Citizen Soldier Handbook: Saving Our Second Amendment

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We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution. The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. See D. Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. Respondent Dick Heller is a D. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused.

District of Columbia , F. See id. The Court of Appeals directed the District Court to enter summary judgment for respondent. We turn first to the meaning of the Second Amendment. Sprague , U. Ogden , 9 Wheat. Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation. The two sides in this case have set out very different interpretations of the Amendment. Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

See Brief for Respondent 2—4. The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. Logic demands that there be a link between the stated purpose and the command.

But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. See F. Potter ed. Marks , 3 East, , K. Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose. As we said in United States v. Verdugo-Urquidez , U. We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

Webster, American Dictionary of the English Language reprinted hereinafter Webster similar. The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. Laws ch. Cushing ed. Duke , 42Tex. Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way.

Just as the First Amendment protects modern forms of communications, e. American Civil Liberties Union , U. United States , U. In Muscarello v. Hall eds.

Second Amendment |

That was also the interpretation of those state constitutional provisions adopted by pre-Civil War state courts. See 2 Oxford No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. See L. Levy, Origins of the Bill of Rights Those sources would have had little occasion to use it except in discussions about the standing army and the militia.

See, e. Fitzpatrick ed. See post , at 12—13, n. Of course, as we have said, the fact that the phrase was commonly used in a particular context does not show that it is limited to that context, and, in any event, we have given many sources where the phrase was used in nonmilitary contexts. Justice Stevens uses the same excuse for dismissing the state constitutional provisions analogous to the Second Amendment that identify private-use purposes for which the individual right can be asserted.

See post , at That analysis is faulty. A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass except, apparently, in some courses on Linguistics. Veit, K. Bickford eds. It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process. It was not meant to exempt from military service those who objected to going to war but had no scruples about personal gunfights.

Brock, Pacifism in the United States ; see M. Clarkson, Portraiture of Quakerism — 3d ed. See 5 Stat. Flanders eds. There is nothing to this. Although the phrase was not at all common which would be unusual for a term of art , we have found instances of its use with a clearly nonmilitary connotation. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment , like the First and Fourth Amendment s, codified a pre-existing right.

Cruikshank , 92 U. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed …. Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents.

See J. Schwoerer, The Declaration of Rights, , p. Under the auspices of the Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm — These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms.

This right has long been understood to be the predecessor to our Second Amendment. See E. It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament.

Schwoerer, Declaration of Rights, at ; see also id. By the time of the founding, the right to have arms had become fundamental for English subjects. Maine , U. See 1 Blackstone , — His description of it cannot possibly be thought to tie it to militia or military service. Other contemporary authorities concurred. See G. Stephens ed. Blizard, Desultory Reflections on Police 59—60 And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms.

Dickerson ed. They understood the right to enable individuals to defend themselves. See also W. There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Williams , U. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.

Miller , U. Wright ed. Peterson ed. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. To be sure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus upon the entire body.

Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them. Lloyd eds. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary—an argument that Alexander Hamilton made in favor of federal control over the militia. The Federalist No. Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.

The Second Amendment Is an Anachronism

We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights. The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable all agreed that it was but over whether it needed to be codified in the Constitution.

During the ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. Storing ed. Jensen ed. Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. Young ed. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.

The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. Baldwin , U. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force. Our interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment.

Four States adopted analogues to the Federal Second Amendment in the period between independence and the ratification of the Bill of Rights. Two of them—Pennsylvania and Vermont—clearly adopted individual rights unconnected to militia service. In , Vermont adopted the identical provision, except for inconsequential differences in punctuation and capitalization.

See Vt. This could plausibly be read to support only a right to bear arms in a militia—but that is a peculiar way to make the point in a constitution that elsewhere repeatedly mentions the militia explicitly. Candler ed.

Gun Quotations of the Founding Fathers

See State v. Huntly , 3 Ired. First, Art. XVII, in 3 Thorpe , Blanding , 20 Mass. The analogy makes no sense if firearms could not be used for any individual purpose at all. We therefore believe that the most likely reading of all four of these pre- Second Amendment state constitutional provisions is that they secured an individual right to bear arms for defensive purposes. Other States did not include rights to bear arms in their pre constitutions—although in Virginia a Second Amendment analogue was proposed unsuccessfully by Thomas Jefferson.

