Whether the Second Amendment Secures an Individual Right

Whether the Second Amendment
Secures an Individual Right
The Second Amendment secures a right of individuals generally, not a right of states or a right
restricted to persons serving in militias.
August 24, 2004
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
I. The Unsettled Legal Landscape ....................................................................... 128
II. Textual and Structural Analysis...................................................................... 136
A. “The Right of the People”....................................................................... 136
B. “To Keep and Bear Arms” ...................................................................... 139
1. “To Keep . . . Arms” ......................................................................... 140
2. “To . . . Bear Arms” .......................................................................... 142
C. “A Well Regulated Militia, Being Necessary to the Security of a Free
State” ...................................................................................................... 144
1. The Limits of Prefatory Language .................................................... 145
2. The “Militia” ..................................................................................... 149
3. The “Well Regulated” Militia ........................................................... 154
4. The “Security of a Free State” .......................................................... 157
D. Structural Considerations ........................................................................ 161
1. The Bill of Rights ............................................................................. 161
2. The Militia Powers............................................................................ 163
III. The Original Understanding of the Right to Keep and Bear Arms ............... 165
A. The Right Inherited From England ......................................................... 166
B. The Right in America Before the Framing .............................................. 174
1. The Experience of the Revolution .................................................... 174
2. Early Constitutional Recognition of the Right .................................. 179
C. The Development of the Second Amendment ......................................... 185
1. Recommendations From the Ratification of the Original
Constitution ...................................................................................... 186
2. The Drafting and Ratification of the Second Amendment ................ 193
IV. The Early Interpretations .............................................................................. 203
A. The First Commentators .......................................................................... 204
B. The First Cases ........................................................................................ 210
1. Cases Before 1840 ............................................................................ 210
2. Cases From 1840 to the Civil War .................................................... 213
C. Reconstruction ......................................................................................... 223
D. Beyond Reconstruction ........................................................................... 226
V. Conclusion...................................................................................................... 230
126
Whether the Second Amendment Secures an Individual Right
The Second Amendment of the Constitution provides: “A well regulated Mili-
tia, being necessary to the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed.” You have asked for the opinion of this
Office on one aspect of the right secured by this Amendment. Specifically, you
have asked us to address the question whether the right secured by the Second
Amendment belongs only to the states, only to persons serving in state-organized
militia units like the National Guard, or to individuals generally. This memoran-
dum memorializes and expands upon advice that this Office provided to you on
this question in 2001.
As relevant to the question addressed herein, courts and commentators have
relied on three different interpretations of the Second Amendment. Under the
“individual right” view, the Second Amendment secures to individuals a personal
right to keep and to bear arms, whether or not they are members of any militia or
engaged in military service or training. According to this view, individuals may
bring claims or raise challenges based on a violation of their rights under the
Second Amendment just as they do to vindicate individual rights secured by other
provisions of the Bill of Rights.1 Under the “collective right” view, the Second
Amendment is a federalism provision that provides to states a prerogative to
establish and maintain armed and organized militia units akin to the National
Guard, and only states may assert this prerogative.2 Finally, there is a range of
intermediate views according to which the Amendment secures a right only to
select persons to keep and bear arms in connection with their service in an
organized state militia such as the National Guard. Under one typical formulation,
individuals may keep arms only if they are “members of a functioning, organized
state militia” and the state has not provided the necessary arms, and they may bear
arms only “while and as a part of actively participating in” that militia’s activities.3
In essence, such a view would allow a private cause of action (or defense) to some
persons to vindicate a state’s power to establish and maintain an armed and
organized militia such as the National Guard.4 We therefore label this group of
intermediate positions the “quasi-collective right” view.
The Supreme Court has not decided among these three potential interpretations,
and the federal circuits are split. The Executive Branch has taken different views
over the years. Most recently, in a 2001 memorandum to U.S. Attorneys, you
endorsed the view that the Second Amendment protects a “‘right of individuals,
including those not then actually a member of any militia or engaged in active
military service or training, to privately possess and bear their own firearms’” but
allows for “reasonable restrictions” designed “to prevent unfit persons from
1
See, e.g., United States v. Emerson, 270 F.3d 203, 220, 260 (5th Cir. 2001).
2
See, e.g., Silveira v. Lockyer, 312 F.3d 1052, 1060–61, 1086–87 (9th Cir. 2002).
3
Emerson, 270 F.3d at 219 (describing intermediate view); see also, e.g., Cases v. United States,
131 F.2d 916, 923 (1st Cir. 1942).
4
See, e.g., United States v. Parker, 362 F.3d 1279, 1283 (10th Cir. 2004).
127
Opinions of the Office of Legal Counsel in Volume 28
possessing firearms or to restrict possession of firearms particularly suited to
criminal misuse.”5
As developed in the analysis below, we conclude that the Second Amendment
secures a personal right of individuals, not a collective right that may only be
invoked by a state or a quasi-collective right restricted to those persons who serve
in organized militia units. Our conclusion is based on the Amendment’s text, as
commonly understood at the time of its adoption and interpreted in light of other
provisions of the Constitution and the Amendment’s historical antecedents. Our
analysis is limited to determining whether the Amendment secures an individual,
collective, or quasi-collective right. We do not consider the substance of that right,
including its contours or the nature or type of governmental interests that would
justify restrictions on its exercise, and nothing in this memorandum is intended to
address or call into question the constitutionality, under the Second Amendment,
of any particular limitations on owning, carrying, or using firearms.
This memorandum proceeds in four parts. Part I addresses the current unsettled
state of the law in this area. Part II demonstrates that the text and structure of the
Constitution support the individual right view of the Second Amendment. Part III
shows why this view finds further support in the history that informed the
understanding of the Second Amendment as it was written and ratified. Finally,
Part IV examines the views of commentators and courts closest to the Second
Amendment’s adoption, which reflect an individual right view, and then concludes
by describing how the modern alternative views of the Second Amendment took
hold in the early twentieth century.
I. The Unsettled Legal Landscape
Recent interpretations of the Second Amendment have been characterized by
disagreement and uncertainty. The Supreme Court has not decided the question
that we address here, and at least three views prevail in the federal courts of
appeals. The Executive Branch has taken varying positions, and the Amendment
has been the subject of extensive academic debate for the past two decades.
The Supreme Court’s most important decision on the meaning of the Second
Amendment, United States v. Miller,6 grew out of the enactment of the National
Firearms Act of 1934.7 That Act was the first federal regulation of private
5
Memorandum for United States Attorneys from the Attorney General, Re: United States v. Emer-
son (Nov. 9, 2001) (quoting Emerson, 270 F.3d at 260), reprinted in Brief for the United States in
Opposition, App., Emerson v. United States, 536 U.S. 907 (2002) (No. 01-8780) (denying certiorari).
You added that the Department of Justice “can and will continue to defend vigorously the constitution-
ality, under the Second Amendment, of all existing federal firearms laws.”
6
307 U.S. 174 (1939).
7
Ch. 757, 48 Stat. 1236.
128
Whether the Second Amendment Secures an Individual Right
firearms.8 It taxed (and thereby registered) transfers of sawed-off shotguns or rifles
capable of being concealed, machine guns, and silencers. It also taxed dealers in
such weapons and required anyone who possessed such a weapon acquired before
1934 to register it with federal tax authorities.
A Second Amendment challenge to this Act produced Miller in 1939, the clos-
est that the Supreme Court has come to interpreting the substance of the Amend-
ment. Miller and a co-defendant were indicted for transporting an unregistered
sawed-off shotgun in interstate commerce from Oklahoma to Arkansas, and the
district court sustained their Second Amendment challenge to the indictment. On
appeal by the government, neither defendant appeared or filed a brief.9 The Court,
in reversing and remanding, held that the sawed-off shotgun was not among the
“Arms” protected by the Second Amendment absent “evidence tending to show
that” its use or possession “at this time has some reasonable relationship to the
preservation or efficiency of a well regulated militia.” Citing an 1840 decision of
the Tennessee Supreme Court, Aymette v. State, the Court concluded that it was
not “within judicial notice” that a sawed-off shotgun was a weapon that was “any
part of the ordinary military equipment” or whose use “could contribute to the
common defence.” Absent evidence, therefore, the Court could not “say that the
Second Amendment guarantees the right to keep and bear such an instrument.”10
After this one-paragraph discussion, the Court quoted the powers that Article I,
Section 8, Clauses 15 and 16 of the Constitution grant to Congress to provide for
calling forth, organizing, arming, and disciplining “the Militia,” and stated that the
Second Amendment’s “declaration and guarantee” were made “[w]ith obvious
purpose to assure the continuation and render possible the effectiveness of” the
militia, and that the Amendment “must be interpreted and applied with that end in
view.”11 The Court then added a historical discussion demonstrating that “the term
Militia” as used in various provisions of the Constitution, including the Second
Amendment, referred to a body that “comprised all males physically capable of
acting in concert for the common defense,” who “were expected to appear” for
occasional training “bearing arms supplied by themselves and of the kind in
common use at the time,” which in the 1700s usually meant a “good” musket of
proper length.12
Miller did not resolve the question addressed in this memorandum. Although
the meaning of the decision is much debated, three points appear evident. First, the
8
See National Firearms Act: Hearings on H.R. 9066 Before the House Comm. on Ways and
Means, 73d Cong. 90 (1934) (statement of Ass’t Att’y Gen. Keenan); United States v. Lopez, 2 F.3d
1342, 1348 (5th Cir. 1993), aff’d, 514 U.S. 549 (1995).
9
307 U.S. at 175–77.
10
Id. at 178 (citing Aymette v. State, 21 Tenn. (2 Hum.) 154, 158 (1840)). We discuss Aymette be-
low in Part IV.B.2.
11
Id.12
Id. at 179; see id. at 179–82 (describing militia regulations, including arms requirements).
129
Opinions of the Office of Legal Counsel in Volume 28
holding was limited to the meaning of “Arms” in the Second Amendment and
whether a sawed-off shotgun is among the arms protected. In determining that
meaning, the Court also interpreted the term “Militia” as used in the Constitution.
Second, the Court did not categorically reject Miller’s Second Amendment
challenge. The Court’s decision to address the substance of this challenge to his
indictment, as opposed to concluding that only states could bring such a challenge,
appears to be inconsistent with a collective right view.
Finally, the Court did not clearly decide between the individual right and quasi-
collective right views. Its holding regarding the meaning of “Arms” is consistent
with either view: The Court’s limitation of “Arms” to those weapons reasonably
related to the preservation or efficiency of a well-regulated militia (such as those
that are “part of the ordinary military equipment” or that “could contribute to the
common defense”) could be consistent with a right to “keep and bear” such arms
that is restricted to service in an organized military unit such as the National
Guard; but that holding is also consistent with an individual right to keep and bear
whatever “Arms” the Amendment protects. Similarly, the Court’s reference to the
need to interpret the Second Amendment’s “declaration and guarantee” with the
“end in view” of furthering “the continuation and render[ing] possible the
effectiveness of” the militia could be consistent with a quasi-collective right view;
but it is also consistent with the understanding of the relationship between an
individual right to keep and bear arms and the “Militia” that prevailed at the time
of the Founding, an understanding confirmed by early authorities’ discussions of
the Second Amendment’s preface.13
Even so, absent from the Court’s opinion in Miller was any discussion of
whether the defendants were members of the National Guard or any other
organized military force, whether they were transporting the shotgun in the service
of such a force, or whether they were “physically capable of” bearing arms in one
and thus even eligible for service. The nature of the weapon at issue, not of the
defendants or their activities, appeared to be the key fact, and this aspect of the
opinion tends to point toward the individual right view rather than the quasi-
collective right view. In addition, Miller’s broad reading of “Militia” is most
consistent with the individual right view, as we explain below in Part II.C.2, and is
in tension with the quasi-collective right view, under which the militia is under-
stood to refer to select military units, akin to the modern National Guard, orga-
nized and armed by the states.14
13
See below Parts II.C (discussing Second Amendment’s preface), III.B–C (discussing Founders’
recognition that the individual right to arms furthered the citizen militia), IV.A (discussing early
commentators), IV.B.2 (discussing early cases), IV.D (discussing views of Thomas Cooley soon after
Civil War).
14
Later opinions of the Supreme Court appear to accept the individual right view, at least in dicta,
although none is dispositive. In Johnson v. Eisentrager, 339 U.S. 763 (1950), the Court rejected a
claim that the Fifth Amendment’s criminal procedure protections applied to nonresident enemy aliens
by pointing out, among other things, that a contrary view would require also applying the “companion
130
Whether the Second Amendment Secures an Individual Right
Three years after Miller, in Cases v. United States, the First Circuit read Miller
to turn solely on the type of weapon at issue and to suggest an individual right
view of the Second Amendment: “Apparently, then, under the Second Amendment
[as interpreted in Miller], the federal government . . . cannot prohibit the posses-
sion or use of any weapon which has any reasonable relationship to the preserva-
tion or efficiency of a well regulated militia.” But the court doubted that Miller
“was attempting to formulate a general rule applicable to all cases,” warned of the
consequences of such a view, and asserted that it was “unlikely that the framers of
the Amendment intended any such result.”15 The court, instead, adopted what
amounted to a quasi-collective right view: A person has no right under the Second
Amendment unless he is “a member of a[] military organization” or uses his
weapon “in preparation for a military career,” thus “contributing to the efficiency
of the well regulated militia.”16 Neither in support of its assertion about the
Framers’ intent nor in its paragraph fashioning this rule did the court cite any text
or other authority.
Also in 1942, the Third Circuit in United States v. Tot applied Miller’s defini-
tion of “Arms” to affirm the conviction of a defendant who received a pistol in
interstate commerce after having been convicted of a felony involving violence.17
Alternatively, the court rested its affirmance on the ground that the government
may prohibit such a convict from possessing a firearm.18 Although either of these
civil-rights Amendments” in the Bill of Rights, including the Second Amendment. Id. at 784 (“during
military occupation irreconcilable enemy elements, guerrilla fighters, and ‘werewolves’ could require
the American Judiciary to assure them freedoms of speech, press, and assembly as in the First
Amendment, right to bear arms as in the Second, security against ‘unreasonable’ searches and seizures
as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments”). In Konigsberg v.
State Bar of Cal., 366 U.S. 36 (1961), the Court, citing Miller, again equated the Second Amendment
right with the rights secured by the First Amendment. Id. at 49 n.10. More recent cases have assumed
an individual right in dicta by listing the Second Amendment right among the personal rights
composing the “liberty” that the Constitution’s due process provisions protect. See Planned Parent-
hood v. Casey, 505 U.S. 833, 847 (1992); Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977)
(plurality opinion) (quoting Poe v. Ullman, 367 U.S. 497, 542–43 (1961) (Harlan, J., dissenting)); id. at
542 (White, J., dissenting) (same as plurality). But see Adams v. Williams, 407 U.S. 143, 150 (1972)
(Douglas, J., dissenting) (“A powerful lobby dins into the ears of our citizenry that these gun purchases
are constitutional rights protected by the Second Amendment,” but “[t]here is no reason why all pistols
should not be barred to everyone except the police.”). The Court in Lewis v. United States, 445 U.S. 65(1980), rejected an equal protection challenge to a prohibition against felons possessing firearms. In a
one-sentence footnote explaining why it was applying rational basis review, the Court stated that such a
prohibition is not “based upon constitutionally suspect criteria” and does not “trench upon any
constitutionally protected liberties.” Id. at 65 n.8. Although this language is consistent with the view
that the Second Amendment does not secure a right of individuals, it is also consistent with the tradi-
tional understanding of the individual right view that the liberty protected by the Second Amendment
does not extend to convicted felons. See notes 19 & 29 below, and the discussions referenced therein.
15
131 F.2d 916, 922 (1st Cir. 1942).
16
Id. at 923.
17
131 F.2d 261, 266 (3d Cir. 1942), rev’d on other grounds, 319 U.S. 463 (1943).
18
Id. The same ground appears to have been available in Cases. See id., 131 F.2d at 919 n.1.
131
Opinions of the Office of Legal Counsel in Volume 28
views is consistent with an individual right,19 Tot added, in apparent dicta, a one-
paragraph historical discussion in support of the view that the Amendment “was
not adopted with individual rights in mind, but as a protection for the states in the
maintenance of their militia organizations against possible encroachments by the
federal power.”20 The court did not address the Amendment’s text but instead
chiefly relied on the Aymette case’s account of the right that emerged from the
English Revolution of 1688–1689.
Over the past few decades, the Executive Branch has taken differing views of
the right secured by the Second Amendment.21 In 1941, President Roosevelt signed
legislation authorizing requisitions of private property for war use that prohibited
requisitioning or new registration “of any firearms possessed by any individual for
his personal protection or sport” and, moreover, any impairing or infringing of
“the right of any individual to keep and bear arms.”22 In 1959, this Office reviewed
a bill that would have secured the custody and disposition of missiles, rockets, and
earth satellites. We questioned its definition of “missile,” which included “projec-
tile” and “seems to include conventional ammunition,” and we commented that if
the bill purported “to prohibit private individuals from acquiring, possessing, or
receiving any standard ammunition for firearms . . . . serious constitutional
problems would arise under the Second Amendment.”23 In commenting on similar
bills in 1961 and 1962, this Office cited and reaffirmed its 1959 memorandum.24 In
19
Regarding violent felons, although the case involved possession, the court relied on authority for
regulating the bearing of arms (banning carrying weapons concealed or to the terror of the people). For
more on-point authority, see proposals made during the ratifying conventions, discussed below in Part
III.C.1, and Emerson, 270 F.3d at 226 n.21; cf. Lewis, 445 U.S. at 65 n.8 (rejecting equal protection
challenge to prohibition of felon possessing a firearm); Richardson v. Ramirez, 418 U.S. 24, 53–55
(1974) (holding constitutional the disenfranchisement of convicted felons who had completed their
sentences and paroles).
20
131 F.2d at 266. The court cited some history from the Founding Era, which we address in Part
III.C.1.
21
We have not conducted a review of the government’s litigating positions in the numerous fire-
arms cases since Miller. In its brief in Miller, the government made two alternative arguments. The first
was consistent with a quasi-collective right view. See Brief for United States at 9–18, United States v.
Miller, 307 U.S. 174 (1939) (No. 696). The second (which the Court adopted) was consistent with
either a quasi-collective or individual right view. See id. at 18–20. Its present litigating position appears
to be consistent with your 2001 memorandum to U.S. Attorneys endorsing the individual right view.
See, e.g., United States v. Lippman, 369 F.3d 1039, 1045 (8th Cir. 2004) (Colloton, J., concurring in
part and concurring in the judgment).
22
Property Requisition Act, ch. 445, § 1, 55 Stat. 742, 742.
23
Memorandum for Lawrence E. Walsh, Deputy Attorney General, from Paul A. Sweeney, Acting
Assistant Attorney General, Office of Legal Counsel, Re: H.R. 232, 86th Cong., 1st Sess., a bill “To
provide for the securing of custody and disposition by the United States of missiles, rockets, earth
satellites, and similar devices adaptable to military uses, and for other purposes” at 1–2 (Apr. 9, 1959)
(emphasis added).
24
See Memorandum for Byron R. White, Deputy Attorney General, from Nicholas deB. Katzen-
bach, Assistant Attorney General, Office of Legal Counsel, Re: H.R. 2057, a bill to provide for the
securing of custody and disposition by the United States of missiles, rockets, earth satellites, and
132
Whether the Second Amendment Secures an Individual Right
1965, however, the Justice Department expressly adopted the collective right
interpretation in congressional testimony by Attorney General Katzenbach.25
Soon after, in 1968, Congress passed the first major federal gun regulation
since 1938, the Omnibus Crime Control and Safe Streets Act.26 This statute
produced a flurry of decisions in the federal courts of appeals rejecting the
individual right view. Following the Third Circuit’s dicta in Tot, the Fourth, Sixth,
Seventh, and Ninth Circuits eventually adopted the collective right view.27
Following the First Circuit in Cases, the Eighth, Tenth, and Eleventh Circuits
adopted quasi-collective right views.28 As in Tot and Cases, many of these cases,
particularly the initial ones, involved constitutional challenges by persons con-
victed of felonies or violent crimes,29 and some involved challenges to restrictions
similar devices adaptable to military use (May 8, 1961); Memorandum for Byron R. White, Deputy
Attorney General, from Nicholas deB. Katzenbach, Assistant Attorney General, Office of Legal
Counsel, Re: Proposed report of the Department of Defense on H.R. 2057 “To provide for the securing
of custody and disposition by the United States of missiles, rockets, earth satellites and similar devices
adaptable to Military uses, and for other purposes” at 1 (Mar. 22, 1962).
25
See Federal Firearms Act: Hearings Before the Subcomm. to Investigative Juvenile Delinquency
of the Senate Comm. on the Judiciary, 89th Cong. 40–41 (1965) (statement of Attorney General
Katzenbach). For subsequent treatment of the Second Amendment, see, e.g., Memorandum for Richard
G. Kleindienst, Deputy Attorney General, from William H. Rehnquist, Assistant Attorney General,
Office of Legal Counsel, Re: Proposed “Federal Gun Registration and Licensing Act of 1969” (Feb.
19, 1969) (in one-sentence discussion, citing Miller and Tot to find no “serious legal obstacle” under
Amendment to proposal for federal registration of firearms and limited federal licensing); Memoran-
dum for D. Lowell Jensen, Assistant Attorney General, Criminal Division, from Theodore B. Olson,
Assistant Attorney General, Office of Legal Counsel, Re: Proposed Legislation Relating to Firearms
and to Mandatory Sentencing, at 2 (May 27, 1981) (citing Miller as basis for “perceiv[ing] no basis for
suggesting that the [1968 Gun Control] Act so interferes with the powers of the States to raise militias
as to transgress the Second Amendment”); Firearm Owners’ Protection Act, Pub. L. No. 99-308,
§ 1(b)(1)(A), 100 Stat. 449, 449 (1986), codified at 18 U.S.C. § 921 note (2000) (law signed by
President Reagan that recognized “the right[] of citizens . . . to keep and bear arms under the second
amendment”).
26
Pub. L. No. 90-351, 82 Stat. 197.
27
See, e.g., Love v. Pepersack, 47 F.3d 120, 122–24 (4th Cir. 1995); United States v. Warin, 530
F.2d 103, 105–07, 108 (6th Cir. 1976) (dismissing “the erroneous supposition that the Second Amend-
ment is concerned with the rights of individuals rather than those of the States” and rejecting claim
involving gun admittedly bearing reasonable relationship to preservation or efficiency of the army);
Gillespie v. City of Indianapolis, 185 F.3d 693, 710–11 (7th Cir. 1999); Hickman v. Block, 81 F.3d 98,
99–102 (9th Cir. 1996). The Third Circuit’s present position is at least the quasi-collective right view,
if not the collective right view. See United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996).
28
See, e.g., United States v. Hale, 978 F.2d 1016, 1019–20 (8th Cir. 1992); United States v. Oakes,
564 F.2d 384, 387 (10th Cir. 1977); United States v. Wright, 117 F.3d 1265, 1272–74 (11th Cir. 1997),
vacated in part on other grounds, 133 F.3d 1412 (1998). These courts make clear that the right under
the quasi-collective right view protects only members of organized militia units such as the National
Guard, not members of the “militia” defined more broadly. Oakes, for example, rejected a claim based
on the defendant’s membership in the Kansas militia, which consisted of all able-bodied men between
twenty-one and forty-five. 564 F.2d at 387; see also Wright, 117 F.3d at 1271–74 (similar); Hale, 978
F.2d at 1020 (similar); Warin, 530 F.2d at 105, 106, 108 (similar).
29
See, e.g., United States v. Baer, 235 F.3d 561, 564 (10th Cir. 2000); Gillespie, 185 F.3d at 710–
11; Marchese v. California, 545 F.2d 645, 646 (9th Cir. 1976); United States v. Johnson, 497 F.2d 548,
133
Opinions of the Office of Legal Counsel in Volume 28
on carrying concealed weapons.30 These decisions did not analyze, at least not in
depth, the Amendment’s text or history. Rather, they relied on Tot or Cases (or
their progeny), claimed support from Miller, or both. As the Ninth Circuit recently
recognized in the course of adhering to its collective right position, these earlier
decisions reached their conclusions “with comparatively little analysis,” “largely
on the basis of the rather cursory discussion in Miller, and touched only briefly on
the merits of the debate.”31
In contrast, the burgeoning scholarly literature on the Second Amendment in
the past two decades has explored the meaning of the Second Amendment in great
detail. The collective right and quasi-collective right positions have many
adherents,32 although the preponderance of modern scholarship appears to support
the individual right view.33
550 (4th Cir. 1974) (per curiam); Cody v. United States, 460 F.2d 34, 35–37 (8th Cir. 1972); Stevens v.
United States, 440 F.2d 144, 149 (6th Cir. 1971); United States v. Synnes, 438 F.2d 764, 766 (8th Cir.
1971), vacated on other grounds, 404 U.S. 1009 (1972). Courts have recognized that such holdings
could be consistent with an individual right view. See United States v. Price, 328 F.3d 958, 961 (7th
Cir. 2003); supra note 19 (discussing Tot); cf. Emerson, 270 F.3d at 261 (upholding prohibition on
possession of firearm by person subject to domestic violence restraining order by concluding that
Amendment protected an individual right but finding no violation); Lippman, 369 F.3d at 1044–45
(Colloton, J.) (similar).
30
See Hickman, 81 F.3d at 99–103; Thomas v. Members of City Council of Portland, 730 F.2d 41,
42 (1st Cir. 1984) (per curiam). Courts have recognized that such holdings also could be consistent
with an individual right view. See Parker, 362 F.3d at 1285–86 (Kelly, J., concurring) (arguing for
upholding conviction on narrower ground that case involved reasonable restriction on concealed
weapons, and criticizing circuit courts, in interpreting Second Amendment, for ignoring “the universal
admonition to decide constitutional issues narrowly”); Part IV.B.2 (discussing cases recognizing indi-
vidual right but rejecting right to carry concealed weapons).
31
Silveira, 312 F.3d at 1063–64 & n.11.
32
For a symposium of articles spanning the views, see The Second Amendment Today: Historical
and Contemporary Perspectives on the Constitutionality of Firearms Regulation, 29 N. Ky. L. Rev.
643 (2002), and for articles critical of the individual right view, see Symposium on the Second
Amendment: Fresh Looks, 76 Chi.-Kent L. Rev. 3 (2000). See also, e.g., Garry Wills, A Necessary
Evil: A History of American Distrust of Government 207–21, 256–60 (1999); Andrew D. Herz, Gun
Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility, 75 B.U. L. Rev.
57 (1995); Richard M. Aborn, Essay, The Battle Over the Brady Bill and the Future of Gun Control
Advocacy, 22 Fordham Urb. L.J. 417 (1995); Carl T. Bogus, Essay, Race, Riots, and Guns, 66 S. Cal.
L. Rev. 1365 (1993); Dennis A. Henigan, Arms, Anarchy and the Second Amendment, 26 Val. U. L.
Rev. 107 (1991); Wendy Brown, Comment, Guns, Cowboys, Philadelphia Mayors, and Civic Repub-
licanism: On Sanford Levinson’s The Embarrassing Second Amendment, 99 Yale L.J. 661 (1989);
Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You
Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5 (1989); Samuel Fields, Guns, Crime and the
Negligent Gun Ownerin, 10 N. Ky. L. Rev. 141 (1982); Warren Spannaus, State Firearms Regulation
and the Second Amendment, 6 Hamline L. Rev. 383 (1983); cf. David Yassky, The Second Amendment:
Structure, History, and Constitutional Change, 99 Mich. L. Rev. 588 (2000); David C. Williams, Civic
Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale L.J. 551, 554–55
(1991).
33
See, e.g., 1 Laurence H. Tribe, American Constitutional Law 900 & 902 n.221 (3d ed. 2000);
Nelson Lund, The Ends of Second Amendment Jurisprudence: Firearms Disabilities and Domestic
Violence Restraining Orders, 4 Tex. Rev. L. & Pol. 157 (1999); Leonard W. Levy, Origins of the Bill
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Recent decisions of the Fifth and Ninth Circuits have begun to remedy the
relatively sparse judicial analysis of the meaning of the Second Amendment. In
2001, the Fifth Circuit in United States v. Emerson adopted the individual right
view, based on an extensive analysis of the Amendment’s text and history.34 The
following year, the Ninth Circuit in Silveira v. Lockyer rejected Emerson with an
extended counter-analysis and reaffirmed its adherence to the collective right
view.35 Six members of the Ninth Circuit dissented from denial of rehearing en
banc and endorsed an individual right view.36
In sum, the question of who possesses the right secured by the Second
Amendment remains open and unsettled in the courts and among scholars.
Accordingly, we turn to the Amendment’s text, as commonly understood at the
time of its adoption and interpreted in light of other provisions of the Constitution
and the Amendment’s historical antecedents, to discern its proper meaning.
of Rights 134 (1999); Ronald S. Resnick, Private Arms as the Palladium of Liberty: The Meaning of
the Second Amendment, 77 U. Det. Mercy L. Rev. 1 (1999); Brannon P. Denning, Gun Shy: The
Second Amendment as an “Underenforced Constitutional Norm,” 21 Harv. J.L. & Pub. Pol’y 719
(1998); L.A. Powe, Jr., Guns, Words, and Constitutional Interpretation, 38 Wm. & Mary L. Rev. 1311(1997); Nelson Lund, The Past and Future of the Individual’s Right to Arms, 31 Ga. L. Rev. 1 (1996);
Randy E. Barnett & Don B. Kates, Under Fire: The New Consensus on the Second Amendment, 45
Emory L.J. 1139 (1996); Glenn Harlan Reynolds & Don B. Kates, The Second Amendment and States’
Rights: A Thought Experiment, 36 Wm. & Mary L. Rev. 1737 (1995); David B. Kopel, It Isn’t About
Duck Hunting: The British Origin of the Right to Arms, 93 Mich. L. Rev. 1333, 1355 (1995); William
Van Alstyne, Essay, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236;
Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (1994);
Clayton E. Cramer, For the Defense of Themselves and the State: The Original Intent and Judicial
Interpretation of the Right to Keep and Bear Arms (1994); Akhil Reed Amar, The Bill of Rights as a
Constitution, 100 Yale L.J. 1131, 1162–68 (1991); Robert J. Cottrol & Raymond T. Diamond, The
Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309 (1991); Sanford
Levinson, Comment, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989); Nelson Lund,
The Second Amendment, Political Liberty, and the Right to Self-Preservation, 39 Ala. L. Rev. 103(1987); David T. Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second
Amendment, 9 Harv. J.L. & Pub. Pol’y 559 (1986); Don B. Kates, Jr., The Second Amendment: A
Dialogue, 49 Law & Contemp. Probs. 143 (Winter 1986); Stephen P. Halbrook, That Every Man Be
Armed: The Evolution of a Constitutional Right (1984); Don B. Kates, Jr., Handgun Prohibition and
the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983); see also Printz v.
United States, 521 U.S. 898, 938 n.2 (1997) (Thomas., J., concurring) (noting “growing body of scho-
larly commentary indicat[ing] that the [right]” is a personal one); Emerson, 270 F.3d at 220 (similar).
34
270 F.3d at 227–60.
35
312 F.3d at 1060–87.
36
Silveira v. Lockyer, 328 F.3d 567, 570 (9th Cir. 2003) (Kleinfeld, J., joined by Kozinski,
O’Scannlain, and T.G. Nelson, JJ., dissenting from denial of rehearing en banc); see 328 F.3d at 568
(Pregerson, J., same); id. at 568 (Kozinski, J., same); id. at 592 (Gould, J., joined by Kozinski, J.,
same). For other recent opinions of Ninth Circuit judges endorsing the individual right view and
criticizing Silveira, see Nordyke, 319 F.3d at 1195 (Gould, J., concurring); Nordyke v. King, 364 F.3d
1025, 1025 (9th Cir. 2004) (Kleinfeld, J., dissenting from denial of rehearing en banc); id. at 1026(Gould, J., joined by O’Scannlain, Kleinfeld, Tallman, and Bea, JJ., same).
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II. Textual and Structural Analysis
The Second Amendment of the United States Constitution, part of the Bill of
Rights, reads in full as follows:
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 in-
fringed.
The Amendment expressly protects a “right of the people,” which is “to keep and
bear Arms” and which has some relation to the prefatory declaration that a “well
regulated Militia” is necessary for the ultimate end of “the security of a free
State.” We address each of these phrases in turn and then consider how the
structure of the Constitution illuminates the Amendment’s meaning.
As explained below, the text of the Second Amendment points to a personal
right of individuals: A “right of the people” is ordinarily and most naturally a right
of individuals, not of a state and not merely of those serving the state as militia-
men. The phrase “keep arms” at the time of the Founding usually indicated the
private ownership and retention of arms by individuals as individuals, not the
stockpiling of arms by a government or its soldiers, and the phrase certainly had
that meaning when used in connection with a “right of the people.” While the
phrase “bear arms” often referred to carrying of arms in military service, it also
sometimes denoted carrying arms for private purposes. The Amendment’s
prefatory clause, considered under proper rules of interpretation, could not negate
the individual right recognized in the clear language of the operative clause. In any
event, the prefatory clause—particularly its reference to the “Militia,” which was
understood at the Founding to encompass all able-bodied male citizens, who were
required to be enrolled for service—is fully consistent with an individual right
reading of the operative language. Moreover, the Second Amendment appears in
the Bill of Rights amid amendments securing numerous individual rights, a
placement that makes it likely that the right of the people to keep and bear arms
likewise belongs to individuals. Finally, a consideration of the powers that the
original Constitution grants or allows over the militia makes it unlikely that the
Second Amendment would secure a collective or quasi-collective right.
A. “The Right of the People”
The Second Amendment’s recognition of a “right” that belongs to “the people”
indicates a right of individuals. The word “right,” standing by itself in the
Constitution, is clear. Although in some contexts entities other than individuals are
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Whether the Second Amendment Secures an Individual Right
said to have “rights,”37 the Constitution itself does not use the word “right” in this
manner. Setting aside the Second Amendment, not once does the Constitution
confer a “right” on any governmental entity, state or federal. Nor does it confer
any “right” restricted to persons in governmental service, such as members of an
organized military unit. In addition to its various references to a “right of the
people” discussed below, the Constitution in the Sixth Amendment secures
“right[s]” to an accused person, and in the Seventh secures a person’s “right” to a
jury trial in civil cases.38 By contrast, governments, whether state or federal, have
in the Constitution only “powers” or “authority.”39 It would be a marked anomaly
if “right” in the Second Amendment departed from such uniform usage throughout
the Constitution.
In any event, any possible doubt vanishes when “right” is conjoined with “the
people,” as it is in the Second Amendment. Such a right belongs to individuals:
The “people” are not a “State,” nor are they identical with the “Militia.” Indeed,
the Second Amendment distinctly uses all three of these terms, yet it secures a
“right” only to the “people.” The phrase “the right of the people” appears two
other times in the Bill of Rights, and both times refers to a personal right, which
belongs to individuals. The First Amendment secures “the right of the people
peaceably to assemble, and to petition the Government for a redress of grievanc-
es,” and the Fourth safeguards “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
In addition, the Ninth Amendment refers to “rights . . . retained by the people.”
We see no reason to read the phrase in the Second Amendment to mean something
other than what it plainly means in these neighboring and contemporaneous
amendments.
The Supreme Court, in interpreting the Fourth Amendment, likewise has rec-
ognized that the Constitution uses “the people,” and especially “the right of the
people,” to refer to individuals:
“[T]he people” seems to have been a term of art employed in select
parts of the Constitution. The Preamble declares that the Constitution
is ordained and established by “the People of the United States.” The
Second Amendment protects “the right of the people to keep and
bear Arms,” and the Ninth and Tenth Amendments provide that cer-
tain rights and powers are retained by and reserved to “the people.”
See also U.S. Const., Amdt. 1 (“Congress shall make no law . . .
37
For example, Article II of the Articles of Confederation, drafted a decade before the Constitution,
reserved to each state “every power, jurisdiction, and right” not expressly delegated to the federal
government.
38
In addition, the Copyright and Patent Clause authorizes Congress to grant an “exclusive Right” to
authors and inventors for a limited time. U.S. Const. art. I, § 8, cl. 8.
39
See, e.g., U.S. Const. art. I, § 1; id. art. I, § 8; id. art. II, § 1; id. art. III, § 1; id. amend. X.
