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Second Amendment to the United States Constitution

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The Bill of Rights

First ten amendments to the United States Constitution
First Amendment
Second Amendment
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Fourth Amendment
Fifth Amendment
Sixth Amendment
Seventh Amendment
Eighth Amendment
Ninth Amendment
Tenth Amendment
Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, declares the necessity for "a well regulated militia", and prohibits infringement of "the right of the people to keep and bear arms".

Contents

Text

The Second Amendment, as passed by the House and Senate and later ratified by the States, reads: The hand-written copy of the Bill of Rights which hangs in the National Archives had slightly different capitalization and punctuation inserted by William Lambert, the scribe who prepared it. This copy reads:

Both versions are commonly used by 'official' Government publications.

An analysis of the text, by an expert in American English (Roy Copperrud, Professor of Journalism (retired), University of Southern California, and the author of American Usage and Style: The Consensus.), is provided in [The Unabridged Second Amendment by J. Neil Schulman].

Precedence to the Second Amendment

The English Declaration of Rights (1689) affirmed freedom for Protestants to "have arms for their defence suitable to their conditions and as allowed by law."[link] When Colonists protested British efforts to disarm their militias in the early phases of the 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 trial, John Adams invoked the common law of self-defense. [John Adams and common law of self-defense]

Some have seen the Second Amendment as derivative of a common law right to keep and bear arms; Thomas B. McAffee & Michael J. Quinlan, writing in the North Carolina Law Review, March 1997, Page 781, have 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." [Mcaffee and Quinlan] Others offer a different view; Robert Spitzer has stated: "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." [Spitzer, Robert J., "Lost and Found: Researching the Second Amendment." Chicago Kent Law Review 76, no. 1 (2000): pp. 349-401.] Heyman has similarly argued that the common law right of self defense was legally distinct from the right to bear arms. (Heyman, Chicago Kent Law Review 76, no. 1 (2000).

The potential connection between the right of self defense and the new constitutional protection of a right to keep and bear arms contained in the Second Amendment depends on the distinction whether 'keep and bear arms' is synonymous more broadly with the right of individual self defense or does 'keep and bear arms' pertain more narrowly towards use of arms in a military context, or, in the case of the Common Law while still under the British, in service of the king and country. This distinction was not subject to serious judicial notice until the first gun control laws were passed in the Jacksonian era. Judges in the ninteenth century split over how to interpret this connection; some saw the Common Law right and the protection of a right to keep and bear arms contained in the Second Amendment as identical; others viewed these as being legally distinct. Texts from the era of the Second Amendment are largely silent on this important question.

Origin of the Second Amendment

In 1786, a decade after the Declaration of Independence, a loose confederation of independent states formed as part of a popular revolution of 'the people' against the colonial tyranny of England, economic depression was gripping the country. This new confederation of states had tried to raise taxes in an attempt to recover from massive debt remaining from the war, when a group of 2,000 farmers lead by Daniel Shays organized to rebel against these unfair taxes. They attacked courthouses, and even attempted to seize an arsenal filled with guns.

Many agreed that the federal taxes were unfair and viewed this rebellion as a just action of 'the people' against the 'tyranny' of government. These people were opposed to a strong federal government, and were known as Antifederalists. Yet, many disagreed, believing that the new confederation of states were doomed to failure if 'the people' could not raise taxes to recover from the economic crisis. These people favored a stronger federal government and were known as Federalists. Eventually, the State of Massachusetts raised a militia to quash the insurrection.

Antifederalists also feared creation of a standing army that could eventually endanger democracy and civil liberties as had happened recently in the American Colonies and Europe. Leading Antifederalists proposed an amendment to the Constitution to address this risk. A part of the Antifederalist belief was that if "the whole body of people are armed" they can defend against the risk of tyranny from a standing army. Counterpoint to this belief can be seen with Federalist Noah Webster who wrote that military force must be made strong enough to resist rebellion of the people but that it must also be subject to Congress which derives its source of power from the people:''

The controversy of a standing army for the United States existed in context of the Continental Forces that had won the 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 mercenaries (e.g., Hessians).

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 well 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 Antifederalists); 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 Antifederalists in the ongoing revolution in France:''

Reaching a compromise between these widely disparate positions was not easy, but none-the-less, a compromise was negotiated with the result being the Second Amendment.

Creation of the Second Amendment

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 Antifederalists skeptical of a strong central government. This conflict was accentuated by the recent news of a brewing, potentially violent, revolution in France with similar Antifederal tensions. Also, the conflict in beliefs continued between northern states, that generally favored Federalist values, and southern states that tended to share Antifederalist values.

Intense concerns gripped the country of the potential for success or failure of these newly-formed United States. The first presidential inauguration of George Washington had occurred just a few short weeks earlier. A spirited public concern and debate from this time is captured in numerous heated newspaper articles, personal diaries and letters from this pivotal time in United States history.

Antifederalists 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 would become the United States Bill of Rights and that was proposed to the Congress on June 8, 1789.

The original text [original text] of what was to become the Second Amendment, as brought to the floor to the first sesson of the first congress of the U.S. House of Representatives was: It should be noted the Bill of Rights that Madison introduced on June 8th were not numbered amendments intended to be added at the end of the Constitution. The Rights instead were to be inserted into the existing Constitution. The right to keep and bear arms was not to be inserted in Article 1, section 8 that specifies Congress's power over the militia. The sentence that later became the Second Amendment was to be inserted in the First Article, Section Nine, between clauses 3 and 4, following the prohibition on suspension of habeas corpus, bills of attainder, and ex post facto laws, all individual civil rights. (Annals of Congress, 1st Cong., 1sesss., 451) (Rutland, rev.ed., 196-202) (or alternatively, these provisions might all be interpreted as limits on congressional power, a view that has been advanced by supporters of the collective rights view of the Amendment. see Jack Rakove, "The Highest State of Originalism," Chicago-Kent Symposium.

