c. Meaning of the Operative Clause. Putting all of these
textual elements together, we find that they guarantee the individual right to
possess and carry weapons in case of confrontation. This meaning is strongly
confirmed by the historical background of the Second Amendment. We look to this
because it has always been widely understood that the Second Amendment, like
the First and Fourth Amendments, codified a pre-existing right. The very text
of the Second Amendment implicitly recognizes the pre-existence of the right
and declares only that it "shall not be infringed." As we said in
United States v. Cruikshank, 92 U. S. 542, 553 (1876), "[t]his is not a
right granted by the Constitution. Neither is it in any manner dependent upon
that instrument for its existence. The Second amendment declares that it shall
not be infringed ... ."16
Between the
Restoration and the Glorious Revolution, the Stuart Kings Charles II and James
II succeeded in using select militias loyal to them to suppress political
dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and
Bear Arms 31-53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of
Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for
example, the Catholic James II had ordered general disarmaments of regions home
to his Protestant enemies. See Malcolm 103-106. These experiences caused
Englishmen to be extremely wary of concentrated military forces run by the
state and to be jealous of their arms. They accordingly obtained an assurance
from William and Mary, in the Declaration of Right (which was codified as the
English Bill of Rights), that Protestants would never be disarmed: "That
the subjects which are Protestants may have arms for their defense suitable to
their conditions and as allowed by law." 1 W. & M., c. 2, §7, in 3
Eng. Stat. at Large 441 (1689). This right has long been understood to be the
predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights and
What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the
United States of America 122 (1825) (hereinafter Rawle). It was clearly an
individual right, having nothing whatever to do with service in a militia. To
be sure, it was an individual right not available to the whole population,
given that it was restricted to Protestants, and like all written English
rights it was held only against the Crown, not Parliament. See Schwoerer, To
Hold and Bear Arms: The English Perspective, in Bogus 207, 218; but see 3 J.
Story, Commentaries on the Constitution of the United States §1858 (1833)
(hereinafter Story) (contending that the "right to bear arms" is a
"limitatio[n] upon the power of parliament" as well). But it was secured
to them as individuals, according to "libertarian political
principles," not as members of a fighting force. Schwoerer, Declaration of
Rights, at 283; see also id., at 78; G. Jellinek, The Declaration of the Rights
of Man and of Citizens 49, and n. 7 (1901) (reprinted 1979).
By the time of
the founding, the right to have arms had become fundamental for English
subjects. See Malcolm 122-134. Blackstone, whose works, we have said,
"constituted the preeminent authority on English law for the founding
generation," Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms
provision of the Bill of Rights as one of the fundamental rights of Englishmen.
See 1 Blackstone 136, 139-140 (1765). His description of it cannot possibly be
thought to tie it to militia or military service. It was, he said, "the
natural right of resistance and self-preservation," id., at 139, and
"the right of having and using arms for self-preservation and
defence," id., at 140; see also 3 id., at 2-4 (1768). Other contemporary authorities
concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal
Means of National Defence, by a Free Militia 17-18, 27 (3d ed. 1782); 2 J. de
Lolme, The Rise and Progress of the English Constitution 886-887 (1784) (A.
Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59-60 (1785).
Thus, the right secured in 1689 as a result of the Stuarts' abuses was by the
time of the founding understood to be an individual right protecting against
both public and private violence.
And, of course,
what the Stuarts had tried to do to their political enemies, George III had
tried to do to the colonists. In the tumultuous decades of the 1760's and
1770's, the Crown began to disarm the inhabitants of the most rebellious areas.
That provoked polemical reactions by Americans invoking their rights as
Englishmen to keep arms. A New York article of April 1769 said that "[i]t
is a natural right which the people have reserved to themselves, confirmed by
the Bill of Rights, to keep arms for their own defence." A Journal of the
Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under
Military Rule 79 (O. Dickerson ed. 1936); see also, e.g., Shippen, Boston
Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed.
1968). They understood the right to enable individuals to defend themselves. As
the most important early American edition of Blackstone's Commentaries (by the
law professor and former Antifederalist St. George Tucker) made clear in the
notes to the description of the arms right, Americans understood the
"right of self-preservation" as permitting a citizen to "repe[l]
force by force" when "the intervention of society in his behalf, may
be too late to prevent an injury." 1 Blackstone's Commentaries 145-146, n.
