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The Second Amendment (Amendment II) to the United States Constitution is the part of the United States Bill of Rights protecting the pre-existing individual right to "keep and bear arms" (i.e. to "possess and carry weapons in case of confrontation"). Codification of the right to keep and bear arms into the Bill of Rights was influenced by a fear that the federal government would disarm the people in order to impose rule through a standing army or select militia, since history had shown taking away the people's arms and making it an offense for people to keep them was the way tyrants eliminated resistance to suppression of political opponents. Self-defense is a central component of the right enumerated in the amendment.

The first Supreme Court case to consider the Second Amendment was United States v. Cruikshank, 92 U.S. 542 (1875). At page 543, Mr. Chief Justice Waite wrote: "This is not a right granted by the Constitution, neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes."

In District of Columbia v. Heller (June 26, 2008), the Supreme Court considered its precedent Cruikshank decision, and in footnote 23, page 51, "reaffirmed that the Second Amendment applies only to the Federal Government."

had not directly addressed the amendment, or had only done so in limited or ambiguous terms, and because the amendment contains a prefatory clause, which refers to a "well regulated militia," there was disagreement as to whether it protected a collective or individual right.

Text

There are two versions of the text of the Second Amendment, each with slight capitalization and punctuation differences:

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

A 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.

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

History

Origin of the right

The concept of a universal militia originated in England. The requirement that subjects bear arms and serve military duty dates back to at least the 12th century when King Henry II, in the Assize of Arms, obligated all freemen to bear arms for public defense. King Henry III required every subject between the ages of fifteen and fifty (including non-land owning subjects) to own a weapon other than a knife. The reason for such a requirement was that in the absence of a regular army and police force (which was not established until 1829), it was the duty of every man to keep watch and ward at night to capture and confront suspicious persons. Every subject had an obligation to protect the king’s peace and assist in the suppression of riots. This remained relatively unchanged until 1671, when Parliament created a statute that drastically raised the property qualifications needed to possess firearms. In 1686, King James II banned without exception the Protestants' ability to possess firearms, even while Protestants constituted over 95% of the English subjects. In 1689, with the rise of William of Orange, the English Bill of Rights reversed this by declaring "That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law."

English Common Law

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

That the subjects which are Protestants may have Arms for their Defence suitable to their Conditions, and as allowed by Law.

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

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

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

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

John Adams, lead defense attorney for the British soldiers on trial for the Boston Massacre, stated at the trial:

Here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defense, not for offence…

When Colonists protested British efforts to disarm their militias in the early phases of the American Revolution, colonists cited the Declaration of Rights, Blackstone's summary of the Declaration of Rights, their own militia laws, and common law rights to self-defense. While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the militia, there is no evidence that the British sought to restrict the traditional common law right of self-defense. Indeed, in his arguments on behalf of British troops in the Boston Massacre, John Adams invoked the common law of self-defense. Thomas B. McAffee & Michael J. Quinlan stated "… Madison did not invent the right to keep and bear arms when he drafted the Second Amendment—the right was pre-existing at both common law and in the early state constitutions."

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

Early commentary

The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker, who edited Blackstone's Commentaries.

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

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.

The 1833 book Commentaries on the U.S. Constitution authored by Associate Justice of the Supreme Court Joseph Story, has been excerpted by both sides of the modern gun debate to support their particular points of view.

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

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

Adoption

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

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

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

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

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

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

Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the state governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.

Similarly, Federalist Noah Webster wrote:

Tyranny is the exercise of some power over a man, which is not warranted by law, or necessary for the public safety. A people can never be deprived of their liberties, while they retain in their own hands, a power sufficient to any other power in the state.

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

Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.

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

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

The power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.

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

The State is in critical Circumstances, and have been brought into them by the Heat and Impatience of the People. If nothing will bring them to consideration, I fear they will suffer.

