Second Amendment to the United States Constitution

There are several versions of the text of the Second Amendment, each with capitalization or punctuation differences. Differences exist between the version passed by Congress and put on display and the versions ratified by the states. These differences have been a focus of debate regarding the meaning of the amendment, particularly regarding the importance of what the courts have called the prefatory clause. The final, handwritten original of the Bill of Rights as passed by Congress, with the rest of the original prepared by scribe William Lambert, is preserved in the National Archives. This is the version ratified by Delaware and used by the Supreme Court in District of Columbia v. Heller: Some state-ratified versions, such as Maryland's, omitted the first or final commas: The ratification act from New Jersey has no commas: ==Pre-Constitution background==

Influence of the English Bill of Rights of 1689 The right of Protestants to bear arms in English history is regarded in English common law as a subordinate auxiliary right of the primary rights to personal security, personal liberty, and private property. According to Sir William Blackstone, "The... last auxiliary right of the subject... is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is... declared by... statute, 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." The English Bill of Rights of 1689 emerged from a tempestuous period in English politics during which two issues were major sources of conflict: the authority of the king to govern without the consent of Parliament, and the role of Catholics in a country with a staunchly Protestant majority. 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 his subjects, after James II had disarmed many Protestants that were "suspected or knowne" of disliking the government, and had argued with Parliament over his desire to maintain a standing (or permanent) army. The bill states that it is acting to restore "ancient rights" trampled upon by James II, though some have argued that the English Bill of Rights created a new right to have arms, which developed out of a duty to have arms. In District of Columbia v. Heller (2008), the Supreme Court did not accept this view, remarking that the English right at the time of the passing of the English Bill of Rights was "clearly an individual right, having nothing whatsoever to do with service in the militia" and that it was a right not to be disarmed by the Crown and was not the granting of a new right to have arms. The text of the English Bill of Rights of 1689 includes language protecting the right of Protestants against disarmament by the Crown, stating: "That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law." It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament. 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: 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 ." Before and after the English Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm. In 1765, Sir William Blackstone wrote the Commentaries on the Laws of England describing the right to have arms in England during the 18th century as a subordinate auxiliary right of the subject that was "also declared" in the English Bill of Rights. 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 decided in Heller). Some in the United States have preferred the "rights" argument arguing that the English Bill of Rights had granted a right. The need to have arms for self-defence was not really in question. Peoples all around the world since time immemorial had armed themselves for the protection of themselves and others, and as organized nations began to appear these arrangements had been extended to the protection of the state. Without a regular army and police force, 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. Influence of the British Militia Act 1757 In 1757 Great Britain's Parliament created the Militia Act 1757 (30 Geo. 2. c. 25), "An Act for better ordering of the militia forces in the several counties of that part of Great Britain called England". This act declared that "a well-ordered and well-disciplined militia is essentially necessary to the safety, peace and prosperity of this kingdom," and that the current militia laws for the regulation of the militia were defective and ineffectual. Influenced by this act, in 1775 Timothy Pickering created "An Easy Plan of Discipline for a Militia". Greatly inhibited by the events surrounding Salem, Massachusetts, where the plan was printed, Pickering submitted the writing to George Washington. On May 1, 1776, the Massachusetts Bay Councell resolved that Pickering's discipline, a modification of the 1757 act, be the discipline of their Militia. On March 29, 1779, for members of the Continental Army this was replaced by Von Steuben's Regulations for the Order and Discipline of the Troops of the United States. With ratification of the Second Amendment, after May 8, 1792, the entire United States Militia, barring two declarations, would be regulated by Von Steuben's Discipline. America before the U.S. Constitution . King Charles I authorized the use of arms for special defense and safety, on land and at sea, against: • destructive forces • invasive forces • safeguarding against tyrannical governments • suppressing insurrection, allegedly including slave revolts, though professor Paul Finkelman has pointed out that the claim of a specific intent to protect the ability to put down slave revolts is not supported by the historical record • facilitating a natural right of self-defense Which of these considerations were thought of as most important and ultimately found expression in the Second Amendment is disputed. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776 asserted that, "the people have a right to bear arms for the defence of themselves and the state." During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, including many who were loyal to British rule. As defiance and opposition to British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists known as Patriots, who favored independence from British rule. As a result, some Patriots created their own militias that excluded the Loyalists and then sought to stock independent armories for their militias. In response to this arms build-up, the British Parliament established an embargo of firearms, parts and ammunition against the American colonies which in some instance came to be referred to as Powder Alarms. King George III also began disarming individuals who were in the most rebellious areas in the 1760s and 1770s. 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 Right, Blackstone's summary of the Declaration of Right, their own militia laws and common law rights to self-defense. While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense. The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 objecting to the Crown suppression of colonial opposition to the Townshend Acts: The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with regular French army and naval forces and various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist militia and Hessian auxiliaries. Following the Revolution, the United States was governed by the Articles of Confederation. Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the standing army was reduced to as few as 80 men. They considered it to be bad that there was no effective federal military crackdown on an armed tax rebellion in western Massachusetts known as Shays' Rebellion. Anti-federalists, on the other hand, took the side of limited government and sympathized with the rebels, many of whom were former Revolutionary War soldiers. Subsequently, the Constitutional Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size. Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power. Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that James Madison "did not invent the right to keep and bear arms when he drafted the Second Amendment; the right was pre-existing at both common law and in the early state constitutions." In contrast, historian Jack Rakove suggests that Madison's intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed. One aspect of the gun control debate is the conflict between gun control laws and the right to rebel against unjust governments. Blackstone in his Commentaries alluded to this right to rebel as the natural right of resistance and self preservation, to be used only as a last resort, exercisable when "the sanctions of society and laws are found insufficient to restrain the violence of oppression". as Alexander Hamilton explained in his "Concerning the Militia" essay published in 1788: A widespread fear, during the debates on ratifying the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens, or prohibiting citizens from arming themselves. More recently some have advanced what has been called the insurrectionist theory of the Second Amendment whereby it is the right of any citizen to take up arms against their government should they consider it illegitimate. Such a reading has been voiced by organizations such as the National Rifle Association of America (NRA) and by various individuals including some elected officials. Congressman Jamie Raskin, however, has argued that there is no basis in constitutional law or scholarship for this view. He notes that, not only does this represent a misreading of the text of the Amendment as drafted, it stands in violation of other elements of the Constitution. ==State Constitutional Precursors to the Second Amendment==

==Drafting and adoption of the Constitution==

In March 1785, delegates from Virginia and Maryland assembled at the Mount Vernon Conference to fashion a remedy to the inefficiencies of the Articles of Confederation. 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: • 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 it the power to raise a standing army. Article 1, Section 8 of the Constitution codified these changes by allowing the Congress to provide for the common defense and general welfare of the United States by doing the following: • raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; • provide and maintain a navy; • make rules for the government and regulation of the land and naval forces; • provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; • provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress. Some representatives mistrusted proposals to enlarge federal powers, because they were concerned about the inherent risks of centralizing power. Federalists, including James Madison, initially argued that a bill of rights was unnecessary, sufficiently confident that the federal government could never raise a standing army powerful enough to overcome a militia. Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army. Anti-federalists, on the other hand, 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. The Constitution was declared ratified on June 21, 1788, when nine of the original thirteen states had ratified it. The remaining four states later followed suit, although the last two states, North Carolina and Rhode Island, ratified only after Congress had passed the Bill of Rights and sent it to the states for ratification. James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June 8, 1789, and was adopted on December 15, 1791. ==Debates on amending the Constitution==