Debate in the House on the remainder of the 8th focused again on whether or not a Bill of Rights was appropriate, and the matter was held for a later time. On July 21st, however, 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([Journal July 21], and the Bill of Rights entered committee for review. No official records were kept of the proceedings of the committee, but on July 28th the committee returned to the House a reworded version of the Second Amendment [AoC pp. 669)]. On August 17th, that version was read into the Journal [AoC pp. 778]: The Second Amendment itself was debated and modified during sessions of the House on August 17th and August 20th. [Militia debate of 1789] 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 revolution. These concerns were addressed by modifying the final clause, and on August 24th the House sent the following version to the U.S. Senate: The next day, August 25th, 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 4th, the Senate voted to change significantly 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 9th. A proposal to insert the words "For the common defence," next to the words "Bear Arms" was defeated [For the common defense dropped from proposed admendment]. 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 21st to accept the changes made by the Senate, however the Amendment as finally entered into the House journal contained the additional words "necessary to":''

It is this version that was transmitted to the states for ratification.

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 at the time was primarily newspaper reports.

The Debates in the Several State Conventions, on the Adoption of the Federal Constitution [Jonathan Elliot Commentary] by Jonathan Elliot (1836), contains additional information concerning the desire by Antifederalists to amend the Constitution, and the intent of the amendments that were negotiated and adopted attempting to answer their concerns.

Commas in the Second Amendment

There is some question as to whether the Second Amendment contains a comma after the word "militia", and a parallel debate as to whether the presence or lack of this comma influences the overall meaning of the Amendment.

Both the U.S. Senate Journal and the Annals of Congress show the final version of the Second Amendment as not containing this comma. On September 25, 1789, the completed Bill of Rights was written to parchment by a House scribe. In this version, now held by the National Archives, the comma was inserted. All other surviving original texts of the Bill of Rights, including the copies sent to the states for ratification, do not contain the comma.

Comparing versions of this and other Amendments as officially enrolled in the journals, as they were progressively modified and sent between chambers, shows that scribes of the era took liberty with the capitalization and punctuation of text they wrote.

The U.S. Government is inconsistent in the use of the comma in publications. The Statutes at Large (the official permanent record of all laws enacted) does not include the comma [version of the amendment sans comma after "militia"]. The Government Printing Office (GPO) has produced versions both with and without this comma.

Ratification of the Second Amendment

On December 15, 1791, the Virginia legislature ratified the Bill of Rights, rounding out the requisite three-fourths of the states needed to make the Amendments part of the Constitution.

Early Commentary on the Second Amendment

The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker, also known as The American Blackstone. He authored a set of law books in 1803 that annotated Sir William Blackstone's Commentaries on the Laws of England (discussed at length later, under Colonial Rights), for American use, and that formed, in many cases, the sole legal written works read by many early American attorneys. [St. George Tucker Commentary] Tucker, the leading Jeffersonian constitutional theorist, was widely read, even by those who rejected his interpretation of the Constitution.

On the Second Amendment, he wrote, in two footnotes: "[fn40] 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." "[fn41] 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."[St. George Tucker Commentary] 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. For two radically different views of Blackstone on the Second Amendment, see Heymen, Chicago-Kent and Volokh, Senate Testimony.

Further, Tucker writes of the English Bill of Rights, that,

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 ([§ 1890 of Commentaries on the U.S. Constitution ]) of the book describes the Second Amendment:

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

Historical interpretations of the Second Amendment

During its first ten or 12 decades, 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 the right to bear arms dealt with state provisions, not the Second Amendment. The notable exception to this general rule was Houston v. Moore, (1820) [Houston v. Moore, (1820)], where the U.S. Supreme Court mentioned the Second Amendment in an aside, but Justice Story "misidentified" it as the 5th Amendment. The Second Amendment would not attract serious judicial attention again until the Reconstruction era case of Cruikshank. (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 wrong.)

In Dred Scott v. Sandford, 60 U.S. 393 (1856) (the "Dred Scott Decision") [Text of Dred Scott Decision at Findlaw], one of the points of the Supreme Court's finding was the objection that: "It would give to persons of the negro race, who were recognised as citizens in any one State of the Union . . .the full liberty . . .to keep and carry arms wherever they went." This indicates that the right to carry arms was considered to be universal for citizens of the United States, though it is not clear that to 'carry arms' and to 'bear arms' was considered synonymous. However, it is clear by this wording that "to keep arms" was considered distinctly different than to "carry arms", and that both actions were considered to be protected for "citizens in any one State of the Union". Of course, these comments were made in passing, non-binding, and hence their legal significance is questionable.

Akhil Reed Amar notes in the Yale Law Journal, April 1992, Page 1193, the basis of Common Law for the first ten amendments of the US 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": This late 19th century interpretation of the common law origins of the Second Amendment, was, not however typical.[[Citing sources citation needed]] The Supreme Court in Cruikshank saw the common law right of self defense and the 2nd Amendment as distinct.[[Citing sources citation needed'']]

Modern interpretations of the Second Amendment

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During the last two decades, the intended meaning of the Second Amendment, and how the Amendment applies in the twenty-first century, is one of the most frequently debated topics in American politics. The reason may stem in part from the perceived encroachments on, or enhancements of, individual rights to arms, amidst the increased prominence of gun control positions in modern politics.

