Monthly Archives: February 2022

The Second Amendment (Amendment II) 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 Bill of Rights.[1][2][3] In District of Columbia v. Heller (2008), the Supreme Court affirmed for the first time that the right belongs to individuals, for self-defense in the home,[4][5][6][7] 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".[8][9] In McDonald v. City of Chicago (2010) the Supreme Court ruled that state and local governments are limited to the same extent as the federal government from infringing upon this right.[10][11]

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 of 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.[12] Any labels of rights as auxiliary must be viewed in the context of the inherent purpose of a Bill of Rights, which is to empower a group with the ability to achieve a mutually desired outcome, and not to necessarily enumerate or rank the importance of rights. 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 state militias, "a standing army... would be opposed [by] a militia." He argued that state militias "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".[13][14]

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 (1876), 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 [sic] 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."[15] In United States v. Miller (1939), 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".[16][17]

In the 21st century, the amendment has been subjected to renewed academic inquiry and judicial interest.[17] 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.[18][19] This was the first time the Court had ruled that the Second Amendment guarantees an individual's right to own a gun.[20][21][19] In McDonald v. Chicago (2010), the Supreme Court clarified that the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment against state and local governments.[22] In Caetano v. Massachusetts (2016), 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 to "only those weapons useful in warfare". The debate between various organizations regarding gun control and gun rights continues.[23]

Contents

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.[24][25][26][27][28][29][30] 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.[31][32]

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.[33] This is the version ratified by Delaware[34] and used by the Supreme Court in District of Columbia v. Heller:

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.[35]

Some state-ratified versions omitted the first or final commas, such as Maryland's:[34][36][25]

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 ratification acts from New York, Pennsylvania, Rhode Island, and South Carolina contained only one comma, but with differences in capitalization. Pennsylvania's act states:[37]

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.[38][39]

The ratification act from New Jersey has no commas:[34]

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 right for 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."[a]

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 that was becoming ever more Protestant. Ultimately, the Catholic JamesII was overthrown in the Glorious Revolution, and his successors, the Protestants WilliamIII and MaryII, 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 King Charles II and JamesII had disarmed many Protestants that were "suspected or knowne" of disliking the government,[40] and had argued with Parliament over his desire to maintain a standing (or permanent) army.[b] The bill states that it is acting to restore "ancient rights" trampled upon by JamesII, 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.[41] In District of Columbia v. Heller (2008), 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.[42]

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."[43] It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament.[44]

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:

Whereas the late King James the Second by the Assistance of diverse evil Councillors Judges and Ministers employed by him did endeavour to subvert and extirpate the Protestant Religion and the Laws and Liberties of this Kingdom (list of grievances including)... by causing several good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and employed contrary to Law, (Recital regarding the change of monarch)... thereupon the said Lords Spiritual and Temporal and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation taking into their most serious Consideration the best means for attaining the Ends aforesaid Doe in the first place (as their Ancestors in like Case have usually done) for the Vindicating and Asserting their ancient Rights and Liberties, Declare (list of rights including)... That the Subjects which are Protestants may have Arms for their Defense suitable to their Conditions and as allowed by Law.[43]

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.[c][d]

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.[45]

There is some difference of opinion as to how revolutionary the events of 168889 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 posessed [sic]."[46] 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.[47] In 1765, 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.[48][49]

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.[50]

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 (as the English Parliament had reserved for itself against the monarch) or whether it was intent on creating a new right akin to the right of others written into the Constitution (as the Supreme Court decided in Heller). 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.[51] 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.[52]

Settlers in Colonial America viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes (in no particular order):[e][f][54][55][56][57][58][59]

Which of these considerations were thought of as most important and ultimately found expression in the Second Amendment is disputed. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776 asserted that, "the people have a right to bear arms for the defence of themselves and the state."[66]

During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, including many who were loyal to British rule. As defiance and opposition to British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists known as Patriots, who favored independence from British rule. As a result, some Patriots created their own militias that excluded the Loyalists and then sought to stock independent armories for their militias. In response to this arms build-up, the British parliament established an embargo of firearms, parts and ammunition against the American colonies.[67] King George III also began disarming individuals who were in the most rebellious areas in the 1760s and 1770s.[68]

British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, Blackstone's summary of the Declaration of Rights, their own militia laws and common law rights to self-defense.[69] While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense.[69] Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars' interpretation of Blackstone.[70]

