b'Whether the Second Amendment\nSecures an Individual Right\nThe Second Amendment secures a right of individuals generally, not a right of states or a right\nrestricted to persons serving in militias.\n\nAugust 24, 2004\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nI. The Unsettled Legal Landscape ....................................................................... 128\nII. Textual and Structural Analysis...................................................................... 136\nA. \xe2\x80\x9cThe Right of the People\xe2\x80\x9d....................................................................... 136\nB. \xe2\x80\x9cTo Keep and Bear Arms\xe2\x80\x9d ...................................................................... 139\n1. \xe2\x80\x9cTo Keep . . . Arms\xe2\x80\x9d ......................................................................... 140\n2. \xe2\x80\x9cTo . . . Bear Arms\xe2\x80\x9d .......................................................................... 142\nC. \xe2\x80\x9cA Well Regulated Militia, Being Necessary to the Security of a Free\nState\xe2\x80\x9d ...................................................................................................... 144\n1. The Limits of Prefatory Language .................................................... 145\n2. The \xe2\x80\x9cMilitia\xe2\x80\x9d ..................................................................................... 149\n3. The \xe2\x80\x9cWell Regulated\xe2\x80\x9d Militia ........................................................... 154\n4. The \xe2\x80\x9cSecurity of a Free State\xe2\x80\x9d .......................................................... 157\nD. Structural Considerations ........................................................................ 161\n1. The Bill of Rights ............................................................................. 161\n2. The Militia Powers............................................................................ 163\nIII. The Original Understanding of the Right to Keep and Bear Arms ............... 165\nA. The Right Inherited From England ......................................................... 166\nB. The Right in America Before the Framing .............................................. 174\n1. The Experience of the Revolution .................................................... 174\n2. Early Constitutional Recognition of the Right .................................. 179\nC. The Development of the Second Amendment ......................................... 185\n1. Recommendations From the Ratification of the Original\nConstitution ...................................................................................... 186\n2. The Drafting and Ratification of the Second Amendment ................ 193\nIV. The Early Interpretations .............................................................................. 203\nA. The First Commentators .......................................................................... 204\nB. The First Cases ........................................................................................ 210\n1. Cases Before 1840 ............................................................................ 210\n2. Cases From 1840 to the Civil War .................................................... 213\nC. Reconstruction ......................................................................................... 223\nD. Beyond Reconstruction ........................................................................... 226\nV. Conclusion...................................................................................................... 230\n\n126\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nThe Second Amendment of the Constitution provides: \xe2\x80\x9cA well regulated Militia, being necessary to the security of a free State, the right of the people to keep\nand bear Arms, shall not be infringed.\xe2\x80\x9d You have asked for the opinion of this\nOffice on one aspect of the right secured by this Amendment. Specifically, you\nhave asked us to address the question whether the right secured by the Second\nAmendment belongs only to the states, only to persons serving in state-organized\nmilitia units like the National Guard, or to individuals generally. This memorandum memorializes and expands upon advice that this Office provided to you on\nthis question in 2001.