In 2008 and 2010, the (Conservative) Supreme Court
issued two landmark decisions
officially establishing this interpretation. In District of Columbia v. Heller
, 554 U.S. 570 (2008), the Court ruled that the Second Amendment protects an individual's right to possess a firearm, unconnected to service in a militia
and to use that arm for traditionally lawful purposes, such as self-defense within the home within many longstanding prohibitions and restrictions on firearms possession listed by the Court as being consistent with the Second Amendment.
In McDonald v. Chicago
, 561 U.S. 3025 (2010), the Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government.
There are several versions of the text of the Second Amendment, each with slight capitalization and punctuation differences, found in the official documents surrounding the adoption of the Bill of Rights.
One version was passed by the Congress
while another is found in the copies distributed to the States
and then ratified by them.
As passed by the Congress:
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.
As ratified by the States and authenticated by Thomas Jefferson, Secretary of State:
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
The Second Amendment is the only amendment to the Constitution which states a purpose.
Pre-Constitution background; Influence of the English Bill of Rights of 1689
The right to have arms in English history is believed to have been regarded as a long-established natural right
in English law, auxiliary to the natural and legally defensible rights to life.
The English Bill of Rights 1689
emerged from a tempestuous period in English politics during which two issues were major sources of conflict: the authority of the King to govern without the consent of Parliament and the role of Catholics in a country that was becoming ever more Protestant.
Ultimately, the Catholic James II
was overthrown in the Glorious Revolution
, and his successors, the Protestants William III
and Mary II
, accepted the conditions that were codified in the Bill. One of the issues the Bill resolved was the authority of the King to disarm its subjects, after James II had attempted to disarm many Protestants, and had argued with Parliament over his desire to maintain a standing (or permanent) army.
The bill states that it is acting to restore "ancient rights" trampled upon by James II, though some have argued that the English Bill of Rights created a new right to have arms, which developed out of a duty to have arms.
In District of Columbia v. Heller
(2008), the Supreme Court did not accept this view, remarking that the English right at the time of the passing of the English Bill of Rights was "clearly an individual right, having nothing whatsoever to do with service in the militia" and that it was a right not to be disarmed by the Crown and was not the granting of a new right to have arms.
The text of the English Bill of Rights of 1689 includes language protecting the right of Protestants against disarmament by the Crown. This document states: "That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law."
It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament.
Nevertheless, the English Bill of Rights remains an important constitutional document, more for enumerating the rights of Parliament over the monarchy than for its clause concerning a right to have arms.
The statement in the English Bill of Rights concerning the right to bear arms is often quoted only in the passage where it is written as above and not in its full context. In its full context it is clear that the bill was asserting the right of Protestant citizens not to be disarmed by the King without the consent of Parliament and was merely restoring rights to Protestants that the previous King briefly and unlawfully had removed. In its full context it reads:
Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome (list of grievances including) ... by causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law, (Recital regarding the change of monarch) ... thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors in like Case have usually done) for the Vindicating and Asserting their ancient Rights and Liberties, Declare (list of rights including) ... That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.
The historical link between the English Bill of Rights and the Second Amendment, which both codify an existing right and do not create a new one, has been acknowledged by the U.S. Supreme Court.
The English Bill of Rights includes the proviso that arms must be as "allowed by law." This has been the case before and after the passage of the Bill. While it did not override earlier restrictions on the ownership of guns for hunting, it was written to preserve the hunting rights of the landed aristocracy
and is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments.
There is some difference of opinion as to how revolutionary the events of 1688â89 actually were, and several commentators make the point that the provisions of the English Bill of Rights did not represent new laws, but rather stated existing rights. Mark Thompson wrote that, apart from determining the succession, the English Bill of Rights did "little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already posessed [sic
Before and after the English Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm.
In 1765, William Blackstone
wrote the Commentaries on the Laws of England
describing the right to have arms in England during the 18th century as a natural right of the subject that was "also declared" in the English Bill of Rights.
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression
Although there is little doubt that the writers of the Second Amendment were heavily influenced by the English Bill of Rights, it is a matter of interpretation as to whether they were intent on preserving the power to regulate arms to the states over the federal government (as the English Parliament had reserved for itself against the monarch) or whether it was intent on creating a new right akin to the right of others written into the Constitution (as the Supreme Court recently decided).
Some in the U.S. have preferred the "rights" argument arguing that the English Bill of Rights had granted a right. The need to have arms for self-defence was not really in question. Peoples all around the world since time immemorial had armed themselves for the protection of themselves and others, and as organized nations began to appear these arrangements had been extended to the protection of the state.
