13th Amendment to the Constitution of Bangladesh

Sandy Hook Shooting: Is It Time to Change the Second Amendment?
Sandy Hook Shooting Is It Time to Change the Second Amendment
About 80 million Americans, representing half of U.S. homes, own more than 223 million guns. The debate about the Second Amendment has been fierce, but after the horrible atrocity that just happened in Newtown, Connecticut, the time has come to rethink the amendment and change it. The change of the amendment in terms of availability of weapons, and who has the right to possess them, would create a safer society and lower the gun homicide rate in the U.S. — a figure that currently makes the U.S. the highest in the world. The change would include a certain necessary procedure in order to get a license for possessing a gun. Moreover, this procedure should include medical checks, full criminal history, and a police interview to prove they actually need a gun. Atrocities like what happened today could theoretically be prevented if it were more difficult to come into possession of weapons in the U.S.
At this moment, there is a widely accepted misconception about the history of the amendment and its purpose within American society. When the founding fathers implemented Second Amendment the main idea behind it was to provide citizens with a way to oppose possible tyrannical government. However, today it is widely believed that the Second Amendment is there to provide you with a way to protect yourself from other individuals. The debate is also present over whether the Second Amendment provides for collective or individual rights. However, in 2008, in the District of Columbia v. Heller case before the Supreme Court, 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.
In a 2011 Gallup poll, only 26% of American citizens said they would support the handgun ban. When Gallup first asked Americans this question in 1959, 60% favored banning handguns. But since 1975, the majority of Americans have opposed such a measure, with opposition around 70% in recent years. Americans have shifted to a more pro-gun view on gun laws, with record-low support for bans on handguns, assault rifle bans, and stricter gun laws in general. This remains true even as high-profile incidents of gun violence continue across the United States. The reasons for this ideological shift do not appear to be reactions to the crime situation, and are probably rather related to a widespread acceptance of guns by the American public.
It is widely believed that having the right to bear arms contributes to higher security. By enabling a great number of people to carry weapons, the society as a whole will not benefit from greater security. Moreover, it will become more unstable. The control of the weapons must be toughened and the right to possess and bear them restricted. The cases of shootings on American campuses and in schools are numerous and an argument that stricter gun control laws should be enforced stands strong. With medical and background checks, people who want to possess a gun won’t be stopped. However, the chance that someone with a mental disorder will have access to arsenal gets lower. The U.S. has the highest rate of gun ownership and of gun homicide in the developed world, it can definitely be argued that the amount of guns present the homicide rate will also be reduced.
In 2012, Secretary of State Hillary Clinton agreed with the U.N. to set a timetable for the regulation of the arms trade between the states. The United States joined 152 other countries in support of the Arms Trade Treaty Resolution, which establishes the dates for the 2012 UN conference intended to further regulate gun trade around the world. Many in the U.S. have seen this treaty as an introduction to domestic firearm control, even though this is wrong. In order to change the Second Amendment, a two-thirds majority in the Senate is required and at this point chances of changing that happening are slim.
Throughout the world there are different regulations about gun ownership. Great Britain banned private ownership of guns in 1997; Australia also followed the same path. A 1999 Harvard School of Public Health study revealed that, "Americans feel less safe as more people in their community begin to carry guns," and that 90% believe that "regular" citizens should be prohibited from bringing guns into most public places, including stadiums, restaurants, hospitals, college campuses, and places of worship.
We should not have the illusion that the world can overnight become a safe place where guns are not needed. These are dark times for those who demand sane regulation of gun ownership. The courts come and go. Public opinion and political power, like the common law, changes and evolves. Guns must not be accessible to all and they must be restricted. By restricting the gun availability, the possibility for situations like the Newtown massacre would be dramatically lowered. Even if we assume that one day a tyrannical government may come to power, under the current circumstances, with the U.S. government in possession of tanks, airplanes and drones, one can argue that the light weapons held by the citizens would not be enough. The argument of the founding fathers therefore becomes obsolete and the amendment must be changed to ensure the greater safety of American citizens.

The Second Amendment

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In 1776, America`s Founders came together in Philadelphia to draw up a "Declaration of Independence," ending political ties to Great Britain. Written by Thomas Jefferson, it is the fundamental statement of people`s rights and what government is and from what source it derives its powers:
| |WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain| |
| |unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness--That to secure these Rights, | |
| |Governments are instituted among Men, deriving their just Powers from the Consent of the Governed. | |
| | | |
| |The Founders were declaring that we are all equal, and that we are defined by rights that we are born with, not given to us | |
| |by government. Among those rights is the right to pursue happiness--to live our lives as we think best, as long as we | |
| |respect the right of all other individuals to do the same. The Founders also declared that governments are created by people| |
| |to secure their rights. Whatever powers government has are not "just" unless they come from us, the people. | |

Eleven years later, after the war for independence had been won, our Founders assembled once again to draw up a plan for governing the new nation. That plan would be ratified two years later as the Constitution of the United States of America.
To understand the true meaning of the Second Amendment, it is important to understand the men who wrote and ratified it, and the issues they faced in creating the Constitution. During the debate over the ratification of the Constitution, there was significant concern that a strong federal government would trample on the individual rights of citizens--as had happened under British rule. To protect the basic rights of Americans--rights which each person possesses and that are guaranteed, but not granted, by any government--the framers added the first ten amendments to the Constitution as a package. Those amendments have come to be known as the Bill of Rights. They represent the fundamental freedoms that are at the heart of our society, including freedom of speech, freedom of religion and the right of the people to keep and bear arms.
The History of Our Rights
The British people did not have a written constitution as we have in the United States. However, they did have a tradition of protecting individual rights from government. Those rights were set forth in a number of documents, including the Magna Carta and the English Declaration of Rights. The Founders who wrote the Bill of Rights drew many of their ideas from the traditions of English "common law," which is the body of legal tradition and court decisions that acted as an unwritten constitution and as a balance to the power of English kings. The Founders believed in the basic rights of men as described in written legal documents and in unwritten legal traditions. One of these was the right of the common people to bear arms, which was specifically recognized in the English Declaration of Rights of 1689.
However, the Founders also recognized that without a blueprint for what powers government could exercise, the rights of the people would always be subject to being violated. The Constitution, and particularly the Bill of Rights, was created to specifically describe the powers of government and the rights of individuals government was not allowed to infringe.

1. Does the Second Amendment Describe An Individual Right?
Some people claim that there is no individual right to own firearms. However, anyone familiar with the principles upon which this country was founded will recognize this claim`s most glaring flaw: in America, rights--by definition--belong to individuals.

The Founding Fathers created the Bill of Rights to protect the rights of individuals. The freedoms of religion, speech, association, and the rest all refer to individual liberties. The Second Amendment right to keep and bear arms is no different. When the first Congress penned the Second Amendment in 1789, it took the wording, with some style changes, from a list of rights introduced by James Madison of Virginia. Congressman Madison had promised the Virginia ratifying convention that he would sponsor a Bill of Rights if the Constitution were ratified. The amendments he wrote would not change anything in the original Constitution. Madison repeatedly insisted that nothing in the original Constitution empowered the federal government to infringe on the rights of the people, specifically including the right of individuals to have guns.

In constructing the Bill of Rights, Madison followed the recommendations of the state ratifying conventions. Though they ratified the Constitution, several of those conventions had recommended adding provisions about specific rights. Five conventions recommended adding a right to arms; by comparison, only three conventions mentioned free speech.
Members of Congress had no doubt as to the amendment`s meaning. They and their contemporaries were firearm owners, hunters and in some cases gun collectors (George Washington and Thomas Jefferson exchanged letters about their collections). They had just finished winning their freedoms with gun in hand, and would, in their next session, pass legislation requiring most male citizens to buy and own at least one firearm and 30 rounds of ammunition.

The only reason there is a controversy about the Second Amendment is that on this subject many highly vocal and influential 21st Century Americans reject what seemed elementary common sense--and basic principle--to our Founding Fathers. The words of the founders make clear they believed the individual right to own firearms was very important:
Thomas Jefferson said, "No free man shall be debarred the use of arms."

Patrick Henry said, "The great object is, that every man be armed."

Richard Henry Lee wrote that, "to preserve liberty it is essential that the whole body of people always possess arms."

Thomas Paine noted, "[A]rms . . . discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property."

Samuel Adams warned that: "The said 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."

The Constitution and Bill of Rights repeatedly refer to the "rights" of the people and to the "powers" of government. The Supreme Court has recognized that the phrase "the people," which is used in numerous parts of the Constitution, including the Preamble, the Second, Fourth, Ninth and Tenth Amendments, refers to people as individuals. In each case, rights belonging to "the people" are without question the rights of individuals.

Dozens of essays have been written by the nation`s foremost authorities on the Constitution, supporting the traditional understanding of the right to arms as an individual right, protected by the Second Amendment.

2. Isn`t the "well regulated militia" the National Guard?
Gun control supporters insist that "the right of the people" really means the "right of the state" to maintain the "militia," and that this "militia" is the National Guard. This is not only inconsistent with the statements of America`s Founders and the concept of individual rights, it also wrongly defines the term "militia."

Centuries before the Second Amendment was drafted, European political writers used the term "well regulated militia" to refer to all the people, armed with their own firearms or swords, bows or spears, led by officers they chose.

America`s Founders defined the militia the same way. Richard Henry Lee wrote, "A militia when properly formed are in fact the people themselves . . . and include all men capable of bearing arms. . . ." Making the same point, Tench Coxe wrote that the militia "are in fact the effective part of the people at large." George Mason asked, "[W]ho are the militia? They consist now of the whole people, except a few public officers."

The Militia Act of 1792, adopted the year after the Second Amendment was ratified, declared that the Militia of the United States (members of the militia who had to serve if called upon by the government) included all able-bodied adult males. The National Guard was not established until 1903. In 1920 it was designated one part of the "Militia of the United States." The other part included other able-bodied adult men, plus some other men and women.

However, in 1990, the Supreme Court held that the federal government possesses complete power over the National Guard. The Guard is the third part of the United States Army, along with the regular Army and Army Reserve. The Framers` independent "well regulated militia" remains as they intended, America`s armed citizenry.

3. Have the Courts or Congress ever studied the meaning of the Second Amendment?
On June 26, 2008, the Supreme Court issued its decision in the case of District of Columbia v. Heller. In a 5-4 decision, the Court upheld the ruling of the U.S. Court of Appeals for the D.C. Circuit that the Second Amendment protects a right to possess firearms for individuals, and not just a right to have them as part of a militia or the National Guard. The Court also held that the Second Amendment is not meant to protect a “state’s right” to maintain a militia or National Guard.

The decision struck down the District’s bans on handguns and on having any gun in usable condition as violations of the Second Amendment, and prohibited the District from denying a person a permit to carry a firearm within his home on without cause.

Highlights of the majority opinion, written by Justice Antonin Scalia and joined by Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy, and Clarence Thomas, can be found here: /Issues/FactSheets/Read.aspx?id=235&issue=010.

The Court ruled that “[T]he operative clause [of the Second Amendment] codifies a ‘right of the people.” And went on to explain: “In all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset. . . .’”

Put plainly, the Heller decision says that the Second Amendment protects an individual right to possess firearms for legal purposes, including for sporting use and for self-defense. In coming to this conclusion, the courts examined the meaning of the words in the Second Amendment, including the meaning of “arms” the phrase “to bear arms” and to “keep “ arms. The court also carefully considered the meaning of “militia” and the relationship between the militia and the “right to keep and bear arms.”

In the majority opinion, the court clearly rejected the idea of a “collective" or group right, that is, a right held by the states. The court found that the Second Amendment protects an individual right to possess firearms.

The full impact of the Heller decision is still not known. States and cities with restrictive gun laws are now facing challenges to their specific laws and future court cases will continue to define the how the Second Amendment protects individual rights and what types of gun laws will be allowed.

Before the Heller decision, the most thorough examination of the Second Amendment and related issues ever undertaken by a court is the 2001 decision of the U.S. Court of Appeals for the Fifth Circuit in U.S. v. Emerson. In Emerson, the Appeals court devoted dozens of pages of its decision to studying the Second Amendment’s history and text. It began by examining the Supreme Court’s decision in U.S. v. Miller (1939), which individual rights opponents claim supports the notion of the Second Amendment protecting only a “collective right” of a state to maintain a militia. The Fifth Circuit disagreed. “We conclude that Miller does not support the collective rights or sophisticated collective rights approach to the Second Amendment.”

The court then turned to the history and text of the Second Amendment. “There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words ‘the people’ have a different connotation within the Second Amendment than when employed elsewhere in the Constitution. In fact, the text of the Constitution, as a whole, strongly suggests that the words ‘the people’ have precisely the same meaning within the Second Amendment as without. And as used throughout the Constitution, ‘the people’ have ‘rights’ and ‘powers,’ but federal and state governments only have ‘powers’ or ‘authority’, never ‘rights.’”

The court concluded, “We have found no historical evidence that the Second Amendment was intended to convey militia power to the states, limit the federal government’s power to maintain a standing army, or applies only to members of a select militia while on active duty. All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans. We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training.”

Four times in American history, Congress has enacted legislation declaring its clear understanding of the Second Amendment`s meaning. Congress has never given any support for the newly minted argument that the amendment fails to protect any right of the people, and instead ensures a “collective right” of states to maintain militias. In 1866, 1941, 1986, and 2005, Congress passed laws to reaffirm this guarantee of personal freedom and to adopt specific safeguards to enforce it.

The Freedmen’s Bureau Act of 1866 was enacted to protect the rights of freed slaves to keep and bear arms following the Civil War and at the outset of the chaotic Reconstruction period. The act declared protection for the “full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and . . . estate . . . including the constitutional right to bear arms. . . .”