The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 objecting to the Crown suppression of colonial opposition to the Townshend Acts:

Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such nature, and have been carried to such lengths, as must serve fully to evince that a late vote of this town, calling upon its inhabitants to provide themselves with arms for their defense, was a measure as prudent as it was legal: such violences are always to be apprehended from military troops, when quartered in the body of a populous city; but more especially so, when they are led to believe that they are become necessary to awe a spirit of rebellion, injuriously said to be existing therein. It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.[69][71]

The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with regular French army and naval forces and various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist militia and Hessian mercenaries. Following the Revolution, the United States was governed by the Articles of Confederation. Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the standing army was reduced to as few as 80 men.[72] They considered it to be bad that there was no effective federal military crackdown on an armed tax rebellion in western Massachusetts known as Shays' Rebellion.[73] Anti-federalists, on the other hand, took the side of limited government and sympathized with the rebels, many of whom were former Revolutionary War soldiers. Subsequently, the Constitutional Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.[74][75] Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power.[76]

Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that James Madison "did not invent the right to keep and bear arms when he drafted the Second Amendment; the right was pre-existing at both common law and in the early state constitutions."[77] In contrast, historian Jack Rakove suggests that Madison's intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed.[78]

One aspect of the gun control debate is the conflict between gun control laws and the right to rebel against unjust governments. Blackstone in his Commentaries alluded to this right to rebel as the natural right of resistance and self preservation, to be used only as a last resort, exercisable when "the sanctions of society and laws are found insufficient to restrain the violence of oppression".[79] Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation,[80] as Alexander Hamilton explained in his Concerning the Militia essay published in 1788:

...it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defence of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the Government to form an army of any magnitude, that army can never be formidable to the liberties of the People, while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights, and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.[80][81]

Some scholars have said that it is wrong to read a right of armed insurrection into the Second Amendment because clearly the founding fathers sought to place trust in the power of the ordered liberty of democratic government versus the anarchy of insurrectionists.[82][83] Other writers, such as Glenn Reynolds, contend that the framers did believe in an individual right to armed insurrection. They cite examples, such as the Declaration of Independence (describing in 1776 "the Right of the People to... institute new Government") and the Constitution of New Hampshire (stating in 1784 that "nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind").[84]

There was an ongoing debate beginning in 1789 about "the people" fighting governmental tyranny (as described by Anti-Federalists); or the risk of mob rule of "the people" (as described by the Federalists) related to the increasingly violent French Revolution.[85] A widespread fear, during the debates on ratifying the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens,[g] or prohibiting citizens from arming themselves.[69] Though it has been argued that the states lost the power to arm their citizens when the power to arm the militia was transferred from the states to the federal government by ArticleI, Section8 of the Constitution, the individual right to arm was retained and strengthened by the Militia Acts of 1792 and the similar act of 1795.[86][87]

Note: On May 10, 1776, Congress passed a resolution recommending that any colony with a government that was not inclined toward independence should form one that was.[88]

Virginia's Constitution lists the reasons for dissolving its ties with the King in the formation of its own independent state government. Including the following:

* These same reasons would later be outlined within the Declaration of Independence.

A Declaration of Rights. Section 13. 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.[89]

Article 13. 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.[90]

This is the first instance in relationship to U.S. Constitutional Law of the phrase "right to bear arms".

Article 43. The inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed;[91]

It is relevant that Pennsylvania was a Quaker Colony traditionally opposed to bearing arms. "In settling Pennsylvania, William Penn had a great experiment in view, a 'holy experiment', as he term[ed] it. This was no less than to test, on a scale of considerable magnitude, the practicability of founding and governing a State on the sure principles of the Christian religion; where the executive should be sustained without arms; where justice should be administered without oaths; and where real religion might flourish without the incubus of a hierarchical system."[92] The Non-Quaker residents, many from the Western Counties, complained often and loudly of being denied the right to a common defense. By the time of the American Revolution, through what could be described as a revolution within a revolution, the pro-militia factions had gained ascendancy in the state's government. And by a manipulation through the use of oaths, disqualifying Quaker members, they made up a vast majority of the convention forming the new state constitution; it was only natural that they would assert their efforts to form a compulsory State Militia in the context of a "right" to defend themselves and the state.[93]

Articles XXV-XXVII. 25. That a well-regulated militia is the proper and natural defence of a free government. 26. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature. 27. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.[94]