\nAs relevant to the question addressed herein, courts and commentators have\nrelied on three different interpretations of the Second Amendment. Under the\n\xe2\x80\x9cindividual right\xe2\x80\x9d view, the Second Amendment secures to individuals a personal\nright to keep and to bear arms, whether or not they are members of any militia or\nengaged in military service or training. According to this view, individuals may\nbring claims or raise challenges based on a violation of their rights under the\nSecond Amendment just as they do to vindicate individual rights secured by other\nprovisions of the Bill of Rights.1 Under the \xe2\x80\x9ccollective right\xe2\x80\x9d view, the Second\nAmendment is a federalism provision that provides to states a prerogative to\nestablish and maintain armed and organized militia units akin to the National\nGuard, and only states may assert this prerogative.2 Finally, there is a range of\nintermediate views according to which the Amendment secures a right only to\nselect persons to keep and bear arms in connection with their service in an\norganized state militia such as the National Guard. Under one typical formulation,\nindividuals may keep arms only if they are \xe2\x80\x9cmembers of a functioning, organized\nstate militia\xe2\x80\x9d and the state has not provided the necessary arms, and they may bear\narms only \xe2\x80\x9cwhile and as a part of actively participating in\xe2\x80\x9d that militia\xe2\x80\x99s activities.3\nIn essence, such a view would allow a private cause of action (or defense) to some\npersons to vindicate a state\xe2\x80\x99s power to establish and maintain an armed and\norganized militia such as the National Guard.4 We therefore label this group of\nintermediate positions the \xe2\x80\x9cquasi-collective right\xe2\x80\x9d view.\nThe Supreme Court has not decided among these three potential interpretations,\nand the federal circuits are split. The Executive Branch has taken different views\nover the years. Most recently, in a 2001 memorandum to U.S. Attorneys, you\nendorsed the view that the Second Amendment protects a \xe2\x80\x9c\xe2\x80\x98right of individuals,\nincluding those not then actually a member of any militia or engaged in active\nmilitary service or training, to privately possess and bear their own firearms\xe2\x80\x99\xe2\x80\x9d but\nallows for \xe2\x80\x9creasonable restrictions\xe2\x80\x9d designed \xe2\x80\x9cto prevent unfit persons from\n1\n\nSee, e.g., United States v. Emerson, 270 F.3d 203, 220, 260 (5th Cir. 2001).\nSee, e.g., Silveira v. Lockyer, 312 F.3d 1052, 1060\xe2\x80\x9361, 1086\xe2\x80\x9387 (9th Cir. 2002).\n3\nEmerson, 270 F.3d at 219 (describing intermediate view); see also, e.g., Cases v. United States,\n131 F.2d 916, 923 (1st Cir. 1942).\n4\nSee, e.g., United States v. Parker, 362 F.3d 1279, 1283 (10th Cir. 2004).\n2\n\n127\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\npossessing firearms or to restrict possession of firearms particularly suited to\ncriminal misuse.\xe2\x80\x9d5\nAs developed in the analysis below, we conclude that the Second Amendment\nsecures a personal right of individuals, not a collective right that may only be\ninvoked by a state or a quasi-collective right restricted to those persons who serve\nin organized militia units. Our conclusion is based on the Amendment\xe2\x80\x99s text, as\ncommonly understood at the time of its adoption and interpreted in light of other\nprovisions of the Constitution and the Amendment\xe2\x80\x99s historical antecedents. Our\nanalysis is limited to determining whether the Amendment secures an individual,\ncollective, or quasi-collective right. We do not consider the substance of that right,\nincluding its contours or the nature or type of governmental interests that would\njustify restrictions on its exercise, and nothing in this memorandum is intended to\naddress or call into question the constitutionality, under the Second Amendment,\nof any particular limitations on owning, carrying, or using firearms.