Second Amendment: Fact vs Fiction!
Case and Constitutional Law - Founding Father Statements:
Americans have the RIGHT and advantage of being armed - unlike the citizens of other countries
whose governments are afraid to trust the people with arms. - James Madison, 1789
The constitution shall NEVER be construed to authorize Congress to prevent the people of the
United States from keeping their own arms. - Samuel Adams, 1722-1803
Arms in the hands of the citizen may be used at individual discretion for the defense
of the country, the overthrow of TYRANNY, or private self defense. - John Adams
"For, in principle, there is no difference between a law prohibiting the wearing of concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise. 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." [Bliss vs. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am. Dec. 251 (1822)
"The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the high powers" delegated directly to the citizen, and 'is excepted out of the general powers of government.' A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power." [Cockrum v. State, 24 Tex. 394, at 401-402 (1859)]
"The provision in the Constitution granting the right to all persons to bear arms is a limitation upon the power of the Legislature to enact any law to the contrary. The exercise of a right guaranteed by the Constitution cannot be made subject to the will of the sheriff." [People vs. Zerillo, 219 Mich. 635, 189 N.W. 927, at 928 (1922)]
"The right of the people to keep and bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right." [Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251 (1846)]
"The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both." - William Rawle, A View of the Constitution 125-6 (2nd ed. 1829)
"The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them." - Joseph Story, Commentaries on the Constitution of the United States; With a Preliminary Review of the Constitutional History of the Colonies and States before the Adoption of the Constitution [Boston, 1833].
"[The American Colonies were] all democratic governments, where the power is in the hands of the people and where there is not the least difficulty or jealousy about putting arms into the hands of every man in the country. [European countries should not] be ignorant of the strength and the force of such a form of government and how strenuously and almost wonderfully people living under one have sometimes exerted themselves in defence of their rights and liberties and how fatally it has ended with many a man and many a state who have entered into quarrels, wars and contests with them." - George Mason, "Remarks on Annual Elections for the Fairfax Independent Company" in The Papers of George Mason, 1725-1792, ed Robert A. Rutland (Chapel Hill, 1970).
"The constitutions of most of our States assert that all power is inherent in the people; that... it is their right and duty to be at all times armed;..." - Thomas Jefferson to Justice John Cartwright, 1824. ME 16:45.
"Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms." - James Madison, The Federalist Papers No. 46 at 243-244.
"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, quoting Cesare Beccaria in "On Crimes and punishment" (1764).
"False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crime." - Cesare Beccaria, quoted by Thomas Jefferson
"The gun gives boldness, enterprise, and independence to the mind. Let your gun, therefore, be the constant companion of your walks." - Thomas Jefferson
"The said Constitution be never construed to prevent the people of the United States who are peaceable citizens from keeping their own arms." - Samuel Adams, during Massachusetts's Convention to Ratify the Constitution (1788).
WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL
The Second Amendment secures a right of
individuals generally, not a right of States or a right restricted to persons
serving in militias.
August 24, 2004
MEMORANDUM OPINION FOR THE U.S. ATTORNEY GENERAL
Table of Contents
- The Unsettled
- Textual and
- "The Right
of the People"
- "To Keep
and Bear Arms"
- "A Well
Regulated Militia, being Necessary to the Security of a Free
Considerations: The Bill of Rights and the Militia Powers
- The Original
Understanding of the Right to Keep and Bear Arms
- The Right
Inherited from England
- The Right
in America before the Framing
Development of the Second Amendment
- The Early
- The First
- The First
The Second Amendment of the Constitution
provides: "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."
You have asked for the opinion of this Office on one aspect of the right
secured by this Amendment. Specifically, you have asked us to address the
question whether the right secured by the Second Amendment belongs only to the
States, only to persons serving in state-organized militia units like the
National Guard, or to individuals generally. This memorandum memorializes and
expands upon advice that this Office provided to you on this question in 2001.
As relevant to the question addressed herein,
courts and commentators have relied on three different interpretations of the
Second Amendment. Under the "individual right" view, the Second Amendment
secures to individuals a personal right to keep and to bear arms, whether or
not they are members of any militia or engaged in military service or
training. According to this view, individuals may bring claims or raise
challenges based on a violation of their rights under the Second Amendment
just as they do to vindicate individual rights secured by other provisions of
the Bill of Rights. (1)
Under the "collective right" view, the Second Amendment is a federalism
provision that provides to States a prerogative to establish and maintain
armed and organized militia units akin to the National Guard, and only States
may assert this prerogative. (2)
Finally, there is a range of intermediate views according to which the
Amendment secures a right only to select persons to keep and bear arms in
connection with their service in an organized state militia such as the
National Guard. Under one typical formulation, individuals may keep arms only
if they are "members of a functioning, organized state militia" and the State
has not provided the necessary arms, and they may bear arms only "while and as
a part of actively participating in" that militia's activities. (3)
In essence, such a view would allow a private cause of action (or defense) to
some persons to vindicate a State's power to establish and maintain an armed
and organized militia such as the National Guard. (4)
We therefore label this group of intermediate positions the "quasi-collective
The Supreme Court has not decided among these
three potential interpretations, and the federal circuits are split. The
Executive Branch has taken different views over the years. Most recently, in a
2001 memorandum to U.S. Attorneys, you endorsed the view that the Second
Amendment protects a "'right of individuals, including those not then actually
a member of any militia or engaged in active military service or training, to
privately possess and bear their own firearms'" but allows for "reasonable
restrictions" designed "to prevent unfit persons from possessing firearms or
to restrict possession of firearms particularly suited to criminal misuse." (5)
As developed in the analysis below, we
conclude that the Second Amendment secures a personal right of individuals,
not a collective right that may only be invoked by a State or a
quasi-collective right restricted to those persons who serve in organized
militia units. Our conclusion is based on the Amendment's text, as commonly
understood at the time of its adoption and interpreted in light of other
provisions of the Constitution and the Amendment's historical antecedents. Our
analysis is limited to determining whether the Amendment secures an
individual, collective, or quasi-collective right. We do not consider the
substance of that right, including its contours or the nature or type of
governmental interests that would justify restrictions on its exercise, and
nothing in this memorandum is intended to address or call into question the
constitutionality, under the Second Amendment, of any particular limitations
on owning, carrying, or using firearms.
This memorandum proceeds in four parts. Part
I addresses the current unsettled state of the law in this area. Part II
demonstrates that the text and structure of the Constitution support the
individual-right view of the Second Amendment. Part III shows why this view
finds further support in the history that informed the understanding of the
Second Amendment as it was written and ratified. Finally, Part IV examines the
views of commentators and courts closest to the Second Amendment's adoption,
which reflect an individual-right view, and then concludes by describing how
the modern alternative views of the Second Amendment took hold in the early
I. The Unsettled Legal
Recent interpretations of the Second
Amendment have been characterized by disagreement and uncertainty. The Supreme
Court has not decided the question that we address here, and at least three
views prevail in the federal courts of appeals. The Executive Branch has taken
varying positions, and the Amendment has been the subject of extensive
academic debate for the past two decades.
The Supreme Court's most important decision
on the meaning of the Second Amendment, United States v.
grew out of the enactment of the National Firearms Act of 1934. (7)
That Act was the first federal regulation of private firearms. (8)
It taxed (and thereby registered) transfers of sawed-off shotguns or rifles
capable of being concealed, machine guns, and silencers. It also taxed dealers
in such weapons and required anyone who possessed such a weapon acquired
before 1934 to register it with federal tax authorities.
A Second Amendment challenge to this Act
produced Miller in 1939, the closest that the Supreme Court has come
to interpreting the substance of the Amendment. Miller and a co-defendant were
indicted for transporting an unregistered sawed-off shotgun in interstate
commerce from Oklahoma to Arkansas, and the district court sustained their
Second Amendment challenge to the indictment. On appeal by the Government,
neither defendant appeared or filed a brief. (9)
The Court, in reversing and remanding, held that the sawed-off shotgun was not
among the "Arms" protected by the Second Amendment absent "evidence tending to
show that" its use or possession "at this time has some reasonable
relationship to the preservation or efficiency of a well regulated militia."
Citing an 1840 decision of the Tennessee Supreme Court, Aymette
v. State, the Court concluded that it was not "within
judicial notice" that a sawed-off shotgun was a weapon that was "any part of
the ordinary military equipment" or whose use "could contribute to the common
defence." Absent evidence, therefore, the Court could not "say that the Second
Amendment guarantees the right to keep and bear such an instrument."
After this one-paragraph discussion, the
Court quoted the powers that Article I, Section 8, Clauses 15 and 16 of the
Constitution grant to Congress to provide for calling forth, organizing,
arming, and disciplining "the Militia," and stated that the Second Amendment's
"declaration and guarantee" were made "[w]ith obvious purpose to assure the
continuation and render possible the effectiveness of" the militia, and that
the Amendment "must be interpreted and applied with that end in view."
(11) The Court then added a historical discussion demonstrating that
"the term Militia" as used in various provisions of the Constitution,
including the Second Amendment, referred to a body that "comprised all males
physically capable of acting in concert for the common defense," who "were
expected to appear" for occasional training "bearing arms supplied by
themselves and of the kind in common use at the time," which in the 1700's
usually meant a "good" musket of proper length.
Miller did not resolve the question
addressed in this memorandum. Although the meaning of the decision is much
debated, three points appear evident. First, the holding was limited to the
meaning of "Arms" in the Second Amendment and whether a sawed-off shotgun is
among the arms protected. In determining that meaning, the Court also
interpreted the term "Militia" as used in the Constitution. Second, the Court
did not categorically reject Miller's Second Amendment challenge. The Court's
decision to address the substance of this challenge to his indictment, as
opposed to concluding that only States could bring such a challenge, appears
to be inconsistent with a collective-right view.
Finally, the Court did not clearly decide
between the individual-right and quasi-collective-right views. Its holding
regarding the meaning of "Arms" is consistent with either view: The Court's
limitation of "Arms" to those weapons reasonably related to the preservation
or efficiency of a well-regulated militia (such as those that are "part of the
ordinary military equipment" or that "could contribute to the common defense")
could be consistent with a right to "keep and bear" such arms that is
restricted to service in an organized military unit such as the National
Guard; but that holding is also consistent with an individual right to keep
and bear whatever "Arms" the Amendment protects. Similarly, the Court's
reference to the need to interpret the Second Amendment's "declaration and
guarantee" with the "end in view" of furthering "the continuation and
render[ing] possible the effectiveness of" the militia could be consistent
with a quasi-collective-right view; but it is also consistent with the
understanding of the relationship between an individual right to keep and bear
arms and the "Militia" that prevailed at the time of the Founding, an
understanding confirmed by early authorities' discussions of the Second
Even so, absent from the Court's opinion in
Miller was any discussion of whether the defendants were members of
the National Guard or any other organized military force, whether they were
transporting the shotgun in the service of such a force, or whether they were
"physically capable of" bearing arms in one and thus even eligible for
service. The nature of the weapon at issue, not of the defendants or their
activities, appeared to be the key fact, and this aspect of the opinion tends
to point toward the individual-right view rather than the
quasi-collective-right view. In addition, Miller's broad reading of
"Militia" is most consistent with the individual-right view, as we explain
below in Part II.C.2, and is in tension with the quasi-collective-right view,
under which the militia is understood to refer to select military units, akin
to the modern National Guard, organized and armed by the States.
Three years after Miller, in
Cases v. United States, the First Circuit read
Miller to turn solely on the type of weapon at issue and to suggest
an individual-right view of the Second Amendment: "Apparently, then, under the
Second Amendment [as interpreted in Miller], the federal government .
. . cannot prohibit the possession or use of any weapon which has any
reasonable relationship to the preservation or efficiency of a well regulated
militia." But the court doubted that Miller "was attempting to
formulate a general rule applicable to all cases," warned of the consequences
of such a view, and asserted that it was "unlikely that the framers of the
Amendment intended any such result."
(15) The court, instead, adopted what amounted to a
quasi-collective-right view: A person has no right under the Second Amendment
unless he is "a member of a[ ] military organization" or uses his weapon "in
preparation for a military career," thus "contributing to the efficiency of
the well regulated militia."
(16) Neither in support of its assertion about the Framers' intent
nor in its paragraph fashioning this rule did the court cite any text or other
Also in 1942, the Third Circuit in United
States v. Tot applied Miller's definition of
"Arms" to affirm the conviction of a defendant who received a pistol in
interstate commerce after having been convicted of a felony involving
(17) Alternatively, the court rested its affirmance on the ground
that the Government may prohibit such a convict from possessing a firearm.
(18) Although either of these views is consistent with an individual
(19) Tot added, in apparent dicta, a one-paragraph
historical discussion in support of the view that the Amendment "was not
adopted with individual rights in mind, but as a protection for the States in
the maintenance of their militia organizations against possible encroachments
by the federal power."
(20) The court did not address the Amendment's text but instead
chiefly relied on the Aymette case's account of the right that
emerged from the English Revolution of 1688-1689.
Over the past few decades, the Executive
Branch has taken differing views of the right secured by the Second
(21) In 1941, President Roosevelt signed legislation authorizing
requisitions of private property for war use that prohibited requisitioning or
new registration "of any firearms possessed by any individual for his personal
protection or sport" and, moreover, any impairing or infringing of "the right
of any individual to keep and bear arms."
(22) In 1959, this Office reviewed a bill that would have secured
the custody and disposition of missiles, rockets, and earth satellites. We
questioned its definition of "missile," which included "projectile" and "seems
to include conventional ammunition," and we commented that if the bill
purported "to prohibit private individuals from acquiring,
possessing, or receiving any standard ammunition for firearms . . . . serious
constitutional problems would arise under the Second Amendment."
(23) In commenting on similar bills in 1961 and 1962, this Office
cited and reaffirmed its 1959 memorandum.
(24) In 1965, however, the Justice Department expressly adopted the
collective-right interpretation in congressional testimony by Attorney General
Soon after, in 1968, Congress passed the
first major federal gun regulation since 1938, the Omnibus Crime Control and
Safe Streets Act.
(26) This statute produced a flurry of decisions in the federal
courts of appeals rejecting the individual-right view. Following the Third
Circuit's dicta in Tot, the Fourth, Sixth, Seventh, and
Ninth Circuits eventually adopted the collective-right view.
(27) Following the First Circuit in Cases, the Eighth,
Tenth, and Eleventh Circuits adopted quasi-collective-right views.
(28) As in Tot and Cases, many of these cases,
particularly the initial ones, involved constitutional challenges by persons
convicted of felonies or violent crimes,
(29) and some involved challenges to restrictions on carrying
(30) These decisions did not analyze, at least not in depth, the
Amendment's text or history. Rather, they relied on Tot or Cases
(or their progeny), claimed support from Miller, or both. As the
Ninth Circuit recently recognized in the course of adhering to its
collective-right position, these earlier decisions reached their conclusions
"with comparatively little analysis," "largely on the basis of the rather
cursory discussion in Miller, and touched only briefly on the merits
of the debate."
In contrast, the burgeoning scholarly
literature on the Second Amendment in the past two decades has explored the
meaning of the Second Amendment in great detail. The collective-right and
quasi-collective-right positions have many adherents,
(32) although the preponderance of modern scholarship appears to
support the individual-right view.
Recent decisions of the Fifth and Ninth
Circuits have begun to remedy the relatively sparse judicial analysis of the
meaning of the Second Amendment. In 2001, the Fifth Circuit in United
States v. Emerson adopted the individual-right view,
based on an extensive analysis of the Amendment's text and history.
(34) The following year, the Ninth Circuit in Silveira
v. Lockyer rejected Emerson with an extended
counter-analysis and reaffirmed its adherence to the collective-right view.
(35) Six members of the Ninth Circuit dissented from denial of
rehearing en banc and endorsed an individual-right view.
In sum, the question of who possesses the
right secured by the Second Amendment remains open and unsettled in the courts
and among scholars. Accordingly, we turn to the Amendment's text, as commonly
understood at the time of its adoption and interpreted in light of other
provisions of the Constitution and the Amendment's historical antecedents, to
discern its proper meaning.
II. Textual and Structural
The Second Amendment of the United States
Constitution, part of the Bill of Rights, reads in full as follows:
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
The Amendment expressly protects a "right of the people," which is "to keep
and bear Arms" and which has some relation to the prefatory declaration that a
"well regulated Militia" is necessary for the ultimate end of "the security of
a free State." We address each of these phrases in turn and then consider how
the structure of the Constitution illuminates the Amendment's meaning.
As explained below, the text of the Second
Amendment points to a personal right of individuals: A "right of the people"
is ordinarily and most naturally a right of individuals, not of a State and
not merely of those serving the State as militiamen. The phrase "keep arms" at
the time of the Founding usually indicated the private ownership and retention
of arms by individuals as individuals, not the stockpiling of arms by a
government or its soldiers, and the phrase certainly had that meaning when
used in connection with a "right of the people." While the phrase "bear arms"
often referred to carrying of arms in military service, it also sometimes
denoted carrying arms for private purposes. The Amendment's prefatory clause,
considered under proper rules of interpretation, could not negate the
individual right recognized in the clear language of the operative clause. In
any event, the prefatory clause - particularly its reference to the "Militia,"
which was understood at the Founding to encompass all able-bodied male
citizens, who were required to be enrolled for service - is fully consistent
with an individual-right reading of the operative language. Moreover, the
Second Amendment appears in the Bill of Rights amid amendments securing
numerous individual rights, a placement that makes it likely that the right of
the people to keep and bear arms likewise belongs to individuals. Finally, a
consideration of the powers that the original Constitution grants or allows
over the militia makes it unlikely that the Second Amendment would secure a
collective or quasi-collective right.
A. "The Right of the
The Second Amendment's recognition of a
"right" that belongs to "the people" indicates a right of individuals. The
word "right," standing by itself in the Constitution, is clear. Although in
some contexts entities other than individuals are said to have "rights,"
(37) the Constitution itself does not use the word "right" in this
manner. Setting aside the Second Amendment, not once does the Constitution
confer a "right" on any governmental entity, state or federal. Nor does it
confer any "right" restricted to persons in governmental service, such as
members of an organized military unit. In addition to its various references
to a "right of the people" discussed below, the Constitution in the Sixth
Amendment secures "right[s]" to an accused person, and in the Seventh secures
a person's "right" to a jury trial in civil cases.
(38) By contrast, governments, whether state or federal, have in the
Constitution only "powers" or "authority."
(39) It would be a marked anomaly if "right" in the Second Amendment
departed from such uniform usage throughout the Constitution.
In any event, any possible doubt vanishes
when "right" is conjoined with "the people," as it is in the Second Amendment.
Such a right belongs to individuals: The "people" are not a "State," nor are
they identical with the "Militia." Indeed, the Second Amendment distinctly
uses all three of these terms, yet it secures a "right" only to the "people."
The phrase "the right of the people" appears two other times in the Bill of
Rights, and both times refers to a personal right, which belongs to
individuals. The First Amendment secures "the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances," and the
Fourth safeguards "[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures." In
addition, the Ninth Amendment refers to "rights . . . retained by the people."
We see no reason to read the phrase in the Second Amendment to mean something
other than what it plainly means in these neighboring and contemporaneous
The Supreme Court, in interpreting the Fourth
Amendment, likewise has recognized that the Constitution uses "the people,"
and especially "the right of the people," to refer to individuals:
"[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.
Thomas Cooley, the leading constitutional scholar after the Civil War, took
the same view in explaining "the people" in the context of the First
Amendment: "When the term 'the people' is made use of in constitutional law or
discussions, it is often the case that those only are intended who have a
share in the government through being clothed with the elective franchise. . .
. But in all the enumerations and guaranties of rights the whole people
are intended, because the rights of all are equal, and are meant to be
The Constitution confirms this meaning of
"the people" as individuals by expressly distinguishing the "people" from the
"States," using each word to refer to a distinct thing. Indeed, the Second
Amendment itself refers separately to "the people" and the "State." And the
difference is firmly established by the Tenth Amendment, which distinguishes
between the powers reserved "to the States" and those reserved "to the
people." The "people" are the individuals who compose the States, distinct
from - and bearing their federal "rights" apart from - those entities.
Similarly, the Constitution gives distinct
meanings to "the people" and the "Militia." Again, the Second Amendment itself
is a notable example, referring to the "well regulated Militia" but granting
the "right" to "the people." The Constitution's other references to "rights"
of "the people," noted above, cannot plausibly be construed as referring to
the "Militia." In addition, when granting governmental power over the militia,
the Constitution speaks of the militia expressly, without any reference to or
suggestion of the broader "people."
(43) And the Fifth Amendment's Grand Jury Clause, which
distinguishes between all "person[s]" and those serving in the army, navy, or
"the Militia, when in actual service," indicates that where the Constitution
addresses rights that turn on service in the militia it does so expressly.
The only truly "collective" use of the "the
people" at the time of the Founding was to refer to the people as they existed
apart from government or any service to it. The Declaration of
Independence refers to "one People" dissolving their political bonds with
another and forming their own nation, and "We the people" created the
Constitution in ratifying conventions chosen "by the People" of each State.
(44) Thus, even in this context, the "people" are distinguished from
"the government" or "the State"; nor can the term plausibly be limited to the
"Militia." And when "the people" appears in the phrase "the right of
the people" in the Constitution, we conclude that it indicates a personal
right of individuals, whether that be a right to assemble and petition, to be
secure in one's person and property, or to keep and bear arms.
B. "To Keep and Bear
The "right of the people" that the Second
Amendment secures is a right "to keep and bear Arms." As the previous subpart
showed, those who hold the right are, according to the text, "the people" -
individuals - not the government or even the militia. The phrase "to keep and
bear Arms" is consistent with this conclusion: The phrase "keep . . . Arms"
(45) and the phrase "bear Arms" is not inconsistent with it.
1. "To Keep . . . Arms."
In eighteenth-century English, an individual
could "keep arms," and keep them for private purposes, unrelated to militia
duty, just as he could keep any other private property, and the phrase was
commonly used in this sense. For example, in Rex v. Gardner
(K.B. 1738), a defendant charged with "keeping a gun" in violation of a 1706
English statute (which prohibited commoners from keeping specified objects or
"other engines" for the destruction of game) argued that "though there are
many things for the bare keeping of which a man may be convicted; yet they are
only such as can only be used for destruction of the game, whereas a gun is
necessary for defence of a house, or for a farmer to shoot crows." The court
agreed, reasoning that "a gun differs from nets and dogs, which can only be
kept for an ill purpose."
(46) The Court of Common Pleas six years later treated
Gardner as having "settled and determined" that "a man may keep a gun
for the defence of his house and family,"
(47) and in 1752 the King's Bench reiterated that "a gun may be kept
for the defence of a man's house, and for divers other lawful purposes."
(48) The same usage appeared in an earlier prosecution of a man for
"keeping of a gun" contrary to a statute that barred all but the wealthy from
privately owning small handguns.
William Blackstone, whose
Commentaries on the Laws of England, first published in the
decade before the American Revolution, was the leading legal authority in
America at the Founding, wrote, without any reference to the militia, of
"person[s]" who are "qualified to keep a gun" and are "shooting at a mark,"
apparently on their own property.
(50) He also noted that certain persons could not "keep arms in
their houses," pursuant to a statute that used "keep" to signify private
ownership and control over arms, wherever located.
(51) Colonial and early state statutes similarly used "keep" to
"describe arms possession by individuals in all contexts," including requiring
those exempt from militia service (such as the over-aged) to "keep" arms in
their homes for both law enforcement and "the defense of their homes from
criminals or foreign enemies."
(52) At the Massachusetts Ratifying Convention in 1788, Samuel Adams
proposed an amendment prohibiting Congress from "prevent[ing] the people of
the United States, who are peaceable citizens, from keeping their own arms,"
indicating ownership by individuals of private arms.
(53) And that State's Supreme Court, in a libel case soon after the
Founding, likened the "right to keep fire arms" to the freedom of the press,
both being individual but not unlimited rights - the former not protecting
"him who uses them for annoyance or destruction."
(54) The basic dictionary definition of "keep" -"[t]o retain" and
"[t]o have in custody"- was consistent with this specific meaning.
In short, the phrase "keep arms" was commonly
understood to denote ownership of arms by private citizens for private
purposes. When that phrase is read together with its subject - "the right of
the people" - the evidence points strongly toward an individual right. Had the
Constitution meant not to protect the right of the whole "people" to "keep"
arms but instead to establish a "right" of the States or of only the members
of their militias to store them, presumably it would have used different
2. "To . . . Bear Arms."
To "bear" was, at the Founding as now, a word
with numerous definitions - used with great "latitude" and "in very different
senses," as Samuel Johnson noted in his dictionary.
(57) Its basic meaning was simply to "carry" or "wear" something,
particularly carrying or wearing in a way that would be known to others, such
as in bearing a message, bearing another person, or bearing something as a
mark of authority or distinction.
(58) As a result, "bear," when taking "arms" as its object, could
refer to multiple contexts in which one might carry or wear arms in this
(59) It is true that "bear arms" often did refer to carrying arms in
(60) But the phrase was not a term of art limited to this sense.
Arms also could be "borne" for private, non-military purposes, principally
tied to self-defense. For example, an early colonial statute in Massachusetts
required every "freeman or other inhabitant" to provide arms for himself and
anyone else in his household able to "beare armes," and one in Virginia
required "all men that are fittinge to beare armes" to "bring their pieces" to
There are also several examples closer to the
Founding. In 1779, a committee of eminent Virginians including Thomas
Jefferson and George Mason, charged with revising the new State's laws,
authored a bill penalizing any person who, within a year of having violated a
restriction on hunting deer, "shall bear a gun out of his inclosed ground,
unless whilst performing military duty." This bill demonstrates that to "bear
a gun" was not limited to "performing military duty." James Madison submitted
this bill to the Virginia legislature in 1785.
(62) Many early state constitutions, including some written before
the Founding (Pennsylvania's and Vermont's) and one written a month after
Secretary of State Jefferson declared the Bill of Rights ratified
(Kentucky's), protected an individual right to "bear arms" in "defense of
himself and the State" or in "defense of themselves and the State," indicating
that a person might be said to "bear arms" in self-defense.
(63) A 1780 opinion of London's Recorder (the city's legal adviser
and the primary judge in its criminal court) on the legality of a
private self-defense association acknowledged "the rights of the
people of this realm to bear arms, and to instruct themselves in the use of
them, collectively," albeit within limits.
(64) In a newspaper commentary published in major cities after
Madison introduced the Bill of Rights in Congress, a friend of his wrote that
the proposed Second Amendment would "confirm" the people's "right to keep
and bear their private arms."
(65) Supreme Court Justice Joseph Story, in his 1833
Commentaries on the Constitution of the United States, paraphrased as
a "right to bear arms" the right of English "subjects . . . [to] have arms for
their defence," an individual right not tied to service in the militia.
(66) Finally, other examples of contemporaneous uses of "bear arms"
to denote actions of individuals appear in cases from the early 1800's up to
the Civil War, discussed below in Part IV.B.
The Minority Report issued by
twenty-one delegates of the Pennsylvania Convention that ratified the Federal
Constitution in late 1787 illustrates the various uses of the phrase at the
time, including both the right of private "bearing" and the
duty of "bearing" for the government in the militia. The report
recommended amending the Constitution to recognize "[t]hat the people have a
right to bear arms for the defence of themselves and their own State or the
United States, or for the purpose of killing game" and also urged exemption
from militia service for those "conscientiously scrupulous of bearing arms."
Although the Minority Report was a product of Anti-Federalists, who
had lost at that convention and who lost the battle over ratifying the
Constitution, we are unaware of any contemporaneous criticisms that this
widely circulated document misused language in giving such senses to the
phrase "bear arms."
In sum, although "bear arms" often referred
to carrying or wearing arms in connection with military duty, it was not
limited to such a meaning. When, as in the Second Amendment, those words are
used in conjunction with "keep arms," which commonly did refer to private
action, and the whole phrase "to keep and bear Arms" is used in the context of
a "right of the people,"
(68) we conclude that the core, operative text of the Amendment
secures a personal right, which belongs to individuals. We next consider
whether the Amendment's prefatory language requires a different conclusion.
C. "A Well Regulated Militia,
being Necessary to the Security of a Free
A feature of the Second Amendment that
distinguishes it from the other rights that the Bill of Rights secures is its
prefatory subordinate clause, declaring: "A well regulated Militia, being
necessary to the security of a free State, . . . ." Advocates of the
collective-right and quasi-collective-right interpretations rely on this
declaration, particularly its reference to a well-regulated militia. On their
interpretation, the "people" to which the Second Amendment refers is only the
"people" in a collective, organized capacity as the state governments, or a
small subset of the "people" actively organized by those governments into
military bodies. "People" becomes interchangeable with the "State" or its
This argument misunderstands the proper role
of such prefatory declarations in interpreting the operative language of a
provision. A preface can illuminate operative language but is ultimately
subordinate to it and cannot restrict it.
Wholly apart from this interpretive
principle, this argument also rests on an incomplete understanding of the
preface's language. Although the Amendment's prefatory clause, standing alone,
might suggest a collective or possibly quasi-collective right to a modern
reader, when its words are read as they were understood at the Founding, the
preface is fully consistent with the individual right that the Amendment's
operative language sets out. The "Militia" as understood at the Founding was
not a select group such as the National Guard of today. It consisted of all
able-bodied male citizens. The Second Amendment's preface identifies as a
justification for the individual right that a necessary condition for an
effective citizen militia, and for the "free State" that it helps to secure,
is a citizenry that is privately armed and able to use its private arms.
1. The Limits of Prefatory
In the eighteenth century, the proper
approach to interpreting a substantive or "operative" legal provision to which
a lawmaker had joined a declaration (whether a "Whereas" clause or analogous
language) was (1) to seek to interpret the operative provision on its own, and
(2) then to look to the declaration only to clarify any ambiguity remaining in
the operative provision.
(69) It was desirable, if consistent with the operative text, to
interpret the operative provision so that it generally fulfilled the
justification that the preface declared, but a narrow declaration provided no
warrant for restricting the operative text, and the preface could not itself
create an ambiguity. This rule applied equally to declarations located in any
part of a law, not simply at the beginning of it, and to both statutes and
constitutions. We therefore consider this rule applicable to the Second
English Parliaments of the 1700's and late
1600's regularly included prefaces throughout statutes - not only at the
beginning (constituting the first section) but also in particular sections.
(70) The same rule of interpretation applied to both uses of
prefaces. As an example of the latter, a section of a bankruptcy statute
recited the problem of persons who "convey their goods to other men
upon good consideration" before becoming bankrupt, yet continue to act as
owners of the goods; the immediately following clause of the statute provided
that if a bankrupt debtor possessed "any goods or chattels" with "the
consent and permission of the true owner," was their reputed owner, and
disposed of them as an owner, such property should repay the debtor's debts
rather than return to the true owner. The difficulty arose when the bankrupt
debtor possessed property that never had been his, such as property in trust.
A leading case in 1716 read the enacting language to apply even in such cases
and rejected the argument "that the preamble shall restrain the operation of
the enacting clause; and that, because the preamble is too narrow or
defective, therefore the enacting clause, which has general words, shall be
restrained from its full latitude, and from doing that good which the words
would otherwise, and of themselves, import."
(71) The King's Bench reiterated the rule in 1723, rejecting in a
criminal case an argument based on declaratory language introducing part of a
statute: "Now those general words in the enacting part, shall never be
restrained by any words introducing that part; for it is no rule in the
exposition of statutes to confine the general words of the enacting part to
any particular words either introducing it, or to any such words even in the
preamble itself." The court acknowledged that "a construction which agrees
with the preamble" was desirable, "but not such as may confine the enacting
part to it."
Blackstone summed up this understanding in
explaining that, although the words of an enacting clause were "generally to
be understood in their usual and most known signification," yet if its words,
after due analysis, were "still dubious" or "ambiguous, equivocal, or
intricate," one might look to the context, which included "the proeme, or
preamble, [which] is often called in to help the construction of an act of
(73) Chancellor Kent, a leading early American commentator, likewise
reasoned that a preamble, although not technically part of the law, "may, at
times, aid in the construction of" a statute or "be resorted to in order to
ascertain the inducements to the making" of it, "but when the words of the
enacting clause are clear and positive, recourse must not be had to the
Prefatory language also was common in
constitutions, and this rule of construction applied in the same way. Speaking
of the preamble of the whole federal Constitution, Joseph Story in his
Commentaries reiterated that statutory preambles are "properly
resorted to, where doubts or ambiguities arise upon the words of the enacting
part; for if they are clear and unambiguous, there seems little room for
interpretation," and he could not see "any reason why, in a fundamental law or
constitution of government," the same rule should not apply.
(75) Similarly, the Supreme Court has held that the Constitution's
preamble lacks any operative legal effect and that, even though it states the
Constitution's "general purposes," it cannot be used to conjure a "spirit" of
the document to confound clear operative language;
(76) the Court has, however, also sought some guidance from the
preamble when the operative text did not resolve a question.
The same reasoning applied to declaratory
phrases in the language of individual constitutional provisions, the closest
analogies to the Second Amendment. The 1784 New Hampshire Constitution
provided: "In criminal prosecutions, the trial of facts in the vicinity where
they happen, is so essential to the security of the life, liberty and estate
of the citizen, that no crime or offence ought to be tried in any other county
than that in which it is committed."
(78) Even though in some cases a trial outside of the county where a
crime was committed might bring it closer to the crime scene, or a judge might
think a trial in the county where the crime occurred not "essential to" (or
even in conflict with) "the security of the life, liberty and estate of the
citizen," neither fact would justify disregarding the clear operative language
of this constitutional provision.
(79) Likewise, the pre-1787 constitutions of Massachusetts, New
Hampshire, and Vermont declared that freedom of speech in the legislature was
"so essential to the rights of the people" that words spoken there could not
the basis of "any" suit.
(80) One could not use this declaration to avoid the clear immunity
conferred by the operative language, even where particular statements made in
the legislature - such as an egregious slander unrelated to a pending bill -
were not thought "essential to" the people's rights.
(81) In addition, Madison's draft of what became the First
Amendment's Free Press Clause read: "the freedom of the press, as one of
the great bulwarks of liberty, shall be inviolable."
(82) The emphasized declaratory language presumably could not have
qualified or limited the freedom clearly conferred, such as by exempting from
protection, as hostile to "liberty," publications advocating absolute
A discussion at the Constitutional Convention
demonstrates the same understanding, including that prefaces in a particular
constitutional provision might merely state policy. What would become Article
I, Section 8, Clause 16 of the Constitution, empowering Congress to "provide
for organizing, arming, and disciplining the Militia," had reached its final
form. But George Mason proposed "to preface" it with the phrase, "And that the
liberties of the people may be better secured against the danger of standing
armies in time of peace." He wished "to insert something pointing out and
guarding against the danger of" standing armies. Madison spoke in favor,
because the preface would "discountenance" a peacetime standing army while
"not restrain[ing] Congress from establishing" one.
(83) No doubt an organized, armed, and disciplined militia
would generally "better secure" liberties against peace-time standing
armies (by reducing the need for such armies and the threat from any that were
created), and thus the operative grant of power "agree[d] with" the
(84) but the preface did not restrain or confine the
We see no reason to except the Second
Amendment from this broadly applicable interpretive rule.
(85) Thus, the Amendment's declaratory preface could not overcome
the unambiguously individual "right of the people to keep and bear Arms"
conferred by the operative text - even if the collective-right and
quasi-collective-right schools' understanding of the preface's meaning were
correct, and even though the preface might help resolve any ambiguities
concerning the scope of that individual right remaining after one has analyzed
the operative text. At the same time, any interpretation of the right ought,
if possible consistent with its text, to further the declared justification in
general, as the Court in Miller recognized when it stated that
interpretation of the Amendment should keep the "end in view" of assuring the
continuation and rendering possible the effectiveness of the militia.
(86) As we explain in the remainder of this subpart - considering in
turn the meaning of "Militia," what a "well regulated Militia" was, and the
ultimate end of "the security of a free State" - the individual-right view
does further the ends set forth in the prefatory language, and therefore the
preface, properly understood, is fully consistent with the individual-right
interpretation of the operative text.