A Declaration of Rights. Article XVII. 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.[95]

Article XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth. And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.[96]

Chapter 1. Section XVIII. That the people have a right to bear arms for the defence of the 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.[97]

A Declaration of Rights. Chapter 1. Article XVII. 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.[98]

In March 1785, delegates from Virginia and Maryland assembled at the Mount Vernon Conference to fashion a remedy to the inefficiencies of the Articles of Confederation. The following year, at a meeting in Annapolis, Maryland, 12 delegates from five states (New Jersey, New York, Pennsylvania, Delaware, and Virginia) met and drew up a list of problems with the current government model. At its conclusion, the delegates scheduled a follow-up meeting in Philadelphia, Pennsylvania for May 1787 to present solutions to these problems, such as the absence of:[102][103]

It quickly became apparent that the solution to all three of these problems required shifting control of the states' militias to the federal Congress and giving it the power to raise a standing army.[104] Article 1, Section 8 of the Constitution codified these changes by allowing the Congress to provide for the common defense and general welfare of the United States by doing the following:[105]

Some representatives mistrusted proposals to enlarge federal powers, because they were concerned about the inherent risks of centralizing power. Federalists, including James Madison, initially argued that a bill of rights was unnecessary, sufficiently confident that the federal government could never raise a standing army powerful enough to overcome a militia.[106] Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.[107][108] Anti-federalists, on the other hand, advocated amending the Constitution with clearly defined and enumerated rights providing more explicit constraints on the new government. Many Anti-federalists feared the new federal government would choose to disarm state militias. Federalists countered that in listing only certain rights, unlisted rights might lose protection. The Federalists realized there was insufficient support to ratify the Constitution without a bill of rights and so they promised to support amending the Constitution to add a bill of rights following the Constitution's adoption. This compromise persuaded enough Anti-federalists to vote for the Constitution, allowing for ratification.[109] The Constitution was declared ratified on June21, 1788, when nine of the original thirteen states had ratified it. The remaining four states later followed suit, although the last two states, North Carolina and Rhode Island, ratified only after Congress had passed the Bill of Rights and sent it to the states for ratification.[110] James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June8, 1789, and was adopted on December15, 1791.

The debate surrounding the Constitution's ratification is of practical importance, particularly to adherents of originalist and strict constructionist legal theories. In the context of such legal theories and elsewhere, it is important to understand the language of the Constitution in terms of what that language meant to the people who wrote and ratified the Constitution.[111]

Robert Whitehill, a delegate from Pennsylvania, sought to clarify the draft Constitution with a bill of rights explicitly granting individuals the right to hunt on their own land in season,[112] though Whitehill's language was never debated.[113]

There was substantial opposition to the new Constitution because it moved the power to arm the state militias from the states to the federal government. This created a fear that the federal government, by neglecting the upkeep of the militia, could have overwhelming military force at its disposal through its power to maintain a standing army and navy, leading to a confrontation with the states, encroaching on the states' reserved powers and even engaging in a military takeover. Article VI of the Articles of Confederation states:

No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the united States in congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the united States, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.[114][115]

In contrast, Article I, Section 8, Clause 16 of the U.S. Constitution states:

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.[116]

A foundation of American political thought during the Revolutionary period was concerned about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is "a chimerical idea to suppose that a country like this could ever be enslaved... Is it possible... that an army could be raised for the purpose of enslaving themselves or their brethren? Or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?"[117] Noah Webster similarly argued:

Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.[13][118]

George Mason also argued the importance of the militia and right to bear arms by reminding his compatriots of the British government's efforts "to disarm the people; that it was the best and most effectual way to enslave them... by totally disusing and neglecting the militia." He also clarified that under prevailing practice the militia included all people, rich and poor. "Who are the militia? They consist now of the whole people, except a few public officers." Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.[13][119]

Writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included "the right to keep and bear arms" in a list of basic "human rights", which he proposed to be added to the Constitution.[120]

Patrick Henry argued in the Virginia ratification convention on June 5, 1788, for the dual rights to arms and resistance to oppression:

Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.[121]

In the slave states, the militia was available for military operations, but its biggest function was to police the slaves.[122][123] According to Dr Carl T. Bogus, Professor of Law of the Roger Williams University Law School in Rhode Island,[122] the Second Amendment was written to assure the Southern states that Congress would not undermine the slave system by using its newly acquired constitutional authority over the militia to disarm the state militia and thereby destroy the South's principal instrument of slave control.[124]In his close analysis of James Madison's writings, Bogus describes the South's obsession with militias during the ratification process:[124]

The militia remained the principal means of protecting the social order and preserving white control over an enormous black population. Anything that might weaken this system presented the gravest of threats.

