endstream In May of 1788, the pseudonymous author "Federal Farmer" (his real identity is presumed to be either Richard Henry Lee or Melancton Smith) wrote in Additional Letters From The Federal Farmer #169 or Letter XVIII regarding the definition of a "militia": A militia, when properly formed, are in fact the people themselves, and render regular troops in a great measure unnecessary. xXY7N3a `f4EPE,Z P]Q@QQ,(* *ky-dqYssO{oq8 dBR&DTj6zzOh7+= e l 3 3 ^ /`) b @6``7,:>W However, the Senate scribe added a comma before "shall not be infringed" and changed the semicolon separating that phrase from the religious exemption portion to a comma: 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.[131]. <>/Ff 1>> [169][170], The second, known as the "sophisticated collective right model", held that the Second Amendment recognizes some limited individual right. And by a manipulation through the use of oaths, disqualifying Quaker members, they made up a vast majority of the convention forming the new state constitution; it was only natural that they would assert their efforts to form a compulsory State Militia in the context of a "right" to defend themselves and the state. 10 0 obj The inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed;[88], It is relevant that Pennsylvania was a Quaker Colony traditionally opposed to bearing arms. [137], The first test of the militia system occurred in July 1794, when a group of disaffected Pennsylvania farmers rebelled against federal tax collectors whom they viewed as illegitimate tools of tyrannical power. endobj Here are the facts. One of the issues the Bill resolved was the authority of the King to disarm his subjects, after King Charles II and JamesII had disarmed many Protestants that were "suspected or knowne" of disliking the government,[37] and had argued with Parliament over his desire to maintain a standing (or permanent) army. /j7Vam'=^]2b2l[?bh)s*3a9:76j4.%(h$0"f "LOIGC0Rspbc:c;2-:DnE(t$D$68pCH4S5[*]U2AAuh#!M:r!T$'&Lt.sqO(9r*pY 46, at 371 (James Madison) (John. ", "Testimony of Eugene Volokh on the Second Amendment, Senate Subcommittee on the Constitution, September 23, 1998", "Selected Criminal Law Cases in the Supreme Court's 20072008 Term, and a Look Ahead", Second Amendment to the United States Constitution, "National Archives Scanned Image of the Bill of Rights, including the Second Amendment", "State Constitutional Right to Keep and Bear Arms Provisions", https://en.wikipedia.org/w/index.php?title=Second_Amendment_to_the_United_States_Constitution&oldid=1095593251, Amendments to the United States Constitution, United States federal firearms legislation, Articles with dead external links from March 2018, Wikipedia articles needing page number citations from February 2011, Articles with dead external links from April 2018, Articles with permanently dead external links, Wikipedia pages semi-protected against vandalism, All Wikipedia articles written in American English, Articles lacking reliable references from May 2021, Creative Commons Attribution-ShareAlike License 3.0, enabling the people to organize a militia system, safeguarding against tyrannical governments, suppressing insurrection, allegedly including, facilitating a natural right of self-defense. "[121], Legal historian Paul Finkelman argues that this scenario is implausible. endobj II) is not infringed by laws prohibiting the carrying of concealed weapons. James Madison's initial proposal for a bill of rights was brought to the floor of the House of Representatives on June 8, 1789, during the first session of Congress. Find out who really invented movable type, who Winston Churchill called "Mum," and when the first sonic boom was heard. and regulated militia." Instead, he argues, there would be more respect for the Heller decision, if the right acknowledged in Heller would have been forthrightly classified as an unenumerated right and if the issue in Heller would have been analysed under the Ninth Amendment to the United States Constitution. <> "[216], United States v. Schwimmer, 279 U.S. 644 (1929), concerned a pacifist applicant for naturalization who in the interview declared not to be willing to "take up arms personally" in defense of the United States. Such a flagitious attempt could only be made under some general pretence by a state legislature. %MCr_EL."7C(8)i2=tB!aGMjJk:odh0Qbf. A.Bi`:mHo![CK@h5X5$. Every subject had an obligation to protect the king's peace and assist in the suppression of riots. 26dPPJ6:7K02U7X@nmJ$5!pQB2Y+]o1qOH3M)*IBqCeO)4q_m,aLrB\P'a#"Q3$?A.1jnHpZCG:c? [253] The majority opinion also stated that: A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). [235], On March 21, 2016, in a per curiam decision the Court vacated a Massachusetts Supreme Judicial Court decision upholding the conviction of a woman who carried a stun gun for self-defense. 