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Second Amendment to the United States Constitution – Wikipedia

Part of the Bill of Rights, regarding the right to bear arms

The Second Amendment (Amendment II) to the United States Constitution protects the right of the people to keep and bear arms and was adopted on December 15, 1791 as part of the Bill of Rights.[1][2][3][4]

In the 2008 Heller decision, the Supreme Court affirmed for the first time that the right belongs to individuals, exclusively for self-defense in the home,[5][6][7][8] while also including, as dicta, that the right is not unlimited and does not preclude the existence of certain long-standing prohibitions such as those forbidding “the possession of firearms by felons and the mentally ill” or restrictions on “the carrying of dangerous and unusual weapons.”[9][10] State and local governments are limited to the same extent as the federal government from infringing this right.[11]

The Second Amendment was based partially on the right to keep and bear arms in English common law and was influenced by the English Bill of Rights of 1689. Sir William Blackstone described this right as an auxiliary right, supporting the natural rights of self-defense and resistance to oppression, and the civic duty to act in concert in defense of the state.[12]

While both James Monroe and John Adams supported the Constitution being ratified, its most influential framer was James Madison. In Federalist No. 46, Madison wrote how a federal army could be kept in check by state militias, “a standing army … would be opposed [by] a militia.” He argued that state militias “would be able to repel the danger” of a federal army, “It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.” He contrasted the federal government of the United States to the European kingdoms, which he described as “afraid to trust the people with arms,” and assured that “the existence of subordinate governments … forms a barrier against the enterprises of ambition”.[13][14]

By January 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several amendments were proposed, but were not adopted at the time the Constitution was ratified. For example, the Pennsylvania convention debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to the Bill of Rights to assure ratification.

In United States v. Cruikshank (1876), the Supreme Court ruled that, “The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments [sic] means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.”[15] In United States v. Miller (1939), the Supreme Court ruled that the Second Amendment did not protect weapon types not having a “reasonable relationship to the preservation or efficiency of a well regulated militia.”[16][17]

In the twenty-first century, the amendment has been subjected to renewed academic inquiry and judicial interest.[17] In District of Columbia v. Heller (2008), the Supreme Court handed down a landmark decision that held the amendment protects an individual’s right to keep a gun for self-defense.[18][19] This was the first time the Court had ruled that the Second Amendment guarantees an individual’s right to own a gun.[20][21][19] In McDonald v. Chicago (2010), the Court clarified that the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment against state and local governments.[22] In Caetano v. Massachusetts (2016), the Supreme Court reiterated its earlier rulings that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” and that its protection is not limited to “only those weapons useful in warfare.”

The debate between various organizations regarding gun control and gun rights continues.[23]

Contents

There are several versions of the text of the Second Amendment, each with capitalization or punctuation differences. Differences exist between the drafted and ratified copies, the signed copies on display, and various published transcriptions.[24][25][26][27][28][29][30][31] The importance (or lack thereof) of these differences has been a source of debate regarding the meaning and interpretation of the amendment, particularly regarding the importance of the prefatory clause.[32][33]

One version was passed by the Congress, and a slightly different version was ratified.[a][34][35][36][37] As passed by the Congress and preserved in the National Archives, with the rest of the original handwritten copy of the Bill of Rights prepared by scribe William Lambert, the amendment says:[38]

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 amendment was ratified by the States and authenticated by Secretary of State Thomas Jefferson as:[39]

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 right to bear arms in English history is regarded in English law as a subordinate auxiliary right of the primary rights to personal security, personal liberty, and private property. According to Sir William Blackstone, “The … last auxiliary right of the subject … is that of having arms for their [defense], suitable to their condition and degree, and such as are allowed by law. Which is … declared by … statute, 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.”[b]

The English Bill of Rights of 1689 emerged from a tempestuous period in English politics during which two issues were major sources of conflict: the authority of the King to govern without the consent of Parliament, and the role of Catholics in a country that was becoming ever more Protestant. Ultimately, the Catholic JamesII was overthrown in the Glorious Revolution, and his successors, the Protestants WilliamIII and MaryII, accepted the conditions that were codified in the Bill. One of the issues the Bill resolved was the authority of the King to disarm his subjects, after King Charles II and JamesII had disarmed many Protestants that were “”suspected or knowne” of disliking the government,[40] and had argued with Parliament over his desire to maintain a standing (or permanent) army.[c] The bill states that it is acting to restore “ancient rights” trampled upon by JamesII, though some have argued that the English Bill of Rights created a new right to have arms, which developed out of a duty to have arms.[41] In District of Columbia v. Heller (2008), the Supreme Court did not accept this view, remarking that the English right at the time of the passing of the English Bill of Rights was “clearly an individual right, having nothing whatsoever to do with service in the militia” and that it was a right not to be disarmed by the Crown and was not the granting of a new right to have arms.[42]

The text of the English Bill of Rights of 1689 includes language protecting the right of Protestants against disarmament by the Crown. This document states: “That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.”[43] It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament.[44] Nevertheless, the English Bill of Rights remains an important constitutional document, more for enumerating the rights of Parliament over the monarchy than for its clause concerning a right to have arms.

The statement in the English Bill of Rights concerning the right to bear arms is often quoted only in the passage where it is written as above and not in its full context. In its full context it is clear that the bill was asserting the right of Protestant citizens not to be disarmed by the King without the consent of Parliament and was merely restoring rights to Protestants that the previous King briefly and unlawfully had removed. In its full context it reads:

Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome (list of grievances including) … by causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law, (Recital regarding the change of monarch) … thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors in like Case have usually done) for the Vindicating and Asserting their ancient Rights and Liberties, Declare (list of rights including) … That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.[43]

The historical link between the English Bill of Rights and the Second Amendment, which both codify an existing right and do not create a new one, has been acknowledged by the U.S. Supreme Court.[d][e]

The English Bill of Rights includes the proviso that arms must be as “allowed by law.” This has been the case before and after the passage of the Bill. While it did not override earlier restrictions on the ownership of guns for hunting, it is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments.[45]

There is some difference of opinion as to how revolutionary the events of 168889 actually were, and several commentators make the point that the provisions of the English Bill of Rights did not represent new laws, but rather stated existing rights. Mark Thompson wrote that, apart from determining the succession, the English Bill of Rights did “little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already posessed [sic].”[46] Before and after the English Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm.[47] In 1765, William Blackstone wrote the Commentaries on the Laws of England describing the right to have arms in England during the 18th century as a subordinate auxiliary right of the subject that was “also declared” in the English Bill of Rights.[48][49]

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 1 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.[50]

Although there is little doubt that the writers of the Second Amendment were heavily influenced by the English Bill of Rights, it is a matter of interpretation as to whether they were intent on preserving the power to regulate arms to the states over the federal government (as the English Parliament had reserved for itself against the monarch) or whether it was intent on creating a new right akin to the right of others written into the Constitution (as the Supreme Court decided in Heller). Some in the United States have preferred the “rights” argument arguing that the English Bill of Rights had granted a right. The need to have arms for self-defence was not really in question. Peoples all around the world since time immemorial had armed themselves for the protection of themselves and others, and as organized nations began to appear these arrangements had been extended to the protection of the state.[51] Without a regular army and police force (which in England was not established until 1829), it had been the duty of certain men to keep watch and ward at night and to confront and capture suspicious persons. Every subject had an obligation to protect the king’s peace and assist in the suppression of riots.[52]

Early English settlers in America viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes (in no particular order):[f][g][54][55][56][57][58][59]

Which of these considerations were thought of as most important and ultimately found expression in the Second Amendment is disputed. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776 asserted that, “the people have a right to bear arms for the defence of themselves and the state.”[66]

During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, including many who were loyal to British imperial rule. As defiance and opposition to British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists, known as Patriots, who favored independence from British rule. As a result, some Patriots created their own militias that excluded the Loyalists and then sought to stock independent armories for their militias. In response to this arms build up, the British Parliament established an embargo of firearms, parts and ammunition against the American colonies.[67] King George III also began disarming individuals who were in the most rebellious areas in the 1760’s and 70’s.[68]

British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, Blackstone’s summary of the Declaration of Rights, their own militia laws and common law rights to self-defense.[69] While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense.[69] Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars’ interpretation of Blackstone.[70]

The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 Boston objecting to the British army suppression of colonial opposition to the Townshend Acts:

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.[69]

Furthermore, one article from New York in 1769 stated: “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.”[71]

The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with regular French army and naval forces and various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist militia and Hessian mercenaries. Following the Revolution, the United States was governed by the Articles of Confederation. Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the standing army was reduced to as few as 80 men.[72] They considered it to be bad that there was no effective federal military crackdown on an armed tax rebellion in western Massachusetts known as Shays’ Rebellion.[73] Anti-federalists on the other hand took the side of limited government and sympathized with the rebels, many of whom were former Revolutionary War soldiers. Subsequently, the Constitutional Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.[74][75] Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power.[76]

Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that James 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.”[77] In contrast, historian Jack Rakove suggests that Madison’s intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed.[78]

One aspect of the gun control debate is the conflict between gun control laws and the right to rebel against unjust governments. Blackstone in his Commentaries alluded to this right to rebel as the natural right of resistance and self preservation, to be used only as a last resort, exercisable when “the sanctions of society and laws are found insufficient to restrain the violence of oppression”.[79] Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation,[80] as Alexander Hamilton explained in his Concerning the Militia essay published in 1788:

… it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defence of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the Government to form an army of any magnitude, that army can never be formidable to the liberties of the People, while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights, and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.[80][81]

Some scholars have said that it is wrong to read a right of armed insurrection in the Second Amendment because clearly the founding fathers sought to place trust in the power of the ordered liberty of democratic government versus the anarchy of insurrectionists.[82][83] Other writers, such as Glenn Reynolds, contend that the framers did believe in an individual right to armed insurrection. They cite examples, such as the Declaration of Independence (describing in 1776 “the Right of the People to … institute new Government”) and the Constitution of New Hampshire (stating in 1784 that “nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind”).[84]

There was an ongoing debate beginning in 1789 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 increasingly violent French Revolution.[85] A widespread fear, during the debates on ratifying the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens,[h] or prohibiting citizens from arming themselves.[69] Though it has been argued that the states lost the power to arm their citizens when the power to arm the militia was transferred from the states to the federal government by Article I, Section 8 of the Constitution, the individual right to arm was retained and strengthened by the Militia Acts of 1792 and the similar act of 1795.[86][87]

Note: On May 10, 1776, Congress passed a resolution recommending that any colony with a government that was not inclined toward independence should form one that was.[88]

Virginia’s Constitution lists the reasons for dissolving its ties with the King in the formation of its own independent state government. Including the following:

* These same reasons would later be outlined within the Declaration of Independence.

A Declaration of Rights. Section 13. 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; 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.[89]

Article 13. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the 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.[90]

IMPORTANT NOTE: This is the first instance in relationship to U.S. Constitutional Law of the phrase “right to bear arms.”

It is of relevance that Pennsylvania was a Quaker Colony traditionally opposed to bearing arms. “In settling Pennsylvania, William Penn had a great experiment in view, a ‘holy experiment,’ as he term[ed] it. This was no less than to test, on a scale of considerable magnitude, the practicability of founding and governing a State on the sure principles of the Christian religion; where the executive should be sustained without arms; where justice should be administered without oaths; and where real religion might flourish without the incubus of a hierarchical system.”[91] The Non-Quaker residents, many from the Western Counties, complained often and loudly of being denied the right to a common defense. By the time of the American Revolution, through what could be described as a revolution within a revolution, the pro-militia factions had gained ascendancy in the state’s government. And by a manipulation through the use of oaths, disqualifying Quaker members, they made up a vast majority of the convention forming the new state constitution; it was only natural that they would assert their efforts to form a compulsory State Militia in the context of a “right” to defend themselves and the state.[92]

Articles XXV-XXVII. 25. That a well-regulated militia is the proper and natural defence of a free government. 26. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature. 27. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.[93]

A Declaration of Rights. Article XVII. 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.[94]

Article XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth. And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.[95]

Chapter 1. Section XVIII. That the people have a right to bear arms for the defence of the themselves and the State; and as standing armies, in the 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.[96]

A Declaration of Rights. Chapter 1. Article XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.[97]

In March 1785, delegates from Virginia and Maryland assembled at the Mount Vernon Conference to fashion a remedy to the inefficiencies of the Articles of Confederation. The following year, at a meeting in Annapolis, Maryland, 12 delegates from five states (New Jersey, New York, Pennsylvania, Delaware, and Virginia) met and drew up a list of problems with the current government model. At its conclusion, the delegates scheduled a follow-up meeting in Philadelphia, Pennsylvania for May 1787 to present solutions to these problems, such as the absence of:[101][102]

It quickly became apparent that the solution to all three of these problems required shifting control of the states’ militias to the federal Congress and giving that congress the power to raise a standing army.[103] Article 1, Section 8 of the Constitution codified these changes by allowing the Congress to provide for the common defense and general welfare of the United States by doing the following:[104]

Some representatives mistrusted proposals to enlarge federal powers, because they were concerned about the inherent risks of centralizing power. Federalists, including James Madison, initially argued that a bill of rights was unnecessary, sufficiently confident that the federal government could never raise a standing army powerful enough to overcome a militia.[105] Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.[106][107] Anti-federalists, on the other hand, advocated amending the Constitution with clearly defined and enumerated rights providing more explicit constraints on the new government. Many Anti-federalists feared the new federal government would choose to disarm state militias. Federalists countered that in listing only certain rights, unlisted rights might lose protection. The Federalists realized there was insufficient support to ratify the Constitution without a bill of rights and so they promised to support amending the Constitution to add a bill of rights following the Constitution’s adoption. This compromise persuaded enough Anti-federalists to vote for the Constitution, allowing for ratification.[108] The Constitution was declared ratified on June21, 1788, when nine of the original thirteen states had ratified it. The remaining four states later followed suit, although the last two states, North Carolina and Rhode Island, ratified only after Congress had passed the Bill of Rights and sent it to the states for ratification.[109] James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June8, 1789, and was adopted on December15, 1791.

The debate surrounding the Constitution’s ratification is of practical importance, particularly to adherents of originalist and strict constructionist legal theories. In the context of such legal theories and elsewhere, it is important to understand the language of the Constitution in terms of what that language meant to the people who wrote and ratified the Constitution.[110]

The Second Amendment was relatively uncontroversial at the time of its ratification.[111] Robert Whitehill, a delegate from Pennsylvania, sought to clarify the draft Constitution with a bill of rights explicitly granting individuals the right to hunt on their own land in season,[112] though Whitehill’s language was never debated.[113]

There was substantial opposition to the new Constitution, because it moved the power to arm the state militias from the states to the federal government. This created a fear that the federal government, by neglecting the upkeep of the militia, could have overwhelming military force at its disposal through its power to maintain a standing army and navy, leading to a confrontation with the states, encroaching on the states’ reserved powers and even engaging in a military takeover. Article VI of the Articles of Confederation states:

In contrast, Article I, Section 8, Clause 16 of the U.S. Constitution states:

A foundation of American political thought during the Revolutionary period was concerned about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is “a chimerical idea to suppose that a country like this could ever be enslaved … Is it possible … that an army could be raised for the purpose of enslaving themselves or their brethren? Or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?”[117] Noah Webster similarly argued:

George Mason also argued the importance of the militia and right to bear arms by reminding his compatriots of England’s efforts “to disarm the people; that it was the best and most effectual way to enslave them … by totally disusing and neglecting the militia.” He also clarified that under prevailing practice the militia included all people, rich and poor. “Who are the militia? They consist now of the whole people, except a few public officers.” Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.[13][119]

Writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included “the right to keep and bear arms” in a list of basic “human rights”, which he proposed to be added to the Constitution.[120]

Patrick Henry argued in the Virginia ratification convention on June 5, 1788, for the dual rights to arms and resistance to oppression:

According to political commentator Thom Hartmann, the Virginians James Madison, Patrick Henry, and George Mason were concerned that “slave patrols,” organized groups of white men who enforced discipline upon enslaved African Americans, needed to remain armed and, therefore, the Constitution needed to clarify that states have the right to organize white men in such militias.[121] Also, Patrick Henry argued against the ratification of both the Constitution and the Second Amendment.[65] Most Southern white men aged1845 were required to serve on such patrols.

Legal historian Paul Finkelman disputes Hartmann’s claim that the Second Amendment was adopted to protect slave patrols, arguing that Hartmann’s claim is “factually incorrect and misleading” and that there is no historical evidence for this assertion.[65]

James Madison’s initial proposal for a bill of rights was brought to the floor of the House of Representatives on June 8, 1789, during the first session of Congress. The initial proposed passage relating to arms 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.[122]

On July 21, Madison again 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,[123] and the Bill of Rights entered committee for review. The committee returned to the House a reworded version of the Second Amendment on July 28.[124] 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.[125]

In late August 1789, the House debated and modified the Second Amendment. 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 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. However, the Senate scribe added a comma before “shall not be infringed” and changed the semicolon separating that phrase from the religious exemption portion to a comma:

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.[126]

By this time, the proposed right to keep and bear arms was in a separate amendment, instead of being in a single amendment together with other proposed rights such as the due process right. As a Representative explained, this change allowed each amendment to “be passed upon distinctly by the States.”[127] 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.[128]

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. A motion passed to replace the words “the best,” and insert in lieu thereof “necessary to the” .[129] The Senate then slightly modified the language to read as the fourth article and voted to return the Bill of Rights to the House. The final version by the Senate was amended to read as:

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 House voted on September 21, 1789 to accept the changes made by the Senate.

The enrolled original Joint Resolution passed by Congress on September 25, 1789, on permanent display in the Rotunda, reads as:

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.[130]

On December 15, 1791, the Bill of Rights (the first ten amendments to the Constitution) was adopted, having been ratified by three-fourths of the states, having been ratified as a group by all the fourteen states then in existence except Connecticut, Massachusetts, and Georgia which added ratifications in 1939.[131]

During the first two decades following the ratification of the Second Amendment, public opposition to standing armies, among Anti-Federalists and Federalists alike, persisted and manifested itself locally as a general reluctance to create a professional armed police force, instead relying on county sheriffs, constables and night watchmen to enforce local ordinances.[67] Though sometimes compensated, often these positions were unpaid held as a matter of civic duty. In these early decades, law enforcement officers were rarely armed with firearms, using billy clubs as their sole defensive weapons.[67] In serious emergencies, a posse comitatus, militia company, or group of vigilantes assumed law enforcement duties; these individuals were more likely than the local sheriff to be armed with firearms.[67]On May 8, 1792, Congress passed “[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States” requiring:

[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia … [and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.[132]

The act also gave specific instructions to domestic weapon manufacturers “that from and after five years from the passing of this act, muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound.”[132] In practice, private acquisition and maintenance of rifles and muskets meeting specifications and readily available for militia duty proved problematic; estimates of compliance ranged from 10 to 65percent.[133] Compliance with the enrollment provisions was also poor. In addition to the exemptions granted by the law for custom-house officers and their clerks, post-officers and stage drivers employed in the care and conveyance of U.S. mail, ferrymen, export inspectors, pilots, merchant mariners and those deployed at sea in active service; state legislatures granted numerous exemptions under Section2 of the Act, including exemptions for: clergy, conscientious objectors, teachers, students, and jurors. And though a number of able-bodied white men remained available for service, many simply did not show up for militia duty. Penalties for failure to appear were enforced sporadically and selectively.[134] None is mentioned in the legislation.[132]

The first test of the militia system occurred in July 1794, when a group of disaffected Pennsylvania farmers rebelled against federal tax collectors whom they viewed as illegitimate tools of tyrannical power.[135] Attempts by the four adjoining states to raise a militia for nationalization to suppress the insurrection proved inadequate. When officials resorted to drafting men, they faced bitter resistance. Forthcoming soldiers consisted primarily of draftees or paid substitutes as well as poor enlistees lured by enlistment bonuses. The officers, however, were of a higher quality, responding out of a sense of civic duty and patriotism, and generally critical of the rank and file.[67] Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.[67] In October, President George Washington and General Harry Lee marched on the 7,000rebels who conceded without fighting. The episode provoked criticism of the citizen militia and inspired calls for a universal militia. Secretary of War Henry Knox and Vice-President John Adams had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production.[67] Congress did subsequently pass “[a]n act for the erecting and repairing of Arsenals and Magazines” on April 2, 1794, two months prior to the insurrection.[136] Nevertheless, the militia continued to deteriorate and twenty years later, the militia’s poor condition contributed to several losses in the War of 1812, including the sacking of Washington, D.C., and the burning of the White House in 1814.[134]

In May of 1788, Richard Henry Lee wrote in Additional Letters From The Federal Farmer #169 or Letter XVIII regarding the definition of a “militia”:

A militia, when properly formed, are in fact the people themselves, and render regular troops in a great measure unnecessary.

In June of 1788, George Mason addressed the Virginia Ratifying Convention regarding a “militia:”

A worthy member has asked, who are the militia, if they be not the people, of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c. by our representation? I ask who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government all ranks of people are subject to militia duty.

In 1792, Tench Coxe made the following point in a commentary on the Second Amendment:[137]

As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.[138][139]

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 published in 1803.[140][141] Tucker wrote:

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. Amendments to C. U. S. Art. 4. This may be considered as the true palladium of liberty … The right of self defence is the first law of nature: In most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. 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.[142]

In footnotes 40 and 41 of the Commentaries, Tucker stated that the right to bear arms under the Second Amendment was not subject to the restrictions that were part of English law: “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.” Blackstone himself also commented on English game laws, 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.”[140] Blackstone discussed the right of self-defense in a separate section of his treatise on the common law of crimes. Tucker’s annotations for that latter section did not mention the Second Amendment but cited the standard works of English jurists such as Hawkins.[i]

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.”[140]

Tucker’s commentary was soon followed, in 1825, by that of William Rawle in his landmark text, A View of the Constitution of the United States of America. Like Tucker, Rawle condemned England’s “arbitrary code for the preservation of game,” portraying that country as one that “boasts so much of its freedom,” yet provides a right to “protestant subjects only” that it “cautiously describ[es] to be that of bearing arms for their defence” and reserves for “[a] very small proportion of the people[.]”[143] In contrast, Rawle characterizes the second clause of the Second Amendment, which he calls the corollary clause, as a general prohibition against such capricious abuse of government power, declaring bluntly:

No clause could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[144]

Speaking of the Second Amendment generally, Rawle said:[j]

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[j][145]

Rawle, long before the concept of incorporation was formally recognized by the courts, or Congress drafted the Fourteenth Amendment, contended that citizens could appeal to the Second Amendment should either the state or federal government attempt to disarm them. He did warn, however, that “this right [to bear arms] ought not … be abused to the disturbance of the public peace” and, paraphrasing Coke, observed: “An assemblage of persons with arms, for unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace.”[143]

Joseph Story articulated in his influential Commentaries on the Constitution[146] the orthodox view of the Second Amendment, which he viewed as the amendment’s clear meaning:

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 usurpations and arbitrary power of rulers; and it 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 burdens, 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.[k][147]

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Second Amendment to the United States Constitution – Wikipedia

Second Amendment | Wex Legal Dictionary / Encyclopedia | LII …

The Second Amendment of the United States Constitution reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Such language has created considerable debate regarding the Amendment’s intended scope. On the one hand, some believe that the Amendment’s phrase “the right of the people to keep and bear Arms” creates an individual constitutional right for citizens of the United States. Under this “individual right theory,” the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional. On the other hand, some scholars point to the prefatory language “a well regulated Militia” to argue that the Framers intended only to restrict Congress from legislating away a state’s right to self-defense. Scholars have come to call this theory “the collective rights theory.” A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right.

In 1939 the U.S. Supreme Court considered the matter in United States v. Miller. 307 U.S. 174. The Court adopted a collective rights approach in this case, determining that Congress could regulate a sawed-off shotgun that had moved in interstate commerce under the National Firearms Act of 1934 because the evidence did not suggest that the shotgun “has some reasonable relationship to the preservation or efficiency of a well regulated milita . . . .” The Court then explained that the Framers included the Second Amendment to ensure the effectiveness of the military.

This precedent stood for nearly 70 years when in 2008 the U.S. Supreme Court revisited the issue in the case of District of Columbia v. Heller (07-290). The plaintiff in Heller challenged the constitutionality of the Washington D.C. handgun ban, a statute that had stood for 32 years. Many considered the statute the most stringent in the nation. In a 5-4 decision, the Court, meticulously detailing the history and tradition of the Second Amendment at the time of the Constitutional Convention, proclaimed that the Second Amendment established an individual right for U.S. citizens to possess firearms and struck down the D.C. handgun ban as violative of that right. The majority carved out Miller as an exception to the general rule that Americans may possess firearms, claiming that law-abiding citizens cannot use sawed-off shotguns for any law-abiding purpose. Similarly, the Court in its dicta found regulations of similar weaponry that cannot be used for law-abiding purposes as laws that would not implicate the Second Amendment. Further, the Court suggested that the United States Constitution would not disallow regulations prohibiting criminals and the mentally ill from firearm possession.

Thus, the Supreme Court has revitalized the Second Amendment. The Court continued to strengthen the Second Amendment through the 2010 decision inMcDonald v. City of Chicago(08-1521). The plaintiff inMcDonaldchallenged the constitutionally of the Chicago handgun ban, which prohibited handgun possession by almost all private citizens. In a 5-4 decisions, the Court, citing the intentions of the framers and ratifiers of the Fourteenth Amendment, held that the Second Amendment applies to the states through theincorporation doctrine.However, the Court did not have a majority on which clause of the Fourteenth Amendment incorporates the fundamental right to keep and bear arms for the purpose of self-defense. While Justice Alito and his supporters looked to the Due Process Clause, Justice Thomas in his concurrence stated that the Privileges and Immunities Clause should justify incorporation.

However, several questions still remain unanswered, such as whether regulations less stringent than the D.C. statute implicate the Second Amendment, whether lower courts will apply their dicta regarding permissible restrictions, andwhat level of scrutiny the courts should apply when analyzing a statute that infringes on the Second Amendment. As a general note, when analyzing statutes and ordinances, courts use three levels of scrutiny, depending on the issue at hand:

Recent lower-court case law since Heller suggests that courts are willing to uphold

More recently, the Supreme Court reinforced its Hellerruling in itsCaetano v. Massachusetts(2016) decision. The Court found that the lower “Massachusetts Supreme Judicial Court was wrong in the three reasons it offered for why the state could ban personal possession or use of a stun gun without violating the Second Amendment.” The Supreme Court, however, remanded the case without further instructions, so this per curiam ruling did not do much to further clarify the Supreme Court’s stance on the Second Amendment.

See constitutional amendment.

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Second Amendment | Wex Legal Dictionary / Encyclopedia | LII …

Amendment II – The United States Constitution

The right to keep and bear arms is a lot like the right to freedom of speech. In each case, the Constitution expressly protects a liberty that needs to be insulated from the ordinary political process. Neither right, however, is absolute. The First Amendment, for example, has never protected perjury, fraud, or countless other crimes that are committed through the use of speech. Similarly, no reasonable person could believe that violent criminals should have unrestricted access to guns, or that any individual should possess a nuclear weapon.