The Property Requisition Act of 1941 was intended to reassure Americans that preparations for war would not include repressive or tyrannical policies against firearms owners. It was passed shortly before the sneak attack on Pearl Harbor, which led the United States into World War II. The act declared that it would not “authorize the requisitioning or require the registration of any firearms possessed by any individual for his personal protection or sport,” or “to impair or infringe in any manner the right of any individual to keep and bear arms. . . .”

The two more recent laws sought to reverse excesses involving America’s legal system. In the Firearms Owners’ Protection Act of 1986, Congress reacted to overzealous enforcement policies under the federal firearms law: "The Congress finds that the rights of citizens to keep and bear arms under the second amendment to the United States Constitution; to security against illegal and unreasonable searches and seizures under the fourth amendment; against uncompensated taking of property, double jeopardy, and assurance of due process of law under the fifth amendment; and against unconstitutional exercise of authority under the ninth and tenth amendments; require additional legislation to correct existing firearms statutes and enforcement policies. . . ."

And in 2005, as a result of lawsuits aiming to destroy America’s firearms industry, Congress passed the Protection of Lawful Commerce in Arms Act to end this threat to the Second Amendment. The act begins with findings that go to the heart of the matter: "Congress finds the following: (1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed. (2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms."

4. What are "gun control" laws?
"Gun control" is the popular name for laws that regulate, limit or prohibit the purchase and possession of firearms. "Gun control" laws are usually proposed on the grounds they will stop the criminal misuse of firearms, but they are almost never actually targeted at criminals. Supporters of "gun control" most commonly call for laws that restrict law-abiding people, the only ones who will obey them. Laws prohibiting the possession of a firearm are unlikely to stop a person willing to commit robbery, assault or murder. On the other hand, honest citizens who respect the law will submit to the gun control laws, even if the laws do not make them safer.

5. Are gun control laws new?
For centuries there have been efforts to control the possession of arms--whether crossbows, swords or guns--by government authority.
Efforts by English monarchs to limit or prohibit the possession of arms led to protests and revolts against royal power. The English Declaration of Rights of 1689 was the result of one such revolt, and it included the right of the individual to own and bear arms. The American Founders built on that tradition of individual rights when they included the Second Amendment in the Bill of Rights.

6. Are firearms ever used to stop crime?
This is an important question that is at the center of much of the debate over firearms and gun laws. Incidents in which firearms are misused, whether accidentally or by criminals, "make the news." Cases of people who have escaped harm because they had access to firearms are not so easy to record. Any ban on firearms is unlikely to prevent criminals from getting them. Even in places where firearms, particularly handguns, are banned--both here in the United States and internationally--criminals continue to get and misuse guns in crimes. The most direct impact of gun bans has been to disarm law-abiding people.
So, are guns used to stop crimes? Professor Gary Kleck of Florida State University has provided the best answer to this. An award-winning expert on crime, Prof. Kleck has conducted extensive survey research to measure firearms ownership and use in America. He found that firearms were used as often as 2.5 million times a year for protection--three to five times more often, he says, than they are used for criminal purposes. In the vast majority of these protective cases, the gun is not fired.

7. Does the Second Amendment apply to modern guns the same way it applied to flintlocks? Isn`t the Second Amendment dated and obsolete?
Just as the First Amendment applies to the modern printing press and the Internet, the Second Amendment applies to modern firearms. The most important aspect of the Second Amendment is the philosophy on which it is founded: that all free people have the right to defend themselves, their families, communities and nation. In 1789 it applied to the freedom to keep and bear arms just as it does today. The technological advances of the past two centuries do not make that principle obsolete, any more than computerized printing cancels the First Amendment.
8. Isn`t the Second Amendment just about protecting guns for hunting?
The Second Amendment is not about hunting at all. The Second Amendment is about protecting the right of a free people to defend that freedom and to protect their families and communities from threats. The Founders, who all considered themselves English citizens, had seen the British army disarm the public. They believed this was an improper use of government power. In writing the Constitution, they included the Second Amendment to prohibit the American government from doing what the British had done.
Hunting is an important American tradition and is the most effective wildlife management tool available. Firearms ownership is critical if hunting is to continue. So the fight to protect Second Amendment rights has the benefit of protecting this American sporting tradition.

9. Shouldn`t we at least try some gun control to see if it works?
We have. Over the past century, all types of gun control laws have been implemented in different parts of the United States. Everything from purchase restrictions to complete gun bans has been tried. These laws have not worked, and in some cases have had the opposite effect from what was intended.

Some big cities have strict gun laws. New York City has very strict gun laws, more strict than the rest of the state of New York. In spite of this, New York has always had significantly higher violent crime rates. Washington, D.C. and Chicago, Ill. have banned the ownership of handguns, and both these cities have much higher violent crime rates than the surrounding areas.
States such as Illinois and New York have gun owner licensing. Other states, such as Hawaii, have gun registration. However, none of these laws led to reductions in violent crime rates. And that is the real test of gun control laws. Do crime rates fall after gun laws are passed? The clear answer is no. Gun control has been tested, and it has failed the test.
10. If there are more guns, won`t we have more crime?
Many areas with high percentages of gun owners are some of the most crime free areas in the nation. The simple presence of a gun, or many guns, does not lead to crime. Most of the states with higher per capita legal gun ownership have the lowest rates of violent crime, while states with lower per capita gun ownership have much higher violent crime rates. The real answer to reducing crime is not passing gun laws, but solving other problems that really do lead to high crime rates. Gun control diverts attention from the roots of the crime problem.
11. Don`t we need gun control to stop firearm accidents?
The truth is that in the past seventy years, while the U.S. population has more than doubled and the number of firearms owned by Americans has gone up five times, fatal firearm accidents have been cut by 76%. The most important factor in reducing firearms accidents is proper education on the safe handling and storage of firearms. NRA, the leading pro-gun ownership rights group in the nation, has spent over a century teaching firearm safety.
Firearms accidents can always be reduced further, but their numbers are far below many other common mishaps including drownings, falls and poisonings. Gun accidents account for only 0.7% of accidental deaths.
12. Wouldn`t we be safer if we banned guns?
To some people, banning guns sounds like a perfect way to make the world safer. However, proponents of gun bans ignore two important facts. Criminals ignore gun bans, and law-abiding people will be even more at risk with no effective means of self-defense.
The British experience with gun bans is a perfect example. Over the past 20 years, Great Britain has banned handguns and many long guns. During that same period violent crime has increased dramatically. One significant area where crime has risen sharply in England is home burglaries where the occupants are present. Since they know the residents will not be armed, thieves more openly enter even occupied homes, often during daylight hours. This has resulted in more violence against victims who try to defend their homes.
In general, the crime rates of Canada, Britain, and Australia, all of which have implemented strict gun control laws, have risen significantly after the passage of these laws. At the same time, the U.S. has seen a significant drop in violent crime rates.
The evidence shows that firearm ownership, including handguns, does not lead to increased crime rates, and gun bans do not deter criminals from committing violent crimes. In fact, ownership of firearms deters crime.
13. Shouldn`t we at least ban handguns?
The important truth is: criminals do not want to attack armed citizens. The only real impact of a handgun ban is to insure that law-abiding citizens are disarmed, leaving them more at the mercy of illegally armed criminals. Cities such as Washington D.C. and Chicago have banned handguns, and violent crime has not been eliminated, or even reduced.

14. Who can buy a firearm? Can just anyone own a gun?
Federal law says that certain people cannot buy or possess any firearm. This includes convicted felons, fugitives from the law and people found mentally incompetent by a court. A licensed dealer may not sell handguns to people under the age of 21 or long guns to people under the age of 18.

In addition, under federal law, a person under age 18 may not possess a handgun or handgun ammunition, and it is illegal for a person to provide a handgun or handgun ammunition to a person under age 18, except for target shooting, hunting, or certain other exempted purposes. Additional restrictions are also imposed by individual states and localities.
15. Doesn`t the public have a right to know who owns a gun?
Gun registration and owner licensing don`t help police solve crime. Criminals do not register their guns or get licenses. On the other hand, gun registration lists have been used to confiscate citizens` firearms in cities like New York and in states such as California.

16. We license drivers, shouldn`t we license gun owners?
Driving a car is not a constitutional right. People drive on the public roads as a privilege provided by the community. The community sets standards for drivers that everyone has to meet to make the roads safe. Firearm ownership is a constitutional right, and that means government has very limited power to restrict it. Gun owner licensing has little, if any, real value in preventing crime, but has proven time and again to set the stage for infringement on the right to own a firearm.

American gun owners know their concerns about licensing are not unfounded, because they know the history of gun control in Great Britain. After passage of the Firearms Act of 1920, Britons suddenly could possess pistols and rifles only if they proved they had "good reason" for receiving a police permit. Then, in 1936, the British police began regulating how people stored their guns.
As the public grew accustomed to gun licensing, the licensing requirements got stricter. The British gun owners got used to higher and higher levels of control. The result was a total ban on the possession of handguns and many types of rifle and shotguns. When the gun bans became law, no one remembered that the 1920 gun bill was only supposed "to prevent criminals and persons of that description from being able to have revolvers and to use them."
17. What should we do about gun shows where people don`t have to obey all the regular gun laws?
The "gun show loophole" is a myth created by anti-gun activists to advance their political agenda. There is no loophole. All gun sales or transfers are subject to state and federal laws. All licensed firearm dealers must complete the process provided for by state and federal law--a process that includes completion of forms and a background check on the buyer--before a gun can be sold. This is true no matter where the sale takes place, at a gun store or at a gun show.
Federal law also regulates sales of firearms between private individuals. It is a serious crime to sell a firearm to someone who is not a resident of the same state as the seller.
18. Don`t we need to have mandatory safety training to buy a gun?
The problem with mandatory gun safety training is that it can so easily be used to interfere with someone`s choice to own a firearm. "Safety" training can be used improperly to infringe on the right to keep and bear arms. Anti-gun politicians and government officials can use such laws to require unreasonable levels of training. Making people attend 30, 40 or more hours of "safety" training before they can buy a gun will prevent many people from owning a firearm. The costs of these classes also have been a deterrent, particularly to lower income people.
19. Why does anyone need an "assault weapon"?
This question is often used to justify laws restricting firearms ownership. So-called "assault weapons" are just one example. Why does anyone need a handgun? Why does anyone need a semi-auto shotgun? The real question we ask is, "Why does government need to restrict this right for law-abiding citizens?" In a free society the government has to prove it needs to restrict the basic rights of the people. The government that can restrict a right based on "need" can restrict any right. That is not a free society.
Banning guns because some criminals use them tells all honest citizens that their rights and liberties depend not on their own conduct but on the behavior of the lawless. It tells the law-abiding that they have only such rights and liberties as criminals will allow.
20. Isn`t it clear that America needs a national gun policy?
It has one: the federal Gun Control Act of 1968, a massive set of restrictions on who may sell, buy and own firearms, how sales may occur, and what kinds of firearms may be sold. There are severe penalties for violations of these laws, but they have to be enforced. And, of course, each state and the District of Columbia and many cities and towns have laws governing the purchase, possession, and use of firearms. All told, there are tens of thousands of federal, state and local gun laws on the books.
For more information on topics discussed in this brochure, the following bibliography is provided:
For more information on the constitutionality of gun laws, see:
Caplan, David I., "Handgun Control: Constitutional or Unconstitutional?," North Carolina Central Law Journal, 5 (1976): 53-58.
Cottrol, Robert J., ed., Gun Control and the Constitution: Sources and Explorations on the Second Amendment, New York, Garland Publishing, Inc., 1994.
Kates, Don B., Jr., "Handgun Prohibition and The Original Meaning of the Second Amendment," Michigan Law Review, 82 (1983): 204.
Kopel, David B., "The Supreme Court`s Thirty-Five Other Gun Cases: What The Supreme Court Has Said About The Second Amendment," Saint Louis University Public Law Review, 1999: 99-187.
For more information on crime statistics, see:
Bureau of Justice Statistics, "Guns Used in Crime," July 1995
FBI, Uniform Crime Reports, Crime in the United States, Published each year.
For more information on the effectiveness of gun laws, see:
Kates, Don B. Jr., et al., "Problematic Arguments for Banning Handguns," Pacific Research Institute for Public Policy 1997 Pp. 31-49 in D.B. Kates and G. Kleck, eds., The Great American Gun Debate: Essays on Firearms and Violence. San Francisco: Pacific Research Institute for Public Policy.
Kates, Don B., Jr., Guns, Murders, and the Constitution: A Realistic Assessment of Gun Control, Pacific Research Institute for Public Policy, 1990.
Kleck, Gary, Targeting Guns: Firearms and Their Control, Hawthorne, N.Y.: Aldine de Gruyter, 1997.
Polsby, Daniel D., "The False Promise of Gun Control," Atlantic Monthly, 273 (1994): 57.
The Great American Gun Debate: Essays on Firearms and Violence, San Francisco: Pacific Research Institute for Public Policy, 1997
Nisbet, Lee, editor, The Gun Control Debate: You Decide, Buffalo: Prometheus Books, 1990;
Wright, James D., "Second Thoughts About Gun Control," Public Interest, No. 91 (1988): 23-39.
For more information on general constitutional issues, see:
Amar, Akil Reed and Alan Hirsch, For the People: What the Constitution Really Says About Your Rights, N.Y.: Simon & Schuster, Inc., 1998.
Amar, Akhil Reed, "The Bill of Rights as a Constitution," Yale Law Journal, 100 (1990): 1131-1164.
Caplan, David I., "Restoring the Balance: Second Amendment Revisited," Fordham Urban Law Journal, 5 (1976): 31-53.
Halbrook, Stephen P., A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees, Westport, Conn.: Greenwood Press (1989).
Polsby, Daniel D., "Second Reading: Treating the Second Amendment as Normal Constitutional Law," Reason, March ,1996, 32-36.
Wright, James D., "Ten Essential Observations on Guns in America," Society, March-April, 1995, 62-67.
For more information on history of firearms rights, see:
Cottrol, Robert J. & Raymond T. Diamond, "The Second Amendment: Toward an Afro-Americanist Reconsiderations," Georgetown Law Journal, 1991, 309-361
Cramer, Clayton E., "The Racist Roots of Gun Control," Kansas Journal of Law & Public Policy, Winter 1995, at 17.
U.S. Senate, Committee on the Judiciary Subcommittee on the Constitution, The Right to Keep and Bear Arms, 97th Cong., 2d sess., 1982.
Halbrook, Stephen P., Origin and Development of the Second Amendment, Southport, Conn.: Blacksmith Corporation, 1986.
Halbrook, Stephen P., That Every Man Be Armed--The Evolution of a Constitutional Right, Albuquerque: University of New Mexico Press, 1984.
Malcolm, Joyce Lee, To Keep and Bear Arms: The Origins of an Anglo-American Right, Cambridge: Harvard University Press, 1994.
Malcolm, Joyce Lee, "The Right of the People to Keep and Bear Arms: The Common Law Tradition," Hastings Constitutional Law Quarterly, 10 (1983): 285-314.
For more information on the individual right to bear arms, see:
Bordenet, Bernard J., "The Right to Possess Arms: The Intent of the Framers of the Second Amendment," University of West Los Angeles Law Review, 21 (1990).
Cantrell, Charles L., "The Right of the Individual to Bear Arms," Wisconsin Bar Bulletin, 53 (Oct. 1980): 21.
Caplan, David I., "The Right of the Individual to Bear Arms: A Recent Judicial Trend," Detroit College of Law Review, (1982): 789-823.
Cramer, Clayton E., For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms, Westport, Conn., Praeger Press, 1994.
Halbrook, Stephen P., "Congress Interprets the Second Amendment: Declarations by a Co-Equal Branch on the Individual Right to Keep and Bear Arms," Tennessee Law Review, 62 (1995): 597.
Halbrook, Stephen P., "Personal Security, Personal Liberty, and `The Constitutional Right to Bear Arms`: Visions of the Framers of the Fourteenth Amendment," 5 Seton Hall Constitutional Law Journal 341-434 (1995).
Levinson, Sanford, "The Embarrassing Second Amendment," Yale Law Journal, 99 (1989): 637.
U.S. Senate, Committee on the Judiciary Subcommittee on the Constitution, The Right to Keep and Bear Arms, 97th Cong., 2d sess., 1982.
Van Alstyne, William, "The Second Amendment and the Personal Right to Arms," 43 Duke Law Journal 1236-1255 (1994)
For more information on international gun laws, see: van Kesteren, John, Pat Mayhew and Paul Nieuwbeerta, "Criminal Victimization in Seventeen Industrialized Countries: Key findings from the 2000 International Crime Victims Survey," the Hague, Ministry of Justice, WODC, Onderzoek en beleid, nr. 187, 2000.
Kopel, David B., The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies?, Buffalo, N.Y.: Prometheus Books, 1992.
For more information on the Second Amendment and Crime, see:
Kleck, Gary, Point Blank: Guns and Violence in America, Hawthorne, N.Y.: Aldine de Gruyter, 1991.
Lott, John R., Jr., More Guns, Less Crime: Understanding Crime and Gun Control Laws, Chicago, Ill.: University of Chicago Press, 1998.
Sheley, Joseph F. and James D. Wright, In the Line of Fire: Youth, Guns, and Violence in Urban America, N.Y.: Aldine de Gruyter, 1995;
Wright, James D., and Peter H. Rossi, Armed and Considered Dangerous: A Survey of Felons and Their Firearms, New York: Aldine De Gruyter, 1986.
Wright, James D., et al., Under the Gun: Weapons, Crime and Violence in America, New York: Aldine Publishing Co., 1983.
For more information on the Founders` intent, see:
Halbrook, Stephen P., "The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment," Valparaiso Law Review, 26 (1991): 131-207.
Halbrook, Stephen P., "What the Framers Intended: A Linguistic Analysis of the Right to ’Bear Arms,`"; Law & Contemporary Problems, 49 (1986): 151.