42 (1803) (hereinafter Tucker's Blackstone). See also W. Duer, Outlines of the
Constitutional Jurisprudence of the United States 31-32 (1833).
There seems to us
no doubt, on the basis of both text and history, that the Second Amendment
conferred an individual right to keep and bear arms. Of course the right was
not unlimited, just as the First Amendment's right of free speech was not, see,
e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the
Second Amendment to protect the right of citizens to carry arms for any sort of
confrontation, just as we do not read the First Amendment to protect the right
of citizens to speak for any purpose. Before turning to limitations upon the
individual right, however, we must determine whether the prefatory clause of
the Second Amendment comports with our interpretation of the operative clause.
2. Prefatory
Clause.
The prefatory
clause reads: "A well regulated Militia, being necessary to the security
of a free State ... ."
a.
"Well-Regulated Militia." In United States v. Miller, 307 U. S. 174,
179 (1939), we explained that "the Militia comprised all males physically
capable of acting in concert for the common defense." That definition
comports with founding-era sources. See, e.g., Webster ("The militia of a
country are the able bodied men organized into companies, regiments and
brigades ... and required by law to attend military exercises on certain days
only, but at other times left to pursue their usual occupations"); The
Federalist No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison) ("near
half a million of citizens with arms in their hands"); Letter to Destutt
de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M.
Peterson ed. 1975) ("[T]he militia of the State, that is to say, of every
man in it able to bear arms").
Petitioners take
a seemingly narrower view of the militia, stating that "[m]ilitias are the
state- and congressionally-regulated military forces described in the Militia
Clauses (art. I, §8, cls. 15-16)." Brief for Petitioners 12. Although we
agree with petitioners' interpretive assumption that "militia" means
the same thing in Article I and the Second Amendment, we believe that
petitioners identify the wrong thing, namely, the organized militia. Unlike armies
and navies, which Congress is given the power to create ("to raise ...
Armies"; "to provide ... a Navy," Art. I, §8, cls. 12-13), the
militia is assumed by Article I already to be in existence. Congress is given
the power to "provide for calling forth the militia," §8, cl. 15; and
the power not to create, but to "organiz[e]" it--and not to organize
"a" militia, which is what one would expect if the militia were to be
a federal creation, but to organize "the" militia, connoting a body
already in existence, ibid., cl. 16. This is fully consistent with the ordinary
definition of the militia as all able-bodied men. From that pool, Congress has
plenary power to organize the units that will make up an effective fighting
force. That is what Congress did in the first militia Act, which specified that
"each and every free able-bodied white male citizen of the respective
states, resident therein, who is or shall be of the 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." Act of May 8,
1792, 1 Stat. 271. To be sure, Congress need not conscript every able-bodied
man into the militia, because nothing in Article I suggests that in exercising
its power to organize, discipline, and arm the militia, Congress must focus
upon the entire body. Although the militia consists of all able-bodied men, the
federally organized militia may consist of a subset of them.
Finally, the
adjective "well-regulated" implies nothing more than the imposition
of proper discipline and training. See Johnson 1619 ("Regulate":
"To adjust by rule or method"); Rawle 121-122; cf. Va. Declaration of
Rights §13 (1776), in 7 Thorpe 3812, 3814 (referring to "a well-regulated
militia, composed of the body of the people, trained to arms").
b. "Security
of a Free State." The phrase "security of a free state" meant
"security of a free polity," not security of each of the several
States as the dissent below argued, see 478 F. 3d, at 405, and n. 10. Joseph
Story wrote in his treatise on the Constitution that "the word 'state' is
used in various senses [and in] its most enlarged sense, it means the people
composing a particular nation or community." 1 Story §208; see also 3 id.,
§1890 (in reference to the Second Amendment's prefatory clause: "The
militia is the natural defence of a free country"). It is true that the
term "State" elsewhere in the Constitution refers to individual
States, but the phrase "security of a free state" and close variations
seem to have been terms of art in 18th-century political discourse, meaning a
" 'free country' " or free polity. See Volokh, "Necessary to the
Security of a Free State," 83 Notre Dame L. Rev. 1, 5 (2007); see, e.g., 4
Blackstone 151 (1769); Brutus Essay III (Nov. 15, 1787), in The Essential
Antifederalist 251, 253 (W. Allen & G. Lloyd eds., 2d ed. 2002). Moreover,
the other instances of "state" in the Constitution are typically
accompanied by modifiers making clear that the reference is to the several States--"each
state," "several states," "any state," "that
state," "particular states," "one state," "no
state." And the presence of the term "foreign state" in Article
I and Article III shows that the word "state" did not have a single
meaning in the Constitution.