2. The "Militia."
A key claim of the collective-right and
quasi-collective-right schools with regard to the Second Amendment's preface
is that a "well regulated Militia" is a standing military organization or body
of troops, of limited size, organized and governed by state governments,
albeit concurrently with the federal Government (akin to voluntary select
forces such as the National Guard that were established over a hundred years
after the Amendment was adopted). As a result, the argument goes, the
Amendment merely protects the States against federal efforts to undermine such
forces, either by protecting the States directly or by protecting only persons
serving in those forces.
This argument disregards the understanding of
the "Militia" at the time of the Founding. As used in the Second Amendment,
and elsewhere in the Constitution, "Militia" referred to a body consisting of
all adult male citizens up to a certain age (anywhere from forty-five to
sixty), the goal being to include all who were physically capable of service.
It was not limited to a select force of persons in active military duty. This
entire population of able-bodied male citizens was involuntarily "enrolled" by
local militia officials, somewhat as men now register for the selective
service (except that enrollment required no action by the citizen), and all
enrolled citizens were required by law to join occasional "exercise" - to
which they were expected to bring their own, private arms - but they otherwise
remained in civilian life. The militia "rest[ed] upon the shoulders of the
(88) because, as then understood, it consisted of a large number of
the "people" at any one time and of all of the able-bodied white men for a
substantial portion of their lives. It was the people embodied as an armed
force. Thus, a key aspect of the term "Militia" was the composition of the
force to which it referred. As a result, the reference to the "Militia" in the
Second Amendment's preface "agrees with" the individual right that the
Amendment's operative text sets out,
(89) because securing to "the people" a right to keep and to bear
their own arms made such a broad-based, privately armed force more likely to
exist and to be effective.
The term "Militia" was used in contrast both
to a regular, standing army and, more importantly, to a "select militia" or
(91) The latter distinction is evident throughout contemporaneous
usage, "select militia" denoting a significantly smaller body, consisting
either of better trained military professionals who could remain active for
extended periods, or of those chosen selectively, perhaps because of political
or other discrimination.
(92) For example, at the Constitutional Convention, George Mason
mentioned the need for federal regulation of the militia to ensure that they
were adequately trained. He suspected that the States would not relinquish
"the power over the whole" but would "over a part as a select militia." He
added that "a select militia" would be "as much as the Gen[eral] Gov[ernment]
could advantageously be charged with," and thus suggested that it receive
power only over "one tenth part" of the militia per year. Oliver Ellsworth,
later to be a Senator and Chief Justice, objected because a "select militia"
either would be impractical or would cause "a ruinous declension of the great
body of the Militia."
(93) Edmund Randolph, leader of the Virginia delegation, similarly
equated the militia with "the whole mass" of the people.
In the debate over ratification, both sides
shared this broad understanding of "Militia." Among the Federalists, Madison
in The Federalist predicted that a federal army bent on
oppression would be opposed by "a militia amounting to near half a million of
citizens with arms in their hands" - a group that he likened to the citizen
bands that had fought in the Revolution and linked to "the advantage of being
armed, which the Americans possess over the people of almost every other
(95) Alexander Hamilton described the militia as "the great body of
the yeomanry and of the other classes of the citizens," "the great body of the
people," and "the whole nation," which he contrasted with a "select corps."
(96) A Connecticut Federalist writing as "The Republican" praised as
"a capital circumstance in favour of our liberty" that "the people of this
country have arms in their hands; they are not destitute of military
knowledge; every citizen is required by Law to be a soldier; we are all
martialed into companies, regiments, and brigades, for the defence of our
(97) In a speech, later published, in response to South Carolina's
vote to ratify, David Ramsay, a state legislator and delegate to the ratifying
convention, praised the Constitution's militia powers and asked, "What
European power will dare to attack us, when it is known that the yeomanry of
the country uniformly armed and disciplined, may on any emergency be called
out to our defence . . . ?"
(98) Maryland's "Aristides," in a fairly widely circulated pamphlet,
wrote simply that "the militia . . . is ourselves."
Among the Anti-Federalists, Mason, in the
Virginia Ratifying Convention, asked: "Who are the Militia? They consist now
of the whole people," while warning that the new Congress might exempt the
rich from service.
(100) The Federal Farmer, a leading Anti-Federalist essayist,
explained that the "militia, when properly formed, are in fact the people
themselves," and counseled "that regular troops, and select corps, ought not
to be kept up without evident necessity." If the federal Government properly
organized, armed, and disciplined the militia - including in it, "according to
the past and general usage of the states, all men capable of bearing arms" -
the country would have a "genuine" rather than "select militia." Under such
wise regulation, "the militia are the people."
This common sense of "Militia" also appeared
in the House of Representatives' debates on the Second Amendment, discussed
below in Part III.C.2, and the Second Congress applied it in the first Militia
Act, enacted in 1792, two months after the Second Amendment was officially
ratified. The Act required "each and every able-bodied white male citizen of
the respective states, resident therein, who is or shall be of the age of
eighteen years, and under the age of forty-five years," to be "enrolled in the
militia" by the local commanding officer. Each enrolled citizen was required
to provide his own arms - "a good musket or firelock" or "a good rifle" - plus
ammunition and accouterments. These private arms were exempted from "all
suits, distresses, executions or sales, for debt or for the payment of taxes."
The enrollees were required to appear, armed, "when called out to exercise, or
into service," although Congress left the details of exercise to each State.
(102) (Since 1792, Congress has only expanded this definition, such
as by eliminating the racial restriction and including some women.
(103)) Finally, Noah Webster in his 1828 American dictionary defined
"militia" in accord with this Act and the above understanding: "The militia of
a country are the able bodied men organized into companies, regiments
and brigades, with officers of all grades, and required by law to attend
military exercises on certain days only, but at other times left to pursue
their usual occupations." They were "enrolled for discipline, but not engaged
in actual service except in emergencies."
The analogy of the "Militia" to a select (and
voluntary) corps such as the National Guard is further strained by the
common-law prohibition against the King's deploying the militia outside the
country - a rule that Blackstone celebrated as part of the individual's
"absolute right" of "personal liberty."
(105) The Constitution appears to incorporate this rule, by
specifying domestic reasons for the federal Government to call out the
militia: "to execute the Laws of the Union, suppress Insurrections and repel
(106) Implicit in the common-law rule is that the militia was so
composed that its members ought to be treated as ordinary citizens doing their
duty, rather than as soldiers. President Taft's Attorney General reaffirmed
this ancient rule in 1912 as Congress was developing the modern National
Guard, which, partly to avoid this rule, was made a component of the regular
The Supreme Court in Miller, relying
on a brief historical survey, summarized as follows the definition of
"Militia" that we have set out and explained above:
The signification attributed to the term Militia appears from the debates
in the Convention, the history and legislation of Colonies and States, and
the writings of approved commentators. These show plainly enough that the
Militia comprised all males physically capable of acting in concert for
the common defense. "A body of citizens enrolled for military
discipline." And further, that ordinarily when called for service these men
were expected to appear bearing arms supplied by themselves and of
the kind in common use at the time.
If, as the Court recognized and historical usage confirms, the "Militia"
was composed of the general population of able-bodied men, an individual right
of the whole people to keep and bear arms would make eminent sense. A large
portion of the "people" would be required to appear occasionally for service
or simply training, and they were expected to bring their private arms. If the
people could be disarmed, it would then, among other things, be impossible for
militiamen to make the required provision of their privately provided arms
when called up, and the citizen militia would be undermined.
3. The "Well Regulated" Militia.
Advocates of the collective-right and
quasi-collective-right views argue that the Amendment's reference in its
preface to a "well regulated" militia indicates that the preface refers to a
select, organized body akin to today's National Guard. They claim additional
support for this argument from usage of the term "Militia" elsewhere in the
Constitution, in the context of governmental power over the Militia.
(109) No doubt the "Militia" was, through enrollment, exercise, and
command when activated by a governor or president, a creature of the
government. But it does not follow that the meaning of "Militia" as used in
the Second Amendment depended on congressional (or state) legislation
organizing or regulating the Militia. The word's use elsewhere in the
Constitution and the Amendment's prefatory reference to a "well regulated
Militia," properly understood, in fact suggest the opposite.
The Constitution distinguishes not only
between the "Militia" and the regular armed forces but also between different
parts and conditions of the militia. The latter distinctions appear in (1)
Article I, Section 8, Clause 15, authorizing Congress to "provide for
calling forth the Militia"; (2) the immediately following clause
authorizing Congress 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"; (3) Article II, Section 2,
Clause 1, making the President commander-in-chief of "the Militia of the
several States" when "called into the actual Service of the United
States"; and (4) the Fifth Amendment, which withholds the protection of the
Grand Jury Clause from persons whose cases arise in the militia, but only when
"in actual service in time of War or public danger" (cases in the
army and navy, by contrast, are always exempted).
These provisions indicate that the militia is
of a size that will make complete mobilization usually unnecessary, that
members of the militia will often not be in service (or that not all parts of
the militia will always be in service), and that when any members are not
employed in "actual service," they ought to be treated as ordinary citizens.
The "Militia" is both large and largely latent. In addition, the reference to
"organizing . . . the Militia" suggests an entity that in some sense exists
and is definable apart from congressional regulation, in contrast to "Armies,"
which Congress must "raise," pursuant to another power in Article I, Section
8. Congress might not "organiz[e]" all of the "Militia"; it might
organize some parts differently from others; and it would be expected to give
necessary precision to the definition of the body's membership by laying down
a specific age range for service (as Congress did in the first Militia Act).
But the background meaning of the word would remain. As an Anti-Federalist
writer recognized: "[T]he militia is divided into two classes, viz. active and
inactive," the former, he expected, likely to "consist of young men
(110) Thus, the use of "Militia" throughout the Constitution is
consistent with the common understanding of the word at the Founding.
Nor does the preface's phrase "well
regulated" alter this sense of "Militia"; rather, it presupposes it. Having an
armed citizenry, which the operative text protects by establishing a right of
individuals, becomes a necessary (albeit not sufficient) condition for a
well-regulated militia once one properly defines "Militia." As one academic
commentator has put it: "The Second Amendment simply forbids one form of
inappropriate regulation," which would ensure a militia that was not
well regulated, namely "disarming the people from whom the militia must
necessarily be drawn. . . . [T]he one thing the government is forbidden to do
is infringe the right of the people, who are the source of the militia's
members, to keep and bear arms."
(111) A militia composed of the whole body of able-bodied male
citizens and only infrequently meeting for state-sponsored exercise is more
likely to be "well regulated" in the bearing of arms, and can more readily be
trained and disciplined, if its members possess their private arms and are
accustomed to them from usage for private purposes between exercises.
(112) And an individual right of the people to have arms has the
indirect effect of securing the ability of States at least to have their
(113) As the Court stated in Miller, the Second Amendment
seeks "to assure the continuation and render possible the
effectiveness of" the militia of "all males physically capable of acting in
concert for the common defense."
(114) It protects the minimum for a well-regulated citizen militia.
In addition, the standard for a "well
regulated Militia," as opposed to a well-regulated select
militia, or well-regulated army, presupposes the background meaning of
"Militia" by taking into account the body's large size and varied source. As
the Militia Act of 1792 contemplated, it might be enough to have a county
officer enroll persons and ensure that they possessed arms and knew how to use
them through basic training once or twice a year. Similarly, the Virginia
Declaration of Rights of 1776 defined "a well-regulated militia" as simply
being "composed of the body of the people, trained to arms."
(115) And the first New York Constitution declared that "the
militia" should always "be armed and disciplined, and in readiness for
service" because "it is the duty of every man who enjoys the
protection of society to be prepared and willing to defend it."
Even those Founders skeptical of the benefits
of the citizen militia, and who advocated a more highly regulated select
corps, still recognized the distinction between the proper regulation of the
two. Alexander Hamilton in The Federalist argued that it
would be both "futile" and "injurious" for Congress to attempt to
"disciplin[e] all the militia of the United States." Most enrolled
citizens would need extensive "time and practice . . . under arms for the
purpose of going through military exercises and evolutions as often as might
be necessary to acquire the degree of perfection which would intitle them to
the character of a well-regulated militia." But such a burden on so many
citizens "would be a real grievance to the people and a serious public
inconvenience and loss." Thus, as to "the people at large," he
expected that "[l]ittle more can reasonably be aimed at . . . than to have
them properly armed and equipped" and, for this purpose, "assemble them once
or twice" a year. He therefore recommended that Congress use its
constitutional power to provide for organizing the militia also to form a
select militia - "a select corps of moderate size."
(117) Hamilton was reiterating George Washington's well-known
recommendations to Congress for a two-tiered militia, consisting of (1) "the
Citizens of America . . . from 18 to 50 years of age," who would be put "on
the Militia Rolls" and given minimal training, and (2) "a
Corps in every State" consisting of those aged 18-25.
(118) From the opposite political pole, the Federal Farmer likewise
recognized that Congress might make just such distinctions in "modelling the
militia" and warned that creation of a "select corps of militia"
would lead to "inattention to the general militia."
This understanding of the "well regulated
Militia," and of the possibilities for congressional organization of it (or
not), leads to a view of the preface that not only fits the meaning of
"Militia" in common contemporaneous usage, including throughout the
Constitution, but also most agrees with the meaning of the Second Amendment's
operative text setting out a "right of the people." The "well regulated
Militia" and the "people" were not identical, but because of their close
relationship, a right of the latter - of individuals - to keep and bear arms
would facilitate the former. By contrast, a view rejecting the individual
right on the basis of the preface's reference to the "well regulated Militia"
struggles to harmonize the operative language establishing a seemingly general
and individual right with that prefatory language. As Justice Scalia has
written, a narrow definition of "Militia" "produces a guarantee that goes far
beyond its stated purpose - rather like saying 'police officers being
necessary to law and order, the right of the people to carry handguns shall
not be infringed.'"
(120) The "Militia" on this erroneous view consists only of those
few citizens whom a State chooses to specially organize, arm, and train into
professional units, which requires one to reject the normal, unambiguous
meaning of the operative text as overbroad, rewriting "the people" to mean
either "the select militia" or "the State." If that were the true meaning, the
Amendment's authors chose singularly inartful language.
4. The "Security of a Free State."
The preface's express linking of the "well regulated Militia" to the
ultimate necessity of "the security of a free State" is also fully consistent
with the conclusion that the "right of the people to keep and bear Arms" is a
personal one. The security of a free state at the Founding no doubt was
understood to include those things necessary to the security of any state,
such as "to execute the Laws . . . , suppress Insurrections and repel
(121) But the security of a free State was not just these
things. It also was understood to include the security of freedom in a state.
Thus, while Blackstone recognized the individual liberty of the press as
"essential to the nature of a free state," pre-1787 state constitutions
described the same right as "essential to the security of freedom in a
(122) The Preamble of the Constitution states the goal of making
"secure the Blessings of Liberty," and the Fourth Amendment highlights the
importance of the individual "right of the people to be secure in their
persons, houses, papers, and effects." A secure free State was one in
which liberties and rights were secure.
This clause of the Second Amendment's preface
reinforces the individual right to keep and bear arms in two related ways - by
supporting the broad meaning of "Militia" set out above, and by identifying a
benefit for individuals of the right that the operative text secures. First,
to say at the time of the Founding that the militia was necessary to the
security of a "free State" was to refer to the citizen militia, composed of
the people, who retained the right to keep and use their private weapons. A
select militia, particularly if it existed to the exclusion of the citizen
militia, might undermine the free state, if citizens excluded from it were
left defenseless, or if it disarmed the citizens and infringed their other
rights (or both). As we show in Part III.A, that is what had happened in
England during the strife that produced in 1689 the express right of
individual subjects to have and use arms for their defense, the ancestor of
the right in the Second Amendment.
(123) Thus the Virginia Declaration of Rights, the only state bill
of rights before the adoption of the Second Amendment that expressly tied the
militia to the security "of a free State," also emphasized that the "militia"
was "composed of the body of the people."
Contemporaneous writers across the political
spectrum acknowledged the link between the citizen militia and securing the
freedom of a state. "The Republican" praised "a militia of freemen" as among
the "principal circumstances which render liberty secure," and singled out as
"a capital circumstance in favour of our liberty" that "the people themselves
are the military power of our country," having "arms in their hands" and
(125) The Federal Farmer listed among the "military forces of a free
country" the "militia," by which he meant "the people themselves . . . when
properly formed." A citizen militia was critical to "the duration of a free
and mild government." Absent it, and in the face of an "anti-republican"
select militia, "the substantial men, having families and property, will
generally be without arms, without knowing the use of them, and defenceless;
whereas, to preserve liberty, it is essential that the whole body of the
people always possess arms, and be taught alike, especially when young, how to
(126) James Burgh, a Scotsman whose 1774 Political
Disquisitions were well-known in America, including being cited in
The Federalist, wrote that a "good militia" formed "the chief part of
the constitution of every free government" and would "preserve the public
liberty." He added that "[t]he possession of arms is the distinction between a
freeman and a slave. . . . [H]e who thinks he is his own master, and has
anything he may call his own, ought to have arms to defend himself and what he
possesses, or else he lives precariously and at discretion."
(127) Thus, "every male" should be trained in the use of arms, or at
least "all men of property."
Second, and related, the freedom of a state
was understood at the time of the Founding to include a citizen's individual
right of self-defence (that is, defense of his right to life and personal
security) when the state cannot assist him. An individual right to arms such
as that secured by the Second Amendment's operative text helps to preserve
this basic right and thus a free state. As the preface indicates, the
existence of a well-regulated citizen militia further secures the link between
such an individual right and this aspect of a free state (by increasing the
number of persons equipped and trained to exercise the right well), but, as
the discussion of the militia in the previous paragraph suggests, this link
was not understood to be confined to one's actions while participating in even
such a broad-based entity.
(129) Blackstone's summary of key English rights explains this
point. With no mention of the militia, he described the "right of having and
using arms for self-preservation and defence" as the last security of
individual English subjects for keeping the state, including themselves,
[T]he rights, or, as they are frequently termed, the liberties of
Englishmen . . . consist primarily, in the free enjoyment of personal
security, of personal liberty, and of private property. So long as these
remain inviolate, the subject is perfectly free; for every species of
compulsive tyranny and oppression must act in opposition to one or other of
these rights, having no other object upon which it can possibly be employed.
To preserve these from violation, it is necessary, that the constitution of
parliament be supported in its full vigour; and limits, certainly known, be
set to the royal prerogative. And lastly, to vindicate these rights, when
actually violated or attacked, the subjects of England are entitled, in the
first place, to the regular administration and free course of justice in the
courts of law; next, to the right of petitioning the king and parliament for
redress of grievances; and, lastly, to the right of having and using arms
for self-preservation and defence.
This right to arms, Blackstone added, facilitates self-defense "when the
sanctions of society and laws are found insufficient to restrain the violence
(130) John Locke, although not explicitly discussing arms, similarly
explained the individual right of self-defense that a free society allows.
Discussing the right of self-defense against a robber, he wrote: "I have no
reason to suppose that he who would take away my liberty, would not,
when he had me in his power, take away everything else." Therefore "the law,
which was made for my preservation, where it cannot interpose to secure my
life from present force, which if lost, is capable of no reparation, permits
me my own defence."
It is therefore reasonable to conclude that
the ability of a "right of the people to keep and bear Arms" to further the
Second Amendment preface's ultimate end of the "security of a free State"
consisted not merely in the existence of a trained band ready to act as
soldiers should the State's government call upon them, but also in
the ability of the citizens (many of them part of the privately armed citizen
militia), by individually keeping and bearing arms, to help secure the
freedoms of the State and its citizens.
(132) Thus, the "people" in the Second Amendment were distinct from
the "Militia" and a "State," but a right of the people to keep and bear arms
was understood both to facilitate a well-regulated militia and to help
maintain a State that was free. By contrast, the collective-right and
quasi-collective-right views would sanction not only the creation of a select
militia (to the exclusion of the citizen militia) but also the disarming of
the rest of the citizenry, a result antithetical to the true "Militia" as
understood at the Founding and to the "free State" that the Founding
Generation understood it to secure.
Our conclusion that the text of the Second
Amendment protects an individual right is further confirmed by the structure
of the Constitution, in particular the Amendment's placement and its
inter-relation with the powers that the Constitution grants over the militia.
1. The Bill of Rights.
The Second Amendment is embedded within the
Bill of Rights. Every one of the other rights and freedoms set forth in the
first nine amendments of the Bill - whether or not phrased as a "right of the
people" - protects individuals, not governments; none of its provisions
protects persons only in connection with service to the government.
(133) As Thomas Cooley summarized, writing of the Bill's first eight
amendments, "[I]t is declared that certain enumerated liberties of the people
shall not be taken away or abridged."
(134) It is therefore reasonable to interpret the Second Amendment
to protect individuals just as the rest of these nine amendments do.
More particularly, the Second Amendment is
located within a subset of the Bill of Rights amendments, the First through
Fourth, that relates most directly to personal freedoms (as opposed to
judicial procedure regulating deprivation by the government of one's life,
liberty, or property) - the amendments that, in Story's words in his
Commentaries, "principally regard subjects properly belonging to a
bill of rights."
(135) These four amendments concern liberties that are tied to the
right of individuals to possess and use certain property (the printing "press"
in the First Amendment,
(136) "house[s]" in the Third's restriction on quartering soldiers,
and "houses, papers, and effects" in the Fourth's restriction on searches and
seizures), or otherwise to act without undue governmental interference
(worship, speech, assembly and petition). Again, it seems reasonable to
interpret the Second Amendment, consistently with this context, to set out
another personal liberty (keeping and bearing) and privileged form of
individual property (arms), useful for protecting not only the citizen's
person but also the "houses" that the Third and Fourth Amendments guard.
Finally, the right in the Second Amendment
immediately follows the right to assemble and petition, which concludes the
First Amendment. The latter right is undeniably personal and individual, not
depending on governmental organization, regulation, or service. And the two
are aligned, not only in their placement but also in their origin, purpose,
and limitations. Antecedents of both appeared in proximity in the English Bill
of Rights of 1689.
(138) Blackstone, in the passage block-quoted in the previous
subpart, discussed in immediate succession their dual utility as guards of the
great individual rights of life, liberty, and property,
(139) and he did likewise in discussing the criminal law's
limitations on abuses of those rights.
(140) St. George Tucker, the first leading American commentator on
Blackstone and the Constitution (discussed more in Part IV.A, below), noted
that both rights had been transplanted to the United States from England, both
stripped of many English restrictions.
(141) It follows that the former right - that secured by the Second
Amendment - also would be individual.
2. The Militia Powers.
Interpreting the Second Amendment in light of
the militia powers granted to the federal Government and the States in the
original Constitution likewise suggests an individual right to keep and bear
arms rather than a "right" of States, against the federal Government, to
maintain select militias or a quasi-collective right to be exercised only by
persons who serve in such entities. Clauses 15 and 16 of Article I, Section 8,
respectively grant power to Congress:
To provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions; [and]
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.
In addition, Article II, Section 2, makes the President "Commander-in-Chief
. . . of the Militia of the several States, when called into the actual
Service of the United States."
These clauses, independently of the Second
Amendment, presuppose the existence of functioning state militias and leave
significant powers over them to the States. The States expressly retain the
powers to appoint all officers and to train the militia according to federally
specified rules. They implicitly retain the power of "governing" any parts of
the militias not in actual service to the federal Government, and of having
those state-appointed officers govern the militias even when in such service,
subject to the President's supreme authority. The provision regarding officers
is why Hamilton could argue credibly in The Federalist that the
States always would retain "a preponderating influence over the militia."
(142) The Constitution, in elsewhere prohibiting States from
"keep[ing] Troops, or Ships of War in time of peace," while still allowing
them to "engage in War" if "actually invaded" or under an imminent threat,
contemplates that the States will have, and have power to employ, usable
militias to provide necessary defense and emergency war-making ability.
(143) More broadly, the States implicitly retain the power to call
out the militia on their own for domestic purposes.
The original Constitution also leaves to the
States concurrent power to provide for organizing, arming, and disciplining
their militias, so long in so doing they do not interfere with the federal
power. This interpretation has been recognized from the beginning: At the
critical Virginia Ratifying Convention, Henry Lee (future governor of Virginia
and congressman), Edmund Randolph (a Framer who became the first Attorney
General), Madison, and John Marshall all made this textual argument in
response to attacks on the federal power to make such provision.
(145) Story found the arguments for such a concurrent power "in
their structure and reasoning satisfactory and conclusive."
(146) The Supreme Court approved this reading in 1820 in Houston
(147) and has recently reiterated it. Looking to the "general plan"
of the Constitution, the Court noted in 1990 that, "Were it not for the
Militia Clauses, it might be possible to argue," much as one could regarding
federal power over foreign policy and the armed forces, "that the
constitutional allocation of powers precluded the formation of organized state
militia. The Militia Clauses, however, subordinate any such structural
inferences to an express permission while also subjecting state militia to
express federal limitations."
(148) Even the Ninth Circuit in Silveira so interpreted
Article I, Section 8, Clause 16: "The language indicates that the grant of
power [to Congress] is permissive. . . . Nothing in the Article or elsewhere
in the Constitution appears to bar the states from choosing to arm their
respective militias as they wish."
In at least two respects, the above militia
powers in the Constitution suggest an individual-right view of the Second
Amendment. First, any constitutional amendment securing to the States power to
maintain militias would have been largely redundant, whether the amendment
protected the power through a "right" of States or a right restricted to
persons serving in militia units that a State had organized. A provision
should not be read to be redundant if another reasonable interpretation
exists, and the individual-right view of the Amendment is such an
interpretation. Second, one also would expect a protection of the States'
militia powers to use language analogous to that of Clause 16, which concludes
by "reserving to the States respectively, the Appointment of the
Officers, and the Authority of training the Militia according to the
discipline prescribed by Congress."
(150) Clause 16's parallel to the protection of state power in the
Tenth Amendment, which provides that certain powers are "reserved
to the States respectively" (while mentioning "the people" separately),
is unmistakable, as is the contrast between such language and the Second
Amendment's protection of a "right of the people." Given the ready
availability of such language, it would be both surprising and inartful for a
protection of state authority to create and maintain organized militias to be
phrased as the Second Amendment is, whether one conceives of the protection as
belonging to the States directly or to those serving it.
The Militia Clauses therefore suggest that
the Second Amendment, to the extent that it furthers the States' authority to
maintain organized militias, does so indirectly, as we discussed in the
previous subpart (II.C.2&3), by ensuring the minimum of a "well regulated
Militia" - that the States' people, the pool for the citizen militia,
would continue to be able to keep and to bear their private arms, having them
ready and being familiar with them. Thus the Militia Clauses, along with the
structure of the Bill of Rights and the preface of the Second Amendment, all
support the personal, individual right to keep and bear arms that the
Amendment's operative text sets out.
III. The Original Understanding of the
Right to Keep and Bear Arms
In the previous part, we focused on the text
and structure of the Constitution, considering the meaning of the Second
Amendment's words and phrases when they were adopted and how the Amendment's
meaning is informed by its inter-relation with the rest of the Constitution.
In this part, we take a broader view and consider the Anglo-American right to
arms as it existed at the time of the Founding and informed the adoption of
the Second Amendment. This history, like the text, indicates that the
Amendment secures an individual right.
We first consider the historical context of
the right to arms, both (A) in England beginning with the Revolution of
1688-1689 and (B) in America through the American Revolution and the first
state constitutions. The right was consistently a personal one. Beginning with
the right of individual English subjects to have arms for their defense, it
was supplemented in revolutionary America with the notion that a citizen
militia, comprising the armed citizenry, was a particularly important means of
securing free government. As one judge recently put it, the Americans of the
Founding Generation "were the heirs of two revolutions," both of which had
impressed upon them the importance of an individual right to have and use
(151) This background understanding of the right is inconsistent
with either the collective-right or quasi-collective-right views. Next, in
Subpart III.C, we turn to (1) the framing and ratification of the Constitution
and (2) the framing and ratification of the Second Amendment. This history
demonstrates that the background understanding, far from being transformed or
curtailed, was incorporated in that Amendment, just as the Bill of Rights
incorporated many other traditional rights of individuals. By contrast,
separate proposals to amend the Constitution to safeguard powers of the States
to establish and maintain organized militias failed.
A. The Right Inherited from
As the Supreme Court has recognized, "The
historical necessities and events of the English constitutional experience . .
. were familiar to" the Framers and should "inform our understanding of the
purpose and meaning of constitutional provisions."
(152) This rule is particularly applicable to provisions such as the
Second Amendment, because "[t]he 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
The right to arms that colonial Americans
inherited from England had been set out first in the English Declaration of
Rights of 1689, and then had been expounded by William Blackstone in his
authoritative Commentaries on the Laws of England in the decade
before the American Revolution. Both the Declaration and Blackstone made clear
that the English right was a personal, individual one, not a "right" belonging
to any government or restricted to persons in governmental service. The
English right could not have been a federalism provision, because England
lacked a federal structure; and neither the Declaration nor the law as
expounded by Blackstone conditioned the right on a subject's service in any
The Declaration of Rights was a product of
the English Revolution of 1688-1689 (commonly known as the Glorious
Revolution). In 1660, a special "Convention" Parliament had restored the
English monarchy by crowning Charles II,
(154) and two statutes enacted under him provided background for the
Declaration's provisions on arms. First was the Militia Act, enacted by the
royalist Parliament in 1662.
(155) It authorized militia officers on their own warrants "to
search for and seize all arms" of anyone they judged "dangerous to the peace
of the kingdom," including through entering houses by force if necessary, the
arms to be handed over to the militia and no judicial recourse being
(156) Charles II repeatedly used this power,
(157) aided not only by the regular militia but also by a volunteer
army that he had organized unilaterally,
(158) and by a select militia of about 15,000 that he formed in
(159) The second statute was the Game Act of 1671, which, in the
name of protecting wildlife, was "the first law in English history that took
from the majority of Englishmen the privilege of having firearms."
(160) It outlawed possession of guns (not just their use in hunting)
by anyone not among the few rich qualified to hunt game.
Concerns escalated after the accession in
1685 of Charles's brother, King James II. He was openly Roman Catholic, at a
time of sharp political distrust between England's Protestants and
(162) He disarmed the Protestant militia of Ireland by seizing their
arms and placing them in government magazines, while returning the arms of
Ireland's Roman Catholics. In England, he continued to use the militia to
disarm persons of questioned loyalties, including through strictly enforcing
the Game Act, although he ultimately preferred to undermine the militia (whose
loyalty he questioned), by restricting musters. He also accelerated and
expanded his brother's policy of purging opponents, and Protestants in
general, from the militia's and army's officer corps, and geometrically
enlarged the standing army.
James II fled soon after William of Orange
landed in England in late 1688 at the invitation of leading Englishmen. A
Convention Parliament in early 1689 adopted the Declaration of Rights, which
William and his wife Mary (James's daughter) accepted before Parliament
proclaimed them King and Queen, and which the ensuing regular Parliament
enacted as the Bill of Rights.
(164) A hundred years later, Alexander Hamilton in The
Federalist celebrated "the revolution in 1688," when at last "English
liberty was completely triumphant."
The Declaration first listed twelve
indictments of James II for having attempted to subvert "the laws and
liberties of this kingdom," including:
E. By raising and keeping a standing army within this kingdom in time of
peace, without consent of parliament, and quartering soldiers contrary to
F. By causing several good subjects, being protestants, to be disarmed,
at the same time when papists were both armed and employed, contrary to
Then, in a roughly parallel list of thirteen "ancient rights and
liberties," the Declaration stated:
6. That the raising or keeping a standing army within the kingdom in time
of peace, unless it be with consent of parliament, is against law.
7. That the Subjects which are Protestants
may have Arms for their
Defence suitable to their Conditions and as
allowed by Law.
This seventh article is most relevant here,
and it set out a personal right. Neither this article nor the parallel sixth
indictment ties possession of arms to service in the militia, which the
Declaration never mentions. The sixth indictment instead indicates that being
"armed" and being "employed" by the government are distinct - a distinction
confirmed by the historical context, which, as we have explained, included
subjects being disarmed by the militia. Furthermore, the right
belonged to "Subjects," not to any government, and these subjects were allowed
arms "for their Defence."
Critics of the individual-right view contend
that the two concluding clauses of the seventh article - "suitable to their
Conditions, and as allowed by Law" - so restricted the right that it was a
dead letter. Among the restrictions to which these clauses referred was the
Game Act, which literally, albeit likely not in practice, barred most subjects
from owning firearms.
(167) As Lois G. Schwoerer has argued: "English-men did not secure
to 'ordinary citizens' the right to possess weapons. . . . Drafted by
upper-class Protestants who had their own interests at heart, Article VII was
a gun control measure."
(168) The Declaration, therefore, the argument goes, could have had
little relevance to the right in the Second Amendment.
But this argument regarding the
scope of the right does not speak to the question that we consider
here, which is whether the English right was a right of individuals, a right
of government, or a right specifically connected with military service to the
government. On that question, the answer is clear. Schwoerer herself
recognizes that many articles of the Declaration "guaranteed rights to the
individual," including the right "to bear arms (under certain
(169) Class- and religion-based restrictions did not destroy the
personal nature of the right, whatever its scope. The precedent for Americans
was an individual right.
In addition, that Article 7 of the
Declaration (and the Bill) only recognized a right to possess arms "as allowed
by Law" does not mean that it did not secure a true right. In England's
constitutional tradition, particularly evident in the events surrounding the
Declaration of Rights described above, formal English rights restricted only
the Crown's prerogative, not the legislature's power, which was unrestricted.
Thus, although Blackstone was able to explain many years after the English
Revolution that a royal proclamation "for disarming any protestant subjects,
will not bind,"
(170) the right to arms, like all other English rights, remained
subject to revision or abolition by Parliament.
(171) That characteristic of English rights hardly prevented
Americans from borrowing and adapting them to a different constitutional
Finally, whatever the actual ability of
ordinary English subjects to have arms for their defense in 1689, by the
Founding, a hundred years later, the right to do so extended to most of the
country. As Judge Kleinfeld of the Ninth Circuit recently observed, "The
historical context of the Second Amendment is a long struggle by the English
citizenry to enable common people to possess firearms."
(172) In new game laws, particularly that of 1706, Parliament
deleted guns from the list of implements that those not qualified to hunt game
were prohibited from owning.
(173) The courts determined that Parliament had made this deletion
(174) Thus, notwithstanding the list's catch-all prohibition of "any
other engines," they interpreted the deletion - together with the existence of
"divers . . . lawful purposes" for which one might keep a gun, such
as "for the defence of his house and family" - as protecting the right of
individuals to keep guns even if they were not qualified to hunt game, so long
as they did not hunt with them.
(175) This interpretation of the 1706 game act was considered
"settled and determined" by 1744, and in 1752 the Chief Justice of the King's
Bench reaffirmed that it was "not to be imagined" that Parliament in that act
had intended "to disarm all the people of England."
(176) By 1780, London's Recorder - the city's legal adviser and the
primary judge of its criminal court - in an opinion supporting the legality of
the city's private armed associations formed for self-defense against riots,
could announce as "most clear and undeniable" the "right of his majesty's
Protestant subjects, to have arms for their own defence, and to use them for
lawful purposes," adding that "this right, which every Protestant most
unquestionably possesses individually" also "may, and in many cases must, be
exercised collectively," subject to certain restrictions.
(177) Similarly, an English commentator in the early 1790's wrote
that "every one is at liberty to keep or carry a gun, if he does not use it
for the destruction of game."
Blackstone's Commentaries, first
published in 1765-1769, were for the colonists and the Founding Generation the
leading exposition of England's laws and constitution. In them, he confirmed
that the English right to arms was an individual one and explained that it had
grounds broader and deeper than the right that had been declared in the
Revolution of 1688-1689.
In the first chapter of the first book,
Blackstone detailed the "absolute rights of individuals,"
(179) that is, "such as appertain and belong to particular men,
merely as individuals or single persons" and which "every man is entitled to
enjoy, whether out of society or in it."
(180) It was the purpose of law "to maintain and regulate" these
rights in society, but "wanton and causeless restraint" was "a degree of
(181) He delineated three "principal or primary . . . rights of the
people of England": "the right of personal security, the right of personal
liberty, and the right of private property."
