Second Amendment

Justification clause: “A well regulated Militia being necessary to the security of a free State,”

Rights clause: “the right of the people to keep and bear Arms shall not be infringed.”

The justification clause does not modify, restrict, or deny the rights clause. 1

For a full discussion of how the Second Amendment was created and revised, see “Origin of the Second Amendment” at the bottom of this page.

Myth: The Supreme Court ruled the Second Amendment is not an individual right

Fact: In D.C. v Heller the Supreme Court (2008) firmly established the 2nd Amendment is an individual right, as they had in Cruikshank  and Dred Scott.

Fact: In McDonald v Chicago (2010) the Supreme Court concluded the right is incorporated against the states via the 14th Amendment.

Fact: Of 300 decisions of the federal and state courts that have taken a position on the meaning of the Second Amendment or the state analogs to it, only 10 have claimed that the right to keep and bear arms is not an individual right.  Many of the other decisions struck down gun control laws because they conflicted with the Second Amendment, such as State v. Nunn (Ga. 1846). 2

Myth: The Second Amendment is a collective right, not an individual right

Fact: St. George Tucker, any early legal commentator and authority of the original meaning of the constitution wrote in Blackstone’s Commentaries “… nor will the constitution permit any prohibition of arms to the people” 3

Fact: The Second Amendment was listed in a Supreme Court ruling as an individual right. 4

Fact: The Supreme Court specifically reaffirmed that the right to keep and bear arms did not belong to the government. 5

Fact: In 22 of the 27 instances where the Supreme Court mentions the Second Amendment, they quote the rights clause and not the justification clause.

Fact: Courts disagree. 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” and “We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment” 6

Fact: Citizens disagree. 62% believe the 2nd Amendment guarantees an individual right, while a mere 28% believe it protects the power of the states to form militias. 7

Fact: There are 23 state constitutions with RKBA clauses adopted between the Revolution and 1845, and 20 of them are explicitly individual in nature, only three have “for the common defense….” or other “collective rights” clauses. 8

Fact: James Madison, considered to be the author of the Bill of Rights, wrote that the Bill of Rights was “calculated to secure the personal rights of the people”.  He never excluded the Second Amendment from this statement.

Fact: Patrick Henry commented on the Swiss militia model (still in use today) noting that they maintain their independence without “a mighty and splendid President” or a standing army. 9

Fact: “The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people; or of peaceable assemblies by them, for any purposes whatsoever, and in any number, whenever they may see occasion.” 10

Fact: Tench Coxe, in Remarks on the First Part of the Amendments to the Federal Constitution said: “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.”

Myth: The Heller Decision created new law

Fact: In the Dred Scott case of 1856, the Supreme Court listed the protected rights of citizens and explicitly listed the right to keep and bear arms, and gave this right equal weight to the other freedoms enumerated in the constitution.

Fact: In United States v. Cruikshank, 92 U.S. 542 (1876), the Supreme Court ruled:

  • An individual right to arms predated the constitution.
  • The Second Amendment was a prohibition against Congress from disarming citizens.

Myth: The Second Amendment was established to control slaves

Fact: The basis of the Second Amendment arose from the British disarming Americans in the time leading up to the revolution. The first state to declare a civilian right to arms (1776) was Pennsylvania, a non-slave state. Vermont (1777) and Massachusetts (1780) did so as well, and all this occurred before the Second Amendment was drafted. When slaves were emancipated, the Freedmen Bureau Act provided emancipated slaves “the constitutional right to bear arms.”

Myth:  The “militia” clause is to arm the National Guard

Fact: “Militia” is a Latin abstract noun, meaning “military service”, not an “armed group”, and that is the way the Latin-literate Founders used it.  To the Romans, “military service” included law enforcement and disaster response.  Today “militia” might be more meaningfully translated as “defense service”, associated with a “defense duty”, which attaches to individuals as much as to groups of them, organized or otherwise. When we are alone, we are all militias of one. In the broadest sense, militia is the exercise of civic virtue. 11

Fact: The Dick Act of 1903 designated the National Guard as the “organized militia”  and that all other citizens were the “unorganized militia” – thus the National Guard is only part of the militia, and the whole militia is composed of the population at large.  Before 1903, the National Guard had no federal definition as part of the militia at all.

