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

Contents 1 Text 2 Background 2.1 Origin of the right 2.2 English Common Law 2.3 Early commentary 2.4 Modern understandings 3 Adoption 3.1 State ratification conventions 3.2 Conflict and compromise 4 Case law 4.1 Early commentary in state courts 4.2 Antebellum and Reconstruction 4.3 U.S. Supreme Court 4.3.1 United States v. Cruikshank 4.3.2 United States v. Miller 4.3.3 District of Columbia v. Heller 5 Presidential administrations 6 References 7 See also 8 External links

Text

There are two versions of the text of the Second Amendment, each with slight capitalization and punctuation differences. The Second Amendment, as passed by the House and Senate, reads:¹

“

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

”

The original and copies distributed to the states, and then ratified by them, had different capitalization and punctuation:²

“

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

”

Both versions are commonly used in official government publications. The original hand-written copy of the Bill of Rights, approved by the House and Senate, was prepared by scribe William Lambert and resides in the National Archives.

Although the Second Amendment is the only Constitutional amendment that has a prefatory clause, such constructions were widely used elsewhere.³

Background

Origin of the right

The Second Amendment was adopted in an environment permeated by an emergent republican ideology⁴ and with the aid of innumerable suggestions from multiple sources, which came most commonly from the states' bills of rights and the hundreds of amendments suggested by the state conventions that ratified the Constitution.⁵

Leading up to the ratification of the Second Amendment,⁶ English and American political writers stated that society and government rests upon the popular possession of arms,⁷ that arms are the primary means by which individuals affirmed their social power and political participation,⁸ that arms are necessary for an individual to protect himself from vicious fellow citizens and corrupt authorities,⁹ that citizens must be able to defend themselves against rulers,¹⁰ and that the possession of arms is the distinction between a freeman and a slave.¹¹ Madison, in composing the Second Amendment, merged these two distinct yet related rights--the individual possession of arms and the need for a militia made up of ordinary citizens. ¹²

The concept of a universal militia originated in England.¹³¹⁴¹⁵ The requirement that subjects bear arms and serve military duty^16171819 dates back to at least the 12th century when King Henry II, in the Assize of Arms, obligated all freemen to bear arms for public defense. 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.²⁰ This remained relatively unchanged until 1671, when Parliament created a statute that drastically raised the property qualifications needed to possess firearms.²¹ In 1686, King James II banned without exception the Protestants' ability to possess firearms, even while Protestants constituted over 95% of the English subjects.²² In 1689, with the rise of William of Orange, the English Bill of Rights reversed this by declaring "That the subjects which are Protestants, may have arms for their defence suitable to their conditions, and as allowed by law."²³

English Common Law

As British subjects, Protestant colonists had a conditional right to possess arms according to the English Bill 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.²⁴

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

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.²⁵

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

Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such nature, and have been carried to such lengths, as must serve fully to evince that a late vote of this town, calling upon its inhabitants to provide themselves with arms for their defense, was a measure as prudent as it was legal: such violences are always to be apprehended from military troops, when quartered in the body of a populous city; but more especially so, when they are led to believe that they are become necessary to awe a spirit of rebellion, injuriously said to be existing therein. It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.²⁶

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…²⁷

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.²⁸ 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."²⁹

Some legal scholars^{weasel words} draw 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."³⁰ Heyman has similarly argued that the common law right of self defense was legally distinct from the right to bear arms.³¹ However, in District of Columbia v. Heller, the Supreme Court ruled self-defense to be a central component of the right.³²

Early commentary

The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker. He annotated a five-volume edition of Sir William Blackstone's Commentaries on the Laws of England, a critical legal reference for early American attorneys.³³

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."³³ 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.³⁴

Further, Tucker criticized the English Bill of Rights for limiting gun ownership to the very wealthy, leaving the populace effectively disarmed, and expressed the hope that Americans "never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.³³

§1202 of the book describes the Second Amendment describes a militia as the "natural defence of a free country," both against foreign foes, domestic revolts and usurpation by rulers. The book regards the militia as a "moral check" against both usurpation and the arbitrary use of power, while expressing distress at the growing indifference of the American people to maintaining such an organized militia, which could lead to the undermining of the protection of the Second Amendment.³⁵

Modern understandings

Of the approximately forty scholarly articles published in legal journals between 1983 and 1998, the vast majority have tended to take an individual rights position on the Second Amendment.³⁶

According to Saul Cornell, in recent decades Second Amendment scholarship has been described to have taken the form of “law office history”, a form of advocacy scholarship intended to influence the way courts decide constitutional questions. This legal scholarship has influenced the way briefs are written and also may have been used by judges when deciding a case.³⁷

According to Paul Helmke, President of the Brady Campaign to Prevent Gun Violence, seventy-five percent of the public believes the Second Amendment protects an individual right.³⁸

Adoption

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

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.³⁹

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.⁴⁰

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.⁴¹ Although the Anti-Federalists were ultimately unsuccessful at blocking ratification of the Constitution, through the Massachusetts Compromise they laid the groundwork to ensure that a Bill of Rights would be drafted, which would provide constitutional guarantees against encroachment by the government of certain rights.