Without a regular army and police force (which in England was not established until 1829), it had been the duty of certain men to keep watch and ward at night and to confront and capture suspicious persons. Every subject had an obligation to protect the king's peace and assist in the suppression of riots.
Experience in America prior to the U.S. Constitution
Ideals that helped to inspire the Second Amendment in part are symbolized by the minutemen
Early American settlers viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes (in no particular order):
enabling the people to organize a militia system
participating in law enforcement
deterring tyrannical government
facilitating a natural right of self-defense
Which of these considerations were thought of as most important and ultimately found expression in the Second Amendment is disputed. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776
asserted that, "the people have a right to bear arms for the defense of themselves and the state".
During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, including many who were loyal to British imperial rule. As defiance and opposition to British rule developed, a distrust of these Loyalists
in the militia became widespread among the colonists, known as Patriots
, who favored independence from British rule.
As a result, these Patriots established independent colonial legislatures to create their own militias that excluded the Loyalists and then sought to stock independent armories for their militias. In response to this arms build up, the British Parliament
established an embargo on firearms, parts and ammunition on the American colonies.
While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense.
Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars' interpretation of Blackstone.
The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 Boston objecting to the British army suppression of colonial opposition to the Townshend Acts
Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such nature, and have been carried to such lengths, as must serve fully to evince that a late vote of this town, calling upon its inhabitants to provide themselves with arms for their defense, was a measure as prudent as it was legal: such violences are always to be apprehended from military troops, when quartered in the body of a populous city; but more especially so, when they are led to believe that they are become necessary to awe a spirit of rebellion, injuriously said to be existing therein. It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.
Following the Revolution, the United States was governed by the Articles of Confederation
. Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the standing army
was reduced to as few as 80 men.
They considered it to be bad that there was no effective federal military crackdown to an armed tax rebellion in western Massachusetts
known as Shays' Rebellion
Anti-federalists on the other hand took the side of limited government and sympathized with the rebels, many of whom were former Revolutionary War soldiers.
Subsequently, the Philadelphia Convention
proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size. Anti-federalists
objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power.
Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that James Madison
"did not invent the right to keep and bear arms when he drafted the Second Amendment; the right was pre-existing at both common law and in the early state constitutions."
In contrast, historian Jack Rakove
suggests that Madison's intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed.
One aspect of the gun control debate is the conflict between gun control laws and the right to rebel against unjust governments. Blackstone in his Commentaries alluded to this right to rebel as the natural right of resistance and self preservation, to be used only as a last resort, exercisable when "the sanctions of society and laws are found insufficient to restrain the violence of oppression".
Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation,
as Alexander Hamilton
explained in 1788:
[I]f circumstances should at any time oblige the government to form an army of any magnitude[,] that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.
Some scholars have said that it is wrong to read a right of armed insurrection in the Second Amendment because clearly the founding fathers sought to place trust in the power of the ordered liberty of democratic government versus the anarchy of insurrectionists.
Other scholars, such as Glenn Reynolds
, contend that the framers did believe in an individual right to armed insurrection. The latter scholars cite examples, such as the Declaration of Independence
(describing in 1776 "the Right of the People to...institute new Government") and the New Hampshire Constitution
(stating in 1784 that "nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind").
There was an ongoing debate in the 1780s about "the people" fighting governmental tyranny (as described by Anti-Federalists); or the risk of mob rule
of "the people" (as described by the Federalists) related to the ongoing revolution in France
A widespread fear, during the debates on the ratification of the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens,
or prohibiting citizens from arming themselves.
Though it has been argued that the states lost the power to arm their citizens when the power to arm the militia was transferred from the states to the federal government by Article 1, Section 8 of the US Constitution, the individual right to arm was retained and strengthened by the Militia Act of 1792 and the similar act of 1795.
Struggling under the inefficiencies of the Articles of Confederation, delegates from Virginia and Maryland assembled at the Mount Vernon Conference
in March 1785 to fashion a remedy. The following year, at a meeting in Annapolis, Maryland
, 12 delegates from five states (New Jersey
, New York
, and Virginia
) met and drew up a list of problems with the current government model. At its conclusion, the delegates scheduled a follow-up meeting in Philadelphia
, Pennsylvania for May 1787 to present solutions to these problems, such as the absence of:
interstate arbitration processes to handle quarrels between states;
sufficiently trained and armed intrastate security forces to suppress insurrection;
a national militia to repel foreign invaders.