The debate surrounding the Constitution's ratification is of practical importance, 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. Robert Whitehill, a delegate from Pennsylvania, sought to clarify the draft Constitution with a bill of rights explicitly granting individuals the right to hunt on their own land in season, though Whitehill's language was never debated. Argument for state power 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: In contrast, Article I, Section 8, Clause 16 of the U.S. Constitution states: Government tyranny A foundation of American political thought during the Revolutionary period was concern about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is "a chimerical idea to suppose that a country like this could ever be enslaved... Is it possible... that an army could be raised for the purpose of enslaving themselves or their brethren? Or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?" Noah Webster similarly argued: George Mason also argued the importance of the militia and right to bear arms by reminding his compatriots of the British government'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. Writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included "the right to keep and bear arms" in a list of basic "human rights", which he proposed to be added to the Constitution. Patrick Henry argued in the Virginia ratification convention on June 5, 1788, for the dual rights to arms and resistance to oppression: To maintain slavery Preserving slave patrols In the slave states, the militia was available for military operations, but its biggest function was to police the slaves. According to Dr Carl T. Bogus, Professor of Law of the Roger Williams University Law School in Rhode Island, This preoccupation is clearly expressed in 1788 Therefore, Bogus argues, in a compromise with the slave states, and to reassure Patrick Henry, George Mason and other slaveholders that they would be able to keep their slave control militias independent of the federal government, James Madison (also slave owner) redrafted the Second Amendment into its current form "for the specific purpose of assuring the Southern states, and particularly his constituents in Virginia, that the federal government would not undermine their security against slave insurrection by disarming the militia." Bogus writes with respect to Georgia laws passed in 1755 and 1757 in this context: "The Georgia statutes required patrols, under the direction of commissioned militia officers, to examine every plantation each month and authorized them to search 'all Negro Houses for offensive Weapons and Ammunition' and to apprehend and give twenty lashes to any slave found outside plantation grounds." Finkelman recognises that James Madison "drafted an amendment to protect the right of the states to maintain their militias," but insists that "The amendment had nothing to do with state police powers, which were the basis of slave patrols." Freed slaves also served in General Washington's army. Secondly, they also greatly feared "a ruinous slave rebellion in which their families would be slaughtered and their property destroyed." When Virginia ratified the Bill of Rights on December 15, 1791, the Haitian Revolution, a successful slave rebellion, was under way. The right to bear arms was therefore deliberately tied to membership in a militia by the slaveholder and chief drafter of the Amendment, James Madison, because only whites could join militias in the South. In 1776, Thomas Jefferson had submitted a draft constitution for Virginia that said "no freeman shall ever be debarred the use of arms within his own lands or tenements". According to Picadio, this version was rejected because "it would have given to free blacks the constitutional right to have firearms". ==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: On July 21, Madison again raised the issue of his bill and proposed that a select committee be created to report on it. The House voted in favor of Madison's motion, 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. On August 17, that version was read into the Journal: In late August 1789, the House debated and modified the Second Amendment. These debates revolved primarily around the risk of "mal-administration of the government" using the "religiously scrupulous" clause to destroy the militia as British forces had attempted to destroy the Patriot 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: The next day, August 25, the Senate received the amendment from the House and entered it into the Senate Journal. However, the Senate scribe added a comma before "shall not be infringed" and changed the semicolon separating that phrase from the religious exemption portion to a comma: 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". 