Second Amendment to the United States Constitution

From Wikipedia, the free encyclopedia

The Bill of Rights in the National Archives.

Close up image of the Second Amendment

The Second Amendment (Amendment II) to the United States Constitution is the part of the United States Bill of Rights that protects the right of the people to keep and bear arms. It was adopted on December 15, 1791, along with the rest of the Bill of Rights. The Supreme Court of the United States has ruled that the Second Amendment protects an individual right to possess and carry firearms.[1]
In 2008 and 2010, the 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[1][2] and to use that arm for traditionally lawful purposes, such as self-defense within the home. In dicta, the Court listed many longstanding prohibitions and restrictions on firearms possession as being consistent with the Second Amendment.[3] 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.[4]

|Contents |
|1 Text |
|2 Pre-Constitution background |
|2.1 Influence of the English Bill of Rights of 1689 |
|2.2 Experience in America prior to the U.S. Constitution |
|3 Drafting and adoption of the Constitution |
|4 Ratification debates |
|5 Conflict and compromise in Congress produce the Bill of Rights |
|6 Militia in the decades following ratification |
|7 Scholarly commentary |
|7.1 Early commentary |
|7.2 Late 20th century commentary |
|7.3 Meaning of "well regulated militia" |
|7.4 Meaning of "the right of the People" |
|7.5 Meaning of "keep and bear arms" |
|8 Supreme Court cases |
|8.1 United States v. Cruikshank |
|8.2 Presser v. Illinois |
|8.3 Miller v. Texas |
|8.4 Robertson v. Baldwin |
|8.5 United States v. Miller |
|8.6 District of Columbia v. Heller |
|8.6.1 Judgment |
|8.6.2 Notes and analysis |
|8.7 McDonald v. Chicago |
|9 United States Courts of Appeals decisions since Heller |
|10 Notes and citations |
|11 References |
|11.1 Books |
|11.2 Periodicals |
|11.3 Other publications |
|12 External links |

Text

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.[5] One version was passed by the Congress,[6] while another is found in the copies distributed to the States[7] 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.[8]

The original hand-written copy of the Bill of Rights, approved by the House and Senate, was prepared by scribe William Lambert and resides in the National Archives.

Pre-Constitution background

Influence of the English Bill of Rights of 1689

Main article: Bill of Rights 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.[9] The English Bill of Rights 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.[10] 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.[11] 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.[12]
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."[13] It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament.[14] 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.[13]
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.[15][16]
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.[17] There is some difference of opinion as to how revolutionary the events of 1688–89 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]."[18] 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.[19] 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.[20][21]
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.[22]

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.[23] 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.[24]

Experience in America prior to the U.S. Constitution

Ideals that helped to inspire the Second Amendment in part are symbolized by the minutemen.[25]

In no particular order, 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:[26][27][28][29][30][31][32][33] • deterring tyrannical government;[34] • repelling invasion; • suppressing insurrection; • facilitating a natural right of self-defense; • participating in law enforcement; • enabling the people to organize a militia system.
Which of these considerations they thought were most important, which of these considerations they were most alarmed about, and the extent to which each of these considerations 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 defence of themselves and the state".[35]
During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, which included a number who were loyal to British imperial rule. As defiance and opposition to the 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 out to stock up 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.[36]
British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, Blackstone 's summary of the Declaration of Rights, their own militia laws and common law rights to self-defense.[37] 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.[37] Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars ' interpretation of Blackstone.[38]
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.[37]

The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist Militia and Hessian mercenaries. 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.[39] 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.[40] 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.[41][42] 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.[43]
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."[44] 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.[45]
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".[46] 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,[47] 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.[47][48]

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.[49][50] 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").[51]
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.[52] 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,[53] or prohibiting citizens from arming themselves.[37] 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.[54][55]

Drafting and adoption of the Constitution

Further information: Constitutional Convention

| |
| |James Madison (left) is known as the "Father of the |
| |Constitution" and "Father of the Bill of Rights"[56] while |
| |George Mason (right) with Madison is also known as the "Father|
| |of the Bill of Rights"[57] |
| |Patrick Henry (left) believed that a citizenry trained in arms|
| |was the only sure guarantor of liberty[58] while Alexander |
| |Hamilton (right) wrote in Federalist No. 29 that "little more |
| |can be reasonably aimed at, with respect to the people at |
| |large, than to have them properly armed..."[48] |

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, Pennsylvania, Delaware, 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:[59][60] • 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.[61] 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.[62] Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.[63][64] 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. This compromise persuaded enough Anti-federalists to vote for the Constitution, allowing for ratification.[65] 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.[66] 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.

Ratification debates

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.[67]
The Second Amendment was relatively uncontroversial at the time of its ratification.[68] 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,[69] though Whitehill 's language was never debated.[70] Rather, the Constitutional delegates altered the language of the Second Amendment several times to emphasize the military context of the amendment[71] and the role of the militia as a force to defend national sovereignty,[72] quell insurrection,[73][74] and protect against tyranny.[75]
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.[76][77]

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.[78]

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?"[79][80] 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 pretence, raised in the United States.[80][81]

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.[80][82]
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.[80][83]
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.[84]

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...."[80][85]
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.[86]

Conflict and compromise in Congress produce the Bill of Rights

James Madison '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 relating to arms was:
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.[87]

On July 21, Madison again raised the issue of his Bill and proposed a select committee be created to report on it. The House voted in favor of Madison 's motion,[88] and the Bill of Rights entered committee for review. The committee returned to the House a reworded version of the Second Amendment on July 28.[89] On August 17, that version was read into the Journal:
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.[90]

The Second Amendment was debated and modified during sessions of the House in late August 1789. These debates revolved primarily around risk of "mal-administration of the government" using the "religiously scrupulous" clause to destroy the militia as Great Britain had attempted to destroy the militia at the commencement of the American Revolution. These concerns were addressed by modifying the final clause, and on August 24, the House sent the following version to the Senate:
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 one religiously scrupulous of bearing arms shall be compelled to render military service in person.

The next day, August 25, the Senate received the Amendment from the House and entered it into the Senate Journal. When the Amendment was transcribed, the semicolon in the religious exemption portion was changed to a comma by the Senate scribe:
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 one religiously scrupulous of bearing arms shall be compelled to render military service in person.[91]

By this time, the proposed right to keep and bear arms was in a separate amendment, instead of being in a single amendment together with other proposed rights such as the due process right. As a Representative explained, this change allowed each amendment to "be passed upon distinctly by the States."[92] On September 4, the Senate voted to change the language of the Second Amendment by removing the definition of militia, and striking the conscientious objector clause:
A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.[93]

The Senate returned to this amendment for a final time on September 9. A proposal to insert the words "for the common defence" next to the words "bear arms" was defeated.[94] The Senate then slightly modified the language and voted to return the Bill of Rights to the House. The final version passed by the Senate was:
A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.

The House voted on September 21, 1789 to accept the changes made by the Senate, but the amendment as finally entered into the House journal contained the additional words "necessary to":
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.[95]

On December 15, 1791, the Bill of Rights (the first ten amendments to the Constitution) was adopted, having been ratified by three-fourths of the States.

Militia in the decades following ratification

During the first two decades following the ratification of the Second Amendment, public opposition to standing armies, among Anti-Federalists and Federalists alike, persisted and manifested itself locally as a general reluctance to create a professional armed police force, instead relying on county sheriffs, constables and night watchmen to enforce local ordinances.[96] Though sometimes compensated, often these positions were unpaid—held as a matter of civic duty. In these early decades, law enforcement officers were rarely armed with firearms, using billy clubs as their sole defensive weapons.[96] In serious emergencies, a posse comitatus, militia company, or group of vigilantes assumed law enforcement duties; these individuals were more likely than the local sheriff to be armed with firearms.[96]
On May 8, 1792, Congress passed "[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States" requiring:
[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia...[and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.[97]

The act also gave specific instructions to domestic weapon manufacturers "that from and after five years from the passing of this act, muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound."[97] In practice, private acquisition and maintenance of rifles and muskets meeting specifications and readily available for militia duty proved problematic; estimates of compliance ranged from 10 to 65 percent.[98] Compliance with the enrollment provisions was also poor. In addition to the exemptions granted by the law for custom-house officers and their clerks, post-officers and stage drivers employed in the care and conveyance of U.S. mail, ferrymen, export inspectors, pilots, merchant mariners and those deployed at sea in active service; state legislatures granted numerous exemptions under Section 2 of the Act, including exemptions for: clergy, conscientious objectors, teachers, students, and jurors. And though a number of able-bodied white men remained available for service, many simply did not show up for militia duty. Penalties for failure to appear were enforced sporadically and selectively.[99] None are mentioned in the legislation.[97]
The first test of the militia system occurred in July 1794, when a group of disaffected Pennsylvania farmers rebelled against federal tax collectors whom they viewed as illegitimate tools of tyrannical power.[100] Attempts by the four adjoining states to raise a militia for nationalization to suppress the insurrection proved inadequate. When officials resorted to drafting men, they faced bitter resistance. Forthcoming soldiers consisted primarily of draftees or paid substitutes as well as poor enlistees lured by enlistment bonuses. The officers, however, were of a higher quality, responding out of a sense of civic duty and patriotism, and generally critical of the rank and file.[101] Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.[101] In October, President George Washington and General Harry Lee marched on the 7,000 rebels who conceded without fighting. The episode provoked criticism of the citizen militia and inspired calls for a universal militia. Secretary of War Henry Knox and President John Adams had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production.[101] Congress did subsequently pass "[a]n act for the erecting and repairing of Arsenals and Magazines" on April 2, 1794, two months prior to the insurrection.[102] Nevertheless, the militia continued to deteriorate and twenty years later, the militia 's poor condition contributed to several losses in the War of 1812, including the sacking of Washington, D.C. and the White House being burned down in 1814.[99]

