U.S. Department of Justice

Statement on the Second Amendment to the United States Constitution

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

Table of Contents

Introduction

The Unsettled Legal Landscape 


Textual and Structural Analysis


"The Right of the People"


"To Keep and Bear Arms"


"A Well Regulated Militia, being Necessary to the Security of a Free State"


Structural Considerations: The Bill of Rights and the Militia Powers


The Original Understanding of the Right to Keep and Bear Arms


The Right Inherited from England


The Right in America before the Framing


The Development of the Second Amendment


The Early Interpretations


The First Commentators


The First Cases


Reconstruction


Beyond Reconstruction


Conclusion

Introduction

The Second Amendment of the Constitution provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." 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 memorandum memorializes and expands upon advice that this Office provided to you on this question in 2001. 

As relevant to the question addressed herein, courts and commentators have relied on three different interpretations of the Second Amendment. Under the "individual right" view, the Second Amendment secures to individuals a personal right to keep and to bear arms, whether or not they are members of any militia or engaged in military service or training. According to this view, individuals may bring claims or raise challenges based on a violation of their rights under the Second Amendment just as they do to vindicate individual rights secured by other provisions of the Bill of Rights. (1) Under the "collective right" view, the Second Amendment is a federalism provision that provides to States a prerogative to establish and maintain armed and organized militia units akin to the National Guard, and only States may assert this prerogative. (2) Finally, there is a range of intermediate views according to which the Amendment secures a right only to select persons to keep and bear arms in connection with their service in an organized state militia such as the National Guard. Under one typical formulation, individuals may keep arms only if they are "members of a functioning, organized state militia" and the State has not provided the necessary arms, and they may bear arms only "while and as a part of actively participating in" that militia's activities. (3) In essence, such a view would allow a private cause of action (or defense) to some persons to vindicate a State's power to establish and maintain an armed and organized militia such as the National Guard. (4) We therefore label this group of intermediate positions the "quasi-collective right" view. 

The Supreme Court has not decided among these three potential interpretations, and the federal circuits are split. The Executive Branch has taken different views over the years. Most recently, in a 2001 memorandum to U.S. Attorneys, you endorsed the view that the Second Amendment protects a "'right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms'" but allows for "reasonable restrictions" designed "to prevent unfit persons from possessing firearms or to restrict possession of firearms particularly suited to criminal misuse." (5) 

As developed in the analysis below, we conclude that the Second Amendment secures a personal right of individuals, not a collective right that may only be invoked by a State or a quasi-collective right restricted to those persons who serve in organized militia units. Our conclusion is based on the Amendment's text, as commonly understood at the time of its adoption and interpreted in light of other provisions of the Constitution and the Amendment's historical antecedents. Our analysis is limited to determining whether the Amendment secures an individual, collective, or quasi-collective right. We do not consider the substance of that right, including its contours or the nature or type of governmental interests that would justify restrictions on its exercise, and nothing in this memorandum is intended to address or call into question the constitutionality, under the Second Amendment, of any particular limitations on owning, carrying, or using firearms. 

This memorandum proceeds in four parts. Part I addresses the current unsettled state of the law in this area. Part II demonstrates that the text and structure of the Constitution support the individual-right view of the Second Amendment. Part III shows why this view finds further support in the history that informed the understanding of the Second Amendment as it was written and ratified. Finally, Part IV examines the views of commentators and courts closest to the Second Amendment's adoption, which reflect an individual-right view, and then concludes by describing how the modern alternative views of the Second Amendment took hold in the early twentieth century. 

I. The Unsettled Legal Landscape

Recent interpretations of the Second Amendment have been characterized by disagreement and uncertainty. The Supreme Court has not decided the question that we address here, and at least three views prevail in the federal courts of appeals. The Executive Branch has taken varying positions, and the Amendment has been the subject of extensive academic debate for the past two decades. 

The Supreme Court's most important decision on the meaning of the Second Amendment, United States v. Miller, (6) grew out of the enactment of the National Firearms Act of 1934. (7) That Act was the first federal regulation of private firearms. (8) It taxed (and thereby registered) transfers of sawed-off shotguns or rifles capable of being concealed, machine guns, and silencers. It also taxed dealers in such weapons and required anyone who possessed such a weapon acquired before 1934 to register it with federal tax authorities. 

