Microsoft Word - Volume 28 - 101 - title page (i-ii).docx

126

Whether the Second Amendment

Secures an Individual Right

The Second Amendment secures a right of individuals generally, not a right of states or a right

restricted to persons serving in militias.

August 24, 2004

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

I. The Unsettled Legal Landscape ....................................................................... 128



II. Textual and Structural Analysis...................................................................... 136

A. “The Right of the People” ....................................................................... 136

B. “To Keep and Bear Arms” ...................................................................... 139

1. “To Keep . . . Arms” ......................................................................... 140

2. “To . . . Bear Arms” .......................................................................... 142

C. “A Well Regulated Militia, Being Necessary to the Security of a Free

State” ...................................................................................................... 144

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1. The Limits of Prefatory Language .................................................... 145

2. The “Militia” ..................................................................................... 149

3. The “Well Regulated” Militia ........................................................... 154

4. The “Security of a Free State” .......................................................... 157

D. Structural Considerations ........................................................................ 161

1. The Bill of Rights ............................................................................. 161

2. The Militia Powers ............................................................................ 163

III. The Original Understanding of the Right to Keep and Bear Arms ............... 165

A. The Right Inherited From England ......................................................... 166

B. The Right in America Before the Framing .............................................. 174

1. The Experience of the Revolution .................................................... 174

2. Early Constitutional Recognition of the Right .................................. 179

C. The Development of the Second Amendment ......................................... 185

1. Recommendations From the Ratification of the Original

Constitution ...................................................................................... 186

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2. The Drafting and Ratification of the Second Amendment ................ 193

IV. The Early Interpretations .............................................................................. 203

A. The First Commentators .......................................................................... 204

B. The First Cases ........................................................................................ 210

1. Cases Before 1840 ............................................................................ 210

2. Cases From 1840 to the Civil War .................................................... 213

C. Reconstruction ......................................................................................... 223

D. Beyond Reconstruction ........................................................................... 226

V. Conclusion ...................................................................................................... 230

Whether the Second Amendment Secures an Individual Right

127

The Second Amendment of the Constitution provides: “A well regulated Mili-

tia, being necessary to the security of a free State, the right of the people to keep

and bear Arms, shall not be infringed.” You have asked for the opinion of this

Office on one aspect of the right secured by this Amendment. Specifically, you

have asked us to address the question whether the right secured by the Second

Amendment belongs only to the states, only to persons serving in state-organized

militia units like the National Guard, or to individuals generally. This memoran-

dum memorializes and expands upon advice that this Office provided to you on

this question in 2001.

As relevant to the question addressed herein, courts and commentators have

relied on three different interpretations of the Second Amendment. Under the

“individual right” view, the Second Amendment secures to individuals a personal

right to keep and to bear arms, whether or not they are members of any militia or

engaged in military service or training. According to this view, individuals may

bring claims or raise challenges based on a violation of their rights under the

Second Amendment just as they do to vindicate individual rights secured by other

provisions of the Bill of Rights.

Under the “collective right” view, the Second

Amendment is a federalism provision that provides to states a prerogative to

establish and maintain armed and organized militia units akin to the National

Guard, and only states may assert this prerogative.

Finally, there is a range of

intermediate views according to which the Amendment secures a right only to

select persons to keep and bear arms in connection with their service in an

organized state militia such as the National Guard. Under one typical formulation,

individuals may keep arms only if they are “members of a functioning, organized

state militia” and the state has not provided the necessary arms, and they may bear

arms only “while and as a part of actively participating in” that militia’s activities.

In essence, such a view would allow a private cause of action (or defense) to some

persons to vindicate a state’s power to establish and maintain an armed and

organized militia such as the National Guard.

We therefore label this group of

intermediate positions the “quasi-collective right” view.

The Supreme Court has not decided among these three potential interpretations,

and the federal circuits are split. The Executive Branch has taken different views

over the years. Most recently, in a 2001 memorandum to U.S. Attorneys, you

endorsed the view that the Second Amendment protects a “‘right of individuals,

including those not then actually a member of any militia or engaged in active

military service or training, to privately possess and bear their own firearms’” but

allows for “reasonable restrictions” designed “to prevent unfit persons from

See, e.g., United States v. Emerson, 270 F.3d 203, 220, 260 (5th Cir. 2001).

See, e.g., Silveira v. Lockyer, 312 F.3d 1052, 1060–61, 1086–87 (9th Cir. 2002).

Emerson, 270 F.3d at 219 (describing intermediate view); see also, e.g., Cases v. United States,

131 F.2d 916, 923 (1st Cir. 1942).

See, e.g., United States v. Parker, 362 F.3d 1279, 1283 (10th Cir. 2004).

Opinions of the Office of Legal Counsel in Volume 28

128

possessing firearms or to restrict possession of firearms particularly suited to

criminal misuse.”

As developed in the analysis below, we conclude that the Second Amendment

secures a personal right of individuals, not a collective right that may only be

invoked by a state or a quasi-collective right restricted to those persons who serve

in organized militia units. Our conclusion is based on the Amendment’s text, as

commonly understood at the time of its adoption and interpreted in light of other

provisions of the Constitution and the Amendment’s historical antecedents. Our

analysis is limited to determining whether the Amendment secures an individual,

collective, or quasi-collective right. We do not consider the substance of that right,

including its contours or the nature or type of governmental interests that would

justify restrictions on its exercise, and nothing in this memorandum is intended to

address or call into question the constitutionality, under the Second Amendment,

of any particular limitations on owning, carrying, or using firearms.

This memorandum proceeds in four parts. Part I addresses the current unsettled

state of the law in this area. Part II demonstrates that the text and structure of the

Constitution support the individual right view of the Second Amendment. Part III

shows why this view finds further support in the history that informed the

understanding of the Second Amendment as it was written and ratified. Finally,

Part IV examines the views of commentators and courts closest to the Second

Amendment’s adoption, which reflect an individual right view, and then concludes

by describing how the modern alternative views of the Second Amendment took

hold in the early twentieth century.

I. The Unsettled Legal Landscape

Recent interpretations of the Second Amendment have been characterized by

disagreement and uncertainty. The Supreme Court has not decided the question

that we address here, and at least three views prevail in the federal courts of

appeals. The Executive Branch has taken varying positions, and the Amendment

has been the subject of extensive academic debate for the past two decades.

The Supreme Court’s most important decision on the meaning of the Second

Amendment, United States v. Miller,

grew out of the enactment of the National

Firearms Act of 1934.

That Act was the first federal regulation of private

Memorandum for United States Attorneys from the Attorney General, Re: United States v. Emer-

son (Nov. 9, 2001) (quoting Emerson, 270 F.3d at 260), reprinted in Brief for the United States in

Opposition, App., Emerson v. United States, 536 U.S. 907 (2002) (No. 01-8780) (denying certiorari).

You added that the Department of Justice “can and will continue to defend vigorously the constitution-

ality, under the Second Amendment, of all existing federal firearms laws.”

307 U.S. 174 (1939).

Ch. 757, 48 Stat. 1236.

Whether the Second Amendment Secures an Individual Right

129

firearms.

It taxed (and thereby registered) transfers of sawed-off shotguns or rifles

capable of being concealed, machine guns, and silencers. It also taxed dealers in

such weapons and required anyone who possessed such a weapon acquired before

1934 to register it with federal tax authorities.

A Second Amendment challenge to this Act produced Miller in 1939, the clos-

est that the Supreme Court has come to interpreting the substance of the Amend-

ment. Miller and a co-defendant were indicted for transporting an unregistered

sawed-off shotgun in interstate commerce from Oklahoma to Arkansas, and the

district court sustained their Second Amendment challenge to the indictment. On

appeal by the government, neither defendant appeared or filed a brief.

The Court,

in reversing and remanding, held that the sawed-off shotgun was not among the

“Arms” protected by the Second Amendment absent “evidence tending to show

that” its use or possession “at this time has some reasonable relationship to the

preservation or efficiency of a well regulated militia.” Citing an 1840 decision of

the Tennessee Supreme Court, Aymette v. State, the Court concluded that it was

not “within judicial notice” that a sawed-off shotgun was a weapon that was “any

part of the ordinary military equipment” or whose use “could contribute to the

common defence.” Absent evidence, therefore, the Court could not “say that the

Second Amendment guarantees the right to keep and bear such an instrument.”

After this one-paragraph discussion, the Court quoted the powers that Article I,

Section 8, Clauses 15 and 16 of the Constitution grant to Congress to provide for

calling forth, organizing, arming, and disciplining “the Militia,” and stated that the

Second Amendment’s “declaration and guarantee” were made “[w]ith obvious

purpose to assure the continuation and render possible the effectiveness of” the

militia, and that the Amendment “must be interpreted and applied with that end in

view.”

The Court then added a historical discussion demonstrating that “the term

Militia” as used in various provisions of the Constitution, including the Second

Amendment, referred to a body that “comprised all males physically capable of

acting in concert for the common defense,” who “were expected to appear” for

occasional training “bearing arms supplied by themselves and of the kind in

common use at the time,” which in the 1700s usually meant a “good” musket of

proper length.

Miller did not resolve the question addressed in this memorandum. Although

the meaning of the decision is much debated, three points appear evident. First, the

See National Firearms Act: Hearings on H.R. 9066 Before the House Comm. on Ways and

Means, 73d Cong. 90 (1934) (statement of Ass’t Att’y Gen. Keenan); United States v. Lopez, 2 F.3d

1342, 1348 (5th Cir. 1993), aff’d, 514 U.S. 549 (1995).

307 U.S. at 175–77.

Id. at 178 (citing Aymette v. State, 21 Tenn. (2 Hum.) 154, 158 (1840)). We discuss Aymette be-

low in Part IV.B.2.

Id.

Id. at 179; see id. at 179–82 (describing militia regulations, including arms requirements).

Opinions of the Office of Legal Counsel in Volume 28

130

holding was limited to the meaning of “Arms” in the Second Amendment and

whether a sawed-off shotgun is among the arms protected. In determining that

meaning, the Court also interpreted the term “Militia” as used in the Constitution.

Second, the Court did not categorically reject Miller’s Second Amendment

challenge. The Court’s decision to address the substance of this challenge to his

indictment, as opposed to concluding that only states could bring such a challenge,

appears to be inconsistent with a collective right view.

Finally, the Court did not clearly decide between the individual right and quasi-

collective right views. Its holding regarding the meaning of “Arms” is consistent

with either view: The Court’s limitation of “Arms” to those weapons reasonably

related to the preservation or efficiency of a well-regulated militia (such as those

that are “part of the ordinary military equipment” or that “could contribute to the

common defense”) could be consistent with a right to “keep and bear” such arms

that is restricted to service in an organized military unit such as the National

Guard; but that holding is also consistent with an individual right to keep and bear

whatever “Arms” the Amendment protects. Similarly, the Court’s reference to the

need to interpret the Second Amendment’s “declaration and guarantee” with the

“end in view” of furthering “the continuation and render[ing] possible the

effectiveness of” the militia could be consistent with a quasi-collective right view;

but it is also consistent with the understanding of the relationship between an

individual right to keep and bear arms and the “Militia” that prevailed at the time

of the Founding, an understanding confirmed by early authorities’ discussions of

the Second Amendment’s preface.

Even so, absent from the Court’s opinion in Miller was any discussion of

whether the defendants were members of the National Guard or any other

organized military force, whether they were transporting the shotgun in the service

of such a force, or whether they were “physically capable of” bearing arms in one

and thus even eligible for service. The nature of the weapon at issue, not of the

defendants or their activities, appeared to be the key fact, and this aspect of the

opinion tends to point toward the individual right view rather than the quasi-

collective right view. In addition, Miller’s broad reading of “Militia” is most

consistent with the individual right view, as we explain below in Part II.C.2, and is

in tension with the quasi-collective right view, under which the militia is under-

stood to refer to select military units, akin to the modern National Guard, orga-

nized and armed by the states.

See below Parts II.C (discussing Second Amendment’s preface), III.B–C (discussing Founders’

recognition that the individual right to arms furthered the citizen militia), IV.A (discussing early

commentators), IV.B.2 (discussing early cases), IV.D (discussing views of Thomas Cooley soon after

Civil War).

Later opinions of the Supreme Court appear to accept the individual right view, at least in dicta,

although none is dispositive. In Johnson v. Eisentrager, 339 U.S. 763 (1950), the Court rejected a

claim that the Fifth Amendment’s criminal procedure protections applied to nonresident enemy aliens

by pointing out, among other things, that a contrary view would require also applying the “companion

Whether the Second Amendment Secures an Individual Right

131

Three years after Miller, in Cases v. United States, the First Circuit read Miller

to turn solely on the type of weapon at issue and to suggest an individual right

view of the Second Amendment: “Apparently, then, under the Second Amendment

[as interpreted in Miller], the federal government . . . cannot prohibit the posses-

sion or use of any weapon which has any reasonable relationship to the preserva-

tion or efficiency of a well regulated militia.” But the court doubted that Miller

“was attempting to formulate a general rule applicable to all cases,” warned of the

consequences of such a view, and asserted that it was “unlikely that the framers of

the Amendment intended any such result.”

The court, instead, adopted what

amounted to a quasi-collective right view: A person has no right under the Second

Amendment unless he is “a member of a[] military organization” or uses his

weapon “in preparation for a military career,” thus “contributing to the efficiency

of the well regulated militia.”

Neither in support of its assertion about the

Framers’ intent nor in its paragraph fashioning this rule did the court cite any text

or other authority.

Also in 1942, the Third Circuit in United States v. Tot applied Miller’s defini-

tion of “Arms” to affirm the conviction of a defendant who received a pistol in

interstate commerce after having been convicted of a felony involving violence.

Alternatively, the court rested its affirmance on the ground that the government

may prohibit such a convict from possessing a firearm.

Although either of these

civil-rights Amendments” in the Bill of Rights, including the Second Amendment. Id. at 784 (“during

military occupation irreconcilable enemy elements, guerrilla fighters, and ‘werewolves’ could require

the American Judiciary to assure them freedoms of speech, press, and assembly as in the First

Amendment, right to bear arms as in the Second, security against ‘unreasonable’ searches and seizures

as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments”). In Konigsberg v.

State Bar of Cal., 366 U.S. 36 (1961), the Court, citing Miller, again equated the Second Amendment

right with the rights secured by the First Amendment. Id. at 49 n.10. More recent cases have assumed

an individual right in dicta by listing the Second Amendment right among the personal rights

composing the “liberty” that the Constitution’s due process provisions protect. See Planned Parent-

hood v. Casey, 505 U.S. 833, 847 (1992); Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977)

(plurality opinion) (quoting Poe v. Ullman, 367 U.S. 497, 542–43 (1961) (Harlan, J., dissenting)); id. at

542 (White, J., dissenting) (same as plurality). But see Adams v. Williams, 407 U.S. 143, 150 (1972)

(Douglas, J., dissenting) (“A powerful lobby dins into the ears of our citizenry that these gun purchases

are constitutional rights protected by the Second Amendment,” but “[t]here is no reason why all pistols

should not be barred to everyone except the police.”). The Court in Lewis v. United States, 445 U.S. 65

(1980), rejected an equal protection challenge to a prohibition against felons possessing firearms. In a

one-sentence footnote explaining why it was applying rational basis review, the Court stated that such a

prohibition is not “based upon constitutionally suspect criteria” and does not “trench upon any

constitutionally protected liberties.” Id. at 65 n.8. Although this language is consistent with the view

that the Second Amendment does not secure a right of individuals, it is also consistent with the tradi-

tional understanding of the individual right view that the liberty protected by the Second Amendment

does not extend to convicted felons. See notes 19 & 29 below, and the discussions referenced therein.

131 F.2d 916, 922 (1st Cir. 1942).

Id. at 923.

131 F.2d 261, 266 (3d Cir. 1942), rev’d on other grounds, 319 U.S. 463 (1943).

Id. The same ground appears to have been available in Cases. See id., 131 F.2d at 919 n.1.

Opinions of the Office of Legal Counsel in Volume 28

132

views is consistent with an individual right,

Tot added, in apparent dicta, a one-

paragraph historical discussion in support of the view that the Amendment “was

not adopted with individual rights in mind, but as a protection for the states in the

maintenance of their militia organizations against possible encroachments by the

federal power.”

The court did not address the Amendment’s text but instead

chiefly relied on the Aymette case’s account of the right that emerged from the

English Revolution of 1688–1689.

Over the past few decades, the Executive Branch has taken differing views of

the right secured by the Second Amendment.

In 1941, President Roosevelt signed

legislation authorizing requisitions of private property for war use that prohibited

requisitioning or new registration “of any firearms possessed by any individual for

his personal protection or sport” and, moreover, any impairing or infringing of

“the right of any individual to keep and bear arms.”

In 1959, this Office reviewed

a bill that would have secured the custody and disposition of missiles, rockets, and

earth satellites. We questioned its definition of “missile,” which included “projec-

tile” and “seems to include conventional ammunition,” and we commented that if

the bill purported “to prohibit private individuals from acquiring, possessing, or

receiving any standard ammunition for firearms . . . . serious constitutional

problems would arise under the Second Amendment.”

In commenting on similar

bills in 1961 and 1962, this Office cited and reaffirmed its 1959 memorandum.

Regarding violent felons, although the case involved possession, the court relied on authority for

regulating the bearing of arms (banning carrying weapons concealed or to the terror of the people). For

more on-point authority, see proposals made during the ratifying conventions, discussed below in Part

III.C.1, and Emerson, 270 F.3d at 226 n.21; cf. Lewis, 445 U.S. at 65 n.8 (rejecting equal protection

challenge to prohibition of felon possessing a firearm); Richardson v. Ramirez, 418 U.S. 24, 53–55

(1974) (holding constitutional the disenfranchisement of convicted felons who had completed their

sentences and paroles).

131 F.2d at 266. The court cited some history from the Founding Era, which we address in Part

III.C.1.

We have not conducted a review of the government’s litigating positions in the numerous fire-

arms cases since Miller. In its brief in Miller, the government made two alternative arguments. The first

was consistent with a quasi-collective right view. See Brief for United States at 9–18, United States v.

Miller, 307 U.S. 174 (1939) (No. 696). The second (which the Court adopted) was consistent with

either a quasi-collective or individual right view. See id. at 18–20. Its present litigating position appears

to be consistent with your 2001 memorandum to U.S. Attorneys endorsing the individual right view.

See, e.g., United States v. Lippman, 369 F.3d 1039, 1045 (8th Cir. 2004) (Colloton, J., concurring in

part and concurring in the judgment).

Property Requisition Act, ch. 445, § 1, 55 Stat. 742, 742.

Memorandum for Lawrence E. Walsh, Deputy Attorney General, from Paul A. Sweeney, Acting

Assistant Attorney General, Office of Legal Counsel, Re: H.R. 232, 86th Cong., 1st Sess., a bill “To

provide for the securing of custody and disposition by the United States of missiles, rockets, earth

satellites, and similar devices adaptable to military uses, and for other purposes” at 1–2 (Apr. 9, 1959)

(emphasis added).

See Memorandum for Byron R. White, Deputy Attorney General, from Nicholas deB. Katzen-

bach, Assistant Attorney General, Office of Legal Counsel, Re: H.R. 2057, a bill to provide for the

securing of custody and disposition by the United States of missiles, rockets, earth satellites, and

Whether the Second Amendment Secures an Individual Right

133

1965, however, the Justice Department expressly adopted the collective right

interpretation in congressional testimony by Attorney General Katzenbach.

Soon after, in 1968, Congress passed the first major federal gun regulation

since 1938, the Omnibus Crime Control and Safe Streets Act.

This statute

produced a flurry of decisions in the federal courts of appeals rejecting the

individual right view. Following the Third Circuit’s dicta in Tot, the Fourth, Sixth,

Seventh, and Ninth Circuits eventually adopted the collective right view.

Following the First Circuit in Cases, the Eighth, Tenth, and Eleventh Circuits

adopted quasi-collective right views.

As in Tot and Cases, many of these cases,

particularly the initial ones, involved constitutional challenges by persons con-

victed of felonies or violent crimes,

and some involved challenges to restrictions

similar devices adaptable to military use (May 8, 1961); Memorandum for Byron R. White, Deputy

Attorney General, from Nicholas deB. Katzenbach, Assistant Attorney General, Office of Legal

Counsel, Re: Proposed report of the Department of Defense on H.R. 2057 “To provide for the securing

of custody and disposition by the United States of missiles, rockets, earth satellites and similar devices

adaptable to Military uses, and for other purposes” at 1 (Mar. 22, 1962).

See Federal Firearms Act: Hearings Before the Subcomm. to Investigative Juvenile Delinquency

of the Senate Comm. on the Judiciary, 89th Cong. 40–41 (1965) (statement of Attorney General

Katzenbach). For subsequent treatment of the Second Amendment, see, e.g., Memorandum for Richard

G. Kleindienst, Deputy Attorney General, from William H. Rehnquist, Assistant Attorney General,

Office of Legal Counsel, Re: Proposed “Federal Gun Registration and Licensing Act of 1969” (Feb.

19, 1969) (in one-sentence discussion, citing Miller and Tot to find no “serious legal obstacle” under

Amendment to proposal for federal registration of firearms and limited federal licensing); Memoran-

dum for D. Lowell Jensen, Assistant Attorney General, Criminal Division, from Theodore B. Olson,

Assistant Attorney General, Office of Legal Counsel, Re: Proposed Legislation Relating to Firearms

and to Mandatory Sentencing, at 2 (May 27, 1981) (citing Miller as basis for “perceiv[ing] no basis for

suggesting that the [1968 Gun Control] Act so interferes with the powers of the States to raise militias

as to transgress the Second Amendment”); Firearm Owners’ Protection Act, Pub. L. No. 99-308,

§ 1(b)(1)(A), 100 Stat. 449, 449 (1986), codified at 18 U.S.C. § 921 note (2000) (law signed by

President Reagan that recognized “the right[] of citizens . . . to keep and bear arms under the second

amendment”).

Pub. L. No. 90-351, 82 Stat. 197.

See, e.g., Love v. Pepersack, 47 F.3d 120, 122–24 (4th Cir. 1995); United States v. Warin, 530

F.2d 103, 105–07, 108 (6th Cir. 1976) (dismissing “the erroneous supposition that the Second Amend-

ment is concerned with the rights of individuals rather than those of the States” and rejecting claim

involving gun admittedly bearing reasonable relationship to preservation or efficiency of the army);

Gillespie v. City of Indianapolis, 185 F.3d 693, 710–11 (7th Cir. 1999); Hickman v. Block, 81 F.3d 98,

99–102 (9th Cir. 1996). The Third Circuit’s present position is at least the quasi-collective right view,

if not the collective right view. See United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996).

See, e.g., United States v. Hale, 978 F.2d 1016, 1019–20 (8th Cir. 1992); United States v. Oakes,

564 F.2d 384, 387 (10th Cir. 1977); United States v. Wright, 117 F.3d 1265, 1272–74 (11th Cir. 1997),

vacated in part on other grounds, 133 F.3d 1412 (1998). These courts make clear that the right under

the quasi-collective right view protects only members of organized militia units such as the National

Guard, not members of the “militia” defined more broadly. Oakes, for example, rejected a claim based

on the defendant’s membership in the Kansas militia, which consisted of all able-bodied men between

twenty-one and forty-five. 564 F.2d at 387; see also Wright, 117 F.3d at 1271–74 (similar); Hale, 978

F.2d at 1020 (similar); Warin, 530 F.2d at 105, 106, 108 (similar).

See, e.g., United States v. Baer, 235 F.3d 561, 564 (10th Cir. 2000); Gillespie, 185 F.3d at 710–

11; Marchese v. California, 545 F.2d 645, 646 (9th Cir. 1976); United States v. Johnson, 497 F.2d 548,

Opinions of the Office of Legal Counsel in Volume 28

134

on carrying concealed weapons.

These decisions did not analyze, at least not in

depth, the Amendment’s text or history. Rather, they relied on Tot or Cases (or

their progeny), claimed support from Miller, or both. As the Ninth Circuit recently

recognized in the course of adhering to its collective right position, these earlier

decisions reached their conclusions “with comparatively little analysis,” “largely

on the basis of the rather cursory discussion in Miller, and touched only briefly on

the merits of the debate.”

In contrast, the burgeoning scholarly literature on the Second Amendment in

the past two decades has explored the meaning of the Second Amendment in great

detail. The collective right and quasi-collective right positions have many

adherents,

although the preponderance of modern scholarship appears to support

the individual right view.

550 (4th Cir. 1974) (per curiam); Cody v. United States, 460 F.2d 34, 35–37 (8th Cir. 1972); Stevens v.

United States, 440 F.2d 144, 149 (6th Cir. 1971); United States v. Synnes, 438 F.2d 764, 766 (8th Cir.

1971), vacated on other grounds, 404 U.S. 1009 (1972). Courts have recognized that such holdings

could be consistent with an individual right view. See United States v. Price, 328 F.3d 958, 961 (7th

Cir. 2003); supra note 19 (discussing Tot); cf. Emerson, 270 F.3d at 261 (upholding prohibition on

possession of firearm by person subject to domestic violence restraining order by concluding that

Amendment protected an individual right but finding no violation); Lippman, 369 F.3d at 1044–45

(Colloton, J.) (similar).

See Hickman, 81 F.3d at 99–103; Thomas v. Members of City Council of Portland, 730 F.2d 41,

42 (1st Cir. 1984) (per curiam). Courts have recognized that such holdings also could be consistent

with an individual right view. See Parker, 362 F.3d at 1285–86 (Kelly, J., concurring) (arguing for

upholding conviction on narrower ground that case involved reasonable restriction on concealed

weapons, and criticizing circuit courts, in interpreting Second Amendment, for ignoring “the universal

admonition to decide constitutional issues narrowly”); Part IV.B.2 (discussing cases recognizing indi-

vidual right but rejecting right to carry concealed weapons).

Silveira, 312 F.3d at 1063–64 & n.11.

For a symposium of articles spanning the views, see The Second Amendment Today: Historical

and Contemporary Perspectives on the Constitutionality of Firearms Regulation, 29 N. Ky. L. Rev.

643 (2002), and for articles critical of the individual right view, see Symposium on the Second

Amendment: Fresh Looks, 76 Chi.-Kent L. Rev. 3 (2000). See also, e.g., Garry Wills, A Necessary

Evil: A History of American Distrust of Government 207–21, 256–60 (1999); Andrew D. Herz, Gun

Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility, 75 B.U. L. Rev.

57 (1995); Richard M. Aborn, Essay, The Battle Over the Brady Bill and the Future of Gun Control

Advocacy, 22 Fordham Urb. L.J. 417 (1995); Carl T. Bogus, Essay, Race, Riots, and Guns, 66 S. Cal.

L. Rev. 1365 (1993); Dennis A. Henigan, Arms, Anarchy and the Second Amendment, 26 Val. U. L.

Rev. 107 (1991); Wendy Brown, Comment, Guns, Cowboys, Philadelphia Mayors, and Civic Repub-

licanism: On Sanford Levinson’s The Embarrassing Second Amendment, 99 Yale L.J. 661 (1989);

Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You

Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5 (1989); Samuel Fields, Guns, Crime and the

Negligent Gun Ownerin, 10 N. Ky. L. Rev. 141 (1982); Warren Spannaus, State Firearms Regulation

and the Second Amendment, 6 Hamline L. Rev. 383 (1983); cf. David Yassky, The Second Amendment:

Structure, History, and Constitutional Change, 99 Mich. L. Rev. 588 (2000); David C. Williams, Civic

Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale L.J. 551, 554–55

(1991).

See, e.g., 1 Laurence H. Tribe, American Constitutional Law 900 & 902 n.221 (3d ed. 2000);

Nelson Lund, The Ends of Second Amendment Jurisprudence: Firearms Disabilities and Domestic

Violence Restraining Orders, 4 Tex. Rev. L. & Pol. 157 (1999); Leonard W. Levy, Origins of the Bill

Whether the Second Amendment Secures an Individual Right

135

Recent decisions of the Fifth and Ninth Circuits have begun to remedy the

relatively sparse judicial analysis of the meaning of the Second Amendment. In

2001, the Fifth Circuit in United States v. Emerson adopted the individual right

view, based on an extensive analysis of the Amendment’s text and history.

The

following year, the Ninth Circuit in Silveira v. Lockyer rejected Emerson with an

extended counter-analysis and reaffirmed its adherence to the collective right

view.

Six members of the Ninth Circuit dissented from denial of rehearing en

banc and endorsed an individual right view.

In sum, the question of who possesses the right secured by the Second

Amendment remains open and unsettled in the courts and among scholars.

Accordingly, we turn to the Amendment’s text, as commonly understood at the

time of its adoption and interpreted in light of other provisions of the Constitution

and the Amendment’s historical antecedents, to discern its proper meaning.

of Rights 134 (1999); Ronald S. Resnick, Private Arms as the Palladium of Liberty: The Meaning of

the Second Amendment, 77 U. Det. Mercy L. Rev. 1 (1999); Brannon P. Denning, Gun Shy: The

Second Amendment as an “Underenforced Constitutional Norm,” 21 Harv. J.L. & Pub. Pol’y 719

(1998); L.A. Powe, Jr., Guns, Words, and Constitutional Interpretation, 38 Wm. & Mary L. Rev. 1311

(1997); Nelson Lund, The Past and Future of the Individual’s Right to Arms, 31 Ga. L. Rev. 1 (1996);

Randy E. Barnett & Don B. Kates, Under Fire: The New Consensus on the Second Amendment, 45

Emory L.J. 1139 (1996); Glenn Harlan Reynolds & Don B. Kates, The Second Amendment and States’

Rights: A Thought Experiment, 36 Wm. & Mary L. Rev. 1737 (1995); David B. Kopel, It Isn’t About

Duck Hunting: The British Origin of the Right to Arms, 93 Mich. L. Rev. 1333, 1355 (1995); William

Van Alstyne, Essay, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236;

Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (1994);

Clayton E. Cramer, For the Defense of Themselves and the State: The Original Intent and Judicial

Interpretation of the Right to Keep and Bear Arms (1994); Akhil Reed Amar, The Bill of Rights as a

Constitution, 100 Yale L.J. 1131, 1162–68 (1991); Robert J. Cottrol & Raymond T. Diamond, The

Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309 (1991); Sanford

Levinson, Comment, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989); Nelson Lund,

The Second Amendment, Political Liberty, and the Right to Self-Preservation, 39 Ala. L. Rev. 103

(1987); David T. Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second

Amendment, 9 Harv. J.L. & Pub. Pol’y 559 (1986); Don B. Kates, Jr., The Second Amendment: A

Dialogue, 49 Law & Contemp. Probs. 143 (Winter 1986); Stephen P. Halbrook, That Every Man Be

Armed: The Evolution of a Constitutional Right (1984); Don B. Kates, Jr., Handgun Prohibition and

the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983); see also Printz v.

United States, 521 U.S. 898, 938 n.2 (1997) (Thomas., J., concurring) (noting “growing body of scho-

larly commentary indicat[ing] that the [right]” is a personal one); Emerson, 270 F.3d at 220 (similar).

270 F.3d at 227–60.

312 F.3d at 1060–87.

Silveira v. Lockyer, 328 F.3d 567, 570 (9th Cir. 2003) (Kleinfeld, J., joined by Kozinski,

O’Scannlain, and T.G. Nelson, JJ., dissenting from denial of rehearing en banc); see 328 F.3d at 568

(Pregerson, J., same); id. at 568 (Kozinski, J., same); id. at 592 (Gould, J., joined by Kozinski, J.,

same). For other recent opinions of Ninth Circuit judges endorsing the individual right view and

criticizing Silveira, see Nordyke, 319 F.3d at 1195 (Gould, J., concurring); Nordyke v. King, 364 F.3d

1025, 1025 (9th Cir. 2004) (Kleinfeld, J., dissenting from denial of rehearing en banc); id. at 1026

(Gould, J., joined by O’Scannlain, Kleinfeld, Tallman, and Bea, JJ., same).

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136

II. Textual and Structural Analysis

The Second Amendment of the United States Constitution, part of the Bill of

Rights, reads in full as follows:

A well regulated Militia, being necessary to the security of a free

State, the right of the people to keep and bear Arms, shall not be in-

fringed.

The Amendment expressly protects a “right of the people,” which is “to keep and

bear Arms” and which has some relation to the prefatory declaration that a “well

regulated Militia” is necessary for the ultimate end of “the security of a free

State.” We address each of these phrases in turn and then consider how the

structure of the Constitution illuminates the Amendment’s meaning.

As explained below, the text of the Second Amendment points to a personal

right of individuals: A “right of the people” is ordinarily and most naturally a right

of individuals, not of a state and not merely of those serving the state as militia-

men. The phrase “keep arms” at the time of the Founding usually indicated the

private ownership and retention of arms by individuals as individuals, not the

stockpiling of arms by a government or its soldiers, and the phrase certainly had

that meaning when used in connection with a “right of the people.” While the

phrase “bear arms” often referred to carrying of arms in military service, it also

sometimes denoted carrying arms for private purposes. The Amendment’s

prefatory clause, considered under proper rules of interpretation, could not negate

the individual right recognized in the clear language of the operative clause. In any

event, the prefatory clause—particularly its reference to the “Militia,” which was

understood at the Founding to encompass all able-bodied male citizens, who were

required to be enrolled for service—is fully consistent with an individual right

reading of the operative language. Moreover, the Second Amendment appears in

the Bill of Rights amid amendments securing numerous individual rights, a

placement that makes it likely that the right of the people to keep and bear arms

likewise belongs to individuals. Finally, a consideration of the powers that the

original Constitution grants or allows over the militia makes it unlikely that the

Second Amendment would secure a collective or quasi-collective right.

A. “The Right of the People”

The Second Amendment’s recognition of a “right” that belongs to “the people”

indicates a right of individuals. The word “right,” standing by itself in the

Constitution, is clear. Although in some contexts entities other than individuals are

Whether the Second Amendment Secures an Individual Right

137

said to have “rights,”

the Constitution itself does not use the word “right” in this

manner. Setting aside the Second Amendment, not once does the Constitution

confer a “right” on any governmental entity, state or federal. Nor does it confer

any “right” restricted to persons in governmental service, such as members of an

organized military unit. In addition to its various references to a “right of the

people” discussed below, the Constitution in the Sixth Amendment secures

“right[s]” to an accused person, and in the Seventh secures a person’s “right” to a

jury trial in civil cases.

By contrast, governments, whether state or federal, have

in the Constitution only “powers” or “authority.”

It would be a marked anomaly

if “right” in the Second Amendment departed from such uniform usage throughout

the Constitution.

In any event, any possible doubt vanishes when “right” is conjoined with “the

people,” as it is in the Second Amendment. Such a right belongs to individuals:

The “people” are not a “State,” nor are they identical with the “Militia.” Indeed,

the Second Amendment distinctly uses all three of these terms, yet it secures a

“right” only to the “people.” The phrase “the right of the people” appears two

other times in the Bill of Rights, and both times refers to a personal right, which

belongs to individuals. The First Amendment secures “the right of the people

peaceably to assemble, and to petition the Government for a redress of grievanc-

es,” and the Fourth safeguards “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.”

In addition, the Ninth Amendment refers to “rights . . . retained by the people.”

We see no reason to read the phrase in the Second Amendment to mean something

other than what it plainly means in these neighboring and contemporaneous

amendments.

The Supreme Court, in interpreting the Fourth Amendment, likewise has rec-

ognized that the Constitution uses “the people,” and especially “the right of the

people,” to refer to individuals:

“[T]he people” seems to have been a term of art employed in select

parts of the Constitution. The Preamble declares that the Constitution

is ordained and established by “the People of the United States.” The

Second Amendment protects “the right of the people to keep and

bear Arms,” and the Ninth and Tenth Amendments provide that cer-

tain rights and powers are retained by and reserved to “the people.”

See also U.S. Const., Amdt. 1 (“Congress shall make no law . . .

For example, Article II of the Articles of Confederation, drafted a decade before the Constitution,

reserved to each state “every power, jurisdiction, and right” not expressly delegated to the federal

government.

In addition, the Copyright and Patent Clause authorizes Congress to grant an “exclusive Right” to

authors and inventors for a limited time. U.S. Const. art. I, § 8, cl. 8.

See, e.g., U.S. Const. art. I, § 1; id. art. I, § 8; id. art. II, § 1; id. art. III, § 1; id. amend. X.

Opinions of the Office of Legal Counsel in Volume 28

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abridging . . . the right of the people peaceably to assemble”) (em-

phasis added); Art. I, § 2, cl. 1 (“The House of Representatives shall

be composed of Members chosen every second Year by the People

of the several States”) (emphasis added). While this textual exegesis

is by no means conclusive, it suggests that “the people” protected by

the Fourth Amendment, and by the First and Second Amendments,

and to whom rights and powers are reserved in the Ninth and Tenth

Amendments, refers to a class of persons who are part of a national

community or who have otherwise developed sufficient connection

with this country to be considered part of that community.

Thomas Cooley, the leading constitutional scholar after the Civil War, took the

same view in explaining “the people” in the context of the First Amendment:

“When the term ‘the people’ is made use of in constitutional law or discussions, it

is often the case that those only are intended who have a share in the government

through being clothed with the elective franchise. . . . But in all the enumerations

and guaranties of rights the whole people are intended, because the rights of all

are equal, and are meant to be equally protected.”

The Constitution confirms this meaning of “the people” as individuals by ex-

pressly distinguishing the “people” from the “States,” using each word to refer to a

distinct thing. Indeed, the Second Amendment itself refers separately to “the

people” and the “State.” And the difference is firmly established by the Tenth

Amendment, which distinguishes between the powers reserved “to the States” and

those reserved “to the people.” The “people” are the individuals who compose the

states, distinct from—and bearing their federal “rights” apart from—those

entities.

Similarly, the Constitution gives distinct meanings to “the people” and the

“Militia.” Again, the Second Amendment itself is a notable example, referring to

United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990); see also id. at 279 (Stevens, J.,

concurring in judgment) (“aliens who are lawfully present in the United States are among those

‘people’ who are entitled to the protection of the Bill of Rights, including the Fourth Amendment”); id.

at 287–88 (Brennan, J., dissenting) (similar; contending that “‘the people’” is broader than “‘citizens,’

‘freemen,’ ‘residents,’ or ‘the American people’”). The Ninth Circuit in Silveira did not discuss the

“right of the people” in the Second Amendment, and it disregarded Verdugo-Urquidez except to cite its

analysis of “the people” as an analogy in support of its own reading of “Militia.” See 312 F.3d at 1069–

70 & n.25, 1071 & n.27. While recognizing that “[t]he question . . . is not whether arms may be kept,

but by whom and for what purpose,” id. at 1074, the court in Silveira did not consider that the “who[]”

might be “the people” to whom the Second Amendment’s text—like that of the First, Fourth, and

Ninth—expressly gives the right.

Thomas M. Cooley, The General Principles of Constitutional Law in the United States of Ameri-

ca 267–68 (1880; reprint 2000) (emphasis added).

Of course the “people” might choose to exercise those individual rights in groups rather than

alone, as in the First Amendment right to assemble and petition, but that does not make their rights

“collective” or quasi-collective in the sense of depending on the will or actions of a state or on one’s

service to it.

Whether the Second Amendment Secures an Individual Right

139

the “well regulated Militia” but granting the “right” to “the people.” The Constitu-

tion’s other references to “rights” of “the people,” noted above, cannot plausibly

be construed as referring to the “Militia.” In addition, when granting governmental

power over the militia, the Constitution speaks of the militia expressly, without

any reference to or suggestion of the broader “people.”

And the Fifth Amend-

ment’s Grand Jury Clause, which distinguishes between all “person[s]” and those

serving in the army, navy, or “the Militia, when in actual service,” indicates that

where the Constitution addresses rights that turn on service in the militia it does so

expressly.

The only truly “collective” use of the “the people” at the time of the Founding

was to refer to the people as they existed apart from government or any service to

it. The Declaration of Independence refers to “one People” dissolving their

political bonds with another and forming their own nation, and “We the people”

created the Constitution in ratifying conventions chosen “by the People” of each

state.

Thus, even in this context, the “people” are distinguished from “the

government” or “the State”; nor can the term plausibly be limited to the “Militia.”

And when “the people” appears in the phrase “the right of the people” in the

Constitution, we conclude that it indicates a personal right of individuals, whether

that be a right to assemble and petition, to be secure in one’s person and property,

or to keep and bear arms.

B. “To Keep and Bear Arms”

The “right of the people” that the Second Amendment secures is a right “to

keep and bear Arms.” As the previous subpart showed, those who hold the right

are, according to the text, “the people”—individuals—not the government or even

the militia. The phrase “to keep and bear Arms” is consistent with this conclusion:

The phrase “keep . . . Arms” reinforces it,

and the phrase “bear Arms” is not

inconsistent with it.

U.S. Const. art. I, § 8, cls. 15–16; id. art. II, § 2, cl. 1.

The last quotation is from the Constitutional Convention’s resolution transmitting the proposed

Constitution to the Congress. 2 The Records of the Federal Convention of 1787, at 665 (Max Farrand

ed., rev. ed. 1966). This distinction between the “people” and the government is why the Founders

insisted that the Constitution be ratified by popularly elected special conventions rather than by the

state governments, to ensure its supremacy over those governments. See The Federalist No. 39, at 253–

54 (James Madison) (Jacob E. Cooke ed., 1961); James Madison, Notes of Debates in the Federal

Convention of 1787, at 70 (1987) (remarks of Madison, June 5, 1787); id. at 348–49 (remarks of

George Mason and Edmund Randolph, July 23, 1787); id. at 352–53 (remarks of Madison).

Those who reject the individual right view tend to neglect “keep” or to treat it as redundant with

“bear.” In Silveira, the court found it “not clear” why the word “was included in the amendment” and

concluded by summarizing the Amendment as merely protecting a right to “‘bear arms’” in conjunction

with militia service. 312 F.3d at 1074, 1086. See also Michael C. Dorf, What Does the Second Amendment

Mean Today?, 76 Chi.-Kent L. Rev. 291, 317 (2000) (contending without citation that “keep and bear” is

“a unitary phrase,” with “keep” adding nothing to “bear,” but admitting possibility that “the plain meaning

of ‘keep’ would have been sufficient to connote an individual right”); H. Richard Uviller & William G.

Opinions of the Office of Legal Counsel in Volume 28

140

1. “To Keep . . . Arms”

In eighteenth-century English, an individual could “keep arms,” and keep them

for private purposes, unrelated to militia duty, just as he could keep any other

private property, and the phrase was commonly used in this sense. For example, in

Rex v. Gardner (K.B. 1738), a defendant charged with “keeping a gun” in

violation of a 1706 English statute (which prohibited commoners from keeping

specified objects or “other engines” for the destruction of game) argued that

“though there are many things for the bare keeping of which a man may be

convicted; yet they are only such as can only be used for destruction of the game,

whereas a gun is necessary for defence of a house, or for a farmer to shoot crows.”

The court agreed, reasoning that “a gun differs from nets and dogs, which can only

be kept for an ill purpose.”

The Court of Common Pleas six years later treated

Gardner as having “settled and determined” that “a man may keep a gun for the

defence of his house and family,”

and in 1752 the King’s Bench reiterated that “a

gun may be kept for the defence of a man’s house, and for divers other lawful

purposes.”

The same usage appeared in an earlier prosecution of a man for

“keeping of a gun” contrary to a statute that barred all but the wealthy from

privately owning small handguns.

William Blackstone, whose Commentaries on the Laws of England, first pub-

lished in the decade before the American Revolution, was the leading legal

authority in America at the Founding, wrote, without any reference to the militia,

of “person[s]” who are “qualified to keep a gun” and are “shooting at a mark,”

apparently on their own property.

He also noted that certain persons could not

Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 Chi.-Kent L. Rev.

403, 424–25, 508, 549–50, 593 (2000) (similar).

2 Strange Rep. 1098, 1098 (applying 5 Ann., c. 14 (1706)); see Rex v. Gardner, 87 Eng. Rep.

1240, 7 Mod. Rep. 279 (K.B. 1739) (apparently later case, but similar); id. at 1241 (defendant, arguing

that “to charge only that he kept a gun is improper, for it includes every man that keeps a gun,” and that

guns are kept “for the defence of a man’s house”); id. (Lee, C.J.) (words of statute “do not extend to

prohibit a man from keeping a gun for his necessary defence”); id. (Probyn, J.) (“farmers are generally

obliged to keep a gun, and are no more within the Act for doing so than they are for keeping a cabbage-

net”).

Mallock v. Eastly, 87 Eng. Rep. 1370, 1374, 7 Mod. Rep. 482 (C.P. 1744).

Wingfield v. Stratford, 96 Eng. Rep. 787, 787, Sayer Rep. 15 (K.B. 1752).

King v. Silcot, 87 Eng. Rep. 186, 186, 3 Mod. Rep. 280 (K.B. 1690) (italics omitted) (interpreting

33 Hen. VIII, c. 6 (1541), and quashing indictment because it did not specifically allege that defen-

dant’s income was insufficient when he kept the gun).

4 William Blackstone, Commentaries *182. The qualification to which Blackstone refers is a

wealth requirement tied to the game laws, see id. at *174–75, which we discuss in Part III.A and

elsewhere. Regarding Blackstone’s influence and authority, see, e.g., Madison, Notes of Debates, supra

note 44, at 547 (remarks of Dickenson, Aug. 29, 1787); The Federalist No. 69, at 465 n.* (Alexander

Hamilton); The Federalist No. 84, at 577 (Alexander Hamilton); Malcolm, To Keep and Bear Arms,

supra note 33, at 130; Schick v. United States, 195 U.S. 65, 69 (1904). Edmund Burke informed

Parliament that “they have sold nearly as many of Blackstone’s Commentaries in America as in

Whether the Second Amendment Secures an Individual Right

141

“keep arms in their houses,” pursuant to a statute that used “keep” to signify

private ownership and control over arms, wherever located.

Colonial and early

state statutes similarly used “keep” to “describe arms possession by individuals in

all contexts,” including requiring those exempt from militia service (such as the

over-aged) to “keep” arms in their homes for both law enforcement and “the

defense of their homes from criminals or foreign enemies.”

At the Massachusetts

Ratifying Convention in 1788, Samuel Adams proposed an amendment prohibit-

ing Congress from “prevent[ing] the people of the United States, who are peacea-

ble citizens, from keeping their own arms,” indicating ownership by individuals of

private arms.

And that state’s Supreme Court, in a libel case soon after the

Founding, likened the “right to keep fire arms” to the freedom of the press, both

being individual but not unlimited rights—the former not protecting “him who

uses them for annoyance or destruction.”

The basic dictionary definition of

“keep”—”[t]o retain” and “[t]o have in custody”—was consistent with this

specific meaning.

In short, the phrase “keep arms” was commonly understood to denote owner-

ship of arms by private citizens for private purposes. When that phrase is read

together with its subject—”the right of the people”—the evidence points strongly

toward an individual right. Had the Constitution meant not to protect the right of

the whole “people” to “keep” arms but instead to establish a “right” of the states or

of only the members of their militias to store them, presumably it would have used

different language.

England.” Speech Concerning Resolutions for Conciliation With the Colonies (Mar. 22, 1775), in

Edmund Burke, Pre-Revolutionary Writings 206, 225 (Ian Harris ed., 1993).

4 William Blackstone, Commentaries *56; see id. (person barred from “keeping arms in his

house”). See also 1 W. & M., 1st Sess., c. 15, § 3 (1688) (“no papist . . . shall or may have or keep in

his house, or elsewhere, or in the possession of any other person to his use, or at his disposition, any

arms, weapons, gunpowder, or ammunition”).

Kates, supra note 33, 82 Mich. L. Rev. at 215, 219.

We discuss this proposal below in Part III.C.1.

Commonwealth v. Blanding, 20 Mass. (3 Pick.) 304, 338 (1825).

Samuel Johnson, A Dictionary of the English Language (1755) (unpaginated). See Noah Webster,

An American Dictionary of the English Language (1828) (unpaginated) (defining “Keep” first as “To

hold; to retain in one’s power or possession”).

See Stephen P. Halbrook, A Right to Bear Arms: State and Federal Bills of Rights and Constitu-

tional Guarantees 94 (1989) (contending that “common linguistic usage of the day . . . referr[ed] to the

depositing of public arms in an arsenal, in contrast with the keeping of private arms by the people,” and

providing an example of the former usage in a 1789 state statute); cf. U.S. Const. art. I, § 10, cl. 3 (“No

State shall . . . keep Troops” without Congress’s consent) (emphasis added). When members of a

militia, as opposed to the people in general, retained their own arms for militia service, common usage

seems to have been to speak of them “providing” themselves with weapons, see Militia Act, ch. 33, § 1,

1 Stat. 271 (1792); Thomas Jefferson, Notes on the State of Virginia 88 (William Peden ed., 1955);

1 The Papers of George Mason, 1725–1792, at 212 (Robert A. Rutland ed., 1970), although we do not

mean to claim that one could not speak of militiamen “keeping” arms for militia use.

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142

2. “To . . . Bear Arms”

To “bear” was, at the Founding as now, a word with numerous definitions—

used with great “latitude” and “in very different senses,” as Samuel Johnson noted

in his dictionary.

Its basic meaning was simply to “carry” or “wear” something,

particularly carrying or wearing in a way that would be known to others, such as in

bearing a message, bearing another person, or bearing something as a mark of

authority or distinction.

As a result, “bear,” when taking “arms” as its object,

could refer to multiple contexts in which one might carry or wear arms in this

way.

It is true that “bear arms” often did refer to carrying arms in military

service.

But the phrase was not a term of art limited to this sense. Arms also

could be “borne” for private, non-military purposes, principally tied to self-

defense. For example, an early colonial statute in Massachusetts required every

“freeman or other inhabitant” to provide arms for himself and anyone else in his

household able to “beare armes,” and one in Virginia required “all men that are

fittinge to beare armes” to “bring their pieces” to church.

There are also several examples closer to the Founding. In 1779, a committee

of eminent Virginians including Thomas Jefferson and George Mason, charged

with revising the new state’s laws, authored a bill penalizing any person who,

within a year of having violated a restriction on hunting deer, “shall bear a gun out

of his inclosed ground, unless whilst performing military duty.” This bill demon-

strates that to “bear a gun” was not limited to “performing military duty.” James

Madison submitted this bill to the Virginia legislature in 1785.

Many early state

Johnson, Dictionary, supra note 55 (unpaginated).

See id. (defining “bear” as to “carry as a burden,” “convey or carry,” “carry as a mark of authori-

ty” (such as a sword), “carry as a mark of distinction” (such as to “bear arms in a coat”), and “carry as

in show”); Webster, American Dictionary, supra note 55 (unpaginated) (defining “bear” as to “sup-

port,” “sustain,” “carry,” “convey,” “support and remove from place to place,” “wear,” and “bear as a

mark of authority or distinction; as, to bear a sword, a badge, a name; to bear arms in a coat”).

In Muscarello v. United States, 524 U.S. 125 (1998), which involved a statute, the Court was

unanimous in understanding “bear arms” to refer generally to a person carrying arms upon his person

for the purpose of being armed and ready for offensive or defensive action, the dissent citing the

Second Amendment in support of this view. The majority gave “carries a firearm” a broader meaning.

Id. at 130; id. at 139–40, 143 (Ginsburg, J., dissenting).

See, e.g., Kates, supra note 33, 82 Mich. L. Rev. at 219 (explaining that, in early colonial stat-

utes, “‘bear’ did generally refer to the carrying of arms by militiamen”); St. George Tucker, 2

Blackstone’s Commentaries *408–09 n.1 (1803; reprint 1996) (“Tucker’s Blackstone”) (discussing

Virginia law exempting from militia duty those “religiously scrupulous of bearing arms”); The

Declaration of Independence para. 28 (1776) (“He has constrained our fellow Citizens taken Captive on

the high Seas to bear Arms against their country.”). Militia service was not, however, limited to

“military” action. The Constitution speaks of using the militia “to execute the Laws of the Union,”

which is distinct from both “repel[ling] Invasions” and “suppress[ing] Insurrections.” U.S. Const. art. I,

§ 8, cl. 15.

Quoted in Malcolm, To Keep and Bear Arms, supra note 33, at 139.

2 The Papers of Thomas Jefferson 443–44 (Julian P. Boyd ed., 1950). Concerning the Committee

of Revisors, see id. at 305; 1 Tucker’s Blackstone, supra note 60, Note F, at 444–45.

Whether the Second Amendment Secures an Individual Right

143

constitutions, including some written before the Founding (Pennsylvania’s and

Vermont’s) and one written a month after Secretary of State Jefferson declared the

Bill of Rights ratified (Kentucky’s), protected an individual’s right to “bear arms”

in “defense of himself and the State” or in “defense of themselves and the State,”

indicating that a person might be said to “bear arms” in self-defense.

A 1780

opinion of London’s Recorder (the city’s legal adviser and the primary judge in its

criminal court) on the legality of a private self-defense association acknowledged

“the rights of the people of this realm to bear arms, and to instruct themselves in

the use of them, collectively,” albeit within limits.

In a newspaper commentary

published in major cities after Madison introduced the Bill of Rights in Congress,

a friend of his wrote that the proposed Second Amendment would “confirm[]” the

people’s “right to keep and bear their private arms.”

Supreme Court Justice

Joseph Story, in his 1833 Commentaries on the Constitution of the United States,

paraphrased as a “right to bear arms” the right of English “subjects . . . [to] have

arms for their defence,” an individual right not tied to service in the militia.

Finally, other examples of contemporaneous uses of “bear arms” to denote actions

of individuals appear in cases from the early 1800s up to the Civil War, discussed

below in Part IV.B.

The Minority Report issued by twenty-one delegates of the Pennsylvania Con-

vention that ratified the Federal Constitution in late 1787 illustrates the various

uses of the phrase at the time, including both the right of private “bearing” and the

duty of “bearing” for the government in the militia. The Report recommended

amending the Constitution to recognize “[t]hat the people have a right to bear arms

for the defence of themselves and their own State or the United States, or for the

purpose of killing game” and also urged exemption from militia service for those

“conscientiously scrupulous of bearing arms.” Although the Minority Report was

a product of Anti-Federalists, who had lost at that convention and who lost the

These are collected, through the Michigan Constitution of 1835, in Emerson, 270 F.3d at 230

n.29. We discuss the Pennsylvania and Vermont constitutions below in Part III.B.2. For an 1822

judicial interpretation confirming the plain meaning of the Kentucky provision as granting an

individual right, see Part IV.B.1 below. Regarding ratification of the Bill of Rights, see Part III.C.2

below.

Legality of the London Military Foot-Association (July 24, 1780), reprinted in William Blizard,

Desultory Reflections on Police: With an Essay on the Means of Preventing Crimes and Amending

Criminals 59, 59 (London 1785) (emphasis omitted). Regarding this opinion, which was “of wide

interest,” Leon Radzinowicz, 4 A History of English Criminal Law 107 (1968), see id. at 107–10;

Malcolm, To Keep and Bear Arms, supra note 33, at 133–34; and our further discussion below in Part

III.A. Regarding the Recorder, see 1 William Blackstone, Commentaries *76; 3 id. at *80–81 n.i; id. at

*334; John H. Langbein, Shaping the Eighteenth-Century Criminal Trial: A View From the Ryder

Sources, 50 U. Chi. L. Rev. 1, 8, 17–19, 34–36 (1983).

This essay by Tench Coxe is discussed below in Part III.C.2.

Joseph Story, Commentaries on the Constitution of the United States § 980, at 695 (Ronald D.

Rotunda & John E. Nowak eds., 1833, reprint 1987) (“Abridgement”). The English right is discussed

below in Part III.A.

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battle over ratifying the Constitution, we are unaware of any contemporaneous

criticisms that this widely circulated document misused language in giving such

senses to the phrase “bear arms.”

In sum, although “bear arms” often referred to carrying or wearing arms in

connection with military duty, it was not limited to such a meaning. When, as in

the Second Amendment, those words are used in conjunction with “keep arms,”

which commonly did refer to private action, and the whole phrase “to keep and

bear Arms” is used in the context of a “right of the people,”

we conclude that the

core, operative text of the Amendment secures a personal right, which belongs to

individuals. We next consider whether the Amendment’s prefatory language

requires a different conclusion.

C. “A Well Regulated Militia, Being Necessary to the

Security of a Free State”

A feature of the Second Amendment that distinguishes it from the other rights

that the Bill of Rights secures is its prefatory subordinate clause, declaring: “A

well regulated Militia, being necessary to the security of a free State, . . . .”

Advocates of the collective right and quasi-collective right interpretations rely on

this declaration, particularly its reference to a well-regulated militia. On their

interpretation, the “people” to which the Second Amendment refers is only the

See 2 Bernard Schwartz, The Bill of Rights: A Documentary History 665, 672 (1971). We discuss

the Pennsylvania Convention, including the Minority Report and its critics, in Part III.C.1 below.

Regarding the Report’s wide circulation, see id. at 628; 2 The Documentary History of the Ratification

of the Constitution 617 (Merrill Jensen ed., 1976) (note); 15 id. at 7–10 (John P. Kaminski & Gaspare

J. Saladino eds., 1984) (note).

In addition, the Second Amendment’s reference to “Arms” in the context of “keep” and “bear”

reinforces our view that it protects an individual right. The mere word “Arms” could denote any

weapon, including artillery. See Webster, American Dictionary, supra note 55 (unpaginated) (defining

“arms” as “Weapons of offense, or armor for defense and protection of the body” and including

explanation of “Fire arms” as “such as may be charged with powder, as cannon, muskets, mortars

&c.”; also defining the verb “arm” as including “[t]o furnish with means of defense; to prepare for

resistance; to fortify”); Johnson, Dictionary, supra note 55 (unpaginated) (defining “arms” as

“Weapons of offence, or armour of defence”). Certainly Congress’s power in Article I, Section 8,

Clause 16 to provide for “arming” the militia includes such weapons, particularly given that the

Constitution contemplates that the states will use militias to defend themselves against surprise

invasions. See U.S. Const. art. I, § 10, cl. 3 (“No State shall, without the Consent of Congress, . . . keep

Troops, . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of

delay.”); Militia Act § 4, 1 Stat. 271, 272 (1792) (requiring each division of state’s militia to have a

company of artillery and troop of horse). If the Second Amendment protected a state prerogative to

have organized and effective militias, one would expect it to protect all of the arms essential for that

purpose, including artillery. Yet its text suggests that the “Arms” that it protects do not include those

that “the people” could not both “keep” and “bear”—those that an individual could not store and carry.

This use of “Arms” points toward an individual right view rather than a right of states to have select

“militias,” and it also seems more consistent with an individual right than a quasi-collective right view,

as the latter requires that the “militia” of which the claimant is a member be fully organized and

equipped. See, e.g., United States v. Parker, 362 F.3d 1279, 1283 (10th Cir. 2004).

Whether the Second Amendment Secures an Individual Right

145

“people” in a collective, organized capacity as the state governments, or a small

subset of the “people” actively organized by those governments into military

bodies. “People” becomes interchangeable with the “State” or its “organized

militia.”

This argument misunderstands the proper role of such prefatory declarations in

interpreting the operative language of a provision. A preface can illuminate

operative language but is ultimately subordinate to it and cannot restrict it.

Wholly apart from this interpretive principle, this argument also rests on an

incomplete understanding of the preface’s language. Although the Amendment’s

prefatory clause, standing alone, might suggest a collective or possibly quasi-

collective right to a modern reader, when its words are read as they were under-

stood at the Founding, the preface is fully consistent with the individual right that

the Amendment’s operative language sets out. The “Militia” as understood at the

Founding was not a select group such as the National Guard of today. It consisted

of all able-bodied male citizens. The Second Amendment’s preface identifies as a

justification for the individual right that a necessary condition for an effective

citizen militia, and for the “free State” that it helps to secure, is a citizenry that is

privately armed and able to use its private arms.

1. The Limits of Prefatory Language

In the eighteenth century, the proper approach to interpreting a substantive or

“operative” legal provision to which a lawmaker had joined a declaration (whether

a “Whereas” clause or analogous language) was (1) to seek to interpret the

operative provision on its own, and (2) then to look to the declaration only to

clarify any ambiguity remaining in the operative provision.

It was desirable, if

consistent with the operative text, to interpret the operative provision so that it

generally fulfilled the justification that the preface declared, but a narrow declara-

tion provided no warrant for restricting the operative text, and the preface could

not itself create an ambiguity. This rule applied equally to declarations located in

any part of a law, not simply at the beginning of it, and to both statutes and

constitutions. We therefore consider this rule applicable to the Second Amend-

ment.

This rule assumes that the legislature incorporated the declaration during the ordinary legislative

process, not adopting it separately (with little consideration) or leaving it to others to insert. 2A

Norman J. Singer, Sutherland on Statutory Construction § 47.04, at 220 & 223 (6th ed. 2000); see 1

James Kent, Commentaries on American Law 516 (9th ed. 1858) (noting that titles and preambles

“generally . . . are loosely and carelessly inserted, and are not safe expositors of the law”); see also

King v. Williams, 96 Eng. Rep. 51, 52, 1 Blackst. Rep. 93 (K.B. 1758) (“The conciseness of the title

shall not control the body of the Act. The title is no part of the law; it does not pass with the same

solemnity as the law itself. One reading is often sufficient for it.”); Thomas Jefferson, A Manual of

Parliamentary Practice for the Use of the Senate of the United States 41 (1801; reprint 1993) (noting

desirability that preamble “be consistent with” a bill but possibility that it may not be, because of

legislative procedures).

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English Parliaments of the 1700s and late 1600s regularly included prefaces

throughout statutes—not only at the beginning (constituting the first section) but

also in particular sections.

The same rule of interpretation applied to both uses of

prefaces. As an example of the latter, a section of a bankruptcy statute recited the

problem of persons who “convey their goods to other men upon good considera-

tion” before becoming bankrupt, yet continue to act as owners of the goods; the

immediately following clause of the statute provided that if a bankrupt debtor

possessed “any goods or chattels” with “the consent and permission of the true

owner,” was their reputed owner, and disposed of them as an owner, such property

should repay the debtor’s debts rather than return to the true owner. The difficulty

arose when the bankrupt debtor possessed property that never had been his, such

as property in trust. A leading case in 1716 read the enacting language to apply

even in such cases and rejected the argument “that the preamble shall restrain the

operation of the enacting clause; and that, because the preamble is too narrow or

defective, therefore the enacting clause, which has general words, shall be

restrained from its full latitude, and from doing that good which the words would

otherwise, and of themselves, import.”

The King’s Bench reiterated the rule in

1723, rejecting in a criminal case an argument based on declaratory language

introducing part of a statute: “Now those general words in the enacting part, shall

never be restrained by any words introducing that part; for it is no rule in the

exposition of statutes to confine the general words of the enacting part to any

particular words either introducing it, or to any such words even in the preamble

itself.” The court acknowledged that “a construction which agrees with the

preamble” was desirable, “but not such as may confine the enacting part to it.”

Examples of both include the statutes discussed or cited below in Part III.A. See, e.g., the Militia

Act of 1662, 13 & 14 Car. II, c. 3, §§ 1, 3, 14, 20; the Game Act of 1671, 32 & 33 Car. II, c. 25, §§ 1,

2, 4, 5, 6, 7; the Act to Disarm Papists, 1 W. & M., 1st Sess., c. 15, §§ 1, 3 (1688); the Bill of Rights, 1

W. & M., 2d Sess., c. 2, §§ 1, 9 (1689); the Game Act of 1692, 4 & 5 W. & M., c. 23, §§ 1, 3, 4, 5, 7,

10; the act repealing the ban on hail-shot, 6 & 7 Will. III, c. 13, §§ 1, 3 (1695); and the Game Act of

1706, 5 Ann., c. 14, §§ 1, 3, 5.

Copeman v. Gallant, 24 Eng. Rep. 404, 407, 1 P. Wms. Rep. 314 (Ch. 1716); id. at 405 (quoting

statute) (emphases added); see 2A Sutherland, supra note 69, § 47.04, at 220 (“Copeman . . . estab-

lished the rule that the preamble could not be used to restrict the effect of the words used in the

purview.”). In Ryall v. Rolle, 26 Eng. Rep. 107, 1 Atkyns Rep. 165 (Ch. 1749), although the question

was not at issue, see id. at 116 (Lee, C.J.); id. at 118 (Hardwicke, Ch.), some judges voiced disagree-

ment with Copeman’s interpretation of that statute because of the great “inconvenience” it would cause

to commercial arrangements such as trusts, agency, and bailment, but they still recognized the general

rule, see id. at 113 (Parker, C.B.) (recognizing another case holding “[t]hat the preamble shall not

restrain the enacting clause” and recognizing that Copeman “exploded the notion of the preamble’s

governing the enacting clause,” but adding that “if the not restraining the generality of the enacting

clause will be attended with an inconvenience, the preamble shall restrain it”); id. at 118 (Hardwicke,

Ch.) (agreeing with Parker).

King v. Athos, 8 Mod. Rep. 136, 144 (K.B. 1723). See id. (Fortescue, J.) (“[I]t must be admitted,

that a preamble may be a good expositor of a statute; but what was offered on the other side is not

properly a preamble, but only introductive to an enacting part of a statute: besides . . . preambles are no

more than recitals of inconveniences, which do not exclude any other to which a remedy is given by the

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147

Blackstone summed up this understanding in explaining that, although the

words of an enacting clause were “generally to be understood in their usual and

most known signification,” yet if its words, after due analysis, were “still dubious”

or “ambiguous, equivocal, or intricate,” one might look to the context, which

included “the proeme, or preamble, [which] is often called in to help the construc-

tion of an act of parliament.”

Chancellor Kent, a leading early American

commentator, likewise reasoned that a preamble, although not technically part of

the law, “may, at times, aid in the construction of” a statute or “be resorted to in

order to ascertain the inducements to the making” of it, “but when the words of the

enacting clause are clear and positive, recourse must not be had to the preamble.”

Prefatory language also was common in constitutions, and this rule of construc-

tion applied in the same way. Speaking of the preamble of the whole federal

Constitution, Joseph Story in his Commentaries reiterated that statutory preambles

are “properly resorted to, where doubts or ambiguities arise upon the words of the

enacting part; for if they are clear and unambiguous, there seems little room for

interpretation,” and he could not see “any reason why, in a fundamental law or

constitution of government,” the same rule should not apply.

Similarly, the

Supreme Court has held that the Constitution’s preamble lacks any operative legal

effect and that, even though it states the Constitution’s “general purposes,” it

cannot be used to conjure a “spirit” of the document to confound clear operative

language;

the Court has, however, also sought some guidance from the preamble

when the operative text did not resolve a question.

The same reasoning applied to declaratory phrases in the language of individual

constitutional provisions, the closest analogies to the Second Amendment. The

1784 New Hampshire Constitution provided: “In criminal prosecutions, the trial of

enacting part.”); Kinaston v. Clark, 26 Eng. Rep. 526, 527, 2 Atkyns Rep. 204 (Ch. 1741) (“There are

many cases where the enacting part in a statute extends further than the preamble even in criminal

matters . . . .”).

1 William Blackstone, Commentaries *59–60. See Crespigny v. Wittenoom, 100 Eng. Rep. 1304,

1305, 4 Term Rep. 791 (K.B. 1792) (Buller, J.) (“I agree that the preamble cannot controul the enacting

part of a statute, which is expressed in clear and unambiguous terms. But if any doubt arise on the

words of the enacting part, the preamble may be resorted to, to explain it.”); id. at 1306 (Grose, J.)

(“Though the preamble cannot controul the enacting clause, we may compare it with the rest of the Act,

in order to collect the intention of the Legislature.”).

1 Kent, Commentaries, supra note 69, at 516. See Mills v. Wilkins, 87 Eng. Rep. 822, 822–23, 6

Mod. Rep. 62 (Q.B. 1703) (“[T]he title is not the law, but the name or description given to it by the

makers: just as the preamble of a statute is no part thereof, but contains generally the motives or

inducements thereof.”); see also 2A Sutherland, supra note 69, § 47.04, at 221–22; id. at 224–25 (“The

preamble can neither limit nor extend the meaning of a statute which is clear. Similarly, it cannot be

used to create doubt or uncertainty.”).

1 Joseph Story, Commentaries on the Constitution of the United States §§ 459–460, at 443–44

(1833; reprint 1991).

Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905).

See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 821 n.31, 838 (1995); id. at 846 & n.1

(Thomas, J., dissenting); see also Stenberg v. Carhart, 530 U.S. 914, 953 (2000) (Scalia, J., dissenting).

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facts in the vicinity where they happen, is so essential to the security of the life,

liberty and estate of the citizen, that no crime or offence ought to be tried in any

other county than that in which it is committed.”

Even though in some cases a

trial outside of the county where a crime was committed might bring it closer to

the crime scene, or a judge might think a trial in the county where the crime

occurred not “essential to” (or even in conflict with) “the security of the life,

liberty and estate of the citizen,” neither fact would justify disregarding the clear

operative language of this constitutional provision.

Likewise, the pre-1787

constitutions of Massachusetts, New Hampshire, and Vermont declared that

freedom of speech in the legislature was “so essential to the rights of the people”

that words spoken there could not the basis of “any” suit.

One could not use this

declaration to avoid the clear immunity conferred by the operative language, even

where particular statements made in the legislature—such as an egregious slander

unrelated to a pending bill—were not thought “essential to” the people’s rights.

In addition, Madison’s draft of what became the First Amendment’s Free Press

Clause read: “the freedom of the press, as one of the great bulwarks of liberty,

shall be inviolable.”

The emphasized declaratory language presumably could not

have qualified or limited the freedom clearly conferred, such as by exempting

from protection, as hostile to “liberty,” publications advocating absolute monar-

chy.

A discussion at the Constitutional Convention demonstrates the same under-

standing, including that prefaces in a particular constitutional provision might

merely state policy. What would become Article I, Section 8, Clause 16 of the

Constitution, empowering Congress to “provide for organizing, arming, and

disciplining the Militia,” had reached its final form. But George Mason proposed

“to preface” it with the phrase, “And that the liberties of the people may be better

secured against the danger of standing armies in time of peace.” He wished “to

insert something pointing out and guarding against the danger of” standing armies.

Madison spoke in favor, because the preface would “discountenance” a peacetime

N.H. Const. art. I, § 17 (1784), reprinted in 4 The Federal and State Constitutions, Colonial

Charters, and Other Organic Laws 2455 (Francis Newton Thorpe ed., 1909; reprint 1993).

See Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793, 798, 804–

05, 808–09 (1998); Emerson, 270 F.3d at 234 n.32.

Mass. Const. pt. I, art. 21 (1780), reprinted in 3 Federal and State Constitutions, supra note 78,

at 1892; N.H. Const. art. I, § 30 (1784), reprinted in 4 id. at 2457; Vt. Const. ch. I, § 16 (1786),

reprinted in 6 id. at 3753.

See Volokh, supra note 79, 73 N.Y.U. L. Rev. at 794–95, 799–800. As with statutes, constitu-

tional prefaces and operative language often do not match exactly, the latter sometimes being

overinclusive compared to the declaration and sometimes underinclusive. See id. at 801–07 (providing

examples).

Creating the Bill of Rights: The Documentary Record from the First Federal Congress 12 (Helen

E. Veit et. al. eds., 1991) (emphasis added).

Whether the Second Amendment Secures an Individual Right

149

standing army while “not restrain[ing] Congress from establishing” one.

doubt an organized, armed, and disciplined militia would generally “better secure”

liberties against peace-time standing armies (by reducing the need for such armies

and the threat from any that were created), and thus the operative grant of power

“agree[d] with” the declaratory preface;

but the preface did not restrain or

confine the power.

We see no reason to except the Second Amendment from this broadly applica-

ble interpretive rule.

Thus, the Amendment’s declaratory preface could not

overcome the unambiguously individual “right of the people to keep and bear

Arms” conferred by the operative text—even if the collective right and quasi-

collective right schools’ understanding of the preface’s meaning were correct, and

even though the preface might help resolve any ambiguities concerning the scope

of that individual right remaining after one has analyzed the operative text. At the

same time, any interpretation of the right ought, if possible consistent with its text,

to further the declared justification in general, as the Court in Miller recognized

when it stated that interpretation of the Amendment should keep the “end in view”

of assuring the continuation and rendering possible the effectiveness of the

militia.

As we explain in the remainder of this subpart—considering in turn the

meaning of “Militia,” what a “well regulated Militia” was, and the ultimate end of

“the security of a free State”—the individual right view does further the ends set

forth in the prefatory language, and therefore the preface, properly understood, is

fully consistent with the individual right interpretation of the operative text.

2. The “Militia”

A key claim of the collective right and quasi-collective right schools with

regard to the Second Amendment’s preface is that a “well regulated Militia” is a

standing military organization or body of troops, of limited size, organized and

governed by state governments, albeit concurrently with the federal government

(akin to voluntary select forces such as the National Guard that were established

over a hundred years after the Amendment was adopted). As a result, the argument

goes, the Amendment merely protects the states against federal efforts to under-

mine such forces, either by protecting the states directly or by protecting only

persons serving in those forces.

Madison, Notes of Debates, supra note 44, at 639 (Sept. 14, 1787). Mason’s proposal was

defeated, apparently on the ground that it improperly impugned soldiers. Id. at 639–40.

Athos, 8 Mod. Rep. at 144.

The Ninth Circuit in Silveira provided only one paragraph on the proper relationship between a

preface and operative language, concluding that the latter must be read “to implement the policy” of the

former. See 312 F.3d at 1075.

United States v. Miller, 307 U.S. 174, 178 (1939).

See, e.g., Silveira, 312 F.3d at 1069–72.

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150

This argument disregards the understanding of the “Militia” at the time of the

Founding. As used in the Second Amendment, and elsewhere in the Constitution,

“Militia” referred to a body consisting of all adult male citizens up to a certain age

(anywhere from forty-five to sixty), the goal being to include all who were

physically capable of service. It was not limited to a select force of persons in

active military duty. This entire population of able-bodied male citizens was

involuntarily “enrolled” by local militia officials, somewhat as men now register

for the selective service (except that enrollment required no action by the citizen),

and all enrolled citizens were required by law to join occasional “exercise”—to

which they were expected to bring their own, private arms—but they otherwise

remained in civilian life. The militia “rest[ed] upon the shoulders of the people,”

because, as then understood, it consisted of a large number of the “people” at any

one time and of all of the able-bodied white men for a substantial portion of their

lives. It was the people embodied as an armed force. Thus, a key aspect of the

term “Militia” was the composition of the force to which it referred. As a result,

the reference to the “Militia” in the Second Amendment’s preface “agrees with”

the individual right that the Amendment’s operative text sets out,

because

securing to “the people” a right to keep and to bear their own arms made such a

broad-based, privately armed force more likely to exist and to be effective.

The term “Militia” was used in contrast both to a regular, standing army and,

more importantly, to a “select militia” or “corps.”

The latter distinction is evident

throughout contemporaneous usage, “select militia” denoting a significantly

smaller body, consisting either of better trained military professionals who could

remain active for extended periods, or of those chosen selectively, perhaps

because of political or other discrimination.

For example, at the Constitutional

Convention, George Mason mentioned the need for federal regulation of the

Nordyke v. King, 364 F.3d 1025, 1031 (9th Cir. 2004) (Gould, J., joined by O’Scannlain, Klein-

feld, Tallman, and Bea, J.J., dissenting from denial of rehearing en banc).

Athos, 8 Mod. Rep. at 144.

See Kopel, supra note 33, 93 Mich. L. Rev. at 1355 (“[O]ne of the reasons Congress guaranteed

the right of the people to keep and bear arms was so that a popular militia could be drawn from the

body of the people.”) (footnote omitted). Thus, the Silveira court’s description of the militia as “the

state-created and -organized military force,” 312 F.3d at 1069, is technically true but critically

incomplete, because it ignores the composition of the militia.