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Opinions of the Office of Legal Counsel in Volume 28
abridging . . . the right of the people peaceably to assemble”) (em-
phasis added); Art. I, § 2, cl. 1 (“The House of Representatives shall
be composed of Members chosen every second Year by the People
of the several States”) (emphasis added). 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.40
Thomas Cooley, the leading constitutional scholar after the Civil War, took the
same view in explaining “the people” in the context of the First Amendment:
“When the term ‘the people’ is made use of in constitutional law or discussions, it
is often the case that those only are intended who have a share in the government
through being clothed with the elective franchise. . . . But in all the enumerations
and guaranties of rights the whole people are intended, because the rights of all
are equal, and are meant to be equally protected.”41
The Constitution confirms this meaning of “the people” as individuals by ex-
pressly distinguishing the “people” from the “States,” using each word to refer to a
distinct thing. Indeed, the Second Amendment itself refers separately to “the
people” and the “State.” And the difference is firmly established by the Tenth
Amendment, which distinguishes between the powers reserved “to the States” and
those reserved “to the people.” The “people” are the individuals who compose the
states, distinct from—and bearing their federal “rights” apart from—those
entities.42
Similarly, the Constitution gives distinct meanings to “the people” and the
“Militia.” Again, the Second Amendment itself is a notable example, referring to
40
United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990); see also id. at 279 (Stevens, J.,
concurring in judgment) (“aliens who are lawfully present in the United States are among those
‘people’ who are entitled to the protection of the Bill of Rights, including the Fourth Amendment”); id.at 287–88 (Brennan, J., dissenting) (similar; contending that “‘the people’” is broader than “‘citizens,’
‘freemen,’ ‘residents,’ or ‘the American people’”). The Ninth Circuit in Silveira did not discuss the
“right of the people” in the Second Amendment, and it disregarded Verdugo-Urquidez except to cite its
analysis of “the people” as an analogy in support of its own reading of “Militia.” See 312 F.3d at 1069–
70 & n.25, 1071 & n.27. While recognizing that “[t]he question . . . is not whether arms may be kept,
but by whom and for what purpose,” id. at 1074, the court in Silveira did not consider that the “who[]”
might be “the people” to whom the Second Amendment’s text—like that of the First, Fourth, and
Ninth—expressly gives the right.
41
Thomas M. Cooley, The General Principles of Constitutional Law in the United States of Ameri-
ca 267–68 (1880; reprint 2000) (emphasis added).
42
Of course the “people” might choose to exercise those individual rights in groups rather than
alone, as in the First Amendment right to assemble and petition, but that does not make their rights
“collective” or quasi-collective in the sense of depending on the will or actions of a state or on one’s
service to it.
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Whether the Second Amendment Secures an Individual Right
the “well regulated Militia” but granting the “right” to “the people.” The Constitu-
tion’s other references to “rights” of “the people,” noted above, cannot plausibly
be construed as referring to the “Militia.” In addition, when granting governmental
power over the militia, the Constitution speaks of the militia expressly, without
any reference to or suggestion of the broader “people.”43 And the Fifth Amend-
ment’s Grand Jury Clause, which distinguishes between all “person[s]” and those
serving in the army, navy, or “the Militia, when in actual service,” indicates that
where the Constitution addresses rights that turn on service in the militia it does so
expressly.
The only truly “collective” use of the “the people” at the time of the Founding
was to refer to the people as they existed apart from government or any service to
it. The Declaration of Independence refers to “one People” dissolving their
political bonds with another and forming their own nation, and “We the people”
created the Constitution in ratifying conventions chosen “by the People” of each
state.44 Thus, even in this context, the “people” are distinguished from “the
government” or “the State”; nor can the term plausibly be limited to the “Militia.”
And when “the people” appears in the phrase “the right of the people” in the
Constitution, we conclude that it indicates a personal right of individuals, whether
that be a right to assemble and petition, to be secure in one’s person and property,
or to keep and bear arms.
B. “To Keep and Bear Arms”
The “right of the people” that the Second Amendment secures is a right “to
keep and bear Arms.” As the previous subpart showed, those who hold the right
are, according to the text, “the people”—individuals—not the government or even
the militia. The phrase “to keep and bear Arms” is consistent with this conclusion:
The phrase “keep . . . Arms” reinforces it,45 and the phrase “bear Arms” is not
inconsistent with it.
43
U.S. Const. art. I, § 8, cls. 15–16; id. art. II, § 2, cl. 1.
44
The last quotation is from the Constitutional Convention’s resolution transmitting the proposed
Constitution to the Congress. 2 The Records of the Federal Convention of 1787, at 665 (Max Farrand
ed., rev. ed. 1966). This distinction between the “people” and the government is why the Founders
insisted that the Constitution be ratified by popularly elected special conventions rather than by the
state governments, to ensure its supremacy over those governments. See The Federalist No. 39, at 253–
54 (James Madison) (Jacob E. Cooke ed., 1961); James Madison, Notes of Debates in the Federal
Convention of 1787, at 70 (1987) (remarks of Madison, June 5, 1787); id. at 348–49 (remarks of
George Mason and Edmund Randolph, July 23, 1787); id. at 352–53 (remarks of Madison).
45
Those who reject the individual right view tend to neglect “keep” or to treat it as redundant with
“bear.” In Silveira, the court found it “not clear” why the word “was included in the amendment” and
concluded by summarizing the Amendment as merely protecting a right to “‘bear arms’” in conjunction
with militia service. 312 F.3d at 1074, 1086. See also Michael C. Dorf, What Does the Second Amendment
Mean Today?, 76 Chi.-Kent L. Rev. 291, 317 (2000) (contending without citation that “keep and bear” is
“a unitary phrase,” with “keep” adding nothing to “bear,” but admitting possibility that “the plain meaning
of ‘keep’ would have been sufficient to connote an individual right”); H. Richard Uviller & William G.
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Opinions of the Office of Legal Counsel in Volume 28
1. “To Keep . . . Arms”
In eighteenth-century English, an individual could “keep arms,” and keep them
for private purposes, unrelated to militia duty, just as he could keep any other
private property, and the phrase was commonly used in this sense. For example, in
Rex v. Gardner (K.B. 1738), a defendant charged with “keeping a gun” in
violation of a 1706 English statute (which prohibited commoners from keeping
specified objects or “other engines” for the destruction of game) argued that
“though there are many things for the bare keeping of which a man may be
convicted; yet they are only such as can only be used for destruction of the game,
whereas a gun is necessary for defence of a house, or for a farmer to shoot crows.”
The court agreed, reasoning that “a gun differs from nets and dogs, which can only
be kept for an ill purpose.”46 The Court of Common Pleas six years later treated
Gardner as having “settled and determined” that “a man may keep a gun for the
defence of his house and family,”47 and in 1752 the King’s Bench reiterated that “a
gun may be kept for the defence of a man’s house, and for divers other lawful
purposes.”48 The same usage appeared in an earlier prosecution of a man for
“keeping of a gun” contrary to a statute that barred all but the wealthy from
privately owning small handguns.49
William Blackstone, whose Commentaries on the Laws of England, first pub-
lished in the decade before the American Revolution, was the leading legal
authority in America at the Founding, wrote, without any reference to the militia,
of “person[s]” who are “qualified to keep a gun” and are “shooting at a mark,”
apparently on their own property.50 He also noted that certain persons could not
Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 Chi.-Kent L. Rev.
403, 424–25, 508, 549–50, 593 (2000) (similar).
46
2 Strange Rep. 1098, 1098 (applying 5 Ann., c. 14 (1706)); see Rex v. Gardner, 87 Eng. Rep.
1240, 7 Mod. Rep. 279 (K.B. 1739) (apparently later case, but similar); id. at 1241 (defendant, arguing
that “to charge only that he kept a gun is improper, for it includes every man that keeps a gun,” and that
guns are kept “for the defence of a man’s house”); id. (Lee, C.J.) (words of statute “do not extend to
prohibit a man from keeping a gun for his necessary defence”); id. (Probyn, J.) (“farmers are generally
obliged to keep a gun, and are no more within the Act for doing so than they are for keeping a cabbage-
net”).
47
Mallock v. Eastly, 87 Eng. Rep. 1370, 1374, 7 Mod. Rep. 482 (C.P. 1744).
48
Wingfield v. Stratford, 96 Eng. Rep. 787, 787, Sayer Rep. 15 (K.B. 1752).
49
King v. Silcot, 87 Eng. Rep. 186, 186, 3 Mod. Rep. 280 (K.B. 1690) (italics omitted) (interpreting
33 Hen. VIII, c. 6 (1541), and quashing indictment because it did not specifically allege that defen-
dant’s income was insufficient when he kept the gun).
50
4 William Blackstone, Commentaries *182. The qualification to which Blackstone refers is a
wealth requirement tied to the game laws, see id. at *174–75, which we discuss in Part III.A and
elsewhere. Regarding Blackstone’s influence and authority, see, e.g., Madison, Notes of Debates, supra
note 44, at 547 (remarks of Dickenson, Aug. 29, 1787); The Federalist No. 69, at 465 n.* (Alexander
Hamilton); The Federalist No. 84, at 577 (Alexander Hamilton); Malcolm, To Keep and Bear Arms,
supra note 33, at 130; Schick v. United States, 195 U.S. 65, 69 (1904). Edmund Burke informed
Parliament that “they have sold nearly as many of Blackstone’s Commentaries in America as in
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Whether the Second Amendment Secures an Individual Right
“keep arms in their houses,” pursuant to a statute that used “keep” to signify
private ownership and control over arms, wherever located.51 Colonial and early
state statutes similarly used “keep” to “describe arms possession by individuals in
all contexts,” including requiring those exempt from militia service (such as the
over-aged) to “keep” arms in their homes for both law enforcement and “the
defense of their homes from criminals or foreign enemies.”52 At the Massachusetts
Ratifying Convention in 1788, Samuel Adams proposed an amendment prohibit-
ing Congress from “prevent[ing] the people of the United States, who are peacea-
ble citizens, from keeping their own arms,” indicating ownership by individuals of
private arms.53 And that state’s Supreme Court, in a libel case soon after the
Founding, likened the “right to keep fire arms” to the freedom of the press, both
being individual but not unlimited rights—the former not protecting “him who
uses them for annoyance or destruction.”54 The basic dictionary definition of
“keep”—”[t]o retain” and “[t]o have in custody”—was consistent with this
specific meaning.55
In short, the phrase “keep arms” was commonly understood to denote owner-
ship of arms by private citizens for private purposes. When that phrase is read
together with its subject—”the right of the people”—the evidence points strongly
toward an individual right. Had the Constitution meant not to protect the right of
the whole “people” to “keep” arms but instead to establish a “right” of the states or
of only the members of their militias to store them, presumably it would have used
different language.56
England.” Speech Concerning Resolutions for Conciliation With the Colonies (Mar. 22, 1775), in
Edmund Burke, Pre-Revolutionary Writings 206, 225 (Ian Harris ed., 1993).
51
4 William Blackstone, Commentaries *56; see id. (person barred from “keeping arms in his
house”). See also 1 W. & M., 1st Sess., c. 15, § 3 (1688) (“no papist . . . shall or may have or keep in
his house, or elsewhere, or in the possession of any other person to his use, or at his disposition, any
arms, weapons, gunpowder, or ammunition”).
52
Kates, supra note 33, 82 Mich. L. Rev. at 215, 219.
53
We discuss this proposal below in Part III.C.1.
54
Commonwealth v. Blanding, 20 Mass. (3 Pick.) 304, 338 (1825).
55
Samuel Johnson, A Dictionary of the English Language (1755) (unpaginated). See Noah Webster,
An American Dictionary of the English Language (1828) (unpaginated) (defining “Keep” first as “To
hold; to retain in one’s power or possession”).
56
See Stephen P. Halbrook, A Right to Bear Arms: State and Federal Bills of Rights and Constitu-
tional Guarantees 94 (1989) (contending that “common linguistic usage of the day . . . referr[ed] to the
depositing of public arms in an arsenal, in contrast with the keeping of private arms by the people,” and
providing an example of the former usage in a 1789 state statute); cf. U.S. Const. art. I, § 10, cl. 3 (“No
State shall . . . keep Troops” without Congress’s consent) (emphasis added). When members of a
militia, as opposed to the people in general, retained their own arms for militia service, common usage
seems to have been to speak of them “providing” themselves with weapons, see Militia Act, ch. 33, § 1,
1 Stat. 271 (1792); Thomas Jefferson, Notes on the State of Virginia 88 (William Peden ed., 1955);
1 The Papers of George Mason, 1725–1792, at 212 (Robert A. Rutland ed., 1970), although we do not
mean to claim that one could not speak of militiamen “keeping” arms for militia use.
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2. “To . . . Bear Arms”
To “bear” was, at the Founding as now, a word with numerous definitions—
used with great “latitude” and “in very different senses,” as Samuel Johnson noted
in his dictionary.57 Its basic meaning was simply to “carry” or “wear” something,
particularly carrying or wearing in a way that would be known to others, such as in
bearing a message, bearing another person, or bearing something as a mark of
authority or distinction.58 As a result, “bear,” when taking “arms” as its object,
could refer to multiple contexts in which one might carry or wear arms in this
way.59 It is true that “bear arms” often did refer to carrying arms in military
service.60 But the phrase was not a term of art limited to this sense. Arms also
could be “borne” for private, non-military purposes, principally tied to self-
defense. For example, an early colonial statute in Massachusetts required every
“freeman or other inhabitant” to provide arms for himself and anyone else in his
household able to “beare armes,” and one in Virginia required “all men that are
fittinge to beare armes” to “bring their pieces” to church.61
There are also several examples closer to the Founding. In 1779, a committee
of eminent Virginians including Thomas Jefferson and George Mason, charged
with revising the new state’s laws, authored a bill penalizing any person who,
within a year of having violated a restriction on hunting deer, “shall bear a gun out
of his inclosed ground, unless whilst performing military duty.” This bill demon-
strates that to “bear a gun” was not limited to “performing military duty.” James
Madison submitted this bill to the Virginia legislature in 1785.62 Many early state
57
Johnson, Dictionary, supra note 55 (unpaginated).
58
See id. (defining “bear” as to “carry as a burden,” “convey or carry,” “carry as a mark of authori-
ty” (such as a sword), “carry as a mark of distinction” (such as to “bear arms in a coat”), and “carry as
in show”); Webster, American Dictionary, supra note 55 (unpaginated) (defining “bear” as to “sup-
port,” “sustain,” “carry,” “convey,” “support and remove from place to place,” “wear,” and “bear as a
mark of authority or distinction; as, to bear a sword, a badge, a name; to bear arms in a coat”).
59
In Muscarello v. United States, 524 U.S. 125 (1998), which involved a statute, the Court was
unanimous in understanding “bear arms” to refer generally to a person carrying arms upon his person
for the purpose of being armed and ready for offensive or defensive action, the dissent citing the
Second Amendment in support of this view. The majority gave “carries a firearm” a broader meaning.
Id. at 130; id. at 139–40, 143 (Ginsburg, J., dissenting).
60
See, e.g., Kates, supra note 33, 82 Mich. L. Rev. at 219 (explaining that, in early colonial stat-
utes, “‘bear’ did generally refer to the carrying of arms by militiamen”); St. George Tucker, 2
Blackstone’s Commentaries *408–09 n.1 (1803; reprint 1996) (“Tucker’s Blackstone”) (discussing
Virginia law exempting from militia duty those “religiously scrupulous of bearing arms”); The
Declaration of Independence para. 28 (1776) (“He has constrained our fellow Citizens taken Captive on
the high Seas to bear Arms against their country.”). Militia service was not, however, limited to
“military” action. The Constitution speaks of using the militia “to execute the Laws of the Union,”
which is distinct from both “repel[ling] Invasions” and “suppress[ing] Insurrections.” U.S. Const. art. I,
§ 8, cl. 15.
61
Quoted in Malcolm, To Keep and Bear Arms, supra note 33, at 139.
62
2 The Papers of Thomas Jefferson 443–44 (Julian P. Boyd ed., 1950). Concerning the Committee
of Revisors, see id. at 305; 1 Tucker’s Blackstone, supra note 60, Note F, at 444–45.
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Whether the Second Amendment Secures an Individual Right
constitutions, including some written before the Founding (Pennsylvania’s and
Vermont’s) and one written a month after Secretary of State Jefferson declared the
Bill of Rights ratified (Kentucky’s), protected an individual’s right to “bear arms”
in “defense of himself and the State” or in “defense of themselves and the State,”
indicating that a person might be said to “bear arms” in self-defense.63 A 1780
opinion of London’s Recorder (the city’s legal adviser and the primary judge in its
criminal court) on the legality of a private self-defense association acknowledged
“the rights of the people of this realm to bear arms, and to instruct themselves in
the use of them, collectively,” albeit within limits.64 In a newspaper commentary
published in major cities after Madison introduced the Bill of Rights in Congress,
a friend of his wrote that the proposed Second Amendment would “confirm[]” the
people’s “right to keep and bear their private arms.”65 Supreme Court Justice
Joseph Story, in his 1833 Commentaries on the Constitution of the United States,
paraphrased as a “right to bear arms” the right of English “subjects . . . [to] have
arms for their defence,” an individual right not tied to service in the militia.66
Finally, other examples of contemporaneous uses of “bear arms” to denote actions
of individuals appear in cases from the early 1800s up to the Civil War, discussed
below in Part IV.B.
The Minority Report issued by twenty-one delegates of the Pennsylvania Con-
vention that ratified the Federal Constitution in late 1787 illustrates the various
uses of the phrase at the time, including both the right of private “bearing” and the
duty of “bearing” for the government in the militia. The Report recommended
amending the Constitution to recognize “[t]hat the people have a right to bear arms
for the defence of themselves and their own State or the United States, or for the
purpose of killing game” and also urged exemption from militia service for those
“conscientiously scrupulous of bearing arms.” Although the Minority Report was
a product of Anti-Federalists, who had lost at that convention and who lost the
63
These are collected, through the Michigan Constitution of 1835, in Emerson, 270 F.3d at 230
n.29. We discuss the Pennsylvania and Vermont constitutions below in Part III.B.2. For an 1822
judicial interpretation confirming the plain meaning of the Kentucky provision as granting an
individual right, see Part IV.B.1 below. Regarding ratification of the Bill of Rights, see Part III.C.2
below.
64
Legality of the London Military Foot-Association (July 24, 1780), reprinted in William Blizard,
Desultory Reflections on Police: With an Essay on the Means of Preventing Crimes and Amending
Criminals 59, 59 (London 1785) (emphasis omitted). Regarding this opinion, which was “of wide
interest,” Leon Radzinowicz, 4 A History of English Criminal Law 107 (1968), see id. at 107–10;
Malcolm, To Keep and Bear Arms, supra note 33, at 133–34; and our further discussion below in Part
III.A. Regarding the Recorder, see 1 William Blackstone, Commentaries *76; 3 id. at *80–81 n.i; id. at
*334; John H. Langbein, Shaping the Eighteenth-Century Criminal Trial: A View From the Ryder
Sources, 50 U. Chi. L. Rev. 1, 8, 17–19, 34–36 (1983).
65
This essay by Tench Coxe is discussed below in Part III.C.2.
66
Joseph Story, Commentaries on the Constitution of the United States § 980, at 695 (Ronald D.
Rotunda & John E. Nowak eds., 1833, reprint 1987) (“Abridgement”). The English right is discussed
below in Part III.A.
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battle over ratifying the Constitution, we are unaware of any contemporaneous
criticisms that this widely circulated document misused language in giving such
senses to the phrase “bear arms.”67
In sum, although “bear arms” often referred to carrying or wearing arms in
connection with military duty, it was not limited to such a meaning. When, as in
the Second Amendment, those words are used in conjunction with “keep arms,”
which commonly did refer to private action, and the whole phrase “to keep and
bear Arms” is used in the context of a “right of the people,”68 we conclude that the
core, operative text of the Amendment secures a personal right, which belongs to
individuals. We next consider whether the Amendment’s prefatory language
requires a different conclusion.
C. “A Well Regulated Militia, Being Necessary to the
Security of a Free State”
A feature of the Second Amendment that distinguishes it from the other rights
that the Bill of Rights secures is its prefatory subordinate clause, declaring: “A
well regulated Militia, being necessary to the security of a free State, . . . .”
Advocates of the collective right and quasi-collective right interpretations rely on
this declaration, particularly its reference to a well-regulated militia. On their
interpretation, the “people” to which the Second Amendment refers is only the
67
See 2 Bernard Schwartz, The Bill of Rights: A Documentary History 665, 672 (1971). We discuss
the Pennsylvania Convention, including the Minority Report and its critics, in Part III.C.1 below.
Regarding the Report’s wide circulation, see id. at 628; 2 The Documentary History of the Ratification
of the Constitution 617 (Merrill Jensen ed., 1976) (note); 15 id. at 7–10 (John P. Kaminski & Gaspare
J. Saladino eds., 1984) (note).
68
In addition, the Second Amendment’s reference to “Arms” in the context of “keep” and “bear”
reinforces our view that it protects an individual right. The mere word “Arms” could denote any
weapon, including artillery. See Webster, American Dictionary, supra note 55 (unpaginated) (defining
“arms” as “Weapons of offense, or armor for defense and protection of the body” and including
explanation of “Fire arms” as “such as may be charged with powder, as cannon, muskets, mortars
&c.”; also defining the verb “arm” as including “[t]o furnish with means of defense; to prepare for
resistance; to fortify”); Johnson, Dictionary, supra note 55 (unpaginated) (defining “arms” as
“Weapons of offence, or armour of defence”). Certainly Congress’s power in Article I, Section 8,
Clause 16 to provide for “arming” the militia includes such weapons, particularly given that the
Constitution contemplates that the states will use militias to defend themselves against surprise
invasions. See U.S. Const. art. I, § 10, cl. 3 (“No State shall, without the Consent of Congress, . . . keep
Troops, . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of
delay.”); Militia Act § 4, 1 Stat. 271, 272 (1792) (requiring each division of state’s militia to have a
company of artillery and troop of horse). If the Second Amendment protected a state prerogative to
have organized and effective militias, one would expect it to protect all of the arms essential for that
purpose, including artillery. Yet its text suggests that the “Arms” that it protects do not include those
that “the people” could not both “keep” and “bear”—those that an individual could not store and carry.
This use of “Arms” points toward an individual right view rather than a right of states to have select
“militias,” and it also seems more consistent with an individual right than a quasi-collective right view,
as the latter requires that the “militia” of which the claimant is a member be fully organized and
equipped. See, e.g., United States v. Parker, 362 F.3d 1279, 1283 (10th Cir. 2004).
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Whether the Second Amendment Secures an Individual Right
“people” in a collective, organized capacity as the state governments, or a small
subset of the “people” actively organized by those governments into military
bodies. “People” becomes interchangeable with the “State” or its “organized
militia.”
This argument misunderstands the proper role of such prefatory declarations in
interpreting the operative language of a provision. A preface can illuminate
operative language but is ultimately subordinate to it and cannot restrict it.
Wholly apart from this interpretive principle, this argument also rests on an
incomplete understanding of the preface’s language. Although the Amendment’s
prefatory clause, standing alone, might suggest a collective or possibly quasi-
collective right to a modern reader, when its words are read as they were under-
stood at the Founding, the preface is fully consistent with the individual right that
the Amendment’s operative language sets out. The “Militia” as understood at the
Founding was not a select group such as the National Guard of today. It consisted
of all able-bodied male citizens. The Second Amendment’s preface identifies as a
justification for the individual right that a necessary condition for an effective
citizen militia, and for the “free State” that it helps to secure, is a citizenry that is
privately armed and able to use its private arms.
1. The Limits of Prefatory Language
In the eighteenth century, the proper approach to interpreting a substantive or
“operative” legal provision to which a lawmaker had joined a declaration (whether
a “Whereas” clause or analogous language) was (1) to seek to interpret the
operative provision on its own, and (2) then to look to the declaration only to
clarify any ambiguity remaining in the operative provision.69 It was desirable, if
consistent with the operative text, to interpret the operative provision so that it
generally fulfilled the justification that the preface declared, but a narrow declara-
tion provided no warrant for restricting the operative text, and the preface could
not itself create an ambiguity. This rule applied equally to declarations located in
any part of a law, not simply at the beginning of it, and to both statutes and
constitutions. We therefore consider this rule applicable to the Second Amend-
ment.
69
This rule assumes that the legislature incorporated the declaration during the ordinary legislative
process, not adopting it separately (with little consideration) or leaving it to others to insert. 2A
Norman J. Singer, Sutherland on Statutory Construction § 47.04, at 220 & 223 (6th ed. 2000); see 1
James Kent, Commentaries on American Law 516 (9th ed. 1858) (noting that titles and preambles
“generally . . . are loosely and carelessly inserted, and are not safe expositors of the law”); see also
King v. Williams, 96 Eng. Rep. 51, 52, 1 Blackst. Rep. 93 (K.B. 1758) (“The conciseness of the title
shall not control the body of the Act. The title is no part of the law; it does not pass with the same
solemnity as the law itself. One reading is often sufficient for it.”); Thomas Jefferson, A Manual of
Parliamentary Practice for the Use of the Senate of the United States 41 (1801; reprint 1993) (noting
desirability that preamble “be consistent with” a bill but possibility that it may not be, because of
legislative procedures).
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English Parliaments of the 1700s and late 1600s regularly included prefaces
throughout statutes—not only at the beginning (constituting the first section) but
also in particular sections.70 The same rule of interpretation applied to both uses of
prefaces. As an example of the latter, a section of a bankruptcy statute recited the
problem of persons who “convey their goods to other men upon good considera-
tion” before becoming bankrupt, yet continue to act as owners of the goods; the
immediately following clause of the statute provided that if a bankrupt debtor
possessed “any goods or chattels” with “the consent and permission of the true
owner,” was their reputed owner, and disposed of them as an owner, such property
should repay the debtor’s debts rather than return to the true owner. The difficulty
arose when the bankrupt debtor possessed property that never had been his, such
as property in trust. A leading case in 1716 read the enacting language to apply
even in such cases and rejected the argument “that the preamble shall restrain the
operation of the enacting clause; and that, because the preamble is too narrow or
defective, therefore the enacting clause, which has general words, shall be
restrained from its full latitude, and from doing that good which the words would
otherwise, and of themselves, import.”71 The King’s Bench reiterated the rule in
1723, rejecting in a criminal case an argument based on declaratory language
introducing part of a statute: “Now those general words in the enacting part, shall
never be restrained by any words introducing that part; for it is no rule in the
exposition of statutes to confine the general words of the enacting part to any
particular words either introducing it, or to any such words even in the preamble
itself.” The court acknowledged that “a construction which agrees with the
preamble” was desirable, “but not such as may confine the enacting part to it.”72
70
Examples of both include the statutes discussed or cited below in Part III.A. See, e.g., the Militia
Act of 1662, 13 & 14 Car. II, c. 3, §§ 1, 3, 14, 20; the Game Act of 1671, 32 & 33 Car. II, c. 25, §§ 1,
2, 4, 5, 6, 7; the Act to Disarm Papists, 1 W. & M., 1st Sess., c. 15, §§ 1, 3 (1688); the Bill of Rights, 1
W. & M., 2d Sess., c. 2, §§ 1, 9 (1689); the Game Act of 1692, 4 & 5 W. & M., c. 23, §§ 1, 3, 4, 5, 7,
10; the act repealing the ban on hail-shot, 6 & 7 Will. III, c. 13, §§ 1, 3 (1695); and the Game Act of
1706, 5 Ann., c. 14, §§ 1, 3, 5.
71
Copeman v. Gallant, 24 Eng. Rep. 404, 407, 1 P. Wms. Rep. 314 (Ch. 1716); id. at 405 (quoting
statute) (emphases added); see 2A Sutherland, supra note 69, § 47.04, at 220 (“Copeman . . . estab-
lished the rule that the preamble could not be used to restrict the effect of the words used in the
purview.”). In Ryall v. Rolle, 26 Eng. Rep. 107, 1 Atkyns Rep. 165 (Ch. 1749), although the question
was not at issue, see id. at 116 (Lee, C.J.); id. at 118 (Hardwicke, Ch.), some judges voiced disagree-
ment with Copeman’s interpretation of that statute because of the great “inconvenience” it would cause
to commercial arrangements such as trusts, agency, and bailment, but they still recognized the general
rule, see id. at 113 (Parker, C.B.) (recognizing another case holding “[t]hat the preamble shall not
restrain the enacting clause” and recognizing that Copeman “exploded the notion of the preamble’s
governing the enacting clause,” but adding that “if the not restraining the generality of the enacting
clause will be attended with an inconvenience, the preamble shall restrain it”); id. at 118 (Hardwicke,
Ch.) (agreeing with Parker).
72
King v. Athos, 8 Mod. Rep. 136, 144 (K.B. 1723). See id. (Fortescue, J.) (“[I]t must be admitted,
that a preamble may be a good expositor of a statute; but what was offered on the other side is not
properly a preamble, but only introductive to an enacting part of a statute: besides . . . preambles are no
more than recitals of inconveniences, which do not exclude any other to which a remedy is given by the
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Blackstone summed up this understanding in explaining that, although the
words of an enacting clause were “generally to be understood in their usual and
most known signification,” yet if its words, after due analysis, were “still dubious”
or “ambiguous, equivocal, or intricate,” one might look to the context, which
included “the proeme, or preamble, [which] is often called in to help the construc-
tion of an act of parliament.”73 Chancellor Kent, a leading early American
commentator, likewise reasoned that a preamble, although not technically part of
the law, “may, at times, aid in the construction of” a statute or “be resorted to in
order to ascertain the inducements to the making” of it, “but when the words of the
enacting clause are clear and positive, recourse must not be had to the preamble.”74
Prefatory language also was common in constitutions, and this rule of construc-
tion applied in the same way. Speaking of the preamble of the whole federal
Constitution, Joseph Story in his Commentaries reiterated that statutory preambles
are “properly resorted to, where doubts or ambiguities arise upon the words of the
enacting part; for if they are clear and unambiguous, there seems little room for
interpretation,” and he could not see “any reason why, in a fundamental law or
constitution of government,” the same rule should not apply.75 Similarly, the
Supreme Court has held that the Constitution’s preamble lacks any operative legal
effect and that, even though it states the Constitution’s “general purposes,” it
cannot be used to conjure a “spirit” of the document to confound clear operative
language;76 the Court has, however, also sought some guidance from the preamble
when the operative text did not resolve a question.77
The same reasoning applied to declaratory phrases in the language of individual
constitutional provisions, the closest analogies to the Second Amendment. The
1784 New Hampshire Constitution provided: “In criminal prosecutions, the trial of
enacting part.”); Kinaston v. Clark, 26 Eng. Rep. 526, 527, 2 Atkyns Rep. 204 (Ch. 1741) (“There are
many cases where the enacting part in a statute extends further than the preamble even in criminal
matters . . . .”).
73
1 William Blackstone, Commentaries *59–60. See Crespigny v. Wittenoom, 100 Eng. Rep. 1304,
1305, 4 Term Rep. 791 (K.B. 1792) (Buller, J.) (“I agree that the preamble cannot controul the enacting
part of a statute, which is expressed in clear and unambiguous terms. But if any doubt arise on the
words of the enacting part, the preamble may be resorted to, to explain it.”); id. at 1306 (Grose, J.)
(“Though the preamble cannot controul the enacting clause, we may compare it with the rest of the Act,
in order to collect the intention of the Legislature.”).
74
1 Kent, Commentaries, supra note 69, at 516. See Mills v. Wilkins, 87 Eng. Rep. 822, 822–23, 6
Mod. Rep. 62 (Q.B. 1703) (“[T]he title is not the law, but the name or description given to it by the
makers: just as the preamble of a statute is no part thereof, but contains generally the motives or
inducements thereof.”); see also 2A Sutherland, supra note 69, § 47.04, at 221–22; id. at 224–25 (“The
preamble can neither limit nor extend the meaning of a statute which is clear. Similarly, it cannot be
used to create doubt or uncertainty.”).
75
1 Joseph Story, Commentaries on the Constitution of the United States §§ 459–460, at 443–44
(1833; reprint 1991).
76
Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905).
77
See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 821 n.31, 838 (1995); id. at 846 & n.1
(Thomas, J., dissenting); see also Stenberg v. Carhart, 530 U.S. 914, 953 (2000) (Scalia, J., dissenting).
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facts in the vicinity where they happen, is so essential to the security of the life,
liberty and estate of the citizen, that no crime or offence ought to be tried in any
other county than that in which it is committed.”78 Even though in some cases a
trial outside of the county where a crime was committed might bring it closer to
the crime scene, or a judge might think a trial in the county where the crime
occurred not “essential to” (or even in conflict with) “the security of the life,
liberty and estate of the citizen,” neither fact would justify disregarding the clear
operative language of this constitutional provision.79 Likewise, the pre-1787
constitutions of Massachusetts, New Hampshire, and Vermont declared that
freedom of speech in the legislature was “so essential to the rights of the people”
that words spoken there could not the basis of “any” suit.80 One could not use this
declaration to avoid the clear immunity conferred by the operative language, even
where particular statements made in the legislature—such as an egregious slander
unrelated to a pending bill—were not thought “essential to” the people’s rights.81
In addition, Madison’s draft of what became the First Amendment’s Free Press
Clause read: “the freedom of the press, as one of the great bulwarks of liberty,
shall be inviolable.”82 The emphasized declaratory language presumably could not
have qualified or limited the freedom clearly conferred, such as by exempting
from protection, as hostile to “liberty,” publications advocating absolute monar-
chy.
A discussion at the Constitutional Convention demonstrates the same under-
standing, including that prefaces in a particular constitutional provision might
merely state policy. What would become Article I, Section 8, Clause 16 of the
Constitution, empowering Congress to “provide for organizing, arming, and
disciplining the Militia,” had reached its final form. But George Mason proposed
“to preface” it with the phrase, “And that the liberties of the people may be better
secured against the danger of standing armies in time of peace.” He wished “to
insert something pointing out and guarding against the danger of” standing armies.
Madison spoke in favor, because the preface would “discountenance” a peacetime
78
N.H. Const. art. I, § 17 (1784), reprinted in 4 The Federal and State Constitutions, Colonial
Charters, and Other Organic Laws 2455 (Francis Newton Thorpe ed., 1909; reprint 1993).
79
See Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793, 798, 804–
05, 808–09 (1998); Emerson, 270 F.3d at 234 n.32.
80
Mass. Const. pt. I, art. 21 (1780), reprinted in 3 Federal and State Constitutions, supra note 78,
at 1892; N.H. Const. art. I, § 30 (1784), reprinted in 4 id. at 2457; Vt. Const. ch. I, § 16 (1786),
reprinted in 6 id. at 3753.
81
See Volokh, supra note 79, 73 N.Y.U. L. Rev. at 794–95, 799–800. As with statutes, constitu-
tional prefaces and operative language often do not match exactly, the latter sometimes being
overinclusive compared to the declaration and sometimes underinclusive. See id. at 801–07 (providing
examples).
82
Creating the Bill of Rights: The Documentary Record from the First Federal Congress 12 (Helen
E. Veit et. al. eds., 1991) (emphasis added).
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Whether the Second Amendment Secures an Individual Right
standing army while “not restrain[ing] Congress from establishing” one.83 No
doubt an organized, armed, and disciplined militia would generally “better secure”
liberties against peace-time standing armies (by reducing the need for such armies
and the threat from any that were created), and thus the operative grant of power
“agree[d] with” the declaratory preface;84 but the preface did not restrain or
confine the power.
We see no reason to except the Second Amendment from this broadly applica-
ble interpretive rule.85 Thus, the Amendment’s declaratory preface could not
overcome the unambiguously individual “right of the people to keep and bear
Arms” conferred by the operative text—even if the collective right and quasi-
collective right schools’ understanding of the preface’s meaning were correct, and
even though the preface might help resolve any ambiguities concerning the scope
of that individual right remaining after one has analyzed the operative text. At the
same time, any interpretation of the right ought, if possible consistent with its text,
to further the declared justification in general, as the Court in Miller recognized
when it stated that interpretation of the Amendment should keep the “end in view”
of assuring the continuation and rendering possible the effectiveness of the
militia.86 As we explain in the remainder of this subpart—considering in turn the
meaning of “Militia,” what a “well regulated Militia” was, and the ultimate end of
“the security of a free State”—the individual right view does further the ends set
forth in the prefatory language, and therefore the preface, properly understood, is
fully consistent with the individual right interpretation of the operative text.
2. The “Militia”
A key claim of the collective right and quasi-collective right schools with
regard to the Second Amendment’s preface is that a “well regulated Militia” is a
standing military organization or body of troops, of limited size, organized and
governed by state governments, albeit concurrently with the federal government
(akin to voluntary select forces such as the National Guard that were established
over a hundred years after the Amendment was adopted). As a result, the argument
goes, the Amendment merely protects the states against federal efforts to under-
mine such forces, either by protecting the states directly or by protecting only
persons serving in those forces.87
83
Madison, Notes of Debates, supra note 44, at 639 (Sept. 14, 1787). Mason’s proposal was
defeated, apparently on the ground that it improperly impugned soldiers. Id. at 639–40.
84
Athos, 8 Mod. Rep. at 144.
85
The Ninth Circuit in Silveira provided only one paragraph on the proper relationship between a
preface and operative language, concluding that the latter must be read “to implement the policy” of the
former. See 312 F.3d at 1075.
86
United States v. Miller, 307 U.S. 174, 178 (1939).
87
See, e.g., Silveira, 312 F.3d at 1069–72.
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This argument disregards the understanding of the “Militia” at the time of the
Founding. As used in the Second Amendment, and elsewhere in the Constitution,
“Militia” referred to a body consisting of all adult male citizens up to a certain age
(anywhere from forty-five to sixty), the goal being to include all who were
physically capable of service. It was not limited to a select force of persons in
active military duty. This entire population of able-bodied male citizens was
involuntarily “enrolled” by local militia officials, somewhat as men now register
for the selective service (except that enrollment required no action by the citizen),
and all enrolled citizens were required by law to join occasional “exercise”—to
which they were expected to bring their own, private arms—but they otherwise
remained in civilian life. The militia “rest[ed] upon the shoulders of the people,”88
because, as then understood, it consisted of a large number of the “people” at any
one time and of all of the able-bodied white men for a substantial portion of their
lives. It was the people embodied as an armed force. Thus, a key aspect of the
term “Militia” was the composition of the force to which it referred. As a result,
the reference to the “Militia” in the Second Amendment’s preface “agrees with”
the individual right that the Amendment’s operative text sets out,89 because
securing to “the people” a right to keep and to bear their own arms made such a
broad-based, privately armed force more likely to exist and to be effective.90
The term “Militia” was used in contrast both to a regular, standing army and,
more importantly, to a “select militia” or “corps.”91 The latter distinction is evident
throughout contemporaneous usage, “select militia” denoting a significantly
smaller body, consisting either of better trained military professionals who could
remain active for extended periods, or of those chosen selectively, perhaps
because of political or other discrimination.92 For example, at the Constitutional
Convention, George Mason mentioned the need for federal regulation of the
88
Nordyke v. King, 364 F.3d 1025, 1031 (9th Cir. 2004) (Gould, J., joined by O’Scannlain, Klein-
feld, Tallman, and Bea, J.J., dissenting from denial of rehearing en banc).