Federalists such as James Madison on the other hand held that a Bill of Rights was unnecessary, arguing that the federal government could never raise a standing army powerful enough to overcome a militia.⁴² Similarly, Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.⁴³⁴⁴

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.

The origin of the Second Amendment occurred in context of an ongoing debate about "the people" fighting governmental tyranny, (as described by Anti-Federalists); or the risk of mob rule of "the people", (as described by the Federalists) related to the ongoing revolution in France.⁴⁵

A widespread fear during the debates on the ratification of the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if congress passed laws prohibiting states from arming citizens.⁴⁶ 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.⁴⁷ 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.⁴⁸

State ratification conventions

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

"7. That the people have a right to bear arms for the defense of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals;"⁴⁹

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 of these 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". These four states - New Hampshire, New York, Virginia and Rhode Island - attached proposed bills of rights to their approvals of the Constitution. The fifth, North Carolina, refused to ratify the Constitution and submitted a bill of unalienable rights of the people that must be protected before they would sign.⁵⁰ North Carolina ratified the Constitution on November 21, 1789, after the Congress approved the Bill of Rights and submitted it to the states for ratification.

Conflict and compromise

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

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

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.⁵¹

The Bill of Rights introduced by Madison on June 8 was not composed of numbered amendments intended to be added at the end of the Constitution. Instead, the Bill of Rights was to be inserted into the existing Constitution. The sentence that became the Second Amendment was to be inserted in Article I, Section 9, between Clauses 3 and 4, which list individual rights, instead of Article I, Section 8, Clauses 15 and 16, which specify the Congress's power over the state militias.⁵¹⁵² Debate in the House on the remainder of June 8 focused again on whether a Bill of Rights was appropriate, and the matter was held for a later time. On July 21, Madison raised the issue of his Bill and proposed a select committee be created to report on it. The House voted in favor of Madison's motion,⁵³ and the Bill of Rights entered committee for review. No official records were kept of the committee's proceedings, but the committee returned to the House a reworded version of the Second Amendment on July 28.⁵⁴ 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.⁵⁵

The Second Amendment was debated and modified during sessions of the House on August 17 and August 20.⁵⁶ 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.⁵⁷

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.⁵⁸

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.⁵⁹ 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.⁶⁰

This version was transmitted to the states for ratification.

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

Case law

For 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.⁶¹ The vast majority of regulation was done by states, and the first case law on weapons regulation dealt with state interpretations of the Second Amendment. The notable exception to this general rule was Houston v. Moore, 18 U.S. 1 (1820), where the Supreme Court mentioned the Second Amendment in an aside, but Justice Story "misidentified" it as the "5th Amendment."⁶²

Regarding the state interpretations of these state and the federal constitutional rights to bear arms, state courts have addressed the meaning of these specific rights in considerable detail. Two different models emerged from early state jurisprudence: an individual right and a collective right. Individual rights viewpoints came first, followed by the collective rights viewpoints.⁶³ According to Saul Cornell, the simplified choices of only two models was an error: "The original understanding of the Second Amendment was neither an individual right of self-defense nor a collective right of the states, but rather a civic right that guaranteed that citizens would be able to keep and bear those arms needed to meet their legal obligation to participate in a well-regulated militia."⁶⁴

Early commentary in state courts

See also: Right to keep and bear arms

In Bliss v. Commonwealth (1822, KY),⁶⁵ 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."⁶⁶ However, others 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."^{67quotation needed}

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."⁶⁵ The "constitution" mentioned in this quote refers to Kentucky's Constitution.⁶⁸ 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 1799.⁶⁹

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."⁷⁰ 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."⁷¹⁷²

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.”⁷³

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",⁷⁴ while rejecting a challenge to a statute prohibiting the carrying of concealed weapons. Buzzard had carried a concealed weapon and stood "indicted by virtue of the authority of the 13th section of an act of the Legislature prohibiting any person wearing a pistol, dirk, large knife or sword-cane concealed as a weapon, unless upon a journey, under the penalties of fine and imprisonment." Justice Lacy, in a dissenting opinion in Buzzard, summarizing the majority viewpoint to which he disagreed, declared:

"That the words "a well regulated militia being necessary for the security of a free State", and the words "common defense" clearly show the true intent and meaning of these Constitutions [i.e., Ark. and U.S.] and prove that it is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then the people, neither individually nor collectively, have the right to keep and bear arms."⁷⁴

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.⁷⁴⁷⁵

Political scientist Earl Kruschke has categorized both Bliss and Buzzard as being “cases illustrating the individual view.”⁷⁶ 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.⁷⁷

In 1905, the Kansas Supreme Court in Salina v. Blaksley⁷⁸ made the first collective right judicial interpretation.⁷⁹ The Kansas high court declared: "That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal Constitution, which says: 'A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.'"