Inevitably, courts must draw lines, allowing government to carry out its duty to preserve an orderly society, without unduly infringing the legitimate interests of individuals in expressing their thoughts and protecting themselves from criminal violence. This is not a precise science or one that will ever be free from controversy.

One judicial approach, however, should be unequivocally rejected. During the nineteenth century, courts routinely refused to invalidate restrictions on free speech that struck the judges as reasonable. This meant that speech got virtually no judicial protection. Government suppression of speech can usually be thought to serve some reasonable purpose, such as reducing social discord or promoting healthy morals. Similarly, most gun control laws can be viewed as efforts to save lives and prevent crime, which are perfectly reasonable goals. If thats enough to justify infringements on individual liberty, neither constitutional guarantee means much of anything.

During the twentieth century, the Supreme Court finally started taking the First Amendment seriously. Today, individual freedom is generally protected unless the government can make a strong case that it has a real need to suppress speech or expressive conduct, and that its regulations are tailored to that need. The legal doctrines have become quite complex, and there is room for disagreement about many of the Courts specific decisions. Taken as a whole, however, this body of case law shows what the Court can do when it appreciates the value of an individual right enshrined in the Constitution.

This essay is part of a discussion about the Second Amendment with Adam Winkler, Professor of Law, UCLA School of Law. Read the full discussion here.

The Second Amendment also raises issues about which reasonable people can disagree. But if the Supreme Court takes this provision of the Constitution as seriously as it now takes the First Amendment, which it should do, there will be some easy issues as well.

District of Columbia v. Heller (2008) is one example. The right of the people protected by the Second Amendment is an individual right, just like the right[s] of the people protected by the First and Fourth Amendments. The Constitution does not say that the Second Amendment protects a right of the states or a right of the militia, and nobody offered such an interpretation during the Founding era. Abundant historical evidence indicates that the Second Amendment was meant to leave citizens with the ability to defend themselves against unlawful violence. Such threats might come from usurpers of governmental power, but they might also come from criminals whom the government is unwilling or unable to control.

McDonald v. City of Chicago (2010) was also an easy case under the Courts precedents. Most other provisions of the Bill of Rights had already been applied to the states because they are deeply rooted in this Nations history and tradition. The right to keep and bear arms clearly meets this test.

The text of the Constitution expressly guarantees the right to bear arms, not just the right to keep them. The courts should invalidate regulations that prevent law-abiding citizens from carrying weapons in public, where the vast majority of violent crimes occur. First Amendment rights are not confined to the home, and neither are those protected by the Second Amendment.

Nor should the government be allowed to create burdensome bureaucratic obstacles designed to frustrate the exercise of Second Amendment rights. The courts are vigilant in preventing government from evading the First Amendment through regulations that indirectly abridge free speech rights by making them difficult to exercise. Courts should exercise the same vigilance in protecting Second Amendment rights.

Some other regulations that may appear innocuous should be struck down because they are little more than political stunts. Popular bans on so-called assault rifles, for example, define this class of guns in terms of cosmetic features, leaving functionally identical semi-automatic rifles to circulate freely. This is unconstitutional for the same reason that it would violate the First Amendment to ban words that have a French etymology, or to require that French fries be called freedom fries.

In most American states, including many with large urban population centers, responsible adults have easy access to ordinary firearms, and they are permitted to carry them in public. Experience has shown that these policies do not lead to increased levels of violence. Criminals pay no more attention to gun control regulations than they do to laws against murder, rape, and robbery. Armed citizens, however, prevent countless crimes and have saved many lives. Whats more, the most vulnerable peopleincluding women, the elderly, and those who live in high crime neighborhoodsare among the greatest beneficiaries of the Second Amendment. If the courts require the remaining jurisdictions to stop infringing on the constitutional right to keep and bear arms, their citizens will be more free and probably safer as well.

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Amendment II – The United States Constitution

Second Amendment legal definition of Second Amendment

The Second Amendment to the U.S. Constitution reads:

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

The subject matter and unusual phrasing of this amendment led to much controversy and analysis, especially in the last half of the twentieth century. Nevertheless, the meaning and scope of the amendment have long been decided by the Supreme Court.

Firearms played an important part in the colonization of America. In the seventeenth and eighteenth centuries, European colonists relied heavily on firearms to take land away from Native Americans and repel attacks by Native Americans and Europeans. Around the time of the Revolutionary War, male citizens were required to own firearms for fighting against the British forces. Firearms were also used in hunting.

In June 1776, one month before the signing of the Declaration of Independence, Virginia became the first colony to adopt a state constitution. In this document, the state of Virginia pronounced 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.” After the colonies declared their independence from England, other states began to include the right to bear arms in their constitution. Pennsylvania, for example, declared that

the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the 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.

The wording of clauses about bearing arms in late-eighteenth-century state constitutions varied. Some states asserted that bearing arms was a “right” of the people, whereas others called it a “duty” of every able-bodied man in the defense of society.

Pennsylvania was not alone in its express discouragement of a standing (professional) army. Many of the Framers of the U.S. Constitution rejected standing armies, preferring instead the model of a citizen army, equipped with weapons and prepared for defense. According to Framers such as Elbridge Gerry of Massachusetts and George Mason of Virginia a standing army was susceptible to tyrannical use by a power-hungry government.

At the first session of Congress in March 1789, the Second Amendment was submitted as a counterweight to the federal powers of Congress and the president. According to constitutional theorists, the Framers who feared a central government extracted the amendment as a compromise from those in favor of centralized authority over the states. The Revolutionary War had, after all, been fought in large part by a citizen army against the standing armies of England.

The precise wording of the amendment was changed two times before the U.S. Senate finally cast it in its present form. As with many of the amendments, the exact wording proved critical to its interpretation.

In 1791 a majority of states ratified the Bill of Rights, which included the Second Amendment. In its final form, the amendment presented a challenge to interpreters. It was the only amendment with an opening clause that appeared to state its purpose. The amendment even had defective punctuation; the comma before shall seemed grammatically unnecessary.

Legal scholars do not agree about this comma. Some have argued that it was intentional and that it was intended to make militia the subject of the sentence. According to these theorists, the operative words of the amendment are “[a] well regulated Militia shall not be infringed.” Others have argued that the comma was a mistake, and that the operative words of the sentence are “the right of the people to bear arms shall not be infringed.” Under this reading, the first part of the sentence is the rationale for the absolute, personal right of the people to own firearms. Indeed, the historical backdrophighlighted by a general disdain for professional armieswould seem to support this theory.

Some observers argue further that the Second Amendment grants the right of insurrection. According to these theorists, the Second Amendment was designed to allow citizens to rebel against the government. Thomas Jefferson is quoted as saying that “a little rebellion every now and then is a good thing.”

The Supreme Court makes the ultimate determination of the Constitution’s meaning, and it has defined the amendment as simply granting to the states the right to maintain a militia separate from federally controlled militias. This interpretation first came in United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1875). In Cruikshank, approximately one hundred persons were tried jointly in a Louisiana federal court with felonies in connection with an April 13, 1873, assault on two AfricanAmerican men. One of the criminal counts charged that the mob intended to hinder the right of the two men to bear arms. The defendants were convicted by a jury, but the circuit court arrested the judgment, effectively overturning the verdict. In affirming that decision, the Supreme Court declared that “the second amendment means no more than that [the right to bear arms] shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government.”

In Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886), Herman Presser was charged in Illinois state court with parading and drilling an unauthorized militia in the streets of Chicago in December 1879, in violation of certain sections of the Illinois Military Code. One of the sections in question prohibited the organization, drilling, operation, and parading of militias other than U.S. troops or the regular organized volunteer militia of the state. Presser was tried by the judge, convicted, and ordered to pay a fine of $10. On appeal to the U.S. Supreme Court, Presser argued, in part, that the charges violated his Second Amendment right to bear arms. The Court disagreed and upheld Presser’s conviction. The Court cited Cruikshank for the proposition that the Second Amendment means only that the federal government may not infringe on the right of states to form their own militias. This meant that the Illinois state law forbidding citizen militias was not unconstitutional. However, in its opinion, the Court in Presser delivered a reading of the Second Amendment that seemed to suggest an absolute right of persons to bear arms: “It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States,” and “states cannot prohibit the people from keeping and bearing arms.”

Despite this generous language, the Court refused to incorporate the Second Amendment into the Fourteenth Amendment. Under the first section of the Fourteenth Amendment, passed in 1868, states may not abridge the Privileges and Immunities of citizens of the United States. The privileges and immunities of citizens are listed in the Bill of Rights, of which the Second Amendment is part. Presser had argued that states may not, by virtue of the Fourteenth Amendment, abridge the right to bear arms. The Court refused to accept the argument that the right to bear arms is a personal right of the people. According to the Court, “The right to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship.”

The Presser opinion is best understood in its historical context. The Northern states and the federal government had just fought the Civil War against Southern militias unauthorized by the federal government. After this ordeal, the Supreme Court was in no mood to accept an expansive right to bear arms. At the same time, the Court was sensitive to the subject of federal encroachment on States’ Rights.

Private militias are armed military groups that are composed of private citizens and not recognized by federal or state governments. Private militias have been formed by individuals in America since the colonial period. In fact, the Revolutionary War against England was fought in part by armies comprising not professional soldiers but ordinary male citizens.

Approximately half the states maintain laws regulating private militias. Generally, these laws prohibit the parading and exercising of armed private militias in public, but do not forbid the formation of private militias. In Wyoming, however, state law forbids the very formation of private militias. Under section 19-1-106 of the Wyoming Statutes, “No body of men other than the regularly organized national guard or the troops of the United States shall associate themselves together as a military company or organization, or parade in public with arms without license of the governor.” The Wyoming law also prohibits the public funding of private militias. Anyone convicted of violating the provisions of the law is subject to a fine of not more than $1,000, imprisonment of six months, or both, for each offense.

In states that do not outlaw them, private militias are limited only by the criminal laws applicable to all of society. Thus, if an armed private militia seeks to parade and exercise in a public area, its members will be subject to arrest on a variety of laws, including disturbing-the-peace, firearms, or even riot statutes.

Many private militias are driven by the insurrection theory of the Second Amendment. Under this view, the Second Amendment grants an unconditional right to bear arms for Self-Defense and for rebellion against a tyrannical governmentwhen a government turns oppressive, private citizens have a duty to “insurrect,” or take up arms against it.

The U.S. Supreme Court has issued a qualified rejection of the insurrection theory. According to the Court in Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951), “[W]hatever theoretical merit there may be to the argument that there is a ‘right’ to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.” Scholars have interpreted this to mean that as long as the government provides for free elections and trials by jury, private citizens have no right to take up arms against the government.

Some people have disagreed with the Supreme Court’s definition of tyranny. Many of these people label the state and federal governments as tyrannical based on issues such as taxes and government regulations. Others cite governments ponsored racial and ethnic Integration as driving forces in their campaign against the federal and state governments. Many of these critics have formed private militias designed to resist perceived government oppression.

Some private militias have formed their own government. The legal problems of these private militias are generally unrelated to military activities. Instead, any criminal charges usually arise from activities associated with their political beliefs. The Freemen of Montana is one such militia. This group denied the legitimacy of the federal government and created its own township called Justus. The Freemen established its own court system, posted bounties for the arrest of police officers and judges, and held seminars on how to challenge laws its members viewed as beyond the scope of the Constitution. According to neighbors, the group also established its own common-law court system and built its own jail for the imprisonment of trespassers and government workers, or “public hirelings.”

In the 1990s, the Freemen came to the attention of federal prosecutors after members of the group allegedly wrote worthless checks and money orders to pay taxes and to defraud banks and credit card companies. One Freeman had also allegedly threatened a federal judge, and some had allegedly refused to pay taxes for at least a decade.

In March 1996, law enforcement officials obtained warrants for the arrest of many of the Freemen. However, remembering the violence that occurred when officials attempted to serve arrest warrants on another armed group in Waco, Texas, in 1993, law enforcement authorities did not invade the Freemen’s 960-acre ranch in Jordan, Montana. Although the Freemen constituted an armed challenge to all government authority, its beliefs and its military activities were not illegal, and most of its members were charged with nonviolent crimes, such as Fraud and related conspiracy. Two men were also charged with threatening public officials. In addition, several Freemen faced charges of criminal syndicalism, which is the advocacy of violence for political goals.

Amar, Akhil Reed. 2002. “Second Thoughts.” Law and Contemporary Problems 65 (spring).

Barry, Monica Sue. 1996. “Stockpiling Weapons: Can Private Militias Receive Protection under the First and Second Amendments?” Thomas Jefferson Law Review 18 (spring).

Hardaway, Robert, Elizabeth Gormley, and Bryan Taylor. 2002. “The Inconvenient Militia Clause of the Second Amendment: Why the Supreme Court Declines to Resolve the Debate over the Right to Bear Arms.” St. John’s Journal of Legal Commentary 16 (winter).

Dennis v. United States.

Several decades later, the Supreme Court ignored the contradictory language in Presser and cemented a limited reading of the Second Amendment. In United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939), defendants Jack Miller and Frank Layton were charged in federal court with unlawful transportation of firearms in violation of certain sections of the National Firearms Act of June 26, 1934 (ch. 757, 48 Stat. 12361240 [26 U.S.C.A. 1132 et seq.]). Specifically, Miller and Layton had transported shotguns with barrels less than 18 inches long, without the registration required under the act.

The district court dismissed the indictment, holding that the act violated the Second Amendment. The United States appealed. The Supreme Court reversed the decision and sent the case back to the trial court. The Supreme Court stated that the Second Amendment was fashioned “to assure the continuation and render possible the effectiveness of militia forces.”

The Miller opinion confirmed the restrictive language of Presser and solidified a narrow reading of the Second Amendment. According to the Court in Miller, the Second Amendment does not guarantee the right to own a firearm unless the possession or use of the firearm has “a reasonable relationship to the preservation or efficiency of a well regulated militia.”

The legislative measures that inspire most Second Amendment discussions are Gun Control laws. Since the mid-nineteenth century, state legislatures have been passing laws that infringe a perceived right to bear arms. Congress has also asserted the power to regulate firearms. No law regulating firearms has ever been struck down by the Supreme Court as a violation of the Second Amendment.

Historically, the academic community has largely ignored the Second Amendment. However, gun control laws have turned many laypersons into scholars of the Second Amendment’s history. The arguments for a broader interpretation are many and varied. Most center on the Original Intent of the Framers. Some emphasize that the Second Amendment should be interpreted as granting an unconditional personal right to bear arms for defensive and sporting purposes. Others adhere to an insurrection theory, under which the Second Amendment not only grants the personal right to bear arms, it gives citizens the right to rebel against a government perceived as tyrannical.

In response to these arguments, supporters of the prevailing Second Amendment interpretation maintain that any right to bear arms should be secondary to concerns for public safety. They also point out that other provisions in the Constitution grant power to Congress to quell insurrections, thus contradicting the insurrection theory. Lastly, they argue that the Constitution should be interpreted in accordance with a changing society and that the destructive capability of semiautomatic and automatic firearms was not envisioned by the Framers.

In response to the last argument, critics maintain that because such firearms exist, it should be legal to use them against violent criminals who are themselves wielding such weapons.

In the 2000s, federal courts continue to revisit the scope and detail of the Second Amendment right to bear arms. In particular federal courts have recast much of the debate as one over whether the Second Amendment protects a “collective” right or an “individual” right to bear arms. If the Second Amendment protects only a collective right, then only states would have the power to bring a legal action to enforce it and only for the purpose of maintaining a “well-regulated militia.” If the Second Amendment protects only an individual right to bear arms, then only individuals could bring suit to challenge gun-control laws that curb their liberty to buy, sell, own, or possess firearms and other guns.

Not surprisingly, courts are conflicted over how to resolve this debate. In United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), the U.S. Court of Appeals for the Fifth Circuit found that the original intent of the Founding Fathers supported an individual-rights interpretation of the Second Amendment, while the Ninth Circuit came to the opposite conclusion in Nordyke v. King, 319 F.3d 1185 (9th Cir. 2003). Although no court has concluded that the original intent underlying the Second Amendment supports a claim for both an individual- and a collective rights based interpretation of the right to bear arms, the compelling historical arguments marshaled on both sides of the debate would suggest that another court faced with the same debate may reach such a conclusion.

Amar, Akhil Reed. 1992. “The Bill of Rights and the Fourteenth Amendment.” Yale Law Journal 101 (April).

Becker, Edward R. 1997. “The Second Amendment and Other Federal Constitutional Rights of the Private Militia.” Montana Law Review 58 (winter).

Bogus, Carl T., ed. 2000. The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms. New York: New Press.

Dolan, Edward F., and Margaret M. Scariano. 1994. Guns in the United States. New York: Watts.

Dunlap, Charles J., Jr. 1995. “Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment.” Tennessee Law Review 62 (spring).

Hanson, Freya Ottem. 1998. The Second Amendment: The Right to Own Guns. Springfield, N.J.: Enslow.

Hook, Donald D. 1992. Gun Control: The Continuing Debate. Washington, D.C.: Second Amendment Foundation.

Hoppin, Jason. 2003. “Ninth Circuit Upholds Controversial Ruling on Second Amendment.” Legal Intelligencer (May 8).

. 2003. “Second Amendment Fight Steals Show in Gun Ban Case: Panel Enters Fray over Individual Rights.” San Francisco Recorder (February 19).

McAffee, Thomas B. 1997. “Constitutional Limits on Regulating Private Militia Groups.” Montana Law Review 58 (winter).

Gun Control.

Link:

Second Amendment legal definition of Second Amendment

Second Amendment to the United States Constitution – Wikipedia

Part of the Bill of Rights

The Second Amendment (Amendment II) to the United States Constitution protects the right of the people to keep and bear arms and was adopted on December 15, 1791 as part of the Bill of Rights.[1][2][3][4]

In the 2008 Heller decision, the Supreme Court affirmed for the first time that the right belongs to individuals, exclusively for self-defense in the home,[5][6][7][8] while also including, as dicta, that the right is not unlimited and does not preclude the existence of certain long-standing prohibitions such as those forbidding “the possession of firearms by felons and the mentally ill” or restrictions on “the carrying of dangerous and unusual weapons.”[9][10] State and local governments are limited to the same extent as the federal government from infringing this right.[11]

The Second Amendment was based partially on the right to keep and bear arms in English common law and was influenced by the English Bill of Rights of 1689. Sir William Blackstone described this right as an auxiliary right, supporting the natural rights of self-defense and resistance to oppression, and the civic duty to act in concert in defense of the state.[12]

While both James Monroe and John Adams supported the Constitution being ratified, its most influential framer was James Madison. In Federalist No. 46, Madison wrote how a federal army could be kept in check by state militias, “a standing army … would be opposed [by] a militia.” He argued that state militias “would be able to repel the danger” of a federal army, “It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.” He contrasted the federal government of the United States to the European kingdoms, which he described as “afraid to trust the people with arms,” and assured that “the existence of subordinate governments … forms a barrier against the enterprises of ambition”.[13][14]

By January 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several amendments were proposed, but were not adopted at the time the Constitution was ratified. For example, the Pennsylvania convention debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to the Bill of Rights to assure ratification.

In United States v. Cruikshank (1876), the Supreme Court ruled that, “The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments [sic] means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.”[15] In United States v. Miller (1939), the Supreme Court ruled that the Second Amendment did not protect weapon types not having a “reasonable relationship to the preservation or efficiency of a well regulated militia.”[16][17]

In the twenty-first century, the amendment has been subjected to renewed academic inquiry and judicial interest.[17] In District of Columbia v. Heller (2008), the Supreme Court handed down a landmark decision that held the amendment protects an individual’s right to keep a gun for self-defense.[18][19] This was the first time the Court had ruled that the Second Amendment guarantees an individual’s right to own a gun.[20][21][19] In McDonald v. Chicago (2010), the Court clarified that the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment against state and local governments.[22] In Caetano v. Massachusetts (2016), the Supreme Court reiterated its earlier rulings that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” and that its protection is not limited to “only those weapons useful in warfare.”

The debate between various organizations regarding gun control and gun rights continues.[23]

Contents

There are several versions of the text of the Second Amendment, each with capitalization or punctuation differences. Differences exist between the drafted and ratified copies, the signed copies on display, and various published transcriptions.[24][25][26][27][28][29][30][31] The importance (or lack thereof) of these differences has been a source of debate regarding the meaning and interpretation of the amendment, particularly regarding the importance of the prefatory clause.[32][33]

One version was passed by the Congress, and a slightly different version was ratified.[a][34][35][36][37] As passed by the Congress and preserved in the National Archives, with the rest of the original handwritten copy of the Bill of Rights prepared by scribe William Lambert, the amendment says:[38]

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 amendment was ratified by the States and authenticated by Secretary of State Thomas Jefferson as:[39]

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 right to bear arms in English history is regarded in English law as a subordinate auxiliary right of the primary rights to personal security, personal liberty, and private property. According to Sir William Blackstone, “The … last auxiliary right of the subject … is that of having arms for their [defense], suitable to their condition and degree, and such as are allowed by law. Which is … declared by … statute, 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.”[b]

The English Bill of Rights of 1689 emerged from a tempestuous period in English politics during which two issues were major sources of conflict: the authority of the King to govern without the consent of Parliament, and the role of Catholics in a country that was becoming ever more Protestant. Ultimately, the Catholic JamesII was overthrown in the Glorious Revolution, and his successors, the Protestants WilliamIII and MaryII, accepted the conditions that were codified in the Bill. One of the issues the Bill resolved was the authority of the King to disarm his subjects, after King Charles II and JamesII had disarmed many Protestants that were “”suspected or knowne” of disliking the government,[40] and had argued with Parliament over his desire to maintain a standing (or permanent) army.[c] The bill states that it is acting to restore “ancient rights” trampled upon by JamesII, though some have argued that the English Bill of Rights created a new right to have arms, which developed out of a duty to have arms.[41] In District of Columbia v. Heller (2008), the Supreme Court did not accept this view, remarking that the English right at the time of the passing of the English Bill of Rights was “clearly an individual right, having nothing whatsoever to do with service in the militia” and that it was a right not to be disarmed by the Crown and was not the granting of a new right to have arms.[42]

The text of the English Bill of Rights of 1689 includes language protecting the right of Protestants against disarmament by the Crown. This document states: “That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.”[43] It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament.[44] Nevertheless, the English Bill of Rights remains an important constitutional document, more for enumerating the rights of Parliament over the monarchy than for its clause concerning a right to have arms.

The statement in the English Bill of Rights concerning the right to bear arms is often quoted only in the passage where it is written as above and not in its full context. In its full context it is clear that the bill was asserting the right of Protestant citizens not to be disarmed by the King without the consent of Parliament and was merely restoring rights to Protestants that the previous King briefly and unlawfully had removed. In its full context it reads:

Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome (list of grievances including) … by causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law, (Recital regarding the change of monarch) … thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors in like Case have usually done) for the Vindicating and Asserting their ancient Rights and Liberties, Declare (list of rights including) … That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.[43]

The historical link between the English Bill of Rights and the Second Amendment, which both codify an existing right and do not create a new one, has been acknowledged by the U.S. Supreme Court.[d][e]

The English Bill of Rights includes the proviso that arms must be as “allowed by law.” This has been the case before and after the passage of the Bill. While it did not override earlier restrictions on the ownership of guns for hunting, it is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments.[45]

There is some difference of opinion as to how revolutionary the events of 168889 actually were, and several commentators make the point that the provisions of the English Bill of Rights did not represent new laws, but rather stated existing rights. Mark Thompson wrote that, apart from determining the succession, the English Bill of Rights did “little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already posessed [sic].”[46] Before and after the English Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm.[47] In 1765, William Blackstone wrote the Commentaries on the Laws of England describing the right to have arms in England during the 18th century as a subordinate auxiliary right of the subject that was “also declared” in the English Bill of Rights.[48][49]

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 1 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.[50]

Although there is little doubt that the writers of the Second Amendment were heavily influenced by the English Bill of Rights, it is a matter of interpretation as to whether they were intent on preserving the power to regulate arms to the states over the federal government (as the English Parliament had reserved for itself against the monarch) or whether it was intent on creating a new right akin to the right of others written into the Constitution (as the Supreme Court decided in Heller). Some in the United States have preferred the “rights” argument arguing that the English Bill of Rights had granted a right. The need to have arms for self-defence was not really in question. Peoples all around the world since time immemorial had armed themselves for the protection of themselves and others, and as organized nations began to appear these arrangements had been extended to the protection of the state.[51] Without a regular army and police force (which in England was not established until 1829), it had been the duty of certain men to keep watch and ward at night and to confront and capture suspicious persons. Every subject had an obligation to protect the king’s peace and assist in the suppression of riots.[52]

Early English settlers in America viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes (in no particular order):[f][g][54][55][56][57][58][59]

Which of these considerations were thought of as most important and ultimately found expression in the Second Amendment is disputed. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776 asserted that, “the people have a right to bear arms for the defence of themselves and the state.”[66]

During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, including many who were loyal to British imperial rule. As defiance and opposition to British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists, known as Patriots, who favored independence from British rule. As a result, some Patriots created their own militias that excluded the Loyalists and then sought to stock independent armories for their militias. In response to this arms build up, the British Parliament established an embargo of firearms, parts and ammunition against the American colonies.[67] King George III also began disarming individuals who were in the most rebellious areas in the 1760’s and 70’s.[68]

British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, Blackstone’s summary of the Declaration of Rights, their own militia laws and common law rights to self-defense.[69] While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense.[69] Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars’ interpretation of Blackstone.[70]

The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 Boston objecting to the British army suppression of colonial opposition to the Townshend Acts:

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.[69]

Furthermore, one article from New York in 1769 stated: “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.”[71]

The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with regular French army and naval forces and various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist militia and Hessian mercenaries. Following the Revolution, the United States was governed by the Articles of Confederation. Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the standing army was reduced to as few as 80 men.[72] They considered it to be bad that there was no effective federal military crackdown on an armed tax rebellion in western Massachusetts known as Shays’ Rebellion.[73] Anti-federalists on the other hand took the side of limited government and sympathized with the rebels, many of whom were former Revolutionary War soldiers. Subsequently, the Constitutional Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.[74][75] Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power.[76]

Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that James 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.”[77] In contrast, historian Jack Rakove suggests that Madison’s intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed.[78]

One aspect of the gun control debate is the conflict between gun control laws and the right to rebel against unjust governments. Blackstone in his Commentaries alluded to this right to rebel as the natural right of resistance and self preservation, to be used only as a last resort, exercisable when “the sanctions of society and laws are found insufficient to restrain the violence of oppression”.[79] Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation,[80] as Alexander Hamilton explained in his Concerning the Militia essay published in 1788:

… it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defence of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the Government to form an army of any magnitude, that army can never be formidable to the liberties of the People, while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights, and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.[80][81]

Some scholars have said that it is wrong to read a right of armed insurrection in the Second Amendment because clearly the founding fathers sought to place trust in the power of the ordered liberty of democratic government versus the anarchy of insurrectionists.[82][83] Other writers, such as Glenn Reynolds, contend that the framers did believe in an individual right to armed insurrection. They cite examples, such as the Declaration of Independence (describing in 1776 “the Right of the People to … institute new Government”) and the Constitution of New Hampshire (stating in 1784 that “nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind”).[84]

There was an ongoing debate beginning in 1789 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 increasingly violent French Revolution.[85] A widespread fear, during the debates on ratifying the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens,[h] or prohibiting citizens from arming themselves.[69] Though it has been argued that the states lost the power to arm their citizens when the power to arm the militia was transferred from the states to the federal government by Article I, Section 8 of the Constitution, the individual right to arm was retained and strengthened by the Militia Acts of 1792 and the similar act of 1795.[86][87]

Note: On May 10, 1776, Congress passed a resolution recommending that any colony with a government that was not inclined toward independence should form one that was.[88]

Virginia’s Constitution lists the reasons for dissolving its ties with the King in the formation of its own independent state government. Including the following:

* These same reasons would later be outlined within the Declaration of Independence.