A widespread fear during the debates on the ratification of the Constitution, was the possibility of a military takeover of the states by the federal government. Edward F. Cooke states:

In the eighteenth century people feared that Congress might, by passing a law, prohibit the states from arming their citizens. Then having all the armed strength at its command, the national government could overwhelm the states.

Anti-Federalist Patrick Henry during the opening debates of the Virginia Ratification Convention stated his strong belief that arms are required to secure rights and freedoms from those that would take them away:

Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined. … O sir, we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone; … Did you ever read of any revolution in a nation, brought about by the punishment of those in power, inflicted by those who had no power at all? … Will your mace-bearer be a match for a disciplined regiment?

George Mason during that debate also showed his distrust of Congress and the possibility that it would not fund the arming for the militia as an excuse for the creation of a standing army, which could later to be used as an instrument of tyranny by Congress.

The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless—by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them, &c. … Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army. … But when once a standing army is established in any country, the people lose their liberty. When, against a regular and disciplined army, yeomanry are the only defence,—yeomanry, unskilful and unarmed,—what chance is there for preserving freedom?

Patrick Henry during debate also states:

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

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

State ratification conventions

The Pennsylvania ratification convention was the second state convention to ratify the U.S. Constitution and the first at which there was significant Anti-Federalist opposition. One of the main opposition points of contention was the Constitution's omission of a Bill of Rights. The majority of the Convention would not allow proposed amendments or a Bill of Rights to be appended to Pennsylvania's December 12, 1787 Ratification of the Constitution. On December 18, 1787, the Pennsylvania Minority published The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents. The right to bear arms was the seventh in its proposed bill of rights.

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

Many delegates to subsequent state ratification conventions were familiar with The Address and Reasons of the Pennsylvania Minority, The Letters from the Federal Farmer to the Republican 18, and other Anti-Federalist writings supporting a right to bear arms.

Five of the state ratification conventions for the U.S. Constitution made explicit requests or demands for the protection of rights to keep and bear arms. Four states also clearly defined what a well-regulated militia consists of "the body of the people trained to arms" or "the body of the people capable of bearing arms". Four states attached proposed bills of rights to their approvals of the Constitution. The fifth, North Carolina, refused to ratify the Constitution and submitted a bill of unalienable rights of the people that must be protected before they would sign.

New Hampshire, June 21, 1788

• "XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion."

Virginia, June 27, 1788

• "17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state:"

The Virginia Ratification Convention Committee that produced Virginia's proposed bill of rights included James Madison, Patrick Henry, George Mason, James Monroe and John Marshall.

New York, July 26, 1788

• "That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state."

North Carolina, August 1, 1788

• "17. That the people have a right to keep and bear arms; that a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state;"

North Carolina ratified the Constitution on November 21, 1789, after the Congress approved the Bill of Rights and submitted it to the states for ratification.

Rhode Island, May 29, 1790

• "XVII. That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state;"

Conflict and compromise

In the early months of 1789, the United States was engaged in an ideological conflict between Federalists, who favored a stronger central government, and Anti-Federalists, who were skeptical of a strong central government. This conflict was accentuated by the recent news of a brewing, potentially violent revolution in France with similar Anti-Federal tensions. Also, the conflict in beliefs continued between northern states, that generally favored Federalist values, and southern states, that tended to share Anti-Federalist values.

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

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

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

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

The Bill of Rights introduced by Madison on June 8 was not composed of numbered amendments intended to be added at the end of the Constitution. Instead, the Bill of Rights was to be inserted into the existing Constitution. The sentence that became the Second Amendment was to be inserted in Article I, Section 9, between Clauses 3 and 4, which list individual rights, instead of Article I, Section 8, Clauses 15 and 16, which specify the Congress's power over the state militias. Debate in the House on the remainder of June 8 focused again on whether a Bill of Rights was appropriate, and the matter was held for a later time. On July 21, Madison raised the issue of his Bill and proposed a select committee be created to report on it. The House voted in favor of Madison's motion, and the Bill of Rights entered committee for review. No official records were kept of the committee's proceedings, but the committee returned to the House a reworded version of the Second Amendment on July 28. 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.

