- See also: gun control
|“||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.||”|
Individual or Collective Right?
For several decades, the lower federal courts had interpreted the Second Amendment as protecting merely a collective right of state militias. However, the U.S Supreme Court has always called it an individual right. The 2008 Supreme Court decision of District of Columbia v. Heller ruled 5–4 that the Second Amendment protects an individual right. This decision was expanded upon in McDonald v. Chicago two years later, which ruled that Second Amendment applies to protect individual rights against state and city laws also.
Where the Second Amendment comes from
Ideals such as Natural Law were well established in the Thirteen Colonies through authors such as William Blackstone, who wrote about the inalienability of rights. In Commentaries on the Laws of England, Blackstone wrote:
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.
For this reason, in the years of 1774 and 1775 when several incidents happened to give the colonists a fear that the British would take their guns away they were willing to stand up and defend their rights.
In September 1774, the Powder Alarm was a response to the removal of gunpowder from a magazine located in Somerville, Massachusetts. In October 1774, the king passed an order in arms edict forbidding the export of arms or ammo to the colonies. Word of this embargo quickly spread, and shortly after learning of it Patriots in New Hampshire raided the Fort William and Mary, removing all gunpowder and arms before any could be confiscated. In 1775, Patrick Henry led a militia force after the Gunpowder Incident in Williamsburg, Virginia.
Shortly after the famed ride of Paul Revere, it was learned that General Gage gave orders to Colonel Smith to destroy all arms and ammunition and related items for defense use:
Sir: In obedience to your Excellency's commands, I marched on the evening of the 18th inst., with the corps of grenadiers and light infantry for Concord, to execute your Excellency's orders with respect to destroying all ammunition, artillery, tents, etc., collected there, which was effected, having knocked off the trunnions of three pieces of ordnance, some new gun-carriages, a great number of carriage wheels burnt, a considerable quantity of flour, some gunpowder and musquet balls, with other small articles thrown into the river.
Because of these actions, the Continental Congress passed a resolution unanimously that urged sending supplies to Bostonians during the Siege of Boston, praised the Suffolk Resolves, and criticized Britain's "wicked ministerial measures." Likewise the Committee of Correspondence of Worcester noted that: "many places searched, where arms and ammunition were suspected to be; and if found, seized."
As noted in the Chronical of 1774, one of the most irritating actions the people were subjected to was the "seizing their arms and ammunition". The following year, King George extended the prohibition, and John Pownall, a member of Parliament, wrote to colonial governors that "His Majesty's Subjects in America should be informed of the Proclamation issued by order of the States General, prohibiting the exportation of Arms and Ammunition from their Dominions, in British Ships or in their own Ships." As noted by historians Richard Frothingham and David Ramsay, during the Siege of Boston townspeople were forced to stay under the watchful eye of British guards unless they surrendered their arms and ammunition.
Patriots outside of Boston felt dearly for their fellow colonists stuck within Boston. When General Gage started delaying and making up excuses to let people leave, even after they complied with the King's gun control measures, people inside as well as outside of Boston felt even further undignified. Mercy Otis Warren noted that the "insulted" people of Boston, even after complying, were only able to get out after food provisions brought increasing civil disorder.
One of the final documents prior to the Declaration of Independence was the Declaration of the Causes and Necessity of Taking Up Arms, in which is written a reference to the events that happened during the Siege of Boston:
The inhabitants of Boston..... entered into a treaty with him, it was stipulated that the said inhabitants, having deposited their arms with their own Magistrates... delivered up their arms; but in open violation of honour, in defiance of the obligation of treaties, which even savage nations esteemed sacred, the Governour ordered the arms deposited as aforesaid.... to be seized by a body of soldiers
Sir, during that state of things, Parliament was not idle. They attempted to subdue the fierce spirit of the Welsh by all sorts of rigorous laws. They prohibited by statute the sending all sorts of arms into Wales, as you prohibit by proclamation (with something more of doubt on the legality) the sending arms to America. They disarmed the Welsh by statute, as you attempted (but still with more question on the legality) to disarm New England by an instruction.