Scholarly commentary

Early commentary

The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker. He annotated a five-volume edition of Sir William Blackstone 's Commentaries on the Laws of England, a critical legal reference for early American attorneys published in 1803.[103]
In footnotes 40 and 41 of the Commentaries, Tucker stated that the right to bear arms under the Second Amendment was not subject to the restrictions that were part of English law: "The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government" and "whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England." Blackstone himself also commented on English game laws, Vol. II, p. 412, "that the prevention of popular insurrections and resistance to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws."[103] Blackstone discussed the right of self-defense in a separate section of his treatise on the common law of crimes. Tucker 's annotations for that latter section did not mention the Second Amendment but cited the standard works of English jurists such as Hawkins.[104]
Further, Tucker criticized the English Bill of Rights for limiting gun ownership to the very wealthy, leaving the populace effectively disarmed, and expressed the hope that Americans "never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty."[103]
Tucker 's commentary was soon followed, in 1825, by that of William Rawle in his landmark text, A View of the Constitution of the United States of America. Like Tucker, Rawle condemned England 's "arbitrary code for the preservation of game," portraying that country as one that "boasts so much of its freedom," yet provides a right to "protestant subjects only" that it "cautiously describ[es] to be that of bearing arms for their defence" and reserves for "[a] very small proportion of the people[.]"[105] In contrast, Rawle characterizes the second clause of the Second Amendment, which he calls the corollary clause, as a general prohibition against such capricious abuse of government power, declaring bluntly:
No clause 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.[106]

Rawle, long before the concept of incorporation was formally recognized by the courts, or Congress drafted the Fourteenth Amendment, contended that citizens could appeal to the Second Amendment should either the state or federal government attempt to disarm them. He did warn, however, that "this right [to bear arms] ought not...be abused to the disturbance of the public peace" and observed, paraphrasing Coke, that "[a]n assemblage of persons with arms, for unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace."[105]
The orthodox view of the meaning of the Second Amendment was articulated by Joseph Story in his influential Commentaries on the Constitution. In his view the meaning of the Amendment was clear:
The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. 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. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.[107]

In this quote, Story describes a militia as the "natural defence of a free country," both against foreign foes, domestic revolts and usurpation by rulers. The book regards the militia as a "moral check" against both usurpation and the arbitrary use of power, while expressing distress at the growing indifference of the American people to maintaining such an organized militia, which could lead to the undermining of the protection of the Second Amendment.[107]
Abolitionist Lysander Spooner, commenting on bills of rights, stated that the object of all bills of rights is to assert the rights of individuals against the government and that the Second Amendment right to keep and bear arms was in support of the right to resist government oppression, as the only security against the tyranny of government lies in forcible resistance to injustice, for injustice will certainly be executed, unless forcibly resisted.[108] Spooner 's theory provided the intellectual foundation for John Brown and other radical abolitionists who believed that arming slaves was not only morally justified, but entirely consistent with the Second Amendment.[109] An express connection between this right and the Second Amendment was drawn by Lysander Spooner who commented that a "right of resistance" is protected by both the right to trial by jury and the Second Amendment.[110]
The congressional debate on the proposed Fourteenth Amendment concentrated on what the Southern States were doing to harm the newly freed slaves, including disarming the former slaves.[111]

Late 20th century commentary

In the latter half of the 20th century there was considerable debate over whether the Second Amendment protected an individual right or a collective right.[112] The debate centered on whether the prefatory clause (“A well regulated militia being necessary to the security of a free State”) declared the amendment’s only purpose or merely announced a purpose to introduce the operative clause (“the right of the People to keep and bear arms shall not be infringed”).
Three basic competing models were offered to interpret the Second Amendment:[113] The first, known as the "states ' rights" or "collective rights" model, was that the Second Amendment did not apply to individuals; rather, it recognized the right of a state to arm its militia.

The second, known as the "sophisticated collective rights model", held that the Second Amendment recognized some limited individual right. However, this individual right could only be exercised by members of a functioning, organized state militia while actively participating in the organized militia’s activities.

The third, known as the "standard model", was that the Second Amendment recognized the personal right of individuals to keep and bear arms.

Under both of the collective rights models, the opening phrase was considered essential as a pre-condition for the main clause.[114] These interpretations held that this was a grammar structure that was common during that era[115] and that this grammar dictated that the Second Amendment protected a collective right to firearms to the extent necessary for militia duty.[116]
Under the standard model, the opening phrase was believed to be prefatory or amplifying to the operative clause. The opening phrase was meant as a non-exclusive example—one of many reasons for the amendment.[20] This interpretation was consistent with the position that the Second Amendment protects a modified individual right.[117]
The question of a collective rights versus an individual right was progressively resolved with the 2001 Fifth Circuit ruling in United States v. Emerson, in the 2008 Supreme Court ruling in District of Columbia v. Heller, and in the 2010 Supreme Court ruling in McDonald v. Chicago. These rulings upheld the individual rights model when interpreting the Second Amendment. In Heller, the Supreme Court upheld the Second Amendment as protecting an individual right.[118] Although the Second Amendment is the only Constitutional amendment with a prefatory clause, such constructions were widely used elsewhere.[119]

Meaning of "well regulated militia"

The term "regulated" means "disciplined" or "trained".[120] In Heller, the U.S. Supreme Court stated that "[t]he adjective 'well-regulated ' implies nothing more than the imposition of proper discipline and training."[121]
In Federalist No. 29, Alexander Hamilton suggested that well-regulated refers not only to "organizing", "disciplining", and "training" the militia, but also to "arming" the militia:
This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "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."[48]

A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be 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 entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.[48]

"If a well regulated militia be the most natural defence of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security...confiding the regulation of the militia to the direction of the national authority...(and) reserving to the states...the authority of training the militia".[48]

Meaning of "the right of the People"

Justice Antonin Scalia, writing for the majority in Heller, stated:
Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”— those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people”.[122]

Justice John Paul Stevens countered in his dissent:
When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated. But the Court itself reads the Second Amendment to protect a “subset” significantly narrower than the class of persons protected by the First and Fourth Amendments; when it finally drills down on the substantive meaning of the Second Amendment, the Court limits the protected class to “law-abiding, responsible citizens”.[123]

Meaning of "keep and bear arms"

In Heller the majority rejected the view that the term "to bear arms" implies only the military use of arms:
Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” 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. Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.” At the time of the founding, as now, to “bear” meant to “carry.” In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens “bear arms in defense of themselves and the state” again, in the most analogous linguistic context—that “bear arms” was not limited to the carrying of arms in a militia. The phrase “bear Arms” also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: “to serve as a soldier, do military service, fight” or “to wage war.” But it unequivocally bore that idiomatic meaning only when followed by the preposition “against,”. Every example given by petitioners’ amici for the idiomatic meaning of “bear arms” from the founding period either includes the preposition “against” or is not clearly idiomatic. In any event, the meaning of “bear arms” that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. 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. Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.”[122]

In a dissent, joined by Justices Souter, Ginsburg, and Breyer, Justice Stevens said:
The Amendment 's text does justify a different limitation: the "right to keep and bear arms" protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase "bear arms" to encompass civilian possession and use, they could have done so by the addition of phrases such as "for the defense of themselves".[123]

Supreme Court cases

See also: Firearm case law in the United States

For almost a century following the ratification of the Bill of Rights, the intended meaning and application of the Second Amendment drew less interest than it does in modern times.[124] The vast majority of regulation was done by states, and the first case law on weapons regulation dealt with state interpretations of the Second Amendment. The notable exception to this general rule was Houston v. Moore, 18 U.S. 1 (1820), where the Supreme Court mentioned the Second Amendment in an aside, but Justice Story "misidentified" it as the "5th Amendment."[125]
State and federal courts historically have used two models to interpret the Second Amendment: the now generally accepted individual rights model, and the "collective rights" model, which holds that the right is dependent on militia membership. While having influenced a number of past court cases, the "collective rights" model has been discarded by the U.S. Supreme Court, in favor of the individual rights model.
The primary U.S. Supreme Court Second Amendment cases include Robertson v. Baldwin, (1897); United States v. Miller, (1939); District of Columbia v. Heller, (2008); and McDonald v. Chicago (2010).
In Heller and McDonald the U.S. Supreme Court supported the individual rights model, under which the Second Amendment protects the right to keep and bear arms much as the First Amendment protects the right to free speech. Under this model the militia is composed of members who supply their own arms and ammunition. This is generally recognized as the method by which U.S. militias have historically been armed. 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.[126]

Of the collective rights model that holds that the right to arms is based on militia membership, the U.S. Supreme Court in Heller said: 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). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter.[127]

United States v. Cruikshank

Main article: United States v. Cruikshank

In the Reconstruction era case of United States v. Cruikshank, 92 U.S. 542 (1875), the defendants were white men who had killed more than sixty black people in what was known as the Colfax massacre and had been charged with conspiring to prevent blacks from exercising their right to bear arms. The Court dismissed the charges, holding that the Bill of Rights restricted Congress but not private individuals. The Court concluded, "[f]or their protection in its enjoyment, the people must look to the States."[128]
The Court stated that "[t]he Second Amendment...has no other effect than to restrict the powers of the national government...."[129] Likewise, the Court held that there was no state action in this case, and therefore the Fourteenth Amendment was not applicable:
The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another.[130]

Thus, the Court held a federal anti-Ku-Klux-Klan statute to be unconstitutional as applied in that case.[131]

Presser v. Illinois

Main article: Presser v. Illinois

In Presser v. Illinois, 116 U.S. 252 (1886), Herman Presser headed a German-American paramilitary shooting organization and was arrested for leading a parade group of 400 men, training and drilling with military weapons with the declared intention to fight, through the streets of Chicago as a violation of Illinois law that prohibited public drilling and parading in military style without a permit from the governor.[132][133]
At his trial, Presser argued that the State of Illinois had violated his Second Amendment rights. The Supreme Court reaffirmed Cruikshank and held that the Second Amendment prevented neither the States nor Congress from barring private militias that parade with arms; such a right "cannot be claimed as a right independent of law." This decision upheld the States ' authority to regulate the militia and that citizens had no right to create their own militias or to own weapons for semi-military purposes.[132]

Miller v. Texas

In Miller v. Texas, 153 U.S. 535 (1894), Franklin Miller was convicted and sentenced to be executed for shooting a police officer to death with an unlicensed handgun in violation of Texas law. Miller sought to have his conviction overturned, claiming his Second Amendment rights were violated and that the Bill of Rights should be applied to state law. The Supreme Court ruled that the Second Amendment did not apply to state laws such as the Texas law:[134] "As the proceedings were conducted under the ordinary forms of criminal prosecutions there certainly was no denial of due process of law."[135]

Robertson v. Baldwin

In Robertson v. Baldwin, 165 U.S. 275 (1897), the Court stated that laws regulating concealed arms did not infringe upon the right to keep and bear arms and thus were not a violation of the Second Amendment:
The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the "Bill of Rights," were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons.[136]

United States v. Miller

Main article: United States v. Miller

In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court rejected a Second Amendment challenge to the National Firearms Act prohibiting the interstate transportation of unregistered Title II weapons:
Jack Miller and Frank Layton "did unlawfully...transport in interstate commerce from...Claremore...Oklahoma to...Siloam Springs...Arkansas a certain firearm...a double barrel...shotgun having a barrel less than 18 inches in length...at the time of so transporting said firearm in interstate commerce...not having registered said firearm as required by Section 1132d of Title 26, United States Code, ...and not having in their possession a stamp-affixed written order...as provided by Section 1132C..."[137]

In a unanimous opinion authored by Justice McReynolds, the Supreme Court stated "the objection that the Act usurps police power reserved to the States is plainly untenable."[138] As the Court explained:
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length ' at this time has some reasonable relationship to any preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.[139]

Gun rights advocates cite Miller because they claim that the Court ruled that the Second Amendment protected the right to keep arms that are part of "ordinary military equipment."[140] Gun control advocates cite Miller because they claim that the Court did not consider the question of whether the sawed-off shotgun in the case would be an applicable weapon for personal defense, instead looking solely at the weapon 's suitability for the "common defense."[141] Law professor Andrew McClurg states, "The only certainty about Miller is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact."[142]

District of Columbia v. Heller

Main article: District of Columbia v. Heller

Judgment

According to the syllabus prepared by the U.S. Supreme Court Reporter of Decisions,[143] in District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held:[143][144]
(1) The Second Amendment 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. Pp. 2–53.[143][144]
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.[143][144]
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.[143][144]
(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.[143][144]
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.[143][144]
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.[143][144]
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.[143][144]
(2) Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller 's holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.[143][144]
(3) The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.[144]
Other legal summaries of the court 's findings in this case are similar.[145][146][147][148][149][150]

Notes and analysis

This has been widely described as a landmark decision.[151][152][153][154][155] To clarify that its ruling does not invalidate a broad range of existing firearm laws, the majority opinion, written by Justice Antonin Scalia, said:[156]
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[157]

The majority opinion held that the amendment 's prefatory clause (referencing the "militia") serves to clarify the operative clause (referencing "the people"), but does not limit the scope of the operative clause, because "the 'militia ' in colonial America consisted of a subset of 'the people '...."
Justice Stevens ' dissenting opinion, which was joined by the three other dissenters, said:
The question presented by this case is not whether the Second Amendment protects a "collective right" or an "individual right." Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.[158]