\nThis memorandum proceeds in four parts. Part I addresses the current unsettled\nstate of the law in this area. Part II demonstrates that the text and structure of the\nConstitution support the individual right view of the Second Amendment. Part III\nshows why this view finds further support in the history that informed the\nunderstanding of the Second Amendment as it was written and ratified. Finally,\nPart IV examines the views of commentators and courts closest to the Second\nAmendment\xe2\x80\x99s adoption, which reflect an individual right view, and then concludes\nby describing how the modern alternative views of the Second Amendment took\nhold in the early twentieth century.\nI. The Unsettled Legal Landscape\nRecent interpretations of the Second Amendment have been characterized by\ndisagreement and uncertainty. The Supreme Court has not decided the question\nthat we address here, and at least three views prevail in the federal courts of\nappeals. The Executive Branch has taken varying positions, and the Amendment\nhas been the subject of extensive academic debate for the past two decades.\nThe Supreme Court\xe2\x80\x99s most important decision on the meaning of the Second\nAmendment, United States v. Miller,6 grew out of the enactment of the National\nFirearms Act of 1934.7 That Act was the first federal regulation of private\n\n5\nMemorandum for United States Attorneys from the Attorney General, Re: United States v. Emerson (Nov. 9, 2001) (quoting Emerson, 270 F.3d at 260), reprinted in Brief for the United States in\nOpposition, App., Emerson v. United States, 536 U.S. 907 (2002) (No. 01-8780) (denying certiorari).\nYou added that the Department of Justice \xe2\x80\x9ccan and will continue to defend vigorously the constitutionality, under the Second Amendment, of all existing federal firearms laws.\xe2\x80\x9d\n6\n307 U.S. 174 (1939).\n7\nCh. 757, 48 Stat. 1236.\n\n128\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nfirearms.8 It taxed (and thereby registered) transfers of sawed-off shotguns or rifles\ncapable of being concealed, machine guns, and silencers. It also taxed dealers in\nsuch weapons and required anyone who possessed such a weapon acquired before\n1934 to register it with federal tax authorities.\nA Second Amendment challenge to this Act produced Miller in 1939, the closest that the Supreme Court has come to interpreting the substance of the Amendment. Miller and a co-defendant were indicted for transporting an unregistered\nsawed-off shotgun in interstate commerce from Oklahoma to Arkansas, and the\ndistrict court sustained their Second Amendment challenge to the indictment. On\nappeal by the government, neither defendant appeared or filed a brief.9 The Court,\nin reversing and remanding, held that the sawed-off shotgun was not among the\n\xe2\x80\x9cArms\xe2\x80\x9d protected by the Second Amendment absent \xe2\x80\x9cevidence tending to show\nthat\xe2\x80\x9d its use or possession \xe2\x80\x9cat this time has some reasonable relationship to the\npreservation or efficiency of a well regulated militia.\xe2\x80\x9d Citing an 1840 decision of\nthe Tennessee Supreme Court, Aymette v. State, the Court concluded that it was\nnot \xe2\x80\x9cwithin judicial notice\xe2\x80\x9d that a sawed-off shotgun was a weapon that was \xe2\x80\x9cany\npart of the ordinary military equipment\xe2\x80\x9d or whose use \xe2\x80\x9ccould contribute to the\ncommon defence.\xe2\x80\x9d Absent evidence, therefore, the Court could not \xe2\x80\x9csay that the\nSecond Amendment guarantees the right to keep and bear such an instrument.\xe2\x80\x9d10\nAfter this one-paragraph discussion, the Court quoted the powers that Article I,\nSection 8, Clauses 15 and 16 of the Constitution grant to Congress to provide for\ncalling forth, organizing, arming, and disciplining \xe2\x80\x9cthe Militia,\xe2\x80\x9d and stated that the\nSecond Amendment\xe2\x80\x99s \xe2\x80\x9cdeclaration and guarantee\xe2\x80\x9d were made \xe2\x80\x9c[w]ith obvious\npurpose to assure the continuation and render possible the effectiveness of\xe2\x80\x9d the\nmilitia, and that the Amendment \xe2\x80\x9cmust be interpreted and applied with that end in\nview.