| Revision as of 19:55, 30 April 2013 view sourceGaijin42 (talk | contribs)Extended confirmed users, Pending changes reviewers20,866 editsm Reverted 1 edit by 198.105.46.22 (talk) to last revision by SMP0328.. (TW)← Previous edit | Revision as of 22:08, 30 April 2013 view source 173.67.172.186 (talk) ←Replaced content with 'AMENDMENT II 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.'Tag: possible vandalismNext edit → | ||
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| AMENDMENT II | |||
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| A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. | |||
| The right to bear arms predates the Bill of Rights; the Second Amendment was based partially on the right to bear arms in English common-law, and was influenced by the ]. This right was described by Blackstone as an auxiliary right, supporting the natural rights of self-defense, resistance to oppression, and the civic duty to act in concert in defense of the state. ] into the purpose,<ref>{{cite book|title=The Mythic Meanings of the Second Amendment|publisher=Williams, David}}</ref><ref>{{cite book|title=The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court|author=Charles, Patrick}}</ref> scope,<ref>{{cite book|url=http://www.newyorker.com/online/blogs/comment/2012/12/jeffrey-toobin-second-amendment.html|title=So You Think You Know the Second Amendment?|publisher=New Yorker}}</ref> and effect<ref>{{cite book|title=The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent|publisher=Uviller, Richard}}</ref> of the amendment has been ]<ref>{{cite book|title=The Second Amendment Controversy-Explained|publisher=Johnson, Theodore}}</ref><ref>{{cite book|title=The Second Amendment:: Preserving the Inalienable Right of Individual Self-Protection|publisher=Barton, David}}</ref><ref>{{cite web|url=http://guncite.com/journals/reycrit.html|title=A CRITICAL GUIDE TO THE SECOND AMENDMENT|work=Reynolds, Glenn|accessdate=March 25, 2013}}</ref> and subject to numerous ].<ref>{{cite book|url=http://www.npr.org/2013/01/07/168834462/the-2nd-amendment-27-words-endless-interpretations|title=The Second Amendment: 27 Words, Endless Interpretations|publisher=NPR|author=Weeks, Linton}}</ref> | |||
| In '']'', 92 U.S. 542 (1875), the Supreme Court ruled that "he right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government." | |||
| In '']'', 307 U.S. 174 (1939), the Supreme Court ruled that the amendment " reasonable relationship to the preservation or efficiency of a well regulated militia". This ruling has been widely described as ambiguous, and ignited a debate on whether the amendment protected an individual right, or a collective militia right. | |||
| In '']'', 554 U.S. 570 (2008), the Supreme Court ruled that the Second Amendment "codified a pre-existing right" and that it "protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home"<ref name=scotus1>{{cite book|last=Pollock|first=Earl|title=The Supreme Court and American Democracy: Case Studies on Judicial Review and Public Policy|year=2008|publisher=Greenwood|page=375|page=423|isbn=978-0-313-36525-6}}</ref><ref name=scotus2>"held that the second amendment protects an individual's right to bear arms,"{{cite book|last=Scaros|first=Constantinos E.|title=Understanding the Constitution|year=2010|publisher=Jones & Bartlett Publishers|page=393|page=484|isbn=978-0-7637-5811-0}}</ref> but also stated that "the right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose". They also clarified that many longstanding prohibitions and restrictions on firearms possession listed by the Court are consistent with the Second Amendment.<ref>{{cite web|url=http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2008/pdf/GPO-CONAN-2008.pdf|title=The Constitution of the United States, Analysis and Interpretation, 2008 Supplement (Senate document 110-17)|page=83}}</ref> | |||
| In '']'', 561 U.S. 3025 (2010), the Supreme Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government.<ref name="nytimes.com">{{cite news|last=Liptak|first=Adam|title=Justices Extend Firearm Rights in 5-to-4 Ruling|url=http://www.nytimes.com/2010/06/29/us/29scotus.html?src=me|accessdate=December 17, 2012|newspaper=The New York Times|date=June 28, 2010}}</ref> | |||
| ==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.<ref>Davies, pp. 209–16.</ref> One version was passed by the ],<ref>In Part II-A of the Opinion of the Court in '']'', the Supreme Court cited this version of the amendment.</ref> while another is found in the copies distributed to the ]<ref>{{cite web|title=United States Constitution|url=http://www.law.cornell.edu/constitution/constitution.billofrights.html|publisher=Cornell University Law School}}</ref> and then ratified by them. | |||
| As passed by the Congress: | |||
| {{quote|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: | |||
| {{quote|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.<ref>Young, David E., ''The Founders' View of the Right to Bear Arms'', p.222.</ref>}} | |||
| The original hand-written copy of the Bill of Rights, approved by the House and Senate, was prepared by ] ] and resides in the ]. | |||
| ==Pre-Constitution background== | |||
| ===Influence of the English Bill of Rights of 1689=== | |||
| The right to have arms in English history is believed to have been regarded as a long-established ] in English law, auxiliary to the natural and legally defensible rights to life.<ref>Blackstone's Commentaries Book 1 Ch 1 – "The fifth and last auxiliary right of the subject ... is that of having arms for their defence".</ref> The ] 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 ] was overthrown in the ], and his successors, the Protestants ] and ], 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.<ref>From the ] until the ], militias occasionally disarmed Catholics, and the King, without Parliament's consent, likewise occasionally disarmed Protestants. Malcolm, "The Role of the Militia," pp. 139–51.</ref> 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.<ref>Joyce Lee Malcolm, ''To Keep and Bear Arms''.</ref> In '']'' (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.<ref>"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." </ref> | |||
| 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."<ref name="c21WillMarSess2">{{cite web|url=http://www.statutelaw.gov.uk/content.aspx?activeTextDocId=1518621|title=1688 c.2 1 Will. and Mar. Sess. 2|publisher=Statutelaw.gov.uk|accessdate=August 30, 2010}}</ref> It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament.<ref>Barnett, ''Law'', p. 172.</ref> 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: | |||
| <blockquote>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.<ref name="c21WillMarSess2"/></blockquote> | |||
| 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.<ref>"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), “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</ref><ref>Justice ], 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 ] and intrinsically for defense against ]. As with the English law "like most ]s, 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." </ref> | |||
| 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 ] and is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments.<ref>"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'', EWHC Admin 913; "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'', EWCA Civ 923.</ref> | |||
| 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}}."<ref>{{cite book|title=Constitutional History of England|last=Thompson|first=Mark|year=1938}} qtd. in Maer and Gay, p. 4.</ref> 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.<ref name="isbn0-674-89307-7">Malcolm, ''To Keep and Bear Arms'', p. 51.</ref> In 1765, ] wrote the '']'' 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.<ref name="Bodenahamer">Ely and Bodenhamer, pp. 89–91.</ref><ref name="HeymanChigagoKent">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."</ref> | |||
| {{quote|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 ].<ref>{{cite web|url=http://avalon.law.Yale.edu/18th_century/pa08.asp|title=English Bill of Rights, 1689, "An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown"|work=The Avalon Project|publisher=Yale Law School|year=2008|accessdate=December 26, 2012}}</ref>}} | |||
| 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 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.<ref>e.g., ] ] and the Statute of Winchester of 1285. See "The history of policing in the West, Collective responsibility in early Anglo-Saxon times", .</ref> 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.<ref name="Levy1999">Levy, pp. 136–7.</ref> | |||
| ===Experience in America prior to the U.S. Constitution=== | |||
| ].<ref name="Saul_Cornell_two_models">Cornell, ''Gun Control'', p. 2.</ref>]] | |||
| Early English settlers in America viewed the ''right to arms'' and/or ''the right to bear arms'' and/or ''state militias'' as important for one or more of these purposes (in no particular order):<ref name="papers.ssrn.com">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."</ref><ref>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."</ref><ref name="isbn0-300-08901-5">Levy, p. 136.</ref><ref name="Merkel62withquote">Merkel and Uviller, pp. 62, 179 ff, 183, 188 ff, 306. "he right to bear arms was articulated as a civic right inextricably linked to the civic obligation to bear arms for the public defense."</ref><ref name="isbn1-57607-347-5pg155">Spitzer, pp. 155–9.</ref><ref name="isbn0-253-21040-2">Dulaney, p. 2.</ref><ref name="Bogus2001">{{cite book|title=The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms|publisher=New Press, The|author=Bogus, Carl T. (editor); Bellesiles, Michael A. (contributor)|year=2001|isbn=1565846990|pages=67–69, 239–240}}</ref><ref name="isbn0-8223-3017-2pg189">Merkel and Uviller, pp. 62, 179 ff, 183, 188 ff, 306.</ref> | |||
| *enabling the people to organize a militia system. | |||
| *participating in law enforcement; | |||
