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THE EIGHT AMENDMENT U.S.CONSTITUTION
THE EIGHT AMENDMENT U.S.CONSTITUTION
WE THE PEOPLE of ILLINOIS CONSTITUTION LOBBY
THE SUPREME LAW OF THE LAND THE CONSTITUTION OF THE FREE PEOPLE OF THE UNITED STATES OF AMERICA
THE SECOND RULE OF LAW EIGHT AMENDMENT OF THE BILL OF RIGHTS ( THE SUPREME LAW OF THE LAND THE CONSTOTUTION AMD BILL OF RIGHTS OF THE FREE PEOPLE OF THE UNITED STATES OF AMERICA )
Posted on December 17, 2011 by wfinley11
THE FIRST RULE OF LAW B EING FREEDOM, THE SECOND RULE OF LAW IS RULE OF LAW ITSELF!
Amendment 8 – Cruel and Unusual Punishment. Ratified 12/15/1791.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Eighth Amendment to the United States Constitution
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Image of the English Bill of Rights of 1689 that reads, ‘that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted’
Pertinent part of the English Bill of Rights, December 1689.
The American Bill of Rights in the National Archives, March 1789
The Eighth Amendment (Amendment VIII) to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment’s Cruel and Unusual Punishment Clause applies to the states. The phrases employed originated in the English Bill of Rights of 1689.
Contents
[hide]
1 Text
2 Background
3 Cruel and unusual punishments
3.1 Punishments forbidden regardless of the crime
3.2 Punishments forbidden for certain crimes
3.2.1 Death penalty for rape
3.3 Special procedures for death penalty cases
3.4 Punishments specifically allowed
4 Evolving standards of decency
5 Excessive fines
6 Excessive bail
7 See also
8 References
9 External links
Text
“ Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. ”
Background
The Eighth Amendment was adopted, as part of the Bill of Rights, in 1791. It is almost identical to a provision in the English Bill of Rights of 1689, in which Parliament declared, “as their ancestors in like cases have usually done…that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[1]
The provision was largely inspired by the case in England of Titus Oates who, after the ascension of King James II in 1685, was tried for multiple acts of perjury which had caused many executions of people whom Oates had wrongly accused. Oates was sentenced to imprisonment including an annual ordeal of being taken out for two days pillory plus one day of whipping while tied to a moving cart. The Oates case eventually became a topic of the U.S. Supreme Court’s Eighth Amendment jurisprudence.[2] The punishment of Oates involved ordinary penalties collectively imposed in an excessive and unprecedented manner.[3] The reason Oates did not receive the death penalty (unlike those whom he had falsely accused) may be because such a punishment would have deterred even honest witnesses from testifying in later cases.[4]
England’s declaration against “cruel and unusual punishments” was approved by Parliament in February 1689, and was read to King William III and his wife Queen Mary II on the following day.[5] Members of Parliament then explained in August 1689 that “the Commons had a particular regard…when that Declaration was first made” to punishments like the one that had been inflicted by the King’s Bench against Titus Oates.[5] Parliament then enacted the English Bill of Rights into law in December 1689.[5]
In England, the “cruel and unusual punishments” clause was a limitation on the discretion of judges, and required judges to adhere to precedent. According to the great treatise of the 1760s by William Blackstone entitled Commentaries on the Laws of England:
[H]owever unlimited the power of the court may seem, it is far from being wholly arbitrary; but its discretion is regulated by law. For the bill of rights has particularly declared, that excessive fines ought not to be imposed, nor cruel and unusual punishments inflicted: (which had a retrospect to some unprecedented proceedings in the court of king’s bench, in the reign of king James the second)….[6]
Virginia adopted this provision of the English Bill of Rights in the Virginia Declaration of Rights of 1776, and the Virginia convention that ratified the U.S. Constitution recommended in 1788 that this language also be included in the Constitution.[7]
Virginians such as George Mason and Patrick Henry wanted to ensure that this restriction would also be applied as a limitation on Congress. Mason warned that, otherwise, Congress may “inflict unusual and severe punishments.”[8] Henry emphasized that Congress could otherwise depart from precedent: “What has distinguished our ancestors?–That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany….”[9] Ultimately, Henry and Mason prevailed, and the Eighth Amendment was adopted. James Madison changed “ought” to “shall”, when he proposed the amendment to Congress in 1789.[7]
Cruel and unusual punishments
Main article: Cruel and unusual punishment
According to the Supreme Court, the Eighth Amendment forbids some punishments entirely, and forbids some other punishments that are excessive when compared to the crime, or compared to the competence of the perpetrator.
In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), the Supreme Court assumed arguendo that the Cruel and Unusual Punishments Clause applied to the states through the Due Process Clause of the Fourteenth Amendment. In Robinson v. California, 370 U.S. 660 (1962), the Court ruled that it did apply to the states through the Fourteenth Amendment. Robinson was the first case in which the Supreme Court applied the Eighth Amendment against the state governments through the Fourteenth Amendment. Before Robinson, the Eighth Amendment had only been applied against the federal government.[10]
Justice Potter Stewart’s opinion for the Robinson Court held that “infliction of cruel and unusual punishment [is] in violation of the Eighth and Fourteenth Amendments.” The framers of the Fourteenth Amendment, such as John Bingham, had discussed this subject:
[M]any instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, “cruel and unusual punishments” have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none.[11]
In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan wrote, “There are, then, four principles by which we may determine whether a particular punishment is ‘cruel and unusual’.”
The “essential predicate” is “that a punishment must not by its severity be degrading to human dignity,” especially torture.
“A severe punishment that is obviously inflicted in wholly arbitrary fashion.”
“A severe punishment that is clearly and totally rejected throughout society.”
“A severe punishment that is patently unnecessary.”
Continuing, he wrote that he expected that no state would pass a law obviously violating any one of these principles, so court decisions regarding the Eighth Amendment would involve a “cumulative” analysis of the implication of each of the four principles.
Punishments forbidden regardless of the crime
In Wilkerson v. Utah, 99 U.S. 130 (1878), the Supreme Court commented that drawing and quartering, public dissecting, burning alive, or disemboweling would constitute cruel and unusual punishment regardless of the crime. The Supreme Court declared executing the mentally handicapped in Atkins v. Virginia, 536 U.S. 304 (2002), and executing people who were under age 18 at the time the crime was committed in Roper v. Simmons, 543 U.S. 551 (2005), to be violations of the Eighth Amendment, regardless of the crime.
Punishments forbidden for certain crimes
The case of Weems v. United States, 217 U.S. 349 (1910), marked the first time that the Supreme Court exercised judicial review to overturn a criminal sentence as cruel and unusual.[12] The Court overturned a punishment called cadena temporal, which mandated “hard and painful labor,” shackling for the duration of incarceration, and permanent civil disabilities. This case is often viewed as establishing a principle of proportionality under the Eighth Amendment.[13] However, others have written that “it is hard to view Weems as announcing a constitutional requirement of proportionality.”[14]
In Trop v. Dulles, 356 U.S. 86 (1958), the Supreme Court held that punishing a natural-born citizen for a crime by taking away his citizenship is unconstitutional, being “more primitive than torture” because it involved the “total destruction of the individual’s status in organized society.”
In Robinson v. California, 370 U.S. 660 (1962), the Court decided that a California law authorizing a 90-day jail sentence for “be[ing] addicted to the use of narcotics” violated the Eighth Amendment, as narcotics addiction “is apparently an illness,” and California was attempting to punish people based on the state of this illness, rather than for any specific act. The Court wrote: “To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” However, in Powell v. Texas, 392 U.S. 514 (1968), the Court upheld a statute barring public intoxication by distinguishing Robinson on the basis that Powell dealt with a person who was drunk in public, not merely for being addicted to alcohol.[15]
Traditionally, the length of a prison sentence was not subject to scrutiny under the Eighth Amendment, regardless of the crime for which the sentence was imposed. It was not until the case of Solem v. Helm, 463 U.S. 277 (1983), that the Supreme Court held that incarceration, standing alone, could constitute cruel and unusual punishment if it were “disproportionate” in duration to the offense. The Court outlined three factors that were to be considered in determining if the sentence is excessive: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” The Court held that in the circumstances of the case before it and the factors to be considered, a sentence of life imprisonment without parole for cashing a $100 check on a closed account was cruel and unusual.
However, in Harmelin v. Michigan, 501 U.S. 957 (1991), a fractured Court retreated from the Solem test and held that for non-capital sentences, the Eighth Amendment only constrains the length of prison terms by a “gross disproportionality principle.” Under this principle, the Court sustained a mandatory sentence of life without parole imposed for possession of 672 grams or more of cocaine. In Harmelin, Justice Scalia, joined by Chief Justice Rehnquist, said “the Eighth Amendment contains no proportionality guarantee,” and that “what was ‘cruel and unusual’ under the Eighth Amendment was to be determined without reference to the particular offense.” Scalia wrote “If ‘cruel and unusual punishments’ included disproportionate punishments, the separate prohibition of disproportionate fines (which are certainly punishments) would have been entirely superfluous.”
In Graham v. Florida (2010), the Supreme Court declared that a life sentence without any chance of parole, for a crime other than murder, is cruel and unusual punishment for a minor.[16][17]
Death penalty for rape
In Coker v. Georgia, 433 U.S. 584 (1977), the Court declared that the death penalty was unconstitutionally excessive for rape of a woman and, by implication, for any crime where a death does not occur. The majority in Coker stated that “rape by definition does not include the death of or even the serious injury to another person.” The dissent countered that the majority “takes too little account of the profound suffering the crime imposes upon the victims and their loved ones.” The dissent also characterized the majority as “myopic” for only considering legal history of “the past five years.”
In Kennedy v. Louisiana, 554 U.S. 407 (2008),[18] the Court extended the reasoning of Coker by ruling that the death penalty was excessive for child rape “where the victim’s life was not taken.”[19] The Supreme Court failed to note a federal law, which applies to military court-martial proceedings, providing for the death penalty in cases of child rape.[20] On October 1, 2008, the Court declined to reconsider its opinion in this case, but did amend the majority and dissenting opinions in order to acknowledge that federal law. Justice Scalia (joined by Chief Justice Roberts) wrote in dissent that “the proposed Eighth Amendment would have been laughed to scorn if it had read ‘no criminal penalty shall be imposed which the Supreme Court deems unacceptable.’”[21]
Special procedures for death penalty cases
The first significant general challenge to capital punishment that reached the Supreme Court was the case of Furman v. Georgia, 408 U.S. 238 (1972). In a 5-4 decision, the Supreme Court overturned the death sentences of Furman for murder, as well as two other defendants for rape. Of the five justices voting to overturn the death penalty, two found capital punishment to be unconstitutionally cruel and unusual, while three found that the statutes at issue were implemented in a random and capricious fashion, discriminating against blacks and the poor. Furman v. Georgia did not hold — even though it is sometimes claimed that it did — that capital punishment is per se unconstitutional.[22]
States with capital punishment rewrote their laws to address the Supreme Court’s decision, and the Court then revisited the issue in a murder case: Gregg v. Georgia, 428 U.S. 153 (1976). In Gregg, the Court found, in a 7-2 ruling, that Georgia’s new death penalty laws passed Eighth Amendment scrutiny: the statutes provided a bifurcated trial in which guilt and sentence were determined separately; and, the statutes provided for “specific jury findings” followed by state supreme court review comparing each death sentence “with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate.” Because of the Gregg decision, executions resumed in 1977.
Some states have passed laws imposing mandatory death penalties in certain cases. The Supreme Court found these laws to be unconstitutional under the Eighth Amendment, in the murder case of Woodson v. North Carolina, 428 U.S. 280 (1976), because these laws remove discretion from the trial judge to make an individualized determination in each case.[23] Other statutes specifying factors for courts to use in making their decisions have been upheld. Some have not: in Godfrey v. Georgia, 446 U.S. 420 (1980), the Supreme Court overturned a sentence based upon a finding that a murder was “outrageously or wantonly vile, horrible, and inhuman,” as it deemed that any murder may be reasonably characterized in this manner. Similarly, in Maynard v. Cartwright, 486 U.S. 356 (1988), the Court found that an “especially heinous, atrocious or cruel” standard in a homicide case was too vague. However, the meaning of this language depends on how lower courts interpret it. In Walton v. Arizona, 497 U.S. 639 (1990), the Court found that the phrase “especially heinous, cruel, or depraved” was not vague in a murder case, because the state supreme court had expounded on its meaning.[24]
The Court has generally held that death penalty cases require extra procedural protections. As the Court said in Herrera v. Collins, 506 U.S. 390 (1993), which involved the murder of a police officer, “the Eighth Amendment requires increased reliability of the process…”
Punishments specifically allowed
In Wilkerson v. Utah, 99 U.S. 130 (1878), the Court stated that death by firing squad was not cruel and unusual punishment under the Eighth Amendment.
In Rummel v. Estelle, 445 U.S. 263 (1980), the Court upheld a life sentence with the possibility of parole imposed per Texas’s three strikes law for fraud crimes totaling $230. A few months after pleading guilty Rummel was released.[25]
In Harmelin v. Michigan, 501 U.S. 957 (1991), the Court upheld a life sentence without the possibility of parole for possession of 672 grams of cocaine.
In Lockyer v. Andrade, 538 U.S. 63 (2003), the Court upheld a 50 years to life sentence with the possibility of parole imposed under California’s three strikes law when the defendant was convicted of shoplifting videotapes worth a total of about $150.
Evolving standards of decency
In Trop v. Dulles, 356 U.S. 86 (1958), Chief Justice Earl Warren said: “The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Subsequently, the Court has looked to societal developments, as well as looking to its own independent judgment, in determining what are those “evolving standards of decency”.[18] The Court has then applied those standards not only to say what punishments are inherently cruel, but also to say what punishments that are not inherently cruel are nevertheless cruelly disproportionate to the offense in question.[18]
An example of the “evolving standards” idea can be seen in Jackson v. Bishop (8th Cir., 1968), an Eighth Circuit decision outlawing corporal punishment in the Arkansas prison system.
The “evolving standards” test is not without its scholarly critics. For example, Professor John Stinneford asserts that the “evolving standards” test misinterprets the Eighth Amendment:
The Framers of the Bill of Rights understood the word “unusual” to mean “contrary to long usage.” Recognition of the word’s original meaning will precisely invert the “evolving standards of decency” test, and ask the Court to compare challenged punishments with the longstanding principles and precedents of the common law, rather than shifting and nebulous notions of “societal consensus” and contemporary “standards of decency.”[26]
On the other hand, Dennis Baker has asserted that the evolving standards of decency test accords with the moral purpose of the Eighth Amendment and the Framer’s intent that the right be used to prevent citizens being subjected to all forms of unjust and disproportionate punishments.[27] As Professor John Bessler points out, “An Essay on On Crimes and Punishments,” written by Cesare Beccaria in the 1760s, advocated proportionate punishments. Many of the Founding Fathers, including Thomas Jefferson and James Madison, read Beccaria’s treatise and were influenced by it.[28]
Excessive fines
In United States v. Bajakajian, 524 U.S. 321 (1998), the Supreme Court ruled that it was unconstitutional to take $357,144 from a person who failed to report his taking of more than $10,000 in U.S. currency out of the United States.[29] In what was the first case in which the Supreme Court ruled a fine to violate the Excessive Fines Clause,[30] the Court ruled that it was “grossly disproportional” to take all of the money which Mr. Bajakajian attempted to take out of the United States without reporting trying to do so. In describing what constituted “gross disproportionality,” the Court could not find any guidance from the history of the Excessive Fines Clause and so relied on Cruel and Unusual Punishment Clause case law:
We must therefore rely on other considerations in deriving a constitutional excessiveness standard, and there are two that we find particularly relevant. The first, which we have emphasized in our cases interpreting the Cruel and Unusual Punishments Clause, is that judgments about the appropriate punishment for an offense belong in the first instance to the legislature. See, e.g., Solem v. Helm, 463 U.S. 277, 290 (1983) (“Reviewing courts … should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes”); see also Gore v. United States, 357 U.S. 386, 393 (1958) (“Whatever views may be entertained regarding severity of punishment, … these are peculiarly questions of legislative policy”). The second is that any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise. Both of these principles counsel against requiring strict proportionality between the amount of a punitive forfeiture and the gravity of a criminal offense, and we therefore adopt the standard of gross disproportionality articulated in our Cruel and Unusual Punishments Clause precedents. See, e.g., Solem v. Helm, supra, at 288; Rummel v. Estelle, 445 U.S. 263, 271 (1980).
