The Second Amendment (Amendment II) to the United States Constitution protects the individual right to keep and bear arms.^[15][16][1] It was ratified on December 15, 1791 as part of the Bill of Rights.^[17][18][19]

In District of Columbia v. Heller (2008), the Supreme Court affirmed for the first time that the right belongs to individuals, for self-defense in the home,^{[20][21][22][23]} while also including, as dicta, that the right is not unlimited and does not preclude the existence of certain long-standing prohibitions such as those forbidding "the possession of firearms by felons and the mentally ill" or restrictions on "the carrying of dangerous and unusual weapons."^[24][25] State and local governments are limited to the same extent as the federal government from infringing upon this right.^[26]

The Second Amendment was based partially on the right to keep and bear arms in English common law and was influenced by the English Bill of Rights of 1689. Sir William Blackstone described this right as an auxiliary right, supporting the natural rights of self-defense and resistance to oppression, and the civic duty to act in concert in defense of the state.^[27] Any labels of rights as auxiliary must be viewed in the context of the inherent purpose of a Bill of Rights, which is to empower a group with the ability to achieve a mutually desired outcome, and not to necessarily enumerate or rank the importance of rights. Thus all rights enumerated in a Constitution are thus auxiliary in the eyes of Sir William Blackstone because all rights are only as good as the extent they are exercised in fact.

While both James Monroe and John Adams supported the Constitution being ratified, its most influential framer was James Madison. In Federalist No. 46, Madison wrote how a federal army could be kept in check by state militias, "a standing army ... would be opposed [by] a militia." He argued that state militias "would be able to repel the danger" of a federal army, "It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops." He contrasted the federal government of the United States to the European kingdoms, which he described as "afraid to trust the people with arms," and assured that "the existence of subordinate governments ... forms a barrier against the enterprises of ambition".^[28][29]

By January 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several amendments were proposed, but were not adopted at the time the Constitution was ratified. For example, the Pennsylvania convention debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to the Bill of Rights to assure ratification.

In United States v. Cruikshank (1876), the Supreme Court ruled that, "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments [sic] means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government."^[30]

In United States v. Miller (1939), the Supreme Court ruled that the Second Amendment did not protect weapon types not having a "reasonable relationship to the preservation or efficiency of a well regulated militia."^[31][32]

In the twenty-first century, the amendment has been subjected to renewed academic inquiry and judicial interest.^[32] In Heller, the Supreme Court handed down a landmark decision that held the amendment protects an individual's right to keep a gun for self-defense.^[33][34] This was the first time the Court had ruled that the Second Amendment guarantees an individual's right to own a gun.^[35][36][34] In McDonald v. Chicago (2010), the Court clarified that the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment against state and local governments.^[37] In Caetano v. Massachusetts (2016), the Supreme Court reiterated its earlier rulings that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding" and that its protection is not limited to "only those weapons useful in warfare."

The debate between various organizations regarding gun control and gun rights continues.^[38]

There are several versions of the text of the Second Amendment, each with capitalization or punctuation differences. Differences exist between the drafted and ratified copies, the signed copies on display, and various published transcriptions.^{[39][40][41][42][43][44][45][46]} The importance (or lack thereof) of these differences has been a source of debate regarding the meaning and interpretation of the amendment, particularly regarding the importance of the prefatory clause.^[47][48]

One version was passed by the Congress, and a slightly different version was ratified.^{[2][49][50][51][52]} As passed by the Congress and preserved in the National Archives, with the rest of the original handwritten copy of the Bill of Rights prepared by scribe William Lambert, the amendment says:^[53]

The amendment was ratified by the States and authenticated by Secretary of State Thomas Jefferson as:^[54]

The right to bear arms in English history is regarded in English law as a subordinate auxiliary right of the primary rights to personal security, personal liberty, and private property. According to Sir William Blackstone, "The ... last auxiliary right of the subject ... is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is ... declared by ... statute, and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."^[3]

The English Bill of Rights of 1689 emerged from a tempestuous period in English politics during which two issues were major sources of conflict: the authority of the King to govern without the consent of Parliament, and the role of Catholics in a country that was becoming ever more Protestant. Ultimately, the Catholic James II was overthrown in the Glorious Revolution, and his successors, the Protestants William III and Mary II, accepted the conditions that were codified in the Bill. One of the issues the Bill resolved was the authority of the King to disarm his subjects, after King Charles II and James II had disarmed many Protestants that were "suspected or knowne" of disliking the government,^[55] and had argued with Parliament over his desire to maintain a standing (or permanent) army.^[4] The bill states that it is acting to restore "ancient rights" trampled upon by James II, though some have argued that the English Bill of Rights created a new right to have arms, which developed out of a duty to have arms.^[56] In District of Columbia v. Heller (2008), the Supreme Court did not accept this view, remarking that the English right at the time of the passing of the English Bill of Rights was "clearly an individual right, having nothing whatsoever to do with service in the militia" and that it was a right not to be disarmed by the Crown and was not the granting of a new right to have arms.^[57]

The text of the English Bill of Rights of 1689 includes language protecting the right of Protestants against disarmament by the Crown. This document states: "That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law."^[58] It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament.^[59] Nevertheless, the English Bill of Rights remains an important constitutional document, more for enumerating the rights of Parliament over the monarchy than for its clause concerning a right to have arms.