| *deterring tyrannical government;<ref name="Dunlap_Revolt">{{cite web|url=http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5203&context=faculty_scholarship&sei-redir=1|title=Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment|publisher=62 TENN. L. REV. 643|author=Col. Charles J. Dunlap, Jr.|year=1995|accessdate=December 18, 2012|quote=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.}}</ref> | |||
| *repelling invasion; | |||
| *suppressing insurrection, allegedly including ];<ref name="Bogus1998">{{cite journal|url=http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1465114|title=The Hidden History of the Second Amendment|author=Bogus, Carl T.; Professor, Roger Williams University School of Law|journal=U.C. Davis Law Review|year=1998|month=Winter|volume=31|pages=309–408}}</ref><ref name="Hartmann2013">{{cite web|url=http://truth-out.org/news/item/13890-the-second-amendment-was-ratified-to-preserve-slavery|title=The Second Amendment was Ratified to Preserve Slavery|publisher=Truthout.org|date=2013-01-15|accessdate=February 4, 2013|author=Hartmann, Thom}}</ref><ref name="Slave_Insurrection_motherjones">{{cite web|url=http://www.motherjones.com/politics/2008/03/whitewashing-second-amendment|title=Whitewashing the Second Amendment|year=2008|accessdate=January 16, 2013|quote=the "well-regulated militias" cited in the Constitution almost certainly referred to state militias that were used to suppress slave insurrections.}}</ref> | |||
| *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 ] asserted that, "the people have a right to bear arms for the defence of themselves and the state".<ref>{{cite web|url=http://avalon.law.Yale.edu/18th_century/pa08.asp|title=Pennsylvania Constitution of 1776|work=The Avalon Project|publisher=Yale Law School|year=2008|accessdate=December 26, 2012}}</ref> | |||
| During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, including many who were loyal to British imperial rule. As defiance and opposition to British rule developed, a distrust of these ] in the militia became widespread among the colonists, known as ], who favored independence from British rule. As a result, these Patriots established independent colonial legislatures to create their own militias that excluded the Loyalists and then sought to stock independent armories for their militias. In response to this arms build up, the ] established an embargo on firearms, parts and ammunition on the American colonies.<ref name="isbn1-55553-486-4pg27">{{cite book|author=DeConde, Alexander|title=Gun Violence in America: the Struggle for Control|publisher=Northeastern University Press|location=Boston|year=2001|pages=27|isbn=1-55553-486-4}}</ref> | |||
| British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the ] resulted in the Patriot colonists protesting by citing the ], Blackstone's summary of the Declaration of Rights, their own militia laws and ].<ref name=HalbrookHardy>{{cite journal|title=Boston, March 17|journal=N. Y. J., Supplement|date=April 13, 1769|page=1, Col.3}} qtd. in Halbrook, ''A Right to Bear Arms'', p. 7.</ref> 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.<ref name=HalbrookHardy/> Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars' interpretation of Blackstone.<ref>Charles, "Arms for Their Defence?", p. 4.</ref> | |||
| 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 ]:{{quote|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.<ref name=HalbrookHardy/>}} | |||
| The armed forces that won the American Revolution consisted of the standing ] created by the ], together with various state and regional militia units. In opposition, the ] consisted of a mixture of the standing ], Loyalist Militia and ] ]. Following the Revolution, the United States was governed by the ]. Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the ] was reduced to as few as 80 men.<ref name="isbn0-472-03370-0pg91-92">Anderson and Horwitz, pp. 91–2.</ref> They considered it to be bad that there was no effective federal military crackdown to an armed tax rebellion in western ] known as ].<ref>Vest, Rose. , ''Home of Heroes''.</ref> 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 ] proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.<ref name="isbn1-4051-1674-9pg398">Pole and Greene, p. 386.</ref><ref name="isbn1-85109-669-8">Vile, p. 30.</ref> ] 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.<ref name="isbn0-8223-3017-2pg79">Merkel and Uviller, p. 79.</ref> | |||
| Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that ] "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."<ref>McAffee and Quinlan, p. 781.</ref> In contrast, historian ] 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.<ref name="Rakove">Rakove, p. ?{{page needed|date=February 2011}}</ref> | |||
| 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".<ref>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".</ref> 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,<ref name="Millis">Millis, p. 49. "The founders sought to balance military, as they did political, power, between people, states, and nation"</ref> as ] explained in 1788:{{quote|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.<ref name="Millis"/><ref name="FederalistPapers29"/>}} | |||
| 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.<ref name="CarlBogus law or guns">{{cite web|url=http://www.projo.com/opinion/contributors/content/CT_bogus4_12-04-07_RJ80MH6_v7.2a87d62.html|title=Do We Place our Faith in Law or Guns?|last=Bogus|first=Carl T.|accessdate=July 29, 2009}}</ref><ref>Henigan, p. ?. " generalized constitutional right of all citizens to engage in armed insurrection against their government...would threaten the rule of law itself."{{page needed|date=February 2011}}</ref> Other scholars, such as ], contend that the framers did believe in an individual right to armed insurrection. The latter scholars cite examples, such as the ] (describing in 1776 "the Right of the People to...institute new Government") and the ] (stating in 1784 that "nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind").<ref>Reynolds, p. ?{{page needed|date=February 2011}}</ref> | |||
| There was an ongoing debate in the 1780s about "the people" fighting governmental tyranny (as described by Anti-Federalists); or the risk of ] of "the people" (as described by the Federalists) related to the ongoing ].<ref>{{cite web|url=http://www.masshist.org/digitaladams/aea/cfm/doc.cfm?id=L17931222ja&mode=popuplg&pop=L17931222ja_2|title=Letter from John Adams to Abigail Adams, 22 December 1793|publisher=Masshist.org|accessdate=August 30, 2010}}</ref> 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,<ref>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."</ref> or prohibiting citizens from arming themselves.<ref name="HalbrookHardy"/> 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 ] and the similar act of 1795.<ref>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.</ref><ref>{{cite web|url=http://teachingamericanhistory.org/ratification/elliot/vol3/june14.html|title=Elliots Debates Vol 3, Virginia Convention, Saturday June 14, 1788|publisher=Teachingamericanhistory.org|date=January 1, 1980|accessdate=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.</ref> | |||
| ==Drafting and adoption of the Constitution== | |||
| {{Further2|]}} | |||
| {{Infobox Awards|halign=center|award1={{multiple image|align=center|direction=horizontal|header_align=left/right/center|footer=] (left) is known as the "Father of the Constitution" and "Father of the Bill of Rights"<ref>Mulloy, p. 43.</ref> while ] (right) with Madison is also known as the "Father of the Bill of Rights"<ref>Smith, pp. 591, 600.</ref>|footer_align=left|image1=James_Madison.jpg|width1=121|image2=George_Mason.jpg|width2=128}}|award2={{multiple image|align=center|direction=horizontal|header_align=left/right/center|footer=] (left) believed that a citizenry trained in arms was the only sure guarantor of liberty<ref>{{cite book|last=Cress|first=Lawrence|title=An Armed Community: The Origins and Meaning of the Right to Bear Arms|page=31}} qtd. in Cottrol, p. 283.</ref> while ] (right) wrote in ] that "little more can be reasonably aimed at, with respect to the people at large, than to have them properly armed..."<ref name="FederalistPapers29">] (Alexander Hamilton) (concerning the militia).</ref>|footer_align=left|image1=Patrick henry.JPG|width1=128|image2=Alexander_Hamilton_portrait_by_John_Trumbull_1806.jpg|width2=125}} | |||
| }} Struggling under the inefficiencies of the Articles of Confederation, delegates from Virginia and Maryland assembled at the ] in March 1785 to fashion a remedy. The following year, at a meeting in ], 12 delegates from five states (], ], ], ], and ]) met and drew up a list of problems with the current government model. At its conclusion, the delegates scheduled a follow-up meeting in ], Pennsylvania for May 1787 to present solutions to these problems, such as the absence of:<ref>Vile, p. 19.</ref><ref name="Schmidt39">Schmidt et al., p. 39.</ref> | |||
| *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.<ref name="isbn0-300-09562-7">Williams, pp. 41–4.</ref> ] of the Constitution codified these changes by allowing the Congress to provide for the common defense and general welfare<ref>{{cite web|last=Story|first=Joseph|title=Commentaries on the Constitution 2:§§ 904--25, 927--30, 946--52, 954--70, 972--76, 988|url=http://press-pubs.uchicago.edu/founders/documents/a1_8_1s28.html|work=The Founders Constitution|publisher=The University of Chicago Press|accessdate=10 April 2013}}</ref> 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. ], 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.<ref name="FederalistPapers46">] (James Madison) (concerning the influence of state and federal governments).</ref> Federalist ] argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.<ref>]. (October 10, 1787).</ref><ref>Young, pp. 38–41. "A Citizen of America (Noah Webster) October 10, 1787 Pamphlet: An Examination into the leading principles of the Federal Constitution."</ref> ], 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 ] persuaded enough Anti-federalists to vote for the Constitution, allowing for ratification.<ref>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."</ref> 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.<ref>Adamson, p. 63.</ref> 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 ] and ] 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.<ref>See , 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.")</ref> | |||
