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The U. S. Constitution Worksheet 1. VIRGINIA PLAN THE ..
Note: The following text is a transcription of the Constitution as it was inscribed by Jacob Shallus on parchment (the document on display in the Rotunda at the National Archives Museum.) The spelling and punctuation reflect the original.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Article. I.
Section. 1.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Section. 2.
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.
When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Section. 3.
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.
Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Section. 4.
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.
Section. 5.
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
Section. 6.
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
Section. 7.
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.
Section. 8.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Section. 9.
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
No Bill of Attainder or ex post facto Law shall be passed.
No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.
No Tax or Duty shall be laid on Articles exported from any State.
No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
Section. 10.
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Article. II.
Section. 1.
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'
Section. 2.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Section. 3.
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Section. 4.
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Article III.
Section. 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section. 3.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Article. IV.
Section. 1.
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Section. 2.
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
Section. 3.
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
Section. 4.
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
Article. V.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Article. VI.
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Article. VII.
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
The Word, 'the,' being interlined between the seventh and eighth Lines of the first Page, The Word 'Thirty' being partly written on an Erazure in the fifteenth Line of the first Page, The Words 'is tried' being interlined between the thirty second and thirty third Lines of the first Page and the Word 'the' being interlined between the forty third and forty fourth Lines of the second Page.
Attest William Jackson Secretary
done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independance of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names,
G°. Washington
Presidt and deputy from Virginia
Delaware
Geo: Read
Gunning Bedford jun
John Dickinson
Richard Bassett
Jaco: Broom
Maryland
James McHenry
Dan of St Thos. Jenifer
Danl. Carroll
Virginia
John Blair
James Madison Jr.
North Carolina
Wm. Blount
Richd. Dobbs Spaight
Hu Williamson
South Carolina
J. Rutledge
Charles Cotesworth Pinckney
Charles Pinckney
Pierce Butler
Georgia
William Few
Abr Baldwin
New Hampshire
John Langdon
Nicholas Gilman
Massachusetts
Nathaniel Gorham
Rufus King
Connecticut
Wm. Saml. Johnson
Roger Sherman
New York
New Jersey
Wil: Livingston
David Brearley
Wm. Paterson
Jona: Dayton
Pennsylvania
B Franklin
Thomas Mifflin
Robt. Morris
Geo. Clymer
Thos. FitzSimons
Jared Ingersoll
James Wilson
Gouv Morris
For biographies of the non-signing delegates to the Constitutional Convention, see the Founding Fathers page.
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The Declaration of Independence
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The Constitution of the United States
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The Bill of Rights
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Subsequent Amendments to the Constitution
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United States Bill of Rights | |
---|---|
Created | September 25, 1789 |
Ratified | December 15, 1791 |
Location | National Archives |
Author(s) | James Madison |
This article is part of a series on the |
Constitution of the United States of America |
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Preamble and Articles of the Constitution |
Amendments to the Constitution |
Unratified Amendments |
History |
Full text of the Constitution and Amendments |
The United States Bill of Rights comprises the first ten amendments to the United States Constitution. Proposed following the often bitter 1787–88 debate over ratification of Constitution, and written to address the objections raised by Anti-Federalists, the Bill of Rights amendments add to the Constitution specific guarantees of personal freedoms and rights, clear limitations on the government's power in judicial and other proceedings, and explicit declarations that all powers not specifically granted to the U.S. Congress by the Constitution are reserved for the states or the people. The concepts codified in these amendments are built upon those found in earlier documents, especially the Virginia Declaration of Rights (1776), as well as the English Bill of Rights (1689) and the Magna Carta (1215).[1]
Due largely to the efforts of Representative James Madison, who studied the deficiencies of the constitution pointed out by anti-federalists and then crafted a series of corrective proposals, Congress approved twelve articles of amendment on September 25, 1789, and submitted them to the states for ratification. Contrary to Madison's proposal that the proposed amendments be incorporated into the main body of the Constitution (at the relevant articles and sections of the document), they were proposed as supplemental additions (codicils) to it.[2] Articles Three through Twelve were ratified as additions to the Constitution on December 15, 1791, and became Amendments One through Ten of the Constitution. Article Two became part of the Constitution on May 5, 1992, as the Twenty-seventh Amendment. Article One is still pending before the states.
Although Madison's proposed amendments included a provision to extend the protection of some of the Bill of Rights to the states, the amendments that were finally submitted for ratification applied only to the federal government. The door for their application upon state governments was opened in the 1860s, following ratification of the Fourteenth Amendment. Since the early 20th century both federal and state courts have used the Fourteenth Amendment to apply portions of the Bill of Rights to state and local governments. The process is known as incorporation.[3]
There are several original engrossed copies of the Bill of Rights still in existence. One of these is on permanent public display at the National Archives in Washington, D.C.
- 1Background
- 2Proposal and ratification
- 3Application and text
Background
Philadelphia Convention
Prior to the ratification and implementation of the United States Constitution, the thirteen sovereign states followed the Articles of Confederation, created by the Second Continental Congress and ratified in 1781. However, the national government that operated under the Articles of Confederation was too weak to adequately regulate the various conflicts that arose between the states.[4] The Philadelphia Convention set out to correct weaknesses of the Articles that had been apparent even before the American Revolutionary War had been successfully concluded.[4]
The convention took place from May 14 to September 17, 1787, in Philadelphia, Pennsylvania. Although the Convention was purportedly intended only to revise the Articles, the intention of many of its proponents, chief among them James Madison of Virginia and Alexander Hamilton of New York, was to create a new government rather than fix the existing one. The convention convened in the Pennsylvania State House, and George Washington of Virginia was unanimously elected as president of the convention.[5] The 55 delegates who drafted the Constitution are among the men known as the Founding Fathers of the new nation. Thomas Jefferson, who was Minister to France during the convention, characterized the delegates as an assembly of 'demi-gods.'[4] Rhode Island refused to send delegates to the convention.[6]
On September 12, George Mason of Virginia suggested the addition of a Bill of Rights to the Constitution modeled on previous state declarations, and Elbridge Gerry of Massachusetts made it a formal motion.[7] However, after only a brief discussion where Roger Sherman pointed out that State Bills of Rights were not repealed by the new Constitution,[8][9] the motion was defeated by a unanimous vote of the state delegations. Madison, then an opponent of a Bill of Rights, later explained the vote by calling the state bills of rights 'parchment barriers' that offered only an illusion of protection against tyranny.[10] Another delegate, James Wilson of Pennsylvania, later argued that the act of enumerating the rights of the people would have been dangerous, because it would imply that rights not explicitly mentioned did not exist;[10] Hamilton echoed this point in FederalistNo. 84.[11]
Because Mason and Gerry had emerged as opponents of the proposed new Constitution, their motion—introduced five days before the end of the convention—may also have been seen by other delegates as a delaying tactic.[12] The quick rejection of this motion, however, later endangered the entire ratification process. Author David O. Stewart characterizes the omission of a Bill of Rights in the original Constitution as 'a political blunder of the first magnitude'[12] while historian Jack N. Rakove calls it 'the one serious miscalculation the framers made as they looked ahead to the struggle over ratification'.[13]
Thirty-nine delegates signed the finalized Constitution. Thirteen delegates left before it was completed, and three who remained at the convention until the end refused to sign it: Mason, Gerry, and Edmund Randolph of Virginia.[14] Afterward, the Constitution was presented to the Articles of Confederation Congress with the request that it afterwards be submitted to a convention of delegates, chosen in each State by the people, for their assent and ratification.[15]
Anti-Federalists
Following the Philadelphia Convention, some leading revolutionary figures such as Patrick Henry, Samuel Adams, and Richard Henry Lee publicly opposed the new frame of government, a position known as 'Anti-Federalism'.[16] Elbridge Gerry wrote the most popular Anti-Federalist tract, 'Hon. Mr. Gerry's Objections', which went through 46 printings; the essay particularly focused on the lack of a bill of rights in the proposed constitution.[17] Many were concerned that a strong national government was a threat to individual rights and that the President would become a king. Jefferson wrote to Madison advocating a Bill of Rights: 'Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.'[18] The pseudonymous Anti-Federalist 'Brutus'[a] wrote,
We find they have, in the ninth section of the first article declared, that the writ of habeas corpus shall not be suspended, unless in cases of rebellion—that no bill of attainder, or ex post facto law, shall be passed—that no title of nobility shall be granted by the United States, etc. If every thing which is not given is reserved, what propriety is there in these exceptions? Does this Constitution any where grant the power of suspending the habeas corpus, to make ex post facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms. The only answer that can be given is, that these are implied in the general powers granted. With equal truth it may be said, that all the powers which the bills of rights guard against the abuse of, are contained or implied in the general ones granted by this Constitution.[20]
He continued with this observation:
Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought. So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are wilfully endeavoring to deceive, and to lead you into an absolute state of vassalage.[21]
Federalists
Supporters of the Constitution, known as Federalists, opposed a bill of rights for much of the ratification period, in part due to the procedural uncertainties it would create.[22] Madison argued against such an inclusion, suggesting that state governments were sufficient guarantors of personal liberty, in No. 46 of The Federalist Papers, a series of essays promoting the Federalist position.[23] Hamilton opposed a bill of rights in The Federalist No. 84, stating that 'the constitution is itself in every rational sense, and to every useful purpose, a bill of rights.' He stated that ratification did not mean the American people were surrendering their rights, making protections unnecessary: 'Here, in strictness, the people surrender nothing, and as they retain everything, they have no need of particular reservations.' Patrick Henry criticized the Federalist point of view, writing that the legislature must be firmly informed 'of the extent of the rights retained by the people .. being in a state of uncertainty, they will assume rather than give up powers by implication.'[24] Other anti-Federalists pointed out that earlier political documents, in particular the Magna Carta, had protected specific rights. In response, Hamilton argued that the Constitution was inherently different:
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. Such was the Magna Charta, obtained by the Barons, swords in hand, from King John.[25]
Massachusetts compromise
In December 1787 and January 1788, five states—Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut—ratified the Constitution with relative ease, though the bitter minority report of the Pennsylvania opposition was widely circulated.[26] In contrast to its predecessors, the Massachusetts convention was angry and contentious, at one point erupting into a fistfight between Federalist delegate Francis Dana and Anti-Federalist Elbridge Gerry when the latter was not allowed to speak.[27] The impasse was resolved only when revolutionary heroes and leading Anti-Federalists Samuel Adams and John Hancock agreed to ratification on the condition that the convention also propose amendments.[28] The convention's proposed amendments included a requirement for grand jury indictment in capital cases, which would form part of the Fifth Amendment, and an amendment reserving powers to the states not expressly given to the federal government, which would later form the basis for the Tenth Amendment.[29]
Following Massachusetts' lead, the Federalist minorities in both Virginia and New York were able to obtain ratification in convention by linking ratification to recommended amendments.[30] A committee of the Virginia convention headed by law professor George Wythe forwarded forty recommended amendments to Congress, twenty of which enumerated individual rights and another twenty of which enumerated states' rights.[31] The latter amendments included limitations on federal powers to levy taxes and regulate trade.[32]
A minority of the Constitution's critics, such as Maryland's Luther Martin, continued to oppose ratification.[33] However, Martin's allies, such as New York's John Lansing, Jr., dropped moves to obstruct the Convention's process. They began to take exception to the Constitution 'as it was,' seeking amendments. Several conventions saw supporters for 'amendments before' shift to a position of 'amendments after' for the sake of staying in the Union. The New York Anti-Federalist 'circular letter' was sent to each state legislature proposing a second constitutional convention for 'amendments before', but it failed in the state legislatures. Ultimately, only North Carolina and Rhode Island waited for amendments from Congress before ratifying.[30]
Article Seven of the proposed Constitution set the terms by which the new frame of government would be established. The new Constitution would become operational when ratified by at least nine states. Only then would it replace the existing government under the Articles of Confederation and would apply only to those states that ratified it.
Following contentious battles in several states, the proposed Constitution reached that nine-state ratification plateau in June 1788. On September 13, 1788, the Articles of Confederation Congress certified that the new Constitution had been ratified by more than enough states for the new system to be implemented and directed the new government to meet in New York City on the first Wednesday in March the following year.[34] On March 4, 1789, the new frame of governmentcame into force with eleven of the thirteen states participating.
Proposal and ratification
Anticipating amendments
The 1st United States Congress, which met in New York City's Federal Hall, was a triumph for the Federalists. The Senate of eleven states contained 20 Federalists with only two Anti-Federalists, both from Virginia. The House included 48 Federalists to 11 Anti-Federalists, the latter of whom were from only four states: Massachusetts, New York, Virginia and South Carolina.[35]Among the Virginia delegation to the House was James Madison, Patrick Henry's chief opponent in the Virginia ratification battle. In retaliation for Madison's victory in that battle at Virginia's ratification convention, Henry and other Anti-Federalists, who controlled the Virginia House of Delegates, had gerrymandered a hostile district for Madison's planned congressional run and recruited Madison's future presidential successor, James Monroe, to oppose him.[36] Madison defeated Monroe after offering a campaign pledge that he would introduce constitutional amendments forming a bill of rights at the First Congress.[37]
Originally opposed to the inclusion of a bill of rights in the Constitution, Madison had gradually come to understand the importance of doing so during the often contentious ratification debates. By taking the initiative to propose amendments himself through the Congress, he hoped to preempt a second constitutional convention that might, it was feared, undo the difficult compromises of 1787, and open the entire Constitution to reconsideration, thus risking the dissolution of the new federal government. Writing to Jefferson, he stated, 'The friends of the Constitution, some from an approbation of particular amendments, others from a spirit of conciliation, are generally agreed that the System should be revised. But they wish the revisal to be carried no farther than to supply additional guards for liberty.'[38] He also felt that amendments guaranteeing personal liberties would 'give to the Government its due popularity and stability'.[39] Finally, he hoped that the amendments 'would acquire by degrees the character of fundamental maxims of free government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion'.[40] Historians continue to debate the degree to which Madison considered the amendments of the Bill of Rights necessary, and to what degree he considered them politically expedient; in the outline of his address, he wrote, 'Bill of Rights—useful—not essential—'.[41]
On the occasion of his April 30, 1789 inauguration as the nation's first president, George Washington addressed the subject of amending the Constitution. He urged the legislators,
whilst you carefully avoid every alteration which might endanger the benefits of an united and effective government, or which ought to await the future lessons of experience; a reverence for the characteristic rights of freemen, and a regard for public harmony, will sufficiently influence your deliberations on the question, how far the former can be impregnably fortified or the latter be safely and advantageously promoted.[42][43]
Madison's proposed amendments
James Madison introduced a series of Constitutional amendments in the House of Representatives for consideration. Among his proposals was one that would have added introductory language stressing natural rights to the preamble.[44] Another would apply parts of the Bill of Rights to the states as well as the federal government. Several sought to protect individual personal rights by limiting various Constitutional powers of Congress. Like Washington, Madison urged Congress to keep the revision to the Constitution 'a moderate one', limited to protecting individual rights.[44]
Madison was deeply read in the history of government and used a range of sources in composing the amendments. The English Magna Carta of 1215 inspired the right to petition and to trial by jury, for example, while the English Bill of Rights of 1689 provided an early precedent for the right to keep and bear arms (although this applied only to Protestants) and prohibited cruel and unusual punishment.[32]
The greatest influence on Madison's text, however, was existing state constitutions.[45][46] Many of his amendments, including his proposed new preamble, were based on the Virginia Declaration of Rights drafted by Anti-Federalist George Mason in 1776.[47] To reduce future opposition to ratification, Madison also looked for recommendations shared by many states.[46] He did provide one, however, that no state had requested: 'No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.'[48] He did not include an amendment that every state had asked for, one that would have made tax assessments voluntary instead of contributions.[49] Madison's proposed the following constitutional amendments:
First. That there be prefixed to the Constitution a declaration, that all power is originally vested in, and consequently derived from, the people.
That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.
That the people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.
Secondly. That in article 1st, section 2, clause 3, these words be struck out, to wit: 'The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative, and until such enumeration shall be made;' and in place thereof be inserted these words, to wit: 'After the first actual enumeration, there shall be one Representative for every thirty thousand, until the number amounts to—, after which the proportion shall be so regulated by Congress, that the number shall never be less than—, nor more than—, but each State shall, after the first enumeration, have at least two Representatives; and prior thereto.'
Thirdly. That in article 1st, section 6, clause 1, there be added to the end of the first sentence, these words, to wit: 'But no law varying the compensation last ascertained shall operate before the next ensuing election of Representatives.'
Fourthly. That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.
The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.
The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.
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.
No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.
No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same offence; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The rights of the people to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.
The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.
Fifthly. That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit: No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.
Sixthly. That, in article 3d, section 2, be annexed to the end of clause 2d, these words, to wit: But no appeal to such court shall be allowed where the value in controversy shall not amount to — dollars: nor shall any fact triable by jury, according to the course of common law, be otherwise re-examinable than may consist with the principles of common law.
Seventhly. That in article 3d, section 2, the third clause be struck out, and in its place be inserted the clauses following, to wit: The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service, in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other county of the same State, as near as may be to the seat of the offence.
In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.
Eighthly. That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit: The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise the powers vested in the Legislative or Executive Departments.
The powers not delegated by this Constitution, nor prohibited by it to the states, are reserved to the States respectively.