The statement in the English Bill of Rights concerning the right to bear arms is often quoted only in the passage where it is written as above and not in its full context. In its full context it is clear that the bill was asserting the right of Protestant citizens not to be disarmed by the King without the consent of Parliament and was merely restoring rights to Protestants that the previous King briefly and unlawfully had removed. In its full context it reads:

The historical link between the English Bill of Rights and the Second Amendment, which both codify an existing right and do not create a new one, has been acknowledged by the U.S. Supreme Court.^[5][6]

The English Bill of Rights includes the proviso that arms must be as "allowed by law." This has been the case before and after the passage of the Bill. While it did not override earlier restrictions on the ownership of guns for hunting, it is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments.^[60]

There is some difference of opinion as to how revolutionary the events of 1688–89 actually were, and several commentators make the point that the provisions of the English Bill of Rights did not represent new laws, but rather stated existing rights. Mark Thompson wrote that, apart from determining the succession, the English Bill of Rights did "little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already posessed [sic]."^[61] Before and after the English Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm.^[62] In 1765, William Blackstone wrote the Commentaries on the Laws of England describing the right to have arms in England during the 18th century as a subordinate auxiliary right of the subject that was "also declared" in the English Bill of Rights.^[63][64]

Although there is little doubt that the writers of the Second Amendment were heavily influenced by the English Bill of Rights, it is a matter of interpretation as to whether they were intent on preserving the power to regulate arms to the states over the federal government (as the English Parliament had reserved for itself against the monarch) or whether it was intent on creating a new right akin to the right of others written into the Constitution (as the Supreme Court decided in Heller). Some in the United States have preferred the "rights" argument arguing that the English Bill of Rights had granted a right. The need to have arms for self-defence was not really in question. Peoples all around the world since time immemorial had armed themselves for the protection of themselves and others, and as organized nations began to appear these arrangements had been extended to the protection of the state.^[66] Without a regular army and police force (which in England was not established until 1829), it had been the duty of certain men to keep watch and ward at night and to confront and capture suspicious persons. Every subject had an obligation to protect the king's peace and assist in the suppression of riots.^[67]

Early English settlers in America viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes (in no particular order):^{[7][8][69][70][71][72][73][74]}

Which of these considerations were thought of as most important and ultimately found expression in the Second Amendment is disputed. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776 asserted that, "the people have a right to bear arms for the defence of themselves and the state."^[81]

During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, including many who were loyal to British imperial rule. As defiance and opposition to British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists, known as Patriots, who favored independence from British rule. As a result, some Patriots created their own militias that excluded the Loyalists and then sought to stock independent armories for their militias. In response to this arms build up, the British Parliament established an embargo of firearms, parts and ammunition against the American colonies.^[82] King George III also began disarming individuals who were in the most rebellious areas in the 1760's and 70's.^[83]

British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, Blackstone's summary of the Declaration of Rights, their own militia laws and common law rights to self-defense.^[84] While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense.^[84] Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars' interpretation of Blackstone.^[85]

The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 Boston objecting to the British army suppression of colonial opposition to the Townshend Acts:

Furthermore, one article from New York in 1769 stated: "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."^[86]

The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with regular French army and naval forces and various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist militia and Hessian mercenaries. Following the Revolution, the United States was governed by the Articles of Confederation. Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the standing army was reduced to as few as 80 men.^[87] They considered it to be bad that there was no effective federal military crackdown on an armed tax rebellion in western Massachusetts known as Shays' Rebellion.^[88] Anti-federalists on the other hand took the side of limited government and sympathized with the rebels, many of whom were former Revolutionary War soldiers. Subsequently, the Constitutional Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.^[89][90] Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power.^[91]

Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that James Madison "did not invent the right to keep and bear arms when he drafted the Second Amendment; the right was pre-existing at both common law and in the early state constitutions."^[92] In contrast, historian Jack Rakove suggests that Madison's intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed.^[93]

One aspect of the gun control debate is the conflict between gun control laws and the right to rebel against unjust governments. Blackstone in his Commentaries alluded to this right to rebel as the natural right of resistance and self preservation, to be used only as a last resort, exercisable when "the sanctions of society and laws are found insufficient to restrain the violence of oppression".^[94] Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation,^[95] as Alexander Hamilton explained in his Concerning the Militia essay published in 1788:

Some scholars have said that it is wrong to read a right of armed insurrection in the Second Amendment because clearly the founding fathers sought to place trust in the power of the ordered liberty of democratic government versus the anarchy of insurrectionists.^[97][98] Other writers, such as Glenn Reynolds, contend that the framers did believe in an individual right to armed insurrection. They cite examples, such as the Declaration of Independence (describing in 1776 "the Right of the People to ... institute new Government") and the Constitution of New Hampshire (stating in 1784 that "nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind").^[99]