A Declaration of Rights. Section 13. 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; 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.[89]

Article 13. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the 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.[90]

IMPORTANT NOTE: This is the first instance in relationship to U.S. Constitutional Law of the phrase “right to bear arms.”

It is of relevance that Pennsylvania was a Quaker Colony traditionally opposed to bearing arms. “In settling Pennsylvania, William Penn had a great experiment in view, a ‘holy experiment,’ as he term[ed] it. This was no less than to test, on a scale of considerable magnitude, the practicability of founding and governing a State on the sure principles of the Christian religion; where the executive should be sustained without arms; where justice should be administered without oaths; and where real religion might flourish without the incubus of a hierarchical system.”[91] The Non-Quaker residents, many from the Western Counties, complained often and loudly of being denied the right to a common defense. By the time of the American Revolution, through what could be described as a revolution within a revolution, the pro-militia factions had gained ascendancy in the state’s government. And by a manipulation through the use of oaths, disqualifying Quaker members, they made up a vast majority of the convention forming the new state constitution; it was only natural that they would assert their efforts to form a compulsory State Militia in the context of a “right” to defend themselves and the state.[92]

Articles XXV-XXVII. 25. That a well-regulated militia is the proper and natural defence of a free government. 26. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature. 27. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.[93]

A Declaration of Rights. Article XVII. 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.[94]

Article XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth. And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.[95]

Chapter 1. Section XVIII. That the people have a right to bear arms for the defence of the themselves and the State; and as standing armies, in the 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.[96]

A Declaration of Rights. Chapter 1. Article XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.[97]

In March 1785, delegates from Virginia and Maryland assembled at the Mount Vernon Conference to fashion a remedy to the inefficiencies of the Articles of Confederation. The following year, at a meeting in Annapolis, Maryland, 12 delegates from five states (New Jersey, New York, Pennsylvania, Delaware, and Virginia) met and drew up a list of problems with the current government model. At its conclusion, the delegates scheduled a follow-up meeting in Philadelphia, Pennsylvania for May 1787 to present solutions to these problems, such as the absence of:[101][102]

It quickly became apparent that the solution to all three of these problems required shifting control of the states’ militias to the federal Congress and giving that congress the power to raise a standing army.[103] Article 1, Section 8 of the Constitution codified these changes by allowing the Congress to provide for the common defense and general welfare of the United States by doing the following:[104]

Some representatives mistrusted proposals to enlarge federal powers, because they were concerned about the inherent risks of centralizing power. Federalists, including James Madison, initially argued that a bill of rights was unnecessary, sufficiently confident that the federal government could never raise a standing army powerful enough to overcome a militia.[105] Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.[106][107] Anti-federalists, on the other hand, advocated amending the Constitution with clearly defined and enumerated rights providing more explicit constraints on the new government. Many Anti-federalists feared the new federal government would choose to disarm state militias. Federalists countered that in listing only certain rights, unlisted rights might lose protection. The Federalists realized there was insufficient support to ratify the Constitution without a bill of rights and so they promised to support amending the Constitution to add a bill of rights following the Constitution’s adoption. This compromise persuaded enough Anti-federalists to vote for the Constitution, allowing for ratification.[108] The Constitution was declared ratified on June21, 1788, when nine of the original thirteen states had ratified it. The remaining four states later followed suit, although the last two states, North Carolina and Rhode Island, ratified only after Congress had passed the Bill of Rights and sent it to the states for ratification.[109] James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June8, 1789, and was adopted on December15, 1791.

The debate surrounding the Constitution’s ratification is of practical importance, particularly to adherents of originalist and strict constructionist legal theories. In the context of such legal theories and elsewhere, it is important to understand the language of the Constitution in terms of what that language meant to the people who wrote and ratified the Constitution.[110]

The Second Amendment was relatively uncontroversial at the time of its ratification.[111] Robert Whitehill, a delegate from Pennsylvania, sought to clarify the draft Constitution with a bill of rights explicitly granting individuals the right to hunt on their own land in season,[112] though Whitehill’s language was never debated.[113]

There was substantial opposition to the new Constitution, because it moved the power to arm the state militias from the states to the federal government. This created a fear that the federal government, by neglecting the upkeep of the militia, could have overwhelming military force at its disposal through its power to maintain a standing army and navy, leading to a confrontation with the states, encroaching on the states’ reserved powers and even engaging in a military takeover. Article VI of the Articles of Confederation states:

In contrast, Article I, Section 8, Clause 16 of the U.S. Constitution states:

A foundation of American political thought during the Revolutionary period was concerned about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is “a chimerical idea to suppose that a country like this could ever be enslaved … Is it possible … that an army could be raised for the purpose of enslaving themselves or their brethren? Or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?”[117] Noah Webster similarly argued:

George Mason also argued the importance of the militia and right to bear arms by reminding his compatriots of England’s efforts “to disarm the people; that it was the best and most effectual way to enslave them … by totally disusing and neglecting the militia.” He also clarified that under prevailing practice the militia included all people, rich and poor. “Who are the militia? They consist now of the whole people, except a few public officers.” Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.[13][119]

Writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included “the right to keep and bear arms” in a list of basic “human rights”, which he proposed to be added to the Constitution.[120]

Patrick Henry argued in the Virginia ratification convention on June 5, 1788, for the dual rights to arms and resistance to oppression:

According to political commentator Thom Hartmann, the Virginians James Madison, Patrick Henry, and George Mason were concerned that “slave patrols,” organized groups of white men who enforced discipline upon enslaved African Americans, needed to remain armed and, therefore, the Constitution needed to clarify that states have the right to organize white men in such militias.[121] Also, Patrick Henry argued against the ratification of both the Constitution and the Second Amendment.[65] Most Southern white men aged1845 were required to serve on such patrols.

Legal historian Paul Finkelman disputes Hartmann’s claim that the Second Amendment was adopted to protect slave patrols, arguing that Hartmann’s claim is “factually incorrect and misleading” and that there is no historical evidence for this assertion.[65]

James Madison’s initial proposal for a bill of rights was brought to the floor of the House of Representatives on June 8, 1789, during the first session of Congress. The initial proposed passage relating to arms 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.[122]

On July 21, Madison again 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,[123] and the Bill of Rights entered committee for review. The committee returned to the House a reworded version of the Second Amendment on July 28.[124] 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.[125]

In late August 1789, the House debated and modified the Second Amendment. 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 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. However, the Senate scribe added a comma before “shall not be infringed” and changed the semicolon separating that phrase from the religious exemption portion to a comma:

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.[126]

By this time, the proposed right to keep and bear arms was in a separate amendment, instead of being in a single amendment together with other proposed rights such as the due process right. As a Representative explained, this change allowed each amendment to “be passed upon distinctly by the States.”[127] 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.[128]

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. A motion passed to replace the words “the best,” and insert in lieu thereof “necessary to the” .[129] The Senate then slightly modified the language to read as the fourth article and voted to return the Bill of Rights to the House. The final version by the Senate was amended to read as:

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 House voted on September 21, 1789 to accept the changes made by the Senate.

The enrolled original Joint Resolution passed by Congress on September 25, 1789, on permanent display in the Rotunda, reads as:

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.[130]

On December 15, 1791, the Bill of Rights (the first ten amendments to the Constitution) was adopted, having been ratified by three-fourths of the states, having been ratified as a group by all the fourteen states then in existence except Connecticut, Massachusetts, and Georgia which added ratifications in 1939.[131]

During the first two decades following the ratification of the Second Amendment, public opposition to standing armies, among Anti-Federalists and Federalists alike, persisted and manifested itself locally as a general reluctance to create a professional armed police force, instead relying on county sheriffs, constables and night watchmen to enforce local ordinances.[67] Though sometimes compensated, often these positions were unpaid held as a matter of civic duty. In these early decades, law enforcement officers were rarely armed with firearms, using billy clubs as their sole defensive weapons.[67] In serious emergencies, a posse comitatus, militia company, or group of vigilantes assumed law enforcement duties; these individuals were more likely than the local sheriff to be armed with firearms.[67]On May 8, 1792, Congress passed “[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States” requiring:

[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia … [and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.[132]

The act also gave specific instructions to domestic weapon manufacturers “that from and after five years from the passing of this act, muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound.”[132] In practice, private acquisition and maintenance of rifles and muskets meeting specifications and readily available for militia duty proved problematic; estimates of compliance ranged from 10 to 65percent.[133] Compliance with the enrollment provisions was also poor. In addition to the exemptions granted by the law for custom-house officers and their clerks, post-officers and stage drivers employed in the care and conveyance of U.S. mail, ferrymen, export inspectors, pilots, merchant mariners and those deployed at sea in active service; state legislatures granted numerous exemptions under Section2 of the Act, including exemptions for: clergy, conscientious objectors, teachers, students, and jurors. And though a number of able-bodied white men remained available for service, many simply did not show up for militia duty. Penalties for failure to appear were enforced sporadically and selectively.[134] None is mentioned in the legislation.[132]

The first test of the militia system occurred in July 1794, when a group of disaffected Pennsylvania farmers rebelled against federal tax collectors whom they viewed as illegitimate tools of tyrannical power.[135] Attempts by the four adjoining states to raise a militia for nationalization to suppress the insurrection proved inadequate. When officials resorted to drafting men, they faced bitter resistance. Forthcoming soldiers consisted primarily of draftees or paid substitutes as well as poor enlistees lured by enlistment bonuses. The officers, however, were of a higher quality, responding out of a sense of civic duty and patriotism, and generally critical of the rank and file.[67] Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.[67] In October, President George Washington and General Harry Lee marched on the 7,000rebels who conceded without fighting. The episode provoked criticism of the citizen militia and inspired calls for a universal militia. Secretary of War Henry Knox and Vice-President John Adams had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production.[67] Congress did subsequently pass “[a]n act for the erecting and repairing of Arsenals and Magazines” on April 2, 1794, two months prior to the insurrection.[136] Nevertheless, the militia continued to deteriorate and twenty years later, the militia’s poor condition contributed to several losses in the War of 1812, including the sacking of Washington, D.C., and the burning of the White House in 1814.[134]

In May of 1788, Richard Henry Lee wrote in Additional Letters From The Federal Farmer #169 or Letter XVIII regarding the definition of a “militia”:

A militia, when properly formed, are in fact the people themselves, and render regular troops in a great measure unnecessary.

In June of 1788, George Mason addressed the Virginia Ratifying Convention regarding a “militia:”

A worthy member has asked, who are the militia, if they be not the people, of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c. by our representation? I ask who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government all ranks of people are subject to militia duty.

In 1792, Tench Coxe made the following point in a commentary on the Second Amendment:[137]

As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.[138][139]

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 published in 1803.[140][141] Tucker wrote:

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. Amendments to C. U. S. Art. 4. This may be considered as the true palladium of liberty … The right of self defence is the first law of nature: In most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. 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.[142]

In footnotes 40 and 41 of the Commentaries, Tucker stated that the right to bear arms under the Second Amendment was not subject to the restrictions that were part of English law: “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.” Blackstone himself also commented on English game laws, 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.”[140] Blackstone discussed the right of self-defense in a separate section of his treatise on the common law of crimes. Tucker’s annotations for that latter section did not mention the Second Amendment but cited the standard works of English jurists such as Hawkins.[i]

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.”[140]

Tucker’s commentary was soon followed, in 1825, by that of William Rawle in his landmark text, A View of the Constitution of the United States of America. Like Tucker, Rawle condemned England’s “arbitrary code for the preservation of game,” portraying that country as one that “boasts so much of its freedom,” yet provides a right to “protestant subjects only” that it “cautiously describ[es] to be that of bearing arms for their defence” and reserves for “[a] very small proportion of the people[.]”[143] In contrast, Rawle characterizes the second clause of the Second Amendment, which he calls the corollary clause, as a general prohibition against such capricious abuse of government power, declaring bluntly:

No clause could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[144]

Speaking of the Second Amendment generally, Rawle said:[j]

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[j][145]

Rawle, long before the concept of incorporation was formally recognized by the courts, or Congress drafted the Fourteenth Amendment, contended that citizens could appeal to the Second Amendment should either the state or federal government attempt to disarm them. He did warn, however, that “this right [to bear arms] ought not … be abused to the disturbance of the public peace” and, paraphrasing Coke, observed: “An assemblage of persons with arms, for unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace.”[143]

Joseph Story articulated in his influential Commentaries on the Constitution[146] the orthodox view of the Second Amendment, which he viewed as the amendment’s clear meaning:

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 usurpations and arbitrary power of rulers; and it 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 burdens, 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.[k][147]

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Second Amendment to the United States Constitution – Wikipedia

Amendment II – The United States Constitution

The right to keep and bear arms is a lot like the right to freedom of speech. In each case, the Constitution expressly protects a liberty that needs to be insulated from the ordinary political process. Neither right, however, is absolute. The First Amendment, for example, has never protected perjury, fraud, or countless other crimes that are committed through the use of speech. Similarly, no reasonable person could believe that violent criminals should have unrestricted access to guns, or that any individual should possess a nuclear weapon.

Inevitably, courts must draw lines, allowing government to carry out its duty to preserve an orderly society, without unduly infringing the legitimate interests of individuals in expressing their thoughts and protecting themselves from criminal violence. This is not a precise science or one that will ever be free from controversy.

One judicial approach, however, should be unequivocally rejected. During the nineteenth century, courts routinely refused to invalidate restrictions on free speech that struck the judges as reasonable. This meant that speech got virtually no judicial protection. Government suppression of speech can usually be thought to serve some reasonable purpose, such as reducing social discord or promoting healthy morals. Similarly, most gun control laws can be viewed as efforts to save lives and prevent crime, which are perfectly reasonable goals. If thats enough to justify infringements on individual liberty, neither constitutional guarantee means much of anything.

During the twentieth century, the Supreme Court finally started taking the First Amendment seriously. Today, individual freedom is generally protected unless the government can make a strong case that it has a real need to suppress speech or expressive conduct, and that its regulations are tailored to that need. The legal doctrines have become quite complex, and there is room for disagreement about many of the Courts specific decisions. Taken as a whole, however, this body of case law shows what the Court can do when it appreciates the value of an individual right enshrined in the Constitution.

This essay is part of a discussion about the Second Amendment with Adam Winkler, Professor of Law, UCLA School of Law. Read the full discussion here.

The Second Amendment also raises issues about which reasonable people can disagree. But if the Supreme Court takes this provision of the Constitution as seriously as it now takes the First Amendment, which it should do, there will be some easy issues as well.

District of Columbia v. Heller (2008) is one example. The right of the people protected by the Second Amendment is an individual right, just like the right[s] of the people protected by the First and Fourth Amendments. The Constitution does not say that the Second Amendment protects a right of the states or a right of the militia, and nobody offered such an interpretation during the Founding era. Abundant historical evidence indicates that the Second Amendment was meant to leave citizens with the ability to defend themselves against unlawful violence. Such threats might come from usurpers of governmental power, but they might also come from criminals whom the government is unwilling or unable to control.

McDonald v. City of Chicago (2010) was also an easy case under the Courts precedents. Most other provisions of the Bill of Rights had already been applied to the states because they are deeply rooted in this Nations history and tradition. The right to keep and bear arms clearly meets this test.

The text of the Constitution expressly guarantees the right to bear arms, not just the right to keep them. The courts should invalidate regulations that prevent law-abiding citizens from carrying weapons in public, where the vast majority of violent crimes occur. First Amendment rights are not confined to the home, and neither are those protected by the Second Amendment.

Nor should the government be allowed to create burdensome bureaucratic obstacles designed to frustrate the exercise of Second Amendment rights. The courts are vigilant in preventing government from evading the First Amendment through regulations that indirectly abridge free speech rights by making them difficult to exercise. Courts should exercise the same vigilance in protecting Second Amendment rights.

Some other regulations that may appear innocuous should be struck down because they are little more than political stunts. Popular bans on so-called assault rifles, for example, define this class of guns in terms of cosmetic features, leaving functionally identical semi-automatic rifles to circulate freely. This is unconstitutional for the same reason that it would violate the First Amendment to ban words that have a French etymology, or to require that French fries be called freedom fries.

In most American states, including many with large urban population centers, responsible adults have easy access to ordinary firearms, and they are permitted to carry them in public. Experience has shown that these policies do not lead to increased levels of violence. Criminals pay no more attention to gun control regulations than they do to laws against murder, rape, and robbery. Armed citizens, however, prevent countless crimes and have saved many lives. Whats more, the most vulnerable peopleincluding women, the elderly, and those who live in high crime neighborhoodsare among the greatest beneficiaries of the Second Amendment. If the courts require the remaining jurisdictions to stop infringing on the constitutional right to keep and bear arms, their citizens will be more free and probably safer as well.

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Amendment II – The United States Constitution

Second Amendment legal definition of Second Amendment

The Second Amendment to the U.S. Constitution reads:

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

The subject matter and unusual phrasing of this amendment led to much controversy and analysis, especially in the last half of the twentieth century. Nevertheless, the meaning and scope of the amendment have long been decided by the Supreme Court.

Firearms played an important part in the colonization of America. In the seventeenth and eighteenth centuries, European colonists relied heavily on firearms to take land away from Native Americans and repel attacks by Native Americans and Europeans. Around the time of the Revolutionary War, male citizens were required to own firearms for fighting against the British forces. Firearms were also used in hunting.

In June 1776, one month before the signing of the Declaration of Independence, Virginia became the first colony to adopt a state constitution. In this document, the state of Virginia pronounced 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.” After the colonies declared their independence from England, other states began to include the right to bear arms in their constitution. Pennsylvania, for example, declared that

the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the 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.

The wording of clauses about bearing arms in late-eighteenth-century state constitutions varied. Some states asserted that bearing arms was a “right” of the people, whereas others called it a “duty” of every able-bodied man in the defense of society.

Pennsylvania was not alone in its express discouragement of a standing (professional) army. Many of the Framers of the U.S. Constitution rejected standing armies, preferring instead the model of a citizen army, equipped with weapons and prepared for defense. According to Framers such as Elbridge Gerry of Massachusetts and George Mason of Virginia a standing army was susceptible to tyrannical use by a power-hungry government.

At the first session of Congress in March 1789, the Second Amendment was submitted as a counterweight to the federal powers of Congress and the president. According to constitutional theorists, the Framers who feared a central government extracted the amendment as a compromise from those in favor of centralized authority over the states. The Revolutionary War had, after all, been fought in large part by a citizen army against the standing armies of England.

The precise wording of the amendment was changed two times before the U.S. Senate finally cast it in its present form. As with many of the amendments, the exact wording proved critical to its interpretation.

In 1791 a majority of states ratified the Bill of Rights, which included the Second Amendment. In its final form, the amendment presented a challenge to interpreters. It was the only amendment with an opening clause that appeared to state its purpose. The amendment even had defective punctuation; the comma before shall seemed grammatically unnecessary.

Legal scholars do not agree about this comma. Some have argued that it was intentional and that it was intended to make militia the subject of the sentence. According to these theorists, the operative words of the amendment are “[a] well regulated Militia shall not be infringed.” Others have argued that the comma was a mistake, and that the operative words of the sentence are “the right of the people to bear arms shall not be infringed.” Under this reading, the first part of the sentence is the rationale for the absolute, personal right of the people to own firearms. Indeed, the historical backdrophighlighted by a general disdain for professional armieswould seem to support this theory.

Some observers argue further that the Second Amendment grants the right of insurrection. According to these theorists, the Second Amendment was designed to allow citizens to rebel against the government. Thomas Jefferson is quoted as saying that “a little rebellion every now and then is a good thing.”

The Supreme Court makes the ultimate determination of the Constitution’s meaning, and it has defined the amendment as simply granting to the states the right to maintain a militia separate from federally controlled militias. This interpretation first came in United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1875). In Cruikshank, approximately one hundred persons were tried jointly in a Louisiana federal court with felonies in connection with an April 13, 1873, assault on two AfricanAmerican men. One of the criminal counts charged that the mob intended to hinder the right of the two men to bear arms. The defendants were convicted by a jury, but the circuit court arrested the judgment, effectively overturning the verdict. In affirming that decision, the Supreme Court declared that “the second amendment means no more than that [the right to bear arms] shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government.”

In Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886), Herman Presser was charged in Illinois state court with parading and drilling an unauthorized militia in the streets of Chicago in December 1879, in violation of certain sections of the Illinois Military Code. One of the sections in question prohibited the organization, drilling, operation, and parading of militias other than U.S. troops or the regular organized volunteer militia of the state. Presser was tried by the judge, convicted, and ordered to pay a fine of $10. On appeal to the U.S. Supreme Court, Presser argued, in part, that the charges violated his Second Amendment right to bear arms. The Court disagreed and upheld Presser’s conviction. The Court cited Cruikshank for the proposition that the Second Amendment means only that the federal government may not infringe on the right of states to form their own militias. This meant that the Illinois state law forbidding citizen militias was not unconstitutional. However, in its opinion, the Court in Presser delivered a reading of the Second Amendment that seemed to suggest an absolute right of persons to bear arms: “It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States,” and “states cannot prohibit the people from keeping and bearing arms.”

Despite this generous language, the Court refused to incorporate the Second Amendment into the Fourteenth Amendment. Under the first section of the Fourteenth Amendment, passed in 1868, states may not abridge the Privileges and Immunities of citizens of the United States. The privileges and immunities of citizens are listed in the Bill of Rights, of which the Second Amendment is part. Presser had argued that states may not, by virtue of the Fourteenth Amendment, abridge the right to bear arms. The Court refused to accept the argument that the right to bear arms is a personal right of the people. According to the Court, “The right to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship.”

The Presser opinion is best understood in its historical context. The Northern states and the federal government had just fought the Civil War against Southern militias unauthorized by the federal government. After this ordeal, the Supreme Court was in no mood to accept an expansive right to bear arms. At the same time, the Court was sensitive to the subject of federal encroachment on States’ Rights.

Private militias are armed military groups that are composed of private citizens and not recognized by federal or state governments. Private militias have been formed by individuals in America since the colonial period. In fact, the Revolutionary War against England was fought in part by armies comprising not professional soldiers but ordinary male citizens.

Approximately half the states maintain laws regulating private militias. Generally, these laws prohibit the parading and exercising of armed private militias in public, but do not forbid the formation of private militias. In Wyoming, however, state law forbids the very formation of private militias. Under section 19-1-106 of the Wyoming Statutes, “No body of men other than the regularly organized national guard or the troops of the United States shall associate themselves together as a military company or organization, or parade in public with arms without license of the governor.” The Wyoming law also prohibits the public funding of private militias. Anyone convicted of violating the provisions of the law is subject to a fine of not more than $1,000, imprisonment of six months, or both, for each offense.

In states that do not outlaw them, private militias are limited only by the criminal laws applicable to all of society. Thus, if an armed private militia seeks to parade and exercise in a public area, its members will be subject to arrest on a variety of laws, including disturbing-the-peace, firearms, or even riot statutes.

Many private militias are driven by the insurrection theory of the Second Amendment. Under this view, the Second Amendment grants an unconditional right to bear arms for Self-Defense and for rebellion against a tyrannical governmentwhen a government turns oppressive, private citizens have a duty to “insurrect,” or take up arms against it.

The U.S. Supreme Court has issued a qualified rejection of the insurrection theory. According to the Court in Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951), “[W]hatever theoretical merit there may be to the argument that there is a ‘right’ to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.” Scholars have interpreted this to mean that as long as the government provides for free elections and trials by jury, private citizens have no right to take up arms against the government.

Some people have disagreed with the Supreme Court’s definition of tyranny. Many of these people label the state and federal governments as tyrannical based on issues such as taxes and government regulations. Others cite governments ponsored racial and ethnic Integration as driving forces in their campaign against the federal and state governments. Many of these critics have formed private militias designed to resist perceived government oppression.

Some private militias have formed their own government. The legal problems of these private militias are generally unrelated to military activities. Instead, any criminal charges usually arise from activities associated with their political beliefs. The Freemen of Montana is one such militia. This group denied the legitimacy of the federal government and created its own township called Justus. The Freemen established its own court system, posted bounties for the arrest of police officers and judges, and held seminars on how to challenge laws its members viewed as beyond the scope of the Constitution. According to neighbors, the group also established its own common-law court system and built its own jail for the imprisonment of trespassers and government workers, or “public hirelings.”

In the 1990s, the Freemen came to the attention of federal prosecutors after members of the group allegedly wrote worthless checks and money orders to pay taxes and to defraud banks and credit card companies. One Freeman had also allegedly threatened a federal judge, and some had allegedly refused to pay taxes for at least a decade.

In March 1996, law enforcement officials obtained warrants for the arrest of many of the Freemen. However, remembering the violence that occurred when officials attempted to serve arrest warrants on another armed group in Waco, Texas, in 1993, law enforcement authorities did not invade the Freemen’s 960-acre ranch in Jordan, Montana. Although the Freemen constituted an armed challenge to all government authority, its beliefs and its military activities were not illegal, and most of its members were charged with nonviolent crimes, such as Fraud and related conspiracy. Two men were also charged with threatening public officials. In addition, several Freemen faced charges of criminal syndicalism, which is the advocacy of violence for political goals.

Amar, Akhil Reed. 2002. “Second Thoughts.” Law and Contemporary Problems 65 (spring).

Barry, Monica Sue. 1996. “Stockpiling Weapons: Can Private Militias Receive Protection under the First and Second Amendments?” Thomas Jefferson Law Review 18 (spring).

Hardaway, Robert, Elizabeth Gormley, and Bryan Taylor. 2002. “The Inconvenient Militia Clause of the Second Amendment: Why the Supreme Court Declines to Resolve the Debate over the Right to Bear Arms.” St. John’s Journal of Legal Commentary 16 (winter).

Dennis v. United States.

Several decades later, the Supreme Court ignored the contradictory language in Presser and cemented a limited reading of the Second Amendment. In United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939), defendants Jack Miller and Frank Layton were charged in federal court with unlawful transportation of firearms in violation of certain sections of the National Firearms Act of June 26, 1934 (ch. 757, 48 Stat. 12361240 [26 U.S.C.A. 1132 et seq.]). Specifically, Miller and Layton had transported shotguns with barrels less than 18 inches long, without the registration required under the act.

The district court dismissed the indictment, holding that the act violated the Second Amendment. The United States appealed. The Supreme Court reversed the decision and sent the case back to the trial court. The Supreme Court stated that the Second Amendment was fashioned “to assure the continuation and render possible the effectiveness of militia forces.”

The Miller opinion confirmed the restrictive language of Presser and solidified a narrow reading of the Second Amendment. According to the Court in Miller, the Second Amendment does not guarantee the right to own a firearm unless the possession or use of the firearm has “a reasonable relationship to the preservation or efficiency of a well regulated militia.”