| The Second Amendment was relatively uncontroversial at the time of its ratification.<ref>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.")</ref> 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,<ref>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...'")</ref> though Whitehill's language was never debated.<ref>Garry Wills, ''A Necessary Evil: A History of American Distrust of Government,'' Simon and Schuster, 1999, page 253. ("The items on the list were never discussed in the convention, which when on to approve the Constitution.")</ref> Rather, the Constitutional delegates altered the language of the Second Amendment several times to emphasize the military context of the amendment<ref>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 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.'")</ref> and the role of the militia as a force to defend national sovereignty,<ref>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")</ref> quell insurrection,<ref>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.")</ref><ref>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.")</ref> and protect against tyranny.<ref>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.")</ref> | |||
| 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. ] 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.<ref>{{cite web|url=http://www.usconstitution.net/articles.html|title=Articles of Confederation|publisher=Usconstitution.net|date=May 19, 2010|accessdate=August 30, 2010}}</ref><ref>{{cite web|url=http://memory.loc.gov/cgi-bin/ampage?collId=rbpe&fileName=rbpe17/rbpe178/17802600/rbpe17802600.db&recNum=1&itemLink=r?ammem/rbpebib:@field(NUMBER+@band(rbpe+17802600))&linkText=0|title=US Library of Congress, repro of original text|publisher=Memory.loc.gov|accessdate=August 30, 2010}}</ref> | |||
| In contrast, ] 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.<ref>{{cite web|url=http://www.usconstitution.net/const.html|title=US Constitution|publisher=US Constitution|accessdate=August 30, 2010}}</ref> | |||
| 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?"<ref>2 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 97 (2d ed. 1863)</ref><ref name="providencefoundation1">{{cite web|url=http://providencefoundation.com/?page_id=2525|title=The Right to Keep and Bear Arms|publisher=Providence Foundation|accessdate=December 20, 2012}}</ref> 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.<ref name="providencefoundation1"/><ref>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)</ref> | |||
| 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.<ref name="providencefoundation1"/><ref>3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 425 (3d Ed. 1937)</ref> | |||
| 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.<ref name="providencefoundation1"/><ref>James Monroe Papers, New York Public Library (Miscellaneous Papers of James Monroe)</ref> | |||
| Patrick Henry, in the Virginia ratification convention June 5, 1788, argued for the dual rights to arms and resistance to oppression:{{quote|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.<ref>Speech on the Federal Constitution, Virginia Ratifying Convention, 1788</ref>}} | |||
| While both Monroe and Adams supported ratification of the Constitution, its most influential framer was James Madison. In ], 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...."<ref name="providencefoundation1"/><ref>The Federalist No. 46, at 371 (James Madison) (John. C. Hamilton Ed., 1864)</ref> | |||
| 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.<ref>{{cite web|url=http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/emerson.html|title=United States of America v. Timothy Joe Emerson – The Ratification Debates|publisher=Law.umkc.edu|accessdate=August 30, 2010}}</ref> | |||
| ==Conflict and compromise in Congress produce the Bill of Rights== | |||
| ]'s initial proposal for a bill of rights was brought to the floor of the House of Representatives on June 8, 1789, during the first session of Congress. The initial proposed passage relating to arms was: | |||
| {{quote|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.<ref name="aoc-p451">, House of Representatives, 1st Congress, 1st Session: p. 451.</ref>}} | |||
| 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,<ref>, Vol. 1: p. 64.</ref> 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.<ref>, House of Representatives, 1st Congress, 1st Session: p. 669.</ref> On August 17, that version was read into the Journal: | |||
| {{quote|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.<ref>, House of Representatives, 1st Congress, 1st Session: p. 778.</ref>}} | |||
| 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 ]. These concerns were addressed by modifying the final clause, and on August 24, the House sent the following version to the Senate: | |||
| {{quote|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: | |||
| {{quote|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.<ref>, Vol. 1: p. 63.</ref>}} | |||
| 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."<ref>Letter from ] to ] (Aug. 22, 1789) qtd. in Bickford, et al., p. 16 ''See also'' letter from ] to ] (Aug. 24, 1789) qtd. in Madison, ''Writings'', pp. 418–9.</ref> 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: | |||
| {{quote|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.<ref>, Vol. 1: p. 71.</ref>}} | |||
| 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.<ref>, Vol. 1: p. 77.</ref> 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: | |||
| {{quote|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": | |||
| {{quote|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.<ref>, Vol. 1: p. 305.</ref>}} | |||
| 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.<ref name="isbn1-55553-486-4pg53"/> 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 ] as their sole defensive weapons.<ref name="isbn1-55553-486-4pg53"/> In serious emergencies, a '']'', militia company, or group of ]s assumed law enforcement duties; these individuals were more likely than the local sheriff to be armed with firearms.<ref name="isbn1-55553-486-4pg53">DeConde, p. 53.</ref> | |||
| On May 8, 1792, Congress passed "n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States" requiring: {{quote|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... 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.<ref name="1Stat272"/>}} | |||
| 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."<ref name="1Stat272">1 Stat. .</ref> 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.<ref name="isbn0-8223-3017-2 pg294">Merkel and Uviller, pp. 293–4.</ref> 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.<ref name="isbn0-8223-3017-2 pg120"/> None are mentioned in the legislation.<ref name="1Stat272"/> | |||
| The first test of the militia system occurred in July 1794, when a group of disaffected ] against federal tax collectors whom they viewed as illegitimate tools of tyrannical power.<ref name="isbn0-87023-295-9">Szatmary, p. 107.</ref> 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.<ref name="isbn1-55553-486-4pg40">DeConde, pp. 40–3.</ref> Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.<ref name="isbn1-55553-486-4pg40"/> In October, President ] and General ] 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 ] and President ] had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production.<ref name="isbn1-55553-486-4pg40"/> Congress did subsequently pass "n act for the erecting and repairing of Arsenals and Magazines" on April 2, 1794, two months prior to the insurrection.<ref>1 Stat. .</ref> Nevertheless, the militia continued to deteriorate and twenty years later, the militia's poor condition contributed to several losses in the ], including the sacking of Washington, D.C., and the burning of the White House in 1814.<ref name="isbn0-8223-3017-2 pg120">Merkel and Uviller, p. 12.</ref> | |||
| ==Scholarly commentary== | |||
| ===Early commentary=== | |||
| The earliest published commentary on the Second Amendment by a major constitutional theorist was by ]. He annotated a five-volume edition of ]'s '']'', a critical legal reference for early American attorneys published in 1803.<ref name="tucker">Tucker, p. 490 ''and'' {{cite web|title=The Second Amendment in the Nineteenth Century|last=Kopel|first=David B.|url=http://davidkopel.com/2A/LawRev/19thcentury.htm|publisher=Second Amendment Project}}</ref> | |||
| 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."<ref name="tucker"/> Blackstone discussed the right of ] 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 ] jurists such as ].<ref>For two radically different views of Blackstone on the Second Amendment, ''see'' Heyman, Chicago-Kent, and Volokh, Senate Testimony.</ref> | |||
| Further, Tucker criticized the ] 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."<ref name="tucker"/> | |||
| Tucker's commentary was soon followed, in 1825, by that of ] 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 to be that of bearing arms for their defence" and reserves for " very small proportion of the people"<ref name="Rawle126">Rawle, p. 126.</ref> 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: | |||
| {{quote|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.<ref>Rawle, pp. 125–6.</ref>}} | |||
| 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 ought not...be abused to the disturbance of the public peace" and observed, paraphrasing ], that "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."<ref name="Rawle126"/> | |||
| The orthodox view of the meaning of the Second Amendment was articulated by ] in his influential ''Commentaries on the Constitution''. In his view the meaning of the Amendment was clear:{{quote|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.<ref name=Story/>}} | |||