89
Athos, 8 Mod. Rep. at 144.
90
See Kopel, supra note 33, 93 Mich. L. Rev. at 1355 (“[O]ne of the reasons Congress guaranteed
the right of the people to keep and bear arms was so that a popular militia could be drawn from the
body of the people.”) (footnote omitted). Thus, the Silveira court’s description of the militia as “the
state-created and -organized military force,” 312 F.3d at 1069, is technically true but critically
incomplete, because it ignores the composition of the militia.
91
On the former distinction, see U.S. Const. art. I, § 8, cls. 12–16; art. I, § 10, cl. 3; art. II, § 2, cl.
1; amend. V; Articles of Confed. art. VI (contrasting a “body of forces” with “a well regulated and
disciplined militia, sufficiently armed and accoutered.”); Authority of President to Send Militia Into a
Foreign Country, 29 Op. Att’y Gen. 322, 322 (1912) (Wickersham, A.G.) (“[T]he militia has always
been considered and treated as a military body quite distinct and different from the Regular or standing
army.”).
92
See Malcolm, To Keep and Bear Arms, supra note 33, at 125 (discussing concerns of English
Whigs after the English Revolution of 1688–1689 to maintain a citizens’ militia as opposed to a select
one); id. at 95–97, 103, 105 (discussing purges and selective disarmament of militia by Charles II and
James II); id. at 63 (discussing Charles II’s select militia).
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Whether the Second Amendment Secures an Individual Right
militia to ensure that it was adequately trained. He suspected that the states would
not relinquish “the power over the whole” but would “over a part as a select
militia.” He added that “a select militia” would be “as much as the Gen[eral]
Gov[ernment] could advantageously be charged with,” and thus suggested that it
receive power only over “one tenth part” of the militia per year. Oliver Ellsworth,
later to be a Senator and Chief Justice, objected because a “select militia” either
would be impractical or would cause “a ruinous declension of the great body of
the Militia.”93 Edmund Randolph, leader of the Virginia delegation, similarly
equated the militia with “the whole mass” of the people.94
In the debate over ratification, both sides shared this broad understanding of
“Militia.” Among the Federalists, Madison in The Federalist predicted that a
federal army bent on oppression would be opposed by “a militia amounting to near
half a million of citizens with arms in their hands”—a group that he likened to the
citizen bands that had fought in the Revolution and linked to “the advantage of
being armed, which the Americans possess over the people of almost every other
nation.”95 Alexander Hamilton described the militia as “the great body of the
yeomanry and of the other classes of the citizens,” “the great body of the people,”
and “the whole nation,” which he contrasted with a “select corps.”96 A Connecticut
Federalist writing as “The Republican” praised as “a capital circumstance in
favour of our liberty” that “the people of this country have arms in their hands;
they are not destitute of military knowledge; every citizen is required by Law to be
a soldier; we are all martialed into companies, regiments, and brigades, for the
defence of our country.”97 In a speech, later published, in response to South
Carolina’s vote to ratify, David Ramsay, a state legislator and delegate to the
ratifying convention, praised the Constitution’s militia powers and asked, “What
European power will dare to attack us, when it is known that the yeomanry of the
country uniformly armed and disciplined, may on any emergency be called out to
our defence . . . ?”98 Maryland’s “Aristides,” in a fairly widely circulated pamphlet,
wrote simply that “the militia . . . is ourselves.”99
Among the Anti-Federalists, Mason, in the Virginia Ratifying Convention,
asked: “Who are the Militia? They consist now of the whole people,” while
93
Madison, Notes of Debates, supra note 44, at 478, 483–84 (Aug. 18, 1787).
94
Id. at 515 (Aug. 23). John Adams also praised a militia of the whole people, as opposed to a
select band, in works that he published in 1776 and 1787. See Part III.B.1 below.
95
The Federalist No. 46, at 321 (James Madison). The population of all white males aged 16 and
over in the 1790 census was 813,298, making Madison’s number a fair approximation of the citizen
militia. See U.S. Dept. of Commerce, Bureau of the Census, 1 Historical Statistics of the United States
16 (1975).
96
The Federalist No. 29, at 183–85 (Alexander Hamilton).
97
1 The Debate on the Constitution 712 (Bernard Bailyn ed., 1993).
98
2 id. at 507. For Ramsey’s biography, see id. at 1009.
99
Aristides, Remarks on the Proposed Plan of a Federal Government (1788), reprinted in 15
Ratification, supra note 67, at 522, 533; see id. at 518–20 (note regarding circulation and responses).
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warning that the new Congress might exempt the rich from service.100 The Federal
Farmer, a leading Anti-Federalist essayist, explained that the “militia, when
properly formed, are in fact the people themselves,” and counseled “that regular
troops, and select corps, ought not to be kept up without evident necessity.” If the
federal government properly organized, armed, and disciplined the militia—
including in it, “according to the past and general usage of the states, all men
capable of bearing arms”—the country would have a “genuine” rather than “select
militia.” Under such wise regulation, “the militia are the people.”101
This common sense of “Militia” also appeared in the House of Representatives’
debates on the Second Amendment, discussed below in Part III.C.2, and the
Second Congress applied it in the first Militia Act, enacted in 1792, two months
after the Second Amendment was officially ratified. The Act required “each and
every able-bodied white male citizen of the respective states, resident therein, who
is or shall be of the age of eighteen years, and under the age of forty-five years,” to
be “enrolled in the militia” by the local commanding officer. Each enrolled citizen
was required to provide his own arms—“a good musket or firelock” or “a good
rifle”—plus ammunition and accouterments. These private arms were exempted
from “all suits, distresses, executions or sales, for debt or for the payment of
taxes.” The enrollees were required to appear, armed, “when called out to exercise,
or into service,” although Congress left the details of exercise to each state.102
(Since 1792, Congress has only expanded this definition, such as by eliminating
the racial restriction and including some women.103) Finally, Noah Webster in his
1828 American dictionary defined “militia” in accord with this Act and the above
understanding: “The militia of a country are the able bodied men organized into
companies, regiments and brigades, with officers of all grades, and required by
law to attend military exercises on certain days only, but at other times left to
pursue their usual occupations.” They were “enrolled for discipline, but not
engaged in actual service except in emergencies.”104
The analogy of the “Militia” to a select (and voluntary) corps such as the Na-
tional Guard is further strained by the common law prohibition against the King’s
100
10 Ratification, supra note 67, at 1312 (John P. Kaminski & Gaspare J. Saladino eds., 1993)
(June 16, 1788).
101
Federal Farmer No. 18 (1788), reprinted in 2 The Complete Anti-Federalist 341–42 (Herbert J.
Storing ed., 1981); see also Federal Farmer No. 3 (1787), reprinted in id. at 242. Publius (Hamilton)
recognized the Federal Farmer letters as among the best of the Anti-Federalists’. See The Federalist
No. 68, at 457–58.
102
Act of May 8, 1792, ch. 33, §§ 1–2, 1 Stat. at 271–72; see 2 Tucker’s Blackstone, supra note 60,
at *409 n.1.
103
10 U.S.C. § 311(a) (2000) (including in the militia “all able-bodied males at least 17 years of
age and . . . under 45 years of age,” both citizens and those “who have made a declaration of intention
to become” citizens, certain men between 45 and 64, and “female citizens of the United States who are
members of the National Guard”).
104
Webster, American Dictionary, supra note 55 (unpaginated) (emphasis added).
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deploying the militia outside the country—a rule that Blackstone celebrated as part
of the individual’s “absolute right” of “personal liberty.”105 The Constitution
appears to incorporate this rule, by specifying domestic reasons for the federal
government to call out the militia: “to execute the Laws of the Union, suppress
Insurrections and repel Invasions.”106 Implicit in the common law rule is that the
militia was so composed that its members ought to be treated as ordinary citizens
doing their duty, rather than as soldiers. President Taft’s Attorney General
reaffirmed this ancient rule in 1912 as Congress was developing the modern
National Guard, which, partly to avoid this rule, was made a component of the
regular military forces.107
The Supreme Court in Miller, relying on a brief historical survey, summarized
as follows the definition of “Militia” that we have set out and explained above:
The signification attributed to the term Militia appears from the de-
bates 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 capa-
ble 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.108
If, as the Court recognized and historical usage confirms, the “Militia” was
composed of the general population of able-bodied men, an individual right of the
whole people to keep and bear arms would make eminent sense. A large portion of
the “people” would be required to appear occasionally for service or simply
training, and they were expected to bring their private arms. If the people could be
disarmed, it would then, among other things, be impossible for militiamen to make
the required provision of their privately provided arms when called up, and the
citizen militia would be undermined.
105
1 William Blackstone, Commentaries *134, *138, *413.
106
U.S. Const. art. I, § 8, cl. 15.
107
Authority of President to Send Militia Into a Foreign Country, 29 Op. Att’y Gen. 322, 322
(1912) (Wickersham, A.G.); see Perpich v. Dep’t of Defense, 496 U.S. 334, 341–44 (1990).
108
307 U.S. at 179 (emphases added); see id. at 179–82 (collecting historical support); Presser v.
Illinois, 116 U.S. 252, 265 (1886) (“It is undoubtedly true that all citizens capable of bearing arms
constitute the reserved military force or reserve militia of the United States as well as of the States.”);
Maryland v. United States, 381 U.S. 41, 46 (1965) (describing pre-World War I militia as “a citizen
army”).
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3. The “Well Regulated” Militia
Advocates of the collective right and quasi-collective right views argue that the
Amendment’s reference in its preface to a “well regulated” militia indicates that
the preface refers to a select, organized body akin to today’s National Guard. They
claim additional support for this argument from usage of the term “Militia”
elsewhere in the Constitution, in the context of governmental power over the
Militia.109 No doubt the “Militia” was, through enrollment, exercise, and command
when activated by a governor or president, a creature of the government. But it
does not follow that the meaning of “Militia” as used in the Second Amendment
depended on congressional (or state) legislation organizing or regulating the
Militia. The word’s use elsewhere in the Constitution and the Amendment’s
prefatory reference to a “well regulated Militia,” properly understood, in fact
suggest the opposite.
The Constitution distinguishes not only between the “Militia” and the regular
armed forces but also between different parts and conditions of the militia. The
latter distinctions appear in (1) Article I, Section 8, Clause 15, authorizing
Congress to “provide for calling forth the Militia”; (2) the immediately following
clause authorizing Congress 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”; (3) Article II, Section 2, Clause 1, making the
President Commander in Chief of “the Militia of the several States” when “called
into the actual Service of the United States”; and (4) the Fifth Amendment, which
withholds the protection of the Grand Jury Clause from persons whose cases arise
in the militia, but only when “in actual service in time of War or public danger”
(cases in the army and navy, by contrast, are always exempted).
These provisions indicate that the militia is of a size that will make complete
mobilization usually unnecessary, that members of the militia will often not be in
service (or that not all parts of the militia will always be in service), and that when
any members are not employed in “actual service,” they ought to be treated as
ordinary citizens. The “Militia” is both large and largely latent. In addition, the
reference to “organizing . . . the Militia” suggests an entity that in some sense
exists and is definable apart from congressional regulation, in contrast to “Ar-
mies,” which Congress must “raise,” pursuant to another power in Article I,
Section 8. Congress might not “organiz[e]” all of the “Militia”; it might organize
some parts differently from others; and it would be expected to give necessary
precision to the definition of the body’s membership by laying down a specific age
range for service (as Congress did in the first Militia Act). But the background
meaning of the word would remain. As an Anti-Federalist writer recognized:
“[T]he militia is divided into two classes, viz. active and inactive,” the former, he
109
See, e.g., Silveira, 312 F.3d at 1069–72.
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Whether the Second Amendment Secures an Individual Right
expected, likely to “consist of young men chiefly.”110 Thus, the use of “Militia”
throughout the Constitution is consistent with the common understanding of the
word at the Founding.
Nor does the preface’s phrase “well regulated” alter this sense of “Militia”;
rather, it presupposes it. Having an armed citizenry, which the operative text
protects by establishing a right of individuals, becomes a necessary (albeit not
sufficient) condition for a well-regulated militia once one properly defines
“Militia.” As one academic commentator has put it: “The Second Amendment
simply forbids one form of inappropriate regulation,” which would ensure a militia
that was not well regulated, namely “disarming the people from whom the militia
must necessarily be drawn. . . . [T]he one thing the government is forbidden to do
is infringe the right of the people, who are the source of the militia’s members, to
keep and bear arms.”111 A militia composed of the whole body of able-bodied male
citizens and only infrequently meeting for state-sponsored exercise is more likely
to be “well regulated” in the bearing of arms, and can more readily be trained and
disciplined, if its members possess their private arms and are accustomed to them
from usage for private purposes between exercises.112 And an individual right of
the people to have arms has the indirect effect of securing the ability of states at
least to have their militias armed.113 As the Court stated in Miller, the Second
Amendment seeks “to assure the continuation and render possible the effective-
ness of” the militia of “all males physically capable of acting in concert for the
common defense.”114 It protects the minimum for a well-regulated citizen militia.
In addition, the standard for a “well regulated Militia,” as opposed to a well-
regulated select militia, or well-regulated army, presupposes the background
meaning of “Militia” by taking into account the body’s large size and varied
source. As the Militia Act of 1792 contemplated, it might be enough to have a
county officer enroll persons and ensure that they possessed arms and knew how
to use them through basic training once or twice a year. Similarly, the Virginia
Declaration of Rights of 1776 defined “a well-regulated militia” as simply being
“composed of the body of the people, trained to arms.”115 And the first New York
Constitution declared that “the militia” should always “be armed and disciplined,
110
Aristocrotis, The Government of Nature Delineated, or An Exact Picture of the New Federal
Constitution (1788), reprinted in 3 Complete Anti-Federalist, supra note 101, at 202.
111
Lund, supra note 33, 31 Ga. L. Rev. at 25, 26.
112
See Silveira, 328 F.3d at 579 (Kleinfeld, J., joined by Kozinski, O’Scannlain, and T.G. Nelson,
JJ., dissenting from denial of rehearing en banc) (“The panel seems to imagine that a well regulated
militia is a people disarmed until the government puts guns in their hands after summoning them to
service.”).
113
See Part IV.A below for St. George Tucker’s discussion of a similar point.
114
307 U.S. at 178–79 (emphasis added).
115
Va. Decl. of Rights § 13 (1776), reprinted in 7 Federal and State Constitutions, supra note 78,
at 3814.
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and in readiness for service” because “it is the duty of every man who enjoys the
protection of society to be prepared and willing to defend it.”116
Even those Founders skeptical of the benefits of the citizen militia, and who
advocated a more highly regulated select corps, still recognized the distinction
between the proper regulation of the two. Alexander Hamilton in The Federalist
argued that it would be both “futile” and “injurious” for Congress to attempt to
“disciplin[e] all the militia of the United States.” Most enrolled citizens would
need extensive “time and practice . . . 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 intitle them to the character of a well-regulated
militia.” But such a burden on so many citizens “would be a real grievance to the
people and a serious public inconvenience and loss.” Thus, as to “the people at
large,” he expected that “[l]ittle more can reasonably be aimed at . . . than to have
them properly armed and equipped” and, for this purpose, “assemble them once or
twice” a year. He therefore recommended that Congress use its constitutional
power to provide for organizing the militia also to form a select militia—“a select
corps of moderate size.”117 Hamilton was reiterating George Washington’s well-
known recommendations to Congress for a two-tiered militia, consisting of (1)
“the Citizens of America . . . from 18 to 50 years of age,” who would be put “on
the Militia Rolls” and given minimal training, and (2) “a Corps in every State”
consisting of those aged 18–25.118 From the opposite political pole, the Federal
Farmer likewise recognized that Congress might make just such distinctions in
“modelling the militia” and warned that creation of a “select corps of militia”
would lead to “inattention to the general militia.”119
This understanding of the “well regulated Militia,” and of the possibilities for
congressional organization of it (or not), leads to a view of the preface that not
only fits the meaning of “Militia” in common contemporaneous usage, including
throughout the Constitution, but also most agrees with the meaning of the Second
Amendment’s operative text setting out a “right of the people.” The “well
regulated Militia” and the “people” were not identical, but because of their close
relationship, a right of the latter—of individuals—to keep and bear arms would
facilitate the former. By contrast, a view rejecting the individual right on the basis
of the preface’s reference to the “well regulated Militia” struggles to harmonize
the operative language establishing a seemingly general and individual right with
that prefatory language. As Justice Scalia has written, a narrow definition of
“Militia” “produces a guarantee that goes far beyond its stated purpose—rather
116
N.Y. Const. § 40 (1777), reprinted in 5 id. at 2637.
117
The Federalist No. 29, at 183–84 (Alexander Hamilton) (emphases added).
118
Sentiments on a Peace Establishment (1783), reprinted in 3 The Founders’ Constitution 129
(Phillip B. Kurland and Ralph Lerner eds., 1987) (emphases added).
119
Federal Farmer No. 3, reprinted in 2 Complete Anti-Federalist, supra note 101, at 242; Federal
Farmer No. 18, reprinted in id. at 342 (emphases added).
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Whether the Second Amendment Secures an Individual Right
like saying ‘police officers being necessary to law and order, the right of the
people to carry handguns shall not be infringed.’”120 The “Militia” on this errone-
ous view consists only of those few citizens whom a state chooses to specially
organize, arm, and train into professional units, which requires one to reject the
normal, unambiguous meaning of the operative text as overbroad, rewriting “the
people” to mean either “the select militia” or “the State.” If that were the true
meaning, the Amendment’s authors chose singularly inartful language.
4. The “Security of a Free State”
The preface’s express linking of the “well regulated Militia” to the ultimate
necessity of “the security of a free State” is also fully consistent with the conclu-
sion that the “right of the people to keep and bear Arms” is a personal one. The
security of a free state at the Founding no doubt was understood to include those
things necessary to the security of any state, such as “to execute the Laws . . . ,
suppress Insurrections and repel Invasions.”121 But the security of a free state was
not just these things. It also was understood to include the security of freedom in a
state. Thus, while Blackstone recognized the individual liberty of the press as
“essential to the nature of a free state,” pre-1787 state constitutions described the
same right as “essential to the security of freedom in a state.”122 The Preamble of
the Constitution states the goal of making “secure the Blessings of Liberty,” and
the Fourth Amendment highlights the importance of the individual “right of the
people to be secure in their persons, houses, papers, and effects.” A secure free
state was one in which liberties and rights were secure.
This clause of the Second Amendment’s preface reinforces the individual right
to keep and bear arms in two related ways—by supporting the broad meaning of
“Militia” set out above, and by identifying a benefit for individuals of the right
that the operative text secures. First, to say at the time of the Founding that the
militia was necessary to the security of a “free State” was to refer to the citizen
militia, composed of the people, who retained the right to keep and use their
private weapons. A select militia, particularly if it existed to the exclusion of the
citizen militia, might undermine the free state, if citizens excluded from it were
left defenseless, or if it disarmed the citizens and infringed their other rights (or
both). As we show in Part III.A, that is what had happened in England during the
120
Antonin Scalia, Response, in A Matter of Interpretation: Federal Courts and the Law 137 n.13
(1997).
121
U.S. Const. art. I, § 8, cl. 15; see id. amend V (discussing militia service in “War or public
danger”).
122
4 William Blackstone, Commentaries *151; e.g., Mass. Const. pt. I, art. 16 (1780), reprinted in 3
Federal and State Constitutions, supra note 78, at 1892. Similarly, the English Declaration of Rights,
well known to the Founding Generation, see Part III.A below, charged King James II with having
sought to “subvert and extirpate” the “liberties of this kingdom” by taking several actions “utterly and
directly contrary to” the “freedom of this realm.” 1 W. & M., 2d Sess., c. 2, § 1 (1689).
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strife that produced in 1689 the express right of individual subjects to have and use
arms for their defense, the ancestor of the right in the Second Amendment.123 Thus
the Virginia Declaration of Rights, the only state bill of rights before the adoption
of the Second Amendment that expressly tied the militia to the security “of a free
State,” also emphasized that the “militia” was “composed of the body of the
people.”124
Contemporaneous writers across the political spectrum acknowledged the link
between the citizen militia and securing the freedom of a state. “The Republican”
praised “a militia of freemen” as among the “principal circumstances which render
liberty secure,” and singled out as “a capital circumstance in favour of our liberty”
that “the people themselves are the military power of our country,” having “arms
in their hands” and “military knowledge.”125 The Federal Farmer listed among the
“military forces of a free country” the “militia,” by which he meant “the people
themselves . . . when properly formed.” A citizen militia was critical to “the
duration of a free and mild government.” Absent it, and in the face of an “anti-
republican” select militia, “the substantial men, having families and property, will
generally be without arms, without knowing the use of them, and defenceless;
whereas, to preserve liberty, it is essential that the whole body of the people
always possess arms, and be taught alike, especially when young, how to use
them.”126 James Burgh, a Scotsman whose 1774 Political Disquisitions were well-
known in America, including being cited in The Federalist, wrote that a “good
militia” formed “the chief part of the constitution of every free government” and
would “preserve the public liberty.” He added that “[t]he possession of arms is the
distinction between a freeman and a slave. . . . [H]e who thinks he is his own
master, and has anything he may call his own, ought to have arms to defend
himself and what he possesses, or else he lives precariously and at discretion.”127
123
See also Malcolm, To Keep and Bear Arms, supra note 33, at 50–53, 115–16, 123 (militia
officers’ use of discretionary power to disarm); id. at 45–46 (disarmament by Charles II prior to 1662);
id. at 85 (disarmament by militia in 1678); id. at 103 (use of militia by James II to disarm suspicious
persons); id. at 105 (attempted use of militia in 1686 to disarm by enforcing game act); id. at 31 (in
Civil War); see also id. at 92–93, 95 (in response to 1683 Rye House plot; confiscated arms given to
militia); id. at 100 (disarmament by Charles II in western England early in reign, and in response to
Rye House plot later). Efforts to disarm and undermine the militia also included requiring its members
to “store” their arms in government magazines. See id. at 38, 78–79, 96–97; see also id. at 3, 5, 10–11
(discussing private ownership and storage prior to English Civil War, and failed plans to require public
storage). The actions of white militias toward freed blacks in the South after the American Civil War
were similar. See Part IV.C below.
124
Va. Decl. of Rights § 13 (1776), reprinted in 7 Federal and State Constitutions, supra note 78,
at 3814; see also Md. Const., Decl. of Rights § 25 (1776), reprinted in 3 id. at 1688 (“That a well-
regulated militia is the proper and natural defence of a free government.”).
125
1 Debate on the Constitution, supra note 97, at 711–12.
126
Federal Farmer No. 18, reprinted in 2 Complete Anti-Federalist, supra note 101, at 341–42.
127
James Burgh, Political Disquisitions, reprinted in part in 3 Founders’ Constitution, note 118, at
126, 125; see The Federalist No. 56, at 382 n.* (James Madison); see also 2 Tucker’s Blackstone,
supra note 60, at *245 n.7 (quoting Burgh’s Disquisitions). In both passages, Burgh was loosely
158
Whether the Second Amendment Secures an Individual Right
Thus, “every male” should be trained in the use of arms, or at least “all men of
property.”128
Second, and related, the freedom of a state was understood at the time of the
Founding to include a citizen’s individual right of self-defense (that is, defense of
his right to life and personal security) when the state cannot assist him. An
individual right to arms such as that secured by the Second Amendment’s
operative text helps to preserve this basic right and thus a free state. As the preface
indicates, the existence of a well-regulated citizen militia further secures the link
between such an individual right and this aspect of a free state (by increasing the
number of persons equipped and trained to exercise the right well), but, as the
discussion of the militia in the previous paragraph suggests, this link was not
understood to be confined to one’s actions while participating in even such a
broad-based entity.129 Blackstone’s summary of key English rights explains this
point. With no mention of the militia, he described the “right of having and using
arms for self-preservation and defence” as the last security of individual English
subjects for keeping the state, including themselves, free:
[T]he rights, or, as they are frequently termed, the liberties of Eng-
lishmen . . . consist primarily, in the free enjoyment of personal se-
curity, of personal liberty, and of private property. So long as these
remain inviolate, the subject is perfectly free; for every species of
compulsive tyranny and oppression must act in opposition to one or
other of these rights, having no other object upon which it can possi-
bly be employed. To preserve these from violation, it is necessary,
that the constitution of parliament be supported in its full vigour; and
limits, certainly known, be set to the royal prerogative. And lastly, to
vindicate these rights, when actually violated or attacked, the sub-
jects of England are entitled, in the first place, to the regular admin-
quoting Andrew Fletcher, a prominent member of the Scottish Parliament prior to union with England
in 1707. See A Discourse of Government With Relation to Militias (1698), reprinted in Andrew
Fletcher, Political Works 21–22 (John Robertson ed., 1997); Speeches by a Member of the Parliament,
No. 7 (1703), reprinted in id. at 149–50. Regarding Fletcher and Burgh, see David Thomas Konig, The
Second Amendment: A Missing Transatlantic Context for the Historical Meaning of “the Right of the
People to Keep and Bear Arms,” 22 L. & Hist. Rev. 119, 125–26, 136–39 (2004).
128
Burgh, Political Disquisitions, reprinted in 3 Founders’ Constitution, note 118, at 124, 126. As
Fletcher put it: “I cannot see, why arms should be denied to any man who is not a slave, since they are
the only true badges of liberty . . . neither can I understand why any man that has arms, should not be
taught the use of them.” A Discourse of Government, reprinted in Fletcher, Political Works, supra note
127, at 23.
129
The duty to serve in the militia and the right to possess or carry weapons for self-defense were
related but distinct in colonial America. One might have the latter without the former. See Cottrol &
Diamond, supra note 33, 80 Geo. L.J. at 325–37 (surveying colonial laws and explaining the develop-
ment of “the view that the security of the state was best achieved through the arming of all free
citizens,” regardless of eligibility for militia service); see also Part II.B.1 above (discussing right to
“keep” arms for private purposes).
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istration and free course of justice in the courts of law; next, to the
right of petitioning the king and parliament for redress of grievances;
and, lastly, to the right of having and using arms for self-preservation
and defence.
This right to arms, Blackstone added, facilitates self-defense “when the sanctions
of society and laws are found insufficient to restrain the violence of oppression.”130
John Locke, although not explicitly discussing arms, similarly explained the
individual right of self-defense that a free society allows. Discussing the right of
self-defense against a robber, he wrote: “I have no reason to suppose that he who
would take away my liberty, would not, when he had me in his power, take away
everything else.” Therefore “the law, which was made for my preservation, where
it cannot interpose to secure my life from present force, which if lost, is capable of
no reparation, permits me my own defence.”131
It is therefore reasonable to conclude that the ability of a “right of the people to
keep and bear Arms” to further the Second Amendment preface’s ultimate end of
the “security of a free State” consisted not merely in the existence of a trained
band ready to act as soldiers should the state’s government call upon them, but
also in the ability of the citizens (many of them part of the privately armed citizen
militia), by individually keeping and bearing arms, to help secure the freedoms of
the state and its citizens.132 Thus, the “people” in the Second Amendment were
distinct from the “Militia” and a “State,” but a right of the people to keep and bear
arms was understood both to facilitate a well-regulated militia and to help
maintain a state that was free. By contrast, the collective right and quasi-collective
right views would sanction not only the creation of a select militia (to the exclu-
sion of the citizen militia) but also the disarming of the rest of the citizenry, a
130
1 William Blackstone, Commentaries *144. Blackstone also described the fundamental “right of
personal security” as including protection against “loss of limb,” so as to guard a man’s ability “to
protect himself from external injuries in a state of nature,” and condemned any destruction of limbs as
“a manifest breach of civil liberty,” id. at *129, *130; and he set out the basic common law rule of self-
defense, “the primary law of nature,” by which it is lawful for a person “forcibly attacked in his person
or property . . . to repel force by force” without being liable for breach of the peace or a resulting
homicide, 3 id. at *3–4. The importance of this right of self-defense was reinforced by the absence of
any constitutional duty of government to defend citizens’ lives, liberty, or property. See DeShaney v.
Winnebago Cnty. Soc. Servs. Dep’t, 489 U.S. 189, 195–97 (1989).
131
John Locke, Second Treatise of Government §§ 18–19, at 12–13 (Richard H. Cox ed., 1982)
(1689); see also id. §§ 204–10, at 126–29 (similar). Blackstone and Locke disagreed on the exact scope
of the right of self-defense. 4 William Blackstone, Commentaries *181–82; see also 1 id. at *251.
Locke was, after Blackstone and Montesquieu, the writer whom American political writers of the
Founding cited most. Malcolm, To Keep and Bear Arms, supra note 33, at 142 & 214 n.44. His
thinking is particularly evident in the Declaration of Independence. See also 2 Tucker’s Blackstone,
supra note 60, at *161 & n.25.
132
See Van Alstyne, supra note 33, 43 Duke L.J. at 1243 (The Second Amendment “looks to an
ultimate reliance on the common citizen who has a right to keep and bear arms . . . as an essential
source of security [for] a free state.”); see also Lund, supra note 33, 31 Ga. L. Rev. at 24.
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Whether the Second Amendment Secures an Individual Right
result antithetical to the true “Militia” as understood at the Founding and to the
“free State” that the Founding Generation understood it to secure.
D. Structural Considerations
Our conclusion that the text of the Second Amendment protects an individual
right is further confirmed by the structure of the Constitution, in particular the
Amendment’s placement and its inter-relation with the powers that the Constitu-
tion grants over the militia.
1. The Bill of Rights
The Second Amendment is embedded within the Bill of Rights. Every one of
the other rights and freedoms set forth in the first nine amendments of the Bill—
whether or not phrased as a “right of the people”—protects individuals, not
governments; none of its provisions protects persons only in connection with
service to the government.133 As Thomas Cooley summarized, writing of the Bill’s
first eight amendments, “[I]t is declared that certain enumerated liberties of the
people shall not be taken away or abridged.”134 It is therefore reasonable to
interpret the Second Amendment to protect individuals just as the rest of these
nine amendments do.
More particularly, the Second Amendment is located within a subset of the Bill
of Rights amendments, the First through Fourth, that relates most directly to
personal freedoms (as opposed to judicial procedure regulating deprivation by the
government of one’s life, liberty, or property)—the amendments that, in Story’s
words in his Commentaries, “principally regard subjects properly belonging to a
bill of rights.”135 These four amendments concern liberties that are tied to the right
of individuals to possess and use certain property (the printing “press” in the First
133
Cf. Planned Parenthood v. Casey, 505 U.S. 833, 847 (1992) (rejecting argument that the person-
al “liberty” that the Fourteenth Amendment protects “encompasses no more than those rights already
guaranteed to the individual against federal interference by the express provisions of the first eight
Amendments”) (emphasis added) (citation omitted); Moore v. City of East Cleveland, 431 U.S. 494,
502 (1977) (plurality opinion) (similar, quoting Poe v. Ullman, 367 U.S. 497, 542–43 (1961) (Harlan,
J., dissenting)); Johnson v. Eisentrager, 339 U.S. 763, 784 (1950) (describing First, Second, Fourth,
Fifth, and Sixth Amendments as the “civil-rights Amendments”); Robertson v. Baldwin, 165 U.S. 275,
281 (1897) (describing Bill of Rights as embodying “certain guaranties and immunities which we had
inherited from our English ancestors”). While some might argue that, as an original matter, the First
Amendment’s Establishment Clause (which makes no reference to any “right” or “freedom”) was an
exception to this rule, the Supreme Court has held that it too creates an individual right, applicable even
against states. See Zelman v. Simmons-Harris, 536 U.S. 639, 678 (2002) (Thomas, J., concurring);
Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947); David Currie, The Constitution in the Supreme Court:
The Second Century 339–40 (1990).
134
Cooley, General Principles, supra note 41, at 200.
135
Story, Abridgement, supra note 66, § 984, at 698 (commencing discussion of First through
Fourth, and Eighth through Tenth Amendments).
161
Opinions of the Office of Legal Counsel in Volume 28
Amendment,136 “house[s]” in the Third’s restriction on quartering soldiers, and
“houses, papers, and effects” in the Fourth’s restriction on searches and seizures),
or otherwise to act without undue governmental interference (worship, speech,
assembly and petition). Again, it seems reasonable to interpret the Second
Amendment, consistently with this context, to set out another personal liberty
(keeping and bearing) and privileged form of individual property (arms), useful for
protecting not only the citizen’s person but also the “houses” that the Third and
Fourth Amendments guard.137
Finally, the right in the Second Amendment immediately follows the right to
assemble and petition, which concludes the First Amendment. The latter right is
undeniably personal and individual, not depending on governmental organization,
regulation, or service. And the two are aligned, not only in their placement but
also in their origin, purpose, and limitations. Antecedents of both appeared in
proximity in the English Bill of Rights of 1689.138 Blackstone, in the passage
block-quoted in the previous subpart, discussed in immediate succession their dual
utility as guards of the great individual rights of life, liberty, and property,139 and
he did likewise in discussing the criminal law’s limitations on abuses of those
rights.140 St. George Tucker, the first leading American commentator on Black-
stone and the Constitution (discussed more in Part IV.A below), noted that both
rights had been transplanted to the United States from England, both stripped of
many English restrictions.141 It follows that the former right—that secured by the
Second Amendment—also would be individual.
136
See 4 William Blackstone, Commentaries *152 n.a; John O. McGinnis, The Once and Future
Property-Based Vision of the First Amendment, 63 U. Chi. L. Rev. 49, 92–94 (1996).
137
Compare 1 William Blackstone, Commentaries *138 (“The third absolute right, inherent in
every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his
acquisitions, without any control or diminution, save only by the laws of the land.”) (emphasis added),
with id. at *144 (recognizing “the right of having and using arms”) (emphasis added); see Part II.B.1
above (discussing English cases in 1700s approving the “keeping” of arms for defense of one’s self and
home).
138
1 W. & M., 2d Sess., c. 2, § 1, paras. 5 & 7 of the list of rights.
139
See also 1 William Blackstone, Commentaries *143–44 (similar); 2 Jean L. De Lolme, The Rise
and Progress of the English Constitution 886–87 (A.J. Stephens ed., 1838) (1784) (noting that English
Bill of Rights “expressly ensured to individuals the right of publicly preferring complaints against the
abuses of the government, and, moreover, of being provided with arms for their own defence,” and
then quoting 1 William Blackstone, Commentaries *144 regarding these rights).
140
See 4 id. at *145–49 (discussing the following misdemeanor breaches of the peace: affray, riot,
rout, unlawful assembly, tumultuous petitioning, forcible entry or detainer, and going armed with
dangerous or unusual weapons to the terror of the people). Among felonies against the public peace,
Blackstone first listed violation of the Riot Act against “riotous assembling of twelve persons” and then
described “unlawful hunting” in certain parks, which involved being disguised and “armed with
offensive weapons.” Id. at *142–44.
141
2 Tucker’s Blackstone, supra note 60, at *143–44 nn. 38–41. See also United States v. Cruik-
shank, 92 U.S. 542, 551–53 (1876) (analyzing the two rights similarly); Logan v. United States, 144
U.S. 263, 286–87 (1892) (same).
162
Whether the Second Amendment Secures an Individual Right
2. The Militia Powers
Interpreting the Second Amendment in light of the militia powers granted to the
federal government and the states in the original Constitution likewise suggests an
individual right to keep and bear arms rather than a “right” of states, against the
federal government, to maintain select militias or a quasi-collective right to be
exercised only by persons who serve in such entities. Clauses 15 and 16 of Arti-
cle I, Section 8, respectively grant power to Congress:
To provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions; [and]
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 Ap-
pointment of the Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress.
In addition, Article II, Section 2, makes the President “Commander in Chief . . .
of the Militia of the several States, when called into the actual Service of the
United States.”
These clauses, independently of the Second Amendment, presuppose the exist-
ence of functioning state militias and leave significant powers over them to the
states. The states expressly retain the powers to appoint all officers and to train the
militia according to federally specified rules. They implicitly retain the power of
“governing” any parts of the militias not in actual service to the federal govern-
ment, and of having those state-appointed officers govern the militias even when
in such service, subject to the President’s supreme authority. The provision
regarding officers is why Hamilton could argue credibly in The Federalist that the
states always would retain “a preponderating influence over the militia.”142 The
Constitution, in elsewhere prohibiting states from “keep[ing] Troops, or Ships of
War in time of peace,” while still allowing them to “engage in War” if “actually
invaded” or under an imminent threat, contemplates that the states will have, and
have power to employ, usable militias to provide necessary defense and emergen-
142
The Federalist No. 29, at 185 (Alexander Hamilton); see also The Federalist No. 46, at 321–22
(James Madison).