In 1786, the United States existed as a loose national government under the Articles of Confederation. This confederation was perceived to have several weaknesses, among which was the inability to mount a Federal military response to an armed uprising in western Massachusetts known as Shays' Rebellion.
In 1787, to address these weaknesses, the Constitutional Convention was held with the idea of amending the Articles. When the convention ended with a proposed Constitution, those who debated the ratification of the Constitution divided into two camps; the Federalists (who supported ratification of the Constitution) and the Anti-Federalists (who opposed it).
Among their objections to the Constitution, anti-Federalists feared a standing army that could eventually endanger democracy and civil liberties. Although the anti-Federalists were unsuccessful at blocking ratification of the Constitution, through the Massachusetts Compromise they insured that a Bill of Rights would be made, which would provide constitutional guarantees against taking away certain rights.
One of those rights was the right to bear arms. This was intended to prevent the Federal Government from taking away the ability of the states to raise an army and defend itself and arguably to prevent them from taking away from individuals the ability to bear arms.
In 1792, the Militia Acts of 1792 were passed by Congress.
Supreme Court Decisions
The U.S. Supreme Court has heard only three major Second Amendment cases in the last 140 years:
- United States v. Miller (1939) (held that the Second Amendment did not guarantee a citizen's right to possess a sawed-off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense")
- District of Columbia v. Heller (2008) (a 5–4 decision written by Justice Antonin Scalia that recognized an individual right under the Second Amendment)
- McDonald v. Chicago (2010) (merely extended the Heller decision to apply against State and local laws, too).
The meaning of this amendment is controversial with respect to gun control and what type of weapons are covered.
The National Rifle Association, which supports gun rights, has a stone plaque in front of its headquarters bearing the words "The right of the people to keep and bear arms shall not be infringed." By dropping the "militia" phrase, the slogan advocates that the Second Amendment should mean that individual citizens have the right to own and use guns.
American law has always said that the militia includes ordinary private citizens, and gun rights advocates say that the amendment means individuals have the right to own and use guns. Gun control advocates began in the late 20th century to say it means only that there is only some sort of collective or state-controlled right.
Supreme Court opinions have all been consistent with the individual rights interpretation of the Second Amendment, but the lower court opinions are mixed.
As of 2007, people argue about the meaning of the Second Amendment, but there is no definitive answer. The latest ruling is Parker v District of Columbia, in which the DC Circuit court of appeals ruled on March 9, 2007, that the DC gun ban violated individual rights under the Second Amendment.
The One Comma vs. The Three Comma Debate
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.
Quoted from: http://www.freerepublic.com/forum/a39388c210c1b.htm
Down to the Last Second (Amendment)
Participants in the various debates on firearms, crime, and constitutional law may have noticed that the Second Amendment is often quoted differently by those involved. The two main variations differ in punctuation — specifically, in the number of commas used to separate those twenty-seven words. But which is the correct one? The answer to this question must be found in official records from the early days of the republic when the Bill of Rights was sent by the First Congress to the states for ratification. Therefore, a look at the progression of this declaratory and restrictive clause from its inception to its final form is in order.
Before beginning, one must note that common nouns, like "state" and "people," were often capitalized in official and unofficial documents of the era. Also, an obsolete formation of the letter "s" used to indicate the long "s" sound was in common usage. The long 's' is subject to confusion with the lower case 'f', therefore, Congress" is sometimes spelled as "Congrefs," as is the case in the parchment copy of the Bill of Rights displayed by the National Archives. The quotations listed here are accurate. With the exception of the omission of quotations marks, versions of what is now known as the Second Amendment in boldface appear with the exact spelling, capitalization, and punctuation as the cited originals.