This preoccupation is clearly expressed in 1788[124] by the slaveholder Patrick Henry:

If the country be invaded, a state may go to war, but cannot suppress insurrections [under this new Constitution]. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress ... Congress, and Congress only [under this new Constitution; addition not mentioned in source], can call forth the militia.[122]

Therefore, Bogus argues, in a compromise with the slave states, and to reassure Patrick Henry, George Mason and other slaveholders that they would be able to keep their slave control militias independent of the federal government, James Madison (also slave owner) redrafted the Second Amendment into its current form "for the specific purpose of assuring the Southern states, and particularly his constituents in Virginia, that the federal government would not undermine their security against slave insurrection by disarming the militia."[124]

Legal historian Paul Finkelman argues that this scenario is implausible.[65] Henry and Mason were political enemies of Madison's, and neither man was in Congress at the time Madison drafted Bill of Rights; moreover, Patrick Henry argued against the ratification of both the Constitution and the Second Amendment, and it was Henry's opposition that led Patrick's home state of Virginia to be the last to ratify.[65]

Most Southern white men betweenthe ages of 18 and 45 were required to serve on "slave patrols" which were organized groups of white men who enforced discipline upon enslaved blacks.[125] Bogus writes with respect to Georgia laws passed in 1755 and 1757 in this context: "The Georgia statutes required patrols, under the direction of commissioned militia officers, to examine every plantation each month and authorized them to search 'all Negro Houses for offensive Weapons and Ammunition' and to apprehend and give twenty lashes to any slave found outside plantation grounds."[126][127][unreliable source]

Finkelman recognises that James Madison "drafted an amendment to protect the right of the states to maintain their militias," but insists that "The amendment had nothing to do with state police powers, which were the basis of slave patrols."[65]

According to Pennsylvania attorney Anthony Picadio, the Southern slave states would never have ratified the Second Amendment if it had been understood as creating an individual right to own firearms because of their fear of arming free blacks, hence the emphasis on the phrase "well regulated Militia", introducing the Second Amendment.

Firstly, slave owners feared that enslaved blacks might be emancipated through military service. A few years earlier, there had been a precedent when Lord Dunmore offered freedom to slaves who escaped and joined his forces with "Liberty to Slaves" stitched onto their jacket pocket flaps. Freed slaves also served in General Washington's army.

Secondly, they also greatly feared "a ruinous slave rebellion in which their families would be slaughtered and their property destroyed." When Virginia ratified the Bill of Rights on December 15, 1791, the Haitian Revolution, a successful slave rebellion, was under way. The right to bear arms was therefore deliberately tied to membership in a militia by the slaveholder and chief drafter of the Amendment, James Madison, because only whites could join militias in the South.[128]

In 1776, Thomas Jefferson had submitted a draft constitution for Virginia that said "no freeman shall ever be debarred the use of arms within his own lands or tenements". According to Picadio, this version was rejected because "it would have given to free blacks the constitutional right to have firearms".[129]

James Madison's initial proposal for a bill of rights was brought to the floor of the House of Representatives on June 8, 1789, during the first session of Congress. The initial proposed passage relating to arms was:

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.[130]

On July 21, Madison again raised the issue of his bill and proposed that a select committee be created to report on it. The House voted in favor of Madison's motion,[131] and the Bill of Rights entered committee for review. The committee returned to the House a reworded version of the Second Amendment on July 28.[132] On August 17, that version was read into the Journal:

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.[133]

In late August 1789, the House debated and modified the Second Amendment. These debates revolved primarily around the risk of "mal-administration of the government" using the "religiously scrupulous" clause to destroy the militia as British forces had attempted to destroy the Patriot militia at the commencement of the American Revolution. These concerns were addressed by modifying the final clause, and on August 24, the House sent the following version to the Senate:

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.