Excessive bail
Main article: Excessive Bail Clause
In England, sheriffs originally determined whether to grant bail to criminal suspects. Since they tended to abuse their power, Parliament passed a statute in 1275 whereby bailable and non-bailable offenses were defined. The King’s judges often subverted the provisions of the law. It was held that an individual may be held without bail upon the Sovereign’s command. Eventually, the Petition of Right of 1628 argued that the King did not have such authority. Later, technicalities in the law were exploited to keep the accused imprisoned without bail even where the offenses were bailable; such loopholes were for the most part closed by the Habeas Corpus Act 1679. Thereafter, judges were compelled to set bail, but they often required impracticable amounts. Finally, the English Bill of Rights (1689) held that “excessive bail ought not to be required.” Nevertheless, the Bill did not determine the distinction between bailable and non-bailable offenses. Thus, the Eighth Amendment has been interpreted to mean that bail may be denied if the charges are sufficiently serious. The Supreme Court has also permitted “preventive” detention without bail. In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court held that the only limitation imposed by the bail clause is that “the government’s proposed conditions of release or detention not be ‘excessive’ in light of the perceived evil.”
See also
Capital punishment in the United States
Cruel and unusual punishment
Crime against humanity
Human rights
References
^ English Bill of Rights of 1689
^ See Harmelin v. Michigan, 501 U.S. 957 (1991); Ingraham v. Wright, 430 U.S. 651 (1977); Furman v. Georgia, 408 U.S. 238 (1972); and Weems v. United States, 217 U.S. 349 (1910)
^ Bartee, Alice. Litigating Morality, page 114 (Greenwood Publishing Group 1992).
^ Chitty, Joseph. A Practical Treatise on the Criminal Law, page 293 (Edward Earle 1819).
^ a b c Claus, Laurence. “The Anti-Discrimination Eighth Amendment”, Harvard Journal of Law and Public Policy, Vol. 28 (2004)
^ Blackstone, William. Commentaries (1769)
^ a b Schwartz, Bernard. The Great Rights of Mankind: A History of the American Bill of Rights, page 170 (Rowman & Littlefield 1992).
^ Patterson, John. The Bill of Rights: Politics, Religion, and the Quest for Justice, page 84 (2004).
^ “Debate in Virginia Ratifying Convention” (16 June 1788), in The Founders’ Constitution
^ Federman, Cary. The Body and the State: Habeas Corpus and American Jurisprudence, page 99 (SUNY Press 2006).
^ Congressional Globe, 39th Cong., 1st Sess., 2542 (1866) quoted in Furman v. Georgia, 408 U.S. 238 (1972) (concurring opinion of Justice Douglas). The same words of John Bingham had been quoted in Justice Black’s dissent in Adamson v. California, 332 U.S. 46 (1947); Black and three other dissenting justices had unsuccessfully urged in Adamson that the Eighth Amendment and the rest of the Bill of Rights be applied against the states.
^ Melusky, Anthony and Pesto, Keith. Cruel and Unusual Punishment: Rights and Liberties Under the Law, page 87 (ABC-CLIO 2003).
^ Finkel, Norman. Commonsense Justice: Jurors’ Notions of the Law, page 138 (Harvard University Press 2001).
^ The quoted sentence is from the opinion of Justice Scalia, joined by Chief Justice Rehnquist, in the later case of Harmelin v. Michigan, 501 U.S. 957 (1991).
^ Dressler, Joshua (2009). “9.04 (B)”. Understanding Criminal Law (Fifth ed.). LexisNexis. pp. 98. ISBN 978-1-4224-2987-7.
^ Denniston, Lyle (May 17, 2010). “Analysis: A limited break for juveniles”. SCOTUSblog. Retrieved 17 May 2010.
^ Mauro, Tony; Coyle, Marcia (May 17, 2010). “Justices rule on prison time for juveniles, sex offenders”. The National Law Journal. Retrieved 17 May 2010.
^ a b c Kennedy v. Louisiana, 554 U.S. ____ (2008).
^ Greenhouse, Linda. “Supreme Court Rejects Death Penalty for Child Rape”, New York Times (June 6, 2008)
^ Linda Greenhouse (July 2, 2008). “In Court Ruling on
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WE THE PEOPLE of ILLINOIS CONSTITUTION LOBBY
THE SUPREME LAW OF THE LAND THE CONSTITUTION OF THE FREE PEOPLE OF THE UNITED STATES OF AMERICA
THE SECOND RULE OF LAW EIGHT AMENDMENT OF THE BILL OF RIGHTS ( THE SUPREME LAW OF THE LAND THE CONSTOTUTION AMD BILL OF RIGHTS OF THE FREE PEOPLE OF THE UNITED STATES OF AMERICA )
Posted on December 17, 2011 by wfinley11
THE FIRST RULE OF LAW B EING FREEDOM, THE SECOND RULE OF LAW IS RULE OF LAW ITSELF!
Amendment 8 – Cruel and Unusual Punishment. Ratified 12/15/1791.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Eighth Amendment to the United States Constitution
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United States Constitution
Original text of the Constitution
Preamble
Articles of the Constitution
I · II · III · IV · V · VI · VII
Amendments to the Constitution
Bill of Rights
I · II · III · IV · V
VI · VII · VIII · IX · X
Subsequent Amendments
XI · XII · XIII · XIV · XV
XVI · XVII · XVIII · XIX · XX
XXI · XXII · XXIII · XXIV · XXV
XXVI · XXVII
Unratified Amendments
I(1) · XIII(1) · XIII(2) · XX(1) · XXVII(1) · XXVII(2)
Other countries · Law Portal
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Image of the English Bill of Rights of 1689 that reads, ‘that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted’
Pertinent part of the English Bill of Rights, December 1689.
The American Bill of Rights in the National Archives, March 1789
The Eighth Amendment (Amendment VIII) to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment’s Cruel and Unusual Punishment Clause applies to the states. The phrases employed originated in the English Bill of Rights of 1689.
Contents
[hide]
1 Text
2 Background
3 Cruel and unusual punishments
3.1 Punishments forbidden regardless of the crime
3.2 Punishments forbidden for certain crimes
3.2.1 Death penalty for rape
3.3 Special procedures for death penalty cases
3.4 Punishments specifically allowed
4 Evolving standards of decency
5 Excessive fines
6 Excessive bail
7 See also
8 References
9 External links
Text
“ Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. ”
Background
The Eighth Amendment was adopted, as part of the Bill of Rights, in 1791. It is almost identical to a provision in the English Bill of Rights of 1689, in which Parliament declared, “as their ancestors in like cases have usually done…that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[1]
The provision was largely inspired by the case in England of Titus Oates who, after the ascension of King James II in 1685, was tried for multiple acts of perjury which had caused many executions of people whom Oates had wrongly accused. Oates was sentenced to imprisonment including an annual ordeal of being taken out for two days pillory plus one day of whipping while tied to a moving cart. The Oates case eventually became a topic of the U.S. Supreme Court’s Eighth Amendment jurisprudence.[2] The punishment of Oates involved ordinary penalties collectively imposed in an excessive and unprecedented manner.[3] The reason Oates did not receive the death penalty (unlike those whom he had falsely accused) may be because such a punishment would have deterred even honest witnesses from testifying in later cases.[4]
England’s declaration against “cruel and unusual punishments” was approved by Parliament in February 1689, and was read to King William III and his wife Queen Mary II on the following day.[5] Members of Parliament then explained in August 1689 that “the Commons had a particular regard…when that Declaration was first made” to punishments like the one that had been inflicted by the King’s Bench against Titus Oates.[5] Parliament then enacted the English Bill of Rights into law in December 1689.[5]
In England, the “cruel and unusual punishments” clause was a limitation on the discretion of judges, and required judges to adhere to precedent. According to the great treatise of the 1760s by William Blackstone entitled Commentaries on the Laws of England:
[H]owever unlimited the power of the court may seem, it is far from being wholly arbitrary; but its discretion is regulated by law. For the bill of rights has particularly declared, that excessive fines ought not to be imposed, nor cruel and unusual punishments inflicted: (which had a retrospect to some unprecedented proceedings in the court of king’s bench, in the reign of king James the second)….[6]
Virginia adopted this provision of the English Bill of Rights in the Virginia Declaration of Rights of 1776, and the Virginia convention that ratified the U.S. Constitution recommended in 1788 that this language also be included in the Constitution.[7]
Virginians such as George Mason and Patrick Henry wanted to ensure that this restriction would also be applied as a limitation on Congress. Mason warned that, otherwise, Congress may “inflict unusual and severe punishments.”[8] Henry emphasized that Congress could otherwise depart from precedent: “What has distinguished our ancestors?–That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany….”[9] Ultimately, Henry and Mason prevailed, and the Eighth Amendment was adopted. James Madison changed “ought” to “shall”, when he proposed the amendment to Congress in 1789.[7]
Cruel and unusual punishments
Main article: Cruel and unusual punishment
According to the Supreme Court, the Eighth Amendment forbids some punishments entirely, and forbids some other punishments that are excessive when compared to the crime, or compared to the competence of the perpetrator.
In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), the Supreme Court assumed arguendo that the Cruel and Unusual Punishments Clause applied to the states through the Due Process Clause of the Fourteenth Amendment. In Robinson v. California, 370 U.S. 660 (1962), the Court ruled that it did apply to the states through the Fourteenth Amendment. Robinson was the first case in which the Supreme Court applied the Eighth Amendment against the state governments through the Fourteenth Amendment. Before Robinson, the Eighth Amendment had only been applied against the federal government.[10]
Justice Potter Stewart’s opinion for the Robinson Court held that “infliction of cruel and unusual punishment [is] in violation of the Eighth and Fourteenth Amendments.” The framers of the Fourteenth Amendment, such as John Bingham, had discussed this subject:
[M]any instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, “cruel and unusual punishments” have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none.[11]
In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan wrote, “There are, then, four principles by which we may determine whether a particular punishment is ‘cruel and unusual’.”
The “essential predicate” is “that a punishment must not by its severity be degrading to human dignity,” especially torture.
“A severe punishment that is obviously inflicted in wholly arbitrary fashion.”
“A severe punishment that is clearly and totally rejected throughout society.”
“A severe punishment that is patently unnecessary.”
Continuing, he wrote that he expected that no state would pass a law obviously violating any one of these principles, so court decisions regarding the Eighth Amendment would involve a “cumulative” analysis of the implication of each of the four principles.
Punishments forbidden regardless of the crime
In Wilkerson v. Utah, 99 U.S. 130 (1878), the Supreme Court commented that drawing and quartering, public dissecting, burning alive, or disemboweling would constitute cruel and unusual punishment regardless of the crime. The Supreme Court declared executing the mentally handicapped in Atkins v. Virginia, 536 U.S. 304 (2002), and executing people who were under age 18 at the time the crime was committed in Roper v. Simmons, 543 U.S. 551 (2005), to be violations of the Eighth Amendment, regardless of the crime.
Punishments forbidden for certain crimes
The case of Weems v. United States, 217 U.S. 349 (1910), marked the first time that the Supreme Court exercised judicial review to overturn a criminal sentence as cruel and unusual.[12] The Court overturned a punishment called cadena temporal, which mandated “hard and painful labor,” shackling for the duration of incarceration, and permanent civil disabilities. This case is often viewed as establishing a principle of proportionality under the Eighth Amendment.[13] However, others have written that “it is hard to view Weems as announcing a constitutional requirement of proportionality.”[14]
In Trop v. Dulles, 356 U.S. 86 (1958), the Supreme Court held that punishing a natural-born citizen for a crime by taking away his citizenship is unconstitutional, being “more primitive than torture” because it involved the “total destruction of the individual’s status in organized society.”
In Robinson v. California, 370 U.S. 660 (1962), the Court decided that a California law authorizing a 90-day jail sentence for “be[ing] addicted to the use of narcotics” violated the Eighth Amendment, as narcotics addiction “is apparently an illness,” and California was attempting to punish people based on the state of this illness, rather than for any specific act. The Court wrote: “To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” However, in Powell v. Texas, 392 U.S. 514 (1968), the Court upheld a statute barring public intoxication by distinguishing Robinson on the basis that Powell dealt with a person who was drunk in public, not merely for being addicted to alcohol.[15]
Traditionally, the length of a prison sentence was not subject to scrutiny under the Eighth Amendment, regardless of the crime for which the sentence was imposed. It was not until the case of Solem v. Helm, 463 U.S. 277 (1983), that the Supreme Court held that incarceration, standing alone, could constitute cruel and unusual punishment if it were “disproportionate” in duration to the offense. The Court outlined three factors that were to be considered in determining if the sentence is excessive: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” The Court held that in the circumstances of the case before it and the factors to be considered, a sentence of life imprisonment without parole for cashing a $100 check on a closed account was cruel and unusual.
However, in Harmelin v. Michigan, 501 U.S. 957 (1991), a fractured Court retreated from the Solem test and held that for non-capital sentences, the Eighth Amendment only constrains the length of prison terms by a “gross disproportionality principle.” Under this principle, the Court sustained a mandatory sentence of life without parole imposed for possession of 672 grams or more of cocaine. In Harmelin, Justice Scalia, joined by Chief Justice Rehnquist, said “the Eighth Amendment contains no proportionality guarantee,” and that “what was ‘cruel and unusual’ under the Eighth Amendment was to be determined without reference to the particular offense.” Scalia wrote “If ‘cruel and unusual punishments’ included disproportionate punishments, the separate prohibition of disproportionate fines (which are certainly punishments) would have been entirely superfluous.”
In Graham v. Florida (2010), the Supreme Court declared that a life sentence without any chance of parole, for a crime other than murder, is cruel and unusual punishment for a minor.[16][17]
Death penalty for rape
In Coker v. Georgia, 433 U.S. 584 (1977), the Court declared that the death penalty was unconstitutionally excessive for rape of a woman and, by implication, for any crime where a death does not occur. The majority in Coker stated that “rape by definition does not include the death of or even the serious injury to another person.” The dissent countered that the majority “takes too little account of the profound suffering the crime imposes upon the victims and their loved ones.” The dissent also characterized the majority as “myopic” for only considering legal history of “the past five years.”
In Kennedy v. Louisiana, 554 U.S. 407 (2008),[18] the Court extended the reasoning of Coker by ruling that the death penalty was excessive for child rape “where the victim’s life was not taken.”[19] The Supreme Court failed to note a federal law, which applies to military court-martial proceedings, providing for the death penalty in cases of child rape.[20] On October 1, 2008, the Court declined to reconsider its opinion in this case, but did amend the majority and dissenting opinions in order to acknowledge that federal law. Justice Scalia (joined by Chief Justice Roberts) wrote in dissent that “the proposed Eighth Amendment would have been laughed to scorn if it had read ‘no criminal penalty shall be imposed which the Supreme Court deems unacceptable.’”[21]
Special procedures for death penalty cases
The first significant general challenge to capital punishment that reached the Supreme Court was the case of Furman v. Georgia, 408 U.S. 238 (1972). In a 5-4 decision, the Supreme Court overturned the death sentences of Furman for murder, as well as two other defendants for rape. Of the five justices voting to overturn the death penalty, two found capital punishment to be unconstitutionally cruel and unusual, while three found that the statutes at issue were implemented in a random and capricious fashion, discriminating against blacks and the poor. Furman v. Georgia did not hold — even though it is sometimes claimed that it did — that capital punishment is per se unconstitutional.[22]
States with capital punishment rewrote their laws to address the Supreme Court’s decision, and the Court then revisited the issue in a murder case: Gregg v. Georgia, 428 U.S. 153 (1976). In Gregg, the Court found, in a 7-2 ruling, that Georgia’s new death penalty laws passed Eighth Amendment scrutiny: the statutes provided a bifurcated trial in which guilt and sentence were determined separately; and, the statutes provided for “specific jury findings” followed by state supreme court review comparing each death sentence “with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate.” Because of the Gregg decision, executions resumed in 1977.