During ratification debates on the Constitution in the state conventions, several states proposed amendments to that charter. Anti-Federalist opposition to ratification was particularly strong in the key states of New York and Virginia, and one of their main grievances was that the Constitution lacked a declaration of rights. During the ratification process, Federalist James Madison became a champion of such a declaration, and so it fell to him, as a member of the 1st Congress, to write one. On June 8, 1789, Madison introduced his declaration of rights on the floor of the House. One of its articles read:
|“||The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.||”|
On July 21, John Vining of Delaware was appointed to chair a select committee of eleven to review, and make a report on, the subject of amendments to the Constitution. Each committeeman represented one of the eleven states (Rhode Island and North Carolina had not ratified the Constitution at that time), with James Madison representing Virginia. Unfortunately, no record of the committee's proceedings is known to exist. Seven days later, Vining duly issued the report, one of the amendments reading:
|“||A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms.||”|
In debates on the House floor, some congressmen, notably Elbridge Gerry of Massachusetts and Thomas Scott of Pennsylvania, objected to the conscientious objector clause in the fifth article. They expressed concerns that a future Congress might declare the people "religiously scrupulous" in a bid to disarm them, and that such persons could not be called up for military duty. However, motions to strike the clause were not carried. On August 21, the House enumerated the Amendments as modified, with the fifth article listed as follows:
|“||5. A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.||”|
Finally, on August 24, the House of Representatives passed its proposals for amendments to the Constitution and sent them to the Senate for their consideration. The next day, the Senate entered the document into their official journal. The Senate Journal shows Article the Fifth as:
|“||Art. V. A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.||”|
On September 4, the Senate debated the amendments proposed by the House, and the conscientious objector clause was quickly stricken. Sadly, these debates were held in secret, so records of them do not exist. The Senators agreed to accept Article the Fifth in this form:
|“||...a well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall net be infringed.||”|
In further debates on September 9, the Senate agreed to strike the words, "the best," and replace them with, "necessary to the." Since the third and fourth articles had been combined, the Senators also agreed to rename the amendment as Article the Fourth. The Senate Journal that day carried the article without the word, "best," but also without the replacements, "necessary to." Note that the extraneous commas have been omitted:
|“||A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.||”|
With two-thirds of the Senate concurring on the proposed amendments, they were sent back to the House for the Representatives' perusal. On September 21, the House notified the Senate that it agreed to some of their amendments, but not all of them. However, they agreed to Article the Fourth in its entirety:
|“||Resolved, That this House doth agree to the second, fourth, eighth, twelfth, thirteenth, sixteenth, eighteenth, nineteenth, twenty-fifth, and twenty-sixth amendments...||”|
By September 25, the Congress had resolved all differences pertaining to the proposed amendments to the Constitution. On that day, a Clerk of the House, William Lambert, put what is now known as the Bill of Rights to parchment. Three days later, it was signed by the Speaker of the House, Frederick Augustus Muhlenberg, and the President of the Senate, Vice President John Adams. This parchment copy is held by the National Archives and Records Administration, and shows the following version of the fourth article:
|“||Article the Fourth. 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 above version is used almost exclusively today, but aside from the parchment copy, the author was unable to find any other official documents from that era which carry the amendment with the extra commas. In fact, in the appendix of the Senate Journal, Article the Fourth is entered as reading:
|“||Art. IV. 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.||”|
Also, the Annals of Congress, formally called The Debates and Proceedings in the Congress of the United States, show the proposed amendment as follows:
|“||Article the Fourth. 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.||”|
Further, once two-thirds of both chambers of the Congress agreed to the proposed amendments, the House passed a resolve to request that the President send copies of them to the governors of the eleven states in the Union, and to those of Rhode Island and North Carolina. The Senate concurred on September 26, as recorded in their journal:
|“||Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the President of the United States be requested to transmit to the executives of the United States, which have ratified the constitution copies of the amendments proposed by Congress, to be added thereto; and like copies to the executives of the states of Rhode Island and North Carolina.||”|
Fortunately, an original copy of the amendments proposed by the Congress, and sent to the State of Rhode Island and the Providence Plantations, does survive. Certified as a true copy by Assembly Secretary Henry Ward, it reads in part:
|“||Article the Fourth, — A well regulated Militia being neceffary to the Security of a free State, the Right of the People to keep and bear Arms fhall not be infringed.||”|
And so, the proposed amendments to the Constitution were sent to the states for ratification. When notifying the President that their legislatures or conventions had ratified some or all of the proposed amendments, some states attached certified copies of them. New York, Maryland, South Carolina, and Rhode Island notified the general government that they had ratified the fourth amendment in this form:
Article the Fourth. 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.