The modern Second Amendment debate centers on questions such as:

In addition, the debate additionally often involves discussion focused on more precise details around the word "militia" from the first clause portion of the Second Amendment, such as: It also often involves topics on differences in historical meanings and thoughts such as: It also expands to include discussions on the impact among states, such as: The debate is not simple. The Second Amendment contains archaic vocabulary and grammar. In addition there is the possibility that the Second Amendment was drafted deliberately with ambiguous meaning as part of the process of negotiation and compromise necessary in Congress in its passage. The following provides more background and insight into the central questions previously identified.

Constitutional Analysis and Rhetorical Structures

[The Embarrassing Second Amendment by Sanford Levinson] Yale Law Journal, Volume 99, pp. 637-659) indicates the six approaches to constitutional analysis outlined in Constitutional Fate by Philip Bobbitt:

# textual argument -- the unadorned language of the text
# historical argument -- the historical background of the vision being considered, whether the general history (such as the American Revolution) or specific appeals to the so-called intentions of framers
# structural argument -- inferrences from the particular structures established by the Constitution, including the tripartite division of the US federal government; the separate existence of both state and nation as political entities; and the structured role of citizens within the political order
# doctrinal argument -- prior cases decided by the Supreme Court
# prudential argument -- consequences of adopting a proferred decision in any given case
# ethical argument -- reliance on the overall ethos of limited government as centrally constituting American political culture
The legal grammar of constitutional argument comprise these six approaches -- or "modalities", as Bobbitt terms them. These approaches are the rhetorical structures within which "law-talk" as a recognizable form of conversation is carried on in analysis of United States constitutional law:

\"The People\"

As to the meaning of "the People", a Supreme Court definition exists. As stated by the Supreme Court in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), [United States v. Verdugo-Urquidez]

Steven A. Silver, writing for the Free Republic, claims that this class of persons consists solely of American Citizens.[Silver commentary]

Of course, as Richard Primus and Jack Rakove have noted, the right of the people to assemble, was generally understood not to refer to individuals in isolation. The Pennsylvania Declaration of Rights affirmed a right of the people "to regulate their internal police," another formulation in which this right was used in a more collective sense.

However, as noted earlier by the Supreme Court in 1886, the Second Amendment is not restricted to American Citizens. In Presser v. Illinois (1886) before the high court, Presser made an attempt to link the Second Amendment as being a privilege or immunity of citizens of the United States. This attempt was found lacking, as the Supreme Court stated Additionally, the Supreme Court stated in Presser v. Illinois,

Hence, because the Second Amendment did not apply solely to citizens of the United States, "the people" mentioned in the Second Amendment are not necessarily American citizens, but are instead, simply "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community".

\"To keep and bear arms\"

Relative to the "bear arms" meanings, an extensive study found " ...that the overwhelming preponderance of usage of 300 examples of the "bear arms" expression in public discourse in early America was in an unambiguous, explicitly military context in a figurative (and euphemistic) sense to stand for military service"[Study on term "bear arms"] Further, the Oxford English Dictionary on Historical Principles declares that a meaning of "to bear arms" is a figurative usage meaning "to serve as a soldier, do military service, fight". This study casts doubt on the modern definition of 'bear arms' to mean 'carry firearms'.

Yet, in a released Senate report on the Right to Keep and Bear Arms, Senator Orrin G. Hatch, chairman, U.S. Senate Judiciary Committee, Subcommittee on the Constitution, and well known gun rights proponent, counters this belief by stating

For a judicial interpretation, the United States Court of Appeals for the Fifth Circuit stated in 2001 that

A number of scholars have challenged the 5th Circuit's history. ([]) Several of the earliest state constitutions used variants of the Pennsylvania (September 28, 1776) model, affirming a right to "bear arms in defense of themselves and the state." Thus, North Carolina's declaration of rights (December 18, 1776) stated that "The people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."([]) Less than two decades later (1796), Tennessee affirmed that "The freemen of this State have a right to keep and bear arms for their common defence."[TN Declaration of right to bear arms]

According to these same scholars, a more individualistic formulation emerged only during the Jacksonian era.([]) Alabama's constitution of 1819 declared that "that every citizen has a right to bear arms in defence of himself and the state." In Buzzard v. State (1842), the Arkansas high court took notice of these two different constitutional models of arms bearing. More recently, Stanford Law professor Robert Weissberg has noted that the shift in the language of arms bearing provisions challenges the historical accounts put forth by supporters of the collective rights and individual rights accounts. University of Chicago Law Review (2004).

Two models

Glenn Reynolds, Second Amendment scholar and individual gun rights proponent, has categorized the modern debate regarding the Second Amendment into two models([]): A number of other theories exist as alternatives to these two models. Recent court decisions have characterized a debate that no longer fits a simple dichotomy. Among the views in this broad middle are the limited individual right, the expansive collective right, and the civic rights model. These models attract considerable attention among scholars and will likely figure in the next round of cases.

For a review of modern interpretations of the Second Amendment, and the debate surrounding them today, see Gun politics in the United States.

Early commentary about the Second Amendment by state courts

The Second Amendment of the United States Constitution is a Federal provision. Each of the Fifty States also has its own State Constitution addressing their specific state. Forty-four States have chosen to embody explicitly a right to arms into their State's Constitution ([]), and six States have chosen explicitly not to do so.

Of the forty-four states that have chosen to embody explicitly a right to arms into their State's Constitution, approximately thirty-one have explicitly chosen to include the right to arms for 'individual right', 'defense of self', 'defense of home' or similarly worded reasons. Approximately thirteen States, as with the Federal Constitution, did not choose to include explicitly 'individual', 'self' or 'home' wording associated with a right to bear arms for their specific state.