Some states have passed laws imposing mandatory death penalties in certain cases. The Supreme Court found these laws to be unconstitutional under the Eighth Amendment, in the murder case of Woodson v. North Carolina, 428 U.S. 280 (1976), because these laws remove discretion from the trial judge to make an individualized determination in each case.[23] Other statutes specifying factors for courts to use in making their decisions have been upheld. Some have not: in Godfrey v. Georgia, 446 U.S. 420 (1980), the Supreme Court overturned a sentence based upon a finding that a murder was “outrageously or wantonly vile, horrible, and inhuman,” as it deemed that any murder may be reasonably characterized in this manner. Similarly, in Maynard v. Cartwright, 486 U.S. 356 (1988), the Court found that an “especially heinous, atrocious or cruel” standard in a homicide case was too vague. However, the meaning of this language depends on how lower courts interpret it. In Walton v. Arizona, 497 U.S. 639 (1990), the Court found that the phrase “especially heinous, cruel, or depraved” was not vague in a murder case, because the state supreme court had expounded on its meaning.[24]
The Court has generally held that death penalty cases require extra procedural protections. As the Court said in Herrera v. Collins, 506 U.S. 390 (1993), which involved the murder of a police officer, “the Eighth Amendment requires increased reliability of the process…”
Punishments specifically allowed
In Wilkerson v. Utah, 99 U.S. 130 (1878), the Court stated that death by firing squad was not cruel and unusual punishment under the Eighth Amendment.
In Rummel v. Estelle, 445 U.S. 263 (1980), the Court upheld a life sentence with the possibility of parole imposed per Texas’s three strikes law for fraud crimes totaling $230. A few months after pleading guilty Rummel was released.[25]
In Harmelin v. Michigan, 501 U.S. 957 (1991), the Court upheld a life sentence without the possibility of parole for possession of 672 grams of cocaine.
In Lockyer v. Andrade, 538 U.S. 63 (2003), the Court upheld a 50 years to life sentence with the possibility of parole imposed under California’s three strikes law when the defendant was convicted of shoplifting videotapes worth a total of about $150.
Evolving standards of decency
In Trop v. Dulles, 356 U.S. 86 (1958), Chief Justice Earl Warren said: “The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Subsequently, the Court has looked to societal developments, as well as looking to its own independent judgment, in determining what are those “evolving standards of decency”.[18] The Court has then applied those standards not only to say what punishments are inherently cruel, but also to say what punishments that are not inherently cruel are nevertheless cruelly disproportionate to the offense in question.[18]
An example of the “evolving standards” idea can be seen in Jackson v. Bishop (8th Cir., 1968), an Eighth Circuit decision outlawing corporal punishment in the Arkansas prison system.
The “evolving standards” test is not without its scholarly critics. For example, Professor John Stinneford asserts that the “evolving standards” test misinterprets the Eighth Amendment:
The Framers of the Bill of Rights understood the word “unusual” to mean “contrary to long usage.” Recognition of the word’s original meaning will precisely invert the “evolving standards of decency” test, and ask the Court to compare challenged punishments with the longstanding principles and precedents of the common law, rather than shifting and nebulous notions of “societal consensus” and contemporary “standards of decency.”[26]
On the other hand, Dennis Baker has asserted that the evolving standards of decency test accords with the moral purpose of the Eighth Amendment and the Framer’s intent that the right be used to prevent citizens being subjected to all forms of unjust and disproportionate punishments.[27] As Professor John Bessler points out, “An Essay on On Crimes and Punishments,” written by Cesare Beccaria in the 1760s, advocated proportionate punishments. Many of the Founding Fathers, including Thomas Jefferson and James Madison, read Beccaria’s treatise and were influenced by it.[28]
Excessive fines
In United States v. Bajakajian, 524 U.S. 321 (1998), the Supreme Court ruled that it was unconstitutional to take $357,144 from a person who failed to report his taking of more than $10,000 in U.S. currency out of the United States.[29] In what was the first case in which the Supreme Court ruled a fine to violate the Excessive Fines Clause,[30] the Court ruled that it was “grossly disproportional” to take all of the money which Mr. Bajakajian attempted to take out of the United States without reporting trying to do so. In describing what constituted “gross disproportionality,” the Court could not find any guidance from the history of the Excessive Fines Clause and so relied on Cruel and Unusual Punishment Clause case law:
We must therefore rely on other considerations in deriving a constitutional excessiveness standard, and there are two that we find particularly relevant. The first, which we have emphasized in our cases interpreting the Cruel and Unusual Punishments Clause, is that judgments about the appropriate punishment for an offense belong in the first instance to the legislature. See, e.g., Solem v. Helm, 463 U.S. 277, 290 (1983) (“Reviewing courts … should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes”); see also Gore v. United States, 357 U.S. 386, 393 (1958) (“Whatever views may be entertained regarding severity of punishment, … these are peculiarly questions of legislative policy”). The second is that any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise. Both of these principles counsel against requiring strict proportionality between the amount of a punitive forfeiture and the gravity of a criminal offense, and we therefore adopt the standard of gross disproportionality articulated in our Cruel and Unusual Punishments Clause precedents. See, e.g., Solem v. Helm, supra, at 288; Rummel v. Estelle, 445 U.S. 263, 271 (1980).
Excessive bail
Main article: Excessive Bail Clause
In England, sheriffs originally determined whether to grant bail to criminal suspects. Since they tended to abuse their power, Parliament passed a statute in 1275 whereby bailable and non-bailable offenses were defined. The King’s judges often subverted the provisions of the law. It was held that an individual may be held without bail upon the Sovereign’s command. Eventually, the Petition of Right of 1628 argued that the King did not have such authority. Later, technicalities in the law were exploited to keep the accused imprisoned without bail even where the offenses were bailable; such loopholes were for the most part closed by the Habeas Corpus Act 1679. Thereafter, judges were compelled to set bail, but they often required impracticable amounts. Finally, the English Bill of Rights (1689) held that “excessive bail ought not to be required.” Nevertheless, the Bill did not determine the distinction between bailable and non-bailable offenses. Thus, the Eighth Amendment has been interpreted to mean that bail may be denied if the charges are sufficiently serious. The Supreme Court has also permitted “preventive” detention without bail. In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court held that the only limitation imposed by the bail clause is that “the government’s proposed conditions of release or detention not be ‘excessive’ in light of the perceived evil.”
See also
Capital punishment in the United States
Cruel and unusual punishment
Crime against humanity
Human rights
References
^ English Bill of Rights of 1689
^ See Harmelin v. Michigan, 501 U.S. 957 (1991); Ingraham v. Wright, 430 U.S. 651 (1977); Furman v. Georgia, 408 U.S. 238 (1972); and Weems v. United States, 217 U.S. 349 (1910)
^ Bartee, Alice. Litigating Morality, page 114 (Greenwood Publishing Group 1992).
^ Chitty, Joseph. A Practical Treatise on the Criminal Law, page 293 (Edward Earle 1819).
^ a b c Claus, Laurence. “The Anti-Discrimination Eighth Amendment”, Harvard Journal of Law and Public Policy, Vol. 28 (2004)
^ Blackstone, William. Commentaries (1769)
^ a b Schwartz, Bernard. The Great Rights of Mankind: A History of the American Bill of Rights, page 170 (Rowman & Littlefield 1992).
^ Patterson, John. The Bill of Rights: Politics, Religion, and the Quest for Justice, page 84 (2004).
^ “Debate in Virginia Ratifying Convention” (16 June 1788), in The Founders’ Constitution
^ Federman, Cary. The Body and the State: Habeas Corpus and American Jurisprudence, page 99 (SUNY Press 2006).
^ Congressional Globe, 39th Cong., 1st Sess., 2542 (1866) quoted in Furman v. Georgia, 408 U.S. 238 (1972) (concurring opinion of Justice Douglas). The same words of John Bingham had been quoted in Justice Black’s dissent in Adamson v. California, 332 U.S. 46 (1947); Black and three other dissenting justices had unsuccessfully urged in Adamson that the Eighth Amendment and the rest of the Bill of Rights be applied against the states.
^ Melusky, Anthony and Pesto, Keith. Cruel and Unusual Punishment: Rights and Liberties Under the Law, page 87 (ABC-CLIO 2003).
^ Finkel, Norman. Commonsense Justice: Jurors’ Notions of the Law, page 138 (Harvard University Press 2001).
^ The quoted sentence is from the opinion of Justice Scalia, joined by Chief Justice Rehnquist, in the later case of Harmelin v. Michigan, 501 U.S. 957 (1991).
^ Dressler, Joshua (2009). “9.04 (B)”. Understanding Criminal Law (Fifth ed.). LexisNexis. pp. 98. ISBN 978-1-4224-2987-7.
^ Denniston, Lyle (May 17, 2010). “Analysis: A limited break for juveniles”. SCOTUSblog. Retrieved 17 May 2010.
^ Mauro, Tony; Coyle, Marcia (May 17, 2010). “Justices rule on prison time for juveniles, sex offenders”. The National Law Journal. Retrieved 17 May 2010.
^ a b c Kennedy v. Louisiana, 554 U.S. ____ (2008).
^ Greenhouse, Linda. “Supreme Court Rejects Death Penalty for Child Rape”, New York Times (June 6, 2008)
^ Linda Greenhouse (July 2, 2008). “In Court Ruling on
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Sunday, February 26, 2012
WE THE PEOPLE CONGRESS WEBINAR 2/28/2012
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766 Callers Feb. 7th, 2008
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Thursday 2-23-2012 9pm (eastern) 8pm (central) 7pm (mountain) 6pm (pacific)
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Special Guests for Show:
1) Ron Teed
Paston Village Church of Wheaton
Declaring the "State of Emergency" by Christian Americans on Ash Wednesday 2012
http://www.villagechurchofwheaton.org/main.cfm/about
From: RonTeed
I have worked with Rob Schenck on a number of occasions in Washington. His headquarters is directly across the street from the Supreme Court. As a Christian, Rob maintains a close working relationship with all three branches of government. He is a man of courage, and as most of you know I don't use that term lightly. For him to follow in the footsteps of Dietrich Bonhoeffer is vintage Rob Schenck.
Faith and action has a hand to mouth existence. They struggle each month to pay the bills and from experience I can tell you that there is very little in their budget for their own provision. This is a magnificent effort on their part and I am praying that the Lord will protect him in this effort as well as providing the financial resources to carry on their work.
I have just sent a $50 donation to Rob with a note stating that if Obama sends the eighth infantry to storm his headquarters, I'd be honored to pick up his shield! Maybe you could spare $5. This is the most flagrant abuse of power in our nation's history, and this president should be impeached, arrested, and tried for treason
Dear Ron,
You are part of our "inner circle" here at Faith and Action, so I'm writing to you now about a critical development before you read about it in the news:
Next Wednesday-Ash Wednesday on the Christian calendar-I will be joined by leaders from across the United States in declaring a "State of Emergency." This is in response to the recent White House order forcing religious organizations to comply with a mandate to violate their doctrinal teachings and deepest convictions.
This is extremely serious-and I did not come to this decision easily. I'll explain . . .
As you may know, for the last several months I've been reading, researching, and writing on the life, thought, and martyrdom of German Lutheran pastor Dietrich Bonhoeffer. He's been a role model for me since I first read his book, Cost of Discipleship, shortly after my conversion 38 years ago.
Bonhoeffer was far from perfect, but he was a young and humble man who gave up everything, including the benefits of his aristocratic family heritage, to challenge the evil machinations of Adolf Hitler and Nazism. He spent many lonely months in prison, forsaken by friends and colleagues, before he was hanged at the Flossenburg concentration camp.
By now you must think I'm pretty gloomy, but actually Pastor Bonhoeffer's courage and faithfulness to Christ has been an enormous inspiration to me. It's also been instructive. Two years ago, as part of my research, I traveled to Europe to walk in the steps of Bonhoeffer from birth to death. It was one of the most meaningful pilgrimages I will ever make. At one point, I visited the kitchen in the parsonage of one of Dietrich's fellow pastors, Martin Niemoller, where the two men, along with others, formed "The Pastors' Emergency League," a band of brave preachers that called the church to prophetically resist the control of secular powers over God's people.
I "happened" to be writing on this when President Obama issued his unprecedented demand for churches to violate their own teaching and comply with his so-called "health" insurance mandate. And, amazingly, I was reading the statement below by Bonhoeffer when news of the President's so-called "compromise" broke:
"The constantly repeated effort to befog the questions relative to it [speaking of the Nazis' propagandistic lies] is intended to keep us from seeing clearly the fact, by the very substance of which the Church is endangered, and thus wrest out of our hands the decision for which we are responsible to the Church alone."
Reading this, I sat breathless. We are now witnessing this very same attempt to "befog the questions." It was out of this state of emergency that Bonhoeffer also declared a "Status Confessionis"-a "Time to Speak."
This is why on Ash Wednesday a letter from me to the President will be hand-delivered to the White House. In it, I will call what he has done a reason for a "Status Confessionis"-a time for us to speak and to resist for the sake of God's Church and His people. I will include the story of Bonhoeffer, and remind the President he was publicly given a biography of Bonhoeffer just two weeks ago by my friend, Eric Metaxas, who wrote it!
If you believe this is "A Time to Speak," I'm asking you to do two things:
-- Pray with me and for me as, with others, I make this stand, and,
-- Please help us with as generous a financial gift as you can-because I don't expect everyone to stand with us. In fact, no doubt, Faith and Action will lose some financial supporters over this. It's happened before. There are those who just think we shouldn't "rock the boat."
As Dietrich Bonhoeffer found out, even your best friends will abandon you when you take a principled stand. If it happens to us, so be it. You can make this time of crisis easier, though, by standing with us-in your prayers-and in your generous financial support.
If the enemy of our souls can't silence us with fear, one way to do it is to drain our resources. You can help us steel ourselves for the onslaught.
May I count on you NOW to supply what is needed for the long haul? I need your help TODAY. Will you make your most generous tax-deductible contribution now? And will you pray for us as we Speak?
If you are a pastor or church leader, will you consider a special offering this week to help us as we prepare to speak prophetically? It can be mailed to Faith and Action, 109 2nd Street NE, Washington, DC 20002.
Thank you for standing with us!
Your very grateful missionary to our nation's elected and appointed officials,
Rev. Rob Schenck
PS: Do you know someone who could help us in an extraordinary way? Please forward this urgent message on. Thank you!
2) Michael Jackson
Illinois Activist
Tells his story about the blatant corruption within the Illinois Board of Elections.