There was an ongoing debate beginning in 1789 about "the people" fighting governmental tyranny (as described by Anti-Federalists); or the risk of mob rule of "the people" (as described by the Federalists) related to the increasingly violent French Revolution.^[100] A widespread fear, during the debates on ratifying the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens,^[9] or prohibiting citizens from arming themselves.^[84] Though it has been argued that the states lost the power to arm their citizens when the power to arm the militia was transferred from the states to the federal government by Article I, Section 8 of the Constitution, the individual right to arm was retained and strengthened by the Militia Acts of 1792 and the similar act of 1795.^[101][102]

In March 1785, delegates from Virginia and Maryland assembled at the Mount Vernon Conference to fashion a remedy to the inefficiencies of the Articles of Confederation. The following year, at a meeting in Annapolis, Maryland, 12 delegates from five states (New Jersey, New York, Pennsylvania, Delaware, and Virginia) met and drew up a list of problems with the current government model. At its conclusion, the delegates scheduled a follow-up meeting in Philadelphia, Pennsylvania for May 1787 to present solutions to these problems, such as the absence of:^[116][117]

It quickly became apparent that the solution to all three of these problems required shifting control of the states' militias to the federal Congress and giving that congress the power to raise a standing army.^[118] Article 1, Section 8 of the Constitution codified these changes by allowing the Congress to provide for the common defense and general welfare of the United States by doing the following:^[119]

Some representatives mistrusted proposals to enlarge federal powers, because they were concerned about the inherent risks of centralizing power. Federalists, including James Madison, initially argued that a bill of rights was unnecessary, sufficiently confident that the federal government could never raise a standing army powerful enough to overcome a militia.^[120] Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.^[121][122] Anti-federalists, on the other hand, advocated amending the Constitution with clearly defined and enumerated rights providing more explicit constraints on the new government. Many Anti-federalists feared the new federal government would choose to disarm state militias. Federalists countered that in listing only certain rights, unlisted rights might lose protection. The Federalists realized there was insufficient support to ratify the Constitution without a bill of rights and so they promised to support amending the Constitution to add a bill of rights following the Constitution's adoption. This compromise persuaded enough Anti-federalists to vote for the Constitution, allowing for ratification.^[123] The Constitution was declared ratified on June 21, 1788, when nine of the original thirteen states had ratified it. The remaining four states later followed suit, although the last two states, North Carolina and Rhode Island, ratified only after Congress had passed the Bill of Rights and sent it to the states for ratification.^[124] James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June 8, 1789, and was adopted on December 15, 1791.

The debate surrounding the Constitution's ratification is of practical importance, particularly to adherents of originalist and strict constructionist legal theories. In the context of such legal theories and elsewhere, it is important to understand the language of the Constitution in terms of what that language meant to the people who wrote and ratified the Constitution.^[125]

The Second Amendment was relatively uncontroversial at the time of its ratification.^[126] Robert Whitehill, a delegate from Pennsylvania, sought to clarify the draft Constitution with a bill of rights explicitly granting individuals the right to hunt on their own land in season,^[127] though Whitehill's language was never debated.^[128]

There was substantial opposition to the new Constitution, because it moved the power to arm the state militias from the states to the federal government. This created a fear that the federal government, by neglecting the upkeep of the militia, could have overwhelming military force at its disposal through its power to maintain a standing army and navy, leading to a confrontation with the states, encroaching on the states' reserved powers and even engaging in a military takeover. Article VI of the Articles of Confederation states:

In contrast, Article I, Section 8, Clause 16 of the U.S. Constitution states:

A foundation of American political thought during the Revolutionary period was concerned about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is "a chimerical idea to suppose that a country like this could ever be enslaved ... Is it possible ... that an army could be raised for the purpose of enslaving themselves or their brethren? Or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?"^[132] Noah Webster similarly argued:

George Mason also argued the importance of the militia and right to bear arms by reminding his compatriots of England's efforts "to disarm the people; that it was the best and most effectual way to enslave them ... by totally disusing and neglecting the militia." He also clarified that under prevailing practice the militia included all people, rich and poor. "Who are the militia? They consist now of the whole people, except a few public officers." Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.^[28][134]

Writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included "the right to keep and bear arms" in a list of basic "human rights", which he proposed to be added to the Constitution.^[135]

Patrick Henry argued in the Virginia ratification convention on June 5, 1788, for the dual rights to arms and resistance to oppression:

According to political commentator Thom Hartmann, the Virginians James Madison, Patrick Henry, and George Mason were concerned that "slave patrols", organized groups of white men who enforced discipline upon enslaved blacks, needed to remain armed and, therefore, the Constitution needed to clarify that states have the right to organize white men in such militias.^[137] Also, Patrick Henry argued against the ratification of both the Constitution and the Second Amendment.^[80] Most Southern white men aged 18–45 were required to serve on such patrols.

