desire by Antifederalists to amend the Constitution, and the intent of the amendments that were negotiated and adopted attempting to answer their concerns.

[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.[32] Tucker, the leading Jeffersonian constitutional theorist, was widely read, even by those who rejected his interpretation of the Constitution.

In footnotes 40 and 41, he wrote: "The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government." and "Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England. The commentator himself informs us, Vol. II, p. 412, "that the prevention of popular insurrections and resistance to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws." Blackstone discussed the right of individual self defense in a separate section of his treatise on the common law of crimes. Tucker's annotations for that latter section made no mention of the Second Amendment but cited the standard works of English jurists such as Hawkins.[33]

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.

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.

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.

§1202 of the book describes Power over the Militia and analyzes the origins of the Second Amendment. Justice Story clearly viewed the original meaning of the Amendment as a concession to moderate Anti-Federalists who feared federal control over the militia:

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.

[edit] Historical interpretations

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, where the U.S. Supreme Court mentioned the Second Amendment in an aside, but Justice Story "misidentified"[34] 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), 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”.[35] 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."

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.[36] 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.[37]

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."[38] did guarantee individuals the right to bear arms.

The result was that the law of the Commonwealth of Kentucky was eventually over-turned by constitutional amendment with Section 26 in Kentucky's Third Constitution (1850) banning the future carrying of concealed weapons, while still asserting that the bearing of arms in defense of themselves and the state was an individual and collective right in the Commonwealth of Kentucky. This recognition, has remained to the present day in the Commonwealth of Kentucky's Fourth Constitution enacted in 1891, in Section 1, Article 7, that guarantees "The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons." As noted in the Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in the 1980’s, vol. 10, no. 1, 1982, p. 155, "The first state court decision resulting from the "right to bear arms" issue was Bliss v. Commonwealth. The court held that "the right of citizens to bear arms in defense of themselves and the State must be preserved entire, . . ." "This holding was unique because it stated that the right to bear arms is absolute and unqualified."[39]

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.”

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", while rejecting a challenge to a statute prohibiting the carrying of concealed weapons. Buzzard had carried a concealed weapon and stood "indicted by virtue of the authority of the 13th section of an act of the Legislature prohibiting any person wearing a pistol, dirk, large knife or sword-cane concealed as a weapon, unless upon a journey, under the penalties of fine and imprisonment." The Arkansas high court further declared "That the words "a well regulated militia being necessary for the security of a free State", and the words "common defense" clearly show the true intent and meaning of these Constitutions [i.e., Ark. and U.S.] and prove that it is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then the people, neither individually nor collectively, have the right to keep and bear arms." Joel Prentiss Bishop’s influential Commentaries on the Law of Statutory Crimes (1873) took Buzzard's militia-based interpretation, a view that Bishop characterized as the “Arkansas doctrine", as the orthodox view of the right to bear arms in American law.

Modern gun rights advocates have disputed this history, claiming that the individual right was the orthodox view of the right to bear arms under state law in the 19th century, citing the previously-mentioned Bliss v. Commonwealth, and even State v. Buzzard, which recognized the right of an individual to carry a weapon concealed, when upon a journey, in an affirmative defense. Similarly, political scientist Earl Kruschke has categorized both Bliss and Buzzard as being “cases illustrating the individual view.” Since 1873, some legal and constitutional historians have sided with Bishop and not the individual rights model.[40] Other legal and constitutional historians have sided with the individual rights model.

In 1905, the Kansas Supreme Court in Salina v. Blaksley made the first collective right judicial interpretation. 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.""

A modern formulation of the debate over the Second Amendment as an individual/collective rights dichotomy “was the emergence of the collective rights reading of Cruikshank" that became better known when it was employed in “a short but influential article” in the Harvard Law Review article in 1915 by the Chief Justice of the Maine Supreme Court, Lucilius A. Emery. He noted that "the right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against the common enemy, foreign or domestic."