But Blackstone recognized that declaring
these three primary rights would be "in vain" and a "dead letter of the laws,
if the constitution had provided no other method to secure their actual
enjoyment." He therefore identified five "auxiliary subordinate rights of the
subject" - "outworks or barriers to protect and maintain" the principal
(183) The first two were maintaining the constitution of Parliament
and clear limits on the King's prerogative. Because these were more properly
issues of governmental structure, he postponed their discussion to later
(184) The other three, however, were plainly individual rights: (a)
the "right of every Englishman . . . of applying to the courts of justice for
redress of injuries"; (b) the "right, appertaining to every individual . . .
of petitioning the king, or either house of parliament, for the redress of
grievances," so long as no "riot or tumult" resulted; and (c) the "right of
the subject . . . of having arms for their defence suitable to their condition
and degree, and such as are allowed by law." He noted that the latter two
rights both had been recognized in the 1689 Bill of Rights.
Blackstone explained the subject's right of
having arms as "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."
(186) By tying the right to the natural - and thus individual and
pre-political - right of self-defense, he recognized a deeper foundation than
its declaration and enactment in 1689 and confirmed that the right existed
independently of any bearing of arms in service to the militia, a subject that
he did not mention in connection with the right.
He returned to the right in concluding the
first chapter. Again grouping together the last three auxiliary rights (suing,
petitioning, and having arms), he explained that all were means for "the
subjects of England" to "vindicate" the three primary rights "when actually
violated or attacked." Thus, subjects were "entitled . . . to the right of
having and using arms for self-preservation and defence."
(188) By his repeated reference to "self-preservation" and his
description of the right as including both "having and using" arms,
Blackstone reiterated that the right had a personal aspect and was linked to
self-defense - to the right to use one's "limbs . . . to protect himself from
external injuries," which was part of the individual right of personal
Finally, Blackstone's view of the right as
belonging to individuals re-appears in his repeated disparagement of game laws
as a pretext to undermine commoners' ability to use or have arms. He traced
them to "slavery" imposed after the fall of the Roman Empire by invading
generals, who sought to "keep the rustici or natives . . . in as low
a condition as possible, and especially to prohibit them the use of arms."
Thus, "we find, in the feudal constitutions, one and the same law prohibiting
the rustici in general from carrying arms, and also proscribing the
use of nets, snares, or other engines for destroying the game."
(190) He denounced those arising in England after the Norman
Conquest of 1066 as a "tyranny to the commons,"
(191) and thought their real rationale was an aristocratic desire to
"disarm[ ] the bulk of the people."
(192) He briefly described England's existing criminal game laws as
confused and having a "questionable" nature, their "rational footing" being
(193) But he approved hunting restrictions against trespassing
(194) and did not criticize several other restrictions on the use
and carrying of arms, involving breaches of the peace.
Thus, the right to arms that America
inherited from England was a right of individuals, and had deep roots by the
time of the Framing. It did not depend on service in the government's militia,
nor was it a federalism-related "right" of any government. It therefore
provides no warrant for a quasi-collective-right or collective-right view of
the Second Amendment. And, absent any evidence that Americans wished to
abridge this individual right or transform it substantially, a question that
we consider next, the English precedent supports an individual-right view of
B. The Right in
America before the Framing
The English colonists in America recognized
this right of individual subjects to have and use arms, and they retained it
as they broke from the mother country. They also recognized that it furthered
the citizen militia to which they looked as a security for their freedom.
These related ideas of an individual right to arms and regard for the citizen
militia formed the backdrop for the Second Amendment. We first consider the
history of the American Revolution and then review the States' first
constitutions, written during that war.
1. The Experience of the
As the Revolution approached and conflicts with royal authorities
rose, colonial leaders both reaffirmed the individual right to arms inherited
from England and praised the shared duty of being armed imposed by local law.
The colonial militias were broad-based, composed of all able-bodied white men,
who were expected to be armed with the private weapons that all households
were required to keep (regardless of eligibility for militia duty), there
being a "general obligation of all adult male inhabitants to possess arms,
and, with certain exceptions, to cooperate in the work of defense."
(196) Citizens sometimes were required not only to own weapons but
also to carry them, and the class-based distinctions of England generally did
(197) America had its own set of distinctions, based on race, but
even free blacks were often allowed to possess arms as individuals, even
though usually barred from militia service.
Boston was the focus of early opposition to
Britain, and its leaders invoked both the individual right to arms (as secured
by the 1689 Bill of Rights and also as expounded by Blackstone) and the local
duty of being armed. A 1768 town meeting led by Samuel Adams, John Hancock,
and others resolved that the right enacted in the English Bill of Rights was
"founded in Nature, Reason and sound Policy, and is well adapted for the
necessary Defence of the Community," while also praising the colony's law
requiring "every listed Soldier and other Householder" to be armed. The
resolution thus requested that any Bostonian lacking arms "duly
. . . observe the said Law."
(199) Boston newspapers defended the meeting's actions:
[I]t is certainly beyond human art and sophistry, to prove the British
subjects, to whom the privilege of possessing arms is expressly
recognized by the Bill of Rights, and, who live in a province where the law
requires them to be equip'd with arms, &c. are guilty of an
illegal act, in calling upon one another to be provided with them,
as the law directs.
A subsequent article by Adams recounted the English Revolution and then
quoted both of Blackstone's primary discussions of the right to arms. Adams
attacked critics of the "late vote of this town, calling upon the inhabitants
to provide themselves with arms for their defence," as insufficiently
"attend[ing] to the rights of the constitution."
(201) The New York Journal Supplement reiterated this
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
The individual's right to have and use arms
for self-defense was reaffirmed in the celebrated "Boston Massacre" murder
trial, in 1770, of British soldiers for firing on a harassing crowd. (Soldiers
had been garrisoned in Boston since late 1768.) John Adams, counsel for the
soldiers, argued that they had acted in self-defense. In his closing argument,
he quoted William Hawkins's Treatise on the Pleas of the Crown to
establish that "'every private person seems to be authorized by the law, to
arm himself'" to defend against dangerous rioters. Adams added: "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 defence."
(203) Adams reiterated that view in his 1787 Defence of the
Constitutions of Government of the United States of America, recognizing
the propriety of "arms in the hands of citizens, to be used . . . in private
British authorities, much like Charles II and
James II a century before, moved to disarm the colonists as hostilities
mounted in 1774. Britain banned the export of arms and ammunition to any of
the colonies and ordered General Gage to consider how to disarm residents of
rebellious areas. At least in Massachusetts, some disarmament occurred, and in
the "Powder Alarm" of September 1, 1774, British soldiers seized ammunition
belonging to the colonial militia.
(205) These actions stiffened resistance throughout the colonies
(206) and led the colonists to form independent local militias with
broad membership, the "Minutemen."
(207) Gage's attempts in late 1774 and early 1775 to seize these
groups' arms across Massachusetts provoked confrontations with large forces of
armed colonists, and the Revolution was famously ignited by his efforts to do
so at Concord and Lexington in April 1775.
(208) Virginia Governor Dunmore's raid on an ammunitions store in
Williamsburg soon thereafter prompted a similar response, as militiamen
surrounded his home.
(209) British authorities' continuing efforts to disarm colonists
were among the actions that the Continental Congress cited when, in July 1775,
it declared the colonies' reasons for taking up arms.
As the colonists armed and organized
themselves, their leaders continued to turn to their rights as British
subjects and praised the citizen militias that these rights made possible.
George Mason's actions in Virginia (in conjunction with George Washington and
others) provide an example. In September 1774, he chaired a meeting of Fairfax
County citizens to form a private militia association known as the Fairfax
Independent Company. Being "threat'ned with the Destruction of our
Civil-rights, & Liberty, and all that is dear to British Subjects &
Freemen," members promised to keep themselves well armed and to train together
under elected officers.
(211) The following January, in a document attributed to Mason, the
county's Committee of Safety recommended a tax to purchase ammunition,
resolved that "a well regulated Militia, composed of gentlemen freeholders,
and other freemen, is the natural strength and only stable security of a free
Government," and urged residents "from sixteen to fifty years of age" to
choose officers, "provide themselves with good Firelocks," and train.
(212) In April 1775, Mason addressed the Company and praised it as
formed "for the great and useful purposes of defending our country, and
preserving those inestimable rights which we inherit from our ancestors." In a
time of "threatened . . . ruin of that constitution under which we were born,"
it was a security "that in case of absolute necessity, the people might be the
better enabled to act in defence of their invaded liberty."
Similar sentiments appeared in North
Carolina. Soon after Lexington and Concord, the royal governor denounced those
urging people "to be prepared with Arms" and train under committees of
(214) But in July 1775, North Carolina's delegates to the
Continental Congress urged the committees to "form yourselves into a Militia"
in the exercise of "the Right of every English Subject to be prepared
with Weapons for his Defense."
In October 1775, Britain declared the
colonies in rebellion,
(216) but organizational efforts continued. John Adams, in his
Thoughts on Government written in early 1776 in response to requests
for advice, recommended a "Militia Law requiring all men, or with very few
exceptions, besides cases of conscience, to be provided with arms and
ammunition, to be trained at certain seasons." Such a law would be "always a
wise institution" but was "in the present circumstances of our country
Many lauded the citizen militias that fought
in the Revolution. American General Nathanael Greene, writing to Thomas
Jefferson, remarked on the "Enterprize and Spirit" of "this Great Bulwark of
Civil Liberty [that] promises Security and Independence to this Country."
(218) Americans credited crucial early victories to the
citizen militias, even while recognizing their limitations.
(219) Well after the war, James Madison could argue in The
Federalist that an oppressive army would be no match for citizen
militias, as "[t]hose who are best acquainted with the late successful
resistance of this country against the British arms" would recognize. He also
pointed to "the advantage of being armed, which the Americans possess over the
people of almost every other nation," governments in most of the world being
"afraid to trust the people with arms."
2. Early Constitutional Recognition of
One product of this experience of the American Revolution was that
several States included explicit right-to-bear-arms provisions in declarations
of rights that they adopted during the war. These appeared in Pennsylvania,
North Carolina, Vermont, and Massachusetts. In the identical provisions of
Pennsylvania and Vermont, the language plainly reaffirmed the established
right of individuals to arm themselves for self-defense. In the provisions of
North Carolina and Massachusetts, although the express scope of the right may
have been narrower, the right still belonged to individuals - these state
provisions could not have been intended to protect the States' prerogatives,
nor did they restrict the right to participants in militia units. Other
States, most notably Virginia, did not include any provision regarding the
right to bear arms in their declarations but did praise "a well regulated
Virginia. Virginia's Declaration of Rights,
adopted a month before the Declaration of Independence, was the country's
first. Section 13 provided:
That a well regulated militia, composed of the body of the people,
trained to arms, is the proper, natural, and safe defence of a free State:
that standing armies, in time of peace, should be avoided, as dangerous to
liberty; and that in all cases the military should be under strict
subordination to, and governed by, the civil power.
This provision expressly recognizes the background definition of "militia"
explained in Part II.C: It was not a specialized or select force, but rather a
force of the people. Such an understanding of the militia is consistent with
the right of individuals to have arms - particularly given that, as we have
explained, the citizen militia was supposed to be "trained to" its members'
(223) Significantly, the provision's primary author was George
(224) whose public views have already been noted and who would play
a leading role twelve years later, explained below, in authoring the proposal
of Virginia's ratifying convention that placed together in a single article
the individual right and this praise of the citizen militia.
adopted its Declaration of Rights in September 1776. Article 13, immediately
following an article providing "[t]hat the people have a right to freedom of
That the people have a right to bear arms for the defence of themselves
and the state; and as standing armies in the time of peace are dangerous to
liberty, they ought not to be kept up; And that the military should be kept
under strict subordination to, and governed by, the civil power.
While following the same structure as Virginia's (of which the convention
members were well aware
(227)), this article replaced the praise of the well-regulated
citizen militia with a right - a right of "the people," who, just as they had
an individual right to speak, also had an individual right to "bear arms," for
either of the dual purposes of defending "themselves and the state." The
article does not restrict the right to those in militia service, which it does
not mention and which Pennsylvania addressed separately: Article 8 broadly
provided that "every member of society," receiving protection from it, was
bound to contribute money and "his personal service when necessary," while
allowing an exception for anyone "conscientiously scrupulous of bearing arms,
. . . if he will pay [an] equivalent."
(228) And the plan of government, adopted concurrently, provided for
a militia of "[t]he freemen of this commonwealth and their sons."
The plan of government also provided that
persons could use their arms to hunt (without trespassing): "The inhabitants
of this state shall have liberty to fowl and hunt in seasonable times on the
lands they hold, and on all other lands therein not inclosed."
(230) Regardless of the relevance of this provision to the contours
of the right to bear arms (a question beyond the scope of this memorandum),
the provision does seem to have been viewed as a practical security for, and
thus a way of emphasizing the importance of, the right of individuals that
Pennsylvania had elsewhere secured. The view that the English game laws -
which had provided for disarming many in the name of the hunting privileges of
a few - had been a pretext for undermining the right in practice was prevalent
at the time. Thomas Paine had criticized the game laws in the Pennsylvania
Magazine the year before Pennsylvania adopted its constitution, and one
newspaper article, although recognizing that the newer game acts did not
prohibit merely keeping a gun, argued that English aristocrats still used them
to disarm commoners, by procuring witnesses to claim that defendants had used
their arms for hunting.
Pennsylvania held another convention from
November 1789 through September 1790, as the Second Amendment was before the
States for ratification. The resulting constitution retained essentially the
same individual right. Section 21 of the declaration of rights, immediately
following a section providing "[t]hat the citizens have a right" to assemble
and petition, provided:
That the right of the citizens to bear arms, in defence of themselves and
the State, shall not be questioned.
Separately, in the body of the constitution, the protection of
conscientious objectors was combined with the provision relating to the
The freemen of this commonwealth shall be armed and disciplined for its
defence. Those who conscientiously scruple to bear arms shall not be
compelled to do so, but shall pay an equivalent for personal service. The
militia officers shall be appointed in such manner and for such time as
shall be directed by law.
Thus, the right to "bear arms" remained with individual people,
now "the citizens," and existed for the dual purpose of facilitating the
defense of individuals and the State. Neither purpose was expressly tied to,
let alone limited to, service in the militia. And the duty of
"freemen" to "bear arms," including possible exemption from that duty, was
distinct and was tied to the militia. In both the 1776 and 1790 Pennsylvania
constitutions, "bear arms" could and did bear both meanings.
North Carolina. North
Carolina adopted its constitution and declaration of rights in December 1776.
Article 17 of the declaration provided:
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.
This article mentions only the right of the people to bear arms for "the
defence of the State." Regardless of the provision's scope, however, the right
still belonged to individuals, just as the immediately following Article 18
set out a right of individuals in providing "[t]hat the people have a right to
assemble together," and in contrast with Article 25's declaration, in
delineating the State's boundaries, of "the essential rights of the collective
body of the people" in the "property of the soil."
(235) It would not have made sense, in the context of a state
constitution, for a "right" of "the people" to protect only the prerogatives
of the State. And the provision's text indicates that all of the people (not
just those organized by the State into militia units) had a right to bear
arms, at least in defense of the State. As an early North Carolina Supreme
Court decision recognized, the right in Article 17 belonged "to every man
indeed" and "secur[ed] to him a right of which he cannot be
deprived," to be exercised "for the safety and protection of his country."
(236) Moreover, by expressly protecting the right of the people to
bear arms "for the defence of the State" (something that North Carolinians
were then doing against the British), the drafters of the North Carolina
Constitution do not appear to have intended to abrogate the arguably more
modest individual English right.
(237) Indeed, the president of the constitutional convention, who
served on the committee that wrote the declaration, had been one of the three
congressional delegates who the year before, as discussed above, had urged
North Carolinians to exercise "the Right of every English Subject to
be prepared with Weapons for his Defense."
Vermont. The Vermont
constitution approved in July 1777 provided that "the people have a right to
bear arms for the defence of themselves and the State," in an article
identical to Article 13 of Pennsylvania's Declaration.
(239) As in Pennsylvania, this individual right immediately followed
the individual right of "the people . . . to freedom of speech," and the
constitution separately included a hunting guarantee, citizen-militia
provisions, and an exception for conscientious objectors.
(240) All of these remained in Vermont's 1786 and 1793
17 of the Massachusetts Declaration of Rights of 1780 provided:
The people have a right to keep and to bear arms for the common defence.
And as, in time of peace, armies are dangerous to liberty, they ought not to
be maintained without the consent of the legislature; and the military power
shall always be held in an exact subordination to the civil authority, and
be governed by it.
In addition, Article 1 announced as among the "natural, essential, and
unalienable rights" of all men "the right of enjoying and defending their
lives and liberties" and "of acquiring, possessing, and protecting
(243) Massachusetts was the first State to add "keep" to "bear." But
this double right was said to be "for the common defence," a phrase that
arguably limits the purposes for which one might exercise it. Two towns had
unsuccessfully proposed adding "their own and" before that phrase, one arguing
that this change would make Article 17 "harmonize much better with" Article
Even assuming that the phrase "for the common
defence" limited the purposes for which arms could be kept and borne, the
"right" remained an individual one - residing in "the people," just as Article
19 set out an individual right in providing that "[t]he people have a right,
in an orderly and peaceable manner, to assemble to consult upon the common
(245) Nothing in Article 17 or any other provision connected the
right to service in the militia, much less indicated that this "right" of the
"people" belonged to the State or was intended to protect its prerogatives.
(246) Moreover, the addition of the word "keep" to the right of the
people reinforced the individual nature of the right, because, as explained
above in Part II.B.1, the phrase "keep arms" commonly referred to individuals
privately possessing their private arms.
The history of the provision reinforces this
understanding of its text as securing an individual right. The principal
draftsman was John Adams, joined by his cousin Samuel Adams and another
(247) As explained above, John Adams publicly acknowledged the
individual right inherited from England both before and after he wrote the
Declaration, and Samuel Adams both helped lead the Boston town-meeting that
had urged Bostonians to exercise that individual right and publicly defended
its resolution on the authority of the English Bill of Rights and
(248) Much like Mason, Samuel Adams also would, during the
ratification debate, urge that the Constitution protect that right, as we
Thus, the right of individual English
subjects was transplanted to America. Americans also, from their experience in
the American Revolution, came to emphasize the citizen militia, which they
recognized was furthered by the individual right to private arms. But the
English right as Americans came to understand it was not, as a result, somehow
newly restricted to a person's service in that militia, much less to service
in a select militia. Nor did early Americans see the right as a federalism
protection (which would not have made sense in the context of state
constitutions) or otherwise the property of the state rather than its
C. The Development of the Second
The proposed Constitution that emerged from
the Constitutional Convention in 1787 did not have a bill of rights,
notwithstanding a late effort by Mason, joined by Elbridge Gerry, to have one
drawn up "with the aid of the State declarations."
(249) It did contain a careful compromise regarding the militia. The
federal Government received, in Article I, Section 8, the powers to call out
the militia "to execute the Laws of the Union, suppress Insurrections, and
repel Invasions," to provide for "organizing, arming, and disciplining" it,
and to govern any part of it in the service of the federal Government (during
which the President would be its commander-in-chief); States expressly
retained the authority to appoint officers and to train the militia.
Proposed bills of rights emerged from the
ratifying conventions of several of the States. Many of these included
protection for the right to arms - usually in language borrowed or adapted
from the individual right to arms in the States' declarations of rights, and
in any event always in language indicating an individual right. In those
proposals, several States for the first time in a single constitutional
provision both set out an individual right to arms and praised the citizen
militia, uniting language from the different state declarations discussed
above. In addition, some Anti-Federalists, concerned about the Constitution's
allocation of powers over the militia, sought to protect the ability of the
States to maintain effective militias. They proposed to do so expressly, in
amendments using language similar to that of Article I, Section 8, and to be
placed in the body of the Constitution, not in a bill of rights.
Yet it was the former proposals that laid the
foundation for the Second Amendment. And the latter proposals failed in the
Federalist-controlled First Congress, which was, as many recognized at the
time, willing to protect individual rights but not to alter the balance of
power struck by the new Constitution between the States and the nascent
federal Government. Thus, the evidence points to an understanding of the
Amendment as securing the individual right to arms already well established in
America, rather than safeguarding the ability of States to establish
well-regulated militias, whether through a "collective right" of States or a
quasi-collective right of militiamen. Rather than "lay down any novel
principles of government," the Second Amendment embodied the individual
"guarant[ee] and immunit[y]" to which Americans were accustomed.
1. Recommendations from the Ratification of the
Although the right of individuals to have
arms was not a subject of much direct discussion in the ratification debates,
two major topics are relevant. First, Anti-Federalists objected to the absence
of a bill of rights, often pointing to the English Bill of Rights (as well as
the declarations of the States) as models.
(253) The Federalists' response likewise recognized the English
precedent, but sought to distinguish it on various grounds or to argue that
many rights, such as the English Bill of Rights' ban on "cruel and unusual
punishments," or "the liberty of the press" (which developed after the Bill),
were too indefinite to provide dependable legal protections.
Second, Anti-Federalists denounced the
militia powers to be granted to the federal Government, warning that it would
destroy the militia through any number of means - by neglecting it, by
creating a select militia and then neglecting the general militia, or
(255)) by destroying the militia through onerous discipline and
excessive deployment. The arguments from neglect rested on the premise that
Congress's power of organizing, arming, and disciplining the militia would
foreclose any such State power. If true, the militia might be left without any
government ensuring its arming and training. The arguments also were premised
on the common understanding of the "militia" as the citizen militia: The
Federal Farmer, the leading Anti-Federalist essayist, admonished that "to
preserve liberty, it is essential that the whole body of the people always
possess arms, and be taught alike, especially when young, how to use them,"
and Patrick Henry, leader in the Virginia Ratifying Convention, warned, "The
great object is, that every man be armed. . . . When this power is given up to
Congress without limitation or bounds, how will your militia be armed?"
(256) Anti-Federalists also warned that Congress would use its power
to establish a standing army to trample traditional liberties, particularly
after it had destroyed the militia.
(257) The Federalists' response emphasized the same understanding of
the citizen militia, asking how the federal Government could tyrannize over a
populace armed as America's was.
(258) As already noted in Part II.D.2 above, they also argued that,
in any event, the States would retain a concurrent power over their militias,
including a power to arm them.
Two separate categories of proposed
amendments resulted from these two sets of arguments. Proposed amendments to
protect the right to keep and bear arms not only were phrased as individual
rights (even when accompanied by language concerning the militia and civilian
control of the military) but also were distinct from proposals that would
safeguard state powers over the militia or restrain federal power to create a
standing army. (Restriction on standing armies would help ensure that the new
government maintained the militia, by ensuring the government's dependence on
Pennsylvania's Convention, the second to
meet, ratified the Constitution by a 2 to 1 margin in December 1787, without
(260) A week later, 21 of the 23 dissenting delegates published
their Address and Reasons of Dissent ("Minority Report"),
including amendments that they had proposed but the convention had refused to
consider. It drew heavily from the 1776 Pennsylvania Declaration of Rights.
The proposal regarding arms was Article 7, immediately following one stating
that "the people have a right to the freedom of speech," and it read as
That the people have a right to bear arms for the defence 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; and as standing armies in the time of peace are dangerous to
liberty, they ought not to be kept up; and that the military shall be kept
under strict subordination to, and be governed by the civil powers.
Article 8, immediately following, protected the right to hunt on one's
private property and certain other lands.
Separately, the Minority sought, in Article
11, both to restrict Congress's Article I, Section 8, Clause 16 powers over
the militia and to protect state authority over it, by providing "[t]hat the
power of organizing, arming and disciplining the militia (the manner of
disciplining the militia to be prescribed by Congress), remain with the
(263) They warned that, without this restriction,
Congress's power over the militia could place "every man, probably from
sixteen to sixty years of age" under Congress's power and military discipline
- particularly "our young men, . . . as a select militia, composed of them,
will best answer the purposes of government" - and also could leave
conscientious objectors compelled to bear arms in the militia.
(264) As in Pennsylvania's 1776 declaration and constitution, a
right to bear arms was distinct from bearing arms in service to the
government. There was no suggestion that the individual right somehow would
directly guard the States' power, and this separate proposal and comment
indicate that the Minority believed that it would not.
The Massachusetts Convention was the first to
include with its ratification, in February 1788, a list of recommended
amendments. The Federalists prepared and had John Hancock introduce the nine
proposals to woo marginal Anti-Federalists. Samuel Adams, while supporting
Hancock's list, also led an effort to add several rights that would appear in
the First, Second, and Fourth Amendments, plus a ban on standing armies
"unless when necessary for the defence of the United States, or of some one or
more of them." Regarding arms, he proposed that the Constitution "be never
construed to authorize Congress . . . to prevent the people of the United
States, who are peaceable citizens, from keeping their own arms." This
language indicated that the "people" consisted of the "citizens," who would,
so long as they were peaceable, individually keep private arms. Adams's
proposed additions were voted down, and the Convention then narrowly voted to
ratify and to recommend the Federalists' list.
Four months later, New Hampshire's
Convention, also closely divided, adapted some of Adams's proposals.
(266) It recommended the nine amendments that Massachusetts had, but
added three: one calling for a supermajority before Congress could keep up a
standing army in peacetime; the next barring Congress from making laws
regarding religion or infringing the rights of conscience; and the final one
providing that "Congress shall never disarm any Citizen unless such as are or
have been in Actual Rebellion."
(267) New Hampshire thus became the first State whose ratifying
convention as a body recommended that the Constitution protect a right to
arms. Again, the right belonged to the individual citizen.
Although New Hampshire had provided the
crucial ninth State for the Constitution to take effect,
(268) the convention of Virginia, occurring simultaneously and
concluding four days later (on June 25, 1788), had particular importance, not
only because of the possibility that Virginia would be the ninth State to
ratify but also because of the State's significance, the prominence of its
leaders, and the strength of the Anti-Federalists, led by Patrick Henry.
(269) The convention did vote to ratify, but also recommended
numerous amendments. Written by a committee of Mason, Henry, Madison, George
Wythe, and John Marshall, twenty were proposed for a separate bill of rights
and twenty for the body of the Constitution. Those in the former category
amounted to the first full bill of rights proposed by a state convention, and
most made their way into the federal Bill of Rights.
The proposal regarding arms appeared in the
bill, immediately after the "right[s]" of "the people" to assemble and
petition and to speak, write, and publish. It was a synthesis from the leading
state declarations, providing:
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; that standing armies, in time of
peace, are dangerous to liberty, and therefore ought to be avoided, as far
as the circumstances and protection of the community will admit; and that,
in all cases, the military should be under strict subordination to, and
governed by, the civil power.
The two strands evident in the Revolutionary Era - an individual right to
arms and high regard for the citizen militia - were brought together: The
proposal combined an individual right-to-arms provision such as those from the
Pennsylvania and Massachusetts Declarations with the praise of the militia
from Virginia's. The "people" would have a right to keep and bear arms, and a
well-regulated militia composed "of the body of the people" - the
people as an organized whole - would protect "a free state." This language
became the foundation for the Second Amendment. In addition, the combination
of the two clauses indicates (as the differing first clauses of the analogous
articles in the Virginia and Pennsylvania Declarations had done separately)
that the individual right and the well-regulated militia both would
contribute to the avoidance of standing armies and to civilian rule.
Only in its separate list of amendments for
the body of the Constitution did the Virginia convention directly protect the
power of States to maintain militias and restrict the federal power to raise
standing armies. It recommended a supermajority vote for Congress to maintain
a peacetime army (in the spirit of Samuel Adams and the New Hampshire
Convention), and it sought to protect state power over the militia (much as
the Pennsylvania Minority had) with the following provision:
That each state respectively shall have the power to provide for
organizing, arming, and disciplining its own militia, whensoever Congress
shall omit or neglect to provide for the same.
These distinct proposals confirm what is evident from the declarations
included with the proposal for the bill of rights: The individual right of the
people to keep and bear arms does not directly guard any power of States to
maintain militias. (Much less does it guarantee against standing armies.) But
it does indirectly further the policy of having a well-regulated
militia of the body of the people, as well as that of mitigating the need for
and risk from a standing army.
The New York Convention, voting just over a
month after Virginia's (and ratifying by only 30-27), followed Virginia's
model. The separate declaration of rights included both an individual right to
keep and bear arms (immediately after the "right" of "the People" to free
exercise of religion) and declarations regarding the militia and standing
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.
. . . .
That standing Armies in time of Peace are dangerous to Liberty, and ought
not to be kept up, except in Cases of necessity; and that at all times, the
Military should be under strict Subordination to the civil Power.
For the body of the Constitution, New York proposed, like New Hampshire and
Virginia, an amendment requiring a supermajority for Congress to maintain a
peacetime standing army. It did not propose express protection of state power
over the militia.
The force of Virginia's proposals is evident
not only in New York's borrowing but also in the first North Carolina
Convention. On August 1, 1788, North Carolina became the only State to decline
to ratify until the Constitution had been amended to include a bill of rights
(Rhode Island had declined even to call a convention), and it proposed
verbatim the amendments that Virginia had proposed - including the individual
right to keep and bear arms and the separate proposals, for the body
of the Constitution, guarding state power over the militias and mandating
supermajorities for standing armies. North Carolina's actions made the
momentum for a bill of rights "virtually irresistible," and, two months after
Congress approved one, a new convention ratified.
Every recommendation in these state
conventions regarding the right to arms sought to protect an individual right
- not a "right" to maintain well-regulated state militias, whether belonging
to the States or to those serving in such entities (much less belonging just
to those serving in well-regulated select militias). Virginia, New
York, and North Carolina also appended declaratory clauses to the right
suggesting that it would benefit the citizen militia, preserve the freedom of
the state, and reduce the need for or risk from a standing army. But those
States that wanted to protect state authority to maintain militias (Virginia
and North Carolina) followed the lead of the Pennsylvania Minority by
proposing separate amendments doing so directly, intended not for the bill of
rights but for the body of the Constitution. Thus, regarding the right to
arms, those who ratified the Constitution did nothing novel, but rather
followed the path marked by the state declarations and the earlier right from
England. They proposed an individual right, not a "right" of States and not a
right restricted to their militias or militiamen. As the First Congress met,
it had before it numerous proposals for an individual right to arms and a few
proposals for safeguarding state militias by directly protecting state
authority, but none for protecting that authority through a collective or
quasi-collective "right" to arms.
2. The Drafting and Ratification of the Second
When the First Congress convened in 1789,
Federalist Congressman James Madison moved quickly to win over marginal
Anti-Federalists by responding to the calls for a bill of rights. The House
soon approved seventeen amendments. The Senate reduced these to twelve, of
which the States ratified the ten that form the Bill of Rights.
The Federalists, victorious in ratification
and dominant in Congress, openly avoided any amendment that would materially
alter the balance of power with the States or otherwise threaten legitimate
federal powers. Thus, the amendments that Congress approved were devoted
almost exclusively to protecting individual rights. Of the categories of
proposals discussed in the previous subpart, only the first - the individual
right of the people to keep and bear arms - received approval. The separate
proposals for protecting state power to organize, discipline, and arm the
militia and for restricting federal power to maintain standing armies failed.
President Washington set the stage in his
inaugural address, urging Congress to consider amendments out of "a reverence
for the characteristic rights of freemen" but "carefully avoid every
alteration which might endanger the benefits of an united and effective
(276) Madison reiterated this view in introducing his proposals in
It will be a desirable thing to extinguish from the bosom of every member
of the community, any apprehensions that there are those among his
countrymen who wish to deprive them of the liberty for which they valiantly
fought and honorably bled.
. . . .
I should be unwilling to see a door opened for a re-consideration of the
whole structure of the government, for a re-consideration of the principles
and the substance of the powers given . . . . But I do wish to see a door
opened to consider, so far as to incorporate those provisions for the
security of rights . . . .
. . . .
I believe that the great mass of the people who opposed [the
Constitution], disliked it because it did not contain effectual provision
against encroachments on particular rights, and those safeguards which they
have been long accustomed to have interposed between them and the magistrate
who exercised the sovereign power.
Madison also urged Congress to "expressly declare the great rights of
mankind" and provide "those securities for liberty" demanded by North Carolina
and Rhode Island. In contrast, he was confident that those who opposed the
Constitution's "structure," powers, or restrictions on state powers were a
much smaller group.
(278) Other congressmen similarly hoped that such an approach would
win over many of the disaffected in various States.
Anti-Federalist leaders recognized this focus
on individual rights. Richard Henry Lee, one of Virginia's first senators,
reported to Patrick Henry about a week before Madison's speech "that many of
our amendments will not succeed, but my hopes are strong that such as may
effectually secure civil liberty will not be refused."
(280) Soon after Madison spoke, Virginia's other senator, William
Grayson, wrote to Henry that Madison's proposals "altogether respected
Among Madison's proposals was the following,
which became the Second Amendment:
The right of the people to keep and bear arms shall not be infringed; a
well armed, and well regulated militia being the best security of a free
country: but no person religiously scrupulous of bearing arms, shall be
compelled to render military service in person.
The first and second clauses resembled the proposals of the Virginia, New
York, and North Carolina conventions, including by making the connection
between the individual right and the militia. The first clause stated, as they
had, a right both to keep and to bear arms, which belonged to "the people."
Having made this into a full sentence, Madison made the second clause, which
had been free-standing in the Virginia, New York, and North Carolina
proposals, subordinate to the first. In shortening the second clause, he
omitted the definition of the militia, just as Delaware, Maryland, and New
Hampshire had done in their declarations of rights.
(283) He also omitted the conventions' disparagement of standing
armies and admonition to civilian rule, and appended protection for
conscientious objectors, which the Pennsylvania Minority, Virginia, and North
Carolina had separately requested. As the Pennsylvania and Vermont
Declarations had shown even before ratification, there was no inconsistency in
recognizing both an individual right to "bear arms" and an individual
exemption from being compelled to "bear arms" in military service.
That Madison envisioned this proposed "right
of the people" to secure an individual right is confirmed by the notes for his
speech, in which he wrote that those provisions "relat[ing] to what may be
called a bill of rights," including this one, "relate . . . to
(284) by his using in his speech the same language to discuss both
the rights of English subjects and those in his proposed bill;
(285) and by the location in the body of the Constitution in which
he proposed to place these amendments. He recommended that the right to arms,
along with antecedents of the First, Third, Fourth, Eighth, Ninth, and
portions of the Fifth and Sixth Amendments, be added in Article I, Section 9,
immediately after clauses protecting three other individual rights: the writ
of habeas corpus and the prohibitions against ex post facto laws and
bills of attainder.
(286) It is reasonable to assume that Madison viewed the additional
rights as likewise belonging to the individual.
(287) Had he instead intended to protect state militias (whether
directly through a collective right or indirectly through a quasi-collective
right), a more reasonable location would have been in or near the two clauses
in Article I, Section 8, that granted congressional power over the
militia, one of which already "reserv[ed] to the States" certain powers over
the militia. And Madison likely would have drawn from the separate language
that Virginia and others had proposed for just this purpose - but those
proposals had the potential to threaten the balance of powers, at least by
inviting disputes over whether the federal Government had "neglect[ed]" the
Others also understood Madison's proposal to
secure an individual right to keep and bear arms. Leading Federalist
Congressman Fisher Ames wrote: "Mr. Madison has introduced his long expected
Amendments. . . . It contains a Bill of Rights . . . [including] the right of
the people to bear arms."
(288) Elsewhere he wrote: "The rights of conscience, of bearing
arms, of changing the government, are declared to be inherent in the
(289) Tench Coxe took the same view in his Remarks on the First
Part of the Amendments to the Federal Constitution, published in the
major cities. Writing as "A Pennsylvanian" (a pseudonym that he had used
during the ratification debates), he explained the right that Madison's
proposal protected as follows:
As civil rulers, not having their duty to the people duly before them,
may attempt to tyrannize, and as the military forces which must be
occasionally raised to defend our country, might pervert their power to the
injury of their fellow citizens, the people are confirmed by the
. . . article in their right to keep and bear their private
Coxe recognized that the "right" of "the people" belonged to the
"citizens," who could both keep and bear "private" arms. He sent his
Remarks to Madison the day that they were published, and Madison six
days later returned thanks for his "explanatory strictures" and the
"co-operation of your pen," noting from New York City that the
Remarks "are already I find in the Gazettes here."