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: 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. A motion passed to replace the words "the best", and insert in lieu thereof "necessary to the" . The Senate then slightly modified the language to read as the fourth article and voted to return the Bill of Rights to the House. The final version by the Senate was amended to read as: The House voted on September 21, 1789, to accept the changes made by the Senate. The enrolled original Joint Resolution passed by Congress on September 25, 1789, on permanent display in the Rotunda, reads as: 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, having been ratified as a group by all the fourteen states then in existence except Connecticut, Massachusetts, and Georgiawhich added ratifications in 1939. ==Militia 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. 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. 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. 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. 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. 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 burning of the White House in 1814. In the 20th century, Congress passed the Militia Act of 1903. The act defined the militia as every able-bodied male aged 18 to 44 who was a citizen or intended to become one. The militia was then divided by the act into the United States National Guard and the unorganized Reserve Militia. Federal law continues to define the militia as all able-bodied males aged 17 to 44, who are citizens or intend to become one, and female citizens who are members of the National Guard. The militia is divided into the organized militia, which consists of the National Guard and Naval Militia, and the unorganized militia. ==Scholarly commentary==

Early commentary The "Federal Farmer" In May 1788, the pseudonymous author "Federal Farmer" (his real identity is presumed to be either Richard Henry Lee or Melancton Smith) wrote in Additional Letters From The Federal Farmer #169 or Letter XVIII regarding the definition of a "militia": George Mason In June 1788, George Mason addressed the Virginia Ratifying Convention regarding a "militia:" Tench Coxe In 1792, Tench Coxe made the following point in a commentary on the Second Amendment: Tucker wrote: 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." 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, paraphrasing Coke, observed: "An 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." Joseph Story Joseph Story articulated in his influential Commentaries on the Constitution the orthodox view of the Second Amendment, which he viewed as the amendment's clear meaning: Lysander Spooner 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. 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. 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. 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. Timothy Farrar In 1867, Judge Timothy Farrar published his Manual of the Constitution of the United States of America, which was written when the Fourteenth Amendment was "in the process of adoption by the State legislatures": Judge Thomas Cooley Judge Thomas M. Cooley, perhaps the most widely read constitutional scholar of the nineteenth century, wrote extensively about this amendment, and he explained in 1880 how the Second Amendment protected the "right of the people": Commentary since late 20th century Until the late 20th century, there was little scholarly commentary of the Second Amendment. 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. 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"). Scholars advanced three competing theoretical models for how the prefatory clause should be interpreted. The first, known as the "states' rights" or "collective right" model, held that the Second Amendment does not apply to individuals; rather, it recognizes the right of each state to arm its militia. Under this approach, citizens "have no right to keep or bear arms, but the states have a collective right to have the National Guard". Advocates of collective rights models argued that the Second Amendment was written to prevent the federal government from disarming state militias, rather than to secure an individual right to possess firearms. Prior to 2001, every circuit court decision that interpreted the Second Amendment endorsed the "collective right" model. However, beginning with the Fifth Circuit's opinion United States v. Emerson in 2001, some circuit courts recognized that the Second Amendment protects an individual right to bear arms. The second, known as the "sophisticated collective right model", held that the Second Amendment recognizes some limited individual right. However, this individual right could be exercised only by actively participating members of a functioning, organized state militia. Other commentators have observed that prior to Emerson, five circuit courts specifically endorsed the "sophisticated collective right model". The third, known as the "standard model", held that the Second Amendment recognized the personal right of individuals to keep and bear arms. Additionally, scholars who favored this model argued the "absence of founding-era militias mentioned in the Amendment's preamble does not render it a 'dead letter' because the preamble is a 'philosophical declaration' safeguarding militias and is but one of multiple 'civic purposes' for which the Amendment was enacted". The question of a collective right versus an individual right was progressively resolved in favor of the individual rights model, beginning with the Fifth Circuit ruling in United States v. Emerson (2001), along with the Supreme Court's rulings in District of Columbia v. Heller (2008), and McDonald v. Chicago (2010). In Heller, the Supreme Court resolved any remaining circuit splits by ruling that the Second Amendment protects an individual