Legal historian Paul Finkelman disputes Hartmann's claim that the Second Amendment was adopted to protect slave patrols, arguing that Hartmann's claim is "factually incorrect and misleading" and that there is no historical evidence for this assertion.^[80]

James Madison's initial proposal for a bill of rights was brought to the floor of the House of Representatives on June 8, 1789, during the first session of Congress. The initial proposed passage relating to arms was:

On July 21, Madison again raised the issue of his bill and proposed a select committee be created to report on it. The House voted in favor of Madison's motion,^[139] and the Bill of Rights entered committee for review. The committee returned to the House a reworded version of the Second Amendment on July 28.^[140] On August 17, that version was read into the Journal:

In late August 1789, the House debated and modified the Second Amendment. These debates revolved primarily around risk of "mal-administration of the government" using the "religiously scrupulous" clause to destroy the militia as Great Britain had attempted to destroy the militia at the commencement of the American Revolution. These concerns were addressed by modifying the final clause, and on August 24, the House sent the following version to the Senate:

The next day, August 25, the Senate received the amendment from the House and entered it into the Senate Journal. However, the Senate scribe added a comma before "shall not be infringed" and changed the semicolon separating that phrase from the religious exemption portion to a comma:

By this time, the proposed right to keep and bear arms was in a separate amendment, instead of being in a single amendment together with other proposed rights such as the due process right. As a representative explained, this change allowed each amendment to "be passed upon distinctly by the States."^[143] On September 4, the Senate voted to change the language of the Second Amendment by removing the definition of militia, and striking the conscientious objector clause:

The Senate returned to this amendment for a final time on September 9. A proposal to insert the words "for the common defence" next to the words "bear arms" was defeated. A motion passed to replace the words "the best," and insert in lieu thereof "necessary to the" .^[145] The Senate then slightly modified the language to read as the fourth article and voted to return the Bill of Rights to the House. The final version by the Senate was amended to read as:

The House voted on September 21, 1789 to accept the changes made by the Senate.

The enrolled original Joint Resolution passed by Congress on September 25, 1789, on permanent display in the Rotunda, reads as:

On December 15, 1791, the Bill of Rights (the first ten amendments to the Constitution) was adopted, having been ratified by three-fourths of the states, having been ratified as a group by all the fourteen states then in existence except Connecticut, Massachusetts, and Georgia – which added ratifications in 1939.^[147]

During the first two decades following the ratification of the Second Amendment, public opposition to standing armies, among Anti-Federalists and Federalists alike, persisted and manifested itself locally as a general reluctance to create a professional armed police force, instead relying on county sheriffs, constables and night watchmen to enforce local ordinances.^[82] Though sometimes compensated, often these positions were unpaid – held as a matter of civic duty. In these early decades, law enforcement officers were rarely armed with firearms, using billy clubs as their sole defensive weapons.^[82] In serious emergencies, a posse comitatus, militia company, or group of vigilantes assumed law enforcement duties; these individuals were more likely than the local sheriff to be armed with firearms.^[82]

On May 8, 1792, Congress passed "[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States" requiring:

The act also gave specific instructions to domestic weapon manufacturers "that from and after five years from the passing of this act, muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound."^[148] In practice, private acquisition and maintenance of rifles and muskets meeting specifications and readily available for militia duty proved problematic; estimates of compliance ranged from 10 to 65 percent.^[149] Compliance with the enrollment provisions was also poor. In addition to the exemptions granted by the law for custom-house officers and their clerks, post-officers and stage drivers employed in the care and conveyance of U.S. mail, ferrymen, export inspectors, pilots, merchant mariners and those deployed at sea in active service; state legislatures granted numerous exemptions under Section 2 of the Act, including exemptions for: clergy, conscientious objectors, teachers, students, and jurors. And though a number of able-bodied white men remained available for service, many simply did not show up for militia duty. Penalties for failure to appear were enforced sporadically and selectively.^[150] None is mentioned in the legislation.^[148]

The first test of the militia system occurred in July 1794, when a group of disaffected Pennsylvania farmers rebelled against federal tax collectors whom they viewed as illegitimate tools of tyrannical power.^[151] Attempts by the four adjoining states to raise a militia for nationalization to suppress the insurrection proved inadequate. When officials resorted to drafting men, they faced bitter resistance. Forthcoming soldiers consisted primarily of draftees or paid substitutes as well as poor enlistees lured by enlistment bonuses. The officers, however, were of a higher quality, responding out of a sense of civic duty and patriotism, and generally critical of the rank and file.^[82] Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.^[82] In October, President George Washington and General Harry Lee marched on the 7,000 rebels who conceded without fighting. The episode provoked criticism of the citizen militia and inspired calls for a universal militia. Secretary of War Henry Knox and Vice President John Adams had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production.^[82] Congress did subsequently pass "[a]n act for the erecting and repairing of Arsenals and Magazines" on April 2, 1794, two months prior to the insurrection.^[152] Nevertheless, the militia continued to deteriorate and twenty years later, the militia's poor condition contributed to several losses in the War of 1812, including the sacking of Washington, D.C., and the burning of the White House in 1814.^[150]

In May of 1788, Richard Henry Lee wrote in Additional Letters From The Federal Farmer #169 or Letter XVIII regarding the definition of a "militia":

In June of 1788, George Mason addressed the Virginia Ratifying Convention regarding a "militia:"