On the former distinction, see U.S. Const. art. I, § 8, cls. 12–16; art. I, § 10, cl. 3; art. II, § 2, cl.

1; amend. V; Articles of Confed. art. VI (contrasting a “body of forces” with “a well regulated and

disciplined militia, sufficiently armed and accoutered.”); Authority of President to Send Militia Into a

Foreign Country, 29 Op. Att’y Gen. 322, 322 (1912) (Wickersham, A.G.) (“[T]he militia has always

been considered and treated as a military body quite distinct and different from the Regular or standing

army.”).

See Malcolm, To Keep and Bear Arms, supra note 33, at 125 (discussing concerns of English

Whigs after the English Revolution of 1688–1689 to maintain a citizens’ militia as opposed to a select

one); id. at 95–97, 103, 105 (discussing purges and selective disarmament of militia by Charles II and

James II); id. at 63 (discussing Charles II’s select militia).

Whether the Second Amendment Secures an Individual Right

151

militia to ensure that it was adequately trained. He suspected that the states would

not relinquish “the power over the whole” but would “over a part as a select

militia.” He added that “a select militia” would be “as much as the Gen[eral]

Gov[ernment] could advantageously be charged with,” and thus suggested that it

receive power only over “one tenth part” of the militia per year. Oliver Ellsworth,

later to be a Senator and Chief Justice, objected because a “select militia” either

would be impractical or would cause “a ruinous declension of the great body of

the Militia.”

Edmund Randolph, leader of the Virginia delegation, similarly

equated the militia with “the whole mass” of the people.

In the debate over ratification, both sides shared this broad understanding of

“Militia.” Among the Federalists, Madison in The Federalist predicted that a

federal army bent on oppression would be opposed by “a militia amounting to near

half a million of citizens with arms in their hands”—a group that he likened to the

citizen bands that had fought in the Revolution and linked to “the advantage of

being armed, which the Americans possess over the people of almost every other

nation.”

Alexander Hamilton described the militia as “the great body of the

yeomanry and of the other classes of the citizens,” “the great body of the people,”

and “the whole nation,” which he contrasted with a “select corps.”

A Connecticut

Federalist writing as “The Republican” praised as “a capital circumstance in

favour of our liberty” that “the people of this country have arms in their hands;

they are not destitute of military knowledge; every citizen is required by Law to be

a soldier; we are all martialed into companies, regiments, and brigades, for the

defence of our country.”

In a speech, later published, in response to South

Carolina’s vote to ratify, David Ramsay, a state legislator and delegate to the

ratifying convention, praised the Constitution’s militia powers and asked, “What

European power will dare to attack us, when it is known that the yeomanry of the

country uniformly armed and disciplined, may on any emergency be called out to

our defence . . . ?”

Maryland’s “Aristides,” in a fairly widely circulated pamphlet,

wrote simply that “the militia . . . is ourselves.”

Among the Anti-Federalists, Mason, in the Virginia Ratifying Convention,

asked: “Who are the Militia? They consist now of the whole people,” while

Madison, Notes of Debates, supra note 44, at 478, 483–84 (Aug. 18, 1787).

Id. at 515 (Aug. 23). John Adams also praised a militia of the whole people, as opposed to a

select band, in works that he published in 1776 and 1787. See Part III.B.1 below.

The Federalist No. 46, at 321 (James Madison). The population of all white males aged 16 and

over in the 1790 census was 813,298, making Madison’s number a fair approximation of the citizen

militia. See U.S. Dept. of Commerce, Bureau of the Census, 1 Historical Statistics of the United States

16 (1975).

The Federalist No. 29, at 183–85 (Alexander Hamilton).

1 The Debate on the Constitution 712 (Bernard Bailyn ed., 1993).

2 id. at 507. For Ramsey’s biography, see id. at 1009.

Aristides, Remarks on the Proposed Plan of a Federal Government (1788), reprinted in 15

Ratification, supra note 67, at 522, 533; see id. at 518–20 (note regarding circulation and responses).

Opinions of the Office of Legal Counsel in Volume 28

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warning that the new Congress might exempt the rich from service.

100

The Federal

Farmer, a leading Anti-Federalist essayist, explained that the “militia, when

properly formed, are in fact the people themselves,” and counseled “that regular

troops, and select corps, ought not to be kept up without evident necessity.” If the

federal government properly organized, armed, and disciplined the militia—

including in it, “according to the past and general usage of the states, all men

capable of bearing arms”—the country would have a “genuine” rather than “select

militia.” Under such wise regulation, “the militia are the people.”

101

This common sense of “Militia” also appeared in the House of Representatives’

debates on the Second Amendment, discussed below in Part III.C.2, and the

Second Congress applied it in the first Militia Act, enacted in 1792, two months

after the Second Amendment was officially ratified. The Act required “each and

every able-bodied white male citizen of the respective states, resident therein, who

is or shall be of the age of eighteen years, and under the age of forty-five years,” to

be “enrolled in the militia” by the local commanding officer. Each enrolled citizen

was required to provide his own arms—“a good musket or firelock” or “a good

rifle”—plus ammunition and accouterments. These private arms were exempted

from “all suits, distresses, executions or sales, for debt or for the payment of

taxes.” The enrollees were required to appear, armed, “when called out to exercise,

or into service,” although Congress left the details of exercise to each state.

102

(Since 1792, Congress has only expanded this definition, such as by eliminating

the racial restriction and including some women.

103

) Finally, Noah Webster in his

1828 American dictionary defined “militia” in accord with this Act and the above

understanding: “The militia of a country are the able bodied men organized into

companies, regiments and brigades, with officers of all grades, and required by

law to attend military exercises on certain days only, but at other times left to

pursue their usual occupations.” They were “enrolled for discipline, but not

engaged in actual service except in emergencies.”

104

The analogy of the “Militia” to a select (and voluntary) corps such as the Na-

tional Guard is further strained by the common law prohibition against the King’s

100

10 Ratification, supra note 67, at 1312 (John P. Kaminski & Gaspare J. Saladino eds., 1993)

(June 16, 1788).

101

Federal Farmer No. 18 (1788), reprinted in 2 The Complete Anti-Federalist 341–42 (Herbert J.

Storing ed., 1981); see also Federal Farmer No. 3 (1787), reprinted in id. at 242. Publius (Hamilton)

recognized the Federal Farmer letters as among the best of the Anti-Federalists’. See The Federalist

No. 68, at 457–58.

102

Act of May 8, 1792, ch. 33, §§ 1–2, 1 Stat. at 271–72; see 2 Tucker’s Blackstone, supra note 60,

at *409 n.1.

103

10 U.S.C. § 311(a) (2000) (including in the militia “all able-bodied males at least 17 years of

age and . . . under 45 years of age,” both citizens and those “who have made a declaration of intention

to become” citizens, certain men between 45 and 64, and “female citizens of the United States who are

members of the National Guard”).

104

Webster, American Dictionary, supra note 55 (unpaginated) (emphasis added).

Whether the Second Amendment Secures an Individual Right

153

deploying the militia outside the country—a rule that Blackstone celebrated as part

of the individual’s “absolute right” of “personal liberty.”

105

The Constitution

appears to incorporate this rule, by specifying domestic reasons for the federal

government to call out the militia: “to execute the Laws of the Union, suppress

Insurrections and repel Invasions.”

106

Implicit in the common law rule is that the

militia was so composed that its members ought to be treated as ordinary citizens

doing their duty, rather than as soldiers. President Taft’s Attorney General

reaffirmed this ancient rule in 1912 as Congress was developing the modern

National Guard, which, partly to avoid this rule, was made a component of the

regular military forces.

107

The Supreme Court in Miller, relying on a brief historical survey, summarized

as follows the definition of “Militia” that we have set out and explained above:

The signification attributed to the term Militia appears from the de-

bates in the Convention, the history and legislation of Colonies and

States, and the writings of approved commentators. These show

plainly enough that the Militia comprised all males physically capa-

ble of acting in concert for the common defense. “A body of citizens

enrolled for military discipline.” And further, that ordinarily when

called for service these men were expected to appear bearing arms

supplied by themselves and of the kind in common use at the time.

108

If, as the Court recognized and historical usage confirms, the “Militia” was

composed of the general population of able-bodied men, an individual right of the

whole people to keep and bear arms would make eminent sense. A large portion of

the “people” would be required to appear occasionally for service or simply

training, and they were expected to bring their private arms. If the people could be

disarmed, it would then, among other things, be impossible for militiamen to make

the required provision of their privately provided arms when called up, and the

citizen militia would be undermined.

105

1 William Blackstone, Commentaries *134, *138, *413.

106

U.S. Const. art. I, § 8, cl. 15.

107

Authority of President to Send Militia Into a Foreign Country, 29 Op. Att’y Gen. 322, 322

(1912) (Wickersham, A.G.); see Perpich v. Dep’t of Defense, 496 U.S. 334, 341–44 (1990).

108

307 U.S. at 179 (emphases added); see id. at 179–82 (collecting historical support); Presser v.

Illinois, 116 U.S. 252, 265 (1886) (“It is undoubtedly true that all citizens capable of bearing arms

constitute the reserved military force or reserve militia of the United States as well as of the States.”);

Maryland v. United States, 381 U.S. 41, 46 (1965) (describing pre-World War I militia as “a citizen

army”).

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154

3. The “Well Regulated” Militia

Advocates of the collective right and quasi-collective right views argue that the

Amendment’s reference in its preface to a “well regulated” militia indicates that

the preface refers to a select, organized body akin to today’s National Guard. They

claim additional support for this argument from usage of the term “Militia”

elsewhere in the Constitution, in the context of governmental power over the

Militia.

109

No doubt the “Militia” was, through enrollment, exercise, and command

when activated by a governor or president, a creature of the government. But it

does not follow that the meaning of “Militia” as used in the Second Amendment

depended on congressional (or state) legislation organizing or regulating the

Militia. The word’s use elsewhere in the Constitution and the Amendment’s

prefatory reference to a “well regulated Militia,” properly understood, in fact

suggest the opposite.

The Constitution distinguishes not only between the “Militia” and the regular

armed forces but also between different parts and conditions of the militia. The

latter distinctions appear in (1) Article I, Section 8, Clause 15, authorizing

Congress to “provide for calling forth the Militia”; (2) the immediately following

clause authorizing Congress to “provide for organizing, arming, and disciplining

the Militia, and for governing such Part of them as may be employed in the

Service of the United States”; (3) Article II, Section 2, Clause 1, making the

President Commander in Chief of “the Militia of the several States” when “called

into the actual Service of the United States”; and (4) the Fifth Amendment, which

withholds the protection of the Grand Jury Clause from persons whose cases arise

in the militia, but only when “in actual service in time of War or public danger”

(cases in the army and navy, by contrast, are always exempted).

These provisions indicate that the militia is of a size that will make complete

mobilization usually unnecessary, that members of the militia will often not be in

service (or that not all parts of the militia will always be in service), and that when

any members are not employed in “actual service,” they ought to be treated as

ordinary citizens. The “Militia” is both large and largely latent. In addition, the

reference to “organizing . . . the Militia” suggests an entity that in some sense

exists and is definable apart from congressional regulation, in contrast to “Ar-

mies,” which Congress must “raise,” pursuant to another power in Article I,

Section 8. Congress might not “organiz[e]” all of the “Militia”; it might organize

some parts differently from others; and it would be expected to give necessary

precision to the definition of the body’s membership by laying down a specific age

range for service (as Congress did in the first Militia Act). But the background

meaning of the word would remain. As an Anti-Federalist writer recognized:

“[T]he militia is divided into two classes, viz. active and inactive,” the former, he

109

See, e.g., Silveira, 312 F.3d at 1069–72.

Whether the Second Amendment Secures an Individual Right

155

expected, likely to “consist of young men chiefly.”

110

Thus, the use of “Militia”

throughout the Constitution is consistent with the common understanding of the

word at the Founding.

Nor does the preface’s phrase “well regulated” alter this sense of “Militia”;

rather, it presupposes it. Having an armed citizenry, which the operative text

protects by establishing a right of individuals, becomes a necessary (albeit not

sufficient) condition for a well-regulated militia once one properly defines

“Militia.” As one academic commentator has put it: “The Second Amendment

simply forbids one form of inappropriate regulation,” which would ensure a militia

that was not well regulated, namely “disarming the people from whom the militia

must necessarily be drawn. . . . [T]he one thing the government is forbidden to do

is infringe the right of the people, who are the source of the militia’s members, to

keep and bear arms.”

111

A militia composed of the whole body of able-bodied male

citizens and only infrequently meeting for state-sponsored exercise is more likely

to be “well regulated” in the bearing of arms, and can more readily be trained and

disciplined, if its members possess their private arms and are accustomed to them

from usage for private purposes between exercises.

112

And an individual right of

the people to have arms has the indirect effect of securing the ability of states at

least to have their militias armed.

113

As the Court stated in Miller, the Second

Amendment seeks “to assure the continuation and render possible the effective-

ness of” the militia of “all males physically capable of acting in concert for the

common defense.”

114

It protects the minimum for a well-regulated citizen militia.

In addition, the standard for a “well regulated Militia,” as opposed to a well-

regulated select militia, or well-regulated army, presupposes the background

meaning of “Militia” by taking into account the body’s large size and varied

source. As the Militia Act of 1792 contemplated, it might be enough to have a

county officer enroll persons and ensure that they possessed arms and knew how

to use them through basic training once or twice a year. Similarly, the Virginia

Declaration of Rights of 1776 defined “a well-regulated militia” as simply being

“composed of the body of the people, trained to arms.”

115

And the first New York

Constitution declared that “the militia” should always “be armed and disciplined,

110

Aristocrotis, The Government of Nature Delineated, or An Exact Picture of the New Federal

Constitution (1788), reprinted in 3 Complete Anti-Federalist, supra note 101, at 202.

111

Lund, supra note 33, 31 Ga. L. Rev. at 25, 26.

112

See Silveira, 328 F.3d at 579 (Kleinfeld, J., joined by Kozinski, O’Scannlain, and T.G. Nelson,

JJ., dissenting from denial of rehearing en banc) (“The panel seems to imagine that a well regulated

militia is a people disarmed until the government puts guns in their hands after summoning them to

service.”).

113

See Part IV.A below for St. George Tucker’s discussion of a similar point.

114

307 U.S. at 178–79 (emphasis added).

115

Va. Decl. of Rights § 13 (1776), reprinted in 7 Federal and State Constitutions, supra note 78,

at 3814.

Opinions of the Office of Legal Counsel in Volume 28

156

and in readiness for service” because “it is the duty of every man who enjoys the

protection of society to be prepared and willing to defend it.”

116

Even those Founders skeptical of the benefits of the citizen militia, and who

advocated a more highly regulated select corps, still recognized the distinction

between the proper regulation of the two. Alexander Hamilton in The Federalist

argued that it would be both “futile” and “injurious” for Congress to attempt to

“disciplin[e] all the militia of the United States.” Most enrolled citizens would

need extensive “time and practice . . . under arms for the purpose of going through

military exercises and evolutions as often as might be necessary to acquire the

degree of perfection which would intitle them to the character of a well-regulated

militia.” But such a burden on so many citizens “would be a real grievance to the

people and a serious public inconvenience and loss.” Thus, as to “the people at

large,” he expected that “[l]ittle more can reasonably be aimed at . . . than to have

them properly armed and equipped” and, for this purpose, “assemble them once or

twice” a year. He therefore recommended that Congress use its constitutional

power to provide for organizing the militia also to form a select militia—“a select

corps of moderate size.”

117

Hamilton was reiterating George Washington’s well-

known recommendations to Congress for a two-tiered militia, consisting of (1)

“the Citizens of America . . . from 18 to 50 years of age,” who would be put “on

the Militia Rolls” and given minimal training, and (2) “a Corps in every State”

consisting of those aged 18–25.

118

From the opposite political pole, the Federal

Farmer likewise recognized that Congress might make just such distinctions in

“modelling the militia” and warned that creation of a “select corps of militia”

would lead to “inattention to the general militia.”

119

This understanding of the “well regulated Militia,” and of the possibilities for

congressional organization of it (or not), leads to a view of the preface that not

only fits the meaning of “Militia” in common contemporaneous usage, including

throughout the Constitution, but also most agrees with the meaning of the Second

Amendment’s operative text setting out a “right of the people.” The “well

regulated Militia” and the “people” were not identical, but because of their close

relationship, a right of the latter—of individuals—to keep and bear arms would

facilitate the former. By contrast, a view rejecting the individual right on the basis

of the preface’s reference to the “well regulated Militia” struggles to harmonize

the operative language establishing a seemingly general and individual right with

that prefatory language. As Justice Scalia has written, a narrow definition of

“Militia” “produces a guarantee that goes far beyond its stated purpose—rather

116

N.Y. Const. § 40 (1777), reprinted in 5 id. at 2637.

117

The Federalist No. 29, at 183–84 (Alexander Hamilton) (emphases added).

118

Sentiments on a Peace Establishment (1783), reprinted in 3 The Founders’ Constitution 129

(Phillip B. Kurland and Ralph Lerner eds., 1987) (emphases added).

119

Federal Farmer No. 3, reprinted in 2 Complete Anti-Federalist, supra note 101, at 242; Federal

Farmer No. 18, reprinted in id. at 342 (emphases added).

Whether the Second Amendment Secures an Individual Right

157

like saying ‘police officers being necessary to law and order, the right of the

people to carry handguns shall not be infringed.’”

120

The “Militia” on this errone-

ous view consists only of those few citizens whom a state chooses to specially

organize, arm, and train into professional units, which requires one to reject the

normal, unambiguous meaning of the operative text as overbroad, rewriting “the

people” to mean either “the select militia” or “the State.” If that were the true

meaning, the Amendment’s authors chose singularly inartful language.

4. The “Security of a Free State”

The preface’s express linking of the “well regulated Militia” to the ultimate

necessity of “the security of a free State” is also fully consistent with the conclu-

sion that the “right of the people to keep and bear Arms” is a personal one. The

security of a free state at the Founding no doubt was understood to include those

things necessary to the security of any state, such as “to execute the Laws . . . ,

suppress Insurrections and repel Invasions.”

121

But the security of a free state was

not just these things. It also was understood to include the security of freedom in a

state. Thus, while Blackstone recognized the individual liberty of the press as

“essential to the nature of a free state,” pre-1787 state constitutions described the

same right as “essential to the security of freedom in a state.”

122

The Preamble of

the Constitution states the goal of making “secure the Blessings of Liberty,” and

the Fourth Amendment highlights the importance of the individual “right of the

people to be secure in their persons, houses, papers, and effects.” A secure free

state was one in which liberties and rights were secure.

This clause of the Second Amendment’s preface reinforces the individual right

to keep and bear arms in two related ways—by supporting the broad meaning of

“Militia” set out above, and by identifying a benefit for individuals of the right

that the operative text secures. First, to say at the time of the Founding that the

militia was necessary to the security of a “free State” was to refer to the citizen

militia, composed of the people, who retained the right to keep and use their

private weapons. A select militia, particularly if it existed to the exclusion of the

citizen militia, might undermine the free state, if citizens excluded from it were

left defenseless, or if it disarmed the citizens and infringed their other rights (or

both). As we show in Part III.A, that is what had happened in England during the

120

Antonin Scalia, Response, in A Matter of Interpretation: Federal Courts and the Law 137 n.13

(1997).

121

U.S. Const. art. I, § 8, cl. 15; see id. amend V (discussing militia service in “War or public

danger”).

122

4 William Blackstone, Commentaries *151; e.g., Mass. Const. pt. I, art. 16 (1780), reprinted in 3

Federal and State Constitutions, supra note 78, at 1892. Similarly, the English Declaration of Rights,

well known to the Founding Generation, see Part III.A below, charged King James II with having

sought to “subvert and extirpate” the “liberties of this kingdom” by taking several actions “utterly and

directly contrary to” the “freedom of this realm.” 1 W. & M., 2d Sess., c. 2, § 1 (1689).

Opinions of the Office of Legal Counsel in Volume 28

158

strife that produced in 1689 the express right of individual subjects to have and use

arms for their defense, the ancestor of the right in the Second Amendment.

123

Thus

the Virginia Declaration of Rights, the only state bill of rights before the adoption

of the Second Amendment that expressly tied the militia to the security “of a free

State,” also emphasized that the “militia” was “composed of the body of the

people.”

124

Contemporaneous writers across the political spectrum acknowledged the link

between the citizen militia and securing the freedom of a state. “The Republican”

praised “a militia of freemen” as among the “principal circumstances which render

liberty secure,” and singled out as “a capital circumstance in favour of our liberty”

that “the people themselves are the military power of our country,” having “arms

in their hands” and “military knowledge.”

125

The Federal Farmer listed among the

“military forces of a free country” the “militia,” by which he meant “the people

themselves . . . when properly formed.” A citizen militia was critical to “the

duration of a free and mild government.” Absent it, and in the face of an “anti-

republican” select militia, “the substantial men, having families and property, will

generally be without arms, without knowing the use of them, and defenceless;

whereas, to preserve liberty, it is essential that the whole body of the people

always possess arms, and be taught alike, especially when young, how to use

them.”

126

James Burgh, a Scotsman whose 1774 Political Disquisitions were well-

known in America, including being cited in The Federalist, wrote that a “good

militia” formed “the chief part of the constitution of every free government” and

would “preserve the public liberty.” He added that “[t]he possession of arms is the

distinction between a freeman and a slave. . . . [H]e who thinks he is his own

master, and has anything he may call his own, ought to have arms to defend

himself and what he possesses, or else he lives precariously and at discretion.”

127

123

See also Malcolm, To Keep and Bear Arms, supra note 33, at 50–53, 115–16, 123 (militia

officers’ use of discretionary power to disarm); id. at 45–46 (disarmament by Charles II prior to 1662);

id. at 85 (disarmament by militia in 1678); id. at 103 (use of militia by James II to disarm suspicious

persons); id. at 105 (attempted use of militia in 1686 to disarm by enforcing game act); id. at 31 (in

Civil War); see also id. at 92–93, 95 (in response to 1683 Rye House plot; confiscated arms given to

militia); id. at 100 (disarmament by Charles II in western England early in reign, and in response to

Rye House plot later). Efforts to disarm and undermine the militia also included requiring its members

to “store” their arms in government magazines. See id. at 38, 78–79, 96–97; see also id. at 3, 5, 10–11

(discussing private ownership and storage prior to English Civil War, and failed plans to require public

storage). The actions of white militias toward freed blacks in the South after the American Civil War

were similar. See Part IV.C below.

124

Va. Decl. of Rights § 13 (1776), reprinted in 7 Federal and State Constitutions, supra note 78,

at 3814; see also Md. Const., Decl. of Rights § 25 (1776), reprinted in 3 id. at 1688 (“That a well-

regulated militia is the proper and natural defence of a free government.”).

125

1 Debate on the Constitution, supra note 97, at 711–12.

126

Federal Farmer No. 18, reprinted in 2 Complete Anti-Federalist, supra note 101, at 341–42.

127

James Burgh, Political Disquisitions, reprinted in part in 3 Founders’ Constitution, note 118, at

126, 125; see The Federalist No. 56, at 382 n.* (James Madison); see also 2 Tucker’s Blackstone,

supra note 60, at *245 n.7 (quoting Burgh’s Disquisitions). In both passages, Burgh was loosely

Whether the Second Amendment Secures an Individual Right

159

Thus, “every male” should be trained in the use of arms, or at least “all men of

property.”

128

Second, and related, the freedom of a state was understood at the time of the

Founding to include a citizen’s individual right of self-defense (that is, defense of

his right to life and personal security) when the state cannot assist him. An

individual right to arms such as that secured by the Second Amendment’s

operative text helps to preserve this basic right and thus a free state. As the preface

indicates, the existence of a well-regulated citizen militia further secures the link

between such an individual right and this aspect of a free state (by increasing the

number of persons equipped and trained to exercise the right well), but, as the

discussion of the militia in the previous paragraph suggests, this link was not

understood to be confined to one’s actions while participating in even such a

broad-based entity.

129

Blackstone’s summary of key English rights explains this

point. With no mention of the militia, he described the “right of having and using

arms for self-preservation and defence” as the last security of individual English

subjects for keeping the state, including themselves, free:

[T]he rights, or, as they are frequently termed, the liberties of Eng-

lishmen . . . consist primarily, in the free enjoyment of personal se-

curity, of personal liberty, and of private property. So long as these

remain inviolate, the subject is perfectly free; for every species of

compulsive tyranny and oppression must act in opposition to one or

other of these rights, having no other object upon which it can possi-

bly be employed. To preserve these from violation, it is necessary,

that the constitution of parliament be supported in its full vigour; and

limits, certainly known, be set to the royal prerogative. And lastly, to

vindicate these rights, when actually violated or attacked, the sub-

jects of England are entitled, in the first place, to the regular admin-

quoting Andrew Fletcher, a prominent member of the Scottish Parliament prior to union with England

in 1707. See A Discourse of Government With Relation to Militias (1698), reprinted in Andrew

Fletcher, Political Works 21–22 (John Robertson ed., 1997); Speeches by a Member of the Parliament,

No. 7 (1703), reprinted in id. at 149–50. Regarding Fletcher and Burgh, see David Thomas Konig, The

Second Amendment: A Missing Transatlantic Context for the Historical Meaning of “the Right of the

People to Keep and Bear Arms,” 22 L. & Hist. Rev. 119, 125–26, 136–39 (2004).

128

Burgh, Political Disquisitions, reprinted in 3 Founders’ Constitution, note 118, at 124, 126. As

Fletcher put it:

“I cannot see, why arms should be denied to any man who is not a slave, since they are

the only true badges of liberty . . . neither can I understand why any man that has arms, should not be

taught the use of them.” A Discourse of Government, reprinted in Fletcher, Political Works, supra note

127, at 23.

129

The duty to serve in the militia and the right to possess or carry weapons for self-defense were

related but distinct in colonial America. One might have the latter without the former. See Cottrol &

Diamond, supra note 33, 80 Geo. L.J. at 325–37 (surveying colonial laws and explaining the develop-

ment of “the view that the security of the state was best achieved through the arming of all free

citizens,” regardless of eligibility for militia service); see also Part II.B.1 above (discussing right to

“keep” arms for private purposes).

Opinions of the Office of Legal Counsel in Volume 28

160

istration and free course of justice in the courts of law; next, to the

right of petitioning the king and parliament for redress of grievances;

and, lastly, to the right of having and using arms for self-preservation

and defence.

This right to arms, Blackstone added, facilitates self-defense “when the sanctions

of society and laws are found insufficient to restrain the violence of oppression.”

130

John Locke, although not explicitly discussing arms, similarly explained the

individual right of self-defense that a free society allows. Discussing the right of

self-defense against a robber, he wrote: “I have no reason to suppose that he who

would take away my liberty, would not, when he had me in his power, take away

everything else.” Therefore “the law, which was made for my preservation, where

it cannot interpose to secure my life from present force, which if lost, is capable of

no reparation, permits me my own defence.”

131

It is therefore reasonable to conclude that the ability of a “right of the people to

keep and bear Arms” to further the Second Amendment preface’s ultimate end of

the “security of a free State” consisted not merely in the existence of a trained

band ready to act as soldiers should the state’s government call upon them, but

also in the ability of the citizens (many of them part of the privately armed citizen

militia), by individually keeping and bearing arms, to help secure the freedoms of

the state and its citizens.

132

Thus, the “people” in the Second Amendment were

distinct from the “Militia” and a “State,” but a right of the people to keep and bear

arms was understood both to facilitate a well-regulated militia and to help

maintain a state that was free. By contrast, the collective right and quasi-collective

right views would sanction not only the creation of a select militia (to the exclu-

sion of the citizen militia) but also the disarming of the rest of the citizenry, a

130

1 William Blackstone, Commentaries *144. Blackstone also described the fundamental “right of

personal security” as including protection against “loss of limb,” so as to guard a man’s ability “to

protect himself from external injuries in a state of nature,” and condemned any destruction of limbs as

“a manifest breach of civil liberty,” id. at *129, *130; and he set out the basic common law rule of self-

defense, “the primary law of nature,” by which it is lawful for a person “forcibly attacked in his person

or property . . . to repel force by force” without being liable for breach of the peace or a resulting

homicide, 3 id. at *3–4. The importance of this right of self-defense was reinforced by the absence of

any constitutional duty of government to defend citizens’ lives, liberty, or property. See DeShaney v.

Winnebago Cnty. Soc. Servs. Dep’t, 489 U.S. 189, 195–97 (1989).

131

John Locke, Second Treatise of Government §§ 18–19, at 12–13 (Richard H. Cox ed., 1982)

(1689); see also id. §§ 204–10, at 126–29 (similar). Blackstone and Locke disagreed on the exact scope

of the right of self-defense. 4 William Blackstone, Commentaries *181–82; see also 1 id. at *251.

Locke was, after Blackstone and Montesquieu, the writer whom American political writers of the

Founding cited most. Malcolm, To Keep and Bear Arms, supra note 33, at 142 & 214 n.44. His

thinking is particularly evident in the Declaration of Independence. See also 2 Tucker’s Blackstone,

supra note 60, at *161 & n.25.

132

See Van Alstyne, supra note 33, 43 Duke L.J. at 1243 (The Second Amendment “looks to an

ultimate reliance on the common citizen who has a right to keep and bear arms . . . as an essential

source of security [for] a free state.”); see also Lund, supra note 33, 31 Ga. L. Rev. at 24.

Whether the Second Amendment Secures an Individual Right

161

result antithetical to the true “Militia” as understood at the Founding and to the

“free State” that the Founding Generation understood it to secure.

D. Structural Considerations

Our conclusion that the text of the Second Amendment protects an individual

right is further confirmed by the structure of the Constitution, in particular the

Amendment’s placement and its inter-relation with the powers that the Constitu-

tion grants over the militia.

1. The Bill of Rights

The Second Amendment is embedded within the Bill of Rights. Every one of

the other rights and freedoms set forth in the first nine amendments of the Bill—

whether or not phrased as a “right of the people”—protects individuals, not

governments; none of its provisions protects persons only in connection with

service to the government.

133

As Thomas Cooley summarized, writing of the Bill’s

first eight amendments, “[I]t is declared that certain enumerated liberties of the

people shall not be taken away or abridged.”

134

It is therefore reasonable to

interpret the Second Amendment to protect individuals just as the rest of these

nine amendments do.

More particularly, the Second Amendment is located within a subset of the Bill

of Rights amendments, the First through Fourth, that relates most directly to

personal freedoms (as opposed to judicial procedure regulating deprivation by the

government of one’s life, liberty, or property)—the amendments that, in Story’s

words in his Commentaries, “principally regard subjects properly belonging to a

bill of rights.”

135

These four amendments concern liberties that are tied to the right

of individuals to possess and use certain property (the printing “press” in the First

133

Cf. Planned Parenthood v. Casey, 505 U.S. 833, 847 (1992) (rejecting argument that the person-

al “liberty” that the Fourteenth Amendment protects “encompasses no more than those rights already

guaranteed to the individual against federal interference by the express provisions of the first eight

Amendments”) (emphasis added) (citation omitted); Moore v. City of East Cleveland, 431 U.S. 494,

502 (1977) (plurality opinion) (similar, quoting Poe v. Ullman, 367 U.S. 497, 542–43 (1961) (Harlan,

J., dissenting)); Johnson v. Eisentrager, 339 U.S. 763, 784 (1950) (describing First, Second, Fourth,

Fifth, and Sixth Amendments as the “civil-rights Amendments”); Robertson v. Baldwin, 165 U.S. 275,

281 (1897) (describing Bill of Rights as embodying “certain guaranties and immunities which we had

inherited from our English ancestors”). While some might argue that, as an original matter, the First

Amendment’s Establishment Clause (which makes no reference to any “right” or “freedom”) was an

exception to this rule, the Supreme Court has held that it too creates an individual right, applicable even

against states. See Zelman v. Simmons-Harris, 536 U.S. 639, 678 (2002) (Thomas, J., concurring);

Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947); David Currie, The Constitution in the Supreme Court:

The Second Century 339–40 (1990).

134

Cooley, General Principles, supra note 41, at 200.

135

Story, Abridgement, supra note 66, § 984, at 698 (commencing discussion of First through

Fourth, and Eighth through Tenth Amendments).

Opinions of the Office of Legal Counsel in Volume 28

162

Amendment,

136

“house[s]” in the Third’s restriction on quartering soldiers, and

“houses, papers, and effects” in the Fourth’s restriction on searches and seizures),

or otherwise to act without undue governmental interference (worship, speech,

assembly and petition). Again, it seems reasonable to interpret the Second

Amendment, consistently with this context, to set out another personal liberty

(keeping and bearing) and privileged form of individual property (arms), useful for

protecting not only the citizen’s person but also the “houses” that the Third and

Fourth Amendments guard.

137

Finally, the right in the Second Amendment immediately follows the right to

assemble and petition, which concludes the First Amendment. The latter right is

undeniably personal and individual, not depending on governmental organization,

regulation, or service. And the two are aligned, not only in their placement but

also in their origin, purpose, and limitations. Antecedents of both appeared in

proximity in the English Bill of Rights of 1689.

138

Blackstone, in the passage

block-quoted in the previous subpart, discussed in immediate succession their dual

utility as guards of the great individual rights of life, liberty, and property,

139

and

he did likewise in discussing the criminal law’s limitations on abuses of those

rights.

140

St. George Tucker, the first leading American commentator on Black-

stone and the Constitution (discussed more in Part IV.A below), noted that both

rights had been transplanted to the United States from England, both stripped of

many English restrictions.

141

It follows that the former right—that secured by the

Second Amendment—also would be individual.

136

See 4 William Blackstone, Commentaries *152 n.a; John O. McGinnis, The Once and Future

Property-Based Vision of the First Amendment, 63 U. Chi. L. Rev. 49, 92–94 (1996).

137

Compare 1 William Blackstone, Commentaries *138 (“The third absolute right, inherent in

every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his

acquisitions, without any control or diminution, save only by the laws of the land.”) (emphasis added),

with id. at *144 (recognizing “the right of having and using arms”) (emphasis added); see Part II.B.1

above (discussing English cases in 1700s approving the “keeping” of arms for defense of one’s self and

home).

138

1 W. & M., 2d Sess., c. 2, § 1, paras. 5 & 7 of the list of rights.

139

See also 1 William Blackstone, Commentaries *143–44 (similar); 2 Jean L. De Lolme, The Rise

and Progress of the English Constitution 886–87 (A.J. Stephens ed., 1838) (1784) (noting that English

Bill of Rights “expressly ensured to individuals the right of publicly preferring complaints against the

abuses of the government, and, moreover, of being provided with arms for their own defence,” and

then quoting 1 William Blackstone, Commentaries *144 regarding these rights).

140

See 4 id. at *145–49 (discussing the following misdemeanor breaches of the peace: affray, riot,

rout, unlawful assembly, tumultuous petitioning, forcible entry or detainer, and going armed with

dangerous or unusual weapons to the terror of the people). Among felonies against the public peace,

Blackstone first listed violation of the Riot Act against “riotous assembling of twelve persons” and then

described “unlawful hunting” in certain parks, which involved being disguised and “armed with

offensive weapons.” Id. at *142–44.

141

2 Tucker’s Blackstone, supra note 60, at *143–44 nn. 38–41. See also United States v. Cruik-

shank, 92 U.S. 542, 551–53 (1876) (analyzing the two rights similarly); Logan v. United States, 144

U.S. 263, 286–87 (1892) (same).

Whether the Second Amendment Secures an Individual Right

163

2. The Militia Powers

Interpreting the Second Amendment in light of the militia powers granted to the

federal government and the states in the original Constitution likewise suggests an

individual right to keep and bear arms rather than a “right” of states, against the

federal government, to maintain select militias or a quasi-collective right to be

exercised only by persons who serve in such entities. Clauses 15 and 16 of Arti-

cle I, Section 8, respectively grant power to Congress:

To provide for calling forth the Militia to execute the Laws of the

Union, suppress Insurrections and repel Invasions; [and]

To provide for organizing, arming, and disciplining, the Militia, and

for governing such Part of them as may be employed in the Service

of the United States, reserving to the States respectively, the Ap-

pointment of the Officers, and the Authority of training the Militia

according to the discipline prescribed by Congress.

In addition, Article II, Section 2, makes the President “Commander in Chief . . .

of the Militia of the several States, when called into the actual Service of the

United States.”

These clauses, independently of the Second Amendment, presuppose the exist-

ence of functioning state militias and leave significant powers over them to the

states. The states expressly retain the powers to appoint all officers and to train the

militia according to federally specified rules. They implicitly retain the power of

“governing” any parts of the militias not in actual service to the federal govern-

ment, and of having those state-appointed officers govern the militias even when

in such service, subject to the President’s supreme authority. The provision

regarding officers is why Hamilton could argue credibly in The Federalist that the

states always would retain “a preponderating influence over the militia.”

142

The

Constitution, in elsewhere prohibiting states from “keep[ing] Troops, or Ships of

War in time of peace,” while still allowing them to “engage in War” if “actually

invaded” or under an imminent threat, contemplates that the states will have, and

have power to employ, usable militias to provide necessary defense and emergen-

142

The Federalist No. 29, at 185 (Alexander Hamilton); see also The Federalist No. 46, at 321–22

(James Madison).

Opinions of the Office of Legal Counsel in Volume 28

164

cy war-making ability.

143

More broadly, the states implicitly retain the power to

call out the militia on their own for domestic purposes.

144

The original Constitution also leaves to the states concurrent power to provide

for organizing, arming, and disciplining their militias, so long as in so doing they

do not interfere with the federal power. This interpretation has been recognized

from the beginning: At the critical Virginia Ratifying Convention, Henry Lee

(future Governor of Virginia and congressman), Edmund Randolph (a Framer who

became the first Attorney General), Madison, and John Marshall all made this

textual argument in response to attacks on the federal power to make such

provision.