Of the forty-four states that have chosen to embody explicitly a right to arms into their State's Constitution, approximately twenty-eight have explicitly chosen to include the right to arms for 'security of a free state', 'defense of state', 'common defense' or similarly worded reasons, as with the Federal Constitution. Approximately sixteen States did not choose to include explicitly 'free state', 'defense of state' or 'common defense' wording for their specific state.

It remains a matter of dispute whether the decision to include explicitly these types of wording, or not, in these state constitutions, has any relevance on whether implicit 'individual' rights exist, or whether such rights (if any) are implictly protected by the States' Constitutions, or by the Federal Constitution's Second Amendment.

Regarding the State Constitutional rights to bear arms, the State courts have addressed the meaning of their specific state rights under their specific state's constitution. Two different models have emerged in state jurisprudence.

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 defence of themselves and the state was interpreted as an individual right, for the case of a concealed sword cane. As stated by the Kentucky High Court, "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" would have had to have been the pre-existing right in force when Kentucky's First Constitution was drawn in 1799. (Note: The Second Amendment had been in effect only since December 15, 1791 and was still a relatively new concept at the time of the drawing of Kentucky's Constitution 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." Commonwealth of KY Const. of 1799, art. X, § 23 did guarantee individuals the right to bear arms in defence of themselves and the state.

The result was that the law of the Commonwealth of Kentucky was eventually over-turned 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 defence of themselves and the state was an individual and collective right in the Commonwealth of Kentucky. This recognition, of the individual and collective right to bear arms in defence of themselves and the state, 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. In contrast to this, all states currently regulate the possession and use of firearms to some extent."([]) It is worth noting, however, that two states, Alaska and Vermont, do not require a permit or license even to this day for carrying a concealed weapon, following Kentucky's original position.

In contrast, in State v. Buzzard (1842, Ark), the Arkansas high court adopted a militia-based 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 Arkanas 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.State v. Buzzard, 4 Ark. (2 Pike) 18 (1842)

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. Since 1873, some legal and constitutional historians have sided with Bishop and not the individual rights model; see the symposium in Chicago Kent Law Review 76 and the Fordham Law Review vol 73. Other legal and constitutional historians have sided with the Individual Rights Model; see the testimony of Eugene Volokh http://www.law.ucla.edu/volokh/beararms/testimon.htm#14|Eugene Volokh Commentary}}.

In 1905, the Kansas Supreme Court in Salina v. Blaksley [Salina v. Blaksley] made the first collective right judicial interpretation, despite the U.S. Supreme Court ruling in Presser v. Illinois which some people view as having ruled otherwise in 1886. The Kansas high court declared: The modern formulation of the debate over the Second Amendment as an individual/collective rights dichotomy entered Federal law and scholarship when it was employed in a widely-cited Harvard Law Review article in 1915 by the Chief Justice of the Maine Supreme Court, Lucilius A. Emery The Constitutional Right to Keep and Bear Arms, 28 Harv. L. Rev. 473-477. He noted that "the right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against the common enemy, foreign or domestic."([])

The federal government and the Second Amendment

Executive branch

In response, Congress passed the Militia Act of 1903, which, despite its name, essentially did away with the type of militia that had been common at the time of the Revolution. The fact was that modern warfare needed trained men with modern weaponry, and the law provided for these in a regular army as well as the National Guard, founded in 1903. Although the Guard is the descendant in many ways of the old unorganized militia, it is a far more disciplined and trained entity, since their program is now held to high standards set by the regular army. The members get their weapons from the national government, and do not own them individually.

Legislative branch

However, prohibition was repealed by the Twenty-First Amendment on December 5 1933, and the gangster era largely ended with prohibition. (After prohibition ended, the illegal distributors of beer and whiskey, who had been some of the largest buyers of automatic weapons and sawed-off shotguns for illegal purposes, largely changed to other lines of work where automatic weapons were not needed. Legal breweries and distributors had no further need for automatic weapons for increasing market share.) According to some authors such as John Ross in his novel Unintended Consequences, the 1934 National Firearms Act was brought about instead to provide jobs during the Great Depression for Government agents who previously had been enforcing prohibition laws, and who otherwise would have been out of work, and unable to find new jobs.
Likewise, 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.
  • 1938: Federal Firearms Act Congress aimed this law at those involved in selling and shipping firearms through interstate or foreign commerce channels.
  • 1964: 18 U.S.C. § 1715 "Pistols, revolvers, and other firearms capable of being concealed on the person" immediately became nonmailable, except in limited circumstances, in response to highly-public and televised handgun assassinations, such as of Lee Harvey Oswald in 1963. Although critics at the time deemed this an infringement of the Second Amendment right of the People to keep and bear arms, the courts ruled that this law did not preclude the People to keep and bear arms; it regulated only the purchase of concealable arms via US Postal mail.
  • 1964: 49 U.S.C. § 1472 Carrying weapons aboard aircraft, even openly, became prohibited. The Second Amendment right of the People to bear arms ended at the door to the plane.
  • 1968 Gun Control Act (GCA68) The assassination of John F. Kennedy, who was killed by a mail-order rifle that belonged to Lee Harvey Oswald, inspired this major revision to federal gun laws. The subsequent assassinations of Martin Luther King and presidential candidate Robert F. Kennedy fueled its quick passage. 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 dealers could not sell to grew to include those convicted of felonies (with some exceptions), those found mentally incompetent, drug users, and more. 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; up until this law, mail order consumers had only 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), as the earlier 1964 law had already prohibited most handguns from the US Postal Mail; it also detailed more persons who were banned from possessing certain guns, including drug users, and further restricted shotgun and rifles sales.
  • Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 97th Congress, Second Session (February 1982) In 1982, a bipartisan subcommittee (consisting of 3 Republicans and 2 Democrats) of the United States Senate investigated the Second Amendment and reported upon their findings.
    • The report was written by noted Second Amendment legal scholars ([]) and [David Hardy] who are well known individual gun right advocates. This report included the following opinions:
    Concluded that seventy-five percent of BATF prosecutions were "constitutionally improper", especially on Second Amendment issues. ([Impropriety of BATF prosecutions ])
  • 1986 McClure-Volkmer Act This act addressed those BATF abuses noted in the 1982 Senate Judiciary Subcommittee opinions. It re-opened interstate sales of long guns on a limited basis, allowed ammunition shipments through the US Postal Service (a repeal of part of GCA68), 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 the Second Amendment rights of the People.
  • 1993 Brady Handgun Violence Prevention Act This act initially provided a five-day waiting period for handgun purchases and expired on November 30, 1998. It was replaced by an NRA-sanctioned, mandatory, computerized criminal background checking system to be conducted prior to any firearm purchase from a federally-licensed firearms dealer.