This dissent called the majority opinion "strained and unpersuasive" and said that the right to possess a firearm exists only in relation to the militia and that the D.C. laws constitute permissible regulation. In the majority opinion, Justice Stevens ' interpretation of the phrase "to keep and bear arms" was referred to as a "hybrid" definition that Stevens purportedly chose in order to avoid an "incoherent" and "[g]rotesque" idiomatic meeting.[159]
Justice Breyer, in his own dissent and speaking only for himself, stated that the entire Court subscribes to the proposition that "the amendment protects an 'individual ' right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred".[160]
Regarding the term "well regulated", the majority opinion said: "The adjective 'well-regulated ' implies nothing more than the imposition of proper discipline and training."[121] The majority opinion quoted Spooner from The Unconstitutionality of Slavery as saying that the right to bear arms was necessary for those who wanted to take a stand against slavery.[161] The majority opinion also stated that:
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). If "bear arms" means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage ("for the purpose of self-defense" or "to make war against the King"). But if "bear arms" means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add "for the purpose of killing game." The right "to carry arms in the militia for the purpose of killing game" is worthy of the mad hatter.[162]

The dissenting justices were not persuaded by this argument.[163]
Reaction to Heller has varied, with many sources giving focus to the ruling referring to itself as being the first in Supreme Court history to read the Second Amendment as protecting an individual right. The majority opinion, authored by Justice Scalia, gives explanation of the majority legal reasoning behind this decision.[144] The majority opinion made clear that the recent ruling did not foreclose the Court’s prior interpretations given in United States v. Cruikshank, Presser v. Illinois, and United States v. Miller though these earlier rulings did not limit the right to keep and bear arms solely to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia (i.e., those in common use for lawful purposes).[144]
Heller pertained to three District of Columbia ordinances involving restrictions on firearms amounting to a total ban. These three ordinances were a ban on handgun registration, a requirement that all firearms in a home be either disassembled or have a trigger lock, and licensing requirement that prohibits carrying an unlicensed firearm in the home, such as from one room to another.
Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Because Heller conceded at oral argument that the District 's licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumed that a license will satisfy his prayer for relief and did not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.[144]

McDonald v. Chicago

Main article: McDonald v. Chicago

On June 28, 2010, the Court incorporated the Second Amendment in McDonald v. Chicago, 561 U.S. 3025 (2010). This means that the Court ruled that the Second Amendment limits State and local governments to the same extent that it limits the federal government.[4] It also remanded a case regarding a Chicago handgun prohibition. Four of the five Justices in the majority voted to do so by way of the Due Process Clause of the Fourteenth Amendment, while the fifth Justice, Clarence Thomas, voted to do so through the amendment 's Privileges or Immunities Clause.[164]

United States Courts of Appeals decisions since Heller

Since Heller, the United States courts of appeals have ruled on many Second Amendment challenges to convictions and gun control laws.[165][166] The following are post-Heller cases, divided by Circuit, along with summary notes:
First Circuit • United States v. Rene E., 583 F.3d 8 (1st Cir. 2009) – On August 31, 2009, the First Circuit affirmed the conviction of a juvenile for the illegal possession of a handgun as a juvenile, under 18 U.S.C. § 922(x)(2)(A) and 18 U.S.C. § 5032, rejecting the defendant 's argument that the federal law violated his Second Amendment rights under Heller. The court cited "the existence of a longstanding tradition of prohibiting juveniles from both receiving and possessing handguns" and observed "the federal ban on juvenile possession of handguns is part of a longstanding practice of prohibiting certain classes of individuals from possessing firearms — those whose possession poses a particular danger to the public."[167]
Second Circuit • Kachalsky v. County of Westchester, 11-3942 – On November 28, 2012, the Second Circuit upheld New York 's may-issue concealed carry permit law, ruling that "the proper cause requirement is substantially related to New York 's compelling interests in public safety and crime prevention."[168]
Fourth Circuit • United States v. Hall, 551 F.3d 257 (4th Cir. 2009) – On August 4, 2008, the Fourth Circuit upheld as constitutional the prohibition of possession of a concealed weapon without a permit.[169] • United States v. Chester, 628 F.3d 673 (4th Cir. 2010) – On December 30, 2010, the Fourth Circuit vacated William Chester 's conviction for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9).[170] The court found that the district court erred in perfunctorily relying on Heller 's exception for "presumptively lawful" gun regulations made in accordance with "longstanding prohibitions".[171]
Fifth Circuit • United States v. Dorosan, 350 Fed. Appx. 874 (5th Cir. 2009) – On June 30, 2008, the Fifth Circuit upheld 39 C.F.R. 232.1(l), which bans weapons on postal property, sustaining restrictions on guns outside the home, specifically in private vehicles parked in employee parking lots of government facilities, despite Second Amendment claims that were dismissed. The employee 's Second Amendment rights were not infringed since the employee could have instead parked across the street in a public parking lot, instead of on government property.[172][173] • United States v. Bledsoe, 334 Fed. Appx. 771 (5th Cir. 2009) – The Fifth Circuit affirmed the decision of a U.S. District Court decision in Texas, upholding 18 U.S.C. § 922(a)(6), which prohibits "straw purchases." A "straw purchase" occurs when someone eligible to purchase a firearm buys one for an ineligible person. Additionally, the court rejected the request for a strict scrutiny standard of review.[169] • United States v. Scroggins, 551 F.3d 257 (5th Cir. 2010) – On March 4, 2010, the Fifth Circuit affirmed the conviction of Ernie Scroggins for possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The court noted that it had, prior to Heller, identified the Second Amendment as providing an individual right to bear arms, and had already, likewise, determined that restrictions on felon ownership of firearms did not violate this right. Moreover, it observed that Heller did not affect the longstanding prohibition of firearm possession by felons.
Seventh Circuit • United States v. Skoien, 587 F.3d 803 (7th Cir. 2009) – Steven Skoien, a Wisconsin man, convicted of two misdemeanor domestic violence convictions appealed his conviction based on the argument that the prohibition violated the individual rights to bear arms, as described in Heller. After initial favorable rulings in lower court based on a standard of intermediate scrutiny,[174] on July 13, 2010, the Seventh Circuit, sitting en banc, ruled 10–1 against Skoien and reinstated his conviction for a gun violation citing the strong relation between the law in question and the government objective.[174] Skoien was convicted and sentenced to two years in prison for the gun violation and likely will be subject to a lifetime ban on gun ownership.[175][176] Pro-gun rights editorials have sharply criticized this ruling as going too far with the enactment of a lifetime gun ban,[177] while editorials favoring gun regulations have praised the ruling as "a bucket of cold water thrown on the 'gun rights ' celebration".[178] • Moore v. Madigan (Circuit docket 12-1269)[179] – On December 11, 2012, the Seventh Circuit ruled that the Second Amendment protected a right to keep and bear arms in public for self-defense. This was an expansion of the Supreme Court 's decisions in Heller and McDonald, each of which referred only to such a right in the home. Based on this ruling, the court declared Illinois 's ban on the concealed carrying of firearms to be unconstitutional. The court stayed this ruling for 180 days, so Illinois could enact replacement legislation.[180][181][182]
Eighth Circuit • United States v. Perkins, 526 F.3d 1107 (8th Cir. 2008) – On September 23, 2008, the Eighth Circuit upheld 26 U.S.C. § 5841, which prohibits the receiving or possession of an unregistered firearm.[169]
Ninth Circuit • Nordyke v. King, 2012 WL 1959239 (9th Cir. 2012) – On July 29, 2009, the Ninth Circuit vacated an April 20 panel decision and reheard the case en banc on September 24, 2009.[183][184][185][186] The April 20 decision had held that the Second Amendment applies to state and local governments, while also upholding an Alameda County, California ordinance that makes it a crime to bring a gun or ammunition on to, or possess either while on, county property.[187][188] The en banc panel remanded the case to the three-judge panel. On May 2, 2011, that panel ruled that intermediate scrutiny was the correct standard by which to judge the ordinance 's constitutionality and remanded the case to the United States District Court for the Northern District of California.[189] On November 28, 2011, the Ninth Circuit vacated the panel 's May 2 decision and agreed to rehear the case en banc.[190][191] On April 4, 2012, the en banc panel sent the case to mediation.[192] On June 1, 2012, the en banc panel dismissed the case, but only after Alameda County officials changed their interpretation of the challenged ordinance. Under the new interpretation, gun shows may take place on county property under the ordinance 's exception for "events", subject to restrictions regarding the display and handling of firearms.[193]