| 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.<ref name=Story>{{cite book|last=Story|first=Joseph|year=1833|title=Commentaries on the U.S. Constitution|pages=§1890|url=http://books.google.com/?id=Fh1tI1WhG-UC&pg=PA265&dq=%22natural+defence+of+a+free+country+against+sudden+foreign+invasions%22|publisher=Harper & Brothers}}</ref> | |||
| ] ], 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.<ref>Spooner, pp. 17–8.</ref> Spooner's theory provided the intellectual foundation for ] and other radical abolitionists who believed that arming slaves was not only morally justified, but entirely consistent with the Second Amendment.<ref>Renehan, pp. 172–4.</ref> 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 ] and the Second Amendment.<ref>Spooner, p. 17.</ref> | |||
| The congressional debate on the proposed ] concentrated on what the ] were doing to harm the newly freed slaves, including disarming the former slaves.<ref>Cramer, p. ?{{page needed|date=February 2011}}</ref> | |||
| ===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.<ref name="rkba1982">Right to Keep and Bear Arms, U.S. Senate. 2001 Paladin Press. ISBN 1-58160-254-5.</ref> 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:<ref>{{cite web|url=http://caselaw.findlaw.com/us-5th-circuit/1332436.html|title=United States v. Emerson|format=http|accessdate=August 30, 2010}}</ref> | |||
| The first, known as the "states' rights" or "collective rights" model, holds that the Second Amendment does not apply to individuals; rather, it recognizes the right of each state to arm its militia. | |||
| <blockquote>Judicial reluctance to consider seriously whether the Fourteenth Amendment protects the right to keep and bear arms from state infringement perhaps reflects a tendency to view the Second Amendment, with its apparent guarantee of gun ownership, as embarrassing and politically incorrect. Under the twentieth-century “State’s rights” view, “the people” have no right to keep or bear arms, but the states have a collective right to have the National Guard.<ref name="Halbrook1998">{{cite book|last=Halbrook|first=Stephen P.|title=Freedmen, the 14th Amendment, and the Right to Bear Arms, 1866-1876|url=http://books.google.com/books?id=0Pt2rd3w32IC|accessdate=19 March 2013|year=1998|publisher=Greenwood Publishing Group|isbn=9780275963316}}</ref></blockquote> | |||
| The second, known as the "sophisticated collective rights model", holds that the Second Amendment recognizes some limited individual right. However, this individual right could only be exercised by actively participating members of a functioning, organized state militia. | |||
| <blockquote>Indeed, the fact that the collective right theory was once so confidently advanced by gun control enthusiasts is on its way down the collective memory hole as though it had never been asserted. With its demise, the intellectual debate over the original meaning of the second Amendment has turned in a different direction. Although now conceding that the right to keep and bear arms indeed belongs to individuals rather than to states, almost without missing a beat, gun control enthusiasts now claim with equal assurance that the individual right to bear arms was somehow "conditioned" in its exercise on participation in an organized militia.<ref name="Barnett2004">{{cite book|last=Barnett|first=Randy E.|title=Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?|url=http://books.google.com/books?id=T31NGwAACAAJ|accessdate=21 March 2013|year=2004}}</ref></blockquote> | |||
| The third, known as the "standard model", is that the Second Amendment recognized the personal right of individuals to keep and bear arms. | |||
| <blockquote>However, the weight of serious scholarship supports the historical intent of the Second Amendment to protect individual rights and to deter governmental tyranny. From the Federalist Papers to explanations when the Bill of Rights was introduced, it is clear that the purpose of the Second Amendment was to protect individual rights.<ref name="Halbrook1998"/></blockquote> | |||
| Under both of the collective rights models, the opening phrase was considered essential as a pre-condition for the main clause.<ref name="isbn0-8223-3031-8">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.'"</ref> These interpretations held that this was a grammar structure that was common during that era<ref>Winterer, pp. 1–21</ref> and that this grammar dictated that the Second Amendment protected a collective right to firearms to the extent necessary for militia duty.<ref>{{cite web|url=http://www.theacru.org/amicusbriefs/parker_v_DC.pdf|title=Amicus Brief, ACRU, Case No. 03-CV-0213-EGS, Shelly Parker, et al. vs. District of Columbia, p.14|format=PDF|accessdate=August 30, 2010}}</ref> | |||
| Under the standard model, the opening phrase is 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.<ref name="Bodenahamer"/> This interpretation is consistent with the position that the Second Amendment protects a modified individual right.<ref name="isbn1-55786-594-9">Frey and Wellman, p. 194.</ref> | |||
| The question of a collective rights versus an individual right was progressively resolved with the 2001 ] ruling in '']'', in the 2008 ] ruling in '']'', and in the 2010 Supreme Court ruling in '']''. 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.<ref name="isbn1-933995-17-3">Shapiro, p. 148.</ref> Although the Second Amendment is the only Constitutional amendment with a prefatory clause, such constructions were widely used elsewhere.<ref name="Volokh1998">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."</ref> | |||
| ===Meaning of "well regulated militia"=== | |||
| The term "regulated" means "disciplined" or "trained".<ref name="Merkel361">Merkel, p. 361. "Well-regulated meant well trained, rather than subject to rules and regulations."</ref> In ''Heller'', the U.S. Supreme Court stated that "he adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training."<ref name="ReferenceA">''Heller'', Opinion of the Court, Part II-A-2.</ref> | |||
| In the year prior to the drafting of the Second Amendment, in ] Alexander Hamilton wrote the following about "organizing", "disciplining", "arming", and "training" of the militia as specified in the ]: | |||
| {{quote|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."<ref name="FederalistPapers29"/>}} | |||
| {{quote|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 ], 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.<ref name="FederalistPapers29"/>}} | |||
| {{quote|"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".<ref name="FederalistPapers29"/>}} | |||
| Justice Scalia, writing for the Court in ''Heller'' : "In '']'', 1 Ga. 243, 251 (1846), the ] construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right": | |||
| {{quote|Nor is the right involved in this discussion less comprehensive or valuable: "The right of the people to bear arms shall not be infringed." The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans, plead eloquently for this interpretation! And the acquisition of Texas may be considered the full fruits of this great constitutional right.<ref>{{cite web|url=http://www.law.cornell.edu/supct/html/07-290.ZO.html|title=Scalia in Heller|accessdate=25 March 2013}}</ref>}} | |||
| Justice Stevens in dissent: | |||
| {{quote|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 by its drafters or is encompassed within its terms. Even if the meaning of the text were genuinely susceptible to more than one interpretation, the burden would remain on those advocating a departure from the purpose identified in the preamble and from settled law to come forward with persuasive new arguments or evidence. The textual analysis offered by respondent and embraced by the Court falls far short of sustaining that heavy burden. And the Court’s emphatic reliance on the claim “that the Second Amendment … codified a pre-existing right,” ante, at 19 , is of course beside the point because the right to keep and bear arms for service in a state militia was also a pre-existing right.<ref name="Sevens dissent">{{cite web|url=http://www.law.cornell.edu/supct/html/07-290.ZD.html|title=Stevens' dissent|accessdate=25 March 2013}}</ref>}} | |||
| ===Meaning of "the right of the People"=== | |||
| Justice ], writing for the majority in '' Heller'', stated: | |||
| {{quote|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”.<ref name="District of Columbia v Heller">{{cite web|url=http://supreme.justia.com/us/554/07-290/opinion.html|title=District of Columbia v Heller|publisher=Supreme.justia.com|accessdate=August 30, 2010}}</ref>}} | |||
| ===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: | |||
| {{quote|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.”<ref name="District of Columbia v Heller"/>}} | |||
| In a dissent, joined by Justices ], ], and ], Justice Stevens said: | |||
| {{quote|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".<ref name="District of Columbia v Heller (No. 07-290)">{{cite web|url=http://www.law.cornell.edu/supct/pdf/07-290P.ZD|title=District of Columbia v Heller|publisher=Cornell University Law School|accessdate=August 30, 2010}}</ref>}} | |||
| ==Supreme Court cases== | |||
| {{See also|Firearm case law in the United States}} | |||
| In the century following the ratification of the ], the intended meaning and application of the Second Amendment drew less interest than it does in modern times.<ref name="Saul_Cornell_neither_model">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.</ref> 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'', {{ussc|18|1|1820}}, where the Supreme Court mentioned the Second Amendment in an aside.<ref>Justice Story "misidentified" it as the "5th Amendment. Several public officials, including ] 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.</ref> In the ], the ] stated that if ]s were considered ], "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."<ref>http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=60&invol=393</ref> | |||