The legislative measures that inspire most Second Amendment discussions are Gun Control laws. Since the mid-nineteenth century, state legislatures have been passing laws that infringe a perceived right to bear arms. Congress has also asserted the power to regulate firearms. No law regulating firearms has ever been struck down by the Supreme Court as a violation of the Second Amendment.

Historically, the academic community has largely ignored the Second Amendment. However, gun control laws have turned many laypersons into scholars of the Second Amendment’s history. The arguments for a broader interpretation are many and varied. Most center on the Original Intent of the Framers. Some emphasize that the Second Amendment should be interpreted as granting an unconditional personal right to bear arms for defensive and sporting purposes. Others adhere to an insurrection theory, under which the Second Amendment not only grants the personal right to bear arms, it gives citizens the right to rebel against a government perceived as tyrannical.

In response to these arguments, supporters of the prevailing Second Amendment interpretation maintain that any right to bear arms should be secondary to concerns for public safety. They also point out that other provisions in the Constitution grant power to Congress to quell insurrections, thus contradicting the insurrection theory. Lastly, they argue that the Constitution should be interpreted in accordance with a changing society and that the destructive capability of semiautomatic and automatic firearms was not envisioned by the Framers.

In response to the last argument, critics maintain that because such firearms exist, it should be legal to use them against violent criminals who are themselves wielding such weapons.

In the 2000s, federal courts continue to revisit the scope and detail of the Second Amendment right to bear arms. In particular federal courts have recast much of the debate as one over whether the Second Amendment protects a “collective” right or an “individual” right to bear arms. If the Second Amendment protects only a collective right, then only states would have the power to bring a legal action to enforce it and only for the purpose of maintaining a “well-regulated militia.” If the Second Amendment protects only an individual right to bear arms, then only individuals could bring suit to challenge gun-control laws that curb their liberty to buy, sell, own, or possess firearms and other guns.

Not surprisingly, courts are conflicted over how to resolve this debate. In United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), the U.S. Court of Appeals for the Fifth Circuit found that the original intent of the Founding Fathers supported an individual-rights interpretation of the Second Amendment, while the Ninth Circuit came to the opposite conclusion in Nordyke v. King, 319 F.3d 1185 (9th Cir. 2003). Although no court has concluded that the original intent underlying the Second Amendment supports a claim for both an individual- and a collective rights based interpretation of the right to bear arms, the compelling historical arguments marshaled on both sides of the debate would suggest that another court faced with the same debate may reach such a conclusion.

Amar, Akhil Reed. 1992. “The Bill of Rights and the Fourteenth Amendment.” Yale Law Journal 101 (April).

Becker, Edward R. 1997. “The Second Amendment and Other Federal Constitutional Rights of the Private Militia.” Montana Law Review 58 (winter).

Bogus, Carl T., ed. 2000. The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms. New York: New Press.

Dolan, Edward F., and Margaret M. Scariano. 1994. Guns in the United States. New York: Watts.

Dunlap, Charles J., Jr. 1995. “Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment.” Tennessee Law Review 62 (spring).

Hanson, Freya Ottem. 1998. The Second Amendment: The Right to Own Guns. Springfield, N.J.: Enslow.

Hook, Donald D. 1992. Gun Control: The Continuing Debate. Washington, D.C.: Second Amendment Foundation.

Hoppin, Jason. 2003. “Ninth Circuit Upholds Controversial Ruling on Second Amendment.” Legal Intelligencer (May 8).

. 2003. “Second Amendment Fight Steals Show in Gun Ban Case: Panel Enters Fray over Individual Rights.” San Francisco Recorder (February 19).

McAffee, Thomas B. 1997. “Constitutional Limits on Regulating Private Militia Groups.” Montana Law Review 58 (winter).

Gun Control.

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Second Amendment to the United States Constitution – Wikipedia

Part of the Bill of Rights

The Second Amendment (Amendment II) to the United States Constitution protects the right of the people to keep and bear arms and was adopted on December 15, 1791 as part of the Bill of Rights.[1][2][3][4]

The Supreme Court ruled in the 2008 Heller decision that the right belongs to individuals for self-defense[5][6][7] while also including, as dicta, that the right is not unlimited and does not preclude the existence of certain long-standing prohibitions such as those forbidding “the possession of firearms by felons and the mentally ill” or restrictions on “the carrying of dangerous and unusual weapons.”[8][9] State and local governments are limited to the same extent as the federal government from infringing this right.[10]

The Second Amendment was based partially on the right to keep and bear arms in English common law and was influenced by the English Bill of Rights of 1689. Sir William Blackstone described this right as an auxiliary right, supporting the natural rights of self-defense and resistance to oppression, and the civic duty to act in concert in defense of the state.[11]

While both James Monroe and John Adams supported the Constitution being ratified, its most influential framer was James Madison. In Federalist No. 46, Madison wrote how a federal army could be kept in check by state militias, “a standing army … would be opposed [by] a militia.” He argued that state militias “would be able to repel the danger” of a federal army, “It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.” He contrasted the federal government of the United States to the European kingdoms, which he described as “afraid to trust the people with arms,” and assured that “the existence of subordinate governments … forms a barrier against the enterprises of ambition”.[12][13]

By January 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several amendments were proposed, but were not adopted at the time the Constitution was ratified. For example, the Pennsylvania convention debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to the Bill of Rights to assure ratification.

In United States v. Cruikshank (1876), the Supreme Court ruled that, “The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments [sic] means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.”[14] In United States v. Miller (1939), the Supreme Court ruled that the Second Amendment did not protect weapon types not having a “reasonable relationship to the preservation or efficiency of a well regulated militia.”[15][16]

In the twenty-first century, the amendment has been subjected to renewed academic inquiry and judicial interest.[16] In District of Columbia v. Heller (2008), the Supreme Court handed down a landmark decision that held the amendment protects an individual’s right to keep a gun for self-defense.[17][18] This was the first time the Court had ruled that the Second Amendment guarantees an individual’s right to own a gun.[19][20][18] In McDonald v. Chicago (2010), the Court clarified that the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment against state and local governments.[21] In Caetano v. Massachusetts (2016), the Supreme Court reiterated its earlier rulings that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” and that its protection is not limited to “only those weapons useful in warfare.”

The debate between various organizations regarding gun control and gun rights continues.[22]

Contents

There are several versions of the text of the Second Amendment, each with capitalization or punctuation differences. Differences exist between the drafted and ratified copies, the signed copies on display, and various published transcriptions.[23][24][25][26][27][28][29][30] The importance (or lack thereof) of these differences has been a source of debate regarding the meaning and interpretation of the amendment, particularly regarding the importance of the prefatory clause.[31][32]

One version was passed by the Congress, and a slightly different version was ratified.[a][33][34][35][36] As passed by the Congress and preserved in the National Archives, with the rest of the original handwritten copy of the Bill of Rights prepared by scribe William Lambert, the amendment says:[37]

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 amendment was ratified by the States and authenticated by Secretary of State Thomas Jefferson as:[38]

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 right to bear arms in English history is regarded in English law as a subordinate auxiliary right of the primary rights to personal security, personal liberty, and private property. According to Sir William Blackstone, “The … last auxiliary right of the subject … is that of having arms for their [defense], suitable to their condition and degree, and such as are allowed by law. Which is … declared by … statute, 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.”[b]

The English Bill of Rights of 1689 emerged from a tempestuous period in English politics during which two issues were major sources of conflict: the authority of the King to govern without the consent of Parliament, and the role of Catholics in a country that was becoming ever more Protestant. Ultimately, the Catholic JamesII was overthrown in the Glorious Revolution, and his successors, the Protestants WilliamIII and MaryII, accepted the conditions that were codified in the Bill. One of the issues the Bill resolved was the authority of the King to disarm his subjects, after King Charles II and JamesII had disarmed many Protestants that were “”suspected or knowne” of disliking the government,[39] and had argued with Parliament over his desire to maintain a standing (or permanent) army.[c] The bill states that it is acting to restore “ancient rights” trampled upon by JamesII, though some have argued that the English Bill of Rights created a new right to have arms, which developed out of a duty to have arms.[40] In District of Columbia v. Heller (2008), the Supreme Court did not accept this view, remarking that the English right at the time of the passing of the English Bill of Rights was “clearly an individual right, having nothing whatsoever to do with service in the militia” and that it was a right not to be disarmed by the Crown and was not the granting of a new right to have arms.[41]

The text of the English Bill of Rights of 1689 includes language protecting the right of Protestants against disarmament by the Crown. This document states: “That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.”[42] It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament.[43] Nevertheless, the English Bill of Rights remains an important constitutional document, more for enumerating the rights of Parliament over the monarchy than for its clause concerning a right to have arms.

The statement in the English Bill of Rights concerning the right to bear arms is often quoted only in the passage where it is written as above and not in its full context. In its full context it is clear that the bill was asserting the right of Protestant citizens not to be disarmed by the King without the consent of Parliament and was merely restoring rights to Protestants that the previous King briefly and unlawfully had removed. In its full context it reads:

Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome (list of grievances including) … by causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law, (Recital regarding the change of monarch) … thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors in like Case have usually done) for the Vindicating and Asserting their ancient Rights and Liberties, Declare (list of rights including) … That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.[42]

The historical link between the English Bill of Rights and the Second Amendment, which both codify an existing right and do not create a new one, has been acknowledged by the U.S. Supreme Court.[d][e]

The English Bill of Rights includes the proviso that arms must be as “allowed by law.” This has been the case before and after the passage of the Bill. While it did not override earlier restrictions on the ownership of guns for hunting, it is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments.[44]

There is some difference of opinion as to how revolutionary the events of 168889 actually were, and several commentators make the point that the provisions of the English Bill of Rights did not represent new laws, but rather stated existing rights. Mark Thompson wrote that, apart from determining the succession, the English Bill of Rights did “little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already posessed [sic].”[45] Before and after the English Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm.[46] In 1765, William Blackstone wrote the Commentaries on the Laws of England describing the right to have arms in England during the 18th century as a subordinate auxiliary right of the subject that was “also declared” in the English Bill of Rights.[47][48]

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 1 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.[49]

Although there is little doubt that the writers of the Second Amendment were heavily influenced by the English Bill of Rights, it is a matter of interpretation as to whether they were intent on preserving the power to regulate arms to the states over the federal government (as the English Parliament had reserved for itself against the monarch) or whether it was intent on creating a new right akin to the right of others written into the Constitution (as the Supreme Court decided in Heller). Some in the United States have preferred the “rights” argument arguing that the English Bill of Rights had granted a right. The need to have arms for self-defence was not really in question. Peoples all around the world since time immemorial had armed themselves for the protection of themselves and others, and as organized nations began to appear these arrangements had been extended to the protection of the state.[50] Without a regular army and police force (which in England was not established until 1829), it had been the duty of certain men to keep watch and ward at night and to confront and capture suspicious persons. Every subject had an obligation to protect the king’s peace and assist in the suppression of riots.[51]

Early English settlers in America viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes (in no particular order):[f][g][53][54][55][56][57][58]

Which of these considerations were thought of as most important and ultimately found expression in the Second Amendment is disputed. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776 asserted that, “the people have a right to bear arms for the defence of themselves and the state.”[65]

During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, including many who were loyal to British imperial rule. As defiance and opposition to British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists, known as Patriots, who favored independence from British rule. As a result, some Patriots created their own militias that excluded the Loyalists and then sought to stock independent armories for their militias. In response to this arms build up, the British Parliament established an embargo of firearms, parts and ammunition against the American colonies.[66] King George III also began disarming individuals who were in the most rebellious areas in the 1760’s and 70’s.[67]

British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, Blackstone’s summary of the Declaration of Rights, their own militia laws and common law rights to self-defense.[68] While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense.[68] Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars’ interpretation of Blackstone.[69]

The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 Boston objecting to the British army suppression of colonial opposition to the Townshend Acts:

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.[68]

Furthermore, one article from New York in 1769 stated: “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.”[70]

The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with regular French army and naval forces and various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist militia and Hessian mercenaries. Following the Revolution, the United States was governed by the Articles of Confederation. Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the standing army was reduced to as few as 80 men.[71] They considered it to be bad that there was no effective federal military crackdown on an armed tax rebellion in western Massachusetts known as Shays’ Rebellion.[72] Anti-federalists on the other hand took the side of limited government and sympathized with the rebels, many of whom were former Revolutionary War soldiers. Subsequently, the Constitutional Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.[73][74] Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power.[75]

Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that James 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.”[76] In contrast, historian Jack Rakove suggests that Madison’s intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed.[77]

One aspect of the gun control debate is the conflict between gun control laws and the right to rebel against unjust governments. Blackstone in his Commentaries alluded to this right to rebel as the natural right of resistance and self preservation, to be used only as a last resort, exercisable when “the sanctions of society and laws are found insufficient to restrain the violence of oppression”.[78] Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation,[79] as Alexander Hamilton explained in his Concerning the Militia essay published in 1788:

… it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defence of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the Government to form an army of any magnitude, that army can never be formidable to the liberties of the People, while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights, and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.[79][80]

Some scholars have said that it is wrong to read a right of armed insurrection in the Second Amendment because clearly the founding fathers sought to place trust in the power of the ordered liberty of democratic government versus the anarchy of insurrectionists.[81][82] Other writers, such as Glenn Reynolds, contend that the framers did believe in an individual right to armed insurrection. They cite examples, such as the Declaration of Independence (describing in 1776 “the Right of the People to … institute new Government”) and the Constitution of New Hampshire (stating in 1784 that “nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind”).[83]

There was an ongoing debate beginning in 1789 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 increasingly violent French Revolution.[84] A widespread fear, during the debates on ratifying the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens,[h] or prohibiting citizens from arming themselves.[68] Though it has been argued that the states lost the power to arm their citizens when the power to arm the militia was transferred from the states to the federal government by Article I, Section 8 of the Constitution, the individual right to arm was retained and strengthened by the Militia Acts of 1792 and the similar act of 1795.[85][86]

Note: On May 10, 1776, Congress passed a resolution recommending that any colony with a government that was not inclined toward independence should form one that was.[87]

Virginia’s Constitution lists the reasons for dissolving its ties with the King in the formation of its own independent state government. Including the following:

* These same reasons would later be outlined within the Declaration of Independence.

A Declaration of Rights. Section 13. 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; 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.[88]

Article 13. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the 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.[89]

IMPORTANT NOTE: This is the first instance in relationship to U.S. Constitutional Law of the phrase “right to bear arms.”

It is of relevance that Pennsylvania was a Quaker Colony traditionally opposed to bearing arms. “In settling Pennsylvania, William Penn had a great experiment in view, a ‘holy experiment,’ as he term[ed] it. This was no less than to test, on a scale of considerable magnitude, the practicability of founding and governing a State on the sure principles of the Christian religion; where the executive should be sustained without arms; where justice should be administered without oaths; and where real religion might flourish without the incubus of a hierarchical system.”[90] The Non-Quaker residents, many from the Western Counties, complained often and loudly of being denied the right to a common defense. By the time of the American Revolution, through what could be described as a revolution within a revolution, the pro-militia factions had gained ascendancy in the state’s government. And by a manipulation through the use of oaths, disqualifying Quaker members, they made up a vast majority of the convention forming the new state constitution; it was only natural that they would assert their efforts to form a compulsory State Militia in the context of a “right” to defend themselves and the state.[91]

Articles XXV-XXVII. 25. That a well-regulated militia is the proper and natural defence of a free government. 26. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature. 27. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.[92]

A Declaration of Rights. Article XVII. 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.[93]

Article XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth. And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.[94]

Chapter 1. Section XVIII. That the people have a right to bear arms for the defence of the themselves and the State; and as standing armies, in the 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.[95]

A Declaration of Rights. Chapter 1. Article XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.[96]

In March 1785, delegates from Virginia and Maryland assembled at the Mount Vernon Conference to fashion a remedy to the inefficiencies of the Articles of Confederation. The following year, at a meeting in Annapolis, Maryland, 12 delegates from five states (New Jersey, New York, Pennsylvania, Delaware, and Virginia) met and drew up a list of problems with the current government model. At its conclusion, the delegates scheduled a follow-up meeting in Philadelphia, Pennsylvania for May 1787 to present solutions to these problems, such as the absence of:[100][101]

It quickly became apparent that the solution to all three of these problems required shifting control of the states’ militias to the federal congress and giving that congress the power to raise a standing army.[102] Article 1, Section 8 of the Constitution codified these changes by allowing the Congress to provide for the common defense and general welfare of the United States by doing the following:[103]

Some representatives mistrusted proposals to enlarge federal powers, because they were concerned about the inherent risks of centralizing power. Federalists, including James Madison, initially argued that a bill of rights was unnecessary, sufficiently confident that the federal government could never raise a standing army powerful enough to overcome a militia.[104] Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.[105][106] Anti-federalists, on the other hand, advocated amending the Constitution with clearly defined and enumerated rights providing more explicit constraints on the new government. Many Anti-federalists feared the new federal government would choose to disarm state militias. Federalists countered that in listing only certain rights, unlisted rights might lose protection. The Federalists realized there was insufficient support to ratify the Constitution without a bill of rights and so they promised to support amending the Constitution to add a bill of rights following the Constitution’s adoption. This compromise persuaded enough Anti-federalists to vote for the Constitution, allowing for ratification.[107] The Constitution was declared ratified on June21, 1788, when nine of the original thirteen states had ratified it. The remaining four states later followed suit, although the last two states, North Carolina and Rhode Island, ratified only after Congress had passed the Bill of Rights and sent it to the states for ratification.[108] James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June8, 1789, and was adopted on December15, 1791.

The debate surrounding the Constitution’s ratification is of practical importance, particularly to adherents of originalist and strict constructionist legal theories. In the context of such legal theories and elsewhere, it is important to understand the language of the Constitution in terms of what that language meant to the people who wrote and ratified the Constitution.[109]

The Second Amendment was relatively uncontroversial at the time of its ratification.[110] Robert Whitehill, a delegate from Pennsylvania, sought to clarify the draft Constitution with a bill of rights explicitly granting individuals the right to hunt on their own land in season,[111] though Whitehill’s language was never debated.[112]

There was substantial opposition to the new Constitution, because it moved the power to arm the state militias from the states to the federal government. This created a fear that the federal government, by neglecting the upkeep of the militia, could have overwhelming military force at its disposal through its power to maintain a standing army and navy, leading to a confrontation with the states, encroaching on the states’ reserved powers and even engaging in a military takeover. Article VI of the Articles of Confederation states:

In contrast, Article I, Section 8, Clause 16 of the U.S. Constitution states:

A foundation of American political thought during the Revolutionary period was concerned about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is “a chimerical idea to suppose that a country like this could ever be enslaved … Is it possible … that an army could be raised for the purpose of enslaving themselves or their brethren? Or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?”[116] Noah Webster similarly argued:

George Mason also argued the importance of the militia and right to bear arms by reminding his compatriots of England’s efforts “to disarm the people; that it was the best and most effectual way to enslave them … by totally disusing and neglecting the militia.” He also clarified that under prevailing practice the militia included all people, rich and poor. “Who are the militia? They consist now of the whole people, except a few public officers.” Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.[12][118]

Writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included “the right to keep and bear arms” in a list of basic “human rights”, which he proposed to be added to the Constitution.[119]

Patrick Henry argued in the Virginia ratification convention on June 5, 1788, for the dual rights to arms and resistance to oppression:

According to political commentator Thom Hartmann, the Virginians James Madison, Patrick Henry, and George Mason were concerned that “slave patrols,” organized groups of white men who enforced discipline upon enslaved African Americans, needed to remain armed and, therefore, the Constitution needed to clarify that states have the right to organize white men in such militias.[120] Also, Patrick Henry argued against the ratification of both the Constitution and the Second Amendment.[64] Most Southern white men aged1845 were required to serve on such patrols.

Legal historian Paul Finkelman disputes Hartmann’s claim that the Second Amendment was adopted to protect slave patrols, arguing that Hartmann’s claim is “factually incorrect and misleading” and that there is no historical evidence for this assertion.[64]

James Madison’s initial proposal for a bill of rights was brought to the floor of the House of Representatives on June 8, 1789, during the first session of Congress. The initial proposed passage relating to arms 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.[121]

On July 21, Madison again 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,[122] and the Bill of Rights entered committee for review. The committee returned to the House a reworded version of the Second Amendment on July 28.[123] 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.[124]

In late August 1789, the House debated and modified the Second Amendment. 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 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. However, the Senate scribe added a comma before “shall not be infringed” and changed the semicolon separating that phrase from the religious exemption portion to a comma:

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.[125]

By this time, the proposed right to keep and bear arms was in a separate amendment, instead of being in a single amendment together with other proposed rights such as the due process right. As a Representative explained, this change allowed each amendment to “be passed upon distinctly by the States.”[126] 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.[127]

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. A motion passed to replace the words “the best,” and insert in lieu thereof “necessary to the” .[128] The Senate then slightly modified the language to read as the fourth article and voted to return the Bill of Rights to the House. The final version by the Senate was amended to read as:

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 House voted on September 21, 1789 to accept the changes made by the Senate.

The enrolled original Joint Resolution passed by Congress on September 25, 1789, on permanent display in the Rotunda, reads as:

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.[129]

On December 15, 1791, the Bill of Rights (the first ten amendments to the Constitution) was adopted, having been ratified by three-fourths of the states, having been ratified as a group by all the fourteen states then in existence except Connecticut, Massachusetts, and Georgia which added ratifications in 1939.[130]

During the first two decades following the ratification of the Second Amendment, public opposition to standing armies, among Anti-Federalists and Federalists alike, persisted and manifested itself locally as a general reluctance to create a professional armed police force, instead relying on county sheriffs, constables and night watchmen to enforce local ordinances.[66] Though sometimes compensated, often these positions were unpaid held as a matter of civic duty. In these early decades, law enforcement officers were rarely armed with firearms, using billy clubs as their sole defensive weapons.[66] In serious emergencies, a posse comitatus, militia company, or group of vigilantes assumed law enforcement duties; these individuals were more likely than the local sheriff to be armed with firearms.[66]On May 8, 1792, Congress passed “[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States” requiring:

[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia … [and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.[131]

The act also gave specific instructions to domestic weapon manufacturers “that from and after five years from the passing of this act, muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound.”[131] In practice, private acquisition and maintenance of rifles and muskets meeting specifications and readily available for militia duty proved problematic; estimates of compliance ranged from 10 to 65percent.[132] Compliance with the enrollment provisions was also poor. In addition to the exemptions granted by the law for custom-house officers and their clerks, post-officers and stage drivers employed in the care and conveyance of U.S. mail, ferrymen, export inspectors, pilots, merchant mariners and those deployed at sea in active service; state legislatures granted numerous exemptions under Section2 of the Act, including exemptions for: clergy, conscientious objectors, teachers, students, and jurors. And though a number of able-bodied white men remained available for service, many simply did not show up for militia duty. Penalties for failure to appear were enforced sporadically and selectively.[133] None is mentioned in the legislation.[131]

The first test of the militia system occurred in July 1794, when a group of disaffected Pennsylvania farmers rebelled against federal tax collectors whom they viewed as illegitimate tools of tyrannical power.[134] Attempts by the four adjoining states to raise a militia for nationalization to suppress the insurrection proved inadequate. When officials resorted to drafting men, they faced bitter resistance. Forthcoming soldiers consisted primarily of draftees or paid substitutes as well as poor enlistees lured by enlistment bonuses. The officers, however, were of a higher quality, responding out of a sense of civic duty and patriotism, and generally critical of the rank and file.[66] Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.[66] In October, President George Washington and General Harry Lee marched on the 7,000rebels who conceded without fighting. The episode provoked criticism of the citizen militia and inspired calls for a universal militia. Secretary of War Henry Knox and Vice-President John Adams had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production.[66] Congress did subsequently pass “[a]n act for the erecting and repairing of Arsenals and Magazines” on April 2, 1794, two months prior to the insurrection.[135] Nevertheless, the militia continued to deteriorate and twenty years later, the militia’s poor condition contributed to several losses in the War of 1812, including the sacking of Washington, D.C., and the burning of the White House in 1814.[133]

In May of 1788, Richard Henry Lee wrote in Additional Letters From The Federal Farmer #169 or Letter XVIII regarding the definition of a “militia”:

A militia, when properly formed, are in fact the people themselves, and render regular troops in a great measure unnecessary.

In June of 1788, George Mason addressed the Virginia Ratifying Convention regarding a “militia:”

A worthy member has asked, who are the militia, if they be not the people, of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c. by our representation? I ask who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government all ranks of people are subject to militia duty.

In 1792, Tench Coxe made the following point in a commentary on the Second Amendment:[136]

As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.[137][138]

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 published in 1803.[139][140] Tucker wrote:

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. Amendments to C. U. S. Art. 4. This may be considered as the true palladium of liberty … The right of self defence is the first law of nature: In most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. 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.[141]

In footnotes 40 and 41 of the Commentaries, Tucker stated that the right to bear arms under the Second Amendment was not subject to the restrictions that were part of English law: “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.” Blackstone himself also commented on English game laws, 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.”[139] Blackstone discussed the right of self-defense in a separate section of his treatise on the common law of crimes. Tucker’s annotations for that latter section did not mention the Second Amendment but cited the standard works of English jurists such as Hawkins.[i]

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.”[139]

Tucker’s commentary was soon followed, in 1825, by that of William Rawle in his landmark text, A View of the Constitution of the United States of America. Like Tucker, Rawle condemned England’s “arbitrary code for the preservation of game,” portraying that country as one that “boasts so much of its freedom,” yet provides a right to “protestant subjects only” that it “cautiously describ[es] to be that of bearing arms for their defence” and reserves for “[a] very small proportion of the people[.]”[142] In contrast, Rawle characterizes the second clause of the Second Amendment, which he calls the corollary clause, as a general prohibition against such capricious abuse of government power, declaring bluntly:

No clause could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[143]

Speaking of the Second Amendment generally, Rawle said:[j]

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[j][144]

Rawle, long before the concept of incorporation was formally recognized by the courts, or Congress drafted the Fourteenth Amendment, contended that citizens could appeal to the Second Amendment should either the state or federal government attempt to disarm them. He did warn, however, that “this right [to bear arms] ought not … be abused to the disturbance of the public peace” and, paraphrasing Coke, observed: “An assemblage of persons with arms, for unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace.”[142]

Joseph Story articulated in his influential Commentaries on the Constitution[145] the orthodox view of the Second Amendment, which he viewed as the amendment’s clear meaning:

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 usurpations and arbitrary power of rulers; and it 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 burdens, 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.[k][146]

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Second Amendment to the United States Constitution – Wikipedia

Second Amendment legal definition of Second Amendment

The Second Amendment to the U.S. Constitution reads:

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

The subject matter and unusual phrasing of this amendment led to much controversy and analysis, especially in the last half of the twentieth century. Nevertheless, the meaning and scope of the amendment have long been decided by the Supreme Court.

Firearms played an important part in the colonization of America. In the seventeenth and eighteenth centuries, European colonists relied heavily on firearms to take land away from Native Americans and repel attacks by Native Americans and Europeans. Around the time of the Revolutionary War, male citizens were required to own firearms for fighting against the British forces. Firearms were also used in hunting.