The Second Amendment was debated and modified during sessions of the House on August 17 and August 20. These debates revolved primarily around risk of "mal-administration of the government" using the "religiously scrupulous" clause to destroy the militia as Great Britain had attempted to destroy the militia at the commencement of the American Revolution. These concerns were addressed by modifying the final clause, and on August 24, the House sent the following version to the U.S. Senate:

A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

The next day, August 25, the Senate received the Amendment from the House and entered it into the Senate Journal. When the Amendment was transcribed, the semicolon in the religious exemption portion was changed to a comma by the Senate scribe:

A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

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.

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. The Senate then slightly modified the language and voted to return the Bill of Rights to the House. The final version passed by the Senate was:

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

The House voted on September 21, 1789 to accept the changes made by the Senate, but the Amendment as finally entered into the House journal contained the additional words "necessary to":

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

This version was transmitted to the states for ratification.

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

Historical sources

The House Journal and Senate Journal are the official records kept by the legislature at the time debate was taking place. Because these journals are often sparse, they are frequently augmented by the Annals of Congress (AoC) which were compiled forty to seventy years after the debates, using the best sources which could then be found, which were primarily newspaper reports of the time.

The Debates in the Several State Conventions, on the Adoption of the Federal Constitution by Jonathan Elliot (1836), discusses Anti-Federalist proposals to amend the Constitution, and the intent of the amendments that were negotiated and adopted to meet their concerns.

Case law

For over a century following the ratification of the Bill of Rights, the intended meaning of the Second Amendment, and how the Amendment applied, drew less interest than it does in modern times. The vast majority of regulation was done by states, and the first case law on weapons regulation dealt with state interpretations of the Second Amendment. The notable exception to this general rule was Houston v. Moore, 18 U.S. 1 (1820), where the Supreme Court mentioned the Second Amendment in an aside, but Justice Story "misidentified" it as the "5th Amendment."

Early commentary in state courts

State courts have made rulings regarding the right to keep and bear arms under various state constitutions.

Antebellum and Reconstruction

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

In Dred Scott v. Sandford, 60 U.S. 393 (1856) (the "Dred Scott Decision"), the Supreme Court indicated that: "It would give to persons of the negro race, who were recognized as citizens in any one State of the Union …the full liberty …to keep and carry arms wherever they went."

The Dred Scott Decision contains additional significant wording.

More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.(emphasis added)

When the Fourteenth Amendment was drafted, Representative John Bingham of Ohio used the Court's own phrase "privileges and immunities of citizens" to include the individual rights mentioned in the Bill of Rights under its protection and guard these rights against state legislation.

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

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

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

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

The Supreme Court stated in Robertson v. Baldwin, 165 U.S. 275 (1897):

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

U.S. Supreme Court

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

United States v. Cruikshank

In United States v. Cruikshank, 92 U.S. 542 (1875), the Supreme Court ruled that because "he Second Amendment…has no other effect than to restrict the powers of the national government…", the federal government may not punish individuals for depriving citizens of their right to bear arms. The courts did not recognize the doctrine of incorporation at this point in the 19th century. Significantly with respect to the meaning of the amendment, the court found that the Second Amendment prohibited the national government from infringing on the right of individuals "to bear arms for a lawful purpose". Though many of the federal rights delineated in the federal Bill of Rights have subsequently been incorporated by the Court as rights against the states, the Court has not done so for the Second Amendment.

Presser v. Illinois

In Presser v. Illinois, 116 U.S. 252 (1886), the Court reaffirmed Cruikshank, holding the Second Amendment to limit the authority only of the federal government.

United States v. Miller

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

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

Miller is often cited by gun-rights advocates, because the Supreme Court ruled that the Second Amendment protected the right to keep arms that are part of "ordinary military equipment".

