Right to keep and bear arms in the United States
[4] The Second Amendment declares: 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.
[5][6]Stemming from English common law tradition, the concept of a right to keep and bear arms was recognized prior to the creation of a written national constitution.
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 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.
In its first opportunity to rule specifically on whose right the Second Amendment protects, District of Columbia v. Heller (2008), the Court ruled that the amendment protects an individual right "to keep and carry arms in case of confrontation," not contingent on service in a militia, while indicating, in dicta, that restrictions on the possession of firearms by felons and the mentally ill, on the carrying of arms in sensitive locations, and with respect to the conditions on the sale of firearms could pass constitutional muster.
In the 2010 case of McDonald v. Chicago, the Court applied incorporation doctrine to extend the Second Amendment's protections nationwide The people's right to have their own arms for their defense is described in the philosophical and political writings of Aristotle, Cicero, John Locke, Machiavelli, the English Whigs and others.
[19] Don Kates, a civil liberties lawyer, cites historic English usage describing the "right to keep and bear their private arms.
07-290, that "[t]he 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.
"[25] Some historians have argued that prior to and through the 18th century, the expression "bear arms" appeared exclusively in military contexts, as opposed to the use of firearms by civilians.
... As a review of the Library of Congress's data base of congressional proceedings in the revolutionary and early national periods reveals, the thirty uses of 'bear arms' and 'bearing arms' in bills, statutes, and debates of the Continental, Confederation, and United States' Congresses between 1774 and 1821 invariably occur in a context exclusively focused on the army or the militia.
[31] Commenting on this previous research, other historians note: Searching more comprehensive collections of English language works published before 1820 shows that there are a number of uses that ... have nothing to do with military service ... [and] The common law was in agreement.
Edward Christian's edition of Blackstone's Commentaries that appeared in 1790s described the rights of Englishmen (which every American colonist had been promised) in these terms 'everyone is at liberty to keep or carry a gun, if he does not use it for the [unlawful] destruction of game.'
[31]The Oxford English Dictionary defines the term to bear arms as: "to serve as a soldier, do military service, fight," dating to about 1330.
Garry Wills, author and history professor at Northwestern University, has written of the origin of the term bear arms: By legal and other channels, the Latin "arma ferre" entered deeply into the European language of war.
We cannot, however, (as the individual rights contingent generally does) disregard entirely the first part of the text proclaiming a well regulated militia necessary to the security of a free state.
"..to us, the language of the Amendment cannot support a right to personal weaponry independent of the social value of a regulated organization of armed citizens.
[41] [42][43]In the 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.
"[54][55] The importance of Bliss is also seen from the defense subsequently given against a murder charge in Kentucky against Mattews Ward, who in 1852 pulled out a concealed pistol and fatally wounded his brother's teacher over an accusation regarding eating chestnuts in class.
As noted by Cornell, "Ward's lawyers took advantage of the doctrine advanced in Bliss and wrapped their client's action under the banner of a constitutional right to bear arms.
'[57] Explaining that the provision was adopted with the same goals as the Federal Constitution's Second Amendment, the court wrote: "The words 'bear arms' ... have reference to their military use, and were not employed to mean wearing them about the person as part of the dress.
Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!
[66] The Kansas high court declared: "That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal Constitution, which says: '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.'"
These three models are founded on differing interpretations of the Second Amendment, "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."
[68] The second two models focus on the preamble, or "purpose" clause, of the Amendment – the words "A well regulated Militia, being necessary to the security of a free State."
[69] Nadine Strossen, former president of the American Civil Liberties Union, has stated that the individual rights model must yield to reasonable regulation.
"[72][73]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 ...[74]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.
"[75] 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.
Interest groups, primarily in the United States, exert political pressure for and against legislation limiting the right to keep and bear arms.
Several other groups including the Gun Owners of America and the Citizens Committee for the Right to Keep and Bear Arms, while smaller in size, are also politically active.
[95] According to a 2023 Fox News poll found registered voters overwhelmingly supported a wide variety of gun restrictions:
