The Second Amendment (Amendment II) to the United States Constitution is a part of the United States Bill of Rights that protects the pre-existing individual right to possess and carry weapons (i.e. "keep and bear arms") 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 the way tyrants eliminated resistance to suppression of political opponents was simply to take away the people's arms and make it an offense for people to keep them. In District of Columbia v. Heller (June 26, 2008), the Supreme Court ruled that self-defense is a central component of the right.
Before the Heller decision, there was much disagreement as to whether it protected a collective right or an individual right, because the amendment begins with a prefatory clause that refers to a "well regulated militia. Previously, the Supreme Court had not directly addressed the amendment, or had only done so in limited or ambiguous terms.
A minority have argued that because the District of Columbia, which is not a state, was the only government involved in Heller, uncertainty remains concerning whether the Second Amendment applies to state and local jurisdictions by way of incorporation through the Fourteenth Amendment. However, the Court's unambiguous declaration that the right to bear arms is an individual privilege, taken with the Fourteenth Amendment's clear stricture that, "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," appears to conclusively support incorporation.
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 hangs in the National Archives. In District of Columbia v. Heller, the Supreme Court cited the House and Senate text.
The Second Amendment is the only Constitutional amendment that has a prefatory clause. However, such constructions were widely used elsewhere.
The rights of British subjects to possess arms was recognized under English common law. Sir William Blackstone's Commentaries on the Laws of England, were highly influential and were used as a reference and text book for English Common Law. In his Commentaries, Blackstone described the right to arms.
The 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:
John Adams, lead defense attorney for the British soldiers on trial for the Boston Massacre stated at the trial:
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.
Prior to Heller, others sometimes perceived 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. In District of Columbia v. Heller, however, the Supreme Court ruled that self-defense is a central component of the right.
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 writes of the English Bill of Rights:
Tucker also wrote of the British,
Another one of the most important early commentaries on the Second Amendment was the 1833 book Commentaries on the U.S. Constitution authored by Associate Justice of the Supreme Court Joseph Story. Both sides in the modern gun debate have excerpted parts of this commentary to support their particular points of view:
§ 1890 of the book describes the Second Amendment:
§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:
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:
Similarly, Federalist Noah Webster wrote: One example given by Webster of a "power" that the people could resist was that 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 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:
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.
"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 approve 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 Congress approved the Bill of Rights and submitted them to the states for ratification.
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 Bill of Rights that Madison introduced on June 8 was not composed of numbered amendments intended to be added at the end of the Constitution. Instead the Bill of Rights was to be inserted into the existing Constitution. The right to keep and bear arms was not to be inserted in Article I, Section 8 that specifies the Congress's power over the militia. 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.
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 proceedings of the committee, but on July 28, the committee returned to the House a reworded version of the Second Amendment. On August 17, that version was read into the Journal:
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: 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:
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:
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:
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":
This version was transmitted to the states for ratification.
On December 15, 1791, the Virginia legislature 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.
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.
In Bliss v. Commonwealth (1822, KY), which evaluated the right to bear arms in defence of themselves and the state pursuant to Section 28 of the Second Constitution of Kentucky (1799), the right to bear arms in defense of themselves and the state was interpreted as an individual right, for the case of a concealed sword cane. This case has been described as about “a statute prohibiting the carrying of concealed weapons [that] was violative of the Second Amendment.” Others, however, have seen no conflict with the Second Amendment by the Commonwealth of Kentucky's statute under consideration in Bliss since "The Kentucky law was aimed at concealed weapons. No one saw any conflict with the Second Amendment. As a matter of fact, most of the few people who considered the question at all believed amendments to the U.S. Constitution did not apply to state laws."
The Kentucky High Court stated in Bliss, "But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution." The "constitution" mentioned in this quote refers to Kentucky's Constitution. As mentioned in this quotation "as it existed at the adoption of the constitution" was the pre-existing right in force when Kentucky's First Constitution was drawn in 1799.
The case prompted outrage in the Kentucky House, all the while recognizing that Section 23 of the Second Constitution of Kentucky (1799), which stated "That the right of the citizens to bear arms in defence of themselves and the State shall not be questioned. did guarantee individuals the right to bear arms.
The Bliss ruling, to the extent that it dealt with concealed weapons, was overturned by constitutional amendment with Section 26 in Kentucky's Third Constitution (1850) banning the future carrying of concealed weapons, while still asserting that the bearing of arms in defense of themselves and the state was an individual and collective right in the Commonwealth of Kentucky. This recognition, has remained to the present day in the Commonwealth of Kentucky's Fourth Constitution enacted in 1891, in Section 1, Article 7, that guarantees "The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons." As noted in the Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in the 1980’s, vol. 10, no. 1, 1982, p. 155, "The first state court decision resulting from the "right to bear arms" issue was Bliss v. Commonwealth. The court held that "the right of citizens to bear arms in defense of themselves and the State must be preserved entire, …" "This holding was unique because it stated that the right to bear arms is absolute and unqualified.