In 1792, Tench Coxe made the following point in a commentary on the Second Amendment:^[153]

The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker. He annotated a five-volume edition of Sir William Blackstone's Commentaries on the Laws of England, a critical legal reference for early American attorneys published in 1803.^[156][157] Tucker wrote:

In footnotes 40 and 41 of the Commentaries, Tucker stated that the right to bear arms under the Second Amendment was not subject to the restrictions that were part of English law: "The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government" and "whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England." Blackstone himself also commented on English game laws, Vol. II, p. 412, "that the prevention of popular insurrections and resistance to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws."^[156] Blackstone discussed the right of self-defense in a separate section of his treatise on the common law of crimes. Tucker's annotations for that latter section did not mention the Second Amendment but cited the standard works of English jurists such as Hawkins.^[10]

Further, Tucker criticized the English Bill of Rights for limiting gun ownership to the very wealthy, leaving the populace effectively disarmed, and expressed the hope that Americans "never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty."^[156]

Tucker's commentary was soon followed, in 1825, by that of William Rawle in his landmark text, A View of the Constitution of the United States of America. Like Tucker, Rawle condemned England's "arbitrary code for the preservation of game," portraying that country as one that "boasts so much of its freedom," yet provides a right to "protestant subjects only" that it "cautiously describ[es] to be that of bearing arms for their defence" and reserves for "[a] very small proportion of the people[.]"^[159] In contrast, Rawle characterizes the second clause of the Second Amendment, which he calls the corollary clause, as a general prohibition against such capricious abuse of government power, declaring bluntly:

Speaking of the Second Amendment generally, Rawle said:^[11]

Rawle, long before the concept of incorporation was formally recognized by the courts, or Congress drafted the Fourteenth Amendment, contended that citizens could appeal to the Second Amendment should either the state or federal government attempt to disarm them. He did warn, however, that "this right [to bear arms] ought not ... be abused to the disturbance of the public peace" and, paraphrasing Coke, observed: "An assemblage of persons with arms, for unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace."^[159]

Joseph Story articulated in his influential Commentaries on the Constitution^[162] the orthodox view of the Second Amendment, which he viewed as the amendment's clear meaning:

Story describes a militia as the "natural defence of a free country," both against foreign foes, domestic revolts and usurpation by rulers. The book regards the militia as a "moral check" against both usurpation and the arbitrary use of power, while expressing distress at the growing indifference of the American people to maintaining such an organized militia, which could lead to the undermining of the protection of the Second Amendment.^[163]

Abolitionist Lysander Spooner, commenting on bills of rights, stated that the object of all bills of rights is to assert the rights of individuals against the government and that the Second Amendment right to keep and bear arms was in support of the right to resist government oppression, as the only security against the tyranny of government lies in forcible resistance to injustice, for injustice will certainly be executed, unless forcibly resisted.^[164] Spooner's theory provided the intellectual foundation for John Brown and other radical abolitionists who believed that arming slaves was not only morally justified, but entirely consistent with the Second Amendment.^[165] An express connection between this right and the Second Amendment was drawn by Lysander Spooner who commented that a "right of resistance" is protected by both the right to trial by jury and the Second Amendment.^[166]

The congressional debate on the proposed Fourteenth Amendment concentrated on what the Southern States were doing to harm the newly freed slaves, including disarming the former slaves.^[167]

In 1867, Judge Timothy Farrar published his Manual of the Constitution of the United States of America, which was written when the Fourteenth Amendment was "in the process of adoption by the State legislatures.":^[155][13]

Judge Thomas M. Cooley, perhaps the most widely read constitutional scholar of the nineteenth century, wrote extensively about this amendment,^[168][169] and he explained in 1880 how the Second Amendment protected the "right of the people":

In the latter half of the 20th century, there was considerable debate over whether the Second Amendment protected an individual right or a collective right.^[171] The debate centered on whether the prefatory clause ("A well regulated militia being necessary to the security of a free State") declared the amendment's only purpose or merely announced a purpose to introduce the operative clause ("the right of the People to keep and bear arms shall not be infringed"). Scholars advanced three competing theoretical models for how the prefatory clause should be interpreted.^[172]

The first, known as the "states' rights" or "collective right" model, held that the Second Amendment does not apply to individuals; rather, it recognizes the right of each state to arm its militia. Under this approach, citizens "have no right to keep or bear arms, but the states have a collective right to have the National Guard".^[155] Advocates of collective rights models argued that the Second Amendment was written to prevent the federal government from disarming state militias, rather than to secure an individual right to possess firearms.^[173] Prior to 2001, every circuit court decision that interpreted the Second Amendment endorsed the "collective right" model.^[174][175] However, beginning with the Fifth Circuit's opinion United States v. Emerson in 2001, some circuit courts recognized that the Second Amendment protects an individual right to bear arms.^[176][177]