Boyd ed. Between and , nine States adopted Second Amendment analogues. See Tenn. And with one possible exception that we discuss in Part II—D—2, 19th-century courts and commentators interpreted these state constitutional provisions to protect an individual right to use arms for self-defense. See n. State , 5Yer. The historical narrative that petitioners must endorse would thus treat the Federal Second Amendment as an odd outlier, protecting a right unknown in state constitutions or at English common law, based on little more than an overreading of the prefatory clause.

Justice Stevens relies on the drafting history of the Second Amendment —the various proposals in the state conventions and the debates in Congress. It is dubious to rely on such history to interpret a text that was widely understood to codify a pre-existing right, rather than to fashion a new one. But even assuming that this legislative history is relevant, Justice Stevens flatly misreads the historical record. It is true, as Justice Stevens says, that there was concern that the Federal Government would abolish the institution of the state militia.

That concern found expression, however, not in the various Second Amendment precursors proposed in the State conventions, but in separate structural provisions that would have given the States concurrent and seemingly nonpre-emptible authority to organize, discipline, and arm the militia when the Federal Government failed to do so. See Veit 17, 20 Virginia proposal ; 4 J. The Second Amendment precursors, by contrast, referred to the individual English right already codified in two and probably four State constitutions.

The Federalist-dominated first Congress chose to reject virtually all major structural revisions favored by the Antifederalists, including the proposed militia amendments. Post , at But so was the highly influential minority proposal in Pennsylvania, yet that proposal, with its reference to hunting, plainly referred to an individual right. See 2 Documentary Hist. Other than that erroneous point, Justice Stevens has brought forward absolutely no evidence that those proposals conferred only a right to carry arms in a militia. Saladino eds.

That simply does not comport with our longstanding view that the Bill of Rights codified venerable, widely understood liberties. We now address how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century. See post , at 27, n. It most certainly does not refer to the examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification. That sort of inquiry is a critical tool of constitutional interpretation.

As we will show, virtually all interpreters of the Second Amendment in the century after its enactment interpreted the amendment as we do.

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Three important founding-era legal scholars interpreted the Second Amendment in published writings. All three understood it to protect an individual right unconnected with militia service. He equated that right, absent the religious and class-based restrictions, with the Second Amendment. The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the 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 destruction.

In , William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that ratified the Bill of Rights, published an influential treatise, which analyzed the Second Amendment as follows:. 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. Like Tucker, Rawle regarded the English game laws as violating the right codified in the Second Amendment. That is wrong.

He then equated the English right with the Second Amendment :. This comparison to the Declaration of Right would not make sense if the Second Amendment right was the right to use a gun in a militia, which was plainly not what the English right protected. State , 50Tenn. Antislavery advocates routinely invoked the right to bear arms for self-defense. Never was this efficient weapon more needed in just self-defence, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached.

We have found only one early 19th-century commentator who clearly conditioned the right to keep and bear arms upon service in the militia—and he recognized that the prevailing view was to the contrary. A different construction however has been given to it. Oliver, The Rights of an American Citizen The 19th-century cases that interpreted the Second Amendment universally support an individual right unconnected to militia service.

In Houston v. Moore , 5 Wheat. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested. Even clearer was Justice Baldwin. In the famous fugitive-slave case of Johnson v. Tompkins , 13 F. Many early 19th-century state cases indicated that the Second Amendment right to bear arms was an individual right unconnected to militia service, though subject to certain restrictions.

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We will only instance the restriction upon the migration of free blacks into this State, and upon their right to bear arms. Commonwealth , 2 Va.

The claim was obviously not that blacks were prevented from carrying guns in the militia. State , 1Gill , Md. But the grant of this privilege cannot be construed into the right in him who keeps a gun to destroy his neighbor. No rights are intended to be granted by the constitution for an unlawful or unjustifiable purpose. Blume ed. It is not possible to read this as discussing anything other than an individual right unconnected to militia service.

In Nunn v. State , 1Ga. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right:. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I.

Likewise, in State v. Chandler , 5La. State , 21 Tenn.

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The court then adopted a sort of middle position, whereby citizens were permitted to carry arms openly, unconnected with any service in a formal militia, but were given the right to use them only for the military purpose of banding together to oppose tyranny. In the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves. Colonists were particularly upset because Parliament was passing laws that directly affected the colonies, even though the colonies were not allowed to elect representatives to Parliament.

On March 5, , British soldiers who had been sent to keep order fired into an angry, but unarmed, crowd of colonists in the city of Boston, killing five men. Public outcry over the incident, which became known as the Boston Massacre , led to even greater anti-British sentiment in the colonies. Conflict between the colonies and Parliament continued, and a new wave of tariffs prompted the colonies to create the First Continental Congress in June In fact, the colonies continued to maintain militias, despite the presence of British troops, and the American population remained heavily armed.