In June 1776, one month before the signing of the Declaration of Independence, Virginia became the first colony to adopt a state constitution. In this document, the state of Virginia pronounced 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.” After the colonies declared their independence from England, other states began to include the right to bear arms in their constitution. Pennsylvania, for example, declared that

the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the 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.

The wording of clauses about bearing arms in late-eighteenth-century state constitutions varied. Some states asserted that bearing arms was a “right” of the people, whereas others called it a “duty” of every able-bodied man in the defense of society.

Pennsylvania was not alone in its express discouragement of a standing (professional) army. Many of the Framers of the U.S. Constitution rejected standing armies, preferring instead the model of a citizen army, equipped with weapons and prepared for defense. According to Framers such as Elbridge Gerry of Massachusetts and George Mason of Virginia a standing army was susceptible to tyrannical use by a power-hungry government.

At the first session of Congress in March 1789, the Second Amendment was submitted as a counterweight to the federal powers of Congress and the president. According to constitutional theorists, the Framers who feared a central government extracted the amendment as a compromise from those in favor of centralized authority over the states. The Revolutionary War had, after all, been fought in large part by a citizen army against the standing armies of England.

The precise wording of the amendment was changed two times before the U.S. Senate finally cast it in its present form. As with many of the amendments, the exact wording proved critical to its interpretation.

In 1791 a majority of states ratified the Bill of Rights, which included the Second Amendment. In its final form, the amendment presented a challenge to interpreters. It was the only amendment with an opening clause that appeared to state its purpose. The amendment even had defective punctuation; the comma before shall seemed grammatically unnecessary.

Legal scholars do not agree about this comma. Some have argued that it was intentional and that it was intended to make militia the subject of the sentence. According to these theorists, the operative words of the amendment are “[a] well regulated Militia shall not be infringed.” Others have argued that the comma was a mistake, and that the operative words of the sentence are “the right of the people to bear arms shall not be infringed.” Under this reading, the first part of the sentence is the rationale for the absolute, personal right of the people to own firearms. Indeed, the historical backdrophighlighted by a general disdain for professional armieswould seem to support this theory.

Some observers argue further that the Second Amendment grants the right of insurrection. According to these theorists, the Second Amendment was designed to allow citizens to rebel against the government. Thomas Jefferson is quoted as saying that “a little rebellion every now and then is a good thing.”

The Supreme Court makes the ultimate determination of the Constitution’s meaning, and it has defined the amendment as simply granting to the states the right to maintain a militia separate from federally controlled militias. This interpretation first came in United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1875). In Cruikshank, approximately one hundred persons were tried jointly in a Louisiana federal court with felonies in connection with an April 13, 1873, assault on two AfricanAmerican men. One of the criminal counts charged that the mob intended to hinder the right of the two men to bear arms. The defendants were convicted by a jury, but the circuit court arrested the judgment, effectively overturning the verdict. In affirming that decision, the Supreme Court declared that “the second amendment means no more than that [the right to bear arms] shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government.”

In Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886), Herman Presser was charged in Illinois state court with parading and drilling an unauthorized militia in the streets of Chicago in December 1879, in violation of certain sections of the Illinois Military Code. One of the sections in question prohibited the organization, drilling, operation, and parading of militias other than U.S. troops or the regular organized volunteer militia of the state. Presser was tried by the judge, convicted, and ordered to pay a fine of $10. On appeal to the U.S. Supreme Court, Presser argued, in part, that the charges violated his Second Amendment right to bear arms. The Court disagreed and upheld Presser’s conviction. The Court cited Cruikshank for the proposition that the Second Amendment means only that the federal government may not infringe on the right of states to form their own militias. This meant that the Illinois state law forbidding citizen militias was not unconstitutional. However, in its opinion, the Court in Presser delivered a reading of the Second Amendment that seemed to suggest an absolute right of persons to bear arms: “It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States,” and “states cannot prohibit the people from keeping and bearing arms.”

Despite this generous language, the Court refused to incorporate the Second Amendment into the Fourteenth Amendment. Under the first section of the Fourteenth Amendment, passed in 1868, states may not abridge the Privileges and Immunities of citizens of the United States. The privileges and immunities of citizens are listed in the Bill of Rights, of which the Second Amendment is part. Presser had argued that states may not, by virtue of the Fourteenth Amendment, abridge the right to bear arms. The Court refused to accept the argument that the right to bear arms is a personal right of the people. According to the Court, “The right to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship.”

The Presser opinion is best understood in its historical context. The Northern states and the federal government had just fought the Civil War against Southern militias unauthorized by the federal government. After this ordeal, the Supreme Court was in no mood to accept an expansive right to bear arms. At the same time, the Court was sensitive to the subject of federal encroachment on States’ Rights.

Private militias are armed military groups that are composed of private citizens and not recognized by federal or state governments. Private militias have been formed by individuals in America since the colonial period. In fact, the Revolutionary War against England was fought in part by armies comprising not professional soldiers but ordinary male citizens.

Approximately half the states maintain laws regulating private militias. Generally, these laws prohibit the parading and exercising of armed private militias in public, but do not forbid the formation of private militias. In Wyoming, however, state law forbids the very formation of private militias. Under section 19-1-106 of the Wyoming Statutes, “No body of men other than the regularly organized national guard or the troops of the United States shall associate themselves together as a military company or organization, or parade in public with arms without license of the governor.” The Wyoming law also prohibits the public funding of private militias. Anyone convicted of violating the provisions of the law is subject to a fine of not more than $1,000, imprisonment of six months, or both, for each offense.

In states that do not outlaw them, private militias are limited only by the criminal laws applicable to all of society. Thus, if an armed private militia seeks to parade and exercise in a public area, its members will be subject to arrest on a variety of laws, including disturbing-the-peace, firearms, or even riot statutes.

Many private militias are driven by the insurrection theory of the Second Amendment. Under this view, the Second Amendment grants an unconditional right to bear arms for Self-Defense and for rebellion against a tyrannical governmentwhen a government turns oppressive, private citizens have a duty to “insurrect,” or take up arms against it.

The U.S. Supreme Court has issued a qualified rejection of the insurrection theory. According to the Court in Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951), “[W]hatever theoretical merit there may be to the argument that there is a ‘right’ to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.” Scholars have interpreted this to mean that as long as the government provides for free elections and trials by jury, private citizens have no right to take up arms against the government.

Some people have disagreed with the Supreme Court’s definition of tyranny. Many of these people label the state and federal governments as tyrannical based on issues such as taxes and government regulations. Others cite governments ponsored racial and ethnic Integration as driving forces in their campaign against the federal and state governments. Many of these critics have formed private militias designed to resist perceived government oppression.

Some private militias have formed their own government. The legal problems of these private militias are generally unrelated to military activities. Instead, any criminal charges usually arise from activities associated with their political beliefs. The Freemen of Montana is one such militia. This group denied the legitimacy of the federal government and created its own township called Justus. The Freemen established its own court system, posted bounties for the arrest of police officers and judges, and held seminars on how to challenge laws its members viewed as beyond the scope of the Constitution. According to neighbors, the group also established its own common-law court system and built its own jail for the imprisonment of trespassers and government workers, or “public hirelings.”

In the 1990s, the Freemen came to the attention of federal prosecutors after members of the group allegedly wrote worthless checks and money orders to pay taxes and to defraud banks and credit card companies. One Freeman had also allegedly threatened a federal judge, and some had allegedly refused to pay taxes for at least a decade.

In March 1996, law enforcement officials obtained warrants for the arrest of many of the Freemen. However, remembering the violence that occurred when officials attempted to serve arrest warrants on another armed group in Waco, Texas, in 1993, law enforcement authorities did not invade the Freemen’s 960-acre ranch in Jordan, Montana. Although the Freemen constituted an armed challenge to all government authority, its beliefs and its military activities were not illegal, and most of its members were charged with nonviolent crimes, such as Fraud and related conspiracy. Two men were also charged with threatening public officials. In addition, several Freemen faced charges of criminal syndicalism, which is the advocacy of violence for political goals.

Amar, Akhil Reed. 2002. “Second Thoughts.” Law and Contemporary Problems 65 (spring).

Barry, Monica Sue. 1996. “Stockpiling Weapons: Can Private Militias Receive Protection under the First and Second Amendments?” Thomas Jefferson Law Review 18 (spring).

Hardaway, Robert, Elizabeth Gormley, and Bryan Taylor. 2002. “The Inconvenient Militia Clause of the Second Amendment: Why the Supreme Court Declines to Resolve the Debate over the Right to Bear Arms.” St. John’s Journal of Legal Commentary 16 (winter).

Dennis v. United States.

Several decades later, the Supreme Court ignored the contradictory language in Presser and cemented a limited reading of the Second Amendment. In United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939), defendants Jack Miller and Frank Layton were charged in federal court with unlawful transportation of firearms in violation of certain sections of the National Firearms Act of June 26, 1934 (ch. 757, 48 Stat. 12361240 [26 U.S.C.A. 1132 et seq.]). Specifically, Miller and Layton had transported shotguns with barrels less than 18 inches long, without the registration required under the act.

The district court dismissed the indictment, holding that the act violated the Second Amendment. The United States appealed. The Supreme Court reversed the decision and sent the case back to the trial court. The Supreme Court stated that the Second Amendment was fashioned “to assure the continuation and render possible the effectiveness of militia forces.”

The Miller opinion confirmed the restrictive language of Presser and solidified a narrow reading of the Second Amendment. According to the Court in Miller, the Second Amendment does not guarantee the right to own a firearm unless the possession or use of the firearm has “a reasonable relationship to the preservation or efficiency of a well regulated militia.”

The legislative measures that inspire most Second Amendment discussions are Gun Control laws. Since the mid-nineteenth century, state legislatures have been passing laws that infringe a perceived right to bear arms. Congress has also asserted the power to regulate firearms. No law regulating firearms has ever been struck down by the Supreme Court as a violation of the Second Amendment.

Historically, the academic community has largely ignored the Second Amendment. However, gun control laws have turned many laypersons into scholars of the Second Amendment’s history. The arguments for a broader interpretation are many and varied. Most center on the Original Intent of the Framers. Some emphasize that the Second Amendment should be interpreted as granting an unconditional personal right to bear arms for defensive and sporting purposes. Others adhere to an insurrection theory, under which the Second Amendment not only grants the personal right to bear arms, it gives citizens the right to rebel against a government perceived as tyrannical.

In response to these arguments, supporters of the prevailing Second Amendment interpretation maintain that any right to bear arms should be secondary to concerns for public safety. They also point out that other provisions in the Constitution grant power to Congress to quell insurrections, thus contradicting the insurrection theory. Lastly, they argue that the Constitution should be interpreted in accordance with a changing society and that the destructive capability of semiautomatic and automatic firearms was not envisioned by the Framers.

In response to the last argument, critics maintain that because such firearms exist, it should be legal to use them against violent criminals who are themselves wielding such weapons.

In the 2000s, federal courts continue to revisit the scope and detail of the Second Amendment right to bear arms. In particular federal courts have recast much of the debate as one over whether the Second Amendment protects a “collective” right or an “individual” right to bear arms. If the Second Amendment protects only a collective right, then only states would have the power to bring a legal action to enforce it and only for the purpose of maintaining a “well-regulated militia.” If the Second Amendment protects only an individual right to bear arms, then only individuals could bring suit to challenge gun-control laws that curb their liberty to buy, sell, own, or possess firearms and other guns.

Not surprisingly, courts are conflicted over how to resolve this debate. In United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), the U.S. Court of Appeals for the Fifth Circuit found that the original intent of the Founding Fathers supported an individual-rights interpretation of the Second Amendment, while the Ninth Circuit came to the opposite conclusion in Nordyke v. King, 319 F.3d 1185 (9th Cir. 2003). Although no court has concluded that the original intent underlying the Second Amendment supports a claim for both an individual- and a collective rights based interpretation of the right to bear arms, the compelling historical arguments marshaled on both sides of the debate would suggest that another court faced with the same debate may reach such a conclusion.

Amar, Akhil Reed. 1992. “The Bill of Rights and the Fourteenth Amendment.” Yale Law Journal 101 (April).

Becker, Edward R. 1997. “The Second Amendment and Other Federal Constitutional Rights of the Private Militia.” Montana Law Review 58 (winter).

Bogus, Carl T., ed. 2000. The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms. New York: New Press.

Dolan, Edward F., and Margaret M. Scariano. 1994. Guns in the United States. New York: Watts.

Dunlap, Charles J., Jr. 1995. “Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment.” Tennessee Law Review 62 (spring).

Hanson, Freya Ottem. 1998. The Second Amendment: The Right to Own Guns. Springfield, N.J.: Enslow.

Hook, Donald D. 1992. Gun Control: The Continuing Debate. Washington, D.C.: Second Amendment Foundation.

Hoppin, Jason. 2003. “Ninth Circuit Upholds Controversial Ruling on Second Amendment.” Legal Intelligencer (May 8).

. 2003. “Second Amendment Fight Steals Show in Gun Ban Case: Panel Enters Fray over Individual Rights.” San Francisco Recorder (February 19).

McAffee, Thomas B. 1997. “Constitutional Limits on Regulating Private Militia Groups.” Montana Law Review 58 (winter).

Gun Control.

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Second Amendment legal definition of Second Amendment

Amendment II – The United States Constitution

The right to keep and bear arms is a lot like the right to freedom of speech. In each case, the Constitution expressly protects a liberty that needs to be insulated from the ordinary political process. Neither right, however, is absolute. The First Amendment, for example, has never protected perjury, fraud, or countless other crimes that are committed through the use of speech. Similarly, no reasonable person could believe that violent criminals should have unrestricted access to guns, or that any individual should possess a nuclear weapon.

Inevitably, courts must draw lines, allowing government to carry out its duty to preserve an orderly society, without unduly infringing the legitimate interests of individuals in expressing their thoughts and protecting themselves from criminal violence. This is not a precise science or one that will ever be free from controversy.

One judicial approach, however, should be unequivocally rejected. During the nineteenth century, courts routinely refused to invalidate restrictions on free speech that struck the judges as reasonable. This meant that speech got virtually no judicial protection. Government suppression of speech can usually be thought to serve some reasonable purpose, such as reducing social discord or promoting healthy morals. Similarly, most gun control laws can be viewed as efforts to save lives and prevent crime, which are perfectly reasonable goals. If thats enough to justify infringements on individual liberty, neither constitutional guarantee means much of anything.

During the twentieth century, the Supreme Court finally started taking the First Amendment seriously. Today, individual freedom is generally protected unless the government can make a strong case that it has a real need to suppress speech or expressive conduct, and that its regulations are tailored to that need. The legal doctrines have become quite complex, and there is room for disagreement about many of the Courts specific decisions. Taken as a whole, however, this body of case law shows what the Court can do when it appreciates the value of an individual right enshrined in the Constitution.

This essay is part of a discussion about the Second Amendment with Adam Winkler, Professor of Law, UCLA School of Law. Read the full discussion here.

The Second Amendment also raises issues about which reasonable people can disagree. But if the Supreme Court takes this provision of the Constitution as seriously as it now takes the First Amendment, which it should do, there will be some easy issues as well.

District of Columbia v. Heller (2008) is one example. The right of the people protected by the Second Amendment is an individual right, just like the right[s] of the people protected by the First and Fourth Amendments. The Constitution does not say that the Second Amendment protects a right of the states or a right of the militia, and nobody offered such an interpretation during the Founding era. Abundant historical evidence indicates that the Second Amendment was meant to leave citizens with the ability to defend themselves against unlawful violence. Such threats might come from usurpers of governmental power, but they might also come from criminals whom the government is unwilling or unable to control.

McDonald v. City of Chicago (2010) was also an easy case under the Courts precedents. Most other provisions of the Bill of Rights had already been applied to the states because they are deeply rooted in this Nations history and tradition. The right to keep and bear arms clearly meets this test.

The text of the Constitution expressly guarantees the right to bear arms, not just the right to keep them. The courts should invalidate regulations that prevent law-abiding citizens from carrying weapons in public, where the vast majority of violent crimes occur. First Amendment rights are not confined to the home, and neither are those protected by the Second Amendment.

Nor should the government be allowed to create burdensome bureaucratic obstacles designed to frustrate the exercise of Second Amendment rights. The courts are vigilant in preventing government from evading the First Amendment through regulations that indirectly abridge free speech rights by making them difficult to exercise. Courts should exercise the same vigilance in protecting Second Amendment rights.

Some other regulations that may appear innocuous should be struck down because they are little more than political stunts. Popular bans on so-called assault rifles, for example, define this class of guns in terms of cosmetic features, leaving functionally identical semi-automatic rifles to circulate freely. This is unconstitutional for the same reason that it would violate the First Amendment to ban words that have a French etymology, or to require that French fries be called freedom fries.

In most American states, including many with large urban population centers, responsible adults have easy access to ordinary firearms, and they are permitted to carry them in public. Experience has shown that these policies do not lead to increased levels of violence. Criminals pay no more attention to gun control regulations than they do to laws against murder, rape, and robbery. Armed citizens, however, prevent countless crimes and have saved many lives. Whats more, the most vulnerable peopleincluding women, the elderly, and those who live in high crime neighborhoodsare among the greatest beneficiaries of the Second Amendment. If the courts require the remaining jurisdictions to stop infringing on the constitutional right to keep and bear arms, their citizens will be more free and probably safer as well.

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Amendment II – The United States Constitution

Twenty-second Amendment to the United States Constitution

The Twenty-second Amendment (Amendment XXII) to the United States Constitution sets a limit on the number of times an individual is eligible for election to the office of President of the United States, and also sets additional eligibility conditions for presidents who succeed to the unexpired terms of their predecessors.[1]

Prior to the ratification of the amendment, the president had not been subject to term limits, but George Washington had established a two-term tradition that many other presidents had followed. In the 1940 presidential election, Franklin D. Roosevelt became the first president to win a third term, giving rise to concerns about the potential issues involved with a president serving an unlimited number of terms. Congress approved the Twenty-second Amendment on March 24, 1947 , and submitted it to the state legislatures for ratification. That process was completed on February 27, 1951, after the amendment had been ratified by the requisite 36 of the then-48 states (as neither Alaska nor Hawaii had yet been admitted as states), and its provisions came into force on that date.

The amendment prohibits any individual who has been elected president twice from being elected again. Under the amendment, an individual who fills an unexpired presidential term lasting greater than two years is also prohibited from winning election as president more than once. Scholars debate whether the amendment prohibits affected individuals from succeeding to the presidency under any circumstances or whether it only applies to presidential elections.

Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2. This Article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission to the states by the Congress.[2]

Notwithstanding that the Twenty-second Amendment was clearly a reaction to Franklin D. Roosevelt’s election to an unprecedented four terms as president, the notion of presidential term limits has long been debated in American politics. Delegates to the Constitutional Convention of 1787 considered the issue extensively (alongside broader questions, such as who would elect the president, and the president’s role). Manyincluding Alexander Hamilton and James Madisonsupported a lifetime appointment for presidents, while others favored fixed terms appointments. Virginia’s George Mason denounced the life-tenure proposal as tantamount to establishment of an elective monarchy.[3] An early draft of the United States Constitution provided that the President was restricted to a single seven-year term.[4] Ultimately, the Framers approved four-year terms with no restriction on the amount of time a person could serve as president.

Though dismissed by the Constitutional Convention, the concept of term limits for U.S. presidents took hold during the presidencies of George Washington and Thomas Jefferson. As his second term entered its final year in 1796, George Washington was exhausted from years of public service, and his health had begun to decline. He was also bothered by the unrelenting attacks from his political opponents, which had escalated after the signing of the Jay Treaty, and believed that he had accomplished his major goals as president. For these reasons, he decided not to stand for reelection to a third term, a decision he announced to the nation through a Farewell Address in September 1796.[5] Eleven years later, as Thomas Jefferson neared the half-way point of his second term, he wrote,

If some termination to the services of the chief magistrate be not fixed by the Constitution, or supplied by practice, his office, nominally for years, will in fact, become for life; and history shows how easily that degenerates into an inheritance.[6]

Since Washington made his historic announcement, numerous academics and public figures have looked at his decision to retire after two terms, and have, according to political scientist Bruce Peabody, “argued he had established a two-term tradition that served as a vital check against any one person, or the presidency as a whole, accumulating too much power”.[7] Numerous amendments aimed toward changing informal precedent into constitutional law were proposed in Congress during the early to mid-19th century, but none passed.[3][8] Three of the next four presidents after JeffersonJames Madison, James Monroe, and Andrew Jacksonserved two terms, and each one adhered to the two-term principle;[1] Martin Van Buren was the only president between Jackson and Abraham Lincoln to be nominated for a second term, although he lost the 1840 election, and so only served one term.[8] Before the Civil War the seceding States drafted the Constitution of the Confederate States of America which in most respects was similar to the United States Constitution, but one change was limiting the President to a single six-year term.

In spite of the strong two-term tradition, a few presidents prior to Franklin Roosevelt did attempt to secure a third term. Following Ulysses S. Grant’s reelection victory in 1872, there were serious discussions within Republican political circles about the possibility of his running again in 1876. Interest in a third term for Grant evaporated however, in the light of negative public opinion and opposition from members of Congress, and Grant left the presidency in 1877, after two terms. Even so, as the 1880 election approached, he sought nomination for a (non-consecutive) third term at the 1880 Republican National Convention, but narrowly lost to James Garfield, who would go on to win the 1880 election.[8]

Theodore Roosevelt succeeded to the presidency on September 14, 1901, following William McKinley’s assassination (194 days into his second term), and was subsequently elected to a full term in 1904. While he declined to seek a third (second full) term in 1908, Roosevelt did seek one four years later, in the election of 1912, where he lost to Woodrow Wilson. Wilson himself, despite his ill health following a serious stroke, aspired to a third term. Many of Wilson’s advisers tried to convince him that his health precluded another campaign, but Wilson nonetheless asked that his name be placed in nomination for the presidency at the 1920 Democratic National Convention.[9] Democratic Party leaders were unwilling to support Wilson, however, and the nomination eventually went to James M. Cox. Wilson again contemplated running for a (nonconsecutive) third term in 1924, devising a strategy for his comeback, but again lacked any support; he died in February of that year.[10]

Franklin D. Roosevelt spent the months leading up to the 1940 Democratic National Convention refusing to state whether he would seek a third term. His Vice President, John Nance Garner, along with Postmaster General James Farley, announced their candidacies for the Democratic nomination. When the convention came, Roosevelt sent a message to the convention, saying he would run only if drafted, saying delegates were free to vote for whomever they pleased. This message was interpreted to mean he was willing to be drafted, and he subsequently was renominated on the convention’s first ballot.[8][11] Later, during the 1940 presidential election, Roosevelt won a decisive victory over Republican Wendell Willkie, becoming the first, and to date only, person to exceed eight years in office. Roosevelt’s decision to seek a third term dominated the election campaign.[12] Willkie ran against the open-ended presidential tenure, while Democrats cited the war in Europe as a reason for breaking with precedent.[8]

Four years later, Roosevelt faced Republican Thomas E. Dewey in the 1944 election. Near the end of the campaign, Thomas Dewey announced his support of a constitutional amendment that would limit future presidents to two terms. According to Dewey, “four terms, or sixteen years (a direct reference to the president’s tenure in office four years hence), is the most dangerous threat to our freedom ever proposed.”[13] He also discreetly raised the issue of the president’s age. Roosevelt, however, was able to exude enough energy and charisma to retain the confidence of the American public, who reelected him to a fourth term.[14]

While he effectively quelled rumors of his poor health during the campaign, Roosevelt’s health was in reality deteriorating. On April 12, 1945, only 82 days after his fourth inauguration, he suffered a cerebral hemorrhage and died. He was succeeded by Vice President Harry Truman.[15] In the midterm elections 18 months later, Republicans took control of both the House and the Senate. As many of them had campaigned on the issue of presidential tenure, declaring their support for a constitutional amendment that would limit how long a person could serve as president, the issue was given top priority in the 80th Congress when it convened in January 1947.[7]

The House of Representatives took quick action, approving a proposed constitutional amendment (House Joint Resolution27) setting a limit of two four-year terms for future presidents. Introduced by Earl C. Michener, the measure passed 285121, with support from 47 Democrats, on February 6, 1947. Meanwhile, the Senate developed its own proposed amendment, which initially differed from the House proposal by requiring that the amendment be submitted to state ratifying conventions for ratification, rather than to the state legislatures, and by prohibiting any person who had served more than 365 days in each of two terms from further presidential service. Both these provisions were removed when the full Senate took up the bill, but a new provision was, however, added. Put forward by Robert A. Taft, it clarified procedures governing the number of times a vice president who succeeded to the presidency might be elected to the office. The amended proposal was passed 5923, with 16 Democrats in favor, on March 12.[1][16]

Several days later, the House agreed to the Senate’s revisions, and on March 24, 1947, the constitutional amendment imposing term limitations on future Presidents was submitted to the states for ratification.[2] The ratification process for the 22nd Amendment was completed on February 27, 1951, 3years, 343days after it was sent to the states.[12][17]

Once submitted to the states, the 22nd Amendment was ratified by:[2]

Conversely, two statesOklahoma and Massachusettsrejected the amendment, while five (Arizona, Kentucky, Rhode Island, Washington, and West Virginia) took no action.[16]

The 22nd Amendment’s two-term limit did not apply (due to the grandfather clause in Section 1) to Harry S. Truman, because he was the incumbent president at the time it was proposed by Congress. Truman, who had served nearly all of Franklin D. Roosevelt’s unexpired fourth term and who was elected to a full term in 1948, was thus eligible to seek re-election in 1952.[12] However, with his job approval rating floundering at around 27%,[18][19] and after a poor performance in the 1952 New Hampshire primary, Truman chose not to seek his party’s nomination. He theoretically also would have been eligible in later elections.