A Second Amendment challenge to this Act produced Miller in 1939, the closest that the Supreme Court has come to interpreting the substance of the Amendment. Miller and a co-defendant were indicted for transporting an unregistered sawed-off shotgun in interstate commerce from Oklahoma to Arkansas, and the district court sustained their Second Amendment challenge to the indictment. On appeal by the Government, neither defendant appeared or filed a brief. (9) The Court, in reversing and remanding, held that the sawed-off shotgun was not among the "Arms" protected by the Second Amendment absent "evidence tending to show that" its use or possession "at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia." Citing an 1840 decision of the Tennessee Supreme Court, Aymette v. State, the Court concluded that it was not "within judicial notice" that a sawed-off shotgun was a weapon that was "any part of the ordinary military equipment" or whose use "could contribute to the common defence." Absent evidence, therefore, the Court could not "say that the Second Amendment guarantees the right to keep and bear such an instrument." (10)

After this one-paragraph discussion, the Court quoted the powers that Article I, Section 8, Clauses 15 and 16 of the Constitution grant to Congress to provide for calling forth, organizing, arming, and disciplining "the Militia," and stated that the Second Amendment's "declaration and guarantee" were made "[w]ith obvious purpose to assure the continuation and render possible the effectiveness of" the militia, and that the Amendment "must be interpreted and applied with that end in view." (11) The Court then added a historical discussion demonstrating that "the term Militia" as used in various provisions of the Constitution, including the Second Amendment, referred to a body that "comprised all males physically capable of acting in concert for the common defense," who "were expected to appear" for occasional training "bearing arms supplied by themselves and of the kind in common use at the time," which in the 1700's usually meant a "good" musket of proper length. (12)

Miller did not resolve the question addressed in this memorandum. Although the meaning of the decision is much debated, three points appear evident. First, the holding was limited to the meaning of "Arms" in the Second Amendment and whether a sawed-off shotgun is among the arms protected. In determining that meaning, the Court also interpreted the term "Militia" as used in the Constitution. Second, the Court did not categorically reject Miller's Second Amendment challenge. The Court's decision to address the substance of this challenge to his indictment, as opposed to concluding that only States could bring such a challenge, appears to be inconsistent with a collective-right view. 

Finally, the Court did not clearly decide between the individual-right and quasi-collective-right views. Its holding regarding the meaning of "Arms" is consistent with either view: The Court's limitation of "Arms" to those weapons reasonably related to the preservation or efficiency of a well-regulated militia (such as those that are "part of the ordinary military equipment" or that "could contribute to the common defense") could be consistent with a right to "keep and bear" such arms that is restricted to service in an organized military unit such as the National Guard; but that holding is also consistent with an individual right to keep and bear whatever "Arms" the Amendment protects. Similarly, the Court's reference to the need to interpret the Second Amendment's "declaration and guarantee" with the "end in view" of furthering "the continuation and render[ing] possible the effectiveness of" the militia could be consistent with a quasi-collective-right view; but it is also consistent with the understanding of the relationship between an individual right to keep and bear arms and the "Militia" that prevailed at the time of the Founding, an understanding confirmed by early authorities' discussions of the Second Amendment's preface. (13)

Even so, absent from the Court's opinion in Miller was any discussion of whether the defendants were members of the National Guard or any other organized military force, whether they were transporting the shotgun in the service of such a force, or whether they were "physically capable of" bearing arms in one and thus even eligible for service. The nature of the weapon at issue, not of the defendants or their activities, appeared to be the key fact, and this aspect of the opinion tends to point toward the individual-right view rather than the quasi-collective-right view. In addition, Miller's broad reading of "Militia" is most consistent with the individual-right view, as we explain below in Part II.C.2, and is in tension with the quasi-collective-right view, under which the militia is understood to refer to select military units, akin to the modern National Guard, organized and armed by the States. (14) 

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 possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia." But the court doubted that Miller "was attempting to formulate a general rule applicable to all cases," warned of the consequences of such a view, and asserted that it was "unlikely that the framers of the Amendment intended any such result." (15) The court, instead, adopted what amounted to a quasi-collective-right view: A person has no right under the Second Amendment unless he is "a member of a[ ] military organization" or uses his weapon "in preparation for a military career," thus "contributing to the efficiency of the well regulated militia." (16) Neither in support of its assertion about the Framers' intent nor in its paragraph fashioning this rule did the court cite any text or other authority. 