The next day, August 25, the Senate received the amendment from the House and entered it into the Senate Journal. However, the Senate scribe added a comma before "shall not be infringed" and changed the semicolon separating that phrase from the religious exemption portion to a comma:

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.[134]

By this time, the proposed right to keep and bear arms was in a separate amendment, instead of being in a single amendment together with other proposed rights such as the due process right. As a representative explained, this change allowed each amendment to "be passed upon distinctly by the States".[135] On September 4, the Senate voted to change the language of the Second Amendment by removing the definition of militia, and striking the conscientious objector clause:

A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.[136]

The Senate returned to this amendment for a final time on September 9. A proposal to insert the words "for the common defence" next to the words "bear arms" was defeated. A motion passed to replace the words "the best", and insert in lieu thereof "necessary to the" .[137] The Senate then slightly modified the language to read as the fourth article and voted to return the Bill of Rights to the House. The final version by the Senate was amended to read as:

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 House voted on September 21, 1789, to accept the changes made by the Senate.

The enrolled original Joint Resolution passed by Congress on September 25, 1789, on permanent display in the Rotunda, reads as:

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.[138]

On December 15, 1791, the Bill of Rights (the first ten amendments to the Constitution) was adopted, having been ratified by three-fourths of the states, having been ratified as a group by all the fourteen states then in existence except Connecticut, Massachusetts, and Georgia which added ratifications in 1939.[139]

During the first two decades following the ratification of the Second Amendment, public opposition to standing armies, among Anti-Federalists and Federalists alike, persisted and manifested itself locally as a general reluctance to create a professional armed police force, instead relying on county sheriffs, constables and night watchmen to enforce local ordinances.[67] Though sometimes compensated, often these positions were unpaid held as a matter of civic duty. In these early decades, law enforcement officers were rarely armed with firearms, using billy clubs as their sole defensive weapons.[67] In serious emergencies, a posse comitatus, militia company, or group of vigilantes assumed law enforcement duties; these individuals were more likely than the local sheriff to be armed with firearms.[67]

On May 8, 1792, Congress passed "[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States" requiring:

[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia... [and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.[140]

The act also gave specific instructions to domestic weapon manufacturers "that from and after five years from the passing of this act, muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound."[140] In practice, private acquisition and maintenance of rifles and muskets meeting specifications and readily available for militia duty proved problematic; estimates of compliance ranged from 10 to 65percent.[141] Compliance with the enrollment provisions was also poor. In addition to the exemptions granted by the law for custom-house officers and their clerks, post-officers and stage drivers employed in the care and conveyance of U.S. mail, ferrymen, export inspectors, pilots, merchant mariners and those deployed at sea in active service; state legislatures granted numerous exemptions under Section2 of the Act, including exemptions for: clergy, conscientious objectors, teachers, students, and jurors. Though a number of able-bodied white men remained available for service, many simply did not show up for militia duty. Penalties for failure to appear were enforced sporadically and selectively.[142] None is mentioned in the legislation.[140]

The first test of the militia system occurred in July 1794, when a group of disaffected Pennsylvania farmers rebelled against federal tax collectors whom they viewed as illegitimate tools of tyrannical power.[143] Attempts by the four adjoining states to raise a militia for nationalization to suppress the insurrection proved inadequate. When officials resorted to drafting men, they faced bitter resistance. Forthcoming soldiers consisted primarily of draftees or paid substitutes as well as poor enlistees lured by enlistment bonuses. The officers, however, were of a higher quality, responding out of a sense of civic duty and patriotism, and generally critical of the rank and file.[67] Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.[67] In October, President George Washington and General Harry Lee marched on the 7,000rebels who conceded without fighting. The episode provoked criticism of the citizen militia and inspired calls for a universal militia. Secretary of War Henry Knox and Vice President John Adams had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production.[67] Congress did subsequently pass "[a]n act for the erecting and repairing of Arsenals and Magazines" on April 2, 1794, two months prior to the insurrection.[144] Nevertheless, the militia continued to deteriorate and twenty years later, the militia's poor condition contributed to several losses in the War of 1812, including the sacking of Washington, D.C., and the burning of the White House in 1814.[142]

In the 20th century, Congress passed the Militia Act of 1903. The act defined the militia as every able-bodied male aged 18 to 44 who was a citizen or intended to become one. The militia was then divided by the act into the United States National Guard and the unorganized Reserve Militia.[145][146]

Federal law continues to define the militia as all able-bodied males aged 17 to 44, who are citizens or intend to become one, and female citizens who are members of the National Guard. The militia is divided into the organized militia, which consists of the National Guard and Naval Militia, and the unorganized militia.[147]

In May of 1788, Richard Henry Lee wrote in Additional Letters From The Federal Farmer #169 or Letter XVIII regarding the definition of a "militia":

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Second Amendment to the United States Constitution - Wikipedia

Ronald Reagan once warned that freedom is never more than one generation away from extinction. Because we cannot pass it on to our children in the bloodstream, he said, we must hand it to them with the well-thought lessons of how they can fight for it, protect it [and] defend it, so that they, too, can pass it on to the next generation.