(291) Neither Madison nor, it appears, anyone else disputed Coxe's
(292) Samuel Nasson, who had been an Anti-Federalist delegate to the
Massachusetts Ratifying Convention, described the right similarly in a letter
to a Federalist Congressman from the State a month after Madison introduced
I find that Ammendments are once again on the Carpet. I hope that such
may take place as will be for the Best Interest of the whole[.] A Bill of
rights well secured that we the people may know how far we may Proceade in
Every Department[,] then their will be no Dispute Between the people and
rulers[.] [I]n that may be secured the right to keep arms for Common and
Extraordinary Occations such as to secure ourselves against the wild Beast
and also to amuse us by fowling and for our Defence against a Common
Enemy[.] [Y]ou know to learn the Use of arms is all that can Save us from a
forighn foe that may attempt to subdue us[,] for if we keep up the Use of
arms and become acquainted with them we Shall allway be able to look them in
the face that arise up against us[.]
Like Coxe and others, Nasson understood "the people" as distinct from the
government, and included in "the right" of the people private ownership and
private uses of arms.
In late July 1789, a committee, to which had
been referred both Madison's proposals and all amendments that ratifying
conventions had proposed, issued a revised draft. It provided:
A well regulated militia, composed of the body of the people, being the
best security of a free state, the right of the people to keep and bear arms
shall not be infringed, but no person religiously scrupulous shall be
compelled to bear arms.
The Committee had left unchanged the text of Madison's independent clause
stating the right. But it had inverted the first two clauses, modified the
language regarding the militia to return it somewhat to what had been proposed
by some of the state conventions (including by defining the militia), and
revised the conscientious-objector clause.
There is no reason to suppose that the mere
reversal of order, or any of the other changes, had altered the right that
Madison, and the ratifying conventions before him, had set out: The operative
text of the independent clause was unchanged from Madison's draft, with the
militia clause retaining its subordinate relationship; Madison had served on
the committee, which does not seem to have had any serious disagreements over
(295) and the committee had retained Madison's proposal that this
amendment, along with the rest of the "Bill of Rights," be placed among the
three pre-existing individual rights in Article I, Section 9, albeit moved
forward one clause.
(296) In the ensuing debates, no member of the House suggested that
any change in the right had occurred. The Speaker of the House, from
Pennsylvania, wrote to a leading fellow Federalist in the State that the
committee's proposals "take[ ] in the principal Amendments which our Minority
had so much at heart"; the Minority had, as discussed above, proposed an
individual right to bear arms.
(297) And an article in Boston, reprinted in Philadelphia, described
the committee's proposal as containing "[e]very one of" the amendments
"introduced to the convention of this commonwealth by . . . Samuel Adams"
(except the restriction against a standing army), including that "the said
constitution be never construed . . . to prevent the people of the United
States who are peaceable citizens, from keeping their own arms."
(298) Clearly, the committee's proposed amendment on arms, like
Madison's and like Adams's, was understood to protect an individual right.
In floor debate that began in mid-August, the
focus was on the concluding exemption for conscientious objectors and thus on
militia service rather than "the right of the people" that the committee's
draft secured. Representative Gerry of Massachusetts, who had refused to sign
the Constitution and was a leading Anti-Federalist,
(299) objected that this final clause would enable the federal
Government to "declare who are those religiously scrupulous, and prevent them
from bearing arms." This, he warned, "together with [Congress's] other
powers," would enable Congress to "destroy the militia" and establish "a
standing army, the bane of liberty."
(300) He moved to narrow the clause, but after a debate, including
an effort to delete it, the House approved the committee's draft. Immediately
after, it resoundingly defeated another Anti-Federalist's motion to require a
supermajority to authorize a standing army in peacetime.
It does not appear from the debates that any
congressman shared Gerry's concern, but, in any event, his concern seems more
consistent with a view that the amendment secured an individual right than
with the alternative views. Gerry presumed that the first two clauses -
praising the well-regulated militia and setting out the right of the people -
would not suffice to protect the militia in the face of affirmative federal
efforts to undermine it. The individual right was inadequate to do so. That
understanding is consistent with the individual-right view, as we explained
above in Part II.C. It also was the understanding, and concern, implicit in
the dual recommendations of Virginia, North Carolina, and the Pennsylvania
Minority, which sought separately to protect both state militia powers and the
individual right to arms. In addition, if the "right of the people . . . to
bear arms" meant some right restricted to serving in an organized militia,
rather than a personal right, Gerry's concern would not have made sense:
Persons whom Congress declared religiously scrupulous pursuant to the proposed
amendment, although therefore not "compelled to bear arms" in the
militia, still would, under a quasi-collective-right view of the other clauses
of the amendment, have some right to do so, and thus Congress could
not, as Gerry charged, "prevent them" from serving.
After more debate over the
conscientious-objector clause on August 20, the House added back "in person"
at the end and approved the draft.
(302) It attached all of the amendments to the end of the
Constitution rather than incorporating them, but no substantive change was
(303) The right of the people to keep and bear arms was the fifth of
the seventeen proposed amendments that the House then sent to the Senate.
An Anti-Federalist who during the
ratification debates had written widely published essays as "Centinel" was
enraged enough by the House's failure to restrict federal, and protect state,
power that he took up his pen again, as Centinel Revived.
(305) He denounced "the partial amendments making by Congress" and
lamented that, although "many of these amendments are very proper and
necessary, yet . . . the constitution is suffered to retain powers
that may not only defeat their salutary operation, but may, and
incontrovertibly will be so decisively injurious as to sweep away every
vestige of liberty." He highlighted the Second Amendment for criticism:
It is remarkable that this article only makes the observation, "that a
well regulated militia, composed of the body of the people, is the
best security of a free state;" it does not ordain, or constitutionally
provide for, the establishment of such a one. The absolute command vested by
other sections in Congress over the militia, are not in the least abridged
by this amendment.
Centinel understood the Second Amendment not to constrain Congress's
Article I, Section 8 "absolute command" over the militia or otherwise secure
any power of the States to maintain one (whether by creating a "right" of
States or of the members of their organized militia units), and understood the
Amendment's prefatory praise of the militia - a mere "observation" - not to
have any operative effect. The reasonable inference is that he viewed the
"right of the people to keep and bear arms" as one belonging to individuals.
The Senate reduced the House's proposed
amendments to twelve in early September.
(307) In so doing, it made three changes in what would become the
Second Amendment: (1) deleting "composed of the body of the people," (2)
replacing "the best" with "necessary to the," and (3) deleting the
conscientious-objector clause. It also voted down a motion to insert "for the
common defense" immediately after "to keep and bear Arms."
(308) The Senate deliberated in secret, and its minutes are
conclusory, so it is difficult to discern the reasons for these changes. One
could argue that some of them (deletion of the conscientious-objector clause
and rejection of the "common defense" clause) tend to support the
individual-right view of the Amendment, although contrary arguments are no
(309) One also could argue that deletion of the definition of the
militia cuts against the individual-right view's reading of the prefatory
language, although there, too, a counter-argument is possible.
(310) Because of the lack of historical records and the multiple
possible explanations, we are reluctant to attribute any material significance
to these actions.
We do, however, find it significant that the
Senate rejected a motion to add a separate amendment securing state power to
organize, arm, and discipline the militias if Congress should "omit or
neglect" to do so.
(311) Notwithstanding the lack of historical records of the
deliberations on this motion, the broader historical context suggests that,
had Congress sought to secure the States' ability to maintain organized
militia units, adopting this provision is how it would have done so. It is
hard to ascribe this vote to a view that the proposed amendment was redundant
with the right of the people to keep and bear arms: Not only are the texts of
the two provisions markedly different, but also, as explained in the previous
subpart, the Virginia and North Carolina Ratifying Conventions (from which the
rejected language was directly taken) had made distinct proposals, one
covering the right to arms and the other covering state power over the militia
(the Pennsylvania Minority also had done this). In addition, the Senate was
even more Federalist than the House (Lee and Grayson of Virginia being the
only Anti-Federalists among the 22 senators).
(312) As already noted, the Federalists were determined to avoid
amendments affecting the federal-state balance of power and instead to focus
on individual rights. If senators had thought that what became the Second
Amendment had the effect of this rejected provision, one would have expected
them to have refused to approve it as well. Finally, the two Anti-Federalist
senators acknowledged that their efforts to obtain amendments affecting the
federal-state balance had failed. Senator Lee, like Centinel, complained, in a
letter to Patrick Henry, that the amendments were inadequate for "securing the
due Authority of the States."
(313) Senators Lee and Grayson jointly informed the Virginia
legislature of their failure to secure the "Radical Amendments proposed by the
(314) Thus, the Senate continued the House's approach - rejecting
attempts to restrict congressional powers or augment state powers, while
securing individual rights in the hope of creating a national consensus in
favor of the new Government.
On September 24, 1789, a conference committee
agreed to some changes in the Senate's proposed amendments, but there was no
change in (or effort to change) the Senate's version of what became the Second
Amendment. Congress, through the President, then sent the twelve proposed
amendments to the then-eleven States for ratification and to North Carolina
and Rhode Island (which still had not ratified the Constitution).
(315) The records of the state ratifying conventions are sparse and
do not appear to provide any significant material concerning the meaning of
the Second Amendment right.
(316) The States approved ten of the twelve proposed amendments, and
in March 1792, Secretary of State Jefferson officially declared the Bill of
The history in this subpart of the immediate
development of the Second Amendment reveals a right consistent with, and
developed from, the individual right to arms that had been inherited from
England, recognized and invoked in revolutionary America, and codified to
various extents in early state declarations of rights. In addition, the early
States prized a well-regulated citizen militia, as some of their declarations
recognized, and understood the individual right to arms to facilitate such a
militia. The Second Amendment, following the lead of several of the ratifying
conventions, reflects the contemporaneous understanding of this relationship;
in so doing, it grants the right to "the people," not to the "Militia" (much
less to members of select militia units), or to the "State." Nor does the
history support limiting the right secured by the Amendment to any of these
entities. Indeed, those who wanted to ensure that the States could have fully
functioning militias proposed a separate amendment, expressly protecting state
power. Their proposals failed.
(318) Thus, the history of the Amendment, like its text, indicates
that the Second Amendment's "right of the people to keep and bear Arms" is not
collective or quasi-collective but rather is a personal right that belongs to
IV. The Early
Our analysis of the Second Amendment's text
and history in the two preceding parts of this memorandum is supported by the
views of those who first interpreted the Amendment. In the generations
immediately following its ratification, the three leading commentators to
consider the Second Amendment each recognized that its right of the people to
keep and bear arms belonged to individuals, not to States and not just to
members of militias (whether of organized, select militia units or even of the
citizen militia). Nearly all of the discussions of the antebellum courts,
including in the leading cases, understood the right in the same way, whether
they were considering the Second Amendment or similar provisions in state
constitutions. This early understanding of a personal right continued at least
through Reconstruction. The modern alternative views of the Second Amendment
did not take hold until 1905, well over a century after the Amendment had been
A. The First
In the first few decades after the Second
Amendment was drafted and ratified, each of the three leading commentators on
the Constitution addressed it: St. George Tucker, William Rawle, and Joseph
Story. Each agreed that it protects an individual right. Less prominent early
commentators also concurred with this interpretation.
Tucker, a judge and law professor from
Virginia, published in 1803 an edition of Blackstone's Commentaries
to which he had added annotations and essays explaining the relation of
American law, including the new Constitution, to England's. Tucker's
Blackstone quickly became the leading American authority on both
Blackstone and American law.
Tucker addressed the Second Amendment at
several points. He first did so, repeatedly, in his introductory View of
the Constitution of the United States. He tied the federal right, as
Blackstone had the English one, to the individual, natural right of
self-defense and to the freedom of the state. After quoting the Amendment, he
This may be considered as the true palladium of liberty . . . . The right
of self defence is the first law of nature: in most governments it has been
the study of rulers to confine this right within the narrowest limits
possible. Wherever standing armies are kept up, and the right of the people
to keep and bear arms is, under any colour or pretext whatsoever,
prohibited, liberty, if not already annihilated, is on the brink of
He condemned the use of the game laws in England as a pretext to disarm
ordinary people - the "farmer, or inferior tradesman, or other person not
qualified to kill game."
(321) And he grouped the Second Amendment right with those of the
First, confirming that all belonged to individuals:
If, for example, a law be passed by congress, prohibiting the free
exercise of religion, according to the dictates, or persuasions of a man's
own conscience; or abridging the freedom of speech, or of the press; or the
right of the people to assemble peaceably, or to keep and bear arms; it
would, in any of these cases, be the province of the judiciary to pronounce
whether any such act were constitutional, or not; and if not, to acquit the
accused . . . .
Second, in annotating Blackstone's
description, in Book I, Chapter 1, of the individual English subject's right
to have and use arms for self-defense (discussed above in Part III.A), Tucker
praised the Second Amendment "right of the people" for being "without any
qualification as to their condition or degree, as is the case in the British
government" (under England's Bill of Rights) and again denounced the game
laws, by which "the right of keeping arms is effectually taken away from the
people of England."
(323) Finally, in a note to one of Blackstone's (critical)
discussions of the game laws, Tucker once more attacked them, because "it
seems to be held" that no one but the very rich has "any right to keep a gun
in his house" or "keep a gun for their defence," the result being that "the
whole nation are completely disarmed, and left at the mercy of the
government," and "the mass of the people" are kept "in a state of the most
abject subjection." By contrast, "in America we may reasonably hope that the
people will never cease to regard the right of keeping and bearing arms as the
surest pledge of their liberty."
In all of these discussions, the right
belonged to individuals - to persons availing themselves of the natural,
individual "right of self defence," to the "accused" seeking judicial review
of a violation of the Second Amendment, and to "the mass" of ordinary people
able to defend themselves because protected by the Second Amendment from
class-based pretexts for disarmament. Tucker understood both the English and
American rights to arms to belong to individuals, and he thought the latter
more secure and broad-based.
Nowhere did Tucker suggest that the right of
the people to keep and bear arms depended on a person's enrollment and
exercise in the citizen militia (much less his membership in an organized,
select militia unit) or that it was a "right" that belonged to state
governments. He did elsewhere, in discussing the Militia Clauses, point out
that the Second Amendment eliminated "all room for doubt, or uneasiness" on
whether the federal Government could prohibit States from simply providing
arms for their militias (doubt he rightly found questionable given that the
original Constitution left a concurrent arming power in the States).
(325) Tucker did not suggest here that he thought the Amendment had
only this effect, and his other discussions confirm that he did not so
William Rawle of Pennsylvania published his
View of the Constitution of the United States of America in 1825,
with a second edition appearing in 1829. After having turned down President
Washington's offer to be the first attorney general, he had served in the
Pennsylvania Assembly when it ratified the Bill of Rights. His commentary,
like Tucker's, gained wide prominence.
Rawle analyzed the Second Amendment in a
chapter entitled "Of the Restrictions on the Powers of Congress . . . [,]
Restrictions on the Powers of States and Security to the Rights of
Individuals," by which he meant, respectively, Article I, Section 9;
Article I, Section 10; and the first eight amendments of the Bill of Rights.
(327) He started with the Second Amendment's preface, giving to it,
including the word "Militia," precisely the sense and significance that
emerges from our analysis above, and making clear that the substantive right
belonged to the ordinary citizen:
In the second article, it is declared, that a well regulated militia
is necessary to the security of a free state; a proposition from which
few will dissent. Although in actual war, the services of regular troops are
confessedly more valuable; yet, while peace prevails, and in the
commencement of a war before a regular force can be raised, the militia form
the palladium of the country. . . . That they should be well regulated, is
judiciously added. . . . The duty of the state government is, to adopt such
regulations as will tend to make good soldiers with the least interruptions
of the ordinary and useful occupations of civil life. . . .
The corollary, from the first position, is, that the right of the
people to keep and bear arms shall not be infringed.
The prohibition is general. No clause in the Constitution could by any
rule of construction be conceived to give to congress a power to disarm the
people. Such a flagitious attempt could only be made under some general
pretence by a state legislature. But if in any blind pursuit of inordinate
power, either should attempt it, this amendment may be appealed to as a
restraint on both.
Both Rawle's language - the Amendment's prohibition "is general" and
protects the arms of "the people" - and his view of the Second Amendment as
applying to the States and restricting their power indicate that he
saw the right as individual, not as collective or quasi-collective.
Two additional points further show that Rawle
viewed the right as belonging to individuals. Like Tucker, he favorably
contrasted the right of the people that the Second Amendment secured with the
more selective individual right in England under the aristocratic game laws,
including a summary of Blackstone's critique of those laws. In addition, he
expressly recognized, as had Blackstone, Tucker, and, in varying degrees, the
Pennsylvania Minority, Samuel Adams, and the New Hampshire Ratifying
Convention, that the right provided no warrant to breach the peace, including
by inciting reasonable fear of a breach.
(329) This recognition indicates an individual-right view because
there is no need for ordinary criminal law to oversee either the actions of
States in regulating their militias or the bearing of arms by members of a
State's militia in connection with their service and under state regulation.
Rawle further explained the individual-right
view's understanding of the Second Amendment preface when discussing the
President's limited power to command the militia. Although not mentioning the
Amendment expressly, he noted: "In a people permitted and accustomed to bear
arms, we have the rudiments of a militia, which properly consists of armed
citizens, divided into military bands, and instructed at least in part in the
use of arms for the purposes of war."
(330) Thus, the "people" of the country, as individuals, keep and
bear arms for private purposes; they also form the militia; and the former
facilitates the latter, but only as a rudiment. That is why the individual
right is a "corollary" from the need for a militia.
The same view appears in the influential 1833
Commentaries on the Constitution of the United States of Supreme
Court Justice and law professor Joseph Story, as well as in his later
Familiar Exposition of the Constitution. The Commentaries
appeared first in a three-volume set and then, a few months later, in a
one-volume abridgement by Story (the "Abridgement").
Story devoted a chapter of his
Abridgement to the Bill of Rights. Before turning to its provisions,
he recounted the debate over whether to add one and identified several
purposes, all related to individual rights: (1) to prevent powers granted to
the government from being exercised in a way "dangerous to the people"; (2) as
part of "the muniments of freemen, showing their title to protection," to
ensure against an "extravagant or undue extention of" powers granted; and (3)
to protect minorities.
(332) He then singled out those amendments that did not relate to
judicial procedure (the First, Second, Third, Fourth, Eighth, Ninth, and
Tenth) as those addressing "subjects properly belonging to a bill of
With regard to the Second Amendment, he first
explained the importance of the militia for "a free country," including as a
check on "domestic usurpations of power," and the hazards "for a free people"
of keeping up "large military establishments and standing armies in time of
peace." He linked these policies to the right: "The right of the citizens to
keep, and bear arms has justly been considered, as the palladium of the
liberties of a republic; since it offers a strong moral check against the
usurpation and arbitrary power of rulers; and will generally, even if these
are successful in the first instance, enable the people to resist and triumph
(334) In the unabridged version, he cited Tucker, Rawle, and the
House of Representatives' first day of debate on the Amendment in support of
By paraphrasing the "right of the people" as
the "right of the citizens" - not of States or members of their militias - as
well as by citing Tucker and Rawle's discussions (including borrowing from
Tucker's "palladium" language), Story left no doubt that he considered the
right to belong to individuals. He reinforced this point in an additional
paragraph in the unabridged version, citing both Blackstone's discussion of
the "similar provision" in England - clearly an individual right, as explained
above - and Tucker's discussion of what Story called the "defensive privilege"
(336) In his Familiar Exposition, Story began his
discussion of the Amendment with an even more explicit statement: "One of the
ordinary modes, by which tyrants accomplish their purposes without resistance,
is, by disarming the people, and making it an offence to keep arms, and by
substituting a regular army in the stead of a resort to the militia."
Thus Story, like Tucker, Rawle, and others,
recognized that the right that the Second Amendment secured was an individual
one. He also saw, as they had, that this personal right was necessary for
ensuring a well-regulated militia of the people. But he likewise recognized,
consistent with the individual-right view, that such a right was not
sufficient for ensuring such an entity, wondering how it would be "practicable
to keep the people duly armed without some organization," and lamenting the
decline of militia discipline.
Less prominent commentators shared Tucker, Rawle, and Story's view of the
Second Amendment as securing an individual right. Most significant of these
was probably Henry Tucker (son of St. George). In an 1831 commentary, he
The right of bearing arms - which with us is not limited and restrained
by an arbitrary system of game laws as in England; but is practically
enjoyed by every citizen, and is among his most valuable privileges, since
it furnishes the means of resisting as a freeman ought, the inroads of
He also noted that the right inherited from England and expounded by
Blackstone "is secured with us by" the Second Amendment.
(340) And Jonathan Elliot, in his record of the ratification debates
first published in the 1830's, provided an index of the Constitution that,
under the heading "Rights of the citizen declared to be," listed each
of the rights of the first nine amendments of the Bill of Rights, including
"To keep and bear arms."
(341) He grouped the right secured by the Second Amendment with the
unquestionably individual rights secured by its neighbors. There was no entry
in the index for the militia or its members, aside from reference to the
congressional powers in Article I, Section 8, and none of his entries
regarding the States included reference to the militia or the Second
(342) Thus, these early commentators were all consistent in
recognizing that the Second Amendment secures an individual right. They did
not even mention possible alternative views, whether involving a collective or
a quasi-collective "right."
B. The First Cases
Like the commentators, the early case law
also treated the Second Amendment as securing a right of individuals, not a
right of governments or those in its service. Without taking any position on
the correctness of the courts' holdings or the constitutionality, under the
Second Amendment, of any particular limitations on owning, carrying, or using
firearms, we find it significant that these decisions consistently understood
the right to be an individual one. The earliest cases, although not numerous,
consistently recognized that the right to "bear" arms belonged to individuals,
just as the right to "keep" them did. Judicial treatment became more common
beginning in the 1840's, mostly because of new prohibitions on carrying
weapons concealed. The courts upheld these prohibitions (some courts applying
the Second Amendment and some applying similar state provisions), but in so
doing they all recognized an individual right to arms: All of the decisions
recognized an individual right to keep private arms; nearly all, including the
leading cases, recognized a right of individuals to "bear" those arms for
private purposes; and all recognized some manner of individual right to bear
them. Most notably, the Supreme Court of Georgia twice unanimously ruled in
favor of individuals on the basis of the Second Amendment.
1. Cases Before 1840.
The first of the early cases is
Houston v. Moore, in 1820. The Supreme Court, in
upholding Pennsylvania's power to try a militiaman for failing to report for
federal service in the War of 1812, recognized that States had concurrent
power to regulate their militias at least when the militias were in the
service of their State or in the absence of congressional regulation. Yet it
did not mention the Second Amendment. Justice Story, in dissent, also
recognized the concurrent power, and he noted that the Second Amendment was
probably irrelevant to the question.
(343) As we explained above in Part III.C.1, the Anti-Federalists
who claimed to fear that the federal militia powers would not allow a
concurrent state jurisdiction did not rely on the proposals for a right to
arms to resolve their concern, but rather proposed separate amendments (which
failed to pass). It appears that the Court in Houston similarly
recognized that the Second Amendment did not guard state power to maintain
militias, whether by creating a collective right of States or a
quasi-collective right of militiamen to vindicate state power. Otherwise, one
would expect the Court to have discussed it. Thus, Houston, although
far from conclusive, lends some support to an individual-right view.
Second, in Bliss v.
Commonwealth (1822), in what appears to be the first judicial
interpretation of the right to bear arms in America, a divided highest court
of Kentucky applied that State's constitutional protection of "the right of
the citizens to bear arms in defense of themselves and the state," first
adopted in 1792, to void a ban on wearing certain weapons concealed.
(344) The State had argued that the ban merely restricted the manner
of exercising the right. The court, although not citing authority, gave two
primary reasons for rejecting this argument: (1) the right in 1792 included
carrying weapons concealed, and (2) to recognize this one exception would
leave no principled basis to reject others, eviscerating the right.
(345) The court's specific holding was rejected thereafter - by
(346) and by the people of Kentucky, who in their 1850 constitution
added a clause allowing laws to prevent carrying concealed arms.
(347) But the holding was rejected not on the ground that it
improperly recognized a right of individuals to "bear arms" (Kentucky's
provision remained otherwise unchanged), but rather on the ground that
Bliss erred in determining the right's scope. Thus Bliss
confirms the individual nature of the right.
Third, several early references to the right
or to "bearing arms" indicate that courts viewed the right as an individual
one, or at least that an individual carrying weapons and not in militia
service could be said to "bear arms." A Virginia appellate court in 1824,
discussing that State's restrictions on the rights of free blacks - "many of
which are inconsistent with the letter and spirit of the Constitution, both of
this State and of the United States" - cited the restriction "upon their right
to bear arms."
(348) That the restriction involved their rights as individuals is
evident from Tucker's summary of the Virginia laws.
(349) In an 1829 libel case, the Supreme Court of Michigan (then a
territory) drew a parallel between the freedoms of speech and press and the
right of the people to bear arms to explain that individual rights are not
unlimited: "The constitution of the United States also grants to the citizen
the right to keep and bear arms. But the grant of this privilege cannot be
construed into the right in him who keeps a gun to destroy his neighbor."
(350) And in a jury instruction while riding circuit in 1833, in a
case unrelated to the militia, U.S. Supreme Court Justice Baldwin included the
Amendment in a list of potentially relevant individual rights.
Last of the earliest cases is the 1833
decision of the Supreme Court of Tennessee in Simpson v.
(352) The question was the validity of a boilerplate indictment
alleging that the defendant had appeared in a "public street and highway . . .
arrayed in a warlike manner" and then "to the great terror and disturbance of
divers good citizens . . . an affray did make . . . against the peace and
dignity of the state."
(353) The court held the indictment invalid because it alleged
neither fighting (an element of "affray") nor any other act likely to have
caused public terror and indictable at common law. The court reached this
conclusion first by considering the common law, particularly as set out by
Blackstone. But because there was some uncertainty regarding the common law,
the court also relied on the 1796 Tennessee Constitution, which provided "that
the freemen of this state have a right to keep and to bear arms for their
(354) This right eliminated any doubt whether merely appearing in
public armed could create "terror" and thus be criminal: "By this clause of
the constitution, an express power is given and secured to all the free
citizens of the state to keep and bear arms for their defence, without any
qualification whatever as to their kind or nature."
(355) The court recognized that individuals could "bear arms" for
private purposes, just as they could "keep" them, and included self-defense
within "their common defence." Thus, in the first four decades after the
Founding, the courts were consistent in recognizing that the right to keep and
bear arms was a right of individuals, allowing both the keeping of private
arms and the bearing of them for private purposes.
2. Cases from 1840 to the Civil
The leading case from the antebellum period
on the right to bear arms, and the first major decision, was State
v. Reid in 1840. The Supreme Court of Alabama unanimously
upheld the State's new ban on carrying guns or knives secretly, finding no
violation of the provision in the State's 1819 constitution that "[e]very
citizen has a right to bear arms, in defence of himself and the State."
(356) In so doing, the court recognized that the provision's right
to "bear arms" was a right of an individual, who could bear them to facilitate
his self-defense. The court first looked to the origins of the right in the
"provisions in favor of the liberty of the subject" in the English Declaration
of Rights. Quoting the right of subjects to have arms for their defense, the
court explained: "The evil which was intended to be remedied by the provision
quoted, was a denial of the right of Protestants to have arms for their
defence, and not an inhibition to wear them secretly."
The court then adopted the State's factual
argument that carrying weapons concealed did not facilitate self-defense but
rather served the purpose of aggression and breaching the peace. The court
elaborated in explaining the limits of the State's power to enact laws
regulating "the manner in which arms shall be borne":
A statute which, under the pretence of regulating, amounts to a
destruction of the right, or which requires arms to be so borne as to render
them wholly useless for the purpose of defence, would be clearly
unconstitutional. But a law which is intended merely to promote personal
security, and to put down lawless aggression and violence, and to that end
inhibits the wearing of certain weapons, in such a manner as is calculated
to exert an unhappy influence upon the moral feelings of the wearer, by
making him less regardful of the personal security of others, does not come
in collision with the constitution.
The court thus rejected Bliss's holding: "[The constitution]
authorizes him to bear them for the purposes of defending himself and the
State, and it is only when carried openly, that they can be efficiently used
(359) If the need for defense were immediate, "there can be no
necessity for concealing the weapon," and if it were not immediate, there were
legal processes for securing protection. If a defendant could prove that it
was "indispensable to the right of defence" for him to conceal his weapon, the
court might construe the statute not to apply, but Mr. Reid had not done so.
Eighteen years later, the same court in
Owen v. State reaffirmed Reid in
recognizing the constitutionality of a similar statute (the legislature,
perhaps prompted by Reid, had added an exception for those threatened
with or reasonably fearing attack). In so doing, the court made explicit what
had been implicit in Reid - that "carries" in the statute "was used
as the synonym of 'bears.'"
Soon after Reid, the Supreme Court
of Georgia, in Nunn v. State, relied on
Reid, as well as Bliss, in unanimously reversing a
conviction for openly carrying a pistol. The court applied the Second
Amendment, holding "that so far as the act . . . seeks to suppress the
practice of carrying certain weapons secretly, . . . it is
valid, inasmuch as it does not deprive the citizen of his natural
right of self-defence, or of his constitutional right to keep and bear arms.
But that so much of it, as contains a prohibition against bearing arms
openly, is in conflict with the Constitution, and void."
(362) As had Reid, Nunn looked for guidance to the
right to have and use arms in England. The court viewed that right, the right
of the Second Amendment, and the rights protected by the States' constitutions
as all securing a personal right of individuals: "When, I would ask, did any
legislative body in the Union have the right to deny to its citizens the
privilege of keeping and bearing arms in defence of themselves and their
country?" Likewise, "the Constitution of the United States, in declaring that
the right of the people to keep and bear arms, should not be infringed, only
reiterated a truth announced a century before, in the act of 1689."
(363) This "right of the people" was just as "comprehensive" and
"valuable" as those in the First, Fourth, Fifth, and Sixth Amendments.
Like Rawle and Story, the Nunn court
recognized the harmony between the Second Amendment's individual right and its
preface: "[O]ur Constitution assigns as a reason why this right shall not be
interfered with or in any manner abridged, that the free enjoyment of it will
prepare and qualify a well-regulated militia, which are necessary to
the security of a free State." More broadly:
The right of the whole people, old and young, men, women and boys, and
not militia only, to keep and bear arms of every description, and not such
merely as are used by the militia, shall not be infringed, curtailed, or
broken in upon, in the smallest degree; and all this for the important end
to be attained: the rearing up and qualifying a well-regulated militia, so
vitally necessary to the security of a free State.
The preface's reference to the militia as "necessary to the security of a
free State" reinforced this understanding and helped convince the court that
the Amendment also restricted the States: "If a well-regulated militia is
necessary to the security of the State of Georgia and of the
United States, is it competent for the General Assembly to take away this
security, by disarming the people?" The right lay "at the bottom of every free
government," state or federal.
(366) As had Rawle, the court in Nunn, by concluding that
the Amendment restricted the powers of the States, confirmed its view
that the Amendment did not protect the powers of the States but rather
protected the rights of their individual citizens.
Fifteen years later, the same court reported
that Nunn had "been constantly adhered to," and unanimously applied
it to reverse a jury instruction that, for a weapon to be carried openly, it
had to be entirely uncovered. Because such carrying was "impossible,"
such an interpretation "would . . . prohibit the bearing of those arms
The Louisiana Supreme Court took the same
view of the Second Amendment as an individual right in a series of cases in
the 1850's. In State v. Chandler, a murder
defendant had sought an instruction that carrying weapons "either concealed or
openly" could not be a crime consistent with the Constitution. The court
affirmed the denial of the instruction. Like Reid and Nunn,
the court saw no factual link between carrying weapons concealed and
self-defense. But, also like them, it viewed open carrying of arms
differently: "This is the right guaranteed by the Constitution of the United
States, and which is calculated to incite men to a manly and noble defence of
themselves, if necessary, and of their country."
(368) Six years later, the court upheld a conviction for carrying a
concealed weapon, finding no Second Amendment violation because "[t]he arms
there spoken of are such as are borne by a people in war, or at least carried
(369) And two years after that, the same court cited these decisions
in upholding another such conviction, again treating the right as belonging to
individuals and understanding "carry" to be synonymous with "bear": "The
statute in question . . . . is a measure of police prohibiting only a
particular mode of bearing arms which is found dangerous to the peace of
Two other state-court cases of this later
antebellum period merit special mention. The first and more significant is
Aymette v. State,
(371) the second, State v. Buzzard.
(372) In both, the court's holding was unremarkable - that bans on
carrying weapons concealed were constitutional. But the courts' rationales
were novel. While still recognizing a right to keep and to bear arms that
belonged to individuals, these decisions sharply restricted the purposes for
which arms could be borne. Unlike Reid and Nunn, neither
case was cited until several years after the Civil War (and then usually just
for their holdings), but Aymette acquired some prominence thereafter,
and Buzzard is notable for one judge's separate opinion somewhat
foreshadowing the collective- and quasi-collective-right views.
In Aymette, the Tennessee Supreme
Court applied that State's 1834 Constitution, which provided "that the free
white men of this State have a right to keep and bear arms for their common
defence." (The only difference from the provision discussed in
Simpson was the change of "freemen" to "free white men."
(373)) In upholding the defendant's conviction for carrying a
concealed bowie knife, the court limited the state right to "bear arms" to
actions done "by the people in a body for their common defense."
(374) Some have relied on Aymette's reasoning in arguing
against the individual-right view of the Second Amendment. The Ninth Circuit
in Silveira, for example, overlooking all of the antebellum cases
discussed above, described Aymette as "the most significant judicial
decision to construe the term 'bear arms'" and as concluding that the phrase
"referred to the performance of a military function."
(375) Silveira particularly relied on Aymette's
statement that "'[a] man in pursuit of deer, elk and buffaloes might carry his
rifle every day for forty years, and yet it would never be said of him that he
had borne arms.'"
(376) Fairly read, however, Aymette does not contravene an
individual-right view of the Second Amendment.
First, even assuming for the sake of argument
that Aymette read the Tennessee Constitution not to secure any
individual right to bear arms, the decision has two distinctive features that
undermine its relevance to the Second Amendment. Aymette's analysis
rested heavily on the phrase "for their common defence" in the Tennessee
provision, which is absent from the Second Amendment. The phrase pervades the
court's brief analysis. The court defined "common" and even described the
right to arms in the English Bill of Rights as if it included the word.
(377) The court also relied on a conscientious-objector clause that
appeared elsewhere in the state constitution, citing it at the end of its
opinion, in criticizing Bliss, to make "the case still more clear."
(378) Yet no conscientious-objector clause appears in the Second
Amendment or even the Constitution.
Second, and more importantly,
Aymette does not reject an individual right either to keep or to bear
arms, even though it may exclude individual self-defense from the meaning of
"bear." The court was unequivocal on "keep": "The citizens have the
unqualified right to keep the weapon," so long as it is a protected "arm."
(380) It did describe "bear" as limited to "military use,"
(381) but by that appears still to have contemplated a right that
belonged to individuals rather than to the State or those engaged in its
(382) The court did not mention the militia. Rather, the "military"
bearing that it appears to have had in mind was the people, in an extreme case
of governmental tyranny, independently bearing arms as a body to check the
government. The court confined "bear" to the most radical of emergencies.
Thus, it provided the following account of the English Revolution of
[I]f the people had retained their arms, they would have been able, by a
just and proper resistance to those oppressive measures, either to have
caused the king to respect their rights, or surrender (as he was eventually
compelled to do) the government into other hands. No private defence was
contemplated, or would have availed anything. . . . [The right in the
English Declaration means] that they may as a body rise up to defend their
just rights, and compel their rulers to respect the laws. . . . The
complaint was against the government. The grievances to which they were thus
forced to submit were for the most part of a public character, and could
have been redressed only by the people rising up for their common defence,
to vindicate their rights.
The court also wrote that the people "may keep arms to protect the public
liberty, to keep in awe those in power, and to maintain the supremacy of the
laws and the constitution." Citizens need to be prepared "to repel any
encroachments upon their rights by those in authority," and the right "is a
great political right. It respects the citizens, on the one hand, and the
rulers on the other."
Subsequent treatment by the same court
confirms that Aymette, despite its narrow reading of "bear," still
recognized an individual right. In Andrews v.
State, a prominent case after the Civil War, the Tennessee Supreme
Court interpreted the right of the "citizens of this State . . . to keep and
bear arms for their common defense" under the State's 1870 constitution. It
was not until after Andrews that Aymette, previously
uncited, acquired any prominence.