It was a British decision to disarm the Americans, however, that led to the first shots of the American Revolutionary War —83 , in which the American colonies won their independence from Great Britain. On April 18, , British troops were sent to disarm a militia force just outside Boston. The British soldiers met seventy of the Massachusetts Patriots as the local militiamen called themselves in the town of Lexington. During an argument between the two groups a shot was fired, leading to the first exchange of firepower in the American Revolutionary War.

In the wake of the battle, British General Thomas Gage , — , who was stationed in Boston, took more steps to disarm the colonists in the area. Gage promised he would allow people who turned in their firearms to leave the city safely. Once they turned in their arms, however, Gage refused to allow them to leave.

Soon after, word spread that the British intended to disarm all Americans and make it a crime for any colonist to bear arms. The threat of disarmament by British forces who had already proved themselves capable of violence against the colonists helped spark all-out war between Great Britain and the colonies. To better wage war with the British, the colonies eventually established the Continental Army, under the leadership of General George Washington — , who later became the first president of the United States.

Well-armed colonists, fighting in militias and in the new Continental Army, ultimately defeated the larger, more experienced British forces in see Introduction. Initially the newly independent states formed a loose union under the Articles of Confederation Under the terms of this agreement, the state governments gave up very little of their power to the new federal or national government. In , delegates from twelve of the thirteen states crafted a new constitution that granted the federal government considerably more power than it had under the Articles of Confederation.

The new constitution divided the national government into three distinct parts: the executive branch, led by a president; the judicial branch, led by the Supreme Court see below , and Congress the legislative or law-making body of government. Under the proposed constitution, the new Congress would have the power to impose taxes, regulate interstate trade, declare war, and raise an army. In addition, Congress could call on the state militias to aid in the defense of the nation.

Before the new constitution could go into effect, however, it had to be ratified agreed to by three-fourths of the states. Many people worried that the new government would be too powerful. It was eventually agreed that after the new constitution was ratified, Congress would add a number of amendments corrections or additions to it, detailing the rights of the states and the people. The Constitution which was ratified in gave states the power to maintain militias, but many of those who opposed it wanted an amendment that specifically gave states the power to maintain a militia and citizens the right to bear arms.

During the first term of Congress —91 , Virginia statesman James Madison — , who later became the fourth president of the United States, wrote a number of proposals for amendments to the Constitution. These included a proposal for what became the Second Amendment. The Senate removed a clause that gave people the right to avoid militia service on religious grounds see chapter one. During the American Revolution , colonies began rewriting their charters to form state constitutions. Many of these constitutions specifically ensured the right to keep and bear arms.

This distinction seems to suggest that the Second Amendment was only intended to protect the right to bear arms to the extent that it was necessary for the upkeep of state militias. More specific wording would likely have limited later debate on the subject. In Bliss v.


The court considered the right to bear arms as both a collective and individual right and ruled that individuals had an unlimited right to bear arms. In examining the different interpretations of the Second Amendment, it is useful to consider the changing relationship between the militia and the individual citizen. At the time the Second Amendment was written, one could argue that there was very little practical difference between an individual right to bear arms and a collective right to maintain a militia.

That was because members of the militia were not full-time soldiers. They were ordinary members of the community—farmers, butchers, shop keepers— called to duty in times of emergency. Furthermore, these citizens were responsible for keeping and maintaining their own weapons, which they used in the militia; they were not issued weapons.

In other words, it was impossible to have a well-armed militia unless the individuals in it brought along their own weapons. However, during the American Revolutionary War, militias made up of ordinary citizens were often under trained and undisciplined. Nonetheless, after the war, Congress immediately reduced the Continental Army to eighty men. This action implied that the responsibility for the defense of the nation was, for the most part, returned to the state militias.

Recognizing how weak the existing militia system was, Henry Knox — , who served as U. Congress passed the Militia Act of , which required all able-bodied men between the ages of eighteen and forty-five to participate in the militia and to provide for their own equipment at their own expense.

This act would seem to support the argument that the collective right to bear arms required that individuals at least all men between eighteen and forty-five also have the right to bear arms. The Militia Act of did little to improve the quality of the militia. It contained no requirements for militia training, and the militia remained an unruly, poorly equipped force. Congress called on the state militias to defend the country from British invasion during the War of — Almost , of the militiamen called to battle during the war refused to serve beyond the end of their required six-month terms.