Tragically, our workone of us as a law professor and one a constitutional lawyerhas shown us that the values of a free societythe rule of law, self-determination, tolerance and accountability, to name a feware in some disrepair.

Several influential forces, including many educators and members of the media, have taught recent generations that freedom is not always worth defending; instead, they maintain that even our right to self-preservation, via our Second Amendment rights, is just another antiquated value to be sacrificed for notions of security, equity and statism.

Thus, it is more important than ever to ensure that the young people in our lives are taught the fundamentals of American freedom. To that end, here are 10 lessons that all Americans should know about their rights.

1. We all have natural rights, which are granted by our Creator, not our government.Everyone is born with natural rights, which are inherent in all of us simply because we are human. These universal and immutable rights include life, liberty, free speech, freedom of conscience, the right to self-defense and the right to property, among others. Everyone is endowed with natural rights regardless of race, religion, class or other category. As George Mason put it: All men are born equally free and independent, and have certain inherent natural rights, of which they cannot by any compact deprive or divest their posterity.

2. Our government exists to protect our natural rights.The Declaration of Independence famously declares that all men are created equal and are endowed by their Creator with certain unalienable Rights, such as Life, Liberty and the pursuit of Happiness. It is to secure these rights, that Governments are instituted among Men, deriving their just powers from the consent of the governed. So, our government exists to protect our rights, and must protect everyones rights equally. Moreover, far from a government that grants rights to the people it governs, it is the American people, through the consent of the governed, that grants the government its powers. And not any powersonly just powers. Such powers do not include the authority to infringe on natural rights, even if a majority of the people consent. That is clear because the whole purpose of government is to secure these rights.

3. The U.S. Bill of Rights codified preexisting rights.The Second Amendment codified a right that already existedthe Second Amendments text does not create a right, but instead declares that the preexisting natural right shall not be infringed. Thus, as the U.S. Supreme Court has recognized, this is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. Consequently, repealing the Second Amendment would accomplish little under the original understanding of the American system of government. That said, there is no doubt that the goal of the anti-rights movement is to disregard the original understanding of rights in America, repeal the Second Amendment and eliminate gun ownership; as a result, despite the preexisting nature of the right, we can never relent in our fierce defense of it. The same applies to the rest of the U.S. Bill of Rights, including parts that are less important to us individually.

4. The Constitution is an anti-majoritarian document.The purpose of a constitution is to restrain government from imposing a tyranny of the majority, which, according to philosopher John Stuart Mill in his famous work, On Liberty, operat[es] through the acts of the public authorities.

Legislatures are particularly susceptible to majoritarian pressures because they are elected and responsible for making (rather than enforcing) laws. In James Madisons words from Federalist No. 10, the Constitution ensures that government cannot serve the superior force of an interested and overbearing majority at the expense of the rights of the minority. Whether the right protected is equal protection, unpopular speech or the right to keep and bear arms, as the U.S. Supreme Court said in District of Columbia v. Heller (2008), the enshrinement of constitutional rights necessarily takes certain policy choices off the table.

5. No onejudges or otherwiseshould rank rights.Rights are valuable for their own sake. Ranking them is necessarily a majoritarian act because it requires making a policy choice about whether one right is more valuable than another. Whenever rights are chosen for special (or especially bad) treatment by the legislative, judicial or executive branch, the result will be that disfavored groupsthose wishing to exercise disfavored rightswill be on the losing end of any government-decreed rights hierarchy.

6. If the Constitution doesnt mean what it was meant to say, it doesnt mean anything.If judges have license to enforce their (or what they perceive to be societys) norms when interpreting the U.S. Constitution, it can no longer serve as an effective constraint on government or the majority.