The importance of Bliss is also seen from the defense subsequently given against a murder charge in Kentucky against Mattews Ward, who in 1852 pulled out a concealed pistol and fatally wounded his brother's teacher over an accusation regarding eating chestnuts in class. Ward's defense team consisted of eighteen lawyers, including U.S. Senator John Crittenden, former Governor of Kentucky, and former attorney general of the United States. The defense successfully defended Ward in 1854 through an assertion that “a man has a right to carry arms; I am aware of nothing in the laws of God or man, prohibiting it. The Constitution of Kentucky and our Bill of Rights guarantee it. The Legislature once passed an act forbidding it, but it was decided unconstitutional, and overruled by our highest tribunal, the Court of Appeals.” As noted by Cornell, “Ward's lawyers took advantage of the doctrine advanced in Bliss and wrapped their client's action under the banner of a constitutional right to bear arms. Ward was acquitted.”
In contrast, in State v. Buzzard (1842, Ark), the Arkansas high court adopted a militia-based, political right, reading of the right to bear arms under state law, and upheld the 21st section of the second article of the Arkansas Constitution that declared, "that the free white men of this State shall have a right to keep and bear arms for their common defense", while rejecting a challenge to a statute prohibiting the carrying of concealed weapons. Buzzard had carried a concealed weapon and stood "indicted by virtue of the authority of the 13th section of an act of the Legislature prohibiting any person wearing a pistol, dirk, large knife or sword-cane concealed as a weapon, unless upon a journey, under the penalties of fine and imprisonment." The Arkansas high court further declared:
"That the words "a well regulated militia being necessary for the security of a free State", and the words "common defense" clearly show the true intent and meaning of these Constitutions [i.e., Ark. and U.S.] and prove that it is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then the people, neither individually nor collectively, have the right to keep and bear arms."Joel Prentiss Bishop’s influential Commentaries on the Law of Statutory Crimes (1873) took Buzzard's militia-based interpretation, a view that Bishop characterized as the “Arkansas doctrine", as the orthodox view of the right to bear arms in American law.
Modern gun rights advocates have disputed this history, claiming that the individual right was the orthodox view of the right to bear arms under state law in the 19th century, citing the previously-mentioned Bliss v. Commonwealth, and even State v. Buzzard, which recognized the right of an individual to carry a weapon concealed, when upon a journey, in an affirmative defense. Similarly, political scientist Earl Kruschke has categorized both Bliss and Buzzard as being “cases illustrating the individual view.” Professor Eugene Volokh revealed, in the California Political Review, that a statement in a concurring opinion in Buzzard was the only support for a collective right view of the right to keep and bear arms in the 19th century.
In 1905, the Kansas Supreme Court in Salina v. Blaksley made the first collective right judicial interpretation. The Kansas high court declared: "That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal Constitution, which says: 'A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.'"
In Dred Scott v. Sandford, (the "Dred Scott Decision"), the Supreme Court indicated that: "It would give to persons of the negro race, who were recognized as citizens in any one State of the Union …the full liberty …to keep and carry arms wherever they went."
The Dred Scott Decision contains additional significant wording.
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.
The debate in the Congress on the Fourteenth Amendment after the Civil War 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":
The Supreme Court stated in Robertson v. Baldwin, :
“The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the "Bill of Rights," were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;..."
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.
In United States v. Miller, , the Supreme Court rejected a Second Amendment challenge to the National Firearms Act prohibiting the interstate transportation of unregistered Title II weapons, ruling that: 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".
In United States v. Cruikshank, , the Supreme Court ruled that because "[t]he Second Amendment…has no other effect than to restrict the powers of the national government…", the federal government may not punish individuals for depriving citizens of their right to bear arms. The courts did not recognize the doctrine of incorporation at this point in the 19th century. Though many of the federal rights delineated in the federal Bill of Rights have subsequently been incorporated by the Court as rights against the states, the Court has not done so for the Second Amendment. 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".
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.
Following the assassination attempt on President-elect Franklin D. Roosevelt in 1933, President Roosevelt advocated and the Congress passed the National Firearms Act of 1934. The general mood at the time of the assassination attempt was that a deranged man had committed the act.
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 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.
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."
Constitutional Law - Second Amendment - Fifth Circuit Holds That Undocumented Immigrants Do Not Have Second Amendment Rights
Jan 01, 2012; CONSTITUTIONAL LAW--SECOND AMENDMENT--FIFTH CIRCUIT HOLDS THAT UNDOCUMENTED IMMIGRANTS DO NOT HAVE SECOND AMENDMENT RIGHTSUnited...