    • Judicial branch

    The question of the US Supreme Court rulings, or lack thereof, on the meaning of the Second Amendment has left supporters on all sides of the debate open to interpret the actions of the court as they see fit.

    Current Judicial Precedence

    At present, with certain exceptions and disputes, the courts generally find it acceptable under the Second Amendment for federal, state and local juridictions to:

    1. Involuntarily committed to a mental institution
    2. Convicted of a felony
    3. Convicted of a misdemeanor crime of domestic violence ([Commentary on Domestic Violence Offender Gun Ban ])([]) or not, as in one jurisdiction the Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence law was ruled a violation of the 2nd and 5th Amendments and was ruled unconstitutional for two years ([]) though that decision was reversed on appeal [reversed on appeal] and the Supreme Court has not granted certiorari
    4. Convicted of a misdemeanor crime of domestic violence and in the military, and being unable as a soldier in uniform to handle any weapons, although per Department of Defense policy, crew-served weapons such as tanks, missiles, and aircraft are exempt from the Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence law and may be handled or used by a soldier previously-convicted of a crime of domestic violence ([]) despite the same individual not being allowed to handle or use a pistol. For additional information see Department of Justice publication ([]).
    5. Dishonorably discharged from the military
  • Require the licensing of firearms dealers
  • Ban or regulate bombs, artillery, and explosives
  • Require or not require the registration of firearms
  • Ban or permit the possession of firearms and ammunition on county-owned property
  • Ban or not ban the possession of weapons of any kind on Federal property (Although weapons are generally banned on most Federal property, National Parks in some parts of Alaska encourage hikers to carry firearms for protection against wild animals. ([link],[Gun Issues ]), and are mostly permitted to be ruled according to local law, as the Federal District courts have not ruled unformly either for and against various forms of several of these provisions, and the Supreme Court has not yet ruled uniformly. Although the courts permit laws and regulations as itemized above, that is not meant to imply that all jurisdictions have these laws, as they do not. For example, most jurisdictions do not require handgun owner identification cards, nor do they require the presentation of any identification to buy ammunition.

    Second Amendment Theory

    In 1915, Supreme Court Chief Justice Lucilius A. Emery from Maine wrote an article in the Harvard Law Review on the Right to Keep and Bear Arms ([Emery Commentary ]), and argued that "The guaranty does not appear to have been of a common-law right" [and] "I submit that the right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against the common enemy, foreign or domestic."

    According to 1998 research and testimony ([Volokh Commentary ]) by Eugene Volokh, a UCLA law professor and a well known individual gun rights proponent; the Supreme Court has ruled in passing in 22 out of 27 times while quoting or paraphrasing only "the right of the people to keep and bear arms" language of the Second Amendment without ever mentioning the Militia Clause, and this treatment has evidenced clear support of the Second Amendment as protecting an individual right and not as protecting a collective right. ([]) However, Akhil Reed Amar, a leading scholar of constitutional law, writes in the left-leaning journal The New Republic that the word people is also used in a collective sense in the US Constitution: "The amendment speaks of a right of 'the people' collectively rather than a right of 'persons' individually.' And it uses a distinctly military phrase: 'bear arms.'" ([])

    According to Volokh, the federal courts of appeal have often subscribed to the states' right approach, instead of to the individual right approach. ([Volokh Commentary ]) They also have not agreed upon any single interpretation of the Second Amendment. The Fifth and Ninth circuits have shown different judicial thinking, tending to favor the individual and collective rights models respectively. Most circuits have followed the Ninth's reading, ([]) Despite these inconsistencies among the lower courts, the Supreme Court has not granted certiorari to any recent case hinging on the Second Amendment.

    On the other hand, it also has been said by the Brady Center, well known advocates for gun control, that: "No federal court in history has overturned a gun law on Second Amendment grounds."[Brady Center commentary]. Also, ''"... the meaning of the Second Amendment has been settled since the U.S. Supreme Court ruling in U.S. v. Miller, 307 U.S. 174 (1939). In that case, the Court ruled that the "obvious purpose" of the Second Amendment was to "assure the continuation and render possible the effectiveness" of the state militia.

