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Second Amendment to the United States Constitution
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The Bill of Rights in the National ArchivesThe Second Amendment (Amendment II) to the United States Constitution is a part of the United States Bill of Rights that protects the pre-existing individual right to possess and carry weapons (i.e. "keep and bear arms") in case of confrontation.[1] Codification of the right to keep and bear arms into the Bill of Rights was influenced by a fear that the federal government would disarm the people in order to impose rule through a standing army or select militia,[2] since history had shown the way tyrants eliminated resistance to suppression of political opponents was to simply take away the people's arms and make it an offense to keep them.[3] In District of Columbia v. Heller, the Supreme Court ruled that self-defense is a central component of the right.[4]

Before the Heller decision on June 26, 2008, there was much disagreement as to whether it protected a collective right or an individual right, because the amendment begins with a prefatory clause that refers to a "well regulated militia."[5][6] Previously, the Supreme Court did not address the amendment directly, or did so in limited or ambiguous terms.

Because Heller did not involve a state, uncertainty remains concerning whether the Second Amendment applies to state and local jurisdictions by way of incorporation through the Fourteenth Amendment.[7][8]

Contents [hide]
1 Text
2 History
2.1 Origin of the right
2.2 English Common Law
2.3 Early commentary
3 Adoption
3.1 State ratification conventions
3.2 Conflict and compromise
3.3 Historical sources
4 Case law
4.1 Early commentary in state courts
4.2 Antebellum and Reconstruction
4.3 U.S. Supreme Court
4.3.1 District of Columbia v. Heller
4.3.2 United States v. Miller
4.3.3 Presser v. Illinois
4.3.4 United States v. Cruikshank
5 Presidential administrations
6 Congressional legislation
6.1 National Firearms Act
6.2 Federal Firearms Act
6.3 Post-assassination
6.4 Gun Control Act
6.5 McClure-Volkmer Act
6.6 Brady Handgun Violence Prevention Act
7 Notes
8 See also
9 External links



[edit] Text
The Second Amendment, as passed by the House and Senate, reads:

? A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. ?

The original and copies distributed to the states, and then ratified by them, had different capitalization and punctuation:

? 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. ?

Both versions are commonly used in official government publications. The original hand-written copy of the Bill of Rights, approved by the House and Senate, was prepared by scribe William Lambert and hangs in the National Archives. In District of Columbia v. Heller, the Supreme Court cites the House and Senate text.[9]

The Second Amendment is the only Constitutional amendment that has a prefatory clause. However, such constructions were widely used elsewhere.[6]


[edit] History

[edit] Origin of the right
The concept of a universal militia originated in England.[10][11][12] The requirement that subjects bear arms and serve military duty,[13][14][15][16] dates back to at least the 12th century when King Henry II obligated all freemen to bear arms for public defense (see Assize of Arms). At that time, it was customary for a soldier to purchase, maintain, keep, and bring his own armor and weapon for military service. This was of such importance that Crown officials gave periodic inspections to guarantee a properly armed militia. King Henry III required every subject between the ages of fifteen and fifty (including non-land owning subjects) to own a weapon other than a knife. The reason for such a requirement was that in the absence of a regular army and police force (which was not established until 1829), it was the duty of every man to keep watch and ward at night to capture and confront suspicious persons. Every subject had an obligation to protect the king?s peace and assist in the suppression of riots.[17] This remained relatively unchanged until 1671, when Parliament created a statute that drastically raised the property qualifications needed to possess firearms. In essence, this statute disarmed all but the very wealthy. In 1686, King James II banned without exception the Protestants' ability to possess firearms, even while Protestants constituted over 95% of the English subjects. Not until 1689, with the rise of William of Orange, was this reversed by the English Bill of Rights which declared that "Subjects which are Protestants may have Arms for their defence suitable to their Conditions, and as allowed by Law".


[edit] English Common Law
As British subjects, Protestant colonists had a conditional right to possess arms according to the English Bill of Rights of 1689.

That the subjects which are Protestants may have Arms for their Defence suitable to their Conditions, and as allowed by Law.[18]

The rights of British subjects to possess arms was recognized under English common law. Sir William Blackstone's Commentaries on the Laws of England, were highly influential and were used as a reference and text book for English Common Law. In his Commentaries, Blackstone described the right to arms.

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.[19]

The rights of the Colonists to possess arms was stated in Revolutionary era newspaper articles. Notably a Boston Journal of the Times printed in April 13, 1769.

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.[20]

John Adams, lead defense attorney for the British soldiers on trial for the Boston Massacre stated at the trial:

Here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defense, not for offence?[21]

When Colonists protested British efforts to disarm their militias in the early phases of the American Revolution, colonists cited the Declaration of Rights, Blackstone's summary of the Declaration of Rights, their own militia laws, and common law rights to self-defense. While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the militia, there is no evidence that the British sought to restrict the traditional common law right of self-defense. Indeed, in his arguments on behalf of British troops in the Boston Massacre, John Adams invoked the common law of self-defense.[22] Thomas B. McAffee & Michael J. Quinlan stated "? 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."[23]

Prior to Heller, others sometimes perceived a distinction between the right to bear arms and the right to self-defense; Robert Spitzer stated: "?the matter of personal or individual self-defense, whether from wild animals or modern-day predators, does not fall within, nor is it dependent on, the Second Amendment rubric. Nothing in the history, construction, or interpretation of the Amendment applies or infers such a protection. Rather, legal protection for personal self-defense arises from the British common law tradition and modern criminal law; not from constitutional law."[24] Heyman has similarly argued that the common law right of self defense was legally distinct from the right to bear arms.[25] In District of Columbia v. Heller, however, the Supreme Court ruled that self-defense is a central component of the right.[4]


[edit] Early commentary
The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker, also known as The American Blackstone. He annotated a five-volume edition of Sir William Blackstone's Commentaries on the Laws of England (discussed at length later, under Colonial Rights), published in Philadelphia in 1803, for American use; it formed, in many cases, the sole legal written works read by many early American attorneys.[26] Tucker was a leading Jeffersonian constitutional theorist and was widely read, even by those who rejected his interpretation of the Constitution.

In footnotes 40 and 41, he wrote: "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. The commentator himself informs us, 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."[26] Blackstone discussed the right of individual self defense in a separate section of his treatise on the common law of crimes. Tucker's annotations for that latter section made no mention of the Second Amendment but cited the standard works of English jurists such as Hawkins.[27]

Further, Tucker writes of the English Bill of Rights:

The bill of rights, 1 W. and M, says Mr. Blackstone, (Vol. 1 p. 143), secures to the subjects of England the right of having arms for their defence, suitable to their condition and degree. In the construction of these game laws it seems to be held, that no person who is not qualified according to law to kill game, hath any right to keep a gun in his house. Now, as no person, (except the game-keeper of a lord or lady of a manor) is admitted to be qualified to kill game, unless he has 100l. per annum, &c. it follows that no others can keep a gun for their defence; so that the whole nation are completely disarmed, and left at the mercy of the government, under the pretext of preserving the breed of hares and partridges, for the exclusive use of the independent country gentlemen. In America we may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.[26]