Ninthly. That article 7th, be numbered as article 8th.[50]
Crafting amendments
Federalist representatives were quick to attack Madison's proposal, fearing that any move to amend the new Constitution so soon after its implementation would create an appearance of instability in the government.[51] The House, unlike the Senate, was open to the public, and members such as Fisher Ames warned that a prolonged 'dissection of the constitution' before the galleries could shake public confidence.[52] A procedural battle followed, and after initially forwarding the amendments to a select committee for revision, the House agreed to take Madison's proposal up as a full body beginning on July 21, 1789.[53][54]
The eleven-member committee made some significant changes to Madison's nine proposed amendments, including eliminating most of his preamble and adding the phrase 'freedom of speech, and of the press'.[55] The House debated the amendments for eleven days. Roger Sherman of Connecticut persuaded the House to place the amendments at the Constitution's end so that the document would 'remain inviolate', rather than adding them throughout, as Madison had proposed.[56][57] The amendments, revised and condensed from twenty to seventeen, were approved and forwarded to the Senate on August 24, 1789.[58]
The Senate edited these amendments still further, making 26 changes of its own. Madison's proposal to apply parts of the Bill of Rights to the states as well as the federal government was eliminated, and the seventeen amendments were condensed to twelve, which were approved on September 9, 1789.[59] The Senate also eliminated the last of Madison's proposed changes to the preamble.[60]
On September 21, 1789, a House–Senate Conference Committee convened to resolve the numerous differences between the two Bill of Rights proposals. On September 24, 1789, the committee issued this report, which finalized 12 Constitutional Amendments for House and Senate to consider. This final version was approved by joint resolution of Congress on September 25, 1789, to be forwarded to the states on September 28.[61][62]
By the time the debates and legislative maneuvering that went into crafting the Bill of Rights amendments was done, many personal opinions had shifted. A number of Federalists came out in support, thus silencing the Anti-Federalists' most effective critique. Many Anti-Federalists, in contrast, were now opposed, realizing that Congressional approval of these amendments would greatly lessen the chances of a second constitutional convention.[63] Anti-Federalists such as Richard Henry Lee also argued that the Bill left the most objectionable portions of the Constitution, such as the federal judiciary and direct taxation, intact.[64]
Madison remained active in the progress of the amendments throughout the legislative process. Historian Gordon S. Wood writes that 'there is no question that it was Madison's personal prestige and his dogged persistence that saw the amendments through the Congress. There might have been a federal Constitution without Madison but certainly no Bill of Rights.'[65][66]
Approval of the Bill of Rights in Congress and the States[67] | |||
---|---|---|---|
Approved by the House August 24, 1789 | Approved by the Senate September 9, 1789 | Approved by Congress September 25, 1789 | Status |
First Article: After the first enumeration, required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor less than one Representative for every fifty thousand persons. | First Article: After the first enumeration, required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred; to which number one Representative shall be added for every subsequent increase of forty thousand, until the Representatives shall amount to two hundred, to which number one Representative shall be added for every subsequent increase of sixty thousand persons. | First Article: After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons. | Pending: Congressional Apportionment Amendment |
Second Article: No law varying the compensation to the members of Congress, shall take effect, until an election of Representatives shall have intervened. | Second Article: No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened. | Second Article: No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened. | Later ratified: May 5, 1992 Twenty-seventh Amendment |
Third Article: Congress shall make no law establishing religion or prohibiting the free exercise thereof, nor shall the rights of Conscience be infringed. | Third Article: Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition to the government for a redress of grievances. | Third Article: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. | Ratified: December 15, 1791 First Amendment |
Fourth Article: The Freedom of Speech, and of the Press, and the right of the People peaceably to assemble, and consult for their common good, and to apply to the Government for a redress of grievances, shall not be infringed. | (see Third Article above) | ||
Fifth Article: A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person. | Fourth Article: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. | Fourth Article: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. | Ratified: December 15, 1791 Second Amendment |
Sixth Article: No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. | Fifth Article: No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. | Fifth Article: No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. | Ratified: December 15, 1791 Third Amendment |
Seventh Article: The right of the People to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. | Sixth Article: The right of the People to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. | Sixth Article: The right of the People to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. | Ratified: December 15, 1791 Fourth Amendment |
Eighth Article: No person shall be subject, except in case of impeachment, to more than one trial, or one punishment for the same offense, nor shall be compelled in any criminal case, to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation. | Seventh Article: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case, to be a witnesses against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation. | Seventh Article: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. | Ratified: December 15, 1791 Fifth Amendment |
Ninth Article: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence. | Eighth Article: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence. | Eighth Article: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. | Ratified: December 15, 1791 Sixth Amendment |
Tenth Article: The trial of all crimes (except in cases of impeachment, and in cases arising in the land or naval forces, or in the militia when in actual service in time of War or public danger) shall be by an Impartial Jury of the Vicinage, with the requisite of unanimity for conviction, the right of challenge, and other accostomed [sic] requisites; and no person shall be held to answer for a capital, or otherways [sic] infamous crime, unless on a presentment or indictment by a Grand Jury; but if a crime be committed in a place in the possession of an enemy, or in which an insurrection may prevail, the indictment and trial may by law be authorised in some other place within the same State. | (see Seventh Article above) | ||
Eleventh Article: No appeal to the Supreme Court of the United States, shall be allowed, where the value in controversy shall not amount to one thousand dollars, nor shall any fact, triable by a Jury according to the course of the common law, be otherwise re-examinable, than according to the rules of common law. | Ninth Article: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by Jury shall be preserved, and no fact, tried by a Jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law. | Ninth Article: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by Jury shall be preserved, and no fact, tried by a Jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law. | Ratified: December 15, 1791 Seventh Amendment |
Twelfth Article: In suits at common law, the right of trial by Jury shall be preserved. | (see Ninth Article above) | ||
Thirteenth Article: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. | Tenth Article: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. | Tenth Article: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. | Ratified: December 15, 1791 Eighth Amendment |
Fourteenth Article: No State shall infringe the right of trial by Jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press. | |||
Fifteenth Article: The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people. | Eleventh Article: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. | Eleventh Article: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. | Ratified: December 15, 1791 Ninth Amendment |
Sixteenth Article: The powers delegated by the Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative shall never exercise the powers vested in the Executive or Judicial; nor the Executive the powers vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive. | |||
Seventeenth Article: The powers not delegated by the Constitution, nor prohibited by it, to the States, are reserved to the States respectively. | Twelfth Article: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. | Twelfth Article: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. | Ratified: December 15, 1791 Tenth Amendment |
Ratification process
The twelve articles of amendment approved by congress were officially submitted to the Legislatures of the several States for consideration on September 28, 1789. The following states ratified some or all of the amendments:[68][69][70]
- New Jersey: Articles One and Three through Twelve on November 20, 1789, and Article Two on May 7, 1992
- Maryland: Articles One through Twelve on December 19, 1789
- North Carolina: Articles One through Twelve on December 22, 1789
- South Carolina: Articles One through Twelve on January 19, 1790
- New Hampshire: Articles One and Three through Twelve on January 25, 1790, and Article Two on March 7, 1985
- Delaware: Articles Two through Twelve on January 28, 1790
- New York: Articles One and Three through Twelve on February 24, 1790
- Pennsylvania: Articles Three through Twelve on March 10, 1790, and Article One on September 21, 1791
- Rhode Island: Articles One and Three through Twelve on June 7, 1790, and Article Two on June 10, 1993
- Vermont: Articles One through Twelve on November 3, 1791
- Virginia: Article One on November 3, 1791, and Articles Two through Twelve on December 15, 1791[71]
(After failing to ratify the 12 amendments during the 1789 legislative session.)
Having been approved by the requisite three-fourths of the several states, there being 14 States in the Union at the time (as Vermont had been admitted into the Union on March 4, 1791),[64] the ratification of Articles Three through Twelve was completed and they became Amendments 1 through 10 of the Constitution. President Washington informed Congress of this on January 18, 1792.[72]
As they had not yet been approved by 11 of the 14 states, the ratification of Article One (ratified by 10) and Article Two (ratified by 6) remained incomplete. The ratification plateau they needed to reach soon rose to 12 of 15 states when Kentucky joined the Union (June 1, 1792). On June 27, 1792, the Kentucky General Assembly ratified all 12 amendments, however this action did not come to light until 1996.[73]
Article One came within one state of the number needed to become adopted into the Constitution on two occasions between 1789 and 1803. Despite coming close to ratification early on, it has never received the approval of enough states to become part of the Constitution.[65] As Congress did not attach a ratification time limit to the article, it is still technically pending before the states. Since no state has approved it since 1792, ratification by an additional 27 states would now be necessary for the article to be adopted.
Article Two, initially ratified by seven states through 1792 (including Kentucky), was not ratified by another state for eighty years. The Ohio General Assembly ratified it on May 6, 1873 in protest of an unpopular Congressional pay raise.[74] A century later, on March 6, 1978, the Wyoming Legislature also ratified the article.[75] Gregory Watson, a University of Texas at Austin undergraduate student, started a new push for the article's ratification with a letter-writing campaign to state legislatures.[74] As a result, by May 1992, enough states had approved Article Two (38 of the 50 states in the Union) for it to become the Twenty-seventh Amendment to the United States Constitution. The amendment's adoption was certified by Archivist of the United StatesDon W. Wilson and subsequently affirmed by a vote of Congress on May 20, 1992.[76]
Three states did not complete action on the twelve articles of amendment when they were initially put before the states. Georgia found a Bill of Rights unnecessary and so refused to ratify. Both chambers of the Massachusetts General Court ratified a number of the amendments (the Senate adopted 10 of 12 and the House 9 of 12), but failed to reconcile their two lists or to send official notice to the Secretary of State of the ones they did agree upon.[77][64] Both houses of the Connecticut General Assembly voted to ratify Articles Three through Twelve but failed to reconcile their bills after disagreeing over whether to ratify Articles One and Two.[78] All three later ratified the Constitutional amendments originally known as Articles Three through Twelve as part of the 1939 commemoration of the Bill of Rights' sesquicentennial: Massachusetts on March 2, Georgia on March 18, and Connecticut on April 19.[64] Connecticut and Georgia would also later ratify Article Two, on May 13, 1987 and February 2, 1988 respectively.
Application and text
The Bill of Rights had little judicial impact for the first 150 years of its existence; in the words of Gordon S. Wood, 'After ratification, most Americans promptly forgot about the first ten amendments to the Constitution.'[79][80] The Court made no important decisions protecting free speech rights, for example, until 1931.[81] Historian Richard Labunski attributes the Bill's long legal dormancy to three factors: first, it took time for a 'culture of tolerance' to develop that would support the Bill's provisions with judicial and popular will; second, the Supreme Court spent much of the 19th century focused on issues relating to intergovernmental balances of power; and third, the Bill initially only applied to the federal government, a restriction affirmed by Barron v. Baltimore (1833).[82][83][84] In the twentieth century, however, most of the Bill's provisions were applied to the states via the Fourteenth Amendment—a process known as incorporation—beginning with the freedom of speech clause, in Gitlow v. New York (1925).[85] In Talton v. Mayes (1896), the Court ruled that Constitutional protections, including the provisions of the Bill of Rights, do not apply to the actions of American Indian tribal governments.[86] Through the incorporation process the United States Supreme Court succeeded in extending to the States almost all of the protections in the Bill of Rights, as well as other, unenumerated rights.[87] The Bill of Rights thus imposes legal limits on the powers of governments and acts as an anti-majoritarian/minoritarian safeguard by providing deeply entrenched legal protection for various civil liberties and fundamental rights.[88][89][90] The Supreme Court for example concluded in the West Virginia State Board of Education v. Barnette (1943) case that the founders intended the Bill of Rights to put some rights out of reach from majorities, ensuring that some liberties would endure beyond political majorities.[88][89][90][91] As the Court noted, the idea of the Bill of Rights 'was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.'[91][92] This is why 'fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.'[91][92]
First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[93]
The First Amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances. Initially, the First Amendment applied only to laws enacted by Congress, and many of its provisions were interpreted more narrowly than they are today.[94]
In Everson v. Board of Education (1947), the Court drew on Thomas Jefferson's correspondence to call for 'a wall of separation between church and State', though the precise boundary of this separation remains in dispute.[94] Speech rights were expanded significantly in a series of 20th- and 21st-century court decisions that protected various forms of political speech, anonymous speech, campaign financing, pornography, and school speech; these rulings also defined a series of exceptions to First Amendment protections. The Supreme Court overturned English common law precedent to increase the burden of proof for libel suits, most notably in New York Times Co. v. Sullivan (1964).[95] Commercial speech is less protected by the First Amendment than political speech, and is therefore subject to greater regulation.[94]
The Free Press Clause protects publication of information and opinions, and applies to a wide variety of media. In Near v. Minnesota (1931)[96] and New York Times v. United States (1971),[97] the Supreme Court ruled that the First Amendment protected against prior restraint—pre-publication censorship—in almost all cases. The Petition Clause protects the right to petition all branches and agencies of government for action. In addition to the right of assembly guaranteed by this clause, the Court has also ruled that the amendment implicitly protects freedom of association.[94]
Second Amendment
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.[93]
The Second Amendment protects the individual right to keep and bear arms. The concept of such a right existed within English common law long before the enactment of the Bill of Rights.[98] First codified in the English Bill of Rights of 1689 (but there only applying to Protestants), this right was enshrined in fundamental laws of several American states during the Revolutionary era, including the 1776 Virginia Declaration of Rights and the Pennsylvania Constitution of 1776. Long a controversial issue in American political, legal, and social discourse, the Second Amendment has been at the heart of several Supreme Court decisions.
- In United States v. Cruikshank (1876), the Court ruled that '[t]he right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendment 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.'[99]
- In United States v. Miller (1939), the Court ruled that the amendment '[protects arms that had a] reasonable relationship to the preservation or efficiency of a well regulated militia'.[100]
- In District of Columbia v. Heller (2008), the Court ruled that the Second Amendment 'codified a pre-existing right' and that it 'protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home' but also stated that 'the right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose'.[101]
- In McDonald v. Chicago (2010),[102] the Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government.[103]
Third Amendment
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.[93]
The Third Amendment restricts the quartering of soldiers in private homes, in response to Quartering Acts passed by the British parliament during the Revolutionary War. The amendment is one of the least controversial of the Constitution, and, as of 2018, has never been the primary basis of a Supreme Court decision.[104][105][106]
Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[93]
The Fourth Amendment guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. It was adopted as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution. Search and seizure (including arrest) must be limited in scope according to specific information supplied to the issuing court, usually by a law enforcement officer who has sworn by it. The amendment is the basis for the exclusionary rule, which mandates that evidence obtained illegally cannot be introduced into a criminal trial.[107] The amendment's interpretation has varied over time; its protections expanded under left-leaning courts such as that headed by Earl Warren and contracted under right-leaning courts such as that of William Rehnquist.[108]
Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[93]
The Fifth Amendment protects against double jeopardy and self-incrimination and guarantees the rights to due process, grand jury screening of criminal indictments, and compensation for the seizure of private property under eminent domain. The amendment was the basis for the court's decision in Miranda v. Arizona (1966), which established that defendants must be informed of their rights to an attorney and against self-incrimination prior to interrogation by police.[109]
Free Printable Copy Of Us Constitution
Sixth Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.[93]
The Sixth Amendment establishes a number of rights of the defendant in a criminal trial:
- to a speedy and public trial
- to trial by an impartial jury
- to be informed of criminal charges
- to confront witnesses
- to compel witnesses to appear in court
- to assistance of counsel[110]
In Gideon v. Wainwright (1963), the Court ruled that the amendment guaranteed the right to legal representation in all felony prosecutions in both state and federal courts.[110]
Seventh Amendment
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.[93]
The Seventh Amendment guarantees jury trials in federal civil cases that deal with claims of more than twenty dollars. It also prohibits judges from overruling findings of fact by juries in federal civil trials. In Where to watch korean drama online free. Colgrove v. Battin (1973), the Court ruled that the amendment's requirements could be fulfilled by a jury with a minimum of six members. The Seventh is one of the few parts of the Bill of Rights not to be incorporated (applied to the states).[111]
Eighth Amendment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.[93]
The Eighth Amendment forbids the imposition of excessive bails or fines, though it leaves the term 'excessive' open to interpretation.[112] The most frequently litigated clause of the amendment is the last, which forbids cruel and unusual punishment.[113][114] This clause was only occasionally applied by the Supreme Court prior to the 1970s, generally in cases dealing with means of execution. In Furman v. Georgia (1972), some members of the Court found capital punishment itself in violation of the amendment, arguing that the clause could reflect 'evolving standards of decency' as public opinion changed; others found certain practices in capital trials to be unacceptably arbitrary, resulting in a majority decision that effectively halted executions in the United States for several years.[115] Executions resumed following Gregg v. Georgia (1976), which found capital punishment to be constitutional if the jury was directed by concrete sentencing guidelines.[115] The Court has also found that some poor prison conditions constitute cruel and unusual punishment, as in Estelle v. Gamble (1976) and Brown v. Plata (2011).[113]
Ninth Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.[93]
The Ninth Amendment declares that there are additional fundamental rights that exist outside the Constitution. The rights enumerated in the Constitution are not an explicit and exhaustive list of individual rights. It was rarely mentioned in Supreme Court decisions before the second half of the 20th century, when it was cited by several of the justices in Griswold v. Connecticut (1965). The Court in that case voided a statute prohibiting use of contraceptives as an infringement of the right of marital privacy.[116] This right was, in turn, the foundation upon which the Supreme Court built decisions in several landmark cases, including, Roe v. Wade (1973), which overturned a Texas law making it a crime to assist a woman to get an abortion, and Planned Parenthood v. Casey (1992), which invalidated a Pennsylvania law that required spousal awareness prior to obtaining an abortion.
Tenth Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.[93]
The Tenth Amendment reinforces the principles of separation of powers and federalism by providing that powers not granted to the federal government by the Constitution, nor prohibited to the states, are reserved to the states or the people. The amendment provides no new powers or rights to the states, but rather preserves their authority in all matters not specifically granted to the federal government.[117]
Congress has sometimes circumvented the Tenth Amendment by invoking the Commerce Clause in Article One[118] or by threatening to withhold funding for a federal program from noncooperative States, as in South Dakota v. Dole (1987).
Display and honoring of the Bill of Rights
George Washington had fourteen handwritten copies of the Bill of Rights made, one for Congress and one for each of the original thirteen states.[119] The copies for Georgia, Maryland, New York, and Pennsylvania went missing.[120] The New York copy is thought to have been destroyed in a fire.[121] Two unidentified copies of the missing four (thought to be the Georgia and Maryland copies) survive; one is in the National Archives, and the other is in the New York Public Library.[122][123] North Carolina's copy was stolen from the State Capitol by a Union soldier following the Civil War. In an FBI sting operation, it was recovered in 2003.[124][125] The copy retained by the First Congress has been on display (along with the Constitution and the Declaration of Independence) in the Rotunda for the Charters of Freedom room at the National Archives Building in Washington, D.C. since December 13, 1952.[126]
After fifty years on display, signs of deterioration in the casing were noted, while the documents themselves appeared to be well preserved.[127] Accordingly, the casing was updated and the Rotunda rededicated on September 17, 2003. In his dedicatory remarks, President George W. Bush stated, 'The true [American] revolution was not to defy one earthly power, but to declare principles that stand above every earthly power—the equality of each person before God, and the responsibility of government to secure the rights of all.'[128]
In 1941, President Franklin D. Roosevelt declared December 15 to be Bill of Rights Day, commemorating the 150th anniversary of the ratification of the Bill of Rights.[129] In 1991, the Virginia copy of the Bill of Rights toured the country in honor of its bicentennial, visiting the capitals of all fifty states.[130]
See also
References
- Notes
- Citations
- ^<!-History.com Editors; no by-line.-->. 'Bill of Rights'. history.com. A&E Television Networks. Retrieved February 24, 2019.
- ^England, Trent; Spalding, Matthew. 'Essays on Article V: Amendments'. The Heritage Foundation. Retrieved February 24, 2019.
- ^'Bill of Rights – Facts & Summary'. History.com. Retrieved December 8, 2015.
- ^ abcLloyd, Gordon. 'Introduction to the Constitutional Convention'. Teaching American History. Retrieved October 6, 2007.
- ^Stewart, p. 47.
- ^Beeman, p. 59.
- ^Beeman, p. 341.
- ^Madison Debates, September 12
- ^Judicial Politics: Readings from Judicature, Sherman apparently expressed the consensus of the convention. His argument was that the Constitution should not be interpreted to authorize the federal government to violate rights that the states could not violate.
- ^ abBeeman, p. 343.