[edit] Antebellum and Reconstruction

With Abolition and the American Civil War|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, (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 A. Bingham of Ohio used the Court's own phrase "privileges and immunities of “well trained”? It doesn't mean -- it doesn't mean “massively regulated.” It means “well trained.”</blockquote>

[edit] "Militia"

All able bodied men, 17 to 45 of age, are ultimately eligible to be called up into military service and belong to the class known as the Reserve Militia, also known as the unorganized militia. Able bodied men who are not eligible for inclusion in the unorganized militia pool are those aliens not having declared their intent to become citizens of the United States (10 USC 311) and former regular component veterans of the armed forces who have reached the age of 64 (32 USC 313). All female citizens who are members of National Guard units are also included in the unorganized militia pool (10 USC 311).[41]

Other persons who are exempt from call to duty (10 USC 312) and are not therefore in the unorganized militia pool include:

  • The Vice President (also constitutionally the President of the Senate, that body which confirms the appointment of senior armed forces officers made by the Commander in Chief).
  • The judicial and executive officers of the United States, the several States and Territories, and Puerto Rico.
  • Members of the armed forces, except members who are not on active duty.
  • Customhouse clerks.
  • Persons employed by the United States in the transmission of mail.
  • Workmen employed in armories, arsenals, and naval shipyards of the United States.
  • Pilots on navigable waters.
  • Mariners in the sea service of a citizen of, or a merchant in, the United States.

[edit] "The People"

Regarding a meaning of "the People" in another context, the U.S. Supreme Court commented in United States v. Verdugo-Urquidez,

"the people" seems to be a term of art used in select parts of the Constitution and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

However, as noted earlier by the Supreme Court in 1886, the Second Amendment is not restricted to American citizens. In Presser v. Illinois before the high court, Presser made an attempt to link the Second Amendment as being a privilege or immunity of citizens of the United States. This attempt was found lacking when the Supreme Court stated

The plaintiff in error [Presser] next insists that the sections of the Military Code of Illinois under which he was indicted are an invasion of that clause of the first section of the fourteenth amendment to the constitution of the United States which declares: 'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.'

Additionally, the Supreme Court stated in Presser v. Illinois,

The constitution and laws of the United States will be searched in vain for any support to the view that these [Second Amendment] rights are privileges and immunities of citizens of the United States...

[edit] "To keep and bear arms"

See Also: Right to arms

The meanings of the term "keep and bear arms" are integral to the debate and much of the amendment's jurisprudence relies on such interpretations.

Relative to the "bear arms" meanings, one study found "...that the overwhelming preponderance of usage of 300 examples of the 'bear arms' expression in public discourse in early America was in an unambiguous, explicitly military context in a figurative (and euphemistic) sense to stand for military service".[42] Further, the Oxford English Dictionary on Historical Principles declares that a meaning of "to bear arms" is a figurative usage meaning "to serve as a soldier, do military service, fight".

The United States Declaration of Independence refers to King George III not letting people "bear Arms" while "on the high Seas":

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country.

In Amyette v. State the Tennessee Supreme Court stated in 1840 that the term "bear arms" "has a military sense, and no other" and further stated "A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane."

The word "keep" has also been subject to scrutiny. In the recent case of Parker v. District of Columbia (under review by the United States Supreme Court under the name District of Columbia v. Heller, below), the court analyzed two different interpretations, one claiming "keep" meant to upkeep the weapons, and another claiming "keep" meant personal retention. From the opinion: "Turning again to Dr. Johnson's Dictionary , we see the first three definitions of keep are "to retain; not to lose," "to have custody," "to preserve; not to let go." Johnson, supra , at 540. We think "keep" is a straightforward term that implies ownership or possession of a functional weapon by an individual for private use."

In a released Senate report on the Right to Keep and Bear Arms, Senator Orrin G. Hatch, chairman of the U.S. Senate Judiciary Committee's Subcommittee on the Constitution, and well known gun rights proponent, states

They argue that the Second Amendment's words "right of the people" mean "a right of the state" — apparently overlooking the impact of those same words when used in the First and Fourth Amendments. The "right of the people" to assemble or to be free from unreasonable searches and seizures is not contested as an individual guarantee. Still they ignore consistency and claim that the right to "bear arms" relates only to military uses. This not only violates a consistent constitutional reading of "right of the people" but also ignores that the second amendment protects a right to "keep" arms. "When our ancestors forged a land "conceived in liberty", they did so with musket and rifle. When they reacted to attempts to dissolve their free institutions, and established their identity as a free nation, they did so as a nation of armed freemen. When they sought to record forever a guarantee of their rights, they devoted one full amendment out of ten to nothing but the protection of their right to keep and bear arms against governmental interference. Under my chairmanship the Subcommittee on the Constitution will concern itself with a proper recognition of, and respect for, this right most valued by free men."[36]