Fact: The first half of the Second Amendment is called the “justification clause”.  Justification clauses appear in many state constitutions, and cover liberties including right to trial, freedom of the press, free speech, and more. Denying gun rights based on the justification clause means we would have to deny free speech rights on the same basis. 12

Fact: The origin of the phrase “a well regulated militia” comes from a 1698 treatise “A Discourse of Government with Relation to Militias” by Andrew Fletcher, in which the term “well regulated” was equated with “well-behaved” or “disciplined”. 13

Fact: “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.” 14

Fact: “The plain meaning of the right of the people to keep arms is that it is an individual, rather than a collective, right and is not limited to keeping arms while engaged in active military service or as a member of a select militia such as the National Guard …” 15

Fact: Most of the 13 original states (and many colonies/territories that became states after ratification of the Constitution and before or shortly after ratification of the Bill of Rights) had their own constitutions, and it is from these that the original Bill of Rights was distilled.  The state constitutions of that time had many “right to keep and bear arms” clauses that clearly guaranteed an individual right.  Some examples include:

Connecticut:  Every citizen has a right to bear arms in defense of himself and the state.

Kentucky: … the right of the citizens to bear arms in defense of themselves and the State shall not be questioned.

Pennsylvania:  That the people have a right to bear arms for the defense of themselves and the state; … The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.

Rhode Island:  The right of the people to keep and bear arms shall not be infringed.

Vermont: … the people have a right to bear arms for the defense of themselves and the State.

Myth: The Second Amendment allows Congress to regulate ownership of guns for militia purposes

Fact: The phrase “well regulated” was common in the constitutional era, and described things that were in proper order or function. It was not a writ of authority. Borrowing from the Oxford English Dictionary, these examples, both before and after composition of the Second Amendment, show the usage:

1709: “If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations.”

1714: “The practice of all well-regulated courts of justice in the world.”

1812: “The equation of time … is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial.”

1848: “A remissness for which I am sure every well-regulated person will blame the Mayor.”

1862: “It appeared to her well-regulated mind, like a clandestine proceeding.”

1894: “The newspaper, a never wanting adjunct to every well-regulated American embryo city.”

Myth: U.S. v. Cruikshank denied an individual right to bear arms

Fact: The court ruled that both the 2nd Amendment right to bear arms and the 1st Amendment right to assembly were “preexisting rights”, and that it was incumbent upon the states to enforce that right.  Specifically the court ruled:

The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States.  …

Myth: U.S. v. Miller said that the Second Amendment is not an individual right

Fact: The Miller case specifically held that specific types of guns might be protected by the Second Amendment.  It depended on whether a gun had militia use, and the court  wanted evidence presented confirming that citizens have a right to military style weapons.  Since no evidence was taken at the trial level in lower courts, they remanded the case for a new trial.  Specifically the court said:

“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.”

“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than 18 inches in length’ at this time has some reasonable relationship to the 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.”

Fact: Even the US government agreed.  Here are some sentences from the brief filed by the government in the appeal to the Supreme Court:

“The Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its infringement by Congress.”

“The ‘arms’ referred to in the Second Amendment are, moreover, those which ordinarily are used for military or public defense purposes …”

“The Second Amendment does not confer upon the people the right to keep and bear arms; it is one of the provisions of the Constitution which, recognizing the prior existence of a certain right, declares that it shall not be infringed by Congress. Thus the right to keep and bear arms is not a right granted by the Constitution and therefore is not dependent upon that instrument for its source.”

Fact: The Federal 8th Circuit Court of Appeals holds that the Miller case protects an individual right to keep and bear arms.  “Although an individual’s right to bear arms is constitutionally protected, see United States v. Miller …” 16

Fact: Federal courts reject the myth.  “We conclude that Miller does not support the [government’s] collective rights or sophisticated collective rights approach to the Second Amendment.” 17 They continue, “There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words ‘we the people’ have a different connotation within the Second Amendment than when employed elsewhere …”.