During the war, which ended indecisively, the American forces suffered a number of embarrassments, including the British capture of Washington, D. The war led to a call for better militia training, but Congress did little to change the system. During the war, militia units on both sides of the conflict often left as soon as their term of service was over. At the First Battle of Bull Run the first major battle of the Civil War, also called the First Battle of Manassas, which occurred on July 21, militiamen withdrew from the Union forces in mid-battle because their term of service had ended.

As in the Revolutionary War, it was not until men began to volunteer for duty that the quality of tactics and training improved. But again, with the end of the war, Congress quickly reduced the size of the army and returned responsibility for defending the country to state militias. At the end of the nineteenth century, state militias were called on again to fight, and once again there were problems. The Spanish-American War was fought largely in Cuba, Puerto Rico , and the Philippines, and some militia units refused to go, claiming such affairs were outside the responsibility of the militia.

The militia units fought beside regiments of volunteers who were not under the authority of the states , and the United States eventually emerged victorious. But the war highlighted, again, the danger of relying on poorly trained, ill-equipped state militias for national defense. The organization and armament of the National Guard of the several States … should be made identical with those provided for the regular forces.

The result is that we have practically no militia system. Between and , Congress enacted three laws, sometimes referred to jointly as the Dick Act named after U. Furthermore, the militia was to be trained by officers of the army. These new statutes marked the end of militias made up of armed ordinary citizens as set up by the Militia Act of Some argue that these changes erase any argument for banning federal regulation of the right to bear arms.

In the case of United States v. Miller , the Supreme Court considered all of these arguments. This Court is responsible for the final interpretation of U. Originally consisting of six justices judges , the Supreme Court was expanded to include nine justices in Until this time, regulation of firearms was left solely to state and local authorities.

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  8. Congress believed that the commerce clause of the Constitution art. The defendants in United States v. Miller were Jack Miller and Frank Layton. The two men were indicted in Arkansas for violation of the National Firearms Act of because they had transported an unregistered sawed-off shotgun from Oklahoma to Arkansas.

    The defendants challenged the National Firearms Act, arguing in part that the law violated their Second Amendment right to bear arms. The U. Supreme Court unanimously upheld the constitutionality of the National Firearms Act of With regard to the Second Amendment, the Court ruled that the amendment applied only to the actions of the federal government. According to the decision, nothing in the Second Amendment prevents state and local governments from passing gun control laws.

    Certainly it is not within judicial notice that [the weapon in this case] is any part of the ordinary military equipment or that its use could contribute to the common defense. In the amendment, weapons were seen to be necessary for military use and hence to be protected; in Miller , the weapon appeared to be intended for criminal use. The Court maintained that the Second Amendment protects the military use and ownership of certain weapons, distinguishing these from certain other weapons that are likely to be used in crime[MM2]. Because Miller is the only Supreme Court case that directly addresses the main issues surrounding the Second Amendment, it became the focal point of the gun control debate in the late twentieth century and early s.

    Interestingly, both sides used Miller to argue their case. Those who favor gun control say the court ruled definitively that the right to bear arms is not an individual right but rather a collective right held by members of the militias of the states or the National Guard. Individual rights advocates argue that the wording of the Miller decision indicates that individuals in the states should be allowed to keep and bear arms, as long as they are like those used by the National Guard and the armed services.

    After Miller, the issue of gun control largely disappeared, until the s. With violent crime once again on the rise, Congress began enacting a series of strict laws in , using the commerce clause to control interstate sale and registration of firearms and ammunition and generally avoiding Second Amendment challenges. The courts maintained the position that the Second Amendment in no way prevents states from restricting the sale, possession, maintenance, or ownership of firearms.

    These cases bolstered the argument that the guarantee of the right to bear arms was intended as a collective right, not an individual right. In Burton v. The Brady Bill, a federal law passed in , imposes a list of requirements for handgun ownership. The bill was championed by James Brady, a White House press secretary who was crippled by a bullet during a failed attempt to assassinate President Ronald Reagan —; served —89 in Other major legislation, including the Violent Crime Control and Law Enforcement Act of , followed in the wake of several incidents in which such weapons were used against unarmed adults and children and against officers of the federal government.

    For many years, no federal court struck down such federal gun control legislation as a violation of the Second Amendment. However, in March , a federal appeals court ruled in Parker v. The appeals court determined that the Second Amendment protected an individual—not a collective—right.