"I am a citizen of IL and legal voter. I filed an objection petition with the IL State Board Of Elections regarding my concern of not having a legally qualified individual placed on the nomination ballot. Long story short I was involved in the BOE hearing that took place on Feb. 2, 2012. Actually I was only involved to a very small degree and I say this, because the BOE and counsel did not allow any of the evidence that I submitted in a timely manner according to IL statute to be part of the public record as well as affording me the opportunity for oral testimony. In essence there was spoliation of evidence and exhibits that I provided to the BOE and counsel that was not even allowed to see the light of day. I have all the evidence to such that I can easily provide to corroborate my story. The BOE violated the General Rules and Procedures laid out for them to go by, which I can provide. I have the transcript from the proceedings which will document the blatant acts on the part of the BOE to silence my voice, intimidation and words maliciously used against me. I have contacted a number of individuals as I filed an ethics complaint to the IG who oversees the BOE (Sharon Steward) as well as the Executive IG of IL (Ricardo Meza) and have been stonewalled at every turn. I have contacted other media outlets in the state of IL and have been stonewalled and ignored. Again, I can provide the factual and truthful account of what has occurred in the state of IL and the blatant corruption that is going on unchecked by anybody. It was recently reported by CBS that Chicago was the most corrupt city in the world and IL was the third most corrupt state in the Republic. What I have to share with you only confirms that and I need somebody who has the courage and the integrity to stand up for the truth and for we the people. The people that are in power are completely corrupt and they need to be held accountable or average citizen's such as myself will no longer have any liberty or freedom in which we can voice our concerns for rules, procedures, statutes and laws being broken. I look to hear back from you as soon as possible. I will gladly provide you all the necessary documentation to confirm what I share in summary is accurate."
Michael Jackson
jesuschristsbloodsaves@gmail.com
3) Kevin Danielson
American-born INFO WARRIOR based in Russia who served in the Army Reserve.
Kevin is back for a second visit to shares his view of America from Russia and other countries as well as his detainment by the Department of Homeland Security last Fall while in route to leave the United States for Russia.
I was born in Minneapolis. Grew up there. High school and college/university. Part-time military service in the Army Reserve. Lived in Germany for 7-8 years. Studied, worked, and performed duties and overseas service there. Also from Germany, I did various Reserve tours of temporary active duty right in Germany and Bosnia/Croatia, and Taszar Air Base in Hungary! I learned fluent German while there. Later I studied the Russian language in St. Petersburg, RUSSIA at St. Petersburg State University for the full year. Since then I speak also fluent Russian! A little less than 10 years ago, I finally realised what was-is really going on with gov'ts and the 'Elite". I attended a conerence in June 2006 in Chicago and another similar one in Madison, WIsc. in Aug 2007. Again another, "Conspiracy Conference" near San Francisco in Santa Clara in June 2008. I've been residing in St. Petersburg, Russia off-and-on for a little more than 10 years now. I'm really impressed at how MUCH MORE people in Russia and Europe KNOW SO MUCH!!! I mean about what we back in North America are oblivious to, here(there) in the U.S. Last year, I finished with Reserve, part-time military service and was honorably discharged from the U.S. Army(Reserve). Even AFTER that, I was almost sent to Baghdad, VietNam(meaning IRAQ)!! I trust this answered many questions. Even while I'm in Russia and now India, I still listen to Alex Jones, Jesse Ventura, and RTR.org!
4) Jim Condit Jr.
Founder of Citizens For A Fair Vote Count
Reviews of the recent caucuses
http://www.watchthevote2012.com/
http://www.votefraud.org/
Bob Schulz
Constitution Lobby
Bob Schulz, Chairman/Founder We The People Foundation For Constitutional Education, We The People Congress
Continental Congress 2009 Jekyll Island Project We The People Foundation We The People Congress
A special 19 minute webinar presentation on WTP's exciting new initiative to "Occupy Main Street" and restore our Constitutional Republic
http://www.givemeliberty.org/constitutionlobby/
Occupying The Constitution through the Constitution Lobby
http://www.occupytheconstitution.org
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http://www. wethepeoplefoundation.org
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THE SUPPORTERS AND FOUNDERS OF THIS CALL ARE ALL SUPPORTERS OF WTP FOUNDATION AND WTP CONGRESS. BOB SCHULZ HAS BEEN A FREQUENT GUEST ON THIS CALL BUT HIS PARTICIPATION DOES NOT IN ANY WAY DIRECTLY OR INDIRECTLY IMPLY THAT HE AGREES WITH ALL OR SOME OF THE CONTENT DISCUSSED ON THIS CALL.
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Click the link below for the entire newsletter:
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2012022311223
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National Collective Consciousness Show
Educating the Public on:
9/11 Truth, North American Union, CFR and Mainstream Media
Blue Ribbon Awards:
Longest Running 911 Truth Conference Call - Over 4 Years
766 Callers Feb. 7th, 2008
8 hour conference call March 6, 2008 (9pm until 5am eastern)
Archives @ www.aunetwork.tv
(week 239)
Thursday 2-23-2012 9pm (eastern) 8pm (central) 7pm (mountain) 6pm (pacific)
218-339-6901 Code-5092984#
or 724-444-7444 Call ID 48335
Listen to LIVE RADIO BROADCAST: TALKSHOE RADIO @ www.talkshoe.com Call ID: 48335
Sign in as a guest to listen
PLEASE FORWARD THIS MAILING
Subscribe to our weekly newsletter @ coordinator@firstinfreedomnc. com
WOULD YOU LIKE TO SEE THE BIG "AUN" PICTURE ?
(click the links below)
http://www.aunetwork.tv/test5.swf
http://www.aunetwork.tv/News_Letter.htm
Special Guests for Show:
1) Ron Teed
Paston Village Church of Wheaton
Declaring the "State of Emergency" by Christian Americans on Ash Wednesday 2012
http://www.villagechurchofwheaton.org/main.cfm/about
From: RonTeed
I have worked with Rob Schenck on a number of occasions in Washington. His headquarters is directly across the street from the Supreme Court. As a Christian, Rob maintains a close working relationship with all three branches of government. He is a man of courage, and as most of you know I don't use that term lightly. For him to follow in the footsteps of Dietrich Bonhoeffer is vintage Rob Schenck.
Faith and action has a hand to mouth existence. They struggle each month to pay the bills and from experience I can tell you that there is very little in their budget for their own provision. This is a magnificent effort on their part and I am praying that the Lord will protect him in this effort as well as providing the financial resources to carry on their work.
I have just sent a $50 donation to Rob with a note stating that if Obama sends the eighth infantry to storm his headquarters, I'd be honored to pick up his shield! Maybe you could spare $5. This is the most flagrant abuse of power in our nation's history, and this president should be impeached, arrested, and tried for treason
Dear Ron,
You are part of our "inner circle" here at Faith and Action, so I'm writing to you now about a critical development before you read about it in the news:
Next Wednesday-Ash Wednesday on the Christian calendar-I will be joined by leaders from across the United States in declaring a "State of Emergency." This is in response to the recent White House order forcing religious organizations to comply with a mandate to violate their doctrinal teachings and deepest convictions.
This is extremely serious-and I did not come to this decision easily. I'll explain . . .
As you may know, for the last several months I've been reading, researching, and writing on the life, thought, and martyrdom of German Lutheran pastor Dietrich Bonhoeffer. He's been a role model for me since I first read his book, Cost of Discipleship, shortly after my conversion 38 years ago.
Bonhoeffer was far from perfect, but he was a young and humble man who gave up everything, including the benefits of his aristocratic family heritage, to challenge the evil machinations of Adolf Hitler and Nazism. He spent many lonely months in prison, forsaken by friends and colleagues, before he was hanged at the Flossenburg concentration camp.
By now you must think I'm pretty gloomy, but actually Pastor Bonhoeffer's courage and faithfulness to Christ has been an enormous inspiration to me. It's also been instructive. Two years ago, as part of my research, I traveled to Europe to walk in the steps of Bonhoeffer from birth to death. It was one of the most meaningful pilgrimages I will ever make. At one point, I visited the kitchen in the parsonage of one of Dietrich's fellow pastors, Martin Niemoller, where the two men, along with others, formed "The Pastors' Emergency League," a band of brave preachers that called the church to prophetically resist the control of secular powers over God's people.
I "happened" to be writing on this when President Obama issued his unprecedented demand for churches to violate their own teaching and comply with his so-called "health" insurance mandate. And, amazingly, I was reading the statement below by Bonhoeffer when news of the President's so-called "compromise" broke:
"The constantly repeated effort to befog the questions relative to it [speaking of the Nazis' propagandistic lies] is intended to keep us from seeing clearly the fact, by the very substance of which the Church is endangered, and thus wrest out of our hands the decision for which we are responsible to the Church alone."
Reading this, I sat breathless. We are now witnessing this very same attempt to "befog the questions." It was out of this state of emergency that Bonhoeffer also declared a "Status Confessionis"-a "Time to Speak."
This is why on Ash Wednesday a letter from me to the President will be hand-delivered to the White House. In it, I will call what he has done a reason for a "Status Confessionis"-a time for us to speak and to resist for the sake of God's Church and His people. I will include the story of Bonhoeffer, and remind the President he was publicly given a biography of Bonhoeffer just two weeks ago by my friend, Eric Metaxas, who wrote it!
If you believe this is "A Time to Speak," I'm asking you to do two things:
-- Pray with me and for me as, with others, I make this stand, and,
-- Please help us with as generous a financial gift as you can-because I don't expect everyone to stand with us. In fact, no doubt, Faith and Action will lose some financial supporters over this. It's happened before. There are those who just think we shouldn't "rock the boat."
As Dietrich Bonhoeffer found out, even your best friends will abandon you when you take a principled stand. If it happens to us, so be it. You can make this time of crisis easier, though, by standing with us-in your prayers-and in your generous financial support.
If the enemy of our souls can't silence us with fear, one way to do it is to drain our resources. You can help us steel ourselves for the onslaught.
May I count on you NOW to supply what is needed for the long haul? I need your help TODAY. Will you make your most generous tax-deductible contribution now? And will you pray for us as we Speak?
If you are a pastor or church leader, will you consider a special offering this week to help us as we prepare to speak prophetically? It can be mailed to Faith and Action, 109 2nd Street NE, Washington, DC 20002.
Thank you for standing with us!
Your very grateful missionary to our nation's elected and appointed officials,
Rev. Rob Schenck
PS: Do you know someone who could help us in an extraordinary way? Please forward this urgent message on. Thank you!
2) Michael Jackson
Illinois Activist
Tells his story about the blatant corruption within the Illinois Board of Elections.
"I am a citizen of IL and legal voter. I filed an objection petition with the IL State Board Of Elections regarding my concern of not having a legally qualified individual placed on the nomination ballot. Long story short I was involved in the BOE hearing that took place on Feb. 2, 2012. Actually I was only involved to a very small degree and I say this, because the BOE and counsel did not allow any of the evidence that I submitted in a timely manner according to IL statute to be part of the public record as well as affording me the opportunity for oral testimony. In essence there was spoliation of evidence and exhibits that I provided to the BOE and counsel that was not even allowed to see the light of day. I have all the evidence to such that I can easily provide to corroborate my story. The BOE violated the General Rules and Procedures laid out for them to go by, which I can provide. I have the transcript from the proceedings which will document the blatant acts on the part of the BOE to silence my voice, intimidation and words maliciously used against me. I have contacted a number of individuals as I filed an ethics complaint to the IG who oversees the BOE (Sharon Steward) as well as the Executive IG of IL (Ricardo Meza) and have been stonewalled at every turn. I have contacted other media outlets in the state of IL and have been stonewalled and ignored. Again, I can provide the factual and truthful account of what has occurred in the state of IL and the blatant corruption that is going on unchecked by anybody. It was recently reported by CBS that Chicago was the most corrupt city in the world and IL was the third most corrupt state in the Republic. What I have to share with you only confirms that and I need somebody who has the courage and the integrity to stand up for the truth and for we the people. The people that are in power are completely corrupt and they need to be held accountable or average citizen's such as myself will no longer have any liberty or freedom in which we can voice our concerns for rules, procedures, statutes and laws being broken. I look to hear back from you as soon as possible. I will gladly provide you all the necessary documentation to confirm what I share in summary is accurate."
Michael Jackson
jesuschristsbloodsaves@gmail.com
3) Kevin Danielson
American-born INFO WARRIOR based in Russia who served in the Army Reserve.
Kevin is back for a second visit to shares his view of America from Russia and other countries as well as his detainment by the Department of Homeland Security last Fall while in route to leave the United States for Russia.
I was born in Minneapolis. Grew up there. High school and college/university. Part-time military service in the Army Reserve. Lived in Germany for 7-8 years. Studied, worked, and performed duties and overseas service there. Also from Germany, I did various Reserve tours of temporary active duty right in Germany and Bosnia/Croatia, and Taszar Air Base in Hungary! I learned fluent German while there. Later I studied the Russian language in St. Petersburg, RUSSIA at St. Petersburg State University for the full year. Since then I speak also fluent Russian! A little less than 10 years ago, I finally realised what was-is really going on with gov'ts and the 'Elite". I attended a conerence in June 2006 in Chicago and another similar one in Madison, WIsc. in Aug 2007. Again another, "Conspiracy Conference" near San Francisco in Santa Clara in June 2008. I've been residing in St. Petersburg, Russia off-and-on for a little more than 10 years now. I'm really impressed at how MUCH MORE people in Russia and Europe KNOW SO MUCH!!! I mean about what we back in North America are oblivious to, here(there) in the U.S. Last year, I finished with Reserve, part-time military service and was honorably discharged from the U.S. Army(Reserve). Even AFTER that, I was almost sent to Baghdad, VietNam(meaning IRAQ)!! I trust this answered many questions. Even while I'm in Russia and now India, I still listen to Alex Jones, Jesse Ventura, and RTR.org!
4) Jim Condit Jr.
Founder of Citizens For A Fair Vote Count
Reviews of the recent caucuses
http://www.watchthevote2012.com/
http://www.votefraud.org/
Bob Schulz
Constitution Lobby
Bob Schulz, Chairman/Founder We The People Foundation For Constitutional Education, We The People Congress
Continental Congress 2009 Jekyll Island Project We The People Foundation We The People Congress
A special 19 minute webinar presentation on WTP's exciting new initiative to "Occupy Main Street" and restore our Constitutional Republic
http://www.givemeliberty.org/constitutionlobby/
Occupying The Constitution through the Constitution Lobby
http://www.occupytheconstitution.org
http://www.givemeliberty.org/
http://www. wethepeoplefoundation.org
http://www. wethepeoplecongress.org
(click the link below to play video)
http://www.youtube.com/watch?v=zn1bVOTNc0k
http://www.youtube.com/watch?v=zn1bVOTNc0k
DISCLAIMER:
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THE SUPPORTERS AND FOUNDERS OF THIS CALL ARE ALL SUPPORTERS OF WTP FOUNDATION AND WTP CONGRESS. BOB SCHULZ HAS BEEN A FREQUENT GUEST ON THIS CALL BUT HIS PARTICIPATION DOES NOT IN ANY WAY DIRECTLY OR INDIRECTLY IMPLY THAT HE AGREES WITH ALL OR SOME OF THE CONTENT DISCUSSED ON THIS CALL.
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Wednesday, February 22, 2012
Tuesday, February 21, 2012
Monday, February 20, 2012
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THE SECOND AMENDMENT
WE THE PEOPLE of ILLINOIS CONSTITUTION LOBBY
THE SUPREME LAW OF THE LAND THE CONSTITUTION OF THE FREE PEOPLE OF THE UNITED STATES OF AMERICA
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THEIRS SOMETHING IN THE AIR – THE SECOND AMENDMENT( OF THE SUPREME LAW OF THE LAND BILL OF RIGHTS OF THE CONSTITUION OF THE FREE PEOPLE OF THE UNITED STATES OF AMERICA )
Posted on December 10, 2011 by wfinley11
THE FIRST RULE OF LAW IS FREEDOM, THE SECOND RULE OF LAW IS RULE OF LAW ITSELF!
theirs something in the air
Second Amendment to the United States Constitution
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The Second Amendment (Amendment II) to the United States Constitution is the part of the United States Bill of Rights that protects the right of the people to keep and bear arms. It was adopted on December 15, 1791, along with the rest of the Bill of Rights.