For a more recent judicial interpretation, the United States Court of Appeals for the Fifth Circuit stated in 2001 that

there are numerous instances of the phrase "bear arms" being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the "people" [or "citizen" or "citizens"] "to bear arms in defense of themselves [or "himself"] and the state", or equivalent words, thus indisputably reflecting that under common usage "bear arms" was in no sense restricted to bearing arms in military service.[43]

Several scholars have challenged the 5th Circuit's history. Several of the earliest state constitutions used variants of the Pennsylvania (September 28, 1776) model, affirming a right to "bear arms in defense of themselves and the state." Thus, North Carolina's declaration of rights (December 18, 1776) stated that "The people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."[44] Less than two decades later (1796), Tennessee affirmed that "The freemen of this State have a right to keep and bear arms for their common defence."[45]

Likewise, relative to District of Columbia v. Heller, No. 07-290, a case under review before the Supreme Court of the United States, the earlier 2007 DC Circuit Court opinion (in what was then named Parker v. District of Columbia) dismissed the lawsuit in a 2-1 decision, summarizing its substantive ruling on the right protected by the Second Amendment on page 46 of the slip opinion (at the end of section III) as:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.

[edit] “Shall not be infringed”

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

“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:[46]

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] Federal government

[edit] Executive branch

On December 3, 1901, President Theodore Roosevelt called for a reform of the militia system, declaring to Congress that:

our militia law is obsolete and worthless. The organization and armament of the National Guard...should be made identical with those provided for the regular forces. The obligations and duties of the Guard in time of war should be carefully defined, and a system established by law under which the method of procedure of raising volunteer forces should be prescribed in advance. It is utterly impossible in the excitement and haste of impending war to do this satisfactorily if the arrangements have not been made long beforehand.

In response, Congress passed the Militia Act of 1903, which established an organized militia known as the National Guard. Modern warfare needed trained men with modern weaponry, and the law provided for training these men in a regular army as well as in the National Guard. Although the Guard is the descendant in many ways of the old unorganized militia, it is a far more disciplined and trained entity, since their program is now held to high standards set by the regular army. The members receive their weapons from the national government and do not own them individually.

Following the assassination attempt on President-elect Franklin Delano Roosevelt in 1933, President Roosevelt advocated and 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.

The right to bear arms was occasionally addressed by President Ulysses S. Grant who stated in an address to 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. Ulysses Grant later served as president of the National Rifle Association in 1883.

In 2001, the Justice Department under Attorney General John Ashcroft issued a memorandum opinion stating that the Second Amendment protects an individual right to bear arms.[47] Some critics have asserted that Ashcroft's objectivity is questionable, considering his lifelong membership in the National Rifle Association, an organization of individual gun right proponents (though he was not acting in an official capacity of the association at the time).

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

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.[48]

[edit] Legislative branch

The Militia Act of 1903 created the United States National Guard by federalizing a portion of the state militias which were converted into regular troops kept in reserve for the United States Army. In 1933, Congress reorganized the National Guard under its power to "raise and support armies" in order to "create the National Guard of the United States as a component of the Army". This was done to avoid the constitutional limits on deployment of the militia which can be called forth only "to execute the laws of the Union, suppress insurrections and repel invasions."[49]

The 1934 National Firearms Act ostensibly was brought about by the lawlessness and rise of gangster culture during the Prohibition Era, such as the St. Valentine's Day massacre on February 14, 1929. President Franklin D. Roosevelt hoped this act would eliminate automatic-fire weapons like machine guns from America's streets. Other firearms, such as 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.

However, Prohibition in the United States was repealed by the Twenty-first Amendment on December 5 1933, and the gangster era largely ended with Prohibition (after Prohibition ended, the illegal distributors of beer and whiskey, who had been some of the largest buyers of automatic weapons and sawed-off shotguns for illegal purposes, largely changed to other lines of work where automatic weapons were not needed. Legal breweries and distributors had no further need for automatic weapons for increasing market share). According to some authors such as John Ross in his novel Unintended Consequences, the 1934 National Firearms Act was brought about instead to provide jobs during the Great Depression for government agents who previously had been enforcing prohibition laws and who otherwise would have been out of work and unable to find new jobs.

Likewise, 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 (GCA68) 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; it also 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.

It concluded that seventy-five percent of BATF prosecutions were "constitutionally improper", especially on Second Amendment issues.

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 GCA68), 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."

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] Judicial branch

Main article: Firearm case law

The question of the U.S. Supreme Court rulings, or lack thereof, on the meaning of the Second Amendment has left supporters on all sides of the debate open to interpret the actions of the court as they see fit. Until recently, United States federal courts generally interpreted the Second Amendment to protect a "collective right" to keep and bear arms. Two recent exceptions to this trend have occurred in federal circuit courts: The 2001 Fifth Circuit court ruling United States v. Emerson and the 2007 D.C. Circuit court ruling Parker v. District of Columbia, both of which ruled that the Second Amendment protected an "individual right" to keep and bear arms. Presently, nine of the United States Courts of Appeals have supported a collective rights model, while two United States Courts of Appeals have supported an individual rights model, and the Second Circuit court has not addressed the question. It should be noted that a ruling of a United States Court of Appeals applies only to the states (and other jurisdictions) that are within the "circuit" in which that ruling was made. [50]

[edit] Current judicial precedents

At present, with certain exceptions and disputes, the courts generally find it acceptable under the Second Amendment for federal, state, and local jurisdictions to vary widely between jurisdictions and permit court decisions to be rendered according to local law. The Federal District courts have not ruled uniformly and the Supreme Court has not yet ruled uniformly.

Although the courts permit laws and regulations to vary locally, some jurisdictions do not have these laws. For example, most jurisdictions do not require handgun owner identification cards, nor do they require the presentation of any identification to buy ammunition. Some local jurisdictions in the United States have more restrictive laws, such as Washington, D.C.'s Firearms Control Regulations Act, enacted in 1976, that bans residents from owning handguns, and that requires permitted firearms be disassembled and locked with a trigger lock. On March 9, 2007, the D.C. Circuit Court of Appeals ruled this Washington, D.C. handgun ban unconstitutional in Parker v. District of Columbia.[51][52]

[edit] Second Amendment theory

In 1915, Maine Supreme Judicial Court Chief Justice Lucilius A. Emery wrote an article in the Harvard Law Review on the Right to Keep and Bear Arms, and argued that "The guaranty does not appear to have been of a common-law right" [and] "I submit that the right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against the common enemy, foreign or domestic."

According to 1998 research and testimony by Eugene Volokh, a UCLA law professor and a well known individual gun-rights proponent; the Supreme Court has ruled in passing in 22 out of 27 times while quoting or paraphrasing only "the right of the people to keep and bear arms" language of the Second Amendment without ever mentioning the militia clause, and this treatment has evidenced clear support of the Second Amendment as protecting an individual right and not as protecting a collective right. However, Akhil Reed Amar, a leading scholar of constitutional law, writes in the left-leaning journal The New Republic that the word people is also used in a collective sense in the U.S. Constitution: "The amendment speaks of a right of 'the people' collectively rather than a right of 'persons' individually.' And it uses a distinctly military phrase: 'bear arms.'"

According to Volokh, the federal courts of appeal have often subscribed to the states' right approach, instead of to the individual right approach. They also have not agreed upon any single interpretation of the Second Amendment. The Fifth and Ninth circuits have shown different judicial thinking, tending to favor the individual and collective rights models respectively. Most circuits have followed the Ninth's reading. Despite these inconsistencies among the lower courts, the Supreme Court had not granted certiorari to any recent case hinging on the Second Amendment prior to granting certiorari on Parker v. District of Columbia on November 20, 2007.

The Brady Center, an advocate for gun control, has stated: "No federal court in history has overturned a gun law on Second Amendment grounds." (This recently changed with the Parker v. District decision.) Also, "... the meaning of the Second Amendment has been settled since the U.S. Supreme Court ruling in United States v. Miller, 307 U.S. 174 (1939). In that case, the Court ruled that the "obvious purpose" of the Second Amendment was to "assure the continuation and render possible the effectiveness" of the state militia." These statements, however, predate the above-referenced D.C. Circuit case which struck down the District of Columbia's handgun ban. While United States v. Miller was a Supreme Court case, Parker v. District of Columbia pertained only to the District of Columbia circuit, prior to the U.S. Supreme Court granting certiorari in the Parker case under the name District of Columbia v. Heller.