Take the 1934 case of Home Building & Loan Association v. Blaisdell, in which the plaintiff challenged a Minnesota law creating a moratorium on mortgage foreclosures. Plaintiff brought its claim under the Contracts Clause of the U.S. Constitution, which declares that No State shall ... pass any ... Law impairing the Obligation of Contracts. The U.S. Supreme Court acknowledged that evidence presented in the case showed that it was this type of debtor-relief legislation that the Contracts Clause intended to prohibit. Nevertheless, it upheld the law, declaring: It is no answer to say ... that what the provision of the Constitution meant to the vision of [the Founding] it must mean to the vision of our time. In other words, the Court said that the Contracts Clause did not today prohibit the very government action that it was intended to prohibit when it was enacted. It is difficult to see how the Clause could mean anything under such a reading.

7. For more liberty and better representation, most decisions should be made at the state and local levels.The American system of government is designed to ensure that the decisions impacting your life are made as locally as possible. Thomas Jefferson argued that generalising & concentrating all cares and powers into one body ... has destroyed liberty and the rights of man in every government which has ever existed under the sun. Thus, Jefferson explained, the way to have good and safe government, is not to trust it all to one [central government]; but to divide it among the many. [I]t is by dividing and subdividing these republics from the great National one down thro all its subordinations, until it ends in the administration of every mans farm and affairs by himself ... that all will be done for the best.

The more centralized government power becomes, the less representative it can be of a diverse people. This is harmful to individual liberty and unity among the states. According to Jeffersons vision of the Constitution, our General Government may be reduced to a very simple organization, and a very inexpensive one; a few plain duties to be performed by a few servants.

In Federalist No. 45, Madison explained how this principle applies to the Constitutions balance between state and federal power. While the powers delegated by the proposed constitution to the federal government, are few and defined, those that remain in the state government, are numerous and indefinite. While federal powers will be exercised principally on external objects, [such] as war, peace, negotiation, and foreign commerce, the powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state. Therefore, [t]he operations of the federal government will be most extensive and important in the times of war and danger; those of the state governments in times of peace and security.

The federal government has grown far beyond what the Founders envisioned. Its operations are extensive during times of peace and security, and they affect countless aspects of our daily lives. The larger the federal government becomes, the less liberty each American has, because the governments powerits ability to restrict or require certain behaviorsnecessarily comes at the expense of individual choice.

8. We have equal rights, which is not, and should not be, a guarantee of equal results.A central purpose of our government is to ensure equal treatment under law, regardless of occupation, gender, race or religion. This does not, however, translate to equal results. Individuals have different skills, motivations, goals and values. They will inevitably reach different outcomes in a free society, even when they receive equal treatment. Thus, Alexander Hamilton explained that inequality would exist as long as liberty existed, and that it would unavoidably result from that very liberty itself. It is governments role to protect individuals rights so that they may pursue happiness; it is not governments job to guarantee success in achieving it.

9. The Constitution is a tyranny-control document.The United States government was not established by a conquering army, dictator or emperor for the purpose of retaining authority over the people it rules. George Washington led America in defeating a tyrant, andto much of the worlds surprisehe sent his army home and resigned his military commission when the War for American Independence ended. He did not want to be president, though some people were actually willing to make him king. But what of future governments?

Americas Founders, being students of history, were acutely aware of the long history of governments turned despotic, as well as the ability of power to corrupt. They therefore built a constitution that made it more difficult for the government to turn on its people. Structural limits on government, like separation of powers among the branches of government and the division of power between federal and state governments, ensure that it is difficult for power to coalesce in one place. Individual rightslike the right to speak freely in criticizing the government, the right to bear arms, the right to a jury trial and prohibitions against bills of attainder (which prevents legislatures from declaring someone a criminal) protect individuals from overbearing government behavior and enable them to counteract it.

10. The American system of government calls for the resistance to tyranny.Fortunately, Americas founders erected bulwark upon bulwark against tyranny. But when all else fails, the Declaration of Independence makes clear that whenever any Form of Government becomes destructive of [inalienable rights], it is the Right of the People to alter or to abolish it, and to institute new Government.

This echoed both John Locke and George Mason, who inspired Jefferson. Locke argued that by violating natural rights, government officials forfeit the power the people had put into their hands and it devolves to the people, who have a right to resume their original liberty and instate a new government.

Likewise, The Virginia Declaration of Rights, drafted by George Mason, provided that the people have an indubitable, inalienable, and indefeasible right to reform, alter, or abolish a government that fails to serve and protect the people.

Yet common sense, and history time and again, prove that this last resort is available only where the people are armed. As former Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit said, the simple truthborn of experienceis that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South ... .

All too many of the other great tragedies of historyStalins atrocities, the killing fields of Cambodia, the Holocaust, to name but a fewwere perpetrated by armed troops against unarmed populations.