right. Although the Second Amendment is the only Constitutional amendment with a prefatory clause, such linguistic constructions were widely used elsewhere in the late eighteenth century. Warren E. Burger, a conservative Republican appointed chief justice of the United States by President Richard Nixon, wrote in 1990 following his retirement: And in 1991, Burger stated: In a 1992 opinion piece, six former American attorneys general wrote: Research by Robert Spitzer found that every law journal article discussing the Second Amendment through 1959 "reflected the Second Amendment affects citizens only in connection with citizen service in a government organized and regulated militia." Only beginning in 1960 did law journal articles begin to advocate an "individualist" view of gun ownership rights. The opposite of this "individualist" view of gun ownership rights is the "collective-right" theory, according to which the amendment protects a collective right of states to maintain militias or an individual right to keep and bear arms in connection with service in a militia (for this view see for example the quote of Justice John Paul Stevens in the Meaning of "well regulated militia" section below). Meaning of "well regulated militia" An early use of the phrase "well-regulated militia" may be found in Andrew Fletcher's 1698 A Discourse of Government with Relation to Militias, as well as the phrase "ordinary and ill-regulated militia". Fletcher meant "regular" in the sense of regular military, and advocated the universal conscription and regular training of men of fighting age. Jefferson thought well of Fletcher, commenting that "the political principles of that patriot were worthy the purest periods of the British constitution. They are those which were in vigour." The term "regulated" means "disciplined" or "trained". 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." In the year before the drafting of the Second Amendment, in Federalist No. 29 ("On the Militia"), Alexander Hamilton wrote the following about "organizing", "disciplining", "arming", and "training" of the militia as specified in the enumerated powers: Justice Stevens in dissent: Meaning of "the right of the People" Justice Antonin Scalia, writing for the majority in Heller, stated: Scalia further specifies who holds this right: An earlier case, United States v. Verdugo-Urquidez (1990), dealt with nonresident aliens and the Fourth Amendment, but led to a discussion of who are "the People" when referred to elsewhere in the Constitution: According to the majority in Heller, there were several different reasons for this amendment, and protecting militias was only one of them; if protecting militias had been the only reason then the amendment could have instead referred to "the right of the militia to keep and bear arms" instead of "the right of the people to keep and bear arms". 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: A May 2018 analysis by Dennis Baron contradicted the majority opinion: A paper from 2008 found that before 1820, the use of the phrase "bear arms" was commonly used in a civilian context, such as hunting and personal self-defense, in both American and British law. One scholar suggests that the right to "keep and bear arms" further includes a right to privately manufacture firearms. == Analysis of grammar and syntax ==

The Second Amendment is viewed by scholars as divided into two clauses, a prefatory clause, and an operative clause. The prefatory clause includes the text: A well regulated Militia, being necessary to the security of a free State, Followed by the operative clause: the right of the people to keep and bear Arms, shall not be infringed. Under the standard model, the prefatory clause is understood to be merely amplifying the operative clause. The prefatory clause was meant as a non-exclusive exampleone of many justifications for the Second Amendment. Under the collective right models, the prefatory clause was considered essential as a pre-condition for the main clause. This interpretation claimed that this was a grammar structure common during the era the Second Amendment was written and that this grammar dictated that the Second Amendment protected a collective right to firearms to the extent necessary for militia duty. Many linguistic scholars reject this interpretation of the grammar and syntax, asserting, "...that the prefatory clause is neither internal nor conditional; instead, it's temporal and external, meaning the opening words introduce its context and purpose." The comma between the word "Arms" and "shall" also has been involved in debate centered around the meaning and interpretation of this one comma between the two words. A Reason magazine analysis from January 2025 stated on the subject of the "passive" versus "active" voice used in the Second Amendment that:The Bill of Rights' passive voice consistently elevates one object: individual rights. As for the subject, the Framers could neither specify nor predict what or who could infringe upon said rights. Thus, the Constitution, especially following the 14th Amendment's ratification, safeguards these rights from an exhaustive catalog of unscrupulous subjects—namely, state actors (e.g., cops, Congress, presidents, judges, city councils, etc.) that could violate these freedoms. ==Supreme Court cases==