(385) The new constitution had added an exception granting to "the
Legislature . . . power by law, to regulate the wearing of arms, with a view
to prevent crime," which had been prompted by an enduring dispute between
partisans of Aymette and Simpson.
(386) The statute at issue prohibited any public or private
carrying of "a dirk, swordcane, Spanish stiletto, belt or pocket pistol or
(387) Notwithstanding the added constitutional clause and the
arguable implications of Aymette, the court held it unconstitutional
as applied to certain revolvers.
In reaching this holding, the court went far
to assimilate Aymette to the reasoning of Reid and
Nunn, even while technically retaining Aymette's view of
(389) It did so in three ways. First, it expressly reaffirmed that
at least the right to "keep" belonged to individuals: The "right to bear arms
for the common defense . . . may well be held to be a political right, or for
protection and maintenance of such rights, intended to be guaranteed; but the
right to keep them, with all that is implied fairly as an incident to this
right, is a private individual right, guaranteed to the citizen, not the
(390) The court added, relying on Story, that it is "to be exercised
and enjoyed by the citizen as such, and not by him as a soldier, or in defense
solely of his political rights."
Second, Andrews read "keep"
expansively to include broad "incidental use," emphasizing that the goal of
the right was to ensure that "the citizens making up the yeomanry of the land,
the body of the militia," would be prepared when needed. Thus:
The right to keep arms, necessarily involves the right to purchase them,
to keep them in a state of efficiency for use, and to purchase and provide
ammunition suitable for such arms, and to keep them in repair. And clearly
for this purpose, a man would have the right to carry them to and from his
home, and no one could claim that the Legislature had the right to punish
him for it, without violating this clause of the
But farther than this, it must be held, that the right to keep arms
involves, necessarily, the right to use such arms for all the ordinary
purposes, and in all the ordinary modes usual in the country, and to which
arms are adapted, limited by the duties of a good citizen in times of
Because citizens needed to be able to "become familiar with" the use of
arms "in times of peace, that they may the more efficiently use them in times
of war, . . . the right to keep arms for this purpose involves the
right to practice their use."
(392) Use for "ordinary purposes" included a man taking his gun
"from his room into the street to shoot a rabid dog that threatened his
(393) and using them on one's property in lawful self-defense.
(394) Such reasoning is in large measure the same as that taken by
the traditional individual-right view in explaining the relation between the
Second Amendment's preface and operative text.
Third, consistently with its reading of
"keep," the court also broadened "arms." Aymette had defined the word
to include only such arms "as are usually employed in civilized warfare, and
that constitute the ordinary military equipment."
(395) Andrews explained it as follows: "[T]he idea of the
Constitution is, the keeping and use of such arms as are useful either in
warfare, or in preparing the citizen for their use in warfare, by training him
as a citizen, to their use in times of peace."
(396) The court took judicial notice "that the rifle of all
descriptions, the shot gun, the musket, and repeater, are such arms."
Thus, setting aside any distinctions based on
the specific language of Tennessee's Constitution, the consequence of
Aymette, taken together with Andrews, is that "bear arms"
was defined more narrowly in those cases, and "keep arms" more broadly, than
was usual. The net result seems to be not far from the traditional
individual-right view held at the Founding and reflected in the great weight
of early authority.
The divided 1842 decision of the Arkansas
Supreme Court in Buzzard did not, even after the Civil War, ever
acquire the prominence of Aymette, and when cited it was simply for
its limited, uncontroversial holding, upholding a ban on carrying weapons
(398) Nevertheless, coming four years before Nunn, it
appears to have been the first judicial holding involving the Second
Amendment, and one judge's concurring opinion was the first appearance of
something suggesting a collective-right or quasi-collective-right view.
The reasoning of the leading opinion for the
2-1 court was similar to that of Aymette. The court addressed both
the Second Amendment and the 1836 Arkansas Constitution, which, like
Tennessee's, provided that "the free white men of this State shall have a
right to keep and bear arms for their common defense."
(399) Despite the textual differences between these two provisions
(in particular the Arkansas provision's "for their common defense" language),
the court treated them as the same.
(400) Much like Aymette, albeit without distinguishing
between "keep" and "bear," the court apparently recognized a right of
individuals but gave it a limited scope.
(401) The Arkansas court's post-war decisions confirmed that the
right secured by the Arkansas Constitution belonged to individuals and
included the right to bear arms for at least some private purposes.
The concurring opinion cited no history or
authority and, as far as we are aware, no court or even judge has ever cited
it in interpreting a right to bear arms, whether secured by the Second
Amendment or by any of the analogous provisions in state constitutions.
(403) It did not present what would now be considered a standard
collective-right or quasi-collective-right view. Whereas those views address
the limits of federal power to interfere with state law, Judge Dickinson
addressed the case from the opposite vantage point, stating the question as
whether the State's ban on carrying weapons concealed "interfere[s] with any
regulations made by Congress, as to the organizing, arming, or disciplining
the militia, or in the manner in which that militia are either to keep or bear
(404) In modern terminology, the judge seemed to recast the case as
turning on possible federal pre-emption of the state law. The Second
Amendment, in setting out what he described as "the power given the militia to
keep and bear arms," merely rephrased the express federal powers in Article I,
Section 8, Clause 16 of the Constitution, the Amendment being "but an
assertion of that general right of sovereignty belonging to independent
nations to regulate their military force."
(405) The Amendment thus did not add any protection of
state powers. That protection was implicit in Clause 16: "[T]he
States retain the power to legislate in relation to arms and the mode
of carrying and keeping them, provided its exercise is not repugnant to the
previous grant to the Federal Government. . . . Could Congress authorize any
and every person by express law, to carry deadly weapons concealed about his
person, when not composing one of the militia, and not a part of the
regulations ordained for their government?"
The dissenting opinion employed the general rule for interpreting prefaces
(discussed above in Part II.C.1), and the same reasoning as Rawle, Story, and
Nunn, to explain the relation of the Amendment's preface to the
right: "Now, I take the expressions 'a well regulated militia being necessary
for the security of a free State,' and the terms 'common defense,' to be the
reasons assigned for the granting of the right, and not a restriction or
limitation upon the right itself . . . . [W]hen was it contended before that
the reason given for the establishment of a right or its uninterrupted
enjoyment not only limited the right itself, but restrained it to a single
(407) Judge Lacy also pointed to the Second Amendment's reference to
a "free State": "To suppose that liberty cannot be in danger, except from a
foreign foe or internal disorder, is virtually to deny the importance and
necessity of written constitutions. . . . I cannot separate the political
freedom of the State from the personal rights of its citizens."
(408) He singled out the concurring opinion for granting the right
to "the militia alone," and only at "the discretion of the Legislature" - a
right "valueless and not worth preserving; for the State
unquestionably possesses the power, without the grant, to arm the militia and
direct how they shall be employed in cases of invasion or domestic
insurrection. . . . [W]hy give that which is no right in itself and guarantees
a privilege that is useless?"
(409) Finally, the dissent explained the right much as Blackstone
had, tying it to self-defense and pointing out that it was no more unlimited
than the freedoms of speech and press.
In sum, the activity of courts closest to the
Founding tends to reinforce what the text and history establish - that the
right secured by the Second Amendment belongs to individuals. No court
questioned the private right to keep arms, and most recognized the traditional
individual right to bear them. Two of the three state supreme courts to apply
the Second Amendment (Georgia and Louisiana) repeatedly recognized a private
right to bear arms for self-defense. The two cases taking the narrowest view
of the right (both in States whose constitutions had "common defense" clauses
in their right) were ignored, and even they recognized some manner of
individual right. Only in an opinion of a single judge, which was and has
continued to be ignored, did something like a quasi-collective- or
collective-right understanding appear, but even that opinion did not view the
Second Amendment as securing any right of States or of state (as opposed to
federal) militias. On balance, then, the cases before the Civil War, like the
first commentators, confirm that the text and history of the Second Amendment
support the individual-right view, not the collective-right or
As the Civil War ended in 1865, southern
governments enacted "black codes," which, among other things, either directly
prohibited the newly freed slaves from keeping and bearing arms or imposed
stringent permit systems. In addition, armed white mobs, sometimes including
the militias, frequently disarmed the freed blacks.
(411) Such practices, coupled with blacks' lack of citizenship,
prompted the Thirty-Ninth Congress to take several actions securing the rights
of the newly freed slaves and reaffirming the understanding that the right to
keep and bear arms was a personal right.
The first action was enactment of the Civil
Rights Act of 1866. One goal of many who sought its passage, noted by them and
lamented by their opponents, appears to have been to secure to freedmen the
Second Amendment's right to keep and bear arms. Both representatives and
senators highlighted disarmament of blacks and argued that the Act, by making
blacks citizens, would secure to them that right. Senator Trumbull, Chairman
of the Judiciary Committee and a sponsor of the Act, explained that it would
counteract those portions of the black codes that "prohibit any negro or
mulatto from having fire-arms."
(412) In the House, Representative Clarke quoted the Second
Amendment and declared, "I shall insist that the reconstructed rebels of
Mississippi respect the Constitution in their local laws"; he also decried
that newly formed southern governments had been "allowed to rob and disarm our
[black] veteran soldiers." Representative Raymond argued, in favor of the Act,
that making blacks citizens would give to them "every right which you or I
have," including "a right to bear arms."
The second congressional action was passage
of the Fourteenth Amendment in June 1866. Senator Pomeroy, in addressing an
early draft, listed as among the "safeguards of liberty . . . under our
Constitution" the right of "the freedman" to "bear arms for the defense of
himself and family and his homestead," even suggesting that Congress's power
to enforce the Thirteenth Amendment's ban on slavery might justify it in
protecting this right in the South.
(414) One of the Fourteenth Amendment's sponsors, in listing the
rights of citizenship that its Privileges or Immunities Clause would extend to
blacks, pointed to "the personal rights guaranteed and secured by the first
eight amendments of the Constitution; such as the freedom of speech and of the
press; . . . [and] the right to keep and to bear arms."
(415) The New York Times and other leading newspapers
reprinted these comments, including the reference to the Second Amendment, and
This history indicates that it was widely
recognized that the right to keep and bear arms was to be protected by the
Civil Rights Act and the Fourteenth Amendment, and that that right was
understood to belong to individuals. For example, Raoul Berger, even while
arguing against the view that the Fourteenth Amendment "incorporated" the Bill
of Rights to apply to the States, explains that "all are agreed" that the
Fourteenth Amendment aimed at least "to embody and protect" the Civil Rights
Act of 1866; he contends that the Act, in turn, "intended to confer on the
freedmen the auxiliary rights that would protect their 'life, liberty, and
property' - no more." He quotes Blackstone's listing of these three principal
rights and demonstrates Blackstone's prominence in the debates and in the
denunciations of the black codes.
(417) As explained above in Part III.A, Blackstone described five
"auxiliary rights," and the right of individuals to have and use arms for
their defense was one of them. Given the language of Section 1 of the Civil
Rights Act, it may be that States simply could not discriminate against blacks
in the right to keep and bear arms, not that the Second Amendment applied per
se, but the point remains that there was a consensus that the right in
question belonged to individuals and was a right against the state.
Were there any remaining doubt on this
question, Congress eliminated it a month after approving the Fourteenth
Amendment, when it renewed the Freedmen's Bureau over President Andrew
Johnson's veto. The act provided that wherever the courts were not open, or in
any State that had not been restored to the Union, various rights, largely
paralleling those in the Civil Rights Act, should "be secured to and enjoyed
by all the citizens . . . without respect to race or color, or previous
condition of slavery." Among these were "the right . . . to have full and
equal benefit of all laws and proceedings concerning personal liberty,
personal security, and the acquisition, enjoyment, and disposition of estate,
real and personal, including the constitutional right to bear
(419) The Congress thus not only enacted the understanding that the
Second Amendment protected an individual right, including the right to "bear"
arms, but also did so in a way that rested on Blackstone's exposition of the
individual right to arms as a critical auxiliary to the three primary
individual rights of life, liberty, and property.
Congress took the same view early in the
following year, demonstrating not only its understanding that the right
belonged to individuals but also the limited, indirect way in which it
protected the States' militias. Responding to the southern militias'
depredations against the freed blacks, Congress included in a bill, which the
President signed, a provision "[t]hat all militia forces now organized or in
service" in the States of the former Confederacy "be forthwith disbanded, and
that the further organization, arming, or calling into service of the said
militia forces, or any part thereof, is hereby prohibited."
(420) Significantly, the bill's sponsor had agreed to strike
"disarmed" after "disbanded," in the face of opposition from several
(northern) senators that to disarm the citizens from whom the militia was
drawn, rather than merely disbanding the militias, would violate the Second
(421) Congress's actions both in disbanding the southern States'
militias and in not disarming their citizens show that it understood the
Second Amendment right to protect individuals, not States or their militias.
(422) Thus, from the Founding through the Civil War, the
overwhelming understanding of the right of the people to keep and bear arms
was that it was a right that belonged to individuals.
As already suggested by our discussions above
of Andrews and cases citing Buzzard, the understanding of
the right to keep and bear arms as an individual right continued beyond the
Civil War and Reconstruction. Although we do not provide an exhaustive survey
of the post-war period, we find it significant that the modern alternative
views of the right did not take hold until the twentieth century, well over a
century after the Second Amendment was ratified. Before that, the views of the
leading constitutional-law scholar of the period, Thomas Cooley, were in
accord with his predecessors Tucker, Rawle, and Story, in recognizing an
individual right. And the Supreme Court, although making no holding regarding
the substance of the Amendment, suggested in dicta that it protected
an individual right.
Cooley's General Principles of
Constitutional Law, first published in 1880, gained a prominence
on the level of the works of his predecessors.
(423) As had the antebellum commentators, he espoused the
individual-right view of the Second Amendment. After quoting the Amendment,
noting that it was a "modification and enlargement from the English Bill of
Rights," and citing Tucker, Cooley added the following:
The Right is General. - It might be supposed from the
phraseology of this provision that the right to keep and bear arms was only
guaranteed to the militia; but this would be an interpretation not warranted
by the intent. . . . [I]f the right were limited to those enrolled [in the
militia, a number that the government could constrict], the purpose of this
guaranty might be defeated altogether by the action or neglect to act of the
government it was meant to hold in check. The meaning of the provision
undoubtedly is, that the people, from whom the militia must be taken, shall
have the right to keep and bear arms, and they need no permission or
regulation of law for the purpose. But this enables the government to have a
well-regulated militia; for to bear arms implies something more than the
mere keeping; it implies the learning to handle and use them in a way that
makes those who keep them ready for their efficient use; in other words, it
implies the right to meet for voluntary discipline in arms, observing in
doing so the laws of public order.
Cooley's rejection of any collective-right and quasi-collective-right view
is consistent with the understanding of the Amendment's prefatory clause that
is evident from the Founding and had been reiterated before the Civil War by
Rawle, Story, and Nunn. Even Cooley's heading echoed Rawle's
statement over fifty years earlier: "The prohibition is general."
(425) Cooley likewise treated both keeping and bearing as
private rights of citizens, and recognized that the right has limitations
("the laws of public order"), just as any other individual right does.
(426) Conversely, in discussing the Militia Clauses of Article I,
Section 8, in a separate part of his treatise, he made no mention of the
Cooley reiterated this individual-right
interpretation in his even more celebrated Treatise on the Constitutional
Limitations, first published in 1868.
(428) Among the clauses common in state constitutions, he explained,
were "[t]hose declaratory of the fundamental rights of the citizen," among
which were freedom of speech and of the press and "that every man may bear
arms for the defence of himself and the State."
(429) In a later chapter he included the right among the "the
constitutional protections to personal liberty": "Among the other defences to
personal liberty should be mentioned the right of the people to keep and bear
arms." He explained the right's English origins, noted the importance for a
"well-regulated militia" of "the people" being "trained to bearing arms,"
praised the lack of legislation "regulat[ing] this right," and cited
Bliss, Nunn, and a case concerning the right of
(430) Finally, in elsewhere explaining the scope of a State's
concurrent power to organize and discipline the militia, Cooley simply cited
Houston v. Moore, not mentioning the Second
(431) Like the Court, he apparently did not see the Amendment as
relevant to the scope of the State's power to maintain a militia.
The Supreme Court did not address the
substance of the Second Amendment during this period, because of its view that
the Bill of Rights, including the Second Amendment, did not apply to the
(432) In Robertson v. Baldwin, however,
the Court invoked the history of, and limitations on, the various rights in
the Bill of Rights, including the Second Amendment, to illustrate and defend a
holding regarding the limitations on the Thirteenth Amendment's ban on
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. 1)
does not permit the publication of libels, blasphemous or indecent articles,
or other publications injurious to public morals or private reputation;
[and] the right of the people to keep and bear arms (art. 2) is not
infringed by laws prohibiting the carrying of concealed weapons . . . .
The Court added similar illustrations from the Fifth and Sixth Amendments.
The Court thus suggested that the Second Amendment protected an individual
right, both by treating it in parallel with the individual rights in the rest
of the Bill of Rights and by pointing to the right's English origins.
Not until 1905 was a view rejecting the
individual-right view truly born, and then in a decision interpreting not the
Second Amendment but rather a provision in a state constitution. In City
of Salina v. Blaksley, the Kansas Supreme Court held
that a clause in the Kansas Bill of Rights, providing that "'[t]he people have
the right to bear arms for their defence and security,'" referred only "to the
people as a collective body" and dealt "exclusively with the military.
Individual rights are not considered in this section." Rather, the "people
shall exercise this right" through the power of their legislature,
set out in the body of the state constitution, to organize, equip, and
discipline the militia. The right extended "only to the right to bear arms as
a member of the state militia, or some other military organization provided
for by law."
(434) The court seems to have been influenced by a provision in the
state constitution admonishing against standing armies in time of peace, and
praising civilian control of the military, that immediately followed the text
of the right.
(435) The court also, without citing historical authority and with
little explanation, pointed to the Second Amendment as analogous and
reinforcing its reading.
(436) Salina's novelty was not missed. One state supreme
court soon after, in a survey reaching back to Bliss, Reid,
Nunn, and Aymette, described Salina as having gone
"further than any other case" by holding that the right to bear arms in the
Kansas Constitution imposed no limit on the legislature's power to prohibit
private individuals from carrying arms.
For the foregoing reasons, we conclude that
the Second Amendment secures an individual right to keep and to bear arms.
Current case law leaves open and unsettled the question of whose right is
secured by the Amendment. Although we do not address the scope of the right,
our examination of the original meaning of the Amendment provides extensive
reasons to conclude that the Second Amendment secures an individual right, and
no persuasive basis for either the collective-right or quasi-collective-right
views. The text of the Amendment's operative clause, setting out a "right of
the people to keep and bear Arms," is clear and is reinforced by the
Constitution's structure. The Amendment's prefatory clause, properly
understood, is fully consistent with this interpretation. The broader history
of the Anglo-American right of individuals to have and use arms, from
England's Revolution of 1688-1689 to the ratification of the Second Amendment
a hundred years later, leads to the same conclusion. Finally, the first
hundred years of interpretations of the Amendment, and especially the
commentaries and case law in the pre-Civil War period closest to the
Amendment's ratification, confirm what the text and history of the Second
Please let us know if we may provide further
Steven G. Bradbury
Deputy Assistant Attorney General
Howard C. Nielson, Jr.
Assistant Attorney General
C. Kevin Marshall
Assistant Attorney General
1 See, e.g., United
States v. Emerson, 270 F.3d 203, 220, 260 (5th Cir.
2 See, e.g.,
Silveira v. Lockyer, 312 F.3d 1052, 1060-61,
1086-87 (9th Cir. 2002), cert. denied, 124 S. Ct. 803 (2003).
3 Emerson, 270 F.3d at 219 (describing
intermediate view); see also, e.g., Cases
v. United States, 131 F.2d 916, 923 (1st Cir. 1942).
4 See, e.g., United
States v. Parker, 362 F.3d 1279, 1283 (10th Cir. 2004).
5 Memorandum for United States Attorneys from
the Attorney General, Re: United States v.
Emerson (Nov. 9, 2001) (quoting Emerson, 270 F.3d at 260),
reprinted in Brief for the United States in Opposition, app.,
Emerson v. United States, 536 U.S. 907 (2002)
(denying certiorari). You added that the Department of Justice "can and will
continue to defend vigorously the constitutionality, under the Second
Amendment, of all existing federal firearms laws."
6 307 U.S. 174 (1939).
7 Ch. 757, 48 Stat. 1236.
8 See National Firearms Act: Hearings on
H.R. 9066 Before the House Comm. on Ways and Means, 73d Cong. 90
(1934) (statement of Ass't Atty. Gen. Keenan); United States
v. Lopez, 2 F.3d 1342, 1348 (5th Cir. 1993), aff'd,
514 U.S. 549 (1995).
9 307 U.S. at 175-77.
10 Id. at 178 (citing
Aymette v. State, 21 Tenn. (2 Hum.) 154, 158
(1840)). We discuss Aymette below in Part IV.B.2.
12 Id. at 179; see id. at
179-82 (describing militia regulations, including arms requirements).
13 See below, Parts II.C (discussing
Second Amendment's preface), III.B-C (discussing Founders' recognition that
the individual right to arms furthered the citizen militia), IV.A (discussing
early commentators), IV.B.2 (discussing early cases), IV.D (discussing views
of Thomas Cooley soon after Civil War).
14 Later opinions of the Supreme Court appear
to accept the individual-right view, at least in dicta, although none
is dispositive. In Johnson v. Eisentrager, 339 U.S.
763 (1950), the Court rejected a claim that the Fifth Amendment's
criminal-procedure protections applied to nonresident enemy aliens by pointing
out, among other things, that a contrary view would require also applying the
"companion civil-rights Amendments" in the Bill of Rights, including the
Second Amendment. Id. at 784 ("[D]uring military occupation
irreconcilable enemy elements, guerrilla fighters, and 'werewolves' could
require the American Judiciary to assure them freedoms of speech, press, and
assembly as in the First Amendment, right to bear arms as in the Second,
security against 'unreasonable' searches and seizures as in the Fourth, as
well as rights to jury trial as in the Fifth and Sixth Amendments."). In
Konigsberg v. State Bar of Cal., 366 U.S. 36
(1961), the Court, citing Miller, again equated the Second Amendment
right with the rights secured by the First Amendment. Id. at 49
n.10. More recent cases have assumed an individual right in
dicta by listing the Second Amendment right among the personal rights
composing the "liberty" that the Constitution's due-process provisions
protect. See Planned Parenthood v. Casey, 505 U.S.
833, 847 (1992); Moore v. City of East Cleveland,
431 U.S. 494, 502 (1977) (plurality opinion) (quoting Poe v.
Ullman, 367 U.S. 497, 542-43 (1961) (Harlan, J., dissenting));
id. at 542 (White, J., dissenting) (same as plurality). But
see Adams v. Williams, 407 U.S. 143, 150
(1972) (Douglas, J., dissenting) ("A powerful lobby dins into the ears of our
citizenry that these gun purchases are constitutional rights protected by the
Second Amendment," but "[t]here is no reason why all pistols should not be
barred to everyone except the police."). The Court in Lewis v.
United States, 445 U.S. 65 (1980), rejected an equal-protection
challenge to a prohibition against felons possessing firearms. In a
one-sentence footnote explaining why it was applying rational-basis review,
the Court stated that such a prohibition is not "based upon constitutionally
suspect criteria" and does not "trench upon any constitutionally protected
liberties." Id. at 65 n.8. Although this language is consistent with
the view that the Second Amendment does not secure a right of individuals, it
is also consistent with the traditional understanding of the individual-right
view that the liberty protected by the Second Amendment does not extend to
convicted felons. See infra notes 19 & 29, and the discussions
15 131 F.2d 916, 922 (1st Cir. 1942).
16 Id. at 923.
17 131 F.2d 261, 266 (3d Cir. 1942), rev'd
on other grounds, 319 U.S. 463 (1943).
18 Id. The same ground appears to
have been available in Cases. See Cases, 131 F.2d
at 919 n.1.
19 Regarding violent felons, although the case
involved possession, the court relied on authority for regulating the
bearing of arms (banning carrying weapons concealed or to the terror
of the people). For more on-point authority, see proposals made
during the ratifying conventions, discussed below in Part III.C.1, and
Emerson, 270 F.3d at 226 n.21; cf. Lewis, 445 U.S.
at 65 n.8 (rejecting equal-protection challenge to prohibition of felon
possessing a firearm); Richardson v. Ramirez, 418 U.S. 24,
53-55 (1974) (holding constitutional the disenfranchisement of convicted
felons who had completed their sentences and paroles).
20 131 F.2d at 266. The court cited some
history from the Founding Era, which we address in Part III.C.1.
21 We have not conducted a review of the
Government's litigating positions in the numerous firearms cases since
Miller. In its brief in Miller, the Government made two
alternative arguments. The first was consistent with a quasi-collective-right
view. See Brief for United States at 9-18, United States v.
Miller, 307 U.S. 174 (1939) (No. 696). The second (which the Court
adopted) was consistent with either a quasi-collective- or individual-right
view. See id. at 18-20. Its present litigating position appears to be
consistent with your 2001 memorandum to U.S. Attorneys endorsing the
individual-right view. See, e.g., United States
v. Lippman, 369 F.3d 1039, 1045 (8th Cir. 2004) (Colloton,
J., concurring in part and concurring in the judgment).
22 Property Requisition Act, ch. 445, 1, 55
Stat. 742, 742.
23 Memorandum for Lawrence E. Walsh, Deputy
Attorney General, from Paul A. Sweeney, Acting Assistant Attorney General,
Office of Legal Counsel, Re: H.R. 232, 86th Cong., 1st Sess., a
bill "To provide for the securing of custody and disposition by the United
States of missiles, rockets, earth satellites, and similar devices adaptable
to military uses, and for other purposes," at 1-2 (Apr. 9, 1959)
24 See Memorandum for Byron R. White,
Deputy Attorney General, from Nicholas deB. Katzenbach, Assistant Attorney
General, Office of Legal Counsel, Re: H.R. 2057, a bill to
provide for the securing of custody and disposition by the United States of
missiles, rockets, earth satellites, and similar devices adaptable to military
use (May 8, 1961); Memorandum for White, from Katzenbach, Re:
Proposed report of the Department of Defense on H.R. 2057 "To provide for
the securing of custody and disposition by the United States of missiles,
rockets, earth satellites and similar devices adaptable to Military uses, and
for other purposes," at 1 (Mar. 22, 1962).
25 See Federal Firearms Act: Hearings
Before the Subcomm. to Investigative Juvenile Delinquency of the Senate Comm.
on the Judiciary, 89th Cong. 40-41 (1965) (statement of Attorney General
Katzenbach). For subsequent treatment of the Second Amendment, see,
e.g., Memorandum for Richard G. Kleindienst, Deputy Attorney General,
from William H. Rehnquist, Assistant Attorney General, Office of Legal
Counsel, Re: Proposed "Federal Gun Registration and Licensing Act of
1969" (Feb. 19, 1969) (in one-sentence discussion, citing Miller
and Tot to find no "serious legal obstacle" under Amendment to
proposal for federal registration of firearms and limited federal licensing);
Memorandum for D. Lowell Jensen, Assistant Attorney General, Criminal
Division, from Theodore B. Olson, Assistant Attorney General, Office of Legal
Counsel, Re: Proposed Legislation Relating to Firearms and to Mandatory
Sentencing, at 2 (May 27, 1981) (citing Miller as basis for
"perceiv[ing] no basis for suggesting that the [1968 Gun Control] Act so
interferes with the powers of the States to raise militias as to transgress
the Second Amendment"); Firearm Owners' Protection Act, Pub. L. No. 99-308,
1(b), 100 Stat. 449, 449 (1986), 18 U.S.C. 921 note (2000) (law signed by
President Reagan that recognized "the right[ ] of citizens . . . to
keep and bear arms under the second amendment.").
26 Pub. L. No. 90-351, 82 Stat. 197.
27 See, e.g., Love
v. Pepersack, 47 F.3d 120, 122-24 (4th Cir. 1995);
United States v. Warin, 530 F.2d 103, 105-07, 108
(6th Cir. 1976) (dismissing "the erroneous supposition that the Second
Amendment is concerned with the rights of individuals rather than those of the
States" and rejecting claim involving gun admittedly bearing reasonable
relationship to preservation or efficiency of the army); Gillespie
v. City of Indianapolis, 185 F.3d 693, 710-11 (7th Cir.
1999); Hickman v. Block, 81 F.3d 98, 99-102 (9th
Cir. 1996). The Third Circuit's present position is at least the
quasi-collective-right view, if not the collective-right view. See
United States v. Rybar, 103 F.3d 273, 286 (3d Cir.
28 See, e.g., United
States v. Hale, 978 F.2d 1016, 1019-20 (8th Cir. 1992);
United States v. Oakes, 564 F.2d 384, 387 (10th
Cir. 1977); United States v. Wright, 117 F.3d 1265,
1272-74 (11th Cir. 1997), vacated in part on other grounds, 133 F.3d
1412 (1998). These courts make clear that the right under the
quasi-collective-right view protects only members of organized militia units
such as the National Guard, not members of the "militia" defined more broadly.
Oakes, for example, rejected a claim based on the defendant's
membership in the Kansas militia, which consisted of all able-bodied men
between twenty-one and forty-five. 564 F.2d at 387; see also Wright,
117 F.3d at 1271-74 (similar); Hale, 978 F.2d at 1020 (similar);
Warin, 530 F.2d at 105, 106, 108 (similar).
29 See, e.g., United States
v. Baer, 235 F.3d 561, 564 (10th Cir. 2000);
Gillespie, 185 F.3d at 710-11; Marchese v.
California, 545 F.2d 645, 646 (9th Cir. 1976); United States
v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974) (per
curiam); Cody v. United States, 460 F.2d 34,
35-37 (8th Cir. 1972); Stevens v. United States,
440 F.2d 144, 149 (6th Cir. 1971); United States v.
Synnes, 438 F.2d 764, 766 (8th Cir. 1971), vacated on other
grounds, 404 U.S. 1009 (1972). Courts have recognized that such holdings
could be consistent with an individual-right view. See United States
v. Price, 328 F.3d 958, 961 (7th Cir. 2003); supra
note 19 (discussing Tot); cf. Emerson, 270 F.3d at
261 (upholding prohibition on possession of firearm by person subject to
domestic-violence restraining order by concluding that Amendment protected an
individual right but finding no violation); Lippman, 369 F.3d at
1044-45 (Colloton, J.) (similar).
30 See Hickman, 81 F.3d at
99-103; Thomas v. Members of City Council of
Portland, 730 F.2d 41, 42 (1st Cir. 1984) (per curiam). Courts
have recognized that such holdings also could be consistent with an
individual-right view. See Parker, 362 F.3d at 1285-86
(Kelly, J., concurring) (arguing for upholding conviction on narrower ground
that case involved reasonable restriction on concealed weapons, and
criticizing circuit courts, in interpreting Second Amendment, for ignoring
"the universal admonition to decide constitutional issues narrowly"); Part
IV.B.2, below (discussing cases recognizing individual right but rejecting
right to carry concealed weapons).
31 Silveira, 312 F.3d at 1063-64
32 For a symposium of articles spanning the
views, see The Second Amendment Today: Historical and
Contemporary Perspectives on the Constitutionality of Firearms
Regulation, 29 N. Ky. L. Rev. 643 (2002), and for articles critical of
the individual-right view, see Symposium on the Second Amendment:
Fresh Looks, 76 Chi.-Kent L. Rev. 3 (2000). See also, e.g.,
Garry Wills, A Necessary Evil: A History of American Distrust of
Government 207-21, 256-60 (1999); Andrew D. Herz, Gun Crazy:
Constitutional False Consciousness and Dereliction of Dialogic
Responsibility, 75 B.U. L. Rev. 57 (1995); Richard M. Aborn, Essay,
The Battle Over the Brady Bill and the Future of Gun Control
Advocacy, 22 Fordham Urb. L.J. 417 (1995); Carl T. Bogus, Essay,
Race, Riots, and Guns, 66 S. Cal. L. Rev. 1365 (1993); Dennis A.
Henigan, Arms, Anarchy and the Second Amendment, 26 Val. U. L. Rev.
107 (1991); Wendy Brown, Comment, Guns, Cowboys, Philadelphia Mayors, and
Civic Republicanism: On Sanford Levinson's The Embarrassing Second
Amendment, 99 Yale L.J. 661 (1989); Keith A. Ehrman & Dennis A.
Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your
Militia Lately?, 15 U. Dayton L. Rev. 5 (1989); Samuel Fields, Guns,
Crime and the Negligent Gun Owner, 10 N. Ky. L. Rev. 141 (1982); Warren
Spannaus, State Firearms Regulation and the Second Amendment, 6
Hamline L. Rev. 383 (1983); cf. David Yassky, The Second
Amendment: Structure, History, and Constitutional Change, 99 Mich. L.
Rev. 588 (2000); David C. Williams, Civic Republicanism and the Citizen
Militia: The Terrifying Second Amendment, 101 Yale L.J. 551, 554-55
33 See, e.g., Laurence H.
Tribe, 1 American Constitutional Law 900 & 902 n.221 (3d ed.
2000); Nelson Lund, The Ends of Second Amendment Jurisprudence: Firearms
Disabilities and Domestic Violence Restraining Orders, 4 Tex. Rev. L.
& Pol. 157 (1999); Leonard W. Levy, Origins of the Bill of Rights
134 (1999); Ronald S. Resnick, Private Arms as the Palladium of Liberty:
The Meaning of the Second Amendment, 77 U. Det. Mercy L. Rev. 1 (1999);
Brannon P. Denning, Gun Shy: The Second Amendment as an "Underenforced
Constitutional Norm," 21 Harv. J.L. & Pub. Pol'y 719 (1998); L.A.
Powe, Jr., Guns, Words, and Constitutional Interpretation, 38 Wm.
& Mary L. Rev. 1311 (1997); Nelson Lund, The Past and Future
of the Individual's Right to Arms, 31 Ga. L. Rev. 1 (1996); Randy E.
Barnett & Don B. Kates, Under Fire: The New Consensus on the Second
Amendment, 45 Emory L.J. 1139 (1996); Glenn Harlan Reynolds & Don B.
Kates, The Second Amendment and States' Rights: A Thought Experiment,
36 Wm. & Mary L. Rev. 1737 (1995); David B. Kopel, It Isn't About Duck
Hunting: The British Origin of the Right to Arms, 93 Mich. L. Rev. 1333,
1355 (1995); William Van Alstyne, Essay, The Second Amendment and the
Personal Right to Arms, 43 Duke L.J. 1236; Joyce Lee Malcolm, To Keep
and Bear Arms: The Origins of an Anglo-American Right (1994); Clayton E.
Cramer, For the Defense of Themselves and the State: The Original Intent
and Judicial Interpretation of the Right to Keep and Bear Arms (1994);
Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J.
1131, 1162-68 (1991); Robert J. Cottrol & Raymond T. Diamond, The
Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo.
L.J. 309 (1991); Sanford Levinson, Comment, The Embarrassing Second
Amendment, 99 Yale L.J. 637 (1989); Nelson Lund, The Second
Amendment, Political Liberty, and the Right to Self-Preservation, 39 Ala.
L. Rev. 103 (1987); David T. Hardy, Armed Citizens, Citizen Armies: Toward
a Jurisprudence of the Second Amendment, 9 Harv. J.L. & Pub. Pol'y
559 (1986); Don B. Kates, Jr., The Second Amendment: A Dialogue, 49
Law & Contemp. Probs. 143 (Winter 1986); Stephen P. Halbrook, That
Every Man Be Armed: The Evolution of a Constitutional Right (1984); Don
B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second
Amendment, 82 Mich. L. Rev. 204 (1983); see also Printz
v. United States, 521 U.S. 898, 938 n.2 (1997) (Thomas., J.,
concurring) (noting "growing body of scholarly commentary indicat[ing] that
the [right]" is a personal one); Emerson, 270 F.3d at 220 (similar).
34 270 F.3d at 227-60.
35 312 F.3d at 1060-87.