Notes and citations

1. ^ a b Pollock, Earl (2008). The Supreme Court and American Democracy: Case Studies on Judicial Review and Public Policy. Greenwood. p. 423. ISBN 978-0-313-36525-6. 2. ^ "held that the second amendment protects an individual 's right to bear arms,"Scaros, Constantinos E. (2010). Understanding the Constitution. Jones & Bartlett Publishers. p. 484. ISBN 978-0-7637-5811-0. 3. ^ "The Constitution of the United States, Analysis and Interpretation, 2008 Supplement (Senate document 110-17)". p. 83. 4. ^ a b Liptak, Adam (June 28, 2010). "Justices Extend Firearm Rights in 5-to-4 Ruling". The New York Times. Retrieved December 17, 2012. 5. ^ Davies, pp. 209–16. 6. ^ In Part II-A of the Opinion of the Court in District of Columbia v. Heller, the Supreme Court cited this version of the amendment. 7. ^ "United States Constitution". Cornell University Law School. 8. ^ Young, David E., The Founders ' View of the Right to Bear Arms, p.222. 9. ^ Blackstone 's Commentaries Book 1 Ch 1 – "The fifth and last auxiliary right of the subject ... is that of having arms for their defence". 10. ^ From the English civil war until the Glorious Revolution, militias occasionally disarmed Catholics, and the King, without Parliament 's consent, likewise occasionally disarmed Protestants. Malcolm, "The Role of the Militia," pp. 139–51. 11. ^ Joyce Lee Malcolm, To Keep and Bear Arms. 12. ^ "They accordingly obtained an assurance from William and Mary, in the...(Bill of Rights), that Protestants would never be disarmed:..This right has long been understood to be the predecessor to our Second Amendment.... 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." Opinion of the Court in Heller 13. ^ a b "1688 c.2 1 Will. and Mar. Sess. 2". Statutelaw.gov.uk. Retrieved August 30, 2010. 14. ^ Barnett, Law, p. 172. 15. ^ "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 Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we (the United States Supreme Court) said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed ..”. 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. Malcolm, To Keep and Bear Arms 31–53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103–106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” 1 W. & M., c. 2, §7, in 3 Eng. Stat. at Large 441 (1689). This right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights and What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle)." From the Opinion of the Court in District of Coöimbia versus Heller http://www.supremecourt.gov/opinions/07pdf/07-290.pdf 16. ^ Justice Antonin Scalia, wrote that "the right of the people to keep and bear Arms, shall not be infringed" was a just a controlling one and referred to it as a pre-existing right of individuals to possess and carry personal weapons for self-defense and intrinsically for defense against tyranny. As with the English law "like most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." District of Columbia v Heller 17. ^ "Where a later enactment does not expressly repeal an earlier enactment which it has power to override, but the provisions of the later enactment are contrary to those of the earlier, the latter by implication repeals the earlier." R v. Burke, [1998] EWHC Admin 913; "[T]he Bill of Rights...was declaratory of the common law. It contained in it its own words of limitation, namely that the right to have arms for self-defence is limited by the words 'and as allowed by Law '. The law is a changing thing. Parliament by statute can repeal the common law...Where the Bill of Rights says that 'the Subjects may have arms for their defence suitable for their condition and as allowed by law ', 'and as allowed by law ' means 'and as allowed by law for the time being '[.]" R v. Burke, [1999] EWCA Civ 923. 18. ^ Thompson, Mark (1938). Constitutional History of England. qtd. in Maer and Gay, p. 4. 19. ^ Malcolm, To Keep and Bear Arms, p. 51. 20. ^ a b Ely and Bodenhamer, pp. 89–91. 21. ^ Heyman, pp. 253–9. "Finally, we should note that (contrary to Kates 's assertion), Blackstone nowhere suggests that the right to arms derives from "the common law." Instead, this is a right that is secured by "the constitution," and in particular by the Bill of Rights." 22. ^ "English Bill of Rights, 1689, "An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown"". The Avalon Project. Yale Law School. 2008. Retrieved December 26, 2012. 23. ^ e.g., King Henry II 's Assize of Arms and the Statute of Winchester of 1285. See "The history of policing in the West, Collective responsibility in early Anglo-Saxon times", Encyclopædia Britannica online. 24. ^ Levy, pp. 136–7. 25. ^ Cornell, Gun Control, p. 2. 26. ^ Hardy, p. 1237. "Early Americans wrote of the right in light of three considerations: (1) as auxiliary to a natural right of self-defense; (2) as enabling an armed people to deter undemocratic government; and (3) as enabling the people to organize a militia system." 27. ^ Malcolm, "That Every Man Be Armed," pp. 452, 466. "The Second Amendment reflects traditional English attitudes toward these three distinct, but intertwined, issues: the right of the individual to protect his life, the challenge to government of an armed citizenry, and the preference for a militia over a standing army. The framers ' attempt to address all three in a single declarative sentence has contributed mightily to the subsequent confusion over the proper interpretation of the Second Amendment." 28. ^ Levy, p. 136. 29. ^ Merkel and Uviller, pp. 62, 179 ff, 183, 188 ff, 306. "[T]he right to bear arms was articulated as a civic right inextricably linked to the civic obligation to bear arms for the public defense." 30. ^ Spitzer, pp. 155–9. 31. ^ Dulaney, p. 2. 32. ^ Bogus, Law and History, pp. 67–9, 239–40. 33. ^ Merkel and Uviller, pp. 62, 179 ff, 183, 188 ff, 306. 34. ^ Col. Charles J. Dunlap, Jr. (1995). "Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment". 62 TENN. L. REV. 643. Retrieved December 18, 2012. "The concept postulates that the Second Amendment was intended to provide the means by which the people, as a last resort, could rise in armed revolt against tyrannical authorities." 35. ^ "Pennsylvania Constitution of 1776". The Avalon Project. Yale Law School. 2008. Retrieved December 26, 2012. 36. ^ DeConde, p. 27. 37. ^ a b c d "Boston, March 17". N. Y. J., Supplement: 1, Col.3. April 13, 1769. qtd. in Halbrook, A Right to Bear Arms, p. 7. 38. ^ Charles, "Arms for Their Defence?", p. 4. 39. ^ Anderson and Horowitz, pp. 91–2. 40. ^ Vest, Rose. "Shay 's Rebellion", Home of Heroes. 41. ^ Pole and Greene, p. 386. 42. ^ Vile, p. 30. 43. ^ Merkel and Uviller, p. 79. 44. ^ McAffee and Quinlan, p. 781. 45. ^ Rakove, p. ?[page needed] 46. ^ William Blackstone, Commentaries on the Laws of England, Book 1, Chapter 1 "the fifth and last auxiliary right...when the sanctions of society and laws are found insufficient to restrain the violence of oppression". 47. ^ a b Millis, p. 49. "The founders sought to balance military, as they did political, power, between people, states, and nation[.]" 48. ^ a b c d e The Federalist Papers No. 29 (Alexander Hamilton) (concerning the militia). 49. ^ Bogus, Carl T.. "Do We Place our Faith in Law or Guns?". Retrieved July 29, 2009. 50. ^ Henigan, p. ?. "[A] generalized constitutional right of all citizens to engage in armed insurrection against their government...would threaten the rule of law itself."[page needed] 51. ^ Reynolds, p. ?[page needed] 52. ^ "Letter from John Adams to Abigail Adams, 22 December 1793". Masshist.org. Retrieved August 30, 2010. 53. ^ Cooke, p. 100. "This is another protection against a possible abuse by Congress. The right protected is really the right of a state to maintain an armed militia, or national guard, as we call it now. In the eighteenth century people feared that Congress might, by passing a law, prohibit the states from arming their citizens. Then having all the armed strength at its command, the national government could overwhelm the states. Such a circumstance has never happened, but this amendment would prevent it. The Second Amendment does not give anybody or everybody the right to possess and use firearms. The states may very properly prescribe regulations and permits governing the use of guns within their borders." 54. ^ US Constitution Article 1 Section 8 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. 55. ^ "Elliots Debates Vol 3, Virginia Convention, Saturday June 14, 1788". Teachingamericanhistory.org. January 1, 1980. Retrieved August 30, 2010. The national government has an exclusive right to provide for arming, organizing, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States. The state governments have the power of appointing the officers, and of training the militia, according to the discipline prescribed by Congress, if they should think proper to prescribe any. Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army. 56. ^ Mulloy, p. 43. 57. ^ Smith, pp. 591, 600. 58. ^ Cress, Lawrence. An Armed Community: The Origins and Meaning of the Right to Bear Arms. p. 31. qtd. in Cottrol, p. 283. 59. ^ Vile, p. 19. 60. ^ Schmidt et al., p. 39. 61. ^ Williams, pp. 41–4. 62. ^ The Federalist Papers No. 46 (James Madison) (concerning the influence of state and federal governments). 63. ^ Webster, Noah. "An Examination of the Leading Principles of the Federal Constitution" (October 10, 1787). 64. ^ Young, pp. 38–41. "A Citizen of America (Noah Webster) October 10, 1787 Pamphlet: An Examination into the leading principles of the Federal Constitution." 65. ^ Foner and Garraty, p. 914. "The Massachusetts compromise determined the fate of the Constitution, as it permitted delegates with doubts to vote for it in the hope that it would be amended." 66. ^ Adamson, p. 63. 67. ^ See Theories of Constitutional Interpretation, maintained by Doug Linder, University of Missouri-Kansas City Law School. Retrieved 2011-12-11. (Author cites Robert Bork: "If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended.") 68. ^ Garry Wills, A Necessary Evil: A History of American Distrust of Government, Simon and Schuster, 1999, page 252. ("Until recently, the Second Amendment was a little-visited area of the Constitution. A two thousand-page commentary on the Constitution put out by the Library of Congress in 1973 has copious annotation for most clauses, but less than a page and a half for the Second Amendment.") 69. ^ Garry Wills, A Necessary Evil: A History of American Distrust of Government, Simon and Schuster, 1999, pages 253–254. ("Whitehill deals with guns in three of his fifteen headings. Article 8 begins: 'The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times... ' article 7: 'That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purposes of killing game... '") 70. ^ Garry Wills, A Necessary Evil: A History of American Distrust of Government, Simon and Schuster, 1999, page 253. ("The items on the [Whitehill 's] list were never discussed in the convention, which when on to approve the Constitution.") 71. ^ Garry Wills, A Necessary Evil: A History of American Distrust of Government, Simon and Schuster, 1999, page 258. ("The context of the amendment as he [Madison] originally drafted it is clearly military: '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. ' That last clause equates 'bear arms ' and 'military service. ' Quakers and other contentious objectors are exempted from bearing arms, which does not prohibit them from hunting rabbits with their privately owned muskets. The Congress actually strengthened the military context, by moving Madison 's explanatory second clause into the first place, as a preamble stating the scope of the law (the regular function of a 'whereas ' introduction): '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. '") 72. ^ Alexander Hamilton, Federalist #29. ("If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security") 73. ^ Garry Wills, A Necessary Evil: A History of American Distrust of Government, Simon and Schuster, 1999, pages 114–115. ("The militia 's actual use, just as in America, was as a manpower pool sporadically activated, often at the discretion of country squires, for purposes of internal police and the suppression of dissent.") 74. ^ Alexander Hamilton, Federalist #25. ("The conduct of Massachusetts affords a lesson on the same subject, though on different ground. That State (without waiting for the sanction of Congress, as the articles of the Confederation require) was compelled to raise troops to quell a domestic insurrection, and still keeps a corps in pay to prevent a revival of the spirit of revolt.") 75. ^ Tench Coxe, "Remarks On The First Part Of The Amendments To The Federal Constitution," 1789. ("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 next article in their right to keep and bear their private arms.") 76. ^ "Articles of Confederation". Usconstitution.net. May 19, 2010. Retrieved August 30, 2010. 77. ^ "US Library of Congress, repro of original text". Memory.loc.gov. Retrieved August 30, 2010. 78. ^ "US Constitution". US Constitution. Retrieved August 30, 2010. 79. ^ 2 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 97 (2d ed. 1863) 80. ^ a b c d e "The Right to Keep and Bear Arms". Providence Foundation. Retrieved December 20, 2012. 81. ^ Noah Webster, An Examination into the Leading Principles of the Federal Constitution (1787), Reprinted in Pamphlets on the Constitution of the United States, Published During Its Discussion by the People, 1787–1788, at 56 (Paul L. Ford, ed. 1971) (1888) 82. ^ 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 425 (3d Ed. 1937) 83. ^ James Monroe Papers, New York Public Library (Miscellaneous Papers of James Monroe) 84. ^ Speech on the Federal Constitution, Virginia Ratifying Convention, 1788 85. ^ The Federalist No. 46, at 371 (James Madison) (John. C. Hamilton Ed., 1864) 86. ^ "United States of America v. Timothy Joe Emerson – The Ratification Debates". Law.umkc.edu. Retrieved August 30, 2010. 87. ^ Annals of Congress, House of Representatives, 1st Congress, 1st Session: p. 451. 88. ^ Journal of the House of Representatives of the United States, Vol. 1: p. 64. 89. ^ Annals of Congress, House of Representatives, 1st Congress, 1st Session: p. 669. 90. ^ Annals of Congress, House of Representatives, 1st Congress, 1st Session: p. 778. 91. ^ Journal of the Senate of the United States of America, Vol. 1: p. 63. 92. ^ Letter from Roger Sherman to Simeon Baldwin (Aug. 22, 1789) qtd. in Bickford, et al., p. 16 See also letter from James Madison to Alexander White (Aug. 24, 1789) qtd. in Madison, Writings, pp. 418–9. 93. ^ Journal of the Senate of the United States of America, Vol. 1: p. 71. 94. ^ Journal of the Senate of the United States of America, Vol. 1: p. 77. 95. ^ Journal of the House of Representatives of the United States, Vol. 1: p. 305. 96. ^ a b c DeConde, p. 53. 97. ^ a b c 1 Stat. 272. 98. ^ Merkel and Uviller, pp. 293–4. 99. ^ a b Merkel and Uviller, p. 12. 100. ^ Szatmary, p. 107. 101. ^ a b c DeConde, pp. 40–3. 102. ^ 1 Stat. 351. 103. ^ a b c Tucker, p. 490 and Kopel, David B.. "The Second Amendment in the Nineteenth Century". Second Amendment Project. 104. ^ For two radically different views of Blackstone on the Second Amendment, see Heyman, Chicago-Kent, and Volokh, Senate Testimony. 105. ^ a b Rawle, p. 126. 106. ^ Rawle, pp. 125–6. 107. ^ a b Story, Joseph (1833). Commentaries on the U.S. Constitution. Harper & Brothers. pp. §1890. 108. ^ Spooner, pp. 17–8. 109. ^ Renehan, pp. 172–4. 110. ^ Spooner, p. 17. 111. ^ Cramer, p. ?[page needed] 112. ^ Right to Keep and Bear Arms, U.S. Senate. 2001 Paladin Press. ISBN 1-58160-254-5. 113. ^ "United States v. Emerson" (http). Retrieved August 30, 2010. 114. ^ Merkel and Uviller, p. 150. "The linguistically correct reading of this unique construction is as though it said: 'Congress shall not limit the right of the people (that is, the potential members of the state militia) to acquire and keep the sort of arms appropriate to their military duty, so long as the following statement remains true: "an armed, trained, and controlled militia is the best – if not the only – way to protect the state government and the liberties of its people against uprisings from within and incursions or oppression from without. '" 115. ^ Winterer, pp. 1–21 116. ^ "Amicus Brief, ACRU, Case No. 03-CV-0213-EGS, Shelly Parker, et al. vs. District of Columbia, p.14" (PDF). Retrieved August 30, 2010. 117. ^ Frey and Wellman, p. 194. 118. ^ Shapiro, p. 148. 119. ^ Volokh, "Commonplace," p. 793. "The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause. Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era: State Bills of Rights contained justification clauses for many of the rights they secured." 120. ^ Merkel, p. 361. "Well-regulated meant well trained, rather than subject to rules and regulations." 121. ^ a b Heller, Opinion of the Court, Part II-A-2. 122. ^ a b "District of Columbia v Heller". Supreme.justia.com. Retrieved August 30, 2010. 123. ^ a b "District of Columbia v Heller". Cornell University Law School. Retrieved August 30, 2010. 124. ^ Cornell, Gun Control, p. 6. Neither of the two modern theories that have defined public debate over the right to bear arms is faithful to the original understanding of this provision of the Bill of Rights. 125. ^ Several public officials, including James Madison and Supreme Court Justice Joseph Story, retained the confusing practice of referring to each of the ten amendments in the Bill of Rights by the enumeration found in the first draft; the fifth article is the Second Amendment. 126. ^ " ' 'United States v. Miller ' '". Supreme.justia.com. Retrieved August 30, 2010. 127. ^ " ' 'District of Columbia v. Heller ' '". Supreme.justia.com. Retrieved August 30, 2010. 128. ^ Cruikshank, at 552. 129. ^ Cruikshank, at 553. 130. ^ Cruikshank, at 554. 131. ^ Doherty, p. 14. 132. ^ a b DeConde, pp. 92–3. 133. ^ "The Lehr und Wehr Verein". The New York Times. July 20, 1886. p. 5. 134. ^ DeConde, p. 96. 135. ^ Miller, at 539. 136. ^ Robertson, at 281. 137. ^ Miller, at 175. 138. ^ Miller, at 177–8. 139. ^ Miller, at 178. 140. ^ Fezell, Howard J.. "The misconstruction of United States v. Miller". Retrieved January 5, 2009. 141. ^ Paul Helmke (March 28, 2008). "One Court 's Second Amendment Fantasy". Huffington Post. Retrieved April 29, 2011. 142. ^ McClurg, p. 139. "But when all is said and done, the only certainty about Miller is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact. For example, Professor Eugene Volokh describes Miller as 'deliciously and usefully ambiguous ' in an article about using the Second Amendment as a teaching tool in constitutional law. That is probably the most accurate statement that can be made about the case." 143. ^ a b c d e f g h i j "DISTRICT OF COLUMBIA v. HELLER (No. 07-290)". Legal Information Institute. Cornell University Law School. Retrieved December 26, 2012. 144. ^ a b c d e f g h i j k l m "Cornell School of Law Summary of the ' 'Heller ' ' Decision". Law.cornell.edu. Retrieved September 1, 2012. 145. ^ "Witkin Legal Institute Summary of the ' 'Heller ' ' Decision". Witkin.com. June 30, 2009. Retrieved December 26, 2012. 146. ^ "Nathan Moore Summary of the Heller Decision". Mooredefenselaw.com. June 30, 2008. Retrieved December 26, 2012. 147. ^ "Global Legal Information Network Summary of the ' 'Heller ' ' Decision". Glin.gov. Retrieved September 1, 2012. 148. ^ Veronica Rose, Principal Analyst. "OLR Research Institute 's Summary of the Heller Decision". Cga.ct.gov. Retrieved September 1, 2012. 149. ^ "Oyez Summary of the ' 'Heller ' ' Decision". Oyez.org. Retrieved December 26, 2012. 150. ^ ""Legal Community Against Violence" Summary of the ' 'Heller ' ' Decision". Lcav.org. Retrieved September 1, 2012. 151. ^ Mauro, Tony (June 27, 2008). "Supreme Court Strikes Down D.C. Gun Ban". Retrieved January 5, 2009. "In a historic 5–4 decision... the landmark ruling..." 152. ^ Biskupic, Joan and Johnson, Kevin (June 27, 2008). "Landmark ruling fires challenges to gun laws". USA Today. Retrieved January 5, 2009. 153. ^ Vicini, James (June 26, 2008). "Americans have right to guns under landmark ruling". Reuters. Retrieved January 5, 2009. 154. ^ Greenhouse, Linda (June 27, 2008). "Justices, Ruling 5–4, Endorse Personal Right to Own Gun". The New York Times. Retrieved January 5, 2009. "The landmark ruling..." 155. ^ Liptak, Adam (March 16, 2009). "Few Ripples From Supreme Court Ruling on Guns". The New York Times. Retrieved August 13, 2010. "The Heller case is a landmark decision that has not changed very much at all..." 156. ^ Robert A. Sedler (June 30, 2008). "Ruling upholds most gun control laws". The Detroit News. Retrieved August 20, 2009. 157. ^ Heller, Opinion of the Court, Part III. 158. ^ " ' 'Heller ' ', Justice Stevens dissenting". Supreme.justia.com. Retrieved August 30, 2010. 159. ^ Heller, Opinion of the Court, Part II-A-1-b. 160. ^ " ' 'Heller ' ', Justice Breyer dissenting". Supreme.justia.com. Retrieved August 30, 2010. 161. ^ " ' 'Heller ' ', Opinion of the Court, Part II-D-1". Supreme.justia.com. Retrieved August 30, 2010. 162. ^ District of Columbia v. Heller, 128 S.Ct. 2783 (2008). 163. ^ Greenhouse, Linda (June 27, 2008). "Justices Rule for Individual Gun Rights - NYTimes.com". The New York Times. Retrieved May 23, 2010. "[A] dramatic upheaval in the law, Justice Stevens said in a dissent" 164. ^ Scarola, Matthew (June 28, 2010). "Analysis: state gun regulations and McDonald". SCOTUSblog. Retrieved July 3, 2010. 165. ^ Winkler, "Heller 's Catch 22," p. 14. 166. ^ Liptak, Adam (March 17, 2009). "Few Ripples From Supreme Court Ruling on Guns". New York Times. Retrieved March 26, 2009. 167. ^ Rene E., at 12–15. 168. ^ N.Y. 's Concealed Gun Licensing Scheme Is Upheld by Circuit – New York Law Journal 169. ^ a b c Winkler, "Heller 's Catch 22," p. 15. 170. ^ "United States Court of Appeals, Fourth Circuit". FindLaw. Thomson Reuters. Retrieved December 26, 2012. 171. ^ Part III of the decision. 172. ^ Weisselberg, pp. 99–100. 173. ^ Text of decision in Dorosan 174. ^ a b "Skoien and the many challenges of Second Amendment jurisprudence". SENTENCING LAW AND POLICY. Retrieved August 13, 2010. 175. ^ "U.S. v. SKOIEN No. 08-3770". 176. ^ "Laws, Life, and Legal Matters – Court Cases and Legal Information at Leagle.com – All Federal and State Appeals Court Cases in One Search". 177. ^ "The right to regain the right to own a gun". 178. ^ "Dennis A. Henigan: New Court Ruling Throws Cold Water on "Gun Rights" Celebration". Huffington Post. July 16, 2010. 179. ^ "Moore v. Madigan (Circuit docket 12-1269)". United States Court of Appeals for the Seventh Circuit. suntimes.com. December 11, 2012. Retrieved December 18, 2012. 180. ^ Denniston, Lyle (December 11, 2012). "Broader gun right declared". SCOTUSblog. Retrieved December 11, 2012. 181. ^ Liptak, Adam (December 18, 2012). "Supreme Court Gun Ruling Doesn’t Block Proposed Controls". The New York Times. Retrieved December 18, 2012. 182. ^ Kopel, David (December 11). "Moore v. Madigan, key points". The Volokh Conspiracy. Retrieved December 18, 2012. 183. ^ Volokh, Eugene (July 29, 2009). "Ninth Circuit Will Rehear Nordyke v. King En Banc". The Volokh Conspiracy. Retrieved July 30, 2009. 184. ^ McCullagh, Declan (August 25, 2009). "High-Profile Gun Rights Case Inches Toward Supreme Court". CBS News. Retrieved August 25, 2009. 185. ^ Schwartz, John (July 30, 2009). "Appeals Court Sets Rehearing on Ruling That Eased Gun Restrictions". NYTimes.com. Retrieved August 17, 2009. 186. ^ Denniston, Lyle (July 30, 2009). "Second Amendment: Less chance of review?". SCOTUSblog. Retrieved July 31, 2009. 187. ^ Nordyke v. King (9th Cir. 2009) 188. ^ Denniston, Lyle (April 20, 2009). "Second Amendment extended". SCOTUSblog. Retrieved April 20, 2009. 189. ^ Denniston, Lyle (May 4, 2011). "Circuit Court bolsters gun rights". SCOTUSblog. Retrieved May 4, 2011. 190. ^ "Text of November 28 order granting rehearing" (PDF). Retrieved September 1, 2012. 191. ^ Mintz, Howard (November 29, 2011). "9th Circuit agrees to rehear long-running Alameda County gun rights case". Oakland Tribune. Retrieved November 30, 2011. 192. ^ Denniston, Lyle (April 4, 2012). "Major gun case shunted aside". SCOTUSblog. Retrieved April 5, 2012. 193. ^ Denniston, Lyle (June 2, 2012). "Nordyke gun case nears end". SCOTUSblog. Retrieved June 3, 2012.