- ^Rakove, p. 327.
- ^ abStewart, p. 226.
- ^Rakove, p. 288.
- ^Beeman, p. 363.
- ^'Federal Convention, Resolution and Letter to the Continental Congress'. The Founders' Constitution. The University of Chicago Press. p. 195. Retrieved March 6, 2014.
- ^Labunski, p. 20.
- ^Labunski, p. 63.
- ^'Jefferson's letter to Madison, March 15, 1789'. The Founders' Constitution. Retrieved March 9, 2006.
- ^Hamilton et al., p. 436
- ^Brutus, p. 376
- ^Brutus, p. 377
- ^Rakove, p. 325.
- ^Labunski, p. 62.
- ^Rakove, p. 323.
- ^'On opposition to a Bill of Rights'. The Founders' Constitution. University of Chicago Press. Retrieved February 28, 2006.
- ^Labunski, pp. 59–60.
- ^Beeman, p. 388.
- ^Beeman, pp. 389–90.
- ^Beeman, p. 390.
- ^ abMaier, p. 431.
- ^Labunksi, pp. 113–15
- ^ abBrookhiser, p. 80.
- ^Maier, p. 430.
- ^Maier, p. 429.
- ^Maier, p. 433.
- ^Brookhiser, p. 76.
- ^Labunski, pp. 159, 174.
- ^Labunski, p. 161.
- ^Labunski, p. 162.
- ^Brookhiser, p. 77.
- ^Labunski, p. 192.
- ^Labunski, p. 188.
- ^Gordon Lloyd. 'Anticipating the Bill of Rights in the First Congress'. TeachingAmericanHistory.org. Ashland, Ohio: The Ashbrook Center at Ashland University. Retrieved June 23, 2014.
- ^ abLabunski, p. 198.
- ^Labunski, p. 199.
- ^ abMadison introduced 'amendments culled mainly from state constitutions and state ratifying convention proposals, especially Virginia's.' Levy, p. 35
- ^Virginia Declaration of Rights. Library of Congress. Accessed July 12, 2013.
- ^Ellis, p. 210.
- ^Ellis, p. 212.
- ^Lloyd, Gordon Lloyd. 'Madison's Speech Proposing Amendments to the Constitution: June 8, 1789'. 50 Core Documents That Tell America's Story, teachingamericanhistory.org. Ashland, Ohio: Ashbrook Center at Ashland University. Retrieved August 9, 2018.
- ^Labunski, pp. 203–205.
- ^Labunski, p. 215.
- ^Labunski, p. 201.
- ^Brookhiser, p. 81.
- ^Labunski, p. 217.
- ^Labunski, pp. 218–220.
- ^Ellis, p. 207.
- ^Labunski, p. 235.
- ^Labunski, p. 237.
- ^Labunski, p. 221.
- ^Adamson, Barry (2008). Freedom of Religion, the First Amendment, and the Supreme Court: How the Court Flunked History. Pelican Publishing. p. 93. ISBN9781455604586 – via Google Books.
- ^Graham, John Remington (2009). Free, Sovereign, and Independent States: The Intended Meaning of the American Constitution. Foreword by Laura Tesh. Footnote 54, pp. 193–94. ISBN9781455604579 – via Google Books.
- ^Wood, p. 71.
- ^ abcdLevy, Leonard W. (1986). 'Bill of Rights (United States)'. Encyclopedia of the American Constitution. – via HighBeam Research(subscription required). Archived from the original on September 21, 2013. Retrieved July 16, 2013.
- ^ abWood, p. 69.
- ^Ellis, p. 206.
- ^Gordon Lloyd. 'The Four Stages of Approval of the Bill of Rights in Congress and the States'. TeachingAmericanHistory.org. Ashland, Ohio: The Ashbrook Center at Ashland University. Retrieved June 23, 2014.
- ^'The Constitution of the United States of America: Analysis and Interpretation, Centennial Edition, Interim Edition: Analysis of Cases Decided by the Supreme Court of the United States to June 26, 2013'(PDF). Washington, DC: U.S. Government Printing Office. 2013. p. 25. Retrieved April 13, 2014.
- ^James J. Kilpatrick, ed. (1961). The Constitution of the United States and Amendments Thereto. Virginia Commission on Constitutional Government. p. 64.
- ^Wonning, Paul R. (2012). A Short History of the United States Constitution: The Story of the Constitution the Bill of Rights and the Amendments. Mossy Feet Books. pp. 27–28. ISBN9781310451584 – via Google Books.
- ^'Ratifications of the Amendments to the Constitution of the United States | Teaching American History'. teachingamericanhistory.org. Retrieved September 10, 2016.
- ^'Founders Online: From George Washington to the United States Senate and House o ..' Retrieved March 12, 2018.
- ^Kyvig, pp. 464–467.
- ^ abDean, John W. (September 27, 2002). 'The Telling Tale of the Twenty-Seventh Amendment'. FindLaw. Retrieved June 23, 2014.
- ^Bernstein, Richard B. (1992). 'The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment'. Fordham Law Review. 61 (3): 537. Retrieved February 15, 2016.
- ^Bernstein, Richard B. (2000). 'Twenty-Seventh Amendment'. Encyclopedia of the American Constitution. – via HighBeam Research(subscription required). Archived from the original on September 19, 2013. Retrieved July 16, 2013.
- ^Kaminski, John P.; Saladino, Gaspare J.; Leffler, Richard; Schoenleber, Charles H.; Hogan, Margaret A. 'The Documentary History of the Ratification of the Constitution, Digital Edition'(PDF). Charlottesville: University of Virginia Press.
- ^Kyvig, p. 108.
- ^Wood, p. 72.
- ^'The Bill Of Rights: A Brief History'. ACLU. Retrieved April 21, 2015.
- ^Labunski, p. 258.
- ^Labunski, pp. 258–259.
- ^'Barron v. Mayor & City Council of Baltimore – 32 U.S. 243 (1833)'. Justia.com. Retrieved July 11, 2013.
- ^Levy, Leonard W. (January 1, 2000). 'BARRON v. CITY OF BALTIMORE 7 Peters 243 (1833)'. Encyclopedia of the American Constitution. – via HighBeam Research(subscription required). Archived from the original on March 29, 2015. Retrieved July 11, 2013.
- ^Labunski, p. 259.
- ^Deloria, Vine Jr. (2000). 'American Indians and the Constitution'. Encyclopedia of the American Constitution. – via HighBeam Research(subscription required). Archived from the original on September 19, 2013. Retrieved July 16, 2013.
- ^'Primary Documents in American History', Library of Congress
- ^ abJeffrey Jowell and Jonathan Cooper (2002). Understanding Human Rights Principles. Oxford and Portland, Oregon: Hart Publishing. p. 180. ISBN9781847313157. Retrieved March 16, 2017.
- ^ abLoveland, Ian (2002). 'Chapter 18 – Human Rights I: Traditional Perspectives'. Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction (Seventh ed.). London: Oxford University Press. p. 559. ISBN9780198709039. Retrieved March 16, 2017.
- ^ abJayawickrama, Nihal (2002). The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence. Cambridge: Cambridge University Press. p. 98. ISBN9780521780421. Retrieved March 16, 2017.
- ^ abcWest Virginia State Board of Education v. Barnette, 319 U.S. 624, Majority Opinion, item 3 (US 1943) ('The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.').
- ^ abObergefell v. Hodges, No. 14-556, slip op. at 24 (U.S. June 26, 2015).
- ^ abcdefghij'Bill of Rights Transcript'. Archives.gov. Retrieved May 15, 2010.
- ^ abcdCox, Archibald (1986). 'First Amendment'. Encyclopedia of the American Constitution. – via HighBeam Research(subscription required). Archived from the original on September 21, 2014. Retrieved July 16, 2013.
- ^New York Times Co. v. Sullivan, 376U.S.254 (1964)
- ^Near v. Minnesota, 283U.S.697 (1931)
- ^New York Times Co. v. United States, 403U.S.713 (1971)
- ^McAffee, Thomas B.; Michael J. Quinlan (March 1997). 'Bringing Forward The Right To Keep And Bear Arms: Do Text, History, Or Precedent Stand In The Way?'. North Carolina Law Review: 781.
- ^92U.S.542 (1875)
- ^307U.S.174 (1939)
- ^554U.S.570 (2008)
- ^561 U.S. 3025 (2010)
- ^Liptak, Adam (June 28, 2010). 'Justices Extend Firearm Rights in 5-to-4 Ruling'. The New York Times. Retrieved December 17, 2012.
- ^'The Third Amendment'. Revolutionary War and Beyond. September 7, 2012. Retrieved February 26, 2014.
- ^Mahoney, Dennis J. (1986). 'Third Amendment'. Encyclopedia of the American Constitution. – via HighBeam Research(subscription required). Archived from the original on November 6, 2013. Retrieved July 15, 2013.
- ^'Third Amendment'. U*X*L Encyclopedia of U.S. History. – via HighBeam Research(subscription required). January 1, 2009. Archived from the original on November 6, 2013. Retrieved July 15, 2013.
- ^'Exclusionary rule'. Encyclopædia Britannica. Retrieved July 15, 2013.
- ^'Fourth Amendment'. Encyclopædia Britannica. Retrieved July 15, 2013.
- ^'Fifth Amendment'. Gale Encyclopedia of Everyday Law. – via HighBeam Research(subscription required). January 1, 2006. Archived from the original on September 21, 2014. Retrieved July 15, 2013.
- ^ ab'The Sixth Amendment'. Constitutional Amendments: From Freedom of Speech to Flag Burning. – via HighBeam Research(subscription required). January 1, 2008. Archived from the original on September 21, 2013. Retrieved July 15, 2013.
- ^Mahoney, Dennis J. (1986). 'Seventh Amendment'. Encyclopedia of the American Constitution. – via HighBeam Research(subscription required). Archived from the original on November 5, 2013. Retrieved July 15, 2013.
- ^Bessler, p. 194.
- ^ abKrantz, Sheldon (1986). 'Cruel and Unusual Punishment'. Encyclopedia of the American Constitution. – via HighBeam Research(subscription required). Archived from the original on October 29, 2014. Retrieved July 16, 2013.
- ^'U*X*L Encyclopedia of U.S. History'. UXL Encyclopedia of American History. January 1, 2009. Archived from the original on September 21, 2014. Retrieved July 15, 2013.
- ^ abWeisberg, Robert (1986). 'Capital Punishment'. Encyclopedia of the American Constitution. – via HighBeam Research(subscription required). Archived from the original on September 21, 2014. Retrieved July 16, 2013.
- ^'The Constitution of the United States of America: Analysis and Interpretation, Centennial Edition, Interim Edition: Alalysis of Cases Decided by the Supreme Court of the United States to June 26, 2013'(PDF). Washington, DC: U.S. Government Printing Office. 2013. pp. 1738–39. Retrieved April 13, 2014.
- ^'Tenth Amendment'. Encyclopædia Britannica. Retrieved July 19, 2013.
- ^Epstein, Richard A. (2014). The Classical Liberal Constitution. Cambridge, Massachusetts: Harvard University Press. p. 13. ISBN978-0-674-72489-1.
- ^Frieden, Terry (March 19, 2003). 'FBI recovers original copy of Bill of Rights'. CNN. Retrieved April 25, 2008.
- ^'Bill of Rights FAQs'(PDF). constitutioncenter.org. National Constitution Center. Retrieved February 19, 2016.
- ^'Background on the Bill of Rights and the New York Ratification of the Bill of Rights'. U.S. National Archives and Records Administration. 2007. Retrieved July 28, 2008.
- ^'Primary Documents in American History: The Bill of Rights'. The Library of Congress.
- ^'History of the Bill of Rights' History of the Bill of Rights: Where are they today?
- ^'Treasures of Carolina: Stories from the State Archives Opens Oct. 24'. ncdcr.gov. North Carolina Department of Natural and Cultural Resources. Retrieved February 15, 2016.
- ^'The U.S. Marshals Service Takes Possession of North Carolina's Copy of the Bill of Rights'. U.S. Marshals Service. Retrieved July 28, 2008.
- ^Parkinson, Hilary (December 13, 2011). 'A homecoming for six pages of parchment'. The National Archives. Retrieved February 15, 2016.
- ^Mary Lynn Ritzenthaler and Catherine Nicholson,'A New Era Begins for the Charters of Freedom'. March 14, 2006. Archived from the original on January 2, 2008.Prologue, Fall 2003.
- ^For Know-It-Alls (2008). The United States Bill of Rights for Know-It-Alls. Filiquarian Publishing, LLC. p. 27. ISBN1599862255 – via Google Books.
- ^Grier, Peter (December 15, 2009). 'Bill of Rights Day: what Obama says about it'. Christian Science Monitor. Retrieved July 10, 2013.
- ^'Bill of Rights Tour Opens in Kansas City'. The Nevada Daily Mail. September 18, 1991. Retrieved July 11, 2013 – via Google Books.
- Bibliography
- Amar, Akhil Reed (1998). The Bill of Rights. Yale University Press.
- Beeman, Richard (2009). Plain, Honest Men: The Making of the American Constitution. Random House.
- Berkin, Carol (2015). The Bill of Rights: The Fight to Secure America's Liberties. Simon & Schuster.
- Bessler, John D. (2012). Cruel and Unusual: The American Death Penalty and the Founders' Eighth Amendment. University Press of New England.
- Brookhiser, Richard (2011). James Madison. Basic Books.
- Brutus (1787) 'To the Citizens of the State of New York'. In The Complete Anti-Federalist, Volume 1 (2008). Ed. Herbert J. Storing. University of Chicago Press.
- Ellis, Joseph J. (2015). The Quartet: Orchestrating the Second American Revolution. New York: Alfred A. Knopf. ISBN9780385353410 – via Google Books.
- Hamilton, Alexander, Madison, James, and Jay, John (2003) The Federalist: With Letters of Brutus. Ed. Terence Ball. Cambridge University Press.
- Kyvig, David E. (1996). Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995. Lawrence: University Press of Kansas. ISBN0-7006-0931-8 – via Google Books.
- Labunski, Richard E. (2006). James Madison and the struggle for the Bill of Rights. Oxford University Press.
- Levy, Leonard W. (1999). Origins of the Bill of Rights. Yale University Press.
- Maier, Pauline (2010). Ratification: The People Debate the Constitution, 1787–1788. Simon & Schuster.
- Rakove, Jack N. (1996). Original Meanings. Alfred A. Knopf.
- Stewart, David O. (2007). The Summer of 1787. Simon & Schuster.
- Wood, Gordon S. (2009). Empire of Liberty: A History of the Early Republic, 1789–1815. Oxford University Press.
Further reading
- Barnett, Randy (2008). 'The Encyclopedia of Libertarianism'. In Hamowy, Ronald (ed.). The Encyclopedia of Libertarianism. Thousand Oaks, CA: SAGE; Cato Institute. pp. 32–33. doi:10.4135/9781412965811.n20. ISBN978-1-4129-6580-4. LCCN2008009151. OCLC750831024 – via Google Books.
- Bodenhamer, David J.; James W. Ely (2008). The Bill of Rights in modern America. Indiana University Press. ISBN978-0-253-21991-6 – via Google Books.
- Bordewich, Fergus M. The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government (2016) on 1789–1791.
- Cogan, Neil H. (2015). The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins. Second edition. New York: Oxford University Press.
- Schwartz, Bernard (1992). The great rights of mankind: a history of the American Bill of Rights. Rowman & Littlefield. ISBN978-0-945612-28-5 – via Google Books.
- Smith, Rich (2007). The Bill of Rights: Defining Our Freedoms. ABDO. ISBN978-1-59928-913-7 – via Google Books.
- Stair, Nancy L. (2003). The Bill of Rights: a primary source investigation into the first ten amendments of the Constitution. The Rosen Publishing Group. p. 53. ISBN978-0-8239-3800-1.