In 2008 and 2010, the Supreme Court issued two Second Amendment decisions. In District of Columbia v. Heller (2008), the Court ruled that the Second Amendment protects an individual’s right to possess a firearm, unconnected to service in a militia[1][2] and to use that arm for traditionally lawful purposes, such as self-defense within the home. Additionally, the Court enumerated several longstanding prohibitions and restrictions on firearms possession that it found were consistent with the Second Amendment.[3] In McDonald v. Chicago (2010), the Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government.[4]
Contents
[hide]
1 Text
2 Pre-Constitution background
2.1 Influence of the English Bill of Rights of 1689
2.2 Experience in America prior to the U.S. Constitution
3 Drafting and adoption of the Constitution
4 Ratification debates
5 Conflict and compromise in Congress produce the Bill of Rights
6 Militia in the decades following ratification
7 Scholarly commentary
7.1 Early commentary
7.2 Late 20th century commentary
7.3 Meaning of “well regulated militia”
7.4 Meaning of “the right of the People”
7.5 Meaning of “keep and bear arms”
8 Supreme Court cases
8.1 United States v. Cruikshank
8.2 Presser v. Illinois
8.3 Miller v. Texas
8.4 Robertson v. Baldwin
8.5 United States v. Miller
8.6 District of Columbia v. Heller
8.6.1 Judgment
8.6.2 Notes and analysis
8.7 McDonald v. Chicago
9 Lower federal court decisions since Heller
10 See also
11 Notes and Citations
12 References
12.1 Books
12.2 Periodicals
12.3 Other publications
13 External links
Text
There are several versions of the text of the Second Amendment, each with slight capitalization and punctuation differences, found in the official documents surrounding the adoption of the Bill of Rights.[5] One version was passed by the Congress,[6] while another is found in the copies distributed to the States[7] and then ratified by them.
As passed by the Congress:
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.
As ratified by the States and authenticated by Thomas Jefferson, Secretary of State:
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.[8]
The original hand-written copy of the Bill of Rights, approved by the House and Senate, was prepared by scribe William Lambert and resides in the National Archives.
Pre-Constitution background
This section needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (September 2010)
Influence of the English Bill of Rights of 1689
Main article: Bill of Rights 1689
The right to have arms in English history is believed to have been regarded as a long-established natural right in English law, auxiliary to the natural and legally defensible rights to life.[9] The English Bill of Rights 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 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 its subjects, after James II had attempted to disarm many Protestants, and had argued with Parliament over his desire to maintain a standing (or permanent) army.[10] 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.[11] 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.[12]
The text of the English Bill of Rights of 1689 includes language protecting the right of Protestants against disarmament by the Crown. This document states: “That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.”[13] It also contained text that aspired to bind future Parliaments, though under English Constitutional Law no Parliament can bind any later Parliament.[14] Nevertheless, the English Bill of Rights remains an important constitutional document, more for enumerating the rights of Parliament over the monarchy than for its clause concerning a right to have arms.
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 evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome (list of grievances including) … by causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law, (Recital regarding the change of monarch) … thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors 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 Defence suitable to their Conditions and as allowed by Law.[13]
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.[15][16]
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 was written to preserve the hunting rights of the landed aristocracy and is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments.[17] 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 posessed [sic].”[18] 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.[19] 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 natural right of the subject that was “also declared” in the English Bill of Rights.[20][21]
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 I 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.[22]
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 recently decided). Some in the U.S. 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.[23] Without a regular army and police force (which in England was not established until 1829), 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.[24]
Experience in America prior to the U.S. Constitution
In no particular order, early American settlers 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:[25][26][27][28][29][30][31][32]
deterring undemocratic government;
repelling invasion;
suppressing insurrection;
facilitating a natural right of self-defense;
participating in law enforcement;
enabling the people to organize a militia system.
Which of these considerations they thought were most important, which of these considerations they were most alarmed about, and the extent to which each of these considerations 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”.[33]
Ideals that helped to inspire the Second Amendment in part are symbolized by the minutemen.[34]
During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, which included a number who were loyal to British imperial rule. As defiance and opposition to the 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, these Patriots established independent colonial legislatures to create their own militias that excluded the Loyalists and then sought out to stock up independent armories for their militias. In response to this arms build up, the British Parliament established an embargo on firearms, parts and ammunition on the American colonies.[35]
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.[36] 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.[36] Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars’ interpretation of Blackstone.[37]
The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 Boston objecting to the British army 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.[36]
The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with 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.[38] They considered it to be bad that there was no effective federal military crackdown to an armed tax rebellion in western Massachusetts known as Shays’ Rebellion.[39] 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 Philadelphia Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.[40][41] 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.[42]
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.”[43] 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.[44]
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”.[45] 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,[46] as Alexander Hamilton explained in 1788:
[I]f 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.[46][47]
Some scholars have said that it is wrong to read a right of armed insurrection in 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.[48][49] Other scholars, such as Glenn Reynolds, contend that the framers did believe in an individual right to armed insurrection. The latter scholars cite examples, such as the Declaration of Independence (describing in 1776 “the Right of the People to…institute new Government”) and the New Hampshire Constitution (stating in 1784 that “nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind”).[50]
There was an ongoing debate in the 1780s 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 ongoing revolution in France.[51] A widespread fear, during the debates on the ratification of 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,[52] or prohibiting citizens from arming themselves.[36] 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 Article 1, Section 8 of the US Constitution, the individual right to arm was retained and strengthened by the Militia Act of 1792 and the similar act of 1795.[53][54]
Drafting and adoption of the Constitution
Further information: Deliberations
James Madison (left) is known as the “Father of the Constitution” and “Father of the Bill of Rights”[55] while George Mason (right) with Madison is also known as the “Father of the Bill of Rights”[56]
Patrick Henry (left) believed that a citizenry trained in arms was the only sure guarantor of liberty[57] while Alexander Hamilton (right) wrote in Federalist No. 29 that “little more can be reasonably aimed at, with respect to the people at large, than to have them properly armed…”[47]
Struggling under the inefficiencies of the Articles of Confederation, delegates from Virginia and Maryland assembled at the Mount Vernon Conference in March 1785 to fashion a remedy. 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:[58][59]
interstate arbitration processes to handle quarrels between states;
sufficiently trained and armed intrastate security forces to suppress insurrection;
a national militia to repel foreign invaders.
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 that congress the power to raise a standing army.[60] Article 1, Section 8 of the Constitution codified these changes by allowing the Congress to do the following:
provide for the common defense and general welfare of the United States;
raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
provide and maintain a navy;
make rules for the government and regulation of the land and naval forces;
provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
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.
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.[61] Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.[62][63] Anti-federalists, however, 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. Nevertheless, upon realizing there was insufficient support to ratify the Constitution without a bill of rights, Federalists conceded, promising that upon enactment they would support amending the Constitution to add a bill of rights. This compromise persuaded enough Anti-federalists to vote for the Constitution, allowing for ratification.[64] The Constitution was declared ratified June 21, 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.[65] James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June 8, 1789, and was adopted on December 15, 1791.
Ratification debates
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.[66][67]
In contrast, Article I, Section 8 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.[68]
A foundation of American political thought during the Revolutionary period was the well justified concern 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?” 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.
George Mason argued the importance of the militia and right to bear arms by reminding his compatriots of England’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.
The framers thought the personal right to bear arms to be a paramount right by which other rights could be protected. Therefore, 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.
Patrick Henry, also in the Virginia convention, eloquently argued 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.[69]
While both Monroe and Adams supported ratification of the Constitution, its most influential framer was James Madison. In Federalist No. 46, he confidently contrasted the federal government of the United States to the European kingdoms, which he contemptuously described as “afraid to trust the people with arms.” He assured his fellow citizens that they need never fear their government because of “the advantage of being armed….”
By January of 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several specific 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 amendments to assure ratification. Samuel Adams proposed that the Constitution:
Be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defence of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of their grievances: or to subject the people to unreasonable searches and seizures.[70]
Conflict and compromise in Congress produce the Bill of Rights
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.[71]
On July 21, Madison again raised the issue of his Bill and proposed a select committee be created to report on it. The House voted in favor of Madison’s motion,[72] 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.[73] 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.[74]
The Second Amendment was debated and modified during sessions of the House on in late August of 1789. These debates revolved primarily around risk of “mal-administration of the government” using the “religiously scrupulous” clause to destroy the militia as Great Britain had attempted to destroy the 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. When the Amendment was transcribed, the semicolon in the religious exemption portion was changed to a comma by the Senate scribe:
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.[75]
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.”[76] 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.[77]
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.[78] The Senate then slightly modified the language and voted to return the Bill of Rights to the House. The final version passed by the Senate was:
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.
The House voted on September 21, 1789 to accept the changes made by the Senate, but the amendment as finally entered into the House journal contained the additional words “necessary to”:
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.[79]
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.
Militia in the decades following ratification
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.[80] 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 clubs as their sole defensive weapon.[80] 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.[80]
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.[81]
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.”[81] 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 65 percent.[82] 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 Section 2 of the Act, including exemptions for: clergy, conscientious objectors, teachers, students, and jurors. And 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.[83] None are mentioned in the legislation.[81]
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.[84] 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.[85] Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.[85] In October, President George Washington and General Harry Lee marched on the 7,000 rebels 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 President John Adams had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production.[85] 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.[86] 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 White House being burned down in 1814.[83]
Scholarly commentary
Early commentary
The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker. He annotated a five-volume edition of Sir William Blackstone’s Commentaries on the Laws of England, a critical legal reference for early American attorneys published in 1803.[87]
In footnotes 40 and 41 of the Commentaries, Tucker stated that the right to bear arms under the Second Amendment was not subject to the restrictions that were part of English law: “The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government” and “whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England.” Blackstone himself also commented on English game laws, Vol. II, p. 412, “that the prevention of popular insurrections and resistance to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws.”[87] Blackstone discussed the right of self-defense in a separate section of his treatise on the common law of crimes. Tucker’s annotations for that latter section did not mention the Second Amendment but cited the standard works of English jurists such as Hawkins.[88]
Further, Tucker criticized the English Bill of Rights for limiting gun ownership to the very wealthy, leaving the populace effectively disarmed, and expressed the hope that Americans “never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.”[87]
Tucker’s commentary was soon followed, in 1825, by that of William Rawle in his landmark text, A View of the Constitution of the United States of America. Like Tucker, Rawle condemned England’s “arbitrary code for the preservation of game,” portraying that country as one that “boasts so much of its freedom,” yet provides a right to “protestant subjects only” that it “cautiously describ[es] to be that of bearing arms for their defence” and reserves for “[a] very small proportion of the people[.]“[89] In contrast, Rawle characterizes the second clause of the Second Amendment, which he calls the corollary clause, as a general prohibition against such capricious abuse of government power, declaring bluntly:
No clause could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[90]
Rawle, long before the concept of incorporation was formally recognized by the courts, or Congress drafted the Fourteenth Amendment, contended that citizens could appeal to the Second Amendment should either the state or federal government attempt to disarm them. He did warn, however, that “this right [to bear arms] ought not…be abused to the disturbance of the public peace” and observed, paraphrasing Coke, that “[a]n assemblage of persons with arms, for unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace.”[89]
The orthodox view of the meaning of the Second Amendment was articulated by Joseph Story in his influential Commentaries on the Constitution. In his view the meaning of the Amendment was clear:
The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.[91]
In this quote, Story describes a militia as the “natural defence of a free country,” both against foreign foes, domestic revolts and usurpation by rulers. The book regards the militia as a “moral check” against both usurpation and the arbitrary use of power, while expressing distress at the growing indifference of the American people to maintaining such an organized militia, which could lead to the undermining of the protection of the Second Amendment.[91]
Abolitionist Lysander Spooner, commenting on bills of rights, stated that the object of all bills of rights is to assert the rights of individuals against the government and that the Second Amendment right to keep and bear arms was in support of the right to resist government oppression, as the only security against the tyranny of government lies in forcible resistance to injustice, for injustice will certainly be executed, unless forcibly resisted.[92] Spooner’s theory provided the intellectual foundation for John Brown and other radical abolitionists who believed that arming slaves was not only morally justified, but entirely consistent with the Second Amendment.[93] An express connection between this right and the Second Amendment was drawn by Lysander Spooner who commented that a “right of resistance” is protected by both the right to trial by jury and the Second Amendment.[94]
In the Congress, the debate on the Fourteenth Amendment concentrated on what the Southern States were doing to harm the newly freed slaves. One particular concern was the disarming of former slaves.[95]
Late 20th century commentary
In the latter half of the 20th century there was considerable debate over whether the 2nd Amendment protected an individual right or a collective right.[96] The debate centered on whether the initial clause “A well regulated militia being necessary to the security of a free State” declared the Amendment’s only purpose, or if it merely announced a purpose to introduce the main or operative clause “the right of the People to keep and bear arms shall not be infringed”.
Three basic competing models were offered to interpret the Second Amendment:[97]
The first, known as the “states’ rights” or “collective rights” model, was that the Second Amendment did not apply to individuals; rather, it recognized the right of a state to arm its militia.
The second, known as the “sophisticated collective rights model”, held that the Second Amendment recognized some limited individual right. However, this individual right could only be exercised by members of a functioning, organized state militia while actively participating in the organized militia’s activities.
The third, known as the “standard model”, was that the Second Amendment recognized the personal right of individuals to keep and bear arms.
Under both of the collective rights models, the opening phrase was considered essential as a pre-condition for the main clause.[98] These interpretations held that this was a grammar structure that was common during that era,[99] and that this grammar dictated that the Second Amendment protected a collective right to firearms to the extent necessary for militia duty.[100]
Under the standard model, the opening phrase was believed to be prefatory or amplifying to the operative clause. The opening phrase was meant as a non-exclusive example—one of many reasons for the amendment [20] This interpretation was consistent with the position that the Second Amendment protects a modified individual right.[101]
The question of a collective rights versus an individual right was progressively resolved with the 2001 Fifth Circuit ruling in United States v. Emerson, in the 2008 Supreme Court ruling in District of Columbia v. Heller, and in the 2010 Supreme Court ruling in McDonald v. Chicago. All of those rulings upheld the individual rights model when interpreting the Second Amendment. In Heller, the Supreme Court upheld the Second Amendment as protecting an individual right.[102] Although the Second Amendment is the only Constitutional amendment with a prefatory clause, such constructions were widely used elsewhere.[103]
Meaning of “well regulated militia”
The term “regulated” means “disciplined” or “trained”.[104] 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.”[105] 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.[47]
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”.[47]
Meaning of “the right of the People”
Justice Antonin Scalia in writing for the majority in District of Columbia v. Heller:
Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”— those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people”.[106]
Justice John Paul Stevens countered in his dissenting opinion:
When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated. But the Court itself reads the Second Amendment to protect a “subset” significantly narrower than the class of persons protected by the First and Fourth Amendments; when it finally drills down on the substantive meaning of the Second Amendment, the Court limits the protected class to “law-abiding, responsible citizens”.[107]
Meaning of “keep and bear arms”
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 District of Columbia v. Heller the majority pointed out that:
Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.” At the time of the founding, as now, to “bear” meant to “carry.” In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens “bear arms in defense of themselves and the state” again, in the most analogous linguistic context—that “bear arms” was not limited to the carrying of arms in a militia. The phrase “bear Arms” also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: “to serve as a soldier, do military service, fight” or “to wage war.” But it unequivocally bore that idiomatic meaning only when followed by the preposition “against,”. Every example given by petitioners’ amici for the idiomatic meaning of “bear arms” from the founding period either includes the preposition “against” or is not clearly idiomatic. In any event, the meaning of “bear arms” that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.”[106]
In a dissenting opinion, joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer, Justice John Paul Stevens said:
The Amendment’s text does justify a different limitation: the “right to keep and bear arms” protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves”.[107]
Supreme Court cases
See also: Firearm case law in the United States
For almost a century following the ratification of the Bill of Rights, the intended meaning and application of the Second Amendment drew less interest than it does in modern times.[108] The vast majority of regulation was done by states, and the first case law on weapons regulation dealt with state interpretations of the Second Amendment. The notable exception to this general rule was Houston v. Moore, 18 U.S. 1 (1820), where the Supreme Court mentioned the Second Amendment in an aside, but Justice Story “misidentified” it as the “5th Amendment.”[109]
State and federal courts historically have used two models to interpret the Second Amendment: the now generally accepted individual rights model, and the “collective rights” model, which holds that the right is dependent on militia membership. While having influenced a number of past court cases, the “collective rights” model has been discarded by the U.S. Supreme Court, in favor of the individual rights model.