Articles the First and Second were not ratified by the required three-fourths of the states, but by December 15, 1791, the last ten articles were. These, of course, are now known as the Bill of Rights. Renumbering the amendments was required since the first two had not been ratified. The 1796 revision of The Federalist on the New Constitution reflects the change as such:
|“|| ARTICLE THE SECOND
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.
This version is carried throughout the 19th Century, in such legal treatises as Joseph Story's Commentaries on the Constitution of the United States (1833) and Thomas Cooley's Principles of Constitutional Law (1898). It is also transcribed in this manner in the 1845 Statutes at Large, although the term "state" is capitalized in that text. The latter are the official source for acts of Congress.
This version still appears today, as is the case with the annotated version of the Constitution they sponsored on the Government Printing Office web site (1992, supplemented in 1996 and 1998). The Second Amendment is shown as reading:
|“||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 Senate-sponsored GPO site does carry a "literal print" of the amendments to the Constitution showing the Second Amendment with the additional commas. The punctuation and capitalization of the amendments transcribed there are the same as those found on the parchment copy displayed in the Rotunda of the National Archives.)
Thus, many scholars argue that correct rendition of the Second Amendment carries but a single comma, after the word "state." It was in this form that those twenty-seven words were written, agreed upon, passed, and ratified.
Why the Commas are Important
It is important to use the proper Second Amendment because it is clearly and flawlessly written in its original form. Also, the function of the words, "a well regulated militia being necessary to the security of a free state," are readily discerned when the proper punctuation is used. On the other hand, the gratuitous addition of commas serves only to render the sentence grammatically incorrect and unnecessarily ambiguous.
Liberals have made various efforts to subvert the Second Amendment by enacting unconstitutional gun laws that restrict the ability of individuals to protect themselves against the excesses of government. Examples include:
- news reports appealing predominately to emotion in the aftermath of mass shootings while ignoring merits of self-defense
- celebrity-showings demanding a plan to end mass shootings
- gun "buy back" programs officiated by city police
The drafters of the Second Amendment probably had muskets and handguns in mind, but courts are now struggling to define the weapons covered by the "right to bear arms" in the 21st Century.
For example, the Connecticut Supreme Court in State v. DeCiccio (2015) upheld the constitutionality of a state law prohibiting the transportation of a police batton or dirk knife in a motor vehicle. Yet, the Court struck down the statute to the extent that it infringed on the defendant's right to transport them between his old and new residences.
There are also lower court cases finding Second Amendment protection for tasers, billy clubs, switchblades and other weapons that are less lethal than handguns.
- Charles, Robert (March 28, 2018). If the Second Amendment falls, our entire Bill of Rights falls. Fox News.
- This is the most-often quoted form of this Amendment, but note later in this entry the significant objection to including three commas rather than just one.
- Commentaries on the Laws of England, Volume I, Chapter the first, Of the Absolute Rights of Individuals, pp. 141-142
- The Powder Alarm and Mobilization of the New England Countryside, 1774-1775
- Pennsylvania Archives, 1853, full text - "An Act to impower His Majesty to prohibit the Exportation of Saltpetre, & to enforce the Law for impowering His Majesty to prohibit the Exportation of Gunpowder or any sort of Arms & Ammunition"
- The capture of Fort William and Mary, by Charles Lathrop Parsons
- This Day in History: The Gunpowder Incident nearly incites rebellion in Virginia
- Infantry Journal, Volume 7, United States Infantry Association, 1910
- The Birth of the Republic: Compiled from the National and Colonial Histories and Historical Collections, from the American Archives and from Memoirs, and from the Journals and Proceedings of the British Parliament
- The Journals of Each Provincial Congress of Massachusetts in 1774 and 1775: And of the Committee of Safety, with an Appendix, Containing the Proceedings of the County Conventions-narratives of the Events of the Nineteenth of April, 1775
- The Gentleman's Magazine, and Historical Chronicle, Volume 44
- The Colonial Records of North Carolina
- History of the siege of Boston, and of the battles of Lexington, Concord and Bunker Hill, by Richard Frothingham Jr., p. 95
- The History of the American Revolution, by David Ramsay, p. 168
- Life and Times of Joseph Warren, p. 483
- History of the Rise, Progress and Termination of the American Revolution, p. 193
- The American Revolution against British Gun Control
- The Founders' Second Amendment: Origins of the Right to Bear Arms
- Amendments Offered in Congress by James Madison, June 8, 1789. The Constitution Society. http://www.constitution.org/bor/amd_jmad.htm, 16 January 2000.