Also in 1942, the Third Circuit in United States v. Tot applied Miller's definition of "Arms" to affirm the conviction of a defendant who received a pistol in interstate commerce after having been convicted of a felony involving violence. (17) Alternatively, the court rested its affirmance on the ground that the Government may prohibit such a convict from possessing a firearm. (18) Although either of these views is consistent with an individual right, (19) Tot added, in apparent dicta, a one-paragraph historical discussion in support of the view that the Amendment "was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power." (20) The court did not address the Amendment's text but instead chiefly relied on the Aymette case's account of the right that emerged from the English Revolution of 1688-1689. 

Over the past few decades, the Executive Branch has taken differing views of the right secured by the Second Amendment. (21) In 1941, President Roosevelt signed legislation authorizing requisitions of private property for war use that prohibited requisitioning or new registration "of any firearms possessed by any individual for his personal protection or sport" and, moreover, any impairing or infringing of "the right of any individual to keep and bear arms." (22) In 1959, this Office reviewed a bill that would have secured the custody and disposition of missiles, rockets, and earth satellites. We questioned its definition of "missile," which included "projectile" and "seems to include conventional ammunition," and we commented that if the bill purported "to prohibit private individuals from acquiring, possessing, or receiving any standard ammunition for firearms . . . . serious constitutional problems would arise under the Second Amendment." (23) In commenting on similar bills in 1961 and 1962, this Office cited and reaffirmed its 1959 memorandum. (24) In 1965, however, the Justice Department expressly adopted the collective-right interpretation in congressional testimony by Attorney General Katzenbach. (25) 

Soon after, in 1968, Congress passed the first major federal gun regulation since 1938, the Omnibus Crime Control and Safe Streets Act. (26) This statute produced a flurry of decisions in the federal courts of appeals rejecting the individual-right view. Following the Third Circuit's dicta in Tot, the Fourth, Sixth, Seventh, and Ninth Circuits eventually adopted the collective-right view. (27) Following the First Circuit in Cases, the Eighth, Tenth, and Eleventh Circuits adopted quasi-collective-right views. (28) As in Tot and Cases, many of these cases, particularly the initial ones, involved constitutional challenges by persons convicted of felonies or violent crimes, (29) and some involved challenges to restrictions on carrying concealed weapons. (30) These decisions did not analyze, at least not in depth, the Amendment's text or history. Rather, they relied on Tot or Cases (or their progeny), claimed support from Miller, or both. As the Ninth Circuit recently recognized in the course of adhering to its collective-right position, these earlier decisions reached their conclusions "with comparatively little analysis," "largely on the basis of the rather cursory discussion in Miller, and touched only briefly on the merits of the debate." (31) 

In contrast, the burgeoning scholarly literature on the Second Amendment in the past two decades has explored the meaning of the Second Amendment in great detail. The collective-right and quasi-collective-right positions have many adherents, (32) although the preponderance of modern scholarship appears to support the individual-right view. (33)

Recent decisions of the Fifth and Ninth Circuits have begun to remedy the relatively sparse judicial analysis of the meaning of the Second Amendment. In 2001, the Fifth Circuit in United States v. Emerson adopted the individual-right view, based on an extensive analysis of the Amendment's text and history. (34) The following year, the Ninth Circuit in Silveira v. Lockyer rejected Emerson with an extended counter-analysis and reaffirmed its adherence to the collective-right view. (35) Six members of the Ninth Circuit dissented from denial of rehearing en banc and endorsed an individual-right view. (36) 

In sum, the question of who possesses the right secured by the Second Amendment remains open and unsettled in the courts and among scholars. Accordingly, we turn to the Amendment's text, as commonly understood at the time of its adoption and interpreted in light of other provisions of the Constitution and the Amendment's historical antecedents, to discern its proper meaning.

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 infringed.

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 militiamen. 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 said to have "rights," (37) the Constitution itself does not use the word "right" in this manner. Setting aside the Second Amendment, not once does the Constitution confer a "right" on any governmental entity, state or federal. Nor does it confer any "right" restricted to persons in governmental service, such as members of an organized military unit. In addition to its various references to a "right of the people" discussed below, the Constitution in the Sixth Amendment secures "right[s]" to an accused person, and in the Seventh secures a person's "right" to a jury trial in civil cases. (38) By contrast, governments, whether state or federal, have in the Constitution only "powers" or "authority." (39) It would be a marked anomaly if "right" in the Second Amendment departed from such uniform usage throughout the Constitution. 