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. "[123][124][unreliable source], Finkelman recognises that James Madison "drafted an amendment to protect the right of the states to maintain their militias," but insists that "The amendment had nothing to do with state police powers, which were the basis of slave patrols."[62]. The need to have arms for self-defence was not really in question. 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". Some in the United States have preferred the "rights" argument arguing that the English Bill of Rights had granted a right. [12] Any labels of rights as auxiliary must be viewed in the context of the inherent purpose of a Bill of Rights, which is to empower a group with the ability to achieve a mutually desired outcome, and not to necessarily enumerate or rank the importance of rights. \8s%U;'IuG/clJZ#V*1%nG8N0:W-Ls-Sf^"JQmaq%?R,m@-]ocSEJr2%. A worthy member has asked, who are the militia, if they be not the people, of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c. by our representation? 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. [268], New York law prohibits the concealed carry of firearms without a permit. Such a circumstance has never happened, but this amendment would prevent it. <> Jd@;[70.-_XbP'+_XWA3at>/+iBX"X-Rc9VN@p8/Af;lZddk,c!K^p:VGTIN'SXq< A foundation of American political thought during the Revolutionary period was concerned about political corruption and governmental tyranny. The Second Amendment reads, 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. Referred to in modern times as an individuals right to carry and use arms for self-defense, the Second Amendment was envisioned by the framers of the Constitution, according to College of William and Mary law professor and future U.S. District Court judge St. George Tucker in 1803 in his great work Blackstones Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, as the true palladium of liberty. In addition to checking federal power, the Second Amendment also provided state governments with what Luther Martin (1744/481826) described as the last coup de grace that would enable the states to thwart and oppose the general government. Last, it enshrined the ancient Florentine and Roman constitutional principle of civil and military virtue by making every citizen a soldier and every soldier a citizen. [Q6PYkWTKf;hcG?j%K%18e"+icXNpgdn5O58J*E#%tB9@O%7>I\$2./N>,=0Yd[F2j._[JdV8)Z)(!H5)!V@Q"L&,q,F@ VfWSOWtePDoS>ROW:8"Z1BrlZ!tuC^U=!.n5:]T>]>^q4!XdafM^=`F[E,hDqC?5r Justice Scalia, writing for the Court in Heller: "In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the 'natural right of self-defence' and therefore struck down a ban on carrying pistols openly. 15 0 obj 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. Secondly, they also greatly feared "a ruinous slave rebellion in which their families would be slaughtered and their property destroyed." [165], The first, known as the "states' rights" or "collective right" model, held that the Second Amendment does not apply to individuals; rather, it recognizes the right of each state to arm its militia. 11250 Waples Mill Rd. In its full context it reads: Whereas the late King James the Second by the Assistance of diverse evil Councillors Judges and Ministers employed by him did endeavour to subvert and extirpate the Protestant Religion and the Laws and Liberties of this Kingdom (list of grievances including) by causing several good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and employed contrary to Law, (Recital regarding the change of monarch) thereupon the said Lords Spiritual and Temporal and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation taking into their most serious Consideration the best means for attaining the Ends aforesaid Doe in the first place (as their Ancestors 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 Defense suitable to their Conditions and as allowed by Law. If there should happen an insurrection of slaves, the country cannot be said to be invaded. The militia is divided into the organized militia, which consists of the National Guard and Naval Militia, and the unorganized militia.[144]. As noted, however, this included weapons that did not exist when the Second Amendment was enacted. However, they did widely agree on the Second Amendments intended meaning. 