Judge Kozinski then calls the Second Amendment a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed.

This is an extreme that should never be allowed to happen. A key to preventing such an extreme is having an armed populace who, by being armed, act as a deterrent to tyranny.

George A. Mocsary is a professor of law at the University of Wyoming College of Law and adjunct scholar at the Firearms Policy Coalition. Joseph Greenlee is the director of constitutional studies at the Firearms Policy Coalition.

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10 Truths About The Basis of Our Second Amendment Freedom That, Too Often, Are Not Being Taught | An Official Journal Of The NRA - America's 1st...

If you held any doubts about the importance of the 2nd Amendment the war in Ukraine should serve as a prime example as to why the "right to keep and bear arms" is absolutely vital to the security and peace of the Nation. It may be too little too late, but Ukrainian President Volodymyr Zelensky made the announcement yesterday that all citizens who wish to arm themselves in defense of the country may do so.

More than that, the Ukrainian government/military would supply the weapons. At this time thousands upon thousands of Ukrainians are arming themselves and are ready to fight alongside their military in defense of their country. Had this right been protected by a constitution and in place prior to the invasion they would have been armed already and better prepared to defend their lives and country. By loosening the firearm laws in the country the Ukrainian government has at least given their citizens and country a fighting chance.

To those who doubted the meaning, intent, or reasoning of the 2nd Amendment what's happening in Ukraine should settle that argument. An armed citizenship is near impossible to conquer and control. In the United States, an enemy foreign or domestic would have to get through all of our military branches, all the reserves and guard units along with an armed populace in order to even occupy the country, much less conquer it.

It's frustratingly funny that people, "anti-gun" people, always remark that there's no need for citizens to have arms and that the 2nd Amendment is outdated. They continually say it's ridiculous to think that a private citizen with a gun could do much in defense of the country. Well, oddly enough that's exactly how our country began. A group of armed men tired of the tyranny they were living under got together and fought back, with arms. I'm sure the British at the time thought like our "anti-gun" crowd, and like them were dead wrong.

Within minutes of the Russian invasion, the Ukrainian government immediately put the word out about arming its citizens. So to those who constantly state that it's the government's job to protect and defend us, it clearly shows without us, it's a non-reality. Relying solely on others for protection is to be utterly defenseless and victim-bound. Without the means to protect yourself and others, you are at the mercy of those who would seek to do you harm and even those sworn to protect you. This is the heart of the Second Amendment.

The 2nd Amendment has never been about hunting, or really even self-defense. It's about having the means to protect our freedom, liberties, and the ability to use arms against tyranny, both foreign and domestic.

That's what it's all about and what we're seeing in Ukraine definitely affirms this, at least to those who are paying attention anyway. Hopefully, some lessons will be learned and those who in the past wished to eliminate or further restrict our rights to keep and bear arms will better understand the intent of our Founding Fathers, the architects of freedom and framers of our constitution had in mind when writing it.

Lastly, the Bill of Rights and U.S. Constitution DOES NOT grant rights. It recognizes and upholds the rights that were given to us at birth by our creator, which is why they're called "Inalienable Rights."

The primary purpose of the Consitution and Bill of Rights is to restrict the government's "infringement" of rights, which preexisted the documents in the first place. So any argument about changing any of the amendments in the Constitution is completely invalid. Our rights aren't given to us by the government, we were born with them. This means you CAN NOT take away what you haven't given!

While Oklahoma is well known for its beauty and friendly people there are a few places in the Sooner State you'll want to avoid. These are the most terrifying towns and scary cities in the state. It's not that they're bad places, or plagued with crime and other negative factors. The towns and cities below have one single thing in common. They all have active paranormal and supernatural phenomenons. From ghost stories to urban legends and tragic tales. A lot of these places are well known to those who live in Oklahoma and even all over the nation. If you're looking to get scared or do a little ghost hunting you can start with the list below.

When it comes to ghost tales and hauntings Lawton, Fort Sill has more than a few scary stories to tell. The most active hauntings and paranormal/supernatural occurrences that have been reported seem to be centered around downtown Lawton. If you've lived here a while I'm sure you've heard a few of these terrifying tales yourself. If not check out the photo gallery below of the dreadful downtown hauntings of Lawton, OK.

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War in the Ukraine Has Strengthened the 2nd Amendment in the US - KLAW101