In any event, any possible doubt vanishes when "right" is conjoined with "the people," as it is in the Second Amendment. Such a right belongs to individuals: The "people" are not a "State," nor are they identical with the "Militia." Indeed, the Second Amendment distinctly uses all three of these terms, yet it secures a "right" only to the "people." The phrase "the right of the people" appears two other times in the Bill of Rights, and both times refers to a personal right, which belongs to individuals. The First Amendment secures "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," 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 recognized 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 certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") (emphasis added); Art. I, 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. (40)

Thomas Cooley, the leading constitutional scholar after the Civil War, took the same view in explaining "the people" in the context of the First Amendment: "When the term 'the people' is made use of in constitutional law or discussions, it is often the case that those only are intended who have a share in the government through being clothed with the elective franchise. . . . But in all the enumerations and guaranties of rights the whole people are intended, because the rights of all are equal, and are meant to be equally protected." (41) 

The Constitution confirms this meaning of "the people" as individuals by expressly distinguishing the "people" from the "States," using each word to refer to a distinct thing. Indeed, the Second Amendment itself refers separately to "the people" and the "State." And the difference is firmly established by the Tenth Amendment, which distinguishes between the powers reserved "to the States" and those reserved "to the people." The "people" are the individuals who compose the States, distinct from - and bearing their federal "rights" apart from - those entities. (42) 

Similarly, the Constitution gives distinct meanings to "the people" and the "Militia." Again, the Second Amendment itself is a notable example, referring to the "well regulated Militia" but granting the "right" to "the people." The Constitution's other references to "rights" of "the people," noted above, cannot plausibly be construed as referring to the "Militia." In addition, when granting governmental power over the militia, the Constitution speaks of the militia expressly, without any reference to or suggestion of the broader "people." (43) And the Fifth Amendment's Grand Jury Clause, which distinguishes between all "person[s]" and those serving in the army, navy, or "the Militia, when in actual service," indicates that where the Constitution addresses rights that turn on service in the militia it does so expressly.

The only truly "collective" use of the "the people" at the time of the Founding was to refer to the people as they existed apart from government or any service to it. The Declaration of Independence refers to "one People" dissolving their political bonds with another and forming their own nation, and "We the people" created the Constitution in ratifying conventions chosen "by the People" of each State. (44) Thus, even in this context, the "people" are distinguished from "the government" or "the State"; nor can the term plausibly be limited to the "Militia." And when "the people" appears in the phrase "the right of the people" in the Constitution, we conclude that it indicates a personal right of individuals, whether that be a right to assemble and petition, to be secure in one's person and property, or to keep and bear arms.

B. "To Keep and Bear Arms"

The "right of the people" that the Second Amendment secures is a right "to keep and bear Arms." As the previous subpart showed, those who hold the right are, according to the text, "the people" - individuals - not the government or even the militia. The phrase "to keep and bear Arms" is consistent with this conclusion: The phrase "keep . . . Arms" reinforces it, (45) and the phrase "bear Arms" is not inconsistent with it. 

1. "To Keep . . . Arms." 

In eighteenth-century English, an individual could "keep arms," and keep them for private purposes, unrelated to militia duty, just as he could keep any other private property, and the phrase was commonly used in this sense. For example, in Rex v. Gardner (K.B. 1738), a defendant charged with "keeping a gun" in violation of a 1706 English statute (which prohibited commoners from keeping specified objects or "other engines" for the destruction of game) argued that "though there are many things for the bare keeping of which a man may be convicted; yet they are only such as can only be used for destruction of the game, whereas a gun is necessary for defence of a house, or for a farmer to shoot crows." The court agreed, reasoning that "a gun differs from nets and dogs, which can only be kept for an ill purpose." (46) The Court of Common Pleas six years later treated Gardner as having "settled and determined" that "a man may keep a gun for the defence of his house and family," (47) and in 1752 the King's Bench reiterated that "a gun may be kept for the defence of a man's house, and for divers other lawful purposes." (48) The same usage appeared in an earlier prosecution of a man for "keeping of a gun" contrary to a statute that barred all but the wealthy from privately owning small handguns. (49) 