163
Opinions of the Office of Legal Counsel in Volume 28
cy war-making ability.143 More broadly, the states implicitly retain the power to
call out the militia on their own for domestic purposes.144
The original Constitution also leaves to the states concurrent power to provide
for organizing, arming, and disciplining their militias, so long as in so doing they
do not interfere with the federal power. This interpretation has been recognized
from the beginning: At the critical Virginia Ratifying Convention, Henry Lee
(future Governor of Virginia and congressman), Edmund Randolph (a Framer who
became the first Attorney General), Madison, and John Marshall all made this
textual argument in response to attacks on the federal power to make such
provision.145 Story found the arguments for such a concurrent power “in their
structure and reasoning satisfactory and conclusive.”146 The Supreme Court
approved this reading in 1820 in Houston v. Moore,147 and has recently reiterated
it. Looking to the “general plan” of the Constitution, the Court noted in 1990 that,
“Were it not for the Militia Clauses, it might be possible to argue,” much as one
could regarding federal power over foreign policy and the armed forces, “that the
constitutional allocation of powers precluded the formation of organized state
militia. The Militia Clauses, however, subordinate any such structural inferences
to an express permission while also subjecting state militia to express federal
limitations.”148 Even the Ninth Circuit in Silveira so interpreted Article I, Section
8, Clause 16: “The language indicates that the grant of power [to Congress] is
permissive. . . . Nothing in the Article or elsewhere in the Constitution appears to
bar the states from choosing to arm their respective militias as they wish.”149
In at least two respects, the above militia powers in the Constitution suggest an
individual right view of the Second Amendment. First, any constitutional amend-
ment securing to the states power to maintain militias would have been largely
redundant, whether the amendment protected the power through a “right” of states
or a right restricted to persons serving in militia units that a state had organized. A
provision should not be read to be redundant if another reasonable interpretation
143
U.S. Const. art. I, § 10, cl. 3. See Houston v. Moore, 18 U.S. (5 Wheat.) 1, 52 (1820) (Story, J.,
dissenting); Va. Ratif. Conv., in 10 Ratification, supra note 67, at 1307 (remarks of John Marshall,
June 16, 1788).
144
See Story, Abridgement, supra note 66, § 593, at 425; Va. Ratif. Conv., in 10 Ratification, supra
note 67, at 1304, 1311 (remarks of James Madison, June 16, 1788); id. at 1306–07 (remarks of John
Marshall, same).
145
Compare 9 Ratification, supra note 67, at 1074 (John P. Kaminski & Gaspare J. Saladino eds.,
1990) (H. Lee, June 9, 1788), id. at 1102 (Randolph, June 10, 1788), 10 id. at 1273 (Madison, June 14,
1788), id. at 1306–08 (Marshall, June 14, 1788); with 9 id. at 957–58, 1066 (Patrick Henry, June 5 & 9,
1788), 10 id. at 1270–71 (George Mason, June 14, 1788), id. at 1305 (William Grayson, June 16,
1788). Henry Lee should not be confused with his Anti-Federalist cousin Richard Henry Lee.
146
3 Story, Commentaries, supra note 75, § 1202, at 85–86.
147
18 U.S. (5 Wheat.) 1 (1820). See Part IV.B.1 below.
148
Perpich, 496 U.S. at 353–54 (footnotes omitted).
149
312 F.3d at 1081 n.43.
164
Whether the Second Amendment Secures an Individual Right
exists, and the individual right view of the Amendment is such an interpretation.
Second, one also would expect a protection of the states’ militia powers to use
language analogous to that of Clause 16, which concludes by “reserving to the
States respectively, the Appointment of the Officers, and the Authority of training
the Militia according to the discipline prescribed by Congress.”150 Clause 16’s
parallel to the protection of state power in the Tenth Amendment, which provides
that certain powers are “reserved to the States respectively” (while mentioning
“the people” separately), is unmistakable, as is the contrast between such language
and the Second Amendment’s protection of a “right of the people.” Given the
ready availability of such language, it would be both surprising and inartful for a
protection of state authority to create and maintain organized militias to be phrased
as the Second Amendment is, whether one conceives of the protection as belong-
ing to the states directly or to those serving it.
The Militia Clauses therefore suggest that the Second Amendment, to the ex-
tent that it furthers the states’ authority to maintain organized militias, does so
indirectly, as we discussed in Part II.C.2 & 3, by ensuring the minimum of a “well
regulated Militia”—that the States’ people, the pool for the citizen militia, would
continue to be able to keep and to bear their private arms, having them ready and
being familiar with them. Thus the Militia Clauses, along with the structure of the
Bill of Rights and the preface of the Second Amendment, all support the personal,
individual right to keep and bear arms that the Amendment’s operative text sets
out.
III. The Original Understanding of the Right to Keep and Bear Arms
In the previous part, we focused on the text and structure of the Constitution,
considering the meaning of the Second Amendment’s words and phrases when
they were adopted and how the Amendment’s meaning is informed by its inter-
relation with the rest of the Constitution. In this part, we take a broader view and
consider the Anglo-American right to arms as it existed at the time of the Found-
ing and informed the adoption of the Second Amendment. This history, like the
text, indicates that the Amendment secures an individual right.
We first consider the historical context of the right to arms, both (A) in England
beginning with the Revolution of 1688–1689 and (B) in America through the
American Revolution and the first state constitutions. The right was consistently a
personal one. Beginning with the right of individual English subjects to have arms
for their defense, it was supplemented in revolutionary America with the notion
that a citizen militia, comprising the armed citizenry, was a particularly important
means of securing free government. As one judge recently put it, the Americans of
the Founding Generation “were the heirs of two revolutions,” both of which had
150
As we explain below in Part III.C, several state ratifying conventions unsuccessfully proposed
similar language in suggested amendments distinct from those securing the right to bear arms.
165
Opinions of the Office of Legal Counsel in Volume 28
impressed upon them the importance of an individual right to have and use arms.151
This background understanding of the right is inconsistent with either the collec-
tive right or quasi-collective right views. Next, in Part III.C, we turn to (1) the
framing and ratification of the Constitution and (2) the framing and ratification of
the Second Amendment. This history demonstrates that the background under-
standing, far from being transformed or curtailed, was incorporated in that
Amendment, just as the Bill of Rights incorporated many other traditional rights of
individuals. By contrast, separate proposals to amend the Constitution to safeguard
powers of the states to establish and maintain organized militias failed.
A. The Right Inherited From England
As the Supreme Court has recognized, “[t]he historical necessities and events
of the English constitutional experience . . . were familiar to” the Framers and
should “inform our understanding of the purpose and meaning of constitutional
provisions.”152 This rule is particularly applicable to provisions such as the Second
Amendment, because “[t]he law is perfectly well settled that the first ten amend-
ments 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.”153
The right to arms that colonial Americans inherited from England had been set
out first in the English Declaration of Rights of 1689, and then had been expound-
ed by William Blackstone in his authoritative Commentaries on the Laws of
England in the decade before the American Revolution. Both the Declaration and
Blackstone made clear that the English right was a personal, individual one, not a
“right” belonging to any government or restricted to persons in governmental
service. The English right could not have been a federalism provision, because
England lacked a federal structure; and neither the Declaration nor the law as
expounded by Blackstone conditioned the right on a subject’s service in any
militia.
The Declaration of Rights was a product of the English Revolution of 1688–
1689 (commonly known as the Glorious Revolution). In 1660, a special “Conven-
tion” Parliament had restored the English monarchy by crowning Charles II,154 and
two statutes enacted under him provided background for the Declaration’s
provisions on arms. First was the Militia Act, enacted by the royalist Parliament in
151
Silveira, 328 F.3d at 580 (Kleinfeld, J., joined by Kozinski, O’Scannlain, and T.G. Nelson, JJ.,
dissenting from denial of rehearing en banc).
152
Loving v. United States, 517 U.S. 748, 766 (1996).
153
Robertson v. Baldwin, 165 U.S. 275, 281 (1897), discussed further below in Part IV.D.
154
See 1 William Blackstone, Commentaries *151.
166
Whether the Second Amendment Secures an Individual Right
1662.155 It authorized militia officers on their own warrants “to search for and seize
all arms” of anyone they judged “dangerous to the peace of the kingdom,”
including through entering houses by force if necessary, the arms to be handed
over to the militia and no judicial recourse being available.156 Charles II repeatedly
used this power,157 aided not only by the regular militia but also by a volunteer
army that he had organized unilaterally,158 and by a select militia of about 15,000
that he formed in 1666.159 The second statute was the Game Act of 1671, which, in
the name of protecting wildlife, was “the first law in English history that took
from the majority of Englishmen the privilege of having firearms.”160 It outlawed
possession of guns (not just their use in hunting) by anyone not among the few
rich qualified to hunt game.161
Concerns escalated after the accession in 1685 of Charles’s brother, King
James II. He was openly Roman Catholic, at a time of sharp political distrust
between England’s Protestants and Catholics.162 He disarmed the Protestant militia
of Ireland by seizing their arms and placing them in government magazines, while
returning the arms of Ireland’s Roman Catholics. In England, he continued to use
the militia to disarm persons of questioned loyalties, including through strictly
155
The Founders were well aware of the events leading up to the Declaration. A delegate at the
Massachusetts Ratifying Convention, warning against overreacting to the weakness of the Articles of
Confederation, pointed to the Restoration, in which the people, “so vexed, harassed and worn down . . .
[had] run mad with loyalty, and would have given Charles any thing he could have asked.” 1 Debate on
the Constitution, supra note 97, at 897 (remarks of Charles Turner, Jan. 17, 1788). A delegate at
Virginia’s convention drew the opposite lesson: The new Constitution would prevent the anarchy that
had led England into the arms of Charles II. 2 id. at 756 (remarks of Zachariah Johnston, June 25,
1788).
156
13 & 14 Car. II, c. 3, § 14.
157
Malcolm, To Keep and Bear Arms, supra note 33, at 36, 38, 43, 45–48, 50–53, 85, 100, 115–16,
123; see also id. at 92–93, 95; Lois G. Schwoerer, The Declaration of Rights, 1689, at 76 (1981)
(“Charles II had made effective use of” the militia acts “to try to snuff out political and religious
dissent,” disarming individuals and towns and confiscating weapons). He had begun doing so as soon
as he assumed the throne. An interim act in 1661 approved his actions and provided indemnity to
militiamen. 12 Car. II, c. 6, § 3 (favorably recognizing that “divers arms have been seized and houses
searched for arms”); cf. The Federalist No. 69, at 465 n. (Alexander Hamilton) (discussing 1661 act).
158
Malcolm, To Keep and Bear Arms, supra note 33, at 36–39.
159
Id. at 63. See also Schwoerer, Declaration, supra note 157, at 75–76 (describing Charles II’s
actions, including disarmament, and noting rise of complaints from Commons beginning in 1668).
160
Malcolm, To Keep and Bear Arms, supra note 33, at 12; see id. at 69–76; Schwoerer, Declara-
tion, supra note 157, at 78 (describing it as “the most stringent and comprehensive of the game laws”)
(internal quotation marks omitted).
161
22 & 23 Car. II, c. 25, § 3 (providing that all who did not have estate “of the clear yearly value
of one hundred pounds” per year were “not allowed to have or keep for themselves, or any other person
or persons, any guns, bows, greyhounds . . . or other engines”).
162
See 4 William Blackstone, Commentaries *55 (explaining various legal disabilities on certain
Roman Catholics, including several dating from English Revolution or earlier, by stating that such
persons “acknowledge a foreign power, superior to the sovereignty of the kingdom”); id. at *58
(hoping that “a time . . . should arrive” soon when it would be safe to “review and soften these rigorous
edicts”).
167
Opinions of the Office of Legal Counsel in Volume 28
enforcing the Game Act, although he ultimately preferred to undermine the militia
(whose loyalty he questioned), by restricting musters. He also accelerated and
expanded his brother’s policy of purging opponents, and Protestants in general,
from the militia’s and army’s officer corps, and geometrically enlarged the
standing army.163
James II fled soon after William of Orange landed in England in late 1688 at
the invitation of leading Englishmen. A Convention Parliament in early 1689
adopted the Declaration of Rights, which William and his wife Mary (James’s
daughter) accepted before Parliament proclaimed them King and Queen, and
which the ensuing regular Parliament enacted as the Bill of Rights.164 A hundred
years later, Alexander Hamilton in The Federalist celebrated “the revolution in
1688,” when at last “English liberty was completely triumphant.”165
The Declaration first listed twelve indictments of James II for having attempted
to subvert “the laws and liberties of this kingdom,” including:
5. By raising and keeping a standing army within this kingdom in
time of peace, without consent of parliament, and quartering soldiers
contrary to law.
6. By causing several good subjects, being protestants, to be dis-
armed, at the same time when papists were both armed and em-
ployed, contrary to law.
Then, in a roughly parallel list of thirteen “ancient rights and liberties,” the
Declaration stated:
6. That the raising or keeping a standing army within the kingdom in
time of peace, unless it be with consent of parliament, is against law.
7. That the subjects which are protestants may have arms for their
defence suitable to their conditions and as allowed by law.
163
See Malcolm, To Keep and Bear Arms, supra note 33, at 95–106; Schwoerer, Declaration, supra
note 157, at 71–73, 75–76; see also The Federalist No. 26, at 166 (Alexander Hamilton); Marcus No. 4
(James Iredell) (1788), reprinted in 1 Debate on the Constitution, supra note 97, at 391; Mass. Ratif.
Conv., in id. at 904 (remarks of Thomas Dawes, Jr., Jan. 24, 1788).
164
The Bill of Rights is at 1 W. & M., 2d Sess., c. 2 (1689). Its first three sections, except for the
initial preamble, consist of the Declaration, see Schwoerer, Declaration, supra note 157, at 295, App. 1
(reprinting Declaration), and it recounts the events of the Revolution. See also 1 W. & M., 1st Sess., c.
1, § 2 (1689) (noting presentation and acceptance of crown, and proclaiming Parliament to be regular
from that date); id. c. 6 (establishing coronation oath); 1 William Blackstone, Commentaries *128,
*152, *211–16, *245 (discussing events); The Federalist No. 84, at 578 (Alexander Hamilton)
(similar).
165
The Federalist No. 26, at 165–66. See Schwoerer, Declaration, supra note 157, at 289 (Ameri-
cans greeted the revolution and Declaration “with enthusiasm”).
168
Whether the Second Amendment Secures an Individual Right
This seventh article is most relevant here, and it set out a personal right. Neither
this article nor the parallel sixth indictment ties possession of arms to service in
the militia, which the Declaration never mentions. The sixth indictment instead
indicates that being “armed” and being “employed” by the government are
distinct—a distinction confirmed by the historical context, which, as we have
explained, included subjects being disarmed by the militia. Furthermore, the right
belonged to “subjects,” not to any government, and these subjects were allowed
arms “for their defence.”166
Critics of the individual right view contend that the two concluding clauses of
the seventh article—“suitable to their Conditions, and as allowed by Law”—so
restricted the right that it was a dead letter. Among the restrictions to which these
clauses referred was the Game Act, which literally, albeit likely not in practice,
barred most subjects from owning firearms.167 As Lois G. Schwoerer has argued:
“English-men did not secure to ‘ordinary citizens’ the right to possess weap-
ons. . . . Drafted by upper-class Protestants who had their own interests at heart,
Article VII was a gun control measure.”168 The Declaration, therefore, the argu-
ment goes, could have had little relevance to the right in the Second Amendment.
But this argument regarding the scope of the right does not speak to the ques-
tion that we consider here, which is whether the English right was a right of
individuals, a right of government, or a right specifically connected with military
service to the government. On that question, the answer is clear. Schwoerer herself
recognizes that many articles of the Declaration “guaranteed rights to the individ-
ual,” including the right “to bear arms (under certain restrictions).”169 Class- and
religion-based restrictions did not destroy the personal nature of the right,
whatever its scope. The precedent for Americans was an individual right.
166
Similarly, the same Parliament enacted a law providing that a “papist or reputed papist” could
“have or keep . . . such necessary weapons, as shall be allowed to him by order of the justices of the
peace . . . for the defence of his house or person.” 1 W. & M., 1st Sess., c. 15, § 3 (1688) (emphasis
added).
167
See Malcolm, To Keep and Bear Arms, supra note 33, at 86–89 (noting effect of wealth qualifi-
cation but also dearth of prosecutions merely for possession). Blackstone complained that there was
“fifty times the property required to enable a man to kill a partridge, as to vote for a knight of the
shire.” 4 William Blackstone, Commentaries *175. In addition, these clauses probably referred to two
statutes from the 1540s restricting ownership and use of short handguns based on wealth, outlawing
shot, and regulating the use of guns in cities or towns, see 33 Hen. VIII, c. 6 (1541); 2 & 3 Edw. VI, c.
14 (1548), and they may also have referred to the Militia Act, see Malcolm, To Keep and Bear Arms,
supra note 33, at 120.
168
Lois G. Schwoerer, To Hold and Bear Arms: The English Perspective, 76 Chi.-Kent L. Rev. 27,
59 (2000). She seems to misunderstand the individual right view as requiring an unlimited right. See id.
at 56, 60.
169
Schwoerer, Declaration, supra note 157, at 283; see Malcolm, To Keep and Bear Arms, supra
note 33, at 119–20. See also 2 De Lolme, English Constitution, supra note 139, at 886 (Declaration
“expressly ensured to individuals the right of [petition and] of being provided with arms for their own
defence”).
169
Opinions of the Office of Legal Counsel in Volume 28
In addition, that Article 7 of the Declaration (and the Bill) only recognized a
right to possess arms “as allowed by Law” does not mean that it did not secure a
true right. In England’s constitutional tradition, particularly evident in the events
surrounding the Declaration of Rights described above, formal English rights
restricted only the Crown’s prerogative, not the legislature’s power, which was
unrestricted. Thus, although Blackstone was able to explain many years after the
English Revolution that a royal proclamation “for disarming any protestant
subjects, will not bind,”170 the right to arms, like all other English rights, remained
subject to revision or abolition by Parliament.171 That characteristic of English
rights hardly prevented Americans from borrowing and adapting them to a
different constitutional structure.
Finally, whatever the actual ability of ordinary English subjects to have arms
for their defense in 1689, by the Founding, a hundred years later, the right to do so
extended to most of the country. As Judge Kleinfeld of the Ninth Circuit recently
observed, “[t]he historical context of the Second Amendment is a long struggle by
the English citizenry to enable common people to possess firearms.”172 In new
game laws, particularly that of 1706, Parliament deleted guns from the list of
implements that those not qualified to hunt game were prohibited from owning.173
The courts determined that Parliament had made this deletion “purposely.”174 Thus,
notwithstanding the list’s catch-all prohibition of “any other engines,” they
interpreted the deletion—together with the existence of “divers . . . lawful
purposes” for which one might keep a gun, such as “for the defence of his house
and family”—as protecting the right of individuals to keep guns even if they were
not qualified to hunt game, so long as they did not hunt with them.175 This
170
1 William Blackstone, Commentaries *271.
171
See The Federalist No. 84, at 578–79 (Alexander Hamilton) (arguing “that bills of rights are in
their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of
privilege, reservations of rights not surrendered to the prince,” and “[s]uch . . . was the declaration of
rights presented by the lords and commons to the prince of Orange in 1688, and afterwards thrown into
the form of an act of parliament called the bill of rights”).
172
Silveira, 328 F.3d at 582 (Kleinfeld, J., joined by Kozinski, O’Scannlain, and T.G. Nelson, JJ.,
dissenting from denial of rehearing en banc).
173
5 Ann., c. 14, § 3 (1706); see 4 & 5 W. & M., c. 23, § 3 (1693) (similar). Parliament also re-
pealed the later of the two statutes of the 1540s mentioned in note 167, noting its desuetude. 6 & 7
Will. III, c. 13, § 3 (1695). Enforcement of the other was, at least in the 1600s, lax and selective. See
Malcolm, To Keep and Bear Arms, supra note 33, at 80–81, 87. Efforts to revise the Militia Act failed,
but the right in the Bill may have sufficed to restrain the King from disarming Protestants. See id. at
123–25; see also 1 William Blackstone, Commentaries *271; Schwoerer, Declaration, supra note 157,
at 75–78, 267, 283.
174
Rex v. Gardner, 87 Eng. Rep. 1240, 1241, 7 Mod. Rep. 279 (K.B. 1739).
175
Wingfield v. Stratford, 96 Eng. Rep. 787, 787–88, Sayer Rep. 15 (K.B. 1752) (Lee, C.J., citing
Rex v. Gardner, 2 Strange Rep. 1098 (K.B. 1738)); Mallock v. Eastly, 87 Eng. Rep. 1370, 1374, 7
Mod. Rep. 482 (C.P. 1744), respectively; see also Part II.B.1 (discussing use of “keep” in these and
other cases); Malcolm, To Keep and Bear Arms, supra note 33, at 128 (quoting commentator of early
1800s reaffirming rule of these cases). In addition, it appears that courts strictly interpreted indictments
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Whether the Second Amendment Secures an Individual Right
interpretation of the 1706 game act was considered “settled and determined” by
1744, and in 1752 the Chief Justice of the King’s Bench reaffirmed that it was
“not to be imagined” that Parliament in that act had intended “to disarm all the
people of England.”176 By 1780, London’s Recorder—the city’s legal adviser and
the primary judge of its criminal court—in an opinion supporting the legality of
the city’s private armed associations formed for self-defense against riots, could
announce as “most clear and undeniable” the “right of his majesty’s Protestant
subjects, to have arms for their own defence, and to use them for lawful purposes,”
adding that “this right, which every Protestant most unquestionably possesses
individually,” also “may, and in many cases must, be exercised collectively,”
subject to certain restrictions.177 Similarly, an English commentator in the early
1790s wrote that “every one is at liberty to keep or carry a gun, if he does not use
it for the destruction of game.”178
Blackstone’s Commentaries, first published in 1765–1769, were for the colo-
nists and the Founding Generation the leading exposition of England’s laws and
constitution. In them, he confirmed that the English right to arms was an individu-
al one and explained that it had grounds broader and deeper than the right that had
been declared in the Revolution of 1688–1689.
In the first chapter of the first book, Blackstone detailed the “absolute rights of
individuals,”179 that is, “such as appertain and belong to particular men, merely as
individuals or single persons” and which “every man is entitled to enjoy, whether
out of society or in it.”180 It was the purpose of law “to maintain and regulate”
under the game laws. See King v. Silcot, 87 Eng. Rep. 186, 186 n.(b), 3 Mod. Rep. 280 (K.B. 1690)
(reporter’s note from 1793).
176
Mallock, 87 Eng. Rep. at 1374; Wingfield, 96 Eng. Rep. at 787 (Lee, C.J.).
177
Legality of the London Military Foot-Association, supra note 64, at 59–60 (italics omitted). For
background, see Part II.B.2 above. The Recorder found it “a matter of some difficulty to define the
precise limits and extent of the rights of the people of this realm to bear arms, and to instruct
themselves in the use of them, collectively.” Id. at 59. At the very least, he opined, such a group needed
to (1) have a “lawful” “professed purpose and object,” (2) “demean themselves in a peaceable and
orderly manner” consistent with that purpose, (3) not assemble in numbers that “manifestly and greatly
exceed” that purpose; and (4) not “act without the authority of the civil magistrate” except to suppress
“sudden, violent, and felonious breaches of the peace.” Id. at 62 (italics omitted). See also 1 William
Hawkins, A Treatise on the Pleas of the Crown ch. 63, § 10, at 136 (1724; reprint 1972) (noting legality
of person “arm[ing] himself to suppress dangerous Rioters, Rebels, or Enemies” and “endeavour[ing]
to suppress or resist such Disturbers of the Peace or Quiet of the Realm”); id. ch. 65, § 21, at 161
(noting right to do so when assisting Justice of Peace against riot).
178
See William Blackstone, 2 Commentaries on the Laws of England *412 n.8 (William Draper
Lewis ed., 1900) (reprinting annotation of Edward Christian). Christian’s posthumous Blackstone was
published in 1793–95, see Malcolm, To Keep and Bear Arms, supra note 33, at 134, 210, and available
in America, see 1 Tucker’s Blackstone, supra note 60, at *145 n.42. Although the law was clear, some
questioned how much as a practical matter the revision of the game laws had benefited commoners, as
we explain in the discussion of the Pennsylvania Constitution below in Part III.B.2.
179
1 William Blackstone, Commentaries *121; id. at *123, 124.
180
Id. at *123. He contrasted “relative” individual rights, “which are incident to [persons] as mem-
bers of society, and standing in various relations to each other.” Id.
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these rights in society, but “wanton and causeless restraint” was “a degree of
tyranny.”181 He delineated three “principal or primary . . . rights of the people of
England”: “the right of personal security, the right of personal liberty, and the
right of private property.”182
But Blackstone recognized that declaring these three primary rights would be
“in vain” and a “dead letter of the laws, if the constitution had provided no other
method to secure their actual enjoyment.” He therefore identified five “auxiliary
subordinate rights of the subject”—“outworks or barriers to protect and maintain”
the principal rights.183 The first two were maintaining the constitution of Parlia-
ment and clear limits on the King’s prerogative. Because these were more properly
issues of governmental structure, he postponed their discussion to later chapters.184
The other three, however, were plainly individual rights: (a) the “right of every
Englishman . . . of applying to the courts of justice for redress of injuries”; (b) the
“right, appertaining to every individual . . . of petitioning the king, or either house
of parliament, for the redress of grievances,” so long as no “riot or tumult”
resulted; and (c) the “right of the subject . . . of having arms for their defence
suitable to their condition and degree, and such as are allowed by law.” He noted
that the latter two rights both had been recognized in the 1689 Bill of Rights.185
Blackstone explained the subject’s right of having arms as “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.”186 By tying the right to the natural—and thus individual
and pre-political—right of self-defense, he recognized a deeper foundation than its
declaration and enactment in 1689 and confirmed that the right existed inde-
pendently of any bearing of arms in service to the militia, a subject that he did not
mention in connection with the right.187
He returned to the right in concluding the first chapter. Again grouping together
the last three auxiliary rights (suing, petitioning, and having arms), he explained
that all were means for “the subjects of England” to “vindicate” the three primary
rights “when actually violated or attacked.” Thus, subjects were “entitled . . . to
181
Id. at *124–28.
182
Id. at *129. These reappear throughout the American Constitution, in general protections against
deprivations of “life, liberty, or property, without due process of law” and in specific rights. See, for
example, St. George Tucker’s footnotes annotating Blackstone’s exposition of the three principal rights
with parallels in the Constitution, 2 Tucker’s Blackstone, supra note 60, at *129, *133–40.
183
1 William Blackstone, Commentaries *140–41.
184
See id. at *141.
185
Id. at *141, *143–44.
186
Id. at *144.
187
See also 4 id. at *55–58 (elsewhere describing prohibitions against certain Roman Catholics
keeping arms as hopefully temporary suspensions of rights). He summarized the militia in Chapter 13,
1 id. at *412–13.
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Whether the Second Amendment Secures an Individual Right
the right of having and using arms for self-preservation and defence.”188 By his
repeated reference to “self-preservation” and his description of the right as
including both “having and using” arms, Blackstone reiterated that the right had a
personal aspect and was linked to self-defense—to the right to use one’s
“limbs . . . to protect himself from external injuries,” which was part of the
individual right of personal security.189
Finally, Blackstone’s view of the right as belonging to individuals re-appears in
his repeated disparagement of game laws as a pretext to undermine commoners’
ability to use or have arms. He traced them to “slavery” imposed after the fall of
the Roman Empire by invading generals, who sought to “keep the rustici or
natives . . . in as low a condition as possible, and especially to prohibit them the
use of arms.” Thus, “we find, in the feudal constitutions, one and the same law
prohibiting the rustici in general from carrying arms, and also proscribing the use
of nets, snares, or other engines for destroying the game.”190 He denounced those
arising in England after the Norman Conquest of 1066 as a “tyranny to the
commons,”191 and thought their real rationale was an aristocratic desire to “dis-
arm[] the bulk of the people.”192 He briefly described England’s existing criminal
game laws as confused and having a “questionable” nature, their “rational footing”
being elusive.193 But he approved hunting restrictions against trespassing194 and did
not criticize several other restrictions on the use and carrying of arms, involving
breaches of the peace.195
188
1 id. at *144.
189
Id. at *130. See id. at *134 (summarizing common law’s special protection for “those limbs and
members that may be necessary to a man in order to defend himself or annoy his enemy”).
190
2 id. at *412, 413.
191
4 id. at *416; see 2 id. at *415–16 (forest laws produced “the most horrid tyrannies and oppres-
sions”).
192
2 id. at *412. As an example, he cited a popular book, by a bishop (and thus lord), that praised
banning “Peasants and Mechanics” from hunting game: “It was not at all for the public Good to suffer
[them] . . . to run up and down the Woods and Forests, armed; which . . . draws them on to Robbery
and Brigandage: Nor to permit the populace, in Towns and Cities, to have, and carry Arms at their
pleasure; which would give opportunity and encouragement to Sedition, and Commotions.” 1 William
Warburton, The Alliance Between Church and State: Or, the Necessity and Equity of An Established
Religion and a Test Law Demonstrated 324 (London 4th ed. 1766).
193
4 William Blackstone, Commentaries *174–75.
194
See 2 id. at *411–12 (approving as “natural” a ban on unauthorized hunting on private property);
see 4 id. at *174 (being less critical of the “forest law,” which simply prohibited hunting in the king’s
forests).
195
See 4 id. at *144 (unlawful hunting—being disguised and “armed with offensive weapons” in
breach of peace and to terror of public); id. at *145 (affray (public fighting), including attack with or
drawing of weapon on church grounds); id. at *148 (forcible entry or detainer, “such as is carried on
and maintained with force, with violence, and unusual weapons”); id. at *149 (“riding or going armed,
with dangerous or unusual weapons . . . by terrifying” the people); see also id. at *146–47 (riots, routs,
unlawful assemblies, and tumultuous petitioning); id. at *168 (quasi-nuisance of “making, keeping, or
carriage, of too large a quantity of gunpowder at one time or in one place or vehicle”); cf. id. at *182
(excusable homicide by misadventure, such as “where a person qualified to keep a gun is shooting at a
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Thus, the right to arms that America inherited from England was a right of
individuals, and had deep roots by the time of the Framing. It did not depend on
service in the government’s militia, nor was it a federalism-related “right” of any
government. It therefore provides no warrant for a quasi-collective right or
collective right view of the Second Amendment. And, absent any evidence that
Americans wished to abridge this individual right or transform it substantially, a
question that we consider next, the English precedent supports an individual right
view of that Amendment.
B. The Right in America Before the Framing
The English colonists in America recognized this right of individual subjects to
have and use arms, and they retained it as they broke from the mother country.
They also recognized that it furthered the citizen militia to which they looked as a
security for their freedom. These related ideas of an individual right to arms and
regard for the citizen militia formed the backdrop for the Second Amendment. We
first consider the history of the American Revolution and then review the states’
first constitutions, written during that war.
1. The Experience of the Revolution
As the Revolution approached and conflicts with royal authorities rose, colonial
leaders both reaffirmed the individual right to arms inherited from England and
praised the shared duty of being armed imposed by local law. The colonial militias
were broad-based, composed of all able-bodied white men, who were expected to
be armed with the private weapons that all households were required to keep
(regardless of eligibility for militia duty), there being a “general obligation of all
adult male inhabitants to possess arms, and, with certain exceptions, to cooperate
in the work of defense.”196 Citizens sometimes were required not only to own
mark and undesignedly kills a man: for the act is lawful, and the effect is merely accidental”); 3 id. at
*4 (noting limitation of self-defense to “resistance” that “does not exceed the bounds of mere defence
and prevention”).
196
United States v. Miller, 307 U.S. 174, 179–80 (1939) (internal quotation marks omitted). See
Kates, supra note 33, 82 Mich. L. Rev. at 215–16 (“With slight variations, the different colonies
imposed a duty to keep arms and to muster occasionally for drill upon virtually every able-bodied
white man between the age of majority and a designated cut-off age. Moreover, the duty to keep arms
applied to every household, not just to those containing persons subject to militia service. Thus, the
over-aged and seamen, who were exempt from militia service, were required to keep arms for law
enforcement and for the defense of their homes from criminals or foreign enemies.”) (footnotes
omitted). In Virginia, “Every able-bodied freeman, between the ages of 16 and 50, is enrolled in the
militia. . . . The law requires every militia-man to provide himself with the arms usual in the regular
service.” That requirement “was always indifferently complied with,” and the militia’s arms were
“frequently called for to arm the regulars,” so that “in the lower parts of the country they are entirely
disarmed.” But “[i]n the middle country a fourth or fifth part of them may have such firelocks as they
had provided to destroy the noxious animals which infest their farms; and on the western side of the
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Whether the Second Amendment Secures an Individual Right
weapons but also to carry them, and the class-based distinctions of England
generally did not apply.197 America had its own set of distinctions, based on race,
but even free blacks were often allowed to possess arms as individuals, even
though usually barred from militia service.198
Boston was the focus of early opposition to Britain, and its leaders invoked
both the individual right to arms (as secured by the 1689 Bill of Rights and also as
expounded by Blackstone) and the local duty of being armed. A 1768 town
meeting led by Samuel Adams, John Hancock, and others resolved that the right
enacted in the English Bill of Rights was “founded in Nature, Reason and sound
Policy, and is well adapted for the necessary Defence of the Community,” while
also praising the colony’s law requiring “every listed Soldier and other House-
holder” to be armed. The resolution thus requested that any Bostonian lacking
arms “duly . . . observe the said Law.”199 Boston newspapers defended the
meeting’s actions:
[I]t is certainly beyond human art and sophistry, to prove the British
subjects, to whom the privilege of possessing arms is expressly rec-
ognized by the Bill of Rights, and, who live in a province where the
law requires them to be equip’d with arms, &c. are guilty of an ille-
gal act, in calling upon one another to be provided with them, as the
law directs.200
Blue [R]idge they are generally armed with rifles.” Jefferson, Notes, supra note 56, at 88. For more
regarding the militia, see Part II.C.2–4 above.
197
See Malcolm, To Keep and Bear Arms, supra note 33, at 139 (quoting colonial statutes from
Rhode Island, Virginia, and Georgia); Kates, supra note 33, 82 Mich. L. Rev. at 216 (discussing
Georgia law); id. at 240 (“the English Game Acts . . . had never been a part of the colonial law”); 5
Tucker’s Blackstone, supra note 60, at *175 n.16 (describing game laws of Virginia, limited to
prohibiting trespass and conversion and establishing hunting season for deer).
198
See Cottrol & Diamond, supra note 33, 80 Geo. L.J. at 323–27 (noting that “the traditional
English right” became “a much broader American one” as part of “a more general lessening of class,
religious, and ethnic distinctions among whites in colonial America,” but that “the law was much more
ambivalent with respect to blacks”; surveying varying colonial laws regarding right of blacks to carry
weapons or keep them in their homes, and noting usual exclusion from militia duty, except in “times of
crisis”); Malcolm, To Keep and Bear Arms, supra note 33, at 140–41 (“The second group [after
Indians] forbidden to possess weapons were black slaves, with restrictions sometimes extended to free
blacks . . . . Northern colonies were ambivalent about blacks possessing firearms”; surveying colonial
laws and drawing parallel to England’s ambivalent treatment of right of Roman Catholics to have
arms).
199
Boston Chron., Sept. 19, 1768, at 363, col. 2, quoted in Halbrook, Right to Bear Arms, supra
note 56, at 1–2. This resolution was republished in the Maryland Gazette. See id. at 61.
200
Bos. Gazette, and Country J., Jan. 30, 1769, at 2, col. 1, quoted in Halbrook, Right to Bear Arms,
supra note 56, at 6; see Boston Under Military Rule, 1768–1769, as Revealed in a Journal of the Times
61 (Oliver Morton Dickerson ed., 1936) (reprinting same passage from Boston Evening Post, Apr. 3,
1769).
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A subsequent article by Adams recounted the English Revolution and then quoted
both of Blackstone’s primary discussions of the right to arms. Adams attacked
critics of the “late vote of this town, calling upon the inhabitants to provide
themselves with arms for their defence,” as insufficiently “attend[ing] to the rights
of the constitution.”201 The New York Journal Supplement reiterated this argument:
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 vio-
lence of oppression.202
The individual’s right to have and use arms for self-defense was reaffirmed in
the celebrated “Boston Massacre” murder trial, in 1770, of British soldiers for
firing on a harassing crowd. (Soldiers had been garrisoned in Boston since late
1768.) John Adams, counsel for the soldiers, argued that they had acted in self-
defense. In his closing argument, he quoted William Hawkins’s Treatise on the
Pleas of the Crown to establish that “‘every private person seems to be authorized
by the law, to arm himself’” to defend against dangerous rioters. Adams added:
“Here every private person is authorized to arm himself, and on the strength of this
authority, I do not deny the inhabitants had a right to arm themselves at that time,
for their defence . . . .”203 Adams reiterated that view in his 1787 Defence of the
Constitutions of Government of the United States of America, recognizing the
propriety of “arms in the hands of citizens, to be used . . . in private self-
defence.”204
British authorities, much like Charles II and James II a century before, moved
to disarm the colonists as hostilities mounted in 1774. Britain banned the export of
arms and ammunition to any of the colonies and ordered General Gage to consider
how to disarm residents of rebellious areas. At least in Massachusetts, some
disarmament occurred, and in the “Powder Alarm” of September 1, 1774, British
201
Samuel Adams, Boston Gazette, Feb. 27, 1769, reprinted in 1 Founders’ Constitution, note 118,
at 90. Adams quoted 1 William Blackstone, Commentaries *143–44 & *144.