Summary of various court decisions concerning gun rights

Decisions that explicitly recognized that the Second Amendment guarantees an individual right to purchase, possess or carry firearms, and it limits the authority of both federal and state governments:

  • Parker vs. D.C., Fed (2007), confirmed an individual right to keep arms and overturning a handgun ban.
  • U.S. vs. Emerson, 5 Fed (1999), confirmed an individual right requiring compelling government interest for regulation.
  • Nunn v. State, 1 Ga. 243, 250, 251 (1846) (struck down a ban on sale of small, easily concealed handguns as violating Second Amendment).
  • State v. Chandler, 5 La.An. 489, 490, 491 (1850) (upheld a ban on concealed carry, but acknowledged that open carry was protected by Second Amendment).
  • Smith v. State, 11 La.An. 633, 634 (1856)  (upheld a ban on concealed carry, but recognized as protected by Second Amendment “arms there spoken of are such as are borne by a people in war, or at least carried openly”).
  • State v. Jumel, 13 La.An. 399, 400 (1858) (upheld a ban on concealed carry, but acknowledged a Second Amendment right to carry openly).
  • Cockrum v. State, 24 Tex. 394, 401, 402 (1859) (upheld an enhanced penalty for manslaughter with a Bowie knife, but acknowledged that the Second Amendment guaranteed an individual right to possess arms for collective overthrow of the government).
  • In Re Brickey, 8 Ida. 597, 70 Pac. 609, 101 Am.St.Rep. 215, 216 (1902)  (struck down a ban on open carry of a revolver in Lewiston, Idaho as violating both Second Amendment and Idaho Const. guarantee).
  • State v. Hart, 66 Ida. 217, 157 P.2d 72 (1945)  (upheld a ban on concealed carry as long as open carry was allowed based on both Second Amendment and Idaho Const. guarantee).
  • State v. Nickerson, 126 Mont. 157, 166 (1952) (striking down a conviction for assault with a deadly weapon, acknowledging a right to carry based on Second Amendment and Montana Const. guarantee).
  • U.S. v. Hutzell, 8 Iowa, 99-3719, (2000) (cite in dictum that “an individual’s right to keep and bear arms is constitutionally protected, see United States v. Miller, 307 U.S. 174, 178-79 (1939).

Decisions that recognized the Second Amendment guarantees an individual right to possess or carry firearms, but only limiting the Federal government’s authority:

  • U.S. v. Cruikshank, 92 U.S. 542, 552 (1876) (limiting use of the Enforcement Act of 1870 so that Klansmen could not be punished for mass murder and disarming of freedmen).
  • State v.  Workman, 35 W.Va. 367, 373 (1891) (upholding a ban on carry of various concealable arms).
  • State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921) (overturning a ban on open carry of pistols based on North Carolina Const., but acknowledging Second Amendment protected individual right from federal laws).

Decisions in which the Second Amendment was argued or raised as a limitation on state laws, and in which the court ruled that it only limited the Federal government, tacitly acknowledging that the right was individual in nature:

  • Andrews v. State, 3 Heisk. (50 Tenn.) 165, 172, 173 (1871).
  • Fife v. State, 31 Ark. 455, 25 Am.Rep. 556, 557, 558 (1876); State v. Hill, 53 Ga. 472, 473, 474 (1874).
  • Dunne v. People, 94 Ill. 120, 140, 141 (1879); Presser v. Illinois, 116 U.S. 252, 265, 266  (1886) (upholding a ban on armed bodies marching through the streets).
  • People v. Persce, 204 N.Y. 397, 403 (1912); In re Rameriz, 193 Cal. 633, 636, 226 P. 914  (1924)  (upholding a ban on resident aliens possessing handguns).