There are many
reasons why the militia was thought to be "necessary to the security of a
free state." See 3 Story §1890. First, of course, it is useful in
repelling invasions and suppressing insurrections. Second, it renders large
standing armies unnecessary--an argument that Alexander Hamilton made in favor
of federal control over the militia. The Federalist No. 29, pp. 226, 227 (B.
Wright ed. 1961) (A. Hamilton). Third, when the able-bodied men of a nation are
trained in arms and organized, they are better able to resist tyranny.
3. Relationship between Prefatory Clause and Operative Clause
We reach the
question, then: Does the preface fit with an operative clause that creates an
individual right to keep and bear arms? It fits perfectly, once one knows the
history that the founding generation knew and that we have described above.
That history showed that the way tyrants had eliminated a militia consisting of
all the able-bodied men was not by banning the militia but simply by taking
away the people's arms, enabling a select militia or standing army to suppress
political opponents. This is what had occurred in England that prompted
codification of the right to have arms in the English Bill of Rights.
The debate with
respect to the right to keep and bear arms, as with other guarantees in the
Bill of Rights, was not over whether it was desirable (all agreed that it was)
but over whether it needed to be codified in the Constitution. During the 1788
ratification debates, the fear that the federal government would disarm the
people in order to impose rule through a standing army or select militia was
pervasive in Antifederalist rhetoric. See, e.g., Letters from The Federal
Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H.
Storing ed. 1981). John Smilie, for example, worried not only that Congress's
"command of the militia" could be used to create a "select
militia," or to have "no militia at all," but also, as a
separate concern, that "[w]hen a select militia is formed; the people in
general may be disarmed." 2 Documentary History of the Ratification of the
Constitution 508-509 (M. Jensen ed. 1976) (hereinafter Documentary Hist.).
Federalists responded that because Congress was given no power to abridge the
ancient right of individuals to keep and bear arms, such a force could never
oppress the people. See, e.g., A Pennsylvanian III (Feb. 20, 1788), in The
Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed. 2001)
(hereinafter Young); White, To the Citizens of Virginia, Feb. 22, 1788, in id.,
at 280, 281; A Citizen of America, (Oct. 10, 1787) in id., at 38, 40; Remarks
on the Amendments to the federal Constitution, Nov. 7, 1788, in id., at 556. It
was understood across the political spectrum that the right helped to secure
the ideal of a citizen militia, which might be necessary to oppose an
oppressive military force if the constitutional order broke down.
It is therefore
entirely sensible that the Second Amendment's prefatory clause announces the purpose
for which the right was codified: to prevent elimination of the militia. The
prefatory clause does not suggest that preserving the militia was the only
reason Americans valued the ancient right; most undoubtedly thought it even
more important for self-defense and hunting. But the threat that the new
Federal Government would destroy the citizens' militia by taking away their
arms was the reason that right--unlike some other English rights--was codified
in a written Constitution. Justice Breyer's assertion that individual
self-defense is merely a "subsidiary interest" of the right to keep
and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion
solely upon the prologue--but that can only show that self-defense had little
to do with the right's codification; it was the central component of the right
itself.
Besides ignoring
the historical reality that the Second Amendment was not intended to lay down a
"novel principl[e]" but rather codified a right "inherited from
our English ancestors," Robertson v. Baldwin, 165 U. S. 275, 281 (1897),
petitioners' interpretation does not even achieve the narrower purpose that
prompted codification of the right. If, as they believe, the Second Amendment
right is no more than the right to keep and use weapons as a member of an
organized militia, see Brief for Petititioners 8--if, that is, the organized
militia is the sole institutional beneficiary of the Second Amendment's
guarantee--it does not assure the existence of a "citizens' militia"
as a safeguard against tyranny. For Congress retains plenary authority to
organize the militia, which must include the authority to say who will belong
to the organized force.17 That is why the first Militia Act's requirement that
only whites enroll caused States to amend their militia laws to exclude free
blacks. See Siegel, The Federal Government's Power to Enact Color-Conscious
Laws, 92 Nw. U. L. Rev. 477, 521-525 (1998). Thus, if petitioners are correct,
the Second Amendment protects citizens' right to use a gun in an organization
from which Congress has plenary authority to exclude them. It guarantees a
select militia of the sort the Stuart kings found useful, but not the people's
militia that was the concern of the founding generation.