References

Books

• Adams, Les (1996). The Second Amendment Primer: A Citizen 's Guidebook to the History, Sources, and Authorities for the Constitutional Guarantee of the Right to Keep and Bear Arms. Birmingham, Alabama: Paladium Press. • Adamson, Barry (2008). Freedom of Religion, the First Amendment, and the Supreme Court. Pelican Publishing. ISBN 1-58980-520-8. • Anderson, Casey; Horwitz, Joshua (2009). Guns, Democracy, and the Insurrectionist Idea. Ann Arbor, MI: University of Michigan Press. ISBN 0-472-03370-0. • Barnett, Hilaire (2004). Constitutional & Administrative Law. Routledge Cavendish. ISBN 1-85941-927-5. • Bickford, Charlene; et al., ed. (2004). Documentary History of the First Federal Congress of the United States of America, March 4, 1789 – March 3, 1791: Correspondence: First Session, September–November 1789. 17. The Johns Hopkins University Press. ISBN 978-0-8018-7162-7. • Bogus, Carl T. (2001). The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms. New York: The New Press. ISBN 1-56584-699-0. • Boynton, Lindsay Oliver J. (1971). The Elizabethan Militia 1558–1638. David & Charles. ISBN 0-7153-5244-X. OCLC 8605166. • Carter, Gregg Lee (2002). Guns in American Society. ABC-CLIO. • Charles, Patrick J. (2009). The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court. McFarland. ISBN 978-0-7864-4270-6. • Cooke, Edward Francis (2002). A Detailed Analysis of the Constitution. Lanham, MD: Rowman & Littlefield Publishers. ISBN 0-7425-2238-5. • Cornell, Saul (2006). A Well-Regulated Militia — The Founding Fathers and the Origins of Gun Control in America. New York, New York: Oxford University Press. ISBN 978-0-19-514786-5. • Cottrol, Robert (1994). Gun Control and the Constitution: Sources and Explorations on the Second Amendment. Taylor & Francis. • Cramer, Clayton E.; Olson, Joseph (2008). "What Did "Bear Arms" Mean in the Second Amendment?". Geo. J.L. & Pub. Pol 'y 6 (2). • Crooker, Constance Emerson (2003). Gun Control and Gun Rights. Greenwood Publishing Group. ISBN 978-0-313-32174-0. • Denson, John V. (1999). The Costs of War: America 's Pyrrhic Victories (2 ed.). Transaction Publishers. ISBN 978-0-7658-0487-7. • Doherty, Brian (2008). Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment. Washington, D.C.: Cato Institute. ISBN 1-933995-25-4. • Dulaney, W. Marvin (1996). Black Police in America. Bloomington: Indiana University Press. ISBN 0-253-21040-2. • Ely, James W.; Bodenhamer, David J. (2008). The Bill of Rights in Modern America. Bloomington: Indiana University Press. ISBN 0-253-21991-4. • Foner, Eric; Garraty, John Arthur (1991). The Reader 's Companion to American History. Houghton Mifflin Harcourt. ISBN 0-395-51372-3. • Frey, Raymond; Wellman, Christopher (2003). A Companion to Applied Ethics. Cambridge, MA: Blackwell Publishing. ISBN 1-55786-594-9. • Halbrook, Stephen P. (1989). A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees. Greenwood Publishing Group. • Halbrook, Stephen P. (1994). That Every Man Be Armed: The Evolution of a Constitutional Right (Independent Studies in Political Economy). Oakland, CA: The Independent Institute. ISBN 0-945999-38-0. • Hemenway, David (2007). Private Guns, Public Health. University of Michigan Press. ISBN 978-0-472-03162-7. • Kruschke, Earl R. (1995). Gun Control: A Reference Handbook. Santa Barbara, CA: ABC-CLIO. ISBN 0-87436-695-X. • Levy, Leonard W. (1999). Origins of the Bill of Rights. New Haven, CT: Yale University Press. ISBN 0-300-07802-1. • Madison, James (2010). The Writings of James Madison: 1787–1790. Nabu Press. ISBN 978-1-144-58273-7. • Malcolm, Joyce Lee (1996). To Keep and Bear Arms: The Origins of an Anglo-American Right. Cambridge: Harvard University Press. ISBN 0-674-89307-7. • Merkel, William G.; Uviller, H. Richard (2002). The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent. Durham, NC: Duke University Press. ISBN 0-8223-3017-2. • Millis, Walter (1981). Arms and Men. Rutgers University Press. • Mulloy, D. (2004). American Extremism. Routledge. • Pepper, John; Petrie, Carol; Wellford, Charles F. (2005). Firearms and Violence. A Critical Review. Washington, DC: National Academies Press. ISBN 0-309-09124-1. • Pole, J. R.; Greene, Jack P. (2003). A Companion to the American Revolution (Blackwell Companions to American History). Cambridge, MA: Blackwell Publishers. ISBN 1-4051-1674-9. • Renehan, Edward J. (1997). The Secret Six: The True Tale of the Men Who Conspired With John Brown. Columbia, SC: University of South Carolina Press. ISBN 1-57003-181-9. • Shapiro, Ilya (2008). Cato Supreme Court Review 2007–2008. Washington, D.C: Cato Institute. ISBN 1-933995-17-3. • Smith, Rich (2007). The Bill of Rights: Defining Our Freedoms. ABDO Group. ISBN 978-1-59928-913-7. • Schmidt, Steffen; Bardes, Barbara A.; Shelley, Mack C. (2008). American Government and Politics Today: The Essentials. Belmont, CA: Wadsworth Publishing. ISBN 0-495-57170-9. • Spitzer, Robert J. (2001). The Right to Bear Arms: Rights and Liberties under the Law. Santa Barbara, CA: ABC-CLIO. ISBN 1-57607-347-5. • Szatmary, David P. (1980). Shays ' Rebellion: the Making of an Agrarian Insurrection. Amherst: University of Massachusetts Press. ISBN 0-87023-295-9. • Tucker, St. George; Blackstone, William (1996). Blackstone 's Commentaries: With Notes of Reference to the Constitution and Laws, of the Federal Government of the United States, and of the Commonwealth of Virginia: In Five Volumes. The Lawbook Exchange, Ltd.. ISBN 978-1-886363-15-1. • Tushnet, Mark V. (2007). Out of Range: Why the Constitution Can 't End the Battle Over Guns. Oxford University Press. pp. xv. ISBN 978-0-19-530424-4. • Rabban, David (1999). Free Speech in its Forgotten Years. Cambridge University Press. • Rawle, William (1829). A View of the Constitution of the United States of America (2 ed.). P.H. Nicklin. • Spooner, Lysander (1852). An Essay on the Trial by Jury. John P. Jewett and Co.. • Vile, John R. (2005). The Constitutional Convention of 1787: A Comprehensive Encyclopedia of America 's Founding (2 Volume Set). Santa Barbara, CA: ABC-CLIO. ISBN 1-85109-669-8. • Williams, David H. (2003). The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic. New Haven, CT: Yale University Press. ISBN 0-300-09562-7. • Wills, Garry (2000). Saul, Cornell. ed. Whose Right to Bear Arms did the Second Amendment Protect?. Boston: Bedford/St. Martin 's. ISBN 0-312-24060-0. • Wills, Garry (2002). A Necessary Evil: A History of American Distrust of Government. New York: Simon & Schuster. pp. 256–7. ISBN 0-684-87026-6. • Winterer, Caroline (2002). The Culture of Classicism: Ancient Greece and Rome in American Intellectual Life, 1780–1910. Baltimore: Johns Hopkins University Press. • Young, David E. (2001). The Origin of the Second Amendment: A Documentary History of the Bill of Rights 1787–1792 (2 ed.). Golden Oak Books. ISBN 0-9623664-3-9.