The second, known as the "sophisticated collective right model", held that the Second Amendment recognizes some limited individual right. However, this individual right could only be exercised by actively participating members of a functioning, organized state militia.^[178][179] Some scholars have argued that the "sophisticated collective rights model" is, in fact, the functional equivalent of the "collective rights model."^[180] Other commentators have observed that prior to Emerson, five circuit courts specifically endorsed the "sophisticated collective right model".^[181]

The third, known as the "standard model", held that the Second Amendment recognized the personal right of individuals to keep and bear arms.^[155] Supporters of this model argued that "although the first clause may describe a general purpose for the amendment, the second clause is controlling and therefore the amendment confers an individual right 'of the people' to keep and bear arms".^[182] Additionally, scholars who favored this model argued the "absence of founding-era militias mentioned in the Amendment's preamble does not render it a 'dead letter' because the preamble is a 'philosophical declaration' safeguarding militias and is but one of multiple 'civic purposes' for which the Amendment was enacted".^[183]

Under both of the collective right models, the opening phrase was considered essential as a pre-condition for the main clause.^[184] These interpretations held that this was a grammar structure that was common during that era^[185] and that this grammar dictated that the Second Amendment protected a collective right to firearms to the extent necessary for militia duty.^[186] However, under the standard model, the opening phrase was believed to be prefatory or amplifying to the operative clause. The opening phrase was meant as a non-exclusive example – one of many reasons for the amendment.^[63] This interpretation is consistent with the position that the Second Amendment protects a modified individual right.^[187]

The question of a collective right versus an individual right was progressively resolved in favor of the individual rights model, beginning with the Fifth Circuit ruling in United States v. Emerson (2001), along with the Supreme Court's rulings in District of Columbia v. Heller (2008), and McDonald v. Chicago (2010). In Heller, the Supreme Court resolved any remaining circuit splits by ruling that the Second Amendment protects an individual right.^[188] Although the Second Amendment is the only Constitutional amendment with a prefatory clause, such linguistic constructions were widely used elsewhere in the late eighteenth century.^[189]

Warren E. Burger, a conservative Republican appointed chief justice of the United States by President Richard Nixon, wrote in 1990 following his retirement:

And in 1991 Burger stated:

In a 1992 opinion piece, six former American attorneys general wrote:

Research by Robert Spitzer found that every law journal article discussing the Second Amendment through 1959 "reflected the Second Amendment affects citizens only in connection with citizen service in a government organized and regulated militia." Only beginning in 1960 did law journal articles begin to advocate an "individualist" view of gun ownership rights.^[193][194]

The term "regulated" means "disciplined" or "trained".^[195] In Heller, the U.S. Supreme Court stated that "[t]he adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training."^[196]

In the year prior to the drafting of the Second Amendment, in Federalist No. 29 Alexander Hamilton wrote the following about "organizing," "disciplining," "arming," and "training." of the militia as specified in the enumerated powers:

Justice Scalia, writing for the Court in Heller: "In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the 'natural right of self-defence' and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right":

Justice Stevens in dissent:

Justice Antonin Scalia, writing for the majority in Heller, stated:

An earlier case, United States v. Verdugo-Urquidez (1990), dealt with nonresident aliens and the Fourth Amendment, but led to a discussion of who are "the People" when referred to elsewhere in the Constitution:^[200]

According to the majority in Heller, there were several different reasons for this amendment, and protecting militias was only one of them; if protecting militias had been the only reason then the amendment could have instead referred to "the right of the militia to keep and bear arms" instead of "the right of the people to keep and bear arms."^[201][202]

In Heller the majority rejected the view that the term "to bear arms" implies only the military use of arms:

In a dissent, joined by justices Souter, Ginsburg, and Breyer, Justice Stevens said:

A May 2018 analysis by Dennis Baron contradicted the majority opinion:

However, a paper from 2008 found that before 1820, the use of the phrase "bear arms" was commonly used in a civilian context, such as hunting and personal self-defense, in both American and British law.^[205]

In the century following the ratification of the Bill of Rights, the intended meaning and application of the Second Amendment drew less interest than it does in modern times.^[206] The vast majority of regulation was done by states, and the first case law on weapons regulation dealt with state interpretations of the Second Amendment. A notable exception to this general rule was Houston v. Moore, 18 U.S. /1 / 1 ^[358] (1820), where the U.S. Supreme Court mentioned the Second Amendment in an aside.^[14] In the Dred Scott decision (1857), the opinion of the court stated that if African Americans were considered U.S. citizens, "It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right ... to keep and carry arms wherever they went."^[207]

State and federal courts historically have used two models to interpret the Second Amendment: the "individual rights" model, which holds that individuals hold the right to bear arms, and the "collective rights" model, which holds that the right is dependent on militia membership. The "collective rights" model has been rejected by the Supreme Court, in favor of the individual rights model.

The Supreme Court's primary Second Amendment cases include United States v. Miller, (1939); District of Columbia v. Heller (2008); and McDonald v. Chicago (2010).