Those on the individual rights side of the argument point out that while United States v. Miller upheld the NFA and the government's power to tax sawed-off shotguns, it had little bearing on whether the right to keep and bear arms was individual, collective, or both. Some even claim it offers substantial support for the individual rights model. Because Miller was dead before his case was heard, no defense argument was made and his legal counsel failed to appear, United States v. Miller may not offer much to either side in the way of useful precedent.

Since Miller, the Supreme Court has addressed the Second Amendment twice more, upholding New Jersey's strict gun control law in 1969 and upholding the federal law banning felons from possessing guns in 1980. Furthermore, twice — in 1965 and 1990 — the Supreme Court has held that the term "well-regulated militia" refers to the National Guard.

The 1969 case in question was Burton v. Sills, Sills being the attorney general for New Jersey, and Burton being the individual charged with violating New Jersey's gun control law. The essential issue at question was whether New Jersey's strict gun control law violated Burton's Second Amendment right. The appeal by Burton was dismissed "for want of a substantial federal question" by the U.S. Supreme Court, thereby letting stand the lower court decisions and leaving in place New Jersey's strict gun control laws. The key factor was that Burton could apply for a New Jersey gun permit, and hence his Second Amendment right was not infringed, only regulated. The New Jersey Supreme Court affirmed with Burton v. Sills, 53 N.J. 86 (1968) that:

... Congress, though admittedly governed by the second amendment, may regulate interstate firearms so long as the regulation does not impair the maintenance of the active, organized militias of the states.

The 1965 decision relative to the definition of militia arises in Maryland v. United States. In this case, an airliner collided with a National Guard jet, and a need for a definition of National Guard arose. In this ruling, the U.S. Supreme Court wrote,

The National Guard is the modern Militia reserved to the States by Art. I. 8, cl. 15, 16, of the Constitution.

Clauses 15 and 16 of the Constitution are:

  • To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
  • To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

The National Guard is an example of the militia of Clauses 15 and 16. There remains an open question whether the modern National Guard was the sole version of the well-regulated militia described by the Second Amendment. Maryland v. United States does state that "The National Guard is the modern Militia". Pro-individual gun right advocates argue that an unorganized militia would be an equally "well-regulated militia". Pro-collective gun right advocates question this argument in light of the ", organized militias..." wording of Burton v. Sills.

Further clarification was provided in 1990, in Perpich v. Department of Defense. In this case, the U.S. Supreme Court ruled that, "The Dick Act divided the class of able-bodied male citizens between 18 and 45 years of age into an "organized militia" to be known as the National Guard of the several states, and the remainder of which was then described as the "reserve militia", and which later statutes have termed the "unorganized militia." ... "In 1908, however, the statute was amended to provide expressly that the organized militia should be available for service 'either within or without the territory of the United States'."[53] Hence, the National Guard is not the same as the unorganized militia.

The primary Supreme Court cases that address Second Amendment issues are United States v. Miller (1939), United States v. Cruikshank (1875), and Presser v. Illinois (1886). The rulings for all three of these cases found that individual use of arms could be restricted. Yet, elements of these cases have been cited by supporters of both sides of the firearms debate to support their positions.

[edit] Important case law

[edit] United States v. Miller
Main article: United States v. Miller

United States v. Miller is the Supreme Court's fullest discussion of the Second Amendment. Miller is used by both sides in American gun politics as supporting their position. In Miller, 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.

The ruling also discusses the historical meaning of "militia".

[edit] United States v. Cruikshank
Main article: United States v. Cruikshank

With Cruikshank, 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.

[edit] Presser v. Illinois
Main article: Presser v. Illinois

Presser v. Illinois is one of only two 19th century post-Civil War U.S. Supreme Court cases to address the Second Amendment, the other one being United States v. Cruikshank.

