The Second Amendment (Amendment II) to the United States Constitution is the part of the United States Bill of Rights that protects the right to keep and bear arms. It was adopted on December 15, 1791, along with the rest of the Bill of Rights.
Two U.S. Supreme Court rulings in 2008 and 2010 clarified the meaning of the Second Amendment. In District of Columbia v. Heller, the Court ruled that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia,[1][2] and to use that arm for traditionally lawful purposes, such as self-defense within the home. It further held that three Washington, D.C. ordinances banning usable firearms in the home were in violation of the Second Amendment. In McDonald v. Chicago, the Court determined that the Second Amendment limits state and local governmental authority to the same extent that it limits federal authority.[3] The Supreme Court also stated that its ruling was not to be taken as an indication that all firearm restrictions are unconstitutional.
Meaning of "to keep and bear arms"
The people's right to have their own arms for their defense is described in the philosophical and political writings of Aristotle, Cicero, John Locke, Machiavelli, the English Whigs and others.[111] The concept of a universal militia originated in Roman times, where every citizen was a soldier and every soldier was a citizen.[112][113] Though possessing arms appears to be distinct from "bearing" them, the possession of arms is recognized as necessary for and a logical precursor to the bearing of arms.[114]
Oxford Dictionaries Online, a dictionary of modern English, defines the phrase To bear arms as "carry firearms".[115] The on-line Merriam-Webster's Collegiate Dictionary defines 'bear arms' as "to carry or possess firearms".[116] In District of Columbia v. Heller, the U.S. Supreme Court used this common meaning of the phrase by stating, "If bear arms means, as we think, simply the carrying of arms".[117]
While a number of authors, lawyers and historians have advocated the view that the term "to bear arms" implies only the military use of arms, the courts have disregarded this viewpoint by pointing out that the term to bear arms also has a private component. In Parker v District of Columbia it was pointed out that
it would hardly have been unusual for a writer of the times (or now) to have said that, after an attack on a house by thieves, the men set out to find them "bearing arms".[118]
In Parker it was also pointed out that "In contract to the collective rights theorists' extensive efforts to tease out the meaning of "to bear" the conjoined, preceding verb "keep" has been almost entirely neglected" The court further states that many of the theories attempting to show that "to keep" implies military usage are "outlandish" and gives the following example on word usage advanced by Garry Wills
One authority cited by the District has attempted to equate “keep” with “keep up,” a term that had been used in phrases such as “keep up a standing army” or, as in the Articles of Confederation, “every state shall keep up a well regulated and disciplined militia . . . .” See Wills, supra, at 66. The argument that “keep” as used in “the right of the people to keep . . . Arms” shares a military meaning with “keep up” as used in “every state shall keep up a well regulated militia” mocks usage, syntax, and common sense. Such outlandish views are likely advanced because the plain meaning of “keep” strikes a mortal blow to the collective right theory. Turning again to Dr. Johnson’s Dictionary, we see that the first three definitions of “keep” are “to retain; not to lose,” “to have in custody,” “to preserve; not to let go.” Johnson, supra, at 540. We think “keep” is a straightforward term that implies ownership or possession of a functioning weapon by an individual for private use. Emerson, 270 F.3d at 231 & n.31; accord Silveira, 328 F.3d at 573-74 (Kleinfeld, J.). The term “bear arms,” when viewed in isolation, might be thought ambiguous; it could have a military cast. But since “the people” and “keep” have obvious individual and private meanings, we think those words resolve any supposed ambiguity in the term “bear arms.” [119]
Garry Wills, an author and history professor at Northwestern University, writes of the origin of the term bear arms:
By legal and other channels, the Latin "arma ferre" entered deeply into the European language of war. Bearing arms is such a synonym for waging war that Shakespeare can call a just war " 'justborne arms" and a civil war "self-borne arms." Even outside the special phrase "bear arms," much of the noun's use echoes Latin phrases: to be under arms (sub armis), the call to arms (ad arma), to follow arms (arma sequi), to take arms (arma capere), to lay down arms (arma pœnere). "Arms" is a profession that one brother chooses the way another choose law or the church. An issue undergoes the arbitrament of arms." ... "One does not bear arms against a rabbit...[120]
Garry Wills also cites Greek and Latin etymology:
... "Bear Arms" refers to military service, which is why the plural is used (based on Greek 'hopla pherein' and Latin 'arma ferre') – one does not bear arm, or bear an arm. The word means, etymologically, 'equipment' (from the root ar-* in verbs like 'ararisko', to fit out). It refers to the 'equipage' of war. Thus 'bear arms' can be used of naval as well as artillery warfare, since the "profession of arms" refers to all military callings.[120]
Don Kates, a civil liberties lawyer, cites historic English usage attributed to Tench Coxe describing the "right to keep and bear their private arms."[121]
Per Sayoko Blodgett-Ford, both military and nonmilitary usages of the phrase exist in the Pennsylvania "minority report" published after the ratifying convention
That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers."[122]