Heller and McDonald supported the individual rights model, under which the Second Amendment protects the right to keep and bear arms much as the First Amendment protects the right to free speech. Under this model, the militia is composed of members who supply their own arms and ammunition. This is generally recognized as the method by which militias have historically been armed, as the Supreme Court in Miller said:

Of the collective rights model that holds that the right to arms is based on militia membership, the Supreme Court in Heller said:

In the Reconstruction Era case of United States v. Cruikshank, 92 U.S. /542 / 542 ^[359] (1875), the defendants were white men who had killed more than sixty black people in what was known as the Colfax massacre and had been charged with conspiring to prevent blacks from exercising their right to bear arms. The Court dismissed the charges, holding that the Bill of Rights restricted Congress but not private individuals. The Court concluded, "[f]or their protection in its enjoyment, the people must look to the States."^[210]

The Court stated that "[t]he Second Amendment ... has no other effect than to restrict the powers of the national government ....."^[211] Likewise, the Court held that there was no state action in this case, and therefore the Fourteenth Amendment was not applicable:

Thus, the Court held a federal anti-Ku-Klux-Klan statute to be unconstitutional as applied in that case.^[213]

In Presser v. Illinois, 116 U.S. /252 / 252 ^[360] (1886), Herman Presser headed a German-American paramilitary shooting organization and was arrested for leading a parade group of 400 men, training and drilling with military weapons with the declared intention to fight, through the streets of Chicago as a violation of Illinois law that prohibited public drilling and parading in military style without a permit from the governor.^[82][214]

At his trial, Presser argued that the State of Illinois had violated his Second Amendment rights. The Supreme Court reaffirmed Cruikshank, and also held that the Second Amendment prevented neither the States nor Congress from barring private militias that parade with arms; such a right "cannot be claimed as a right independent of law." This decision upheld the States' authority to regulate the militia and that citizens had no right to create their own militias or to own weapons for semi-military purposes.^[82] However the court said: "A state cannot prohibit the people therein from keeping and bearing arms to an extent that would deprive the United States of the protection afforded by them as a reserve military force."^[215]

In Miller v. Texas, 153 U.S. /535 / 535 ^[361] (1894), Franklin Miller was convicted and sentenced to be executed for shooting a police officer to death with an illegally carried handgun in violation of Texas law. Miller sought to have his conviction overturned, claiming his Second Amendment rights were violated and that the Bill of Rights should be applied to state law. The Supreme Court ruled that the Second Amendment did not apply to state laws such as the Texas law:^[82] "As the proceedings were conducted under the ordinary forms of criminal prosecutions there certainly was no denial of due process of law."^[216]

In Robertson v. Baldwin, 165 U.S. /275 / 275 ^[362] (1897), the Court stated in dicta that laws regulating concealed arms did not infringe upon the right to keep and bear arms and thus were not a violation of the Second Amendment:

In United States v. Miller, 307 U.S. /174 / 174 ^[363] (1939), the Supreme Court rejected a Second Amendment challenge to the National Firearms Act prohibiting the interstate transportation of unregistered Title II weapons:

In a unanimous opinion authored by Justice McReynolds, the Supreme Court stated "the objection that the Act usurps police power reserved to the States is plainly untenable."^[219] As the Court explained:

Gun rights advocates claim that the Court in Miller ruled that the Second Amendment protected the right to keep arms that are part of "ordinary military equipment."^[221] They also claim that the Court did not consider the question of whether the sawed-off shotgun in the case would be an applicable weapon for personal defense, instead looking solely at the weapon's suitability for the "common defense."^[222] Law professor Andrew McClurg states, "The only certainty about Miller is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact."^[223]

According to the syllabus prepared by the U.S. Supreme Court Reporter of Decisions,^[224] in District of Columbia v. Heller, 554 U.S. /570 / 570 ^[364] (2008), the Supreme Court held:^[224][225]

There are similar legal summaries of the Supreme Court's findings in Heller.^{[226][227][228][229][230][231]} For example, the Illinois Supreme Court in People v. Aguilar (2013), summed up *Heller'*s findings and reasoning:

Heller has been widely described as a landmark decision because it was the first time the Court affirmed an individual's right to own a gun.^{[233][234][235][236][237]} To clarify that its ruling does not invalidate a broad range of existing firearm laws, the majority opinion, written by Justice Antonin Scalia, said:^[238]

The Court's statement that the right is limited has been widely discussed by lower courts and the media.^{[240][241][242][243]} The majority opinion also said that the amendment's prefatory clause (referencing the "militia") serves to clarify the operative clause (referencing "the people"), but does not limit the scope of the operative clause, because "the 'militia' in colonial America consisted of a subset of 'the people' . ... "^[244]

Justice Stevens' dissenting opinion, which was joined by the three other dissenters, said:

Stevens went on to say the following:

This dissent called the majority opinion "strained and unpersuasive" and said that the right to possess a firearm exists only in relation to the militia and that the D.C. laws constitute permissible regulation. In the majority opinion, Justice Stevens' interpretation of the phrase "to keep and bear arms" was referred to as a "hybrid" definition that Stevens purportedly chose in order to avoid an "incoherent" and "[g]rotesque" idiomatic meeting.^[246]

Justice Breyer, in his own dissent joined by Stevens, Souter, and Ginsburg, stated that the entire Court subscribes to the proposition that "the amendment protects an 'individual' right – i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred".^[247]