145

Story found the arguments for such a concurrent power “in their

structure and reasoning satisfactory and conclusive.”

146

The Supreme Court

approved this reading in 1820 in Houston v. Moore,

147

and has recently reiterated

it. Looking to the “general plan” of the Constitution, the Court noted in 1990 that,

“Were it not for the Militia Clauses, it might be possible to argue,” much as one

could regarding federal power over foreign policy and the armed forces, “that the

constitutional allocation of powers precluded the formation of organized state

militia. The Militia Clauses, however, subordinate any such structural inferences

to an express permission while also subjecting state militia to express federal

limitations.”

148

Even the Ninth Circuit in Silveira so interpreted Article I, Section

8, Clause 16: “The language indicates that the grant of power [to Congress] is

permissive. . . . Nothing in the Article or elsewhere in the Constitution appears to

bar the states from choosing to arm their respective militias as they wish.”

149

In at least two respects, the above militia powers in the Constitution suggest an

individual right view of the Second Amendment. First, any constitutional amend-

ment securing to the states power to maintain militias would have been largely

redundant, whether the amendment protected the power through a “right” of states

or a right restricted to persons serving in militia units that a state had organized. A

provision should not be read to be redundant if another reasonable interpretation

143

U.S. Const. art. I, § 10, cl. 3. See Houston v. Moore, 18 U.S. (5 Wheat.) 1, 52 (1820) (Story, J.,

dissenting); Va. Ratif. Conv., in 10 Ratification, supra note 67, at 1307 (remarks of John Marshall,

June 16, 1788).

144

See Story, Abridgement, supra note 66, § 593, at 425; Va. Ratif. Conv., in 10 Ratification, supra

note 67, at 1304, 1311 (remarks of James Madison, June 16, 1788); id. at 1306–07 (remarks of John

Marshall, same).

145

Compare 9 Ratification, supra note 67, at 1074 (John P. Kaminski & Gaspare J. Saladino eds.,

1990) (H. Lee, June 9, 1788), id. at 1102 (Randolph, June 10, 1788), 10 id. at 1273 (Madison, June 14,

1788), id. at 1306–08 (Marshall, June 14, 1788); with 9 id. at 957–58, 1066 (Patrick Henry, June 5 & 9,

1788), 10 id. at 1270–71 (George Mason, June 14, 1788), id. at 1305 (William Grayson, June 16,

1788). Henry Lee should not be confused with his Anti-Federalist cousin Richard Henry Lee.

146

3 Story, Commentaries, supra note 75, § 1202, at 85–86.

147

18 U.S. (5 Wheat.) 1 (1820). See Part IV.B.1 below.

148

Perpich, 496 U.S. at 353–54 (footnotes omitted).

149

312 F.3d at 1081 n.43.

Whether the Second Amendment Secures an Individual Right

165

exists, and the individual right view of the Amendment is such an interpretation.

Second, one also would expect a protection of the states’ militia powers to use

language analogous to that of Clause 16, which concludes by “reserving to the

States respectively, the Appointment of the Officers, and the Authority of training

the Militia according to the discipline prescribed by Congress.”

150

Clause 16’s

parallel to the protection of state power in the Tenth Amendment, which provides

that certain powers are “reserved to the States respectively” (while mentioning

“the people” separately), is unmistakable, as is the contrast between such language

and the Second Amendment’s protection of a “right of the people.” Given the

ready availability of such language, it would be both surprising and inartful for a

protection of state authority to create and maintain organized militias to be phrased

as the Second Amendment is, whether one conceives of the protection as belong-

ing to the states directly or to those serving it.

The Militia Clauses therefore suggest that the Second Amendment, to the ex-

tent that it furthers the states’ authority to maintain organized militias, does so

indirectly, as we discussed in Part II.C.2 & 3, by ensuring the minimum of a “well

regulated Militia”—that the States’ people, the pool for the citizen militia, would

continue to be able to keep and to bear their private arms, having them ready and

being familiar with them. Thus the Militia Clauses, along with the structure of the

Bill of Rights and the preface of the Second Amendment, all support the personal,

individual right to keep and bear arms that the Amendment’s operative text sets

out.

III. The Original Understanding of the Right to Keep and Bear Arms

In the previous part, we focused on the text and structure of the Constitution,

considering the meaning of the Second Amendment’s words and phrases when

they were adopted and how the Amendment’s meaning is informed by its inter-

relation with the rest of the Constitution. In this part, we take a broader view and

consider the Anglo-American right to arms as it existed at the time of the Found-

ing and informed the adoption of the Second Amendment. This history, like the

text, indicates that the Amendment secures an individual right.

We first consider the historical context of the right to arms, both (A) in England

beginning with the Revolution of 1688–1689 and (B) in America through the

American Revolution and the first state constitutions. The right was consistently a

personal one. Beginning with the right of individual English subjects to have arms

for their defense, it was supplemented in revolutionary America with the notion

that a citizen militia, comprising the armed citizenry, was a particularly important

means of securing free government. As one judge recently put it, the Americans of

the Founding Generation “were the heirs of two revolutions,” both of which had

150

As we explain below in Part III.C, several state ratifying conventions unsuccessfully proposed

similar language in suggested amendments distinct from those securing the right to bear arms.

Opinions of the Office of Legal Counsel in Volume 28

166

impressed upon them the importance of an individual right to have and use arms.

151

This background understanding of the right is inconsistent with either the collec-

tive right or quasi-collective right views. Next, in Part III.C, we turn to (1) the

framing and ratification of the Constitution and (2) the framing and ratification of

the Second Amendment. This history demonstrates that the background under-

standing, far from being transformed or curtailed, was incorporated in that

Amendment, just as the Bill of Rights incorporated many other traditional rights of

individuals. By contrast, separate proposals to amend the Constitution to safeguard

powers of the states to establish and maintain organized militias failed.

A. The Right Inherited From England

As the Supreme Court has recognized, “[t]he historical necessities and events

of the English constitutional experience . . . were familiar to” the Framers and

should “inform our understanding of the purpose and meaning of constitutional

provisions.”

152

This rule is particularly applicable to provisions such as the Second

Amendment, because “[t]he law is perfectly well settled that the first ten amend-

ments to the Constitution, commonly known as the Bill of Rights, were not

intended to lay down any novel principles of government, but simply to embody

certain guaranties and immunities which we had inherited from our English

ancestors.”

153

The right to arms that colonial Americans inherited from England had been set

out first in the English Declaration of Rights of 1689, and then had been expound-

ed by William Blackstone in his authoritative Commentaries on the Laws of

England in the decade before the American Revolution. Both the Declaration and

Blackstone made clear that the English right was a personal, individual one, not a

“right” belonging to any government or restricted to persons in governmental

service. The English right could not have been a federalism provision, because

England lacked a federal structure; and neither the Declaration nor the law as

expounded by Blackstone conditioned the right on a subject’s service in any

militia.

The Declaration of Rights was a product of the English Revolution of 1688–

1689 (commonly known as the Glorious Revolution). In 1660, a special “Conven-

tion” Parliament had restored the English monarchy by crowning Charles II,

154

and

two statutes enacted under him provided background for the Declaration’s

provisions on arms. First was the Militia Act, enacted by the royalist Parliament in

151

Silveira, 328 F.3d at 580 (Kleinfeld, J., joined by Kozinski, O’Scannlain, and T.G. Nelson, JJ.,

dissenting from denial of rehearing en banc).

152

Loving v. United States, 517 U.S. 748, 766 (1996).

153

Robertson v. Baldwin, 165 U.S. 275, 281 (1897), discussed further below in Part IV.D.

154

See 1 William Blackstone, Commentaries *151.

Whether the Second Amendment Secures an Individual Right

167

1662.

155

It authorized militia officers on their own warrants “to search for and seize

all arms” of anyone they judged “dangerous to the peace of the kingdom,”

including through entering houses by force if necessary, the arms to be handed

over to the militia and no judicial recourse being available.

156

Charles II repeatedly

used this power,

157

aided not only by the regular militia but also by a volunteer

army that he had organized unilaterally,

158

and by a select militia of about 15,000

that he formed in 1666.

159

The second statute was the Game Act of 1671, which, in

the name of protecting wildlife, was “the first law in English history that took

from the majority of Englishmen the privilege of having firearms.”

160

It outlawed

possession of guns (not just their use in hunting) by anyone not among the few

rich qualified to hunt game.

161

Concerns escalated after the accession in 1685 of Charles’s brother, King

James II. He was openly Roman Catholic, at a time of sharp political distrust

between England’s Protestants and Catholics.

162

He disarmed the Protestant militia

of Ireland by seizing their arms and placing them in government magazines, while

returning the arms of Ireland’s Roman Catholics. In England, he continued to use

the militia to disarm persons of questioned loyalties, including through strictly

155

The Founders were well aware of the events leading up to the Declaration. A delegate at the

Massachusetts Ratifying Convention, warning against overreacting to the weakness of the Articles of

Confederation, pointed to the Restoration, in which the people, “so vexed, harassed and worn down . . .

[had] run mad with loyalty, and would have given Charles any thing he could have asked.” 1 Debate on

the Constitution, supra note 97, at 897 (remarks of Charles Turner, Jan. 17, 1788). A delegate at

Virginia’s convention drew the opposite lesson: The new Constitution would prevent the anarchy that

had led England into the arms of Charles II. 2 id. at 756 (remarks of Zachariah Johnston, June 25,

1788).

156

13 & 14 Car. II, c. 3, § 14.

157

Malcolm, To Keep and Bear Arms, supra note 33, at 36, 38, 43, 45–48, 50–53, 85, 100, 115–16,

123; see also id. at 92–93, 95; Lois G. Schwoerer, The Declaration of Rights, 1689, at 76 (1981)

(“Charles II had made effective use of” the militia acts “to try to snuff out political and religious

dissent,” disarming individuals and towns and confiscating weapons). He had begun doing so as soon

as he assumed the throne. An interim act in 1661 approved his actions and provided indemnity to

militiamen. 12 Car. II, c. 6, § 3 (favorably recognizing that “divers arms have been seized and houses

searched for arms”); cf. The Federalist No. 69, at 465 n. (Alexander Hamilton) (discussing 1661 act).

158

Malcolm, To Keep and Bear Arms, supra note 33, at 36–39.

159

Id. at 63. See also Schwoerer, Declaration, supra note 157, at 75–76 (describing Charles II’s

actions, including disarmament, and noting rise of complaints from Commons beginning in 1668).

160

Malcolm, To Keep and Bear Arms, supra note 33, at 12; see id. at 69–76; Schwoerer, Declara-

tion, supra note 157, at 78 (describing it as “the most stringent and comprehensive of the game laws”)

(internal quotation marks omitted).

161

22 & 23 Car. II, c. 25, § 3 (providing that all who did not have estate “of the clear yearly value

of one hundred pounds” per year were “not allowed to have or keep for themselves, or any other person

or persons, any guns, bows, greyhounds . . . or other engines”).

162

See 4 William Blackstone, Commentaries *55 (explaining various legal disabilities on certain

Roman Catholics, including several dating from English Revolution or earlier, by stating that such

persons “acknowledge a foreign power, superior to the sovereignty of the kingdom”); id. at *58

(hoping that “a time . . . should arrive” soon when it would be safe to “review and soften these rigorous

edicts”).

Opinions of the Office of Legal Counsel in Volume 28

168

enforcing the Game Act, although he ultimately preferred to undermine the militia

(whose loyalty he questioned), by restricting musters. He also accelerated and

expanded his brother’s policy of purging opponents, and Protestants in general,

from the militia’s and army’s officer corps, and geometrically enlarged the

standing army.

163

James II fled soon after William of Orange landed in England in late 1688 at

the invitation of leading Englishmen. A Convention Parliament in early 1689

adopted the Declaration of Rights, which William and his wife Mary (James’s

daughter) accepted before Parliament proclaimed them King and Queen, and

which the ensuing regular Parliament enacted as the Bill of Rights.

164

A hundred

years later, Alexander Hamilton in The Federalist celebrated “the revolution in

1688,” when at last “English liberty was completely triumphant.”

165

The Declaration first listed twelve indictments of James II for having attempted

to subvert “the laws and liberties of this kingdom,” including:

5. By raising and keeping a standing army within this kingdom in

time of peace, without consent of parliament, and quartering soldiers

contrary to law.

6. By causing several good subjects, being protestants, to be dis-

armed, at the same time when papists were both armed and em-

ployed, contrary to law.

Then, in a roughly parallel list of thirteen “ancient rights and liberties,” the

Declaration stated:

6. That the raising or keeping a standing army within the kingdom in

time of peace, unless it be with consent of parliament, is against law.

7. That the subjects which are protestants may have arms for their

defence suitable to their conditions and as allowed by law.

163

See Malcolm, To Keep and Bear Arms, supra note 33, at 95–106; Schwoerer, Declaration, supra

note 157, at 71–73, 75–76; see also The Federalist No. 26, at 166 (Alexander Hamilton); Marcus No. 4

(James Iredell) (1788), reprinted in 1 Debate on the Constitution, supra note 97, at 391; Mass. Ratif.

Conv., in id. at 904 (remarks of Thomas Dawes, Jr., Jan. 24, 1788).

164

The Bill of Rights is at 1 W. & M., 2d Sess., c. 2 (1689). Its first three sections, except for the

initial preamble, consist of the Declaration, see Schwoerer, Declaration, supra note 157, at 295, App. 1

(reprinting Declaration), and it recounts the events of the Revolution. See also 1 W. & M., 1st Sess., c.

1, § 2 (1689) (noting presentation and acceptance of crown, and proclaiming Parliament to be regular

from that date); id. c. 6 (establishing coronation oath); 1 William Blackstone, Commentaries *128,

*152, *211–16, *245 (discussing events); The Federalist No. 84, at 578 (Alexander Hamilton)

(similar).

165

The Federalist No. 26, at 165–66. See Schwoerer, Declaration, supra note 157, at 289 (Ameri-

cans greeted the revolution and Declaration “with enthusiasm”).

Whether the Second Amendment Secures an Individual Right

169

This seventh article is most relevant here, and it set out a personal right. Neither

this article nor the parallel sixth indictment ties possession of arms to service in

the militia, which the Declaration never mentions. The sixth indictment instead

indicates that being “armed” and being “employed” by the government are

distinct—a distinction confirmed by the historical context, which, as we have

explained, included subjects being disarmed by the militia. Furthermore, the right

belonged to “subjects,” not to any government, and these subjects were allowed

arms “for their defence.”

166

Critics of the individual right view contend that the two concluding clauses of

the seventh article—“suitable to their Conditions, and as allowed by Law”—so

restricted the right that it was a dead letter. Among the restrictions to which these

clauses referred was the Game Act, which literally, albeit likely not in practice,

barred most subjects from owning firearms.

167

As Lois G. Schwoerer has argued:

“English-men did not secure to ‘ordinary citizens’ the right to possess weap-

ons. . . . Drafted by upper-class Protestants who had their own interests at heart,

Article VII was a gun control measure.”

168

The Declaration, therefore, the argu-

ment goes, could have had little relevance to the right in the Second Amendment.

But this argument regarding the scope of the right does not speak to the ques-

tion that we consider here, which is whether the English right was a right of

individuals, a right of government, or a right specifically connected with military

service to the government. On that question, the answer is clear. Schwoerer herself

recognizes that many articles of the Declaration “guaranteed rights to the individ-

ual,” including the right “to bear arms (under certain restrictions).”

169

Class- and

religion-based restrictions did not destroy the personal nature of the right,

whatever its scope. The precedent for Americans was an individual right.

166

Similarly, the same Parliament enacted a law providing that a “papist or reputed papist” could

“have or keep . . . such necessary weapons, as shall be allowed to him by order of the justices of the

peace . . . for the defence of his house or person.” 1 W. & M., 1st Sess., c. 15, § 3 (1688) (emphasis

added).

167

See Malcolm, To Keep and Bear Arms, supra note 33, at 86–89 (noting effect of wealth qualifi-

cation but also dearth of prosecutions merely for possession). Blackstone complained that there was

“fifty times the property required to enable a man to kill a partridge, as to vote for a knight of the

shire.” 4 William Blackstone, Commentaries *175. In addition, these clauses probably referred to two

statutes from the 1540s restricting ownership and use of short handguns based on wealth, outlawing

shot, and regulating the use of guns in cities or towns, see 33 Hen. VIII, c. 6 (1541); 2 & 3 Edw. VI, c.

14 (1548), and they may also have referred to the Militia Act, see Malcolm, To Keep and Bear Arms,

supra note 33, at 120.

168

Lois G. Schwoerer, To Hold and Bear Arms: The English Perspective, 76 Chi.-Kent L. Rev. 27,

59 (2000). She seems to misunderstand the individual right view as requiring an unlimited right. See id.

at 56, 60.

169

Schwoerer, Declaration, supra note 157, at 283; see Malcolm, To Keep and Bear Arms, supra

note 33, at 119–20. See also 2 De Lolme, English Constitution, supra note 139, at 886 (Declaration

“expressly ensured to individuals the right of [petition and] of being provided with arms for their own

defence”).

Opinions of the Office of Legal Counsel in Volume 28

170

In addition, that Article 7 of the Declaration (and the Bill) only recognized a

right to possess arms “as allowed by Law” does not mean that it did not secure a

true right. In England’s constitutional tradition, particularly evident in the events

surrounding the Declaration of Rights described above, formal English rights

restricted only the Crown’s prerogative, not the legislature’s power, which was

unrestricted. Thus, although Blackstone was able to explain many years after the

English Revolution that a royal proclamation “for disarming any protestant

subjects, will not bind,”

170

the right to arms, like all other English rights, remained

subject to revision or abolition by Parliament.

171

That characteristic of English

rights hardly prevented Americans from borrowing and adapting them to a

different constitutional structure.

Finally, whatever the actual ability of ordinary English subjects to have arms

for their defense in 1689, by the Founding, a hundred years later, the right to do so

extended to most of the country. As Judge Kleinfeld of the Ninth Circuit recently

observed, “[t]he historical context of the Second Amendment is a long struggle by

the English citizenry to enable common people to possess firearms.”

172

In new

game laws, particularly that of 1706, Parliament deleted guns from the list of

implements that those not qualified to hunt game were prohibited from owning.

173

The courts determined that Parliament had made this deletion “purposely.”

174

Thus,

notwithstanding the list’s catch-all prohibition of “any other engines,” they

interpreted the deletion—together with the existence of “divers . . . lawful

purposes” for which one might keep a gun, such as “for the defence of his house

and family”—as protecting the right of individuals to keep guns even if they were

not qualified to hunt game, so long as they did not hunt with them.

175

This

170

1 William Blackstone, Commentaries *271.

171

See The Federalist No. 84, at 578–79 (Alexander Hamilton) (arguing “that bills of rights are in

their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of

privilege, reservations of rights not surrendered to the prince,” and “[s]uch . . . was the declaration of

rights presented by the lords and commons to the prince of Orange in 1688, and afterwards thrown into

the form of an act of parliament called the bill of rights”).

172

Silveira, 328 F.3d at 582 (Kleinfeld, J., joined by Kozinski, O’Scannlain, and T.G. Nelson, JJ.,

dissenting from denial of rehearing en banc).

173

5 Ann., c. 14, § 3 (1706); see 4 & 5 W. & M., c. 23, § 3 (1693) (similar). Parliament also re-

pealed the later of the two statutes of the 1540s mentioned in note 167, noting its desuetude. 6 & 7

Will. III, c. 13, § 3 (1695). Enforcement of the other was, at least in the 1600s, lax and selective. See

Malcolm, To Keep and Bear Arms, supra note 33, at 80–81, 87. Efforts to revise the Militia Act failed,

but the right in the Bill may have sufficed to restrain the King from disarming Protestants. See id. at

123–25; see also 1 William Blackstone, Commentaries *271; Schwoerer, Declaration, supra note 157,

at 75–78, 267, 283.

174

Rex v. Gardner, 87 Eng. Rep. 1240, 1241, 7 Mod. Rep. 279 (K.B. 1739).

175

Wingfield v. Stratford, 96 Eng. Rep. 787, 787–88, Sayer Rep. 15 (K.B. 1752) (Lee, C.J., citing

Rex v. Gardner, 2 Strange Rep. 1098 (K.B. 1738)); Mallock v. Eastly, 87 Eng. Rep. 1370, 1374, 7

Mod. Rep. 482 (C.P. 1744), respectively; see also Part II.B.1 (discussing use of “keep” in these and

other cases); Malcolm, To Keep and Bear Arms, supra note 33, at 128 (quoting commentator of early

1800s reaffirming rule of these cases). In addition, it appears that courts strictly interpreted indictments

Whether the Second Amendment Secures an Individual Right

171

interpretation of the 1706 game act was considered “settled and determined” by

1744, and in 1752 the Chief Justice of the King’s Bench reaffirmed that it was

“not to be imagined” that Parliament in that act had intended “to disarm all the

people of England.”

176

By 1780, London’s Recorder—the city’s legal adviser and

the primary judge of its criminal court—in an opinion supporting the legality of

the city’s private armed associations formed for self-defense against riots, could

announce as “most clear and undeniable” the “right of his majesty’s Protestant

subjects, to have arms for their own defence, and to use them for lawful purposes,”

adding that “this right, which every Protestant most unquestionably possesses

individually,” also “may, and in many cases must, be exercised collectively,”

subject to certain restrictions.

177

Similarly, an English commentator in the early

1790s wrote that “every one is at liberty to keep or carry a gun, if he does not use

it for the destruction of game.”

178

Blackstone’s Commentaries, first published in 1765–1769, were for the colo-

nists and the Founding Generation the leading exposition of England’s laws and

constitution. In them, he confirmed that the English right to arms was an individu-

al one and explained that it had grounds broader and deeper than the right that had

been declared in the Revolution of 1688–1689.

In the first chapter of the first book, Blackstone detailed the “absolute rights of

individuals,”

179

that is, “such as appertain and belong to particular men, merely as

individuals or single persons” and which “every man is entitled to enjoy, whether

out of society or in it.”

180

It was the purpose of law “to maintain and regulate”

under the game laws. See King v. Silcot, 87 Eng. Rep. 186, 186 n.(b), 3 Mod. Rep. 280 (K.B. 1690)

(reporter’s note from 1793).

176

Mallock, 87 Eng. Rep. at 1374; Wingfield, 96 Eng. Rep. at 787 (Lee, C.J.).

177

Legality of the London Military Foot-Association, supra note 64, at 59–60 (italics omitted). For

background, see Part II.B.2 above. The Recorder found it “a matter of some difficulty to define the

precise limits and extent of the rights of the people of this realm to bear arms, and to instruct

themselves in the use of them, collectively.” Id. at 59. At the very least, he opined, such a group needed

to (1) have a “lawful” “professed purpose and object,” (2) “demean themselves in a peaceable and

orderly manner” consistent with that purpose, (3) not assemble in numbers that “manifestly and greatly

exceed” that purpose; and (4) not “act without the authority of the civil magistrate” except to suppress

“sudden, violent, and felonious breaches of the peace.” Id. at 62 (italics omitted). See also 1 William

Hawkins, A Treatise on the Pleas of the Crown ch. 63, § 10, at 136 (1724; reprint 1972) (noting legality

of person “arm[ing] himself to suppress dangerous Rioters, Rebels, or Enemies” and “endeavour[ing]

to suppress or resist such Disturbers of the Peace or Quiet of the Realm”); id. ch. 65, § 21, at 161

(noting right to do so when assisting Justice of Peace against riot).

178

See William Blackstone, 2 Commentaries on the Laws of England *412 n.8 (William Draper

Lewis ed., 1900) (reprinting annotation of Edward Christian). Christian’s posthumous Blackstone was

published in 1793–95, see Malcolm, To Keep and Bear Arms, supra note 33, at 134, 210, and available

in America, see 1 Tucker’s Blackstone, supra note 60, at *145 n.42. Although the law was clear, some

questioned how much as a practical matter the revision of the game laws had benefited commoners, as

we explain in the discussion of the Pennsylvania Constitution below in Part III.B.2.

179

1 William Blackstone, Commentaries *121; id. at *123, 124.

180

Id. at *123. He contrasted “relative” individual rights, “which are incident to [persons] as mem-

bers of society, and standing in various relations to each other.” Id.

Opinions of the Office of Legal Counsel in Volume 28

172

these rights in society, but “wanton and causeless restraint” was “a degree of

tyranny.”

181

He delineated three “principal or primary . . . rights of the people of

England”: “the right of personal security, the right of personal liberty, and the

right of private property.”

182

But Blackstone recognized that declaring these three primary rights would be

“in vain” and a “dead letter of the laws, if the constitution had provided no other

method to secure their actual enjoyment.” He therefore identified five “auxiliary

subordinate rights of the subject”—“outworks or barriers to protect and maintain”

the principal rights.

183

The first two were maintaining the constitution of Parlia-

ment and clear limits on the King’s prerogative. Because these were more properly

issues of governmental structure, he postponed their discussion to later chapters.

184

The other three, however, were plainly individual rights: (a) the “right of every

Englishman . . . of applying to the courts of justice for redress of injuries”; (b) the

“right, appertaining to every individual . . . of petitioning the king, or either house

of parliament, for the redress of grievances,” so long as no “riot or tumult”

resulted; and (c) the “right of the subject . . . of having arms for their defence

suitable to their condition and degree, and such as are allowed by law.” He noted

that the latter two rights both had been recognized in the 1689 Bill of Rights.

185

Blackstone explained the subject’s right of having arms as “a public allowance,

under due restrictions, of the natural right of resistance and self-preservation,

when the sanctions of society and laws are found insufficient to restrain the

violence of oppression.”

186

By tying the right to the natural—and thus individual

and pre-political—right of self-defense, he recognized a deeper foundation than its

declaration and enactment in 1689 and confirmed that the right existed inde-

pendently of any bearing of arms in service to the militia, a subject that he did not

mention in connection with the right.

187

He returned to the right in concluding the first chapter. Again grouping together

the last three auxiliary rights (suing, petitioning, and having arms), he explained

that all were means for “the subjects of England” to “vindicate” the three primary

rights “when actually violated or attacked.” Thus, subjects were “entitled . . . to

181

Id. at *124–28.

182

Id. at *129. These reappear throughout the American Constitution, in general protections against

deprivations of “life, liberty, or property, without due process of law” and in specific rights. See, for

example, St. George Tucker’s footnotes annotating Blackstone’s exposition of the three principal rights

with parallels in the Constitution, 2 Tucker’s Blackstone, supra note 60, at *129, *133–40.

183

1 William Blackstone, Commentaries *140–41.

184

See id. at *141.

185

Id. at *141, *143–44.

186

Id. at *144.

187

See also 4 id. at *55–58 (elsewhere describing prohibitions against certain Roman Catholics

keeping arms as hopefully temporary suspensions of rights). He summarized the militia in Chapter 13,

1 id. at *412–13.

Whether the Second Amendment Secures an Individual Right

173

the right of having and using arms for self-preservation and defence.”

188

By his

repeated reference to “self-preservation” and his description of the right as

including both “having and using” arms, Blackstone reiterated that the right had a

personal aspect and was linked to self-defense—to the right to use one’s

“limbs . . . to protect himself from external injuries,” which was part of the

individual right of personal security.

189

Finally, Blackstone’s view of the right as belonging to individuals re-appears in

his repeated disparagement of game laws as a pretext to undermine commoners’

ability to use or have arms. He traced them to “slavery” imposed after the fall of

the Roman Empire by invading generals, who sought to “keep the rustici or

natives . . . in as low a condition as possible, and especially to prohibit them the

use of arms.” Thus, “we find, in the feudal constitutions, one and the same law

prohibiting the rustici in general from carrying arms, and also proscribing the use

of nets, snares, or other engines for destroying the game.”

190

He denounced those

arising in England after the Norman Conquest of 1066 as a “tyranny to the

commons,”

191

and thought their real rationale was an aristocratic desire to “dis-

arm[] the bulk of the people.”

192

He briefly described England’s existing criminal

game laws as confused and having a “questionable” nature, their “rational footing”

being elusive.

193

But he approved hunting restrictions against trespassing

194

and did

not criticize several other restrictions on the use and carrying of arms, involving

breaches of the peace.

195

188

1 id. at *144.

189

Id. at *130. See id. at *134 (summarizing common law’s special protection for “those limbs and

members that may be necessary to a man in order to defend himself or annoy his enemy”).

190

2 id. at *412, 413.

191

4 id. at *416; see 2 id. at *415–16 (forest laws produced “the most horrid tyrannies and oppres-

sions”).

192

2 id. at *412. As an example, he cited a popular book, by a bishop (and thus lord), that praised

banning “Peasants and Mechanics” from hunting game: “It was not at all for the public Good to suffer

[them] . . . to run up and down the Woods and Forests, armed; which . . . draws them on to Robbery

and Brigandage: Nor to permit the populace, in Towns and Cities, to have, and carry Arms at their

pleasure; which would give opportunity and encouragement to Sedition, and Commotions.” 1 William

Warburton, The Alliance Between Church and State: Or, the Necessity and Equity of An Established

Religion and a Test Law Demonstrated 324 (London 4th ed. 1766).

193

4 William Blackstone, Commentaries *174–75.

194

See 2 id. at *411–12 (approving as “natural” a ban on unauthorized hunting on private property);

see 4 id. at *174 (being less critical of the “forest law,” which simply prohibited hunting in the king’s

forests).

195

See 4 id. at *144 (unlawful hunting—being disguised and “armed with offensive weapons” in

breach of peace and to terror of public); id. at *145 (affray (public fighting), including attack with or

drawing of weapon on church grounds); id. at *148 (forcible entry or detainer, “such as is carried on

and maintained with force, with violence, and unusual weapons”); id. at *149 (“riding or going armed,

with dangerous or unusual weapons . . . by terrifying” the people); see also id. at *146–47 (riots, routs,

unlawful assemblies, and tumultuous petitioning); id. at *168 (quasi-nuisance of “making, keeping, or

carriage, of too large a quantity of gunpowder at one time or in one place or vehicle”); cf. id. at *182

(excusable homicide by misadventure, such as “where a person qualified to keep a gun is shooting at a

Opinions of the Office of Legal Counsel in Volume 28

174

Thus, the right to arms that America inherited from England was a right of

individuals, and had deep roots by the time of the Framing. It did not depend on

service in the government’s militia, nor was it a federalism-related “right” of any

government. It therefore provides no warrant for a quasi-collective right or

collective right view of the Second Amendment. And, absent any evidence that

Americans wished to abridge this individual right or transform it substantially, a

question that we consider next, the English precedent supports an individual right

view of that Amendment.

B. The Right in America Before the Framing

The English colonists in America recognized this right of individual subjects to

have and use arms, and they retained it as they broke from the mother country.

They also recognized that it furthered the citizen militia to which they looked as a

security for their freedom. These related ideas of an individual right to arms and

regard for the citizen militia formed the backdrop for the Second Amendment. We

first consider the history of the American Revolution and then review the states’

first constitutions, written during that war.

1. The Experience of the Revolution

As the Revolution approached and conflicts with royal authorities rose, colonial

leaders both reaffirmed the individual right to arms inherited from England and

praised the shared duty of being armed imposed by local law. The colonial militias

were broad-based, composed of all able-bodied white men, who were expected to

be armed with the private weapons that all households were required to keep

(regardless of eligibility for militia duty), there being a “general obligation of all

adult male inhabitants to possess arms, and, with certain exceptions, to cooperate

in the work of defense.”

196

Citizens sometimes were required not only to own

mark and undesignedly kills a man: for the act is lawful, and the effect is merely accidental”); 3 id. at

*4 (noting limitation of self-defense to “resistance” that “does not exceed the bounds of mere defence

and prevention”).

196

United States v. Miller, 307 U.S. 174, 179–80 (1939) (internal quotation marks omitted). See

Kates, supra note 33, 82 Mich. L. Rev. at 215–16 (“With slight variations, the different colonies

imposed a duty to keep arms and to muster occasionally for drill upon virtually every able-bodied

white man between the age of majority and a designated cut-off age. Moreover, the duty to keep arms

applied to every household, not just to those containing persons subject to militia service. Thus, the

over-aged and seamen, who were exempt from militia service, were required to keep arms for law

enforcement and for the defense of their homes from criminals or foreign enemies.”) (footnotes

omitted). In Virginia, “Every able-bodied freeman, between the ages of 16 and 50, is enrolled in the

militia. . . . The law requires every militia-man to provide himself with the arms usual in the regular

service.” That requirement “was always indifferently complied with,” and the militia’s arms were

“frequently called for to arm the regulars,” so that “in the lower parts of the country they are entirely

disarmed.” But “[i]n the middle country a fourth or fifth part of them may have such firelocks as they

had provided to destroy the noxious animals which infest their farms; and on the western side of the

Whether the Second Amendment Secures an Individual Right

175

weapons but also to carry them, and the class-based distinctions of England

generally did not apply.

197

America had its own set of distinctions, based on race,

but even free blacks were often allowed to possess arms as individuals, even

though usually barred from militia service.

198

Boston was the focus of early opposition to Britain, and its leaders invoked

both the individual right to arms (as secured by the 1689 Bill of Rights and also as

expounded by Blackstone) and the local duty of being armed. A 1768 town

meeting led by Samuel Adams, John Hancock, and others resolved that the right

enacted in the English Bill of Rights was “founded in Nature, Reason and sound

Policy, and is well adapted for the necessary Defence of the Community,” while

also praising the colony’s law requiring “every listed Soldier and other House-

holder” to be armed. The resolution thus requested that any Bostonian lacking

arms “duly . . . observe the said Law.”

199

Boston newspapers defended the

meeting’s actions:

[I]t is certainly beyond human art and sophistry, to prove the British

subjects, to whom the privilege of possessing arms is expressly rec-

ognized by the Bill of Rights, and, who live in a province where the

law requires them to be equip’d with arms, &c. are guilty of an ille-

gal act, in calling upon one another to be provided with them, as the

law directs.

200

Blue [R]idge they are generally armed with rifles.” Jefferson, Notes, supra note 56, at 88. For more

regarding the militia, see Part II.C.2–4 above.

197

See Malcolm, To Keep and Bear Arms, supra note 33, at 139 (quoting colonial statutes from

Rhode Island, Virginia, and Georgia); Kates, supra note 33, 82 Mich. L. Rev. at 216 (discussing

Georgia law); id. at 240 (“the English Game Acts . . . had never been a part of the colonial law”); 5

Tucker’s Blackstone, supra note 60, at *175 n.16 (describing game laws of Virginia, limited to

prohibiting trespass and conversion and establishing hunting season for deer).

198

See Cottrol & Diamond, supra note 33, 80 Geo. L.J. at 323–27 (noting that “the traditional

English right” became “a much broader American one” as part of “a more general lessening of class,

religious, and ethnic distinctions among whites in colonial America,” but that “the law was much more

ambivalent with respect to blacks”; surveying varying colonial laws regarding right of blacks to carry

weapons or keep them in their homes, and noting usual exclusion from militia duty, except in “times of

crisis”); Malcolm, To Keep and Bear Arms, supra note 33, at 140–41 (“The second group [after

Indians] forbidden to possess weapons were black slaves, with restrictions sometimes extended to free

blacks . . . . Northern colonies were ambivalent about blacks possessing firearms”; surveying colonial

laws and drawing parallel to England’s ambivalent treatment of right of Roman Catholics to have

arms).

199

Boston Chron., Sept. 19, 1768, at 363, col. 2, quoted in Halbrook, Right to Bear Arms, supra

note 56, at 1–2. This resolution was republished in the Maryland Gazette. See id. at 61.

200

Bos. Gazette, and Country J., Jan. 30, 1769, at 2, col. 1, quoted in Halbrook, Right to Bear Arms,

supra note 56, at 6; see Boston Under Military Rule, 1768–1769, as Revealed in a Journal of the Times

61 (Oliver Morton Dickerson ed., 1936) (reprinting same passage from Boston Evening Post, Apr. 3,

1769).

Opinions of the Office of Legal Counsel in Volume 28

176

A subsequent article by Adams recounted the English Revolution and then quoted

both of Blackstone’s primary discussions of the right to arms. Adams attacked

critics of the “late vote of this town, calling upon the inhabitants to provide

themselves with arms for their defence,” as insufficiently “attend[ing] to the rights

of the constitution.”

201

The New York Journal Supplement reiterated this argument:

It is a natural right which the people have reserved to themselves,

confirmed by the Bill of Rights, to keep arms for their own defence;

and as Mr. Blackstone observes, it is to be made use of when the

sanctions of society and law are found insufficient to restrain the vio-

lence of oppression.

202

The individual’s right to have and use arms for self-defense was reaffirmed in

the celebrated “Boston Massacre” murder trial, in 1770, of British soldiers for

firing on a harassing crowd. (Soldiers had been garrisoned in Boston since late

1768.) John Adams, counsel for the soldiers, argued that they had acted in self-

defense. In his closing argument, he quoted William Hawkins’s Treatise on the

Pleas of the Crown to establish that “‘every private person seems to be authorized

by the law, to arm himself’” to defend against dangerous rioters. Adams added:

“Here every private person is authorized to arm himself, and on the strength of this

authority, I do not deny the inhabitants had a right to arm themselves at that time,

for their defence . . . .”

203

Adams reiterated that view in his 1787 Defence of the

Constitutions of Government of the United States of America, recognizing the

propriety of “arms in the hands of citizens, to be used . . . in private self-

defence.”

204

British authorities, much like Charles II and James II a century before, moved

to disarm the colonists as hostilities mounted in 1774. Britain banned the export of

arms and ammunition to any of the colonies and ordered General Gage to consider

how to disarm residents of rebellious areas. At least in Massachusetts, some

disarmament occurred, and in the “Powder Alarm” of September 1, 1774, British

201

Samuel Adams, Boston Gazette, Feb. 27, 1769, reprinted in 1 Founders’ Constitution, note 118,

at 90. Adams quoted 1 William Blackstone, Commentaries *143–44 & *144.