    Since Miller, the Supreme Court has addressed the Second Amendment twice more, upholding New Jersey's strict gun control law in 1969 and upholding the federal law banning felons from possessing guns in 1980. Furthermore, twice - in 1965 and 1990 - the Supreme Court has held that the term "well-regulated militia" refers to the National Guard."'' ([])

    These pro-collective gun rights positions are disputed by some pro-individual gun rights people, as discussed below:

    The 1969 case in question was Burton v. Sills, 394 U.S. 812 (1969), [Burton v. Sills]Sills being the attorney general for New Jersey, and Burton being the individual charged with violating New Jersey's gun control law. The essential issue at question was whether New Jersey's strict gun control law violated Burton's Second Amendment right. The appeal by Burton was dismissed "for want of a substantial federal question" by the US Supreme Court, thereby letting stand the lower court decisions, and leaving in place New Jersey's strict gun control laws. The key factor was that Burton could apply for a New Jersey gun permit, and hence his Second Amendment right was not infringed, only regulated. The New Jersey Supreme Court affirmed with Burton v. Sills, 53 N.J. 86 (1968) [Burton v. Sills in New Jersey Supreme Court] that:

    The 1965 decision relative to the definition of Militia arises in Maryland v. United States, 381 U.S. 41 (1965). In this case, an airliner collided with a National Guard jet, and a need for a definition of National Guard arose. In this ruling, the U.S. Supreme Court wrote,

    Clauses 15 and 16 of the Constitution are:

    • To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
    • To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
    Clearly, the National Guard is an example of the Militia of Clauses 15 and 16. However, there remains an open question whether the modern National Guard was the sole version of the well-regulated Militia described by the Second Amendment. Maryland v. United States does state that "The National Guard is the modern Militia". But pro-individual gun right advocates argue that an unorganized militia would be an equally "well-regulated militia". Pro-collective gun right advocates question this argument in light of the "...active, organized militias..." wording of Burton v. Sills.

    Further clarification was provided in 1990, in Perpich v. Department of Defense, 496 U.S. 334 (1990). In this case, the U.S. Supreme Court ruled that, "The Dick Act divided the class of able-bodied male citizens between 18 and 45 years of age into an "organized militia" to be known as the National Guard of the several States, and the remainder of which was then described as the "reserve militia," and which later statutes have termed the "unorganized militia." ... " In 1908, however, the statute was amended to provide [496 U.S. 334, 343] expressly that the Organized Militia should be available for service "either within or without the territory of the United States." Hence, the National Guard is not the same as the unorganized militia. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&linkurl=%3C%LINKURL%%3E&graphurl=%3C%GRAPHURL%%3E&court=US&case=/us/496/334.html Perpich v. Department of Defense'', 496 U.S. 334 (1990)]

    The primary Supreme Court cases that address Second Amendment issues are U.S. v. Miller [1939], U.S. v. Cruikshank [1875], and Presser v. Illinois [1886]. The rulings for all three of these cases found that individual use of arms could be restricted. Yet, elements of these cases have been cited by supporters of both sides of the firearms debate to support their positions.

    Important Case Law

    United States v. Miller
    US v. Miller is the Supreme Court's fullest discussion of the Second Amendment. In this case, the court rejected a Second Amendment challenge to a federal law prohibiting the interstate transportation of sawed-off shotguns. It held that, "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 the 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." The court also held that the “obvious purpose” of the Amendment was to “assure the continuation and render possible the effectiveness” of the state militia and it “must be interpreted and applied with that end in view.”

    Miller, however, had died after certiorari was granted but before the case was heard, thus no argument was made by his side. It is entirely possible that had his side been represented, they might have argued that trench guns, used by the military in World War I, were, in fact, the equivalent of sawed-off shotguns. It is also often ignored that, if the Supreme Court believed the Second Amendment is not a right of individuals and only a right of states to maintain a National Guard, then the court would simply have decided that since Miller was not a state, he would not have had any standing to raise the issue in the first place, rather than argue that Miller needed to show a sawed-off shotgun is a valid military firearm.

    Since Miller, the meaning of the Second Amendment has been addressed in more than 200 federal and state appellate cases. Those cases have consistently rejected Second Amendment challenges to firearms laws, with one exception } since overturned on appeal. Though the U.S Supreme Court has not directly ruled on the Second Amendment since 1939, by its refusal to hear appeals, its actions have been consistent with Miller. The court has consistently refused to review lower court decisions rejecting Second Amendment challenges to firearms laws, despite numerous opportunities to do so.

    Jack Miller and Frank Layton were indicted for transporting an unregistered short-barreled (sawed-off) shotgun across state lines, in violation of the National Firearms Act of 1934, as the result of a Federal raid searching for illegal whiskey that found only sugar. Layton made a plea bargain, but Miller moved to dismiss the case on the grounds that the National Firearms Act violated his Second Amendment right to bear arms. On January 3, 1939, the District Court agreed with Miller and quashed his indictment. This decision was in turn appealed to the Supreme Court which heared the case on March 30, 1939. On May 15, 1939 the Supreme Court, in a unanimous opinion, overruled the District Court decision.

    After reciting the original provisions of the Constitution dealing with the militia, the Supreme Court observed that "[w]ith obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted with that end in view." The significance of the militia, the Court continued, was that it consisted of "civilians primarily, soldiers on occasion." It was upon this force that the States could rely for defense and securing of the laws, on a force that "comprised all males physically capable of acting in concert for the common defense," who, "when called for service . . . were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." Therefore, "[i]n the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the 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."

    The specific wording "in the absence of any evidence" is essential to an understanding of the procedural nature and scope of the ruling. Neither Miller, his co-defendant Frank Layton, nor their attorney, appeared before the Supreme Court (Miller had died before the case could be heard); the Justice Department attorneys presented their case without any opposition from the appellants. Lacking evidence, the court could not make any emphatic statements in their ruling. The court could not say that the weapon was protected by the Second Amendment, because no case was presented in support of that position. [U.S. v. Miller]

    U.S. v. Miller was remanded to the lower court for further consideration. However, as Miller was deceased by this time, no further action was taken; the question of whether a short-barreled shotgun has actual military utility, and thus whether a punitive tax on such guns violates the Second Amendment, was unresolved.