Antebellum and Reconstruction

With Abolition and the Civil War, the question of the rights of individuals freed from slavery 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.⁸⁰

In the Congress, the debate on the Fourteenth Amendment also concentrated on what the Southern States were doing to harm the newly freed slaves. One particular concern was the disarming of former slaves.⁸¹

The Second Amendment attracted serious judicial attention with the Reconstruction era case of United States v. Cruikshank. In Cruikshank, the U.S. Supreme Court ruled that the Fourteenth Amendment did not cause the Bill of Rights, including the Second Amendment, to limit the powers of the State governments; stating that the Second Amendment "has no other effect than to restrict the powers of the national government."

The meaning and scope of this right has been described as among the most contested of the rights codified in the Bill of Rights.⁸²⁸³

The Supreme Court ruled three times in the 19th Century that the Second Amendment only limits the federal government. In the Supreme Court case of Cruikshank, neither the First Amendment nor the Second Amendment were considered incorporated against the states.⁸⁴ Subsequent to this Supreme Court case, the First Amendment has been incorporated against the states, but the Second Amendment has not been incorporated. Presently, there are on-going federal lawsuits attempting to force the incorporation of the Second Amendment against state and local governments.

Akhil Reed Amar noted, in the Yale Law Journal,⁸⁵ the common law basis for the Bill of Rights, which includes the Second Amendment, "following John Randolph Tucker's famous oral argument in the 1887 Chicago anarchist Haymarket riot case, Spies v. Illinois":

Though originally the first ten Amendments were adopted as limitations on Federal power, yet in so far as they secure and recognize fundamental rights—common law rights—of the man, they make them privileges and immunities of the man as citizen of the United States…⁸⁶

Another point of disagreement concerns the point at which regulation or prohibition of firearms constitutes infringement.⁸⁷⁸⁸ All federal courts, including the Supreme Court, have found that reasonable firearm regulation is allowable.⁸⁹

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;..."

U.S. Supreme Court

See also: Firearm case law in the United States

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

United States v. Cruikshank

Main articles: United States v. Cruikshank and Presser v. Illinois

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.⁹⁰ Significantly with respect to the meaning of the amendment, the Court found that the Second Amendment prohibited the federal government from infringing on the right of individuals "to bear arms for a lawful purpose". Though many of the federal rights delineated in the federal Bill of Rights have subsequently been incorporated by the Court as rights against the states, the Court has not done so for the Second Amendment.

The Court also stated:

This is not a right granted by the Constitution, neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes.⁹¹⁹²

In Heller the Supreme Court noted Cruikshank also did not incorporate the First Amendment against the states. Also, the Court noted that Presser v. Illinois, 116 U.S. 252 (1886), and Miller v. Texas, 153 U.S. 535 (1894), had reaffirmed that the Second Amendment limited the authority only of the federal government.⁹³

United States v. Miller

Main article: United States v. Miller

In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court heard arguments from only the Solicitor General⁹⁴⁹⁵ and rejected a Second Amendment challenge to the National Firearms Act prohibiting the interstate transportation of unregistered Title II weapons, ruling:

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

Miller is often cited by gun-rights advocates, because the Supreme Court ruled that the Second Amendment protected the right to keep arms that are part of "ordinary military equipment."⁹⁶ However, Miller is cited by gun control advocates as showing that the Second Amendment's militia reference limited the right to keep and bear arms mentioned in that amendment.⁹⁷ Andrew McClurg states:

The only certainty about Miller is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact.⁹⁸

District of Columbia v. Heller

Main article: District of Columbia v. Heller

The Supreme Court, in a landmark decision,^99100101102 in District of Columbia v. Heller, 554 U.S. ___ (June 26, 2008) ruled that "[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home" and "that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."

The Court held that the amendment's prefatory clause serves to clarify the operative clause, but neither limits or expands the scope of the operative clause. Justice Stevens, in his dissent, called the Opinion of the Court "strained and unpersuasive", and said that the right to possess a firearm exists only in relation to the militia and that the D.C. laws constitute permissible regulation. Justice Scalia, in the Opinion of the Court, called Justice Stevens' interpretation of the phrase "to keep and bear arms" incoherent and grotesque.¹⁰³

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

With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the first amendment did not apply against the states and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.¹⁰⁴

Since Heller, federal cases have been filed requesting the Second Amendment be made applicable to the states via the Fourteenth Amendment. Two such cases are McDonald v. Chicago and Guy Montag Doe v. San Francisco Housing Authority.

Presidential administrations

The right to bear arms was addressed by President Ulysses S. Grant who stated, in an address to the Congress on April 19, 1872, that "to deprive colored citizens of the right to bear arms" was among the goals of the Ku Klux Klan.¹⁰⁵ In 1883, Grant served as president of the National Rifle Association.

In 2001, President Bush directed the Justice Department under Attorney General John Ashcroft to issue a memorandum opinion stating that the Second Amendment protects an individual right to bear arms.¹⁰⁶

In 2004, President Bush, through the Justice Department under Ashcroft, also issued Whether the Second Amendment Secures an Individual Right, a lengthy memorandum opinion which traced 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.¹⁰⁷

References