\xe2\x80\x9d11 The Court then added a historical discussion demonstrating that \xe2\x80\x9cthe term\nMilitia\xe2\x80\x9d as used in various provisions of the Constitution, including the Second\nAmendment, referred to a body that \xe2\x80\x9ccomprised all males physically capable of\nacting in concert for the common defense,\xe2\x80\x9d who \xe2\x80\x9cwere expected to appear\xe2\x80\x9d for\noccasional training \xe2\x80\x9cbearing arms supplied by themselves and of the kind in\ncommon use at the time,\xe2\x80\x9d which in the 1700s usually meant a \xe2\x80\x9cgood\xe2\x80\x9d musket of\nproper length.12\nMiller did not resolve the question addressed in this memorandum. Although\nthe meaning of the decision is much debated, three points appear evident. First, the\n8\nSee National Firearms Act: Hearings on H.R. 9066 Before the House Comm. on Ways and\nMeans, 73d Cong. 90 (1934) (statement of Ass\xe2\x80\x99t Att\xe2\x80\x99y Gen. Keenan); United States v. Lopez, 2 F.3d\n1342, 1348 (5th Cir. 1993), aff\xe2\x80\x99d, 514 U.S. 549 (1995).\n9\n307 U.S. at 175\xe2\x80\x9377.\n10\nId. at 178 (citing Aymette v. State, 21 Tenn. (2 Hum.) 154, 158 (1840)). We discuss Aymette below in Part IV.B.2.\n11\nId.\n12\nId. at 179; see id. at 179\xe2\x80\x9382 (describing militia regulations, including arms requirements).\n\n129\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nholding was limited to the meaning of \xe2\x80\x9cArms\xe2\x80\x9d in the Second Amendment and\nwhether a sawed-off shotgun is among the arms protected. In determining that\nmeaning, the Court also interpreted the term \xe2\x80\x9cMilitia\xe2\x80\x9d as used in the Constitution.\nSecond, the Court did not categorically reject Miller\xe2\x80\x99s Second Amendment\nchallenge. The Court\xe2\x80\x99s decision to address the substance of this challenge to his\nindictment, as opposed to concluding that only states could bring such a challenge,\nappears to be inconsistent with a collective right view.\nFinally, the Court did not clearly decide between the individual right and quasicollective right views. Its holding regarding the meaning of \xe2\x80\x9cArms\xe2\x80\x9d is consistent\nwith either view: The Court\xe2\x80\x99s limitation of \xe2\x80\x9cArms\xe2\x80\x9d to those weapons reasonably\nrelated to the preservation or efficiency of a well-regulated militia (such as those\nthat are \xe2\x80\x9cpart of the ordinary military equipment\xe2\x80\x9d or that \xe2\x80\x9ccould contribute to the\ncommon defense\xe2\x80\x9d) could be consistent with a right to \xe2\x80\x9ckeep and bear\xe2\x80\x9d such arms\nthat is restricted to service in an organized military unit such as the National\nGuard; but that holding is also consistent with an individual right to keep and bear\nwhatever \xe2\x80\x9cArms\xe2\x80\x9d the Amendment protects. Similarly, the Court\xe2\x80\x99s reference to the\nneed to interpret the Second Amendment\xe2\x80\x99s \xe2\x80\x9cdeclaration and guarantee\xe2\x80\x9d with the\n\xe2\x80\x9cend in view\xe2\x80\x9d of furthering \xe2\x80\x9cthe continuation and render[ing] possible the\neffectiveness of\xe2\x80\x9d the militia could be consistent with a quasi-collective right view;\nbut it is also consistent with the understanding of the relationship between an\nindividual right to keep and bear arms and the \xe2\x80\x9cMilitia\xe2\x80\x9d that prevailed at the time\nof the Founding, an understanding confirmed by early authorities\xe2\x80\x99 discussions of\nthe Second Amendment\xe2\x80\x99s preface.13\nEven so, absent from the Court\xe2\x80\x99s opinion in Miller was any discussion of\nwhether the defendants were members of the National Guard or any other\norganized military force, whether they were transporting the shotgun in the service\nof such a force, or whether they were \xe2\x80\x9cphysically capable of\xe2\x80\x9d bearing arms in one\nand thus even eligible for service. The nature of the weapon at issue, not of the\ndefendants or their activities, appeared to be the key fact, and this aspect of the\nopinion tends to point toward the individual right view rather than the quasicollective right view. In addition, Miller\xe2\x80\x99s broad reading of \xe2\x80\x9cMilitia\xe2\x80\x9d is most\nconsistent with the individual right view, as we explain below in Part II.C.2, and is\nin tension with the quasi-collective right view, under which the militia is understood to refer to select military units, akin to the modern National Guard, organized and armed by the states.14\n13\nSee below Parts II.C (discussing Second Amendment\xe2\x80\x99s preface), III.B\xe2\x80\x93C (discussing Founders\xe2\x80\x99\nrecognition that the individual right to arms furthered the citizen militia), IV.A (discussing early\ncommentators), IV.B.2 (discussing early cases), IV.D (discussing views of Thomas Cooley soon after\nCivil War).