District of Columbia v. Heller

In District of Columbia v. Heller, 554 U.S. ___, decided on June 26, 2008, the Supreme Court ruled that "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home," and "that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."

The Court held that the amendment's prefatory clause serves to clarify the operative clause, but neither limits nor expands the scope of the operative clause. Justice Stevens, in his dissent, called the majority reading "strained and unpersuasive," and says that the right to possess a firearm exists only in relation to the militia, and that the D.C. laws constitute permissible regulation. Justice Scalia, in the Opinion of the Court, called Justice Stevens' interpretation of the phrase "to keep and bear arms" incoherent and grotesque.

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

Presidential administrations

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

In response to the behavior of gangsters, President Roosevelt advocated, and the Congress passed, the National Firearms Act of 1934.

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

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

The Second Amendment secures a personal right of individuals, not a collective right that may be invoked only by a State or a quasi-collective right restricted to those persons who serve in organized militia units.

Congressional legislation

National Firearms Act

The National Firearms Act of 1934 dealt with firearms, such as machine guns, short-barreled shotguns and rifles, gun accessories like silencers, and other "gadget-type" firearms hidden in canes and such were also targeted. In addition, the creation of a $200 tax for sawed-off shotguns, typically worth at most $10, which applied each and every time the firearm changed hands, would enhance tax revenue for the federal government. Initially, the act included handguns, but the complaints of women who could more easily handle handguns than long guns reversed this additional position, and handguns were not included in the National Firearms Act. The creation of a $200 tax for an item worth at most $10 generated almost no revenue. During the first few years after the National Firearms Act was created, less than two dozen sawed off shotguns were registered and had the tax paid. As a revenue enhancing measure, the act produced essentially no revenue while providing considerable work for government agents.

Federal Firearms Act

The Federal Firearms Act of 1938 was aimed at those involved in selling and shipping firearms through interstate or foreign commerce channels.

Post-assassination

In 1964, 18 U.S.C. § 1715, which prohibits, except in limited circumstances, the mailing of "Pistols, revolvers, and other firearms capable of being concealed on the person", and 49 U.S.C. § 1472, which prohibits the carrying of weapons aboard aircraft, were passed in response to highly public and televised handgun assassinations in 1963.

Gun Control Act

The Gun Control Act of 1968 was passed in response to the assassinations of John F. Kennedy by Lee Harvey Oswald, using a mail order rifle, and the subsequent assassinations of Martin Luther King, Jr. and presidential candidate Robert F. Kennedy. License requirements were expanded to include more dealers, and more detailed record keeping was expected of them; handgun sales over state lines were restricted; the list of persons to whom dealers could not sell grew to include those convicted of felonies (with some exceptions), those found mentally incompetent, drug users, and others. The act also defined persons who were banned from possessing firearms.

The key element of this bill outlawed mail order sales of rifles and shotguns. Until this law, mail order consumers only had to sign a statement that they were over 21 years of age for a handgun to be shipped by common carrier (18 for rifle or shotgun), since the earlier 1964 law had already prohibited most handguns from the U.S. Postal mail. Additionally, it detailed more persons who were banned from possessing certain guns and further restricted shotgun and rifles sales.

McClure-Volkmer Act

In the Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 97th Congress, Second Session (February 1982), a bipartisan subcommittee (consisting of 3 Republicans and 2 Democrats) of the United States Senate investigated the Second Amendment and reported its findings. The report stated:

The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.

