Second Amendment to the United States Constitution

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The Second Amendment (Amendment II) to the United States Constitution is the part of the United States Bill of Rights that declares that a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The meaning and scope of this amendment has been described as among the most contested of any right mentioned in the Bill of Rights.

Text

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

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

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

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

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

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

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."

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

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. 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.

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.

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

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.

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

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) related to the ongoing revolution in France.

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

State ratification conventions

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

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

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

Five of the state ratification conventions for the U.S. Constitution made explicit requests or demands for the protection of rights to keep and bear arms. Four of these states also clearly defined what a well-regulated militia consists of "the body of the people trained to arms" or "the body of the people capable of bearing arms". These four states - New Hampshire, New York, Virginia and Rhode Island - attached proposed bills of rights to their approvals of the Constitution. The fifth, North Carolina, refused to ratify the Constitution and submitted a bill of unalienable rights of the people that must be protected before they would sign. North Carolina ratified the Constitution on November 21, 1789, after the Congress approved the Bill of Rights and submitted it to the states for ratification.

Conflict and compromise

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

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

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

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."

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

Early commentary in state courts

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."

The meaning of the right to keep and bear arms mentioned in the Second Amendment has been described as among the most contested of any right mentioned in the Bill of Rights.

The Supreme Court ruled three times in the 19th Century that the Second Amendment only applies to the federal government. However, there are on-going federal lawsuits trying to have the Second Amendment applied to state and local governments.

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…

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

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), Miller v. Texas (1894), United States v. Miller (1939) and District of Columbia v. Heller (2008).

United States v. Cruikshank

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

In United States v. Cruikshank, 92 U.S. 542 (1875), the Supreme Court ruled that because "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 federal government from infringing on the right of individuals "to bear arms for a lawful purpose". Though many of the federal rights delineated in the federal Bill of Rights have subsequently been incorporated by the Court as rights against the states, the Court has not done so for the Second Amendment.

The Court also stated:

This is not a right granted by the Constitution, neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.

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

United States v. Miller

Main article: 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

Main article: District of Columbia v. Heller

In District of Columbia v. Heller, 554 U.S. ___, decided on June 26, 2008, the Supreme Court ruled that "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home" 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 Opinion of the Court "strained and unpersuasive", and said that the right to possess a firearm exists only in relation to the militia and that the D.C. laws constitute permissible regulation. Justice Scalia, in the Opinion of the Court, called Justice Stevens' interpretation of the phrase "to keep and bear arms" incoherent and grotesque.

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

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

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

Presidential administrations

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

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

In 2004, President Bush, through the Justice Department under Ashcroft, also 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.