\n14\nLater opinions of the Supreme Court appear to accept the individual right view, at least in dicta,\nalthough none is dispositive. In Johnson v. Eisentrager, 339 U.S. 763 (1950), the Court rejected a\nclaim that the Fifth Amendment\xe2\x80\x99s criminal procedure protections applied to nonresident enemy aliens\nby pointing out, among other things, that a contrary view would require also applying the \xe2\x80\x9ccompanion\n\n130\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nThree years after Miller, in Cases v. United States, the First Circuit read Miller\nto turn solely on the type of weapon at issue and to suggest an individual right\nview of the Second Amendment: \xe2\x80\x9cApparently, then, under the Second Amendment\n[as interpreted in Miller], the federal government . . . cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia.\xe2\x80\x9d But the court doubted that Miller\n\xe2\x80\x9cwas attempting to formulate a general rule applicable to all cases,\xe2\x80\x9d warned of the\nconsequences of such a view, and asserted that it was \xe2\x80\x9cunlikely that the framers of\nthe Amendment intended any such result.\xe2\x80\x9d15 The court, instead, adopted what\namounted to a quasi-collective right view: A person has no right under the Second\nAmendment unless he is \xe2\x80\x9ca member of a[] military organization\xe2\x80\x9d or uses his\nweapon \xe2\x80\x9cin preparation for a military career,\xe2\x80\x9d thus \xe2\x80\x9ccontributing to the efficiency\nof the well regulated militia.\xe2\x80\x9d16 Neither in support of its assertion about the\nFramers\xe2\x80\x99 intent nor in its paragraph fashioning this rule did the court cite any text\nor other authority.\nAlso in 1942, the Third Circuit in United States v. Tot applied Miller\xe2\x80\x99s definition of \xe2\x80\x9cArms\xe2\x80\x9d to affirm the conviction of a defendant who received a pistol in\ninterstate commerce after having been convicted of a felony involving violence.17\nAlternatively, the court rested its affirmance on the ground that the government\nmay prohibit such a convict from possessing a firearm.18 Although either of these\n\ncivil-rights Amendments\xe2\x80\x9d in the Bill of Rights, including the Second Amendment. Id. at 784 (\xe2\x80\x9cduring\nmilitary occupation irreconcilable enemy elements, guerrilla fighters, and \xe2\x80\x98werewolves\xe2\x80\x99 could require\nthe American Judiciary to assure them freedoms of speech, press, and assembly as in the First\nAmendment, right to bear arms as in the Second, security against \xe2\x80\x98unreasonable\xe2\x80\x99 searches and seizures\nas in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments\xe2\x80\x9d). In Konigsberg v.\nState Bar of Cal., 366 U.S. 36 (1961), the Court, citing Miller, again equated the Second Amendment\nright with the rights secured by the First Amendment. Id. at 49 n.10. More recent cases have assumed\nan individual right in dicta by listing the Second Amendment right among the personal rights\ncomposing the \xe2\x80\x9cliberty\xe2\x80\x9d that the Constitution\xe2\x80\x99s due process provisions protect. See Planned Parenthood v. Casey, 505 U.S. 833, 847 (1992); Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977)\n(plurality opinion) (quoting Poe v. Ullman, 367 U.S. 497, 542\xe2\x80\x9343 (1961) (Harlan, J., dissenting)); id. at\n542 (White, J., dissenting) (same as plurality). But see Adams v. Williams, 407 U.S. 143, 150 (1972)\n(Douglas, J., dissenting) (\xe2\x80\x9cA powerful lobby dins into the ears of our citizenry that these gun purchases\nare constitutional rights protected by the Second Amendment,\xe2\x80\x9d but \xe2\x80\x9c[t]here is no reason why all pistols\nshould not be barred to everyone except the police.\xe2\x80\x9d). The Court in Lewis v. United States, 445 U.S. 65\n(1980), rejected an equal protection challenge to a prohibition against felons possessing firearms. In a\none-sentence footnote explaining why it was applying rational basis review, the Court stated that such a\nprohibition is not \xe2\x80\x9cbased upon constitutionally suspect criteria\xe2\x80\x9d and does not \xe2\x80\x9ctrench upon any\nconstitutionally protected liberties.