Presser affirms the view articulated in Cruikshank that the 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.[54]

[edit] District of Columbia v. Heller
Main article: District of Columbia v. Heller

On November 20, 2007, the United States Supreme Court announced that it would hear the case of District of Columbia v. Heller, case no. 07-290.[55] The question the Supreme Court justices posed is whether the provisions of the D.C. statute “violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes.”[56] On March 18 2008, the United States Supreme Court heard oral arguments in this case.[57] A decision is expected by the end of June.[58]

[edit] Other cases of note
see also: Firearm court cases

The case of Perpich v. Department of Defense (1990) concerned the training of the state militia, and a dispute between the state governor of Minnesota and the Department of Defense over whose authority was plenary in doing so. Article I, Section 8 of the Constitution reserves the training of the militia to the states according to the discipline prescribed by Congress, but also gives Congress the power to raise and support armies for a period not exceeding two years for a given appropriation. The National Guard was recognized as both the state militia under Article I, Section 8 of the Constitution (and the Second Amendment) as well as the reserve force of the Army at the same time. The dispute arose over whether the Guard's role as the militia excludes them from being a part of the Army as well, and gives the states the power to refuse to allow them to be called up into their role as the Army's reserve and trained outside of their home state, under the reservation of the militia's training to the states. The Court held that Article I, Section 8's additional grant of power to provide for the calling of the militia into the federal service may be combined with their power to raise and support armies all at once, and hence the National Guard has no immunity from being trained as part of the Army; the power to call up the militia is not excluded as being separate from the army powers, and is simply an additional grant of power. This case is significant for Second Amendment case law in that it recognizes that the National Guard is one modern form of the militia under federal law.

[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."[59]

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.

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.

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...

According to the Militia Act of 1792, the President as commander in chief has a right and a need to know who the militiamen are and what the militia resources are as a national resource. In the eighteenth century, the public had a claim on privately owned weapons for public purposes. This has relevance to the modern question sometimes raised, whether the Second Amendment prohibits gun registration or confiscation of private guns by the federal government. The Militia Act of 1792 required, with some exceptions, every free able-bodied white male citizen from 18 through 44 years old to enroll in the militia and provide himself with a good musket (the type of weapon in common use by the army) or firelock or a good rifle. It also required the aforesaid to hold their weapons exempted from all suits, distresses, executions, or sales for debt, or for the payment of taxes. Section 6 of the Militia Act requires the adjutant general of each state to annually report their condition to the commander in chief of the state and send a duplicate report to the President of the United States.[60]

[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 antifederalist 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;"[61]

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 antifederalist 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.[62]