In the 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. 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. A notable exception to this general rule was Houston v. Moore, , where the U.S. Supreme Court mentioned the Second Amendment in an aside. In the Dred Scott decision (1857), the opinion of the court stated that if African Americans were considered U.S. citizens, "It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right... to keep and carry arms wherever they went." State and federal courts historically have used two models to interpret the Second Amendment: the "individual rights" model, which holds that individuals hold the right to bear arms, and the "collective rights" model, which holds that the right is dependent on militia membership. The "collective rights" model has been rejected by the Supreme Court, in favor of the individual rights model, beginning with its District of Columbia v. Heller (2008) decision. The Supreme Court's primary Second Amendment cases include United States v. Miller, (1939); District of Columbia v. Heller (2008); and McDonald v. Chicago (2010). Heller and McDonald 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 militias have historically been armed, as the Supreme Court in Miller said: Of the collective rights model that holds that the right to arms is based on militia membership, the Supreme Court in Heller said: United States v. Cruikshank In the Reconstruction Era case of United States v. Cruikshank, , 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." The Court stated that "[t]he Second Amendment... has no other effect than to restrict the powers of the national government..." Likewise, the Court held that there was no state action in this case, and therefore the Fourteenth Amendment was not applicable: Thus, the Court held a federal anti-Ku-Klux-Klan statute to be unconstitutional as applied in that case. Presser v. Illinois In Presser v. Illinois, , 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. At his trial, Presser argued that the State of Illinois had violated his Second Amendment rights. The Supreme Court reaffirmed Cruikshank, and also 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. In essence the court said: "A state cannot prohibit the people therein from keeping and bearing arms to an extent that would deprive the United States of the protection afforded by them as a reserve military force." Miller v. Texas In Miller v. Texas, , Franklin Miller was convicted and sentenced to be executed for shooting a police officer to death with an illegally carried 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, writing: Robertson v. Baldwin In Robertson v. Baldwin, , the Supreme Court stated in dicta that "the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons." United States v. Schwimmer United States v. Schwimmer, , concerned a pacifist applicant for naturalization who in the interview declared not to be willing to "take up arms personally" in defense of the United States. The Supreme Court cited the Second Amendment indirectly by declaring that the United States Constitution obliges citizens "to defend our government against all enemies whenever necessity arises is a fundamental principle of the Constitution" and by declaring further that the "common defense was one of the purposes for which the people ordained and established the Constitution." 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." As the Court explained: Gun rights advocates claim that the Court in Miller ruled that the Second Amendment protected the right to keep arms that are part of "ordinary military equipment". They also 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". 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." District of Columbia v. Heller Judgment According to the syllabus prepared by the U.S. Supreme Court Reporter of Decisions, in District of Columbia v. Heller, , the Supreme Court held: {{ordered list The Heller court also stated (Heller, 554 U.S. 570 (2008), at 632) its analysis should not be read to suggest "the invalidity of laws regulating the storage of firearms to prevent accidents." The Supreme Court also defined the term arms used in the Second Amendment. "Arms" covered by the Second Amendment were defined in District of Columbia v. Heller to include "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another". 554 U. S., at 581." The Michigan Court of Appeals 2012 relied on Heller in the case People v. Yanna to state certain limitations on the right to keep and bear arms: There are similar legal summaries of the Supreme Court's findings in Heller as the one quoted above. For example, the Illinois Supreme Court in People v. Aguilar (2013), summed up Hellers findings and reasoning: Notes and analysis Heller has been widely described as a landmark decision because it was the first time the Court affirmed an individual's right to own a gun. To clarify that its ruling does not invalidate a broad range of existing firearm laws, the majority opinion, written by Justice Antonin Scalia, said: The Court's statement that the right secured by the Second Amendment is limited has been widely discussed by lower courts and the media. According to Justice John Paul Stevens he was able to persuade Justice Anthony M. Kennedy to ask for "some important changes" to Justice Scalia's opinion, so it was Justice Kennedy, who was needed to secure a fifth vote in Heller, "who requested that the opinion include language stating that Heller 'should not be taken to cast doubt' on many existing gun laws." The majority opinion also said 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: Stevens went on to say the following: 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. Regarding the term "well regulated", the majority opinion said, "The adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training." The majority opinion also stated that: The dissenting justices were not persuaded by this argument. 