\xe2\x80\x9d Id. at 65 n.8. Although this language is consistent with the view\nthat the Second Amendment does not secure a right of individuals, it is also consistent with the traditional understanding of the individual right view that the liberty protected by the Second Amendment\ndoes not extend to convicted felons. See notes 19 & 29 below, and the discussions referenced therein.\n15\n131 F.2d 916, 922 (1st Cir. 1942).\n16\nId. at 923.\n17\n131 F.2d 261, 266 (3d Cir. 1942), rev\xe2\x80\x99d on other grounds, 319 U.S. 463 (1943).\n18\nId. The same ground appears to have been available in Cases. See id., 131 F.2d at 919 n.1.\n\n131\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nviews is consistent with an individual right,19 Tot added, in apparent dicta, a oneparagraph historical discussion in support of the view that the Amendment \xe2\x80\x9cwas\nnot adopted with individual rights in mind, but as a protection for the states in the\nmaintenance of their militia organizations against possible encroachments by the\nfederal power.\xe2\x80\x9d20 The court did not address the Amendment\xe2\x80\x99s text but instead\nchiefly relied on the Aymette case\xe2\x80\x99s account of the right that emerged from the\nEnglish Revolution of 1688\xe2\x80\x931689.\nOver the past few decades, the Executive Branch has taken differing views of\nthe right secured by the Second Amendment.21 In 1941, President Roosevelt signed\nlegislation authorizing requisitions of private property for war use that prohibited\nrequisitioning or new registration \xe2\x80\x9cof any firearms possessed by any individual for\nhis personal protection or sport\xe2\x80\x9d and, moreover, any impairing or infringing of\n\xe2\x80\x9cthe right of any individual to keep and bear arms.\xe2\x80\x9d22 In 1959, this Office reviewed\na bill that would have secured the custody and disposition of missiles, rockets, and\nearth satellites. We questioned its definition of \xe2\x80\x9cmissile,\xe2\x80\x9d which included \xe2\x80\x9cprojectile\xe2\x80\x9d and \xe2\x80\x9cseems to include conventional ammunition,\xe2\x80\x9d and we commented that if\nthe bill purported \xe2\x80\x9cto prohibit private individuals from acquiring, possessing, or\nreceiving any standard ammunition for firearms . . . . serious constitutional\nproblems would arise under the Second Amendment.\xe2\x80\x9d23 In commenting on similar\nbills in 1961 and 1962, this Office cited and reaffirmed its 1959 memorandum.24 In\n\n19\n\nRegarding violent felons, although the case involved possession, the court relied on authority for\nregulating the bearing of arms (banning carrying weapons concealed or to the terror of the people). For\nmore on-point authority, see proposals made during the ratifying conventions, discussed below in Part\nIII.C.1, and Emerson, 270 F.3d at 226 n.21; cf. Lewis, 445 U.S. at 65 n.8 (rejecting equal protection\nchallenge to prohibition of felon possessing a firearm); Richardson v. Ramirez, 418 U.S. 24, 53\xe2\x80\x9355\n(1974) (holding constitutional the disenfranchisement of convicted felons who had completed their\nsentences and paroles).\n20\n131 F.2d at 266. The court cited some history from the Founding Era, which we address in Part\nIII.C.1.\n21\nWe have not conducted a review of the government\xe2\x80\x99s litigating positions in the numerous firearms cases since Miller. In its brief in Miller, the government made two alternative arguments. The first\nwas consistent with a quasi-collective right view. See Brief for United States at 9\xe2\x80\x9318, United States v.\nMiller, 307 U.S. 174 (1939) (No. 696). The second (which the Court adopted) was consistent with\neither a quasi-collective or individual right view. See id. at 18\xe2\x80\x9320. Its present litigating position appears\nto be consistent with your 2001 memorandum to U.S. Attorneys endorsing the individual right view.\nSee, e.g., United States v. Lippman, 369 F.3d 1039, 1045 (8th Cir. 2004) (Colloton, J., concurring in\npart and concurring in the judgment).\n22\nProperty Requisition Act, ch. 445, \xc2\xa7 1, 55 Stat. 742, 742.