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

The McClure-Volkmer Act of 1986 addressed the abuses noted in the 1982 Senate Judiciary Subcommittee report. It reopened interstate sales of long guns on a limited basis, allowed ammunition shipments through the U.S. Postal Service (a partial repeal of the Gun Control Act), ended record keeping on ammunition sales, except for armor piercing, permitted travel between states supportive of Second Amendment rights even through those areas less supportive of these rights, and addressed several other issues that had effectively restricted Second Amendment rights. However, the act also contained a provision that banned the sale of machine guns manufactured after the date of enactment to civilians, restricting sales of these weapons to the military and law enforcement. Thus, in the ensuing years, the limited supply of these arms available to civilians has caused an enormous increase in their price, with most costing in excess of $10,000. Regarding these fully automatic firearms owned by private citizens in the United States, political scientist Earl Kruschke said "approximately 175,000 automatic firearms have been licensed by the Bureau of Alcohol, Tobacco, and Firearms (the federal agency responsible for administration of the law) and evidence suggests that none of these weapons has ever been used to commit a violent crime."

Brady Handgun Violence Prevention Act

The Brady Handgun Violence Prevention Act of 1993 initially provided a five-day waiting period for handgun purchases, which expired on November 30, 1998. It was replaced by a mandatory, computerized criminal background checking system to be conducted prior to any firearm purchase from a federally licensed firearms dealer.