| 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 U.S. Supreme Court, in favor of the individual rights model. | |||
| The U.S. Supreme Court's primary Second Amendment cases include ''Robertson v. Baldwin'', (1897); '']'', (1939); '']'' (2008); and '']'' (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 U.S. militias have historically been armed. | |||
| <blockquote>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.<ref>{{cite web|url=http://supreme.justia.com/us/307/174/case.html|title=''United States v. Miller''|publisher=Supreme.justia.com|accessdate=August 30, 2010}}</ref></blockquote> | |||
| 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: | |||
| <blockquote>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 ].<ref>{{cite web|url=http://supreme.justia.com/us/554/07-290/opinion.html|title=''District of Columbia v. Heller''|publisher=Supreme.justia.com|accessdate=August 30, 2010}}</ref></blockquote> | |||
| ===''United States v. Cruikshank''=== | |||
| {{Main|United States v. Cruikshank}} | |||
| In the ] case of ''United States v. Cruikshank'', {{ussc|92|542|1875}}, the defendants were white men who had killed more than sixty black people in what was known as the ] 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, "or their protection in its enjoyment, the people must look to the States."<ref>''Cruikshank'', at 552.</ref> | |||
| The Court stated that "he Second Amendment...has no other effect than to restrict the powers of the national government...."<ref>''Cruikshank'', at 553.</ref> Likewise, the Court held that there was no ] in this case, and therefore the Fourteenth Amendment was not applicable:{{quote|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.<ref>''Cruikshank'', at 554.</ref>}} | |||
| Thus, the Court held a federal ] to be unconstitutional ] in that case.<ref name="isbn1-933995-25-4">Doherty, p. 14.</ref> | |||
| ===''Presser v. Illinois''=== | |||
| {{Main|Presser v. Illinois}} | |||
| In ''Presser v. Illinois'', {{ussc|116|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.<ref name="DeConde92"/><ref>{{cite news|title=The Lehr und Wehr Verein|publisher=The New York Times|date=July 20, 1886|page=5|url=http://query.nytimes.com/gst/abstract.html?res=9803E3D91E3EEF33A25753C2A9619C94679FD7CF}}</ref> | |||
| 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.<ref name="DeConde92">DeConde, pp. 92–3.</ref> However 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."<ref name="Cramer1994">{{cite book|last=Cramer|first=Clayton E.|title=For the defense of themselves and the state: the original intent and judicial interpretation of the right to keep and bear arms|url=http://books.google.com/books?id=1LmRAAAAMAAJ|accessdate=11 March 2013|year=1994|publisher=Praeger|isbn=9780275949136}}</ref> | |||
| ===''Miller v. Texas''=== | |||
| In ''Miller v. Texas'', {{ussc|153|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:<ref name="DeConde96">DeConde, p. 96.</ref> "As the proceedings were conducted under the ordinary forms of criminal prosecutions there certainly was no denial of due process of law."<ref>''Miller'', at 539.</ref> | |||
| ===''Robertson v. Baldwin''=== | |||
| In ''Robertson v. Baldwin'', {{ussc|165|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:{{quote|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.<ref>''Robertson'', at 281.</ref>}} | |||
| ===''United States v. Miller''=== | |||
| {{Main|United States v. Miller}} | |||
| In ''United States v. Miller'', {{ussc|307|174|1939}}, the Supreme Court rejected a Second Amendment challenge to the ] prohibiting the interstate transportation of unregistered ]:{{quote|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..."<ref>''Miller'', at 175.</ref>}} | |||
| In a unanimous opinion authored by ], the Supreme Court stated "the objection that the Act usurps police power reserved to the States is plainly untenable."<ref>''Miller'', at 177–8.</ref> As the Court explained:{{quote|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.<ref>''Miller'', at 178.</ref>}} | |||
| 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."<ref>{{cite web|url=http://www.secondamendment.net/2amd4.html|title=The misconstruction of United States v. Miller|last=Fezell|first=Howard J.|accessdate=January 5, 2009}}</ref> 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."<ref>{{cite news|url=http://www.huffingtonpost.com/paul-helmke/one-courts-second-amendme_b_74283.html|title=One Court's Second Amendment Fantasy|author=Paul Helmke|accessdate=April 29, 2011|work=Huffington Post|date=March 28, 2008}}</ref> Law professor ] states, "The only certainty about ''Miller'' is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact."<ref>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."</ref> | |||
| ===''District of Columbia v. Heller''=== | |||
| {{Main|District of Columbia v. Heller}} | |||
| ====Judgment==== | |||
| According to the syllabus prepared by the U.S. Supreme Court Reporter of Decisions,<ref name="RecorderOfDecisionsHellerSummary">{{cite web|url=http://www.law.cornell.edu/supct/search/display.html?terms=heller&url=/supct/html/07-290.ZS.html|title=DISTRICT OF COLUMBIA v. HELLER (No. 07-290)|work=Legal Information Institute|publisher=Cornell University Law School|accessdate=December 26, 2012}}</ref> in ''District of Columbia v. Heller'', 554 U.S. 570 (2008), the Supreme Court held:<ref name="RecorderOfDecisionsHellerSummary"/><ref name="CornellHellerSummary">{{cite web|url=http://www.law.cornell.edu/supct/html/07-290.ZS.html|title=Cornell School of Law Summary of the ''Heller'' Decision|publisher=Law.cornell.edu|accessdate=September 1, 2012}}</ref> | |||
| # 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.<ref name="RecorderOfDecisionsHellerSummary"/><ref name="CornellHellerSummary"/> | |||
| ::(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.<ref name="RecorderOfDecisionsHellerSummary"/><ref name="CornellHellerSummary"/> | |||
| ::(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.<ref name="RecorderOfDecisionsHellerSummary"/><ref name="CornellHellerSummary"/> | |||
| ::(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.<ref name="RecorderOfDecisionsHellerSummary"/><ref name="CornellHellerSummary"/> | |||
| ::(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.<ref name="RecorderOfDecisionsHellerSummary"/><ref name="CornellHellerSummary"/> | |||
| ::(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.<ref name="RecorderOfDecisionsHellerSummary"/><ref name="CornellHellerSummary"/> | |||
| ::(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither '']'', 92 U. S. 542 , nor '']'', 116 U. S. 252, refutes the individual-rights interpretation. '']'', 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.<ref name="RecorderOfDecisionsHellerSummary"/><ref name="CornellHellerSummary"/> | |||
| :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.<ref name="RecorderOfDecisionsHellerSummary"/><ref name="CornellHellerSummary"/> | |||
| :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.<ref name="CornellHellerSummary"/> | |||
| Other legal summaries of the court's findings in this case are similar.<ref name="WitkinSummary">{{cite web|url=http://www.witkin.com/pages/recent_dev_pages/current_pages/conlaw_heller.htm |title=Witkin Legal Institute Summary of the ''Heller'' Decision|publisher=Witkin.com|date=June 30, 2009|accessdate=December 26, 2012}}</ref><ref name="MooreSummary">{{cite web|url=http://mooredefenselaw.com/2008/06/a-quick-summary-on-district-of-columbia-v-heller/|title=Nathan Moore Summary of the Heller Decision|publisher=Mooredefenselaw.com|date=June 30, 2008|accessdate=December 26, 2012}}</ref><ref name="GlinSummary">{{cite web|url=http://www.glin.gov/view.action?glinID=207840|title=Global Legal Information Network Summary of the ''Heller'' Decision|publisher=Glin.gov|accessdate=September 1, 2012}}</ref><ref name="OLRResearchSummary">{{cite web|author=Veronica Rose, Principal Analyst|url=http://www.cga.ct.gov/2008/rpt/2008-R-0578.htm|title=OLR Research Institute's Summary of the Heller Decision|publisher=Cga.ct.gov|accessdate=September 1, 2012}}</ref><ref name="OyezHellerSummary">{{cite web|url=http://www.oyez.org/cases/2000-2009/2007/2007_07_290|title=Oyez Summary of the ''Heller'' Decision|publisher=Oyez.org|accessdate=December 26, 2012}}</ref><ref name="LCAVHellerSummary">{{cite web|url=http://www.lcav.org/pdf/dc_v_heller_analysis.pdf|title="Legal Community Against Violence" Summary of the ''Heller'' Decision|publisher=Lcav.org|accessdate=September 1, 2012}}</ref> | |||
| ====Notes and analysis==== | |||
| ''Heller'' has been widely described as a ].<ref>{{cite web|url=http://www.law.com/jsp/article.jsp?id=1202422582170|title=Supreme Court Strikes Down D.C. Gun Ban|author=Mauro, Tony|date=June 27, 2008|accessdate=January 5, 2009|quote=In a historic 5–4 decision... the landmark ruling...}}</ref><ref>{{cite news|url=http://www.usatoday.com/news/washington/2008-06-26-scotus-guns_N.htm|title=Landmark ruling fires challenges to gun laws|author=Biskupic, Joan and Johnson, Kevin|date=June 27, 2008|publisher=USA Today|accessdate=January 5, 2009}}</ref><ref>{{cite news|url=http://www.reuters.com/articlePrint?articleId=USWBT00928420080626|title=Americans have right to guns under landmark ruling|first=James|last=Vicini|date=June 26, 2008|publisher=Reuters|accessdate=January 5, 2009}}</ref><ref>{{cite news|url=http://www.nytimes.com/2008/06/27/washington/27scotus.html?ei=5124&en=21e70d4578db66b2&ex=1372305600&partner=permalink&exprod=permalink&pagewanted=all|title=Justices, Ruling 5–4, Endorse Personal Right to Own Gun|author=Greenhouse, Linda|date=June 27, 2008|publisher=The New York Times|accessdate=January 5, 2009|quote=The landmark ruling...}}</ref><ref>{{cite news|url=http://www.nytimes.com/2009/03/17/us/17bar.html|title=Few Ripples From Supreme Court Ruling on Guns|author=Liptak, Adam|date=March 16, 2009|accessdate=August 13, 2010|quote=The Heller case is a landmark decision that has not changed very much at all...|work=The New York Times}}</ref> To clarify that its ruling does not invalidate a broad range of existing firearm laws, the majority opinion, written by Justice ], said:<ref>{{cite web|url=http://m.detnews.com/detail.jsp?key=279156&full=1|title=Ruling upholds most gun control laws|author=Robert A. Sedler|date=June 30, 2008|publisher=The Detroit News|accessdate=August 20, 2009}}</ref> | |||