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. According to adjunct professor of law at Duquesne University School of Law Anthony Picadio, who said he's not anti-gun but rather "anti-bad-judging", Justice Scalia's reasoning in Heller is the product of an erroneous reading of colonial history and the drafting history of the Second Amendment. He argued that the Southern slave states would never have ratified the Second Amendment if it had been understood as creating an individual right to own firearms because of their fear of arming free blacks. After a lengthy historical and legal analysis Anthony Picadio concluded: "If the Second Amendment had been understood to have the meaning given to it by Justice Scalia, it would not have been ratified by Virginia and the other slave states." 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. In United States v. Rahimi (2024) the Supreme Court stated "that the right to keep and bear arms is among the “fundamental rights necessary to our system of ordered liberty.” McDonald v. Chicago, 561 U. S. 742, 778 (2010)." Justice Thomas, in his concurring opinion, noted that the Privileges or Immunities Clause refers to "citizens" whereas the Due Process Clause refers more broadly to any "person", and therefore Thomas reserved the issue of non-citizens for later decision. After McDonald, many questions about the Second Amendment remain unsettled, such as whether non-citizens are protected through the Equal Protection Clause. The Court reiterated that the Heller and McDonald decisions saying that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding", that "the Second Amendment right is fully applicable to the States", and that the protection is not restricted to "only those weapons useful in warfare". The term "bearable arms" was defined in District of Columbia v. Heller, 554 U.S. 570 (2008) and includes not only firearms, but any "[w]eapo[n] of offence" or "thing that a man wears for his defence, or takes into his hands", that is "carr[ied]... for the purpose of offensive or defensive action". 554 U. S., at 581, 584 (internal quotation marks omitted)." New York State Rifle & Pistol Association, Inc. v. City of New York, New York The Court heard New York State Rifle & Pistol Association Inc. v. City of New York, New York on December 2, 2019, to decide whether a New York City ordinance that prevents the transport of guns, even if properly unloaded and locked in containers, from within city limits to outside of the city limits is unconstitutional. The New York Rifle & Pistol Association challenged the ordinance on the basis of the Second Amendment, the Dormant Commerce Clause, and the right to travel. However, as the city had changed its rule to allow transport while the case was under consideration by the Court, the Court ruled the case moot in April 2020, though it remanded the case so the lower courts could review the new rules under the petitioners new claims. New York State Rifle & Pistol Association, Inc. v. Bruen New York law prohibits the concealed carry of firearms without a permit. The issuance of such permits was previously at the discretion of state authorities, and permits were not issued absent 'proper cause'. The New York State Rifle & Pistol Association and two individuals who had been denied permits on the grounds that they lacked proper cause, challenged the licensing regime as a violation of the Second Amendment, with the District Court and the Second Circuit Court of Appeals ruling in favor of the state. The Supreme Court ruled on June 23, 2022, in a 6–3 decision that the New York law, as a "may-issue" regulation, was unconstitutional, affirming that public possession of firearms was a protected right under the Second Amendment. The majority stated that states may still regulate firearms through "shall-issue" regulations that use objective measures such as background checks. In its June 2024 United States v. Rahimi decision, the Court refined the Bruen test, stating that in comparing modern gun control laws to historic tradition, courts should use similar analogues and general principles rather than strict matches. ==United States Courts of Appeals decisions before and after Heller==

Before Heller Until District of Columbia v. Heller (2008), United States v. Miller (1939) had been the only Supreme Court decision that "tested a congressional enactment against [the Second Amendment]". Miller did not directly mention either a collective or individual right, but for the 62-year period from Miller until the Fifth Circuit's decision in United States v. Emerson (2001), federal courts recognized only the collective right, with "courts increasingly referring to one another's holdings... without engaging in any appreciably substantive legal analysis of the issue". D.C. Circuit • Heller v. District of Columbia, Civil Action No. 08-1289 (RMU), No. 23., 25On March 26, 2010, the D.C. Circuit denied the follow-up appeal of Dick Heller who requested the court to overturn the new District of Columbia gun control ordinances newly enacted after the 2008 Heller ruling. The court refused to do so, stating that the firearms registration procedures, the prohibition on assault weapons, and the prohibition on large capacity ammunition feeding devices were found to not violate the Second