External links
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- National Archives: The full text of the United States Bill of Rights
- Bill of Rights at the Encyclopædia Britannica
- Footnote.com (partners with the National Archives): Online viewer with High-resolution image of the original document
- Library of Congress: Bill of Rights and related resources
- Alexander Hamilton, Federalist, no. 84, 575–81, on opposition to the Bill of Rights
- TeachingAmericanHistory.org – Bill of Rights
- United States Bill of Rights at Project Gutenberg
- Bill of Rights public domain audiobook at LibriVox
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The Second Amendment (Amendment II) to the United States Constitution protects an individual right to keep and bear arms.[1] It was ratified on December 15, 1791 as part of the Bill of Rights.[2][3][4]
In District of Columbia v. Heller (2008), the Supreme Court affirmed for the first time that the right belongs to individuals, exclusively for self-defense in the home,[5][6][7][8] 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.'[9][10]State and local governments are limited to the same extent as the federal government from infringing this right.[11]
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.[12] Any labels of rights as auxiliary must be viewed in the context of the inherent purpose of a Bill of Rights, which is to empower a group with the ability to achieve a mutually desired outcome, and not to necessarily enumerate or rank the importance of rights. 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'.[13][14]
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.'[15] 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.'[16][17]
In the twenty-first century, the amendment has been subjected to renewed academic inquiry and judicial interest.[17] 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.[18][19] This was the first time the Court had ruled that the Second Amendment guarantees an individual's right to own a gun.[20][21][19] 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.[22] 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 1939 Supreme Court decision United States v. Miller spawned a debate as to whether the amendment protects a collective right or an individual right to own guns, with the vast majority of courts historically embracing the former.[23] The debate between various organizations regarding gun control and gun rights continues.[24]
- 2Pre-Constitution background
- 3State Constitutional Precursors to the Second Amendment
- 5Ratification debates
- 8Scholarly commentary
- 8.1Early commentary
- 9Supreme Court cases
- 9.6District of Columbia v. Heller
- 10United States Courts of Appeals decisions before and after Heller
- 15References
Text[edit]
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.[25][26][27][28][29][30][31][32] 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.[33][34]
One version was passed by the Congress, and a slightly different version was ratified.[a][35][36][37][38] 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 scribeWilliam Lambert, the amendment says:[39]
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The amendment was ratified by the States and authenticated by Secretary of State Thomas Jefferson as:[40]
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
Pre-Constitution background[edit]
Influence of the English Bill of Rights of 1689[edit]
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 [defense], 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.'[b]
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,[41] and had argued with Parliament over his desire to maintain a standing (or permanent) army.[c] 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.[42] 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.[43]
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.'[44] It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament.[45] 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:
Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome (list of grievances including) .. by causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law, (Recital regarding the change of monarch) .. thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors in like Case have usually done) for the Vindicating and Asserting their ancient Rights and Liberties, Declare (list of rights including) .. That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.[44]
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.[d][e]
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.[46]
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].'[47] 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.[48] 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.[49][50]
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.[51]
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.[52] 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.[53]
Experience in America prior to the U.S. Constitution[edit]
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):[f][g][55][56][57][58][59][60]
- enabling the people to organize a militia system;[61]
- participating in law enforcement;
- safeguarding against tyrannical government;[62]
- repelling invasion;[61]
- suppressing insurrection, allegedly including slave revolts,[63][64][65] though some scholars say these claims are factually incorrect;[66]
- facilitating a natural right of self-defense.[61]
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.'[67]
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.[68] King George III also began disarming individuals who were in the most rebellious areas in the 1760's and 70's.[69]
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.[70] 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.[70] Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars' interpretation of Blackstone.[71]
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:
Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such nature, and have been carried to such lengths, as must serve fully to evince that a late vote of this town, calling upon its inhabitants to provide themselves with arms for their defense, was a measure as prudent as it was legal: such violences are always to be apprehended from military troops, when quartered in the body of a populous city; but more especially so, when they are led to believe that they are become necessary to awe a spirit of rebellion, injuriously said to be existing therein. It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.[70]
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.'[72]
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 Hessianmercenaries. 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.[73] 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.[74] 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.[75][76]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.[77]
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.'[78] 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.[79]
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'.[80] 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,[81] as Alexander Hamilton explained in his Concerning the Militia essay published in 1788:
.. it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defence of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the Government to form an army of any magnitude, that army can never be formidable to the liberties of the People, while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights, and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.[81][82]
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.[83][84] 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').[85]
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.[86] 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,[h] or prohibiting citizens from arming themselves.[70] 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.[87][88]
State Constitutional Precursors to the Second Amendment[edit]
Related Articles & Sections within the first State Constitutions Adopted after May 10, 1776. Note: On May 10, 1776, Congress passed a resolution recommending that any colony with a government that was not inclined toward independence should form one that was.[89] |
Virginia, June 12, 1776[edit]Virginia's Constitution lists the reasons for dissolving its ties with the King in the formation of its own independent state government. Including the following:
*These same reasons would later be outlined within the Declaration of Independence. A Declaration of Rights. Section 13.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 under strict subordination to, and governed by, the civil power.[90] |
Pennsylvania, September 28, 1776[edit]Article 13.That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.[91] IMPORTANT NOTE: This is the first instance in relationship to U.S. Constitutional Law of the phrase 'right to bear arms.' It is of relevance that Pennsylvania was a Quaker Colony traditionally opposed to bearing arms. 'In settling Pennsylvania, William Penn had a great experiment in view, a 'holy experiment,' as he term[ed] it. This was no less than to test, on a scale of considerable magnitude, the practicability of founding and governing a State on the sure principles of the Christian religion; where the executive should be sustained without arms;where justice should be administered without oaths; and where real religion might flourish without the incubus of a hierarchical system.'[92] The Non-Quaker residents, many from the Western Counties, complained often and loudly of being denied the right to a common defense. By the time of the American Revolution, through what could be described as a revolution within a revolution, the pro-militia factions had gained ascendancy in the state's government. And by a manipulation through the use of oaths, disqualifying Quaker members, they made up a vast majority of the convention forming the new state constitution; it was only natural that they would assert their efforts to form a compulsory State Militia in the context of a 'right' to defend themselves and the state.[93] |
Maryland, November 11, 1776[edit]Articles XXV-XXVII.25. That a well-regulated militia is the proper and natural defence of a free government. 26. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature. 27. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.[94] |
North Carolina, December 18, 1776[edit]A Declaration of Rights. Article XVII.That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.[95] |
New York, April 20, 1777[edit]Article XL.And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth. And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.[96] |
Vermont, July 8, 1777[edit]Chapter 1. Section XVIII.That the people have a right to bear arms for the defence of the themselves and the State; and as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.[97] |
Massachusetts, June 15, 1780[edit]A Declaration of Rights. Chapter 1. Article XVII.The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.[98] |
Drafting and adoption of the Constitution[edit]
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:[102][103]
- interstate arbitration processes to handle quarrels between states;
- sufficiently trained and armed intrastate security forces to suppress insurrection;
- a national militia to repel foreign invaders.
It quickly became apparent that the solution to all three of these problems required shifting control of the states' militias to the federal Congress and giving that congress the power to raise a standing army.[104]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:[105]
- raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
- provide and maintain a navy;
- make rules for the government and regulation of the land and naval forces;
- provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
- provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.
Some representatives mistrusted proposals to enlarge federal powers, because they were concerned about the inherent risks of centralizing power. 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.[106] Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.[107][108]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.[109] 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.[110] James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June 8, 1789, and was adopted on December 15, 1791.
Ratification debates[edit]
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.[111]
The Second Amendment was relatively uncontroversial at the time of its ratification.[112]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,[113] though Whitehill's language was never debated.[114]
Argument for state power[edit]
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:
- No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the united States in congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the united States, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.[115][116]
In contrast, Article I, Section 8, Clause 16 of the U.S. Constitution states:
- To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.[117]
Government tyranny[edit]
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?'[118] Noah Webster similarly argued:
- Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.[13][119]
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.[13][120]
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.[121]
Patrick Henry argued in the Virginia ratification convention on June 5, 1788, for the dual rights to arms and resistance to oppression:
- Henry, Patrick (1788). Speech on the Federal Constitution. Virginia Ratifying Convention.
Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.
</ref>
Preserving slave patrols[edit]
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.[122] Also, Patrick Henry argued against the ratification of both the Constitution and the Second Amendment.[66] 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.[66]
Conflict and compromise in Congress produce the Bill of Rights[edit]
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:
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.[123]
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,[124] 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.[125] On August 17, that version was read into the Journal:
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.[126]
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:
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.
The next day, August 25, the Senate received the amendment from the House and entered it into the Senate Journal. However, the Senate scribe added a comma before 'shall not be infringed' and changed the semicolon separating that phrase from the religious exemption portion to a comma:
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.[127]
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.'[128] 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:
A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.[129]
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' .[130] 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:
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
The 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:
A well regulated militia, being necessary to the security of a free State, the right of the People to keep and bear arms, shall not be infringed.[131]
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.[132]
Militia in the decades following ratification[edit]
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.[68] 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.[68] 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.[68]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:
[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia .. [and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.[133]
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.'[133] 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.[134] 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.[135] None is mentioned in the legislation.[133]
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.[136] 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.[68] Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.[68] 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.[68] 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.[137] 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.[135]
Scholarly commentary[edit]
Early commentary[edit]
Richard Henry Lee[edit]
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':
A militia, when properly formed, are in fact the people themselves, and render regular troops in a great measure unnecessary.
George Mason[edit]
In June of 1788, George Mason addressed the Virginia Ratifying Convention regarding a 'militia:'
A worthy member has asked, who are the militia, if they be not the people, of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c. by our representation? I ask who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government all ranks of people are subject to militia duty.
Tench Coxe[edit]
In 1792, Tench Coxe made the following point in a commentary on the Second Amendment:[138]
As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.[139][140]
Tucker/Blackstone[edit]
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.[141][142] Tucker wrote:
A well regulated militia being necessary to the security of a free state, the right of the people to keep, and bear arms, shall not be infringed. Amendments to C. U. S. Art. 4. 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. In England, the people have been disarmed, generally, under the specious pretext of preserving the game : a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.[143]
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.'[141] 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.[i]
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.'[141]
William Rawle[edit]
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[.]'[144] 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:
No clause could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[145]
Speaking of the Second Amendment generally, Rawle said:[j]
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 under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[j][146]
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.'[144]
Joseph Story[edit]
Joseph Story articulated in his influential Commentaries on the Constitution[147] the orthodox view of the Second Amendment, which he viewed as the amendment's clear meaning:
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 usurpations and arbitrary power of rulers; and it will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well-regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our National Bill of Rights.[k][148]
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.[148]
Lysander Spooner[edit]
AbolitionistLysander 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.[149] 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.[150] 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.[151]
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.[152]
Timothy Farrar[edit]
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.':[140][l]
The States are recognized as governments, and, when their own constitutions permit, may do as they please; provided they do not interfere with the Constitution and laws of the United States, or with the civil or natural rights of the people recognized thereby, and held in conformity to them. The right of every person to 'life, liberty, and property,' to 'keep and bear arms,' to the 'writ of habeas corpus' to 'trial by jury,' and divers others, are recognized by, and held under, the Constitution of the United States, and cannot be infringed by individuals or even by the government itself.
Judge Thomas Cooley[edit]
Judge Thomas M. Cooley, perhaps the most widely read constitutional scholar of the nineteenth century, wrote extensively about this amendment,[153][154] and he explained in 1880 how the Second Amendment protected the 'right of the people':
It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose 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 purpose. But this enables the government to have a well-regulated militia; 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.[155]
Late 20th century commentary[edit]
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.[156] 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.[157]
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'.[140] 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.[158] Prior to 2001, every circuit court decision that interpreted the Second Amendment endorsed the 'collective right' model.[159][160] 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.[161][162]
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.[163][164] Some scholars have argued that the 'sophisticated collective rights model' is, in fact, the functional equivalent of the 'collective rights model.'[165] Other commentators have observed that prior to Emerson, five circuit courts specifically endorsed the 'sophisticated collective right model'.[166]
The third, known as the 'standard model', held that the Second Amendment recognized the personal right of individuals to keep and bear arms.[140] 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'.[167] 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'.[168]
Under both of the collective right models, the opening phrase was considered essential as a pre-condition for the main clause.[169] These interpretations held that this was a grammar structure that was common during that era[170] and that this grammar dictated that the Second Amendment protected a collective right to firearms to the extent necessary for militia duty.[171] 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.[49] This interpretation is consistent with the position that the Second Amendment protects a modified individual right.[172]
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.[173] 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.[174]
Warren E. Burger, a conservative Republican appointed Chief Justice of the United States by President Richard Nixon, wrote in 1990 following his retirement:
'The Constitution of the United States, in its Second Amendment, guarantees a 'right of the people to keep and bear arms.' However, the meaning of this clause cannot be understood except by looking to the purpose, the setting and the objectives of the draftsmen .. People of that day were apprehensive about the new 'monster' national government presented to them, and this helps explain the language and purpose of the Second Amendment .. We see that the need for a state militia was the predicate of the 'right' guaranteed; in short, it was declared 'necessary' in order to have a state military force to protect the security of the state.'[175]
And in 1991 Burger stated:
'If I were writing the Bill of Rights now, there wouldn't be any such thing as the Second Amendment .. that a well regulated militia being necessary for the defense of the state, the peoples' rights to bear arms. This has been the subject of one of the greatest pieces of fraud — I repeat the word 'fraud' — on the American public by special interest groups that I have ever seen in my lifetime.'[176]
In a 1992 opinion piece, six former American attorneys general wrote:
'For more than 200 years, the federal courts have unanimously determined that the Second Amendment concerns only the arming of the people in service to an organized state militia; it does not guarantee immediate access to guns for private purposes. The nation can no longer afford to let the gun lobby's distortion of the Constitution cripple every reasonable attempt to implement an effective national policy toward guns and crime.'[177]
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 organizedand regulated militia.' Only beginning in 1960 did law journal articles begin to advocate an 'individualist' view of gun ownership rights.[178][179]
Meaning of 'well regulated militia'[edit]
The term 'regulated' means 'disciplined' or 'trained.'[180] 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.'[181]
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:
If a well regulated militia be the most natural defence of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security .. confiding the regulation of the militia to the direction of the national authority .. [but] reserving to the states .. the authority of training the militia .. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss .. Little more can reasonably be aimed at, with respect to the People at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.[82]
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':
Nor is the right involved in this discussion less comprehensive or valuable: 'The right of the people to bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta [sic]! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans, plead eloquently for this interpretation! And the acquisition of Texas may be considered the full fruits of this great constitutional right.[182]
Justice Stevens in dissent:
When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms. Even if the meaning of the text were genuinely susceptible to more than one interpretation, the burden would remain on those advocating a departure from the purpose identified in the preamble and from settled law to come forward with persuasive new arguments or evidence. The textual analysis offered by respondent and embraced by the Court falls far short of sustaining that heavy burden. And the Court's emphatic reliance on the claim 'that the Second Amendment .. codified a pre-existing right,' ante, at 19 [refers to p. 19 of the opinion], is of course beside the point because the right to keep and bear arms for service in a state militia was also a pre-existing right.[183]
Meaning of 'the right of the People'[edit]
Justice Antonin Scalia, writing for the majority in Heller, stated:
Nowhere else in the Constitution does a 'right' attributed to 'the people' refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention 'the people,' the term unambiguously refers to all members of the political community, not an unspecified subset. This contrasts markedly with the phrase 'the militia' in the prefatory clause. As we will describe below, the 'militia' in colonial America consisted of a subset of 'the people' – those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to 'keep and bear Arms' in an organized militia therefore fits poorly with the operative clause's description of the holder of that right as 'the people.'[184]
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:[185]
The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people'.. 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.
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.'[186][187]
Meaning of 'keep and bear arms'[edit]
In Heller the majority rejected the view that the term 'to bear arms' implies only the military use of arms:
Before addressing the verbs 'keep' and 'bear,' we interpret their object: 'Arms.' The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. Thus, the most natural reading of 'keep Arms' in the Second Amendment is to 'have weapons.' At the time of the founding, as now, to 'bear' meant to 'carry.' In numerous instances, 'bear arms' was unambiguously used to refer to the carrying of weapons outside of an organized militia. Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens 'bear arms in defense of themselves and the state' again, in the most analogous linguistic context – that 'bear arms' was not limited to the carrying of arms in a militia. The phrase 'bear Arms' also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: 'to serve as a soldier, do military service, fight' or 'to wage war.' But it unequivocally bore that idiomatic meaning only when followed by the preposition 'against.' Every example given by petitioners' amici for the idiomatic meaning of 'bear arms' from the founding period either includes the preposition 'against' or is not clearly idiomatic. In any event, the meaning of 'bear arms' that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby 'bear arms' connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. Worse still, the phrase 'keep and bear Arms' would be incoherent. The word 'Arms' would have two different meanings at once: 'weapons' (as the object of 'keep') and (as the object of 'bear') one-half of an idiom. It would be rather like saying 'He filled and kicked the bucket' to mean 'He filled the bucket and died.'[184]
In a dissent, joined by Justices Souter, Ginsburg, and Breyer, Justice Stevens said:
The Amendment's text does justify a different limitation: the 'right to keep and bear arms' protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase 'bear arms' to encompass civilian possession and use, they could have done so by the addition of phrases such as 'for the defense of themselves.'[188]
A May 2018 analysis by Dennis Baron contradicted the majority opinion:
A search of Brigham Young University's new online Corpus of Founding Era American English, with more than 95,000 texts and 138 million words, yields 281 instances of the phrase 'bear arms.' BYU's Corpus of Early Modern English, with 40,000 texts and close to 1.3 billion words, shows 1,572 instances of the phrase. Subtracting about 350 duplicate matches, that leaves about 1,500 separate occurrences of 'bear arms' in the 17th and 18th centuries, and only a handful don't refer to war, soldiering or organized, armed action. These databases confirm that the natural meaning of 'bear arms' in the framers' day was military.[189]
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. [190]
Supreme Court cases[edit]
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.[191] 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 (1820), where the U.S. Supreme Court mentioned the Second Amendment in an aside.[m] 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.'[192]
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:
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.[193]
Of the collective rights model that holds that the right to arms is based on militia membership, the Supreme Court in Heller said:
A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If 'bear arms' means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage ('for the purpose of self-defense' or 'to make war against the King'). But if 'bear arms' means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add 'for the purpose of killing game.' The right 'to carry arms in the militia for the purpose of killing game' is worthy of the mad hatter.[194]
United States v. Cruikshank[edit]
In the Reconstruction Era case of United States v. Cruikshank, 92 U.S./542 / 542 (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.'[195]
The Court stated that '[t]he Second Amendment .. has no other effect than to restrict the powers of the national government ...'[196] Likewise, the Court held that there was no state action in this case, and therefore the Fourteenth Amendment was not applicable:
The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another.[197]
Thus, the Court held a federal anti-Ku-Klux-Klan statute to be unconstitutional as applied in that case.[198]
Presser v. Illinois[edit]
In Presser v. Illinois, 116 U.S./252 / 252 (1886), Herman Presser headed a German-American paramilitary shooting organization and was arrested for leading a parade group of 400 men, training and drilling with military weapons with the declared intention to fight, through the streets of Chicago as a violation of Illinois law that prohibited public drilling and parading in military style without a permit from the governor.[68][199]
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.[68] 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.'[200]
Miller v. Texas[edit]
In Miller v. Texas, 153 U.S./535 / 535 (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:[68] 'As the proceedings were conducted under the ordinary forms of criminal prosecutions there certainly was no denial of due process of law.'[201]
Robertson v. Baldwin[edit]
In Robertson v. Baldwin, 165 U.S./275 / 275 (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:
The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the 'Bill of Rights,' were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons.[202]
United States v. Miller[edit]
In United States v. Miller, 307 U.S./174 / 174 (1939), the Supreme Court rejected a Second Amendment challenge to the National Firearms Act prohibiting the interstate transportation of unregistered Title II weapons:
Jack Miller and Frank Layton 'did unlawfully .. transport in interstate commerce from .. Claremore .. Oklahoma to .. Siloam Springs .. Arkansas a certain firearm .. a double barrel .. shotgun having a barrel less than 18 inches in length .. at the time of so transporting said firearm in interstate commerce .. not having registered said firearm as required by Section 1132d of Title 26, United States Code .. and not having in their possession a stamp-affixed written order .. as provided by Section 1132C ..'[203]
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.'[204] As the Court explained:
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to any preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.[205]
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.'[206] 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.'[207] 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.'[208]
District of Columbia v. Heller[edit]
Judgment[edit]
According to the syllabus prepared by the U.S. Supreme Court Reporter of Decisions,[209] in District of Columbia v. Heller, 554 U.S./570 / 570 (2008), the Supreme Court held:[209][210]
- 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. pp. 2–53.[209][210]
- (a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms. pp. 2–22.[209][210]
- (b) The prefatory clause comports with the Court's interpretation of the operative clause. The 'militia' comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved. pp. 22–28.[209][210]
- (c) The Court's interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. pp. 28–30.[209][210]
- (d) The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. pp. 30–32.[209][210]
- (e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court's conclusion. pp. 32–47.[209][210]
- (f) None of the Court's precedents forecloses the Court's interpretation. Neither United States v. Cruikshank, 92 U.S. 542, nor Presser v. Illinois, 116 U.S. 252, refutes the individual-rights interpretation. United States v. Miller, 307 U.S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. pp. 47–54.[209][210]
- 2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller's holding that the sorts of weapons protected are those 'in common use at the time' finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. pp. 54–56.[209][210]
- 3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District's total ban on handgun possession in the home amounts to a prohibition on an entire class of 'arms' that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition – in the place where the importance of the lawful defense of self, family, and property is most acute – would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. pp. 56–64.[210]
There are similar legal summaries of the Supreme Court's findings in Heller.[211][212][213][214][215][216] For example, the Illinois Supreme Court in People v. Aguilar (2013), summed up Heller's findings and reasoning:
In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court undertook its first-ever 'in-depth examination' of the second amendment's meaning Id. at 635. After a lengthy historical discussion, the Court ultimately concluded that the second amendment 'guarantee[s] the individual right to possess and carry weapons in case of confrontation' (id. at 592); that 'central to' this right is 'the inherent right of self-defense' (id. at 628); that 'the home' is 'where the need for defense of self, family, and property is most acute' (id. at 628); and that, 'above all other interests,' the second amendment elevates 'the right of law-abiding, responsible citizens to use arms in defense of hearth and home' (id. at 635). Based on this understanding, the Court held that a District of Columbia law banning handgun possession in the home violated the second amendment. Id. at 635.[217]
Notes and analysis[edit]
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.[218][219][220][221][222] To clarify that its ruling does not invalidate a broad range of existing firearm laws, the majority opinion, written by Justice Antonin Scalia, said:[223]
Like most rights, the right secured by the Second Amendment is not unlimited .. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[224]
The Court's statement that the right is limited has been widely discussed by lower courts and the media.[225][226][227][228] 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' . .. '[229]
Justice Stevens' dissenting opinion, which was joined by the three other dissenters, said:
The question presented by this case is not whether the Second Amendment protects a 'collective right' or an 'individual right.' Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.[230]
Stevens went on to say the following:
The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature's authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.[231]
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.[231]
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'.[232]
Regarding the term 'well regulated', the majority opinion said, 'The adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training.'[181] 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.[233] The majority opinion also stated that:
A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If 'bear arms' means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage ('for the purpose of self-defense' or 'to make war against the King'). But if 'bear arms' means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add 'for the purpose of killing game.' The right 'to carry arms in the militia for the purpose of killing game' is worthy of the mad hatter.[234]
The dissenting justices were not persuaded by this argument.[235]
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.[210] 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).[210]
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.
Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition – in the place where the importance of the lawful defense of self, family, and property is most acute – would fail constitutional muster. .. Because Heller conceded at oral argument that the District's licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumed that a license will satisfy his prayer for relief and did not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.'[210]
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:
When we no longer need people to keep muskets in their home, then the Second Amendment has no function .. If the Court had properly interpreted the Second Amendment, the Court would have said that amendment was very important when the nation was new; it gave a qualified right to keep and bear arms, but it was for one purpose only – and that was the purpose of having militiamen who were able to fight to preserve the nation.[236]
McDonald v. City of Chicago[edit]
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.'[237] 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.[22] 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.[238]
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.[239] After McDonald, many questions about the Second Amendment remain unsettled, such as whether non-citizens are protected through the Equal Protection Clause.[239]
In People v. Aguilar (2013), the Illinois Supreme Court summed up the central Second Amendment findings in McDonald:
Two years later, in McDonald v. City of Chicago, 561 U.S. 742, ___, 130 S. Ct. 3020, 3050 (2010), the Supreme Court held that the second amendment right recognized in Heller is applicable to the states through the due process clause of the fourteenth amendment. In so holding, the Court reiterated that 'the Second Amendment protects the right to keep and bear arms for the purpose of self-defense' (id. at ___, 130 S. Ct. at 3026); that 'individual self-defense is 'the central component' of the Second Amendment right' (emphasis in original) (id. at ___, 130 S. Ct. at 3036 (quoting Heller, 554 U.S. at 599)); and that '[s]elf-defense is a basic right, recognized by many legal systems from ancient times to the present day' (id. at ___, 130 S. Ct. at 3036).[217]
Caetano v. Massachusetts[edit]
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.[240] 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'.
New York State Rifle & Pistol Association Inc. v. City of New York, New York[edit]
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.[241]
United States Courts of Appeals decisions before and after Heller[edit]
Before Heller[edit]
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].'[242]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,[243] with 'courts increasingly referring to one another's holdings .. without engaging in any appreciably substantive legal analysis of the issue'.[242]
Emerson changed this by addressing the question in depth, with the Fifth Circuit determining that the Second Amendment protects an individual right.[242] Subsequently, the Ninth Circuit conflicted with Emerson in Silveira v. Lockyer, and the D.C. Circuit supported Emerson in Parker v. District of Columbia.[242]Parker evolved into District of Columbia v. Heller, in which the U.S. Supreme Court determined that the Second Amendment protects an individual right.
After Heller[edit]
Since Heller, the United States courts of appeals have ruled on many Second Amendment challenges to convictions and gun control laws.[244][245] The following are post-Heller cases, divided by Circuit, along with summary notes:
D.C. Circuit
- Heller v. District of Columbia, Civil Action No. 08-1289 (RMU), No. 23., 25 – On March 26, 2010, the D.C. Circuit denied the follow up appeal of Dick Heller who requested the court to overturn the new District of Columbia gun control ordinances newly enacted after the 2008 Heller ruling. The court refused to do so, stating that the firearms registration procedures, the prohibition on assault weapons, and the prohibition on large capacity ammunition feeding devices were found to not violate the Second Amendment.[246] On September 18, 2015, the D.C. Circuit ruled that requiring gun owners to re-register a gun every three years, make a gun available for inspection or pass a test about firearms laws violated the Second Amendment, although the court upheld requirements that gun owners be fingerprinted, photographed, and complete a safety training course.[247]
- Wrenn v. District of Columbia, No. 16-7025 – On July 25, 2017, the D.C. Circuit ruled that a District of Columbia regulation that limited conceal-carry licenses only to those individuals who could demonstrate, to the satisfaction of the chief of police, that they have a 'good reason' to carry a handgun in public was essentially designed to prevent the exercise of the right to bear arms by most District residents and so violated the Second Amendment by amounting to a complete prohibition on firearms possession.[248]
First Circuit
- United States v. Rene E., 583 F.3 d 8 (1st Cir. 2009 ) – On August 31, 2009, the First Circuit affirmed the conviction of a juvenile for the illegal possession of a handgun as a juvenile, under 18 U.S.C.§ 922(x)(2)(A) and 18 U.S.C.§ 5032, rejecting the defendant's argument that the federal law violated his Second Amendment rights under Heller. The court cited 'the existence of a longstanding tradition of prohibiting juveniles from both receiving and possessing handguns' and observed 'the federal ban on juvenile possession of handguns is part of a longstanding practice of prohibiting certain classes of individuals from possessing firearms – those whose possession poses a particular danger to the public.'[249]
Second Circuit
- Kachalsky v. County of Westchester, 11-3942 – On November 28, 2012, the Second Circuit upheld New York's may-issueconcealed carry permit law, ruling that 'the proper cause requirement is substantially related to New York's compelling interests in public safety and crime prevention.'[250]
Fourth Circuit
- United States v. Hall, 551 F.3 d 257 (4th Cir. 2009 ) – On August 4, 2008, the Fourth Circuit upheld as constitutional the prohibition of possession of a concealed weapon without a permit.[251]
- United States v. Chester, 628 F.3d 673 (4th Cir. 2010) – On December 30, 2010, the Fourth Circuit vacated William Chester's conviction for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C.§ 922(g)(9).[252] The court found that the district court erred in perfunctorily relying on Heller's exception for 'presumptively lawful' gun regulations made in accordance with 'longstanding prohibitions'.[253]
- Kolbe v. Hogan, No. 14-1945 (4th Cir. 2016) – On February 4, 2016, the Fourth Circuit vacated a U.S. District Court decision upholding a Maryland law banning high-capacity magazines and semi-automatic rifles, ruling that the District Court was wrong to have applied intermediate scrutiny. The Fourth Circuit ruled that the higher strict scrutiny standard is to be applied on remand.[254] On March 4, 2016, the court agreed to rehear the case en banc on May 11, 2016.[255]
Fifth Circuit
- United States v. Dorosan, 350 Fed. Appx. 874 (5th Cir. 2009) – On June 30, 2008, the Fifth Circuit upheld 39 C.F.R.232.1(l), which bans weapons on postal property, sustaining restrictions on guns outside the home, specifically in private vehicles parked in employee parking lots of government facilities, despite Second Amendment claims that were dismissed. The employee's Second Amendment rights were not infringed since the employee could have instead parked across the street in a public parking lot, instead of on government property.[256][257]
- United States v. Bledsoe, 334 Fed. Appx. 771 (5th Cir. 2009) – The Fifth Circuit affirmed the decision of a U.S. District Court decision in Texas, upholding 18 U.S.C.§ 922(a)(6), which prohibits 'straw purchases.' A 'straw purchase' occurs when someone eligible to purchase a firearm buys one for an ineligible person. Additionally, the court rejected the request for a strict scrutiny standard of review.[251]
- United States v. Scroggins, 551 F.3 d 257 (5th Cir. 2010 ) – On March 4, 2010, the Fifth Circuit affirmed the conviction of Ernie Scroggins for possession of a firearm as a convicted felon, in violation of 18 U.S.C.§ 922(g)(1). The court noted that it had, prior to Heller, identified the Second Amendment as providing an individual right to bear arms, and had already, likewise, determined that restrictions on felon ownership of firearms did not violate this right. Moreover, it observed that Heller did not affect the longstanding prohibition of firearm possession by felons.
Sixth Circuit
- Tyler v. Hillsdale Co. Sheriff's Dept., 775 F.3 d 308 (6th Cir. 2014 ) – On December 18, 2014, the Sixth Circuit ruled that strict scrutiny should be applied to firearms regulations when regulations burden 'conduct that falls within the scope of the Second Amendment right, as historically understood.'[258] At issue in this case was whether the Second Amendment is violated by a provision of the Gun Control Act of 1968 that prohibits possession of a firearm by a person who has been involuntarily committed to a psychiatric hospital. The court did not rule on the provision's constitutionality, instead remanding the case to the United States district court that has earlier heard this case.[259] On April 21, 2015, the Sixth Circuit voted to rehear the case en banc, thereby vacating the December 18 opinion.[260]
Seventh Circuit
- United States v. Skoien, 587 F.3 d 803 (7th Cir. 2009 ) – Steven Skoien, a Wisconsin man convicted of two misdemeanor domestic violence convictions, appealed his conviction based on the argument that the prohibition violated the individual rights to bear arms, as described in Heller. After initial favorable rulings in lower court based on a standard of intermediate scrutiny,[261] on July 13, 2010, the Seventh Circuit, sitting en banc, ruled 10–1 against Skoien and reinstated his conviction for a gun violation, citing the strong relation between the law in question and the government objective.[261] Skoien was convicted and sentenced to two years in prison for the gun violation, and will thus likely be subject to a lifetime ban on gun ownership.[262][263] Editorials favoring gun rights sharply criticized this ruling as going too far with the enactment of a lifetime gun ban,[264] while editorials favoring gun regulations praised the ruling as 'a bucket of cold water thrown on the 'gun rights' celebration'.[265]
- Moore v. Madigan (Circuit docket 12-1269)[266] – On December 11, 2012, the Seventh Circuit ruled that the Second Amendment protected a right to keep and bear arms in public for self-defense. This was an expansion of the Supreme Court's decisions in Heller and McDonald, each of which referred only to such a right in the home. Based on this ruling, the court declared Illinois's ban on the concealed carrying of firearms to be unconstitutional. The court stayed this ruling for 180 days, so Illinois could enact replacement legislation.[267][268][269] On February 22, 2013, a petition for rehearing en banc was denied by a vote of 5–4.[270] On July 9, 2013, the Illinois General Assembly, overriding Governor Quinn's veto, passed a law permitting the concealed carrying of firearms.[271]
Ninth Circuit
- Nordyke v. King, 2012 WL 1959239 (9th Cir. 2012) – On July 29, 2009, the Ninth Circuit vacated an April 20 panel decision and reheard the case en banc on September 24, 2009.[272][273][274][275] The April 20 decision had held that the Second Amendment applies to state and local governments, while upholding an Alameda County, California ordinance that makes it a crime to bring a gun or ammunition on to, or possess either while on, county property.[276][277] The en banc panel remanded the case to the three-judge panel. On May 2, 2011, that panel ruled that intermediate scrutiny was the correct standard by which to judge the ordinance's constitutionality and remanded the case to the United States District Court for the Northern District of California.[278] On November 28, 2011, the Ninth Circuit vacated the panel's May 2 decision and agreed to rehear the case en banc.[279][280] On April 4, 2012, the panel sent the case to mediation.[281] The panel dismissed the case on June 1, 2012, but only after Alameda County officials changed their interpretation of the challenged ordinance. Under the new interpretation, gun shows may take place on county property under the ordinance's exception for 'events', subject to restrictions regarding the display and handling of firearms.[282]
- Teixeira v. County of Alameda, (Circuit docket 13-17132) – On May 16, 2016, the Ninth Circuit ruled that the right to keep and bear arms included being able to buy and sell firearms. The court ruled that a county law prohibiting a gun store being within 500 feet of a '[r]esidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served' violated the Second Amendment.[283]
- Peruta v. San Diego No. 10-56971 (9th Cir. 2016), (Circuit docket 13-17132) – On June 9, 2016, pertaining to the legality of San Diego County's restrictive policy regarding requiring documentation of 'good cause' before issuing a concealed carry permit, the Ninth Circuit upheld the policy, finding that 'there is no Second Amendment right for members of the general public to carry concealed firearms in public.'[284]
Calls for repeal[edit]
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.[285]
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.[286]
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.'[287] President Trump responded the next day to Stevens's call for repeal by saying that it would never happen.[288] 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.[289]
See also[edit]
- Right to keep and bear arms – international views on the concept by country
- Second Amendment Caucus – a Congressional caucus dedicated to supporting the right to bear arms'
- Uniform Firearms Act – a set of statutes in Pennsylvania that define and amplify the right to bear arms in that state's Constitution.
Notes[edit]
- ^In Part II-A of the Opinion of the Court in District of Columbia v. Heller, the Supreme Court cited this version of the amendment, but another version is found in the copies distributed and then ratified by them.
- ^Blackstone's Commentaries Book 1 Ch 1 – 'The fifth and last auxiliary right of the subject .. is that of having arms for their defence'.
- ^From the English Civil War until the Glorious Revolution militias occasionally disarmed Catholics, and the King, without Parliament's consent, likewise occasionally disarmed Protestants. Malcolm, 'The Role of the Militia,' pp. 139–51.
- ^'This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.' As we (the United States Supreme Court) said in United States v. Cruikshank, 92 U.S./542 /#553 542 , 553 (1876), '[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed ..'. Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31–53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103–106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: 'That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.' 1 W. & M., c. 2, §7, in 3 Eng. Stat. at Large 441 (1689). This right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights and What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle).' From the Opinion of the Court in District of Coöimbia versus Heller 'Archived copy'(PDF). Archived(PDF) from the original on 2 March 2013. Retrieved 25 February 2013.CS1 maint: Archived copy as title (link)
- ^Justice Antonin Scalia, wrote that 'the right of the people to keep and bear Arms, shall not be infringed' was a just a controlling one and referred to it as a pre-existing right of individuals to possess and carry personal weapons for self-defense and intrinsically for defense against tyranny. As with the English law 'like most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.' 'District of Columbia v. Heller'(PDF). Archived from the original(PDF) on 2 March 2013.
- ^Hardy, p. 1237. 'Early Americans wrote of the right in light of three considerations: (1) as auxiliary to a natural right of self-defense; (2) as enabling an armed people to deter undemocratic government; and (3) as enabling the people to organize a militia system.'
- ^Malcolm, 'That Every Man Be Armed,' pp. 452, 466. 'The Second Amendment reflects traditional English attitudes toward these three distinct, but intertwined, issues: the right of the individual to protect his life, the challenge to government of an armed citizenry, and the preference for a militia over a standing army. The framers' attempt to address all three in a single declarative sentence has contributed mightily to the subsequent confusion over the proper interpretation of the Second Amendment.'
- ^Cooke, p. 100. 'This is another protection against a possible abuse by Congress. The right protected is really the right of a state to maintain an armed militia, or national guard, as we call it now. In the eighteenth century people feared that Congress might, by passing a law, prohibit the states from arming their citizens. Then having all the armed strength at its command, the national government could overwhelm the states. Such a circumstance has never happened, but this amendment would prevent it. The Second Amendment does not give anybody or everybody the right to possess and use firearms. The states may very properly prescribe regulations and permits governing the use of guns within their borders.'
- ^For two radically different views of Blackstone on the Second Amendment, see Heyman, Chicago-Kent, and Volokh, Senate Testimony.
- ^ abRawle, William (1825). A View of the Constitution of the United States of America. H.C. Carey & I. Lea. Retrieved July 5, 2013.
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. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. 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 occupations of civil life. In this all the Union has a strong and visible interest. The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.
- ^Story, Joseph (1865). A Familiar Exposition of the Constitution of the United States: Containing a Brief Commentary on Every Clause, Explaining the True Nature, Reasons, and Objects Thereof. The Lawbook Exchange, Ltd. ISBN9781886363717. Retrieved July 5, 2013.
The next amendment is, 'A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.' 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 substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men. § 451. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpations and arbitrary power of rulers; and it will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well-regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our National Bill of Rights.
- ^Farrar, Timothy (1872). Manual of the Constitution of the United States of America. Little, Brown. § 34. Retrieved 6 July 2013.
The people of the United States, in making their Constitution, do not create or confer on themselves any new rights, but they expressly reserve all the rights they then held, except what were delegated for their own benefit; and they particularly and expressly recognize and perpetuate many natural and civil common-law rights, which, of course, are placed beyond the reach of any subordinate government, and even of their own. Among these are the following: 1. The right to be, what they call themselves, 'the people of the United States,' citizens, and component members of the body politic, – the nation; and to participate in all the privileges, immunities, and benefits the Constitution was designed to obtain or secure for all the American people, especially the right to be protected and governed according to the provisions of the Constitution. 2. A right to the privileges and immunities of citizens in any of the several States. Among these is the fundamental and elementary right of suffrage. The Representatives to the national and State legislatures must be chosen by the people, the citizens (Section 2). Consequently, the citizens must choose them, and have a right to choose them. Am. 14, § 2. 3. A right to the common-law writ of habeas corpus, to protect the other common-law right, as well as natural and constitutional right, of personal liberty. 4. A right to trial by jury in any criminal case. 5. A right to keep and bear arms. 6. A right to life, liberty, and property, unless deprived by due process of law. 7. A right to just compensation for private property legally taken for public use. 8. A right to participate in all rights retained by, or reserved to, the people. Most of these rights, with many others, belong by the Constitution not only to the citizens, – the people of the United States, strictly so called, by reason of the franchise of natural birth or otherwise, – but also to all persons who may be allowed to be and remain under the jurisdiction and protection of our government. These are a part only of the rights held by every member of the nation, under and by virtue of the Constitution of the United States, independent of any other earthly power, and which, of course, 'cannot be destroyed or abridged by the laws of any particular State.' Who, then, in the United States is destitute of rights? .. The States are recognized as governments, and, when their own constitutions permit, may do as they please; provided they do not interfere with the Constitution and laws of the United States, or with the civil or natural rights of the people recognized thereby, and held in conformity to them. The right of every person to 'life, liberty, and property,' to 'keep and bear arms,' to the 'writ of habeas corpus' to 'trial by jury,' and divers others, are recognized by, and held under, the Constitution of the United States, and cannot be infringed by individuals or even by the government itself.