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 and references

  1. "There is probably less agreement, more misinformation, and less understanding of the right to keep and bear arms than any other current controversial constitutional issue." Statement from the American Bar Association in "National Coalition to Ban Handguns Statement on the Second Amendment", June 26, 1981 convenience link:
  2. "Few subjects in American jurisprudence have produced as much work by legal scholars, so little of which is of use to practicing attorneys, as the Second Amendment to the U.S. Constitution." from "A Lawyer's Guide to the Second Amendment" by Steven H. Gunn, Brigham Young University Law Review, 1998
  3. "And yet, despite the importance of the topic and all the attention devoted to it, we still lack a fully satisfying account of the relationship between the first ten amendments and the Fourteenth." by Amar, Akhil. The Bill of Rights and the Fourteenth Amendment, 101 Yale Law Journal 1193, 1224-1225 (1992).
  4. 2008 U.S. Department of Justice Heller amicus brief., 2004-08-24
  5. United States v. Emerson, Parker v. District of Columbia, and Silveira v. Lockyer
  6. Dorf, Michael C. (2001),Findlaw-Writ[1]
  7. "What exactly is the militia, and how does protecting a right to keep and bear arms contribute to a "well-regulated" one?" from "What does the Second Amendment Mean Today?" by Michael C. Dorf
  8. "At what point regulation or prohibition of what classes of firearms would conflict with the Amendment, if at all, the Miller case does little more than cast a faint degree of illumination toward an answer." at Findlaw
  9. "One overlooked issue in the voluminous literature on the Second Amendment is what standard of review should apply to gun control if the Amendment is read to protect an individual right to bear arms." in "SCRUTINIZING THE SECOND AMENDMENT" by Adam Winkler
  10. The Commonplace Second Amendment by Prof. Eugene Volokh, UCLA Law School, 1998. "The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause. Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era: State Bills of Rights contained justification clauses for many of the rights they secured."
  11. Oxford English Dictionary, Second Edition, 1989
  12. Uviller, H. Richard. & Merkel, William G.: The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent , pp 23, 194. Duke University Press. ISBN 0-8223-3017-2
  13. Pepper, John; Petrie, Carol; Wellford, Charles F.: Firearms and violence, Page 290. National Academies Press, 2004. ISBN 0309091241
  14. Wills, Garry. To Keep and Bear Arms. New York Review Of Books, Sept. 21, 1995.
  15. "Origin of the Bill of Rights" Pg. 136-137; Levy. Yale Press
  16. John Adams and common law of self-defense
  17. An Examination of the Leading Principles of the Federal Constitution
  18. John Adams second quote
  19. Annals of Congress, House of Representatives, 1st Congress, 1st Session: pp. 451
  20. Journal of the House of Representatives of the United States, Volume 1: pp. 64
  21. Annals of Congress, House of Representatives, 1st Congress, 1st Session: pp. 669
  22. Annals of Congress, House of Representatives, 1st Congress, 1st Session: pp. 778
  23. Militia debate of 1789
  24. Journal of the Senate of the United States of America, Volume 1: pp. 63
  25. Journal of the Senate of the United States of America, Volume 1: pp. 71
  26. Journal of the Senate of the United States of America, Volume 1: pp. 77
  27. Journal of the House of Representatives of the United States, Volume 1: pp. 305
  28. House Journal
  29. Senate Journal
  30. Annals of Congress
  31. Jonathan Elliot Commentary
  32. St. George Tucker Commentary
  33. For two radically different views of Blackstone on the Second Amendment, see Heyman, Chicago-Kent, and Volokh, Senate Testimony.
  34. Several public officials, including James Madison and Supreme Court Justice Joseph Story, retained the confusing practice of referring to each of the ten amendments in the Bill of Rights by the enumeration found in the first draft; had Justice Story followed this practice, he would have described the Second Amendment as the Fourth, but in this case he simply stated the number incorrectly
  35. 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. Dec. 251 (1822)...
  36. 36.0 36.1 Right to Keep and Bear Arms, U.S. Senate. 2001 Paladin Press. ISBN 1581602545.
  37. The Second Amendment became effective December 15, 1791, and was still a new concept in 1799.
  38. Commonwealth of KY Const. of 1799, art. , x§ 23
  39. Two states, Alaska and Vermont, do not require a permit or license for carrying a concealed weapon to this day, following Kentucky's original position.
  40. See the symposium in Chicago Kent Law Review 76 and the Fordham Law Review vol. 73
  41. Department of Defense, Under Secretary of Defense for Personnel and Readiness, Military compensation background papers, Sixth edition, page 229. Department of Defense, 2005.
  42. Study on term "bear arms"
  43. Fifth Circuit Decision
  44. Constitution of North Carolina: A Declaration of Rights, &c., December 18 1776}}
  45. 1796 Constitution of the state of Tennessee
  46. Dorf, Michael C. (2001-10-31), Federal Court Of Appeals Says The Second Amendment Places Limits On Gun Control Legislation, Findlaw's Writ
  47. Memorandum Re: United States v. Emerson, 2001-11-09
  48. Whether the Second Amendment Secures an Individual Right, 2004-08-24
  49. U.S. House. Committee on Military Affairs, National Bill: Report [to Accompany H.R. 5645] Pages 2-5. May 16, 1933. 73d Cong., 1st sess. Washington: U.S. GPO, 1933. H.Rpt. 73-141.
  50. Map of each circuit's jurisdiction
  51. "Federal Appeals Court Strikes Down D.C. Handgun Ban" Bloomberg News, March 9, 2007
  52. As explained below, the United States Supreme Court has agreed to review the Parker case under the name District of Columbia v. Heller.
  53. Perpich, 496 U.S. 334, 342-343
  54. Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).
  55. This is the case decided by the United States Court of Appeals for the District of Columbia Circuit as Parker v. District of Columbia, as explained in this article.
  56. New York Times, Linda Greenhouse, Nov. 21, 2007. Justices to Decide on Right to Keep Handgun
  57. Transcript and audio recording of oral argument.
  58. Courts weighs right to own guns [2]
  59. Journal of the House of Lords, volume 14, 1689-02-12
  60. Annals of Congress, May 8, 1792, 2nd Cong., 1st sess., 1392.
  61. reprinted in "The Origin of the Second Amendment, A Documentary History of the Bill of rights" 154-175 (David E. Young)
  62. Elliot, "Debates of the Several State Conventions" 1:326, 3:652-61, 1:327-29, 4:244, 1:335

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