Decisions in which the Second Amendment was implied to guarantee an individual right, though unclear as to whether it limited only the Federal government or states as well, because the type of arm in question wasn’t protected:

  • English v. State, 35 Tex. 473, 476, 477 (1872).
  • State v. Duke, 42 Tex.  455, 458, 459 (1875) (upholding a ban on carrying of handguns, Bowie knives, sword-canes, spears, and brass knuckles).
  • People v. Liss, 406 Ill.  419, 94 N.E.2d 320, 322, 323 (1950) (overturning a conviction for carrying a concealed handgun and acknowledging that the right in the Second Amendment was individual).
  • Guida v. Dier, 84 Misc.2d 110, 375 N.Y.S.2d 827, 828 (1975) (denying that “concealable hand weapons” were protected by the Second Amendment, but acknowledging that an individual right protects other firearms).

Decisions in which the Second Amendment has been classed with other individual rights, with no indication that it was not an individual right:

  • Robertson v. Baldwin, 165 U.S. 275, 281, 282, 17 S.Ct. 826, 829 (1897); U.S.  v. Verdugo-Urquidez, 110 S.Ct. 1056, 1060, 1061 (1990).

Decisions that could have been very much shorter if the court had simply denied that the Second Amendment protected AN INDIVIDUAL right:

  • U.S. v. Miller, 307 U.S.  174  (1939) (the Supreme Court upholding the National Firearms Act of 1934, after district judge released defendants on the grounds that it violated Second Amendment).

Origin of the Second Amendment

Before the United States Constitution or Bill of Rights existed, most of the thirteen original states had clauses in their constitutions protecting the right to keep and bear arms.  When the time came for Congress to draft the Bill of Rights, states submitted clauses from their constitutions that they thought should be added to the Federal Bill of Rights.

Three predominant arms clauses existed at that time (many states had word-for-word copies from other state constitutions and the redundant versions are not mentioned herein).

Pennsylvania (1776):  That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination, to, and governed by, the civil power.  (Simplified in 1790 to read “The right of the citizens to bear arms in defence of themselves and the State shall not be questioned.”)

Vermont (1777):  That the people have a right to bear arms for the defence of themselves and the State – and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.

Massachusetts (1780):  The people have a right to keep and to bear arms for the common defence.  And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

North Carolina (1776):  That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.

We can see in these state constitution clauses the conjoined purposes as viewed by the people at the time that the 2nd Amendment was drafted.

Calls for the Right to Keep and Bear Arms from State Ratification Conventions

Five states that ratified the Constitution sent demands for a Bill of Rights to Congress.  All of these demands included a right to keep and bear arms.  The relevant parts of these written demands are:

New Hampshire: Twelfth[:] Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.

Virginia: … Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.

New York: … That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State; That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection. That Standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.

North Carolina: Almost identical to Virginia’s demand, but with, “the body of the people, trained to arms,” instead of, “the body of the people trained to arms.”

Rhode Island: Almost identical to Virginia’s demand, but with, “the body of the people capable of bearing arms,” instead of, “the body of the people trained to arms,” and with a, “militia shall not be subject to martial law,” proviso as in New York’s.

Second Amendment drafting, proposals, and editing

James Madison had the duty of drafting the Bill of Rights from proposed amendments submitted by the states, and most coming from state constitutions. The Bill of Rights went through several revisions.  The initial version of the 2nd Amendment read as follows:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

The second drafting of the 2nd Amendment saw a rearrangement of the justification and rights clauses, but no change in the intents and purposes therein:

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.

Notice that in the original draft, Madison used the phrase “free country” as the object of what is protected by the militia.  In subsequent drafts, the word “state” was substituted.  This is important because the concept of “state” and “country” are interchangeable, whereas “states” (plural) and “country” are not.  Throughout the rest of the Constitution, when the states and their powers were defined, the plural was always used but in the 2nd Amendment it was not.  Clearly, the intent of militia protection defined in the 2nd Amendment was to protect a form of government, not define the power of the several states.

