Second Amendment to the United States Constitution
The Second Amendment to the United States Constitution protects the right to keep and bear arms. It was ratified on December 15, 1791, along with nine other articles of the United States Bill of Rights. In District of Columbia v. Heller, the Supreme Court affirmed that the right belongs to individuals, for self-defense in the home, while also including, as dicta, that the right is not unlimited and does not preclude the existence of certain long-standing prohibitions such as those forbidding "the possession of firearms by felons and the mentally ill" or restrictions on "the carrying of dangerous and unusual weapons". In McDonald v. City of Chicago the Supreme Court ruled that state and local governments are limited to the same extent as the federal government from infringing upon this right. New York State Rifle & Pistol Association, Inc. v. Bruen assured the right to carry weapons in public spaces with reasonable exceptions.
The Second Amendment was based partially on the right to keep and bear arms in English common law and was influenced by the English Bill of Rights 1689. Sir William Blackstone described this right as an auxiliary right, supporting the natural rights of self-defense and resistance to oppression, and the civic duty to act in concert in defense of the state. While both James Monroe and John Adams supported the Constitution being ratified, its most influential framer was James Madison. In Federalist No. 46, Madison wrote how a federal army could be kept in check by the militia, "a standing army... would be opposed militia." He argued that State governments "would be able to repel the danger" of a federal army, "It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops." He contrasted the federal government of the United States to the European kingdoms, which he described as "afraid to trust the people with arms", and assured that "the existence of subordinate governments... forms a barrier against the enterprises of ambition".
By January 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several amendments were proposed, but were not adopted at the time the Constitution was ratified. For example, the Pennsylvania convention debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to the Bill of Rights to assure ratification.
In United States v. Cruikshank, the Supreme Court ruled that, "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government." In United States v. Miller, the Supreme Court ruled that the Second Amendment did not protect weapon types not having a "reasonable relationship to the preservation or efficiency of a well regulated militia".
In the 21st century, the amendment has been subjected to renewed [|academic inquiry] and judicial interest. In District of Columbia v. Heller, the Supreme Court handed down a landmark decision that held the amendment protects an individual's right to keep a gun for self-defense. This was the first time the Court had ruled that the Second Amendment guarantees an individual's right to own a gun. In McDonald v. Chicago, the Supreme Court clarified that the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment against state and local governments. In Caetano v. Massachusetts, the Supreme Court reiterated its earlier rulings that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding," and that its protection is not limited only to firearms, nor "only those weapons useful in warfare." In addition to affirming the right to carry firearms in public, New York State Rifle & Pistol Association, Inc. v. Bruen created a new test that laws seeking to limit Second Amendment rights must be based on the history and tradition of gun rights, although the test was refined to focus on similar analogues and general principles rather than strict matches from the past in United States v. Rahimi. The debate between various organizations regarding gun control and gun rights continues.
Text
There are several versions of the text of the Second Amendment, each with capitalization or punctuation differences. Differences exist between the version passed by Congress and put on display and the versions ratified by the states. These differences have been a focus of debate regarding the meaning of the amendment, particularly regarding the importance of what the courts have called the prefatory clause.The final, handwritten original of the Bill of Rights as passed by Congress, with the rest of the original prepared by scribe William Lambert, is preserved in the National Archives. This is the version ratified by Delaware and used by the Supreme Court in District of Columbia v. Heller:
Some state-ratified versions, such as Maryland's, omitted the first or final commas:
The ratification acts from New York, Pennsylvania, Rhode Island, and South Carolina contained only one comma, but with differences in capitalization. Pennsylvania's act states:
The ratification act from New Jersey has no commas:
Pre-Constitution background
Influence of the English Bill of Rights of 1689
The right of Protestants to bear arms in English history is regarded in English common law as a subordinate auxiliary right of the primary rights to personal security, personal liberty, and private property. According to Sir William Blackstone, "The... last auxiliary right of the subject... is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is... declared by... statute, and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."The English Bill of Rights of 1689 emerged from a tempestuous period in English politics during which two issues were major sources of conflict: the authority of the king to govern without the consent of Parliament, and the role of Catholics in a country with a staunchly Protestant majority. Ultimately, the Catholic James II was overthrown in the Glorious Revolution, and his successors, the Protestants William III and Mary II, accepted the conditions that were codified in the bill. One of the issues the bill resolved was the authority of the king to disarm his subjects, after James II had disarmed many Protestants that were "suspected or knowne" of disliking the government, and had argued with Parliament over his desire to maintain a standing army. The bill states that it is acting to restore "ancient rights" trampled upon by James II, though some have argued that the English Bill of Rights created a new right to have arms, which developed out of a duty to have arms. In District of Columbia v. Heller, the Supreme Court did not accept this view, remarking that the English right at the time of the passing of the English Bill of Rights was "clearly an individual right, having nothing whatsoever to do with service in the militia" and that it was a right not to be disarmed by the Crown and was not the granting of a new right to have arms.
The text of the English Bill of Rights of 1689 includes language protecting the right of Protestants against disarmament by the Crown, stating: "That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law." It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament.
The statement in the English Bill of Rights concerning the right to bear arms is often quoted only in the passage where it is written as above and not in its full context. In its full context it is clear that the bill was asserting the right of Protestant citizens not to be disarmed by the king without the consent of Parliament and was merely restoring rights to Protestants that the previous King briefly and unlawfully had removed. In its full context it reads:
The historical link between the English Bill of Rights and the Second Amendment, which both codify an existing right and do not create a new one, has been acknowledged by the U.S. Supreme Court.
The English Bill of Rights includes the proviso that arms must be as "allowed by law". This has been the case before and after the passage of the Bill. While it did not override earlier restrictions on the ownership of guns for hunting, it is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments.
There is some difference of opinion as to how revolutionary the events of 1688–89 actually were, and several commentators make the point that the provisions of the English Bill of Rights did not represent new laws, but rather stated existing rights. Mark Thompson wrote that, apart from determining the succession, the English Bill of Rights did "little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already." Before and after the English Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm. In 1765, Sir William Blackstone wrote the Commentaries on the Laws of England describing the right to have arms in England during the 18th century as a subordinate auxiliary right of the subject that was "also declared" in the English Bill of Rights.
Although there is little doubt that the writers of the Second Amendment were heavily influenced by the English Bill of Rights, it is a matter of interpretation as to whether they were intent on preserving the power to regulate arms to the states over the federal government or whether it was intent on creating a new right akin to the right of others written into the Constitution. Some in the United States have preferred the "rights" argument arguing that the English Bill of Rights had granted a right. The need to have arms for self-defence was not really in question. Peoples all around the world since time immemorial had armed themselves for the protection of themselves and others, and as organized nations began to appear these arrangements had been extended to the protection of the state. Without a regular army and police force, it had been the duty of certain men to keep watch and ward at night and to confront and capture suspicious persons. Every subject had an obligation to protect the king's peace and assist in the suppression of riots.