202

Boston, March 17, N.Y.J. Supp., Apr. 13, 1769, at 1, col. 3, reprinted in Boston Under Military

Rule at 79; see Halbrook, Right to Bear Arms, supra note 56, at 7 (quoting same passage).

203

3 Legal Papers of John Adams 248 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965) (quoting

“Hawkins p. 71, § 14”). For the facts, see id. at 1 (note). Adams secured several acquittals. Id. at 29.

204

3 John Adams, A Defence of the Constitutions of Government of the United States of America

475 (1787). The Ninth Circuit selectively quoted this sentence to claim that Adams “ridiculed . . . an

individual right to personal arms” and asserted that “the general availability of arms” would “‘demolish

every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man—it is a

dissolution of the government.’” Silveira, 312 F.3d at 1085. In these portions, Adams was merely

arguing against command of the militia by private persons or localities, while also expressly reiterating

the right of arming for private self-defense.

Whether the Second Amendment Secures an Individual Right

177

soldiers seized ammunition belonging to the colonial militia.

205

These actions

stiffened resistance throughout the colonies

206

and led the colonists to form

independent local militias with broad membership, the “Minutemen.”

207

Gage’s

attempts in late 1774 and early 1775 to seize these groups’ arms across Massachu-

setts provoked confrontations with large forces of armed colonists, and the

Revolution was famously ignited by his efforts to do so at Concord and Lexington

in April 1775.

208

Virginia Governor Dunmore’s raid on an ammunitions store in

Williamsburg soon thereafter prompted a similar response, as militiamen sur-

rounded his home.

209

British authorities’ continuing efforts to disarm colonists

were among the actions that the Continental Congress cited when, in July 1775, it

declared the colonies’ reasons for taking up arms.

210

As the colonists armed and organized themselves, their leaders continued to

turn to their rights as British subjects and praised the citizen militias that these

rights made possible. George Mason’s actions in Virginia (in conjunction with

George Washington and others) provide an example. In September 1774, he

chaired a meeting of Fairfax County citizens to form a private militia association

known as the Fairfax Independent Company. Being “threat’ned with the Destruc-

tion of our Civil-rights, & Liberty, and all that is dear to British Subjects &

Freemen,” members promised to keep themselves well armed and to train together

under elected officers.

211

The following January, in a document attributed to

Mason, the county’s Committee of Safety recommended a tax to purchase

ammunition, resolved that “a well regulated Militia, composed of gentlemen

freeholders, and other freemen, is the natural strength and only stable security of a

205

See Hardy, supra note 33, 9 Harv. J.L. & Pub. Pol’y at 590; Halbrook, Right to Bear Arms,

supra note 56, at 9, 16, 72. Soldiers seized provincial armories in Cambridge and Charlestown. In

response, “twenty thousand Yankees picked up their muskets and headed for Boston” to confront the

British. Robert A. Gross, The Minutemen and Their World 55 (1976).

206

See First Continental Congress, Appeal to the Inhabitants of Quebec (Oct. 1774), reprinted in 1

American Political Writing During the Founding Era, 1760–1805, at 237 (Charles S. Hyneman &

Donald S. Lutz eds., 1983) (“The injuries of Boston have roused and associated every colony.”);

Halbrook, Right to Bear Arms, supra note 56, at 88–89 (quoting warning of South Carolina’s

governing body in 1774 against British “design of disarming the people of America” through the

embargo).

207

See Gross, Minutemen, supra note 205, at 59. In Concord, “Minutemen trained twice a week on

the common and carried their muskets everywhere, in the fields, in shops, even in church.” When they

were mustered in March 1775, it “presented a revealing portrait of the community. This was a citizen

army of rural neighbors. . . . The Concord militia included nearly everyone between the ages of sixteen

and sixty.” Id. at 69–70.

208

Hardy, supra note 33, 9 Harv. J.L. & Pub. Pol’y at 590–91; Malcolm, To Keep and Bear Arms,

supra note 33, at 145–46.

209

Hardy, supra note 33, 9 Harv. J.L. & Pub. Pol’y at 592; Halbrook, Right to Bear Arms, supra

note 56, at 16.

210

1 Journals of Congress 137 (July 6, 1775) (1800); see Halbrook, Right to Bear Arms, supra note

56, at 13–15; Hardy, supra note 33, 9 Harv. J.L. & Pub. Pol’y at 591.

211

1 Mason Papers, supra note 56, at 210–11.

Opinions of the Office of Legal Counsel in Volume 28

178

free Government,” and urged residents “from sixteen to fifty years of age” to

choose officers, “provide themselves with good Firelocks,” and train.

212

In April

1775, Mason addressed the Company and praised it as formed “for the great and

useful purposes of defending our country, and preserving those inestimable rights

which we inherit from our ancestors.” In a time of “threatened . . . ruin of that

constitution under which we were born,” it was a security “that in case of absolute

necessity, the people might be the better enabled to act in defence of their invaded

liberty.”

213

Similar sentiments appeared in North Carolina. Soon after Lexington and Con-

cord, the royal Governor denounced those urging people “to be prepared with

Arms” and train under committees of safety.

214

But in July 1775, North Carolina’s

delegates to the Continental Congress urged the committees to “form yourselves

into a Militia” in the exercise of “the Right of every English Subject to be

prepared with Weapons for his Defense.”

215

In October 1775, Britain declared the colonies in rebellion,

216

but organizational

efforts continued. John Adams, in his Thoughts on Government written in early

1776 in response to requests for advice, recommended a “Militia Law requiring all

men, or with very few exceptions, besides cases of conscience, to be provided with

arms and ammunition, to be trained at certain seasons.” Such a law would be

“always a wise institution” but was “in the present circumstances of our country

indispensible.”

217

Many lauded the citizen militias that fought in the Revolution. American Gen-

eral Nathanael Greene, writing to Thomas Jefferson, remarked on the “Enterprize

and Spirit” of “this Great Bulwark of Civil Liberty [that] promises Security and

Independence to this Country.”

218

Americans credited crucial early victories to the

citizen militias, even while recognizing their limitations.

219

Well after the war,

212

Id. at 212.

213

Id. at 229–31.

214

See Halbrook, Right to Bear Arms, supra note 56, at 29–30.

215

Richard Caswell, William Hooper, & Joseph Hewes, To the Committees of the Several Towns

and Counties of the Province of North Carolina, N.C. Gazette (Newburn), July 7, 1775, at 2, col. 3,

excerpted in Halbrook, Right to Bear Arms, supra note 56, at 29.

216

See 4 Papers of John Adams 78 n.6 (Robert J. Taylor ed., 1979) (editorial note).

217

John Adams, Thoughts on Government (Apr. 1776), reprinted in 4 id. at 91. This pamphlet,

written for political leaders in North Carolina, Virginia, and New Jersey, was widely reprinted and

discussed for several years. See id. at 65, 68–72 (editorial note).

218

Letter from Greene to Jefferson (Nov. 20, 1780), in 4 Jefferson Papers, supra note 62, at 130–

31.

219

See, e.g., A Democratic Federalist, Penn. Herald, Oct. 17, 1787, reprinted in 2 Ratification,

supra note 67, at 197 (arguing that “a well-regulated militia” is “sufficient for every purpose of internal

defense,” as shown by victories at Lexington and Bunker Hill); Va. Ratif. Conv., in 9 Ratification,

supra note 67, at 981 (remarks of Edmund Randolph, June 6, 1788) (“I will pay the last tribute of

gratitude to the militia of my country: They performed some of the most gallant feats during the last

war, and acted as nobly as men enured to other avocations could be expected to do: But, Sir, it is

Whether the Second Amendment Secures an Individual Right

179

James Madison could argue in The Federalist that an oppressive army would be

no match for citizen militias, as “[t]hose who are best acquainted with the late

successful resistance of this country against the British arms” would recognize. He

also pointed to “the advantage of being armed, which the Americans possess over

the people of almost every other nation,” governments in most of the world being

“afraid to trust the people with arms.”

220

2. Early Constitutional Recognition of the Right

One product of this experience of the American Revolution was that several

states included explicit right to bear arms provisions in declarations of rights that

they adopted during the war. These appeared in Pennsylvania, North Carolina,

Vermont, and Massachusetts. In the identical provisions of Pennsylvania and

Vermont, the language plainly reaffirmed the established right of individuals to

arm themselves for self-defense. In the provisions of North Carolina and Massa-

chusetts, although the express scope of the right may have been narrower, the right

still belonged to individuals—these state provisions could not have been intended

to protect the states’ prerogatives, nor did they restrict the right to participants in

militia units. Other states, most notably Virginia, did not include any provision

regarding the right to bear arms in their declarations but did praise “a well

regulated Militia.”

221

Virginia. Virginia’s Declaration of Rights, adopted a month before the Declara-

tion of Independence, was the country’s first. Section 13 provided:

That a well regulated militia, composed of the body of the people,

trained to arms, is the proper, natural, and safe defence of a free

State: that standing armies, in time of peace, should be avoided, as

dangerous to liberty; and that in all cases the military should be un-

der strict subordination to, and governed by, the civil power.

222

dangerous to look to them as our sole protectors.”); The Federalist No. 25, at 161–62 (Alexander

Hamilton) (praising militias’ valor but emphasizing insufficiency for defense). General Greene

recognized that the militia should “not [be] depended upon as a principal but employed as an

Auxilliary.” Letter to Jefferson, reprinted in 4 Jefferson Papers, supra note 62, at 131.

220

The Federalist No. 46, at 321–22.

221

The first constitutions of New Jersey, South Carolina, Georgia, and New York did not include

separate bills of rights. Their constitutions did protect a few rights, but did not include the right to arms

or general statements regarding the militia. See 1 Schwartz, Bill of Rights, supra note 67, at 256 (N.J.

1776); id. at 291 (Ga. 1777); id. at 301 (N.Y. 1777); id. at 325 (S.C. 1778). Georgia did provide for

forming a militia battalion in any county with “two hundred and fifty men, and upwards, liable to bear

arms,” id. at 297, and New York declared the duty of all to provide personal service to protect society,

see id. at 312, much as the Pennsylvania Declaration, discussed below, did. Connecticut and Rhode

Island did not adopt new constitutions. Id. at 289.

222

Va. Bill of Rights § 13 (1776), reprinted in 7 Federal and State Constitutions, supra note 78, at

3814.

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180

This provision expressly recognizes the background definition of “militia”

explained in Part II.C: It was not a specialized or select force, but rather a force of

the people. Such an understanding of the militia is consistent with the right of

individuals to have arms—particularly given that, as we have explained, the

citizen militia was supposed to be “trained to” its members’ private arms.

223

Significantly, the provision’s primary author was George Mason,

224

whose public

views have already been noted and who would play a leading role twelve years

later, explained below, in authoring the proposal of Virginia’s ratifying convention

that placed together in a single article the individual right and this praise of the

citizen militia.

225

Pennsylvania. Pennsylvania adopted its Declaration of Rights in September

1776. Article 13, immediately following an article providing “[t]hat the people

have a right to freedom of speech,” read:

That the people have a right to bear arms for the defence of them-

selves and the state; and as standing armies in the time of peace are

dangerous to liberty, they ought not to be kept up; And that the mili-

tary should be kept under strict subordination to, and governed by,

the civil power.

226

While following the same structure as Virginia’s (of which the convention

members were well aware

227

), this article replaced the praise of the well-regulated

citizen militia with a right—a right of “the people,” who, just as they had an

individual right to speak, also had an individual right to “bear arms,” for either of

the dual purposes of defending “themselves and the state.” The article does not

restrict the right to those in militia service, which it does not mention and which

Pennsylvania addressed separately: Article 8 broadly provided that “every member

of society,” receiving protection from it, was bound to contribute money and “his

223

Regarding this point and the meaning of both “militia” and “well regulated militia,” see above

Parts II.C.2–4 and III.B.1, at note 196 (quoting Jefferson’s Notes on the State of Virginia, supra note

56).

224

See 1 Mason Papers, supra note 56, at 274–75, 286 (editorial notes); id. at 287 (final draft).

225

Delaware, Maryland, and New Hampshire adapted Virginia’s language, omitting definition of

the militia and changing “free state” to “free government” while retaining the implicit connection

between “a well regulated militia” and the avoidance of standing armies and military insubordination.

See Del. Decl. of Rights §§ 18–20 (1776), reprinted in 5 Founders’ Constitution, note 118, at 5, 6; Md.

Decl. of Rights §§ 25–27 (1776), reprinted in 3 Federal and State Constitutions, supra note 78, at

1688; N.H. Const. pt. I, arts. 24–26 (1784), reprinted in 4 Federal and State Constitutions, supra note

78, at 2456. The Delaware Constitution also specially provided that “[t]o prevent any violence or force

being used at . . . elections, no person shall come armed to any of them, and no muster of the militia

shall be made on that day.” Del. Const. art. XXVIII (1776), reprinted in 1 Federal and State

Constitutions, supra note 78, at 567.

226

Reprinted in 5 Federal and State Constitutions, supra note 78, at 3083.

227

See 1 Mason Papers, supra note 56, at 276 (note discussing “the widespread and almost imme-

diate influence of the Virginia Declaration of Rights on other nascent states,” including Pennsylvania).

Whether the Second Amendment Secures an Individual Right

181

personal service when necessary,” while allowing an exception for anyone

“conscientiously scrupulous of bearing arms, . . . if he will pay [an] equivalent.”

228

And the plan of government, adopted concurrently, provided for a militia of “[t]he

freemen of this commonwealth and their sons.”

229

The plan of government also provided that persons could use their arms to hunt

(without trespassing): “The inhabitants of this state shall have liberty to fowl and

hunt in seasonable times on the lands they hold, and on all other lands therein not

inclosed.”

230

Regardless of the relevance of this provision to the contours of the

right to bear arms (a question beyond the scope of this memorandum), the

provision does seem to have been viewed as a practical security for, and thus a

way of emphasizing the importance of, the right of individuals that Pennsylvania

had elsewhere secured. The view that the English game laws—which had provided

for disarming many in the name of the hunting privileges of a few—had been a

pretext for undermining the right in practice was prevalent at the time. Thomas

Paine had criticized the game laws in the Pennsylvania Magazine the year before

Pennsylvania adopted its constitution, and one newspaper article, although

recognizing that the newer game acts did not prohibit merely keeping a gun,

argued that English aristocrats still used them to disarm commoners, by procuring

witnesses to claim that defendants had used their arms for hunting.

231

Pennsylvania held another convention from November 1789 through Septem-

ber 1790, as the Second Amendment was before the states for ratification. The

resulting constitution retained essentially the same individual right. Section 21 of

the declaration of rights, immediately following a section providing “[t]hat the

citizens have a right” to assemble and petition, provided:

That the right of the citizens to bear arms, in defence of themselves

and the State, shall not be questioned.

232

228

5 Federal and State Constitutions, supra note 78, at 3083. Such personal service would be

difficult if one could not own private arms. This duty may have been broader than the obligation of

militia duty, perhaps including the posse comitatus. See generally The Federalist No. 29, at 182–83

(Alexander Hamilton). New Hampshire’s constitution, while praising the well-regulated militia,

recognized this duty separately, N.H. Const. pt. I, arts. 12–13, reprinted in 4 Federal and State

Constitutions, supra note 78, at 2455, although New York’s connected the two, N.Y. Const. § 40

(1777), reprinted in 5 id. at 2637.

229

Pa. Plan or Frame of Gov’t § 5 (1776), reprinted in 5 Federal and State Constitutions, supra

note 78, at 3084.

230

Id. § 43, reprinted in 5 Federal and State Constitutions, supra note 78, at 3091.

231

See Halbrook, Right to Bear Arms, supra note 56, at 23–25. Some in England shared this con-

cern. See Schwoerer, supra note 168, 76 Chi.-Kent L. Rev. at 52–53.

232

Pa. Const. art. IX, §§ 20 & 21, reprinted in 5 Federal and State Constitutions, supra note 78, at

3101. Section 22 addressed standing armies and civilian control of the military. Kentucky, admitted in

1791 as the fifteenth state, copied this language on the right verbatim. See Ky. Const. art. XII, § 23

(1792), reprinted in 3 Federal and State Constitutions, supra note 78, at 1275.

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182

Separately, in the body of the constitution, the protection of conscientious

objectors was combined with the provision relating to the citizen militia:

The freemen of this commonwealth shall be armed and disciplined

for its defence. Those who conscientiously scruple to bear arms shall

not be compelled to do so, but shall pay an equivalent for personal

service. The militia officers shall be appointed in such manner and

for such time as shall be directed by law.

233

Thus, the right to “bear arms” remained with individual people, now “the citi-

zens,” and existed for the dual purpose of facilitating the defense of individuals

and the state. Neither purpose was expressly tied to, let alone limited to, service in

the militia. And the duty of “freemen” to “bear arms,” including possible exemp-

tion from that duty, was distinct and was tied to the militia. In both the 1776 and

1790 Pennsylvania constitutions, “bear arms” could and did bear both meanings.

North Carolina. North Carolina adopted its constitution and declaration of

rights in December 1776. Article 17 of the declaration provided:

That the people have a right to bear arms, for the defence of the

State; and, as standing armies, in time of peace, are dangerous to lib-

erty, they ought not to be kept up; and that the military should be

kept under strict subordination to, and governed by, the civil pow-

er.

234

This article mentions only the right of the people to bear arms for “the defence of

the State.” Regardless of the provision’s scope, however, the right still belonged to

individuals, just as the immediately following Article 18 set out a right of

individuals in providing “[t]hat the people have a right to assemble together,” and

in contrast with Article 25’s declaration, in delineating the state’s boundaries, of

“the essential rights of the collective body of the people” in the “property of the

soil.”

235

It would not have made sense, in the context of a state constitution, for a

“right” of “the people” to protect only the prerogatives of the state. And the

provision’s text indicates that all of the people (not just those organized by the

state into militia units) had a right to bear arms, at least in defense of the state. As

an early North Carolina Supreme Court decision recognized, the right in Article 17

belonged “to every man indeed” and “secur[ed] to him a right of which he cannot

233

Pa. Const. art. VI, § 2, reprinted in 5 Federal and State Constitutions, supra note 78, at 3099.

Kentucky also copied this provision. See Ky. Const. art. VI, § 2, reprinted in 3 Federal and State

Constitutions, supra note 78, at 1271.

234

Reprinted in 5 Federal and State Constitutions, supra note 78, at 2788.

235

Id.

Whether the Second Amendment Secures an Individual Right

183

be deprived,” to be exercised “for the safety and protection of his country.”

236

Moreover, by expressly protecting the right of the people to bear arms “for the

defence of the State” (something that North Carolinians were then doing against

the British), the drafters of the North Carolina Constitution do not appear to have

intended to abrogate the arguably more modest individual English right.

237

Indeed,

the president of the constitutional convention, who served on the committee that

wrote the declaration, had been one of the three congressional delegates who the

year before, as discussed above, had urged North Carolinians to exercise “the

Right of every English Subject to be prepared with Weapons for his Defense.”

238

Vermont. The Vermont constitution approved in July 1777 provided that “the

people have a right to bear arms for the defence of themselves and the State,” in an

article identical to Article 13 of Pennsylvania’s Declaration.

239

As in Pennsylvania,

this individual right immediately followed the individual right of “the people . . .

to freedom of speech,” and the constitution separately included a hunting guaran-

tee, citizen militia provisions, and an exception for conscientious objectors.

240

All

of these remained in Vermont’s 1786 and 1793 constitutions.

241

Massachusetts. Article 17 of the Massachusetts Declaration of Rights of 1780

provided:

The people have a right to keep and to bear arms for the common de-

fence. And as, in time of peace, armies are dangerous to liberty, they

ought not to be maintained without the consent of the legislature; and

236

State v. Huntly, 25 N.C. (3 Ired.) 418, 1843 WL 891, at *2. Another early decision recognized

that the right of “free people of color” to bear arms might be abridged—but only because the court

believed that they “cannot be considered as citizens,” or at least not full citizens, not because of any

exclusion from the militia (a subject the court did not mention). State v. Newsom, 27 N.C. (5 Ired.) 250,

1844 WL 1059, at *1, *2.

237

See below note 239.

238

This was Richard Caswell, who became the first governor. Another member of the committee

also had been one of the three delegates. See Halbrook, Right to Bear Arms, supra note 56, at 29–31;

see also 5 Federal and State Constitutions, supra note 78, at 2794.

239

Vt. Const. ch. I, § 15, reprinted in 6 Federal and State Constitutions, supra note 78, at 3741.

The constitution also asserted independence from New York. Id. at 3738–39 (preamble); see Halbrook,

Right to Bear Arms, supra note 56, at 37 (“Recognition of bearing arms to defend the state was more

radical than self-defense, since it justified action by armed private citizens to defend an incipient state

from the constituted authorities of both New York and Great Britain.”). The First Congress admitted

Vermont as the fourteenth state, see Act of Feb. 18, 1791, 1 Stat. 191, in time for it to ratify the Bill of

Rights, see 2 Schwartz, Bill of Rights, supra note 67, at 1202–03.

240

Vt. Const. ch. I, § 14, reprinted in 6 Federal and State Constitutions, supra note 78, at 3741

(speech); id. § 9, at 3740–41 (duty of personal service, and conscientious objectors); id. ch. II, § 5, at

3742 (militia of “freemen . . . and their sons”); id. § 39, at 3748 (hunting).

241

See Vt. Const. ch. I, §§ 10, 15 & 18 (1786), reprinted in 6 id. at 3753 (duty of personal service

and conscientious objectors, speech, and arms, respectively); id. ch. II, § 19, at 3758 (militia, including

all “inhabitants” rather than all freemen and their sons); id. § 37, at 3760 (hunting); Vt. Const. ch. I,

arts. 9, 13 & 16 (1793), reprinted in id. at 3763–64 (duty of personal service and conscientious object-

ors, speech, and arms, respectively); id. ch. II, § 22, at 3768 (militia); id. § 40, at 3770 (hunting).

Opinions of the Office of Legal Counsel in Volume 28

184

the military power shall always be held in an exact subordination to

the civil authority, and be governed by it.

242

In addition, Article 1 announced as among the “natural, essential, and unalienable

rights” of all men “the right of enjoying and defending their lives and liberties”

and “of acquiring, possessing, and protecting property.”

243

Massachusetts was the

first state to add “keep” to “bear.” But this double right was said to be “for the

common defence,” a phrase that arguably limits the purposes for which one might

exercise it. Two towns had unsuccessfully proposed adding “their own and” before

that phrase, one arguing that this change would make Article 17 “harmonize much

better with” Article 1.

244

Even assuming that the phrase “for the common defence” limited the purposes

for which arms could be kept and borne, the “right” remained an individual one—

residing in “the people,” just as Article 19 set out an individual right in providing

that “[t]he people have a right, in an orderly and peaceable manner, to assemble to

consult upon the common good.”

245

Nothing in Article 17 or any other provision

connected the right to service in the militia, much less indicated that this “right” of

the “people” belonged to the state or was intended to protect its prerogatives.

246

Moreover, the addition of the word “keep” to the right of the people reinforced the

individual nature of the right, because, as explained above in Part II.B.1, the

phrase “keep arms” commonly referred to individuals privately possessing their

private arms.

The history of the provision reinforces this understanding of its text as securing

an individual right. The principal draftsman was John Adams, joined by his cousin

Samuel Adams and another individual.

247

As explained above, John Adams

publicly acknowledged the individual right inherited from England both before

and after he wrote the Declaration, and Samuel Adams both helped lead the

Boston town meeting that had urged Bostonians to exercise that individual right

242

Reprinted in 3 Federal and State Constitutions, supra note 78, at 1892.

243

Mass. Const. pt. I, art. 1 (1780), reprinted in id. at 1889.

244

See Halbrook, Right to Bear Arms, supra note 56, at 41–42.

245

Mass. Const. pt. I, art. 19, reprinted in 3 Federal and State Constitutions, supra note 78, at

1892. An early decision of the state’s supreme court, interpreting the Declaration’s protection of the

individual’s “liberty of the press” as not protecting common law libel, drew a parallel to “the right to

keep fire arms, which does not protect him who uses them for annoyance or destruction.” Common-

wealth v. Blanding, 20 Mass. 304, 338 (1825). Whether the court had in mind Article 17 or the right

from England is unclear, but in either case it recognized a right of individuals to keep arms.

246

In addition, the purposes of calling out the militia seem to have been narrower than whatever

“for the common defence” signified, as the governor was authorized to call it out “for the special

defence and safety of the commonwealth,” which appears to have meant war, invasion, or rebellion.

Mass. Const. pt. II, ch. 2, § 1, art. 7, reprinted in 3 Federal and State Constitutions, supra note 78, at

1901.

247

1 Schwartz, Bill of Rights, supra note 67, at 337. The only change between their draft and the

final was the deletion of “standing” before “armies.” Id. at 372 (draft); id. at 364 (deletion).

Whether the Second Amendment Secures an Individual Right

185

and publicly defended its resolution on the authority of the English Bill of Rights

and Blackstone.

248

Much like Mason, Samuel Adams also would, during the

ratification debate, urge that the Constitution protect that right, as we explain

below.

Thus, the right of individual English subjects was transplanted to America.

Americans also, from their experience in the American Revolution, came to

emphasize the citizen militia, which they recognized was furthered by the

individual right to private arms. But the English right as Americans came to

understand it was not, as a result, somehow newly restricted to a person’s service

in that militia, much less to service in a select militia. Nor did early Americans see

the right as a federalism protection (which would not have made sense in the

context of state constitutions) or otherwise the property of the state rather than its

citizens.

C. The Development of the Second Amendment

The proposed Constitution that emerged from the Constitutional Convention in

1787 did not have a bill of rights, notwithstanding a late effort by Mason, joined

by Elbridge Gerry, to have one drawn up “with the aid of the State declarations.”

249

It did contain a careful compromise regarding the militia. The federal government

received, in Article I, Section 8, the powers to call out the militia “to execute the

Laws of the Union, suppress Insurrections, and repel Invasions,” to provide for

“organizing, arming, and disciplining” it, and to govern any part of it in the service

of the federal government (during which the President would be its Commander in

Chief); states expressly retained the authority to appoint officers and to train the

militia.

250

248

As with North Carolina’s emphasis on the “defence of the State,” Massachusetts’s emphasis on

the “common defence” may have represented the assertion of a right that went beyond the traditional

English one. “Common” had been deleted from a similar clause (“for their common defence”) in a draft

of the English Declaration, perhaps at the urging of William of Orange or conservative Lords, who

objected to suggestion of a popular right to check royal power. See Malcolm, To Keep and Bear Arms,

supra note 33, at 119–21.

249

Madison, Notes of Debates, supra note 44, at 630 (Sept. 12, 1787).

250

U.S. Const. art. I, § 8, cls. 15 & 16, and art. II, § 2, cl. 1. The Ninth Circuit claims that there was

“disagreement among the delegates” over whether Congress’s power to arm the militias “should be

exclusive or concurrent” with the states. Silveira, 312 F.3d at 1079. But the court only cites Perpich v.

Dep’t of Defense, 496 U.S. 334, 340 (1990), which does not support this claim; nor do the debates of

the Convention, where the focus was on the extent of any federal authority to establish uniform

discipline and regulation of the militia (including providing for arms), not on whether the states would

retain concurrent authority in areas where federal power was granted. For the two chief debates, see

Madison, Notes of Debates, supra note 44, at 478, 483–85 (Aug. 18, 1787); id. at 512–16 (Aug. 23,

1787). Similarly, the Third Circuit has cited, in support of the collective right view, a statement by

Roger Sherman that states should retain power to use their militias for internal needs. See United States

v. Tot, 131 F.2d 261, 266 (1942), rev’d on other grounds, 319 U.S. 463 (1943) (citing 5 Elliot’s

Debates 445 (2d ed. 1901)). We fail to see how this statement supports that view, particularly given

that no one appears to have disagreed with Sherman; that he served on the committee that drafted what

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186

Proposed bills of rights emerged from the ratifying conventions of several of

the states. Many of these included protection for the right to arms—usually in

language borrowed or adapted from the individual right to arms in the states’

declarations of rights, and in any event always in language indicating an individual

right. In those proposals, several states for the first time in a single constitutional

provision both set out an individual right to arms and praised the citizen militia,

uniting language from the different state declarations discussed above. In addition,

some Anti-Federalists, concerned about the Constitution’s allocation of powers

over the militia, sought to protect the ability of the states to maintain effective

militias. They proposed to do so expressly, in amendments using language similar

to that of Article I, Section 8, and to be placed in the body of the Constitution, not

in a bill of rights.

251

Yet it was the former proposals that laid the foundation for the Second

Amendment. And the latter proposals failed in the Federalist-controlled First

Congress, which was, as many recognized at the time, willing to protect individual

rights but not to alter the balance of power struck by the new Constitution between

the states and the nascent federal government. Thus, the evidence points to an

understanding of the Amendment as securing the individual right to arms already

well established in America, rather than safeguarding the ability of states to

establish well-regulated militias, whether through a “collective right” of states or a

quasi-collective right of militiamen. Rather than “lay down any novel principles of

government,” the Second Amendment embodied the individual “guarant[ee] and

immunit[y]” to which Americans were accustomed.

252

1. Recommendations From the Ratification of the

Original Constitution

Although the right of individuals to have arms was not a subject of much direct

discussion in the ratification debates, two major topics are relevant. First, Anti-

became the final version of Article I, Section 8, Clause 16, Madison, Notes of Debates at 480, 485

(Aug. 18, 1787); id. at 494–95 (Aug. 21, 1787), and generally supported its compromise, id. at 513–14;

and that he saw no need for amendments, see A Countryman No. 2 (1787), reprinted in 14 Ratification,

supra note 67, at 172 (John P. Kaminski & Gaspare J. Saladino eds., 1983); A Countryman No. 3

(1787), reprinted in id. at 296; A Citizen of New Haven (1789), reprinted in Creating the Bill of Rights,

supra note 82, at 220.

251

The Ninth Circuit in Silveira did not mention this latter set of proposals, and the court presented

the comments in the ratification debates most relevant to these separate proposals as if they instead

related to the Second Amendment. See 312 F.3d at 1082–83; see also id. at 1078 (claiming without

citation that “[t]he compromise that the convention eventually reached, which granted the federal

government the dominant control over the national defense, led ultimately to the enactment of the

counter-balancing Second Amendment”).

252

Robertson, 165 U.S. at 281 (discussing Bill of Rights in general); see Silveira, 328 F.3d at 584

(Kleinfeld, J., joined by Kozinski, O’Scannlain, and T.G. Nelson, JJ., dissenting from denial of rehear-

ing en banc) (“The Second Amendment was not novel, but rather codified and expanded upon long

established principles.”).

Whether the Second Amendment Secures an Individual Right

187

Federalists objected to the absence of a bill of rights, often pointing to the English

Bill of Rights (as well as the declarations of the states) as models.

253

The Federal-

ists’ response likewise recognized the English precedent, but sought to distinguish

it on various grounds or to argue that many rights, such as the English Bill of

Rights’ ban on “cruel and unusual punishments,” or “the liberty of the press”

(which developed after the Bill), were too indefinite to provide dependable legal

protections.

254

Second, Anti-Federalists denounced the militia powers to be granted to the

federal government, warning that it would destroy the militia through any number

of means—by neglecting it, by creating a select militia and then neglecting the

general militia, or (somewhat inconsistently

255

) by destroying the militia through

onerous discipline and excessive deployment. The arguments from neglect rested

on the premise that Congress’s power of organizing, arming, and disciplining the

militia would foreclose any such state power. If true, the militia might be left

without any government ensuring its arming and training. The arguments also

were premised on the common understanding of the “militia” as the citizen militia:

The Federal Farmer, the leading Anti-Federalist essayist, admonished that “to

preserve liberty, it is essential that the whole body of the people always possess

arms, and be taught alike, especially when young, how to use them,” and Patrick

Henry, leader in the Virginia Ratifying Convention, warned, “The great object is,

that every man be armed. . . . When this power is given up to Congress without

limitation or bounds, how will your militia be armed?”

256

Anti-Federalists also

warned that Congress would use its power to establish a standing army to trample

253

See, e.g., 2 Complete Anti-Federalist, supra note 101, at 7, 11 (public objections of Mason and

Gerry); Va. Ratif. Conv., reprinted in 10 Ratification, supra note 67, at 1212 (remarks of Patrick

Henry, June 12, 1788) (invoking English Bill and state declarations); Address by Sydney (Robert

Yates) (1788), reprinted in 6 Complete Anti-Federalist, supra note 101, at 107, 109 (similar to Henry).

One of the leading arguments of this point was by the Federal Farmer. See Federal Farmer No. 16

(1788), reprinted in 2 Complete Anti-Federalist, supra note 101, at 323.

254

See, e.g., The Federalist No. 84, at 575–81 (Alexander Hamilton); Marcus No. 1, Answer to Mr.

Mason’s Objections (James Iredell) (1788), reprinted in 1 Debate on the Constitution, supra note 97, at

363–64; Marcus No. 4 (1788), reprinted in id. at 387–90; America, To the Dissenting Members of the

late Convention of Pennsylvania (Noah Webster) (1787), reprinted in 1 Debate on the Constitution,

supra note 97, at 555–60.

255

As one Federalist criticized Luther Martin, an Anti-Federalist who had been a delegate to the

Constitutional Convention: “One hour you sported the opinion, that Congress, afraid of the militia

resisting their measures, would neither arm nor organize them: and the next, as if men required no time

to breathe between such contradictions, that they would harass them by long and unnecessary marches,

till they wore down their spirit and rendered them fit subjects for despotism.” The Landholder No. 10

(1788), reprinted in 16 Ratification, supra note 67, at 265, 267 (John P. Kaminski & Gaspare J.

Saladino eds., 1986).

256

Federal Farmer No. 18 (1788), reprinted in 2 Complete Anti-Federalist, supra note 101, at 342;

Va. Ratif. Conv., in 10 Ratification, supra note 67, at 1276 (Henry, June 14, 1788).

Opinions of the Office of Legal Counsel in Volume 28

188

traditional liberties, particularly after it had destroyed the militia.

257

The Federal-

ists’ response emphasized the same understanding of the citizen militia, asking

how the federal government could tyrannize over a populace armed as America’s

was.

258

As already noted in Part II.D.2 above, they also argued that, in any event,

the states would retain a concurrent power over their militias, including a power to

arm them.

259

Two separate categories of proposed amendments resulted from these two sets

of arguments. Proposed amendments to protect the right to keep and bear arms not

only were phrased as individual rights (even when accompanied by language

concerning the militia and civilian control of the military) but also were distinct

from proposals that would safeguard state powers over the militia or restrain

federal power to create a standing army. (Restriction on standing armies would

257

See, e.g., regarding all of these concerns, John De Witt No. 5 (1787), reprinted in 4 Complete

Anti-Federalist, supra note 101, at 36–37 (warning that federal government would neglect to arm

militia, not trusting the people, and enforce unjust laws through standing army); Pa. Ratif. Conv., in 2

Ratification, supra note 67, at 509 (remarks of John Smilie, Dec. 6, 1787) (“When a select militia is

formed; the people in general may be disarmed.”); Federal Farmer No. 3 (1787), reprinted in 2

Complete Anti-Federalist, supra note 101, at 242 (discounting safeguard of armed “yeomanry of the

people,” whom Congress would undermine through creating select militia); The Genuine Information

Delivered to the Legislature of the State of Maryland Relative to the Proceedings of the General

Convention Lately Held at Philadelphia; By Luther Martin, Esquire (1788), reprinted in 2 Complete

Anti-Federalist, supra note 101, at 59–60 (warning that Congress would use its militia and army

powers “to subvert the liberties of the States and their citizens, since we [allow an unlimited standing

army and,] by placing the militia under its power, enable it to leave the militia totally unorganized,

undisciplined, and even to disarm them”); Va. Ratif. Conv., in 10 Ratification, supra note 67, at 1271

(remarks of Mason, June 14, 1788) (warning that Congress would “disarm the people” gradually, rather

than “openly,” by “totally disusing and neglecting the militia”). Henry repeatedly denounced the al-

legedly exclusive power. See 9 Ratification, supra note 67, at 957 (June 5) (“Of what service would

militia be to you, when most probably you will not have a single musket in the State; for as arms are to

be provided by Congress, they may or may not furnish them.”); id. at 1066 (June 9) (“The power of

arming the militia, and the means of purchasing arms, are taken from the States . . . . If Congress will

not arm them, they will not be armed at all.”).

258

See, e.g., The Federalist No. 46, at 321–22 (James Madison) (contrasting the “advantage of

being armed, which the Americans possess,” with the circumstances in “several kingdoms of Eu-

rope . . . [where] the governments are afraid to trust the people with arms”); An American Citizen IV:

On the Federal Government (Tench Coxe) (1787), reprinted in 13 Ratification, supra note 67, at 433

(John P. Kaminski & Gaspare J. Saladino eds., 1981) (arguing that, if tyranny threatened, the “friends

to liberty . . . using those arms which Providence has put into their hands, will make a solemn appeal

‛to the power above’”); A Citizen of America, An Examination Into the Leading Principles of the

Federal Constitution (Noah Webster) (1787), reprinted in 1 Debate on the Constitution, supra note 97,

at 155 (“Before a standing army can rule the people must be disarmed; as they are in almost every

kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because

the whole body of the people are armed”).

259

John Marshall, for example, provided a standard analysis: “The truth is, that when power is

given to the General Legislature, if it was in the State Legislatures before, both shall exercise it; unless

there be an incompatibility in the exercise by one, to that by the other; or negative words precluding the

State Governments from it. But there are no negative words here. It rests therefore with the States.” Va.

Ratif. Conv., in 10 Ratification, supra note 67, at 1307 (June 16, 1788).

Whether the Second Amendment Secures an Individual Right

189

help ensure that the new government maintained the militia, by ensuring the

government’s dependence on it.)

Pennsylvania’s Convention, the second to meet, ratified the Constitution by a 2

to 1 margin in December 1787, without proposing amendments.