William Blackstone, whose Commentaries on the Laws of England, first published in the decade before the American Revolution, was the leading legal authority in America at the Founding, wrote, without any reference to the militia, of "person[s]" who are "qualified to keep a gun" and are "shooting at a mark," apparently on their own property. (50) He also noted that certain persons could not "keep arms in their houses," pursuant to a statute that used "keep" to signify private ownership and control over arms, wherever located. (51) Colonial and early state statutes similarly used "keep" to "describe arms possession by individuals in all contexts," including requiring those exempt from militia service (such as the over-aged) to "keep" arms in their homes for both law enforcement and "the defense of their homes from criminals or foreign enemies." (52) At the Massachusetts Ratifying Convention in 1788, Samuel Adams proposed an amendment prohibiting Congress from "prevent[ing] the people of the United States, who are peaceable citizens, from keeping their own arms," indicating ownership by individuals of private arms. (53) And that State's Supreme Court, in a libel case soon after the Founding, likened the "right to keep fire arms" to the freedom of the press, both being individual but not unlimited rights - the former not protecting "him who uses them for annoyance or destruction." (54) The basic dictionary definition of "keep" -"[t]o retain" and "[t]o have in custody"- was consistent with this specific meaning. (55) 

In short, the phrase "keep arms" was commonly understood to denote ownership of arms by private citizens for private purposes. When that phrase is read together with its subject - "the right of the people" - the evidence points strongly toward an individual right. Had the Constitution meant not to protect the right of the whole "people" to "keep" arms but instead to establish a "right" of the States or of only the members of their militias to store them, presumably it would have used different language. (56)



2. "To . . . Bear Arms."

To "bear" was, at the Founding as now, a word with numerous definitions - used with great "latitude" and "in very different senses," as Samuel Johnson noted in his dictionary. (57) Its basic meaning was simply to "carry" or "wear" something, particularly carrying or wearing in a way that would be known to others, such as in bearing a message, bearing another person, or bearing something as a mark of authority or distinction. (58) As a result, "bear," when taking "arms" as its object, could refer to multiple contexts in which one might carry or wear arms in this way. (59) It is true that "bear arms" often did refer to carrying arms in military service. (60) But the phrase was not a term of art limited to this sense. Arms also could be "borne" for private, non-military purposes, principally tied to self-defense. For example, an early colonial statute in Massachusetts required every "freeman or other inhabitant" to provide arms for himself and anyone else in his household able to "beare armes," and one in Virginia required "all men that are fittinge to beare armes" to "bring their pieces" to church. (61) 

There are also several examples closer to the Founding. In 1779, a committee of eminent Virginians including Thomas Jefferson and George Mason, charged with revising the new State's laws, authored a bill penalizing any person who, within a year of having violated a restriction on hunting deer, "shall bear a gun out of his inclosed ground, unless whilst performing military duty." This bill demonstrates that to "bear a gun" was not limited to "performing military duty." James Madison submitted this bill to the Virginia legislature in 1785. (62) Many early state 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 right to "bear arms" in "defense of himself and the State" or in "defense of themselves and the State," indicating that a person might be said to "bear arms" in self-defense. (63) A 1780 opinion of London's Recorder (the city's legal adviser and the primary judge in its criminal court) on the legality of a private self-defense association acknowledged "the rights of the people of this realm to bear arms, and to instruct themselves in the use of them, collectively," albeit within limits. (64) In a newspaper commentary published in major cities after Madison introduced the Bill of Rights in Congress, a friend of his wrote that the proposed Second Amendment would "confirm[]" the people's "right to keep and bear their private arms." (65) Supreme Court Justice Joseph Story, in his 1833 Commentaries on the Constitution of the United States, paraphrased as a "right to bear arms" the right of English "subjects . . . [to] have arms for their defence," an individual right not tied to service in the militia. (66) Finally, other examples of contemporaneous uses of "bear arms" to denote actions of individuals appear in cases from the early 1800's up to the Civil War, discussed below in Part IV.B. 