Four further revisions removed objectionable concepts (such as the “conscientious objector” clause).  On September 9, 1789, a member of the Senate proposed adding “for the common defense” onto the draft of the Second Amendment.  In other words, the proposed wording of the amendment would have read:

A well regulated militia being the security of a free State, the right of the people to bear arms for the common defense, shall not be infringed.

The proposed change was voted down.  This is instructive because some believe that the current wording of the amendment exists specifically for collective/common/mutual defense, and has no bearing on individual self defense.  However, the Senate considered adding this restriction and rejected it.

It is clear from these origins and first drafts, and from contemporary commentaries on the clause, that the original intent was to secure an individual right. The commentaries of St. George Tucker (The American Blackstone) and Supreme Court Justice Joseph Story, both of whom were federal jurists and chronologically close to the authoring of the amendment, bear this out.

Arms clauses of states that joined shortly after the Second Amendment was ratified

Also worth review are arms clauses in the constitutions of states that joined the Union shortly after ratification of the Bill of Rights.  These demonstrate the contemporary understanding of the amendment and the rights of the people:

Kentucky (1792): That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned.

Tennessee (1796): That the freemen of this State have a right to keep and to bear arms for their common defence.

Kentucky (1799): That the rights of the citizens to bear arms in defense of themselves and the State shall not be questioned.

Ohio (1802): That the people have a right to bear arms for the defence of themselves and the State; and as standing armies, in time of peace, are dangerous to liberty, they shall not be kept up, and that the military shall be kept under strict subordination to the civil power.

Indiana (1816): That the people have a right to bear arms for the defense of themselves and the State, and that the military shall be kept in strict subordination to the civil power.

Mississippi (1817): Every citizen has a right to bear arms, in defence of himself and the State.

Connecticut (1818): Every citizen has a right to bear arms in defense of himself and the state.

Maine (1819):  Every citizen has a right to keep and bear arms for the common defence; and this right shall never be questioned.

Alabama (1819):  That every citizen has a right to bear arms in defence of himself and the state.

Missouri (1820):  That the people have the right peaceably to assemble for their common good, and to apply to those vested with the powers of government for redress of grievances by petition or remonstrance; and that their right to bear arms in defence of themselves and of the State cannot be questioned.


Notes:

  1. Eugene Volokh, Prof. Law, UCLA
  2. For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms, Clayton Cramer, Praeger Press, 1994
  3. Blackstone’s Commentaries, St. George Tucker, Vol 1. Note D. Part 6. Restraints on Powers of Congress (1803)
  4. Dred Scott, Casey v. Planned ParenthoodU.S. v. Cruikshank and others
  5. United States v. Miller
  6. U.S. v. Emerson, 5th court of Appeals decision, November 2, 2001, No. 99-10331
  7. Associated Television News Survey, August 1999, 1,007 likely voters
  8. For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms, Clayton Cramer, Praeger Press, 1994, cited as an authority in USA v. Emerson (N.D. Texas 1999)
  9. Where Kids and Guns Do Mix, Stephen P. Halbrook, Wall Street Journal, June 2000
  10. Blackstone’s Commentaries, St. George Tucker, Volume 1, Appendix Note D., 1803 – Tucker’s comments provide a number of insights into the consensus for interpretation of the Constitution that prevailed shortly after its ratification, after the debates had settled down and the Constitution was put into practice.
  11. Militia, The Constitution Society
  12. Eugene Volokh, Prof. Law, UCLA, http://www2.law.ucla.edu/volokh/beararms/testimon.htm
  13. This document was widely published during the colonial and revolutionary periods, and was the basis for state and federal ‘bills of rights’
  14. U.S. v. Emerson, 5th court of Appeals decision, November 2, 2001, No. 99-10331
  15. U.S. v. Emerson, 5th court of Appeals decision, November 2, 2001, No. 99-10331
  16. U.S. v. Hutzel, 8 Iowa, No. 99-3719
  17. U.S. v. Emerson, 5th court of Appeals decision, November 2, 2001, No. 99-10331