Notes

1. District of Columbia, et al., Petitioners v. Dick Anthony Heller. 554 U.S. ____ (2008), page 19. "Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.'"
2. District of Columbia, et al., Petitioners v. Dick Anthony Heller. 554 U.S. ____ (2008), page 25. "The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric."
3. District of Columbia, et al., Petitioners v. Dick Anthony Heller. 554 U.S. ____ (2008). "istory showed that the way tyrants had eliminated a militia consisting of all the ablebodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents." (Page 25) "In addition, in a shorter 1840 work Story wrote: 'One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.'" (Page 36)
4. ^ District of Columbia, et al., Petitioners v. Dick Anthony Heller. 554 U.S. ____ (2008), page 26. "JUSTICE BREYER’s assertion that individual self-defense is merely a 'subsidiary interest' of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself."
5. Linda Greenhouse (2007-11-13). "Case Touches a 2nd Amendment Nerve". Retrieved 2008-08-30. The Supreme Court has never answered the Second Amendment question directly, and it has been nearly 70 years since the court even approached it obliquely...Asked during his confirmation hearing what he thought that sentence meant, Chief Justice John G. Roberts Jr. responded that the Miller decision had 'side-stepped the issue...'
6. Dorf, Michael C. (2001-10-31), Federal Court Of Appeals Says The Second Amendment Places Limits On Gun Control Legislation, Findlaw's Writ
7. ^ Volokh, Eugene (1998). "The Commonplace Second Amendment". New York University Law Review. 73 (3): 793. ISSN 0028-7881. The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause. Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era: State Bills of Rights contained justification clauses for many of the rights they secured. {{cite journal}}: Cite has empty unknown parameters: |month= and |coauthors= (help)
8. In Part II-A of the Opinion of the Court in District of Columbia v. Heller, the Supreme Court cited this version of the amendment.
9. http://www.law.cornell.edu/constitution/constitution.billofrights.html
10. Cottrol, Robert J. (2003). "Part I Guns in American Culture" (PDF). Focus on Law Studies. XVIII (2). American Bar Association. Retrieved 01-08-08. {{cite journal}}: Check date values in: |accessdate= (help)
11. Breen, T. H. (1972). "English Origins and New World Development: The Case of the Covenanted Militia in Seventeenth-Century Massachusetts". Past & Present. 57 (1): 74–96. doi:10.1093/past/57.1.74.
12. Boynton, Lindsay Oliver J. (1971). The Elizabethan Militia 1558–1638. David & Charles. ISBN 0-7153-5244-X. OCLC 8605166.
13. Oxford English Dictionary, Second Edition, 1989
14. Uviller, H. Richard. (2002). The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent. Durham, NC: Duke University Press. pp. 23, 194. ISBN 0822330172. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
15. Pepper, John (2005). Firearms and violence. A critical review. Washington, DC: National Academies Press. p. 290. ISBN 0309091241. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
16. Wills, Garry (1995). "To Keep and Bear Arms: The Origins of an Anglo-American Right". New York Review of Books. 42 (14): 62. ISSN 0028-7504. {{cite journal}}: Cite has empty unknown parameters: |month= and |coauthors= (help)
17. Levy, Leonard W. (1999). Origin of the Bill of Rights. New Haven, CT: Yale University Press. pp. 136–137. ISBN 0300078021. {{cite book}}: Cite has empty unknown parameter: |coauthors= (help)
18. An act for declaring the rights and liberties of the subject, and settling the succession of the crown.
19. Journal of the House of Lords, volume 14, 1689-02-12
20. Blackstone, William. Commentaries on the Laws of England. p. 136.
21. "Boston, March 17". New York Journal, Supplement: 1, Col.3. 1796-04-13. quoted in Halbrook, Stephen. A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees.
22. Wroth, L. Kinvin. Legal Papers of John Adams. pp. 3:248. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
23. John Adams and common law of self-defense
24. McAffee, Thomas B. (1997). "Bringing Forward the Right to Keep and Bear Arms: Do Text, History, or Precedent Stand in the Way?". North Carolina Law Review: 781. {{cite journal}}: Unknown parameter |coauthors= ignored (|author= suggested) (help); Unknown parameter |month= ignored (help)
25. Spitzer, Robert J. (2000). "Lost and Found: Researching the Second Amendment" (PDF). Chicago-Kent Law Review. 76 (1): 349–401.
26. Heyman, Steven J. (2000). "Natural Rights and the Second Amendment" (PDF). Chicago-Kent Law Review. 76 (1): 237–290.
27. ^ St. George Tucker Commentary
28. For two radically different views of Blackstone on the Second Amendment, see Heyman, Chicago-Kent, and Volokh, Senate Testimony.
29. Story, Joseph (1833). Commentaries on the U.S. Constitution. pp. §1890.
30. Story, Joseph (1833). Commentaries on the U.S. Constitution. pp. §1202.
31. "Virginia Declaration of Rights, 1776". Constitution.org. Retrieved 2008-09-25.
32. Wills, Garry (1999). A Necessary Evil, A History of American Distrust of Government. New York, NY: Simon & Schuster. ISBN 0-6848-4489-3.
33. The Federalist No. 46 (at Wikisource)
34. An Examination of the Leading Principles of the Federal Constitution