260

A week later, 21

of the 23 dissenting delegates published their Address and Reasons of Dissent

(“Minority Report”), including amendments that they had proposed but the

convention had refused to consider. It drew heavily from the 1776 Pennsylvania

Declaration of Rights. The proposal regarding arms was Article 7, immediately

following one stating that “the people have a right to the freedom of speech,” and

it read as follows:

That the people have a right to bear arms for the defence of them-

selves and their own State or the United States, or for the purpose of

killing game; and no law shall be passed for disarming the people or

any of them unless for crimes committed, or real danger of public in-

jury from individuals; and as standing armies in the time of peace are

dangerous to liberty, they ought not to be kept up; and that the mili-

tary shall be kept under strict subordination to, and be governed by

the civil powers.

261

Article 8, immediately following, protected the right to hunt on one’s private

property and certain other lands.

262

Separately, the Minority sought, in Article 11, both to restrict Congress’s Arti-

cle I, Section 8, Clause 16 powers over the militia and to protect state authority

over it, by providing “[t]hat the power of organizing, arming and disciplining the

militia (the manner of disciplining the militia to be prescribed by Congress),

remain with the individual States.”

263

They warned that, without this restriction,

Congress’s power over the militia could place “every man, probably from sixteen

to sixty years of age” under Congress’s power and military discipline—

260

Delaware already had ratified unanimously. After Pennsylvania’s vote, New Jersey, Georgia,

and Connecticut ratified by large majorities. No proposed amendments emerged from these conven-

tions. See 2 Schwartz, Bill of Rights, supra note 67, at 627, 674. Maryland ratified on April 26, 1788,

without proposing amendments, although a committee had approved several, including a prohibition on

subjecting the militia to martial law “except in time of war, invasion, or rebellion.” The committee

understood the militia to consist of “all men, able to bear arms,” which would make martial law for the

militia a pretext for applying it to the populace. See id. at 729–30, 734–35.

261

2 Schwartz, Bill of Rights, supra note 67, at 665. Tench Coxe, in a critique of the Minority,

described this proposal as a “provision against disarming the people.” Philanthropos, Penn. Gazette,

1788, reprinted in 15 Ratification, supra note 67, at 391, 393.

262

2 Schwartz, Bill of Rights, supra note 67, at 665. Noah Webster suggested that the Minority also

propose “[t]hat Congress shall never restrain any inhabitant of America from eating and drinking, at

seasonable times.” His serious criticism of Article 8 was that it was useless because aimed at game

laws, which had never existed in America. He did not comment on Article 7. America, Daily

Advertiser, 1787, reprinted in 1 Debate on the Constitution, supra note 97, at 559–60.

263

2 Schwartz, Bill of Rights, supra note 67, at 665.

Opinions of the Office of Legal Counsel in Volume 28

190

particularly “our young men, . . . as a select militia, composed of them, will best

answer the purposes of government”—and also could leave conscientious

objectors compelled to bear arms in the militia.

264

As in Pennsylvania’s 1776

declaration and constitution, a right to bear arms was distinct from bearing arms in

service to the government. There was no suggestion that the individual right

somehow would directly guard the states’ power, and this separate proposal and

comment indicate that the Minority believed that it would not.

The Massachusetts Convention was the first to include with its ratification, in

February 1788, a list of recommended amendments. The Federalists prepared and

had John Hancock introduce the nine proposals to woo marginal Anti-Federalists.

Samuel Adams, while supporting Hancock’s list, also led an effort to add several

rights that would appear in the First, Second, and Fourth Amendments, plus a ban

on standing armies “unless when necessary for the defence of the United States, or

of some one or more of them.” Regarding arms, he proposed that the Constitution

“be never construed to authorize Congress . . . to prevent the people of the United

States, who are peaceable citizens, from keeping their own arms.” This language

indicated that the “people” consisted of the “citizens,” who would, so long as they

were peaceable, individually keep private arms. Adams’s proposed additions were

voted down, and the Convention then narrowly voted to ratify and to recommend

the Federalists’ list.

265

Four months later, New Hampshire’s Convention, also closely divided, adapted

some of Adams’s proposals.

266

It recommended the nine amendments that Massa-

chusetts had, but added three: one calling for a supermajority before Congress

could keep up a standing army in peacetime; the next barring Congress from

making laws regarding religion or infringing the rights of conscience; and the final

one providing that “Congress shall never disarm any Citizen unless such as are or

have been in Actual Rebellion.”

267

New Hampshire thus became the first state

whose ratifying convention as a body recommended that the Constitution protect a

right to arms. Again, the right belonged to the individual citizen.

Although New Hampshire had provided the crucial ninth state for the Constitu-

tion to take effect,

268

the convention of Virginia, occurring simultaneously and

concluding four days later (on June 25, 1788), had particular importance, not only

because of the possibility that Virginia would be the ninth state to ratify but also

because of the state’s significance, the prominence of its leaders, and the strength

264

Id. at 671–72.

265

Id. at 674–75, 681. South Carolina ratified in May 1788 without proposing any relevant amend-

ments. See id. at 739, 756–57.

266

The convention had adjourned in February 1788 to avoid a vote against ratification. When it

reconvened in the summer, it ratified by a vote of 57 to 47. See id. at 758.

267

Id. at 761; see id. at 758 (noting that the first nine New Hampshire amendments “were taken

almost verbatim from those proposed by Massachusetts”).

268

Id. at 758. See U.S. Const. art. VII.

Whether the Second Amendment Secures an Individual Right

191

of the Anti-Federalists, led by Patrick Henry.

269

The convention did vote to ratify,

but also recommended numerous amendments. Written by a committee of Mason,

Henry, Madison, George Wythe, and John Marshall, twenty were proposed for a

separate bill of rights and twenty for the body of the Constitution. Those in the

former category amounted to the first full bill of rights proposed by a state

convention, and most made their way into the federal Bill of Rights.

270

The proposal regarding arms appeared in the bill, immediately after the

“right[s]” of “the people” to assemble and petition and to speak, write, and

publish. It was a synthesis from the leading state declarations, providing:

That the people have a right to keep and bear arms; that a well-

regulated militia, composed of the body of the people trained to

arms, is the proper, natural, and safe defence of a free state; that

standing armies, in time of peace, are dangerous to liberty, and there-

fore ought to be avoided, as far as the circumstances and protection

of the community will admit; and that, in all cases, the military

should be under strict subordination to, and governed by, the civil

power.

271

The two strands evident in the Revolutionary Era—an individual right to arms and

high regard for the citizen militia—were brought together: The proposal combined

an individual right to arms provision such as those from the Pennsylvania and

Massachusetts Declarations with the praise of the militia from Virginia’s. The

“people” would have a right to keep and bear arms, and a well-regulated militia

composed “of the body of the people”—the people as an organized whole—would

protect “a free state.” This language became the foundation for the Second

Amendment. In addition, the combination of the two clauses indicates (as the

differing first clauses of the analogous articles in the Virginia and Pennsylvania

Declarations had done separately) that the individual right and the well-regulated

militia both would contribute to the avoidance of standing armies and to civilian

rule.

Only in its separate list of amendments for the body of the Constitution did the

Virginia convention directly protect the power of states to maintain militias and

restrict the federal power to raise standing armies. It recommended a supermajori-

ty vote for Congress to maintain a peacetime army (in the spirit of Samuel Adams

and the New Hampshire Convention), and it sought to protect state power over the

militia (much as the Pennsylvania Minority had) with the following provision:

269

See 2 Schwartz, Bill of Rights, supra note 67, at 762, 764.

270

See id. at 765–66.

271

2 Schwartz, Bill of Rights, supra note 67, at 842. Mason drafted this provision. See 9 Ratification,

supra note 67, at 821 (reprinting Mason’s draft). Two articles later, Virginia also proposed exemptions for

those “religiously scrupulous of bearing arms,” again borrowing from Pennsylvania’s Declaration.

2 Schwartz, Bill of Rights, supra note 67, at 842.

Opinions of the Office of Legal Counsel in Volume 28

192

That each state respectively shall have the power to provide for or-

ganizing, arming, and disciplining its own militia, whensoever Con-

gress shall omit or neglect to provide for the same.

272

These distinct proposals confirm what is evident from the declarations included

with the proposal for the bill of rights: The individual right of the people to keep

and bear arms does not directly guard any power of states to maintain militias.

(Much less does it guarantee against standing armies.) But it does indirectly

further the policy of having a well-regulated militia of the body of the people, as

well as that of mitigating the need for and risk from a standing army.

The New York Convention, voting just over a month after Virginia’s (and

ratifying by only 30–27), followed Virginia’s model. The separate declaration of

rights included both an individual right to keep and bear arms (immediately after

the “right” of “the People” to free exercise of religion) and declarations regarding

the militia and standing armies:

That the People have a right to keep and bear Arms; that a well regu-

lated Militia, including the body of the People capable of bearing

arms, is the proper, natural, and safe defence of a free State.

. . . .

That standing Armies in time of Peace are dangerous to Liberty, and

ought not to be kept up, except in Cases of necessity; and that at all

times, the Military should be under strict Subordination to the civil

Power.

273

For the body of the Constitution, New York proposed, like New Hampshire and

Virginia, an amendment requiring a supermajority for Congress to maintain a

peacetime standing army. It did not propose express protection of state power over

the militia.

274

The force of Virginia’s proposals is evident not only in New York’s borrowing

but also in the first North Carolina Convention. On August 1, 1788, North

Carolina became the only state to decline to ratify until the Constitution had been

amended to include a bill of rights (Rhode Island had declined even to call a

convention), and it proposed verbatim the amendments that Virginia had pro-

posed—including the individual right to keep and bear arms and the separate

proposals, for the body of the Constitution, guarding state power over the militias

and mandating supermajorities for standing armies. North Carolina’s actions made

272

2 Schwartz, Bill of Rights, supra note 67, at 843.

273

Id. at 912. New York did not propose any protection for conscientious objectors.

274

Id. at 915, 918.

Whether the Second Amendment Secures an Individual Right

193

the momentum for a bill of rights “virtually irresistible,” and, two months after

Congress approved one, a new convention ratified.

275

Every recommendation in these state conventions regarding the right to arms

sought to protect an individual right—not a “right” to maintain well-regulated

state militias, whether belonging to the states or to those serving in such entities

(much less belonging just to those serving in well-regulated select militias).

Virginia, New York, and North Carolina also appended declaratory clauses to the

right suggesting that it would benefit the citizen militia, preserve the freedom of

the state, and reduce the need for or risk from a standing army. But those states

that wanted to protect state authority to maintain militias (Virginia and North

Carolina) followed the lead of the Pennsylvania Minority by proposing separate

amendments doing so directly, intended not for the bill of rights but for the body

of the Constitution. Thus, regarding the right to arms, those who ratified the

Constitution did nothing novel, but rather followed the path marked by the state

declarations and the earlier right from England. They proposed an individual right,

not a “right” of states and not a right restricted to their militias or militiamen. As

the First Congress met, it had before it numerous proposals for an individual right

to arms and a few proposals for safeguarding state militias by directly protecting

state authority, but none for protecting that authority through a collective or quasi-

collective “right” to arms.

2. The Drafting and Ratification of the Second Amendment

When the First Congress convened in 1789, Federalist Congressman James

Madison moved quickly to win over marginal Anti-Federalists by responding to

the calls for a bill of rights. The House soon approved seventeen amendments. The

Senate reduced these to twelve, of which the states ratified the ten that form the

Bill of Rights.

The Federalists, victorious in ratification and dominant in Congress, openly

avoided any amendment that would materially alter the balance of power with the

states or otherwise threaten legitimate federal powers. Thus, the amendments that

Congress approved were devoted almost exclusively to protecting individual

rights. Of the categories of proposals discussed in the previous subpart, only the

first—the individual right of the people to keep and bear arms—received approval.

The separate proposals for protecting state power to organize, discipline, and arm

the militia and for restricting federal power to maintain standing armies failed.

President Washington set the stage in his inaugural address, urging Congress to

consider amendments out of “a reverence for the characteristic rights of freemen”

but “carefully avoid every alteration which might endanger the benefits of an

275

Id. at 932–33, 968–69; Halbrook, Right to Bear Arms, supra note 56, at 33–34.

Opinions of the Office of Legal Counsel in Volume 28

194

united and effective government.”

276

Madison reiterated this view in introducing

his proposals in June 1789:

It will be a desirable thing to extinguish from the bosom of every

member of the community, any apprehensions that there are those

among his countrymen who wish to deprive them of the liberty for

which they valiantly fought and honorably bled.

. . . .

I should be unwilling to see a door opened for a re-consideration of

the whole structure of the government, for a re-consideration of the

principles and the substance of the powers given . . . . But I do wish

to see a door opened to consider, so far as to incorporate those provi-

sions for the security of rights . . . .

. . . .

I believe that the great mass of the people who opposed [the Consti-

tution], disliked it because it did not contain effectual provision

against encroachments on particular rights, and those safeguards

which they have been long accustomed to have interposed between

them and the magistrate who exercised the sovereign power.

277

Madison also urged Congress to “expressly declare the great rights of mankind”

and provide “those securities for liberty” demanded by North Carolina and Rhode

Island. In contrast, he was confident that those who opposed the Constitution’s

“structure,” powers, or restrictions on state powers were a much smaller group.

278

Other congressmen similarly hoped that such an approach would win over many

of the disaffected in various states.

279

Anti-Federalist leaders recognized this focus on individual rights. Richard

Henry Lee, one of Virginia’s first senators, reported to Patrick Henry about a week

before Madison’s speech “that many of our amendments will not succeed, but my

276

First Inaugural Address (Apr. 30, 1789), reprinted in 1 A Compilation of the Messages and

Papers of the Presidents 43, 45 (James D. Richardson ed., 1897).

277

Speech of Madison (June 8, 1789), reprinted in Creating the Bill of Rights, supra note 82, at 78–

79.

278

Id.

279

See Letter from Rep. Fisher Ames to George R. Minot (July 23, 1789) (discussing North Caroli-

na), reprinted in Creating the Bill of Rights, supra note 82, at 269; Letter from Rep. William L. Smith

to Edward Rutledge (Aug. 9, 1789) (North Carolina; noting disposition of House to “agree to some,

which will more effectually secure private rights”), reprinted in id. at 272–73; Letter from Rep.

Frederick A. Muhlenberg to Benjamin Rush (Aug. 18, 1789) (Pennsylvania Minority), reprinted in id.

at 280.

Whether the Second Amendment Secures an Individual Right

195

hopes are strong that such as may effectually secure civil liberty will not be

refused.”

280

Soon after Madison spoke, Virginia’s other senator, William Grayson,

wrote to Henry that Madison’s proposals “altogether respected personal liberty.”

281

Among Madison’s proposals was the following, which became the Second

Amendment:

The right of the people to keep and bear arms shall not be infringed;

a well armed, and well regulated militia being the best security of a

free country: but no person religiously scrupulous of bearing arms,

shall be compelled to render military service in person.

282

The first and second clauses resembled the proposals of the Virginia, New York,

and North Carolina conventions, including by making the connection between the

individual right and the militia. The first clause stated, as they had, a right both to

keep and to bear arms, which belonged to “the people.” Having made this into a

full sentence, Madison made the second clause, which had been free-standing in

the Virginia, New York, and North Carolina proposals, subordinate to the first. In

shortening the second clause, he omitted the definition of the militia, just as

Delaware, Maryland, and New Hampshire had done in their declarations of

rights.

283

He also omitted the conventions’ disparagement of standing armies and

admonition to civilian rule, and appended protection for conscientious objectors,

which the Pennsylvania Minority, Virginia, and North Carolina had separately

requested. As the Pennsylvania and Vermont Declarations had shown even before

ratification, there was no inconsistency in recognizing both an individual right to

“bear arms” and an individual exemption from being compelled to “bear arms” in

military service.

That Madison envisioned this proposed “right of the people” to secure an indi-

vidual right is confirmed by the notes for his speech, in which he wrote that those

provisions “relat[ing] to what may be called a bill of rights,” including this one,

“relate . . . to private rights”;

284

by his using in his speech the same language to

discuss both the rights of English subjects and those in his proposed bill;

285

and by

280

Letter from Lee to Henry (May 28, 1789), reprinted in Creating the Bill of Rights, supra note

82, at 241.

281

Letter from Grayson to Henry (June 12, 1789), reprinted in id. at 249. See also Letter from

Joseph Jones to Madison (June 24, 1789), reprinted in id. at 253 (describing Madison’s proposed

amendments as well “calculated to secure the personal rights of the people”).

282

Madison Resolution (June 8, 1789), reprinted in id. at 12.

283

See above Part III.B.2, at note 225 (discussing differences from Virginia Declaration).

284

Notes for Speech in Congress (ca. June 8, 1789), reprinted in 12 The Papers of James Madison

193, 193 (Charles F. Hobson et al. eds., 1979) (emphasis added); see id. at 194–95; Speech of Madison,

reprinted in Creating the Bill of Rights, supra note 82, at 80.

285

Compare Speech of Madison, reprinted in Creating the Bill of Rights, supra note 82, at 80

(discussing “the declaration of rights” of England), with id. at 84 (concluding by describing his

proposals “as a declaration of the rights of the people”). In his notes, although apparently not in his

Opinions of the Office of Legal Counsel in Volume 28

196

the location in the body of the Constitution in which he proposed to place these

amendments. He recommended that the right to arms, along with antecedents of

the First, Third, Fourth, Eighth, Ninth, and portions of the Fifth and Sixth

Amendments, be added in Article I, Section 9, immediately after clauses protect-

ing three other individual rights: the writ of habeas corpus and the prohibitions

against ex post facto laws and bills of attainder.

286

It is reasonable to assume that

Madison viewed the additional rights as likewise belonging to the individual.

287

Had he instead intended to protect state militias (whether directly through a

collective right or indirectly through a quasi-collective right), a more reasonable

location would have been in or near the two clauses in Article I, Section 8, that

granted congressional power over the militia, one of which already “reserv[ed] to

the States” certain powers over the militia. And Madison likely would have drawn

from the separate language that Virginia and others had proposed for just this

purpose—but those proposals had the potential to threaten the balance of powers,

at least by inviting disputes over whether the federal government had “ne-

glect[ed]” the militia.

Others also understood Madison’s proposal to secure an individual right to

keep and bear arms. Leading Federalist Congressman Fisher Ames wrote: “Mr.

Madison has introduced his long expected Amendments. . . . It contains a Bill of

Rights . . . [including] the right of the people to bear arms.”

288

Elsewhere he wrote:

“The rights of conscience, of bearing arms, of changing the government, are

declared to be inherent in the people.”

289

Tench Coxe took the same view in his

Remarks on the First Part of the Amendments to the Federal Constitution,

published in the major cities. Writing as “A Pennsylvanian” (a pseudonym that he

had used during the ratification debates), he explained the right that Madison’s

proposal protected as follows:

speech, he pointed out that the English right to arms was limited to Protestants. 12 Madison Papers,

supra note 284, at 193–94.

286

See Creating the Bill of Rights, supra note 82, at 12 (Madison’s proposal); id. at 80, 84 (Madi-

son’s speech). His separate proposal of what would become the Tenth Amendment was to be placed

between Articles 6 and 7, as its own article. Id. at 13–14.

287

The arguable exception, as discussed above in Part II.D.1 regarding the Establishment Clause,

was a prohibition on “any national religion.” Madison proposed other amendments that did not relate to

private rights, such as altering the ratio of representation in the House of Representatives and banning

increases of legislator pay without an ensuing election, but he proposed to place these elsewhere in the

Constitution. Id. at 12.

288

Letter from Ames to Thomas Dwight (June 11, 1789), reprinted in Creating the Bill of Rights,

supra note 82, at 247.

289

Letter from Ames to George R. Minot (June 12, 1789), reprinted in Creating the Bill of Rights,

supra note 82, at 247–48. The right of “changing the government” to which Ames referred was a

provision, in a separate section of Madison’s proposal, affirming the right of the people “to reform or

change their government, whenever it be found adverse or inadequate to the purposes of its institution.”

Regarding such usage of the “the people,” see Part II.A above.

Whether the Second Amendment Secures an Individual Right

197

As civil rulers, not having their duty to the people duly before them,

may attempt to tyrannize, and as the military forces which must be

occasionally raised to defend our country, might pervert their power

to the injury of their fellow citizens, the people are confirmed by

the . . . article in their right to keep and bear their private arms.

290

Coxe recognized that the “right” of “the people” belonged to the “citizens,” who

could both keep and bear “private” arms. He sent his Remarks to Madison the day

that they were published, and Madison six days later returned thanks for his

“explanatory strictures” and the “co-operation of your pen,” noting from New

York City that the Remarks “are already I find in the Gazettes here.”

291

Neither

Madison nor, it appears, anyone else disputed Coxe’s interpretation.

292

Samuel

Nasson, who had been an Anti-Federalist delegate to the Massachusetts Ratifying

Convention, described the right similarly in a letter to a Federalist congressman

from the state a month after Madison introduced his proposals:

I find that Ammendments are once again on the Carpet. I hope that

such may take place as will be for the Best Interest of the whole[.] A

Bill of rights well secured that we the people may know how far we

may Proceade in Every Department[,] then their will be no Dispute

Between the people and rulers[.] [I]n that may be secured the right to

keep arms for Common and Extraordinary Occations such as to se-

cure ourselves against the wild Beast and also to amuse us by fowl-

ing and for our Defence against a Common Enemy[.] [Y]ou know to

learn the Use of arms is all that can Save us from a forighn foe that

may attempt to subdue us[,] for if we keep up the Use of arms and

become acquainted with them we Shall allway be able to look them

in the face that arise up against us[.]

293

290

Philadelphia Fed. Gazette, June 18, 1789, at 2, excerpted in Kates, supra note 33, 82 Mich. L.

Rev. at 224 & nn. 81–82. The Remarks were reprinted within three weeks in newspapers in Boston (on

the front page of a special July 4 issue) and New York. See Stephen P. Halbrook & David B. Kopel,

Tench Coxe and the Right to Keep and Bear Arms, 1787–1823, 7 Wm. & Mary Bill Rts. J. 347, 367

(1999).

291

See Letter from Coxe to Madison (June 18, 1789), reprinted in Creating the Bill of Rights, supra

note 82, at 252–53; Letter from Madison to Coxe (June 24, 1789), reprinted in 12 Madison Papers,

supra note 284, at 257; see also Creating the Bill of Rights, supra note 82, at 254 (excerpting

Madison’s letter).

292

See Halbrook, That Every Man Be Armed, supra note 33, at 77 (noting that author’s “search of

the literature of the time reveals that no writer disputed or contradicted Coxe’s analysis”).

293

Letter from Nasson to Thatcher (July 9, 1789), reprinted in Creating the Bill of Rights, supra

note 82, at 260–61 (sic); see id. at 309 (brief biography of Nasson).

Opinions of the Office of Legal Counsel in Volume 28

198

Like Coxe and others, Nasson understood “the people” as distinct from the

government, and included in “the right” of the people private ownership and

private uses of arms.

In late July 1789, a committee, to which had been referred both Madison’s

proposals and all amendments that ratifying conventions had proposed, issued a

revised draft. It provided:

A well regulated militia, composed of the body of the people, being

the best security of a free state, the right of the people to keep and

bear arms shall not be infringed, but no person religiously scrupulous

shall be compelled to bear arms.

294

The Committee had left unchanged the text of Madison’s independent clause

stating the right. But it had inverted the first two clauses, modified the language

regarding the militia to return it somewhat to what had been proposed by some of

the state conventions (including by defining the militia), and revised the conscien-

tious objector clause.

There is no reason to suppose that the mere reversal of order, or any of the other

changes, had altered the right that Madison, and the ratifying conventions before

him, had set out: The operative text of the independent clause was unchanged from

Madison’s draft, with the militia clause retaining its subordinate relationship;

Madison had served on the committee, which does not seem to have had any serious

disagreements over content;

295

and the committee had retained Madison’s proposal

that this amendment, along with the rest of the “Bill of Rights,” be placed among the

three pre-existing individual rights in Article I, Section 9, albeit moved forward one

clause.

296

In the ensuing debates, no member of the House suggested that any change

in the right had occurred. The Speaker of the House, from Pennsylvania, wrote to a

leading fellow Federalist in the state that the committee’s proposals “take[] in the

principal Amendments which our Minority had so much at heart”; the Minority had,

as discussed above, proposed an individual right to bear arms.

297

And an article in

Boston, reprinted in Philadelphia, described the committee’s proposal as containing

“[e]very one of” the amendments “introduced to the convention of this common-

294

Creating the Bill of Rights, supra note 82, at 30.

295

Id. at 6, 102–03; see Letter from Madison to Wilson Cary Nicholas (Aug. 2, 1789), reprinted in

id. at 271 (referring to “the concord” of the committee); Letter from Roger Sherman to Henry Gibbs

(Aug. 4, 1789), reprinted in id. (another committee member, predicting that committee’s proposals

“will probably be harmless & Satisfactory to those who are fond of Bills of rights,” although noting his

desire to place them at the end of the Constitution).

296

See id. at 30. The separate placement of what would become the Tenth Amendment remained

unchanged, and Madison’s other proposals, noted above, also remained separate.

297

Letter from Rep. Frederick A. Muhlenberg to Benjamin Rush (Aug. 18, 1789), reprinted in

Creating the Bill of Rights, supra note 82, at 280 (writing after the first day of debate that involved the

arms provision, in which no changes were made, and describing proposed amendments to date as

“nearly the same as” the committee “had reported them”).

Whether the Second Amendment Secures an Individual Right

199

wealth by . . . Samuel Adams” (except the restriction against a standing army),

including that “the said constitution be never construed . . . to prevent the people of

the United States who are peaceable citizens, from keeping their own arms.”

298

Clearly, the committee’s proposed amendment on arms, like Madison’s and like

Adams’s, was understood to protect an individual right.

In floor debate that began in mid-August, the focus was on the concluding

exemption for conscientious objectors and thus on militia service rather than “the

right of the people” that the committee’s draft secured. Representative Gerry of

Massachusetts, who had refused to sign the Constitution and was a leading Anti-

Federalist,

299

objected that this final clause would enable the federal government to

“declare who are those religiously scrupulous, and prevent them from bearing

arms.” This, he warned, “together with [Congress’s] other powers,” would enable

Congress to “destroy the militia” and establish “a standing army, the bane of

liberty.”

300

He moved to narrow the clause, but after a debate, including an effort to

delete it, the House approved the committee’s draft. Immediately after, it resound-

ingly defeated another Anti-Federalist’s motion to require a supermajority to

authorize a standing army in peacetime.

301

It does not appear from the debates that any congressman shared Gerry’s con-

cern, but, in any event, his concern seems more consistent with a view that the

amendment secured an individual right than with the alternative views. Gerry

presumed that the first two clauses—praising the well-regulated militia and setting

out the right of the people—would not suffice to protect the militia in the face of

affirmative federal efforts to undermine it. The individual right was inadequate to

do so. That understanding is consistent with the individual right view, as we

explained above in Part II.C. It also was the understanding, and concern, implicit

in the dual recommendations of Virginia, North Carolina, and the Pennsylvania

Minority, which sought separately to protect both state militia powers and the

individual right to arms. In addition, if the “right of the people . . . to bear arms”

meant some right restricted to serving in an organized militia, rather than a

personal right, Gerry’s concern would not have made sense: Persons whom

Congress declared religiously scrupulous pursuant to the proposed amendment,

although therefore not “compelled to bear arms” in the militia, still would, under a

298

From the Bos. Indep. Chronicle, Phila. Indep. Gazetteer, Aug. 20, 1789, at 2, excerpted in Hal-

brook, Right to Bear Arms, supra note 56, at 45.

299

At the Constitutional Convention, Gerry had bitterly opposed the federal powers over the militia

in Article I, Section 8, Clause 16. Madison, Notes of Debates, supra note 44, at 513–16 (Aug. 23,

1787). Regarding his Anti-Federalist writings during ratification, see 1 Schwartz, Bill of Rights, supra

note 67, at 464–65, 480–93, he had attended the Massachusetts Convention as an invited observer and

helped lead the opposition, id. at 465. Presumably, therefore, he supported Samuel Adams’s proposed

amendments, even though he also desired additional ones. See id. at 486–89.

300

Remarks of Gerry (Aug. 17, 1789), reprinted in Creating the Bill of Rights, supra note 82, at

182.

301

See Creating the Bill of Rights, supra note 82, at 183–85.

Opinions of the Office of Legal Counsel in Volume 28

200

quasi-collective right view of the other clauses of the amendment, have some right

to do so, and thus Congress could not, as Gerry charged, “prevent them” from

serving.

After more debate over the conscientious objector clause on August 20, the

House added back “in person” at the end and approved the draft.

302

It attached all

of the amendments to the end of the Constitution rather than incorporating them,

but no substantive change was intended.

303

The right of the people to keep and bear

arms was the fifth of the seventeen proposed amendments that the House then sent

to the Senate.

304

An Anti-Federalist who during the ratification debates had written widely

published essays as “Centinel” was enraged enough by the House’s failure to

restrict federal, and protect state, power that he took up his pen again, as Centinel

Revived.

305

He denounced “the partial amendments making [sic] by Congress” and

lamented that, although “many of these amendments are very proper and neces-

sary, yet . . . the constitution is suffered to retain powers that may not only defeat

their salutary operation, but may, and incontrovertibly will be so decisively

injurious as to sweep away every vestige of liberty.” He highlighted the Second

Amendment for criticism:

It is remarkable that this article only makes the observation, “that a

well regulated militia, composed of the body of the people, is the

best security of a free state”; it does not ordain, or constitutionally

provide for, the establishment of such a one. The absolute command

vested by other sections in Congress over the militia, are not in the

least abridged by this amendment.

306

302

See id. at 198–99. The addition may have been an effort to partially satisfy Representative Scott,

by ensuring that Congress could at least require conscientious objectors to provide an equivalent.

Unlike Gerry, he objected to the exemption because he worried that citizens, rather than Congress,

would abuse it, with the result that “you can never depend upon your militia.” He added, “This will

lead to the violation of another article in the constitution, which secures to the people the right of

keeping arms, as in this case you must have recourse to a standing army.” Id. at 198. While this cryptic

and elliptical comment conceivably might be construed to suggest a quasi-collective right, its meaning

is far from clear, and we find little probative value in it. The Fifth Circuit in Emerson reasonably

concluded that Scott’s comment “does not plainly lend support to any of the Second Amendment

models,” 270 F.3d at 248, and the Ninth Circuit in Silveira did not cite it, see 312 F.3d at 1085–86.

303

See Creating the Bill of Rights, supra note 82, at 117–28 (debate of Aug. 13, 1789); id. at 197–

98 (debate of Aug. 19, 1789).

304

Id. at 37–41.

305

“The most prolific and one of the best known of the Anti-Federalist essayists was the Centinel,

whose essays appeared in the Philadelphia Independent Gazetteer and the Philadelphia Freeman’s

Journal and were widely reprinted.” 2 Complete Anti-Federalist, supra note 101, at 130. He published

twelve essays as Centinel Revived. Id.

306

Centinel (Revived), No. 29 (1789), Phila. Indep. Gazetteer, Sept. 9, 1789, quoted in Emerson,

270 F.3d at 255.

Whether the Second Amendment Secures an Individual Right

201

Centinel understood the Second Amendment not to constrain Congress’s Article I,

Section 8 “absolute command” over the militia or otherwise secure any power of

the states to maintain one (whether by creating a “right” of states or of the

members of their organized militia units), and understood the Amendment’s

prefatory praise of the militia—a mere “observation”—not to have any operative

effect. The reasonable inference is that he viewed the “right of the people to keep

and bear arms” as one belonging to individuals.

The Senate reduced the House’s proposed amendments to twelve in early Sep-

tember.

307

In so doing, it made three changes in what would become the Second

Amendment: (1) deleting “composed of the body of the people,” (2) replacing “the

best” with “necessary to the,” and (3) deleting the conscientious objector clause. It

also voted down a motion to insert “for the common defense” immediately after

“to keep and bear Arms.”

308

The Senate deliberated in secret, and its minutes are

conclusory, so it is difficult to discern the reasons for these changes. One could

argue that some of them (deletion of the conscientious objector clause and

rejection of the “common defense” clause) tend to support the individual right

view of the Amendment, although contrary arguments are no doubt possible.

309

One also could argue that deletion of the definition of the militia cuts against the

individual right view’s reading of the prefatory language, although there, too, a

counter-argument is possible.

310

Because of the lack of historical records and the

multiple possible explanations, we are reluctant to attribute any material signifi-

cance to these actions.

We do, however, find it significant that the Senate rejected a motion to add a

separate amendment securing state power to organize, arm, and discipline the

militias if Congress should “omit or neglect” to do so.

311

Notwithstanding the lack

of historical records of the deliberations on this motion, the broader historical

307

The Senate combined provisions (such as in creating what became the First and Fifth Amend-

ments) and rejected House provisions regulating appeals to the Supreme Court; applying religion,

speech, press, and criminal jury protections to the states; and prohibiting violations of the separation of

powers. See 2 Schwartz, Bill of Rights, supra note 67, at 1145–47 (summarizing changes); compare

Creating the Bill of Rights, supra note 82, at 37–41 (House proposals), with id. at 47–49 (Senate).

308

See Creating the Bill of Rights, supra note 82, at 39 n.13; 2 Schwartz, Bill of Rights, supra note

67, at 1153–54 (Sen. Journal).

309

See Uviller & Merkel, supra note 45, 76 Chi.-Kent L. Rev. at 507 (theorizing that vote on

common defense clause was prompted by desire to avoid either redundancy or the objection that the

amendment failed to protect militia service in defense of a state, as opposed to the “common” national

defense). The deletion of the troublesome conscientious objector clause could have been simply

because of a desire, as voiced in the House, to leave the matter to Congress’s discretion, see, e.g.,

Remarks of Rep. Benson (Aug. 17, 1789), reprinted in Creating the Bill of Rights, supra note 82, at

184, without affecting the right one way or the other.

310

One could argue that the definition was considered superfluous. See 2 Schwartz, Bill of Rights,

supra note 67, at 1145 (observing that Senate in its revisions of the House proposals generally

“tighten[ed] up the language of the House version, striking out surplus wording and provisions.”); Part

II.C.2–4 (discussing meaning of “Militia” at the time).

311

2 Schwartz, Bill of Rights, supra note 67, at 1152 (Sen. Journal).

Opinions of the Office of Legal Counsel in Volume 28

202

context suggests that, had Congress sought to secure the states’ ability to maintain

organized militia units, adopting this provision is how it would have done so. It is

hard to ascribe this vote to a view that the proposed amendment was redundant

with the right of the people to keep and bear arms: Not only are the texts of the

two provisions markedly different, but also, as explained in the previous subpart,

the Virginia and North Carolina Ratifying Conventions (from which the rejected

language was directly taken) had made distinct proposals, one covering the right to

arms and the other covering state power over the militia (the Pennsylvania

Minority also had done this). In addition, the Senate was even more Federalist

than the House (Lee and Grayson of Virginia being the only Anti-Federalists

among the 22 senators).

312

As already noted, the Federalists were determined to

avoid amendments affecting the federal-state balance of power and instead to

focus on individual rights. If senators had thought that what became the Second

Amendment had the effect of this rejected provision, one would have expected

them to have refused to approve it as well. Finally, the two Anti-Federalist

senators acknowledged that their efforts to obtain amendments affecting the

federal-state balance had failed. Senator Lee, like Centinel, complained, in a letter

to Patrick Henry, that the amendments were inadequate for “securing the due

Authority of the States.”

313

Senators Lee and Grayson jointly informed the Virginia

legislature of their failure to secure the “Radical Amendments proposed by the

Convention.”

314

Thus, the Senate continued the House’s approach—rejecting

attempts to restrict congressional powers or augment state powers, while securing

individual rights in the hope of creating a national consensus in favor of the new

government.

On September 24, 1789, a conference committee agreed to some changes in the

Senate’s proposed amendments, but there was no change in (or effort to change)

the Senate’s version of what became the Second Amendment. Congress, through

the President, then sent the twelve proposed amendments to the then-eleven states

for ratification and to North Carolina and Rhode Island (which still had not ratified

the Constitution).

315

The records of the state ratifying conventions are sparse and

do not appear to provide any significant material concerning the meaning of the

312

See Creating the Bill of Rights, supra note 82, at xii; Letter from Madison to Jefferson (Mar. 29,

1789), reprinted in id. at 225.

313

Letter from Lee to Henry (Sept. 14, 1789), reprinted in id. at 295. The Senate also, like the

House, had rejected a proposal to append to what became the Second Amendment a supermajority

requirement for peacetime standing armies, a provision to help ensure that Congress would depend on

and therefore provide for the militia. 2 Schwartz, Bill of Rights, supra note 67, at 1149 (Sen. Journal);

see Creating the Bill of Rights, supra note 82, at 38–39 n.13.

314

Letter from Lee and Grayson to the Speaker of the Virginia House of Delegates (Sept. 28, 1789),

reprinted in Creating the Bill of Rights, supra note 82, at 299.

315

See id. at 49–50 (Conference Committee Report and House Resolution); id. at 296–98 (various

letters of Sept. 1789, including by Madison, detailing concerns with certain Senate revisions but not

mentioning Second Amendment); 2 Schwartz, Bill of Rights, supra note 67, at 1171–73 (regarding

presidential transmittal).

Whether the Second Amendment Secures an Individual Right

203

Second Amendment right.

316

The states approved ten of the twelve proposed

amendments, and in March 1792, Secretary of State Jefferson officially declared

the Bill of Rights ratified.

317

The history in this subpart of the immediate development of the Second

Amendment reveals a right consistent with, and developed from, the individual

right to arms that had been inherited from England, recognized and invoked in

revolutionary America, and codified to various extents in early state declarations

of rights. In addition, the early states prized a well-regulated citizen militia, as

some of their declarations recognized, and understood the individual right to arms

to facilitate such a militia. The Second Amendment, following the lead of several

of the ratifying conventions, reflects the contemporaneous understanding of this

relationship; in so doing, it grants the right to “the people,” not to the “Militia”

(much less to members of select militia units), or to the “State.” Nor does the

history support limiting the right secured by the Amendment to any of these

entities. Indeed, those who wanted to ensure that the states could have fully

functioning militias proposed a separate amendment, expressly protecting state

power. Their proposals failed.