Since coming into force in 1951, the amendment has applied to six presidents who have been elected twice: Dwight D. Eisenhower, Richard Nixon, Ronald Reagan, Bill Clinton, George W. Bush, and Barack Obama. It has also applied to two who entered office intra-term due to their predecessor’s death or resignation: Lyndon B. Johnson and Gerald Ford.[1] Johnson became president in November 1963, following the assassination of John F. Kennedy, served out the final 1year and 59days of Kennedy’s term, and was elected to a full four-year term in 1964. Four years later, he briefly ran for a second full term, but withdrew from the race during the party primaries.[20][21] Had Johnson served a second full term through January 20, 1973 the total length of his presidency would have been 9years and 59days; as it happened, Johnson died two days after this date.[22] Gerald Ford, who became president in August 1974 following the resignation of Richard Nixon, served the final 2years and 164days of Nixon’s term, and attempted to win a full four-year term in 1976, but was defeated by Jimmy Carter. Johnson was eligible to be elected to two full terms in his own right, as he had served less than two years of Kennedy’s unexpired term, whereas Ford was eligible to be elected to only one full term, as he had served more than two years of Nixon’s unexpired term.[1]

As worded, the primary focus of the 22nd Amendment is on limiting individuals twice elected to the presidency from being elected again. Due to this, several issues could be raised regarding the amendment’s meaning and application, especially in relation to the 12th Amendment, ratified in 1804, which states, “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States”.[23] While it is clear that under the 12th Amendment the original constitutional qualifications of age, citizenship, and residency apply to both the president and vice president, it is unclear whether someone who is ineligible to be elected president could be elected vice president. Because of this apparent ambiguity, there may be a loophole in the 22nd Amendment whereby a two-term former-president could be elected vice president and then succeed to the presidency as a result of the incumbent’s death, resignation, or removal from office (or even succeed to the presidency from some other stated office in the presidential line of succession).[8][24]

Some argue that the 22nd Amendment and 12th Amendment bar any two-term president from later serving as vice president as well as from succeeding to the presidency from any point in the presidential line of succession.[25] Others contend that the original intent of the 12th Amendment concerns qualification for service (age, residence, and citizenship), while the 22nd Amendment, concerns qualifications for election, and thus (strictly applying the text) a former two-term president is still eligible to serve as vice president (neither amendment restricts the number of times an individual can be elected to the vice presidency), and then succeed to the presidency to serve out the balance of the term (though prohibited from running for election to an additional term).[26][27]

The practical applicability of this distinction has not been tested, as no former president has ever sought the vice presidency, although in 1980, former president Gerald Ford was mentioned as a possible vice presidential running mate for Republican presidential nominee Ronald Reagan, and there were some negotiations between the two camps. Nothing ever became of the idea.[28] During Hillary Clinton’s 2016 presidential campaign, she jokingly said that she had considered naming her husband Bill Clinton as her vice presidential running mate, but had been advised it would be unconstitutional.[29] Most likely, the constitutional question raised will remain unanswered unless the situation actually occurs.[1]

Over the years, several presidents have voiced their antipathy toward the amendment. After leaving office, Harry Truman variously described it as: “bad”, “stupid”, and “one of the worst that has been put into the Constitution, except for the Prohibition Amendment”.[30] In January 1989, during an interview with Tom Brokaw a few days prior to leaving office, Ronald Reagan stated his intention to push for a repeal of the 22nd Amendment, calling it “an infringement on the democratic rights of the people.”[31] In a November 2000 interview with Rolling Stone, out-going President Bill Clinton suggested that, given longer life expectancy, perhaps the 22nd Amendment should be altered so as to limit presidents to two “consecutive” terms.[32]

The first efforts in Congress to repeal the 22nd Amendment were undertaken in 1956, only five years after the amendment’s ratification. According to the Congressional Research Service, over the ensuing half-century (through 2008) 54 joint resolutions seeking to repeal the two-term presidential election limit were introduced (primarily in the House); none were given serious consideration.[1] Between 1997 and 2013, Jos E. Serrano (D-NY) introduced nine resolutions (one per Congress, all unsuccessful) to repeal the amendment.[33] Repeal has also been supported by senior Congressmen such as Barney Frank and David Dreier and Senators Mitch McConnell[34] and Harry Reid.[35]

See more here:

Twenty-second Amendment to the United States Constitution

Second Amendment to the United States Constitution – Wikipedia

Part of the Bill of Rights

The Second Amendment (Amendment II) to the United States Constitution protects the right of the people to keep and bear arms and was adopted on December 15, 1791 as part of the Bill of Rights.[1][2][3][4]

The Supreme Court ruled in the 2008 Heller decision that the right belongs to individuals for self-defense[5][6][7] while also including, as dicta, that the right is not unlimited and does not preclude the existence of certain long-standing prohibitions such as those forbidding “the possession of firearms by felons and the mentally ill” or restrictions on “the carrying of dangerous and unusual weapons.”[8][9] State and local governments are limited to the same extent as the federal government from infringing this right.[10]

The Second Amendment was based partially on the right to keep and bear arms in English common law and was influenced by the English Bill of Rights of 1689. Sir William Blackstone described this right as an auxiliary right, supporting the natural rights of self-defense and resistance to oppression, and the civic duty to act in concert in defense of the state.[11]

While both James Monroe and John Adams supported the Constitution being ratified, its most influential framer was James Madison. In Federalist No. 46, Madison wrote how a federal army could be kept in check by state militias, “a standing army … would be opposed [by] a militia.” He argued that state militias “would be able to repel the danger” of a federal army, “It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.” He contrasted the federal government of the United States to the European kingdoms, which he described as “afraid to trust the people with arms,” and assured that “the existence of subordinate governments … forms a barrier against the enterprises of ambition”.[12][13]

By January 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several amendments were proposed, but were not adopted at the time the Constitution was ratified. For example, the Pennsylvania convention debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to the Bill of Rights to assure ratification.

In United States v. Cruikshank (1876), the Supreme Court ruled that, “The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments [sic] means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.”[14] In United States v. Miller (1939), the Supreme Court ruled that the Second Amendment did not protect weapon types not having a “reasonable relationship to the preservation or efficiency of a well regulated militia.”[15][16]

In the twenty-first century, the amendment has been subjected to renewed academic inquiry and judicial interest.[16] In District of Columbia v. Heller (2008), the Supreme Court handed down a landmark decision that held the amendment protects an individual’s right to keep a gun for self-defense.[17][18] This was the first time the Court had ruled that the Second Amendment guarantees an individual’s right to own a gun.[19][20][18] In McDonald v. Chicago (2010), the Court clarified that the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment against state and local governments.[21] In Caetano v. Massachusetts (2016), the Supreme Court reiterated its earlier rulings that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” and that its protection is not limited to “only those weapons useful in warfare.”

The debate between various organizations regarding gun control and gun rights continues.[22]

Contents

There are several versions of the text of the Second Amendment, each with capitalization or punctuation differences. Differences exist between the drafted and ratified copies, the signed copies on display, and various published transcriptions.[23][24][25][26][27][28][29][30] The importance (or lack thereof) of these differences has been a source of debate regarding the meaning and interpretation of the amendment, particularly regarding the importance of the prefatory clause.[31][32]

One version was passed by the Congress, and a slightly different version was ratified.[a][33][34][35][36] As passed by the Congress and preserved in the National Archives, with the rest of the original handwritten copy of the Bill of Rights prepared by scribe William Lambert, the amendment says:[37]

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 amendment was ratified by the States and authenticated by Secretary of State Thomas Jefferson as:[38]

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 right to bear arms in English history is regarded in English law as a subordinate auxiliary right of the primary rights to personal security, personal liberty, and private property. According to Sir William Blackstone, “The … last auxiliary right of the subject … is that of having arms for their [defense], suitable to their condition and degree, and such as are allowed by law. Which is … declared by … statute, 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.”[b]

The English Bill of Rights of 1689 emerged from a tempestuous period in English politics during which two issues were major sources of conflict: the authority of the King to govern without the consent of Parliament, and the role of Catholics in a country that was becoming ever more Protestant. Ultimately, the Catholic JamesII was overthrown in the Glorious Revolution, and his successors, the Protestants WilliamIII and MaryII, accepted the conditions that were codified in the Bill. One of the issues the Bill resolved was the authority of the King to disarm his subjects, after King Charles II and JamesII had disarmed many Protestants that were “”suspected or knowne” of disliking the government,[39] and had argued with Parliament over his desire to maintain a standing (or permanent) army.[c] The bill states that it is acting to restore “ancient rights” trampled upon by JamesII, though some have argued that the English Bill of Rights created a new right to have arms, which developed out of a duty to have arms.[40] In District of Columbia v. Heller (2008), the Supreme Court did not accept this view, remarking that the English right at the time of the passing of the English Bill of Rights was “clearly an individual right, having nothing whatsoever to do with service in the militia” and that it was a right not to be disarmed by the Crown and was not the granting of a new right to have arms.[41]

The text of the English Bill of Rights of 1689 includes language protecting the right of Protestants against disarmament by the Crown. This document states: “That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.”[42] It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament.[43] Nevertheless, the English Bill of Rights remains an important constitutional document, more for enumerating the rights of Parliament over the monarchy than for its clause concerning a right to have arms.

The statement in the English Bill of Rights concerning the right to bear arms is often quoted only in the passage where it is written as above and not in its full context. In its full context it is clear that the bill was asserting the right of Protestant citizens not to be disarmed by the King without the consent of Parliament and was merely restoring rights to Protestants that the previous King briefly and unlawfully had removed. In its full context it reads:

Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome (list of grievances including) … by causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law, (Recital regarding the change of monarch) … thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors in like Case have usually done) for the Vindicating and Asserting their ancient Rights and Liberties, Declare (list of rights including) … That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.[42]

The historical link between the English Bill of Rights and the Second Amendment, which both codify an existing right and do not create a new one, has been acknowledged by the U.S. Supreme Court.[d][e]

The English Bill of Rights includes the proviso that arms must be as “allowed by law.” This has been the case before and after the passage of the Bill. While it did not override earlier restrictions on the ownership of guns for hunting, it is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments.[44]

There is some difference of opinion as to how revolutionary the events of 168889 actually were, and several commentators make the point that the provisions of the English Bill of Rights did not represent new laws, but rather stated existing rights. Mark Thompson wrote that, apart from determining the succession, the English Bill of Rights did “little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already posessed [sic].”[45] Before and after the English Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm.[46] In 1765, William Blackstone wrote the Commentaries on the Laws of England describing the right to have arms in England during the 18th century as a subordinate auxiliary right of the subject that was “also declared” in the English Bill of Rights.[47][48]

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 1 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.[49]

Although there is little doubt that the writers of the Second Amendment were heavily influenced by the English Bill of Rights, it is a matter of interpretation as to whether they were intent on preserving the power to regulate arms to the states over the federal government (as the English Parliament had reserved for itself against the monarch) or whether it was intent on creating a new right akin to the right of others written into the Constitution (as the Supreme Court decided in Heller). Some in the United States have preferred the “rights” argument arguing that the English Bill of Rights had granted a right. The need to have arms for self-defence was not really in question. Peoples all around the world since time immemorial had armed themselves for the protection of themselves and others, and as organized nations began to appear these arrangements had been extended to the protection of the state.[50] Without a regular army and police force (which in England was not established until 1829), it had been the duty of certain men to keep watch and ward at night and to confront and capture suspicious persons. Every subject had an obligation to protect the king’s peace and assist in the suppression of riots.[51]

Early English settlers in America viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes (in no particular order):[f][g][53][54][55][56][57][58]

Which of these considerations were thought of as most important and ultimately found expression in the Second Amendment is disputed. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776 asserted that, “the people have a right to bear arms for the defence of themselves and the state.”[65]

During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, including many who were loyal to British imperial rule. As defiance and opposition to British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists, known as Patriots, who favored independence from British rule. As a result, some Patriots created their own militias that excluded the Loyalists and then sought to stock independent armories for their militias. In response to this arms build up, the British Parliament established an embargo of firearms, parts and ammunition against the American colonies.[66] King George III also began disarming individuals who were in the most rebellious areas in the 1760’s and 70’s.[67]

British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, Blackstone’s summary of the Declaration of Rights, their own militia laws and common law rights to self-defense.[68] While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense.[68] Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars’ interpretation of Blackstone.[69]

The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 Boston objecting to the British army suppression of colonial opposition to the Townshend Acts:

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.[68]

Furthermore, one article from New York in 1769 stated: “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.”[70]

The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with regular French army and naval forces and various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist militia and Hessian mercenaries. Following the Revolution, the United States was governed by the Articles of Confederation. Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the standing army was reduced to as few as 80 men.[71] They considered it to be bad that there was no effective federal military crackdown on an armed tax rebellion in western Massachusetts known as Shays’ Rebellion.[72] Anti-federalists on the other hand took the side of limited government and sympathized with the rebels, many of whom were former Revolutionary War soldiers. Subsequently, the Constitutional Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.[73][74] Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power.[75]

Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that James 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.”[76] In contrast, historian Jack Rakove suggests that Madison’s intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed.[77]

One aspect of the gun control debate is the conflict between gun control laws and the right to rebel against unjust governments. Blackstone in his Commentaries alluded to this right to rebel as the natural right of resistance and self preservation, to be used only as a last resort, exercisable when “the sanctions of society and laws are found insufficient to restrain the violence of oppression”.[78] Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation,[79] as Alexander Hamilton explained in his Concerning the Militia essay published in 1788:

… it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defence of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the Government to form an army of any magnitude, that army can never be formidable to the liberties of the People, while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights, and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.[79][80]

Some scholars have said that it is wrong to read a right of armed insurrection in the Second Amendment because clearly the founding fathers sought to place trust in the power of the ordered liberty of democratic government versus the anarchy of insurrectionists.[81][82] Other writers, such as Glenn Reynolds, contend that the framers did believe in an individual right to armed insurrection. They cite examples, such as the Declaration of Independence (describing in 1776 “the Right of the People to … institute new Government”) and the Constitution of New Hampshire (stating in 1784 that “nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind”).[83]

There was an ongoing debate beginning in 1789 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 increasingly violent French Revolution.[84] A widespread fear, during the debates on ratifying the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens,[h] or prohibiting citizens from arming themselves.[68] Though it has been argued that the states lost the power to arm their citizens when the power to arm the militia was transferred from the states to the federal government by Article I, Section 8 of the Constitution, the individual right to arm was retained and strengthened by the Militia Acts of 1792 and the similar act of 1795.[85][86]

Note: On May 10, 1776, Congress passed a resolution recommending that any colony with a government that was not inclined toward independence should form one that was.[87]

Virginia’s Constitution lists the reasons for dissolving its ties with the King in the formation of its own independent state government. Including the following:

* These same reasons would later be outlined within the Declaration of Independence.

A Declaration of Rights. Section 13. 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; 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.[88]

Article 13. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the 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.[89]

IMPORTANT NOTE: This is the first instance in relationship to U.S. Constitutional Law of the phrase “right to bear arms.”

It is of relevance that Pennsylvania was a Quaker Colony traditionally opposed to bearing arms. “In settling Pennsylvania, William Penn had a great experiment in view, a ‘holy experiment,’ as he term[ed] it. This was no less than to test, on a scale of considerable magnitude, the practicability of founding and governing a State on the sure principles of the Christian religion; where the executive should be sustained without arms; where justice should be administered without oaths; and where real religion might flourish without the incubus of a hierarchical system.”[90] The Non-Quaker residents, many from the Western Counties, complained often and loudly of being denied the right to a common defense. By the time of the American Revolution, through what could be described as a revolution within a revolution, the pro-militia factions had gained ascendancy in the state’s government. And by a manipulation through the use of oaths, disqualifying Quaker members, they made up a vast majority of the convention forming the new state constitution; it was only natural that they would assert their efforts to form a compulsory State Militia in the context of a “right” to defend themselves and the state.[91]

Articles XXV-XXVII. 25. That a well-regulated militia is the proper and natural defence of a free government. 26. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature. 27. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.[92]

A Declaration of Rights. Article XVII. 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.[93]

Article XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth. And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.[94]

Chapter 1. Section XVIII. That the people have a right to bear arms for the defence of the themselves and the State; and as standing armies, in the 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.[95]

A Declaration of Rights. Chapter 1. Article XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.[96]

In March 1785, delegates from Virginia and Maryland assembled at the Mount Vernon Conference to fashion a remedy to the inefficiencies of the Articles of Confederation. The following year, at a meeting in Annapolis, Maryland, 12 delegates from five states (New Jersey, New York, Pennsylvania, Delaware, and Virginia) met and drew up a list of problems with the current government model. At its conclusion, the delegates scheduled a follow-up meeting in Philadelphia, Pennsylvania for May 1787 to present solutions to these problems, such as the absence of:[100][101]

It quickly became apparent that the solution to all three of these problems required shifting control of the states’ militias to the federal congress and giving that congress the power to raise a standing army.[102] Article 1, Section 8 of the Constitution codified these changes by allowing the Congress to provide for the common defense and general welfare of the United States by doing the following:[103]

Some representatives mistrusted proposals to enlarge federal powers, because they were concerned about the inherent risks of centralizing power. Federalists, including James Madison, initially argued that a bill of rights was unnecessary, sufficiently confident that the federal government could never raise a standing army powerful enough to overcome a militia.[104] Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.[105][106] Anti-federalists, on the other hand, advocated amending the Constitution with clearly defined and enumerated rights providing more explicit constraints on the new government. Many Anti-federalists feared the new federal government would choose to disarm state militias. Federalists countered that in listing only certain rights, unlisted rights might lose protection. The Federalists realized there was insufficient support to ratify the Constitution without a bill of rights and so they promised to support amending the Constitution to add a bill of rights following the Constitution’s adoption. This compromise persuaded enough Anti-federalists to vote for the Constitution, allowing for ratification.[107] The Constitution was declared ratified on June21, 1788, when nine of the original thirteen states had ratified it. The remaining four states later followed suit, although the last two states, North Carolina and Rhode Island, ratified only after Congress had passed the Bill of Rights and sent it to the states for ratification.[108] James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June8, 1789, and was adopted on December15, 1791.

The debate surrounding the Constitution’s ratification is of practical importance, particularly to adherents of originalist and strict constructionist legal theories. In the context of such legal theories and elsewhere, it is important to understand the language of the Constitution in terms of what that language meant to the people who wrote and ratified the Constitution.[109]

The Second Amendment was relatively uncontroversial at the time of its ratification.[110] Robert Whitehill, a delegate from Pennsylvania, sought to clarify the draft Constitution with a bill of rights explicitly granting individuals the right to hunt on their own land in season,[111] though Whitehill’s language was never debated.[112]

There was substantial opposition to the new Constitution, because it moved the power to arm the state militias from the states to the federal government. This created a fear that the federal government, by neglecting the upkeep of the militia, could have overwhelming military force at its disposal through its power to maintain a standing army and navy, leading to a confrontation with the states, encroaching on the states’ reserved powers and even engaging in a military takeover. Article VI of the Articles of Confederation states:

In contrast, Article I, Section 8, Clause 16 of the U.S. Constitution states:

A foundation of American political thought during the Revolutionary period was concerned about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is “a chimerical idea to suppose that a country like this could ever be enslaved … Is it possible … that an army could be raised for the purpose of enslaving themselves or their brethren? Or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?”[116] Noah Webster similarly argued:

George Mason also argued the importance of the militia and right to bear arms by reminding his compatriots of England’s efforts “to disarm the people; that it was the best and most effectual way to enslave them … by totally disusing and neglecting the militia.” He also clarified that under prevailing practice the militia included all people, rich and poor. “Who are the militia? They consist now of the whole people, except a few public officers.” Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.[12][118]

Writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included “the right to keep and bear arms” in a list of basic “human rights”, which he proposed to be added to the Constitution.[119]

Patrick Henry argued in the Virginia ratification convention on June 5, 1788, for the dual rights to arms and resistance to oppression:

According to political commentator Thom Hartmann, the Virginians James Madison, Patrick Henry, and George Mason were concerned that “slave patrols,” organized groups of white men who enforced discipline upon enslaved African Americans, needed to remain armed and, therefore, the Constitution needed to clarify that states have the right to organize white men in such militias.[120] Also, Patrick Henry argued against the ratification of both the Constitution and the Second Amendment.[64] Most Southern white men aged1845 were required to serve on such patrols.

Legal historian Paul Finkelman disputes Hartmann’s claim that the Second Amendment was adopted to protect slave patrols, arguing that Hartmann’s claim is “factually incorrect and misleading” and that there is no historical evidence for this assertion.[64]

James Madison’s initial proposal for a bill of rights was brought to the floor of the House of Representatives on June 8, 1789, during the first session of Congress. The initial proposed passage relating to arms 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.[121]

On July 21, Madison again 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,[122] and the Bill of Rights entered committee for review. The committee returned to the House a reworded version of the Second Amendment on July 28.[123] 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.[124]

In late August 1789, the House debated and modified the Second Amendment. 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 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. However, the Senate scribe added a comma before “shall not be infringed” and changed the semicolon separating that phrase from the religious exemption portion to a comma:

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.[125]

By this time, the proposed right to keep and bear arms was in a separate amendment, instead of being in a single amendment together with other proposed rights such as the due process right. As a Representative explained, this change allowed each amendment to “be passed upon distinctly by the States.”[126] 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.[127]

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. A motion passed to replace the words “the best,” and insert in lieu thereof “necessary to the” .[128] The Senate then slightly modified the language to read as the fourth article and voted to return the Bill of Rights to the House. The final version by the Senate was amended to read as:

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 House voted on September 21, 1789 to accept the changes made by the Senate.

The enrolled original Joint Resolution passed by Congress on September 25, 1789, on permanent display in the Rotunda, reads as:

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.[129]

On December 15, 1791, the Bill of Rights (the first ten amendments to the Constitution) was adopted, having been ratified by three-fourths of the states, having been ratified as a group by all the fourteen states then in existence except Connecticut, Massachusetts, and Georgia which added ratifications in 1939.[130]

During the first two decades following the ratification of the Second Amendment, public opposition to standing armies, among Anti-Federalists and Federalists alike, persisted and manifested itself locally as a general reluctance to create a professional armed police force, instead relying on county sheriffs, constables and night watchmen to enforce local ordinances.[66] Though sometimes compensated, often these positions were unpaid held as a matter of civic duty. In these early decades, law enforcement officers were rarely armed with firearms, using billy clubs as their sole defensive weapons.[66] In serious emergencies, a posse comitatus, militia company, or group of vigilantes assumed law enforcement duties; these individuals were more likely than the local sheriff to be armed with firearms.[66]On May 8, 1792, Congress passed “[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States” requiring:

[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia … [and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.[131]

The act also gave specific instructions to domestic weapon manufacturers “that from and after five years from the passing of this act, muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound.”[131] In practice, private acquisition and maintenance of rifles and muskets meeting specifications and readily available for militia duty proved problematic; estimates of compliance ranged from 10 to 65percent.[132] Compliance with the enrollment provisions was also poor. In addition to the exemptions granted by the law for custom-house officers and their clerks, post-officers and stage drivers employed in the care and conveyance of U.S. mail, ferrymen, export inspectors, pilots, merchant mariners and those deployed at sea in active service; state legislatures granted numerous exemptions under Section2 of the Act, including exemptions for: clergy, conscientious objectors, teachers, students, and jurors. And though a number of able-bodied white men remained available for service, many simply did not show up for militia duty. Penalties for failure to appear were enforced sporadically and selectively.[133] None is mentioned in the legislation.[131]

The first test of the militia system occurred in July 1794, when a group of disaffected Pennsylvania farmers rebelled against federal tax collectors whom they viewed as illegitimate tools of tyrannical power.[134] Attempts by the four adjoining states to raise a militia for nationalization to suppress the insurrection proved inadequate. When officials resorted to drafting men, they faced bitter resistance. Forthcoming soldiers consisted primarily of draftees or paid substitutes as well as poor enlistees lured by enlistment bonuses. The officers, however, were of a higher quality, responding out of a sense of civic duty and patriotism, and generally critical of the rank and file.[66] Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.[66] In October, President George Washington and General Harry Lee marched on the 7,000rebels who conceded without fighting. The episode provoked criticism of the citizen militia and inspired calls for a universal militia. Secretary of War Henry Knox and Vice-President John Adams had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production.[66] Congress did subsequently pass “[a]n act for the erecting and repairing of Arsenals and Magazines” on April 2, 1794, two months prior to the insurrection.[135] Nevertheless, the militia continued to deteriorate and twenty years later, the militia’s poor condition contributed to several losses in the War of 1812, including the sacking of Washington, D.C., and the burning of the White House in 1814.[133]

In May of 1788, Richard Henry Lee wrote in Additional Letters From The Federal Farmer #169 or Letter XVIII regarding the definition of a “militia”:

A militia, when properly formed, are in fact the people themselves, and render regular troops in a great measure unnecessary.

In June of 1788, George Mason addressed the Virginia Ratifying Convention regarding a “militia:”

A worthy member has asked, who are the militia, if they be not the people, of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c. by our representation? I ask who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government all ranks of people are subject to militia duty.

In 1792, Tench Coxe made the following point in a commentary on the Second Amendment:[136]

As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.[137][138]

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 published in 1803.[139][140] Tucker wrote:

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. Amendments to C. U. S. Art. 4. This may be considered as the true palladium of liberty … The right of self defence is the first law of nature: In most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. 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.[141]

In footnotes 40 and 41 of the Commentaries, Tucker stated that the right to bear arms under the Second Amendment was not subject to the restrictions that were part of English law: “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.” Blackstone himself also commented on English game laws, 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.”[139] Blackstone discussed the right of self-defense in a separate section of his treatise on the common law of crimes. Tucker’s annotations for that latter section did not mention the Second Amendment but cited the standard works of English jurists such as Hawkins.[i]

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.”[139]

Tucker’s commentary was soon followed, in 1825, by that of William Rawle in his landmark text, A View of the Constitution of the United States of America. Like Tucker, Rawle condemned England’s “arbitrary code for the preservation of game,” portraying that country as one that “boasts so much of its freedom,” yet provides a right to “protestant subjects only” that it “cautiously describ[es] to be that of bearing arms for their defence” and reserves for “[a] very small proportion of the people[.]”[142] In contrast, Rawle characterizes the second clause of the Second Amendment, which he calls the corollary clause, as a general prohibition against such capricious abuse of government power, declaring bluntly:

No clause could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[143]

Speaking of the Second Amendment generally, Rawle said:[j]

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[j][144]

Rawle, long before the concept of incorporation was formally recognized by the courts, or Congress drafted the Fourteenth Amendment, contended that citizens could appeal to the Second Amendment should either the state or federal government attempt to disarm them. He did warn, however, that “this right [to bear arms] ought not … be abused to the disturbance of the public peace” and, paraphrasing Coke, observed: “An assemblage of persons with arms, for unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace.”[142]

Joseph Story articulated in his influential Commentaries on the Constitution[145] the orthodox view of the Second Amendment, which he viewed as the amendment’s clear meaning:

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 usurpations and arbitrary power of rulers; and it 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 burdens, 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.[k][146]

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Second Amendment to the United States Constitution – Wikipedia

Amendment II – The United States Constitution

The right to keep and bear arms is a lot like the right to freedom of speech. In each case, the Constitution expressly protects a liberty that needs to be insulated from the ordinary political process. Neither right, however, is absolute. The First Amendment, for example, has never protected perjury, fraud, or countless other crimes that are committed through the use of speech. Similarly, no reasonable person could believe that violent criminals should have unrestricted access to guns, or that any individual should possess a nuclear weapon.

Inevitably, courts must draw lines, allowing government to carry out its duty to preserve an orderly society, without unduly infringing the legitimate interests of individuals in expressing their thoughts and protecting themselves from criminal violence. This is not a precise science or one that will ever be free from controversy.

One judicial approach, however, should be unequivocally rejected. During the nineteenth century, courts routinely refused to invalidate restrictions on free speech that struck the judges as reasonable. This meant that speech got virtually no judicial protection. Government suppression of speech can usually be thought to serve some reasonable purpose, such as reducing social discord or promoting healthy morals. Similarly, most gun control laws can be viewed as efforts to save lives and prevent crime, which are perfectly reasonable goals. If thats enough to justify infringements on individual liberty, neither constitutional guarantee means much of anything.

During the twentieth century, the Supreme Court finally started taking the First Amendment seriously. Today, individual freedom is generally protected unless the government can make a strong case that it has a real need to suppress speech or expressive conduct, and that its regulations are tailored to that need. The legal doctrines have become quite complex, and there is room for disagreement about many of the Courts specific decisions. Taken as a whole, however, this body of case law shows what the Court can do when it appreciates the value of an individual right enshrined in the Constitution.