- ^Justice Story 'misidentified' it as the '5th Amendment.' Several public officials, including James Madison and Supreme Court Justice Joseph Story, retained the confusing practice of referring to each of the ten amendments in the Bill of Rights by the enumeration found in the first draft; the fifth article is the Second Amendment.
Citations[edit]
- ^https://www.supremecourt.gov/opinions/07pdf/07-290.pdf
- ^'US Senate Annotated Constitution'. Archived from the original on February 10, 2014. Retrieved January 30, 2014.
- ^Jilson, Cal. American Government: Political Development and Institutional Change.
- ^Shaman, Jeffrey. 'After Heller: What Now for the Second Amendment'. Santa Clara Law Review. Archived from the original on April 28, 2015. Retrieved January 30, 2014.
- ^Greenhouse, Linda (June 27, 2008). 'Justices, Ruling 5-4, Endorse Personal Right to Own Gun'. The New York Times.
- ^Barnes, Robert (June 27, 2008). 'Justices Reject D.C. Ban On Handgun Ownership'. The Washington Post.
- ^'WSJ.com'. The Wall Street Journal.
- ^'Court: A constitutional right to a gun'. SCOTUSblog. June 26, 2008.
- ^'QUICK REFERENCE TO FEDERAL FIREARMS LAWS'(PDF). U.S. Department of Justice. Retrieved August 18, 2018.
- ^Epstein, Lee; Walk, Thomas G. (September 18, 2012). Constitutional Law for a Changing America: Rights, Liberties and Justice (8 ed.). CQ Press. pp. 395–396. ISBN978-1-4522-2674-3.
- ^'Law Review: The Fourteenth Amendment and Incorporation'. American Bar Association. Archived from the original on May 23, 2018. Retrieved May 23, 2018.
- ^'Blackstone's Commentaries on the Laws of England – Book the First – Chapter the First: Of the Absolute Rights of Individuals, p. 139'. Yale. Archived from the original on July 6, 2011. Retrieved August 1, 2013.
- ^ abc'United States of America v. Timothy Joe Emerson – The Ratification Debates'. Law.umkc.edu. Archived from the original on September 12, 2010. Retrieved August 30, 2010.
- ^The Federalist No. 46, at 371 (James Madison) (John. C. Hamilton Ed., 1864)
- ^'United States v. Cruikshank 92 U.S. 542 (1875)'. Archived from the original on August 28, 2013. Retrieved September 5, 2013.
- ^'United States v. Miller, 307 U.S. 174 (1939)'. Cornell University Law School. Archived from the original on September 28, 2013. Retrieved September 5, 2013.
- ^ abCRS Report for Congress District of Columbia v. Heller: The Supreme Court and the Second Amendment April 11, 2008 Congressional Research Service T.J. Halsted, Legislative Attorney, American Law Division. Order Code RL34446 'Archived copy'(PDF). Archived from the original(PDF) on July 3, 2013. Retrieved June 27, 2013.CS1 maint: Archived copy as title (link).
- ^Greenhouse, Linda (June 27, 2008). 'Justices, Ruling 5–4, Endorse Personal Right to Own Gun'. The New York Times. Retrieved May 23, 2018.
- ^ ab'How the NRA Rewrote the Second Amendment – Brennan Center for Justice'. Brennan Center. Retrieved May 23, 2018.
- ^Barnes, Robert (June 27, 2008). 'Justices reject D.C. ban on handgun Ownership'. The Washington Post. Retrieved May 23, 2018.
- ^Vicini, James. 'Americans have right to guns under landmark ruling'. Reuters. Retrieved May 23, 2018.
- ^ abLiptak, Adam (June 28, 2010). 'Justices Extend Firearm Rights in 5-to-4 Ruling'. The New York Times. Archived from the original on February 27, 2013. Retrieved December 17, 2012.
- ^https://fas.org/sgp/crs/misc/R44618.pdf
- ^Carter, Gregg Lee (ed.). Guns in American society: an encyclopedia of history, politics, culture, and the law (2nd ed.). Santa Barbara, CA: ABC-CLIO. Introduction. ISBN978-0-313-38670-1.
- ^Davies, pp. 209–16.
- ^The second amendment's capitalization and punctuation are not uniformly reported; another version has four commas, after 'militia,' 'state,' and 'arms.' Since documents were at that time copied by hand, variations in punctuation and capitalization are common, and the copy retained by the first Congress, the copies transmitted by it to the state legislatures, and the ratifications returned by them show wide variations in such details. Letter from Marlene McGuirl, Chief, British-American Law Division, Library of Congress (Oct. 29, 1976).
- ^Freedman, Adam (16 December 2007). 'Clause and Effect'. The New York Times. Archived from the original on 26 February 2017.
- ^'Errors in the Constitution'. archives.gov. Archived from the original on 20 August 2014. Retrieved 23 September 2014.
- ^'The Second Amendment Controversy Explained – Theodore L. Johnson – Google Books'. Books.google.com. Retrieved July 5, 2013.
- ^'Writing Instruction for Generation 2.0 – Gloria E. Jacobs – Google Books'. Books.google.com. Retrieved July 5, 2013.
- ^'Constitutional Mythologies: New Perspectives on Controlling the State – Google Books'. Books.google.com. Retrieved July 5, 2013.
- ^'Separation of Powers in Practice – Thomas Campbell'. Books.google.com. Retrieved July 5, 2013 – via Google Books.
- ^'How a comma gave Americans the right to own guns'. Archived from the original on June 19, 2016.. Business Insider. Retrieved on 1 July 2016.
- ^'Clause and effect'. The New York Times. 16 December 2007. Archived from the original on 26 January 2017. Retrieved 1 July 2016.
- ^'Second Amendment – Bearing Arms'. Gpo.gov. The Constitution of the United States of America: Analysis and Interpretation (1992 ed.). Archived from the original on 29 May 2013. Retrieved 5 July 2013.
- ^'Second Amendment Foundation Online'. Saf.org. 9 August 1995. Archived from the original on 9 June 2013. Retrieved 5 July 2013.
- ^Michael Arnheim (April 29, 2009). 'U.S. Constitution For Dummies'. Books.google.com. Retrieved July 5, 2013.
- ^'Reading the Second Amendment: The Freeman: Foundation for Economic Education'. Fee.org. Archived from the original on 30 May 2013. Retrieved 5 July 2013.
- ^'National Archives – Bill of Rights'. Archived from the original on 23 October 2017. Retrieved 28 May 2013.
- ^'A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774–1875'. memory.loc.gov. Archived from the original on 28 April 2015. Retrieved 23 September 2014.
- ^Bogus, Carl T. 'The Hidden History of the Second Amendment.' https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/davlr31&id=319&men_tab=srchresults.
- ^Joyce Lee Malcolm, To Keep and Bear Arms.
- ^'They accordingly obtained an assurance from William and Mary, in the .. (Bill of Rights), that Protestants would never be disarmed: .. This right has long been understood to be the predecessor to our Second Amendment .. . It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament.' 'Opinion of the Court in Heller'. Archived from the original on 18 March 2013.
- ^ ab'1688 c.2 1 Will. and Mar. Sess. 2'. Statutelaw.gov.uk. Archived from the original on 24 August 2010. Retrieved 30 August 2010.
- ^Barnett, Law, p. 172.
- ^'Where a later enactment does not expressly repeal an earlier enactment which it has power to override, but the provisions of the later enactment are contrary to those of the earlier, the latter by implication repeals the earlier.' R v. Burke, [1998] EWHC Admin 913; '[T]he Bill of Rights .. was declaratory of the common law. It contained in it its own words of limitation, namely that the right to have arms for self-defence is limited by the words 'and as allowed by Law'. The law is a changing thing. Parliament by statute can repeal the common law .. Where the Bill of Rights says that 'the Subjects may have arms for their defence suitable for their condition and as allowed by law', 'and as allowed by law' means 'and as allowed by law for the time being'[.]' R v. Burke, [1999] EWCA Civ 923.
- ^Thompson, Mark (1938). Constitutional History of England. qtd. in Maer and Gay, p. 4.
- ^Malcolm, To Keep and Bear Arms, p. 51.
- ^ abEly and Bodenhamer, pp. 89–91.
- ^Heyman, pp. 253–59. 'Finally, we should note that (contrary to Kates's assertion), Blackstone nowhere suggests that the right to arms derives from 'the common law.' Instead, this is a right that is secured by 'the constitution,' and in particular by the Bill of Rights.'
- ^'English Bill of Rights, 1689, 'An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown''. The Avalon Project. Yale Law School. 2008. Archived from the original on 22 October 2008. Retrieved 26 December 2012.
- ^e.g., King Henry II'sAssize of Arms and the Statute of Winchester of 1285. See 'The history of policing in the West, Collective responsibility in early Anglo-Saxon times', 'Encyclopædia Britannica online'. Archived from the original on 7 June 2009..
- ^Levy, pp. 136–37.
- ^Cornell, Gun Control, p. 2.
- ^Levy, p. 136.
- ^Merkel and Uviller, pp. 62, 179 ff, 183, 188 ff, 306. '[T]he right to bear arms was articulated as a civic right inextricably linked to the civic obligation to bear arms for the public defense.'
- ^Spitzer, pp. 155–159.
- ^Dulaney, p. 2.
- ^Bellesiles, Michael A. (2001). Bogus, Carl T. (ed.). The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms. New Press. pp. 67–69, 239–40. ISBN1565846990.
- ^Merkel and Uviller, pp. 62, 179 ff, 183, 188 ff, 306.
- ^ abcRoberts, Oliver Ayer (1895). History of the Military Company of the Massachusetts, now called the Ancient and Honorable Artillery Company of Massachusetts: 1637–1888. 1. Boston, MA: Alfred Mudge & Son. pp. 1–2.
- ^Humphrey, Hubert (February 1960). 'Know your lawmaker'(PDF). Guns. George E. von Rosen. p. 4. Archived from the original(PDF) on December 17, 2014. Retrieved March 21, 2018.
- ^Bogus, Carl T. (Winter 1998). 'The Hidden History of the Second Amendment'. U.C. Davis Law Review. 31: 309–408. SSRN1465114.
- ^Hartmann, Thom (15 January 2013). 'The Second Amendment was ratified to preserve slavery'. Truthout.org. Archived from the original on 1 February 2013. Retrieved 4 February 2013.
- ^'Whitewashing the Second Amendment'. 2008. Archived from the original on 31 May 2009. Retrieved 16 January 2013.
the 'well-regulated militias' cited in the Constitution almost certainly referred to state militias that were used to suppress slave insurrections.
- ^ abcPaul Finkelman, professor of law and public policy at Albany Law School; '2nd Amendment passed to protect slavery? No!'. Archived from the original on 24 February 2018.The Root (magazine)
- ^'Pennsylvania Constitution of 1776'. The Avalon Project. Yale Law School. 2008. Archived from the original on 22 October 2008. Retrieved 26 December 2012.
- ^ abcdefghijDeConde, Alexander (2001). Gun Violence in America: The struggle for control. Northeastern University Press. ISBN9781555534868. Retrieved December 29, 2014.
- ^https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/davlr31&id=319&men_tab=srchresults.
- ^ abcd'Boston, March 17'. N. Y. J. Suppl.: 1, Col.3. April 13, 1769. cited in Halbrook, A Right to Bear Arms, p. 7.
- ^Charles, 'Arms for Their Defence?', p. 4.
- ^https://www.law.cornell.edu/supct/html/07-290.ZO.html.
- ^Anderson and Horwitz, pp. 91–92.
- ^Vest, Rose. 'Shay's rebellion'. Home of Heroes. Archived from the original on 25 December 2008.
- ^Pole and Greene, p. 386.
- ^Vile, p. 30.
- ^Merkel and Uviller, p. 79.
- ^McAffee and Quinlan, p. 781.[dead link]
- ^Rakove, p. ?[page needed]
- ^Blackstone, William. Commentaries on the Laws of England. Book 1, Chapter 1.
the fifth and last auxiliary right .. when the sanctions of society and laws are found insufficient to restrain the violence of oppression
- ^ abMillis, p. 49. 'The founders sought to balance military, as they did political, power, between people, states, and nation[.]'
- ^ abcThe Federalist Papers No. 29 (Alexander Hamilton) (concerning the militia).
- ^Bogus, Carl T. 'Do we place our faith in law or guns?'. Archived from the original on 6 July 2008. Retrieved 29 July 2009.
- ^Henigan, p. ?. '[A] generalized constitutional right of all citizens to engage in armed insurrection against their government .. would threaten the rule of law itself.'[page needed]
- ^Reynolds, p. ?[page needed]
- ^'Letter from John Adams to Abigail Adams, 22 December 1793'. Masshist.org. Archived from the original on 16 October 2010. Retrieved 30 August 2010.
- ^US Constitution Article 1 Section 8 To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
- ^'Elliots debates'. Virginia Convention. Teachingamericanhistory.org. 14 June 1788. Archived from the original on 13 June 2010. Retrieved 30 August 2010. The national government has an exclusive right to provide for arming, organizing, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States. The state governments have the power of appointing the officers, and of training the militia, according to the discipline prescribed by Congress, if they should think proper to prescribe any. Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army.
- ^Dunlap, John (1778). 'Journals of Congress Containing the Proceedings from January 1, 1776, to January 1, 1776'.
- ^'Virginia Declaration of Rights'. The Avalon Project.
- ^'Constitution of Pennsylvania'. The Avalon Project. September 28, 1776.
- ^Bowden, James (1854). The History of the Society of Friends in America. London, UK: W. & F. G. Cash. p. 123.
- ^Ford, Paul Leicester (September 1895). 'The Adoption of the Pennsylvania Constitution of 1776'. Political Science Quarterly. 10 (3): 426–459.
- ^'Constitution of Maryland'. The Avalon Project. November 11, 1776.
- ^'Constitution of North Carolina'. The Avalon Project. December 18, 1776.
- ^'The Constitution of New York'. The Avalon Project. April 20, 1777.
- ^'Constitution of Vermont'. The Avalon Project. July 8, 1777.
- ^'Massachusetts Constitution of 1780'. General Court of the Commonwealth of Massachusetts.
- ^Mulloy, p. 43.
- ^Smith, pp. 591, 600.
- ^Cress, Lawrence. An Armed Community: The origins and meaning of the right to bear arms. p. 31. cited in Cottrol, p. 283.
- ^Vile, p. 19.
- ^Schmidt et al., p. 39.
- ^Williams, pp. 41–44.
- ^Story, Joseph. 'Commentaries on the Constitution'. The Founders Constitution. The University of Chicago Press. 2:§§ 904—25, 927—30, 946—52, 954—70, 972—76, 988. Archived from the original on 9 March 2013. Retrieved 10 April 2013.
- ^The Federalist Papers No. 46 (James Madison) (concerning the influence of state and federal governments).
- ^Webster, Noah (10 October 1787). 'An Examination of the Leading Principles of the Federal Constitution'. Archived from the original on 5 August 2010.
- ^Young (October 10, 1787). A Citizen of America (Noah Webster). Pamphlet: An Examination into the leading principles of the Federal Constitution. pp. 38–41.
- ^Foner and Garraty, p. 914. 'The Massachusetts compromise determined the fate of the Constitution, as it permitted delegates with doubts to vote for it in the hope that it would be amended.'
- ^Adamson, p. 63.
- ^Linder, Doug (ed.). 'Theories of Constitutional Interpretation'. University of Missouri-Kansas City Law School. Archived from the original on 16 December 2011. Retrieved 11 December 2011.
article cites Robert Bork: 'If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended.'
- ^Garry Wills, A Necessary Evil: A History of American Distrust of Government, Simon and Schuster, 1999, p. 252. ('Until recently, the Second Amendment was a little-visited area of the Constitution. A two thousand-page commentary on the Constitution put out by the Library of Congress in 1973 has copious annotation for most clauses, but less than a page and a half for the Second Amendment.')
- ^Wills, Garry (1999). A Necessary Evil: A history of American distrust of government. Simon and Schuster. pp. 253–254.
Whitehill deals with guns in three of his fifteen headings. Article 8 begins: 'The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times ..' article 7: 'That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purposes of killing game ..'
- ^Garry Wills, (1999). A Necessary Evil: A history of American distrust of government. Simon and Schuster. p. 253.
The items on the [Whitehill's] list were never discussed in the convention, which when on to approve the Constitution.
- ^'Articles of Confederation'. Usconstitution.net. 19 May 2010. Archived from the original on 26 August 2010. Retrieved 30 August 2010.
- ^'US Library of Congress, repro of original text'. Memory.loc.gov. Archived from the original on 19 March 2011. Retrieved 30 August 2010.
- ^'US Constitution'. US Constitution. Archived from the original on 30 August 2010. Retrieved 30 August 2010.
- ^Elliot, Jonathan (1863). The Debates in the Several State Conventions on the Adoption of the Federal Constitution. 2 (2d ed.). 97.
- ^Webster, Noah (1971) [1888]. Ford, Paul L. (ed.). An Examination into the Leading Principles of the Federal Constitution 1787, Reprinted in Pamphlets on the Constitution of the United States, Published During Its Discussion by the People, 1787–1788. 56.
- ^Elliot, Jonathan (1937). The Debates in the Several State Conventions on the Adoption of the Federal Constitution. 3 (3d ed.). 425.
- ^Monroe, James. Miscellaneous Papers of James Monroe. James Monroe Papers. New York Public Library.
- ^'The Second Amendment was ratified to preserve slavery'. Raw Story. 22 February 2018. Archived from the original on 23 February 2018. Retrieved 23 February 2018.
- ^Madison, James (June 8, 1789). 'Gales & Seaton's History of Debates in Congress'. House of Representatives. Amendments to the Constitution 1st Congress, 1st Session. pp. 448–459, esp. 451. Archived from the original on January 11, 2011.
- ^'Journal of the House of Representatives of the United States'. p. 64. Archived from the original on September 4, 2015.
- ^'Annals of Congress'. House of Representatives. 1st Congress, 1st Session, page 669. Archived from the original on September 4, 2015.
- ^'Annals of Congress'. House of Representatives. 1st Congress, 1st Session, page 778. Archived from the original on 10 January 2011.
- ^'Journal of the Senate of the United States of America'. pp. 63–64. Archived from the original on January 26, 2017.
- ^Letter from Roger Sherman to Simeon Baldwin (Aug. 22, 1789) qtd. in Bickford, et al., p. 16 See also letter from James Madison to Alexander White (Aug. 24, 1789) qtd. in Madison, Writings, pp. 418–19.
- ^'Journal of the Senate of the United States of America'. p. 71. Archived from the original on 19 December 2016.
- ^'Journal of the Senate of the United States of America'. p. 77. Archived from the original on 4 September 2015.
- ^'The Bill of Rights: A Transcription'. November 4, 2015. Retrieved May 23, 2018.