318

Thus, the history of the Amendment, like its text,

indicates that the Second Amendment’s “right of the people to keep and bear

Arms” is not collective or quasi-collective but rather is a personal right that

belongs to individuals.

IV. The Early Interpretations

Our analysis of the Second Amendment’s text and history in the two preceding

parts of this memorandum is supported by the views of those who first interpreted

the Amendment. In the generations immediately following its ratification, the

three leading commentators to consider the Second Amendment each recognized

that its right of the people to keep and bear arms belonged to individuals, not to

states and not just to members of militias (whether of organized, select militia

units or even of the citizen militia). Nearly all of the discussions of the antebellum

courts, including in the leading cases, understood the right in the same way,

whether they were considering the Second Amendment or similar provisions in

316

See 2 Schwartz, Bill of Rights, supra note 67, at 1171–72 (“[W]e know practically nothing about

what went on in the state legislatures during the ratification process” and “[e]ven the contemporary

newspapers are virtually silent.”); Emerson, 270 F.3d at 255 (without comment, omitting discussion of

ratification); Silveira, 312 F.3d at 1086 (same).

317

2 Schwartz, Bill of Rights, supra note 67, at 1171, 1203. One of the two not then ratified was

ratified in 1992 as the Twenty-Seventh Amendment, which relates to congressional pay. The other

addressed the size of the House.

318

And even if one believes, contrary to the historical record, that Anti-Federalists’ concerns about

the militia were resolved in their favor, the Anti-Federalists’ insistence on the superiority of a citizen

militia to a select militia, noted at the beginning of Part III.C, would lead to the understanding of the

Amendment’s prefatory clause that we set out in Part II.C, an understanding that is, as we explained,

fully consistent with the individual right view of the Second Amendment.

Opinions of the Office of Legal Counsel in Volume 28

204

state constitutions. This early understanding of a personal right continued at least

through Reconstruction. The modern alternative views of the Second Amendment

did not take hold until 1905, well over a century after the Amendment had been

ratified.

A. The First Commentators

In the first few decades after the Second Amendment was drafted and ratified,

each of the three leading commentators on the Constitution addressed it: St.

George Tucker, William Rawle, and Joseph Story. Each agreed that it protects an

individual right. Less prominent early commentators also concurred with this

interpretation.

Tucker, a judge and law professor from Virginia, published in 1803 an edition

of Blackstone’s Commentaries to which he had added annotations and essays

explaining the relation of American law, including the new Constitution, to

England’s. Tucker’s Blackstone quickly became the leading American authority

on both Blackstone and American law.

319

Tucker addressed the Second Amendment at several points. He first did so,

repeatedly, in his introductory View of the Constitution of the United States. He

tied the federal right, as Blackstone had the English one, to the individual, natural

right of self-defense and to the freedom of the state. After quoting the Amend-

ment, he wrote:

This may be considered as the true palladium of liberty . . . . The

right of self defence is the first law of nature: in most governments it

has been the study of rulers to confine this right within the narrowest

limits possible. Wherever standing armies are kept up, and the right

of the people to keep and bear arms is, under any colour or pretext

whatsoever, prohibited, liberty, if not already annihilated, is on the

brink of destruction.

320

He condemned the use of the game laws in England as a pretext to disarm ordinary

people—the “farmer, or inferior tradesman, or other person not qualified to kill

game.”

321

And he grouped the Second Amendment right with those of the First,

confirming that all belonged to individuals:

319

See Clyde N. Wilson, Forward, in St. George Tucker, View of the Constitution of the United

States, with Selected Writings at viii–ix (1999); Paul Finkelman & David Cobin, An Introduction to St.

George Tucker’s Blackstone’s Commentaries, in 1 Tucker’s Blackstone, supra note 60, at v–xii; 1 id.,

Editor’s Preface at v.

320

1 Tucker’s Blackstone, supra note 60, Note D, at 300 (ellipsis in original).

321

Id.

Whether the Second Amendment Secures an Individual Right

205

If, for example, a law be passed by congress, prohibiting the free ex-

ercise of religion, according to the dictates, or persuasions of a man’s

own conscience; or abridging the freedom of speech, or of the press;

or the right of the people to assemble peaceably, or to keep and bear

arms; it would, in any of these cases, be the province of the judiciary

to pronounce whether any such act were constitutional, or not; and if

not, to acquit the accused . . . .

322

Second, in annotating Blackstone’s description, in Book I, Chapter 1, of the

individual English subject’s right to have and use arms for self-defense (discussed

above in Part III.A), Tucker praised the Second Amendment “right of the people”

for being “without any qualification as to their condition or degree, as is the case

in the British government” (under England’s Bill of Rights) and again denounced

the game laws, by which “the right of keeping arms is effectually taken away from

the people of England.”

323

Finally, in a note to one of Blackstone’s (critical)

discussions of the game laws, Tucker once more attacked them, because “it seems

to be held” that no one but the very rich has “any right to keep a gun in his house”

or “keep a gun for their defence,” the result being that “the whole nation are

completely disarmed, and left at the mercy of the government,” and “the mass of

the people” are kept “in a state of the most abject subjection.” By contrast, “in

America we may reasonably hope that the people will never cease to regard the

right of keeping and bearing arms as the surest pledge of their liberty.”

324

In all of these discussions, the right belonged to individuals—to persons avail-

ing themselves of the natural, individual “right of self defence,” to the “accused”

seeking judicial review of a violation of the Second Amendment, and to “the

mass” of ordinary people able to defend themselves because protected by the

Second Amendment from class-based pretexts for disarmament. Tucker under-

stood both the English and American rights to arms to belong to individuals, and

he thought the latter more secure and broad-based.

Nowhere did Tucker suggest that the right of the people to keep and bear arms

depended on a person’s enrollment and exercise in the citizen militia (much less

his membership in an organized, select militia unit) or that it was a “right” that

belonged to state governments. He did elsewhere, in discussing the Militia

Clauses, point out that the Second Amendment eliminated “all room for doubt, or

322

Id. at 357; see id. at 315–16 (explaining that, whereas in England, “the game-laws, as was before

observed, have been converted into the means of disarming the body of the people,” and statutes have

restricted assemblies, the Constitution will not “permit any prohibition of arms to the people; or of

peaceable assemblies by them”); id. at 289 (describing hypothetical law “prohibiting any person from

bearing arms” as violating the Second Amendment).

323

2 id. at *143–44 & nn. 40–41. See also id. at *145 n.42 (again criticizing game laws).

324

3 id. at *414 n.3; see also Parts III.A (discussing right to arms in England) & III.B.2 (discussing

doubts whether the relaxation of English game laws in 1700s succeeded as a practical matter in

enabling commoners to keep arms).

Opinions of the Office of Legal Counsel in Volume 28

206

uneasiness” on whether the federal government could prohibit states from simply

providing arms for their militias (doubt he rightly found questionable given that

the original Constitution left a concurrent arming power in the states).

325

Tucker

did not suggest here that he thought the Amendment had only this effect, and his

other discussions confirm that he did not so understand it.

William Rawle of Pennsylvania published his View of the Constitution of the

United States of America in 1825, with a second edition appearing in 1829. After

having turned down President Washington’s offer to be the first attorney general,

he had served in the Pennsylvania Assembly when it ratified the Bill of Rights.

His commentary, like Tucker’s, gained wide prominence.

326

Rawle analyzed the Second Amendment in a chapter entitled “Of the Re-

strictions on the Powers of Congress . . . [,] Restrictions on the Powers of States

and Security to the Rights of Individuals,” by which he meant, respectively,

Article I, Section 9; Article I, Section 10; and the first eight amendments of the

Bill of Rights.

327

He started with the Second Amendment’s preface, giving to it,

including the word “Militia,” precisely the sense and significance that emerges

from our analysis above, and making clear that the substantive right belonged to

the ordinary citizen:

In the second article, it is declared, that a well regulated militia is

necessary to the security of a free state; a proposition from which

few will dissent. Although in actual war, the services of regular

troops are confessedly more valuable; yet, while peace prevails, and

in the commencement of a war before a regular force can be raised,

the militia form the palladium of the country. . . . That they should

be well regulated, is judiciously added. . . . The duty of the state

government is, to adopt such regulations as will tend to make good

soldiers with the least interruptions of the ordinary and useful occu-

pations of civil life. . . .

The corollary, from the first position, is, that the right of the people

to keep and bear arms shall not be infringed.

325

1 id. at 273. Tucker thought the federal powers in Article I, Section 8, Clause 16, to provide for

“organizing” and “disciplining” the militia were exclusive, id. at 180–81, but that states retained

“concurrent, though perhaps subordinate” powers to provide for “arming” their militias and “to call

them forth when necessary for their internal defence,” id. at 182, 183. His only other reference to the

Second Amendment in connection with the militia was in a note to Blackstone’s discussion of the

militia, in which Tucker collected all references in the Constitution to the militia, along with the Third

Amendment, Virginia laws, and the federal Militia Act. 2 id. at *409 n.1.

326

See Hardy, supra note 33, 9 Harv. J.L. & Pub. Pol’y at 613. Rawle did agree to be United States

Attorney for the District of Pennsylvania. See, e.g., United States v. Fries, 3 U.S. (3 Dall.) 515, 517

(C.C.D. Pa. 1799).

327

William Rawle, A View of the Constitution of the United States of America 115 (2d ed. 1829;

reprint 1970) (font altered; emphasis added).

Whether the Second Amendment Secures an Individual Right

207

The prohibition is general. No clause in the Constitution could by

any rule of construction be conceived to give to congress a power to

disarm the people. Such a flagitious attempt could only be made un-

der some general pretence by a state legislature. But if in any blind

pursuit of inordinate power, either should attempt it, this amendment

may be appealed to as a restraint on both.

328

Both Rawle’s language—the Amendment’s prohibition “is general” and protects

the arms of “the people”—and his view of the Second Amendment as applying to

the states and restricting their power indicate that he saw the right as individual,

not as collective or quasi-collective.

Two additional points further show that Rawle viewed the right as belonging to

individuals. Like Tucker, he favorably contrasted the right of the people that the

Second Amendment secured with the more selective individual right in England

under the aristocratic game laws, including a summary of Blackstone’s critique of

those laws. In addition, he expressly recognized, as had Blackstone, Tucker, and,

in varying degrees, the Pennsylvania Minority, Samuel Adams, and the New

Hampshire Ratifying Convention, that the right provided no warrant to breach the

peace, including by inciting reasonable fear of a breach.

329

This recognition

indicates an individual right view because there is no need for ordinary criminal

law to oversee either the actions of states in regulating their militias or the bearing

of arms by members of a state’s militia in connection with their service and under

state regulation.

Rawle further explained the individual right view’s understanding of the Se-

cond Amendment preface when discussing the President’s limited power to

command the militia. Although not mentioning the Amendment expressly, he

noted: “In a people permitted and accustomed to bear arms, we have the rudiments

of a militia, which properly consists of armed citizens, divided into military bands,

and instructed at least in part in the use of arms for the purposes of war.”

330

Thus,

the “people” of the country, as individuals, keep and bear arms for private

purposes; they also form the militia; and the former facilitates the latter, but only

as a rudiment. That is why the individual right is a “corollary” from the need for a

militia.

The same view appears in the influential 1833 Commentaries on the Constitu-

tion of the United States of Supreme Court Justice and law professor Joseph Story,

328

Id. at 125–26.

329

Id. at 126. Regarding Blackstone, see Part III.A above. For Tucker’s annotations of some of

Blackstone’s discussions of improper uses of arms, see 5 Tucker’s Blackstone, supra note 60, at *126,

*142–49, *175. Regarding the Pennsylvania Minority, Adams, and New Hampshire, see Part III.C.1

above.

330

Rawle, View of the Constitution, supra note 327, at 153. Significantly, in separately discussing

the Militia Clauses of Article I, Section 8, Rawle made no mention of the Second Amendment. Id. at

111–12.

Opinions of the Office of Legal Counsel in Volume 28

208

as well as in his later Familiar Exposition of the Constitution. The Commentaries

appeared first in a three-volume set and then, a few months later, in a one-volume

abridgement by Story (the “Abridgement”).

331

Story devoted a chapter of his Abridgement to the Bill of Rights. Before turning

to its provisions, he recounted the debate over whether to add one and identified

several purposes, all related to individual rights: (1) to prevent powers granted to

the government from being exercised in a way “dangerous to the people”; (2) as

part of “the muniments of freemen, showing their title to protection,” to ensure

against an “extravagant or undue extention of” powers granted; and (3) to protect

minorities.

332

He then singled out those amendments that did not relate to judicial

procedure (the First, Second, Third, Fourth, Eighth, Ninth, and Tenth) as those

addressing “subjects properly belonging to a bill of rights.”

333

With regard to the Second Amendment, he first explained the importance of the

militia for “a free country,” including as a check on “domestic usurpations of

power,” and the hazards “for a free people” of keeping up “large military estab-

lishments and standing armies in time of peace.” He linked these policies to the

right: “The right of the citizens to keep, and bear arms has justly been considered,

as the palladium of the liberties of a republic; since it offers a strong moral check

against the usurpation and arbitrary power of rulers; and will generally, even if

these are successful in the first instance, enable the people to resist and triumph

over them.”

334

In the unabridged version, he cited Tucker, Rawle, and the House of

Representatives’ first day of debate on the Amendment in support of this sen-

tence.

335

By paraphrasing the “right of the people” as the “right of the citizens”—not of

states or members of their militias—as well as by citing Tucker and Rawle’s

discussions (including borrowing from Tucker’s “palladium” language), Story left

no doubt that he considered the right to belong to individuals. He reinforced this

point in an additional paragraph in the unabridged version, citing both Black-

stone’s discussion of the “similar provision” in England—clearly an individual

right, as explained above—and Tucker’s discussion of what Story called the

“defensive privilege” there.

336

In his Familiar Exposition, Story began his discus-

331

Ronald D. Rotunda & John E. Nowak, Introduction, in Story, Abridgement, supra note 66, at xi–

xiv.

332

Id. §§ 980–982, at 696–97.

333

Id. § 984, at 698; see id. §§ 985–1011, at 698–714.

334

Id. § 1001, at 708.

335

3 Story, Commentaries, supra note 75, § 1890, at 746 n.1. In United States v. Miller, 307 U.S.

174, 182 n.3 (1939), the Supreme Court included this passage (from a later edition) in a string citation.

336

3 Story, Commentaries, supra note 75, § 1891, at 747. In a separate chapter, the full Commen-

taries also included an extended discussion of the Anti-Federalist charges leveled against the Militia

Clauses, including the charge that the federal militia powers would be exclusive (which Story found

unpersuasive). Story alluded to the failure of proposals explicitly to protect state militia powers. Id.

§§ 1198–1202, at 83–87.

Whether the Second Amendment Secures an Individual Right

209

sion of the Amendment with an even more explicit statement: “One of the

ordinary modes, by which tyrants accomplish their purposes without resistance, is,

by disarming the people, and making it an offence to keep arms, and by substitut-

ing a regular army in the stead of a resort to the militia.”

337

Thus Story, like Tucker, Rawle, and others, recognized that the right that the

Second Amendment secured was an individual one. He also saw, as they had, that

this personal right was necessary for ensuring a well-regulated militia of the

people. But he likewise recognized, consistent with the individual right view, that

such a right was not sufficient for ensuring such an entity, wondering how it

would be “practicable to keep the people duly armed without some organization,”

and lamenting the decline of militia discipline.

338

Less prominent commentators shared Tucker, Rawle, and Story’s view of the

Second Amendment as securing an individual right. Most significant of these was

probably Henry Tucker (son of St. George). In an 1831 commentary, he explained:

The right of bearing arms—which with us is not limited and re-

strained by an arbitrary system of game laws as in England; but is

practically enjoyed by every citizen, and is among his most valuable

privileges, since it furnishes the means of resisting as a freeman

ought, the inroads of usurpation.

339

He also noted that the right inherited from England and expounded by Blackstone

“is secured with us by” the Second Amendment.

340

And Jonathan Elliot, in his

record of the ratification debates first published in the 1830s, provided an index of

the Constitution that, under the heading “Rights of the citizen declared to be,”

listed each of the rights of the first nine amendments of the Bill of Rights,

including “To keep and bear arms.”

341

He grouped the right secured by the Second

Amendment with the unquestionably individual rights secured by its neighbors.

There was no entry in the index for the militia or its members, aside from refer-

ence to the congressional powers in Article I, Section 8, and none of his entries

regarding the states included reference to the militia or the Second Amendment.

342

Thus, these early commentators were all consistent in recognizing that the Second

337

Joseph Story, A Familiar Exposition of the Constitution of the United States § 450, at 319 (1840;

reprint 1986).

338

Story, Abridgement, supra note 66, § 1001, at 708–09.

339

Henry St. George Tucker, Commentaries on the Laws of Virginia 43 (1831).

340

Id.

341

The Debates in the Several State Conventions on the Adoption of the Federal Constitution xv

(Jonathan Elliot ed., 2d ed. 1836; reprint 1987).

342

For additional antebellum commentators, see David B. Kopel, The Second Amendment in the

Nineteenth Century, 1998 BYU L. Rev. 1359, 1399–1403, 1435–41; see also id. at 1397–98 (discuss-

ing Henry Tucker).

Opinions of the Office of Legal Counsel in Volume 28

210

Amendment secures an individual right. They did not even mention possible

alternative views, whether involving a collective or a quasi-collective “right.”

B. The First Cases

Like the commentators, the early case law also treated the Second Amendment

as securing a right of individuals, not a right of governments or those in its service.

Without taking any position on the correctness of the courts’ holdings or the

constitutionality, under the Second Amendment, of any particular limitations on

owning, carrying, or using firearms, we find it significant that these decisions

consistently understood the right to be an individual one. The earliest cases,

although not numerous, consistently recognized that the right to “bear” arms

belonged to individuals, just as the right to “keep” them did. Judicial treatment

became more common beginning in the 1840s, mostly because of new prohibitions

on carrying weapons concealed. The courts upheld these prohibitions (some courts

applying the Second Amendment and some applying similar state provisions), but

in so doing they all recognized an individual right to arms: All of the decisions

recognized an individual right to keep private arms; nearly all, including the

leading cases, recognized a right of individuals to “bear” those arms for private

purposes; and all recognized some manner of individual right to bear them. Most

notably, the Supreme Court of Georgia twice unanimously ruled in favor of

individuals on the basis of the Second Amendment.

1. Cases Before 1840

The first of the early cases is Houston v. Moore, in 1820. The Supreme Court,

in upholding Pennsylvania’s power to try a militiaman for failing to report for

federal service in the War of 1812, recognized that states had concurrent power to

regulate their militias at least when the militias were in the service of their state or

in the absence of congressional regulation. Yet it did not mention the Second

Amendment. Justice Story, in dissent, also recognized the concurrent power, and

he noted that the Second Amendment was probably irrelevant to the question.

343

we explained above in Part III.C.1, the Anti-Federalists who claimed to fear that

the federal militia powers would not allow a concurrent state jurisdiction did not

rely on the proposals for a right to arms to resolve their concern, but rather

proposed separate amendments (which failed to pass). It appears that the Court in

Houston similarly recognized that the Second Amendment did not guard state

power to maintain militias, whether by creating a collective right of states or a

quasi-collective right of militiamen to vindicate state power. Otherwise, one would

343

Houston v. Moore, 18 U.S. (5 Wheat.) 1, 16–17, 21–22 (1820) (plurality opinion of Washington,

J.); see id. at 34–36 (Johnson, J., concurring); id. at 50–53 (Story, J., dissenting). Story dissented on the

ground that the militia law granted enforcement authority exclusively to federal courts. Id. at 71–72.

Whether the Second Amendment Secures an Individual Right

211

expect the Court to have discussed it. Thus, Houston, although far from conclu-

sive, lends some support to an individual right view.

Second, in Bliss v. Commonwealth (1822), in what appears to be the first judi-

cial interpretation of the right to bear arms in America, a divided highest court of

Kentucky applied that state’s constitutional protection of “the right of the citizens

to bear arms in defense of themselves and the state,” first adopted in 1792, to void

a ban on wearing certain weapons concealed.

344

The state had argued that the ban

merely restricted the manner of exercising the right. The court, although not citing

authority, gave two primary reasons for rejecting this argument: (1) the right in

1792 included carrying weapons concealed, and (2) to recognize this one excep-

tion would leave no principled basis to reject others, eviscerating the right.

345

The

court’s specific holding was rejected thereafter—by courts

346

and by the people of

Kentucky, who in their 1850 constitution added a clause allowing laws to prevent

carrying concealed arms.

347

But the holding was rejected, not on the ground that it

improperly recognized a right of individuals to “bear arms” (Kentucky’s provision

remained otherwise unchanged), but rather on the ground that Bliss erred in

determining the right’s scope. Thus Bliss confirms the individual nature of the

right.

Third, several early references to the right or to “bearing arms” indicate that

courts viewed the right as an individual one, or at least that an individual carrying

weapons and not in militia service could be said to “bear arms.” A Virginia

appellate court in 1824, discussing that state’s restrictions on the rights of free

blacks—“many of which are inconsistent with the letter and spirit of the Constitu-

tion, both of this State and of the United States”—cited the restriction “upon their

right to bear arms.”

348

That the restriction involved their rights as individuals is

evident from Tucker’s summary of the Virginia laws.

349

In an 1829 libel case, the

Supreme Court of Michigan (then a territory) drew a parallel between the free-

doms of speech and press and the right of the people to bear arms to explain that

344

12 Ky. (2 Litt.) 90, 1822 WL 1085. The dissenting judge did not issue an opinion. See id. at *4.

345

Id. at *2.

346

The first court to depart from Bliss’s holding, the Indiana Supreme Court eleven years later in

State v. Mitchell, 3 Blackf. 229, 1833 WL 2617, at *1, did not cite its neighboring court or otherwise

explain itself, the entire opinion being as follows: “It was held in this case, that the statute of 1831,

prohibiting all persons, except travelers, from wearing or carrying concealed weapons, is not

unconstitutional.” We discuss the later antebellum cases in the next subpart.

347

See Ky. Const. art. XIII, § 25 (1850), reprinted in 3 Federal and State Constitutions, supra note

78, at 1314.

348

Aldridge v. Commonwealth, 4 Va. (2 Va. Cas.) 447, 1824 WL 1072, at *3 (Va. Gen. Ct.).

349

5 Tucker’s Blackstone, supra note 60, at *175 n.17, ¶ 7 (listing as among the “offences against

the public police, or [e]conomy,” the restriction against “any” black or mulatto “keeping or carrying

any gun-powder, shot, club, or other weapon,” including a “gun”). See also Waters v. State, 1 Gill. 302,

1843 WL 3024 (Md.) (explaining, with regard to free blacks, that “laws have been passed to prevent

their migration to this State; to make it unlawful for them to bear arms; to guard even their religious

assemblages with peculiar watchfulness.”).

Opinions of the Office of Legal Counsel in Volume 28

212

individual rights are not unlimited: “The constitution of the United States also

grants to the citizen the right to keep and bear arms. But the grant of this privilege

cannot be construed into the right in him who keeps a gun to destroy his neigh-

bor.”

350

And in a jury instruction while riding circuit in 1833, in a case unrelated to

the militia, U.S. Supreme Court Justice Baldwin included the Amendment in a list

of potentially relevant individual rights.

351

Last of the earliest cases is the 1833 decision of the Supreme Court of Tennes-

see in Simpson v. State.

352

The question was the validity of a boilerplate indictment

alleging that the defendant had appeared in a “public street and highway . . .

arrayed in a warlike manner” and then “to the great terror and disturbance of

divers good citizens . . . an affray did make . . . against the peace and dignity of the

state.”

353

The court held the indictment invalid because it alleged neither fighting

(an element of “affray”) nor any other act likely to have caused public terror and

indictable at common law. The court reached this conclusion first by considering

the common law, particularly as set out by Blackstone. But because there was

some uncertainty regarding the common law, the court also relied on the 1796

Tennessee Constitution, which provided “that the freemen of this state have a right

to keep and to bear arms for their common defence.”

354

This right eliminated any

doubt whether merely appearing in public armed could create “terror” and thus be

criminal: “By this clause of the constitution, an express power is given and

secured to all the free citizens of the state to keep and bear arms for their defence,

without any qualification whatever as to their kind or nature.”

355

The court

recognized that individuals could “bear arms” for private purposes, just as they

could “keep” them, and included self-defense within “their common defence.”

Thus, in the first four decades after the Founding, the courts were consistent in

recognizing that the right to keep and bear arms was a right of individuals,

350

United States v. Sheldon, 5 Blume Sup. Ct. Trans. 337, 1829 WL 3021, at *12 (Mich. Terr.). See

also Commonwealth v. Blanding, 20 Mass. (3 Pick.) 304, 338 (1825) (invoking right to keep arms to

draw same analogy).

351

Johnson v. Tompkins, 13 F. Cas. 840, 850 (C.C.E.D. Pa. 1833) (No. 7,416).

352

13 Tenn. (5 Yer.) 356, 1833 WL 1227.

353

1833 WL 1227, at *1.

354

Id. For more regarding the relevant common law, see the discussion in State v. Huntly, 25 N.C.

(3 Ired.) 418, 1843 WL 891, at *2–3 (surveying common law and noting “that the carrying of a gun per

se constitutes no offence”). See also State v. Langford, 10 N.C. (3 Hawks) 381, 1824 WL 380;

4 William Blackstone, Commentaries *149; 1 Hawkins, Pleas of the Crown, supra note 177, ch. 63,

§ 9, at 136. An English case that the court cited in Huntly, predating the English Declaration of Rights,

had construed a seemingly restrictive medieval statute as only punishing “people who go armed to

terrify the king’s subjects,” not all who go armed. Sir John Knight’s Case, 87 Eng. Rep. 75, 76, 3 Mod.

Rep. 117 (K.B. 1686). The court recognized that “now there be a general connivance to gentlemen to

ride armed for their security,” such that violating the statute required riding “malo animo.” Id., 90 Eng.

Rep. 330, 330, Comberbach Rep. 38.

355

1833 WL 1227, at *1.

Whether the Second Amendment Secures an Individual Right

213

allowing both the keeping of private arms and the bearing of them for private

purposes.

2. Cases From 1840 to the Civil War

The leading case from the antebellum period on the right to bear arms, and the

first major decision, was State v. Reid in 1840. The Supreme Court of Alabama

unanimously upheld the state’s new ban on carrying guns or knives secretly,

finding no violation of the provision in the state’s 1819 constitution that “[e]very

citizen has a right to bear arms, in defence of himself and the State.”

356

In so doing,

the court recognized that the provision’s right to “bear arms” was a right of an

individual, who could bear them to facilitate his self-defense. The court first

looked to the origins of the right in the “provisions in favor of the liberty of the

subject” in the English Declaration of Rights. Quoting the right of subjects to have

arms for their defense, the court explained: “The evil which was intended to be

remedied by the provision quoted, was a denial of the right of Protestants to have

arms for their defence, and not an inhibition to wear them secretly.”

357

The court then adopted the state’s factual argument that carrying weapons

concealed did not facilitate self-defense but rather served the purpose of aggres-

sion and breaching the peace. The court elaborated in explaining the limits of the

state’s power to enact laws regulating “the manner in which arms shall be borne”:

A statute which, under the pretence of regulating, amounts to a de-

struction of the right, or which requires arms to be so borne as to

render them wholly useless for the purpose of defence, would be

clearly unconstitutional. But a law which is intended merely to pro-

mote personal security, and to put down lawless aggression and vio-

lence, and to that end inhibits the wearing of certain weapons, in

such a manner as is calculated to exert an unhappy influence upon

the moral feelings of the wearer, by making him less regardful of the

personal security of others, does not come in collision with the con-

stitution.

358

The court thus rejected Bliss’s holding: “[The constitution] authorizes him to bear

them for the purposes of defending himself and the State, and it is only when

carried openly, that they can be efficiently used for defence.”

359

If the need for

defense were immediate, “there can be no necessity for concealing the weapon,”

and if it were not immediate, there were legal processes for securing protection. If

356

1 Ala. 612, 1840 WL 229, at *2.

357

1840 WL 229, at *2.

358

Id. at *3.

359

Id. at *5–6.

Opinions of the Office of Legal Counsel in Volume 28

214

a defendant could prove that it was “indispensable to the right of defence” for him

to conceal his weapon, the court might construe the statute not to apply, but Mr.

Reid had not done so.

360

Eighteen years later, the same court in Owen v. State reaffirmed Reid in recog-

nizing the constitutionality of a similar statute (the legislature, perhaps prompted

by Reid, had added an exception for those threatened with or reasonably fearing

attack). In so doing, the court made explicit what had been implicit in Reid—that

“carries” in the statute “was used as the synonym of ‘bears.’”

361

Soon after Reid, the Supreme Court of Georgia, in Nunn v. State, relied on

Reid, as well as Bliss, in unanimously reversing a conviction for openly carrying a

pistol. The court applied the Second Amendment, holding “that so far as the

act . . . seeks to suppress the practice of carrying certain weapons secretly, . . . it is

valid, inasmuch as it does not deprive the citizen of his natural right of self-

defence, or of his constitutional right to keep and bear arms. But that so much of

it, as contains a prohibition against bearing arms openly, is in conflict with the

Constitution, and void.”

362

As had Reid, Nunn looked for guidance to the right to

have and use arms in England. The court viewed that right, the right of the Second

Amendment, and the rights protected by the states’ constitutions as all securing a

personal right of individuals: “When, I would ask, did any legislative body in the

Union have the right to deny to its citizens the privilege of keeping and bearing

arms in defence of themselves and their country?” Likewise, “the Constitution of

the United States, in declaring that the right of the people to keep and bear arms,

should not be infringed, only reiterated a truth announced a century before, in the

act of 1689.”

363

This “right of the people” was just as “comprehensive” and

“valuable” as those in the First, Fourth, Fifth, and Sixth Amendments.

364

Like Rawle and Story, the Nunn court recognized the harmony between the

Second Amendment’s individual right and its preface: “[O]ur Constitution assigns

as a reason why this right shall not be interfered with or in any manner abridged,

that the free enjoyment of it will prepare and qualify a well-regulated militia,

which are necessary to the security of a free State.” More broadly:

The right of the whole people, old and young, men, women and

boys, and not militia only, to keep and bear arms of every descrip-

360

Id. at *6–7; see id. at *1.

361

31 Ala. 387, 1858 WL 340, at *1, *2.

362

1 Ga. (1 Kelly) 243, 1846 WL 1167, at *11. Georgia’s constitution did not expressly protect the

right to arms. The court alluded to Barron v. Mayor & City Council of Baltimore, 32 U.S. (7 Pet.) 243

(1833), which held that the Takings Clause of the Fifth Amendment did not apply to the states and

reasoned that none of the Bill of Rights did, but rejected it because of the court’s own precedent, the

Second Amendment’s broad, non-restrictive language, and the fundamental importance of the right.

1846 WL 1167, at *9–10.

363

Id. at *8.

364

Id. at *10.

Whether the Second Amendment Secures an Individual Right

215

tion, and not such merely as are used by the militia, shall not be in-

fringed, curtailed, or broken in upon, in the smallest degree; and all

this for the important end to be attained: the rearing up and qualify-

ing a well-regulated militia, so vitally necessary to the security of a

free State.

365

The preface’s reference to the militia as “necessary to the security of a free State”

reinforced this understanding and helped convince the court that the Amendment

also restricted the states: “If a well-regulated militia is necessary to the security of

the State of Georgia and of the United States, is it competent for the General

Assembly to take away this security, by disarming the people?” The right lay “at

the bottom of every free government,” state or federal.

366

As had Rawle, the court

in Nunn, by concluding that the Amendment restricted the powers of the states,

confirmed its view that the Amendment did not protect the powers of the states but

rather protected the rights of their individual citizens.

Fifteen years later, the same court reported that Nunn had “been constantly

adhered to,” and unanimously applied it to reverse a jury instruction that, for a

weapon to be carried openly, it had to be entirely uncovered. Because such

carrying was “impossible,” such an interpretation “would . . . prohibit the bearing

of those arms altogether.”

367

The Louisiana Supreme Court took the same view of the Second Amendment

as an individual right in a series of cases in the 1850s. In State v. Chandler, a

murder defendant had sought an instruction that carrying weapons “either

concealed or openly” could not be a crime consistent with the Constitution. The

court affirmed the denial of the instruction. Like Reid and Nunn, the court saw no

factual link between carrying weapons concealed and self-defense. But, also like

them, it viewed open carrying of arms differently: “This is the right guaranteed by

the Constitution of the United States, and which is calculated to incite men to a

manly and noble defence of themselves, if necessary, and of their country.”

368

Six

years later, the court upheld a conviction for carrying a concealed weapon, finding

no Second Amendment violation because “[t]he arms there spoken of are such as

are borne by a people in war, or at least carried openly.”

369

And two years after

365

Id.

366

Id. at *10, *9.

367

Stockdale v. State, 32 Ga. 225, 1861 WL 1336, at *3. The Texas Supreme Court before the Civil

War appears also to have viewed the Second Amendment as applying to the states and including an

individual right to own arms and use them for self-defense and perhaps hunting. See Choate v.

Redding, 18 Tex. 579, 1857 WL 5009, at *2; Cockrum v. State, 24 Tex. 394, 1859 WL 6446, at *6–8.

In the latter case, in which the court rejected a constitutional challenge to a sentencing enhancement for

homicide with a bowie knife, the court did not cite any authority, but the defendant had cited Nunn,

Reid, Bliss, and Mitchell. 1859 WL 6446, at *3.

368

5 La. Ann. 489, 1850 WL 3838, at *1; see id. at *2 (discussing self-defense).

369

State v. Smith, 11 La. Ann. 633, 1856 WL 4793, at *1.

Opinions of the Office of Legal Counsel in Volume 28

216

that, the same court cited these decisions in upholding another such conviction,

again treating the right as belonging to individuals and understanding “carry” to be

synonymous with “bear”: “The statute in question . . . . is a measure of police

prohibiting only a particular mode of bearing arms which is found dangerous to

the peace of society.”

370

Two other state court cases of this later antebellum period merit special men-

tion. The first and more significant is Aymette v. State,

371

the second, State v.

Buzzard.

372

In both, the court’s holding was unremarkable—that bans on carrying

weapons concealed were constitutional. But the courts’ rationales were novel.

While still recognizing a right to keep and to bear arms that belonged to individu-

als, these decisions sharply restricted the purposes for which arms could be borne.

Unlike Reid and Nunn, neither case was cited until several years after the Civil

War (and then usually just for their holdings), but Aymette acquired some

prominence thereafter, and Buzzard is notable for one judge’s separate opinion

somewhat foreshadowing the collective and quasi-collective right views.

In Aymette, the Tennessee Supreme Court applied that state’s 1834 Constitu-

tion, which provided “that the free white men of this State have a right to keep and

bear arms for their common defence.” (The only difference from the provision

discussed in Simpson was the change of “freemen” to “free white men.”

373

) In

upholding the defendant’s conviction for carrying a concealed bowie knife, the

court limited the state right to “bear arms” to actions done “by the people in a

body for their common defense.”

374

Some have relied on Aymette’s reasoning in

arguing against the individual right view of the Second Amendment. The Ninth

Circuit in Silveira, for example, overlooking all of the antebellum cases discussed

above, described Aymette as “the most significant judicial decision to construe the

term ‘bear arms’” and as concluding that the phrase “referred to the performance

of a military function.”

375

Silveira particularly relied on Aymette’s statement that

“‘[a] man in pursuit of deer, elk and buffaloes might carry his rifle every day for

forty years, and yet it would never be said of him that he had borne arms.’”

376

Fairly read, however, Aymette does not contravene an individual right view of the

Second Amendment.

First, even assuming for the sake of argument that Aymette read the Tennessee

Constitution not to secure any individual right to bear arms, the decision has two

370

State v. Jumel, 13 La. Ann. 399, 1858 WL 5151, at *1.

371

21 Tenn. (2 Hum.) 154, 1840 WL 1554.

372

4 Ark. (4 Pike) 18, 1842 WL 331.

373

That change may have been prompted by Nat Turner’s 1831 slave rebellion, which created fears

of free blacks arming and inciting slaves. See Cottrol & Diamond, supra note 33, 80 Geo. L.J. at 337–

38.

374

1840 WL 1554, at *3.

375

312 F.3d at 1073.

376

Id. (quoting Aymette, 1840 WL 1554, at *5).

Whether the Second Amendment Secures an Individual Right

217

distinctive features that undermine its relevance to the Second Amendment.

Aymette’s analysis rested heavily on the phrase “for their common defence” in the

Tennessee provision, which is absent from the Second Amendment. The phrase

pervades the court’s brief analysis. The court defined “common” and even

described the right to arms in the English Bill of Rights as if it included the

word.

377

The court also relied on a conscientious objector clause that appeared

elsewhere in the state constitution, citing it at the end of its opinion, in criticizing

Bliss, to make “the case still more clear.”

378

Yet no conscientious objector clause

appears in the Second Amendment or even the Constitution.

379

Second, and more importantly, Aymette does not reject an individual right

either to keep or to bear arms, even though it may exclude individual self-defense

from the meaning of “bear.” The court was unequivocal on “keep”: “The citizens

have the unqualified right to keep the weapon,” so long as it is a protected

“arm.”

380

It did describe “bear” as limited to “military use,”

381

but by that appears

still to have contemplated a right that belonged to individuals rather than to the

state or those engaged in its service.

382

The court did not mention the militia.