    Supporters of the individual rights model read Miller to support the right of individuals privately to possess and bear their own firearms, while supporters of the States' right model read Miller as endorsing the view that the Second Amendment exists specifically to "assure the continuation and render possible the effectiveness" of the militia.

    United States v. Cruikshank
    In this case, the high court made the following statement: "The right [claimed in this case] is that of 'bearing arms for a lawful purpose.' 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, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States."

    This high court statement is significant for two reasons: First, because "[t]he Second Amendment...has no other effect than to restrict the powers of the national government...", the States are allowed to regulate arms. It also means that the right of bearing arms for a lawful purpose is a pre-existing right, pre-dating even the Constitution, and that there is clear recognition of this pre-existing right by the Second Amendment in terms of the language that it uses in "the right of the People to keep and bear Arms, shall not be infringed." This means that the right of the People to keep and bear Arms is not a right granted by the Second Amendment, but an unenumerated right, protected by the Ninth Amendment, which states simply "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Second Amendment merely prevents infringing this pre-existing right. The right to keep and bear arms, being such an unenumerated right, of course clearly is not a right granted by the Constitution.

    The Fourteenth Amendment forbids the States to violate "the privileges or immunities of citizens of the United States". The court in Cruikshank argues that because the right to bear arms belongs to all humanity, regardless of whether the Bill of Rights had ever been written, because it is a pre-existing right, it is not a "privilege ... of citizens of the United States" and therefore is not protected by the Fourteenth Amendment. Such an argument has since been contradicted many times by decisions holding that other clauses of the Bill of Rights, which also merely forbid Congress to violate certain rights rather than creating them, apply to all levels of government.

    Presser v. Illinois
    Presser v. Illinois, 116 U.S. 252 (1886), is one of only two post-Civil War 19th Century U.S. Supreme Court cases to address the Second amendment, the sole other one being the previously-mentioned U.S. v. Cruikshank. [United States v. Cruikshank]

    In this 1886 case, Presser was part of a citizen militia group, the Lehr und Wehr Verein (Study and Resistance Association), a group of armed ethnic German workers, associated with the Socialist Labor Party, and formed to counter the armed private armies of companies in Chicago. The Socialist Labor Party would itself be associated with the May 4, 1886 Haymarket Riot in Chicago. Presser v. Illinois was decided only four months before the riot. [Presser v. Illinois] Basically, Presser, Presser claimed the law violated his rights under the Second Amendment.

    With Presser v. Illinois, the Supreme Court ruled: 

    Presser reaffirmed the Cruikshank decision that the Second Amendment acts as a limitation upon only the federal government and not the states. Cruikshank and Presser are consistently used by the lower courts to deny any recognition of individual rights claims and provides justification to State and Local municipalities to pass laws that regulate guns.
    However, the high court stated,

    Additionally, they ruled that the State could regulate militias, with no violation of the Second Amendment, for

    The traditional reading of Presser is that it affirms the states' rights view articulated in Cruikshank. Modern supporters of the individual rights view have challenged this claim, viewing the case as affirming a right to keep and bear arms as a necessary condition to have a universal militia. [link]

    Other cases of note
    U.S. v. Verdugo-Urquidez (1990) In discussing the meaning of "the people" in the Fourth Amendment, the Supreme Court commented: " '[T]he people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by 'the people of the United States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.' See also U.S. Const., Amdt. 1 ('Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble') (emphasis added); Art. I, 2, cl. 1 ('The House of Representatives shall be composed of Members chosen every second Year by the people of the several States') (emphasis added). While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. "

    For a comprehensive list, see firearm court cases.

    The Colonial right to possess arms under English Common Law

    As British subjects, Protestant colonists had a conditional right to possess arms according to the English Declaration 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, 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 fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, 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."*--William Blackstone,'1 Commentaries on the Laws of England" 136
    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." "Boston, March 17," in New York Journal, Supplement, April 13,1796 at 1, Col.3, quoted in Stephen Halbrook, A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees
    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..." L. Kinvin Wroth and Hiller B. Zobel, ed., Legal Papers of John Adams 3:248
    "According to the Militia Act of 1792 the President as commander and chief has a right and a need to know who the militiamen are and what the militia resources are as a national resource. In the eighteenth century the public had a claim on privately owned weapons for public purposes." ([]) ([]) This has relevance to the modern question sometimes raised, whether the Second Amendment prohibits gun registration or confiscation of private guns by the Federal Government. The Militia Act of 1792 required, with some exceptions, every free able-bodied white male citizen from 18 through 44 years old to enroll in the Militia and provide himself with a good musket (the type of weapon in common use by the army) or firelock or a good rifle. It also required the aforesaid to hold their weapons exempted from all suits, distresses, executions, or sales for debt, or for the payment of taxes. Section 6 of the Militia Act requires the Adjutant General of each State to annually report their condition to the Commander in Chief of the State and send a duplicate report to the President of the United States. "Annals of Congress, May 8, 1792, 2nd Cong., 1st sess., 1392." Gun registration laws are not intended to, written to or enforced in any way to provide the President with a list of privately owned arms that can be used for the defense of the Country or to ensure that every able bodied male is armed. Confiscation of private guns by the Federal Government is generally not an emergency measure done to provide weapons for the military. The Militia Act of 1792 provides no justifaction for current gun registration laws or bans on firearms possession by law abiding citizens.

    The State Ratification Conventions

    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. ((It is worth noting that "to arms" and "bearing arms" mean to fight for a military purpose, as opposed to 'having arms' for self defense.)(In the context of a militia the term trained to arms means trained in the use of arms for military purposes, capable of bearing arms means fit for service. Neither term means to fight. In each case the right to keep and bear arms is distinct from the following phrase stating the safe defense of a free state is a militia consisting of all the people. The militia phrases are not written as limits of the people's right.))