The primary U.S. Supreme Court Second Amendment cases include Robertson v. Baldwin, (1897); United States v. Miller, (1939); District of Columbia v. Heller, (2008); and McDonald v. Chicago (2010).
In Heller and McDonald the U.S. Supreme Court supported the individual rights model, under which the Second Amendment protects the right to keep and bear arms much as the First Amendment protects the right to free speech. Under this model the militia is composed of members who supply their own arms and ammunition. This is generally recognized as the method by which U.S. militias have historically been armed.
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.[110]
Of the collective rights model that holds that the right to arms is based on militia membership, the U.S. Supreme Court, in Heller, had this to say:
A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter.[111]
United States v. Cruikshank
Main article: United States v. Cruikshank
In the Reconstruction era case of United States v. Cruikshank, 92 U.S. 542 (1875), the defendants were white men who had killed more than sixty black people in what was known as the Colfax massacre and had been charged with conspiring to prevent blacks from exercising their right to bear arms. The Court dismissed the charges, holding that the Bill of Rights restricted Congress but not private individuals. The Court concluded, “[f]or their protection in its enjoyment, the people must look to the States.”[112]
The Court stated that “[t]he Second Amendment…has no other effect than to restrict the powers of the national government….”[113] Likewise, the Court held that there was no state action in this case, and therefore the Fourteenth Amendment was not applicable:
The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another.[114]
Thus, the Court held a federal anti-Ku-Klux-Klan statute to be unconstitutional as applied in that case.[115]
Regarding the Second Amendment and the incorporation doctrine, the Supreme Court, in District of Columbia v. Heller, said in 2008:
With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the first amendment did not apply against the states and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.[116]
Regarding Heller’s assertion that Cruikshank said the First Amendment did not apply to the states, Professor David Rabban writes that the Cruikshank Court “never specified whether the First Amendment contains ‘fundamental rights’ protected by the Fourteenth Amendment against state action….”[117]
Presser v. Illinois
Main article: Presser v. Illinois
In Presser v. Illinois, 116 U.S. 252 (1886), Herman Presser headed a German-American paramilitary shooting organization and was arrested for leading a parade group of 400 men, training and drilling with military weapons with the declared intention to fight, through the streets of Chicago as a violation of Illinois law that prohibited public drilling and parading in military style without a permit from the governor.[118][119]
At his trial, Presser argued that the State of Illinois had violated his Second Amendment rights. The Supreme Court reaffirmed Cruikshank and held that the Second Amendment prevented neither the States nor Congress from barring private militias that parade with arms; such a right “cannot be claimed as a right independent of law.” This decision upheld the States’ authority to regulate the militia and that citizens had no right to create their own militias or to own weapons for semi-military purposes.[118]
Miller v. Texas
In Miller v. Texas, 153 U.S. 535 (1894), Franklin Miller was convicted and sentenced to be executed for shooting a police officer to death with an unlicensed handgun in violation of Texas law. Miller sought to have his conviction overturned, claiming his Second Amendment rights were violated and that the Bill of Rights should be applied to state law. The Supreme Court ruled that the Second Amendment did not apply to state laws such as the Texas law:[120] “As the proceedings were conducted under the ordinary forms of criminal prosecutions there certainly was no denial of due process of law.”[121]
Robertson v. Baldwin
In Robertson v. Baldwin, 165 U.S. 275 (1897), the Court stated that laws regulating concealed arms did not infringe upon the right to keep and bear arms and thus were not a violation of the Second Amendment:
The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the “Bill of Rights,” were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons.[122]
United States v. Miller
Main article: United States v. Miller
In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court rejected a Second Amendment challenge to the National Firearms Act prohibiting the interstate transportation of unregistered Title II weapons:
Jack Miller and Frank Layton “did unlawfully…transport in interstate commerce from…Claremore…Oklahoma to…Siloam Springs…Arkansas a certain firearm…a double barrel…shotgun having a barrel less than 18 inches in length…at the time of so transporting said firearm in interstate commerce…not having registered said firearm as required by Section 1132d of Title 26, United States Code, …and not having in their possession a stamp-affixed written order…as provided by Section 1132C…”[123]
In a unanimous opinion authored by Justice McReynolds, the Supreme Court stated “the objection that the Act usurps police power reserved to the States is plainly untenable.”[124] As the Court explained:
In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to any preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.[125]
Gun rights advocates cite Miller because they claim that the Court ruled that the Second Amendment protected the right to keep arms that are part of “ordinary military equipment.”[126] Gun control advocates cite Miller because they claim that the Court did not consider the question of whether the sawed-off shotgun in the case would be an applicable weapon for personal defense, instead looking solely at the weapon’s suitability for the “common defense.”[127] Law professor Andrew McClurg states, “The only certainty about Miller is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact.”[128]
District of Columbia v. Heller
Main article: District of Columbia v. Heller
Judgment
According to the syllabus prepared by the U.S. Supreme Court Reporter of Decisions,[129] in this decision the Supreme Court held:[129][130]
(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.[129][130]
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.[129][130]
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.[129][130]
(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.[129][130]
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.[129][130]
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.[129][130]
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.[129][130]
(2) Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.[129][130]
(3) The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.[130]
Other legal summaries of the court’s findings in this case are similar.[131][132][133][134][135][136]
Notes and analysis
This has been widely described as a landmark decision.[137][138][139][140][141] To clarify that its ruling does not invalidate a broad range of existing firearm laws, the majority opinion, written by Justice Scalia, said:[142]
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[143]
The majority opinion held that the amendment’s prefatory clause (referencing the “militia”) serves to clarify the operative clause (referencing “the people”), but does not limit the scope of the operative clause, because “the ‘militia’ in colonial America consisted of a subset of ‘the people’….”
Justice Stevens’ dissenting opinion, which was joined by the three other dissenters, said:
The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.[144]
This dissent called the majority opinion “strained and unpersuasive” and said that the right to possess a firearm exists only in relation to the militia and that the D.C. laws constitute permissible regulation. In the majority opinion, Justice Stevens’ interpretation of the phrase “to keep and bear arms” was referred to as a “hybrid” definition that Stevens purportedly chose in order to avoid an “incoherent” and “[g]rotesque” idiomatic meeting.[145]
Justice Breyer, in his own dissent and speaking only for himself, stated that the entire Court subscribes to the proposition that “the amendment protects an ‘individual’ right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred”.[146]
Regarding the term “well regulated”, the majority opinion said: “The adjective ‘well-regulated’ implies nothing more than the imposition of proper discipline and training.”[105] The majority opinion quoted Spooner from The Unconstitutionality of Slavery as saying that the right to bear arms was necessary for those who wanted to take a stand against slavery.[147] The majority opinion also stated that:
A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter.[148]
The dissenting justices were not persuaded by this argument.[149]
Immediate reaction to Heller was varied, with many sources giving focus to the portions of the ruling that pertained to the fact that the ruling was the first in the history of the Supreme Court to read any individual right meaning as being protected by the Second Amendment. The majority opinion, authored by Justice Antonin Scalia, gives explanation of the majority legal reasoning behind this decision.[130] The majority opinion made clear that the recent ruling did not foreclose the Court’s prior interpretations given in United States v. Cruikshank, Presser v. Illinois, and United States v. Miller though these earlier rulings were not to limit the right to keep and bear arms solely for militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia (i.e., those in common use for lawful purposes).[130]
Heller pertained to three District of Columbia ordinances involving restrictions on firearms amounting to a total ban. These three ordinances were a ban on handgun registration, a requirement that all firearms in a home be either disassembled or have a trigger lock, and licensing requirement that prohibits carrying an unlicensed firearm in the home, such as from one room to another.
Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Because Heller conceded at oral argument that the District’s licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumed that a license will satisfy his prayer for relief and did not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.[130]
McDonald v. Chicago
Main article: McDonald v. Chicago
On June 28, 2010, the Court incorporated the Second Amendment in McDonald v. Chicago. This means that the Court ruled that the Second Amendment limits State and local governments to the same extent that it limits the federal government.[4] It also remanded a case regarding a Chicago handgun prohibition. Four of the five Justices in the majority voted to do so by way of the Due Process Clause of the Fourteenth Amendment, while the fifth Justice, Clarence Thomas, voted to do so through the amendment’s Privileges or Immunities Clause.[150]
Lower federal court decisions since Heller
Since Heller, the federal courts have ruled on many Second Amendment challenges to convictions and gun control laws.[151][152] The following are post-Heller cases, divided by Circuit, along with summary notes:
First Circuit
United States v. Rene E., 583 F.3d 8 (1st Cir. 2009) – On August 31, 2009, the First Circuit affirmed the conviction of a juvenile for the illegal possession of a handgun as a juvenile, under 18 U.S.C. § 922(x)(2)(A) and 18 U.S.C. § 5032, rejecting the defendant’s argument that the federal law violated his Second Amendment rights under Heller. The court cited “the existence of a longstanding tradition of prohibiting juveniles from both receiving and possessing handguns” and observed “the federal ban on juvenile possession of handguns is part of a longstanding practice of prohibiting certain classes of individuals from possessing firearms — those whose possession poses a particular danger to the public.”[153]
Second Circuit
Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009) – On January 28, 2009, the Second Circuit ruled that the Second Amendment does not apply to state and local governments. Also, New York was ruled to have a “rational basis” for banning possession of nunchaku.[154][155] On June 29, 2010, under the name Maloney v. Rice, the Supreme Court vacated this decision and remanded this case in light of McDonald v. Chicago.[156]
Fourth Circuit
United States v. Hall, 551 F.3d 257 (4th Cir. 2009) – On August 4, 2008, the Fourth Circuit upheld as constitutional the prohibition of possession of a concealed weapon without a permit.[157]
United States v. Chester, (4th Cir. 2010) – On December 30, 2010, the Fourth Circuit vacated William Chester’s conviction for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9).[158] The court found that the district court erred in perfunctorily relying on Heller’s exception for “presumptively lawful” gun regulations made in accordance with “longstanding prohibitions”.[159]
Fifth Circuit
United States v. Dorosan, 350 Fed. Appx. 874 (5th Cir. 2009) – On June 30, 2008, the Fifth Circuit upheld 39 C.F.R. 232.1(l), which bans weapons on postal property, sustaining restrictions on guns outside the home, specifically in private vehicles parked in employee parking lots of government facilities, despite Second Amendment claims that were dismissed. The employee’s Second Amendment rights were not infringed since the employee could have instead parked across the street in a public parking lot, instead of on government property.[160][161]
United States v. Bledsoe, 334 Fed. Appx. 771 (5th Cir. 2009) – The Fifth Circuit affirmed the decision of a U.S. District Court decision in Texas, upholding 18 U.S.C. § 922(a)(6), which prohibits “straw purchases.” A “straw purchase” occurs when someone eligible to purchase a firearm buys one for an ineligible person. Additionally, the court rejected the request for a strict scrutiny standard of review.[157]
United States v. Scroggins, 551 F.3d 257 (5th Cir. 2010) – On March 4, 2010, the Fifth Circuit affirmed the conviction of Ernie Scroggins for possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The court noted that it had, prior to Heller, identified the Second Amendment as providing an individual right to bear arms, and had already, likewise, determined that restrictions on felon ownership of firearms did not violate this right. Moreover, it observed that Heller did not affect the longstanding prohibition of firearm possession by felons.
Sixth Circuit
Hamblen v. United States, 2009 FED App. 439P (6th Cir. 2009) – The Sixth Circuit affirmed a denial of the petitioner’s motion to vacate convictions for possession of machine guns and possession of unregistered firearms, in violation of 18 U.S.C. § 922(o)(1) and 26 U.S.C. § 5861(d), respectively. The court observed that Heller explicitly excluded from Second Amendment protection any weapons “not typically possessed by law-abiding citizens for lawful purposes.” The court rejected the petitioner’s argument that the federal restrictions were nevertheless unconstitutional, stating that, “whatever the individual right to keep and bear arms might entail, it does not authorize an unlicensed individual to possess unregistered machine guns for personal use.”
Seventh Circuit
United States v. Skoien, 587 F.3d 803 (7th Cir. 2009) – Steven Skoien, a Wisconsin man, convicted of two misdemeanor domestic violence convictions appealed his conviction based on the argument that the prohibition violated the individual rights to bear arms, as described in Heller. After initial favorable rulings in lower court based on a standard of intermediate scrutiny,[162] on July 13, 2010, the Seventh Circuit, sitting en banc, ruled 10-1 against Skoien and reinstated his conviction for a gun violation citing the strong relation between the law in question and the government objective.[162] Skoien was convicted and sentenced to two years in prison for the gun violation and likely will be subject to a lifetime ban on gun ownership.[163][164] Pro-gun editorials have sharply criticized this ruling as going too far with the enactment of a lifetime gun ban[165] while editorials favoring gun regulations have praised the ruling as “a bucket of cold water thrown on the ‘gun rights’ celebration”.[166]
Eighth Circuit
United States v. Perkins, 526 F.3d 1107 (8th Cir. 2008) – On September 23, 2008, the Eighth Circuit upheld 26 U.S.C. § 5841, which prohibits the receiving or possession of an unregistered firearm.[157]
Ninth Circuit
United States v. Heredia-Mendoza (9th Cir. 2008) – On November 18, 2008, the Ninth Circuit upheld 18 U.S.C. § 924(c)(1)(A), which mandates stricter sentencing for use of a firearm during crimes of violence or drug trafficking. The court rejected the defendant’s claim of unconstitutionality because the law criminalized possession of gun for self defense in the home.[157]
Nordyke v. King – On July 29, 2009, the Ninth Circuit vacated an April 20 panel decision and reheard the case en banc on September 24, 2009.[167][168][169][170] The April 20 decision had held that the Second Amendment applies to state and local governments, while also upholding an Alameda County, California ordinance that makes it a crime to bring a gun or ammunition on to, or possess either while on, county property.[171][172] The en banc panel remanded the case to the three-judge panel. On May 2, 2011, that panel ruled that intermediate scrutiny was the correct standard by which to judge the ordinance’s constitutionality and remanded the case to the United States District Court for the Northern District of California.[173] On November 28, 2011, the Ninth Circuit vacated the panel’s May 2 decision and agreed to rehear the case en banc.[174][175]
Tenth Circuit
United States v. Artez, 290 Fed. Appx. 203 (10th Cir. 2008) – On August 29, 2008, the Tenth Circuit upheld the federal ban on possession of unregistered sawed-off shotguns.[151]
Eleventh Circuit
United States v. Boffil-Rivera (11th Cir. 2008) – On August 12, 2008, the United States District Court for the Southern District of Florida ruled that prohibiting firearms possession by persons illegally or unlawfully in the United States, under 18 U.S.C. § 922(g)(5), was constitutional. The court stated that “Heller casts no shadow on the statute on a facial challenge”.[151] The Eleventh Circuit later affirmed the jury’s verdict.[176
THE SUPREME LAW OF THE LAND THE CONSTITUTION OF THE FREE PEOPLE OF THE UNITED STATES OF AMERICA
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THEIRS SOMETHING IN THE AIR – THE SECOND AMENDMENT( OF THE SUPREME LAW OF THE LAND BILL OF RIGHTS OF THE CONSTITUION OF THE FREE PEOPLE OF THE UNITED STATES OF AMERICA )
Posted on December 10, 2011 by wfinley11
THE FIRST RULE OF LAW IS FREEDOM, THE SECOND RULE OF LAW IS RULE OF LAW ITSELF!