Notes

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.
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An act for declaring the rights and liberties of the subject, and settling the succession of the crown.
Shalhope, Robert E. (1982). "The Ideological Origins of the Second Amendment". The Journal of American History. 69. Buffalo: William S. Hein & Co: 599–614.
Shalhope, Robert E. (1982). "The Ideological Origins of the Second Amendment". The Journal of American History. 69. Buffalo: William S. Hein & Co: 599–614. Marchamont Nedham declared that a republican society and government rested upon the popular possession of arms as well as on the regular election of magistrates and representatives.
Shalhope, Robert E. (1982). "The Ideological Origins of the Second Amendment". The Journal of American History. 69. Buffalo: William S. Hein & Co: 599–614. Harrington offered a crucial innovation to Machiavellian theory (perhaps the crucial innovation in light of later American attitudes). Accepting entirely the Machiavellian theory of the possession of arms as necessary to political personality... Like Machiavelli, Harrington considered the bearing of arms to be the primary means by which individuals affirmed their social power and political participation as responsible moral agents.
Shalhope, Robert E. (1982). "The Ideological Origins of the Second Amendment". The Journal of American History. 69. Buffalo: William S. Hein & Co: 599–614. Andrew Fletcher's warning, "he that is armed, is always master of the purse of him that is unarmed," blended nicely with the libertarian's deep suspicion of authority. The individual's need to protect himself from vicious fellow citizens and corrupt authorities--both banes of any republican society--also became clear. To accomplish this the responsible citizen must be armed.
Shalhope, Robert E. (1982). "The Ideological Origins of the Second Amendment". The Journal of American History. 69. Buffalo: William S. Hein & Co: 599–614. Throughout their essay Trenchard and Moyle reiterated the idea that citizens must be able to defend themselves against their rulers or they would lose their liberties and live in tyranny.
Shalhope, Robert E. (1982). "The Ideological Origins of the Second Amendment". The Journal of American History. 69. Buffalo: William S. Hein & Co: 599–614. For Burgh the very nature of society was related to whether or not its citizens had arms and were vigorous in their use. "No kingdom can be secured otherwise than by arming the people. The possession of arms is the distinction between a freeman and a slave. He, who has nothing, and who himself belongs to another, must be defended by him, whose property he is, and needs no arms. But he, who thinks he is his own master, and has what he can call his own, ought to have arms to defend himself, and what he possesses; else he lives precariously, and at discretion."
Shalhope, Robert E. (1982). "The Ideological Origins of the Second Amendment". The Journal of American History. 69. Buffalo: William S. Hein & Co: 599–614. Madison and his colleagues on the select committee charged with creating a bill of rights were anxious to capture the essence of the rights demanded by so many Americans in so many different forms. To do this they eliminated many suggestions, reworded others, and consolidated as many as possible in order to come up with a reasonable number of amendments. What became the Second Amendment resulted from this last process. The committee took the two distinct, yet related rights--the individual possession of arms and the need for a militia made up of ordinary citizens--and merged them into a single amendment. As with other amendments that combined various essential rights, it was the intent of the committee neither to subordinate one right to the other nor to have one clause serve as subordinate to the other. This became obvious in the discussion of the amendment that took place on the floor of Congress.
Journal of the House of Lords, volume 14, 1689-02-12
Blackstone, William. Commentaries on the Laws of England. p. 136.
"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.
Wroth, L. Kinvin. Legal Papers of John Adams. pp. 3:248. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
John Adams and common law of self-defense
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)
Spitzer, Robert J. (2000). "Lost and Found: Researching the Second Amendment" (PDF). Chicago-Kent Law Review. 76 (1): 349–401.
Heyman, Steven J. (2000). "Natural Rights and the Second Amendment" (PDF). Chicago-Kent Law Review. 76 (1): 237–290.
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."
^ St. George Tucker Commentary
For two radically different views of Blackstone on the Second Amendment, see Heyman, Chicago-Kent, and Volokh, Senate Testimony.
Story, Joseph (1833). Commentaries on the U.S. Constitution. pp. §1890.
"Virginia Declaration of Rights, 1776". Constitution.org. Retrieved September 25, 2008.
Shay's Rebellion, A Guest Contribution by Rose Vest, BA/MA
Wills, Garry (1999). A Necessary Evil, A History of American Distrust of Government. New York, NY: Simon & Schuster. ISBN 0-6848-4489-3.
The Federalist No. 46 (at Wikisource)
An Examination of the Leading Principles of the Federal Constitution
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)
The Federalist No. 29 (at Wikisource)
John Adams second quote
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.
")): Elliot's Debates -Thursday, June 5, 1788". Memory.loc.gov. Retrieved 2008-09-25.
http://memory.loc.gov/cgi-bin/query/D?hlaw:1:./temp/~ammem_d2Ve::
http://memory.loc.gov/cgi-bin/query/D?hlaw:1:./temp/~ammem_lDJe::
reprinted in "The Origin of the Second Amendment, A Documentary History of the Bill of rights" 154-175 (David E. Young)
Elliot, "Debates of the Several State Conventions" 1:326, 3:652-61, 1:327-29, 4:244, 1:335
^ Annals of Congress, House of Representatives, 1st Congress, 1st Session: pp. 451
Rakove, Jack (2000). "The Second Amendment: The Highest State of Originalism" (PDF). Chicago-Kent Law Review. 76 (1): 103.
Journal of the House of Representatives of the United States, Volume 1: p. 64
Annals of Congress, House of Representatives, 1st Congress, 1st Session: pp. 669
Annals of Congress, House of Representatives, 1st Congress, 1st Session: p. 778
Militia debate of 1789
Journal of the Senate of the United States of America, Volume 1: p. 63