202
Boston, March 17, N.Y.J. Supp., Apr. 13, 1769, at 1, col. 3, reprinted in Boston Under Military
Rule at 79; see Halbrook, Right to Bear Arms, supra note 56, at 7 (quoting same passage).
203
3 Legal Papers of John Adams 248 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965) (quoting
“Hawkins p. 71, § 14”). For the facts, see id. at 1 (note). Adams secured several acquittals. Id. at 29.
204
3 John Adams, A Defence of the Constitutions of Government of the United States of America
475 (1787). The Ninth Circuit selectively quoted this sentence to claim that Adams “ridiculed . . . an
individual right to personal arms” and asserted that “the general availability of arms” would “‘demolish
every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man—it is a
dissolution of the government.’” Silveira, 312 F.3d at 1085. In these portions, Adams was merely
arguing against command of the militia by private persons or localities, while also expressly reiterating
the right of arming for private self-defense.
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Whether the Second Amendment Secures an Individual Right
soldiers seized ammunition belonging to the colonial militia.205 These actions
stiffened resistance throughout the colonies206 and led the colonists to form
independent local militias with broad membership, the “Minutemen.”207 Gage’s
attempts in late 1774 and early 1775 to seize these groups’ arms across Massachu-
setts provoked confrontations with large forces of armed colonists, and the
Revolution was famously ignited by his efforts to do so at Concord and Lexington
in April 1775.208 Virginia Governor Dunmore’s raid on an ammunitions store in
Williamsburg soon thereafter prompted a similar response, as militiamen sur-
rounded his home.209 British authorities’ continuing efforts to disarm colonists
were among the actions that the Continental Congress cited when, in July 1775, it
declared the colonies’ reasons for taking up arms.210
As the colonists armed and organized themselves, their leaders continued to
turn to their rights as British subjects and praised the citizen militias that these
rights made possible. George Mason’s actions in Virginia (in conjunction with
George Washington and others) provide an example. In September 1774, he
chaired a meeting of Fairfax County citizens to form a private militia association
known as the Fairfax Independent Company. Being “threat’ned with the Destruc-
tion of our Civil-rights, & Liberty, and all that is dear to British Subjects &
Freemen,” members promised to keep themselves well armed and to train together
under elected officers.211 The following January, in a document attributed to
Mason, the county’s Committee of Safety recommended a tax to purchase
ammunition, resolved that “a well regulated Militia, composed of gentlemen
freeholders, and other freemen, is the natural strength and only stable security of a
205
See Hardy, supra note 33, 9 Harv. J.L. & Pub. Pol’y at 590; Halbrook, Right to Bear Arms,
supra note 56, at 9, 16, 72. Soldiers seized provincial armories in Cambridge and Charlestown. In
response, “twenty thousand Yankees picked up their muskets and headed for Boston” to confront the
British. Robert A. Gross, The Minutemen and Their World 55 (1976).
206
See First Continental Congress, Appeal to the Inhabitants of Quebec (Oct. 1774), reprinted in 1
American Political Writing During the Founding Era, 1760–1805, at 237 (Charles S. Hyneman &
Donald S. Lutz eds., 1983) (“The injuries of Boston have roused and associated every colony.”);
Halbrook, Right to Bear Arms, supra note 56, at 88–89 (quoting warning of South Carolina’s
governing body in 1774 against British “design of disarming the people of America” through the
embargo).
207
See Gross, Minutemen, supra note 205, at 59. In Concord, “Minutemen trained twice a week on
the common and carried their muskets everywhere, in the fields, in shops, even in church.” When they
were mustered in March 1775, it “presented a revealing portrait of the community. This was a citizen
army of rural neighbors. . . . The Concord militia included nearly everyone between the ages of sixteen
and sixty.” Id. at 69–70.
208
Hardy, supra note 33, 9 Harv. J.L. & Pub. Pol’y at 590–91; Malcolm, To Keep and Bear Arms,
supra note 33, at 145–46.
209
Hardy, supra note 33, 9 Harv. J.L. & Pub. Pol’y at 592; Halbrook, Right to Bear Arms, supra
note 56, at 16.
210
1 Journals of Congress 137 (July 6, 1775) (1800); see Halbrook, Right to Bear Arms, supra note
56, at 13–15; Hardy, supra note 33, 9 Harv. J.L. & Pub. Pol’y at 591.
211
1 Mason Papers, supra note 56, at 210–11.
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free Government,” and urged residents “from sixteen to fifty years of age” to
choose officers, “provide themselves with good Firelocks,” and train.212 In April
1775, Mason addressed the Company and praised it as formed “for the great and
useful purposes of defending our country, and preserving those inestimable rights
which we inherit from our ancestors.” In a time of “threatened . . . ruin of that
constitution under which we were born,” it was a security “that in case of absolute
necessity, the people might be the better enabled to act in defence of their invaded
liberty.”213
Similar sentiments appeared in North Carolina. Soon after Lexington and Con-
cord, the royal Governor denounced those urging people “to be prepared with
Arms” and train under committees of safety.214 But in July 1775, North Carolina’s
delegates to the Continental Congress urged the committees to “form yourselves
into a Militia” in the exercise of “the Right of every English Subject to be
prepared with Weapons for his Defense.”215
In October 1775, Britain declared the colonies in rebellion,216 but organizational
efforts continued. John Adams, in his Thoughts on Government written in early
1776 in response to requests for advice, recommended a “Militia Law requiring all
men, or with very few exceptions, besides cases of conscience, to be provided with
arms and ammunition, to be trained at certain seasons.” Such a law would be
“always a wise institution” but was “in the present circumstances of our country
indispensible.”217
Many lauded the citizen militias that fought in the Revolution. American Gen-
eral Nathanael Greene, writing to Thomas Jefferson, remarked on the “Enterprize
and Spirit” of “this Great Bulwark of Civil Liberty [that] promises Security and
Independence to this Country.”218 Americans credited crucial early victories to the
citizen militias, even while recognizing their limitations.219 Well after the war,
212
Id. at 212.
213
Id. at 229–31.
214
See Halbrook, Right to Bear Arms, supra note 56, at 29–30.
215
Richard Caswell, William Hooper, & Joseph Hewes, To the Committees of the Several Towns
and Counties of the Province of North Carolina, N.C. Gazette (Newburn), July 7, 1775, at 2, col. 3,
excerpted in Halbrook, Right to Bear Arms, supra note 56, at 29.
216
See 4 Papers of John Adams 78 n.6 (Robert J. Taylor ed., 1979) (editorial note).
217
John Adams, Thoughts on Government (Apr. 1776), reprinted in 4 id. at 91. This pamphlet,
written for political leaders in North Carolina, Virginia, and New Jersey, was widely reprinted and
discussed for several years. See id. at 65, 68–72 (editorial note).
218
Letter from Greene to Jefferson (Nov. 20, 1780), in 4 Jefferson Papers, supra note 62, at 130–
31.
219
See, e.g., A Democratic Federalist, Penn. Herald, Oct. 17, 1787, reprinted in 2 Ratification,
supra note 67, at 197 (arguing that “a well-regulated militia” is “sufficient for every purpose of internal
defense,” as shown by victories at Lexington and Bunker Hill); Va. Ratif. Conv., in 9 Ratification,
supra note 67, at 981 (remarks of Edmund Randolph, June 6, 1788) (“I will pay the last tribute of
gratitude to the militia of my country: They performed some of the most gallant feats during the last
war, and acted as nobly as men enured to other avocations could be expected to do: But, Sir, it is
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Whether the Second Amendment Secures an Individual Right
James Madison could argue in The Federalist that an oppressive army would be
no match for citizen militias, as “[t]hose who are best acquainted with the late
successful resistance of this country against the British arms” would recognize. He
also pointed to “the advantage of being armed, which the Americans possess over
the people of almost every other nation,” governments in most of the world being
“afraid to trust the people with arms.”220
2. Early Constitutional Recognition of the Right
One product of this experience of the American Revolution was that several
states included explicit right to bear arms provisions in declarations of rights that
they adopted during the war. These appeared in Pennsylvania, North Carolina,
Vermont, and Massachusetts. In the identical provisions of Pennsylvania and
Vermont, the language plainly reaffirmed the established right of individuals to
arm themselves for self-defense. In the provisions of North Carolina and Massa-
chusetts, although the express scope of the right may have been narrower, the right
still belonged to individuals—these state provisions could not have been intended
to protect the states’ prerogatives, nor did they restrict the right to participants in
militia units. Other states, most notably Virginia, did not include any provision
regarding the right to bear arms in their declarations but did praise “a well
regulated Militia.”221
Virginia. Virginia’s Declaration of Rights, adopted a month before the Declara-
tion of Independence, was the country’s first. Section 13 provided:
That a well regulated militia, composed of the body of the people,
trained to arms, is the proper, natural, and safe defence of a free
State: that standing armies, in time of peace, should be avoided, as
dangerous to liberty; and that in all cases the military should be un-
der strict subordination to, and governed by, the civil power.222
dangerous to look to them as our sole protectors.”); The Federalist No. 25, at 161–62 (Alexander
Hamilton) (praising militias’ valor but emphasizing insufficiency for defense). General Greene
recognized that the militia should “not [be] depended upon as a principal but employed as an
Auxilliary.” Letter to Jefferson, reprinted in 4 Jefferson Papers, supra note 62, at 131.
220
The Federalist No. 46, at 321–22.
221
The first constitutions of New Jersey, South Carolina, Georgia, and New York did not include
separate bills of rights. Their constitutions did protect a few rights, but did not include the right to arms
or general statements regarding the militia. See 1 Schwartz, Bill of Rights, supra note 67, at 256 (N.J.
1776); id. at 291 (Ga. 1777); id. at 301 (N.Y. 1777); id. at 325 (S.C. 1778). Georgia did provide for
forming a militia battalion in any county with “two hundred and fifty men, and upwards, liable to bear
arms,” id. at 297, and New York declared the duty of all to provide personal service to protect society,
see id. at 312, much as the Pennsylvania Declaration, discussed below, did. Connecticut and Rhode
Island did not adopt new constitutions. Id. at 289.
222
Va. Bill of Rights § 13 (1776), reprinted in 7 Federal and State Constitutions, supra note 78, at
3814.
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This provision expressly recognizes the background definition of “militia”
explained in Part II.C: It was not a specialized or select force, but rather a force of
the people. Such an understanding of the militia is consistent with the right of
individuals to have arms—particularly given that, as we have explained, the
citizen militia was supposed to be “trained to” its members’ private arms.223
Significantly, the provision’s primary author was George Mason,224 whose public
views have already been noted and who would play a leading role twelve years
later, explained below, in authoring the proposal of Virginia’s ratifying convention
that placed together in a single article the individual right and this praise of the
citizen militia.225
Pennsylvania. Pennsylvania adopted its Declaration of Rights in September
1776. Article 13, immediately following an article providing “[t]hat the people
have a right to freedom of speech,” read:
That the people have a right to bear arms for the defence of them-
selves and the state; and as standing armies in the time of peace are
dangerous to liberty, they ought not to be kept up; And that the mili-
tary should be kept under strict subordination to, and governed by,
the civil power.226
While following the same structure as Virginia’s (of which the convention
members were well aware227), this article replaced the praise of the well-regulated
citizen militia with a right—a right of “the people,” who, just as they had an
individual right to speak, also had an individual right to “bear arms,” for either of
the dual purposes of defending “themselves and the state.” The article does not
restrict the right to those in militia service, which it does not mention and which
Pennsylvania addressed separately: Article 8 broadly provided that “every member
of society,” receiving protection from it, was bound to contribute money and “his
223
Regarding this point and the meaning of both “militia” and “well regulated militia,” see above
Parts II.C.2–4 and III.B.1, at note 196 (quoting Jefferson’s Notes on the State of Virginia, supra note
56).
224
See 1 Mason Papers, supra note 56, at 274–75, 286 (editorial notes); id. at 287 (final draft).
225
Delaware, Maryland, and New Hampshire adapted Virginia’s language, omitting definition of
the militia and changing “free state” to “free government” while retaining the implicit connection
between “a well regulated militia” and the avoidance of standing armies and military insubordination.
See Del. Decl. of Rights §§ 18–20 (1776), reprinted in 5 Founders’ Constitution, note 118, at 5, 6; Md.
Decl. of Rights §§ 25–27 (1776), reprinted in 3 Federal and State Constitutions, supra note 78, at
1688; N.H. Const. pt. I, arts. 24–26 (1784), reprinted in 4 Federal and State Constitutions, supra note
78, at 2456. The Delaware Constitution also specially provided that “[t]o prevent any violence or force
being used at . . . elections, no person shall come armed to any of them, and no muster of the militia
shall be made on that day.” Del. Const. art. XXVIII (1776), reprinted in 1 Federal and State
Constitutions, supra note 78, at 567.
226
Reprinted in 5 Federal and State Constitutions, supra note 78, at 3083.
227
See 1 Mason Papers, supra note 56, at 276 (note discussing “the widespread and almost imme-
diate influence of the Virginia Declaration of Rights on other nascent states,” including Pennsylvania).
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Whether the Second Amendment Secures an Individual Right
personal service when necessary,” while allowing an exception for anyone
“conscientiously scrupulous of bearing arms, . . . if he will pay [an] equivalent.”228
And the plan of government, adopted concurrently, provided for a militia of “[t]he
freemen of this commonwealth and their sons.”229
The plan of government also provided that persons could use their arms to hunt
(without trespassing): “The inhabitants of this state shall have liberty to fowl and
hunt in seasonable times on the lands they hold, and on all other lands therein not
inclosed.”230 Regardless of the relevance of this provision to the contours of the
right to bear arms (a question beyond the scope of this memorandum), the
provision does seem to have been viewed as a practical security for, and thus a
way of emphasizing the importance of, the right of individuals that Pennsylvania
had elsewhere secured. The view that the English game laws—which had provided
for disarming many in the name of the hunting privileges of a few—had been a
pretext for undermining the right in practice was prevalent at the time. Thomas
Paine had criticized the game laws in the Pennsylvania Magazine the year before
Pennsylvania adopted its constitution, and one newspaper article, although
recognizing that the newer game acts did not prohibit merely keeping a gun,
argued that English aristocrats still used them to disarm commoners, by procuring
witnesses to claim that defendants had used their arms for hunting.231
Pennsylvania held another convention from November 1789 through Septem-
ber 1790, as the Second Amendment was before the states for ratification. The
resulting constitution retained essentially the same individual right. Section 21 of
the declaration of rights, immediately following a section providing “[t]hat the
citizens have a right” to assemble and petition, provided:
That the right of the citizens to bear arms, in defence of themselves
and the State, shall not be questioned.232
228
5 Federal and State Constitutions, supra note 78, at 3083. Such personal service would be
difficult if one could not own private arms. This duty may have been broader than the obligation of
militia duty, perhaps including the posse comitatus. See generally The Federalist No. 29, at 182–83
(Alexander Hamilton). New Hampshire’s constitution, while praising the well-regulated militia,
recognized this duty separately, N.H. Const. pt. I, arts. 12–13, reprinted in 4 Federal and State
Constitutions, supra note 78, at 2455, although New York’s connected the two, N.Y. Const. § 40(1777), reprinted in 5 id. at 2637.
229
Pa. Plan or Frame of Gov’t § 5 (1776), reprinted in 5 Federal and State Constitutions, supra
note 78, at 3084.
230
Id. § 43, reprinted in 5 Federal and State Constitutions, supra note 78, at 3091.
231
See Halbrook, Right to Bear Arms, supra note 56, at 23–25. Some in England shared this con-
cern. See Schwoerer, supra note 168, 76 Chi.-Kent L. Rev. at 52–53.
232
Pa. Const. art. IX, §§ 20 & 21, reprinted in 5 Federal and State Constitutions, supra note 78, at
3101. Section 22 addressed standing armies and civilian control of the military. Kentucky, admitted in
1791 as the fifteenth state, copied this language on the right verbatim. See Ky. Const. art. XII, § 23
(1792), reprinted in 3 Federal and State Constitutions, supra note 78, at 1275.
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Separately, in the body of the constitution, the protection of conscientious
objectors was combined with the provision relating to the citizen militia:
The freemen of this commonwealth shall be armed and disciplined
for its defence. Those who conscientiously scruple to bear arms shall
not be compelled to do so, but shall pay an equivalent for personal
service. The militia officers shall be appointed in such manner and
for such time as shall be directed by law.233
Thus, the right to “bear arms” remained with individual people, now “the citi-
zens,” and existed for the dual purpose of facilitating the defense of individuals
and the state. Neither purpose was expressly tied to, let alone limited to, service in
the militia. And the duty of “freemen” to “bear arms,” including possible exemp-
tion from that duty, was distinct and was tied to the militia. In both the 1776 and
1790 Pennsylvania constitutions, “bear arms” could and did bear both meanings.
North Carolina. North Carolina adopted its constitution and declaration of
rights in December 1776. Article 17 of the declaration provided:
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 lib-
erty, they ought not to be kept up; and that the military should be
kept under strict subordination to, and governed by, the civil pow-
er.234
This article mentions only the right of the people to bear arms for “the defence of
the State.” Regardless of the provision’s scope, however, the right still belonged to
individuals, just as the immediately following Article 18 set out a right of
individuals in providing “[t]hat the people have a right to assemble together,” and
in contrast with Article 25’s declaration, in delineating the state’s boundaries, of
“the essential rights of the collective body of the people” in the “property of the
soil.”235 It would not have made sense, in the context of a state constitution, for a
“right” of “the people” to protect only the prerogatives of the state. And the
provision’s text indicates that all of the people (not just those organized by the
state into militia units) had a right to bear arms, at least in defense of the state. As
an early North Carolina Supreme Court decision recognized, the right in Article 17
belonged “to every man indeed” and “secur[ed] to him a right of which he cannot
233
Pa. Const. art. VI, § 2, reprinted in 5 Federal and State Constitutions, supra note 78, at 3099.
Kentucky also copied this provision. See Ky. Const. art. VI, § 2, reprinted in 3 Federal and State
Constitutions, supra note 78, at 1271.
234
Reprinted in 5 Federal and State Constitutions, supra note 78, at 2788.
235
Id.
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Whether the Second Amendment Secures an Individual Right
be deprived,” to be exercised “for the safety and protection of his country.”236
Moreover, by expressly protecting the right of the people to bear arms “for the
defence of the State” (something that North Carolinians were then doing against
the British), the drafters of the North Carolina Constitution do not appear to have
intended to abrogate the arguably more modest individual English right.237 Indeed,
the president of the constitutional convention, who served on the committee that
wrote the declaration, had been one of the three congressional delegates who the
year before, as discussed above, had urged North Carolinians to exercise “the
Right of every English Subject to be prepared with Weapons for his Defense.”238
Vermont. The Vermont constitution approved in July 1777 provided that “the
people have a right to bear arms for the defence of themselves and the State,” in an
article identical to Article 13 of Pennsylvania’s Declaration.239 As in Pennsylvania,
this individual right immediately followed the individual right of “the people . . .
to freedom of speech,” and the constitution separately included a hunting guaran-
tee, citizen militia provisions, and an exception for conscientious objectors.240 All
of these remained in Vermont’s 1786 and 1793 constitutions.241
Massachusetts. Article 17 of the Massachusetts Declaration of Rights of 1780
provided:
The people have a right to keep and to bear arms for the common de-
fence. And as, in time of peace, armies are dangerous to liberty, they
ought not to be maintained without the consent of the legislature; and
236
State v. Huntly, 25 N.C. (3 Ired.) 418, 1843 WL 891, at *2. Another early decision recognized
that the right of “free people of color” to bear arms might be abridged—but only because the court
believed that they “cannot be considered as citizens,” or at least not full citizens, not because of any
exclusion from the militia (a subject the court did not mention). State v. Newsom, 27 N.C. (5 Ired.) 250,
1844 WL 1059, at *1, *2.
237
See below note 239.
238
This was Richard Caswell, who became the first governor. Another member of the committee
also had been one of the three delegates. See Halbrook, Right to Bear Arms, supra note 56, at 29–31;
see also 5 Federal and State Constitutions, supra note 78, at 2794.
239
Vt. Const. ch. I, § 15, reprinted in 6 Federal and State Constitutions, supra note 78, at 3741.
The constitution also asserted independence from New York. Id. at 3738–39 (preamble); see Halbrook,
Right to Bear Arms, supra note 56, at 37 (“Recognition of bearing arms to defend the state was more
radical than self-defense, since it justified action by armed private citizens to defend an incipient state
from the constituted authorities of both New York and Great Britain.”). The First Congress admitted
Vermont as the fourteenth state, see Act of Feb. 18, 1791, 1 Stat. 191, in time for it to ratify the Bill of
Rights, see 2 Schwartz, Bill of Rights, supra note 67, at 1202–03.
240
Vt. Const. ch. I, § 14, reprinted in 6 Federal and State Constitutions, supra note 78, at 3741
(speech); id. § 9, at 3740–41 (duty of personal service, and conscientious objectors); id. ch. II, § 5, at
3742 (militia of “freemen . . . and their sons”); id. § 39, at 3748 (hunting).
241
See Vt. Const. ch. I, §§ 10, 15 & 18 (1786), reprinted in 6 id. at 3753 (duty of personal service
and conscientious objectors, speech, and arms, respectively); id. ch. II, § 19, at 3758 (militia, including
all “inhabitants” rather than all freemen and their sons); id. § 37, at 3760 (hunting); Vt. Const. ch. I,
arts. 9, 13 & 16 (1793), reprinted in id. at 3763–64 (duty of personal service and conscientious object-
ors, speech, and arms, respectively); id. ch. II, § 22, at 3768 (militia); id. § 40, at 3770 (hunting).
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the military power shall always be held in an exact subordination to
the civil authority, and be governed by it.242
In addition, Article 1 announced as among the “natural, essential, and unalienable
rights” of all men “the right of enjoying and defending their lives and liberties”
and “of acquiring, possessing, and protecting property.”243 Massachusetts was the
first state to add “keep” to “bear.” But this double right was said to be “for the
common defence,” a phrase that arguably limits the purposes for which one might
exercise it. Two towns had unsuccessfully proposed adding “their own and” before
that phrase, one arguing that this change would make Article 17 “harmonize much
better with” Article 1.244
Even assuming that the phrase “for the common defence” limited the purposes
for which arms could be kept and borne, the “right” remained an individual one—
residing in “the people,” just as Article 19 set out an individual right in providing
that “[t]he people have a right, in an orderly and peaceable manner, to assemble to
consult upon the common good.”245 Nothing in Article 17 or any other provision
connected the right to service in the militia, much less indicated that this “right” of
the “people” belonged to the state or was intended to protect its prerogatives.246
Moreover, the addition of the word “keep” to the right of the people reinforced the
individual nature of the right, because, as explained above in Part II.B.1, the
phrase “keep arms” commonly referred to individuals privately possessing their
private arms.
The history of the provision reinforces this understanding of its text as securing
an individual right. The principal draftsman was John Adams, joined by his cousin
Samuel Adams and another individual.247 As explained above, John Adams
publicly acknowledged the individual right inherited from England both before
and after he wrote the Declaration, and Samuel Adams both helped lead the
Boston town meeting that had urged Bostonians to exercise that individual right
242
Reprinted in 3 Federal and State Constitutions, supra note 78, at 1892.
243
Mass. Const. pt. I, art. 1 (1780), reprinted in id. at 1889.
244
See Halbrook, Right to Bear Arms, supra note 56, at 41–42.
245
Mass. Const. pt. I, art. 19, reprinted in 3 Federal and State Constitutions, supra note 78, at
1892. An early decision of the state’s supreme court, interpreting the Declaration’s protection of the
individual’s “liberty of the press” as not protecting common law libel, drew a parallel to “the right to
keep fire arms, which does not protect him who uses them for annoyance or destruction.” Common-
wealth v. Blanding, 20 Mass. 304, 338 (1825). Whether the court had in mind Article 17 or the right
from England is unclear, but in either case it recognized a right of individuals to keep arms.
246
In addition, the purposes of calling out the militia seem to have been narrower than whatever
“for the common defence” signified, as the governor was authorized to call it out “for the special
defence and safety of the commonwealth,” which appears to have meant war, invasion, or rebellion.
Mass. Const. pt. II, ch. 2, § 1, art. 7, reprinted in 3 Federal and State Constitutions, supra note 78, at
1901.
247
1 Schwartz, Bill of Rights, supra note 67, at 337. The only change between their draft and the
final was the deletion of “standing” before “armies.” Id. at 372 (draft); id. at 364 (deletion).
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Whether the Second Amendment Secures an Individual Right
and publicly defended its resolution on the authority of the English Bill of Rights
and Blackstone.248 Much like Mason, Samuel Adams also would, during the
ratification debate, urge that the Constitution protect that right, as we explain
below.
Thus, the right of individual English subjects was transplanted to America.
Americans also, from their experience in the American Revolution, came to
emphasize the citizen militia, which they recognized was furthered by the
individual right to private arms. But the English right as Americans came to
understand it was not, as a result, somehow newly restricted to a person’s service
in that militia, much less to service in a select militia. Nor did early Americans see
the right as a federalism protection (which would not have made sense in the
context of state constitutions) or otherwise the property of the state rather than its
citizens.
C. The Development of the Second Amendment
The proposed Constitution that emerged from the Constitutional Convention in
1787 did not have a bill of rights, notwithstanding a late effort by Mason, joined
by Elbridge Gerry, to have one drawn up “with the aid of the State declarations.”249
It did contain a careful compromise regarding the militia. The federal government
received, in Article I, Section 8, the powers to call out the militia “to execute the
Laws of the Union, suppress Insurrections, and repel Invasions,” to provide for
“organizing, arming, and disciplining” it, and to govern any part of it in the service
of the federal government (during which the President would be its Commander in
Chief); states expressly retained the authority to appoint officers and to train the
militia.250
248
As with North Carolina’s emphasis on the “defence of the State,” Massachusetts’s emphasis on
the “common defence” may have represented the assertion of a right that went beyond the traditional
English one. “Common” had been deleted from a similar clause (“for their common defence”) in a draft
of the English Declaration, perhaps at the urging of William of Orange or conservative Lords, who
objected to suggestion of a popular right to check royal power. See Malcolm, To Keep and Bear Arms,
supra note 33, at 119–21.
249
Madison, Notes of Debates, supra note 44, at 630 (Sept. 12, 1787).
250
U.S. Const. art. I, § 8, cls. 15 & 16, and art. II, § 2, cl. 1. The Ninth Circuit claims that there was
“disagreement among the delegates” over whether Congress’s power to arm the militias “should be
exclusive or concurrent” with the states. Silveira, 312 F.3d at 1079. But the court only cites Perpich v.
Dep’t of Defense, 496 U.S. 334, 340 (1990), which does not support this claim; nor do the debates of
the Convention, where the focus was on the extent of any federal authority to establish uniform
discipline and regulation of the militia (including providing for arms), not on whether the states would
retain concurrent authority in areas where federal power was granted. For the two chief debates, see
Madison, Notes of Debates, supra note 44, at 478, 483–85 (Aug. 18, 1787); id. at 512–16 (Aug. 23,
1787). Similarly, the Third Circuit has cited, in support of the collective right view, a statement by
Roger Sherman that states should retain power to use their militias for internal needs. See United States
v. Tot, 131 F.2d 261, 266 (1942), rev’d on other grounds, 319 U.S. 463 (1943) (citing 5 Elliot’s
Debates 445 (2d ed. 1901)). We fail to see how this statement supports that view, particularly given
that no one appears to have disagreed with Sherman; that he served on the committee that drafted what
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Proposed bills of rights emerged from the ratifying conventions of several of
the states. Many of these included protection for the right to arms—usually in
language borrowed or adapted from the individual right to arms in the states’
declarations of rights, and in any event always in language indicating an individual
right. In those proposals, several states for the first time in a single constitutional
provision both set out an individual right to arms and praised the citizen militia,
uniting language from the different state declarations discussed above. In addition,
some Anti-Federalists, concerned about the Constitution’s allocation of powers
over the militia, sought to protect the ability of the states to maintain effective
militias. They proposed to do so expressly, in amendments using language similar
to that of Article I, Section 8, and to be placed in the body of the Constitution, not
in a bill of rights.251
Yet it was the former proposals that laid the foundation for the Second
Amendment. And the latter proposals failed in the Federalist-controlled First
Congress, which was, as many recognized at the time, willing to protect individual
rights but not to alter the balance of power struck by the new Constitution between
the states and the nascent federal government. Thus, the evidence points to an
understanding of the Amendment as securing the individual right to arms already
well established in America, rather than safeguarding the ability of states to
establish well-regulated militias, whether through a “collective right” of states or a
quasi-collective right of militiamen. Rather than “lay down any novel principles of
government,” the Second Amendment embodied the individual “guarant[ee] and
immunit[y]” to which Americans were accustomed.252
1. Recommendations From the Ratification of the
Original Constitution
Although the right of individuals to have arms was not a subject of much direct
discussion in the ratification debates, two major topics are relevant. First, Anti-
became the final version of Article I, Section 8, Clause 16, Madison, Notes of Debates at 480, 485
(Aug. 18, 1787); id. at 494–95 (Aug. 21, 1787), and generally supported its compromise, id. at 513–14;
and that he saw no need for amendments, see A Countryman No. 2 (1787), reprinted in 14 Ratification,
supra note 67, at 172 (John P. Kaminski & Gaspare J. Saladino eds., 1983); A Countryman No. 3
(1787), reprinted in id. at 296; A Citizen of New Haven (1789), reprinted in Creating the Bill of Rights,
supra note 82, at 220.
251
The Ninth Circuit in Silveira did not mention this latter set of proposals, and the court presented
the comments in the ratification debates most relevant to these separate proposals as if they instead
related to the Second Amendment. See 312 F.3d at 1082–83; see also id. at 1078 (claiming without
citation that “[t]he compromise that the convention eventually reached, which granted the federal
government the dominant control over the national defense, led ultimately to the enactment of the
counter-balancing Second Amendment”).
252
Robertson, 165 U.S. at 281 (discussing Bill of Rights in general); see Silveira, 328 F.3d at 584(Kleinfeld, J., joined by Kozinski, O’Scannlain, and T.G. Nelson, JJ., dissenting from denial of rehear-
ing en banc) (“The Second Amendment was not novel, but rather codified and expanded upon long
established principles.”).
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Federalists objected to the absence of a bill of rights, often pointing to the English
Bill of Rights (as well as the declarations of the states) as models.253 The Federal-
ists’ response likewise recognized the English precedent, but sought to distinguish
it on various grounds or to argue that many rights, such as the English Bill of
Rights’ ban on “cruel and unusual punishments,” or “the liberty of the press”
(which developed after the Bill), were too indefinite to provide dependable legal
protections.254
Second, Anti-Federalists denounced the militia powers to be granted to the
federal government, warning that it would destroy the militia through any number
of means—by neglecting it, by creating a select militia and then neglecting the
general militia, or (somewhat inconsistently255) by destroying the militia through
onerous discipline and excessive deployment. The arguments from neglect rested
on the premise that Congress’s power of organizing, arming, and disciplining the
militia would foreclose any such state power. If true, the militia might be left
without any government ensuring its arming and training. The arguments also
were premised on the common understanding of the “militia” as the citizen militia:
The Federal Farmer, the leading Anti-Federalist essayist, admonished that “to
preserve liberty, it is essential that the whole body of the people always possess
arms, and be taught alike, especially when young, how to use them,” and Patrick
Henry, leader in the Virginia Ratifying Convention, warned, “The great object is,
that every man be armed. . . . When this power is given up to Congress without
limitation or bounds, how will your militia be armed?”256 Anti-Federalists also
warned that Congress would use its power to establish a standing army to trample
253
See, e.g., 2 Complete Anti-Federalist, supra note 101, at 7, 11 (public objections of Mason and
Gerry); Va. Ratif. Conv., reprinted in 10 Ratification, supra note 67, at 1212 (remarks of Patrick
Henry, June 12, 1788) (invoking English Bill and state declarations); Address by Sydney (Robert
Yates) (1788), reprinted in 6 Complete Anti-Federalist, supra note 101, at 107, 109 (similar to Henry).
One of the leading arguments of this point was by the Federal Farmer. See Federal Farmer No. 16
(1788), reprinted in 2 Complete Anti-Federalist, supra note 101, at 323.
254
See, e.g., The Federalist No. 84, at 575–81 (Alexander Hamilton); Marcus No. 1, Answer to Mr.
Mason’s Objections (James Iredell) (1788), reprinted in 1 Debate on the Constitution, supra note 97, at
363–64; Marcus No. 4 (1788), reprinted in id. at 387–90; America, To the Dissenting Members of the
late Convention of Pennsylvania (Noah Webster) (1787), reprinted in 1 Debate on the Constitution,
supra note 97, at 555–60.
255
As one Federalist criticized Luther Martin, an Anti-Federalist who had been a delegate to the
Constitutional Convention: “One hour you sported the opinion, that Congress, afraid of the militia
resisting their measures, would neither arm nor organize them: and the next, as if men required no time
to breathe between such contradictions, that they would harass them by long and unnecessary marches,
till they wore down their spirit and rendered them fit subjects for despotism.” The Landholder No. 10
(1788), reprinted in 16 Ratification, supra note 67, at 265, 267 (John P. Kaminski & Gaspare J.
Saladino eds., 1986).
256
Federal Farmer No. 18 (1788), reprinted in 2 Complete Anti-Federalist, supra note 101, at 342;
Va. Ratif. Conv., in 10 Ratification, supra note 67, at 1276 (Henry, June 14, 1788).
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traditional liberties, particularly after it had destroyed the militia.257 The Federal-
ists’ response emphasized the same understanding of the citizen militia, asking
how the federal government could tyrannize over a populace armed as America’s
was.258 As already noted in Part II.D.2 above, they also argued that, in any event,
the states would retain a concurrent power over their militias, including a power to
arm them.259
Two separate categories of proposed amendments resulted from these two sets
of arguments. Proposed amendments to protect the right to keep and bear arms not
only were phrased as individual rights (even when accompanied by language
concerning the militia and civilian control of the military) but also were distinct
from proposals that would safeguard state powers over the militia or restrain
federal power to create a standing army. (Restriction on standing armies would
257
See, e.g., regarding all of these concerns, John De Witt No. 5 (1787), reprinted in 4 Complete
Anti-Federalist, supra note 101, at 36–37 (warning that federal government would neglect to arm
militia, not trusting the people, and enforce unjust laws through standing army); Pa. Ratif. Conv., in 2
Ratification, supra note 67, at 509 (remarks of John Smilie, Dec. 6, 1787) (“When a select militia is
formed; the people in general may be disarmed.”); Federal Farmer No. 3 (1787), reprinted in 2
Complete Anti-Federalist, supra note 101, at 242 (discounting safeguard of armed “yeomanry of the
people,” whom Congress would undermine through creating select militia); The Genuine Information
Delivered to the Legislature of the State of Maryland Relative to the Proceedings of the General
Convention Lately Held at Philadelphia; By Luther Martin, Esquire (1788), reprinted in 2 Complete
Anti-Federalist, supra note 101, at 59–60 (warning that Congress would use its militia and army
powers “to subvert the liberties of the States and their citizens, since we [allow an unlimited standing
army and,] by placing the militia under its power, enable it to leave the militia totally unorganized,
undisciplined, and even to disarm them”); Va. Ratif. Conv., in 10 Ratification, supra note 67, at 1271
(remarks of Mason, June 14, 1788) (warning that Congress would “disarm the people” gradually, rather
than “openly,” by “totally disusing and neglecting the militia”). Henry repeatedly denounced the al-
legedly exclusive power. See 9 Ratification, supra note 67, at 957 (June 5) (“Of what service would
militia be to you, when most probably you will not have a single musket in the State; for as arms are to
be provided by Congress, they may or may not furnish them.”); id. at 1066 (June 9) (“The power of
arming the militia, and the means of purchasing arms, are taken from the States . . . . If Congress will
not arm them, they will not be armed at all.”).
258
See, e.g., The Federalist No. 46, at 321–22 (James Madison) (contrasting the “advantage of
being armed, which the Americans possess,” with the circumstances in “several kingdoms of Eu-
rope . . . [where] the governments are afraid to trust the people with arms”); An American Citizen IV:
On the Federal Government (Tench Coxe) (1787), reprinted in 13 Ratification, supra note 67, at 433
(John P. Kaminski & Gaspare J. Saladino eds., 1981) (arguing that, if tyranny threatened, the “friends
to liberty . . . using those arms which Providence has put into their hands, will make a solemn appeal
‛to the power above’”); A Citizen of America, An Examination Into the Leading Principles of the
Federal Constitution (Noah Webster) (1787), reprinted in 1 Debate on the Constitution, supra note 97,
at 155 (“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”).
259
John Marshall, for example, provided a standard analysis: “The truth is, that when power is
given to the General Legislature, if it was in the State Legislatures before, both shall exercise it; unless
there be an incompatibility in the exercise by one, to that by the other; or negative words precluding the
State Governments from it. But there are no negative words here. It rests therefore with the States.” Va.
Ratif. Conv., in 10 Ratification, supra note 67, at 1307 (June 16, 1788).
188
Whether the Second Amendment Secures an Individual Right
help ensure that the new government maintained the militia, by ensuring the
government’s dependence on it.)
