Second Amendment to the United States Constitution

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The Bill of Rights in the National Archives.

Close up image of the Second Amendment

The Second Amendment (Amendment II) to the United States Constitution is the part of the United States Bill of Rights that protects a right to keep and bear arms.[1] The Second Amendment was adopted on December 15, 1791, along with the rest of the Bill of Rights. The American Bar Association has noted that there is more disagreement and less understanding about this right than of any other current issue regarding the Constitution.[2]

Saul Cornell has claimed that for almost a century after the ratification of the Bill of Rights, the intended meaning and application of the Second Amendment drew less interest than in modern times.[3]

Notable U.S. Supreme Court interpretations of the Second Amendment include those in United States v. Cruikshank (1875), Presser v. Illinois (1886), Miller v. Texas (1894), Robertson v. Baldwin (1897), United States v. Miller (1939) and District of Columbia v. Heller (2008).

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.[4] One such version was passed by the Congress, which reads:[5]

Another version is found in the copies distributed to the states, and then ratified by them, which had this capitalization and punctuation:[6]

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.

Background

English history and common law

The concept of a universal militia originated in England.[7][8][9] The requirement that subjects keep and bear arms for military duty[10][11][12][13] dates back to at least the 12th century when King Henry II, in the Assize of Arms, obligated all freemen to bear arms for public defense. King Henry III required certain subjects between the ages of fifteen and fifty (including non-land-owning subjects) to bear arms. The reason for such a requirement was that without a regular army and police force (which was not established until 1829), it was the duty of certain men to keep watch and ward at night to capture and confront suspicious persons. Every subject had an obligation to protect the king’s peace and assist in the suppression of riots.[14]

In response to complaints that local people were reluctant to take up arms to enforce justice for strangers, The Statute of Winchester of 1285 (13 Edw. I) declared that each district or hundred would be held responsible for unsolved crimes. Each man was to keep arms to take part in the hue and cry when necessary.[15]

Following the Protestant overthrow of the Catholic King James II, the Protestant controlled Parliament obliged the newly installed Protestant monarchs William and Mary to enact the English Bill of Rights of 1689 which granted Protestants a series of liberties including the right to arms for self defense: "That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law."[16] For instance, in 1780 after some riots, the recorder of London - the city attorney - was asked if the right to arms protected armed groups, he wrote: "The right of his majesty's Protestant subjects, to have arms for their own defense, and to use them for lawful purposes, is most clear and undeniable."[17] At least one historian describes this as the first instance when the customary duty to bear arms transitioned into a right.[18][19] Other historians describe this as an example of the traditional restricting of weapons access for one class of people over another, in this case the Protestant victors over the vanquished Catholics.[19][20] Additionally, this reflected the popular dread of a standing army and the preference instead for a select militia. These values would have a long life both in England and America.[19]

Sir William Blackstone's Commentaries on the Laws of England describes the right to arms in England during the eighteenth century:

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.[21]

The right of some English subjects to possess arms was recognized under English common law; however many English subjects were not permitted by law to possess arms.[18] Regarding these constraints, St. George Tucker wrote in 1803:

In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.[22]

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 state militias as important for one or more of these purposes:[23][24][25][26][27][28][29][30][31][32]