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. Most modern scholars recognize this fact. They cannot, therefore, suppress it without the interposition of Congress Congress, and Congress only [under this new Constitution; addition not mentioned in source], can call forth the militia. Scalia further specifies who holds this right: [The Second Amendment] surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home. >i@ZSWp)#Ek>!0R#Pb#Yud9dNGIN6HH>ZmK2?ATlm15d'm@8R "[T]he right to bear arms was articulated as a civic right inextricably linked to the civic obligation to bear arms for the public defense.". Subtracting about 350 duplicate matches, that leaves about 1,500 separate occurrences of "bear arms" in the 17th and 18thcenturies, and only a handful don't refer to war, soldiering or organized, armed action. Freed slaves also served in General Washington's army. They cite examples, such as the Declaration of Independence (describing in 1776 "the Right of the People to institute new Government") and the Constitution of New Hampshire (stating in 1784 that "nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind"). Please select which sections you would like to print: Does the Second Amendment allow owning guns for self-defense? [155], Abolitionist Lysander Spooner, commenting on bills of rights, stated that the object of all bills of rights is to assert the rights of individuals against the government and that the Second Amendment right to keep and bear arms was in support of the right to resist government oppression, as the only security against the tyranny of government lies in forcible resistance to injustice, for injustice will certainly be executed, unless forcibly resisted. 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.. Tucker's annotations for that latter section did not mention the Second Amendment but cited the standard works of English jurists such as Hawkins. <>stream [194], 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. [190] Fletcher meant "regular" in the sense of regular military, and advocated the universal conscription and regular training of men of fighting age. [2] George Mason, 3 Elliot, Debates at 425-426, [5] The Gun Control Act (1968), 18 U.S. Code 922. While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. [/PDF/Text] "But when all is said and done, the only certainty about, Article VI of the Articles of Confederation, quote of Justice John Paul Stevens in the Meaning of "well regulated militia" section below, List of firearm court cases in the United States, Ninth Amendment to the United States Constitution, Due Process Clause of the Fourteenth Amendment, New York State Rifle & Pistol Association, Inc. v. City of New York, New York State Rifle & Pistol Association, Inc. v. Bruen, New York State Rifle & Pistol Association, United States District Court for the Northern District of California, Gun ownership#United States gun ownership, Gun law in the United States#Second Amendment, List of amendments to the United States Constitution, "After Heller: What Now for the Second Amendment", "Justices, Ruling 54, Endorse Personal Right to Own Gun", "Justices Reject D.C. Ban On Handgun Ownership", "Split Decisions: Cases That Have Divided the Supreme Court in the 2007-08 Term", "Quick Reference to Federal Firearms Laws", "Justices Extend Firearm Rights in 5-to-4 Ruling", "Law Review: The Fourteenth Amendment and Incorporation", "Blackstone's Commentaries on the Laws of England Book the First Chapter the First: Of the Absolute Rights of Individuals, p.139", "United States of America v. Timothy Joe Emerson The Ratification Debates", "United States v. Cruikshank 92 U.S. 542 (1875)", "United States v. Miller, 307 U.S. 174 (1939)", "How the NRA Rewrote the Second Amendment Brennan Center for Justice", "Justices reject D.C. ban on handgun Ownership", "Americans have right to guns under landmark ruling", "How a comma gave Americans the right to own guns", "A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 17741875", https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/davlr31&id=319&men_tab=srchresults, "English Bill of Rights, 1689, "An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown", "The Second Amendment was ratified to preserve slavery", "2nd Amendment passed to protect slavery? Surely it protects a right that can be enforced by individuals. (See also gun control.). 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. "[137] 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 65percent. The final line states that citizens have the individual right to own firearms for lawful purposes and that the government may not interfere with that right. 17 0 obj And the Court's emphatic reliance on the claim "that the Second Amendment codified a pre-existing right," ante, at 19 [refers to p. 19 of the opinion], 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.[188]. @'V&B".>7j[34S6@3Tj_d74crfF0cW>@s)c9`MI1uJJm>XC+4/> 8o.eVN,hE5L]IZ38O2$pT'Lim_.s:ej@&NK'?j(*AG8@jaS5nRarQHQF$k>o1%R.l BYU's Corpus of Early Modern English, with 40,000 texts and close to 1.3 billion words, shows 1,572 instances of the phrase. [259] He finished with the following observation: "The pre-existing right that the Heller Court incorporated into the Second Amendment is very narrow. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. In a narrow 54 majority, delivered by Antonin Scalia, the Supreme Court held that self-defense was the central component of the amendment and that the District of Columbias prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense to be unconstitutional. [77][78], Some scholars have said that it is wrong to read a right of armed insurrection into 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. IHVqM"N9tL=th1Un,h3)dRE5YqAAdtW8%#!2#+BWcITMZtV=D#pQYnI9q(.cOl&B63"