The Minority Report issued by twenty-one delegates of the Pennsylvania Convention 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 battle over ratifying the Constitution, we are unaware of any contemporaneous criticisms that this widely circulated document misused language in giving such senses to the phrase "bear arms." (67) 

In sum, although "bear arms" often referred to carrying or wearing arms in connection with military duty, it was not limited to such a meaning. When, as in the Second Amendment, those words are used in conjunction with "keep arms," which commonly did refer to private action, and the whole phrase "to keep and bear Arms" is used in the context of a "right of the people," (68) we conclude that the core, operative text of the Amendment secures a personal right, which belongs to individuals. We next consider whether the Amendment's prefatory language requires a different conclusion. 

C. "A Well Regulated Militia, being Necessary to the Security of a Free State"

A feature of the Second Amendment that distinguishes it from the other rights that the Bill of Rights secures is its prefatory subordinate clause, declaring: "A well regulated Militia, being necessary to the security of a free State, . . . ." Advocates of the collective-right and quasi-collective-right interpretations rely on this declaration, particularly its reference to a well-regulated militia. On their interpretation, the "people" to which the Second Amendment refers is only the "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 understood at the Founding, the preface is fully consistent with the individual right that the Amendment's operative language sets out. The "Militia" as understood at the Founding was not a select group such as the National Guard of today. It consisted of all able-bodied male citizens. The Second Amendment's preface identifies as a justification for the individual right that a necessary condition for an effective citizen militia, and for the "free State" that it helps to secure, is a citizenry that is privately armed and able to use its private arms. 

1. The Limits of Prefatory Language. 

In the eighteenth century, the proper approach to interpreting a substantive or "operative" legal provision to which a lawmaker had joined a declaration (whether a "Whereas" clause or analogous language) was (1) to seek to interpret the operative provision on its own, and (2) then to look to the declaration only to clarify any ambiguity remaining in the operative provision. (69) It was desirable, if consistent with the operative text, to interpret the operative provision so that it generally fulfilled the justification that the preface declared, but a narrow declaration 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 Amendment. 

English Parliaments of the 1700's and late 1600's regularly included prefaces throughout statutes - not only at the beginning (constituting the first section) but also in particular sections. (70) The same rule of interpretation applied to both uses of prefaces. As an example of the latter, a section of a bankruptcy statute recited the problem of persons who "convey their goods to other men upon good consideration" before becoming bankrupt, yet continue to act as owners of the goods; the immediately following clause of the statute provided that if a bankrupt debtor possessed "any goods or chattels" with "the consent and permission of the true owner," was their reputed owner, and disposed of them as an owner, such property should repay the debtor's debts rather than return to the true owner. The difficulty arose when the bankrupt debtor possessed property that never had been his, such as property in trust. A leading case in 1716 read the enacting language to apply even in such cases and rejected the argument "that the preamble shall restrain the operation of the enacting clause; and that, because the preamble is too narrow or defective, therefore the enacting clause, which has general words, shall be restrained from its full latitude, and from doing that good which the words would otherwise, and of themselves, import." (71) The King's Bench reiterated the rule in 1723, rejecting in a criminal case an argument based on declaratory language introducing part of a statute: "Now those general words in the enacting part, shall never be restrained by any words introducing that part; for it is no rule in the exposition of statutes to confine the general words of the enacting part to any particular words either introducing it, or to any such words even in the preamble itself." The court acknowledged that "a construction which agrees with the preamble" was desirable, "but not such as may confine the enacting part to it." (72) 

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 construction of an act of parliament." (73) Chancellor Kent, a leading early American commentator, likewise reasoned that a preamble, although not technically part of the law, "may, at times, aid in the construction of" a statute or "be resorted to in order to ascertain the inducements to the making" of it, "but when the words of the enacting clause are clear and positive, recourse must not be had to the preamble." (74) 

Prefatory language also was common in constitutions, and this rule of construction applied in the same way. Speaking of the preamble of the whole federal Constitution, Joseph Story in his Commentaries reiterated that statutory preambles are "properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; for if they are clear and unambiguous, there seems little room for interpretation," and he could not see "any reason why, in a fundamental law or constitution of government," the same rule should not apply. (75) Similarly, the Supreme Court has held that the Constitution's preamble lacks any operative legal effect and that, even though it states the Constitution's "general purposes," it cannot be used to conjure a "spirit" of the document to confound clear operative language; (76) the Court has, however, also sought some guidance from the preamble when the operative text did not resolve a question. (77) 