| {{quote|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.<ref name="longstanding">''Heller'', Opinion of the Court, Part III.</ref>}} | |||
| 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'...." | |||
| ] dissenting opinion, which was joined by the three other dissenters, said: | |||
| {{quote|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.<ref>{{cite web|url=http://supreme.justia.com/us/554/07-290/dissent.html|title=''Heller'', Justice Stevens dissenting|publisher=Supreme.justia.com|accessdate=August 30, 2010}}</ref>}} | |||
| 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 "rotesque" idiomatic meeting.<ref>''Heller'', Opinion of the Court, Part II-A-1-b.</ref> | |||
| ], in his own dissent joined by Stevens, Souter, and Ginsburg, 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".<ref>{{cite web|url=http://supreme.justia.com/us/554/07-290/dissent2.html|title=''Heller'', Justice Breyer dissenting|publisher=Supreme.justia.com|accessdate=August 30, 2010}}</ref> | |||
| Regarding the term "well regulated", the majority opinion said, "The adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training."<ref name="ReferenceA"/> The majority opinion quoted Spooner from '']'' as saying that the right to bear arms was necessary for those who wanted to take a stand against slavery.<ref>{{cite web|url=http://supreme.justia.com/us/554/07-290/opinion.html|title=''Heller'', Opinion of the Court, Part II-D-1|publisher=Supreme.justia.com|accessdate=August 30, 2010}}</ref> The majority opinion also stated that: | |||
| {{quote|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.<ref name="Heller">'''', 128 S.Ct. 2783 (2008).</ref>}} | |||
| The dissenting justices were not persuaded by this argument.<ref name="urlJustices Rule for Individual Gun Rights - NYTimes.com">{{cite news|url=http://www.nytimes.com/2008/06/27/washington/27scotuscnd.html?_r=1&pagewanted=all|title=Justices Rule for Individual Gun Rights - NYTimes.com|quote= dramatic upheaval in the law, Justice Stevens said in a dissent|publisher=The New York Times|first=Linda|last=Greenhouse|date=June 27, 2008|accessdate=May 23, 2010}}</ref> | |||
| 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.<ref name="CornellHellerSummary"/> 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).<ref name="CornellHellerSummary"/> | |||
| ''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. | |||
| <blockquote>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."<ref name="CornellHellerSummary"/></blockquote> | |||
| ===''McDonald v. Chicago''=== | |||
| {{Main|McDonald v. Chicago}} | |||
| On June 28, 2010, the Court in ''McDonald v. Chicago'', 561 U.S. 3025 (2010) held that the Second Amendment was ]. 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.<ref name="nytimes.com"/> 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 ], while the fifth Justice, ], voted to do so through the amendment's ].<ref>{{cite web|url=http://www.scotusblog.com/2010/06/analysis-state-gun-regulations-and-mcdonald/|title=Analysis: state gun regulations and McDonald|last=Scarola|first=Matthew|date=June 28, 2010|publisher=]|accessdate=July 3, 2010}}</ref> | |||
| ==United States Courts of Appeals decisions since ''Heller''== | |||
| Since ''Heller'', the ] have ruled on many Second Amendment challenges to convictions and gun control laws.<ref name="Winkler14">Winkler, "Heller's Catch 22," p. 14.</ref><ref name="AdamLiptak-3-17-09-NYTimes.com">{{cite news|url=http://www.nytimes.com/2009/03/17/us/17bar.html?_r=1|title=Few Ripples From Supreme Court Ruling on Guns|author=Liptak, Adam|work=New York Times|accessdate=March 26, 2009|date=March 17, 2009}}</ref> The following are post-''Heller'' cases, divided by Circuit, along with summary notes: | |||
| '''D.C. Circuit''' | |||
| *''' ''Heller v. District of Columbia'', Civil Action No. 08-1289 (RMU), No. 23., 25''' On March 26, 2010, the ] 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.<ref>{{Cite web|title=HELLER v. DISTRICT OF COLUMBIA 2010|url=http://www.leagle.com/xmlResult.aspx?xmldoc=in%20fdco%2020100329000t.xml&docbase=cslwar3-2007-curr|publisher=Leagle|date=March 26, 2010|accessdate=22 February 2013}}</ref> | |||
| '''First Circuit''' | |||
| *''' ''United States v. Rene E.'', {{West|F|583|3|8|1st Cir.|2009|}}''' – On August 31, 2009, the ] affirmed the conviction of a juvenile for the illegal possession of a handgun as a juvenile, under {{usc|18|922(x)(2)(A)}} and {{usc|18|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."<ref>''Rene E.'', at 12–15.</ref> | |||
| '''Second Circuit''' | |||
| *''' ''Kachalsky v. County of Westchester'', 11-3942''' – On November 28, 2012, the ] upheld New York's ] ] permit law, ruling that "the proper cause requirement is substantially related to New York's compelling interests in public safety and crime prevention."<ref> – New York Law Journal</ref> | |||
| '''Fourth Circuit''' | |||
| *''' ''United States v. Hall'', {{West|F|551|3|257|4th Cir.|2009|}} ''' – On August 4, 2008, the ] upheld as constitutional the prohibition of possession of a concealed weapon without a permit.<ref name="Winkler15">Winkler, "Heller's Catch 22," p. 15.</ref> | |||
| *''' ''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 {{usc|18|922(g)(9)}}.<ref>{{cite web|url=http://caselaw.findlaw.com/us-4th-circuit/1550305.html?DCMP=NWL-pro_conlaw |title=United States Court of Appeals, Fourth Circuit |work=FindLaw |publisher=Thomson Reuters |date= |accessdate=December 26, 2012}}</ref> 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".<ref>Part III of the decision.</ref> | |||
| '''Fifth Circuit''' | |||
| *''' ''United States v. Dorosan'', 350 Fed. Appx. 874 (5th Cir. 2009) ''' – On June 30, 2008, the ] upheld {{CodeFedReg|39|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.<ref>Weisselberg, pp. 99–100.</ref><ref>''</ref> | |||
| *''' ''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 {{usc|18|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.<ref name="Winkler15"/> | |||
| *''' ''United States v. Scroggins'', {{West|F|551|3|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 {{usc|18|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'', {{West|F|587|3|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 ],<ref name="SLAW_0714">{{cite web|title=Skoien and the many challenges of Second Amendment jurisprudence|url=http://sentencing.typepad.com/sentencing_law_and_policy/2010/07/skoien-and-the-many-challenges-of-second-amendment-jurisprudence.html|work=SENTENCING LAW AND POLICY|accessdate=August 13, 2010}}</ref> on July 13, 2010, the ], sitting '']'', 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.<ref name="SLAW_0714"/> Skoien was convicted and sentenced to two years in prison for the gun violation, and will thus likely be subject to a lifetime ban on gun ownership.<ref name="urlCourthouse News Service">{{cite web|url=http://www.courthousenews.com/2010/07/14/28821.htm|title=U.S. v. SKOIEN No. 08-3770}}</ref><ref name="urlLeagleSkoien">{{cite web|url=http://www.leagle.com/unsecure/page.htm?shortname=infco20100713141|title=Laws, Life, and Legal Matters – Court Cases and Legal Information at Leagle.com – All Federal and State Appeals Court Cases in One Search}}</ref> Pro-gun rights editorials have sharply criticized this ruling as going too far with the enactment of a lifetime gun ban,<ref name="urlJournalTimesSkoien">{{cite web|url=http://www.journaltimes.com/news/opinion/editorial/article_2f5bf07e-990e-11df-b2d7-001cc4c002e0.html|title=The right to regain the right to own a gun}}</ref> while editorials favoring gun regulations have praised the ruling as "a bucket of cold water thrown on the 'gun rights' celebration".<ref name="urlHeniganSkoien">{{cite news|url=http://www.huffingtonpost.com/dennis-a-henigan/new-court-ruling-throws-c_b_649443.html|title=Dennis A. Henigan: New Court Ruling Throws Cold Water on "Gun Rights" Celebration|work=Huffington Post|date=July 16, 2010}}</ref> | |||
| *''' ''Moore v. Madigan'' (Circuit docket 12-1269)'''<ref>{{cite web|title= Moore v. Madigan (Circuit docket 12-1269)|url=http://www.suntimes.com/csp/cms/sites/STM/dt.common.streams.StreamServer.cls?STREAMOID=t4wP4b2KIDGk1hVfXGe7YGPb7UVDJBJDeYT$Rvi3PYUPDq7tdCeP62kHTBxgBvuF4Aw$6wU9GSUcqtd9hs3TFeZCn0vq69IZViKeqDZhqNLziaXiKG0K_ms4C2keQo54&CONTENTTYPE=application/pdf&CONTENTDISPOSITION=guns-CST-121212.pdf7|work=United States Court of Appeals for the Seventh Circuit|publisher=suntimes.com|accessdate=December 18, 2012|date=December 11, 2012}}</ref> – 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 ]ing of firearms to be unconstitutional. The court ] this ruling for 180 days, so Illinois could enact replacement legislation.<ref>{{cite web|url=http://www.scotusblog.com/2012/12/broader-gun-right-declared/#more-156442|title=Broader gun right declared|last=Denniston|first=Lyle|date=December 11, 2012|publisher=]|accessdate=December 11, 2012}}</ref><ref name="NYT20121218">{{cite news|last=Liptak|first=Adam|title=Supreme Court Gun Ruling Doesn’t Block Proposed Controls|url=http://www.nytimes.com/2012/12/19/us/gun-plans-dont-conflict-with-justices-08-ruling.html?_r=0|accessdate=December 18, 2012|newspaper=The New York Times|date=December 18, 2012}}</ref><ref>{{cite web|last=Kopel|first=David|title=Moore v. Madigan, key points|url=http://www.volokh.com/2012/12/11/moore-v-madigan-key-points/|publisher=The Volokh Conspiracy|accessdate=December 18, 2012|date=December 11}}</ref> On February 22, 2013, a petition for rehearing '']'' was denied by a vote of 5-4.<ref>{{cite web|url=http://www.volokh.com/2013/02/22/rehearing-en-banc-denied-in-case-invalidating-illinois-ban-on-carrying-loaded-guns-in-public/|title=Rehearing En Banc Denied in Case Invalidating Illinois’ Ban on Carrying Loaded Guns in Public|last=Volokh|first=Eugene|date=February 22, 2013|publisher=]|accessdate=22 February 2013}}</ref> | |||