This essay is part of a discussion about the Second Amendment with Adam Winkler, Professor of Law, UCLA School of Law. Read the full discussion here.

The Second Amendment also raises issues about which reasonable people can disagree. But if the Supreme Court takes this provision of the Constitution as seriously as it now takes the First Amendment, which it should do, there will be some easy issues as well.

District of Columbia v. Heller (2008) is one example. The right of the people protected by the Second Amendment is an individual right, just like the right[s] of the people protected by the First and Fourth Amendments. The Constitution does not say that the Second Amendment protects a right of the states or a right of the militia, and nobody offered such an interpretation during the Founding era. Abundant historical evidence indicates that the Second Amendment was meant to leave citizens with the ability to defend themselves against unlawful violence. Such threats might come from usurpers of governmental power, but they might also come from criminals whom the government is unwilling or unable to control.

McDonald v. City of Chicago (2010) was also an easy case under the Courts precedents. Most other provisions of the Bill of Rights had already been applied to the states because they are deeply rooted in this Nations history and tradition. The right to keep and bear arms clearly meets this test.

The text of the Constitution expressly guarantees the right to bear arms, not just the right to keep them. The courts should invalidate regulations that prevent law-abiding citizens from carrying weapons in public, where the vast majority of violent crimes occur. First Amendment rights are not confined to the home, and neither are those protected by the Second Amendment.

Nor should the government be allowed to create burdensome bureaucratic obstacles designed to frustrate the exercise of Second Amendment rights. The courts are vigilant in preventing government from evading the First Amendment through regulations that indirectly abridge free speech rights by making them difficult to exercise. Courts should exercise the same vigilance in protecting Second Amendment rights.

Some other regulations that may appear innocuous should be struck down because they are little more than political stunts. Popular bans on so-called assault rifles, for example, define this class of guns in terms of cosmetic features, leaving functionally identical semi-automatic rifles to circulate freely. This is unconstitutional for the same reason that it would violate the First Amendment to ban words that have a French etymology, or to require that French fries be called freedom fries.

In most American states, including many with large urban population centers, responsible adults have easy access to ordinary firearms, and they are permitted to carry them in public. Experience has shown that these policies do not lead to increased levels of violence. Criminals pay no more attention to gun control regulations than they do to laws against murder, rape, and robbery. Armed citizens, however, prevent countless crimes and have saved many lives. Whats more, the most vulnerable peopleincluding women, the elderly, and those who live in high crime neighborhoodsare among the greatest beneficiaries of the Second Amendment. If the courts require the remaining jurisdictions to stop infringing on the constitutional right to keep and bear arms, their citizens will be more free and probably safer as well.

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Amendment II – The United States Constitution

Second Amendment Text, Origins, and Meaning

Below is the original text of the Second Amendment:

Having been oppressed by a professional army, the founding fathers of the United States had no use for establishing one of their own. Instead, they decided that an armed citizenry makes the best army of all. General George Washington created regulation for the aforementioned “well-regulated militia,” which would consist of every able-bodied man in the country.

The Second Amendment holds the distinction of being the only amendment to the Bill of Rights that essentially goes unenforced. The U.S. Supreme Court has never struck down any piece of legislation on Second Amendment grounds, in part because justices have disagreed on whether the amendment is intended to protect the right to bear arms as an individual right, or as a component of the “well-regulated militia.”

There are three predominant interpretations of the Second Amendment.

The only Supreme Court ruling in U.S. history that has focused primarily on the issue of what the Second Amendment really means is U.S. v. Miller (1939), which is also the last time the Court examined the amendment in any serious way. In Miller, the Court affirmed a median interpretation holding that the Second Amendment protects an individual right to bear arms, but only if the arms in question are those that would be useful as part of a citizen militia. Or maybe not; interpretations vary, partly because Miller is not an exceptionally well-written ruling.

In Parker v. District of Columbia (March 2007), the D.C. Circuit Court of Appeals overturned Washington, D.C.’s handgun ban on grounds that it violates the Second Amendment’s guarantee of an individual right to bear arms. The case is being appealed to the U.S. Supreme Court in District of Columbia v. Heller, which may soon address the meaning of the Second Amendment. Almost any standard would be an improvement over Miller.

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Second Amendment Text, Origins, and Meaning

‘Second Amendment Sanctuary’ movement called a ‘childish pity …

Thegovernor of New Mexico took to Twitter on Tuesday and criticized a wave of”Second Amendment Sanctuary” resolutions passed bycounties across the state.

More than half of the state’s33 counties have passedresolutions in opposition to a series of what they calledgun control bills being considered by the state Legislature. Such sanctuary resolutions often say sheriffs should not have to enforce measures they consider unconstitutional. Officials have said the resolutions are symbolic in nature.

Gov. Michelle Lujan Grisham, a Democrat,criticized the movement in a series of Tweets: “A few law enforcement officers in this state have been making noise about how they wont enforce gun safety measures because they dont like them. Thats not how laws work, of course, and its not how oaths of office work either.”

Grisham wrote she would continue to advocate for gun reforms, despite”NRA propaganda, rogue sheriffs throwing a childish pity party or bad-faith critics.”

Opponents of the legislation specifically a bill that wouldexpand background checks on gun sales have said it wouldviolate the Second Amendment by requiring the creation of a statewide gun registry to facilitate background checks.

Feb. 28: U.S. House passes bill extending time for background checks for guns

Feb. 25: Dick’s Sporting Goods CEO Ed Stack still takes tough stance on guns a year after Parkland

“I take an oath to uphold the constitution, and I enforce all lawful laws that do not infringe on my constitutional rights, Mike Herrington, Chaves County Sheriff, told the USA TODAY Network.

Grisham disputed that position in her comments: “Background checks are constitutional. Courts have repeatedly upheld that. Its not debatable.”

New Mexico Governor Michelle Lujan Grisham shown in this Tuesday, Jan. 29, 2019 file photo criticized a wave of”Second Amendment Sanctuary” resolutions passed bycounties across the state.(Photo: Morgan Lee, AP)

House Minority Leader Jim Townsend, R-Artesia,said Grisham’s comments incorrectly minimized the opposition to the legislation:Thousands across New Mexico are filling county commission meetings to stand against her bills, I guess theyre rogue too.”

Among the gun bills advancing through the legislature:

Grisham made national headlines in early February for her stance against President Donald Trump’s assertion that there is a national security crisis at the southern border with Mexico. Shewithdrew the majority of National Guard troopsdeployed at the state’s southern border on Feb. 5.

Contributing: Jessica Onsurez, Carlsbad Current-Argus;The Associated Press

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Second Amendment – Kids | Laws.com

A Guide to the Second Amendment

The Second Amendment, or Amendment II, of the United States Constitution is the amendment and the section of the Bill of Rights that says that people have the right to keep and bear arms. The Second Amendment was adopted into the United States Constitution on December 15, 1791, along with the other amendments in the Bill of Rights. The Second Amendment and the Bill of Rights were introduced into the United States Constitution by James Madison.

The Text of the Second Amendment

There are two important versions of the text found in the Second Amendment, but the only differences are due to punctuation and capitalization. The text of the Second Amendment which is found in the United States Constitution and the Bill of Rights is the following:

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.

What Does the Second Amendment Mean?

The Second Amendment is only a sentence long. However, there are some very important phrases that need to be carefully looked at. Here are some explanations for key phrases in the Second Amendment.

Militia: During early American history, all males who were between the ages of sixteen to sixty were required to be a part of the local militia in their towns and communities. Almost everyone during this time used and owned guns. The few men who did not use or own a gun were required by law to pay a small fee instead of participating in the military services of their communities. These militias defended the communities against Indian raids and revolved, acted as a police force when it was needed, and was also available to be called upon to defense either the State or of the United States of America if it was needed.

Bear arms: When the Second Amendment was written, arms meant weapons. The word arms did not necessarily only mean guns, but it definitely included guns. The Second Amendment did not specifically explain what categories or types of arms nor did it list what weapons were considered arms. When you bear arms, this means you physically carry weapon. You may have arms in your home as well as on your person.

Shall not be infringed: The Second Amendment does not grant any right to bear arms. Furthermore, the rest of the Bill of Rights does not describe any right to do so. These rights are thought of as natural rights or God-given rights. In the Bill of Rights, the Second Amendment is just a reminder to the government that they should not try to stop people from having this right.

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Second Amendment – Kids | Laws.com

The right to bear arms: what does the second amendment really …

The second amendment has become a badge and bumper sticker, a shield for gun activists and scripture for much of the American right. But like other cherished texts, it is not as clear as many make it out to be.

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

For most of the republics lifespan, from 1791 to 2008, those commas and clauses were debated by attorneys and senators, slave owners and freedmen, judges, Black Panthers, governors and lobbyists. For some, the militia was key; for others the right that shall not be infringed; for yet others, the question of states versus the federal government. For the most part, the supreme court stayed out it.

Americans have been thinking about the second amendment as an individual right for generations, said Adam Winkler, a law professor at UCLA and author of Gunfight: The Battle over the Right to Bear Arms in America. You can find state supreme courts in the mid-1800s where judges say the second amendment protects an individual right.

But for the 70 years or so before a supreme court decision in 2008, he said, the supreme court and federal courts held that it only applied in the context of militias, the right of states to protect themselves from federal interference.

In 2008, the supreme court decided the District of Columbia v Heller, 5-4 , overturning a handgun ban in the city. The conservative justice Antonin Scalia wrote the opinion in narrow but unprecedented terms: for the first time in the countrys history, the supreme court explicitly affirmed an individuals right to keep a weapon at home for self-defense.

Justice John Paul Stevens dissented, saying the decision showed disrespect for the well-settled views of all of our predecessors on the court, and for the rule of law itself. Two years later, he dissented from another decision favoring gun rights, writing:

The reasons that motivated the framers to protect the ability of militiamen to keep muskets, or that motivated the Reconstruction Congress to extend full citizenship to freedmen in the wake of the Civil War, have only a limited bearing on the question that confronts the homeowner in a crime-infested metropolis today.

This fight over history, waged by supreme court justices and unlikely allies and foes, goes all the way back.

People look at the same record and come to wildly different conclusions about what the view was in the 18th century, in the 19th century, said Nicholas Johnson, a Fordham University law professor who argues against Winklers view of 20th-century case law.

Attempts to parse original intent go all the way back to the revolution and its aftermath, when the countrys founders bickered about what exactly they were talking about. Carl Bogus, a law professor at Roger Williams University, has argued that James Madison wrote the second amendment in part to reassure his home state of Virginia, where slave owners were terrified of revolts and wary of northerners who would undermine the system.

The militia were at that stage almost exclusively a slave-control tool in the south, he said. You gave Congress the power to arm the militia if Congress chooses not to arm our militia, well, we all know what happens.

The federalist Madisons compromise, according to Bogus, was to promise a bill of rights. After weeks of tense debate, his federalists narrowly won the vote to ratify the constitution. He writes an amendment that gives the states the right to have an armed militia, by the people arming themselves.

A year later, the federal government passed a law requiring every man eligible for his local militia to acquire a gun and register with authorities. (The law was only changed in 1903.)

After the civil war, second amendment rights were again debated by Congress, which abolished militias in the former Confederate states and passed the 1866 Civil Rights Act, explicitly protecting freed slaves right to bear arms. A century later, the founders of the Black Panthers took up guns, symbolically and literally, to press for equal civil rights in California.

The states conservative lawmakers promptly took up the cause of gun control. In 1967, Governor Ronald Reagan signed the Mulford Act, banning the public carry of loaded guns in cities. The governor said he saw no reason why on the street today a citizen should be carrying loaded weapons.

Reagan later supported the Brady Act, a gun control law named after his aide, who was shot during an assassination attempt on Reagan in Washington DC. The National Rifle Association supported the Mulford Act but opposed the Brady Act, signed into law 26 years later.

Winkler, the UCLA professor, said that during the 1970s, a revolt among the membership profoundly altered the NRA overnight. Since the 1930s, the group had supported restrictions on machine guns and public carry, but angry hardliners took control over the organization in 1977, when moderates wanted to retreat from lobbying work. The group then began a decades-long campaign to popularize its uncompromising positions.

The NRA goes far beyond what the second amendment requires people walking around with permits, on college campuses, Winkler said. Their argument is its a fundamental right and freedom. People care more about values than they care about policy.

In the late 1990s, several prominent liberal attorneys, such as Laurence Tribe and Akhil Reed Amar, also argued for an individual right while advocating gun regulation. Gun control activists say they have not changed tack since the supreme courts 2008 decision. Scalia wrote a narrow opinion and listed several exceptions, such as bans on unusual and dangerous weapons and sales to domestic abusers and people with mental illness. He also wrote that states and cities could ban firearms from places like government buildings.

Lower courts have upheld many gun laws around the country since 2008, and the supreme court has declined to hear any second amendment cases since 2010. Attorneys and activists on both sides expect a looming fight over the right to carry guns in public, which the Heller decision does not address.

The courts generally strike a balance between the need for lawmakers to protect public safety and this notion of second amendment rights, said Avery Gardiner, co-president of the Brady Campaign to Prevent Gun Violence. The Heller decision, she said, was entirely consistent with gun laws like background checks.

Theres a mythology here that the supreme court has said something about the second amendment that it hasnt, she said. I think most Americans dont like reading the footnotes.

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The right to bear arms: what does the second amendment really …

Second Amendment to the United States Constitution – Simple …

Created on December 15, 1791, the Second Amendment to the United States Constitution is the part of the United States Bill of Rights that establishes the right of citizens to possess firearms for lawful purposes.[a] It 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.”[2]

When America was being colonized by European countries, firearms were very important to colonists.[3] When Europeans came to America, they brought with them the idea of land ownership by an individual.[4] They received this right from their king through land grants.[4] This was completely foreign to Native Americans who considered a particular territory belonged to the tribe.[4] Colonists defended their claims against Native Americans and other Europeans whose kings may have granted them the same lands.[3] They also needed firearms for hunting. In many towns and villages, men were required to own firearms for the defense of the community. Most colonists coming to America in the 17th century had no experience as soldiers.[5] The British kept few soldiers in the colonies, and colonists soon found they needed to establish militias.[5]

Colonies had militia laws that required every able-bodied white man to be available for militia duty and to provide his own arms.[5] In 1774 and 1775, the British government, which now had a larger presence, attempted to disarm American colonists. This caused the colonists to form private militias, independent of any control by the governors appointed by the British government.[5] The Minutemen who fought the British Army at the Battles of Lexington and Concord were an independent militia.[5]

After the American Revolutionary War, the framers of the Constitution, like most Americans of the time, distrusted standing (permanent) armies and trusted militias.[5] After the Revolutionary War, Americans trusted state militias to defend the country. The Articles of Confederation, the new nation’s first constitution, called for each state to maintain a well-armed militia. Congress could call up the militias to defend the country against any foreign power. However, Congress could only form a standing army if nine of the thirteen states approved. This was one of the weaknesses that led to the Constitutional Convention of 1787 and a new constitution.

In the 18th century, the word “army” meant mercenaries.[5] Americans distrusted standing armies and were afraid they could be used to take over the country.[6] People still remembered Oliver Cromwell and his military dictatorship in England.[6]

Virginia was one of the first colonies to adopt a state constitution. They included the words: “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.”[3] Other states followed with similar wording in their own constitutions. Pennsylvania declared: “the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the 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.”[3]

In 1781 the Continental Congress approved the Articles of Confederation. This recognized that the thirteen original states had the power to govern themselves. They acted collectively to have a congress, but did not provide any money to run it. There was no president and no court system. This confederation of states proved to be a very poor form of central government.

The Constitutional Convention met in Philadelphia, Pennsylvania from May 25 to September 17, 1787.[7] The purpose of the Convention was to revise the Articles of Confederation. But it became clear that many of its members, including James Madison and Alexander Hamilton, wanted to create a new government rather than fix the existing one. The delegates elected George Washington to preside over the Convention. They eventually agreed on agreed on Madison’s Virginia Plan and began to make changes. The result was the Constitution of the United States and the present form of government.[7]

The constitution debate at Philadelphia caused two groups to form: the Federalists and the Anti-federalists. The federalists wanted a strong central government. The anti-federalists wanted the state governments to have more power. The vote on the new Constitution was passed on a promise by federalists to support a Bill of Rights to be added to the Constitution.[8]

Originally, Congress suggested 12 amendments to the states. However, the states only ratified ten. The Bill of Rights, as the first 10 amendments came to be called, originally applied to the national government rather than to states.[8] Many states already had their own Bill of Rights.[8] The Bill of Rights was ratified and went into effect in 1791.

The Second Amendment was a result of several proposals being combined and simplified into just 27 words.[9] This simplification has caused many debates over gun ownership and individual rights. Historians, judges and others have repeatedly looked for the intended meaning by the 18th century writers of this amendment. [9] Different interpretations of the Second Amendment still cause public debates about firearm regulations and gun control.[9]

In 2007, the United States Court of Appeals for the District of Columbia Circuit heard a case called Heller v. District of Columbia. At the time, it was illegal for regular Americans to have a gun in Washington, D.C. To decide whether this was against the Second Amendment, the court looked very closely at capitalization and punctuation in the Amendment to try to figure out exactly what the framers meant.

Judge Laurence H. Silberman wrote the Court’s decision.[10] It made the ban on guns by the District of Columbia invalid.[10] The decision was based on the second comma (after the word “state”) as proof that the Second Amendment allows individuals the right to carry a gun.[10] This is in addition to state’s rights to maintain militias.[10]

The Second Amendment ratified by the States and approved by the Secretary of State, Thomas Jefferson, said:

The version passed by Congress and signed by President George Washington (but never ratified by the States) said:

On June 25, 2008, the Supreme Court agreed with the Court of Appeals’ decision.[2] (In the Supreme Court, the case was called District of Columbia v. Heller.)

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Second Amendment to the United States Constitution – Simple …

Second Amendment to the United States Constitution – Wikipedia

Part of the Bill of Rights

The Second Amendment (Amendment II) to the United States Constitution protects the right of the people to keep and bear arms and was adopted on December 15, 1791 as part of the Bill of Rights.[1][2][3][4]

The Supreme Court ruled in the 2008 Heller decision that the right belongs to individuals in their homes for self-defense[5][6][7] while also including, as dicta, that the right is not unlimited and does not preclude the existence of certain long-standing prohibitions such as those forbidding “the possession of firearms by felons and the mentally ill” or restrictions on “the carrying of dangerous and unusual weapons.”[8][9] State and local governments are limited to the same extent as the federal government from infringing this right.[10]

The Second Amendment was based partially on the right to keep and bear arms in English common law and was influenced by the English Bill of Rights of 1689. Sir William Blackstone described this right as an auxiliary right, supporting the natural rights of self-defense and resistance to oppression, and the civic duty to act in concert in defense of the state.[11]

While both James Monroe and John Adams supported the Constitution being ratified, its most influential framer was James Madison. In Federalist No. 46, Madison wrote how a federal army could be kept in check by state militias, “a standing army … would be opposed [by] a militia.” He argued that state militias “would be able to repel the danger” of a federal army, “It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.” He contrasted the federal government of the United States to the European kingdoms, which he described as “afraid to trust the people with arms,” and assured that “the existence of subordinate governments … forms a barrier against the enterprises of ambition”.[12][13]

By January 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several amendments were proposed, but were not adopted at the time the Constitution was ratified. For example, the Pennsylvania convention debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to the Bill of Rights to assure ratification.

In United States v. Cruikshank (1876), the Supreme Court ruled that, “The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments [sic] means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.”[14] In United States v. Miller (1939), the Supreme Court ruled that the Second Amendment did not protect weapon types not having a “reasonable relationship to the preservation or efficiency of a well regulated militia.”[15][16]

In the twenty-first century, the amendment has been subjected to renewed academic inquiry and judicial interest.[16] In District of Columbia v. Heller (2008), the Supreme Court handed down a landmark decision that held the amendment protects an individual’s right to keep a gun at home for self-defense.[17][18] This was the first time the Court had ruled that the Second Amendment guarantees an individual’s right to own a gun.[19][20][18] In McDonald v. Chicago (2010), the Court clarified that the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment against state and local governments.[21] In Caetano v. Massachusetts (2016), the Supreme Court reiterated its earlier rulings that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” and that its protection is not limited to “only those weapons useful in warfare.”

The debate between various organizations regarding gun control and gun rights continues.[22]

Contents

There are several versions of the text of the Second Amendment, each with capitalization or punctuation differences. Differences exist between the drafted and ratified copies, the signed copies on display, and various published transcriptions.[23][24][25][26][27][28][29][30] The importance (or lack thereof) of these differences has been the source of debate regarding the meaning and interpretation of the amendment, particularly regarding the importance of the prefatory clause.[31][32]

One version was passed by the Congress, and a slightly different version was ratified.[a][33][34][35][36] As passed by the Congress and preserved in the National Archives, with the rest of the original handwritten copy of the Bill of Rights prepared by scribe William Lambert, the amendment says:[37]

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 amendment was ratified by the States and authenticated by Secretary of State Thomas Jefferson as:[38]

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 right to bear arms in English history is regarded in English law as a subordinate auxiliary right of the primary rights to personal security, personal liberty, and private property. According to Sir William Blackstone, “The … last auxiliary right of the subject … is that of having arms for their [defense], suitable to their condition and degree, and such as are allowed by law. Which is … declared by … statute, 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.”[b]

The English Bill of Rights of 1689 emerged from a tempestuous period in English politics during which two issues were major sources of conflict: the authority of the King to govern without the consent of Parliament, and the role of Catholics in a country that was becoming ever more Protestant. Ultimately, the Catholic JamesII was overthrown in the Glorious Revolution, and his successors, the Protestants WilliamIII and MaryII, accepted the conditions that were codified in the Bill. One of the issues the Bill resolved was the authority of the King to disarm his subjects, after King Charles II and JamesII had disarmed many Protestants that were “”suspected or knowne” of disliking the government,[39] and had argued with Parliament over his desire to maintain a standing (or permanent) army.[c] The bill states that it is acting to restore “ancient rights” trampled upon by JamesII, though some have argued that the English Bill of Rights created a new right to have arms, which developed out of a duty to have arms.[40] In District of Columbia v. Heller (2008), the Supreme Court did not accept this view, remarking that the English right at the time of the passing of the English Bill of Rights was “clearly an individual right, having nothing whatsoever to do with service in the militia” and that it was a right not to be disarmed by the Crown and was not the granting of a new right to have arms.[41]

The text of the English Bill of Rights of 1689 includes language protecting the right of Protestants against disarmament by the Crown. This document states: “That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.”[42] It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament.[43] Nevertheless, the English Bill of Rights remains an important constitutional document, more for enumerating the rights of Parliament over the monarchy than for its clause concerning a right to have arms.

The statement in the English Bill of Rights concerning the right to bear arms is often quoted only in the passage where it is written as above and not in its full context. In its full context it is clear that the bill was asserting the right of Protestant citizens not to be disarmed by the King without the consent of Parliament and was merely restoring rights to Protestants that the previous King briefly and unlawfully had removed. In its full context it reads:

Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome (list of grievances including) … by causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law, (Recital regarding the change of monarch) … thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors in like Case have usually done) for the Vindicating and Asserting their ancient Rights and Liberties, Declare (list of rights including) … That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.[42]

The historical link between the English Bill of Rights and the Second Amendment, which both codify an existing right and do not create a new one, has been acknowledged by the U.S. Supreme Court.[d][e]

The English Bill of Rights includes the proviso that arms must be as “allowed by law.” This has been the case before and after the passage of the Bill. While it did not override earlier restrictions on the ownership of guns for hunting, it is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments.[44]

There is some difference of opinion as to how revolutionary the events of 168889 actually were, and several commentators make the point that the provisions of the English Bill of Rights did not represent new laws, but rather stated existing rights. Mark Thompson wrote that, apart from determining the succession, the English Bill of Rights did “little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already posessed [sic].”[45] Before and after the English Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm.[46] In 1765, William Blackstone wrote the Commentaries on the Laws of England describing the right to have arms in England during the 18th century as a subordinate auxiliary right of the subject that was “also declared” in the English Bill of Rights.[47][48]

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 1 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.[49]

Although there is little doubt that the writers of the Second Amendment were heavily influenced by the English Bill of Rights, it is a matter of interpretation as to whether they were intent on preserving the power to regulate arms to the states over the federal government (as the English Parliament had reserved for itself against the monarch) or whether it was intent on creating a new right akin to the right of others written into the Constitution (as the Supreme Court decided in Heller). Some in the United States have preferred the “rights” argument arguing that the English Bill of Rights had granted a right. The need to have arms for self-defence was not really in question. Peoples all around the world since time immemorial had armed themselves for the protection of themselves and others, and as organized nations began to appear these arrangements had been extended to the protection of the state.[50] Without a regular army and police force (which in England was not established until 1829), it had been the duty of certain men to keep watch and ward at night and to confront and capture suspicious persons. Every subject had an obligation to protect the king’s peace and assist in the suppression of riots.[51]

Early English settlers in America viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes (in no particular order):[f][g][53][54][55][56][57][58]

Which of these considerations were thought of as most important and ultimately found expression in the Second Amendment is disputed. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776 asserted that, “the people have a right to bear arms for the defence of themselves and the state.”[65]

During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, including many who were loyal to British imperial rule. As defiance and opposition to British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists, known as Patriots, who favored independence from British rule. As a result, some Patriots created their own militias that excluded the Loyalists and then sought to stock independent armories for their militias. In response to this arms build up, the British Parliament established an embargo of firearms, parts and ammunition against the American colonies.[66] King George III also began disarming individuals who were in the most rebellious areas in the 1760’s and 70’s.[67]

British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, Blackstone’s summary of the Declaration of Rights, their own militia laws and common law rights to self-defense.[68] While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense.[68] Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars’ interpretation of Blackstone.[69]

The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 Boston objecting to the British army suppression of colonial opposition to the Townshend Acts:

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.[68]

Furthermore, one article from New York in 1769 stated: “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.”[70]

The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with regular French army and naval forces and various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist militia and Hessian mercenaries. Following the Revolution, the United States was governed by the Articles of Confederation. Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the standing army was reduced to as few as 80 men.[71] They considered it to be bad that there was no effective federal military crackdown on an armed tax rebellion in western Massachusetts known as Shays’ Rebellion.[72] Anti-federalists on the other hand took the side of limited government and sympathized with the rebels, many of whom were former Revolutionary War soldiers. Subsequently, the Constitutional Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.[73][74] Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power.[75]

Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that James 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.”[76] In contrast, historian Jack Rakove suggests that Madison’s intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed.[77]

One aspect of the gun control debate is the conflict between gun control laws and the right to rebel against unjust governments. Blackstone in his Commentaries alluded to this right to rebel as the natural right of resistance and self preservation, to be used only as a last resort, exercisable when “the sanctions of society and laws are found insufficient to restrain the violence of oppression”.[78] Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation,[79] as Alexander Hamilton explained in his Concerning the Militia essay published in 1788:

… it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defence of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the Government to form an army of any magnitude, that army can never be formidable to the liberties of the People, while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights, and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.[79][80]

Some scholars have said that it is wrong to read a right of armed insurrection in the Second Amendment because clearly the founding fathers sought to place trust in the power of the ordered liberty of democratic government versus the anarchy of insurrectionists.[81][82] Other writers, such as Glenn Reynolds, contend that the framers did believe in an individual right to armed insurrection. They cite examples, such as the Declaration of Independence (describing in 1776 “the Right of the People to … institute new Government”) and the Constitution of New Hampshire (stating in 1784 that “nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind”).[83]

There was an ongoing debate beginning in 1789 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 increasingly violent French Revolution.[84] A widespread fear, during the debates on ratifying the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens,[h] or prohibiting citizens from arming themselves.[68] Though it has been argued that the states lost the power to arm their citizens when the power to arm the militia was transferred from the states to the federal government by Article I, Section 8 of the Constitution, the individual right to arm was retained and strengthened by the Militia Acts of 1792 and the similar act of 1795.[85][86]

Note: On May 10, 1776, Congress passed a resolution recommending that any colony with a government that was not inclined toward independence should form one that was.[87]

Virginia’s Constitution lists the reasons for dissolving its ties with the King in the formation of its own independent state government. Including the following:

* These same reasons would later be outlined within the Declaration of Independence.