- ^'Amendments to the Constitution of the United States'(PDF). Washington, DC: Government Printing Office. Archived(PDF) from the original on 28 January 2018. Retrieved 3 April 2018.
- ^ abc'Statutes at Large'. A Century of Lawmaking for a New Nation. U.S. Congressional Documents and Debates, 1774–1875. 2nd Congress, 1st Session, 1 Stat. 272. Archived from the original on 12 January 2011.
- ^Merkel and Uviller, pp. 293–94.
- ^ abMerkel and Uviller, p. 12.
- ^Szatmary, p. 107.
- ^'Statutes at Large'. A Century of Lawmaking for a New Nation. U.S. Congressional Documents and Debates, 1774–1875. 3rd Congress, 1st Session, 1 Stat. 351. Archived from the original on 4 September 2015..
- ^'Remarks on the First Part of the Amendments to the Federal Constitution,' Federal Gazette, June 18, 1792, at 2, col. 1
- ^Reynolds, Glenn Harlan. 'A Critical Guide to the Second Amendment'. guncite.com. Archived from the original on 5 June 2014. Retrieved 23 September 2014.
- ^ abcdHalbrook, Stephen P. (1998). Freedmen, the 14th Amendment, and the Right to Bear Arms, 1866–1876. Greenwood Publishing Group. ISBN9780275963316. Retrieved March 19, 2013.
- ^ abcTucker, p. 490
- ^Kopel, David B. 'The Second Amendment in the Nineteenth Century'. Second Amendment Project. Archived from the original on 25 May 2006.
- ^Blackstone, William, Sir; Tucker, St. George; Christian, Edward (1803). Blackstone's Commentaries: With notes of reference, to the Constitution and Laws, of the Federal Government of the United States and of the Commonwealth of Virginia. William Young Birch, and Abraham Small. Retrieved July 5, 2013.
- ^ abRawle, p. 126.
- ^Rawle, pp. 125–26.
- ^Rawle, William (2011). 'A View to the Constitution of the United States of America'(PDF). Portage Publications. Archived(PDF) from the original on 5 November 2013.
- ^Story, Joseph (1833). A Familiar Exposition of the Constitution of the United States: Containing a brief commentary on every clause, explaining the true nature, reasons, and objects thereof.
- ^ abStory, Joseph (1833). Commentaries on the U.S. Constitution. Harper & Brothers. §1890.
- ^Spooner, pp. 17–18.
- ^Renehan, pp. 172–174.
- ^Spooner, p. 17.
- ^Cramer, p. ?[page needed]
- ^Cooley, Thomas M. (November 1883). 'The Abnegation of Self-Government'. Princeton Review. University of Michigan Law School: 213–14. Archived from the original on 21 August 2016.
- ^Cooley, Thomas McIntyre (1871). A treatise on the constitutional limitations which rest upon the legislative power of the states of the American union. Little, Brown and company. p. 381.
- ^Cooley, Thomas McIntyre (1880). The General Principles of Constitutional Law in the United States of America. F.B. Rothman. p. 271.
- ^Right to Keep and Bear Arms. U.S. Senate. Paladin Press. 2001. ISBN1-58160-254-5.
- ^'United States v. Emerson'. 270 F.3d 203, 218–219 (5th Cir. 2001). Archived from the original on August 17, 2012.
- ^Klukowski, Kenneth A. (2008). 'Armed by Right: The emerging jurisprudence of the Second Amendment'. Geo. Mason U. Civ. Rts. L.J. 18: 167, 176.
Advocates of the collective theories posit that the Second Amendment was written out of fear that the new central government would disarm state militias needed for local defense. Under any sort of collective theory, the government could completely ban all firearm ownership whatsoever.
- ^Mocsary, George A. (2008). 'Explaining away the Obvious: The infusibility of characterizing the Second Amendment as a nonindividual right'. Fordham L. Rev. 76: 2113, 2133.
Up until 2001, every federal circuit court of appeals that ruled on the issue had adopted the collective right approach.
- ^Klukowski, Kenneth A. (2009). 'Citizen Gun Rights: Incorporating the Second Amendment through the privileges or immunities clause'. N.M. Law Review. 39: 195, 199–200.
- ^Mocsary, George A. (2008). 'Explaining away the Obvious: The infusibility of characterizing the Second Amendment as a nonindividual right'. Fordham L. Rev. 76: 2113, 2133–2134.
- ^Silveira v. Lockyer. 9th Circuit Court of Appeal. 2002. 312 F.3d 1052, 1087.
cf. for a ruling that endorses the collective rights model
- ^Barnett, Randy E. (2004). Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?. Retrieved March 21, 2013.
- ^Kenneth A. Klukowski, Armed by Right: The Emerging Jurisprudence Of The Second Amendment, 18 Geo. Mason U. Civ. Rts. L.J. 167, 176 (2008).
- ^George A. Mocsary, Explaining Away the Obvious: The Infusibility of Characterizing the Second Amendment as a Nonindividual Right, 76 Fordham L. Rev. 2113, 2133 (2008).
- ^Kenneth A. Klukowski, Citizen Gun Rights: Incorporating the Second Amendment Through the Privileges or Immunities Clause, 39 N.M. L. Rev. 195, 200 (2009) (citing United States v. Wright, 117 F.3d 1265, 1273–74 (11th Cir. 1997); United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996); United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977); Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942)).
- ^Dorothy J. Hernaez, 'Parker v. District of Columbia: Understanding the Broader Implications for the Future of Gun Control', 6 Geo. J.L. & Pub. Pol'y 693, 696 (2008).
- ^George A. Mocsary, 'Explaining Away the Obvious: The Infusibility of Characterizing the Second Amendment as a Nonindividual Right', 76 Fordham L. Rev. 2113, 2134 (2008).
- ^Merkel and Uviller, p. 150. 'The linguistically correct reading of this unique construction is as though it said: 'Congress shall not limit the right of the people (that is, the potential members of the state militia) to acquire and keep the sort of arms appropriate to their military duty, so long as the following statement remains true: 'an armed, trained, and controlled militia is the best – if not the only – way to protect the state government and the liberties of its people against uprisings from within and incursions or oppression from without.'
- ^Winterer, pp. 1–21
- ^'Amicus Brief, ACRU, Case No. 03-CV-0213-EGS, Shelly Parker, et al. vs. District of Columbia'(PDF). p. 14. Archived from the original(PDF) on 4 July 2010. Retrieved 30 August 2010.
- ^Frey and Wellman, p. 194.
- ^Shapiro, p. 148.
- ^Volokh, 'Commonplace,' p. 793. 'The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause. Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era: State Bills of Rights contained justification clauses for many of the rights they secured.'
- ^Rottenberg, Annette T.; Winchell, Donna Haisty (August 3, 2011). 'Elements of Argument: A Text and Reader'. Macmillan. Retrieved May 23, 2018 – via Google Books.
- ^Frank Staheli (August 28, 2016). 'Warren Burger '2nd Amendment Fraud' – 1991 PBS News Hour'. PBS. Retrieved May 23, 2018 – via YouTube.
- ^'IT'S TIME TO PASS THE BRADY BILL'. The Washington Post. October 3, 1992. Retrieved May 23, 2018 – via www.washingtonpost.com.
- ^Spitzer, Robert J. (October 2000). 'Lost and Found: Researching the Second Amendment'(pdf). Chicago-Kent Law Review. IIT Chicago-Kent College of Law. 76 (10): 349–401.
- ^'How the NRA rewrote the Second Amendment'. Brennan Center for Justice. Retrieved May 24, 2018.
- ^Merkel, p. 361. 'Well-regulated meant well trained, rather than subject to rules and regulations.'
- ^ abHeller, Opinion of the Court, Part II-A-2.
- ^'Scalia in Heller'. Archived from the original on 18 March 2013. Retrieved 25 March 2013.
- ^'Stevens' dissent'. Archived from the original on 10 March 2013. Retrieved 25 March 2013.
- ^ ab'District of Columbia v Heller'. Supreme.justia.com. Archived from the original on 19 October 2010. Retrieved 30 August 2010.
- ^Kopel, David B. (1999). The Supreme Court's Thirty-five Other Gun Cases: What the Supreme Court Has Said about the Second Amendment. Independence Institute. Retrieved March 17, 2013.
- ^Crooker, Constance (2003). Gun Control and Gun Rights. Greenwood Publishing Group. p. 55.
- ^Lund, Nelson (1996). 'The past and future of the individual's right to arms'. Georgia Law Review. 31: 26. Archived from the original on March 25, 2018.
- ^'District of Columbia v Heller'. Cornell University Law School. Archived from the original on 6 July 2010. Retrieved 30 August 2010.
- ^Baron, Dennis (May 21, 2018). 'Opinion – Antonin Scalia was wrong about the meaning of 'bear arms''. Retrieved May 23, 2018 – via www.washingtonpost.com.
- ^ Cramer, Clayton E. and Olson, Joseph Edward, What Did 'Bear Arms' Mean in the Second Amendment?. Georgetown Journal of Law & Public Policy, Vol. 6, No. 2, 2008. Available at SSRN: https://ssrn.com/abstract=1086176
- ^Cornell,. Gun Control. p. 6.
Neither of the two modern theories that have defined public debate over the right to bear arms is faithful to the original understanding of this provision of the Bill of Rights.
- ^'FindLaw | Cases and Codes'. Caselaw.lp.findlaw.com. Archived from the original on 15 August 2013. Retrieved 5 July 2013.
- ^'United States v. Miller'. Supreme.justia.com. Archived from the original on 21 April 2010. Retrieved 30 August 2010.
- ^'District of Columbia v. Heller'. Supreme.justia.com. Archived from the original on 19 October 2010. Retrieved 30 August 2010.
- ^Cruikshank, at 552.
- ^Cruikshank, at 553.
- ^Cruikshank, at 554.
- ^Doherty, p. 14.
- ^'The Lehr und Wehr Verein'. The New York Times. 20 July 1886. p. 5. Archived from the original on 27 April 2016.
- ^Cramer, Clayton E. (1994). For the defense of themselves and the state: the original intent and judicial interpretation of the right to keep and bear arms. Praeger. ISBN9780275949136. Retrieved March 11, 2013.
- ^Miller, at 539.
- ^Robertson, at 281.
- ^Miller, at 175.
- ^Miller, at 177–78.
- ^Miller, at 178.
- ^Fezell, Howard J. 'The misconstruction of United States v. Miller'. Archived from the original on 22 December 2008. Retrieved 5 January 2009.
- ^Paul Helmke (28 March 2008). 'One Court's Second Amendment Fantasy'. Huffington Post. Archived from the original on 13 November 2012. Retrieved 29 April 2011.
- ^McClurg, p. 139. 'But when all is said and done, the only certainty about Miller is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact. For example, Professor Eugene Volokh describes Miller as 'deliciously and usefully ambiguous' in an article about using the Second Amendment as a teaching tool in constitutional law. That is probably the most accurate statement that can be made about the case.'
- ^ abcdefghij'District of Columbia v. Heller (No. 07-290)'. Legal Information Institute. Cornell University Law School. Archived from the original on 20 January 2013. Retrieved 26 December 2012.
- ^ abcdefghijklm'Cornell School of Law Summary of the Heller Decision'. Law.cornell.edu. Archived from the original on 11 September 2012. Retrieved 1 September 2012.
- ^'Witkin Legal Institute Summary of the Heller Decision'. Witkin.com. June 30, 2009. Archived from the original on January 15, 2013. Retrieved December 26, 2012.
- ^'Nathan Moore Summary of the Heller Decision'. Mooredefenselaw.com. 30 June 2008. Archived from the original on 15 January 2013. Retrieved 26 December 2012.
- ^'Global Legal Information Network Summary of the Heller Decision'. Glin.gov. Archived from the original on 29 February 2012. Retrieved 1 September 2012.
- ^Veronica Rose; Principal Analyst. 'OLR Research Institute's Summary of the Heller Decision'. Cga.ct.gov. Archived from the original on 13 November 2012. Retrieved 1 September 2012.
- ^'Oyez Summary of the Heller Decision'. Oyez.org. Archived from the original on 16 January 2013. Retrieved 26 December 2012.
- ^''Legal Community Against Violence' Summary of the Heller Decision'(PDF). Lcav.org. Archived from the original(PDF) on 13 September 2012. Retrieved 1 September 2012.
- ^ ab'People v. Aguilar, 2013 IL 112116'(PDF). Illinois Supreme Court. Illinois Supreme Court. 12 September 2013. pp. 5–6. Archived(PDF) from the original on 11 June 2014. Retrieved 14 September 2014.
- ^Mauro, Tony (27 June 2008). 'Supreme Court Strikes Down D.C. Gun Ban'. Archived from the original on 4 December 2008. Retrieved 5 January 2009.
In a historic 5–4 decision .. the landmark ruling ..
- ^Biskupic, Joan & Johnson, Kevin (27 June 2008). 'Landmark ruling fires challenges to gun laws'. USA Today. Archived from the original on 5 December 2008. Retrieved 5 January 2009.
- ^Vicini, James (June 26, 2008). 'Americans have right to guns under landmark ruling'. Reuters. Retrieved January 5, 2009.
- ^Greenhouse, Linda (27 June 2008). 'Justices, Ruling 5–4, Endorse Personal Right to Own Gun'. The New York Times. Archived from the original on 17 April 2009. Retrieved 5 January 2009.
The landmark ruling ..
- ^Liptak, Adam (16 March 2009). 'Few Ripples From Supreme Court Ruling on Guns'. The New York Times. Archived from the original on 12 May 2011. Retrieved 13 August 2010.
The Heller case is a landmark decision that has not changed very much at all ..
- ^Robert A. Sedler (June 30, 2008). 'Ruling upholds most gun control laws'. The Detroit News. Retrieved August 20, 2009.[permanent dead link]
- ^Heller, Opinion of the Court, Part III.
- ^Harris, Andrew (February 22, 2013). 'Illinois' bid for rehearing of gun-carry appeal rejected'. Bloomberg News. Archived from the original on November 13, 2013.
The U.S. Court of Appeals in Denver today ruled the constitutional provision doesn't guarantee a right to carry a concealed firearm .. .
- ^Kirkland, Michael (16 December 2012). 'Scalia: Right to bear arms is 'not unlimited''. UPI. Archived from the original on 13 November 2013.
- ^Henigan, Dennis (2009). Lethal Logic: Exploding the myths that paralyze American gun policy. Potomac Books. p. 204.
- ^Huebert, Jacob (2010). Libertarianism Today. ABC-CLIO. p. 147.
- ^'District of Columbia v. Heller'. Archived from the original on January 15, 2013. Retrieved August 4, 2010.
- ^'Heller, Justice Stevens dissenting'. Supreme.justia.com. Archived from the original on 22 October 2010. Retrieved 30 August 2010.
- ^ abHeller, Opinion of the Court, Part II-A-1-b.
- ^'Heller, Justice Breyer dissenting'. Supreme.justia.com. Archived from the original on 21 October 2010. Retrieved 30 August 2010.
- ^'Heller, Opinion of the Court, Part II-D-1'. Supreme.justia.com. Archived from the original on 19 October 2010. Retrieved 30 August 2010.
- ^'District of Columbia v. Heller'. 128 S.Ct. 2783 (2008). Archived from the original on 2 July 2008.
- ^Greenhouse, Linda (27 June 2008). 'Justices Rule for Individual Gun Rights'. The New York Times. Archived from the original on 17 January 2012. Retrieved 23 May 2010.
[A] dramatic upheaval in the law, Justice Stevens said in a dissent
- ^'Justice Ginsburg Part II: Gender, the Second Amendment, Immigration & More'. wnyc.org. Archived from the original on 18 April 2016. Retrieved 29 June 2015.
- ^Rose, Veronica (20 August 2010). 'Summary of the Recent McDonald v. Chicago Gun Case'. Office of Legal Research – Connecticut General Assembly. Archived from the original on 25 September 2015. Retrieved 23 September 2015.
- ^Scarola, Matthew (28 June 2010). 'Analysis: state gun regulations and McDonald'. SCOTUSblog. Archived from the original on 3 July 2010. Retrieved 3 July 2010.
- ^ abDuignan, Brian (2013). The U.S. Constitution and Constitutional Law. Rosen Publishing Group. pp. 31–32.
- ^Denniston, Lyle (21 March 2016). 'The Second Amendment expands, but maybe not by much'. SCOTUSblog. Archived from the original on 23 March 2016. Retrieved 21 March 2016.
- ^Montenaro, Domenico; Totenberg, Nina (January 22, 2019). 'Supreme Court Takes 1st Gun Case In Nearly A Decade, Possibly With Big Consequences'. NPR. Retrieved January 22, 2019.
- ^ abcdCRS Report for Congress District of Columbia v.Heller: The Supreme Court and the Second Amendment April 11, 2008 Congressional Research Service T.J. Halsted, Legislative Attorney, American Law Division. Order Code RL34446 'Archived copy'(PDF). Archived from the original(PDF) on July 3, 2013. Retrieved June 27, 2013.CS1 maint: Archived copy as title (link).
- ^Cases v. United States, 131 F.2d 916 (1st Cir. 1942); United States v. Toner, 728 F.2d 115 (2nd Cir. 1984); United States v. Rybar, 103 F.3d 273 (3rd Cir. 1997); Love v. Peppersack, 47 F.3d 120 (4th Cir. 1995); United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971); United States v. Warin, 530 F.2d 103 (6th Cir. 1976); Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1983); United States v. Hale, 978 F.2d 1016 (8th Cir. 1993); Hickman v. Block, 81 F.3d 98 (9th Cir. 1996); United States v. Oakes, 564 F.2d 384 (10th Cir. 1978); and United States v. Wright, 117 F.3d 1265 (11th Cir. 1997)
- ^Winkler, 'Heller's Catch 22,' p. 14.
- ^Liptak, Adam (17 March 2009). 'Few Ripples From Supreme Court Ruling on Guns'. New York Times. Archived from the original on 17 January 2012. Retrieved 26 March 2009.
- ^'Heller v. District of Columbia 2010'. Leagle. March 26, 2010. Retrieved February 22, 2013.
- ^'Some D.C. Gun Laws Unconstitutional'. U.S. News & World Report. 18 September 2015. Archived from the original on 16 October 2015. Retrieved 19 September 2015.
- ^'In Major Win for 2nd Amendment Advocates, Federal Court Blocks D.C. from Enforcing Conceal-Carry Restriction'. Reason. 25 July 2017. Archived from the original on 26 July 2017. Retrieved 26 July 2017.
- ^Rene E., at 12–15.
- ^'N.Y.'s Concealed Gun Licensing Scheme Is Upheld by Circuit]'. New York Law Journal.
- ^ abWinkler, 'Heller's Catch 22,' p. 15.
- ^'United States Court of Appeals, Fourth Circuit'. FindLaw. Thomson Reuters. Archived from the original on 15 January 2013. Retrieved 26 December 2012.
- ^Part III of the decision.