Regarding the term "well regulated", the majority opinion said, "The adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training."^[196] The majority opinion quoted Spooner from The Unconstitutionality of Slavery as saying that the right to bear arms was necessary for those who wanted to take a stand against slavery.^[248] The majority opinion also stated that:

The dissenting justices were not persuaded by this argument.^[250]

Reaction to Heller has varied, with many sources giving focus to the ruling referring to itself as being the first in Supreme Court history to read the Second Amendment as protecting an individual right. The majority opinion, authored by Justice Scalia, gives explanation of the majority legal reasoning behind this decision.^[225] The majority opinion made clear that the recent ruling did not foreclose the Court's prior interpretations given in United States v. Cruikshank, Presser v. Illinois, and United States v. Miller though these earlier rulings did not limit the right to keep and bear arms solely to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia (i.e., those in common use for lawful purposes).^[225]

Heller pertained to three District of Columbia ordinances involving restrictions on firearms amounting to a total ban. These three ordinances were a ban on handgun registration, a requirement that all firearms in a home be either disassembled or have a trigger lock, and licensing requirement that prohibits carrying an unlicensed firearm in the home, such as from one room to another.

Justice Ginsburg has been a vocal critic of Heller. Speaking in an interview on public radio station WNYC, she called the Second Amendment "outdated," saying:

On June 28, 2010, the Court in McDonald v. City of Chicago, 561 U.S. 742 (2010), held that the Second Amendment was incorporated, saying that "[i]t is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."^[252] This means that the Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government.^[37] It also remanded a case regarding a Chicago handgun prohibition. Four of the five justices in the majority voted to do so by way of the Due Process Clause of the Fourteenth Amendment, while the fifth justice, Clarence Thomas, voted to do so through the amendment's Privileges or Immunities Clause.^[253]

Justice Thomas, in his concurring opinion, noted that the Privileges or Immunities Clause refers to "citizens" whereas the Due Process Clause refers more broadly to any "person", and therefore Thomas reserved the issue of non-citizens for later decision.^[254] After McDonald, many questions about the Second Amendment remain unsettled, such as whether non-citizens are protected through the Equal Protection Clause.^[254]

In People v. Aguilar (2013), the Illinois Supreme Court summed up the central Second Amendment findings in McDonald:

On March 21, 2016, in a per curiam decision the Court vacated a Massachusetts Supreme Judicial Court decision upholding the conviction of a woman who carried a stun gun for self-defense.^[255] The Court reiterated that the Heller and McDonald decisions saying that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding", that "the Second Amendment right is fully applicable to the States", and that the protection is not restricted to "only those weapons useful in warfare".

The Court agreed to hear New York State Rifle & Pistol Association Inc. v. City of New York, New York in January 2019 to decide whether a New York City ordinance that prevents the transport of guns, even if properly unloaded and locked in containers, outside of the city limits is unconstitutional. The New York Rifle & Pistol Association is challenging the ordinance on the basis of the Second Amendment, the Dormant Commerce Clause, and the right to travel.^[256]

Until District of Columbia v. Heller (2008), United States v. Miller (1939) had been the only Supreme Court decision that "tested a congressional enactment against [the Second Amendment]."^[257] Miller did not directly mention either a collective or individual right, but for the 62-year period from Miller until the Fifth Circuit's decision in United States v. Emerson (2001), federal courts recognized only the collective right,^[258] with "courts increasingly referring to one another's holdings ... without engaging in any appreciably substantive legal analysis of the issue".^[257]

Emerson changed this by addressing the question in depth, with the Fifth Circuit determining that the Second Amendment protects an individual right.^[257] Subsequently, the Ninth Circuit conflicted with Emerson in Silveira v. Lockyer, and the D.C. Circuit supported Emerson in Parker v. District of Columbia.^[257] Parker evolved into District of Columbia v. Heller, in which the U.S. Supreme Court determined that the Second Amendment protects an individual right.

Since Heller, the United States courts of appeals have ruled on many Second Amendment challenges to convictions and gun control laws.^[259][260] The following are post-Heller cases, divided by Circuit, along with summary notes:

On June 27, 2008, a day after the Supreme Court handed down its decision in District of Columbia v. Heller, the Chicago Tribune wrote in an editorial that the Second Amendment should be repealed so local governments could ban firearms in an effort to protect their residents.^[300]

On October 5, 2017, political commentator Bret Stephens called for the repeal of the Second Amendment, arguing that repeal is the only effective way to regulate firearms.^[301]

On March 27, 2018, former Supreme Court justice John Paul Stevens said the Second Amendment should be repealed. Stevens said that Heller went against the settled understanding of the Second Amendment as being militia-based and that overruling that decision by repealing the Second Amendment would be "simple."^[302] President Trump responded the next day to Stevens's call for repeal by saying that it would never happen.^[303] Elizabeth Wydra, president of the Constitutional Accountability Center, says that Stevens's comments were "staggeringly misplaced" and could set back demands for gun control. She also said an attempt at repeal would be "a daunting task" likely to fail.^[304]