The same reasoning applied to declaratory phrases in the language of individual constitutional provisions, the closest analogies to the Second Amendment. The 1784 New Hampshire Constitution provided: "In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed." (78) Even though in some cases a trial outside of the county where a crime was committed might bring it closer to the crime scene, or a judge might think a trial in the county where the crime occurred not "essential to" (or even in conflict with) "the security of the life, liberty and estate of the citizen," neither fact would justify disregarding the clear operative language of this constitutional provision. (79) Likewise, the pre-1787 constitutions of Massachusetts, New Hampshire, and Vermont declared that freedom of speech in the legislature was "so essential to the rights of the people" that words spoken there could not the basis of "any" suit. (80) One could not use this declaration to avoid the clear immunity conferred by the operative language, even where particular statements made in the legislature - such as an egregious slander unrelated to a pending bill - were not thought "essential to" the people's rights. (81) In addition, Madison's draft of what became the First Amendment's Free Press Clause read: "the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable." (82) The emphasized declaratory language presumably could not have qualified or limited the freedom clearly conferred, such as by exempting from protection, as hostile to "liberty," publications advocating absolute monarchy. 

A discussion at the Constitutional Convention demonstrates the same understanding, 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 standing army while "not restrain[ing] Congress from establishing" one. (83) No doubt an organized, armed, and disciplined militia would generally "better secure" liberties against peace-time standing armies (by reducing the need for such armies and the threat from any that were created), and thus the operative grant of power "agree[d] with" the declaratory preface; (84) but the preface did not restrain or confine the power.

We see no reason to except the Second Amendment from this broadly applicable interpretive rule. (85) Thus, the Amendment's declaratory preface could not overcome the unambiguously individual "right of the people to keep and bear Arms" conferred by the operative text - even if the collective-right and quasi-collective-right schools' understanding of the preface's meaning were correct, and even though the preface might help resolve any ambiguities concerning the scope of that individual right remaining after one has analyzed the operative text. At the same time, any interpretation of the right ought, if possible consistent with its text, to further the declared justification in general, as the Court in Miller recognized when it stated that interpretation of the Amendment should keep the "end in view" of assuring the continuation and rendering possible the effectiveness of the militia. (86) As we explain in the remainder of this subpart - considering in turn the meaning of "Militia," what a "well regulated Militia" was, and the ultimate end of "the security of a free State" - the individual-right view does further the ends set forth in the prefatory language, and therefore the preface, properly understood, is fully consistent with the individual-right interpretation of the operative text. 

2. The "Militia." 

A key claim of the collective-right and quasi-collective-right schools with regard to the Second Amendment's preface is that a "well regulated Militia" is a standing military organization or body of troops, of limited size, organized and governed by state governments, albeit concurrently with the federal Government (akin to voluntary select forces such as the National Guard that were established over a hundred years after the Amendment was adopted). As a result, the argument goes, the Amendment merely protects the States against federal efforts to undermine such forces, either by protecting the States directly or by protecting only persons serving in those forces. (87) 

This argument disregards the understanding of the "Militia" at the time of the Founding. As used in the Second Amendment, and elsewhere in the Constitution, "Militia" referred to a body consisting of all adult male citizens up to a certain age (anywhere from forty-five to sixty), the goal being to include all who were physically capable of service. It was not limited to a select force of persons in active military duty. This entire population of able-bodied male citizens was involuntarily "enrolled" by local militia officials, somewhat as men now register for the selective service (except that enrollment required no action by the citizen), and all enrolled citizens were required by law to join occasional "exercise" - to which they were expected to bring their own, private arms - but they otherwise remained in civilian life. The militia "rest[ed] upon the shoulders of the people," (88) because, as then understood, it consisted of a large number of the "people" at any one time and of all of the able-bodied white men for a substantial portion of their lives. It was the people embodied as an armed force. Thus, a key aspect of the term "Militia" was the composition of the force to which it referred. As a result, the reference to the "Militia" in the Second Amendment's preface "agrees with" the individual right that the Amendment's operative text sets out, (89) because securing to "the people" a right to keep and to bear their own arms made such a broad-based, privately armed force more likely to exist and to be effective. (90) 