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Second Amendment to the United States Constitution
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The Second Amendment (Amendment II) to the United States Constitution is the part of the United States Bill of Rights that protects the right of the people to keep and bear arms. It was adopted on December 15, 1791, along with the rest of the Bill of Rights.
In 2008 and 2010, the Supreme Court issued two Second Amendment decisions. In District of Columbia v. Heller (2008), the Court ruled that the Second Amendment protects an individual’s right to possess a firearm, unconnected to service in a militia[1][2] and to use that arm for traditionally lawful purposes, such as self-defense within the home. Additionally, the Court enumerated several longstanding prohibitions and restrictions on firearms possession that it found were consistent with the Second Amendment.[3] In McDonald v. Chicago (2010), the Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government.[4]
Contents
[hide]
1 Text
2 Pre-Constitution background
2.1 Influence of the English Bill of Rights of 1689
2.2 Experience in America prior to the U.S. Constitution
3 Drafting and adoption of the Constitution
4 Ratification debates
5 Conflict and compromise in Congress produce the Bill of Rights
6 Militia in the decades following ratification
7 Scholarly commentary
7.1 Early commentary
7.2 Late 20th century commentary
7.3 Meaning of “well regulated militia”
7.4 Meaning of “the right of the People”
7.5 Meaning of “keep and bear arms”
8 Supreme Court cases
8.1 United States v. Cruikshank
8.2 Presser v. Illinois
8.3 Miller v. Texas
8.4 Robertson v. Baldwin
8.5 United States v. Miller
8.6 District of Columbia v. Heller
8.6.1 Judgment
8.6.2 Notes and analysis
8.7 McDonald v. Chicago
9 Lower federal court decisions since Heller
10 See also
11 Notes and Citations
12 References
12.1 Books
12.2 Periodicals
12.3 Other publications
13 External links
Text
There are several versions of the text of the Second Amendment, each with slight capitalization and punctuation differences, found in the official documents surrounding the adoption of the Bill of Rights.[5] One version was passed by the Congress,[6] while another is found in the copies distributed to the States[7] and then ratified by them.
As passed by the Congress:
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.
As ratified by the States and authenticated by Thomas Jefferson, Secretary of State:
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.[8]
The original hand-written copy of the Bill of Rights, approved by the House and Senate, was prepared by scribe William Lambert and resides in the National Archives.
Pre-Constitution background
This section needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (September 2010)
Influence of the English Bill of Rights of 1689
Main article: Bill of Rights 1689
The right to have arms in English history is believed to have been regarded as a long-established natural right in English law, auxiliary to the natural and legally defensible rights to life.[9] The English Bill of Rights 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 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 its subjects, after James II had attempted to disarm many Protestants, and had argued with Parliament over his desire to maintain a standing (or permanent) army.[10] 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.[11] 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.[12]
The text of the English Bill of Rights of 1689 includes language protecting the right of Protestants against disarmament by the Crown. This document states: “That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.”[13] It also contained text that aspired to bind future Parliaments, though under English Constitutional Law no Parliament can bind any later Parliament.[14] Nevertheless, the English Bill of Rights remains an important constitutional document, more for enumerating the rights of Parliament over the monarchy than for its clause concerning a right to have arms.
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 evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome (list of grievances including) … by causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law, (Recital regarding the change of monarch) … thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors 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 Defence suitable to their Conditions and as allowed by Law.[13]
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.[15][16]
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 was written to preserve the hunting rights of the landed aristocracy and is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments.[17] 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 posessed [sic].”[18] 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.[19] 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 natural right of the subject that was “also declared” in the English Bill of Rights.[20][21]
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 I 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.[22]
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 recently decided). Some in the U.S. 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.[23] Without a regular army and police force (which in England was not established until 1829), 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.[24]
Experience in America prior to the U.S. Constitution
In no particular order, early American settlers 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:[25][26][27][28][29][30][31][32]
deterring undemocratic government;
repelling invasion;
suppressing insurrection;
facilitating a natural right of self-defense;
participating in law enforcement;
enabling the people to organize a militia system.
Which of these considerations they thought were most important, which of these considerations they were most alarmed about, and the extent to which each of these considerations 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”.[33]
Ideals that helped to inspire the Second Amendment in part are symbolized by the minutemen.[34]
During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, which included a number who were loyal to British imperial rule. As defiance and opposition to the 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, these Patriots established independent colonial legislatures to create their own militias that excluded the Loyalists and then sought out to stock up independent armories for their militias. In response to this arms build up, the British Parliament established an embargo on firearms, parts and ammunition on the American colonies.[35]
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.[36] 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.[36] Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars’ interpretation of Blackstone.[37]
The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 Boston objecting to the British army 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.[36]
The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with 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.[38] They considered it to be bad that there was no effective federal military crackdown to an armed tax rebellion in western Massachusetts known as Shays’ Rebellion.[39] 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 Philadelphia Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.[40][41] 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.[42]
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.”[43] 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.[44]
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”.[45] 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,[46] as Alexander Hamilton explained in 1788:
[I]f 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.[46][47]
Some scholars have said that it is wrong to read a right of armed insurrection in 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.[48][49] Other scholars, such as Glenn Reynolds, contend that the framers did believe in an individual right to armed insurrection. The latter scholars cite examples, such as the Declaration of Independence (describing in 1776 “the Right of the People to…institute new Government”) and the New Hampshire Constitution (stating in 1784 that “nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind”).[50]
There was an ongoing debate in the 1780s 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 ongoing revolution in France.[51] A widespread fear, during the debates on the ratification of 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,[52] or prohibiting citizens from arming themselves.[36] 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 Article 1, Section 8 of the US Constitution, the individual right to arm was retained and strengthened by the Militia Act of 1792 and the similar act of 1795.[53][54]
Drafting and adoption of the Constitution
Further information: Deliberations
James Madison (left) is known as the “Father of the Constitution” and “Father of the Bill of Rights”[55] while George Mason (right) with Madison is also known as the “Father of the Bill of Rights”[56]
Patrick Henry (left) believed that a citizenry trained in arms was the only sure guarantor of liberty[57] while Alexander Hamilton (right) wrote in Federalist No. 29 that “little more can be reasonably aimed at, with respect to the people at large, than to have them properly armed…”[47]
Struggling under the inefficiencies of the Articles of Confederation, delegates from Virginia and Maryland assembled at the Mount Vernon Conference in March 1785 to fashion a remedy. 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:[58][59]
interstate arbitration processes to handle quarrels between states;
sufficiently trained and armed intrastate security forces to suppress insurrection;
a national militia to repel foreign invaders.
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 that congress the power to raise a standing army.[60] Article 1, Section 8 of the Constitution codified these changes by allowing the Congress to do the following:
provide for the common defense and general welfare of the United States;
raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
provide and maintain a navy;
make rules for the government and regulation of the land and naval forces;
provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
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.
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.[61] Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.[62][63] Anti-federalists, however, 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. Nevertheless, upon realizing there was insufficient support to ratify the Constitution without a bill of rights, Federalists conceded, promising that upon enactment they would support amending the Constitution to add a bill of rights. This compromise persuaded enough Anti-federalists to vote for the Constitution, allowing for ratification.[64] The Constitution was declared ratified June 21, 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.[65] James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June 8, 1789, and was adopted on December 15, 1791.
Ratification debates
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.[66][67]
In contrast, Article I, Section 8 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.[68]
A foundation of American political thought during the Revolutionary period was the well justified concern 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?” 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.
George Mason argued the importance of the militia and right to bear arms by reminding his compatriots of England’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.
The framers thought the personal right to bear arms to be a paramount right by which other rights could be protected. Therefore, 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.
Patrick Henry, also in the Virginia convention, eloquently argued 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.[69]
While both Monroe and Adams supported ratification of the Constitution, its most influential framer was James Madison. In Federalist No. 46, he confidently contrasted the federal government of the United States to the European kingdoms, which he contemptuously described as “afraid to trust the people with arms.” He assured his fellow citizens that they need never fear their government because of “the advantage of being armed….”
By January of 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several specific 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 amendments to assure ratification. Samuel Adams proposed that the Constitution:
Be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defence of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of their grievances: or to subject the people to unreasonable searches and seizures.[70]
Conflict and compromise in Congress produce the Bill of Rights
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.[71]
On July 21, Madison again raised the issue of his Bill and proposed a select committee be created to report on it. The House voted in favor of Madison’s motion,[72] 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.[73] 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.[74]
The Second Amendment was debated and modified during sessions of the House on in late August of 1789. These debates revolved primarily around risk of “mal-administration of the government” using the “religiously scrupulous” clause to destroy the militia as Great Britain had attempted to destroy the 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. When the Amendment was transcribed, the semicolon in the religious exemption portion was changed to a comma by the Senate scribe:
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.[75]
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.”[76] 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.[77]
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.[78] The Senate then slightly modified the language and voted to return the Bill of Rights to the House. The final version passed by the Senate was:
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.
The House voted on September 21, 1789 to accept the changes made by the Senate, but the amendment as finally entered into the House journal contained the additional words “necessary to”:
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.[79]
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.
Militia in the decades following ratification
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.[80] 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 clubs as their sole defensive weapon.[80] 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.[80]
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.[81]
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.”[81] 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 65 percent.[82] 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 Section 2 of the Act, including exemptions for: clergy, conscientious objectors, teachers, students, and jurors. And 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.[83] None are mentioned in the legislation.[81]
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.[84] 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.[85] Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.[85] In October, President George Washington and General Harry Lee marched on the 7,000 rebels 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 President John Adams had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production.[85] 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.[86] 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 White House being burned down in 1814.[83]
Scholarly commentary
Early commentary
The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker. He annotated a five-volume edition of Sir William Blackstone’s Commentaries on the Laws of England, a critical legal reference for early American attorneys published in 1803.[87]
In footnotes 40 and 41 of the Commentaries, Tucker stated that the right to bear arms under the Second Amendment was not subject to the restrictions that were part of English law: “The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government” and “whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England.” Blackstone himself also commented on English game laws, Vol. II, p. 412, “that the prevention of popular insurrections and resistance to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws.”[87] Blackstone discussed the right of self-defense in a separate section of his treatise on the common law of crimes. Tucker’s annotations for that latter section did not mention the Second Amendment but cited the standard works of English jurists such as Hawkins.[88]
Further, Tucker criticized the English Bill of Rights for limiting gun ownership to the very wealthy, leaving the populace effectively disarmed, and expressed the hope that Americans “never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.”[87]
Tucker’s commentary was soon followed, in 1825, by that of William Rawle in his landmark text, A View of the Constitution of the United States of America. Like Tucker, Rawle condemned England’s “arbitrary code for the preservation of game,” portraying that country as one that “boasts so much of its freedom,” yet provides a right to “protestant subjects only” that it “cautiously describ[es] to be that of bearing arms for their defence” and reserves for “[a] very small proportion of the people[.]“[89] In contrast, Rawle characterizes the second clause of the Second Amendment, which he calls the corollary clause, as a general prohibition against such capricious abuse of government power, declaring bluntly:
No clause could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[90]
Rawle, long before the concept of incorporation was formally recognized by the courts, or Congress drafted the Fourteenth Amendment, contended that citizens could appeal to the Second Amendment should either the state or federal government attempt to disarm them. He did warn, however, that “this right [to bear arms] ought not…be abused to the disturbance of the public peace” and observed, paraphrasing Coke, that “[a]n assemblage of persons with arms, for unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace.”[89]
The orthodox view of the meaning of the Second Amendment was articulated by Joseph Story in his influential Commentaries on the Constitution. In his view the meaning of the Amendment was clear:
The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.[91]
In this quote, Story describes a militia as the “natural defence of a free country,” both against foreign foes, domestic revolts and usurpation by rulers. The book regards the militia as a “moral check” against both usurpation and the arbitrary use of power, while expressing distress at the growing indifference of the American people to maintaining such an organized militia, which could lead to the undermining of the protection of the Second Amendment.[91]
Abolitionist Lysander Spooner, commenting on bills of rights, stated that the object of all bills of rights is to assert the rights of individuals against the government and that the Second Amendment right to keep and bear arms was in support of the right to resist government oppression, as the only security against the tyranny of government lies in forcible resistance to injustice, for injustice will certainly be executed, unless forcibly resisted.[92] Spooner’s theory provided the intellectual foundation for John Brown and other radical abolitionists who believed that arming slaves was not only morally justified, but entirely consistent with the Second Amendment.[93] An express connection between this right and the Second Amendment was drawn by Lysander Spooner who commented that a “right of resistance” is protected by both the right to trial by jury and the Second Amendment.[94]
In the Congress, the debate on the Fourteenth Amendment concentrated on what the Southern States were doing to harm the newly freed slaves. One particular concern was the disarming of former slaves.[95]
Late 20th century commentary
In the latter half of the 20th century there was considerable debate over whether the 2nd Amendment protected an individual right or a collective right.[96] The debate centered on whether the initial clause “A well regulated militia being necessary to the security of a free State” declared the Amendment’s only purpose, or if it merely announced a purpose to introduce the main or operative clause “the right of the People to keep and bear arms shall not be infringed”.
Three basic competing models were offered to interpret the Second Amendment:[97]
The first, known as the “states’ rights” or “collective rights” model, was that the Second Amendment did not apply to individuals; rather, it recognized the right of a state to arm its militia.
The second, known as the “sophisticated collective rights model”, held that the Second Amendment recognized some limited individual right. However, this individual right could only be exercised by members of a functioning, organized state militia while actively participating in the organized militia’s activities.
The third, known as the “standard model”, was that the Second Amendment recognized the personal right of individuals to keep and bear arms.
Under both of the collective rights models, the opening phrase was considered essential as a pre-condition for the main clause.[98] These interpretations held that this was a grammar structure that was common during that era,[99] and that this grammar dictated that the Second Amendment protected a collective right to firearms to the extent necessary for militia duty.[100]
Under the standard model, the opening phrase was believed to be prefatory or amplifying to the operative clause. The opening phrase was meant as a non-exclusive example—one of many reasons for the amendment [20] This interpretation was consistent with the position that the Second Amendment protects a modified individual right.[101]
The question of a collective rights versus an individual right was progressively resolved with the 2001 Fifth Circuit ruling in United States v. Emerson, in the 2008 Supreme Court ruling in District of Columbia v. Heller, and in the 2010 Supreme Court ruling in McDonald v. Chicago. All of those rulings upheld the individual rights model when interpreting the Second Amendment. In Heller, the Supreme Court upheld the Second Amendment as protecting an individual right.[102] Although the Second Amendment is the only Constitutional amendment with a prefatory clause, such constructions were widely used elsewhere.[103]
Meaning of “well regulated militia”
The term “regulated” means “disciplined” or “trained”.[104] 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.”[105] 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.[47]
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”.[47]
Meaning of “the right of the People”
Justice Antonin Scalia in writing for the majority in District of Columbia v. Heller:
Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”— those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people”.[106]
Justice John Paul Stevens countered in his dissenting opinion:
When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated. But the Court itself reads the Second Amendment to protect a “subset” significantly narrower than the class of persons protected by the First and Fourth Amendments; when it finally drills down on the substantive meaning of the Second Amendment, the Court limits the protected class to “law-abiding, responsible citizens”.[107]
Meaning of “keep and bear arms”
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 District of Columbia v. Heller the majority pointed out that:
Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.” At the time of the founding, as now, to “bear” meant to “carry.” In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens “bear arms in defense of themselves and the state” again, in the most analogous linguistic context—that “bear arms” was not limited to the carrying of arms in a militia. The phrase “bear Arms” also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: “to serve as a soldier, do military service, fight” or “to wage war.” But it unequivocally bore that idiomatic meaning only when followed by the preposition “against,”. Every example given by petitioners’ amici for the idiomatic meaning of “bear arms” from the founding period either includes the preposition “against” or is not clearly idiomatic. In any event, the meaning of “bear arms” that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.”[106]
In a dissenting opinion, joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer, Justice John Paul Stevens said:
The Amendment’s text does justify a different limitation: the “right to keep and bear arms” protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves”.[107]
Supreme Court cases
See also: Firearm case law in the United States
For almost a century following the ratification of the Bill of Rights, the intended meaning and application of the Second Amendment drew less interest than it does in modern times.[108] The vast majority of regulation was done by states, and the first case law on weapons regulation dealt with state interpretations of the Second Amendment. The notable exception to this general rule was Houston v. Moore, 18 U.S. 1 (1820), where the Supreme Court mentioned the Second Amendment in an aside, but Justice Story “misidentified” it as the “5th Amendment.”[109]
State and federal courts historically have used two models to interpret the Second Amendment: the now generally accepted individual rights model, and the “collective rights” model, which holds that the right is dependent on militia membership. While having influenced a number of past court cases, the “collective rights” model has been discarded by the U.S. Supreme Court, in favor of the individual rights model.