Periodicals

• Barnett, Gary E. (June 24, 2008). "The Reasonable Regulation of the Right to Keep and Bear Arms". Geo. J.L. & Pub. Pol 'y 6 (2). • Bogus, Carl (1998). "The Hidden History of the Second Amendment". U.C. Davis L. Rev. 31. • Blodgett-Ford, Sayoko (Fall 1995). "The Changing Meaning of the Right to Bear Arms". Seton Hall Const. L.J. 101. • Breen, T. H. (1972). "English Origins and New World Development: The Case of the Covenanted Militia in Seventeenth-Century Massachusetts". Past & Present 57 (1): 74. doi:10.1093/past/57.1.74. • Sunstein, Cass (November 2008). "Comment: Second Amendment Minimalism: Heller as Griswold". Harv. L. Rev. 122. Retrieved February 20, 2009. • Charles, Patrick J. (2009). " 'Arms for Their Defence? ': An Historical, Legal, and Textual Analysis of the English Right to Have Arms and Whether the Second Amendment should Be Incorporated in McDonald v. City of Chicago". Clev. St. L. Rev. 57 (3). • Cramer, Clayton (Winter 1995). "The Racist Roots of Gun Control". Kan. J. Of Pub. Pol 'y. • Davies, Ross (Winter 2008). "Which is the Constitution". Green Bag 2d 11 (2): 209–16. • Gunn, Steven H. (1998). "A Lawyer 's Guide to the Second Amendment". BYU L. Rev. 35. • Hardy, David (2007). "Book Review: A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America". Wm. & Mary Bill of Rts. J. 15. • Henigan, Denis (1991). "Arms, Anarchy, and the Second Amendment". Val. L. Rev. 26 (107).[dead link] • Heyman, Stephen (2000). "Natural Rights and the Second Amendment". Chi.-Kent. L. Rev. 76 (237). • Kates, Jr., Don B. (November 1983). "Handgun Prohibition and the Original Meaning of the Second Amendment". Mich. L. Rev. (Michigan Law Review, Vol. 82, No. 2) 82 (2): 204–273. doi:10.2307/1288537. JSTOR 1288537. • Konig, David Thomas (2004). "The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of "the Right of the People to Keep and Bear Arms"". Law and History Review 22 (1). • Lund, Nelson. "Heller and Second Amendment Precedent". Lewis & Clark L. Rev.. • Malcolm, Joyce Lee (1986). Book Review: That Every Man Be Armed. 54. • Malcolm, Joyce Lee (1993). "The Role of the Militia in the Development of the Englishman 's Right to be Armed — Clarifying the Legacy". J. On Firearms & Pub. Pol 'y 5. • McAffee, Thomas B.; Quinlan, Michael J. (March 1997). "Bringing Forward the Right to Keep and Bear Arms: Do Text, History, or Precedent Stand in the Way?". N.C. L. Rev.. • McClurg, Andrew (1999). "Lotts ' More Guns and Other Fallacies Infecting the Gun Control Debate". J. Of Firearms & Pub. Pol 'y 11. • Merkel, William (Summer 2009). "Heller and Scalia 's Originalism". Lewis & Clark L. Rev. 13 (2). • Pierce, Darell R. (1982). "Second Amendment Survey". N. Ky. L. Rev. 10 (1). • Rakove, Jack (2000). "The Second Amendment: The Highest Stage of Originalism". Chi.-Kent. L. Rev. 76. • Reynolds, Glenn (1995). "A Critical Guide to the Second Amendment". Tenn. L. Rev. 62 (461). • Schmidt, Christopher (February 2007). "An International Human Right to Keep and Bear Arms". Wm. & Mary Bill of Rts. J. 15 (3): 983. • Smith, Douglas (2008). "The Second Amendment and the Supreme Court". Geo. J.L. & Pub. Pol 'y 6. • Volokh, Eugene (1998). "The Commonplace Second Amendment". NYU L. Rev. 73 (793). • Volokh, Eugene (November/December 1998). "Testimony of Eugene Volokh on the Second Amendment, Senate Subcommittee on the Constitution, September 23, 1998". Cal. Pol. Rev.. • Weisselberg, Charles D. (2009). "Selected Criminal Law Cases in the Supreme Court 's 2007–2008 Term, and a Look Ahead". Court Review 44. • Wills, Garry (1995). "To Keep and Bear Arms". N.Y. Rev. Of Books 42 (14). ISSN 00287504. • Winkler, Adam (February 2007). "Scrutinizing the Second Amendment". Mich. L. Rev. 105. • Winkler, Adam (June 2009). "Heller 's Catch 22". UCLA L. Rev. 56. SSRN 1359225.

Other publications

• Maer, Lucinda; Gay, Oonagh (2009). "The Bill of Rights 1689". Parliament and Constitution Centre.

References: Books • Adams, Les (1996) • Adamson, Barry (2008). Freedom of Religion, the First Amendment, and the Supreme Court. Pelican Publishing. ISBN 1-58980-520-8. • Anderson, Casey; Horwitz, Joshua (2009). Guns, Democracy, and the Insurrectionist Idea. Ann Arbor, MI: University of Michigan Press. ISBN 0-472-03370-0. • Barnett, Hilaire (2004). Constitutional & Administrative Law. Routledge Cavendish. ISBN 1-85941-927-5. • Bogus, Carl T. (2001). The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms. New York: The New Press. ISBN 1-56584-699-0. • Boynton, Lindsay Oliver J. (1971). The Elizabethan Militia 1558–1638. David & Charles. ISBN 0-7153-5244-X. OCLC 8605166. • Carter, Gregg Lee (2002). Guns in American Society. ABC-CLIO. • Charles, Patrick J. (2009). The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court. McFarland. ISBN 978-0-7864-4270-6. • Cooke, Edward Francis (2002). A Detailed Analysis of the Constitution. Lanham, MD: Rowman & Littlefield Publishers. ISBN 0-7425-2238-5. • Cornell, Saul (2006). A Well-Regulated Militia — The Founding Fathers and the Origins of Gun Control in America. New York, New York: Oxford University Press. ISBN 978-0-19-514786-5. • Cottrol, Robert (1994). Gun Control and the Constitution: Sources and Explorations on the Second Amendment. Taylor & Francis. • Cramer, Clayton E.; Olson, Joseph (2008). "What Did "Bear Arms" Mean in the Second Amendment?". Geo. J.L. & Pub. Pol 'y 6 (2). • Crooker, Constance Emerson (2003). Gun Control and Gun Rights. Greenwood Publishing Group. ISBN 978-0-313-32174-0. • Denson, John V. (1999). The Costs of War: America 's Pyrrhic Victories (2 ed.). Transaction Publishers. ISBN 978-0-7658-0487-7. • Doherty, Brian (2008). Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment. Washington, D.C.: Cato Institute. ISBN 1-933995-25-4. • Dulaney, W. Marvin (1996). Black Police in America. Bloomington: Indiana University Press. ISBN 0-253-21040-2. • Ely, James W.; Bodenhamer, David J. (2008). The Bill of Rights in Modern America. Bloomington: Indiana University Press. ISBN 0-253-21991-4. • Foner, Eric; Garraty, John Arthur (1991). The Reader 's Companion to American History. Houghton Mifflin Harcourt. ISBN 0-395-51372-3. • Frey, Raymond; Wellman, Christopher (2003). A Companion to Applied Ethics. Cambridge, MA: Blackwell Publishing. ISBN 1-55786-594-9. • Halbrook, Stephen P. (1989). A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees. Greenwood Publishing Group. • Halbrook, Stephen P. (1994). That Every Man Be Armed: The Evolution of a Constitutional Right (Independent Studies in Political Economy). Oakland, CA: The Independent Institute. ISBN 0-945999-38-0. • Hemenway, David (2007). Private Guns, Public Health. University of Michigan Press. ISBN 978-0-472-03162-7. • Kruschke, Earl R. (1995). Gun Control: A Reference Handbook. Santa Barbara, CA: ABC-CLIO. ISBN 0-87436-695-X. • Levy, Leonard W. (1999). Origins of the Bill of Rights. New Haven, CT: Yale University Press. ISBN 0-300-07802-1. • Madison, James (2010). The Writings of James Madison: 1787–1790. Nabu Press. ISBN 978-1-144-58273-7. • Malcolm, Joyce Lee (1996). To Keep and Bear Arms: The Origins of an Anglo-American Right. Cambridge: Harvard University Press. ISBN 0-674-89307-7. • Merkel, William G.; Uviller, H. Richard (2002). The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent. Durham, NC: Duke University Press. ISBN 0-8223-3017-2. • Millis, Walter (1981). Arms and Men. Rutgers University Press. • Mulloy, D. (2004). American Extremism. Routledge. • Pepper, John; Petrie, Carol; Wellford, Charles F. (2005). Firearms and Violence. A Critical Review. Washington, DC: National Academies Press. ISBN 0-309-09124-1. • Pole, J. R.; Greene, Jack P. (2003). A Companion to the American Revolution (Blackwell Companions to American History). Cambridge, MA: Blackwell Publishers. ISBN 1-4051-1674-9. • Renehan, Edward J. (1997). The Secret Six: The True Tale of the Men Who Conspired With John Brown. Columbia, SC: University of South Carolina Press. ISBN 1-57003-181-9. • Shapiro, Ilya (2008). Cato Supreme Court Review 2007–2008. Washington, D.C: Cato Institute. ISBN 1-933995-17-3. • Smith, Rich (2007). The Bill of Rights: Defining Our Freedoms. ABDO Group. ISBN 978-1-59928-913-7. • Schmidt, Steffen; Bardes, Barbara A.; Shelley, Mack C. (2008). American Government and Politics Today: The Essentials. Belmont, CA: Wadsworth Publishing. ISBN 0-495-57170-9. • Spitzer, Robert J. (2001). The Right to Bear Arms: Rights and Liberties under the Law. Santa Barbara, CA: ABC-CLIO. ISBN 1-57607-347-5. • Szatmary, David P. (1980). Shays ' Rebellion: the Making of an Agrarian Insurrection. Amherst: University of Massachusetts Press. ISBN 0-87023-295-9. • Tushnet, Mark V. (2007). Out of Range: Why the Constitution Can 't End the Battle Over Guns. Oxford University Press. pp. xv. ISBN 978-0-19-530424-4. • Rabban, David (1999). Free Speech in its Forgotten Years. Cambridge University Press. • Rawle, William (1829). A View of the Constitution of the United States of America (2 ed.). P.H. Nicklin. • Spooner, Lysander (1852). An Essay on the Trial by Jury. John P. Jewett and Co.. • Vile, John R. (2005). The Constitutional Convention of 1787: A Comprehensive Encyclopedia of America 's Founding (2 Volume Set). Santa Barbara, CA: ABC-CLIO. ISBN 1-85109-669-8. • Williams, David H. (2003). The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic. New Haven, CT: Yale University Press. ISBN 0-300-09562-7. • Wills, Garry (2000). Saul, Cornell. ed. Whose Right to Bear Arms did the Second Amendment Protect?. Boston: Bedford/St. Martin 's. ISBN 0-312-24060-0. • Wills, Garry (2002). A Necessary Evil: A History of American Distrust of Government. New York: Simon & Schuster. pp. 256–7. ISBN 0-684-87026-6. • Winterer, Caroline (2002). The Culture of Classicism: Ancient Greece and Rome in American Intellectual Life, 1780–1910. Baltimore: Johns Hopkins University Press. • Young, David E. (2001). The Origin of the Second Amendment: A Documentary History of the Bill of Rights 1787–1792 (2 ed.). Golden Oak Books. ISBN 0-9623664-3-9. • Bogus, Carl (1998). "The Hidden History of the Second Amendment". U.C. Davis L. Rev. 31. • Blodgett-Ford, Sayoko (Fall 1995). "The Changing Meaning of the Right to Bear Arms". Seton Hall Const. L.J. 101. • Breen, T. H. (1972). "English Origins and New World Development: The Case of the Covenanted Militia in Seventeenth-Century Massachusetts". Past & Present 57 (1): 74. doi:10.1093/past/57.1.74. • Sunstein, Cass (November 2008). "Comment: Second Amendment Minimalism: Heller as Griswold". Harv. L. Rev. 122. Retrieved February 20, 2009. • Charles, Patrick J. (2009). " 'Arms for Their Defence? ': An Historical, Legal, and Textual Analysis of the English Right to Have Arms and Whether the Second Amendment should Be Incorporated in McDonald v. City of Chicago". Clev. St. L. Rev. 57 (3). • Cramer, Clayton (Winter 1995). "The Racist Roots of Gun Control". Kan. J. Of Pub. Pol 'y. • Davies, Ross (Winter 2008). "Which is the Constitution". Green Bag 2d 11 (2): 209–16. • Gunn, Steven H. (1998). "A Lawyer 's Guide to the Second Amendment". BYU L. Rev. 35. • Hardy, David (2007). "Book Review: A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America". Wm. & Mary Bill of Rts. J. 15. • Henigan, Denis (1991). "Arms, Anarchy, and the Second Amendment". Val. L. Rev. 26 (107).[dead link] • Heyman, Stephen (2000) • Kates, Jr., Don B. (November 1983). "Handgun Prohibition and the Original Meaning of the Second Amendment". Mich. L. Rev. (Michigan Law Review, Vol. 82, No. 2) 82 (2): 204–273. doi:10.2307/1288537. JSTOR 1288537. • Konig, David Thomas (2004). "The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of "the Right of the People to Keep and Bear Arms"". Law and History Review 22 (1). • Malcolm, Joyce Lee (1986). Book Review: That Every Man Be Armed. 54. • Malcolm, Joyce Lee (1993). "The Role of the Militia in the Development of the Englishman 's Right to be Armed — Clarifying the Legacy". J. On Firearms & Pub. Pol 'y 5. • McAffee, Thomas B.; Quinlan, Michael J. (March 1997). "Bringing Forward the Right to Keep and Bear Arms: Do Text, History, or Precedent Stand in the Way?". N.C. L. Rev.. • McClurg, Andrew (1999). "Lotts ' More Guns and Other Fallacies Infecting the Gun Control Debate". J. Of Firearms & Pub. Pol 'y 11. • Merkel, William (Summer 2009). "Heller and Scalia 's Originalism". Lewis & Clark L. Rev. 13 (2). • Pierce, Darell R. (1982). "Second Amendment Survey". N. Ky. L. 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