The term "Militia" was used in contrast both to a regular, standing army and, more importantly, to a "select militia" or "corps." (91) The latter distinction is evident throughout contemporaneous usage, "select militia" denoting a significantly smaller body, consisting either of better trained military professionals who could remain active for extended periods, or of those chosen selectively, perhaps because of political or other discrimination. (92) For example, at the Constitutional Convention, George Mason mentioned the need for federal regulation of the militia to ensure that they were adequately trained. He suspected that the States would not relinquish "the power over the whole" but would "over a part as a select militia." He added that "a select militia" would be "as much as the Gen[eral] Gov[ernment] could advantageously be charged with," and thus suggested that it receive power only over "one tenth part" of the militia per year. Oliver Ellsworth, later to be a Senator and Chief Justice, objected because a "select militia" either would be impractical or would cause "a ruinous declension of the great body of the Militia." (93) Edmund Randolph, leader of the Virginia delegation, similarly equated the militia with "the whole mass" of the people. (94) 

In the debate over ratification, both sides shared this broad understanding of "Militia." Among the Federalists, Madison in The Federalist predicted that a federal army bent on oppression would be opposed by "a militia amounting to near half a million of citizens with arms in their hands" - a group that he likened to the citizen bands that had fought in the Revolution and linked to "the advantage of being armed, which the Americans possess over the people of almost every other nation." (95) Alexander Hamilton described the militia as "the great body of the yeomanry and of the other classes of the citizens," "the great body of the people," and "the whole nation," which he contrasted with a "select corps." (96) A Connecticut Federalist writing as "The Republican" praised as "a capital circumstance in favour of our liberty" that "the people of this country have arms in their hands; they are not destitute of military knowledge; every citizen is required by Law to be a soldier; we are all martialed into companies, regiments, and brigades, for the defence of our country." (97) In a speech, later published, in response to South Carolina's vote to ratify, David Ramsay, a state legislator and delegate to the ratifying convention, praised the Constitution's militia powers and asked, "What European power will dare to attack us, when it is known that the yeomanry of the country uniformly armed and disciplined, may on any emergency be called out to our defence . . . ?" (98) Maryland's "Aristides," in a fairly widely circulated pamphlet, wrote simply that "the militia . . . is ourselves." (99) 

Among the Anti-Federalists, Mason, in the Virginia Ratifying Convention, asked: "Who are the Militia? They consist now of the whole people," while 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 National Guard is further strained by the common-law prohibition against the King's 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 debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. (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. 

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 "Armies," 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 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 effectiveness 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, 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 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 erroneous 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 conclusion 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 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) 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-defence (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 Englishmen . . . consist primarily, in the free enjoyment of personal security, 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 possibly 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 subjects of England are entitled, in the first place, to the regular administration 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 exclusion of the citizen militia) but also the disarming of the rest of the citizenry, a 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 Constitution 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 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 Blackstone 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.

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 Article 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 Appointment 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 existence 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 Government, 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 emergency 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 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 amendment 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 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 belonging to the States directly or to those serving it. 

The Militia Clauses therefore suggest that the Second Amendment, to the extent that it furthers the States' authority to maintain organized militias, does so indirectly, as we discussed in the previous subpart (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 Founding 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 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 collective-right or quasi-collective-right views. Next, in Subpart 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 understanding, 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, "The 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 amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors." (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 expounded 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 "Convention" 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 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 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:

E. By raising and keeping a standing army within this kingdom in time of peace, without consent of parliament, and quartering soldiers contrary to law.

F. By causing several good subjects, being protestants, to be disarmed, at the same time when papists were both armed and employed, 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.

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 weapons. . . . Drafted by upper-class Protestants who had their own interests at heart, Article VII was a gun control measure." (168) The Declaration, therefore, the argument 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 question 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 individual," 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. 

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, "The 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 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 1790's 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 colonists 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 individual 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" 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 Parliament 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 independently 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 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 "disarm[ ] 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) 

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 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 Householder" 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 recognized 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 illegal act, in calling upon one another to be provided with them, as the law directs. (200)

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 violence 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 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 Massachusetts 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 surrounded 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 Destruction 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 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 Concord, 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 General 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, 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 Massachusetts, 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 Declaration 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 under strict subordination to, and governed by, the civil power. (222)

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 themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power. (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 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 September 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)

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 citizens," 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 exemption 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 liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power. (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 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 guarantee, 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 defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it. (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 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) 

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-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 Federalists' 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 traditional liberties, particularly after it had destroyed the militia. (257) The Federalists' 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 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 themselves 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 injury 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 military 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 Article I, Section 8, Clause 16 powers over the militia and to prot