35. Young, David E. (2001). The Origin of the Second Amendment: A Documentary History of the Bill of Rights 1787-1792 (2nd Ed. ed.). Golden Oak Books. pp. 38–41. ISBN 0-9623664-3-9. A Citizen of America (Noah Webster) October 10, 1787 Pamphlet: An Examination into the leading principles of the Federal Constitution {{cite book}}: |edition= has extra text (help)
36. The Federalist No. 29 (at Wikisource)
37. John Adams second quote
38. Cooke, Edward Francis (2002). A detailed analysis of the Constitution. Lanham, Md: Rowman & Littlefield Publishers. p. 100. ISBN 0-7425-2238-5. This is another protection against a possible abuse by Congress. The right protected is really the right of a state to maintain an armed militia, or national guard, as we call it now. In the eighteenth century people feared that Congress might, by passing a law, prohibit the states from arming their citizens. Then having all the armed strength at its command, the national government could overwhelm the states. Such a circumstance has never happened, but this amendment would prevent it. The Second Amendment does not give anybody or everybody the right to possess and use firearms. The states may very properly prescribe regulations and permits governing the use of guns within their borders.
39. ")): Elliot's Debates -Thursday, June 5, 1788". Memory.loc.gov. Retrieved 2008-09-25.
40. http://memory.loc.gov/cgi-bin/query/D?hlaw:1:./temp/~ammem_lDJe::
41. http://memory.loc.gov/cgi-bin/query/D?hlaw:1:./temp/~ammem_d2Ve::
42. reprinted in "The Origin of the Second Amendment, A Documentary History of the Bill of rights" 154-175 (David E. Young)
43. Elliot, "Debates of the Several State Conventions" 1:326, 3:652-61, 1:327-29, 4:244, 1:335
44. ^ Annals of Congress, House of Representatives, 1st Congress, 1st Session: pp. 451
45. Rakove, Jack (2000). "The Second Amendment: The Highest State of Originalism" (PDF). Chicago-Kent Law Review. 76 (1): 103.
46. Journal of the House of Representatives of the United States, Volume 1: p. 64
47. Annals of Congress, House of Representatives, 1st Congress, 1st Session: pp. 669
48. Annals of Congress, House of Representatives, 1st Congress, 1st Session: p. 778
49. Militia debate of 1789
50. Journal of the Senate of the United States of America, Volume 1: p. 63
51. Journal of the Senate of the United States of America, Volume 1: p. 71
52. Journal of the Senate of the United States of America, Volume 1: p. 77
53. Journal of the House of Representatives of the United States, Volume 1: p. 305
54. House Journal
55. Senate Journal
56. Annals of Congress
57. Jonathan Elliot Commentary
58. Several public officials, including James Madison and Supreme Court Justice Joseph Story, retained the confusing practice of referring to each of the ten amendments in the Bill of Rights by the enumeration found in the first draft; had Justice Story followed this practice, he would have described the Second Amendment as the Fourth, but in this case he simply stated the number incorrectly
59. Kerrigan, Robert (June 2006). "The Second Amendment and related Fourteenth Amendment" (PDF). {{cite journal}}: Cite journal requires |journal= (help)
60. Clayton E. Cramer, "The racist roots of gun control," June 15th, 2007
61. April 1992, page 1193
62. Amar, Akhil Reed (1992). "The Bill of Rights and the Fourteenth Amendment". Yale Law Journal. 101: 1193 . ISSN 0044-0094. And yet, despite the importance of the topic and all the attention devoted to it, we still lack a fully satisfying account of the relationship between the first ten amendments and the Fourteenth. {{cite journal}}: Cite has empty unknown parameters: |month= and |coauthors= (help)
63. The first case to apply any part of the Bill of Rights to the states was Chicago, Burlington & Quincy Railway Co. v. Chicago, 219 U.S. 549 (1897)
64. District of Columbia, et al., Petitioners v. Dick Anthony Heller. 554 U.S. ___ (2008), page 13. "Giving 'bear Arms' its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase 'keep and bear Arms' would be incoherent. The word 'Arms' would have two different meanings at once: 'weapons' (as the object of 'keep') and (as the object of 'bear') one-half of an idiom. It would be rather like saying 'He filled and kicked the bucket' to mean 'He filled the bucket and died.' Grotesque."
65. Richardson, James D. A Compilation of the Messages and Papers of the Presidents; volume 7, part 1: Ulysses S. Grant.
66. "National Firearms Act of 1934".
67. "National Firearms Act of (1934) - Further Readings".
68. Memorandum Re: United States v. Emerson, 2001-11-09
69. Whether the Second Amendment Secures an Individual Right, 2004-08-24
70. Right to Keep and Bear Arms, U.S. Senate. 2001 Paladin Press. ISBN 1581602545.
71. "Gun Law News: Firearm Owners Protection Act of 1986".
72. Kruschke, Earl R. (1995). Gun control: a reference handbook. Santa Barbara, Calif: ABC-CLIO. p. 85. ISBN 0-87436-695-X.

See also

• Firearm case law in the United States
• Gun politics in the United States
• Right to keep and bear arms

External links

• National Archives Scanned Image of the Bill of Rights, including the Second Amendment
• Quotes of the Founding Fathers on the right to keep and bear arms

• Misplaced Pages neutral point of view disputes from December 2008
• 1791 in law
• Amendments to the United States Constitution
• United States federal firearms legislation
• Militia in the United States