A Declaration of Rights. Section 13. 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; 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.[88]

Article 13. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the 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.[89]

IMPORTANT NOTE: This is the first instance in relationship to U.S. Constitutional Law of the phrase “right to bear arms.”

It is of relevance that Pennsylvania was a Quaker Colony traditionally opposed to bearing arms. “In settling Pennsylvania, William Penn had a great experiment in view, a ‘holy experiment,’ as he term[ed] it. This was no less than to test, on a scale of considerable magnitude, the practicability of founding and governing a State on the sure principles of the Christian religion; where the executive should be sustained without arms; where justice should be administered without oaths; and where real religion might flourish without the incubus of a hierarchical system.”[90] The Non-Quaker residents, many from the Western Counties, complained often and loudly of being denied the right to a common defense. By the time of the American Revolution, through what could be described as a revolution within a revolution, the pro-militia factions had gained ascendancy in the state’s government. And by a manipulation through the use of oaths, disqualifying Quaker members, they made up a vast majority of the convention forming the new state constitution; it was only natural that they would assert their efforts to form a compulsory State Militia in the context of a “right” to defend themselves and the state.[91]

Articles XXV-XXVII. 25. That a well-regulated militia is the proper and natural defence of a free government. 26. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature. 27. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.[92]

A Declaration of Rights. Article XVII. 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.[93]

Article XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth. And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.[94]

Chapter 1. Section XVIII. That the people have a right to bear arms for the defence of the themselves and the State; and as standing armies, in the 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.[95]

A Declaration of Rights. Chapter 1. Article XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.[96]

In March 1785, delegates from Virginia and Maryland assembled at the Mount Vernon Conference to fashion a remedy to the inefficiencies of the Articles of Confederation. The following year, at a meeting in Annapolis, Maryland, 12 delegates from five states (New Jersey, New York, Pennsylvania, Delaware, and Virginia) met and drew up a list of problems with the current government model. At its conclusion, the delegates scheduled a follow-up meeting in Philadelphia, Pennsylvania for May 1787 to present solutions to these problems, such as the absence of:[100][101]

It quickly became apparent that the solution to all three of these problems required shifting control of the states’ militias to the federal congress and giving that congress the power to raise a standing army.[102] Article 1, Section 8 of the Constitution codified these changes by allowing the Congress to provide for the common defense and general welfare of the United States by doing the following:[103]

Some representatives mistrusted proposals to enlarge federal powers, because they were concerned about the inherent risks of centralizing power. Federalists, including James Madison, initially argued that a bill of rights was unnecessary, sufficiently confident that the federal government could never raise a standing army powerful enough to overcome a militia.[104] Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.[105][106] Anti-federalists, on the other hand, advocated amending the Constitution with clearly defined and enumerated rights providing more explicit constraints on the new government. Many Anti-federalists feared the new federal government would choose to disarm state militias. Federalists countered that in listing only certain rights, unlisted rights might lose protection. The Federalists realized there was insufficient support to ratify the Constitution without a bill of rights and so they promised to support amending the Constitution to add a bill of rights following the Constitution’s adoption. This compromise persuaded enough Anti-federalists to vote for the Constitution, allowing for ratification.[107] The Constitution was declared ratified on June21, 1788, when nine of the original thirteen states had ratified it. The remaining four states later followed suit, although the last two states, North Carolina and Rhode Island, ratified only after Congress had passed the Bill of Rights and sent it to the states for ratification.[108] James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June8, 1789, and was adopted on December15, 1791.

The debate surrounding the Constitution’s ratification is of practical importance, particularly to adherents of originalist and strict constructionist legal theories. In the context of such legal theories and elsewhere, it is important to understand the language of the Constitution in terms of what that language meant to the people who wrote and ratified the Constitution.[109]

The Second Amendment was relatively uncontroversial at the time of its ratification.[110] Robert Whitehill, a delegate from Pennsylvania, sought to clarify the draft Constitution with a bill of rights explicitly granting individuals the right to hunt on their own land in season,[111] though Whitehill’s language was never debated.[112]

There was substantial opposition to the new Constitution, because it moved the power to arm the state militias from the states to the federal government. This created a fear that the federal government, by neglecting the upkeep of the militia, could have overwhelming military force at its disposal through its power to maintain a standing army and navy, leading to a confrontation with the states, encroaching on the states’ reserved powers and even engaging in a military takeover. Article VI of the Articles of Confederation states:

In contrast, Article I, Section 8, Clause 16 of the U.S. Constitution states:

A foundation of American political thought during the Revolutionary period was concerned about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is “a chimerical idea to suppose that a country like this could ever be enslaved … Is it possible … that an army could be raised for the purpose of enslaving themselves or their brethren? Or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?”[116] Noah Webster similarly argued:

George Mason also argued the importance of the militia and right to bear arms by reminding his compatriots of England’s efforts “to disarm the people; that it was the best and most effectual way to enslave them … by totally disusing and neglecting the militia.” He also clarified that under prevailing practice the militia included all people, rich and poor. “Who are the militia? They consist now of the whole people, except a few public officers.” Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.[12][118]

Writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included “the right to keep and bear arms” in a list of basic “human rights”, which he proposed to be added to the Constitution.[119]

Patrick Henry argued in the Virginia ratification convention on June 5, 1788, for the dual rights to arms and resistance to oppression:

According to political commentator Thom Hartmann, the Virginians James Madison, Patrick Henry, and George Mason were concerned that “slave patrols,” organized groups of white men who enforced discipline upon enslaved African Americans, needed to remain armed and, therefore, the Constitution needed to clarify that states have the right to organize white men in such militias.[120] Also, Patrick Henry argued against the ratification of both the Constitution and the Second Amendment.[64] Most Southern white men aged1845 were required to serve on such patrols.

Legal historian Paul Finkelman disputes Hartmann’s claim that the Second Amendment was adopted to protect slave patrols, arguing that Hartmann’s claim is “factually incorrect and misleading” and that there is no historical evidence for this assertion.[64]

James Madison’s initial proposal for a bill of rights was brought to the floor of the House of Representatives on June 8, 1789, during the first session of Congress. The initial proposed passage relating to arms 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.[121]

On July 21, Madison again 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,[122] and the Bill of Rights entered committee for review. The committee returned to the House a reworded version of the Second Amendment on July 28.[123] 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.[124]

In late August 1789, the House debated and modified the Second Amendment. 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 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. However, the Senate scribe added a comma before “shall not be infringed” and changed the semicolon separating that phrase from the religious exemption portion to a comma:

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.[125]

By this time, the proposed right to keep and bear arms was in a separate amendment, instead of being in a single amendment together with other proposed rights such as the due process right. As a Representative explained, this change allowed each amendment to “be passed upon distinctly by the States.”[126] 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.[127]

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. A motion passed to replace the words “the best,” and insert in lieu thereof “necessary to the” .[128] The Senate then slightly modified the language to read as the fourth article and voted to return the Bill of Rights to the House. The final version by the Senate was amended to read as:

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 House voted on September 21, 1789 to accept the changes made by the Senate.

The enrolled original Joint Resolution passed by Congress on September 25, 1789, on permanent display in the Rotunda, reads as:

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.[129]

On December 15, 1791, the Bill of Rights (the first ten amendments to the Constitution) was adopted, having been ratified by three-fourths of the states, having been ratified as a group by all the fourteen states then in existence except Connecticut, Massachusetts, and Georgia which added ratifications in 1939.[130]

During the first two decades following the ratification of the Second Amendment, public opposition to standing armies, among Anti-Federalists and Federalists alike, persisted and manifested itself locally as a general reluctance to create a professional armed police force, instead relying on county sheriffs, constables and night watchmen to enforce local ordinances.[66] Though sometimes compensated, often these positions were unpaid held as a matter of civic duty. In these early decades, law enforcement officers were rarely armed with firearms, using billy clubs as their sole defensive weapons.[66] In serious emergencies, a posse comitatus, militia company, or group of vigilantes assumed law enforcement duties; these individuals were more likely than the local sheriff to be armed with firearms.[66]On May 8, 1792, Congress passed “[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States” requiring:

[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia … [and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.[131]

The act also gave specific instructions to domestic weapon manufacturers “that from and after five years from the passing of this act, muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound.”[131] In practice, private acquisition and maintenance of rifles and muskets meeting specifications and readily available for militia duty proved problematic; estimates of compliance ranged from 10 to 65percent.[132] Compliance with the enrollment provisions was also poor. In addition to the exemptions granted by the law for custom-house officers and their clerks, post-officers and stage drivers employed in the care and conveyance of U.S. mail, ferrymen, export inspectors, pilots, merchant mariners and those deployed at sea in active service; state legislatures granted numerous exemptions under Section2 of the Act, including exemptions for: clergy, conscientious objectors, teachers, students, and jurors. And though a number of able-bodied white men remained available for service, many simply did not show up for militia duty. Penalties for failure to appear were enforced sporadically and selectively.[133] None is mentioned in the legislation.[131]

The first test of the militia system occurred in July 1794, when a group of disaffected Pennsylvania farmers rebelled against federal tax collectors whom they viewed as illegitimate tools of tyrannical power.[134] Attempts by the four adjoining states to raise a militia for nationalization to suppress the insurrection proved inadequate. When officials resorted to drafting men, they faced bitter resistance. Forthcoming soldiers consisted primarily of draftees or paid substitutes as well as poor enlistees lured by enlistment bonuses. The officers, however, were of a higher quality, responding out of a sense of civic duty and patriotism, and generally critical of the rank and file.[66] Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.[66] In October, President George Washington and General Harry Lee marched on the 7,000rebels who conceded without fighting. The episode provoked criticism of the citizen militia and inspired calls for a universal militia. Secretary of War Henry Knox and Vice-President John Adams had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production.[66] Congress did subsequently pass “[a]n act for the erecting and repairing of Arsenals and Magazines” on April 2, 1794, two months prior to the insurrection.[135] Nevertheless, the militia continued to deteriorate and twenty years later, the militia’s poor condition contributed to several losses in the War of 1812, including the sacking of Washington, D.C., and the burning of the White House in 1814.[133]

In May of 1788, Richard Henry Lee wrote in Additional Letters From The Federal Farmer #169 or Letter XVIII regarding the definition of a “militia”:

A militia, when properly formed, are in fact the people themselves, and render regular troops in a great measure unnecessary.

In June of 1788, George Mason addressed the Virginia Ratifying Convention regarding a “militia:”

A worthy member has asked, who are the militia, if they be not the people, of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c. by our representation? I ask who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government all ranks of people are subject to militia duty.

In 1792, Tench Coxe made the following point in a commentary on the Second Amendment:[136]

As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.[137][138]

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 published in 1803.[139][140] Tucker wrote:

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. Amendments to C. U. S. Art. 4. This may be considered as the true palladium of liberty … The right of self defence is the first law of nature: In most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. 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.[141]

In footnotes 40 and 41 of the Commentaries, Tucker stated that the right to bear arms under the Second Amendment was not subject to the restrictions that were part of English law: “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.” Blackstone himself also commented on English game laws, 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.”[139] Blackstone discussed the right of self-defense in a separate section of his treatise on the common law of crimes. Tucker’s annotations for that latter section did not mention the Second Amendment but cited the standard works of English jurists such as Hawkins.[i]

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.”[139]

Tucker’s commentary was soon followed, in 1825, by that of William Rawle in his landmark text, A View of the Constitution of the United States of America. Like Tucker, Rawle condemned England’s “arbitrary code for the preservation of game,” portraying that country as one that “boasts so much of its freedom,” yet provides a right to “protestant subjects only” that it “cautiously describ[es] to be that of bearing arms for their defence” and reserves for “[a] very small proportion of the people[.]”[142] In contrast, Rawle characterizes the second clause of the Second Amendment, which he calls the corollary clause, as a general prohibition against such capricious abuse of government power, declaring bluntly:

No clause could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[143]

Speaking of the Second Amendment generally, Rawle said:[j]

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[j][144]

Rawle, long before the concept of incorporation was formally recognized by the courts, or Congress drafted the Fourteenth Amendment, contended that citizens could appeal to the Second Amendment should either the state or federal government attempt to disarm them. He did warn, however, that “this right [to bear arms] ought not … be abused to the disturbance of the public peace” and, paraphrasing Coke, observed: “An assemblage of persons with arms, for unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace.”[142]

Joseph Story articulated in his influential Commentaries on the Constitution[145] the orthodox view of the Second Amendment, which he viewed as the amendment’s clear meaning:

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 usurpations and arbitrary power of rulers; and it 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 burdens, 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.[k][146]

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Second Amendment to the United States Constitution – Wikipedia

Second Amendment legal definition of Second Amendment

The Second Amendment to the U.S. Constitution reads:

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

The subject matter and unusual phrasing of this amendment led to much controversy and analysis, especially in the last half of the twentieth century. Nevertheless, the meaning and scope of the amendment have long been decided by the Supreme Court.

Firearms played an important part in the colonization of America. In the seventeenth and eighteenth centuries, European colonists relied heavily on firearms to take land away from Native Americans and repel attacks by Native Americans and Europeans. Around the time of the Revolutionary War, male citizens were required to own firearms for fighting against the British forces. Firearms were also used in hunting.

In June 1776, one month before the signing of the Declaration of Independence, Virginia became the first colony to adopt a state constitution. In this document, the state of Virginia pronounced 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.” After the colonies declared their independence from England, other states began to include the right to bear arms in their constitution. Pennsylvania, for example, declared that

the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the 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.

The wording of clauses about bearing arms in late-eighteenth-century state constitutions varied. Some states asserted that bearing arms was a “right” of the people, whereas others called it a “duty” of every able-bodied man in the defense of society.

Pennsylvania was not alone in its express discouragement of a standing (professional) army. Many of the Framers of the U.S. Constitution rejected standing armies, preferring instead the model of a citizen army, equipped with weapons and prepared for defense. According to Framers such as Elbridge Gerry of Massachusetts and George Mason of Virginia a standing army was susceptible to tyrannical use by a power-hungry government.

At the first session of Congress in March 1789, the Second Amendment was submitted as a counterweight to the federal powers of Congress and the president. According to constitutional theorists, the Framers who feared a central government extracted the amendment as a compromise from those in favor of centralized authority over the states. The Revolutionary War had, after all, been fought in large part by a citizen army against the standing armies of England.

The precise wording of the amendment was changed two times before the U.S. Senate finally cast it in its present form. As with many of the amendments, the exact wording proved critical to its interpretation.

In 1791 a majority of states ratified the Bill of Rights, which included the Second Amendment. In its final form, the amendment presented a challenge to interpreters. It was the only amendment with an opening clause that appeared to state its purpose. The amendment even had defective punctuation; the comma before shall seemed grammatically unnecessary.

Legal scholars do not agree about this comma. Some have argued that it was intentional and that it was intended to make militia the subject of the sentence. According to these theorists, the operative words of the amendment are “[a] well regulated Militia shall not be infringed.” Others have argued that the comma was a mistake, and that the operative words of the sentence are “the right of the people to bear arms shall not be infringed.” Under this reading, the first part of the sentence is the rationale for the absolute, personal right of the people to own firearms. Indeed, the historical backdrophighlighted by a general disdain for professional armieswould seem to support this theory.

Some observers argue further that the Second Amendment grants the right of insurrection. According to these theorists, the Second Amendment was designed to allow citizens to rebel against the government. Thomas Jefferson is quoted as saying that “a little rebellion every now and then is a good thing.”

The Supreme Court makes the ultimate determination of the Constitution’s meaning, and it has defined the amendment as simply granting to the states the right to maintain a militia separate from federally controlled militias. This interpretation first came in United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1875). In Cruikshank, approximately one hundred persons were tried jointly in a Louisiana federal court with felonies in connection with an April 13, 1873, assault on two AfricanAmerican men. One of the criminal counts charged that the mob intended to hinder the right of the two men to bear arms. The defendants were convicted by a jury, but the circuit court arrested the judgment, effectively overturning the verdict. In affirming that decision, the Supreme Court declared that “the second amendment means no more than that [the right to bear arms] shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government.”

In Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886), Herman Presser was charged in Illinois state court with parading and drilling an unauthorized militia in the streets of Chicago in December 1879, in violation of certain sections of the Illinois Military Code. One of the sections in question prohibited the organization, drilling, operation, and parading of militias other than U.S. troops or the regular organized volunteer militia of the state. Presser was tried by the judge, convicted, and ordered to pay a fine of $10. On appeal to the U.S. Supreme Court, Presser argued, in part, that the charges violated his Second Amendment right to bear arms. The Court disagreed and upheld Presser’s conviction. The Court cited Cruikshank for the proposition that the Second Amendment means only that the federal government may not infringe on the right of states to form their own militias. This meant that the Illinois state law forbidding citizen militias was not unconstitutional. However, in its opinion, the Court in Presser delivered a reading of the Second Amendment that seemed to suggest an absolute right of persons to bear arms: “It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States,” and “states cannot prohibit the people from keeping and bearing arms.”

Despite this generous language, the Court refused to incorporate the Second Amendment into the Fourteenth Amendment. Under the first section of the Fourteenth Amendment, passed in 1868, states may not abridge the Privileges and Immunities of citizens of the United States. The privileges and immunities of citizens are listed in the Bill of Rights, of which the Second Amendment is part. Presser had argued that states may not, by virtue of the Fourteenth Amendment, abridge the right to bear arms. The Court refused to accept the argument that the right to bear arms is a personal right of the people. According to the Court, “The right to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship.”

The Presser opinion is best understood in its historical context. The Northern states and the federal government had just fought the Civil War against Southern militias unauthorized by the federal government. After this ordeal, the Supreme Court was in no mood to accept an expansive right to bear arms. At the same time, the Court was sensitive to the subject of federal encroachment on States’ Rights.

Private militias are armed military groups that are composed of private citizens and not recognized by federal or state governments. Private militias have been formed by individuals in America since the colonial period. In fact, the Revolutionary War against England was fought in part by armies comprising not professional soldiers but ordinary male citizens.

Approximately half the states maintain laws regulating private militias. Generally, these laws prohibit the parading and exercising of armed private militias in public, but do not forbid the formation of private militias. In Wyoming, however, state law forbids the very formation of private militias. Under section 19-1-106 of the Wyoming Statutes, “No body of men other than the regularly organized national guard or the troops of the United States shall associate themselves together as a military company or organization, or parade in public with arms without license of the governor.” The Wyoming law also prohibits the public funding of private militias. Anyone convicted of violating the provisions of the law is subject to a fine of not more than $1,000, imprisonment of six months, or both, for each offense.

In states that do not outlaw them, private militias are limited only by the criminal laws applicable to all of society. Thus, if an armed private militia seeks to parade and exercise in a public area, its members will be subject to arrest on a variety of laws, including disturbing-the-peace, firearms, or even riot statutes.

Many private militias are driven by the insurrection theory of the Second Amendment. Under this view, the Second Amendment grants an unconditional right to bear arms for Self-Defense and for rebellion against a tyrannical governmentwhen a government turns oppressive, private citizens have a duty to “insurrect,” or take up arms against it.

The U.S. Supreme Court has issued a qualified rejection of the insurrection theory. According to the Court in Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951), “[W]hatever theoretical merit there may be to the argument that there is a ‘right’ to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.” Scholars have interpreted this to mean that as long as the government provides for free elections and trials by jury, private citizens have no right to take up arms against the government.

Some people have disagreed with the Supreme Court’s definition of tyranny. Many of these people label the state and federal governments as tyrannical based on issues such as taxes and government regulations. Others cite governments ponsored racial and ethnic Integration as driving forces in their campaign against the federal and state governments. Many of these critics have formed private militias designed to resist perceived government oppression.

Some private militias have formed their own government. The legal problems of these private militias are generally unrelated to military activities. Instead, any criminal charges usually arise from activities associated with their political beliefs. The Freemen of Montana is one such militia. This group denied the legitimacy of the federal government and created its own township called Justus. The Freemen established its own court system, posted bounties for the arrest of police officers and judges, and held seminars on how to challenge laws its members viewed as beyond the scope of the Constitution. According to neighbors, the group also established its own common-law court system and built its own jail for the imprisonment of trespassers and government workers, or “public hirelings.”

In the 1990s, the Freemen came to the attention of federal prosecutors after members of the group allegedly wrote worthless checks and money orders to pay taxes and to defraud banks and credit card companies. One Freeman had also allegedly threatened a federal judge, and some had allegedly refused to pay taxes for at least a decade.

In March 1996, law enforcement officials obtained warrants for the arrest of many of the Freemen. However, remembering the violence that occurred when officials attempted to serve arrest warrants on another armed group in Waco, Texas, in 1993, law enforcement authorities did not invade the Freemen’s 960-acre ranch in Jordan, Montana. Although the Freemen constituted an armed challenge to all government authority, its beliefs and its military activities were not illegal, and most of its members were charged with nonviolent crimes, such as Fraud and related conspiracy. Two men were also charged with threatening public officials. In addition, several Freemen faced charges of criminal syndicalism, which is the advocacy of violence for political goals.

Amar, Akhil Reed. 2002. “Second Thoughts.” Law and Contemporary Problems 65 (spring).

Barry, Monica Sue. 1996. “Stockpiling Weapons: Can Private Militias Receive Protection under the First and Second Amendments?” Thomas Jefferson Law Review 18 (spring).

Hardaway, Robert, Elizabeth Gormley, and Bryan Taylor. 2002. “The Inconvenient Militia Clause of the Second Amendment: Why the Supreme Court Declines to Resolve the Debate over the Right to Bear Arms.” St. John’s Journal of Legal Commentary 16 (winter).

Dennis v. United States.

Several decades later, the Supreme Court ignored the contradictory language in Presser and cemented a limited reading of the Second Amendment. In United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939), defendants Jack Miller and Frank Layton were charged in federal court with unlawful transportation of firearms in violation of certain sections of the National Firearms Act of June 26, 1934 (ch. 757, 48 Stat. 12361240 [26 U.S.C.A. 1132 et seq.]). Specifically, Miller and Layton had transported shotguns with barrels less than 18 inches long, without the registration required under the act.

The district court dismissed the indictment, holding that the act violated the Second Amendment. The United States appealed. The Supreme Court reversed the decision and sent the case back to the trial court. The Supreme Court stated that the Second Amendment was fashioned “to assure the continuation and render possible the effectiveness of militia forces.”

The Miller opinion confirmed the restrictive language of Presser and solidified a narrow reading of the Second Amendment. According to the Court in Miller, the Second Amendment does not guarantee the right to own a firearm unless the possession or use of the firearm has “a reasonable relationship to the preservation or efficiency of a well regulated militia.”

The legislative measures that inspire most Second Amendment discussions are Gun Control laws. Since the mid-nineteenth century, state legislatures have been passing laws that infringe a perceived right to bear arms. Congress has also asserted the power to regulate firearms. No law regulating firearms has ever been struck down by the Supreme Court as a violation of the Second Amendment.

Historically, the academic community has largely ignored the Second Amendment. However, gun control laws have turned many laypersons into scholars of the Second Amendment’s history. The arguments for a broader interpretation are many and varied. Most center on the Original Intent of the Framers. Some emphasize that the Second Amendment should be interpreted as granting an unconditional personal right to bear arms for defensive and sporting purposes. Others adhere to an insurrection theory, under which the Second Amendment not only grants the personal right to bear arms, it gives citizens the right to rebel against a government perceived as tyrannical.

In response to these arguments, supporters of the prevailing Second Amendment interpretation maintain that any right to bear arms should be secondary to concerns for public safety. They also point out that other provisions in the Constitution grant power to Congress to quell insurrections, thus contradicting the insurrection theory. Lastly, they argue that the Constitution should be interpreted in accordance with a changing society and that the destructive capability of semiautomatic and automatic firearms was not envisioned by the Framers.

In response to the last argument, critics maintain that because such firearms exist, it should be legal to use them against violent criminals who are themselves wielding such weapons.

In the 2000s, federal courts continue to revisit the scope and detail of the Second Amendment right to bear arms. In particular federal courts have recast much of the debate as one over whether the Second Amendment protects a “collective” right or an “individual” right to bear arms. If the Second Amendment protects only a collective right, then only states would have the power to bring a legal action to enforce it and only for the purpose of maintaining a “well-regulated militia.” If the Second Amendment protects only an individual right to bear arms, then only individuals could bring suit to challenge gun-control laws that curb their liberty to buy, sell, own, or possess firearms and other guns.

Not surprisingly, courts are conflicted over how to resolve this debate. In United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), the U.S. Court of Appeals for the Fifth Circuit found that the original intent of the Founding Fathers supported an individual-rights interpretation of the Second Amendment, while the Ninth Circuit came to the opposite conclusion in Nordyke v. King, 319 F.3d 1185 (9th Cir. 2003). Although no court has concluded that the original intent underlying the Second Amendment supports a claim for both an individual- and a collective rights based interpretation of the right to bear arms, the compelling historical arguments marshaled on both sides of the debate would suggest that another court faced with the same debate may reach such a conclusion.

Amar, Akhil Reed. 1992. “The Bill of Rights and the Fourteenth Amendment.” Yale Law Journal 101 (April).

Becker, Edward R. 1997. “The Second Amendment and Other Federal Constitutional Rights of the Private Militia.” Montana Law Review 58 (winter).

Bogus, Carl T., ed. 2000. The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms. New York: New Press.

Dolan, Edward F., and Margaret M. Scariano. 1994. Guns in the United States. New York: Watts.

Dunlap, Charles J., Jr. 1995. “Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment.” Tennessee Law Review 62 (spring).

Hanson, Freya Ottem. 1998. The Second Amendment: The Right to Own Guns. Springfield, N.J.: Enslow.

Hook, Donald D. 1992. Gun Control: The Continuing Debate. Washington, D.C.: Second Amendment Foundation.

Hoppin, Jason. 2003. “Ninth Circuit Upholds Controversial Ruling on Second Amendment.” Legal Intelligencer (May 8).

. 2003. “Second Amendment Fight Steals Show in Gun Ban Case: Panel Enters Fray over Individual Rights.” San Francisco Recorder (February 19).

McAffee, Thomas B. 1997. “Constitutional Limits on Regulating Private Militia Groups.” Montana Law Review 58 (winter).

Gun Control.

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