| '''Ninth Circuit''' | |||
| *''' ''Nordyke v. King'', 2012 WL 1959239 (9th Cir. 2012)''' – On July 29, 2009, the Ninth Circuit ] an April 20 panel decision and reheard the case '']'' on September 24, 2009.<ref name="volokh.com">{{cite news|url=http://volokh.com/posts/1248906855.shtml|title=Ninth Circuit Will Rehear Nordyke v. King En Banc|last=Volokh|first=Eugene|date=July 29, 2009|publisher=]|accessdate=July 30, 2009}}</ref><ref>{{cite news|url=http://www.cbsnews.com/blogs/2009/08/25/taking_liberties/entry5263569.shtml|title=High-Profile Gun Rights Case Inches Toward Supreme Court|last=McCullagh|first=Declan|date=August 25, 2009|publisher=]|accessdate=August 25, 2009}}</ref><ref name="urlAppeals Court Sets Rehearing on Ruling That Eased Gun Restrictions - NYTimes.com">{{cite news|first=John|last=Schwartz|date=July 30, 2009|url=http://www.nytimes.com/2009/07/31/us/31guns.html|title=Appeals Court Sets Rehearing on Ruling That Eased Gun Restrictions|work=NYTimes.com|accessdate=August 17, 2009}}</ref><ref>{{cite web|url=http://www.scotusblog.com/2009/07/second-amendment-less-chance-of-review/|title=Second Amendment: Less chance of review?|last=Denniston|first=Lyle|date=July 30, 2009|publisher=]|accessdate=July 31, 2009}}</ref> The April 20 decision had held that the Second Amendment applies to state and local governments, while also upholding an ] ordinance that makes it a crime to bring a gun or ammunition on to, or possess either while on, county property.<ref name="Nordyke"> (9th Cir. 2009)</ref><ref>{{cite web|url=http://www.scotusblog.com/2009/04/second-amendment-extended/|title=Second Amendment extended|last=Denniston|first=Lyle|date=April 20, 2009|publisher=]|accessdate=April 20, 2009}}</ref> The ''en banc'' panel remanded the case to the three-judge panel. On May 2, 2011, that panel ruled that ] was the correct standard by which to judge the ordinance's constitutionality and remanded the case to the ].<ref>{{cite web|url=http://www.scotusblog.com/2011/05/circuit-court-bolsters-gun-rights/|title=Circuit Court bolsters gun rights|last=Denniston|first=Lyle|date=May 4, 2011|publisher=]|accessdate=May 4, 2011}}</ref> On November 28, 2011, the Ninth Circuit vacated the panel's May 2 decision and agreed to rehear the case ''en banc''.<ref>{{cite web|url=http://www.hoffmang.com/firearms/Nordyke-v-King/Nordyke-En-Banc-2011-11-28.pdf|title=Text of November 28 order granting rehearing|format=PDF|accessdate=September 1, 2012}}</ref><ref>{{cite news|url=http://www.insidebayarea.com/oaklandtribune/localnews/ci_19427869|title=9th Circuit agrees to rehear long-running Alameda County gun rights case|last=Mintz|first=Howard|date=November 29, 2011|publisher=Oakland Tribune|accessdate=November 30, 2011}}</ref> On April 4, 2012, the ''en banc'' panel sent the case to ].<ref>{{cite web|url=http://www.scotusblog.com/2012/04/major-gun-case-shunted-aside/|title=Major gun case shunted aside|last=Denniston|first=Lyle|date=April 4, 2012|publisher=]|accessdate=April 5, 2012}}</ref> 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.<ref>{{cite web|url=http://www.scotusblog.com/2012/06/nordyke-gun-case-nears-end/|title=Nordyke gun case nears end|last=Denniston|first=Lyle|date=June 2, 2012|publisher=]|accessdate=June 3, 2012}}</ref> | |||
| ==Notes and citations== | |||
| {{Reflist|25em}} | |||
| ==References== | |||
| {{Refbegin|30em}} | |||
| ===Books=== | |||
| *{{cite book|title=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|last=Adams|first=Les|publisher=Paladium Press|location=Birmingham, Alabama|year=1996}} | |||
| *{{cite book|title=Freedom of Religion, the First Amendment, and the Supreme Court|last=Adamson|first=Barry|publisher=Pelican Publishing|isbn=1-58980-520-8|year=2008}} | |||
| *{{cite book|first=Casey|last=Anderson|coauthors=Horwitz, Joshua|title=Guns, Democracy, and the Insurrectionist Idea|publisher=University of Michigan Press|location=Ann Arbor, MI|year=2009|isbn=0-472-03370-0}} | |||
| *{{cite book|first=Hilaire|last=Barnett|title=Constitutional & Administrative Law|publisher=Routledge Cavendish|year=2004|isbn=1-85941-927-5}} | |||
| *{{cite book|editor=Bickford, Charlene; et al.|title=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|publisher=The Johns Hopkins University Press|volume=17|year=2004|isbn=978-0-8018-7162-7}} | |||
| *{{cite book|first=Carl T.|last=Bogus|title=The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms|publisher=The New Press|location=New York|year=2001|isbn=1-56584-699-0}} | |||
| *{{cite book|last=Boynton|first=Lindsay Oliver J.|title=The Elizabethan Militia 1558–1638|year=1971|oclc=8605166|isbn=0-7153-5244-X|publisher=David & Charles}} | |||
| *{{cite book|title=Guns in American Society|last=Carter|first=Gregg Lee|publisher=ABC-CLIO|year=2002}} | |||
| *{{cite book|last=Charles|first=Patrick J.|title=The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court|publisher=McFarland|year=2009|isbn=978-0-7864-4270-6}} | |||
| *{{cite book|last=Cooke|first=Edward Francis|title=A Detailed Analysis of the Constitution|publisher=Rowman & Littlefield Publishers|location=Lanham, MD|year=2002|isbn=0-7425-2238-5}} | |||
| *{{cite book|first=Saul|last=Cornell|authorlink=Saul Cornell|title=A Well-Regulated Militia — The Founding Fathers and the Origins of Gun Control in America|publisher=Oxford University Press|location=New York, New York|year=2006|isbn=978-0-19-514786-5}} | |||
| *{{cite book|title=Gun Control and the Constitution: Sources and Explorations on the Second Amendment|last=Cottrol|first=Robert|publisher=Taylor & Francis|year=1994}} | |||
| *{{cite journal|author=Cramer, Clayton E.; Olson, Joseph|title=What Did "Bear Arms" Mean in the Second Amendment?|url=http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1086176|journal=Geo. J.L. & Pub. Pol'y|volume=6|issue=2|year=2008}} | |||
| *{{cite book|last=Crooker|first=Constance Emerson|title=Gun Control and Gun Rights|publisher=Greenwood Publishing Group|year=2003|isbn=978-0-313-32174-0}} | |||
| *{{cite book|last=Denson|first=John V.|title=The Costs of War: America's Pyrrhic Victories|edition=2|publisher=Transaction Publishers|year=1999|isbn=978-0-7658-0487-7}} | |||
| *{{cite book|last=Doherty|first=Brian|title=Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment|publisher=Cato Institute|location=Washington, D.C.|year=2008|isbn=1-933995-25-4}} | |||
| *{{cite book|first=W. Marvin|last=Dulaney|title=Black Police in America|publisher=Indiana University Press|location=Bloomington|year=1996|isbn=0-253-21040-2}} | |||
| *{{cite book|first=James W.|last=Ely|coauthors=Bodenhamer, David J.|title=The Bill of Rights in Modern America|publisher=Indiana University Press|location=Bloomington|year=2008|isbn=0-253-21991-4}} | |||
| *{{cite book|title=The Reader's Companion to American History|last=Foner|first=Eric|coauthors=Garraty, John Arthur|publisher=Houghton Mifflin Harcourt|year=1991|isbn=0-395-51372-3}} | |||
| *{{cite book|last=Frey|first=Raymond|coauthors=Wellman, Christopher|title=A Companion to Applied Ethics|publisher=Blackwell Publishing|location=Cambridge, MA|year=2003|isbn=1-55786-594-9}} | |||
| *{{cite book|first=Stephen P.|last=Halbrook|publisher=Greenwood Publishing Group|year=1989|title=A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees}} | |||
| *{{cite book|last=Halbrook|first=Stephen P.|title=That Every Man Be Armed: The Evolution of a Constitutional Right (Independent Studies in Political Economy)|publisher=The Independent Institute|location=Oakland, CA|year=1994|isbn=0-945999-38-0}} | |||
| *{{cite book|last=Hemenway|first=David|title=Private Guns, Public Health|publisher=University of Michigan Press|year=2007|isbn=978-0-472-03162-7}} | |||
| *{{cite book|author=Kruschke, Earl R.|title=Gun Control: A Reference Handbook|publisher=ABC-CLIO|location=Santa Barbara, CA|year=1995|isbn=0-87436-695-X}} | |||
| *{{cite book|title=Origins of the Bill of Rights|last=Levy|first=Leonard W.|year=1999|publisher=Yale University Press|location=New Haven, CT|isbn=0-300-07802-1}} | |||
| *{{cite book|title=The Writings of James Madison: 1787–1790|last=Madison|first=James|publisher=Nabu Press|year=2010|isbn=978-1-144-58273-7}} | |||
| *{{cite book|first=Joyce Lee|last=Malcolm|title=To Keep and Bear Arms: The Origins of an Anglo-American Right|publisher=Harvard University Press|location=Cambridge|year=1996|isbn=0-674-89307-7}} | |||
| *{{cite book|first=William G.|last=Merkel|title=The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent|coauthors=Uviller, H. Richard|year=2002|publisher=Duke University Press|location=Durham, NC|url=http://books.google.com/books?id=abAwWcOeFjkC&printsec=frontcover&dq=Militia+Right+Arms&hl=en&sa=X&ei=2SwdUfPJGoiskgX354HIAQ&sqi=2&ved=0CC8Q6AEwAA |isbn=0-8223-3017-2 |accessdate=14 February 2013}} | |||
| *{{cite book|title=Arms and Men|last=Millis|first=Walter|publisher=Rutgers University Press |year=1981}} | |||
| *{{cite book|last=Mulloy|first=D.|title=American Extremism|publisher=Routledge|year=2004}} | |||
| *{{cite book|first=John|last=Pepper|coauthors=Petrie, Carol; Wellford, Charles F.|title=Firearms and Violence. A Critical Review|url=http://www.nap.edu/openbook.php?isbn=0-309-09124-1|year=2005|publisher=National Academies Press|location=Washington, DC|isbn=0-309-09124-1}} | |||
| *{{cite book|first=J. R.|last=Pole|coauthors=Greene, Jack P.|title=A Companion to the American Revolution (Blackwell Companions to American History)|publisher=Blackwell Publishers|location=Cambridge, MA|year=2003|isbn=1-4051-1674-9}} | |||
| *{{cite book|last=Renehan|first=Edward J.|title=The Secret Six: The True Tale of the Men Who Conspired With John Brown|publisher=University of South Carolina Press|location=Columbia, SC|year=1997|isbn=1-57003-181-9}} | |||
| *{{cite book|first=Steffen|last=Schmidt|coauthors=Bardes, Barbara A.; Shelley, Mack C.|title=American Government and Politics Today: The Essentials|publisher=Wadsworth Publishing|location=Belmont, CA|year=2008|isbn=0-495-57170-9}} | |||
| *{{cite book|author=Shapiro, Ilya|title=Cato Supreme Court Review 2007–2008|publisher=Cato Institute|location=Washington, D.C|year=2008|isbn=1-933995-17-3}} | |||