36 Silveira v.
Lockyer, 328 F.3d 567, 570 (9th Cir.) (Kleinfeld, J., joined by
Kozinski, O'Scannlain, and T.G. Nelson, JJ., dissenting from denial of
rehearing en banc), cert. denied, 124 S. Ct. 803 (2003);
see 328 F.3d at 568 (Pregerson, J., same); id. at 568
(Kozinski, J., same); id. at 592 (Gould, J., joined by Kozinski, J.,
same). For other recent opinions of Ninth Circuit judges endorsing the
individual-right view and criticizing Silveira, see Nordyke,
319 F.3d at 1195 (Gould, J., concurring); Nordyke v. King, 364 F.3d
1025, 1025 (9th Cir. 2004) (Kleinfeld, J., dissenting from denial of rehearing
en banc); id. at 1026 (Gould, J., joined by O'Scannlain,
Kleinfeld, Tallman, and Bea, JJ., same).
37 For example, Article II of the Articles of
Confederation, drafted a decade before the Constitution, reserved to each
State "every power, jurisdiction, and right" not expressly delegated to the
38 In addition, the Copyright and Patent
Clause authorizes Congress to grant an "exclusive Right" to authors and
inventors for a limited time. U.S. Const. art. I, 8, cl. 8.
39 See., e.g., U.S. Const. art. I,
1; art. I, 8; art. II, 1; art. III, 1; amend. X.
40 United States v. Verdugo-Urquidez,
494 U.S. 259, 265 (1990); see also id. at 279 (Stevens, J.,
concurring in judgment) ("aliens who are lawfully present in the United States
are among those 'people' who are entitled to the protection of the Bill of
Rights, including the Fourth Amendment"); id. at 287-88 (Brennan, J.,
dissenting) (similar; contending that "'the people'" is broader than
"'citizens,' 'freemen,' 'residents,' or 'the American people.'"). The Ninth
Circuit in Silveira did not discuss the "right of the people" in the
Second Amendment, and it disregarded Verdugo-Urquidez except to cite
its analysis of "the people" as an analogy in support of its own reading of
"Militia." See 312 F.3d at 1069-70 & n.25, 1071 & n.27. While
recognizing that "[t]he question . . . is not whether arms may be kept, but by
whom and for what purpose," id. at 1074, the court in
Silveira did not consider that the "who[ ]" might be "the people" to
whom the Second Amendment's text - like that of the First, Fourth, and Ninth -
expressly gives the right.
41 Thomas M. Cooley, The General
Principles of Constitutional Law in the United States of America 267-68
(1880; reprint 2000) (emphasis added).
42 Of course the "people" might choose to
exercise those individual rights in groups rather than alone, as in the First
Amendment right to assemble and petition, but that does not make their rights
"collective" or quasi-collective in the sense of depending on the will or
actions of a State or on one's service to it.
43 U.S. Const. art. I, 8, cls. 15-16; art.
II, 2, cl. 1.
44 The last quotation is from the
Constitutional Convention's resolution transmitting the proposed Constitution
to the Congress. 2 The Records of the Federal Convention of 1787, at
665 (Max Farrand ed., rev. ed. 1966). This distinction between the "people"
and the government is why the Founders insisted that the Constitution be
ratified by popularly elected special conventions rather than by the state
governments, to ensure its supremacy over those governments. See The
Federalist No. 39, at 253-54 (J. Madison) (Jacob E. Cooke, ed.
1961); James Madison, Notes of Debates in the Federal Convention of
1787, at 70 (1987) (remarks of Madison, June 5); id. at 348-49
(remarks of George Mason and Edmund Randolph, July 23); id. at 352-53
(remarks of Madison).
45 Those who reject the individual-right view
tend to neglect "keep" or to treat it as redundant with "bear." In
Silveira, the court found it "not clear" why the word "was included
in the amendment" and concluded by summarizing the Amendment as merely
protecting a right to "'bear arms'" in conjunction with militia service. 312
F.3d at 1074, 1086. See also Michael C. Dorf, What Does the
Second Amendment Mean Today?, 76 Chi.-Kent L. Rev. 291, 317 (2000)
(contending without citation that "keep and bear" is "a unitary phrase," with
"keep" adding nothing to "bear," but admitting possibility that "the plain
meaning of 'keep' would have been sufficient to connote an individual right");
H. Richard Uviller & William G. Merkel, The Second Amendment in
Context: The Case of the Vanishing Predicate, 76 Chi.-Kent L. Rev. 403,
424-25, 508, 549-50, 593 (2000) (similar).
46 2 Strange Rep. 1098, 1098 (applying 5 Ann.,
c. 14 (1706)); see Rex v. Gardner, 87 Eng. Rep.
1240, 7 Mod. Rep. 279 (K.B. 1739) (apparently later case, but similar);
id. at 1241 (defendant, arguing that "to charge only that he kept a
gun is improper, for it includes every man that keeps a gun," and that guns
are kept "for the defence of a man's house"); id. (Lee, C.J.) (words
of statute "do not extend to prohibit a man from keeping a gun for his
necessary defence"); id. (Probyn, J.) ("farmers are generally obliged
to keep a gun, and are no more within the Act for doing so than they are for
keeping a cabbage-net").
47 Mallock v.
Eastly, 87 Eng. Rep. 1370, 1374, 7 Mod. Rep. 482 (C.P. 1744).
48 Wingfield v.
Stratford, 96 Eng. Rep. 787, 787, Sayer Rep. 15 (K.B. 1752).
49 King v. Silcot,
87 Eng. Rep. 186, 186, 3 Mod. Rep. 280 (K.B. 1690) (italics omitted)
(interpreting 33 Hen. VIII, c. 6 (1541), and quashing indictment because it
did not specifically allege that defendant's income was insufficient when he
kept the gun).
50 4 Blackstone at *182. The qualification to
which Blackstone refers is a wealth requirement tied to the game laws,
see id. at *174-75, which we discuss in Part III.A,
below, and elsewhere. Regarding Blackstone's influence and authority, see,
e.g., Madison, Notes of Debates at 547 (remarks of Dickenson,
Aug. 29); Federalist No. 69, at 465 n.* (A. Hamilton) & No.
84, at 577 (Hamilton); Malcolm, To Keep and Bear at
130; Schick v. United States, 195 U.S. 65, 69 (1904). Edmund
Burke informed Parliament that "they have sold nearly as many of Blackstone's
Commentaries in America as in England." Speech concerning Resolutions for
Conciliation with the Colonies (Mar. 22, 1775), in Edmund Burke,
Pre-Revolutionary Writings 206, 225 (Ian Harris ed., 1993).
51 4 Blackstone at *56; see id.
(person barred from "keeping arms in his house"). See 1 W. & M.,
Sess. 1, c. 15, 4 (1689) ("no papist . . . shall or may have or keep in his
house, or elsewhere, or in the possession of any other person to his use, or
at his disposition, any arms, weapons, gunpowder, or ammunition").
52 Kates, 82 Mich. L. Rev. at 215, 219.
53 We discuss this proposal below in Part
54 Commonwealth v.
Blanding, 20 Mass. (3 Pick.) 304, 338 (1825).
55 Samuel Johnson, A Dictionary of the
English Language (1755) (unpaginated). See Noah Webster, An
American Dictionary of the English Language (1828) (unpaginated)
(defining "Keep" first as "To hold; to retain in one's power or possession").
56 See Stephen P. Halbrook, A
Right to Bear Arms: State and Federal Bills of Rights and Constitutional
Guarantees 94 (1989) (contending that "common linguistic usage of the day
. . . referr[ed] to the depositing of public arms in an
arsenal, in contrast with the keeping of private arms by the people,"
and providing an example of the former usage in a 1789 state statute); cf.
U.S. Const. art. I, 10, cl. 3 ("No State shall . . . keep
Troops" without Congress's consent) (emphasis added). When members of a
militia, as opposed to the people in general, retained their own arms for
militia service, common usage seems to have been to speak of them "providing"
themselves with weapons, see Militia Act, ch. 33, 1, 1 Stat. 271
(1792); Thomas Jefferson, Notes on the State of Virginia 88 (William
Peden ed., 1982); 1 The Papers of George Mason, 1725-1792, at 212
(Robert A. Rutland ed., 1970), although we do not mean to claim that one could
not speak of militiamen "keeping" arms for militia use.
57 Johnson, Dictionary (unpaginated).
58 See id. (defining "bear"
as to "carry as a burden," "convey or carry," "carry as a mark of authority"
(such as a sword), "carry as a mark of distinction" (such as to "bear
arms in a coat"), and "carry as in show"); Webster, American
Dictionary (unpaginated) (defining "bear" as to "support," "sustain,"
"carry," "convey," "support and remove from place to place," "wear," and "bear
as a mark of authority or distinction; as, to bear a sword, a badge,
a name; to bear arms in a coat").
59 In Muscarello v.
United States, 524 U.S. 125 (1998), which involved a statute, the
Court was unanimous in understanding "bear arms" to refer generally to a
person carrying arms upon his person for the purpose of being armed and ready
for offensive or defensive action, the dissent citing the Second Amendment in
support of this view. The majority gave "carries a firearm" a broader meaning.
Id. at 130; id. at 139-40, 143 (Ginsburg, J., dissenting).
60 See, e.g., Kates, 82
Mich. L. Rev. at 219 (explaining that, in early colonial statutes, "'bear' did
generally refer to the carrying of arms by militiamen"); St. George Tucker, 2
Blackstone's Commentaries *408-09 n.1 (1803; reprint 1996)
("Tucker's Blackstone") (discussing Virginia law exempting from
militia duty those "religiously scrupulous of bearing arms"); The Declaration
of Independence para. 28 (1776) ("He has constrained our fellow Citizens taken
Captive on the high Seas to bear Arms against their country."). Militia
service was not, however, limited to "military" action. The Constitution
speaks of using the militia "to execute the Laws of the Union," which is
distinct from both "repel[ling] Invasions" and "suppress[ing] Insurrections."
U.S. Const. art. I, 8, cl. 15.
61 Quoted in Malcolm, To Keep and
Bear at 139.
62 2 The Papers of Thomas Jefferson
443-44 (Julian P. Boyd ed., 1950). Concerning the Committee of Revisors,
see id. at 305; 1 Tucker's Blackstone, Note
F, at 444-45.
63 These are collected, through the Michigan
Constitution of 1835, in Emerson, 270 F.3d at 230 n.29. We discuss
the Pennsylvania and Vermont constitutions below in Part III.B.2. For an 1822
judicial interpretation confirming the plain meaning of the Kentucky provision
as granting an individual right, see below, Part IV.B.1. Regarding
ratification of the Bill of Rights, see below, Part III.C.2.
64 "Legality of the London Military
Foot-Association" (July 24, 1780), reprinted in William Blizard,
Desultory Reflections on Police: With an Essay on the Means of Preventing
Crimes and Amending Criminals 59, 59 (London 1785) (emphasis omitted).
Regarding this opinion, which was "of wide interest," Leon Radzinowicz, 4
A History of English Criminal Law 107 (1968), see id. at
107-10; Malcolm, To Keep and Bear at 133-34; and our further
discussion below in Part III.A. Regarding the Recorder, see 1
Blackstone at *76; 3 id. at *80-81 n.i; id. at *334; John H.
Langbein, Shaping the Eighteenth-Century Criminal Trial: A View from the
Ryder Sources, 50 U. Chi. L. Rev. 1, 8, 17-19, 34-36 (1983).
65 This essay by Tench Coxe is discussed below
in Part III.C.2.
66 Joseph Story, Commentaries on the
Constitution of the United States 980, at 695 (Ronald D. Rotunda &
John E. Nowak eds., 1987) (1833) ("Abridgement"). The English right
is discussed below in Part III.A.
67 See Bernard Schwartz, 2 The
Bill of Rights: A Documentary History 665, 672 (1971). We discuss the
Pennsylvania Convention, including the Report and its critics,
in Part III.C.1, below. Regarding the Report's wide circulation,
see id. at 628; 2 The Documentary History of the
Ratification of the Constitution 617 (Merrill Jensen ed., 1976)
("Doc. Hist.") (note); 15 Doc. Hist. at 7-10 (John P.
Kaminski & Gaspare J. Saladino eds., 1984) (note).
68 In addition, the Second Amendment's
reference to "Arms" in the context of "keep" and "bear" reinforces our view
that it protects an individual right. The mere word "Arms" could denote any
weapon, including artillery. See Webster, American
Dictionary (unpaginated) (defining "arms" as "Weapons of offense, or
armor for defense and protection of the body" and including explanation of
"Fire arms" as "such as may be charged with powder, as cannon,
muskets, mortars &c."; also defining the verb "arm" as including "[t]o
furnish with means of defense; to prepare for resistance; to fortify");
Johnson, Dictionary (unpaginated) (defining "arms" as "Weapons of
offence, or armour of defence"). Certainly Congress's power in Article I,
Section 8, Clause 16 to provide for "arming" the militia includes such
weapons, particularly given that the Constitution contemplates that the States
will use militias to defend themselves against surprise invasions.
See U.S. Const. art. I, 10, cl. 3 ("No State shall, without the
Consent of Congress, . . . keep Troops, . . . or engage in War, unless
actually invaded, or in such imminent Danger as will not admit of delay.");
Militia Act 4, 1 Stat. 271, 272 (1792) (requiring each division of State's
militia to have a company of artillery and troop of horse). If the Second
Amendment protected a state prerogative to have organized and effective
militias, one would expect it to protect all of the arms essential for that
purpose, including artillery. Yet its text suggests that the "Arms" that it
protects do not include those that "the people" could not both "keep" and
"bear" - those that an individual could not store and carry. This use of
"Arms" points toward an individual-right view rather than a right of States to
have select "militias," and it also seems more consistent with an
individual-right than a quasi-collective-right view, as the latter requires
that the "militia" of which the claimant is a member be fully organized and
equipped. See, e.g., United States v.
Parker, 362 F.3d 1279, 1283 (10th Cir. 2004).
69 This rule assumes that the legislature
incorporated the declaration during the ordinary legislative process, not
adopting it separately (with little consideration) or leaving it to others to
insert. Norman J. Singer, 2A Sutherland on Statutory
Construction 47.04, at 220 & 223 (6th ed. 2000); see James
Kent, 1 Commentaries on American Law 516 (9th ed. 1858) (noting that
titles and preambles "generally . . . are loosely and carelessly
inserted, and are not safe expositors of the law"); see also
King v. Williams, 96 Eng. Rep. 51, 52, 1 Blackst.
Rep. 93 (K.B. 1758) ("The conciseness of the title shall not control the body
of the Act. The title is no part of the law; it does not pass with the same
solemnity as the law itself. One reading is often sufficient for it."); Thomas
Jefferson, A Manual of Parliamentary Practice for the Use of the Senate of
the United States 41 (1801; reprint 1993) (noting desirability that
preamble "be consistent with" a bill but possibility that it may not be,
because of legislative procedures).
70 Examples of both include the statutes
discussed or cited below in Part III.A. See, e.g., the
Militia Act of 1662, 13 & 14 Car. II, c. 3, 1, 3, 14, 20; the Game Act
of 1671, 32 & 33 Car. II, c. 25, 1, 2, 4, 5, 6, 7; the Act to Disarm
Papists, 1 W. & M., Sess. 1, c. 15, 1, 4 (1689); the Bill of Rights, 1
W. & M., Sess. 2, c. 2, 1, 9 (1689); the Game Act of 1692, 4 & 5 W.
& M., c. 23, 1, 3, 4, 5, 7, 10; the act repealing the ban on hail-shot,
6 & 7 Will. III, c. 13, 1, 3 (1695); and the Game Act of 1706, 5 Ann.,
c. 14, 1, 3, 5.
71 Copeman v.
Gallant, 24 Eng. Rep. 404, 407, 1 P. Wms. Rep. 314 (Ch. 1716);
id. at 405 (quoting statute) (emphases added); see
Singer, 2A Sutherland 47.04, at 220 ("Copeman . . .
established the rule that the preamble could not be used to restrict the
effect of the words used in the purview."). In Ryall v.
Rolle, 26 Eng. Rep. 107, 1 Atkyns Rep. 165 (Ch. 1749), although the
question was not at issue, see id. at 116 (Lee, C.J.);
id. at 118 (Hardwicke, Ch.), some judges voiced disagreement with
Copeman's interpretation of that statute because of the great
"inconvenience" it would cause to commercial arrangements such as trusts,
agency, and bailment, but they still recognized the general rule, see
id. at 113 (Parker, C.B.) (recognizing another case holding "[t]hat the
preamble shall not restrain the enacting clause" and recognizing that
Copeman "exploded the notion of the preamble's governing the enacting
clause," but adding that "if the not restraining the generality of the
enacting clause will be attended with an inconvenience, the preamble shall
restrain it"); id. at 118 (Hardwicke, Ch.) (agreeing with Parker).
72 King v. Athos, 8
Mod. Rep. 136, 144 (K.B. 1723). See id. (Fortescue, J.) ("[I]t must
be admitted, that a preamble may be a good expositor of a statute; but what
was offered on the other side is not properly a preamble, but only
introductive to an enacting part of a statute: besides . . . preambles are no
more than recitals of inconveniences, which do not exclude any other to which
a remedy is given by the enacting part."); Kinaston v.
Clark, 26 Eng. Rep. 526, 527, 2 Atkyns Rep. 204 (Ch. 1741) ("There
are many cases where the enacting part in a statute extends further than the
preamble even in criminal matters . . . .").
73 1 Blackstone at *59-60. See
Crespigny v. Wittenoom, 100 Eng. Rep. 1304, 1305, 4
Term Rep. 791 (K.B. 1792) (Buller, J.) ("I agree that the preamble cannot
controul the enacting part of a statute, which is expressed in clear and
unambiguous terms. But if any doubt arise on the words of the enacting part,
the preamble may be resorted to, to explain it."); id. at 1306
(Grose, J.) ("Though the preamble cannot controul the enacting clause, we may
compare it with the rest of the Act, in order to collect the intention of the
74 Kent, 1 Commentaries at 516.
See Mills v. Wilkins, 87 Eng. Rep. 822, 822-23, 6
Mod. Rep. 62 (Q.B. 1703) ("[T]he title is not the law, but the name or
description given to it by the makers: just as the preamble of a statute is no
part thereof, but contains generally the motives or inducements thereof.");
see also Singer, 2A Sutherland 47.04, at 221-22;
id. at 224-25 ("The preamble can neither limit nor extend the meaning
of a statute which is clear. Similarly, it cannot be used to create doubt or
75 Joseph Story, 1 Commentaries on the
Constitution of the United States 459-460, at 443-44 (1833; reprint
76 Jacobson v.
Massachusetts, 197 U.S. 11, 22 (1905).
77 See U.S. Term Limits, Inc.
v. Thornton, 514 U.S. 779, 821 n.31, 838 (1995);
id. at 846 & n.1 (Thomas, J., dissenting); see also
Stenberg v. Carhart, 530 U.S. 914, 953 (2000)
(Scalia, J., dissenting).
78 N.H. Const. art. I, 17 (1784),
reprinted in Francis Newton Thorpe, 4 The Federal and State
Constitutions, Colonial Charters, and Other Organic Laws 2455 (1909;
79 See Eugene Volokh, The
Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793, 798, 804-05, 808-09
(1998); Emerson, 270 F.3d at 234 n.32.
80 Mass. Const. pt. I, 21 (1780),
reprinted in 3 Fed. and State Consts. at 1892; N.H.
Const. art. I, 30 (1784), reprinted in 4 Fed. and
State Consts. at 2457; Vt. Const. ch. I, 16 (1786), reprinted
in 6 Fed. and State Consts. at 3753.
81 See Volokh, 73 N.Y.U. L. Rev. at
794-95, 799-800. As with statutes, constitutional prefaces and operative
language often do not match exactly, the latter sometimes being overinclusive
compared to the declaration and sometimes underinclusive. See id. at
801-07 (providing examples).
82 Creating the Bill of Rights: The
Documentary Record from the First Federal Congress 12 (Helen E. Veit et.
al. eds., 1991) (emphasis added).
83 Madison, Notes of Debates at 639
(Sept. 14). Mason's proposal was defeated, apparently on the ground that it
improperly impugned soldiers. Id. at 639-40.
84 Athos, 8 Mod. Rep. at 144.
85 The Ninth Circuit in Silveira
provided only one paragraph on the proper relationship between a preface and
operative language, concluding that the latter must be read "to implement the
policy" of the former. See 312 F.3d at 1075.
86 United States v. Miller,
307 U.S. 174, 178 (1939).
87 See, e.g.,
Silveira, 312 F.3d at 1069-72.
88 Nordyke v. King,
364 F.3d 1025, 1031 (9th Cir. 2004) (Gould, J., joined by O'Scannlain,
Kleinfeld, Tallman, and Bea, J.J., dissenting from denial of rehearing en
89 Athos, 8 Mod. Rep. at 144.
90 See Kopel, 93 Mich. L. Rev. at
1355 ("[O]ne of the reasons Congress guaranteed the right of the people to
keep and bear arms was so that a popular militia could be drawn from the body
of the people.") (footnote omitted). Thus, the Silveira court's
description of the militia as "the state-created and -organized military
force," 312 F.3d at 1069, is technically true but critically incomplete,
because it ignores the composition of the militia.
91 On the former distinction, see U.S. Const.
art. I, 8, cls. 12-16; art. I, 10, cl. 3; art. II, 2, cl. 1; amend.
V; Articles of Confed. art. VI (contrasting a "body of forces" with
"a well regulated and disciplined militia, sufficiently armed and
accoutered."); Authority of President to Send Militia Into a Foreign
Country, 29 Op. Att'y Gen. 322, 322 (1912) (Wickersham, A.G.) ("[T]he
militia has always been considered and treated as a military body quite
distinct and different from the Regular or standing army.").
92 See Malcolm, To Keep and
Bear at 125 (discussing concerns of English Whigs after the English
Revolution of 1688-1689 to maintain a citizens' militia as opposed to a select
one); id. at 95-97, 103, 105 (discussing purges and selective
disarmament of militia by Charles II and James II); id. at 63
(discussing Charles II's select militia).
93 Madison, Notes of Debates at 478,
483-84 (Aug. 18).
94 Id. at 515 (Aug. 23). John Adams
also praised a militia of the whole people, as opposed to a select band, in
works that he published in 1776 and 1787. See below, Part III.B.1.
95 Federalist No. 46, at 321 (J.
Madison). The population of all white males aged 16 and over in the 1790
census was 813,298, making Madison's number a fair approximation of the
citizen militia. See U.S. Dept. of Commerce, Bureau of the Census, 1
Historical Statistics of the United States 16 (1975).
96 Federalist No. 29, at 183-85 (A.
97 1 The Debate on the Constitution
712 (Bernard Bailyn ed., 1993).
98 2 id. at 507. For Ramsey's
biography, see id. at 1009.
99 "Aristides," Remarks on the Proposed
Plan of a Federal Government (1788), reprinted in 15 Doc.
Hist. at 522, 533; see id. at 518-20 (note regarding circulation
100 10 Doc. Hist. at 1312 (John P.
Kaminski & Gaspare J. Saladino eds., 1993) (June 16, 1788).
101 Federal Farmer No. 18 (1788),
reprinted in 2 The Complete Anti-Federalist 341-42 (Herbert
J. Storing ed., 1981); see also No. 3 (1787), id. at 242.
Publius (Hamilton) recognized the Federal Farmer letters as among the
best of the Anti-Federalists'. See Federalist No. 68, at 457-58.
102 Act of May 8, 1792, ch. 33, 1-2, 1
Stat. at 271-72; see 2 Tucker's Blackstone at *409 n.1.
103 10 U.S.C. 311(a) (2000) (including in
the militia "all able-bodied males at least 17 years of age and
. . . under 45 years of age," both citizens and those "who have made
a declaration of intention to become" citizens, certain men between 45 and 64,
and "female citizens of the United States who are members of the National
104 Webster, American Dictionary
(unpaginated) (emphasis added).
105 1 Blackstone at *134, 138, 413.
106 Art. I, 8, cl. 15.
107 29 Op. Att'y Gen. at 322; see
Perpich v. Department of Defense, 496 U.S. 334, 341-44 (1990).
108 307 U.S. at 179 (emphases
added); see id. at 179-82 (collecting historical support); see
Presser v. Illinois, 116 U.S. 252, 265 (1886) ("It is
undoubtedly true that all citizens capable of bearing arms constitute the
reserved military force or reserve militia of the United States as well as of
the States."); Maryland v. United States, 381 U.S.
41, 46 (1965) (describing pre-World War I militia as "a citizen army").
109 See, e.g.,
Silveira, 312 F.3d at 1069-72.
110 Aristocrotis, The Government of
Nature Delineated, or An Exact Picture of the New Federal Constitution
(1788), reprinted in 3 Complete Anti-Fed. at 202.
111 Lund, 31 Ga. L. Rev. at 25, 26.
112 See Silveira v.
Lockyer, 328 F.3d 567, 579 (9th Cir.) (Kleinfeld, J., joined by
Kozinski, O'Scannlain, and T.G. Nelson, JJ., dissenting from denial of
rehearing en banc) ("The panel seems to imagine that a well
regulated militia is a people disarmed until the government puts guns in their
hands after summoning them to service."), cert. denied, 124 S. Ct.
113 See below, Part IV.A, for St. George
Tucker's discussion of a similar point.
114 307 U.S. at 178-79 (emphasis added).
115 Va. Decl. of Rights 13 (1776),
reprinted in 7 Fed. and State Consts. at 3814.
116 N.Y. Const. 40 (1777), reprinted
in 5 Fed. and State Consts. at 2637.
117 Federalist No. 29, at 183-84 (A.
Hamilton) (emphases added).
118 Sentiments on a Peace
Establishment (1783), reprinted in 3 The Founders'
Constitution 129 (Phillip B. Kurland and Ralph Lerner eds., 1987)
119 Fed. Farmer No. 3, reprinted
in 2 Complete Anti-Fed. at 242; Fed. Farmer No.
18, reprinted in id. at 342 (emphases added).
120 Antonin Scalia, Response,
in A Matter of Interpretation: Federal Courts and the Law
137 n.13 (1997).
121 U.S. Const. art. I, 8, cl. 15; see
id. amend V (discussing militia service in "War or public danger").
122 4 Blackstone at *151; e.g.,
Mass. Const. pt. I, art. 16 (1780), reprinted in 3 Fed. and State
Consts. at 1892. Similarly, the English Declaration of Rights, well known
to the Founding Generation, see below, Part III.A, charged King James
II with having sought to "subvert and extirpate" the "liberties of this
kingdom" by taking several actions "utterly and directly contrary to" the
"freedom of this realm." 1 W. & M., Sess. 2, c. 2, 1 (1689).
123 See also Malcolm, To Keep
and Bear at 50-53, 115-16, 123 (militia officers' use of discretionary
power to disarm); id. at 45-46 (disarmament by Charles II prior to
1662); id. at 85 (disarmament by militia in 1678); id. at
103 (use of militia by James II to disarm suspicious persons); id. at
105 (attempted use of militia in 1686 to disarm by enforcing game act);
id. at 31 (in Civil War); see also id. at 92-93, 95 (in
response to 1683 Rye House plot; confiscated arms given to militia);
id. at 100 (disarmament by Charles II in western England early in
reign, and in response to Rye House plot later). Efforts to disarm and
undermine the militia also included requiring its members to "store" their
arms in government magazines. See id. at 38, 78-79, 96-97;
see also id. at 3, 5, 10-11 (discussing private ownership and storage
prior to English Civil War, and failed plans to require public storage). The
actions of white militias toward freed blacks in the South after the American
Civil War were similar. See Part IV.C, below.
124 Va. Decl. of Rights 13 (1776),
reprinted in 7 Fed. and State Consts. at 3814;
see also Md. Const., Decl. of Rights 25 (1776), reprinted
in 3 id. at 1688 ("That a well-regulated militia is the
proper and natural defence of a free government.").
125 1 Debate on the Const. at
126 Fed. Farmer No. 18,
reprinted in 2 Complete Anti-Fed. at 341-42.
127 James Burgh, Political
Disquisitions, reprinted in part in 3 Founders' Const.
at 126, 125; see Federalist No. 56 at 382 n.* (J. Madison); see
also 2 Tucker's Blackstone at *245 n.7 (quoting Burgh's
Disquisitions). In both passages, Burgh was loosely quoting
Andrew Fletcher, a prominent member of the Scottish Parliament prior to union
with England in 1707. See A Discourse of Government with relation
to Militias (1698), reprinted in Andrew Fletcher, Political
Works 21-22 (John Robertson ed., 1997); Speeches by a member of the
Parliament, No. 7 (1703), reprinted in id. at
149-50. Regarding Fletcher and Burgh, see David Thomas Konig, The
Second Amendment: A Missing Transatlantic Context for the Historical Meaning
of "the Right of the People to Keep and Bear Arms," 22 Law & Hist.
Rev. 119, 125-26, 136-39 (2004).
128 Burgh, Political Disquisitions,
reprinted in 3 Founders' Const. at 124, 126. As
Fletcher put it: "I cannot see, why arms should be denied to any man who is
not a slave, since they are the only true badges of liberty . . .
neither can I understand why any man that has arms, should not be taught the
use of them." A Discourse of Government, reprinted in
Fletcher, Political Works at 23.
129 The duty to serve in the militia and the
right to possess or carry weapons for self-defense were related but distinct
in colonial America. One might have the latter without the former.
See Cottrol & Diamond, 80 Geo. L.J. at 325-37 (surveying colonial
laws and explaining the development of "the view that the security of the
state was best achieved through the arming of all free citizens," regardless
of eligibility for militia service); see also Part II.B.1, above
(discussing right to "keep" arms for private purposes).
130 1 Blackstone at *144. Blackstone also
described the fundamental "right of personal security" as including protection
against "loss of limb," so as to guard a man's ability "to protect himself
from external injuries in a state of nature," and condemned any destruction of
limbs as "a manifest breach of civil liberty," id. at *129, 130; and
he set out the basic common-law rule of self-defense, "the primary law of
nature," by which it is lawful for a person "forcibly attacked in his person
or property . . . to repel force by force" without being liable for breach of
the peace or a resulting homicide, 3 id. at *3-4. The importance of
this right of self-defense was reinforced by the absence of any constitutional
duty of government to defend citizens' lives, liberty, or property. See
DeShaney v. Winnebago County Soc. Servs. Dept., 489
U.S. 189, 195-97 (1989).
131 John Locke, Second Treatise of
Government 18-19, at 12-13 (Richard H. Cox ed., 1982) (1689); see
also id. 204-10, at 126-29 (similar). Blackstone and Locke disagreed
on the exact scope of the right of self-defense. 4 Blackstone at *181-82;
see also 1 id. at *251. Locke was, after Blackstone and
Montesquieu, the writer whom American political writers of the Founding cited
most. Malcolm, To Keep and Bear at 142 & 214 n.44. His thinking
is particularly evident in the Declaration of Independence. See also
2 Tucker's Blackstone at *161 & n.25.
132 See Van Alstyne, 43 Duke L.J. at
1243 (The Second Amendment "looks to an ultimate reliance on the common
citizen who has a right to keep and bear arms . . . as an essential source of
security [for] a free state."); see also Lund, 31 Ga. L. Rev. at
133 Cf. Planned Parenthood
v. Casey, 505 U.S. 833, 847 (1992) (rejecting argument that the
personal "liberty" that the Fourteenth Amendment protects "encompasses no more
than those rights already guaranteed to the individual against
federal interference by the express provisions of the first eight
Amendments") (emphasis added) (citation omitted); Moore
v. City of East Cleveland, 431 U.S. 494, 502 (1977)
(plurality opinion) (similar, quoting Poe v.
Ullman, 367 U.S. 497, 542-43 (1961) (Harlan, J., dissenting));
Johnson v. Eisentrager, 339 U.S. 763, 784 (1950)
(describing First, Second, Fourth, Fifth, and Sixth Amendments as the
"civil-rights Amendments"); Robertson v. Baldwin,
165 U.S. 275, 281 (1897) (describing Bill of Rights as embodying "certain
guaranties and immunities which we had inherited from our English ancestors").
While some might argue that, as an original matter, the First Amendment's
Establishment Clause (which makes no reference to any "right" or "freedom")
was an exception to this rule, the Supreme Court has held that it too creates
an individual right, applicable even against States. See
Zelman v. Simmons-Harris, 536 U.S. 639, 678 (2002)
(Thomas, J., concurring); Everson v. Board of Ed.,
330 U.S. 1, 8 (1947); David Currie, The Constitution in the Supreme Court:
The Second Century 339-40 (1990).
134 Cooley, General Principles at
135 Story, Abridgement 984, at 698
(commencing discussion of First through Fourth, and Eighth through Tenth
136 See 4 Blackstone at *152 n.a;
John O. McGinnis, The Once and Future Property-Based Vision of the First
Amendment, 63 U. Chi. L. Rev. 49, 92-94 (1996).
137 Compare 1 Blackstone at *138
("The third absolute right, inherent in every Englishman, is that of property:
which consists in the free use, enjoyment, and disposal of all his
acquisitions, without any control or diminution, save only by the laws of the
land.") (emphasis added), with id. at *144 (recognizing "the right of
having and using arms") (emphasis added); see above, Part
II.B.1 (discussing English cases in 1700's approving the "keeping" of arms for
defense of one's self and home).
138 1 W. & M., Sess. 2, c. 2, 1, paras.
5 & 7 of the list of rights.
139 See also 1 Blackstone at *143-44
(similar); Jean L. De Lolme, 2 The Rise and Progress of the English
Constitution 886-87 (A. J. Stephens ed., 1838) (1784) (noting that
English Bill of Rights "expressly ensured to individuals the right of publicly
preferring complaints against the abuses of the government, and, moreover, of
being provided with arms for their own defence," and then quoting 1 Blackstone
at *144 regarding these rights).
140 See 4 id. at *145-49
(discussing the following misdemeanor breaches of the peace: affray, riot,
rout, unlawful assembly, tumultuous petitioning, forcible entry or detainer,
and going armed with dangerous or unusual weapons to the terror of the
people). Among felonies against the public peace, Blackstone first listed
violation of the Riot Act against "riotous assembling of twelve persons" and
then described "unlawful hunting" in certain parks, which involved being
disguised and "armed with offensive weapons." Id. at *142-44.
141 2 Tucker's Blackstone at *143-44
nn.38-41. See also United States v. Cruikshank, 92
U.S. 542, 551-53 (1876) (analyzing the two rights similarly); Logan
v. United States, 144 U.S. 263, 286-87 (1892) (same).
142 Federalist No. 29, at 185 (A.
Hamilton); see also id. No. 46, at 321-22 (J. Madison).
143 U.S. Const. art. I, 10, cl. 3.
See Houston v. Moore, 18 U.S. (5 Wheat.) 1, 52
(1820) (Story, J., dissenting); Va. Ratif. Conv., in 10
Doc. Hist. at 1307 (remarks of John Marshall, June 16).
144 See Story, Abridgement
593, at 425; Va. Ratif. Conv., in 10 Doc. Hist. at 1304,
1311 (remarks of James Madison, June 16); id. at 1306-07 (remarks of
John Marshall, same).
145 Compare 9 Doc. Hist. at
1074 (John P. Kaminski & Gaspare J. Saladino eds., 1990) (H. Lee, June 9),
id. at 1102 (Randolph, June 10), 10 id. at 1273 (Madison,
June 14), id. at 1306-08 (Marshall, June 14); with 9
id. at 957-58, 1066 (Patrick Henry, June 5 & 9), 10 id.
at 1270-71 (George Mason, June 14), id. at 1305 (William Grayson,
June 16). Henry Lee should not be confused with his Anti-Federalist cousin
Richard Henry Lee.
146 Story, Commentaries 1202, at
147 18 U.S. (5 Wheat.) 1 (1820). See
Part IV.B.1, below.
148 Perpich, 496 U.S. at 353-54
149 312 F.3d at 1081 n.43.
150 As we explain below in Part III.C,
several state ratifying conventions unsuccessfully proposed similar language
in suggested amendments distinct from those securing the right to bear arms.
151 Silveira v.
Lockyer, 328 F.3d 567, 580 (9th Cir.) (Kleinfeld, J., joined by
Kozinski, O'Scannlain, and T.G. Nelson, JJ., dissenting from denial of
rehearing en banc), cert. denied, 124 S. Ct. 803 (2003).
152 Loving v. United
States, 517 U.S. 748, 766 (1996).