- ^Santiago, Matthew (5 February 2016). 'Fourth Circuit requires application of strict scrutiny in challenge to Maryland gun law'. JURIST. Archived from the original on 6 February 2016. Retrieved 6 February 2016.
- ^'Order granting rehearing en banc'(PDF). Archived from the original(PDF) on 7 March 2016.
- ^Weisselberg, pp. 99–100.
- ^'Text of decision in Dorosan'(PDF). Archived from the original(PDF) on August 3, 2012.
- ^Tyler v. Hillsdale Co. Sheriff's Dept., 775 F.3d 308, 317–19 (6th Cir. 2014) (internal quotations omitted).
- ^'Federal Circuit Court Holds That Involuntary Mental Commitment Cannot Prevent A Person From Asserting His 'Fundamental Right' Of Gun Ownership'. Gielow, Groom, Terpstra & McEvoy. 21 January 2015. Archived from the original on 23 September 2015. Retrieved 22 September 2015.
- ^Tyler v. Hillsdale County Sheriff's Dep't, 2015 U.S. App. LEXIS 6638 (2015)
- ^ ab'Skoien and the many challenges of Second Amendment jurisprudence'. Sentencing Law and Policy. Archived from the original on 12 August 2010. Retrieved 13 August 2010.
- ^'U.S. v. Skoien No. 08-3770'. Archived from the original on 19 March 2012.
- ^'Laws, Life, and Legal Matters – Court Cases and Legal Information at Leagle.com – All Federal and State Appeals Court Cases in One Search'. Archived from the original on 13 July 2011.
- ^'The right to regain the right to own a gun'. Archived from the original on 1 August 2010.
- ^'Dennis A. Henigan: New Court Ruling Throws Cold Water on 'Gun Rights' Celebration'. Huffington Post. 16 July 2010. Archived from the original on 19 July 2010.
- ^'Moore v. Madigan (Circuit docket 12-1269)'. United States Court of Appeals for the Seventh Circuit. suntimes.com. 11 December 2012. Archived from the original on 24 July 2013. Retrieved 18 December 2012.
- ^Denniston, Lyle (11 December 2012). 'Broader gun right declared'. SCOTUSblog. Archived from the original on 12 December 2012. Retrieved 11 December 2012.
- ^Liptak, Adam (18 December 2012). 'Supreme Court Gun Ruling Doesn't Block Proposed Controls'. The New York Times. Archived from the original on 21 December 2012. Retrieved 18 December 2012.
- ^Kopel, David (11 December 2012). 'Moore v. Madigan, key points'. The Volokh Conspiracy. Archived from the original on 18 December 2012. Retrieved 18 December 2012.
- ^Volokh, Eugene (22 February 2013). 'Rehearing En Banc Denied in Case Invalidating Illinois' Ban on Carrying Loaded Guns in Public'. The Volokh Conspiracy. Archived from the original on 25 February 2013. Retrieved 22 February 2013.
- ^Todd D. Steenson, Phillip M. Schreiber and Adam R. Young (5 August 2013). 'Illinois Firearm Concealed Carry Act Will Require Employers to Take Action'. Holland & Koch. Archived from the original on 5 November 2013. Retrieved 4 November 2013.
- ^Volokh, Eugene (29 July 2009). 'Ninth Circuit Will Rehear Nordyke v. King En Banc'. The Volokh Conspiracy. Archived from the original on 31 July 2009. Retrieved 30 July 2009.
- ^McCullagh, Declan (25 August 2009). 'High-Profile Gun Rights Case Inches Toward Supreme Court'. CBS News. Archived from the original on 28 August 2009. Retrieved 25 August 2009.
- ^Schwartz, John (30 July 2009). 'Appeals Court Sets Rehearing on Ruling That Eased Gun Restrictions'. NYTimes.com. Archived from the original on 17 January 2012. Retrieved 17 August 2009.
- ^Denniston, Lyle (30 July 2009). 'Second Amendment: Less chance of review?'. SCOTUSblog. Archived from the original on 3 February 2010. Retrieved 31 July 2009.
- ^'Nordyke v. King'(PDF). 9th Cir. 2009. Archived from the original(PDF) on May 13, 2009.
- ^Denniston, Lyle (20 April 2009). 'Second Amendment extended'. SCOTUSblog. Archived from the original on 3 February 2010. Retrieved 20 April 2009.
- ^Denniston, Lyle (4 May 2011). 'Circuit Court bolsters gun rights'. SCOTUSblog. Archived from the original on 5 May 2011. Retrieved 4 May 2011.
- ^'Text of November 28 order granting rehearing'(PDF). Archived(PDF) from the original on 13 September 2012. Retrieved 1 September 2012.
- ^Mintz, Howard (29 November 2011). '9th Circuit agrees to rehear long-running Alameda County gun rights case'. Oakland Tribune. Archived from the original on 4 December 2011. Retrieved 30 November 2011.
- ^Denniston, Lyle (4 April 2012). 'Major gun case shunted aside'. SCOTUSblog. Archived from the original on 7 April 2012. Retrieved 5 April 2012.
- ^Denniston, Lyle (2 June 2012). 'Nordyke gun case nears end'. SCOTUSblog. Archived from the original on 4 June 2012. Retrieved 3 June 2012.
- ^'Teixeira v. County of Alameda (Circuit docket 13-17132)'(PDF). United States Court of Appeals for the Ninth Circuit. 16 May 2016. Archived(PDF) from the original on 6 February 2017. Retrieved 8 February 2017.
- ^'Peruta v. San Diego'(PDF). No. 10-56971 (9th Cir. 2016). Archived from the original(PDF) on 15 June 2016.
- ^'Repeal the 2nd Amendment'. Chicago Tribune. June 27, 2008. Archived from the original on March 31, 2018.
- ^'Repeal the Second Amendment'. The New York Times. 5 October 2017. Archived from the original on 30 March 2018.
- ^'John Paul Stevens: Repeal the Second Amendment'. The New York Times. March 27, 2018. Archived from the original on March 30, 2018.
- ^'Trump on proposed repeal of the second amendment: 'NO WAY''. Business Insider. March 28, 2018. Archived from the original on March 30, 2018.
- ^'No, Justice Stevens, we don't need to repeal the second amendment'. Slate. 29 March 2018. Archived from the original on 31 March 2018.
References[edit]
Books[edit]
- Adams, Les (1996). The Second Amendment Primer: A Citizen's Guidebook to the History, Sources, and Authorities for the Constitutional Guarantee of the Right to Keep and Bear Arms. Birmingham, Alabama: Paladium Press.
- Adamson, Barry (2008). Freedom of Religion, the First Amendment, and the Supreme Court. Pelican Publishing. ISBN1-58980-520-8.
- Anderson, Casey; Horwitz, Joshua (2009). Guns, Democracy, and the Insurrectionist Idea. Ann Arbor, MI: University of Michigan Press. ISBN0-472-03370-0.
- Barnett, Hilaire (2004). Constitutional & Administrative Law. Routledge Cavendish. ISBN1-85941-927-5.
- Bickford, Charlene; et al., eds. (2004). Documentary History of the First Federal Congress of the United States of America, March 4, 1789 – March 3, 1791: Correspondence: First Session, September–November 1789. 17. The Johns Hopkins University Press. ISBN978-0-8018-7162-7.
- Bogus, Carl T. (2001). The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms. New York: The New Press. ISBN1-56584-699-0.
- Boynton, Lindsay Oliver J. (1971). The Elizabethan Militia 1558–1638. David & Charles. ISBN0-7153-5244-X. OCLC8605166.
- Carter, Gregg Lee (2002). Guns in American Society. ABC-CLIO.
- Charles, Patrick J. (2009). The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court. McFarland. ISBN978-0-7864-4270-6.
- Cooke, Edward Francis (2002). A Detailed Analysis of the Constitution. Lanham, MD: Rowman & Littlefield Publishers. ISBN0-7425-2238-5.
- Cornell, Saul (2006). A Well-Regulated Militia – The Founding Fathers and the Origins of Gun Control in America. New York, New York: Oxford University Press. ISBN978-0-19-514786-5.
- Cottrol, Robert (1994). Gun Control and the Constitution: Sources and Explorations on the Second Amendment. Taylor & Francis.
- Cramer, Clayton E.; Olson, Joseph (2008). 'What Did 'Bear Arms' Mean in the Second Amendment?'. Geo. J.L. & Pub. Pol'y. 6 (2). SSRN1086176.
- Crooker, Constance Emerson (2003). Gun Control and Gun Rights. Greenwood Publishing Group. ISBN978-0-313-32174-0.
- Denson, John V. (1999). The Costs of War: America's Pyrrhic Victories (2 ed.). Transaction Publishers. ISBN978-0-7658-0487-7.
- Doherty, Brian (2008). Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment. Washington, D.C.: Cato Institute. ISBN1-933995-25-4.
- Dulaney, W. Marvin (1996). Black Police in America. Bloomington: Indiana University Press. ISBN0-253-21040-2.
- Ely, James W.; Bodenhamer, David J. (2008). The Bill of Rights in Modern America. Bloomington: Indiana University Press. ISBN0-253-21991-4.
- Foner, Eric; Garraty, John Arthur (1991). The Reader's Companion to American History. Houghton Mifflin Harcourt. ISBN0-395-51372-3.
- Frey, Raymond; Wellman, Christopher (2003). A Companion to Applied Ethics. Cambridge, MA: Blackwell Publishing. ISBN1-55786-594-9.
- Halbrook, Stephen P. (1989). A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees. Greenwood Publishing Group.
- Halbrook, Stephen P. (1994). That Every Man Be Armed: The Evolution of a Constitutional Right (Independent Studies in Political Economy). Oakland, CA: The Independent Institute. ISBN0-945999-38-0.
- Hemenway, David (2007). Private Guns, Public Health. University of Michigan Press. ISBN978-0-472-03162-7.
- Kruschke, Earl R. (1995). Gun Control: A Reference Handbook. Santa Barbara, CA: ABC-CLIO. ISBN0-87436-695-X.
- Levy, Leonard W. (1999). Origins of the Bill of Rights. New Haven, CT: Yale University Press. ISBN0-300-07802-1.
- Madison, James (2010). The Writings of James Madison: 1787–1790. Nabu Press. ISBN978-1-144-58273-7.
- Malcolm, Joyce Lee (1996). To Keep and Bear Arms: The Origins of an Anglo-American Right. Cambridge: Harvard University Press. ISBN0-674-89307-7.
- Merkel, William G.; Uviller, H. Richard (2002). The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent. Durham, NC: Duke University Press. ISBN0-8223-3017-2. Retrieved February 14, 2013.
- Millis, Walter (1981). Arms and Men. Rutgers University Press.
- Mulloy, D. (2004). American Extremism. Routledge.
- Pepper, John; Petrie, Carol; Wellford, Charles F. (2005). Firearms and Violence. A Critical Review. Washington, DC: National Academies Press. ISBN0-309-09124-1.
- Pole, J. R.; Greene, Jack P. (2003). A Companion to the American Revolution (Blackwell Companions to American History). Cambridge, MA: Blackwell Publishers. ISBN1-4051-1674-9.
- Renehan, Edward J. (1997). The Secret Six: The True Tale of the Men Who Conspired With John Brown. Columbia, SC: University of South Carolina Press. ISBN1-57003-181-9.
- Schmidt, Steffen; Bardes, Barbara A.; Shelley, Mack C. (2008). American Government and Politics Today: The Essentials. Belmont, CA: Wadsworth Publishing. ISBN0-495-57170-9.
- Shapiro, Ilya (2008). Cato Supreme Court Review 2007–2008. Washington, D.C: Cato Institute. ISBN1-933995-17-3.
- Smith, Rich (2007). The Bill of Rights: Defining Our Freedoms. ABDO Group. ISBN978-1-59928-913-7.
- Spitzer, Robert J. (2001). The Right to Bear Arms: Rights and Liberties under the Law. Santa Barbara, CA: ABC-CLIO. ISBN1-57607-347-5.
- Szatmary, David P. (1980). Shays' Rebellion: the Making of an Agrarian Insurrection. Amherst: University of Massachusetts Press. ISBN0-87023-295-9.
- Tucker, St. George; Blackstone, William (1996). Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws, of the Federal Government of the United States, and of the Commonwealth of Virginia: In Five Volumes. The Lawbook Exchange, Ltd. ISBN978-1-886363-15-1.
- Tushnet, Mark V. (2007). Out of Range: Why the Constitution Can't End the Battle Over Guns. Oxford University Press. p. xv. ISBN978-0-19-530424-4.
- Rabban, David (1999). Free Speech in its Forgotten Years. Cambridge University Press.
- Rawle, William (1829). A View of the Constitution of the United States of America (2 ed.). P.H. Nicklin.
- Spooner, Lysander (1852). An Essay on the Trial by Jury. Retrieved July 6, 2013.
- Vile, John R. (2005). The Constitutional Convention of 1787: A Comprehensive Encyclopedia of America's Founding (2 Volume Set). Santa Barbara, CA: ABC-CLIO. ISBN1-85109-669-8.
- Williams, David H. (2003). The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic. New Haven, CT: Yale University Press. ISBN0-300-09562-7.
- Wills, Garry (2000). Saul, Cornell (ed.). Whose Right to Bear Arms did the Second Amendment Protect?. Boston: Bedford/St. Martin's. ISBN0-312-24060-0.
- Wills, Garry (2002). A Necessary Evil: A History of American Distrust of Government. New York: Simon & Schuster. pp. 256–57. ISBN0-684-87026-6.
- Winterer, Caroline (2002). The Culture of Classicism: Ancient Greece and Rome in American Intellectual Life, 1780–1910. Baltimore: Johns Hopkins University Press.
- Young, David E. (2001). The Origin of the Second Amendment: A Documentary History of the Bill of Rights 1787–1792 (2 ed.). Golden Oak Books. ISBN0-9623664-3-9.
Periodicals[edit]
- Barnett, Gary E. (June 24, 2008). 'The Reasonable Regulation of the Right to Keep and Bear Arms'. Geo. J. L. & Pub. Policy. 6 (2). SSRN1152102.
- Bogus, Carl T. (Winter 1998). 'The Hidden History of the Second Amendment'(PDF). U.C. Davis Law Review. 31 (2): 309–408.
- Breen, T. H. (1972). 'English Origins and New World Development: The Case of the Covenanted Militia in Seventeenth-Century Massachusetts'. Past & Present. 57 (1): 74. doi:10.1093/past/57.1.74.
- Charles, Patrick J. (2009). ''Arms for their defence?': An historical, legal, and textual analysis of the English right to have arms and whether the Second Amendment should be incorporated in McDonald v. City of Chicago'. Clev. St. L. Rev. 57 (3). SSRN1550768.
- Cramer, Clayton (June 15, 2007). 'The Racist Roots of Gun Control'. Libcom.org. Archived from the original on September 30, 2017.
- Davies, Ross (Winter 2008). 'Which is the Constitution'(PDF). Green Bag 2d. 11 (2): 209–16.
- Gunn, Steven H. (1998). 'A Lawyer's Guide to the Second Amendment'. BYU L. Rev. 35.
- Hardy, David (2007). 'Book Review: A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America'. Wm. & Mary Bill of Rts. J. 15. SSRN947334.
- Henigan, Denis (1991). 'Arms, Anarchy, and the Second Amendment'. Val. U. L. Rev. 26 (107).
- Heyman, Stephen (2000). 'Natural Rights and the Second Amendment'. Chi.-Kent. L. Rev. 76 (237).
- Kates Jr., Don B. (November 1983). 'Handgun Prohibition and the Original Meaning of the Second Amendment'. Mich. L. Rev. 82 (2): 204–73. doi:10.2307/1288537. JSTOR1288537.
- Konig, David Thomas (Spring 2004). 'The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of 'the Right of the People to Keep and Bear Arms''. Law and History Review. 22 (1): 120–59. doi:10.2307/4141667.
- Lund, Nelson. 'Heller and Second Amendment Precedent'. Lewis & Clark L. Rev. SSRN1235537.
- Malcolm, Joyce Lee (1986). 'Book Review: That Every Man Be Armed'. George Washington Law Review. 54.
- Malcolm, Joyce Lee (1993). 'The Role of the Militia in the Development of the Englishman's Right to be Armed – Clarifying the Legacy'. J. On Firearms & Pub. Pol'y. 5. Archived from the original on 23 August 2010.
- McAffee, Thomas B.; Quinlan, Michael J. (March 1997). 'Bringing Forward the Right to Keep and Bear Arms: Do Text, History, or Precedent Stand in the Way?'. N.C. L. Rev. Archived from the original on August 16, 2000.
- McClurg, Andrew (1999). 'Lotts' More Guns and Other Fallacies Infecting the Gun Control Debate'. J. Of Firearms & Pub. Pol'y. 11.
- Merkel, William (Summer 2009). 'Heller and Scalia's Originalism'. Lewis & Clark L. Rev. 13 (2). SSRN1422048.
- Rakove, Jack (2000). 'The Second Amendment: The Highest Stage of Originalism'. Chi.-Kent. L. Rev. 76.
- Reynolds, Glenn (1995). 'A Critical Guide to the Second Amendment'. Tenn. L. Rev. 62 (461). SSRN960788.
- Schmidt, Christopher (February 2007). 'An International Human Right to Keep and Bear Arms'. Wm. & Mary Bill of Rts. J. 15 (3): 983.
- Smith, Douglas (2008). 'The Second Amendment and the Supreme Court'. Geo. J.L. & Pub. Pol'y. 6. SSRN1093751.
- Volokh, Eugene (1998). 'The Commonplace Second Amendment'. NYU L. Rev. 73 (793).
- Volokh, Eugene (November – December 1998). 'Testimony of Eugene Volokh on the Second Amendment, Senate Subcommittee on the Constitution, September 23, 1998'. Cal. Pol. Rev.
- Weisselberg, Charles D. (2009). 'Selected Criminal Law Cases in the Supreme Court's 2007–2008 Term, and a Look Ahead'(PDF). Court Review. 44.
- Winkler, Adam (February 2007). 'Scrutinizing the Second Amendment'. Mich. L. Rev. 105.
- Winkler, Adam (June 2009). 'Heller's Catch 22'. UCLA L. Rev. 56. SSRN1359225.
Other publications[edit]
- Maer, Lucinda; Gay, Oonagh (2009). 'The Bill of Rights 1689'. Parliament and Constitution Centre.
Further reading[edit]
- Tahmassebi, S. B. (1991). 'Gun Control and Racism'. George Mason University Civil Rights Law Journal. 2 (1): 67–100. Archived from the original on August 16, 2000.
External links[edit]
Wikiquote has quotations related to: Second Amendment to the United States Constitution |
- Works related to United States Bill of Rights at Wikisource
- 'District of Columbia v. Heller'.
- 'National Archives Scanned Image of the Bill of Rights, including the Second Amendment'.
- The short film Big Picture: To Keep and Bear Arms is available for free download at the Internet Archive
- Volokh, Eugene (ed.). 'State Constitutional Right to Keep and Bear Arms Provisions'. UCLA Law School.