It quickly became apparent that the solution to all three of these problems required shifting control of the states' militias to the federal congress and giving that congress the power to raise a standing army. Article 1, Section 8
of the Constitution codified these changes by allowing the Congress to do the following:
provide for the common defense and general welfare of the United States;
raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
provide and maintain a navy;
make rules for the government and regulation of the land and naval forces;
provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
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.
Some representatives mistrusted proposals to enlarge federal powers, because they were concerned about the inherent risks of centralizing power. Federalists
, including James Madison, initially argued that a bill of rights was unnecessary, sufficiently confident that the federal government could never raise a standing army powerful enough to overcome a militia.
Federalist Noah Webster
argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army. Anti-federalists
, however, advocated amending the Constitution with clearly defined and enumerated rights providing more explicit constraints on the new government.
Many Anti-federalists feared the new federal government would choose to disarm state militias. Federalists countered that in listing only certain rights, unlisted rights might lose protection. The Federalists realized there was insufficient support to ratify the Constitution without a bill of rights and so they promised to support amending the Constitution to add a bill of rights following the Constitution's adoption.
persuaded enough Anti-federalists to vote for the Constitution, allowing for ratification.
The Constitution was declared ratified June 21, 1788, when nine of the original thirteen states had ratified it. The remaining four states later followed suit, although the last two states, North Carolina and Rhode Island, ratified only after Congress had passed the Bill of Rights and sent it to the states for ratification.
James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June 8, 1789, and was adopted on December 15, 1791.
The debate surrounding the Constitution's ratification is of practical import, particularly to adherents of originalist
and strict constructionist
legal theories. In the context of such legal theories and elsewhere, it is important to understand the language of the Constitution in terms of what that language meant to the people who wrote and ratified the Constitution.
The Second Amendment was relatively uncontroversial at the time of its ratification.
Robert Whitehill, a delegate from Pennsylvania, sought to clarify the draft Constitution with a bill of rights explicitly granting individuals the right to hunt on their own land in season,
though Whitehill's language was never debated.
Rather, the Constitutional delegates altered the language of the Second Amendment several times to emphasize the military context of the amendment
and the role of the militia as a force to defend national sovereignty,
and protect against tyranny.
There was substantial opposition to the new Constitution, because it moved the power to arm the state militias from the states to the federal government. This created a fear that the federal government, by neglecting the upkeep of the militia, could have overwhelming military force at its disposal through its power to maintain a standing army and navy, leading to a confrontation with the states, encroaching on the states' reserved powers and even engaging in a military takeover.
Article VI of the Articles of Confederation
states:No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the united States in congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the united States, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.
In contrast, Article I, Section 8
of the U.S. Constitution states: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.
A foundation of American political thought during the Revolutionary period was the well justified concern about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny.
Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is "a chimerical idea to suppose that a country like this could ever be enslaved . . . Is it possible . . . that an army could be raised for the purpose of enslaving themselves or their brethren? or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?"
Noah Webster similarly argued:Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.
George Mason argued the importance of the militia and right to bear arms by reminding his compatriots of England's efforts "to disarm the people; that it was the best and most effectual way to enslave them . . . by totally disusing and neglecting the militia." He also clarified that under prevailing practice the militia included all people, rich and poor. "Who are the militia? They consist now of the whole people, except a few public officers." Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.
The framers thought the personal right to bear arms to be a paramount right by which other rights could be protected. Therefore, writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included "the right to keep and bear arms" in a list of basic "human rights", which he proposed to be added to the Constitution.
Patrick Henry, in the Virginia ratification convention June 5, 1788, argued for the dual rights to arms and resistance to oppression:
Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.
While both Monroe and Adams supported ratification of the Constitution, its most influential framer was James Madison. In Federalist No. 46
, he confidently contrasted the federal government of the United States to the European kingdoms, which he contemptuously described as "afraid to trust the people with arms." He assured his fellow citizens that they need never fear their government because of "the advantage of being armed...."
By January of 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several specific amendments were proposed, but were not adopted at the time the Constitution was ratified. For example, the Pennsylvania convention debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia.
The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to amendments to assure ratification. Samuel Adams proposed that the Constitution:Be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defence of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of their grievances: or to subject the people to unreasonable searches and seizures.
Conflict and compromise in Congress produce the Bill of Rights
's initial proposal for a bill of rights was brought to the floor of the House of Representatives on June 8, 1789, during the first session of Congress. The initial proposed passage rela