Pennsylvania’s Convention, the second to meet, ratified the Constitution by a 2
to 1 margin in December 1787, without proposing amendments.260 A week later, 21
of the 23 dissenting delegates published their Address and Reasons of Dissent
(“Minority Report”), including amendments that they had proposed but the
convention had refused to consider. It drew heavily from the 1776 Pennsylvania
Declaration of Rights. The proposal regarding arms was Article 7, immediately
following one stating that “the people have a right to the freedom of speech,” and
it read as follows:
That the people have a right to bear arms for the defence of them-
selves and their own State or the United States, or for the purpose of
killing game; and no law shall be passed for disarming the people or
any of them unless for crimes committed, or real danger of public in-
jury from individuals; and as standing armies in the time of peace are
dangerous to liberty, they ought not to be kept up; and that the mili-
tary shall be kept under strict subordination to, and be governed by
the civil powers.261
Article 8, immediately following, protected the right to hunt on one’s private
property and certain other lands.262
Separately, the Minority sought, in Article 11, both to restrict Congress’s Arti-
cle I, Section 8, Clause 16 powers over the militia and to protect state authority
over it, by providing “[t]hat the power of organizing, arming and disciplining the
militia (the manner of disciplining the militia to be prescribed by Congress),
remain with the individual States.”263 They warned that, without this restriction,
Congress’s power over the militia could place “every man, probably from sixteen
to sixty years of age” under Congress’s power and military discipline—
260
Delaware already had ratified unanimously. After Pennsylvania’s vote, New Jersey, Georgia,
and Connecticut ratified by large majorities. No proposed amendments emerged from these conven-
tions. See 2 Schwartz, Bill of Rights, supra note 67, at 627, 674. Maryland ratified on April 26, 1788,
without proposing amendments, although a committee had approved several, including a prohibition on
subjecting the militia to martial law “except in time of war, invasion, or rebellion.” The committee
understood the militia to consist of “all men, able to bear arms,” which would make martial law for the
militia a pretext for applying it to the populace. See id. at 729–30, 734–35.
261
2 Schwartz, Bill of Rights, supra note 67, at 665. Tench Coxe, in a critique of the Minority,
described this proposal as a “provision against disarming the people.” Philanthropos, Penn. Gazette,
1788, reprinted in 15 Ratification, supra note 67, at 391, 393.
262
2 Schwartz, Bill of Rights, supra note 67, at 665. Noah Webster suggested that the Minority also
propose “[t]hat Congress shall never restrain any inhabitant of America from eating and drinking, at
seasonable times.” His serious criticism of Article 8 was that it was useless because aimed at game
laws, which had never existed in America. He did not comment on Article 7. America, Daily
Advertiser, 1787, reprinted in 1 Debate on the Constitution, supra note 97, at 559–60.
263
2 Schwartz, Bill of Rights, supra note 67, at 665.
189
Opinions of the Office of Legal Counsel in Volume 28
particularly “our young men, . . . as a select militia, composed of them, will best
answer the purposes of government”—and also could leave conscientious
objectors compelled to bear arms in the militia.264 As in Pennsylvania’s 1776
declaration and constitution, a right to bear arms was distinct from bearing arms in
service to the government. There was no suggestion that the individual right
somehow would directly guard the states’ power, and this separate proposal and
comment indicate that the Minority believed that it would not.
The Massachusetts Convention was the first to include with its ratification, in
February 1788, a list of recommended amendments. The Federalists prepared and
had John Hancock introduce the nine proposals to woo marginal Anti-Federalists.
Samuel Adams, while supporting Hancock’s list, also led an effort to add several
rights that would appear in the First, Second, and Fourth Amendments, plus a ban
on standing armies “unless when necessary for the defence of the United States, or
of some one or more of them.” Regarding arms, he proposed that the Constitution
“be never construed to authorize Congress . . . to prevent the people of the United
States, who are peaceable citizens, from keeping their own arms.” This language
indicated that the “people” consisted of the “citizens,” who would, so long as they
were peaceable, individually keep private arms. Adams’s proposed additions were
voted down, and the Convention then narrowly voted to ratify and to recommend
the Federalists’ list.265
Four months later, New Hampshire’s Convention, also closely divided, adapted
some of Adams’s proposals.266 It recommended the nine amendments that Massa-
chusetts had, but added three: one calling for a supermajority before Congress
could keep up a standing army in peacetime; the next barring Congress from
making laws regarding religion or infringing the rights of conscience; and the final
one providing that “Congress shall never disarm any Citizen unless such as are or
have been in Actual Rebellion.”267 New Hampshire thus became the first state
whose ratifying convention as a body recommended that the Constitution protect a
right to arms. Again, the right belonged to the individual citizen.
Although New Hampshire had provided the crucial ninth state for the Constitu-
tion to take effect,268 the convention of Virginia, occurring simultaneously and
concluding four days later (on June 25, 1788), had particular importance, not only
because of the possibility that Virginia would be the ninth state to ratify but also
because of the state’s significance, the prominence of its leaders, and the strength
264
Id. at 671–72.
265
Id. at 674–75, 681. South Carolina ratified in May 1788 without proposing any relevant amend-
ments. See id. at 739, 756–57.
266
The convention had adjourned in February 1788 to avoid a vote against ratification. When it
reconvened in the summer, it ratified by a vote of 57 to 47. See id. at 758.
267
Id. at 761; see id. at 758 (noting that the first nine New Hampshire amendments “were taken
almost verbatim from those proposed by Massachusetts”).
268
Id. at 758. See U.S. Const. art. VII.
190
Whether the Second Amendment Secures an Individual Right
of the Anti-Federalists, led by Patrick Henry.269 The convention did vote to ratify,
but also recommended numerous amendments. Written by a committee of Mason,
Henry, Madison, George Wythe, and John Marshall, twenty were proposed for a
separate bill of rights and twenty for the body of the Constitution. Those in the
former category amounted to the first full bill of rights proposed by a state
convention, and most made their way into the federal Bill of Rights.270
The proposal regarding arms appeared in the bill, immediately after the
“right[s]” of “the people” to assemble and petition and to speak, write, and
publish. It was a synthesis from the leading state declarations, providing:
That the people have a right to keep and bear arms; that a well-
regulated militia, composed of the body of the people trained to
arms, is the proper, natural, and safe defence of a free state; that
standing armies, in time of peace, are dangerous to liberty, and there-
fore ought to be avoided, as far as the circumstances and protection
of the community will admit; and that, in all cases, the military
should be under strict subordination to, and governed by, the civil
power.271
The two strands evident in the Revolutionary Era—an individual right to arms and
high regard for the citizen militia—were brought together: The proposal combined
an individual right to arms provision such as those from the Pennsylvania and
Massachusetts Declarations with the praise of the militia from Virginia’s. The
“people” would have a right to keep and bear arms, and a well-regulated militia
composed “of the body of the people”—the people as an organized whole—would
protect “a free state.” This language became the foundation for the Second
Amendment. In addition, the combination of the two clauses indicates (as the
differing first clauses of the analogous articles in the Virginia and Pennsylvania
Declarations had done separately) that the individual right and the well-regulated
militia both would contribute to the avoidance of standing armies and to civilian
rule.
Only in its separate list of amendments for the body of the Constitution did the
Virginia convention directly protect the power of states to maintain militias and
restrict the federal power to raise standing armies. It recommended a supermajori-
ty vote for Congress to maintain a peacetime army (in the spirit of Samuel Adams
and the New Hampshire Convention), and it sought to protect state power over the
militia (much as the Pennsylvania Minority had) with the following provision:
269
See 2 Schwartz, Bill of Rights, supra note 67, at 762, 764.
270
See id. at 765–66.
271
2 Schwartz, Bill of Rights, supra note 67, at 842. Mason drafted this provision. See 9 Ratification,
supra note 67, at 821 (reprinting Mason’s draft). Two articles later, Virginia also proposed exemptions for
those “religiously scrupulous of bearing arms,” again borrowing from Pennsylvania’s Declaration.
2 Schwartz, Bill of Rights, supra note 67, at 842.
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Opinions of the Office of Legal Counsel in Volume 28
That each state respectively shall have the power to provide for or-
ganizing, arming, and disciplining its own militia, whensoever Con-
gress shall omit or neglect to provide for the same.272
These distinct proposals confirm what is evident from the declarations included
with the proposal for the bill of rights: The individual right of the people to keep
and bear arms does not directly guard any power of states to maintain militias.
(Much less does it guarantee against standing armies.) But it does indirectly
further the policy of having a well-regulated militia of the body of the people, as
well as that of mitigating the need for and risk from a standing army.
The New York Convention, voting just over a month after Virginia’s (and
ratifying by only 30–27), followed Virginia’s model. The separate declaration of
rights included both an individual right to keep and bear arms (immediately after
the “right” of “the People” to free exercise of religion) and declarations regarding
the militia and standing armies:
That the People have a right to keep and bear Arms; that a well regu-
lated Militia, including the body of the People capable of bearing
arms, is the proper, natural, and safe defence of a free State.
....
That standing Armies in time of Peace are dangerous to Liberty, and
ought not to be kept up, except in Cases of necessity; and that at all
times, the Military should be under strict Subordination to the civil
Power.273
For the body of the Constitution, New York proposed, like New Hampshire and
Virginia, an amendment requiring a supermajority for Congress to maintain a
peacetime standing army. It did not propose express protection of state power over
the militia.274
The force of Virginia’s proposals is evident not only in New York’s borrowing
but also in the first North Carolina Convention. On August 1, 1788, North
Carolina became the only state to decline to ratify until the Constitution had been
amended to include a bill of rights (Rhode Island had declined even to call a
convention), and it proposed verbatim the amendments that Virginia had pro-
posed—including the individual right to keep and bear arms and the separate
proposals, for the body of the Constitution, guarding state power over the militias
and mandating supermajorities for standing armies. North Carolina’s actions made
272
2 Schwartz, Bill of Rights, supra note 67, at 843.
273
Id. at 912. New York did not propose any protection for conscientious objectors.
274
Id. at 915, 918.
192
Whether the Second Amendment Secures an Individual Right
the momentum for a bill of rights “virtually irresistible,” and, two months after
Congress approved one, a new convention ratified.275
Every recommendation in these state conventions regarding the right to arms
sought to protect an individual right—not a “right” to maintain well-regulated
state militias, whether belonging to the states or to those serving in such entities
(much less belonging just to those serving in well-regulated select militias).
Virginia, New York, and North Carolina also appended declaratory clauses to the
right suggesting that it would benefit the citizen militia, preserve the freedom of
the state, and reduce the need for or risk from a standing army. But those states
that wanted to protect state authority to maintain militias (Virginia and North
Carolina) followed the lead of the Pennsylvania Minority by proposing separate
amendments doing so directly, intended not for the bill of rights but for the body
of the Constitution. Thus, regarding the right to arms, those who ratified the
Constitution did nothing novel, but rather followed the path marked by the state
declarations and the earlier right from England. They proposed an individual right,
not a “right” of states and not a right restricted to their militias or militiamen. As
the First Congress met, it had before it numerous proposals for an individual right
to arms and a few proposals for safeguarding state militias by directly protecting
state authority, but none for protecting that authority through a collective or quasi-
collective “right” to arms.
2. The Drafting and Ratification of the Second Amendment
When the First Congress convened in 1789, Federalist Congressman James
Madison moved quickly to win over marginal Anti-Federalists by responding to
the calls for a bill of rights. The House soon approved seventeen amendments. The
Senate reduced these to twelve, of which the states ratified the ten that form the
Bill of Rights.
The Federalists, victorious in ratification and dominant in Congress, openly
avoided any amendment that would materially alter the balance of power with the
states or otherwise threaten legitimate federal powers. Thus, the amendments that
Congress approved were devoted almost exclusively to protecting individual
rights. Of the categories of proposals discussed in the previous subpart, only the
first—the individual right of the people to keep and bear arms—received approval.
The separate proposals for protecting state power to organize, discipline, and arm
the militia and for restricting federal power to maintain standing armies failed.
President Washington set the stage in his inaugural address, urging Congress to
consider amendments out of “a reverence for the characteristic rights of freemen”
but “carefully avoid every alteration which might endanger the benefits of an
275
Id. at 932–33, 968–69; Halbrook, Right to Bear Arms, supra note 56, at 33–34.
193
Opinions of the Office of Legal Counsel in Volume 28
united and effective government.”276 Madison reiterated this view in introducing
his proposals in June 1789:
It will be a desirable thing to extinguish from the bosom of every
member of the community, any apprehensions that there are those
among his countrymen who wish to deprive them of the liberty for
which they valiantly fought and honorably bled.
....
I should be unwilling to see a door opened for a re-consideration of
the whole structure of the government, for a re-consideration of the
principles and the substance of the powers given . . . . But I do wish
to see a door opened to consider, so far as to incorporate those provi-
sions for the security of rights . . . .
....
I believe that the great mass of the people who opposed [the Consti-
tution], disliked it because it did not contain effectual provision
against encroachments on particular rights, and those safeguards
which they have been long accustomed to have interposed between
them and the magistrate who exercised the sovereign power.277
Madison also urged Congress to “expressly declare the great rights of mankind”
and provide “those securities for liberty” demanded by North Carolina and Rhode
Island. In contrast, he was confident that those who opposed the Constitution’s
“structure,” powers, or restrictions on state powers were a much smaller group.278
Other congressmen similarly hoped that such an approach would win over many
of the disaffected in various states.279
Anti-Federalist leaders recognized this focus on individual rights. Richard
Henry Lee, one of Virginia’s first senators, reported to Patrick Henry about a week
before Madison’s speech “that many of our amendments will not succeed, but my
276
First Inaugural Address (Apr. 30, 1789), reprinted in 1 A Compilation of the Messages and
Papers of the Presidents 43, 45 (James D. Richardson ed., 1897).
277
Speech of Madison (June 8, 1789), reprinted in Creating the Bill of Rights, supra note 82, at 78–
79.
278
Id.
279
See Letter from Rep. Fisher Ames to George R. Minot (July 23, 1789) (discussing North Caroli-
na), reprinted in Creating the Bill of Rights, supra note 82, at 269; Letter from Rep. William L. Smith
to Edward Rutledge (Aug. 9, 1789) (North Carolina; noting disposition of House to “agree to some,
which will more effectually secure private rights”), reprinted in id. at 272–73; Letter from Rep.
Frederick A. Muhlenberg to Benjamin Rush (Aug. 18, 1789) (Pennsylvania Minority), reprinted in id.
at 280.
194
Whether the Second Amendment Secures an Individual Right
hopes are strong that such as may effectually secure civil liberty will not be
refused.”280 Soon after Madison spoke, Virginia’s other senator, William Grayson,
wrote to Henry that Madison’s proposals “altogether respected personal liberty.”281
Among Madison’s proposals was the following, which became the Second
Amendment:
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.282
The first and second clauses resembled the proposals of the Virginia, New York,
and North Carolina conventions, including by making the connection between the
individual right and the militia. The first clause stated, as they had, a right both to
keep and to bear arms, which belonged to “the people.” Having made this into a
full sentence, Madison made the second clause, which had been free-standing in
the Virginia, New York, and North Carolina proposals, subordinate to the first. In
shortening the second clause, he omitted the definition of the militia, just as
Delaware, Maryland, and New Hampshire had done in their declarations of
rights.283 He also omitted the conventions’ disparagement of standing armies and
admonition to civilian rule, and appended protection for conscientious objectors,
which the Pennsylvania Minority, Virginia, and North Carolina had separately
requested. As the Pennsylvania and Vermont Declarations had shown even before
ratification, there was no inconsistency in recognizing both an individual right to
“bear arms” and an individual exemption from being compelled to “bear arms” in
military service.
That Madison envisioned this proposed “right of the people” to secure an indi-
vidual right is confirmed by the notes for his speech, in which he wrote that those
provisions “relat[ing] to what may be called a bill of rights,” including this one,
“relate . . . to private rights”;284 by his using in his speech the same language to
discuss both the rights of English subjects and those in his proposed bill;285 and by
280
Letter from Lee to Henry (May 28, 1789), reprinted in Creating the Bill of Rights, supra note
82, at 241.
281
Letter from Grayson to Henry (June 12, 1789), reprinted in id. at 249. See also Letter from
Joseph Jones to Madison (June 24, 1789), reprinted in id. at 253 (describing Madison’s proposed
amendments as well “calculated to secure the personal rights of the people”).
282
Madison Resolution (June 8, 1789), reprinted in id. at 12.
283
See above Part III.B.2, at note 225 (discussing differences from Virginia Declaration).
284
Notes for Speech in Congress (ca. June 8, 1789), reprinted in 12 The Papers of James Madison
193, 193 (Charles F. Hobson et al. eds., 1979) (emphasis added); see id. at 194–95; Speech of Madison,
reprinted in Creating the Bill of Rights, supra note 82, at 80.
285
Compare Speech of Madison, reprinted in Creating the Bill of Rights, supra note 82, at 80
(discussing “the declaration of rights” of England), with id. at 84 (concluding by describing his
proposals “as a declaration of the rights of the people”). In his notes, although apparently not in his
195
Opinions of the Office of Legal Counsel in Volume 28
the location in the body of the Constitution in which he proposed to place these
amendments. He recommended that the right to arms, along with antecedents of
the First, Third, Fourth, Eighth, Ninth, and portions of the Fifth and Sixth
Amendments, be added in Article I, Section 9, immediately after clauses protect-
ing three other individual rights: the writ of habeas corpus and the prohibitions
against ex post facto laws and bills of attainder.286 It is reasonable to assume that
Madison viewed the additional rights as likewise belonging to the individual.287
Had he instead intended to protect state militias (whether directly through a
collective right or indirectly through a quasi-collective right), a more reasonable
location would have been in or near the two clauses in Article I, Section 8, that
granted congressional power over the militia, one of which already “reserv[ed] to
the States” certain powers over the militia. And Madison likely would have drawn
from the separate language that Virginia and others had proposed for just this
purpose—but those proposals had the potential to threaten the balance of powers,
at least by inviting disputes over whether the federal government had “ne-
glect[ed]” the militia.
Others also understood Madison’s proposal to secure an individual right to
keep and bear arms. Leading Federalist Congressman Fisher Ames wrote: “Mr.
Madison has introduced his long expected Amendments. . . . It contains a Bill of
Rights . . . [including] the right of the people to bear arms.”288 Elsewhere he wrote:
“The rights of conscience, of bearing arms, of changing the government, are
declared to be inherent in the people.”289 Tench Coxe took the same view in his
Remarks on the First Part of the Amendments to the Federal Constitution,
published in the major cities. Writing as “A Pennsylvanian” (a pseudonym that he
had used during the ratification debates), he explained the right that Madison’s
proposal protected as follows:
speech, he pointed out that the English right to arms was limited to Protestants. 12 Madison Papers,
supra note 284, at 193–94.
286
See Creating the Bill of Rights, supra note 82, at 12 (Madison’s proposal); id. at 80, 84 (Madi-
son’s speech). His separate proposal of what would become the Tenth Amendment was to be placed
between Articles 6 and 7, as its own article. Id. at 13–14.
287
The arguable exception, as discussed above in Part II.D.1 regarding the Establishment Clause,
was a prohibition on “any national religion.” Madison proposed other amendments that did not relate to
private rights, such as altering the ratio of representation in the House of Representatives and banning
increases of legislator pay without an ensuing election, but he proposed to place these elsewhere in the
Constitution. Id. at 12.
288
Letter from Ames to Thomas Dwight (June 11, 1789), reprinted in Creating the Bill of Rights,
supra note 82, at 247.
289
Letter from Ames to George R. Minot (June 12, 1789), reprinted in Creating the Bill of Rights,
supra note 82, at 247–48. The right of “changing the government” to which Ames referred was a
provision, in a separate section of Madison’s proposal, affirming the right of the people “to reform or
change their government, whenever it be found adverse or inadequate to the purposes of its institution.”
Regarding such usage of the “the people,” see Part II.A above.
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Whether the Second Amendment Secures an Individual Right
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 . . . article in their right to keep and bear their private arms.290
Coxe recognized that the “right” of “the people” belonged to the “citizens,” who
could both keep and bear “private” arms. He sent his Remarks to Madison the day
that they were published, and Madison six days later returned thanks for his
“explanatory strictures” and the “co-operation of your pen,” noting from New
York City that the Remarks “are already I find in the Gazettes here.”291 Neither
Madison nor, it appears, anyone else disputed Coxe’s interpretation.292 Samuel
Nasson, who had been an Anti-Federalist delegate to the Massachusetts Ratifying
Convention, described the right similarly in a letter to a Federalist congressman
from the state a month after Madison introduced his proposals:
I find that Ammendments are once again on the Carpet. I hope that
such may take place as will be for the Best Interest of the whole[.] A
Bill of rights well secured that we the people may know how far we
may Proceade in Every Department[,] then their will be no Dispute
Between the people and rulers[.] [I]n that may be secured the right to
keep arms for Common and Extraordinary Occations such as to se-
cure ourselves against the wild Beast and also to amuse us by fowl-
ing and for our Defence against a Common Enemy[.] [Y]ou know to
learn the Use of arms is all that can Save us from a forighn foe that
may attempt to subdue us[,] for if we keep up the Use of arms and
become acquainted with them we Shall allway be able to look them
in the face that arise up against us[.]293
290
Philadelphia Fed. Gazette, June 18, 1789, at 2, excerpted in Kates, supra note 33, 82 Mich. L.
Rev. at 224 & nn. 81–82. The Remarks were reprinted within three weeks in newspapers in Boston (on
the front page of a special July 4 issue) and New York. See Stephen P. Halbrook & David B. Kopel,
Tench Coxe and the Right to Keep and Bear Arms, 1787–1823, 7 Wm. & Mary Bill Rts. J. 347, 367
(1999).
291
See Letter from Coxe to Madison (June 18, 1789), reprinted in Creating the Bill of Rights, supra
note 82, at 252–53; Letter from Madison to Coxe (June 24, 1789), reprinted in 12 Madison Papers,
supra note 284, at 257; see also Creating the Bill of Rights, supra note 82, at 254 (excerpting
Madison’s letter).
292
See Halbrook, That Every Man Be Armed, supra note 33, at 77 (noting that author’s “search of
the literature of the time reveals that no writer disputed or contradicted Coxe’s analysis”).
293
Letter from Nasson to Thatcher (July 9, 1789), reprinted in Creating the Bill of Rights, supra
note 82, at 260–61 (sic); see id. at 309 (brief biography of Nasson).
197
Opinions of the Office of Legal Counsel in Volume 28
Like Coxe and others, Nasson understood “the people” as distinct from the
government, and included in “the right” of the people private ownership and
private uses of arms.
In late July 1789, a committee, to which had been referred both Madison’s
proposals and all amendments that ratifying conventions had proposed, issued a
revised draft. It provided:
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.294
The Committee had left unchanged the text of Madison’s independent clause
stating the right. But it had inverted the first two clauses, modified the language
regarding the militia to return it somewhat to what had been proposed by some of
the state conventions (including by defining the militia), and revised the conscien-
tious objector clause.
There is no reason to suppose that the mere reversal of order, or any of the other
changes, had altered the right that Madison, and the ratifying conventions before
him, had set out: The operative text of the independent clause was unchanged from
Madison’s draft, with the militia clause retaining its subordinate relationship;
Madison had served on the committee, which does not seem to have had any serious
disagreements over content;295 and the committee had retained Madison’s proposal
that this amendment, along with the rest of the “Bill of Rights,” be placed among the
three pre-existing individual rights in Article I, Section 9, albeit moved forward one
clause.296 In the ensuing debates, no member of the House suggested that any change
in the right had occurred. The Speaker of the House, from Pennsylvania, wrote to a
leading fellow Federalist in the state that the committee’s proposals “take[] in the
principal Amendments which our Minority had so much at heart”; the Minority had,
as discussed above, proposed an individual right to bear arms.297 And an article in
Boston, reprinted in Philadelphia, described the committee’s proposal as containing
“[e]very one of” the amendments “introduced to the convention of this common-
294
Creating the Bill of Rights, supra note 82, at 30.
295
Id. at 6, 102–03; see Letter from Madison to Wilson Cary Nicholas (Aug. 2, 1789), reprinted in
id. at 271 (referring to “the concord” of the committee); Letter from Roger Sherman to Henry Gibbs
(Aug. 4, 1789), reprinted in id. (another committee member, predicting that committee’s proposals
“will probably be harmless & Satisfactory to those who are fond of Bills of rights,” although noting his
desire to place them at the end of the Constitution).
296
See id. at 30. The separate placement of what would become the Tenth Amendment remained
unchanged, and Madison’s other proposals, noted above, also remained separate.
297
Letter from Rep. Frederick A. Muhlenberg to Benjamin Rush (Aug. 18, 1789), reprinted in
Creating the Bill of Rights, supra note 82, at 280 (writing after the first day of debate that involved the
arms provision, in which no changes were made, and describing proposed amendments to date as
“nearly the same as” the committee “had reported them”).
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Whether the Second Amendment Secures an Individual Right
wealth by . . . Samuel Adams” (except the restriction against a standing army),
including that “the said constitution be never construed . . . to prevent the people of
the United States who are peaceable citizens, from keeping their own arms.”298
Clearly, the committee’s proposed amendment on arms, like Madison’s and like
Adams’s, was understood to protect an individual right.
In floor debate that began in mid-August, the focus was on the concluding
exemption for conscientious objectors and thus on militia service rather than “the
right of the people” that the committee’s draft secured. Representative Gerry of
Massachusetts, who had refused to sign the Constitution and was a leading Anti-
Federalist,299 objected that this final clause would enable the federal government to
“declare who are those religiously scrupulous, and prevent them from bearing
arms.” This, he warned, “together with [Congress’s] other powers,” would enable
Congress to “destroy the militia” and establish “a standing army, the bane of
liberty.”300 He moved to narrow the clause, but after a debate, including an effort to
delete it, the House approved the committee’s draft. Immediately after, it resound-
ingly defeated another Anti-Federalist’s motion to require a supermajority to
authorize a standing army in peacetime.301
It does not appear from the debates that any congressman shared Gerry’s con-
cern, but, in any event, his concern seems more consistent with a view that the
amendment secured an individual right than with the alternative views. Gerry
presumed that the first two clauses—praising the well-regulated militia and setting
out the right of the people—would not suffice to protect the militia in the face of
affirmative federal efforts to undermine it. The individual right was inadequate to
do so. That understanding is consistent with the individual right view, as we
explained above in Part II.C. It also was the understanding, and concern, implicit
in the dual recommendations of Virginia, North Carolina, and the Pennsylvania
Minority, which sought separately to protect both state militia powers and the
individual right to arms. In addition, if the “right of the people . . . to bear arms”
meant some right restricted to serving in an organized militia, rather than a
personal right, Gerry’s concern would not have made sense: Persons whom
Congress declared religiously scrupulous pursuant to the proposed amendment,
although therefore not “compelled to bear arms” in the militia, still would, under a
298
From the Bos. Indep. Chronicle, Phila. Indep. Gazetteer, Aug. 20, 1789, at 2, excerpted in Hal-
brook, Right to Bear Arms, supra note 56, at 45.
299
At the Constitutional Convention, Gerry had bitterly opposed the federal powers over the militia
in Article I, Section 8, Clause 16. Madison, Notes of Debates, supra note 44, at 513–16 (Aug. 23,
1787). Regarding his Anti-Federalist writings during ratification, see 1 Schwartz, Bill of Rights, supra
note 67, at 464–65, 480–93, he had attended the Massachusetts Convention as an invited observer and
helped lead the opposition, id. at 465. Presumably, therefore, he supported Samuel Adams’s proposed
amendments, even though he also desired additional ones. See id. at 486–89.
300
Remarks of Gerry (Aug. 17, 1789), reprinted in Creating the Bill of Rights, supra note 82, at
182.
301
See Creating the Bill of Rights, supra note 82, at 183–85.
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Opinions of the Office of Legal Counsel in Volume 28
quasi-collective right view of the other clauses of the amendment, have some right
to do so, and thus Congress could not, as Gerry charged, “prevent them” from
serving.
After more debate over the conscientious objector clause on August 20, the
House added back “in person” at the end and approved the draft.302 It attached all
of the amendments to the end of the Constitution rather than incorporating them,
but no substantive change was intended.303 The right of the people to keep and bear
arms was the fifth of the seventeen proposed amendments that the House then sent
to the Senate.304
An Anti-Federalist who during the ratification debates had written widely
published essays as “Centinel” was enraged enough by the House’s failure to
restrict federal, and protect state, power that he took up his pen again, as Centinel
Revived.305 He denounced “the partial amendments making [sic] by Congress” and
lamented that, although “many of these amendments are very proper and neces-
sary, yet . . . the constitution is suffered to retain powers that may not only defeat
their salutary operation, but may, and incontrovertibly will be so decisively
injurious as to sweep away every vestige of liberty.” He highlighted the Second
Amendment for criticism:
It is remarkable that this article only makes the observation, “that a
well regulated militia, composed of the body of the people, is the
best security of a free state”; it does not ordain, or constitutionally
provide for, the establishment of such a one. The absolute command
vested by other sections in Congress over the militia, are not in the
least abridged by this amendment.306
302
See id. at 198–99. The addition may have been an effort to partially satisfy Representative Scott,
by ensuring that Congress could at least require conscientious objectors to provide an equivalent.
Unlike Gerry, he objected to the exemption because he worried that citizens, rather than Congress,
would abuse it, with the result that “you can never depend upon your militia.” He added, “This will
lead to the violation of another article in the constitution, which secures to the people the right of
keeping arms, as in this case you must have recourse to a standing army.” Id. at 198. While this cryptic
and elliptical comment conceivably might be construed to suggest a quasi-collective right, its meaning
is far from clear, and we find little probative value in it. The Fifth Circuit in Emerson reasonably
concluded that Scott’s comment “does not plainly lend support to any of the Second Amendment
models,” 270 F.3d at 248, and the Ninth Circuit in Silveira did not cite it, see 312 F.3d at 1085–86.
303
See Creating the Bill of Rights, supra note 82, at 117–28 (debate of Aug. 13, 1789); id. at 197–
98 (debate of Aug. 19, 1789).
304
Id. at 37–41.
305
“The most prolific and one of the best known of the Anti-Federalist essayists was the Centinel,
whose essays appeared in the Philadelphia Independent Gazetteer and the Philadelphia Freeman’s
Journal and were widely reprinted.” 2 Complete Anti-Federalist, supra note 101, at 130. He published
twelve essays as Centinel Revived. Id.
306
Centinel (Revived), No. 29 (1789), Phila. Indep. Gazetteer, Sept. 9, 1789, quoted in Emerson,
270 F.3d at 255.
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Whether the Second Amendment Secures an Individual Right
Centinel understood the Second Amendment not to constrain Congress’s Article I,
Section 8 “absolute command” over the militia or otherwise secure any power of
the states to maintain one (whether by creating a “right” of states or of the
members of their organized militia units), and understood the Amendment’s
prefatory praise of the militia—a mere “observation”—not to have any operative
effect. The reasonable inference is that he viewed the “right of the people to keep
and bear arms” as one belonging to individuals.
The Senate reduced the House’s proposed amendments to twelve in early Sep-
tember.307 In so doing, it made three changes in what would become the Second
Amendment: (1) deleting “composed of the body of the people,” (2) replacing “the
best” with “necessary to the,” and (3) deleting the conscientious objector clause. It
also voted down a motion to insert “for the common defense” immediately after
“to keep and bear Arms.”308 The Senate deliberated in secret, and its minutes are
conclusory, so it is difficult to discern the reasons for these changes. One could
argue that some of them (deletion of the conscientious objector clause and
rejection of the “common defense” clause) tend to support the individual right
view of the Amendment, although contrary arguments are no doubt possible.309
One also could argue that deletion of the definition of the militia cuts against the
individual right view’s reading of the prefatory language, although there, too, a
counter-argument is possible.310 Because of the lack of historical records and the
multiple possible explanations, we are reluctant to attribute any material signifi-
cance to these actions.
We do, however, find it significant that the Senate rejected a motion to add a
separate amendment securing state power to organize, arm, and discipline the
militias if Congress should “omit or neglect” to do so.311 Notwithstanding the lack
of historical records of the deliberations on this motion, the broader historical
307
The Senate combined provisions (such as in creating what became the First and Fifth Amend-
ments) and rejected House provisions regulating appeals to the Supreme Court; applying religion,
speech, press, and criminal jury protections to the states; and prohibiting violations of the separation of
powers. See 2 Schwartz, Bill of Rights, supra note 67, at 1145–47 (summarizing changes); compare
Creating the Bill of Rights, supra note 82, at 37–41 (House proposals), with id. at 47–49 (Senate).
308
See Creating the Bill of Rights, supra note 82, at 39 n.13; 2 Schwartz, Bill of Rights, supra note
67, at 1153–54 (Sen. Journal).
309
See Uviller & Merkel, supra note 45, 76 Chi.-Kent L. Rev. at 507 (theorizing that vote on
common defense clause was prompted by desire to avoid either redundancy or the objection that the
amendment failed to protect militia service in defense of a state, as opposed to the “common” national
defense). The deletion of the troublesome conscientious objector clause could have been simply
because of a desire, as voiced in the House, to leave the matter to Congress’s discretion, see, e.g.,
Remarks of Rep. Benson (Aug. 17, 1789), reprinted in Creating the Bill of Rights, supra note 82, at
184, without affecting the right one way or the other.
310
One could argue that the definition was considered superfluous. See 2 Schwartz, Bill of Rights,
supra note 67, at 1145 (observing that Senate in its revisions of the House proposals generally
“tighten[ed] up the language of the House version, striking out surplus wording and provisions.”); Part
II.C.2–4 (discussing meaning of “Militia” at the time).
311
2 Schwartz, Bill of Rights, supra note 67, at 1152 (Sen. Journal).
201
Opinions of the Office of Legal Counsel in Volume 28
context suggests that, had Congress sought to secure the states’ ability to maintain
organized militia units, adopting this provision is how it would have done so. It is
hard to ascribe this vote to a view that the proposed amendment was redundant
with the right of the people to keep and bear arms: Not only are the texts of the
two provisions markedly different, but also, as explained in the previous subpart,
the Virginia and North Carolina Ratifying Conventions (from which the rejected
language was directly taken) had made distinct proposals, one covering the right to
arms and the other covering state power over the militia (the Pennsylvania
Minority also had done this). In addition, the Senate was even more Federalist
than the House (Lee and Grayson of Virginia being the only Anti-Federalists
among the 22 senators).312 As already noted, the Federalists were determined to
avoid amendments affecting the federal-state balance of power and instead to
focus on individual rights. If senators had thought that what became the Second
Amendment had the effect of this rejected provision, one would have expected
them to have refused to approve it as well. Finally, the two Anti-Federalist
senators acknowledged that their efforts to obtain amendments affecting the
federal-state balance had failed. Senator Lee, like Centinel, complained, in a letter
to Patrick Henry, that the amendments were inadequate for “securing the due
Authority of the States.”313 Senators Lee and Grayson jointly informed the Virginia
legislature of their failure to secure the “Radical Amendments proposed by the
Convention.”314 Thus, the Senate continued the House’s approach—rejecting
attempts to restrict congressional powers or augment state powers, while securing
individual rights in the hope of creating a national consensus in favor of the new
government.
On September 24, 1789, a conference committee agreed to some changes in the
Senate’s proposed amendments, but there was no change in (or effort to change)
the Senate’s version of what became the Second Amendment. Congress, through
the President, then sent the twelve proposed amendments to the then-eleven states
for ratification and to North Carolina and Rhode Island (which still had not ratified
the Constitution).315 The records of the state ratifying conventions are sparse and
do not appear to provide any significant material concerning the meaning of the
312
See Creating the Bill of Rights, supra note 82, at xii; Letter from Madison to Jefferson (Mar. 29,
1789), reprinted in id. at 225.
313
Letter from Lee to Henry (Sept. 14, 1789), reprinted in id. at 295. The Senate also, like the
House, had rejected a proposal to append to what became the Second Amendment a supermajority
requirement for peacetime standing armies, a provision to help ensure that Congress would depend on
and therefore provide for the militia. 2 Schwartz, Bill of Rights, supra note 67, at 1149 (Sen. Journal);
see Creating the Bill of Rights, supra note 82, at 38–39 n.13.
314
Letter from Lee and Grayson to the Speaker of the Virginia House of Delegates (Sept. 28, 1789),
reprinted in Creating the Bill of Rights, supra note 82, at 299.
315
See id. at 49–50 (Conference Committee Report and House Resolution); id. at 296–98 (various
letters of Sept. 1789, including by Madison, detailing concerns with certain Senate revisions but not
mentioning Second Amendment); 2 Schwartz, Bill of Rights, supra note 67, at 1171–73 (regarding
presidential transmittal).
202
Whether the Second Amendment Secures an Individual Right
Second Amendment right.316 The states approved ten of the twelve proposed
amendments, and in March 1792, Secretary of State Jefferson officially declared
the Bill of Rights ratified.317
The history in this subpart of the immediate development of the Second
Amendment reveals a right consistent with, and developed from, the individual
right to arms that had been inherited from England, recognized and invoked in
revolutionary America, and codified to various extents in early state declarations
of rights. In addition, the early states prized a well-regulated citizen militia, as
some of their declarations recognized, and understood the individual right to arms
to facilitate such a militia. The Second Amendment, following the lead of several
of the ratifying conventions, reflects the contemporaneous understanding of this
relationship; in so doing, it grants the right to “the people,” not to the “Militia”
(much less to members of select militia units), or to the “State.” Nor does the
history support limiting the right secured by the Amendment to any of these
entities. Indeed, those who wanted to ensure that the states could have fully
functioning militias proposed a separate amendment, expressly protecting state
power. Their proposals failed.318 Thus, the history of the Amendment, like its text,
indicates that the Second Amendment’s “right of the people to keep and bear
Arms” is not collective or quasi-collective but rather is a personal right that
belongs to individuals.