Amendment. On September 18, 2015, the D.C. Circuit ruled that requiring gun owners to re-register a gun every three years, make a gun available for inspection or pass a test about firearms laws violated the Second Amendment, although the court upheld requirements that gun owners be fingerprinted, photographed, and complete a safety training course. • Wrenn v. District of Columbia, No. 16-7025On July 25, 2017, the D.C. Circuit ruled that a District of Columbia regulation that limited conceal-carry licenses only to those individuals who could demonstrate, to the satisfaction of the chief of police, that they have a "good reason" to carry a handgun in public was essentially designed to prevent the exercise of the right to bear arms by most District residents and so violated the Second Amendment by amounting to a complete prohibition on firearms possession. First Circuit • United States v. Rene E., On August 31, 2009, the First Circuit affirmed the conviction of a juvenile for the illegal possession of a handgun as a juvenile, under and , 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 firearmsthose whose possession poses a particular danger to the public." Second Circuit • Kachalsky v. County of Westchester, 11-3942On 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." Third Circuit • Range v. Attorney General of the United States, Civil Action No. 21-2835On June 6, 2023, the Third Circuit ruled that the Second Amendment prohibited a lifetime ban on firearms possession as a result of a conviction for a nonviolent crime. Fourth Circuit • United States v. Hall, On August 4, 2008, the Fourth Circuit upheld as constitutional the prohibition of possession of a concealed weapon without a permit. • 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 . 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". • Kolbe v. Hogan, No. 14-1945 (4th Cir. 2016)On February 4, 2016, the Fourth Circuit vacated a U.S. District Court decision upholding a Maryland law banning so called "high-capacity" magazines and semi-automatic rifles, ruling that the District Court was wrong to have applied intermediate scrutiny. The Fourth Circuit ruled that the higher strict scrutiny standard is to be applied on remand. On March 4, 2016, the court agreed to rehear the case en banc on May 11, 2016. Fifth Circuit • United States v. Dorosan, 350 Fed. Appx. 874 (5th Cir. 2009)On June 30, 2008, the Fifth Circuit upheld , 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. • 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 , 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. At issue in this case was whether the Second Amendment is violated by a provision of the Gun Control Act of 1968 that prohibits possession of a firearm by a person who has been involuntarily committed to a psychiatric hospital. The court did not rule on the provision's constitutionality, instead remanding the case to the United States district court that has earlier heard this case. On April 21, 2015, the Sixth Circuit voted to rehear the case en banc, thereby vacating the December 18 opinion. Seventh Circuit • United States v. Skoien, 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, 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. Editorials favoring gun rights sharply criticized this ruling as going too far with the enactment of a lifetime gun ban, while editorials favoring gun regulations praised the ruling as "a bucket of cold water thrown on the 'gun rights' celebration". • Moore v. Madigan (Circuit docket 12-1269)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. On February 22, 2013, a petition for rehearing en banc was denied by a vote of 5–4. On July 9, 2013, the Illinois General Assembly, overriding Governor Quinn's veto, passed a law permitting the concealed carrying of firearms. 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. The April 20 decision had held that the Second Amendment applies to state and local governments, while 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. 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. On November 28, 2011, the Ninth Circuit vacated the panel's May2 decision and agreed to rehear the case en banc. On April 4, 2012, the panel sent the case to mediation. The panel dismissed the case on June 1, 2012, 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. • Teixeira v. County of Alameda, (Circuit docket 13-17132)On May 16, 2016, the Ninth Circuit ruled that the right to keep and bear arms included being able to buy and sell firearms. The court ruled that a county law prohibiting a gun store being within 500 feet of a "[r]esidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served" violated the Second Amendment. • Peruta v. San Diego No. 10-56971 (9th Cir. 2016), (Circuit docket 13-17132)On June 9, 2016, pertaining to the legality of San Diego County's restrictive policy regarding requiring documentation of "good cause" before issuing a concealed carry permit, the Ninth Circuit upheld the policy, finding that "there is no Second Amendment right for members of the general public to carry concealed firearms in public." • Young v. State of Hawaii No. 12-17808 (9th Cir. 2021)An en banc ruling of the Ninth Circuit on March 26, 2021, upheld the validity of Hawaii's law that barred open carry of guns outside of one's home without a license. The Ninth Circuit ruled that there was no right to carry weapons in public spaces, and states have a compelling interest for public safety to restrict public possession of guns. ==See also==