153 Robertson v.
Baldwin, 165 U.S. 275, 281 (1897), discussed further below in Part
154 See 1 Blackstone at *151.
155 The Founders were well aware of the
events leading up to the Declaration. A delegate at the Massachusetts
Ratifying Convention, warning against overreacting to the weakness of the
Articles of Confederation, pointed to the Restoration, in which the people,
"so vexed, harassed and worn down . . . [had] run mad with loyalty, and would
have given Charles any thing he could have asked." 1 Debate on the
Const. at 897 (remarks of Charles Turner, Jan. 17, 1788). A delegate at
Virginia's convention drew the opposite lesson: The new Constitution would
prevent the anarchy that had led England into the arms of Charles II. 2
id. at 756 (remarks of Zachariah Johnston, June 25, 1788).
156 13 & 14 Car. II, c. 3, 14.
157 Malcolm, To Keep and Bear at 36,
38, 43, 45-48, 50-53, 85, 100, 115-16, 123; see also id. at 92-93,
95; Lois G. Schwoerer, The Declaration of Rights, 1689, at 76 (1981)
("Charles II had made effective use of" the militia acts "to try to snuff out
political and religious dissent," disarming individuals and towns and
confiscating weapons). He had begun doing so as soon as he assumed the throne.
An interim act in 1661 approved his actions and provided indemnity to
militiamen. 12 Car. II, c. 6, 3 (favorably recognizing that "divers arms
have been seized and houses searched for arms"); cf. Federalist
No. 69, at 465 n. (A. Hamilton) (discussing 1661 act).
158 Malcolm, To Keep and Bear at
159 Id. at 63. See also
Schwoerer, Declaration at 75-76 (describing Charles II's actions,
including disarmament, and noting rise of complaints from Commons beginning in
160 Malcolm, To Keep and Bear at 12;
see id. at 69-76; Schwoerer, Declaration at 78 (describing
it as "the most stringent and comprehensive of the game laws") (internal
quotation marks omitted).
161 22 & 23 Car. II, c. 25, 3
(providing that all who did not have estate "of the clear yearly value of one
hundred pounds" per year were "not allowed to have or keep for themselves, or
any other person or persons, any guns, bows, greyhounds . . . or other
162 See 4 Blackstone at *55
(explaining various legal disabilities on certain Roman Catholics, including
several dating from English Revolution or earlier, by stating that such
persons "acknowledge a foreign power, superior to the sovereignty of the
kingdom"); id. at *58 (hoping that "a time . . . should arrive" soon
when it would be safe to "review and soften these rigorous edicts").
163 See Malcolm, To Keep and
Bear at 95-106; Schwoerer, Declaration at 71-73, 75-76; see
also Federalist No. 26, at 166 (A. Hamilton); Marcus No.
4 (James Iredell) (1788), reprinted in 1 Debate on the
Const. at 391; Mass. Ratif. Conv., in id. at 904 (remarks of
Thomas Dawes, Jr., Jan. 24, 1788).
164 The Bill of Rights is at 1 W. & M.,
Sess. 2, c. 2 (1689). Its first three sections, except for the initial
preamble, consist of the Declaration, see Schwoerer,
Declaration at 295 (App. 1, reprinting Declaration), and it recounts
the events of the Revolution. See also 1 W. & M., Sess. 1, c. 1,
2 (1689) (noting presentation and acceptance of crown, and proclaiming
Parliament to be regular from that date); id. c. 6 (establishing
coronation oath); 1 Blackstone at *128, 152, 211-16, 245 (discussing events);
Federalist No. 84, at 578 (A. Hamilton) (similar).
165 Federalist No. 26, at 165-66.
See Schwoerer, Declaration at 289 (Americans greeted the
revolution and Declaration "with enthusiasm.").
166 Similarly, the same Parliament enacted a
law providing that a "papist or reputed papist" could "have or keep . . . such
necessary weapons, as shall be allowed to him by order of the justices of the
peace . . . for the defence of his house or person." 1 W. & M.,
Sess. 1, c. 15, 4 (1689) (emphasis added).
167 See Malcolm, To Keep and
Bear at 86-89 (noting effect of wealth qualification but also dearth of
prosecutions merely for possession). Blackstone complained that there was
"fifty times the property required to enable a man to kill a partridge, as to
vote for a knight of the shire." 4 Blackstone at *175. In addition, these
clauses probably referred to two statutes from the 1540's restricting
ownership and use of short handguns based on wealth, outlawing shot, and
regulating the use of guns in cities or towns, see 33 Hen. VIII, c. 6
(1541); 2 & 3 Edw. VI, c. 14 (1548), and they may also have referred to
the Militia Act, see Malcolm, To Keep and Bear at 120.
168 Lois G. Schwoerer, To Hold and Bear
Arms: The English Perspective, 76 Chi.-Kent L. Rev. 27, 59 (2000). She
seems to misunderstand the individual-right view as requiring an unlimited
right. See id. at 56, 60.
169 Schwoerer, Declaration at 283;
see Malcolm, To Keep and Bear at 119-20. See also
Jean L. De Lolme, 2 The Rise and Progress of the English Constitution
886 (A. J. Stephens ed., 1838) (1784) (Declaration "expressly ensured to
individuals the right of [petition and] of being provided with arms for their
170 1 Blackstone at *271.
171 See Federalist No. 84,
at 578-79 (A. Hamilton) (arguing "that bills of rights are in their origin,
stipulations between kings and their subjects, abridgments of prerogative in
favor of privilege, reservations of rights not surrendered to the prince," and
"[s]uch . . . was the declaration of rights presented by the lords and commons
to the prince of Orange in 1688, and afterwards thrown into the form of an act
of parliament called the bill of rights").
172 Silveira, 328 F.3d at 582
173 5 Ann., c. 14, 3 (1706); see 4
& 5 W. & M., c. 23, 3 (1693) (similar). Parliament also repealed the
later of the two statutes of the 1540's mentioned in note 167, noting its
desuetude. 6 & 7 Will. III, c. 13, 3 (1695). Enforcement of the other
was, at least in the 1600's, lax and selective. See Malcolm, To
Keep and Bear at 80-81, 87. Efforts to revise the Militia Act failed, but
the right in the Bill may have sufficed to restrain the King from disarming
Protestants. See id. at 123-25; see also 1
Blackstone at *271; Schwoerer, Declaration at 75-78, 267, 283.
174 Rex v. Gardner, 87 Eng. Rep.
1240, 1241, 7 Mod. Rep. 279 (K.B. 1739).
175 Wingfield v.
Stratford, 96 Eng. Rep. 787, 787-88, Sayer Rep. 15 (K.B. 1752) (Lee,
C.J., citing Rex v. Gardner, 2 Strange Rep. 1098 (K.B. 1738));
Mallock v. Eastly, 87 Eng. Rep. 1370, 1374, 7 Mod.
Rep. 482 (C.P. 1744), respectively; see also Part II.B.1,
above (discussing use of "keep" in these and other cases); Malcolm, To
Keep and Bear at 128 (quoting commentator of early 1800's reaffirming
rule of these cases). In addition, it appears that courts strictly interpreted
indictments under the game laws. See King v. Silcot, 87 Eng.
Rep. 186, 186 n.(b), 3 Mod. Rep. 280 (K.B. 1690) (reporter's note from 1793).
176 Mallock, 87 Eng. Rep. at 1374;
Wingfield, 96 Eng. Rep. at 787 (Lee, C.J.).
177 "Legality of the London Military
Foot-Association" (July 24, 1780), reprinted in William Blizard,
Desultory Reflections on Police: With an Essay on the Means of Preventing
Crimes and Amending Criminals 59, 59-60 (1785) (italics omitted). For
background, see Part II.B.2 above. The Recorder found it "a matter of
some difficulty to define the precise limits and extent of the rights of the
people of this realm to bear arms, and to instruct themselves in the use of
them, collectively." Id. at 59. At the very least, he
opined, such a group needed to (1) have a "lawful" "professed purpose and
object," (2) "demean themselves in a peaceable and orderly manner" consistent
with that purpose, (3) not assemble in numbers that "manifestly and greatly
exceed" that purpose; and (4) not "act without the authority of the civil
magistrate" except to suppress "sudden, violent, and felonious breaches of the
peace." Id. at 62 (italics omitted). See also William
Hawkins, 1 A Treatise on the Pleas of the Crown ch. 63, at 136, 10
(1724; reprint 1972) (noting legality of person "arm[ing] himself to suppress
dangerous Rioters, Rebels, or Enemies" and "endeavour[ing] to suppress or
resist such Disturbers of the Peace or Quiet of the Realm"); id. ch.
65, at 161, 21 (noting right to do so when assisting Justice of Peace
178 See William Blackstone, 2
Commentaries on the Laws of England *412 n.8 (William Draper Lewis
ed., 1900) (reprinting annotation of Edward Christian). Christian's posthumous
Blackstone was published in 1793-95, see Malcolm, To Keep and
Bear at 134, 210, and available in America, see 1 Tucker's
Blackstone at *145 n.42. Although the law was clear, some questioned how
much as a practical matter the revision of the game laws had benefited
commoners, as we explain in the discussion of the Pennsylvania Constitution
below in Part III.B.2.
179 1 Blackstone at *121; id. at
180 Id. at *123. He contrasted
"relative" individual rights, "which are incident to [persons] as members of
society, and standing in various relations to each other." Id.
181 Id. at *124-28.
182 Id. at *129. These reappear
throughout the American Constitution, in general protections against
deprivations of "life, liberty, or property, without due process of law" and
in specific rights. See, for example, St. George Tucker's footnotes annotating
Blackstone's exposition of the three principal rights with parallels in the
Constitution, 2 Tucker's Blackstone at *129, 133-40.
183 1 Blackstone at *140-41.
184 See id. at *141.
185 Id. at *141, 143-44.
186 Id. at *144.
187 See also 4 id. at
*55-58 (elsewhere describing prohibitions against certain Roman Catholics
keeping arms as hopefully temporary suspensions of rights). He summarized the
militia in Chapter 13, 1 id. at *412-13.
188 1 id. at *144.
189 Id. at *130. See id. at
*134 (summarizing common law's special protection for "those limbs and members
that may be necessary to a man in order to defend himself or annoy his
190 2 id. at *412, 413.
191 4 id. at *416; see 2
id. at *415-16 (forest laws produced "the most horrid tyrannies and
192 2 id. at *412. As an example, he
cited a popular book, by a bishop (and thus lord), that praised banning
"Peasants and Mechanics" from hunting game: "It was not at all for the
public Good to suffer [them] . . . to run up and down the Woods and
Forests, armed; which . . . draws them on to Robbery and Brigandage: Nor to
permit the populace, in Towns and Cities, to have, and carry Arms at
their pleasure; which would give opportunity and encouragement to Sedition,
and Commotions." William Warburton, 1 The Alliance Between Church and
State: Or, the Necessity and Equity of An Established Religion and a Test Law
Demonstrated 324 (London 4th ed. 1766).
193 4 Blackstone at *174-75.
194 See 2 id. at *411-12
(approving as "natural" a ban on unauthorized hunting on private property);
see 4 id. at *174 (being less critical of the "forest law,"
which simply prohibited hunting in the king's forests).
195 See 4 id. at *144
(unlawful hunting - being disguised and "armed with offensive weapons" in
breach of peace and to terror of public); id. at *145 (affray (public
fighting), including attack with or drawing of weapon on church grounds);
id. at *148 (forcible entry or detainer, "such as is carried on and
maintained with force, with violence, and unusual weapons"); id. at
*149 ("riding or going armed, with dangerous or unusual
weapons . . . by terrifying" the people); see also id. at *146-47
(riots, routs, unlawful assemblies, and tumultuous petitioning); id.
at *168 (quasi-nuisance of "making, keeping, or carriage, of too large a
quantity of gunpowder at one time or in one place or vehicle");
cf. id. at *182 (excusable homicide by misadventure, such as "where a
person qualified to keep a gun is shooting at a mark and undesignedly kills a
man: for the act is lawful, and the effect is merely accidental"); 3
id. at *4 (noting limitation of self-defense to "resistance" that
"does not exceed the bounds of mere defence and prevention").
196 United States v.
Miller, 307 U.S. 174, 179-80 (1939) (internal quotation marks
omitted). See Kates, 82 Mich. L. Rev. at 215-16 ("With slight
variations, the different colonies imposed a duty to keep arms and to muster
occasionally for drill upon virtually every able-bodied white man between the
age of majority and a designated cut-off age. Moreover, the duty to keep arms
applied to every household, not just to those containing persons
subject to militia service. Thus, the over-aged and seamen, who were exempt
from militia service, were required to keep arms for law enforcement and for
the defense of their homes from criminals or foreign enemies.") (footnotes
omitted). In Virginia, "Every able-bodied freeman, between the ages of 16 and
50, is enrolled in the militia. . . . The law requires every militia-man to
provide himself with the arms usual in the regular service." That requirement
"was always indifferently complied with," and the militia's arms were
"frequently called for to arm the regulars," so that "in the lower parts of
the country they are entirely disarmed." But "[i]n the middle country a fourth
or fifth part of them may have such firelocks as they had provided to destroy
the noxious animals which infest their farms; and on the western side of the
Blue [R]idge they are generally armed with rifles." Thomas Jefferson,
Notes on the State of Virginia 88 (William Peden ed., 1954). For more
regarding the militia, see above, Part II.C.2-4.
197 See Malcolm, To Keep and
Bear at 139 (quoting colonial statutes from Rhode Island, Virginia, and
Georgia); Kates, 82 Mich. L. Rev. at 216 (discussing Georgia law);
id. at 240 ("[T]he English Game Acts . . . had never been a part of
the colonial law"); 5 Tucker's Blackstone at *175 n.16 (describing
game laws of Virginia, limited to prohibiting trespass and conversion and
establishing hunting season for deer).
198 See Cottrol & Diamond, 80
Geo. L.J. at 323-27 (noting that "the traditional English right" became "a
much broader American one" as part of "a more general lessening of class,
religious, and ethnic distinctions among whites in colonial America," but that
"the law was much more ambivalent with respect to blacks"; surveying varying
colonial laws regarding right of blacks to carry weapons or keep them in their
homes, and noting usual exclusion from militia duty, except in "times of
crisis"); Malcolm, To Keep and Bear at 140-41 ("The second group
[after Indians] forbidden to possess weapons were black slaves, with
restrictions sometimes extended to free blacks . . . . Northern
colonies were ambivalent about blacks possessing firearms"; surveying colonial
laws and drawing parallel to England's ambivalent treatment of right of Roman
Catholics to have arms).
199 Boston Chronicle at 363, col. 2
(Sept. 19, 1768), quoted in Stephen P. Halbrook, A Right to Bear
Arms: State and Federal Bills of Rights and Constitutional Guarantees 1-2
(1989). This resolution was republished in the Maryland Gazette. See
id. at 61.
200 Boston Gazette, and Country Journal at 2,
col. 1 (Jan. 30, 1769), quoted in Halbrook, Right to Bear at
6; see Boston under Military Rule, 1768-1769, as Revealed in a Journal of
the Times 61 (Oliver Morton Dickerson ed., 1936) (reprinting same passage
from Boston Evening Post (Apr. 3, 1769)).
201 Samuel Adams, Boston Gazette (Feb. 27,
1769), reprinted in 1 The Founders' Constitution 90 (Philip
B. Kurland & Ralph Lerner eds., 1987). Adams quoted 1 Blackstone at
*143-44 & 144.
202 "Boston, March 17," New York
Journal, Supplement at 1, col. 3 (Apr. 13, 1769), reprinted in
Boston under Military Rule at 79; see Halbrook, Right to
Bear at 7 (quoting same passage).
203 3 Legal Papers of John Adams
247-48 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965) (quoting "Hawkins p.
71, 14"). For the facts, see id. at 1 (note). Adams secured several
acquittals. Id. at 29.
204 John Adams, 3 A Defence of the
Constitutions of Government of the United States of America 475 (1787).
The Ninth Circuit selectively quoted this sentence to claim that Adams
"ridiculed . . . an individual right to personal arms" and asserted that "the
general availability of arms" would "'demolish every constitution, and lay the
laws prostrate, so that liberty can be enjoyed by no man - it is a dissolution
of the government.'" Silveira, 312 F.3d at 1085. In these portions,
Adams was merely arguing against command of the militia by private persons or
localities, while also expressly reiterating the right of arming for private
205 See Hardy, 9 Harv. J.L. &
Pub. Pol'y at 590; Halbrook, Right to Bear at 9, 16, 72. Soldiers
seized provincial armories in Cambridge and Charlestown. In response, "twenty
thousand Yankees picked up their muskets and headed for Boston" to confront
the British. Robert A. Gross, The Minutemen and Their World 55
206 See First Continental Congress,
"Appeal to the Inhabitants of Quebec" (Oct. 1774), reprinted in 1
American Political Writing During the Founding Era, 1760-1805, at 237
(Charles S. Hyneman & Donald S. Lutz eds., 1983) ("The injuries of Boston
have roused and associated every colony."); Halbrook, Right to Bear
at 88-89 (quoting warning of South Carolina's governing body in 1774 against
British "design of disarming the people of America" through the embargo).
207 See Gross, Minutemen at
59. In Concord, "Minutemen trained twice a week on the common and carried
their muskets everywhere, in the fields, in shops, even in church." When they
were mustered in March 1775, it "presented a revealing portrait of the
community. This was a citizen army of rural neighbors. . . . The Concord
militia included nearly everyone between the ages of sixteen and sixty."
Id. at 69-70.
208 Hardy, 9 Harv. J.L. & Pub. Pol'y at
590-91; Malcolm, To Keep and Bear at 145-46.
209 Hardy, 9 Harv. J.L. & Pub. Pol'y at
592; Halbrook, Right to Bear at 16.
210 1 Journals of Congress 137 (July
6, 1775) (1800); see Halbrook, Right to Bear at 13-15;
Hardy, 9 Harv. J.L. & Pub. Pol'y at 591.
211 1 The Papers of George Mason
1725-1792, at 210-11 (Robert A. Rutland ed., 1970).
212 Id. at 212.
213 Id. at 229-31.
214 See Halbrook, Right to Bear
215 Richard Caswell, William Hooper, &
Joseph Hewes, "To the Committees of the Several Towns and Counties of
the Province of North Carolina," N.C. Gazette (Newburn), at 2, col. 3 (July 7,
1775), excerpted in id. at 29.
216 See 4 Adams Papers at
78 n.6 (note).
217 John Adams, Thoughts on
Government (Apr. 1776), reprinted in 4 id. at 91. This
pamphlet, written for political leaders in North Carolina, Virginia, and New
Jersey, was widely reprinted and discussed for several years. See id.
at 65, 68-72 (note).
218 Letter from Greene to Jefferson (Nov. 20,
1780), in 4 The Papers of Thomas Jefferson 130-31 (Julian P.
Boyd ed., 1951).
219 See, e.g., "A
Democratic Federalist," Penn. Herald (Oct. 17, 1787), reprinted in 2
Doc. Hist. at 197 (arguing that "a well-regulated militia" is
"sufficient for every purpose of internal defense," as shown by victories at
Lexington and Bunker Hill); Va. Ratif. Conv., in 9 Doc.
Hist. at 981 (remarks of Edmund Randolph, June 6, 1788) ("I will pay the
last tribute of gratitude to the militia of my country: They performed some of
the most gallant feats during the last war, and acted as nobly as men enured
to other avocations could be expected to do: But, Sir, it is dangerous to look
to them as our sole protectors."); Federalist No. 25, at 161-62 (A.
Hamilton) (praising militias' valor but emphasizing insufficiency for
defense). General Greene recognized that the militia should "not [be] depended
upon as a principal but employed as an Auxilliary." Letter to Jefferson,
in 4 Jefferson Papers at 131.
220 Federalist No. 46, at
321-22 (J. Madison).
221 The first constitutions of New Jersey,
South Carolina, Georgia, and New York did not include separate bills of
rights. Their constitutions did protect a few rights, but did not include the
right to arms or general statements regarding the militia. See
Bernard Schwartz, 1 The Bill of Rights: A Documentary History 256
(1971) (N.J. 1776); id. at 291 (Ga. 1777); id. at 301 (N.Y.
1777); id. at 325 (S.C. 1778). Georgia did provide for forming a
militia battalion in any county with "two hundred and fifty men, and upwards,
liable to bear arms," id. at 297, and New York declared the duty of
all to provide personal service to protect society, see id. at 312,
much as the Pennsylvania Declaration, discussed below, did. Connecticut and
Rhode Island did not adopt new constitutions. Id. at 289.
222 Va. Bill of Rights 13 (1776),
reprinted in 7 Fed. and State Consts. at 3814.
223 Regarding this point and the meaning of
both "militia" and "well regulated militia," see above, Parts
II.C.2-4, and III.B.1, at note 196 (quoting Jefferson's Notes on the State
224 See 1 Mason Papers at
274-75, 286 (editorial notes); id. at 287 (final draft).
225 Delaware, Maryland, and New Hampshire
adapted Virginia's language, omitting definition of the militia and changing
"free state" to "free government" while retaining the implicit connection
between "a well regulated militia" and the avoidance of standing armies and
military insubordination. See Del. Decl. of Rights 18-20 (1776),
reprinted in 5 Founders' Const. at 5, 6; Md. Decl. of Rights
25-27 (1776), reprinted in 3 Fed. and State Consts. at
1688; N.H. Const. pt. I, arts. 24-26 (1784), reprinted in 4 Fed.
and State Consts. at 2456. The Delaware Constitution also specially
provided that "[t]o prevent any violence or force being used at . . .
elections, no person shall come armed to any of them, and no muster of
the militia shall be made on that day." Del. Const. art. XXVIII (1776),
reprinted in 1 Fed. and State Consts. at 567.
226 Reprinted in 5 Fed. and
State Consts. at 3083.
227 See 1 Mason Papers at
276 (note discussing "the widespread and almost immediate influence of the
Virginia Declaration of Rights on other nascent states," including
228 5 Fed and State Consts. at 3083.
Such personal service would be difficult if one could not own private arms.
This duty may have been broader than the obligation of militia duty, perhaps
including the posse comitatus. See generally Federalist No.
29, at 182-83 (A. Hamilton). New Hampshire's constitution, while praising
the well-regulated militia, recognized this duty separately, N.H. Const. pt.
I, arts. 12-13, reprinted in 4 Fed. and State
Consts. at 2455, although New York's connected the two, N.Y. Const. 40
(1777), reprinted in 5 id. at 2637.
229 Pa. Plan or Frame of Gov't 5 (1776),
reprinted in 5 Fed. and State Consts. at 3084.
230 Id. 43, reprinted in
5 Fed. and State Consts. at 3091.
231 See Halbrook, Right to Bear
at 23-25. Some in England shared this concern. See Schwoerer, 76
Chi.-Kent L. Rev. at 52-53.
232 Pa. Const. art. IX, 20 & 21,
reprinted in 5 Fed. and State Consts. at 3101. Section 22
addressed standing armies and civilian control of the military. Kentucky,
admitted in 1791 as the fifteenth state, copied this language on the right
verbatim. See Ky. Const. art. XII, 23 (1792), reprinted in
3 Fed. and State Consts. at 1275.
233 Pa. Const. art. VI, 2, reprinted in
5 Fed. and State Consts. at 3099. Kentucky also copied this
provision. See Ky. Const. art. VI, 2, reprinted in 3
Fed. and State Consts. at 1271.
234 Reprinted in 5 Fed. and
State Consts. at 2788.
236 State v.
Huntly, 25 N.C. (3 Ired.) 418, 1843 WL 891, at *2. Another early
decision recognized that the right of "free people of color" to bear arms
might be abridged - but only because the court believed that they "cannot be
considered as citizens," or at least not full citizens, not because of any
exclusion from the militia (a subject the court did not mention).
State v. Newsom, 27 N.C. (5 Ired.) 250, 1844 WL
1059, at *1, 2.
237 See infra, note 239.
238 This was Richard Caswell, who became the
first governor. Another member of the committee also had been one of the three
delegates. See Halbrook, Right to Bear at 29-31; see
also 5 Fed. and State Consts. at 2794.
239 Vt. Const. ch. I, 15, reprinted
in 6 Fed. and State Consts. at 3741. The constitution also
asserted independence from New York. Id. at 3738-39 (preamble);
see Halbrook, Right to Bear at 37 ("Recognition of bearing
arms to defend the state was more radical than self-defense, since it
justified action by armed private citizens to defend an incipient state from
the constituted authorities of both New York and Great Britain."). The First
Congress admitted Vermont as the fourteenth State, see Act of Feb.
18, 1791, 1 Stat. 191, in time for it to ratify the Bill of Rights,
see Schwartz, 2 Bill of Rights at 1202-03.
240 Vt. Const. ch. I, 14, reprinted in
6 Fed. and State Consts. at 3741 (speech); id. 9, at
3740-41 (duty of personal service, and conscientious objectors); id.
ch. II, 5, at 3742 (militia of "freemen . . . and their sons"); id.
39, at 3748 (hunting).
241 See Vt. Const. ch. I, 10, 15
& 18 (1786), reprinted in 6 id. at 3753 (duty of
personal service and conscientious objectors, speech, and arms, respectively);
id. ch. II, 19, at 3758 (militia, including all "inhabitants"
rather than all freemen and their sons); id. 37, at 3760 (hunting);
Vt. Const. ch. I, arts. 9, 13 & 16 (1793), reprinted in id.
at 3763-64 (duty of personal service and conscientious objectors, speech,
and arms, respectively); id. ch. II, 22, at 3768 (militia);
id. 40, at 3770 (hunting).
242 Reprinted in 3 Fed. and
State Consts. at 1892.
243 Mass. Const. pt. I, art. 1 (1780),
reprinted in id. at 1889.
244 See Halbrook, Right to Bear
245 Mass. Const. pt. I, art. 19,
reprinted in 3 Fed. and State Consts. at 1892. An early
decision of the State's supreme court, interpreting the Declaration's
protection of the individual's "liberty of the press" as not protecting
common-law libel, drew a parallel to "the right to keep fire arms, which does
not protect him who uses them for annoyance or destruction."
Commonwealth v. Blanding, 20 Mass. 304, 338 (1825).
Whether the court had in mind Article 17 or the right from England is unclear,
but in either case it recognized a right of individuals to keep arms.
246 In addition, the purposes of calling out
the militia seem to have been narrower than whatever "for the common defence"
signified, as the governor was authorized to call it out "for the special
defence and safety of the commonwealth," which appears to have meant war,
invasion, or rebellion. Mass. Const. pt. II, ch. 2, 1, art. 7, reprinted
in 3 Fed. and State Consts. at 1901.
247 Schwartz, 1 Bill of Rights at
337. The only change between their draft and the final was the deletion of
"standing" before "armies." Id. at 372 (draft); id. at 364
248 As with North Carolina's emphasis on the
"defence of the State," Massachusetts's emphasis on the "common defence" may
have represented the assertion of a right that went beyond the traditional
English one. "Common" had been deleted from a similar clause ("for their
common defence") in a draft of the English Declaration, perhaps at the urging
of William of Orange or conservative Lords, who objected to suggestion of a
popular right to check royal power. See Malcolm, To Keep and
Bear at 119-21.
249 Madison, Notes of Debates at 630
250 U.S. Const. art. I, 8, cls. 15 &
16, and art. II, 2, cl. 1. The Ninth Circuit claims that there was
"disagreement among the delegates" over whether Congress's power to arm the
militias "should be exclusive or concurrent" with the States.
Silveira, 312 F.3d at 1079. But the court only cites Perpich v.
Department of Defense, 496 U.S. 334, 340 (1990), which does not support
this claim; nor do the debates of the Convention, where the focus was on the
extent of any federal authority to establish uniform discipline and regulation
of the militia (including providing for arms), not on whether the States would
retain concurrent authority in areas where federal power was granted. For the
two chief debates, see Madison, Notes of Debates at 478,
483-85 (Aug. 18); id. at 512-16 (Aug. 23). Similarly, the Third
Circuit has cited, in support of the collective-right view, a statement by
Roger Sherman that States should retain power to use their militias for
internal needs. See United States v. Tot,
131 F.2d 261, 266 (1942), rev'd on other grounds, 319 U.S. 463 (1943)
(citing 5 Elliot's Debates 445 (2d ed. 1901)). We fail to see how
this statement supports that view, particularly given that no one appears to
have disagreed with Sherman; that he served on the committee that drafted what
became the final version of Article I, Section 8, Clause 16, Notes of
Debates at 480, 485 (Aug. 18); 494-95 (Aug. 21), and generally supported
its compromise, id. at 513-14; and that he saw no need for
amendments, see A Countryman No. 2 (1787), reprinted in
14 Doc. Hist. at 172 (John P. Kaminski & Gaspare J. Saladino
eds., 1983); A Countryman No. 3 (1787), reprinted
in id. at 296; A Citizen of New Haven (1789),
reprinted in Creating the Bill of Rights: The Documentary Record
from the First Federal Congress 220 (Helen E. Veit et. al. eds., 1991)
251 The Ninth Circuit in Silveira
did not mention this latter set of proposals, and the court presented the
comments in the ratification debates most relevant to these separate proposals
as if they instead related to the Second Amendment. See 312 F.3d at
1082-83; see also id. at 1078 (claiming without citation that "[t]he
compromise that the convention eventually reached, which granted the federal
government the dominant control over the national defense, led ultimately to
the enactment of the counter-balancing Second Amendment").
252 Robertson, 165 U.S. at 281
(discussing Bill of Rights in general); see Silveira, 328
F.3d at 584 (Kleinfeld, J.) ("The Second Amendment was not novel, but rather
codified and expanded upon long established principles.").
253 See, e.g., 2 Complete
Anti-Fed. at 7, 11 (public objections of Mason and Gerry); Va. Ratif.
Conv., in 10 Doc. Hist. at 1212 (remarks of Patrick Henry,
June 12, 1788) (invoking English Bill and state declarations); "Address by
Sydney" (Robert Yates) (1788), reprinted in 6 Complete
Anti-Fed. at 107, 109 (similar to Henry). One of the leading arguments of
this point was by the Federal Farmer. See Fed. Farmer No. 16
(1788), reprinted in 2 Complete Anti-Fed. at 323.
254 See, e.g., Federalist No. 84, at
575-81 (A. Hamilton); Marcus No. 1, Answer to Mr. Mason's Objections
(James Iredell) (1788), reprinted in 1 Debate on the
Const. at 363-64; Marcus No. 4 (1788), reprinted in id.
at 387-90; America, To the Dissenting Members of the late
Convention of Pennsylvania (Noah Webster) (1787), reprinted in 1
Debate on the Const. at 555-60.
255 As one Federalist criticized Luther
Martin, an Anti-Federalist who had been a delegate to the Constitutional
Convention: "One hour you sported the opinion, that Congress, afraid of the
militia resisting their measures, would neither arm nor organize them: and the
next, as if men required no time to breathe between such contradictions, that
they would harass them by long and unnecessary marches, till they wore down
their spirit and rendered them fit subjects for despotism." The Landholder
No. 10 (1788), reprinted in 16 Doc. Hist. at 265, 267
(John P. Kaminski & Gaspare J. Saladino eds., 1986).
256 Fed. Farmer No. 18
(1788), reprinted in 2 Complete Anti-Fed at 342; Va.
Ratif. Conv., in 10 Doc. Hist. at 1276 (remarks of Henry,
June 14, 1788).
257 See, e.g., regarding all of
these concerns, "John De Witt" No. 5 (1787), reprinted in 4
Complete Anti-Fed. at 36-37 (warning that federal government would
neglect to arm militia, not trusting the people, and enforce unjust laws
through standing army); Pa. Ratif. Conv., in 2 Doc. Hist. at
509 (remarks of John Smilie, Dec. 6, 1787) ("When a select militia is formed;
the people in general may be disarmed."); Fed. Farmer No. 3
(1787), reprinted in 2 Complete Anti-Fed. at 242
(discounting safeguard of armed "yoemanry of the people," whom Congress would
undermine through creating select militia); The Genuine Information
Delivered to the Legislature of the State of Maryland Relative to the
Proceedings of the General Convention Lately Held at Philadelphia; By Luther
Martin, Esquire (1788), reprinted in 2 Complete Anti-Fed.
at 59-60 (warning that Congress would use its militia and army powers "to
subvert the liberties of the States and their
citizens, since we [allow an unlimited standing army and,] by placing the
militia under its power, enable it to leave the militia totally
unorganized, undisciplined, and even to disarm them");
Va. Ratif. Conv., in 10 Doc. Hist. at 1271 (remarks of
Mason, June 14, 1788) (warning that Congress would "disarm the people"
gradually, rather than "openly," by "totally disusing and neglecting the
militia"). Henry repeatedly denounced the allegedly exclusive power. See
9 Doc. Hist. at 957 (June 5) ("Of what service would militia be
to you, when most probably you will not have a single musket in the State; for
as arms are to be provided by Congress, they may or may not furnish them.");
id. at 1066 (June 9) ("The power of arming the militia, and the means
of purchasing arms, are taken from the States . . . . If Congress will not arm
them, they will not be armed at all.").
258 See, e.g., Federalist No.
46, at 321-22 (J. Madison) (contrasting the "advantage of being armed,
which the Americans possess," with the circumstances in "several kingdoms of
Europe . . . [where] the governments are afraid to trust the people with
arms"); An American Citizen IV: On the Federal Government (Tench
Coxe) (1787), reprinted in 13 Doc. Hist. at 433 (John P.
Kaminski & Gaspare J. Saladino eds., 1981) (arguing that, if tyranny
threatened, the "friends to liberty . . . using those arms which
Providence has put into their hands, will make a solemn appeal 'to the
power above'"); "A Citizen of America," An Examination Into the
Leading Principles of the Federal Constitution (Noah Webster)
(1787), reprinted in 1 Debate on the Const. at 155
("Before a standing army can rule the people must be disarmed; as they are in
almost every kingdom in Europe. The supreme power in America cannot enforce
unjust laws by the sword; because the whole body of the people are
259 John Marshall, for example, provided a
standard analysis: "The truth is, that when power is given to the General
Legislature, if it was in the State Legislatures before, both shall exercise
it; unless there be an incompatibility in the exercise by one, to that by the
other; or negative words precluding the State Governments from it. But there
are no negative words here. It rests therefore with the States." Va. Ratif.
Conv., in 10 Doc. Hist. at 1307 (June 16).
260 Delaware already had ratified
unanimously. After Pennsylvania's vote, New Jersey, Georgia, and Connecticut
ratified by large majorities. No proposed amendments emerged from these
conventions. See Schwartz, 2 Bill of Rights at 627, 674.
Maryland ratified on April 26, 1788, without proposing amendments, although a
committee had approved several, including a prohibition on subjecting the
militia to martial law "except in time of war, invasion, or rebellion." The
committee understood the militia to consist of "all men, able to bear arms,"
which would make martial law for the militia a pretext for applying it to the
populace. See id. at 729-30, 734-35.
261 Schwartz, 2 Bill of Rights at
665. Tench Coxe, in a critique of the Minority, described this proposal as a
"provision against disarming the people." "Philanthropos,"
Penn. Gazette (1788), reprinted in 15 Doc. Hist. at
262 Schwartz, 2 Bill of Rights at
665. Noah Webster suggested that the Minority also propose "[t]hat Congress
shall never restrain any inhabitant of America from eating and drinking,
at seasonable times." His serious criticism of Article 8 was that it
was useless because aimed at game laws, which had never existed in America. He
did not comment on Article 7. "America," Daily Advertiser (1787),
reprinted in 1 Debate on the Const. at 559-60.
263 Schwartz, 2 Bill of Rights at
264 Id. at 671-72.
265 Id. at 674-75, 681. South
Carolina ratified in May 1788 without proposing any relevant amendments.
See id. at 739, 756-57.
266 The convention had adjourned in February
1788 to avoid a vote against ratification. When it reconvened in the summer,
it ratified by a vote of 57 to 47. See id. at 758.
267 Id. at 761; see id. at
758 (noting that the first nine New Hampshire amendments "were taken almost
verbatim from those proposed by Massachusetts").
268 Id. at 758. See U.S.
Const. art. VII.
269 See Schwartz, 2 Bill of
Rights at 762, 764.
270 See id. at 765-66.
271 Schwartz, 2 Bill of Rights at
842. Mason drafted this provision. See 9 Doc. Hist. at 821
(reprinting Mason's draft). Two articles later, Virginia also proposed
exemptions for those "religiously scrupulous of bearing arms," again borrowing
from Pennsylvania's Declaration. Schwartz, 2 Bill of Rights at 842.