Historian Jack Rakove, in an amicus brief signed by a dozen leading historians filed in District of Columbia. v. Heller,[123] identifies several problems with the Kates and Blodgett-Ford arguments. Coxe's reference describes the ownership of weapons, not the purpose for which the weapons were owned. Thus, privately owned weapons were state-mandated as a means of meeting one's legal obligation to contribute to public defense. This amicus brief however, observes that Pennsylvania, because of Quaker influence, refused to pass laws organizing a militia for two decades prior to the Revolution, and refused to organize a militia even during wartime when frontier counties petitioned the colonial government.[124] How the right to arms is based on membership in the militia, when there is no militia, is unexplained. Other historians note that the Second Amendment describes what was as much a civic obligation as it was a right in the modern sense.[125] The meaning of the Pennsylvania dissent of the minority is even more hotly disputed. Historians note that this text, written by the Anti-Federalist minority of a single state, was hastily written, never actually reached the floor of the convention, and was never emulated by any other ratification convention.[125][126][127][48] In 1982, on the other hand, a Republican-majority U.S. Senate subcommittee claimed the Pennsylvania minority report as a source for the Bill of Rights,[128] and the majority opinion in Heller referred to this report as being "highly influential".[129] Also in this "highly influential" 1982 released Senate report on the Right to Keep and Bear Arms, Senator Orrin G. Hatch, chairman, U.S. Senate Judiciary Committee, Subcommittee on the Constitution, stated:
They argue that the Second Amendment's words "right of the people" mean "a right of the state" — apparently overlooking the impact of those same words when used in the First and Fourth Amendments. The "right of the people" to assemble or to be free from unreasonable searches and seizures is not contested as an individual guarantee. Still they ignore consistency and claim that the right to "bear arms" relates only to military uses. This not only violates a consistent constitutional reading of "right of the people" but also ignores that the second amendment protects a right to "keep" arms. "When our ancestors forged a land "conceived in liberty", they did so with musket and rifle. When they reacted to attempts to dissolve their free institutions, and established their identity as a free nation, they did so as a nation of armed freemen. When they sought to record forever a guarantee of their rights, they devoted one full amendment out of ten to nothing but the protection of their right to keep and bear arms against governmental interference. Under my chairmanship the Subcommittee on the Constitution will concern itself with a proper recognition of, and respect for, this right most valued by free men."[130]
In contrast, Richard Uviller and William G. Merkel argue that prior to and through the 18th century, the expression "bear arms" appeared primarily in military contexts, as opposed to the use of firearms by civilians.[26][62][131][25] According to Uviller and Merkel:
In late-eighteenth-century parlance, bearing arms was a term of art with an obvious military and legal connotation. ... As a review of the Library of Congress's data base of congressional proceedings in the revolutionary and early national periods reveals, the thirty uses of 'bear arms' and 'bearing arms' in bills, statutes, and debates of the Continental, Confederation, and United States' Congresses between 1774 and 1821 invariably occur in a context exclusively focused on the army or the militia.[131]
Clayton Cramer and Joseph Olson question Uviller and Merkel's conclusion, arguing that while previous scholarly examination of the phrase "bear arms" in English language documents published around the time of the Constitution does show almost entirely military uses or contexts, this may reflect a selection bias arising from the use of a limited selection of government documents that overwhelmingly refer to matters of military service.[132] According to Cramer and Olson:
Searching more comprehensive collections of English language works published before 1820 shows that there are a number of uses that...have nothing to do with military service...[and] The common law was in agreement. Edward Christian's edition of Blackstone's Commentaries that appeared in the 1790's described the rights of Englishmen (which every American colonist had been promised) in these terms 'everyone is at liberty to keep or carry a gun, if he does not use it for the [unlawful] destruction of game.' This right was separate from militia duties.[132]
Mark Tushnet claims that "bear arms," when used separately from "keep" in the late-eighteenth century, could refer to hunting or other activities. However, when used together, they specifically refer to weapons in connection with military use.
When used separately in the eighteenth century, 'keep' and 'bear' had their ordinary meanings -you could keep a weapon in your house, and then you'd bear it outside. When used together, though, the meaning is more restricted. The evidence is overwhelming that 'keep and bear' was a technical phrase whose terms traveled together, like 'cease and desist' or 'hue and cry.' 'Keep and bear' referred to weapons in connection with military uses, even when the terms used separately might refer to hunting or other activities.[133]
Legal commentator and author Patrick J. Charles analyzed "keep arms" and "bear arms" in eighteenth century statutes and military treatises and concludes that both phrases were legal terms of art used to describe arms in a military context.[134]
Meaning of "well regulated militia"
The term "regulated" means "disciplined" or "trained".[135] In Heller, the U.S. Supreme Court stated that "[t]he adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training."[136] Regarding a well regulated militia, Alexander Hamilton wrote in Federalist No. 29:
A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.[51]
Regarding regulation and training of the militia, Alexander Hamilton wrote in Federalist No. 29:
"If a well regulated militia be the most natural defence of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security...confiding the regulation of the militia to the direction of the national authority...(and) reserving to the states...the authority of training the militia".[