IV. The Early Interpretations
Our analysis of the Second Amendment’s text and history in the two preceding
parts of this memorandum is supported by the views of those who first interpreted
the Amendment. In the generations immediately following its ratification, the
three leading commentators to consider the Second Amendment each recognized
that its right of the people to keep and bear arms belonged to individuals, not to
states and not just to members of militias (whether of organized, select militia
units or even of the citizen militia). Nearly all of the discussions of the antebellum
courts, including in the leading cases, understood the right in the same way,
whether they were considering the Second Amendment or similar provisions in
316
See 2 Schwartz, Bill of Rights, supra note 67, at 1171–72 (“[W]e know practically nothing about
what went on in the state legislatures during the ratification process” and “[e]ven the contemporary
newspapers are virtually silent.”); Emerson, 270 F.3d at 255 (without comment, omitting discussion of
ratification); Silveira, 312 F.3d at 1086 (same).
317
2 Schwartz, Bill of Rights, supra note 67, at 1171, 1203. One of the two not then ratified was
ratified in 1992 as the Twenty-Seventh Amendment, which relates to congressional pay. The other
addressed the size of the House.
318
And even if one believes, contrary to the historical record, that Anti-Federalists’ concerns about
the militia were resolved in their favor, the Anti-Federalists’ insistence on the superiority of a citizen
militia to a select militia, noted at the beginning of Part III.C, would lead to the understanding of the
Amendment’s prefatory clause that we set out in Part II.C, an understanding that is, as we explained,
fully consistent with the individual right view of the Second Amendment.
203
Opinions of the Office of Legal Counsel in Volume 28
state constitutions. This early understanding of a personal right continued at least
through Reconstruction. The modern alternative views of the Second Amendment
did not take hold until 1905, well over a century after the Amendment had been
ratified.
A. The First Commentators
In the first few decades after the Second Amendment was drafted and ratified,
each of the three leading commentators on the Constitution addressed it: St.
George Tucker, William Rawle, and Joseph Story. Each agreed that it protects an
individual right. Less prominent early commentators also concurred with this
interpretation.
Tucker, a judge and law professor from Virginia, published in 1803 an edition
of Blackstone’s Commentaries to which he had added annotations and essays
explaining the relation of American law, including the new Constitution, to
England’s. Tucker’s Blackstone quickly became the leading American authority
on both Blackstone and American law.319
Tucker addressed the Second Amendment at several points. He first did so,
repeatedly, in his introductory View of the Constitution of the United States. He
tied the federal right, as Blackstone had the English one, to the individual, natural
right of self-defense and to the freedom of the state. After quoting the Amend-
ment, he wrote:
This may be considered as the true palladium of liberty . . . . 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. Wherever standing armies are kept up, and the right
of the people to keep and bear arms is, under any colour or pretext
whatsoever, prohibited, liberty, if not already annihilated, is on the
brink of destruction.320
He condemned the use of the game laws in England as a pretext to disarm ordinary
people—the “farmer, or inferior tradesman, or other person not qualified to kill
game.”321 And he grouped the Second Amendment right with those of the First,
confirming that all belonged to individuals:
319
See Clyde N. Wilson, Forward, in St. George Tucker, View of the Constitution of the United
States, with Selected Writings at viii–ix (1999); Paul Finkelman & David Cobin, An Introduction to St.
George Tucker’s Blackstone’s Commentaries, in 1 Tucker’s Blackstone, supra note 60, at v–xii; 1 id.,
Editor’s Preface at v.
320
1 Tucker’s Blackstone, supra note 60, Note D, at 300 (ellipsis in original).
321
Id.
204
Whether the Second Amendment Secures an Individual Right
If, for example, a law be passed by congress, prohibiting the free ex-
ercise of religion, according to the dictates, or persuasions of a man’s
own conscience; or abridging the freedom of speech, or of the press;
or the right of the people to assemble peaceably, or to keep and bear
arms; it would, in any of these cases, be the province of the judiciary
to pronounce whether any such act were constitutional, or not; and if
not, to acquit the accused . . . .322
Second, in annotating Blackstone’s description, in Book I, Chapter 1, of the
individual English subject’s right to have and use arms for self-defense (discussed
above in Part III.A), Tucker praised the Second Amendment “right of the people”
for being “without any qualification as to their condition or degree, as is the case
in the British government” (under England’s Bill of Rights) and again denounced
the game laws, by which “the right of keeping arms is effectually taken away from
the people of England.”323 Finally, in a note to one of Blackstone’s (critical)
discussions of the game laws, Tucker once more attacked them, because “it seems
to be held” that no one but the very rich has “any right to keep a gun in his house”
or “keep a gun for their defence,” the result being that “the whole nation are
completely disarmed, and left at the mercy of the government,” and “the mass of
the people” are kept “in a state of the most abject subjection.” By contrast, “in
America we may reasonably hope that the people will never cease to regard the
right of keeping and bearing arms as the surest pledge of their liberty.”324
In all of these discussions, the right belonged to individuals—to persons avail-
ing themselves of the natural, individual “right of self defence,” to the “accused”
seeking judicial review of a violation of the Second Amendment, and to “the
mass” of ordinary people able to defend themselves because protected by the
Second Amendment from class-based pretexts for disarmament. Tucker under-
stood both the English and American rights to arms to belong to individuals, and
he thought the latter more secure and broad-based.
Nowhere did Tucker suggest that the right of the people to keep and bear arms
depended on a person’s enrollment and exercise in the citizen militia (much less
his membership in an organized, select militia unit) or that it was a “right” that
belonged to state governments. He did elsewhere, in discussing the Militia
Clauses, point out that the Second Amendment eliminated “all room for doubt, or
322
Id. at 357; see id. at 315–16 (explaining that, whereas in England, “the game-laws, as was before
observed, have been converted into the means of disarming the body of the people,” and statutes have
restricted assemblies, the Constitution will not “permit any prohibition of arms to the people; or of
peaceable assemblies by them”); id. at 289 (describing hypothetical law “prohibiting any person from
bearing arms” as violating the Second Amendment).
323
2 id. at *143–44 & nn. 40–41. See also id. at *145 n.42 (again criticizing game laws).
324
3 id. at *414 n.3; see also Parts III.A (discussing right to arms in England) & III.B.2 (discussing
doubts whether the relaxation of English game laws in 1700s succeeded as a practical matter in
enabling commoners to keep arms).
205
Opinions of the Office of Legal Counsel in Volume 28
uneasiness” on whether the federal government could prohibit states from simply
providing arms for their militias (doubt he rightly found questionable given that
the original Constitution left a concurrent arming power in the states).325 Tucker
did not suggest here that he thought the Amendment had only this effect, and his
other discussions confirm that he did not so understand it.
William Rawle of Pennsylvania published his View of the Constitution of the
United States of America in 1825, with a second edition appearing in 1829. After
having turned down President Washington’s offer to be the first attorney general,
he had served in the Pennsylvania Assembly when it ratified the Bill of Rights.
His commentary, like Tucker’s, gained wide prominence.326
Rawle analyzed the Second Amendment in a chapter entitled “Of the Re-
strictions on the Powers of Congress . . . [,] Restrictions on the Powers of States
and Security to the Rights of Individuals,” by which he meant, respectively,
Article I, Section 9; Article I, Section 10; and the first eight amendments of the
Bill of Rights.327 He started with the Second Amendment’s preface, giving to it,
including the word “Militia,” precisely the sense and significance that emerges
from our analysis above, and making clear that the substantive right belonged to
the ordinary citizen:
In the second article, it is declared, that a well regulated militia is
necessary to the security of a free state; a proposition from which
few will dissent. Although in actual war, the services of regular
troops are confessedly more valuable; yet, while peace prevails, and
in the commencement of a war before a regular force can be raised,
the militia form the palladium of the country. . . . That they should
be well regulated, is judiciously added. . . . The duty of the state
government is, to adopt such regulations as will tend to make good
soldiers with the least interruptions of the ordinary and useful occu-
pations of civil life. . . .
The corollary, from the first position, is, that the right of the people
to keep and bear arms shall not be infringed.
325
1 id. at 273. Tucker thought the federal powers in Article I, Section 8, Clause 16, to provide for
“organizing” and “disciplining” the militia were exclusive, id. at 180–81, but that states retained
“concurrent, though perhaps subordinate” powers to provide for “arming” their militias and “to call
them forth when necessary for their internal defence,” id. at 182, 183. His only other reference to the
Second Amendment in connection with the militia was in a note to Blackstone’s discussion of the
militia, in which Tucker collected all references in the Constitution to the militia, along with the Third
Amendment, Virginia laws, and the federal Militia Act. 2 id. at *409 n.1.
326
See Hardy, supra note 33, 9 Harv. J.L. & Pub. Pol’y at 613. Rawle did agree to be United States
Attorney for the District of Pennsylvania. See, e.g., United States v. Fries, 3 U.S. (3 Dall.) 515, 517
(C.C.D. Pa. 1799).
327
William Rawle, A View of the Constitution of the United States of America 115 (2d ed. 1829;
reprint 1970) (font altered; emphasis added).
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Whether the Second Amendment Secures an Individual Right
The prohibition is general. No clause in the Constitution 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 un-
der 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.328
Both Rawle’s language—the Amendment’s prohibition “is general” and protects
the arms of “the people”—and his view of the Second Amendment as applying to
the states and restricting their power indicate that he saw the right as individual,
not as collective or quasi-collective.
Two additional points further show that Rawle viewed the right as belonging to
individuals. Like Tucker, he favorably contrasted the right of the people that the
Second Amendment secured with the more selective individual right in England
under the aristocratic game laws, including a summary of Blackstone’s critique of
those laws. In addition, he expressly recognized, as had Blackstone, Tucker, and,
in varying degrees, the Pennsylvania Minority, Samuel Adams, and the New
Hampshire Ratifying Convention, that the right provided no warrant to breach the
peace, including by inciting reasonable fear of a breach.329 This recognition
indicates an individual right view because there is no need for ordinary criminal
law to oversee either the actions of states in regulating their militias or the bearing
of arms by members of a state’s militia in connection with their service and under
state regulation.
Rawle further explained the individual right view’s understanding of the Se-
cond Amendment preface when discussing the President’s limited power to
command the militia. Although not mentioning the Amendment expressly, he
noted: “In a people permitted and accustomed to bear arms, we have the rudiments
of a militia, which properly consists of armed citizens, divided into military bands,
and instructed at least in part in the use of arms for the purposes of war.”330 Thus,
the “people” of the country, as individuals, keep and bear arms for private
purposes; they also form the militia; and the former facilitates the latter, but only
as a rudiment. That is why the individual right is a “corollary” from the need for a
militia.
The same view appears in the influential 1833 Commentaries on the Constitu-
tion of the United States of Supreme Court Justice and law professor Joseph Story,
328
Id. at 125–26.
329
Id. at 126. Regarding Blackstone, see Part III.A above. For Tucker’s annotations of some of
Blackstone’s discussions of improper uses of arms, see 5 Tucker’s Blackstone, supra note 60, at *126,
*142–49, *175. Regarding the Pennsylvania Minority, Adams, and New Hampshire, see Part III.C.1
above.
330
Rawle, View of the Constitution, supra note 327, at 153. Significantly, in separately discussing
the Militia Clauses of Article I, Section 8, Rawle made no mention of the Second Amendment. Id. at
111–12.
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Opinions of the Office of Legal Counsel in Volume 28
as well as in his later Familiar Exposition of the Constitution. The Commentaries
appeared first in a three-volume set and then, a few months later, in a one-volume
abridgement by Story (the “Abridgement”).331
Story devoted a chapter of his Abridgement to the Bill of Rights. Before turning
to its provisions, he recounted the debate over whether to add one and identified
several purposes, all related to individual rights: (1) to prevent powers granted to
the government from being exercised in a way “dangerous to the people”; (2) as
part of “the muniments of freemen, showing their title to protection,” to ensure
against an “extravagant or undue extention of” powers granted; and (3) to protect
minorities.332 He then singled out those amendments that did not relate to judicial
procedure (the First, Second, Third, Fourth, Eighth, Ninth, and Tenth) as those
addressing “subjects properly belonging to a bill of rights.”333
With regard to the Second Amendment, he first explained the importance of the
militia for “a free country,” including as a check on “domestic usurpations of
power,” and the hazards “for a free people” of keeping up “large military estab-
lishments and standing armies in time of peace.” He linked these policies to the
right: “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.”334 In the unabridged version, he cited Tucker, Rawle, and the House of
Representatives’ first day of debate on the Amendment in support of this sen-
tence.335
By paraphrasing the “right of the people” as the “right of the citizens”—not of
states or members of their militias—as well as by citing Tucker and Rawle’s
discussions (including borrowing from Tucker’s “palladium” language), Story left
no doubt that he considered the right to belong to individuals. He reinforced this
point in an additional paragraph in the unabridged version, citing both Black-
stone’s discussion of the “similar provision” in England—clearly an individual
right, as explained above—and Tucker’s discussion of what Story called the
“defensive privilege” there.336 In his Familiar Exposition, Story began his discus-
331
Ronald D. Rotunda & John E. Nowak, Introduction, in Story, Abridgement, supra note 66, at xi–
xiv.
332
Id. §§ 980–982, at 696–97.
333
Id. § 984, at 698; see id. §§ 985–1011, at 698–714.
334
Id. § 1001, at 708.
335
3 Story, Commentaries, supra note 75, § 1890, at 746 n.1. In United States v. Miller, 307 U.S.
174, 182 n.3 (1939), the Supreme Court included this passage (from a later edition) in a string citation.
336
3 Story, Commentaries, supra note 75, § 1891, at 747. In a separate chapter, the full Commen-
taries also included an extended discussion of the Anti-Federalist charges leveled against the Militia
Clauses, including the charge that the federal militia powers would be exclusive (which Story found
unpersuasive). Story alluded to the failure of proposals explicitly to protect state militia powers. Id.
§§ 1198–1202, at 83–87.
208
Whether the Second Amendment Secures an Individual Right
sion of the Amendment with an even more explicit statement: “One of the
ordinary modes, by which tyrants accomplish their purposes without resistance, is,
by disarming the people, and making it an offence to keep arms, and by substitut-
ing a regular army in the stead of a resort to the militia.”337
Thus Story, like Tucker, Rawle, and others, recognized that the right that the
Second Amendment secured was an individual one. He also saw, as they had, that
this personal right was necessary for ensuring a well-regulated militia of the
people. But he likewise recognized, consistent with the individual right view, that
such a right was not sufficient for ensuring such an entity, wondering how it
would be “practicable to keep the people duly armed without some organization,”
and lamenting the decline of militia discipline.338
Less prominent commentators shared Tucker, Rawle, and Story’s view of the
Second Amendment as securing an individual right. Most significant of these was
probably Henry Tucker (son of St. George). In an 1831 commentary, he explained:
The right of bearing arms—which with us is not limited and re-
strained by an arbitrary system of game laws as in England; but is
practically enjoyed by every citizen, and is among his most valuable
privileges, since it furnishes the means of resisting as a freeman
ought, the inroads of usurpation.339
He also noted that the right inherited from England and expounded by Blackstone
“is secured with us by” the Second Amendment.340 And Jonathan Elliot, in his
record of the ratification debates first published in the 1830s, provided an index of
the Constitution that, under the heading “Rights of the citizen declared to be,”
listed each of the rights of the first nine amendments of the Bill of Rights,
including “To keep and bear arms.”341 He grouped the right secured by the Second
Amendment with the unquestionably individual rights secured by its neighbors.
There was no entry in the index for the militia or its members, aside from refer-
ence to the congressional powers in Article I, Section 8, and none of his entries
regarding the states included reference to the militia or the Second Amendment.342
Thus, these early commentators were all consistent in recognizing that the Second
337
Joseph Story, A Familiar Exposition of the Constitution of the United States § 450, at 319 (1840;
reprint 1986).
338
Story, Abridgement, supra note 66, § 1001, at 708–09.
339
Henry St. George Tucker, Commentaries on the Laws of Virginia 43 (1831).
340
Id.
341
The Debates in the Several State Conventions on the Adoption of the Federal Constitution xv
(Jonathan Elliot ed., 2d ed. 1836; reprint 1987).
342
For additional antebellum commentators, see David B. Kopel, The Second Amendment in the
Nineteenth Century, 1998 BYU L. Rev. 1359, 1399–1403, 1435–41; see also id. at 1397–98 (discuss-
ing Henry Tucker).
209
Opinions of the Office of Legal Counsel in Volume 28
Amendment secures an individual right. They did not even mention possible
alternative views, whether involving a collective or a quasi-collective “right.”
B. The First Cases
Like the commentators, the early case law also treated the Second Amendment
as securing a right of individuals, not a right of governments or those in its service.
Without taking any position on the correctness of the courts’ holdings or the
constitutionality, under the Second Amendment, of any particular limitations on
owning, carrying, or using firearms, we find it significant that these decisions
consistently understood the right to be an individual one. The earliest cases,
although not numerous, consistently recognized that the right to “bear” arms
belonged to individuals, just as the right to “keep” them did. Judicial treatment
became more common beginning in the 1840s, mostly because of new prohibitions
on carrying weapons concealed. The courts upheld these prohibitions (some courts
applying the Second Amendment and some applying similar state provisions), but
in so doing they all recognized an individual right to arms: All of the decisions
recognized an individual right to keep private arms; nearly all, including the
leading cases, recognized a right of individuals to “bear” those arms for private
purposes; and all recognized some manner of individual right to bear them. Most
notably, the Supreme Court of Georgia twice unanimously ruled in favor of
individuals on the basis of the Second Amendment.
1. Cases Before 1840
The first of the early cases is Houston v. Moore, in 1820. The Supreme Court,
in upholding Pennsylvania’s power to try a militiaman for failing to report for
federal service in the War of 1812, recognized that states had concurrent power to
regulate their militias at least when the militias were in the service of their state or
in the absence of congressional regulation. Yet it did not mention the Second
Amendment. Justice Story, in dissent, also recognized the concurrent power, and
he noted that the Second Amendment was probably irrelevant to the question.343 As
we explained above in Part III.C.1, the Anti-Federalists who claimed to fear that
the federal militia powers would not allow a concurrent state jurisdiction did not
rely on the proposals for a right to arms to resolve their concern, but rather
proposed separate amendments (which failed to pass). It appears that the Court in
Houston similarly recognized that the Second Amendment did not guard state
power to maintain militias, whether by creating a collective right of states or a
quasi-collective right of militiamen to vindicate state power. Otherwise, one would
343
Houston v. Moore, 18 U.S. (5 Wheat.) 1, 16–17, 21–22 (1820) (plurality opinion of Washington,
J.); see id. at 34–36 (Johnson, J., concurring); id. at 50–53 (Story, J., dissenting). Story dissented on the
ground that the militia law granted enforcement authority exclusively to federal courts. Id. at 71–72.
210
Whether the Second Amendment Secures an Individual Right
expect the Court to have discussed it. Thus, Houston, although far from conclu-
sive, lends some support to an individual right view.
Second, in Bliss v. Commonwealth (1822), in what appears to be the first judi-
cial interpretation of the right to bear arms in America, a divided highest court of
Kentucky applied that state’s constitutional protection of “the right of the citizens
to bear arms in defense of themselves and the state,” first adopted in 1792, to void
a ban on wearing certain weapons concealed.344 The state had argued that the ban
merely restricted the manner of exercising the right. The court, although not citing
authority, gave two primary reasons for rejecting this argument: (1) the right in
1792 included carrying weapons concealed, and (2) to recognize this one excep-
tion would leave no principled basis to reject others, eviscerating the right.345 The
court’s specific holding was rejected thereafter—by courts346 and by the people of
Kentucky, who in their 1850 constitution added a clause allowing laws to prevent
carrying concealed arms.347 But the holding was rejected, not on the ground that it
improperly recognized a right of individuals to “bear arms” (Kentucky’s provision
remained otherwise unchanged), but rather on the ground that Bliss erred in
determining the right’s scope. Thus Bliss confirms the individual nature of the
right.
Third, several early references to the right or to “bearing arms” indicate that
courts viewed the right as an individual one, or at least that an individual carrying
weapons and not in militia service could be said to “bear arms.” A Virginia
appellate court in 1824, discussing that state’s restrictions on the rights of free
blacks—“many of which are inconsistent with the letter and spirit of the Constitu-
tion, both of this State and of the United States”—cited the restriction “upon their
right to bear arms.”348 That the restriction involved their rights as individuals is
evident from Tucker’s summary of the Virginia laws.349 In an 1829 libel case, the
Supreme Court of Michigan (then a territory) drew a parallel between the free-
doms of speech and press and the right of the people to bear arms to explain that
344
12 Ky. (2 Litt.) 90, 1822 WL 1085. The dissenting judge did not issue an opinion. See id. at *4.
345
Id. at *2.
346
The first court to depart from Bliss’s holding, the Indiana Supreme Court eleven years later in
State v. Mitchell, 3 Blackf. 229, 1833 WL 2617, at *1, did not cite its neighboring court or otherwise
explain itself, the entire opinion being as follows: “It was held in this case, that the statute of 1831,
prohibiting all persons, except travelers, from wearing or carrying concealed weapons, is not
unconstitutional.” We discuss the later antebellum cases in the next subpart.
347
See Ky. Const. art. XIII, § 25 (1850), reprinted in 3 Federal and State Constitutions, supra note
78, at 1314.
348
Aldridge v. Commonwealth, 4 Va. (2 Va. Cas.) 447, 1824 WL 1072, at *3 (Va. Gen. Ct.).
349
5 Tucker’s Blackstone, supra note 60, at *175 n.17, ¶ 7 (listing as among the “offences against
the public police, or [e]conomy,” the restriction against “any” black or mulatto “keeping or carrying
any gun-powder, shot, club, or other weapon,” including a “gun”). See also Waters v. State, 1 Gill. 302,
1843 WL 3024 (Md.) (explaining, with regard to free blacks, that “laws have been passed to prevent
their migration to this State; to make it unlawful for them to bear arms; to guard even their religious
assemblages with peculiar watchfulness.”).
211
Opinions of the Office of Legal Counsel in Volume 28
individual rights are not unlimited: “The constitution of the United States also
grants to the citizen the right to keep and bear arms. But the grant of this privilege
cannot be construed into the right in him who keeps a gun to destroy his neigh-
bor.”350 And in a jury instruction while riding circuit in 1833, in a case unrelated to
the militia, U.S. Supreme Court Justice Baldwin included the Amendment in a list
of potentially relevant individual rights.351
Last of the earliest cases is the 1833 decision of the Supreme Court of Tennes-
see in Simpson v. State.352 The question was the validity of a boilerplate indictment
alleging that the defendant had appeared in a “public street and highway . . .
arrayed in a warlike manner” and then “to the great terror and disturbance of
divers good citizens . . . an affray did make . . . against the peace and dignity of the
state.”353 The court held the indictment invalid because it alleged neither fighting
(an element of “affray”) nor any other act likely to have caused public terror and
indictable at common law. The court reached this conclusion first by considering
the common law, particularly as set out by Blackstone. But because there was
some uncertainty regarding the common law, the court also relied on the 1796
Tennessee Constitution, which provided “that the freemen of this state have a right
to keep and to bear arms for their common defence.”354 This right eliminated any
doubt whether merely appearing in public armed could create “terror” and thus be
criminal: “By this clause of the constitution, an express power is given and
secured to all the free citizens of the state to keep and bear arms for their defence,
without any qualification whatever as to their kind or nature.”355 The court
recognized that individuals could “bear arms” for private purposes, just as they
could “keep” them, and included self-defense within “their common defence.”
Thus, in the first four decades after the Founding, the courts were consistent in
recognizing that the right to keep and bear arms was a right of individuals,
350
United States v. Sheldon, 5 Blume Sup. Ct. Trans. 337, 1829 WL 3021, at *12 (Mich. Terr.). See
also Commonwealth v. Blanding, 20 Mass. (3 Pick.) 304, 338 (1825) (invoking right to keep arms to
draw same analogy).
351
Johnson v. Tompkins, 13 F. Cas. 840, 850 (C.C.E.D. Pa. 1833) (No. 7,416).
352
13 Tenn. (5 Yer.) 356, 1833 WL 1227.
353
1833 WL 1227, at *1.
354
Id. For more regarding the relevant common law, see the discussion in State v. Huntly, 25 N.C.
(3 Ired.) 418, 1843 WL 891, at *2–3 (surveying common law and noting “that the carrying of a gun per
se constitutes no offence”). See also State v. Langford, 10 N.C. (3 Hawks) 381, 1824 WL 380;
4 William Blackstone, Commentaries *149; 1 Hawkins, Pleas of the Crown, supra note 177, ch. 63,
§ 9, at 136. An English case that the court cited in Huntly, predating the English Declaration of Rights,
had construed a seemingly restrictive medieval statute as only punishing “people who go armed to
terrify the king’s subjects,” not all who go armed. Sir John Knight’s Case, 87 Eng. Rep. 75, 76, 3 Mod.
Rep. 117 (K.B. 1686). The court recognized that “now there be a general connivance to gentlemen to
ride armed for their security,” such that violating the statute required riding “malo animo.” Id., 90 Eng.
Rep. 330, 330, Comberbach Rep. 38.
355
1833 WL 1227, at *1.
212
Whether the Second Amendment Secures an Individual Right
allowing both the keeping of private arms and the bearing of them for private
purposes.
2. Cases From 1840 to the Civil War
The leading case from the antebellum period on the right to bear arms, and the
first major decision, was State v. Reid in 1840. The Supreme Court of Alabama
unanimously upheld the state’s new ban on carrying guns or knives secretly,
finding no violation of the provision in the state’s 1819 constitution that “[e]very
citizen has a right to bear arms, in defence of himself and the State.”356 In so doing,
the court recognized that the provision’s right to “bear arms” was a right of an
individual, who could bear them to facilitate his self-defense. The court first
looked to the origins of the right in the “provisions in favor of the liberty of the
subject” in the English Declaration of Rights. Quoting the right of subjects to have
arms for their defense, the court explained: “The evil which was intended to be
remedied by the provision quoted, was a denial of the right of Protestants to have
arms for their defence, and not an inhibition to wear them secretly.”357
The court then adopted the state’s factual argument that carrying weapons
concealed did not facilitate self-defense but rather served the purpose of aggres-
sion and breaching the peace. The court elaborated in explaining the limits of the
state’s power to enact laws regulating “the manner in which arms shall be borne”:
A statute which, under the pretence of regulating, amounts to a de-
struction of the right, or which requires arms to be so borne as to
render them wholly useless for the purpose of defence, would be
clearly unconstitutional. But a law which is intended merely to pro-
mote personal security, and to put down lawless aggression and vio-
lence, and to that end inhibits the wearing of certain weapons, in
such a manner as is calculated to exert an unhappy influence upon
the moral feelings of the wearer, by making him less regardful of the
personal security of others, does not come in collision with the con-
stitution.358
The court thus rejected Bliss’s holding: “[The constitution] authorizes him to bear
them for the purposes of defending himself and the State, and it is only when
carried openly, that they can be efficiently used for defence.”359 If the need for
defense were immediate, “there can be no necessity for concealing the weapon,”
and if it were not immediate, there were legal processes for securing protection. If
356
1 Ala. 612, 1840 WL 229, at *2.
357
1840 WL 229, at *2.
358
Id. at *3.
359
Id. at *5–6.
213
Opinions of the Office of Legal Counsel in Volume 28
a defendant could prove that it was “indispensable to the right of defence” for him
to conceal his weapon, the court might construe the statute not to apply, but Mr.
Reid had not done so.360
Eighteen years later, the same court in Owen v. State reaffirmed Reid in recog-
nizing the constitutionality of a similar statute (the legislature, perhaps prompted
by Reid, had added an exception for those threatened with or reasonably fearing
attack). In so doing, the court made explicit what had been implicit in Reid—that
“carries” in the statute “was used as the synonym of ‘bears.’”361
Soon after Reid, the Supreme Court of Georgia, in Nunn v. State, relied on
Reid, as well as Bliss, in unanimously reversing a conviction for openly carrying a
pistol. The court applied the Second Amendment, holding “that so far as the
act . . . seeks to suppress the practice of carrying certain weapons secretly, . . . it is
valid, inasmuch as it does not deprive the citizen of his natural right of self-
defence, or of his constitutional right to keep and bear arms. But that so much of
it, as contains a prohibition against bearing arms openly, is in conflict with the
Constitution, and void.”362 As had Reid, Nunn looked for guidance to the right to
have and use arms in England. The court viewed that right, the right of the Second
Amendment, and the rights protected by the states’ constitutions as all securing a
personal right of individuals: “When, I would ask, did any legislative body in the
Union have the right to deny to its citizens the privilege of keeping and bearing
arms in defence of themselves and their country?” Likewise, “the Constitution of
the United States, in declaring that the right of the people to keep and bear arms,
should not be infringed, only reiterated a truth announced a century before, in the
act of 1689.”363 This “right of the people” was just as “comprehensive” and
“valuable” as those in the First, Fourth, Fifth, and Sixth Amendments.364
Like Rawle and Story, the Nunn court recognized the harmony between the
Second Amendment’s individual right and its preface: “[O]ur Constitution assigns
as a reason why this right shall not be interfered with or in any manner abridged,
that the free enjoyment of it will prepare and qualify a well-regulated militia,
which are necessary to the security of a free State.” More broadly:
The right of the whole people, old and young, men, women and
boys, and not militia only, to keep and bear arms of every descrip-
360
Id. at *6–7; see id. at *1.
361
31 Ala. 387, 1858 WL 340, at *1, *2.
362
1 Ga. (1 Kelly) 243, 1846 WL 1167, at *11. Georgia’s constitution did not expressly protect the
right to arms. The court alluded to Barron v. Mayor & City Council of Baltimore, 32 U.S. (7 Pet.) 243
(1833), which held that the Takings Clause of the Fifth Amendment did not apply to the states and
reasoned that none of the Bill of Rights did, but rejected it because of the court’s own precedent, the
Second Amendment’s broad, non-restrictive language, and the fundamental importance of the right.
1846 WL 1167, at *9–10.
363
Id. at *8.
364
Id. at *10.
214
Whether the Second Amendment Secures an Individual Right
tion, and not such merely as are used by the militia, shall not be in-
fringed, curtailed, or broken in upon, in the smallest degree; and all
this for the important end to be attained: the rearing up and qualify-
ing a well-regulated militia, so vitally necessary to the security of a
free State.365
The preface’s reference to the militia as “necessary to the security of a free State”
reinforced this understanding and helped convince the court that the Amendment
also restricted the states: “If a well-regulated militia is necessary to the security of
the State of Georgia and of the United States, is it competent for the General
Assembly to take away this security, by disarming the people?” The right lay “at
the bottom of every free government,” state or federal.366 As had Rawle, the court
in Nunn, by concluding that the Amendment restricted the powers of the states,
confirmed its view that the Amendment did not protect the powers of the states but
rather protected the rights of their individual citizens.
Fifteen years later, the same court reported that Nunn had “been constantly
adhered to,” and unanimously applied it to reverse a jury instruction that, for a
weapon to be carried openly, it had to be entirely uncovered. Because such
carrying was “impossible,” such an interpretation “would . . . prohibit the bearing
of those arms altogether.”367
The Louisiana Supreme Court took the same view of the Second Amendment
as an individual right in a series of cases in the 1850s. In State v. Chandler, a
murder defendant had sought an instruction that carrying weapons “either
concealed or openly” could not be a crime consistent with the Constitution. The
court affirmed the denial of the instruction. Like Reid and Nunn, the court saw no
factual link between carrying weapons concealed and self-defense. But, also like
them, it viewed open carrying of arms differently: “This is the right guaranteed by
the Constitution of the United States, and which is calculated to incite men to a
manly and noble defence of themselves, if necessary, and of their country.”368 Six
years later, the court upheld a conviction for carrying a concealed weapon, finding
no Second Amendment violation because “[t]he arms there spoken of are such as
are borne by a people in war, or at least carried openly.”369 And two years after
365
Id.
366
Id. at *10, *9.
367
Stockdale v. State, 32 Ga. 225, 1861 WL 1336, at *3. The Texas Supreme Court before the Civil
War appears also to have viewed the Second Amendment as applying to the states and including an
individual right to own arms and use them for self-defense and perhaps hunting. See Choate v.
Redding, 18 Tex. 579, 1857 WL 5009, at *2; Cockrum v. State, 24 Tex. 394, 1859 WL 6446, at *6–8.
In the latter case, in which the court rejected a constitutional challenge to a sentencing enhancement for
homicide with a bowie knife, the court did not cite any authority, but the defendant had cited Nunn,
Reid, Bliss, and Mitchell. 1859 WL 6446, at *3.
368
5 La. Ann. 489, 1850 WL 3838, at *1; see id. at *2 (discussing self-defense).
369
State v. Smith, 11 La. Ann. 633, 1856 WL 4793, at *1.
215
Opinions of the Office of Legal Counsel in Volume 28
that, the same court cited these decisions in upholding another such conviction,
again treating the right as belonging to individuals and understanding “carry” to be
synonymous with “bear”: “The statute in question . . . . is a measure of police
prohibiting only a particular mode of bearing arms which is found dangerous to
the peace of society.”370
Two other state court cases of this later antebellum period merit special men-
tion. The first and more significant is Aymette v. State,371 the second, State v.
Buzzard.372 In both, the court’s holding was unremarkable—that bans on carrying
weapons concealed were constitutional. But the courts’ rationales were novel.
While still recognizing a right to keep and to bear arms that belonged to individu-
als, these decisions sharply restricted the purposes for which arms could be borne.
Unlike Reid and Nunn, neither case was cited until several years after the Civil
War (and then usually just for their holdings), but Aymette acquired some
prominence thereafter, and Buzzard is notable for one judge’s separate opinion
somewhat foreshadowing the collective and quasi-collective right views.
In Aymette, the Tennessee Supreme Court applied that state’s 1834 Constitu-
tion, which provided “that the free white men of this State have a right to keep and
bear arms for their common defence.” (The only difference from the provision
discussed in Simpson was the change of “freemen” to “free white men.”373) In
upholding the defendant’s conviction for carrying a concealed bowie knife, the
court limited the state right to “bear arms” to actions done “by the people in a
body for their common defense.”374 Some have relied on Aymette’s reasoning in
arguing against the individual right view of the Second Amendment. The Ninth
Circuit in Silveira, for example, overlooking all of the antebellum cases discussed
above, described Aymette as “the most significant judicial decision to construe the
term ‘bear arms’” and as concluding that the phrase “referred to the performance
of a military function.”375 Silveira particularly relied on Aymette’s statement that
“‘[a] man in pursuit of deer, elk and buffaloes might carry his rifle every day for
forty years, and yet it would never be said of him that he had borne arms.’”376
Fairly read, however, Aymette does not contravene an individual right view of the
Second Amendment.
First, even assuming for the sake of argument that Aymette read the Tennessee
Constitution not to secure any individual right to bear arms, the decision has two
370
State v. Jumel, 13 La. Ann. 399, 1858 WL 5151, at *1.
371
21 Tenn. (2 Hum.) 154, 1840 WL 1554.
372
4 Ark. (4 Pike) 18, 1842 WL 331.
373
That change may have been prompted by Nat Turner’s 1831 slave rebellion, which created fears
of free blacks arming and inciting slaves. See Cottrol & Diamond, supra note 33, 80 Geo. L.J. at 337–
38.
374
1840 WL 1554, at *3.
375
312 F.3d at 1073.
376
Id. (quoting Aymette, 1840 WL 1554, at *5).
216
Whether the Second Amendment Secures an Individual Right
distinctive features that undermine its relevance to the Second Amendment.
Aymette’s analysis rested heavily on the phrase “for their common defence” in the
Tennessee provision, which is absent from the Second Amendment. The phrase
pervades the court’s brief analysis. The court defined “common” and even
described the right to arms in the English Bill of Rights as if it included the
word.377 The court also relied on a conscientious objector clause that appeared
elsewhere in the state constitution, citing it at the end of its opinion, in criticizing
Bliss, to make “the case still more clear.”378 Yet no conscientious objector clause
appears in the Second Amendment or even the Constitution.379
Second, and more importantly, Aymette does not reject an individual right
either to keep or to bear arms, even though it may exclude individual self-defense
from the meaning of “bear.” The court was unequivocal on “keep”: “The citizens
have the unqualified right to keep the weapon,” so long as it is a protected
“arm.”380 It did describe “bear” as limited to “military use,”381 but by that appears
still to have contemplated a right that belonged to individuals rather than to the
state or those engaged in its service.382 The court did not mention the militia.
Rather, the “military” bearing that it appears to have had in mind was the people,
in an extreme case of governmental tyranny, independently bearing arms as a body
to check the government. The court confined “bear” to the most radical of
emergencies. Thus, it provided the following account of the English Revolution of
1688–1689:
377
1840 WL 1554, at *3; see id. at *2. As noted above in Part III.B.2, in discussing the Massachu-
setts Declaration of Rights, the phrase “common defense” is not necessarily inconsistent with a right to
bear arms for private purposes.