Rather, the “military” bearing that it appears to have had in mind was the people,

in an extreme case of governmental tyranny, independently bearing arms as a body

to check the government. The court confined “bear” to the most radical of

emergencies. Thus, it provided the following account of the English Revolution of

1688–1689:

377

1840 WL 1554, at *3; see id. at *2. As noted above in Part III.B.2, in discussing the Massachu-

setts Declaration of Rights, the phrase “common defense” is not necessarily inconsistent with a right to

bear arms for private purposes.

378

Id. at *5. Thus the Ninth Circuit was incorrect in contending that Aymette “reached its conclu-

sion primarily because of” the conscientious objector provision, rather than the “common defense”

language. Silveira, 312 F.3d at 1073. Furthermore, Aymette’s reliance on the conscientious objector

provision was not persuasive, as our discussions of the Pennsylvania and Vermont declarations of

rights (Part III.B.2) and proposals emerging from the Pennsylvania, Virginia, and North Carolina

ratifying conventions (Part III.C.1) showed. See also Part II.B.2 (discussing meaning of “bear arms”).

It was common in a single document to refer separately both to the right of individuals to “bear arms”

and to exemption of individuals from the duty to “bear” them in the service of the government. In

addition, the court’s assertion that a hunter could never be said to “bear” arms, quoted above, is open to

doubt, given the proposed Virginia law discussed in Part II.B.2 and the Pennsylvania Minority Report

(see Parts II.B.2 and III.C.1), and, in any event, says nothing about persons “bearing” arms in self-

defense. The court did not cite the decision of its southern neighbor in Reid, which appears to have

been decided about six months before; it treated its previous discussion of the right in Simpson as dicta,

1840 WL 1554, at *5–6.

379

See Part III.C.2 above (discussing conscientious objector clause in draft of Second Amendment).

380

1840 WL 1554, at *4. As we noted in the introduction of Part II.B, the Ninth Circuit, in reaf-

firming its collective right view, did not attempt to reconcile the right to “keep” arms with its view.

381

Id. at *3, *5.

382

See id. at *4 (“the citizens may bear [arms] for the common defence,” but “the Legislature may

prohibit such manner of wearing as would never be resorted to by persons engaged in the common

defence”) (emphasis added).

Opinions of the Office of Legal Counsel in Volume 28

218

[I]f the people had retained their arms, they would have been able,

by a just and proper resistance to those oppressive measures, either

to have caused the king to respect their rights, or surrender (as he

was eventually compelled to do) the government into other hands.

No private defence was contemplated, or would have availed any-

thing. . . . [The right in the English Declaration means] that they may

as a body rise up to defend their just rights, and compel their rulers

to respect the laws. . . . The complaint was against the government.

The grievances to which they were thus forced to submit were for

the most part of a public character, and could have been redressed

only by the people rising up for their common defence, to vindicate

their rights.

383

The court also wrote that the people “may keep arms to protect the public liberty,

to keep in awe those in power, and to maintain the supremacy of the laws and the

constitution.” Citizens need to be prepared “to repel any encroachments upon their

rights by those in authority,” and the right “is a great political right. It respects the

citizens, on the one hand, and the rulers on the other.”

384

Subsequent treatment by the same court confirms that Aymette, despite its

narrow reading of “bear,” still recognized an individual right. In Andrews v. State,

a prominent case after the Civil War, the Tennessee Supreme Court interpreted the

right of the “citizens of this State . . . to keep and bear arms for their common

defense” under the state’s 1870 constitution. It was not until after Andrews that

Aymette, previously uncited, acquired any prominence.

385

The new constitution had

added an exception granting to “the Legislature . . . power by law, to regulate the

wearing of arms, with a view to prevent crime,” which had been prompted by an

383

Id. at *2.

384

Id. at *3–4. Furthermore, even if one might read the court’s rejection of an individual right to

bear arms in “private defence” as foreclosing any individual right to bear arms, two aspects of the

court’s reasoning (in addition to its analysis of “bear”) leave it open to question. First, the court’s

account of the English right, see id. at *2, was contrary to the text of the English Bill of Rights and

Blackstone’s exposition of an individual right to arms for self-defense, and failed to recognize that the

individual English right was transplanted to America free of England’s aristocratic restrictions, as

Tucker, Rawle, Story, and others had recognized and praised. Second, faced with the defendant’s

provocatively absolute claim regarding the scope of the right, see id. at *1, the court responded with

dichotomies between bearing arms by the body of the people for the common defense and “bearing”

arms for hypothetical criminal purposes, such as terrifying people. In thus defining the question, the

court defined away the well-established third possibility—bearing arms in legitimate self-defense—and

overlooked background law prohibiting bearing weapons for the hypothesized purposes. Compare id.

at *3–4, with Simpson, 1833 WL 1227, at *1; State v. Huntly, 25 N.C. (3 Ired.) 418, 1843 WL 891; 4

William Blackstone, Commentaries *145–47; Reid, 1840 WL 229, at *3, *5–6.

385

Andrews v. State, 50 Tenn. (3 Heisk.) 165, 1871 WL 3579, at *6. Andrews was the first case in

any jurisdiction to cite Aymette regarding the right to bear arms.

Whether the Second Amendment Secures an Individual Right

219

enduring dispute between partisans of Aymette and Simpson.

386

The statute at issue

prohibited any public or private carrying of “a dirk, swordcane, Spanish stiletto,

belt or pocket pistol or revolver.”

387

Notwithstanding the added constitutional

clause and the arguable implications of Aymette, the court held it unconstitutional

as applied to certain revolvers.

388

In reaching this holding, the court went far to assimilate Aymette to the reason-

ing of Reid and Nunn, even while technically retaining Aymette’s view of “bear.”

389

It did so in three ways. First, it expressly reaffirmed that at least the right to “keep”

belonged to individuals: The “right to bear arms for the common defense . . . may

well be held to be a political right, or for protection and maintenance of such

rights, intended to be guaranteed; but the right to keep them, with all that is

implied fairly as an incident to this right, is a private individual right, guaranteed

to the citizen, not the soldier.”

390

The court added, relying on Story, that it is “to be

exercised and enjoyed by the citizen as such, and not by him as a soldier, or in

defense solely of his political rights.”

391

Second, Andrews read “keep” expansively to include broad “incidental use,”

emphasizing that the goal of the right was to ensure that “the citizens making up

the yeomanry of the land, the body of the militia,” would be prepared when

needed. Thus:

The right to keep arms, necessarily involves the right to purchase

them, to keep them in a state of efficiency for use, and to purchase

and provide ammunition suitable for such arms, and to keep them in

repair. And clearly for this purpose, a man would have the right to

carry them to and from his home, and no one could claim that the

Legislature had the right to punish him for it, without violating this

clause of the Constitution.

But farther than this, it must be held, that the right to keep arms in-

volves, necessarily, the right to use such arms for all the ordinary

386

See id. at *8 (“The Convention of 1870, knowing that there had been differences of opinion on

this question, have conferred on the Legislature in this added clause, the right to regulate the wearing of

arms, with a view to prevent crime”); id. at *13 (“Ever since the opinions were promulgated, it has

been my deliberate conviction that the exposition of the Constitution . . . in Simpson . . . was much

more correct than that . . . in Aymette . . . .”) (Nelson, J., joined by Turley, J., dissenting in part).

387

Id. at *3.

388

Id. at *11.

389

Id. at *10 (finding “much of interesting and able discussion of these questions” in Bliss, Reid,

and Nunn; explaining that in Reid and Nunn “the general line of argument found in this opinion is

maintained” and that the court had been “aided . . . greatly by the reasoning of these enlightened

courts”); id. (describing Aymette as “hold[ing] the same general views” as the Andrews court) (empha-

sis added).

390

Id. at *8 (emphasis added).

391

Id. at *9.

Opinions of the Office of Legal Counsel in Volume 28

220

purposes, and in all the ordinary modes usual in the country, and to

which arms are adapted, limited by the duties of a good citizen in

times of peace . . . .

Because citizens needed to be able to “become familiar with” the use of arms “in

times of peace, that they may the more efficiently use them in times of war, . . . the

right to keep arms for this purpose involves the right to practice their use.”

392

Use

for “ordinary purposes” included a man taking his gun “from his room into the

street to shoot a rabid dog that threatened his child”

393

and using them on one’s

property in lawful self-defense.

394

Such reasoning is in large measure the same as

that taken by the traditional individual right view in explaining the relation

between the Second Amendment’s preface and operative text.

Third, consistently with its reading of “keep,” the court also broadened “arms.”

Aymette had defined the word to include only such arms “as are usually employed

in civilized warfare, and that constitute the ordinary military equipment.”

395

Andrews explained it as follows: “[T]he idea of the Constitution is, the keeping

and use of such arms as are useful either in warfare, or in preparing the citizen for

their use in warfare, by training him as a citizen, to their use in times of peace.”

396

The court took judicial notice “that the rifle of all descriptions, the shot gun, the

musket, and repeater, are such arms.”

397

Thus, setting aside any distinctions based on the specific language of Tennes-

see’s Constitution, the consequence of Aymette, taken together with Andrews, is

that “bear arms” was defined more narrowly in those cases, and “keep arms” more

broadly, than was usual. The net result seems to be not far from the traditional

individual right view held at the Founding and reflected in the great weight of

early authority.

The divided 1842 decision of the Arkansas Supreme Court in Buzzard did not,

even after the Civil War, ever acquire the prominence of Aymette, and when cited

392

Id. at *6–7.

393

Id. at *11.

394

Id. at *13.

395

1840 WL 1554, at *3.

396

1871 WL 3579, at *9. The court elsewhere defined “arms” as those furthering the end of “the

efficiency of the citizen as a soldier,” id. at *7, and as including not only weapons “adapted to the usual

equipment of the soldier” but also those “the use of which may render him more efficient as such,” id.

at *11. The term had to be “taken in connection with the fact that the citizen is to keep them as a

citizen” and therefore included such “as are found to make up the usual arms of the country, and the

use of which will properly train and render him efficient in defense of his own liberties, as well as of

the State.” Id. at *7.

397

Id. at *7; id. at *11. Two judges dissented in part, criticizing Aymette and taking a broader view

than the majority based on Simpson, Bliss, Blackstone, and Tucker. Id. at *13–15 (Nelson, J., joined by

Turney, J., dissenting in part). They argued that “for their common defense” was equivalent to “in

defense of themselves and the State.” Id. at *13–14. Similarly, “[t]he word ‘bear’ was not used alone in

the military sense of carrying arms, but in the popular sense of wearing them in war or in peace.” Id.

Whether the Second Amendment Secures an Individual Right

221

it was simply for its limited, uncontroversial holding, upholding a ban on carrying

weapons concealed.

398

Nevertheless, coming four years before Nunn, it appears to

have been the first judicial holding involving the Second Amendment, and one

judge’s concurring opinion was the first appearance of something suggesting a

collective right or quasi-collective right view.

The reasoning of the leading opinion for the 2-1 court was similar to that of

Aymette. The court addressed both the Second Amendment and the 1836 Arkansas

Constitution, which, like Tennessee’s, provided that “the free white men of this

State shall have a right to keep and bear arms for their common defense.”

399

Despite the textual differences between these two provisions (in particular the

Arkansas provision’s “for their common defense” language), the court treated

them as the same.

400

Much like Aymette, albeit without distinguishing between

“keep” and “bear,” the court apparently recognized a right of individuals but gave

it a limited scope.

401

The Arkansas court’s post-war decisions confirmed that the

right secured by the Arkansas Constitution belonged to individuals and included

the right to bear arms for at least some private purposes.

402

398

E.g., Fife v. State, 31 Ark. 455, 1876 WL 1562, at *3 (summarizing holding and then relying on

Aymette and Andrews); State v. Wilforth, 74 Mo. 528, 1881 WL 10279, at *1 (including Buzzard in

string citation with Nunn, Jumel, Mitchell, Owen, and Reid, and relying on Reid). Buzzard was first

cited in 1872. See State v. English, 35 Tex. 473, 1872 WL 7422; Carroll v. State, 28 Ark. 99, 1872 WL

1104.

399

Buzzard, 4 Ark. 18, 1842 WL 331, at *6.

400

See id. (equating the two, and adopting a single rule for evaluating restrictions).

401

See id. at *4 (explaining that “the militia, without arms . . . might be unable to resist, successful-

ly, the effort of those who should conspire to overthrow the established institutions of the country, or

subjugate their common liberties” and that “the people designed and expected to accomplish this object

by the adoption of the article under consideration, which would forever invest them with a legal right to

keep and bear arms for that purpose”); id. at *6 (“The act in question does not . . . detract anything

from the power of the people to defend their free state and the established institutions of the country.”);

see also id. at *2 (expressly equating Second Amendment right with rights in First); id. at *7 (noting

that Reid and Mitchell had upheld similar laws notwithstanding constitutional provisions expressly

protecting bearing arms in self-defense). As in Aymette, the court was faced with an absolute claim that

the right was subject to no restrictions, and responded similarly. See id. at *3, *5.

402

See Carroll, 1872 WL 1104, at *2 (upholding conviction for carrying deadly weapon concealed

and explaining Buzzard as holding that “a constitutional right to bear arms in defense of person and

property does not prohibit the legislature from making such police regulations as may be necessary for

the good of society, as to the manner in which such arms shall be borne”; adding that a “citizen” may

not “use his own property or bear his own arms in such way as to injure the property or endanger the

life of his fellow citizen”) (emphases added); Fife, 1876 WL 1562, at *3, *4 (restating Buzzard’s hold-

ing, and upholding conviction for carrying pistol by construing statute only to apply to pistol that “is

usually carried in the pocket, or of a size to be concealed about the person, and used in private quarrels,

and brawls, and not such as is in ordinary use, and effective as a weapon of war, and useful and

necessary for ‘the common defence’”); Wilson v. State, 33 Ark. 557, 1878 WL 1301, at *2 (reversing

conviction for carrying side arms, where trial court had refused jury instruction to acquit if pistol was

“army size . . . such as are commonly used in warfare”; citing Fife and Andrews and explaining that “to

prohibit the citizen from wearing or carrying a war arm, except upon his own premises or when on a

journey . . . , or when acting as or in aid of an officer, is an unwarranted restriction upon his constitu-

tional right to keep and bear arms”) (emphases added).

Opinions of the Office of Legal Counsel in Volume 28

222

The concurring opinion cited no history or authority and, as far as we are

aware, no court or even judge has ever cited it in interpreting a right to bear arms,

whether secured by the Second Amendment or by any of the analogous provisions

in state constitutions.

403

It did not present what would now be considered a

standard collective right or quasi-collective right view. Whereas those views

address the limits of federal power to interfere with state law, Judge Dickinson

addressed the case from the opposite vantage point, stating the question as whether

the state’s ban on carrying weapons concealed “interfere[s] with any regulations

made by Congress, as to the organizing, arming, or disciplining the militia, or in

the manner in which that militia are either to keep or bear their arms.”

404

In modern

terminology, the judge seemed to recast the case as turning on possible federal

preemption of the state law. The Second Amendment, in setting out what he

described as “the power given the militia to keep and bear arms,” merely re-

phrased the express federal powers in Article I, Section 8, Clause 16 of the

Constitution, the Amendment being “but an assertion of that general right of

sovereignty belonging to independent nations to regulate their military force.”

405

The Amendment thus did not add any protection of state powers. That protection

was implicit in Clause 16: “[T]he States retain the power to legislate in relation to

arms and the mode of carrying and keeping them, provided its exercise is not

repugnant to the previous grant to the Federal Government. . . . Could Congress

authorize any and every person by express law, to carry deadly weapons concealed

about his person, when not composing one of the militia, and not a part of the

regulations ordained for their government?”

406

The dissenting opinion employed the general rule for interpreting prefaces

(discussed above in Part II.C.1), and the same reasoning as Rawle, Story, and

Nunn, to explain the relation of the Amendment’s preface to the right:

Now, I take the expressions ‘a well regulated militia being necessary

for the security of a free State,’ and the terms ‘common defense,’ to

be the reasons assigned for the granting of the right, and not a re-

striction or limitation upon the right itself . . . . [W]hen was it con-

tended before that the reason given for the establishment of a right or

403

1842 WL 331, at *7 (Dickinson, J., concurring). See also Kopel, supra note 342, 1998 BYU L.

Rev. at 1425 (“The Buzzard concurrence’s assertion that the right to arms was not individual vanished

from American case law for the rest of the nineteenth century.”).

404

1842 WL 331, at *7 (Dickinson, J.); see id. at *10 (“The act . . . does not, in my opinion, conflict

with any of the powers of the General Government.”).

405

Id. at *7, *9. It is unclear what significance he gave to the state constitution’s provision. See id.

at *9.

406

Id. at *8.

Whether the Second Amendment Secures an Individual Right

223

its uninterrupted enjoyment not only limited the right itself, but re-

strained it to a single specific object?

407

Judge Lacy also pointed to the Second Amendment’s reference to a “free State”:

“To suppose that liberty cannot be in danger, except from a foreign foe or internal

disorder, is virtually to deny the importance and necessity of written constitu-

tions. . . . I cannot separate the political freedom of the State from the personal

rights of its citizens.”

408

He singled out the concurring opinion for granting the

right to “the militia alone,” and only at “the discretion of the Legislature”—a right

“valueless and not worth preserving; for the State unquestionably possesses the

power, without the grant, to arm the militia and direct how they shall be employed

in cases of invasion or domestic insurrection. . . . [W]hy give that which is no right

in itself and guarantees a privilege that is useless?”

409

Finally, the dissent explained

the right much as Blackstone had, tying it to self-defense and pointing out that it

was no more unlimited than the freedoms of speech and press.

410

In sum, the activity of courts closest to the Founding tends to reinforce what the

text and history establish—that the right secured by the Second Amendment

belongs to individuals. No court questioned the private right to keep arms, and

most recognized the traditional individual right to bear them. Two of the three

state supreme courts to apply the Second Amendment (Georgia and Louisiana)

repeatedly recognized a private right to bear arms for self-defense. The two cases

taking the narrowest view of the right (both in states whose constitutions had

“common defense” clauses in their right) were ignored, and even they recognized

some manner of individual right. Only in an opinion of a single judge, which was

and has continued to be ignored, did something like a quasi-collective or collective

right understanding appear, but even that opinion did not view the Second

Amendment as securing any right of states or of state (as opposed to federal)

militias. On balance, then, the cases before the Civil War, like the first commenta-

tors, confirm that the text and history of the Second Amendment support the

individual right view, not the collective right or quasi-collective right views.

C. Reconstruction

As the Civil War ended in 1865, southern governments enacted “black codes,”

which, among other things, either directly prohibited the newly freed slaves from

keeping and bearing arms or imposed stringent permit systems. In addition, armed

white mobs, sometimes including the militias, frequently disarmed the freed

407

Id. at *10 (Lacy, J., dissenting).

408

Id. at *14. See also id. (arguing that the right has at times “been the only means by which public

liberty or the security of free States has been vindicated and maintained”).

409

Id. at *10.

410

Id. at *12–14.

Opinions of the Office of Legal Counsel in Volume 28

224

blacks.

411

Such practices, coupled with blacks’ lack of citizenship, prompted the

Thirty-Ninth Congress to take several actions securing the rights of the newly

freed slaves and reaffirming the understanding that the right to keep and bear arms

was a personal right.

The first action was enactment of the Civil Rights Act of 1866. One goal of

many who sought its passage, noted by them and lamented by their opponents,

appears to have been to secure to freedmen the Second Amendment’s right to keep

and bear arms. Both representatives and senators highlighted disarmament of

blacks and argued that the Act, by making blacks citizens, would secure to them

that right. Senator Trumbull, Chairman of the Judiciary Committee and a sponsor

of the Act, explained that it would counteract those portions of the black codes

that “prohibit any negro or mulatto from having fire-arms.”

412

In the House,

Representative Clarke quoted the Second Amendment and declared, “I shall insist

that the reconstructed rebels of Mississippi respect the Constitution in their local

laws”; he also decried that newly formed southern governments had been “allowed

to rob and disarm our [black] veteran soldiers.” Representative Raymond argued,

in favor of the Act, that making blacks citizens would give to them “every right

which you or I have,” including “a right to bear arms.”

413

The second congressional action was passage of the Fourteenth Amendment in

June 1866. Senator Pomeroy, in addressing an early draft, listed as among the

“safeguards of liberty . . . under our Constitution” the right of “the freedman” to

“bear arms for the defense of himself and family and his homestead,” even

suggesting that Congress’s power to enforce the Thirteenth Amendment’s ban on

slavery might justify it in protecting this right in the South.

414

One of the Four-

teenth Amendment’s sponsors, in listing the rights of citizenship that its Privileges

or Immunities Clause would extend to blacks, pointed to “the personal rights

guaranteed and secured by the first eight amendments of the Constitution; such as

the freedom of speech and of the press; . . . [and] the right to keep and to bear

411

See, e.g., Laws of Miss. ch. 23, § 1, at 165 (enacted Nov. 29, 1865), reprinted in Stephen P.

Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866–1876, at 2 (1998).

See generally Halbrook, Freedmen at 2–3, 5, 8–12, 15–16, 18–20, 22–23, 26–32, 34–37 (collecting

reports of army and Freedmen’s Bureau officers to President and Congress, petitions to Congress, and

other public materials documenting attempts in former Confederacy in 1865 and 1866 to disarm blacks,

including through legislation and by militias).

412

Cong. Globe, 39th Cong., 1st Sess. 474 (1866). See also id. at 478 (Sen. Saulsbury, lamenting

this effect of the Act). Regarding Trumbull, see Raoul Berger, Government by Judiciary: The

Transformation of the Fourteenth Amendment 32 (2d ed. 1997).

413

Cong. Globe at 1838–39 (Rep. Clarke); id. at 1266 (Rep. Raymond). See also id. at 1629 (Rep.

Hart, explaining that Act would guarantee to free blacks “[a] government . . . where ‘no law shall be

made prohibiting the free exercise of religion’; where ‘the right of the people to keep and bear arms

shall not be infringed’”).

414

Id. at 1182.

Whether the Second Amendment Secures an Individual Right

225

arms.”

415

The New York Times and other leading newspapers reprinted these com-

ments, including the reference to the Second Amendment, and praised them.

416

This history indicates that it was widely recognized that the right to keep and

bear arms was to be protected by the Civil Rights Act and the Fourteenth Amend-

ment, and that that right was understood to belong to individuals. For example,

Raoul Berger, even while arguing against the view that the Fourteenth Amend-

ment “incorporated” the Bill of Rights to apply to the states, explains that “all are

agreed” that the Fourteenth Amendment aimed at least “to embody and protect”

the Civil Rights Act of 1866; he contends that the Act, in turn, “intended to confer

on the freedmen the auxiliary rights that would protect their ‘life, liberty, and

property’—no more.” He quotes Blackstone’s listing of these three principal rights

and demonstrates Blackstone’s prominence in the debates and in the denunciations

of the black codes.

417

As explained above in Part III.A, Blackstone described five

“auxiliary rights,” and the right of individuals to have and use arms for their

defense was one of them. Given the language of Section 1 of the Civil Rights Act,

it may be that states simply could not discriminate against blacks in the right to

keep and bear arms, not that the Second Amendment applied per se, but the point

remains that there was a consensus that the right in question belonged to individu-

als and was a right against the state.

418

Were there any remaining doubt on this question, Congress eliminated it a

month after approving the Fourteenth Amendment, when it renewed the Freed-

men’s Bureau over President Andrew Johnson’s veto. The act provided that

wherever the courts were not open, or in any state that had not been restored to the

Union, various rights, largely paralleling those in the Civil Rights Act, should “be

secured to and enjoyed by all the citizens . . . without respect to race or color, or

previous condition of slavery.” Among these were “the right . . . to have full and

equal benefit of all laws and proceedings concerning personal liberty, personal

security, and the acquisition, enjoyment, and disposition of estate, real and

personal, including the constitutional right to bear arms.”

419

Congress thus not

415

Id. at 2765 (Sen. Howard).

416

See Halbrook, Freedmen, supra note 411, at 36 (collecting excerpts).

417

Berger, Government by Judiciary, supra note 412, at 30, 30–39, 53–54. Berger does not specifi-

cally mention the right to keep and bear arms. See, e.g., id. at 166–69 (addressing Sen. Howard’s

statement but omitting his listing of rights).

418

Section 1 of the Civil Rights Act declares all those born in the United States to be citizens,

grants “the same right, in every State and Territory in the United States . . . as is enjoyed by white

citizens” with regard to certain enumerated aspects of property, contracting, and lawsuits, and

guarantees “full and equal benefit of all laws and proceedings for the security of person and property.”

14 Stat. 27, 27 (1866). In light of Blackstone’s understanding and the context of the black codes, any

laws regarding the ability to keep or bear arms would presumably be “laws . . . for the security of

person and property” and therefore would need to be equal for all citizens regardless of color.

419

Act of July 16, 1866, § 14, 14 Stat. 173, 176 (emphasis added). The President’s reasons for his

veto did not involve any disagreement with Congress regarding this right. See Veto Message (July 16,

1866), reprinted in 8 Messages and Papers, supra note 276, at 3620.

Opinions of the Office of Legal Counsel in Volume 28

226

only enacted the understanding that the Second Amendment protected an individ-

ual right, including the right to “bear” arms, but also did so in a way that rested on

Blackstone’s exposition of the individual right to arms as a critical auxiliary to the

three primary individual rights of life, liberty, and property.

Congress took the same view early in the following year, demonstrating not

only its understanding that the right belonged to individuals but also the limited,

indirect way in which it protected the states’ militias. Responding to the southern

militias’ depredations against the freed blacks, Congress included in a bill, which

the President signed, a provision “[t]hat all militia forces now organized or in

service” in the states of the former Confederacy “be forthwith disbanded, and that

the further organization, arming, or calling into service of the said militia forces,

or any part thereof, is hereby prohibited.”

420

Significantly, the bill’s sponsor had

agreed to strike “disarmed” after “disbanded,” in the face of opposition from

several (northern) senators that to disarm the citizens from whom the militia was

drawn, rather than merely disbanding the militias, would violate the Second

Amendment.

421

Congress’s actions both in disbanding the southern states’ militias

and in not disarming their citizens show that it understood the Second Amendment

right to protect individuals, not states or their militias.

422

Thus, from the Founding

through the Civil War, the overwhelming understanding of the right of the people

to keep and bear arms was that it was a right that belonged to individuals.

D. Beyond Reconstruction

As already suggested by our discussions above of Andrews and cases citing

Buzzard, the understanding of the right to keep and bear arms as an individual

right continued beyond the Civil War and Reconstruction. Although we do not

provide an exhaustive survey of the post-war period, we find it significant that the

modern alternative views of the right did not take hold until the twentieth century,

well over a century after the Second Amendment was ratified. Before that, the

420

Act of Mar. 2, 1867, § 6, 14 Stat. 485, 487. The President did inform the House that he was sign-

ing under “protest” because this provision, and another to which he objected, were included in an

essential appropriation bill. See Letter to the House of Representatives (Mar. 2, 1867), reprinted in 8

Messages and Papers, supra note 276, at 3670. Regarding the militia provision, he objected that it

“denies to ten States of this Union their constitutional right to protect themselves in any emergency by

means of their own militia.” It may be that in his constitutional objection he had in mind Article I,

Section 10’s implicit recognition of the prerogative of states to defend themselves with their militias in

cases of invasion or imminent danger. See Part II.D.2 above (discussing ways in which original

Constitution recognizes that states will have and be able to use militias).

421

The Senate debate is summarized from the Congressional Globe in Halbrook, Freedmen, supra

note 411, at 68–69.

422

See id. at 69 (“Astonishingly, while still waving the bloody shirt and depriving Southerners of

suffrage, Republicans were unwilling to deny the right to have arms to ex-Confederates.”); Nelson

Lund, Book Review, Outsider Voices on Guns and the Constitution, 17 Const. Comm. 701, 713 (2000)

(reviewing Halbrook) (“This incident perfectly illustrates why the Second Amendment had been

adopted in the first place.”).

Whether the Second Amendment Secures an Individual Right

227

views of the leading constitutional law scholar of the period, Thomas Cooley,

were in accord with his predecessors Tucker, Rawle, and Story, in recognizing an

individual right. And the Supreme Court, although making no holding regarding

the substance of the Amendment, suggested in dicta that it protected an individual

right.

Cooley’s General Principles of Constitutional Law, first published in 1880,

gained a prominence on the level of the works of his predecessors.

423

As had the

antebellum commentators, he espoused the individual right view of the Second

Amendment. After quoting the Amendment, noting that it was a “modification and

enlargement from the English Bill of Rights,” and citing Tucker, Cooley added the

following:

The Right is General.—It might be supposed from the phraseology

of this provision that the right to keep and bear arms was only guar-

anteed to the militia; but this would be an interpretation not warrant-

ed by the intent. . . . [I]f the right were limited to those enrolled [in

the militia, a number that the government could constrict], the pur-

pose of this guaranty might be defeated altogether by the action or

neglect to act of the government it was meant to hold in check. The

meaning of the provision undoubtedly is, that the people, from

whom the militia must be taken, shall have the right to keep and bear

arms, and they need no permission or regulation of law for the pur-

pose. But this enables the government to have a well-regulated mili-

tia; for to bear arms implies something more than the mere keeping;

it implies the learning to handle and use them in a way that makes

those who keep them ready for their efficient use; in other words, it

implies the right to meet for voluntary discipline in arms, observing

in doing so the laws of public order.

424

Cooley’s rejection of any collective right and quasi-collective right view is

consistent with the understanding of the Amendment’s prefatory clause that is

evident from the Founding and had been reiterated before the Civil War by Rawle,

Story, and Nunn. Even Cooley’s heading echoed Rawle’s statement over fifty

years earlier: “The prohibition is general.”

425

Cooley likewise treated both keeping

and bearing as private rights of citizens, and recognized that the right has limita-

423

See supra note 41; Kates, supra note 33, 82 Mich. L. Rev. at 243. Among Cooley’s many works

was to prepare the fourth edition of Story’s unabridged Commentaries, published in 1873.

424

Cooley, General Principles, supra note 41, at 271. Cooley cited 1 Tucker’s Blackstone, supra

note 60, at 300, which praises the right in the Second Amendment as “the true palladium of liberty”

and, paralleling Blackstone, ties it to the natural “right of self defence.” See Part IV.A above.

425

Rawle, View of the Constitution, supra note 327, at 125, discussed above in Part IV.A.

Opinions of the Office of Legal Counsel in Volume 28

228

tions (“the laws of public order”), just as any other individual right does.

426

Conversely, in discussing the Militia Clauses of Article I, Section 8, in a separate

part of his treatise, he made no mention of the Second Amendment.

427

Cooley reiterated this individual right interpretation in his even more celebrated

Treatise on the Constitutional Limitations, first published in 1868.

428

Among the

clauses common in state constitutions, he explained, were “[t]hose declaratory of

the fundamental rights of the citizen,” among which were freedom of speech and

of the press and “that every man may bear arms for the defence of himself and the

State.”

429

In a later chapter he included the right among the “the constitutional

protections to personal liberty”: “Among the other defences to personal liberty

should be mentioned the right of the people to keep and bear arms.” He explained

the right’s English origins, noted the importance for a “well-regulated militia” of

“the people” being “trained to bearing arms,” praised the lack of legislation

“regulat[ing] this right,” and cited Bliss, Nunn, and a case concerning the right of

self-defense.

430

Finally, in elsewhere explaining the scope of a state’s concurrent

power to organize and discipline the militia, Cooley simply cited Houston v.

Moore, not mentioning the Second Amendment.

431

Like the Court, he apparently

did not see the Amendment as relevant to the scope of the state’s power to

maintain a militia.

The Supreme Court did not address the substance of the Second Amendment

during this period, because of its view that the Bill of Rights, including the Second

Amendment, did not apply to the states.

432

In Robertson v. Baldwin, however, the

Court invoked the history of, and limitations on, the various rights in the Bill of

Rights, including the Second Amendment, to illustrate and defend a holding

regarding the limitations on the Thirteenth Amendment’s ban on slavery:

The law is perfectly well settled that the first ten amendments to the

Constitution, commonly known as the Bill of Rights, were not intend-

426

He added, citing Andrews (which had not interpreted the Second Amendment), that the Amend-

ment protected the keeping of arms “suitable for the general defence of the community against invasion

or oppression,” whereas “the secret carrying of those suited merely to deadly individual encounters

may be prohibited.” Cooley, General Principles, supra note 41, at 271–72.

427

Id. at 88–89.

428

See Kopel, supra note 342, 1998 BYU L. Rev. at 1462.

429

Thomas Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative

Power of the States of the American Union 35–36 (1868).

430

Id. at 350; see id. at 295 (chapter title). Miller cited this section. See 307 U.S. at 182 n.3 (citing

“Cooley’s Constitutional Limitations, Vol. 1, p. 729,” likely the 8th edition, published well after Coo-

ley’s death).

431

Cooley, Constitutional Limitations, supra note 429, at 18.

432

See Presser v. Illinois, 116 U.S. 252, 264–65 (1886); see also United States v. Cruikshank, 92

U.S. 542, 553 (1876); Logan v. United States, 144 U.S. 263, 286–87 (1892); Maxwell v. Dow, 176 U.S.

581, 597 (1900). As noted above in Part I, the federal government did not regulate private firearms

until 1934.

Whether the Second Amendment Secures an Individual Right

229

ed to lay down any novel principles of government, but simply to em-

body certain guaranties and immunities which we had inherited from

our English ancestors, and which had from time immemorial been sub-

ject to certain well-recognized exceptions arising from the necessities

of the case. In incorporating these principles into the fundamental law

there was no intention of disregarding the exceptions, which continued

to be recognized as if they had been formally expressed. Thus, the

freedom of speech and of the press (art. 1) does not permit the publica-

tion of libels, blasphemous or indecent articles, or other publications

injurious to public morals or private reputation; [and] the right of the

people to keep and bear arms (art. 2) is not infringed by laws prohibit-

ing the carrying of concealed weapons . . . .

433

The Court added similar illustrations from the Fifth and Sixth Amendments. The

Court thus suggested that the Second Amendment protected an individual right,

both by treating it in parallel with the individual rights in the rest of the Bill of

Rights and by pointing to the right’s English origins.

Not until 1905 was a view rejecting the individual right view truly born, and then

in a decision interpreting not the Second Amendment but rather a provision in a state

constitution. In City of Salina v. Blaksley, the Kansas Supreme Court held that a

clause in the Kansas Bill of Rights, providing that “‘[t]he people have the right to

bear arms for their defence and security,’” referred only “to the people as a collec-

tive body” and dealt “exclusively with the military. Individual rights are not

considered in this section.” Rather, the “people shall exercise this right” through the

power of their legislature, set out in the body of the state constitution, to organize,

equip, and discipline the militia. The right extended “only to the right to bear arms as

a member of the state militia, or some other military organization provided for by

law.”

434

The court seems to have been influenced by a provision in the state constitu-

tion admonishing against standing armies in time of peace, and praising civilian

control of the military, that immediately followed the text of the right.

435

The court

also, without citing historical authority and with little explanation, pointed to the

Second Amendment as analogous and reinforcing its reading.

436

Salina’s novelty was

433

165 U.S. 275, 281–82 (1897).

434

83 P. 619, 620 (Kan. 1905).

435

See id. As shown in Parts III.B.2 and III.C.1, however, there was nothing unusual in combining

such declarations with an individual right to arms.

436

See Blaksley, 83 P. at 620. The Fifth Circuit in Emerson criticized Salina, to the extent that it

was endorsing a quasi-collective right view, as “constru[ing] the constitutional provision as saying no

more than that the citizen has a right to do that which the state orders him to do and thus neither grants

the citizen any right nor in any way restricts the power of the state.” It found such a criticism

“especially applicable to the theory that such state constitutional provisions grant rights only to the

state,” noting that Salina did “not appear even to recognize, much less attempt to justify, the anomaly

of construing a constitutional declaration of rights as conferring rights only on the state which had them

anyway.” 270 F.3d at 231 n.30 (emphasis added). In the context of the right to keep and bear arms in

Opinions of the Office of Legal Counsel in Volume 28

230

not missed. One state supreme court soon after, in a survey reaching back to Bliss,

Reid, Nunn, and Aymette, described Salina as having gone “further than any other

case” by holding that the right to bear arms in the Kansas Constitution imposed no

limit on the legislature’s power to prohibit private individuals from carrying arms.

437

V. Conclusion

For the foregoing reasons, we conclude that the Second Amendment secures an

individual right to keep and to bear arms. Current case law leaves open and

unsettled the question of whose right is secured by the Amendment. Although we

do not address the scope of the right, our examination of the original meaning of

the Amendment provides extensive reasons to conclude that the Second Amend-

ment secures an individual right, and no persuasive basis for either the collective

right or quasi-collective right views. The text of the Amendment’s operative

clause, setting out a “right of the people to keep and bear Arms,” is clear and is

reinforced by the Constitution’s structure. The Amendment’s prefatory clause,

properly understood, is fully consistent with this interpretation. The broader

history of the Anglo-American right of individuals to have and use arms, from

England’s Revolution of 1688–1689 to the ratification of the Second Amendment

a hundred years later, leads to the same conclusion. Finally, the first hundred years

of interpretations of the Amendment, and especially the commentaries and case

law in the pre-Civil War period closest to the Amendment’s ratification, confirm

what the text and history of the Second Amendment require.

STEVEN G. BRADBURY

Principal Deputy Assistant Attorney General

Office of Legal Counsel

HOWARD C. NIELSON, JR.

Deputy Assistant Attorney General

Office of Legal Counsel

C. KEVIN MARSHALL

Acting Deputy Assistant Attorney General

Office of Legal Counsel

the federal Constitution, the quasi-collective right view appears to amount to the right of a militiaman,

through a private cause of action (or defense), to act as an agent for the interests of the state to

vindicate its power to establish and maintain an armed and organized militia such as the National

Guard. See, e.g., United States v. Haney, 264 F.3d 1161, 1165 (10th Cir. 2001).

437

Strickland v. State, 72 S.E. 260, 262 (Ga. 1911). For additional discussion of Salina, see Kopel,

supra note 342, 1998 BYU L. Rev. at 1510–12.