This similarity is notable because it affirms that the Founding Fathers intended the Second Amendment to protect an individual right. A9f1.a4ckGWaC30V;. On July 21, Madison again raised the issue of his bill and proposed that a select committee be created to report on it. Though times have changed dramatically, the need for defenses afforded by the Second Amendment has remained much the same. "This is another protection against a possible abuse by Congress. Id. This has been the subject of one of the greatest pieces of fraud I repeat the word 'fraud' on the American public by special interest groups that I have ever seen in my lifetime.[184]. [271] Parker evolved into District of Columbia v. Heller, in which the U.S. Supreme Court determined that the Second Amendment protects an individual right. A1ECe8;8CG,*9,nhK]*;nZ3%4)hd@a4h;1dfj/li7P=V])2C1?ZT0@7eq$j+.^3JL First, the Court stated that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes." A notable exception to this general rule was Houston v. Moore, 18 U.S. 1 (1820), where the U.S. Supreme Court mentioned the Second Amendment in an aside. In contrast, Article I, Section 8, Clause 16 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.[113]. In: University of California at Davis Law Review 31 (1998): 309", "The Right to Bear Arms a Disfavored Right", "Gales & Seaton's History of Debates in Congress", "Journal of the House of Representatives of the United States", "Journal of the Senate of the United States of America", "Amendments to the Constitution of the United States", "Public Acts of the Fifty-Seventh Congress of the United States", "A Critical Guide to the Second Amendment", "The Second Amendment in the Nineteenth Century", "A View to the Constitution of the United States of America", "Amicus Brief, ACRU, Case No. 25 0 obj 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. In Heller, the Supreme Court resolved any remaining circuit splits by ruling that the Second Amendment protects an individual right. [125], In 1776, Thomas Jefferson had submitted a draft constitution for Virginia that said "no freeman shall ever be debarred the use of arms within his own lands or tenements". Yt>E)[LF@j7&?i"Uf%ZK/J9D;EFptH70#eGU1#Icl([P6&CO7ocMR1W

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". !87pXJiY`!3j`WZd!Q7A*'6JS$\Go\ 1 0 obj Id. endobj Do militias exist in the United States today? [135], On December 15, 1791, the Bill of Rights (the first ten amendments to the Constitution) was adopted, having been ratified by three-fourths of the states, having been ratified as a group by all the fourteen states then in existence except Connecticut, Massachusetts, and Georgia which added ratifications in 1939. But if "bear arms" means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add "for the purpose of killing game". Unlike federal organizations such as the National Guard, SDFs are under the sole jurisdiction of state or territorial governments and cannot be commanded by the federal government. 8-` a$@. at 635. This uncertainty was ended, however, in District of Columbia v. Heller (2008), in which the Supreme Court examined the Second Amendment in exacting detail. That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power. There was much debate amongst them about the amendments' proposed contents. *2c`"I@V]fK The right of self defence is the first law of nature: In most governments it has been the study of rulers to confine this right within the narrowest limits possible. 12 0 obj [70] 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. [148][149] Tucker wrote: 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. F;=>#H8dh05D%g0G&nFN`L!6bj8bO8bQp$O\OSo"]m$#XNAK#Yk=k'E,[^rC5a-N^ Bogus, Carl T. "The Hidden History of the Second Amendment". However, despite the use of person in that clause, the McDonald decision did not apply to noncitizens, because one member of the majority, Justice Clarence Thomas, refused in his concurring opinion to explicitly extend the right that far. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. The Court further stated that "the sorts of weapons protected were those `in common use at the time.'" [62], Most Southern white men betweenthe ages of 18 and 45 were required to serve on "slave patrols" which were organized groups of white men who enforced discipline upon enslaved blacks.