B
Our interpretation
is confirmed by analogous arms-bearing rights in state constitutions that
preceded and immediately followed adoption of the Second Amendment. Four States
adopted analogues to the Federal Second Amendment in the period between
independence and the ratification of the Bill of Rights. Two of
them--Pennsylvania and Vermont--clearly adopted individual rights unconnected
to militia service. Pennsylvania's Declaration of Rights of 1776 said:
"That the people have a right to bear arms for the defence of themselves,
and the state ... ." §XIII, in 5 Thorpe 3082, 3083 (emphasis added). In
1777, Vermont adopted the identical provision, except for inconsequential
differences in punctuation and capitalization. See Vt. Const., ch. 1, §15, in 6
id., at 3741.
North Carolina
also codified a right to bear arms in 1776: "That the people have a right
to bear arms, for the defence of the State ... ." Declaration of Rights
§XVII, in id., at 2787, 2788. This could plausibly be read to support only a
right to bear arms in a militia--but that is a peculiar way to make the point
in a constitution that elsewhere repeatedly mentions the militia explicitly.
See §§14, 18, 35, in 5 id., 2789, 2791, 2793. Many colonial statutes required
individual arms-bearing for public-safety reasons--such as the 1770 Georgia law
that "for the security and defence of this province from internal dangers
and insurrections" required those men who qualified for militia duty
individually "to carry fire arms" "to places of public
worship." 19 Colonial Records of the State of Georgia 137-139 (A. Candler
ed. 1911 (pt. 2)) (emphasis added). That broad public-safety understanding was
the connotation given to the North Carolina right by that State's Supreme Court
in 1843. See State v. Huntly, 3 Ired. 418, 422-423.
The 1780
Massachusetts Constitution presented another variation on the theme: "The
people have a right to keep and to bear arms for the common defence... ."
Pt. First, Art. XVII, in 3 Thorpe 1888, 1892. Once again, if one gives narrow
meaning to the phrase "common defence" this can be thought to limit
the right to the bearing of arms in a state-organized military force. But once
again the State's highest court thought otherwise. Writing for the court in an
1825 libel case, Chief Justice Parker wrote: "The liberty of the press was
to be unrestrained, but he who used it was to be responsible in cases of its
abuse; like the right to keep fire arms, which does not protect him who uses
them for annoyance or destruction." Commonwealth v. Blanding, 20 Mass.
304, 313-314. The analogy makes no sense if firearms could not be used for any
individual purpose at all. See also Kates, Handgun Prohibition and the Original
Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 244 (1983) (19th-century
courts never read "common defence" to limit the use of weapons to
militia service).
We therefore
believe that the most likely reading of all four of these pre-Second Amendment
state constitutional provisions is that they secured an individual right to
bear arms for defensive purposes. Other States did not include rights to bear
arms in their pre-1789 constitutions--although in Virginia a Second Amendment
analogue was proposed (unsuccessfully) by Thomas Jefferson. (It read: "No
freeman shall ever be debarred the use of arms [within his own lands or
tenements]."18 1 The Papers of Thomas Jefferson 344 (J. Boyd ed. 1950)).
Between 1789 and
1820, nine States adopted Second Amendment analogues. Four of them--Kentucky,
Ohio, Indiana, and Missouri--referred to the right of the people to "bear
arms in defence of themselves and the State." See n. 8, supra. Another
three States--Mississippi, Connecticut, and Alabama--used the even more
individualistic phrasing that each citizen has the "right to bear arms in
defence of himself and the State." See ibid. Finally, two
States--Tennessee and Maine--used the "common defence" language of
Massachusetts. See Tenn. Const., Art. XI, §26 (1796), in 6 Thorpe 3414, 3424;
Me. Const., Art. I, §16 (1819), in 3 id., at 1646, 1648. That of the nine state
constitutional protections for the right to bear arms enacted immediately after
1789 at least seven unequivocally protected an individual citizen's right to
self-defense is strong evidence that that is how the founding generation conceived
of the right. And with one possible exception that we discuss in Part II-D-2,
19th-century courts and commentators interpreted these state constitutional
provisions to protect an individual right to use arms for self-defense. See n.