\n23\nMemorandum for Lawrence E. Walsh, Deputy Attorney General, from Paul A. Sweeney, Acting\nAssistant Attorney General, Office of Legal Counsel, Re: H.R. 232, 86th Cong., 1st Sess., a bill \xe2\x80\x9cTo\nprovide for the securing of custody and disposition by the United States of missiles, rockets, earth\nsatellites, and similar devices adaptable to military uses, and for other purposes\xe2\x80\x9d at 1\xe2\x80\x932 (Apr. 9, 1959)\n(emphasis added).\n24\nSee Memorandum for Byron R. White, Deputy Attorney General, from Nicholas deB. Katzenbach, Assistant Attorney General, Office of Legal Counsel, Re: H.R. 2057, a bill to provide for the\nsecuring of custody and disposition by the United States of missiles, rockets, earth satellites, and\n\n132\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\n1965, however, the Justice Department expressly adopted the collective right\ninterpretation in congressional testimony by Attorney General Katzenbach.25\nSoon after, in 1968, Congress passed the first major federal gun regulation\nsince 1938, the Omnibus Crime Control and Safe Streets Act.26 This statute\nproduced a flurry of decisions in the federal courts of appeals rejecting the\nindividual right view. Following the Third Circuit\xe2\x80\x99s dicta in Tot, the Fourth, Sixth,\nSeventh, and Ninth Circuits eventually adopted the collective right view.27\nFollowing the First Circuit in Cases, the Eighth, Tenth, and Eleventh Circuits\nadopted quasi-collective right views.28 As in Tot and Cases, many of these cases,\nparticularly the initial ones, involved constitutional challenges by persons convicted of felonies or violent crimes,29 and some involved challenges to restrictions\nsimilar devices adaptable to military use (May 8, 1961); Memorandum for Byron R. White, Deputy\nAttorney General, from Nicholas deB. Katzenbach, Assistant Attorney General, Office of Legal\nCounsel, Re: Proposed report of the Department of Defense on H.R. 2057 \xe2\x80\x9cTo provide for the securing\nof custody and disposition by the United States of missiles, rockets, earth satellites and similar devices\nadaptable to Military uses, and for other purposes\xe2\x80\x9d at 1 (Mar. 22, 1962).\n25\nSee Federal Firearms Act: Hearings Before the Subcomm. to Investigative Juvenile Delinquency\nof the Senate Comm. on the Judiciary, 89th Cong. 40\xe2\x80\x9341 (1965) (statement of Attorney General\nKatzenbach). For subsequent treatment of the Second Amendment, see, e.g., Memorandum for Richard\nG. Kleindienst, Deputy Attorney General, from William H. Rehnquist, Assistant Attorney General,\nOffice of Legal Counsel, Re: Proposed \xe2\x80\x9cFederal Gun Registration and Licensing Act of 1969\xe2\x80\x9d (Feb.\n19, 1969) (in one-sentence discussion, citing Miller and Tot to find no \xe2\x80\x9cserious legal obstacle\xe2\x80\x9d under\nAmendment to proposal for federal registration of firearms and limited federal licensing); Memorandum for D. Lowell Jensen, Assistant Attorney General, Criminal Division, from Theodore B. Olson,\nAssistant Attorney General, Office of Legal Counsel, Re: Proposed Legislation Relating to Firearms\nand to Mandatory Sentencing, at 2 (May 27, 1981) (citing Miller as basis for \xe2\x80\x9cperceiv[ing] no basis for\nsuggesting that the [1968 Gun Control] Act so interferes with the powers of the States to raise militias\nas to transgress the Second Amendment\xe2\x80\x9d); Firearm Owners\xe2\x80\x99 Protection Act, Pub. L. No. 99-308,\n\xc2\xa7 1(b)(1)(A), 100 Stat. 449, 449 (1986), codified at 18 U.S.C. \xc2\xa7 921 note (2000) (law signed by\nPresident Reagan that recognized \xe2\x80\x9cthe right[] of citizens . . . to keep and bear arms under the second\namendment\xe2\x80\x9d).\n26\nPub. L. No. 90-351, 82 Stat. 197.\n27\nSee, e.g., Love v. Pepersack, 47 F.3d 120, 122\xe2\x80\x9324 (4th Cir. 1995); United States v. Warin, 530\nF.2d 103, 105\xe2\x80\x9307, 108 (6th Cir. 1976) (dismissing \xe2\x80\x9cthe erroneous supposition that the Second Amendment is concerned with the rights of individuals rather than those of the States\xe2\x80\x9d and rejecting claim\ninvolving gun admittedly bearing reasonable relationship to preservation or efficiency of the army);\nGillespie v. City of Indianapolis, 185 F.3d 693, 710\xe2\x80\x9311 (7th Cir. 1999); Hickman v. Block, 81 F.3d 98,\n99\xe2\x80\x93102 (9th Cir. 1996). The Third Circuit\xe2\x80\x99s present position is at least the quasi-collective right view,\nif not the collective right view. See United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996).