Journal of the Senate of the United States of America, Volume 1: p. 71
Journal of the Senate of the United States of America, Volume 1: p. 77
Journal of the House of Representatives of the United States, Volume 1: p. 305
House Journal
Senate Journal
Annals of Congress
Jonathan Elliot Commentary
Cornell, Saul (2006). A WELL-REGULATED MILITIA — The Founding Fathers and the Origins of Gun Control in America. New York, New York: Oxford University Press. p. 6. ISBN 978-0-19-514786-5. Neither of the two modern theories that have defined public debate over the right to bear arms is faithful to the original understanding of this provision of the Bill of Rights.
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
Cornell, Saul (2006). A WELL-REGULATED MILITIA — The Founding Fathers and the Origins of Gun Control in America. New York, New York: Oxford University Press. p. 7. ISBN 978-0-19-514786-5. Individual rights theory was born in the Jacksonian era as a response to America's first efforts at gun control. Collective rights theory emerged slowly at the end of Reconstruction and only crystallized in its modern form in the early twentieth century.
Cornell, Saul (2006). A WELL-REGULATED MILITIA — The Founding Fathers and the Origins of Gun Control in America. New York, New York: Oxford University Press. p. 2. ISBN 978-0-19-514786-5.
^ Bliss v. Commonwealth, 2 Littell 90 (KY 1882).
United States. Anti-Crime Program. Hearings Before Ninetieth Congress, First Session. Washington: U.S. Govt. Print. Off, 1967, p. 246. quote: "…unabridgable right to bear arms for self-protection as well as for militia purposes and that a statute prohibiting the carrying of concealed weapons was violative of the Second Amendment (see Bliss v. Commonwealth, 2 Litt. (Ky) 90, 13 Am. December 251 (1822)…
Weir, William (1997). A Well regulated militia: the battle over gun control. North Haven, CT: Archon Books. pp. 35–36. ISBN 0208024239.
Right to Keep and Bear Arms, U.S. Senate. 2001 Paladin Press. ISBN 1581602545.
The Second Amendment became effective December 15, 1791, and was still a new concept in 1799.
Commonwealth of KY Const. of 1799, art. , x§ 23
Pierce, Darell R. (1982). "Second Amendment Survey". Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in the 1980's. 10 (1). {{cite journal}}: Unknown parameter |pagest= ignored (help)
Two states, Alaska and Vermont, do not require a permit or license for carrying a concealed weapon to this day, following Kentucky's original position.
Cornell, Saul (2006). A WELL-REGULATED MILITIA — The Founding Fathers and the Origins of Gun Control in America. New York, New York: Oxford University Press. pp. 147–149. ISBN 978-0-19-514786-5.
^ State v. Buzzard, 4 Ark. (2 Pike) 18 (1842).
Cornell, Saul (2006). A WELL-REGULATED MILITIA – The Founding Fathers and the Origins of Gun Control in America. New York, New York: Oxford University Press. p. 188. ISBN 978-0-19-514786-5. "Dillon endorsed Bishop's view that Buzzard's "Arkansas doctrine," not the libertarian views exhibited in Bliss, captured the dominant strain of American legal thinking on this question."
Kruschke, Earl R. (1995). Gun control: a reference handbook. Santa Barbara, Calif: ABC-CLIO. pp. 140–143. ISBN 0-87436-695-X.
Volokh, Eugene (November/December 1988). "Testimony of Eugene Volokh on the Second Amendment, Senate Subcommittee on the Constitution, September 23, 1998". California Political Review: 23. A recent exhaustive study reveals that there was exactly one statement in the 1800s cases or commentaries supporting the collective rights view, a concurring opinion in an 1842 Arkansas state court case. {{cite journal}}: Check date values in: |date= (help)
City of Salina v. Blaksley, 72 Kan. 230 (1905).
Cornell, Saul (2006). A WELL-REGULATED MILITIA – The Founding Fathers and the Origins of Gun Control in America. New York, New York: Oxford University Press. p. 258. ISBN 978-0-19-514786-5. "… the Kansas Supreme Court had used a similar formulation of the right to bear arms a decade earlier, describing this right as one that "refers to the people as a collective body.""
Kerrigan, Robert (June 2006). "The Second Amendment and related Fourteenth Amendment" (PDF). {{cite journal}}: Cite journal requires |journal= (help)
Clayton E. Cramer, "The racist roots of gun control," June 15th, 2007
"There is probably less agreement, more misinformation, and less understanding of the right to keep and bear arms than any other current controversial constitutional issue." Statement from the American Bar Association in "National Coalition to Ban Handguns Statement on the Second Amendment", June 26, 1981 convenience link:http://www.guncite.com/journals/senrpt/senrpt27.html
"Few subjects in American jurisprudence have produced as much work by legal scholars, so little of which is of use to practicing attorneys, as the Second Amendment to the U.S. Constitution." from "A Lawyer's Guide to the Second Amendment" by Steven H. Gunn, Brigham Young University Law Review, 1998
April 1992, page 1193
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)
"At what point regulation or prohibition of what classes of firearms would conflict with the Amendment, if at all, the Miller case does little more than cast a faint degree of illumination toward an answer." at Findlaw http://caselaw.lp.findlaw.com/data/constitution/amendment02/
"One overlooked issue in the voluminous literature on the Second Amendment is what standard of review should apply to gun control if the Amendment is read to protect an individual right to bear arms." in "SCRUTINIZING THE SECOND AMENDMENT" by Adam Winkler http://michiganlawreview.org/archive/105/4/winkler.pdf
Barnett, Gary E., The Reasonable Regulation of the Right to Keep and Bear Arms (June 24, 2008). Georgetown Journal of Law & Public Policy, Vol. 6, No. 2, 2008
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)
Curtis, Michael Kent (1994) . No State Shall Abridge (Second printing in paperback ed.). Duke University Press. ISBN 0-8223-0599-2.
Cruikshank, p. 543
Heller, Opinion of the Court, fn. 23
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."
Heller, Opinion of the Court, fn. 23
Richardson, James D. A Compilation of the Messages and Papers of the Presidents; volume 7, part 1: Ulysses S. Grant.
Memorandum Re: United States v. Emerson, 2001-11-09
Whether the Second Amendment Secures an Individual Right, 2004-08-24

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