9, supra; Simpson v. State, 5 Yer. 356, 360 (Tenn. 1833).
The historical
narrative that petitioners must endorse would thus treat the Federal Second
Amendment as an odd outlier, protecting a right unknown in state constitutions
or at English common law, based on little more than an overreading of the
prefatory clause.
C
Justice Stevens
relies on the drafting history of the Second Amendment--the various proposals
in the state conventions and the debates in Congress. It is dubious to rely on
such history to interpret a text that was widely understood to codify a
pre-existing right, rather than to fashion a new one. But even assuming that
this legislative history is relevant, Justice Stevens flatly misreads the
historical record.
It is true, as
Justice Stevens says, that there was concern that the Federal Government would
abolish the institution of the state militia. See post, at 20. That concern
found expression, however, not in the various Second Amendment precursors
proposed in the State conventions, but in separate structural provisions that
would have given the States concurrent and seemingly nonpre-emptible authority
to organize, discipline, and arm the militia when the Federal Government failed
to do so. See Veit 17, 20 (Virginia proposal); 4 J. Eliot, The Debates in the
Several State Conventions on the Adoption of the Federal Constitution 244, 245
(2d ed. 1836) (reprinted 1941) (North Carolina proposal); see also 2
Documentary Hist. 624 (Pennsylvania minority's proposal). The Second Amendment
precursors, by contrast, referred to the individual English right already
codified in two (and probably four) State constitutions. The
Federalist-dominated first Congress chose to reject virtually all major
structural revisions favored by the Antifederalists, including the proposed
militia amendments. Rather, it adopted primarily the popular and
uncontroversial (though, in the Federalists' view, unnecessary)
individual-rights amendments. The Second Amendment right, protecting only
individuals' liberty to keep and carry arms, did nothing to assuage
Antifederalists' concerns about federal control of the militia. See, e.g.,
Centinel, Revived, No. XXIX, Philadelphia Independent Gazetteer, Sept. 9, 1789,
in Young 711, 712.
Justice Stevens
thinks it significant that the Virginia, New York, and North Carolina Second
Amendment proposals were "embedded ... within a group of principles that
are distinctly military in meaning," such as statements about the danger
of standing armies. Post, at 22. But so was the highly influential minority
proposal in Pennsylvania, yet that proposal, with its reference to hunting,
plainly referred to an individual right. See 2 Documentary Hist. 624. Other
than that erroneous point, Justice Stevens has brought forward absolutely no
evidence that those proposals conferred only a right to carry arms in a
militia. By contrast, New Hampshire's proposal, the Pennsylvania minority's
proposal, and Samuel Adams' proposal in Massachusetts unequivocally referred to
individual rights, as did two state constitutional provisions at the time. See
Veit 16, 17 (New Hampshire proposal); 6 Documentary Hist. 1452, 1453 (J.
Kaminski & G. Saladino eds. 2000) (Samuel Adams' proposal). Justice
Stevens' view thus relies on the proposition, unsupported by any evidence, that
different people of the founding period had vastly different conceptions of the
right to keep and bear arms. That simply does not comport with our longstanding
view that the Bill of Rights codified venerable, widely understood liberties.
D
We now address
how the Second Amendment was interpreted from immediately after its
ratification through the end of the 19th century. Before proceeding, however,
we take issue with Justice Stevens' equating of these sources with
postenactment legislative history, a comparison that betrays a fundamental
misunderstanding of a court's interpretive task. See post, at 27, n. 28.
"Legislative history," of course, refers to the pre-enactment
statements of those who drafted or voted for a law; it is considered persuasive
by some, not because they reflect the general understanding of the disputed
terms, but because the legislators who heard or read those statements
presumably voted with that understanding. Ibid. "Postenactment legislative
history," ibid., a deprecatory contradiction in terms, refers to
statements of those who drafted or voted for the law that are made after its
enactment and hence could have had no effect on the congressional vote. It most
certainly does not refer to the examination of a variety of legal and other
sources to determine the public understanding of a legal text in the period
after its enactment or ratification. That sort of inquiry is a critical tool of
constitutional interpretation. As we will show, virtually all interpreters of
the Second Amendment in the century after its enactment interpreted the
amendment as we do.
1.
Post-ratification Commentary
Three important
founding-era legal scholars interpreted the Second Amendment in published
writings. All three understood it to protect an individual right unconnected
with militia service.