378
Id. at *5. Thus the Ninth Circuit was incorrect in contending that Aymette “reached its conclu-
sion primarily because of” the conscientious objector provision, rather than the “common defense”
language. Silveira, 312 F.3d at 1073. Furthermore, Aymette’s reliance on the conscientious objector
provision was not persuasive, as our discussions of the Pennsylvania and Vermont declarations of
rights (Part III.B.2) and proposals emerging from the Pennsylvania, Virginia, and North Carolina
ratifying conventions (Part III.C.1) showed. See also Part II.B.2 (discussing meaning of “bear arms”).
It was common in a single document to refer separately both to the right of individuals to “bear arms”
and to exemption of individuals from the duty to “bear” them in the service of the government. In
addition, the court’s assertion that a hunter could never be said to “bear” arms, quoted above, is open to
doubt, given the proposed Virginia law discussed in Part II.B.2 and the Pennsylvania Minority Report
(see Parts II.B.2 and III.C.1), and, in any event, says nothing about persons “bearing” arms in self-
defense. The court did not cite the decision of its southern neighbor in Reid, which appears to have
been decided about six months before; it treated its previous discussion of the right in Simpson as dicta,
1840 WL 1554, at *5–6.
379
See Part III.C.2 above (discussing conscientious objector clause in draft of Second Amendment).
380
1840 WL 1554, at *4. As we noted in the introduction of Part II.B, the Ninth Circuit, in reaf-
firming its collective right view, did not attempt to reconcile the right to “keep” arms with its view.
381
Id. at *3, *5.
382
See id. at *4 (“the citizens may bear [arms] for the common defence,” but “the Legislature may
prohibit such manner of wearing as would never be resorted to by persons engaged in the common
defence”) (emphasis added).
217
Opinions of the Office of Legal Counsel in Volume 28
[I]f the people had retained their arms, they would have been able,
by a just and proper resistance to those oppressive measures, either
to have caused the king to respect their rights, or surrender (as he
was eventually compelled to do) the government into other hands.
No private defence was contemplated, or would have availed any-
thing. . . . [The right in the English Declaration means] that they may
as a body rise up to defend their just rights, and compel their rulers
to respect the laws. . . . The complaint was against the government.
The grievances to which they were thus forced to submit were for
the most part of a public character, and could have been redressed
only by the people rising up for their common defence, to vindicate
their rights.383
The court also wrote that the people “may keep arms to protect the public liberty,
to keep in awe those in power, and to maintain the supremacy of the laws and the
constitution.” Citizens need to be prepared “to repel any encroachments upon their
rights by those in authority,” and the right “is a great political right. It respects the
citizens, on the one hand, and the rulers on the other.”384
Subsequent treatment by the same court confirms that Aymette, despite its
narrow reading of “bear,” still recognized an individual right. In Andrews v. State,
a prominent case after the Civil War, the Tennessee Supreme Court interpreted the
right of the “citizens of this State . . . to keep and bear arms for their common
defense” under the state’s 1870 constitution. It was not until after Andrews that
Aymette, previously uncited, acquired any prominence.385 The new constitution had
added an exception granting to “the Legislature . . . power by law, to regulate the
wearing of arms, with a view to prevent crime,” which had been prompted by an
383
Id. at *2.
384
Id. at *3–4. Furthermore, even if one might read the court’s rejection of an individual right to
bear arms in “private defence” as foreclosing any individual right to bear arms, two aspects of the
court’s reasoning (in addition to its analysis of “bear”) leave it open to question. First, the court’s
account of the English right, see id. at *2, was contrary to the text of the English Bill of Rights and
Blackstone’s exposition of an individual right to arms for self-defense, and failed to recognize that the
individual English right was transplanted to America free of England’s aristocratic restrictions, as
Tucker, Rawle, Story, and others had recognized and praised. Second, faced with the defendant’s
provocatively absolute claim regarding the scope of the right, see id. at *1, the court responded with
dichotomies between bearing arms by the body of the people for the common defense and “bearing”
arms for hypothetical criminal purposes, such as terrifying people. In thus defining the question, the
court defined away the well-established third possibility—bearing arms in legitimate self-defense—and
overlooked background law prohibiting bearing weapons for the hypothesized purposes. Compare id.
at *3–4, with Simpson, 1833 WL 1227, at *1; State v. Huntly, 25 N.C. (3 Ired.) 418, 1843 WL 891; 4
William Blackstone, Commentaries *145–47; Reid, 1840 WL 229, at *3, *5–6.
385
Andrews v. State, 50 Tenn. (3 Heisk.) 165, 1871 WL 3579, at *6. Andrews was the first case in
any jurisdiction to cite Aymette regarding the right to bear arms.
218
Whether the Second Amendment Secures an Individual Right
enduring dispute between partisans of Aymette and Simpson.386 The statute at issue
prohibited any public or private carrying of “a dirk, swordcane, Spanish stiletto,
belt or pocket pistol or revolver.”387 Notwithstanding the added constitutional
clause and the arguable implications of Aymette, the court held it unconstitutional
as applied to certain revolvers.388
In reaching this holding, the court went far to assimilate Aymette to the reason-
ing of Reid and Nunn, even while technically retaining Aymette’s view of “bear.”389
It did so in three ways. First, it expressly reaffirmed that at least the right to “keep”
belonged to individuals: The “right to bear arms for the common defense . . . may
well be held to be a political right, or for protection and maintenance of such
rights, intended to be guaranteed; but the right to keep them, with all that is
implied fairly as an incident to this right, is a private individual right, guaranteed
to the citizen, not the soldier.”390 The court added, relying on Story, that it is “to be
exercised and enjoyed by the citizen as such, and not by him as a soldier, or in
defense solely of his political rights.”391
Second, Andrews read “keep” expansively to include broad “incidental use,”
emphasizing that the goal of the right was to ensure that “the citizens making up
the yeomanry of the land, the body of the militia,” would be prepared when
needed. Thus:
The right to keep arms, necessarily involves the right to purchase
them, to keep them in a state of efficiency for use, and to purchase
and provide ammunition suitable for such arms, and to keep them in
repair. And clearly for this purpose, a man would have the right to
carry them to and from his home, and no one could claim that the
Legislature had the right to punish him for it, without violating this
clause of the Constitution.
But farther than this, it must be held, that the right to keep arms in-
volves, necessarily, the right to use such arms for all the ordinary
386
See id. at *8 (“The Convention of 1870, knowing that there had been differences of opinion on
this question, have conferred on the Legislature in this added clause, the right to regulate the wearing of
arms, with a view to prevent crime”); id. at *13 (“Ever since the opinions were promulgated, it has
been my deliberate conviction that the exposition of the Constitution . . . in Simpson . . . was much
more correct than that . . . in Aymette . . . .”) (Nelson, J., joined by Turley, J., dissenting in part).
387
Id. at *3.
388
Id. at *11.
389
Id. at *10 (finding “much of interesting and able discussion of these questions” in Bliss, Reid,
and Nunn; explaining that in Reid and Nunn “the general line of argument found in this opinion is
maintained” and that the court had been “aided . . . greatly by the reasoning of these enlightened
courts”); id. (describing Aymette as “hold[ing] the same general views” as the Andrews court) (empha-
sis added).
390
Id. at *8 (emphasis added).
391
Id. at *9.
219
Opinions of the Office of Legal Counsel in Volume 28
purposes, and in all the ordinary modes usual in the country, and to
which arms are adapted, limited by the duties of a good citizen in
times of peace . . . .
Because citizens needed to be able to “become familiar with” the use of arms “in
times of peace, that they may the more efficiently use them in times of war, . . . the
right to keep arms for this purpose involves the right to practice their use.”392 Use
for “ordinary purposes” included a man taking his gun “from his room into the
street to shoot a rabid dog that threatened his child”393 and using them on one’s
property in lawful self-defense.394 Such reasoning is in large measure the same as
that taken by the traditional individual right view in explaining the relation
between the Second Amendment’s preface and operative text.
Third, consistently with its reading of “keep,” the court also broadened “arms.”
Aymette had defined the word to include only such arms “as are usually employed
in civilized warfare, and that constitute the ordinary military equipment.”395
Andrews explained it as follows: “[T]he idea of the Constitution is, the keeping
and use of such arms as are useful either in warfare, or in preparing the citizen for
their use in warfare, by training him as a citizen, to their use in times of peace.”396
The court took judicial notice “that the rifle of all descriptions, the shot gun, the
musket, and repeater, are such arms.”397
Thus, setting aside any distinctions based on the specific language of Tennes-
see’s Constitution, the consequence of Aymette, taken together with Andrews, is
that “bear arms” was defined more narrowly in those cases, and “keep arms” more
broadly, than was usual. The net result seems to be not far from the traditional
individual right view held at the Founding and reflected in the great weight of
early authority.
The divided 1842 decision of the Arkansas Supreme Court in Buzzard did not,
even after the Civil War, ever acquire the prominence of Aymette, and when cited
392
Id. at *6–7.
393
Id. at *11.
394
Id. at *13.
395
1840 WL 1554, at *3.
396
1871 WL 3579, at *9. The court elsewhere defined “arms” as those furthering the end of “the
efficiency of the citizen as a soldier,” id. at *7, and as including not only weapons “adapted to the usual
equipment of the soldier” but also those “the use of which may render him more efficient as such,” id.
at *11. The term had to be “taken in connection with the fact that the citizen is to keep them as a
citizen” and therefore included such “as are found to make up the usual arms of the country, and the
use of which will properly train and render him efficient in defense of his own liberties, as well as of
the State.” Id. at *7.
397
Id. at *7; id. at *11. Two judges dissented in part, criticizing Aymette and taking a broader view
than the majority based on Simpson, Bliss, Blackstone, and Tucker. Id. at *13–15 (Nelson, J., joined by
Turney, J., dissenting in part). They argued that “for their common defense” was equivalent to “in
defense of themselves and the State.” Id. at *13–14. Similarly, “[t]he word ‘bear’ was not used alone in
the military sense of carrying arms, but in the popular sense of wearing them in war or in peace.” Id.
220
Whether the Second Amendment Secures an Individual Right
it was simply for its limited, uncontroversial holding, upholding a ban on carrying
weapons concealed.398 Nevertheless, coming four years before Nunn, it appears to
have been the first judicial holding involving the Second Amendment, and one
judge’s concurring opinion was the first appearance of something suggesting a
collective right or quasi-collective right view.
The reasoning of the leading opinion for the 2-1 court was similar to that of
Aymette. The court addressed both the Second Amendment and the 1836 Arkansas
Constitution, which, like Tennessee’s, provided that “the free white men of this
State shall have a right to keep and bear arms for their common defense.”399
Despite the textual differences between these two provisions (in particular the
Arkansas provision’s “for their common defense” language), the court treated
them as the same.400 Much like Aymette, albeit without distinguishing between
“keep” and “bear,” the court apparently recognized a right of individuals but gave
it a limited scope.401 The Arkansas court’s post-war decisions confirmed that the
right secured by the Arkansas Constitution belonged to individuals and included
the right to bear arms for at least some private purposes.402
398
E.g., Fife v. State, 31 Ark. 455, 1876 WL 1562, at *3 (summarizing holding and then relying on
Aymette and Andrews); State v. Wilforth, 74 Mo. 528, 1881 WL 10279, at *1 (including Buzzard in
string citation with Nunn, Jumel, Mitchell, Owen, and Reid, and relying on Reid). Buzzard was first
cited in 1872. See State v. English, 35 Tex. 473, 1872 WL 7422; Carroll v. State, 28 Ark. 99, 1872 WL
1104.
399
Buzzard, 4 Ark. 18, 1842 WL 331, at *6.
400
See id. (equating the two, and adopting a single rule for evaluating restrictions).
401
See id. at *4 (explaining that “the militia, without arms . . . might be unable to resist, successful-
ly, the effort of those who should conspire to overthrow the established institutions of the country, or
subjugate their common liberties” and that “the people designed and expected to accomplish this object
by the adoption of the article under consideration, which would forever invest them with a legal right to
keep and bear arms for that purpose”); id. at *6 (“The act in question does not . . . detract anything
from the power of the people to defend their free state and the established institutions of the country.”);
see also id. at *2 (expressly equating Second Amendment right with rights in First); id. at *7 (noting
that Reid and Mitchell had upheld similar laws notwithstanding constitutional provisions expressly
protecting bearing arms in self-defense). As in Aymette, the court was faced with an absolute claim that
the right was subject to no restrictions, and responded similarly. See id. at *3, *5.
402
See Carroll, 1872 WL 1104, at *2 (upholding conviction for carrying deadly weapon concealed
and explaining Buzzard as holding that “a constitutional right to bear arms in defense of person and
property does not prohibit the legislature from making such police regulations as may be necessary for
the good of society, as to the manner in which such arms shall be borne”; adding that a “citizen” may
not “use his own property or bear his own arms in such way as to injure the property or endanger the
life of his fellow citizen”) (emphases added); Fife, 1876 WL 1562, at *3, *4 (restating Buzzard’s hold-
ing, and upholding conviction for carrying pistol by construing statute only to apply to pistol that “is
usually carried in the pocket, or of a size to be concealed about the person, and used in private quarrels,
and brawls, and not such as is in ordinary use, and effective as a weapon of war, and useful and
necessary for ‘the common defence’”); Wilson v. State, 33 Ark. 557, 1878 WL 1301, at *2 (reversing
conviction for carrying side arms, where trial court had refused jury instruction to acquit if pistol was
“army size . . . such as are commonly used in warfare”; citing Fife and Andrews and explaining that “to
prohibit the citizen from wearing or carrying a war arm, except upon his own premises or when on a
journey . . . , or when acting as or in aid of an officer, is an unwarranted restriction upon his constitu-
tional right to keep and bear arms”) (emphases added).
221
Opinions of the Office of Legal Counsel in Volume 28
The concurring opinion cited no history or authority and, as far as we are
aware, no court or even judge has ever cited it in interpreting a right to bear arms,
whether secured by the Second Amendment or by any of the analogous provisions
in state constitutions.403 It did not present what would now be considered a
standard collective right or quasi-collective right view. Whereas those views
address the limits of federal power to interfere with state law, Judge Dickinson
addressed the case from the opposite vantage point, stating the question as whether
the state’s ban on carrying weapons concealed “interfere[s] with any regulations
made by Congress, as to the organizing, arming, or disciplining the militia, or in
the manner in which that militia are either to keep or bear their arms.”404 In modern
terminology, the judge seemed to recast the case as turning on possible federal
preemption of the state law. The Second Amendment, in setting out what he
described as “the power given the militia to keep and bear arms,” merely re-
phrased the express federal powers in Article I, Section 8, Clause 16 of the
Constitution, the Amendment being “but an assertion of that general right of
sovereignty belonging to independent nations to regulate their military force.”405
The Amendment thus did not add any protection of state powers. That protection
was implicit in Clause 16: “[T]he States retain the power to legislate in relation to
arms and the mode of carrying and keeping them, provided its exercise is not
repugnant to the previous grant to the Federal Government. . . . Could Congress
authorize any and every person by express law, to carry deadly weapons concealed
about his person, when not composing one of the militia, and not a part of the
regulations ordained for their government?”406
The dissenting opinion employed the general rule for interpreting prefaces
(discussed above in Part II.C.1), and the same reasoning as Rawle, Story, and
Nunn, to explain the relation of the Amendment’s preface to the right:
Now, I take the expressions ‘a well regulated militia being necessary
for the security of a free State,’ and the terms ‘common defense,’ to
be the reasons assigned for the granting of the right, and not a re-
striction or limitation upon the right itself . . . . [W]hen was it con-
tended before that the reason given for the establishment of a right or
403
1842 WL 331, at *7 (Dickinson, J., concurring). See also Kopel, supra note 342, 1998 BYU L.
Rev. at 1425 (“The Buzzard concurrence’s assertion that the right to arms was not individual vanished
from American case law for the rest of the nineteenth century.”).
404
1842 WL 331, at *7 (Dickinson, J.); see id. at *10 (“The act . . . does not, in my opinion, conflict
with any of the powers of the General Government.”).
405
Id. at *7, *9. It is unclear what significance he gave to the state constitution’s provision. See id.
at *9.
406
Id. at *8.
222
Whether the Second Amendment Secures an Individual Right
its uninterrupted enjoyment not only limited the right itself, but re-
strained it to a single specific object?407
Judge Lacy also pointed to the Second Amendment’s reference to a “free State”:
“To suppose that liberty cannot be in danger, except from a foreign foe or internal
disorder, is virtually to deny the importance and necessity of written constitu-
tions. . . . I cannot separate the political freedom of the State from the personal
rights of its citizens.”408 He singled out the concurring opinion for granting the
right to “the militia alone,” and only at “the discretion of the Legislature”—a right
“valueless and not worth preserving; for the State unquestionably possesses the
power, without the grant, to arm the militia and direct how they shall be employed
in cases of invasion or domestic insurrection. . . . [W]hy give that which is no right
in itself and guarantees a privilege that is useless?”409 Finally, the dissent explained
the right much as Blackstone had, tying it to self-defense and pointing out that it
was no more unlimited than the freedoms of speech and press.410
In sum, the activity of courts closest to the Founding tends to reinforce what the
text and history establish—that the right secured by the Second Amendment
belongs to individuals. No court questioned the private right to keep arms, and
most recognized the traditional individual right to bear them. Two of the three
state supreme courts to apply the Second Amendment (Georgia and Louisiana)
repeatedly recognized a private right to bear arms for self-defense. The two cases
taking the narrowest view of the right (both in states whose constitutions had
“common defense” clauses in their right) were ignored, and even they recognized
some manner of individual right. Only in an opinion of a single judge, which was
and has continued to be ignored, did something like a quasi-collective or collective
right understanding appear, but even that opinion did not view the Second
Amendment as securing any right of states or of state (as opposed to federal)
militias. On balance, then, the cases before the Civil War, like the first commenta-
tors, confirm that the text and history of the Second Amendment support the
individual right view, not the collective right or quasi-collective right views.
C. Reconstruction
As the Civil War ended in 1865, southern governments enacted “black codes,”
which, among other things, either directly prohibited the newly freed slaves from
keeping and bearing arms or imposed stringent permit systems. In addition, armed
white mobs, sometimes including the militias, frequently disarmed the freed
407
Id. at *10 (Lacy, J., dissenting).
408
Id. at *14. See also id. (arguing that the right has at times “been the only means by which public
liberty or the security of free States has been vindicated and maintained”).
409
Id. at *10.
410
Id. at *12–14.
223
Opinions of the Office of Legal Counsel in Volume 28
blacks.411 Such practices, coupled with blacks’ lack of citizenship, prompted the
Thirty-Ninth Congress to take several actions securing the rights of the newly
freed slaves and reaffirming the understanding that the right to keep and bear arms
was a personal right.
The first action was enactment of the Civil Rights Act of 1866. One goal of
many who sought its passage, noted by them and lamented by their opponents,
appears to have been to secure to freedmen the Second Amendment’s right to keep
and bear arms. Both representatives and senators highlighted disarmament of
blacks and argued that the Act, by making blacks citizens, would secure to them
that right. Senator Trumbull, Chairman of the Judiciary Committee and a sponsor
of the Act, explained that it would counteract those portions of the black codes
that “prohibit any negro or mulatto from having fire-arms.”412 In the House,
Representative Clarke quoted the Second Amendment and declared, “I shall insist
that the reconstructed rebels of Mississippi respect the Constitution in their local
laws”; he also decried that newly formed southern governments had been “allowed
to rob and disarm our [black] veteran soldiers.” Representative Raymond argued,
in favor of the Act, that making blacks citizens would give to them “every right
which you or I have,” including “a right to bear arms.”413
The second congressional action was passage of the Fourteenth Amendment in
June 1866. Senator Pomeroy, in addressing an early draft, listed as among the
“safeguards of liberty . . . under our Constitution” the right of “the freedman” to
“bear arms for the defense of himself and family and his homestead,” even
suggesting that Congress’s power to enforce the Thirteenth Amendment’s ban on
slavery might justify it in protecting this right in the South.414 One of the Four-
teenth Amendment’s sponsors, in listing the rights of citizenship that its Privileges
or Immunities Clause would extend to blacks, pointed to “the personal rights
guaranteed and secured by the first eight amendments of the Constitution; such as
the freedom of speech and of the press; . . . [and] the right to keep and to bear
411
See, e.g., Laws of Miss. ch. 23, § 1, at 165 (enacted Nov. 29, 1865), reprinted in Stephen P.
Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866–1876, at 2 (1998).
See generally Halbrook, Freedmen at 2–3, 5, 8–12, 15–16, 18–20, 22–23, 26–32, 34–37 (collecting
reports of army and Freedmen’s Bureau officers to President and Congress, petitions to Congress, and
other public materials documenting attempts in former Confederacy in 1865 and 1866 to disarm blacks,
including through legislation and by militias).
412
Cong. Globe, 39th Cong., 1st Sess. 474 (1866). See also id. at 478 (Sen. Saulsbury, lamenting
this effect of the Act). Regarding Trumbull, see Raoul Berger, Government by Judiciary: The
Transformation of the Fourteenth Amendment 32 (2d ed. 1997).
413
Cong. Globe at 1838–39 (Rep. Clarke); id. at 1266 (Rep. Raymond). See also id. at 1629 (Rep.
Hart, explaining that Act would guarantee to free blacks “[a] government . . . where ‘no law shall be
made prohibiting the free exercise of religion’; where ‘the right of the people to keep and bear arms
shall not be infringed’”).
414
Id. at 1182.
224
Whether the Second Amendment Secures an Individual Right
arms.”415 The New York Times and other leading newspapers reprinted these com-
ments, including the reference to the Second Amendment, and praised them.416
This history indicates that it was widely recognized that the right to keep and
bear arms was to be protected by the Civil Rights Act and the Fourteenth Amend-
ment, and that that right was understood to belong to individuals. For example,
Raoul Berger, even while arguing against the view that the Fourteenth Amend-
ment “incorporated” the Bill of Rights to apply to the states, explains that “all are
agreed” that the Fourteenth Amendment aimed at least “to embody and protect”
the Civil Rights Act of 1866; he contends that the Act, in turn, “intended to confer
on the freedmen the auxiliary rights that would protect their ‘life, liberty, and
property’—no more.” He quotes Blackstone’s listing of these three principal rights
and demonstrates Blackstone’s prominence in the debates and in the denunciations
of the black codes.417 As explained above in Part III.A, Blackstone described five
“auxiliary rights,” and the right of individuals to have and use arms for their
defense was one of them. Given the language of Section 1 of the Civil Rights Act,
it may be that states simply could not discriminate against blacks in the right to
keep and bear arms, not that the Second Amendment applied per se, but the point
remains that there was a consensus that the right in question belonged to individu-
als and was a right against the state.418
Were there any remaining doubt on this question, Congress eliminated it a
month after approving the Fourteenth Amendment, when it renewed the Freed-
men’s Bureau over President Andrew Johnson’s veto. The act provided that
wherever the courts were not open, or in any state that had not been restored to the
Union, various rights, largely paralleling those in the Civil Rights Act, should “be
secured to and enjoyed by all the citizens . . . without respect to race or color, or
previous condition of slavery.” Among these were “the right . . . to have full and
equal benefit of all laws and proceedings concerning personal liberty, personal
security, and the acquisition, enjoyment, and disposition of estate, real and
personal, including the constitutional right to bear arms.”419 Congress thus not
415
Id. at 2765 (Sen. Howard).
416
See Halbrook, Freedmen, supra note 411, at 36 (collecting excerpts).
417
Berger, Government by Judiciary, supra note 412, at 30, 30–39, 53–54. Berger does not specifi-
cally mention the right to keep and bear arms. See, e.g., id. at 166–69 (addressing Sen. Howard’s
statement but omitting his listing of rights).
418
Section 1 of the Civil Rights Act declares all those born in the United States to be citizens,
grants “the same right, in every State and Territory in the United States . . . as is enjoyed by white
citizens” with regard to certain enumerated aspects of property, contracting, and lawsuits, and
guarantees “full and equal benefit of all laws and proceedings for the security of person and property.”
14 Stat. 27, 27 (1866). In light of Blackstone’s understanding and the context of the black codes, any
laws regarding the ability to keep or bear arms would presumably be “laws . . . for the security of
person and property” and therefore would need to be equal for all citizens regardless of color.
419
Act of July 16, 1866, § 14, 14 Stat. 173, 176 (emphasis added). The President’s reasons for his
veto did not involve any disagreement with Congress regarding this right. See Veto Message (July 16,
1866), reprinted in 8 Messages and Papers, supra note 276, at 3620.
225
Opinions of the Office of Legal Counsel in Volume 28
only enacted the understanding that the Second Amendment protected an individ-
ual right, including the right to “bear” arms, but also did so in a way that rested on
Blackstone’s exposition of the individual right to arms as a critical auxiliary to the
three primary individual rights of life, liberty, and property.
Congress took the same view early in the following year, demonstrating not
only its understanding that the right belonged to individuals but also the limited,
indirect way in which it protected the states’ militias. Responding to the southern
militias’ depredations against the freed blacks, Congress included in a bill, which
the President signed, a provision “[t]hat all militia forces now organized or in
service” in the states of the former Confederacy “be forthwith disbanded, and that
the further organization, arming, or calling into service of the said militia forces,
or any part thereof, is hereby prohibited.”420 Significantly, the bill’s sponsor had
agreed to strike “disarmed” after “disbanded,” in the face of opposition from
several (northern) senators that to disarm the citizens from whom the militia was
drawn, rather than merely disbanding the militias, would violate the Second
Amendment.421 Congress’s actions both in disbanding the southern states’ militias
and in not disarming their citizens show that it understood the Second Amendment
right to protect individuals, not states or their militias.422 Thus, from the Founding
through the Civil War, the overwhelming understanding of the right of the people
to keep and bear arms was that it was a right that belonged to individuals.
D. Beyond Reconstruction
As already suggested by our discussions above of Andrews and cases citing
Buzzard, the understanding of the right to keep and bear arms as an individual
right continued beyond the Civil War and Reconstruction. Although we do not
provide an exhaustive survey of the post-war period, we find it significant that the
modern alternative views of the right did not take hold until the twentieth century,
well over a century after the Second Amendment was ratified. Before that, the
420
Act of Mar. 2, 1867, § 6, 14 Stat. 485, 487. The President did inform the House that he was sign-
ing under “protest” because this provision, and another to which he objected, were included in an
essential appropriation bill. See Letter to the House of Representatives (Mar. 2, 1867), reprinted in 8
Messages and Papers, supra note 276, at 3670. Regarding the militia provision, he objected that it
“denies to ten States of this Union their constitutional right to protect themselves in any emergency by
means of their own militia.” It may be that in his constitutional objection he had in mind Article I,
Section 10’s implicit recognition of the prerogative of states to defend themselves with their militias in
cases of invasion or imminent danger. See Part II.D.2 above (discussing ways in which original
Constitution recognizes that states will have and be able to use militias).
421
The Senate debate is summarized from the Congressional Globe in Halbrook, Freedmen, supra
note 411, at 68–69.
422
See id. at 69 (“Astonishingly, while still waving the bloody shirt and depriving Southerners of
suffrage, Republicans were unwilling to deny the right to have arms to ex-Confederates.”); Nelson
Lund, Book Review, Outsider Voices on Guns and the Constitution, 17 Const. Comm. 701, 713 (2000)
(reviewing Halbrook) (“This incident perfectly illustrates why the Second Amendment had been
adopted in the first place.”).
226
Whether the Second Amendment Secures an Individual Right
views of the leading constitutional law scholar of the period, Thomas Cooley,
were in accord with his predecessors Tucker, Rawle, and Story, in recognizing an
individual right. And the Supreme Court, although making no holding regarding
the substance of the Amendment, suggested in dicta that it protected an individual
right.
Cooley’s General Principles of Constitutional Law, first published in 1880,
gained a prominence on the level of the works of his predecessors.423 As had the
antebellum commentators, he espoused the individual right view of the Second
Amendment. After quoting the Amendment, noting that it was a “modification and
enlargement from the English Bill of Rights,” and citing Tucker, Cooley added the
following:
The Right is General.—It might be supposed from the phraseology
of this provision that the right to keep and bear arms was only guar-
anteed to the militia; but this would be an interpretation not warrant-
ed by the intent. . . . [I]f the right were limited to those enrolled [in
the militia, a number that the government could constrict], the pur-
pose of this guaranty might be defeated altogether by the action or
neglect to act of the government it was meant to hold in check. The
meaning of the provision undoubtedly is, that the people, from
whom the militia must be taken, shall have the right to keep and bear
arms, and they need no permission or regulation of law for the pur-
pose. But this enables the government to have a well-regulated mili-
tia; for to bear arms implies something more than the mere keeping;
it implies the learning to handle and use them in a way that makes
those who keep them ready for their efficient use; in other words, it
implies the right to meet for voluntary discipline in arms, observing
in doing so the laws of public order.424
Cooley’s rejection of any collective right and quasi-collective right view is
consistent with the understanding of the Amendment’s prefatory clause that is
evident from the Founding and had been reiterated before the Civil War by Rawle,
Story, and Nunn. Even Cooley’s heading echoed Rawle’s statement over fifty
years earlier: “The prohibition is general.”425 Cooley likewise treated both keeping
and bearing as private rights of citizens, and recognized that the right has limita-
423
See supra note 41; Kates, supra note 33, 82 Mich. L. Rev. at 243. Among Cooley’s many works
was to prepare the fourth edition of Story’s unabridged Commentaries, published in 1873.
424
Cooley, General Principles, supra note 41, at 271. Cooley cited 1 Tucker’s Blackstone, supra
note 60, at 300, which praises the right in the Second Amendment as “the true palladium of liberty”
and, paralleling Blackstone, ties it to the natural “right of self defence.” See Part IV.A above.
425
Rawle, View of the Constitution, supra note 327, at 125, discussed above in Part IV.A.
227
Opinions of the Office of Legal Counsel in Volume 28
tions (“the laws of public order”), just as any other individual right does.426
Conversely, in discussing the Militia Clauses of Article I, Section 8, in a separate
part of his treatise, he made no mention of the Second Amendment.427
Cooley reiterated this individual right interpretation in his even more celebrated
Treatise on the Constitutional Limitations, first published in 1868.428 Among the
clauses common in state constitutions, he explained, were “[t]hose declaratory of
the fundamental rights of the citizen,” among which were freedom of speech and
of the press and “that every man may bear arms for the defence of himself and the
State.”429 In a later chapter he included the right among the “the constitutional
protections to personal liberty”: “Among the other defences to personal liberty
should be mentioned the right of the people to keep and bear arms.” He explained
the right’s English origins, noted the importance for a “well-regulated militia” of
“the people” being “trained to bearing arms,” praised the lack of legislation
“regulat[ing] this right,” and cited Bliss, Nunn, and a case concerning the right of
self-defense.430 Finally, in elsewhere explaining the scope of a state’s concurrent
power to organize and discipline the militia, Cooley simply cited Houston v.
Moore, not mentioning the Second Amendment.431 Like the Court, he apparently
did not see the Amendment as relevant to the scope of the state’s power to
maintain a militia.
The Supreme Court did not address the substance of the Second Amendment
during this period, because of its view that the Bill of Rights, including the Second
Amendment, did not apply to the states.432 In Robertson v. Baldwin, however, the
Court invoked the history of, and limitations on, the various rights in the Bill of
Rights, including the Second Amendment, to illustrate and defend a holding
regarding the limitations on the Thirteenth Amendment’s ban on slavery:
The law is perfectly well settled that the first ten amendments to the
Constitution, commonly known as the Bill of Rights, were not intend-
426
He added, citing Andrews (which had not interpreted the Second Amendment), that the Amend-
ment protected the keeping of arms “suitable for the general defence of the community against invasion
or oppression,” whereas “the secret carrying of those suited merely to deadly individual encounters
may be prohibited.” Cooley, General Principles, supra note 41, at 271–72.
427
Id. at 88–89.
428
See Kopel, supra note 342, 1998 BYU L. Rev. at 1462.
429
Thomas Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative
Power of the States of the American Union 35–36 (1868).
430
Id. at 350; see id. at 295 (chapter title). Miller cited this section. See 307 U.S. at 182 n.3 (citing
“Cooley’s Constitutional Limitations, Vol. 1, p. 729,” likely the 8th edition, published well after Coo-
ley’s death).
431
Cooley, Constitutional Limitations, supra note 429, at 18.
432
See Presser v. Illinois, 116 U.S. 252, 264–65 (1886); see also United States v. Cruikshank, 92
U.S. 542, 553 (1876); Logan v. United States, 144 U.S. 263, 286–87 (1892); Maxwell v. Dow, 176 U.S.
581, 597 (1900). As noted above in Part I, the federal government did not regulate private firearms
until 1934.
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Whether the Second Amendment Secures an Individual Right
ed to lay down any novel principles of government, but simply to em-
body certain guaranties and immunities which we had inherited from
our English ancestors, and which had from time immemorial been sub-
ject 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. 1) does not permit the publica-
tion of libels, blasphemous or indecent articles, or other publications
injurious to public morals or private reputation; [and] the right of the
people to keep and bear arms (art. 2) is not infringed by laws prohibit-
ing the carrying of concealed weapons . . . .433
The Court added similar illustrations from the Fifth and Sixth Amendments. The
Court thus suggested that the Second Amendment protected an individual right,
both by treating it in parallel with the individual rights in the rest of the Bill of
Rights and by pointing to the right’s English origins.
Not until 1905 was a view rejecting the individual right view truly born, and then
in a decision interpreting not the Second Amendment but rather a provision in a state
constitution. In City of Salina v. Blaksley, the Kansas Supreme Court held that a
clause in the Kansas Bill of Rights, providing that “‘[t]he people have the right to
bear arms for their defence and security,’” referred only “to the people as a collec-
tive body” and dealt “exclusively with the military. Individual rights are not
considered in this section.” Rather, the “people shall exercise this right” through the
power of their legislature, set out in the body of the state constitution, to organize,
equip, and discipline the militia. The right extended “only to the right to bear arms as
a member of the state militia, or some other military organization provided for by
law.”434 The court seems to have been influenced by a provision in the state constitu-
tion admonishing against standing armies in time of peace, and praising civilian
control of the military, that immediately followed the text of the right.435 The court
also, without citing historical authority and with little explanation, pointed to the
Second Amendment as analogous and reinforcing its reading.436 Salina’s novelty was
433
165 U.S. 275, 281–82 (1897).
434
83 P. 619, 620 (Kan. 1905).
435
See id. As shown in Parts III.B.2 and III.C.1, however, there was nothing unusual in combining
such declarations with an individual right to arms.
436
See Blaksley, 83 P. at 620. The Fifth Circuit in Emerson criticized Salina, to the extent that it
was endorsing a quasi-collective right view, as “constru[ing] the constitutional provision as saying no
more than that the citizen has a right to do that which the state orders him to do and thus neither grants
the citizen any right nor in any way restricts the power of the state.” It found such a criticism
“especially applicable to the theory that such state constitutional provisions grant rights only to the
state,” noting that Salina did “not appear even to recognize, much less attempt to justify, the anomaly
of construing a constitutional declaration of rights as conferring rights only on the state which had them
anyway.” 270 F.3d at 231 n.30 (emphasis added). In the context of the right to keep and bear arms in
229
Opinions of the Office of Legal Counsel in Volume 28
not missed. One state supreme court soon after, in a survey reaching back to Bliss,
Reid, Nunn, and Aymette, described Salina as having gone “further than any other
case” by holding that the right to bear arms in the Kansas Constitution imposed no
limit on the legislature’s power to prohibit private individuals from carrying arms.437
V. Conclusion
For the foregoing reasons, we conclude that the Second Amendment secures an
individual right to keep and to bear arms. Current case law leaves open and
unsettled the question of whose right is secured by the Amendment. Although we
do not address the scope of the right, our examination of the original meaning of
the Amendment provides extensive reasons to conclude that the Second Amend-
ment secures an individual right, and no persuasive basis for either the collective
right or quasi-collective right views. The text of the Amendment’s operative
clause, setting out a “right of the people to keep and bear Arms,” is clear and is
reinforced by the Constitution’s structure. The Amendment’s prefatory clause,
properly understood, is fully consistent with this interpretation. The broader
history of the Anglo-American right of individuals to have and use arms, from
England’s Revolution of 1688–1689 to the ratification of the Second Amendment
a hundred years later, leads to the same conclusion. Finally, the first hundred years
of interpretations of the Amendment, and especially the commentaries and case
law in the pre-Civil War period closest to the Amendment’s ratification, confirm
what the text and history of the Second Amendment require.
STEVEN G. BRADBURY
Principal Deputy Assistant Attorney General
Office of Legal Counsel
HOWARD C. NIELSON, JR.
Deputy Assistant Attorney General
Office of Legal Counsel
C. KEVIN MARSHALL
Acting Deputy Assistant Attorney General
Office of Legal Counsel
the federal Constitution, the quasi-collective right view appears to amount to the right of a militiaman,
through a private cause of action (or defense), to act as an agent for the interests of the state to
vindicate its power to establish and maintain an armed and organized militia such as the National
Guard. See, e.g., United States v. Haney, 264 F.3d 1161, 1165 (10th Cir. 2001).
437
Strickland v. State, 72 S.E. 260, 262 (Ga. 1911). For additional discussion of Salina, see Kopel,
supra note 342, 1998 BYU L. Rev. at 1510–12.
230