272 Id. at 843.
273 Id. at 912. New York did not
propose any protection for conscientious objectors.
274 Id. at 915, 918.
275 Id. at 932-33, 968-69; Halbrook,
Right to Bear at 33-34.
276 First Inaugural Address (Apr. 30, 1789),
reprinted in 1 A Compilation of the Messages and Papers
of the Presidents 43, 45 (James D. Richardson ed., 1897).
277 Speech of Madison (June 8, 1789),
reprinted in Veit, Creating at 78-79.
279 See Letter from Rep. Fisher Ames
to George R. Minot (July 23, 1789) (discussing North Carolina), in
Veit, Creating at 269; Letter from Rep. William L. Smith to Edward
Rutledge (Aug. 9, 1789) (North Carolina; noting disposition of House to "agree
to some, which will more effectually secure private rights"), in id.
at 272-73; Letter from Rep. Frederick A. Muhlenberg to Benjamin Rush (Aug. 18,
1789) (Pennsylvania Minority), in id. at 280.
280 Letter from Lee to Henry (May 28, 1789),
in Veit, Creating at 241.
281 Letter from Grayson to Henry (June 12,
1789), in Veit, Creating at 249. See also Letter
from Joseph Jones to Madison (June 24, 1789), in id. at 253
(describing Madison's proposed amendments as well "calculated to secure the
personal rights of the people").
282 Madison Resolution (June 8, 1789),
reprinted in Veit, Creating at 12.
283 See above, Part III.B.2, at note
225 (discussing differences from Virginia Declaration).
284 12 Madison Papers at 193
(emphasis added); see id. at 194-95; Speech of Madison,
reprinted in Veit, Creating at 80.
285 Compare Speech of Madison,
reprinted in Veit, Creating at 80 (discussing "the
declaration of rights" of England), with id. at 84 (concluding by
describing his proposals "as a declaration of the rights of the people"). In
his notes, although apparently not in his speech, he pointed out that the
English right to arms was limited to Protestants. 12 Madison Papers
286 See Veit, Creating at
12 (Madison's proposal); id. at 80, 84 (Madison's speech). His
separate proposal of what would become the Tenth Amendment was to be placed
between Articles 6 and 7, as its own article. Id. at 13-14.
287 The arguable exception, as discussed
above in Part II.D.1 regarding the Establishment Clause, was a prohibition on
"any national religion." Madison proposed other amendments that did not relate
to private rights, such as altering the ratio of representation in the House
of Representatives and banning increases of legislator pay without an ensuing
election, but he proposed to place these elsewhere in the Constitution.
Id. at 12.
288 Letter from Ames to Thomas Dwight (June
11, 1789), in Veit, Creating at 247.
289 Letter from Ames to George R. Minot (June
12, 1789), in Veit, Creating at 247-48. The right of
"changing the government" to which Ames referred was a provision, in a
separate section of Madison's proposal, affirming the right of the people "to
reform or change their government, whenever it be found adverse or inadequate
to the purposes of its institution." Regarding such usage of the "the people,"
see Part II.A, above.
290 Philadelphia Fed. Gazette at 2
(June 18, 1789), excerpted in Kates, 82 Mich. L. Rev. at 224 &
nn.81-82. The Remarks were reprinted within three weeks in newspapers
in Boston (on the front page of a special July 4 issue) and New York.
See Stephen P. Halbrook & David B. Kopel, Tench Coxe and the
Right to Keep and Bear Arms, 1787-1823, 7 Wm. & Mary Bill Rts. J.
347, 367 (1999).
291 See Letter from Coxe to Madison
(June 18, 1789), in Veit, Creating at 252-53; Letter from
Madison to Coxe (June 24, 1789), in 12 Madison Papers at
257; see also Veit, Creating at 254 (excerpting Madison's
292 See Stephen P. Halbrook,
That Every Man Be Armed: The Evolution of a Constitutional Right 77
(1984) (noting that author's "search of the literature of the time reveals
that no writer disputed or contradicted Coxe's analysis").
293 Letter from Nasson to Thatcher (July 9,
1789), in Veit, Creating at 260-61 [sic]; see id.
at 309 (brief biography of Nasson).
294 Veit, Creating at
295 Id. at 6, 102-03; see
Letter from Madison to Wilson Cary Nicholas (Aug. 2, 1789), in
id. at 271 (referring to "the concord" of the committee); Letter from
Roger Sherman to Henry Gibbs (Aug. 4, 1789), in id. (another
committee member, predicting that committee's proposals "will probably be
harmless & Satisfactory to those who are fond of Bills of rights,"
although noting his desire to place them at the end of the Constitution).
296 See id. at 30.
The separate placement of what would become the Tenth Amendment remained
unchanged, and Madison's other proposals, noted above, also remained separate.
297 Letter from Rep. Frederick A. Muhlenberg
to Benjamin Rush (Aug. 18, 1789), in Veit, Creating at 280
(writing after the first day of debate that involved the arms provision, in
which no changes were made, and describing proposed amendments to date as
"nearly the same as" the committee "had reported them").
298 "From the Boston Indep. Chronicle,"
Philadelphia Indep. Gazetteer 2 (Aug. 20, 1789), excerpted in
Halbrook, Right to Bear at 45.
299 At the Constitutional
Convention, Gerry had bitterly opposed the federal powers over the militia in
Article I, Section 8, Clause 16. Madison, Notes of Debates at 513-16
(Aug. 23). Regarding his Anti-Federalist writings during ratification,
see Schwartz, 1 Bill of Rights at 464-65, 480-93. He had
attended the Massachusetts Convention as an invited observer and helped lead
the opposition. Id. at 465. Presumably, therefore, he supported
Samuel Adams's proposed amendments, even though he also desired additional
ones. See id. at 486-89.
300 Remarks of Gerry (Aug. 17, 1789),
reprinted in Veit, Creating at 182.
301 See Veit, Creating at
302 See id. at
198-99. The addition may have been an effort to partially satisfy
Representative Scott, by ensuring that Congress could at least require
conscientious objectors to provide an equivalent. Unlike Gerry, he objected to
the exemption because he worried that citizens, rather than Congress, would
abuse it, with the result that "you can never depend upon your militia." He
added, "This will lead to the violation of another article in the
constitution, which secures to the people the right of keeping arms, as in
this case you must have recourse to a standing army." Id. at 198.
While this cryptic and elliptical comment conceivably might be construed to
suggest a quasi-collective right, its meaning is far from clear, and we find
little probative value in it. The Fifth Circuit in Emerson reasonably
concluded that Scott's comment "does not plainly lend support to any of the
Second Amendment models," 270 F.3d at 248, and the Ninth Circuit in
Silveira did not cite it, see 312 F.3d at 1085-86.
303 See Veit, Creating at
117-28 (debate of Aug. 13, 1789); id. at 197-98 (debate of Aug. 19,
304 Id. at 37-41.
305 "The most prolific and one of the best
known of the Anti-Federalist essayists was the Centinel, whose essays appeared
in the Philadelphia Independent Gazetteer and the Philadelphia
Freeman's Journal and were widely reprinted." 2 Complete
Anti-Fed. at 130. He published twelve essays as Centinel Revived.
306 Centinel (Revived), No. 29
(1789), quoted in Emerson, 270 F.3d at 255.
307 The Senate combined provisions (such as
in creating what became the First and Fifth Amendments) and rejected House
provisions regulating appeals to the Supreme Court; applying religion, speech,
press, and criminal-jury protections to the States; and prohibiting violations
of the separation of powers. See Schwartz, 2 Bill of Rights
at 1145-47 (summarizing changes); compare Veit, Creating at
37-41 (House proposals), with id. at 47-49 (Senate).
308 See Veit, Creating at
39 n.13; Schwartz, 2 Bill of Rights at 1153-54 (Sen. Journal).
309 See Uviller & Merkel, 76
Chi.-Kent L. Rev. at 507 (theorizing that vote on common-defense clause was
prompted by desire to avoid either redundancy or the objection that the
amendment failed to protect militia service in defense of a State, as opposed
to the "common" national defense). The deletion of the troublesome
conscientious-objector clause could have been simply because of a desire, as
voiced in the House, to leave the matter to Congress's discretion, see,
e.g., Remarks of Rep. Benson (Aug. 17, 1789), reprinted in Veit,
Creating at 184, without affecting the right one way or the other.
310 One could argue that the definition was
considered superfluous. See Schwartz, 2 Bill of Rights at
1145 (observing that Senate in its revisions of the House proposals generally
"tighten[ed] up the language of the House version, striking out surplus
wording and provisions."); Part II.C.2-4 (discussing meaning of "Militia" at
311 Schwartz, 2 Bill of Rights at
1152 (Sen. Journal).
312 See Veit, Creating at
xii; Letter from Madison to Jefferson (Mar. 29, 1789), in id. at 225.
313 Letter from Lee to Henry (Sept. 14,
1789), in id. at 295. The Senate also, like the House, had
rejected a proposal to append to what became the Second Amendment a
supermajority requirement for peacetime standing armies, a provision to help
ensure that Congress would depend on and therefore provide for the militia.
Schwartz, 2 Bill of Rights at 1149 (Sen. Journal); see Veit,
Creating at 38-39 n.13.
314 Letter from Lee and Grayson to the
Speaker of the Virginia House of Delegates (Sept. 28, 1789), in Veit,
Creating at 299.
315 See id. at 49-50
(Conference Committee Report and House Resolution); id. at 296-98
(various letters of Sept. 1789, including by Madison, detailing concerns with
certain Senate revisions but not mentioning Second Amendment); Schwartz, 2
Bill of Rights at 1171-73 (regarding presidential transmittal).
316 See Schwartz, 2 Bill of
Rights at 1171-72 ("[W]e know practically nothing about what went on in
the state legislatures during the ratification process" and "[e]ven the
contemporary newspapers are virtually silent."); Emerson, 270 F.3d at
255 (without comment, omitting discussion of ratification); Silveira,
312 F.3d at 1086 (same).
317 Schwartz, 2 Bill of Rights at
1171, 1203. One of the two not then ratified was ratified in 1992 as the
Twenty-Seventh Amendment, which relates to congressional pay. The other
addressed the size of the House.
318 And even if one believes, contrary to the
historical record, that Anti-Federalists' concerns about the militia were
resolved in their favor, the Anti-Federalists' insistence on the superiority
of a citizen militia to a select militia, noted at the beginning of Part
III.C, would lead to the understanding of the Amendment's prefatory clause
that we set out in Part II.C, an understanding that is, as we explained, fully
consistent with the individual-right view of the Second Amendment.
319 See Clyde N. Wilson,
Forward, in St. George Tucker, View of the Constitution
of the United States, with Selected Writings at viii-ix (1999); Paul
Finkelman & David Cobin, An Introduction to St. George Tucker's
Blackstone's Commentaries, in 1 Tucker's Blackstone at
v-xii; Editor's Preface in id. at v.
320 1 Tucker's Blackstone, Note D,
at 300 (ellipsis in original).
322 Id. at 357; see
id. at 315-16 (explaining that, whereas in England, "the game-laws,
as was before observed, have been converted into the means of disarming the
body of the people," and statutes have restricted assemblies, the Constitution
will not "permit any prohibition of arms to the people; or of peaceable
assemblies by them"); id. at 289 (describing hypothetical law
"prohibiting any person from bearing arms" as violating the Second Amendment).
323 2 id. at *143-44 & nn.40-41.
See also id. at *145 n.42 (again criticizing game laws).
324 3 id. at *414 n.3; see
also, above, Parts III.A (discussing right to arms in England)
and III.B.2 (discussing doubts whether the relaxation of English game laws in
1700's succeeded as a practical matter in enabling commoners to keep arms).
325 1 id. at 273. Tucker thought the
federal powers in Article I, Section 8, Clause 16, to provide for "organizing"
and "disciplining" the militia were exclusive, id. at 180-81, but
that States retained "concurrent, though perhaps subordinate" powers to
provide for "arming" their militias and "to call them forth when necessary for
their internal defence," id. at 182, 183. His only other reference to
the Second Amendment in connection with the militia was in a note to
Blackstone's discussion of the militia, in which Tucker collected all
references in the Constitution to the militia, along with the Third Amendment,
Virginia laws, and the federal Militia Act. 2 id. at *409 n.1.
326 See Hardy, 9 Harv. J.L. &
Pub. Pol'y at 613. Rawle did agree to be United States Attorney for
the District of Pennsylvania. E.g., United States
v. Fries, 3 U.S. (3 Dall.) 515, 517 (C.C.D. Pa. 1799).
327 William Rawle, A View of the
Constitution of the United States of America 115 (2d ed. 1829; reprint
1970) (font altered; emphasis added).
328 Id. at 125-26.
329 Id. at 126. Regarding
Blackstone, see Part III.A above. For Tucker's annotations of some of
Blackstone's discussions of improper uses of arms, see 5 Tucker's
Blackstone at *126, 142-149, 175. Regarding the Pennsylvania Minority,
Adams, and New Hampshire, see Part III.C.1 above.
330 Rawle, A View of the Const. at
153. Significantly, in separately discussing the Militia Clauses of Article I,
Section 8, Rawle made no mention of the Second Amendment. Id. at
331 Ronald D. Rotunda & John E. Nowak,
Introduction, in Joseph Story, Commentaries on the
Constitution of the United States xi-xiv (Rotunda & Nowak eds., 1833;
reprint 1987) ("Abridgement").
332 Story, Abridgement 980-982,
333 Id. 984, at 698; see
id. 985-1011, at 698-714.
334 Id. 1001, at 708.
335 Joseph Story, 3 Commentaries on the
Constitution of the United States 1890, at 746 n.1 (1833; reprint
1991). In United States v. Miller, 307 U.S. 174,
182 n.3 (1939), the Supreme Court included this passage (from a later edition)
in a string citation.
336 Story, 3 Commentaries 1891, at
747. In a separate chapter, the full Commentaries also included an
extended discussion of the Anti-Federalist charges leveled against the Militia
Clauses, including the charge that the federal militia powers would be
exclusive (which Story found unpersuasive). Story alluded to the failure of
proposals explicitly to protect state militia powers. Id.
1198-1202, at 83-87.
337 Joseph Story, A Familiar Exposition
of the Constitution of the United States 450, at 319 (1840; reprint
338 Story, Abridgement 1001, at
339 Henry St. George Tucker, Commentaries
on the Laws of Virginia 43 (1831).
341 The Debates in the Several State
Conventions on the Adoption of the Federal Constitution at xv (Jonathan
Elliot ed., 2d ed. 1836; reprint 1987).
342 For additional antebellum commentators,
see David B. Kopel, The Second Amendment in the Nineteenth
Century, 1998 BYU L. Rev. 1359, 1399-1403, 1435-41; see also id.
at 1397-98 (discussing Henry Tucker).
343 Houston v.
Moore, 18 U.S. (5 Wheat.) 1, 16-17, 21-22 (1820) (plurality opinion
of Washington, J.); see id. at 34-36 (Johnson, J., concurring);
id. at 50-53 (Story, J., dissenting). Story dissented on the ground
that the militia law granted enforcement authority exclusively to federal
courts. Id. at 71-72.
344 12 Ky. (2 Litt.) 90, 1822 WL 1085. The
dissenting judge did not issue an opinion. See id. at *4.
345 Id. at *2.
346 The first court to depart from
Bliss's holding, the Indiana Supreme Court eleven years later in
State v. Mitchell, 3 Blackf. 229, 1833 WL 2617, at
*1, did not cite its neighboring court or otherwise explain itself, the entire
opinion being as follows: "It was held in this case, that the statute
of 1831, prohibiting all persons, except travelers, from wearing or carrying
concealed weapons, is not unconstitutional." We discuss the later antebellum
cases in the next subpart.
347 See Ky. Const. art. XIII, 25
(1850), reprinted in 3 Fed. and State Consts. at 1314.
348 Aldridge v.
Commonwealth, 4 Va. (2 Va. Cas.) 447, 1824 WL 1072, at *3 (Va. Gen.
349 5 Tucker's Blackstone at *175
n.17(7) (listing as among the "offences against the public police, or
[e]conomy," the restriction against "any" black or mulatto "keeping or
carrying any gun-powder, shot, club, or other weapon," including a "gun").
See also Waters v. State, 1 Gill. 302,
1843 WL 3024 (Md.) (explaining, with regard to free blacks, that "laws have
been passed to prevent their migration to this State; to make it unlawful for
them to bear arms; to guard even their religious assemblages with peculiar
350 United States v.
Sheldon, 5 Blume Sup. Ct. Trans. 337, 1829 WL 3021, at *12 (Mich.
Terr.). See also Commonwealth v. Blanding, 20 Mass.
(3 Pick.) 304, 338 (1825) (invoking right to keep arms to draw same analogy).
351 Johnson v.
Tompkins, 13 F. Cas. 840, 850 (C.C.E.D. Pa. 1833) (No. 7,416).
352 13 Tenn. (5 Yer.) 356, 1833 WL 1227.
353 1833 WL 1227, at *1.
354 Id. For more regarding the
relevant common law, see the discussion in State v.
Huntly, 25 N.C. (3 Ired.) 418, 1843 WL 891, at *2-3 (surveying common
law and noting "that the carrying of a gun per se constitutes no
offence"). See also State v. Langford, 10
N.C. (3 Hawks) 381, 1824 WL 380; 4 Blackstone at *149; William Hawkins, 1
A Treatise on the Pleas of the Crown ch. 63, 9, at 136 (1724;
reprint 1972). An English case that the court cited in Huntly,
predating the English Declaration of Rights, had construed a seemingly
restrictive medieval statute as only punishing "people who go armed to terrify
the king's subjects," not all who go armed. Sir John Knight's Case,
87 Eng. Rep. 75, 76, 3 Mod. Rep. 117 (K.B. 1686). The court recognized that
"now there be a general connivance to gentlemen to ride armed for their
security," such that violating the statute required riding "malo animo."
Id., 90 Eng. Rep. 330, 330, Comberbach Rep. 38.
355 1833 WL 1227, at *1.
356 1 Ala. 612, 1840 WL 229, at *2.
357 1840 WL 229, at *2.
358 Id. at *3.
359 Id. at *5-6.
360 Id. at *6-7; see id. at
361 31 Ala. 387, 1858 WL 340, at *1,
362 1 Ga. (1 Kelly) 243, 1846 WL 1167, at
*11. Georgia's constitution did not expressly protect the right to arms. The
court alluded to Barron v. Mayor & City Council of
Baltimore, 32 U.S. (7 Pet.) 243 (1833), which held that the Takings
Clause of the Fifth Amendment did not apply to the States and reasoned that
none of the Bill of Rights did, but rejected it because of the court's own
precedent, the Second Amendment's broad, non-restrictive language, and the
fundamental importance of the right. 1846 WL 1167, at *9-10.
363 Id. at *8.
364 Id. at *10.
366 Id. at *10, 9.
367 Stockdale v.
State, 32 Ga. 225, 1861 WL 1336, at *3. The Texas Supreme Court
before the Civil War appears also to have viewed the Second Amendment as
applying to the States and including an individual right to own arms and use
them for self-defense and perhaps hunting. See Choate
v. Redding, 18 Tex. 579, 1857 WL 5009, at *2;
Cockrum v. State, 24 Tex. 394, 1859 WL 6446, at
*6-8. In the latter case, in which the court rejected a constitutional
challenge to a sentencing enhancement for homicide with a bowie-knife, the
court did not cite any authority, but the defendant had cited Nunn,
Reid, Bliss, and Mitchell. 1859 WL 6446, at *3.
368 5 La. Ann. 489, 1850 WL 3838, at *1;
see id. at *2 (discussing self-defense).
369 State v.
Smith, 11 La. Ann. 633, 1856 WL 4793, at *1.
370 State v.
Jumel, 13 La. Ann. 399, 1858 WL 5151, at *1.
371 21 Tenn. (2 Hum.) 154, 1840 WL 1554.
372 4 Ark. (4 Pike) 18, 1842 WL 331.
373 That change may have been prompted by Nat
Turner's 1831 slave rebellion, which created fears of free blacks arming and
inciting slaves. See Robert J. Cottrol & Raymond T. Diamond,
The Second Amendment: Toward an Afro-Americanist Reconsideration, 80
Geo. L.J. 309, 337-38 (1991).
374 1840 WL 1554, at *3.
375 312 F.3d at 1073.
376 Id. (quoting Aymette,
1840 WL 1554, at *5).
377 1840 WL 1554, at *3; see id. at
*2. As noted above in Part III.B.2, in discussing the Massachusetts
Declaration of Rights, the phrase "common defense" is not necessarily
inconsistent with a right to bear arms for private purposes.
378 1840 WL 1554, at *5. Thus the Ninth
Circuit was incorrect in contending that Aymette "reached its
conclusion primarily because of" the conscientious-objector provision, rather
than the "common defense" language. Silveira, 312 F.3d at
1073. Furthermore, Aymette's reliance on the conscientious-objector
provision was not persuasive, as our discussions of the Pennsylvania and
Vermont declarations of rights (Part III.B.2) and proposals emerging from the
Pennsylvania, Virginia, and North Carolina ratifying conventions (Part
III.C.1) showed. See also Part II.B.2 (discussing meaning of "bear
arms"). It was common in a single document to refer separately both to the
right of individuals to "bear arms" and to exemption of individuals from the
duty to "bear" them in the service of the government. In addition, the court's
assertion that a hunter could never be said to "bear" arms, quoted above, is
open to doubt, given the proposed Virginia law discussed in Part II.B.2 and
the Pennsylvania Minority Report (see Parts II.B.2 and III.C.1), and,
in any event, says nothing about persons "bearing" arms in self-defense. The
court did not cite the decision of its southern neighbor in Reid,
which appears to have been decided about six months before; it treated its
previous discussion of the right in Simpson as dicta, 1840
WL 1554, at *5-6.
379 See above, Part III.C.2
(discussing conscientious-objector clause in draft of Second Amendment).
380 1840 WL 1554, at *4. As we noted in the
introduction of Part II.B, the Ninth Circuit, in reaffirming its
collective-right view, did not attempt to reconcile the right to "keep" arms
with its view.
381 Id. at *3, *5.
382 See id. at *4 ("the citizens may
bear [arms] for the common defence," but "the Legislature may prohibit such
manner of wearing as would never be resorted to by persons engaged in the
common defence") (emphasis added).
383 Id. at *2.
384 Id. at *3-4. Furthermore, even
if one might read the court's rejection of an individual right to bear arms in
"private defence" as foreclosing any individual right to bear arms,
two aspects of the court's reasoning (in addition to its analysis of "bear")
leave it open to question. First, the court's account of the English right,
see id. at *2, was contrary to the text of the English Bill of Rights
and Blackstone's exposition of an individual right to arms for self-defense,
and failed to recognize that the individual English right was transplanted to
America free of England's aristocratic restrictions, as Tucker, Rawle, Story,
and others had recognized and praised. Second, faced with the defendant's
provocatively absolute claim regarding the scope of the right, see
id. at *1, the court responded with dichotomies between bearing arms by
the body of the people for the common defense and "bearing" arms for
hypothetical criminal purposes, such as terrifying people. In thus defining
the question, the court defined away the well-established third possibility -
bearing arms in legitimate self-defense - and overlooked background law
prohibiting bearing weapons for the hypothesized purposes. Compare
id. at *3-4, with Simpson, 1833 WL 1227, at *1;
State v. Huntly, 25 N.C. (3 Ired.) 418, 1843 WL
891; 4 Blackstone at *145-47; Reid, 1840 WL 229, at *3, 5-6.
385 Andrews v.
State, 50 Tenn. (3 Heisk.) 165, 1871 WL 3579, at *6. Andrews
was the first case in any jurisdiction to cite Aymette regarding the
right to bear arms.
386 See id. at *8 ("The Convention
of 1870, knowing that there had been differences of opinion on this question,
have conferred on the Legislature in this added clause, the right to regulate
the wearing of arms, with a view to prevent crime"); id. at *13
("Ever since the opinions were promulgated, it has been my deliberate
conviction that the exposition of the Constitution . . . in Simpson .
. . was much more correct than that . . . in Aymette . . . .")
(Nelson, J., joined by Turley, J., dissenting in part).
387 1871 WL 3579, at * 3.
388 Id. at *11.
389 Id. at *10 (finding "much of
interesting and able discussion of these questions" in Bliss,
Reid, and Nunn; explaining that in Reid and
Nunn "the general line of argument found in this opinion is
maintained" and that the court had been "aided . . . greatly by the
reasoning of these enlightened courts"); id. (describing
Aymette as "hold[ing] the same general views" as the
Andrews court) (emphasis added).
390 Id. at *8 (emphasis added).
391 Id. at *9.
392 Id. at *6-7.
393 Id. at *11.
394 Id. at *13.
395 1840 WL 1554, at *3.
396 1871 WL 3579, at *9. The court elsewhere
defined "arms" as those furthering the end of "the efficiency of the citizen
as a soldier," id. at *7, and as including not only weapons "adapted
to the usual equipment of the soldier" but also those "the use of which may
render him more efficient as such," id. at *11. The term had to be
"taken in connection with the fact that the citizen is to keep them as a
citizen" and therefore included such "as are found to make up the usual arms
of the country, and the use of which will properly train and render him
efficient in defense of his own liberties, as well as of the State."
Id. at *7.
397 Id. at *7; id. at *11.
Two judges dissented in part, criticizing Aymette and taking a
broader view than the majority based on Simpson, Bliss,
Blackstone, and Tucker. Id. at *13-15 (Nelson, J., joined by Turney,
J., dissenting in part). They argued that "for their common defense" was
equivalent to "in defense of themselves and the State." Id. at
*13-14. Similarly, "The word 'bear' was not used alone in the military sense
of carrying arms, but in the popular sense of wearing them in war or in
398 E.g., Fife v.
State, 31 Ark. 455, 1876 WL 1562, at *3 (summarizing holding and then
relying on Aymette and Andrews); State v.
Wilforth, 74 Mo. 528, 1881 WL 10279, at *1 (including
Buzzard in string citation with Nunn, Jumel,
Mitchell, Owen, and Reid, and relying on
Reid). Buzzard was first cited in 1872. See
State v. English, 35 Tex. 473, 1872 WL 7422;
Carroll v. State, 28 Ark. 99, 1872 WL 1104.
399 Buzzard, 4 Ark. 18, 1842 WL 331,
400 See id. at *6 (equating
the two, and adopting a single rule for evaluating restrictions).
401 See id. at *4 (explaining that
"the militia, without arms . . . might be unable to resist, successfully, the
effort of those who should conspire to overthrow the established institutions
of the country, or subjugate their common liberties" and that "the people
designed and expected to accomplish this object by the adoption of the article
under consideration, which would forever invest them with a legal right to
keep and bear arms for that purpose"); id. at *6 ("The act in
question does not . . . detract anything from the power of the people to
defend their free state and the established institutions of the country.");
see also id. at *2 (expressly equating Second Amendment right with
rights in First); id. at *7 (noting that Reid and
Mitchell had upheld similar laws notwithstanding constitutional
provisions expressly protecting bearing arms in self-defense). As in
Aymette, the court was faced with an absolute claim that the right
was subject to no restrictions, and responded similarly. See id. at
402 See Carroll, 1872 WL
1104, at *2 (upholding conviction for carrying deadly weapon concealed and
explaining Buzzard as holding that "a constitutional right to
bear arms in defense of person and property does not prohibit
the legislature from making such police regulations as may be necessary for
the good of society, as to the manner in which such arms shall be borne";
adding that a "citizen" may not "use his own property or bear his own
arms in such way as to injure the property or endanger the life of his
fellow citizen") (emphases added); Fife, 1876 WL 1562, at *3, 4
(restating Buzzard's holding, and upholding conviction for carrying
pistol by construing statute only to apply to pistol that "is usually carried
in the pocket, or of a size to be concealed about the person, and used in
private quarrels, and brawls, and not such as is in ordinary use, and
effective as a weapon of war, and useful and necessary for 'the common
defence'"); Wilson v. State, 33 Ark. 557, 1878 WL
1301, at *2 (reversing conviction for carrying side arms, where trial court
had refused jury instruction to acquit if pistol was "army size . . . such as
are commonly used in warfare"; citing Fife and Andrews and
explaining that "to prohibit the citizen from wearing or carrying a war
arm, except upon his own premises or when on a journey . . . , or when
acting as or in aid of an officer, is an unwarranted restriction upon his
constitutional right to keep and bear arms") (emphases added).
403 1842 WL 331, at *7 (Dickinson, J.,
concurring). See also Kopel, 1998 BYU L. Rev. at 1425 ("The
Buzzard concurrence's assertion that the right to arms was not
individual vanished from American case law for the rest of the nineteenth
404 1842 WL 331, at *7 (Dickinson, J.);
see id. at *10 ("The act . . . does not, in my opinion, conflict with
any of the powers of the General Government.").
405 Id. at *7, 9. It is unclear what
significance he gave to the state constitution's provision. See id.
406 Id. at *8.
407 Id. at *10 (Lacy, J.,
408 Id. at *14. See also
id. (arguing that the right has at times "been the only means by which
public liberty or the security of free States has been vindicated and
409 Id. at *10.
410 Id. at *12-14.
411 See, e.g., Laws of Miss. ch. 23,
1, at 165 (enacted Nov. 29, 1865), reprinted in Stephen P.
Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms,
1866-1876, at 2 (1998). See generally Halbrook,
Freedmen at 2-3, 5, 8-12, 15-16, 18-20, 22-23, 26-32, 34-37
(collecting reports of army and Freedmen's Bureau officers to President and
Congress, petitions to Congress, and other public materials documenting
attempts in former Confederacy in 1865 and 1866 to disarm blacks, including
through legislation and by militias).
412 Cong. Globe, 39th Cong., 1st
Sess. 474 (1866). See also id. at 478 (Sen.
Saulsbury, lamenting this effect of the Act). Regarding Trumbull, see
Raoul Berger, Government by Judiciary: The Transformation of the
Fourteenth Amendment 32 (2d ed. 1997).
413 Cong. Globe at 1838-39 (Rep. Clarke);
id. at 1266 (Rep. Raymond). See also id. at 1629
(Rep. Hart, explaining that Act would guarantee to free blacks "[a] government
. . . where 'no law shall be made prohibiting the free exercise of religion';
where 'the right of the people to keep and bear arms shall not be
414 Id. at 1182.
415 Id. at 2765 (Sen. Howard).
416 See Halbrook, Freedmen
at 36 (collecting excerpts).
417 Berger, Government by
Judiciary at 30, 30-39, 53-54. Berger does not specifically mention the
right to keep and bear arms. See, e.g., id. at 166-69
(addressing Sen. Howard's statement but omitting his listing of rights).
418 Section 1 of the Civil Rights Act
declares all those born in the United States to be citizens, grants "the same
right, in every State and Territory in the United States . . . as is enjoyed
by white citizens" with regard to certain enumerated aspects of property,
contracting, and lawsuits, and guarantees "full and equal benefit of all laws
and proceedings for the security of person and property." 14 Stat. 27 (1866).
In light of Blackstone's understanding and the context of the black codes, any
laws regarding the ability to keep or bear arms would presumably be "laws . .
. for the security of person and property" and therefore would need to be
equal for all citizens regardless of color.
419 Act of July 16, 1866, 14, 14 Stat. 173,
176 (emphasis added). The President's reasons for his veto did not involve any
disagreement with Congress regarding this right. See Veto Message
(July 16, 1866), reprinted in 8 A Compilation of the Messages and
Papers of the Presidents 3620 (James D. Richardson ed., 1897).
420 Act of Mar. 2, 1867, 6, 14 Stat. 485,
487. The President did inform the House that he was signing under "protest"
because this provision, and another to which he objected, were included in an
essential appropriation bill. See Letter to the House of
Representatives (Mar. 2, 1867), reprinted in 8 Messages and
Papers at 3670. Regarding the militia provision, he objected that it
"denies to ten States of this Union their constitutional right to protect
themselves in any emergency by means of their own militia." It may be that in
his constitutional objection he had in mind Article I, Section 10's implicit
recognition of the prerogative of States to defend themselves with their
militias in cases of invasion or imminent danger. See Part II.D.2
above (discussing ways in which original Constitution recognizes that States
will have and be able to use militias).
421 The Senate debate is summarized from the
Congressional Globe in Halbrook, Freedmen at 68-69.
422 See id. at 69 ("Astonishingly,
while still waiving the bloody shirt and depriving Southerners of suffrage,
Republicans were unwilling to deny the right to have arms to
ex-Confederates."); Nelson Lund, Book Review, Outsider Voices on Guns and
the Constitution, 17 Const. Comm. 701, 713 (2000) (reviewing Halbrook)
("This incident perfectly illustrates why the Second Amendment had been
adopted in the first place.").
423 See Kates, 82 Mich. L. Rev. at
243. Among Cooley's many works was to prepare the fourth edition of Story's
unabridged Commentaries, published in 1873.
424 Thomas Cooley, General Principles of
Constitutional Law in the United States of America 271 (1880). Cooley
cited 1 Tucker's Blackstone at 300, which praises the right in the
Second Amendment as "the true palladium of liberty" and, paralleling
Blackstone, ties it to the natural "right of self defence." See
above, Part IV.A.
425 Rawle, View of the Const. at
125, discussed above in Part IV.A.
426 He added, citing Andrews (which
had not interpreted the Second Amendment), that the Amendment protected the
keeping of arms "suitable for the general defence of the community against
invasion or oppression," whereas "the secret carrying of those suited merely
to deadly individual encounters may be prohibited." Cooley, General
Principles at 271-72.
427 Id. at 88-89.
428 See Kopel, 1998 BYU L. Rev. at
429 Thomas Cooley, A Treatise on the
Constitutional Limitations Which Rest Upon the Legislative Power of the States
of the American Union 35-36 (1868).
430 Id. at 350; see id. at
295 (chapter title). Miller cited this section. See 307 U.S.
at 182 n.3 (citing "Cooley's Constitutional Limitations, Vol. 1, p. 729,"
likely the 8th edition, published well after Cooley's death).
431 Cooley, Constitutional
Limitations at 18.
432 See Presser v.
Illinois, 116 U.S. 252, 264-65 (1886); see also United
States v. Cruikshank, 92 U.S. 542, 553 (1876);
Logan v. United States, 144 U.S. 263, 286-87
(1892); Maxwell v. Dow, 176 U.S. 581, 597 (1900).
As noted above in Part I, the federal Government did not regulate private
firearms until 1934.
433 165 U.S. 275, 281-82 (1897).
434 83 P. 619, 620 (Kan. 1905).
435 See id. As shown in Parts
III.B.2 and III.C.1, however, there was nothing unusual in combining such
declarations with an individual right to arms.
436 See 83 P. at 620. The Fifth
Circuit in Emerson criticized Salina, to the extent that it
was endorsing a quasi-collective-right view, as "constru[ing] the
constitutional provision as saying no more than that the citizen has a right
to do that which the state orders him to do and thus neither grants the
citizen any right nor in any way restricts the power of the state." It found
such a criticism "especially applicable to the theory that such state
constitutional provisions grant rights only to the state," noting that
Salina did "not appear even to recognize, much less attempt to
justify, the anomaly of construing a constitutional declaration of rights as
conferring rights only on the state which had them anyway." 270 F.3d at 231
n.30 (emphasis added). In the context of the right to keep and bear arms in
the federal Constitution, the quasi-collective-right view appears to amount to
the right of a militiaman, through a private cause of action (or defense), to
act as an agent for the interests of the State to vindicate its power to
establish and maintain an armed and organized militia such as the National
Guard. See, e.g., United States v. Haney, 264 F.3d
1161, 1165 (10th Cir. 2001).
437 Strickland v.
State, 72 S.E. 260, 262 (Ga. 1911). For additional discussion of
City of Salina, see Kopel, 1998 BYU L. Rev. at 1510-12.
"We'll take one step at a time, and the first is necessarily - given the political realities - very modest. We'll have to start working again to strengthen the law, and then again to strengthen the next law and again and again. Our ultimate goal, total control of handguns, is going to take time. The first problem is to slow down production and sales. Next is to get registration. The final problem is to make possession of all handguns and ammunition (with a few exceptions) totally illegal. - Pete Shields, founder of Handgun Control, Inc., New Yorker Magazine, June 26, 1976, pg. 53"
Government Document settles Second Amendment Question