- Amendments Reported by the Select Committee. July 28, 1789. The Constitution Society. http://www.constitution.org/bor/amd_scom.htm, 16 January 2000.
- U.S. House Journal. 1st Cong., 1st sess., 21 August 1789.
- U.S. Senate Journal. 1st Cong., 1st sess., 25 August 1789.
- U.S. Senate Journal, 1st Cong., 1st sess., 4 September 1789.
- U.S. Senate Journal, 1st Cong., 1st sess., 9 September 1789.
- U.S. House Journal. 1st Cong., 1st sess., 21 September 1789.
- Bill of Rights. National Archives and Records Administration. http://www.nara.gov/exhall/charters/billrights/bill.jpg, 22 January 2000.
- U.S. Senate Journal. 1st Cong., 1st sess., Appendix.
- Annals of Congress, 1st Cong., 1st sess., Appendix
- U.S. Senate Journal. 1st Cong. 1st sess., 26 September 1789.
- A True Bill. The Constitution for the United States, Its Sources and Its Applications. http://www.nidlink.com/~bobhard/billofrt.jpg, 27 January 2000.
- U.S. House Journal, 1st Cong., 3rd sess., Appendix Note: Maryland and South Carolina capitalized the "m" in "Militia."
- The Federalist on the New Constitution, 1796. The Constitution for the United States, Its Sources and Its Applications. http://www.nidlink.com/~bobhard/f16b1234.jpg, 17 February 2000.
- Commentaries on the Constitution of the United States. The Constitution Society. http://www.constitution.org/js/js_344.htm, 18 February 2000.
- Quotes from Constitutional Commentators. Gun Cite. http://www.guncite.com/gc2ndcom.html, 2 February 2000.
- Statutes at Large 1845, 21.
- Second Amendment--Bearing Arms. The Constitution of the United States of America. http://www.access.gpo.gov/congress/senate/constitution/amdt2.html, 18 February 2000.
- Text of the Amendments (Literal Print). The Constitution of the United States of America. http://www.access.gpo.gov/congress/senate/constitution/conamt.html, 18 February 2000.
- Xiao, Bowen (January 1, 2020). Hundreds of Counties Across America Have Declared Themselves ‘2nd Amendment Sanctuaries’. The Epoch Times. Retrieved January 1, 2020.
- Volokh, Eugene (December 16, 2014). Second Amendment protects dirk knives and police batons. Washington Post. Retrieved on February 7, 2015.
Amendments to the Constitution of the United States of America
Bill of Rights:
1 - Freedom of speech, press, religion, etc.
2 - Right to bear arms
3 - Quartering of soldiers
4 - Warrants
5 - Due process
6 - Right to a speedy trial
7 - Right by trial of a jury
8 - No cruel or unusual punishments
9 - Unenumerated rights
10 - Power to the people and states
11 - Immunity of states to foreign suits
12 - Revision of presidential election procedures
13 - Abolition of slavery
14 - Citizenship
15 - Racial suffrage
16 - Federal income tax
17 - Direct election of the United States Senate
18 - Prohibition of alcohol
19 - Women's suffrage
20 - Terms of the presidency
21 - Repeal of Eighteenth Amendment
22 - Limits the president to two terms
23 - District of Columbia Voting for President
24 - Prohibition of poll taxes
25 - Presidential disabilities
26 - Voting age lowered to 18
27 - Variance of congressional compensation
- Second Amendment Center, nraila.org.
- Professor Eugene Volokh's comprehensive compilation of resources on the Second Amendment