| *{{cite book|last=Smith|first=Rich|title=The Bill of Rights: Defining Our Freedoms|publisher=ABDO Group|year=2007|isbn=978-1-59928-913-7}} | |||
| *{{cite book|first=Robert J.|last=Spitzer|title=The Right to Bear Arms: Rights and Liberties under the Law|publisher=]|location=Santa Barbara, CA|year=2001|isbn=1-57607-347-5}} | |||
| *{{cite book|last=Szatmary|first=David P.|title=Shays' Rebellion: the Making of an Agrarian Insurrection|publisher=]|location=Amherst|year=1980|isbn=0-87023-295-9}} | |||
| *{{cite book|last=Tucker|first=St. George|coauthor=Blackstone, William|title=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|publisher=The Lawbook Exchange, Ltd.|year=1996|isbn=978-1-886363-15-1}} | |||
| *{{cite book|last=Tushnet|first=Mark V.|title=Out of Range: Why the Constitution Can't End the Battle Over Guns|publisher=Oxford University Press|year=2007|pages=xv| isbn=978-0-19-530424-4}} | |||
| *{{cite book|title=Free Speech in its Forgotten Years|last=Rabban|first=David|publisher=Cambridge University Press|year=1999}} | |||
| *{{cite book|last=Rawle|first=William|title=A View of the Constitution of the United States of America|publisher=P.H. Nicklin|year=1829|edition=2}} | |||
| *{{cite book|title=An Essay on the Trial by Jury|last=Spooner|first=Lysander|year=1852|publisher=John P. Jewett and Co.}} | |||
| *{{cite book|first=John R.|last=Vile|title=The Constitutional Convention of 1787: A Comprehensive Encyclopedia of America's Founding (2 Volume Set)|publisher=ABC-CLIO|location=Santa Barbara, CA|year=2005|isbn=1-85109-669-8}} | |||
| *{{cite book|first=David H.|last=Williams|title=The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic|publisher=Yale University Press|location=New Haven, CT|year=2003|isbn=0-300-09562-7}} | |||
| *{{cite book|last=Wills|first=Garry|editor=Saul, Cornell|title=Whose Right to Bear Arms did the Second Amendment Protect?|publisher=Bedford/St. Martin's|location=Boston|year=2000|isbn=0-312-24060-0}} | |||
| *{{cite book|author=Wills, Garry|title=A Necessary Evil: A History of American Distrust of Government|publisher=Simon & Schuster|location=New York|year=2002|pages=256–7|isbn=0-684-87026-6}} | |||
| *{{cite book|last=Winterer|first=Caroline|title=The Culture of Classicism: Ancient Greece and Rome in American Intellectual Life, 1780–1910|location=Baltimore|publisher=Johns Hopkins University Press|year=2002}} | |||
| *{{cite book|first=David E.|last=Young|title=The Origin of the Second Amendment: A Documentary History of the Bill of Rights 1787–1792|edition=2|year=2001|publisher=Golden Oak Books|isbn=0-9623664-3-9}} | |||
| ===Periodicals=== | |||
| *{{cite journal|last=Barnett|first=Gary E.| title=The Reasonable Regulation of the Right to Keep and Bear Arms|volume=6|issue=2|journal=Geo. J.L. & Pub. Pol'y|date=June 24, 2008|url=http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1152102}} | |||
| *{{cite journal|title=The Hidden History of the Second Amendment|last=Bogus|first=Carl|volume=31|journal= U.C. Davis L. Rev.|year=1998}} | |||
| *{{cite journal|title=The Changing Meaning of the Right to Bear Arms|last=Blodgett-Ford|first=Sayoko|date=Fall 1995|journal=Seton Hall Const. L.J.|volume=101|url=http://www.saf.org/LawReviews/Blodgett-Ford.html}} | |||
| *{{Cite journal|last=Breen|first=T. H.|title=English Origins and New World Development: The Case of the Covenanted Militia in Seventeenth-Century Massachusetts|journal=Past & Present|volume=57|issue=1|year=1972|url=http://past.oxfordjournals.org/cgi/content/citation/57/1/74#search=%22Lindsay%20Boynton%2C%20The%20Elizabethan%20Militia%22|doi=10.1093/past/57.1.74|page=74}} | |||
| *{{cite journal|last=Sunstein|first=Cass|date=November 2008|journal=Harv. L. Rev.|volume=122|title=Comment: Second Amendment Minimalism: Heller as Griswold|url=http://www.harvardlawreview.org/issues/122/nov08/sunstein.shtml|accessdate=February 20, 2009}} | |||
| *{{cite journal|title='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|last=Charles|first=Patrick J.|journal=Clev. St. L. Rev.|volume=57|issue=3|year=2009|url=http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1550768}} | |||
| *{{cite journal|title=The Racist Roots of Gun Control|last=Cramer|first=Clayton|date=Winter 1995|journal=Kan. J. Of Pub. Pol'y|url=http://libcom.org/library/racist-roots-gun-control-clayton-e-cramer}} | |||
| *{{cite journal|last=Davies|first=Ross|title=Which is the Constitution|journal=Green Bag 2d|volume=11|issue=2|pages=209–16|url=http://www.law.gmu.edu/assets/files/publications/working_papers/08-13%20Which%20Is%20the%20Constitution.pdf|date=Winter 2008}} | |||
| *{{cite journal|title=A Lawyer's Guide to the Second Amendment|last=Gunn|first=Steven H.|year=1998|journal=BYU L. Rev. |volume=35}} | |||
| *{{cite journal|title=Book Review: A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America|last=Hardy|first=David|volume=15|year=2007|journal=Wm. & Mary Bill of Rts. J.|url=http://papers.ssrn.com/sol3/papers.cfm?abstract_id=947334}} | |||
| *{{cite journal|last=Henigan|first=Denis|title=Arms, Anarchy, and the Second Amendment|journal=Val. L. Rev.|volume=26|issue=107|year=1991|url=http://www.gunlawsuits.org/defend/second/articles/anarchy.php|format=}} {{Dead link|date=June 2010}} | |||
| *{{cite journal|last1=Heyman|first1=Stephen|year=2000|title=Natural Rights and the Second Amendment|journal=Chi.-Kent. L. Rev.|volume=76|issue=237|url=http://works.bepress.com/cgi/viewcontent.cgi?article=1002&context=steven_heyman}} | |||
| *{{cite journal|last=Kates, Jr.|first=Don B.|year=1983|month=November|title=Handgun Prohibition and the Original Meaning of the Second Amendment|journal=Mich. L. Rev.|volume=82|issue=2|doi=10.2307/1288537|pages=204–273|publisher=Michigan Law Review, Vol. 82, No. 2|jstor=1288537}} | |||
| *{{cite journal|last=Konig|first=David Thomas|title=The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of "the Right of the People to Keep and Bear Arms"|url=http://www.historycooperative.org/journals/lhr/22.1/forum_konig.html|journal=Law and History Review|volume=22|issue=1|year=2004}} | |||
| *{{cite journal|last=Lund|first=Nelson|title=Heller and Second Amendment Precedent|url=http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1235537|journal=Lewis & Clark L. Rev.}} | |||
| *{{cite journal|title=Book Review: That Every Man Be Armed|last=Malcolm|first=Joyce Lee|volume=54|year=1986}} | |||
| *{{cite journal|last=Malcolm|first=Joyce Lee|title=The Role of the Militia in the Development of the Englishman's Right to be Armed — Clarifying the Legacy|journal=J. On Firearms & Pub. Pol'y|volume=5|year=1993|url=http://www.constitution.org/2ll/schol/jfp5ch04.htm}} | |||
| *{{cite journal|last=McAffee|first=Thomas B.|coauthors=Quinlan, Michael J.|title=Bringing Forward the Right to Keep and Bear Arms: Do Text, History, or Precedent Stand in the Way?|year=1997|month=March|journal=N.C. L. Rev.|url=http://www.saf.org/LawReviews/McAffeeAndQuinlan1.html}} | |||
| *{{cite journal|last=McClurg|first=Andrew|title=Lotts' More Guns and Other Fallacies Infecting the Gun Control Debate|volume=11|year=1999|journal=J. Of Firearms & Pub. Pol'y}} | |||
| *{{cite journal|last1=Merkel|first1=William|title=Heller and Scalia's Originalism|journal=Lewis & Clark L. Rev.|volume=13|issue=2|url=http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1422048_code695147.pdf?abstractid=1422048&mirid=5|date=Summer 2009}} | |||
| *{{cite journal|last=Pierce|first=Darell R.|title=Second Amendment Survey|journal=N. Ky. L. Rev.|url=http://www.saf.org/LawReviews/Pierce1.html|volume=10|issue=1|year=1982}} | |||
| *{{cite journal|last=Rakove|first=Jack|title=The Second Amendment: The Highest Stage of Originalism|journal=Chi.-Kent. L. Rev.|volume=76|year=2000}} | |||
| *{{cite journal|last=Reynolds|first=Glenn|author-link=Glenn Reynolds|journal=Tenn. L. Rev.|title=A Critical Guide to the Second Amendment|volume=62|issue=461|year=1995|url=http://papers.ssrn.com/sol3/papers.cfm?abstract_id=960788}} | |||
| *{{cite journal|journal=Wm. & Mary Bill of Rts. J.|author=Schmidt, Christopher|title=An International Human Right to Keep and Bear Arms|month=February|year=2007|volume=15|issue=3|page=983}} | |||
| *{{cite journal|last=Smith|first=Douglas|title=The Second Amendment and the Supreme Court|journal=Geo. J.L. & Pub. Pol'y|volume=6|url=http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1093751|year=2008}} | |||
| *{{cite journal|last=Volokh|first=Eugene|journal=NYU L. Rev.|volume=73|issue=793|year=1998|url=http://www.law.ucla.edu/volokh/common.htm|title=The Commonplace Second Amendment}} | |||
| *{{cite journal|last=Volokh|first=Eugene|title=Testimony of Eugene Volokh on the Second Amendment, Senate Subcommittee on the Constitution, September 23, 1998|journal=Cal. Pol. Rev.|date=November/December 1998|url=http://www.law.ucla.edu/volokh/beararms/testimon.htm#14}} | |||
| *{{cite journal|author=Weisselberg, Charles D.|url=http://aja.ncsc.dni.us/courtrv/cr44-3/CR44-3Weisselberg.pdf|title=Selected Criminal Law Cases in the Supreme Court's 2007–2008 Term, and a Look Ahead|journal=Court Review|volume=44|year=2009}} | |||
| *{{cite journal|last=Wills|first=Garry|year=1995|title=To Keep and Bear Arms|url=http://www.nybooks.com/articles/article-preview?article_id=1805|journal=N.Y. Rev. Of Books|volume=42|issue=14|issn=00287504}} | |||
| *{{cite journal|last=Winkler|first=Adam|journal=Mich. L. Rev.|title=Scrutinizing the Second Amendment|volume=105|date=February 2007}} | |||
| *{{cite journal|last=Winkler|first=Adam|journal=UCLA L. Rev.|volume=56|date=June 2009|title=Heller's Catch 22|ssrn=1359225}} | |||
| ===Other publications=== | |||
| *{{Cite journal|first=Lucinda|last=Maer|first2=Oonagh|last2=Gay|contribution=The Bill of Rights 1689|year=2009|publisher=Parliament and Constitution Centre|url=http://www.parliament.uk/documents/commons/lib/research/briefings/snpc-00293.pdf}} | |||
| {{Refend}} | |||
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| {{Wikiquote|Second Amendment to the United States Constitution}} | |||
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Revision as of 22:08, 30 April 2013
AMENDMENT II
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.