The primary U.S. Supreme Court Second Amendment cases include Robertson v. Baldwin, (1897); United States v. Miller, (1939); District of Columbia v. Heller, (2008); and McDonald v. Chicago (2010).
In Heller and McDonald the U.S. Supreme Court supported the individual rights model, under which the Second Amendment protects the right to keep and bear arms much as the First Amendment protects the right to free speech. Under this model the militia is composed of members who supply their own arms and ammunition. This is generally recognized as the method by which U.S. militias have historically been armed.
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.[110]
Of the collective rights model that holds that the right to arms is based on militia membership, the U.S. Supreme Court, in Heller, had this to say:
A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter.[111]
United States v. Cruikshank
Main article: United States v. Cruikshank
In the Reconstruction era case of United States v. Cruikshank, 92 U.S. 542 (1875), the defendants were white men who had killed more than sixty black people in what was known as the Colfax massacre and had been charged with conspiring to prevent blacks from exercising their right to bear arms. The Court dismissed the charges, holding that the Bill of Rights restricted Congress but not private individuals. The Court concluded, “[f]or their protection in its enjoyment, the people must look to the States.”[112]
The Court stated that “[t]he Second Amendment…has no other effect than to restrict the powers of the national government….”[113] Likewise, the Court held that there was no state action in this case, and therefore the Fourteenth Amendment was not applicable:
The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another.[114]
Thus, the Court held a federal anti-Ku-Klux-Klan statute to be unconstitutional as applied in that case.[115]
Regarding the Second Amendment and the incorporation doctrine, the Supreme Court, in District of Columbia v. Heller, said in 2008:
With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the first amendment did not apply against the states and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.[116]
Regarding Heller’s assertion that Cruikshank said the First Amendment did not apply to the states, Professor David Rabban writes that the Cruikshank Court “never specified whether the First Amendment contains ‘fundamental rights’ protected by the Fourteenth Amendment against state action….”[117]
Presser v. Illinois
Main article: Presser v. Illinois
In Presser v. Illinois, 116 U.S. 252 (1886), Herman Presser headed a German-American paramilitary shooting organization and was arrested for leading a parade group of 400 men, training and drilling with military weapons with the declared intention to fight, through the streets of Chicago as a violation of Illinois law that prohibited public drilling and parading in military style without a permit from the governor.[118][119]
At his trial, Presser argued that the State of Illinois had violated his Second Amendment rights. The Supreme Court reaffirmed Cruikshank and held that the Second Amendment prevented neither the States nor Congress from barring private militias that parade with arms; such a right “cannot be claimed as a right independent of law.” This decision upheld the States’ authority to regulate the militia and that citizens had no right to create their own militias or to own weapons for semi-military purposes.[118]
Miller v. Texas
In Miller v. Texas, 153 U.S. 535 (1894), Franklin Miller was convicted and sentenced to be executed for shooting a police officer to death with an unlicensed handgun in violation of Texas law. Miller sought to have his conviction overturned, claiming his Second Amendment rights were violated and that the Bill of Rights should be applied to state law. The Supreme Court ruled that the Second Amendment did not apply to state laws such as the Texas law:[120] “As the proceedings were conducted under the ordinary forms of criminal prosecutions there certainly was no denial of due process of law.”[121]
Robertson v. Baldwin
In Robertson v. Baldwin, 165 U.S. 275 (1897), the Court stated that laws regulating concealed arms did not infringe upon the right to keep and bear arms and thus were not a violation of the Second Amendment:
The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the “Bill of Rights,” were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons.[122]
United States v. Miller
Main article: United States v. Miller
In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court rejected a Second Amendment challenge to the National Firearms Act prohibiting the interstate transportation of unregistered Title II weapons:
Jack Miller and Frank Layton “did unlawfully…transport in interstate commerce from…Claremore…Oklahoma to…Siloam Springs…Arkansas a certain firearm…a double barrel…shotgun having a barrel less than 18 inches in length…at the time of so transporting said firearm in interstate commerce…not having registered said firearm as required by Section 1132d of Title 26, United States Code, …and not having in their possession a stamp-affixed written order…as provided by Section 1132C…”[123]
In a unanimous opinion authored by Justice McReynolds, the Supreme Court stated “the objection that the Act usurps police power reserved to the States is plainly untenable.”[124] As the Court explained:
In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to any preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.[125]
Gun rights advocates cite Miller because they claim that the Court ruled that the Second Amendment protected the right to keep arms that are part of “ordinary military equipment.”[126] Gun control advocates cite Miller because they claim that the Court did not consider the question of whether the sawed-off shotgun in the case would be an applicable weapon for personal defense, instead looking solely at the weapon’s suitability for the “common defense.”[127] Law professor Andrew McClurg states, “The only certainty about Miller is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact.”[128]
District of Columbia v. Heller
Main article: District of Columbia v. Heller
Judgment
According to the syllabus prepared by the U.S. Supreme Court Reporter of Decisions,[129] in this decision the Supreme Court held:[129][130]
(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.[129][130]
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.[129][130]
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.[129][130]
(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.[129][130]
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.[129][130]
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.[129][130]
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.[129][130]
(2) Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.[129][130]
(3) The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.[130]
Other legal summaries of the court’s findings in this case are similar.[131][132][133][134][135][136]
Notes and analysis
This has been widely described as a landmark decision.[137][138][139][140][141] To clarify that its ruling does not invalidate a broad range of existing firearm laws, the majority opinion, written by Justice Scalia, said:[142]
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[143]
The majority opinion held that the amendment’s prefatory clause (referencing the “militia”) serves to clarify the operative clause (referencing “the people”), but does not limit the scope of the operative clause, because “the ‘militia’ in colonial America consisted of a subset of ‘the people’….”
Justice Stevens’ dissenting opinion, which was joined by the three other dissenters, said:
The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.[144]
This dissent called the majority opinion “strained and unpersuasive” and said that the right to possess a firearm exists only in relation to the militia and that the D.C. laws constitute permissible regulation. In the majority opinion, Justice Stevens’ interpretation of the phrase “to keep and bear arms” was referred to as a “hybrid” definition that Stevens purportedly chose in order to avoid an “incoherent” and “[g]rotesque” idiomatic meeting.[145]
Justice Breyer, in his own dissent and speaking only for himself, stated that the entire Court subscribes to the proposition that “the amendment protects an ‘individual’ right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred”.[146]
Regarding the term “well regulated”, the majority opinion said: “The adjective ‘well-regulated’ implies nothing more than the imposition of proper discipline and training.”[105] The majority opinion quoted Spooner from The Unconstitutionality of Slavery as saying that the right to bear arms was necessary for those who wanted to take a stand against slavery.[147] The majority opinion also stated that:
A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter.[148]
The dissenting justices were not persuaded by this argument.[149]
Immediate reaction to Heller was varied, with many sources giving focus to the portions of the ruling that pertained to the fact that the ruling was the first in the history of the Supreme Court to read any individual right meaning as being protected by the Second Amendment. The majority opinion, authored by Justice Antonin Scalia, gives explanation of the majority legal reasoning behind this decision.[130] The majority opinion made clear that the recent ruling did not foreclose the Court’s prior interpretations given in United States v. Cruikshank, Presser v. Illinois, and United States v. Miller though these earlier rulings were not to limit the right to keep and bear arms solely for militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia (i.e., those in common use for lawful purposes).[130]
Heller pertained to three District of Columbia ordinances involving restrictions on firearms amounting to a total ban. These three ordinances were a ban on handgun registration, a requirement that all firearms in a home be either disassembled or have a trigger lock, and licensing requirement that prohibits carrying an unlicensed firearm in the home, such as from one room to another.
Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Because Heller conceded at oral argument that the District’s licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumed that a license will satisfy his prayer for relief and did not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.[130]
McDonald v. Chicago
Main article: McDonald v. Chicago
On June 28, 2010, the Court incorporated the Second Amendment in McDonald v. Chicago. This means that the Court ruled that the Second Amendment limits State and local governments to the same extent that it limits the federal government.[4] It also remanded a case regarding a Chicago handgun prohibition. Four of the five Justices in the majority voted to do so by way of the Due Process Clause of the Fourteenth Amendment, while the fifth Justice, Clarence Thomas, voted to do so through the amendment’s Privileges or Immunities Clause.[150]
Lower federal court decisions since Heller
Since Heller, the federal courts have ruled on many Second Amendment challenges to convictions and gun control laws.[151][152] The following are post-Heller cases, divided by Circuit, along with summary notes:
First Circuit
United States v. Rene E., 583 F.3d 8 (1st Cir. 2009) – On August 31, 2009, the First Circuit affirmed the conviction of a juvenile for the illegal possession of a handgun as a juvenile, under 18 U.S.C. § 922(x)(2)(A) and 18 U.S.C. § 5032, rejecting the defendant’s argument that the federal law violated his Second Amendment rights under Heller. The court cited “the existence of a longstanding tradition of prohibiting juveniles from both receiving and possessing handguns” and observed “the federal ban on juvenile possession of handguns is part of a longstanding practice of prohibiting certain classes of individuals from possessing firearms — those whose possession poses a particular danger to the public.”[153]
Second Circuit
Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009) – On January 28, 2009, the Second Circuit ruled that the Second Amendment does not apply to state and local governments. Also, New York was ruled to have a “rational basis” for banning possession of nunchaku.[154][155] On June 29, 2010, under the name Maloney v. Rice, the Supreme Court vacated this decision and remanded this case in light of McDonald v. Chicago.[156]
Fourth Circuit
United States v. Hall, 551 F.3d 257 (4th Cir. 2009) – On August 4, 2008, the Fourth Circuit upheld as constitutional the prohibition of possession of a concealed weapon without a permit.[157]
United States v. Chester, (4th Cir. 2010) – On December 30, 2010, the Fourth Circuit vacated William Chester’s conviction for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9).[158] The court found that the district court erred in perfunctorily relying on Heller’s exception for “presumptively lawful” gun regulations made in accordance with “longstanding prohibitions”.[159]
Fifth Circuit
United States v. Dorosan, 350 Fed. Appx. 874 (5th Cir. 2009) – On June 30, 2008, the Fifth Circuit upheld 39 C.F.R. 232.1(l), which bans weapons on postal property, sustaining restrictions on guns outside the home, specifically in private vehicles parked in employee parking lots of government facilities, despite Second Amendment claims that were dismissed. The employee’s Second Amendment rights were not infringed since the employee could have instead parked across the street in a public parking lot, instead of on government property.[160][161]
United States v. Bledsoe, 334 Fed. Appx. 771 (5th Cir. 2009) – The Fifth Circuit affirmed the decision of a U.S. District Court decision in Texas, upholding 18 U.S.C. § 922(a)(6), which prohibits “straw purchases.” A “straw purchase” occurs when someone eligible to purchase a firearm buys one for an ineligible person. Additionally, the court rejected the request for a strict scrutiny standard of review.[157]
United States v. Scroggins, 551 F.3d 257 (5th Cir. 2010) – On March 4, 2010, the Fifth Circuit affirmed the conviction of Ernie Scroggins for possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The court noted that it had, prior to Heller, identified the Second Amendment as providing an individual right to bear arms, and had already, likewise, determined that restrictions on felon ownership of firearms did not violate this right. Moreover, it observed that Heller did not affect the longstanding prohibition of firearm possession by felons.
Sixth Circuit
Hamblen v. United States, 2009 FED App. 439P (6th Cir. 2009) – The Sixth Circuit affirmed a denial of the petitioner’s motion to vacate convictions for possession of machine guns and possession of unregistered firearms, in violation of 18 U.S.C. § 922(o)(1) and 26 U.S.C. § 5861(d), respectively. The court observed that Heller explicitly excluded from Second Amendment protection any weapons “not typically possessed by law-abiding citizens for lawful purposes.” The court rejected the petitioner’s argument that the federal restrictions were nevertheless unconstitutional, stating that, “whatever the individual right to keep and bear arms might entail, it does not authorize an unlicensed individual to possess unregistered machine guns for personal use.”
Seventh Circuit
United States v. Skoien, 587 F.3d 803 (7th Cir. 2009) – Steven Skoien, a Wisconsin man, convicted of two misdemeanor domestic violence convictions appealed his conviction based on the argument that the prohibition violated the individual rights to bear arms, as described in Heller. After initial favorable rulings in lower court based on a standard of intermediate scrutiny,[162] on July 13, 2010, the Seventh Circuit, sitting en banc, ruled 10-1 against Skoien and reinstated his conviction for a gun violation citing the strong relation between the law in question and the government objective.[162] Skoien was convicted and sentenced to two years in prison for the gun violation and likely will be subject to a lifetime ban on gun ownership.[163][164] Pro-gun editorials have sharply criticized this ruling as going too far with the enactment of a lifetime gun ban[165] while editorials favoring gun regulations have praised the ruling as “a bucket of cold water thrown on the ‘gun rights’ celebration”.[166]
Eighth Circuit
United States v. Perkins, 526 F.3d 1107 (8th Cir. 2008) – On September 23, 2008, the Eighth Circuit upheld 26 U.S.C. § 5841, which prohibits the receiving or possession of an unregistered firearm.[157]
Ninth Circuit
United States v. Heredia-Mendoza (9th Cir. 2008) – On November 18, 2008, the Ninth Circuit upheld 18 U.S.C. § 924(c)(1)(A), which mandates stricter sentencing for use of a firearm during crimes of violence or drug trafficking. The court rejected the defendant’s claim of unconstitutionality because the law criminalized possession of gun for self defense in the home.[157]
Nordyke v. King – On July 29, 2009, the Ninth Circuit vacated an April 20 panel decision and reheard the case en banc on September 24, 2009.[167][168][169][170] The April 20 decision had held that the Second Amendment applies to state and local governments, while also upholding an Alameda County, California ordinance that makes it a crime to bring a gun or ammunition on to, or possess either while on, county property.[171][172] The en banc panel remanded the case to the three-judge panel. On May 2, 2011, that panel ruled that intermediate scrutiny was the correct standard by which to judge the ordinance’s constitutionality and remanded the case to the United States District Court for the Northern District of California.[173] On November 28, 2011, the Ninth Circuit vacated the panel’s May 2 decision and agreed to rehear the case en banc.[174][175]
Tenth Circuit
United States v. Artez, 290 Fed. Appx. 203 (10th Cir. 2008) – On August 29, 2008, the Tenth Circuit upheld the federal ban on possession of unregistered sawed-off shotguns.[151]
Eleventh Circuit
United States v. Boffil-Rivera (11th Cir. 2008) – On August 12, 2008, the United States District Court for the Southern District of Florida ruled that prohibiting firearms possession by persons illegally or unlawfully in the United States, under 18 U.S.C. § 922(g)(5), was constitutional. The court stated that “Heller casts no shadow on the statute on a facial challenge”.[151] The Eleventh Circuit later affirmed the jury’s verdict.[176
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