    New Hampshire, June 21,1788

    • "XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion."*
    "Elliot, Debates of the Several State Conventions" 1:326

    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:"*
    "Elliot, Debates of the Several State Conventions" 3:645-6, 652-61

    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.

    "Elliot, Debates of the Several State Conventions" 3:656

    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."*
    "Elliot, Debates of the Several State Conventions" 1:328

    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 Congress approved the Bill of Rights and submitted them to the States for ratification.
    "Elliot, Debates of the Several State Conventions" 4:216,226,244

    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;"*
    "Elliot, Debates of the Several State Conventions" 1:335

    Historical quotations

    The documented debate in the House and Senate over the Second Amendment is sparse, especially when compared to debate over other articles of the Bill of Rights. For this reason, contemporaneous writings and speeches of the Founding Fathers are often referenced by those who would better understand the original intent and historical context of the Second Amendment. Scholars on both sides of the debate generally cite the same texts but interpret their meaning in different ways. One important issue in this debate stems from the use of rejected or proposed amendments to reconstruct the original understanding of the Second Amendment. As is true for any issue in constitutional history, the problem of context is essential. The following statements were made by various founding fathers prior to the adoption of the Second Amendment. While most date from before the wording of the second amendment was established, four were made during the 1789 debates over its adoption:

    John Adams

    • "To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws." --John Adams, A Defence of the Constitutions of the United States 475 (1787-1788)

    James Madison

    James Madison is considered the "Father of the Constitution," and was the primary author of the Bill of Rights.

    • "The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part 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 the 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. Those who are best acquainted with the late successful resistance of this country against the British arms will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments of the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." --James Madison, Federalist No. 46, 1788

    George Mason

    George Mason is considered the "Father of the Bill of Rights." Mason wrote the Virginia Declaration of Rights, which detailed specific rights of citizens. He was later a leader of those who pressed for the addition of explicitly stated individual rights as part of the U.S. Constitution.

    • "[W]hen the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually. . . ." --George Mason, Virginia's U.S. Constitution ratification convention, June 14, 1788 Elliot, Debates of the Several State Conventions 3:380
    • "I ask, who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor. . . ." --George Mason, Virginia's U.S. Constitution ratification convention, June 16, 1788 Elliot, Debates of the Several State Conventions 3:425
    • "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." -- Within Mason's declaration of "the essential and unalienable Rights of the People," --George Mason, later adopted by the Virginia ratification convention, 1788

    Patrick Henry

    • "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitabley ruined." --Patrick Henry, Virginia's U.S. Constitution ratification convention, June 5,1788 Elliot, Debates of the Several State Conventions 3:45
    • "My great objection to this government is, that it does not leave us the means of defending our rights or of waging war against tyrants." --Patrick Henry, Virginia's U.S. Constitution ratification convention, June 5,1788 Elliot, Debates of the Several State Conventions 3:47

    Thomas Jefferson

    • "No freeman shall ever be debarred the use of arms." -- Thomas Jefferson, Proposed Virginia Constitution, June, 1776
    • "Laws that forbid the carrying of arms. . . disarm only those who are neither inclined nor determined to commit crimes. . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." -- Thomas Jefferson, Commonplace Book, 1774-1776, quoting from On Crimes and Punishment, by criminologist Cesare Beccaria, 1764

    Others

    • "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions." Publius, Federalst Papers No. 51 Feb.8, 1788
    • "The said Constitution [shall] be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms." --Samuel Adams, Massachusetts' U.S. Constitution ratification convention, 1788
    • "A militia when properly formed are in fact the people themselves...and include all men capable of bearing arms...To preserve liberty it is essential that the whole body of the people always posses arms, and be taught alike, especially when young, how to use them...The mind that aims at a select militia, must be influenced by a truly anti-republican principle." --Melancton Smith, Additional Letters From The Federal Farmer, 1788
    • "The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them." --Tench Coxe, Delegate to Continental Congress, Oct. 21, 1787
    • "Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."--Tench Coxe, Federal Gazette, June 18,1789, writing in support of the Madison's first draft of the Bill of Rights
    • "[A]rms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The balance of power is the scale of peace. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not others dare not lay them aside. And while a single nation refuses to lay them down, it is proper that all should keep them up. Horrid mischief would ensue were one half the world deprived of the use of them; for while avarice and ambition have a place in the heart of man, the weak will become a prey to the strong. The history of every age and nation establishes these truths, and facts need but little arguments when they prove themselves." --Thomas Paine, Thoughts On Defensive War, 1775
    • "The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people." --Fisher Ames, Letter to F.R. Minoe, June 12, 1789
    • "The majority falls prey to the delusion — popular in some circles — that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth — born of experience — is that tyranny thrives best where government need not fear the wrath of an armed people... A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble. All too many of the other great tragedies of history — Stalin’s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few — were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. ... If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars." — Kozinski, Circuit Judge, dissenting from denial of rehearing en banc in Silveira v. Lockyer [Circuit court decision in Silveira v. Lockyer]

    Historical examples of disarmament

    This section explores some examples of the kinds of actions that historically already had been taken, and against which the Amendment would have been meant to provide protection.

    • Just prior to the American Revolutionary War, British troops were seizing gunpowder and cannons (some of which are fairly-well documented to have been stolen from the British) from armories.
    • In 1686, Catholic King James II of England made use of both the Militia Act and the Game Act to disarm his Protestant opponents. After he was deposed, the English Bill of Rights 1689 included perhaps the first written articulation of a right to bear arms: "That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law".

    References

    External links

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