\n28\nSee, e.g., United States v. Hale, 978 F.2d 1016, 1019\xe2\x80\x9320 (8th Cir. 1992); United States v. Oakes,\n564 F.2d 384, 387 (10th Cir. 1977); United States v. Wright, 117 F.3d 1265, 1272\xe2\x80\x9374 (11th Cir. 1997),\nvacated in part on other grounds, 133 F.3d 1412 (1998). These courts make clear that the right under\nthe quasi-collective right view protects only members of organized militia units such as the National\nGuard, not members of the \xe2\x80\x9cmilitia\xe2\x80\x9d defined more broadly. Oakes, for example, rejected a claim based\non the defendant\xe2\x80\x99s membership in the Kansas militia, which consisted of all able-bodied men between\ntwenty-one and forty-five. 564 F.2d at 387; see also Wright, 117 F.3d at 1271\xe2\x80\x9374 (similar); Hale, 978\nF.2d at 1020 (similar); Warin, 530 F.2d at 105, 106, 108 (similar).\n29\nSee, e.g., United States v. Baer, 235 F.3d 561, 564 (10th Cir. 2000); Gillespie, 185 F.3d at 710\xe2\x80\x93\n11; Marchese v. California, 545 F.2d 645, 646 (9th Cir. 1976); United States v. Johnson, 497 F.2d 548,\n\n133\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\non carrying concealed weapons.30 These decisions did not analyze, at least not in\ndepth, the Amendment\xe2\x80\x99s text or history. Rather, they relied on Tot or Cases (or\ntheir progeny), claimed support from Miller, or both. As the Ninth Circuit recently\nrecognized in the course of adhering to its collective right position, these earlier\ndecisions reached their conclusions \xe2\x80\x9cwith comparatively little analysis,\xe2\x80\x9d \xe2\x80\x9clargely\non the basis of the rather cursory discussion in Miller, and touched only briefly on\nthe merits of the debate.\xe2\x80\x9d31\nIn contrast, the burgeoning scholarly literature on the Second Amendment in\nthe past two decades has explored the meaning of the Second Amendment in great\ndetail. The collective right and quasi-collective right positions have many\nadherents,32 although the preponderance of modern scholarship appears to support\nthe individual right view.33\n550 (4th Cir. 1974) (per curiam); Cody v. United States, 460 F.2d 34, 35\xe2\x80\x9337 (8th Cir. 1972); Stevens v.\nUnited States, 440 F.2d 144, 149 (6th Cir. 1971); United States v. Synnes, 438 F.2d 764, 766 (8th Cir.\n1971), vacated on other grounds, 404 U.S. 1009 (1972). Courts have recognized that such holdings\ncould be consistent with an individual right view. See United States v. Price, 328 F.3d 958, 961 (7th\nCir. 2003); supra note 19 (discussing Tot); cf. Emerson, 270 F.3d at 261 (upholding prohibition on\npossession of firearm by person subject to domestic violence restraining order by concluding that\nAmendment protected an individual right but finding no violation); Lippman, 369 F.3d at 1044\xe2\x80\x9345\n(Colloton, J.) (similar).\n30\nSee Hickman, 81 F.3d at 99\xe2\x80\x93103; Thomas v. Members of City Council of Portland, 730 F.2d 41,\n42 (1st Cir. 1984) (per curiam). Courts have recognized that such holdings also could be consistent\nwith an individual right view. See Parker, 362 F.3d at 1285\xe2\x80\x9386 (Kelly, J., concurring) (arguing for\nupholding conviction on narrower ground that case involved reasonable restriction on concealed\nweapons, and criticizing circuit courts, in interpreting Second Amendment, for ignoring \xe2\x80\x9cthe universal\nadmonition to decide constitutional issues narrowly\xe2\x80\x9d); Part IV.B.2 (discussing cases recognizing individual right but rejecting right to carry concealed weapons).\n31\nSilveira, 312 F.3d at 1063\xe2\x80\x9364 & n.11.\n32\nFor a symposium of articles spanning the views, see The Second Amendment Today: Historical\nand Contemporary Perspectives on the Constitutionality of Firearms Regulation, 29 N. Ky. L. Rev.\n643 (2002), and for articles critical of the individual right view, see Symposium on the Second\nAmendment: Fresh Looks, 76 Chi.-Kent L. Rev. 3 (2000). See also, e.g., Garry Wills, A Necessary\nEvil: A History of American Distrust of Government 207\xe2\x80\x9321, 256\xe2\x80\x9360 (1999); Andrew D. Herz, Gun\nCrazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility, 75 B.U. L. Rev.\n57 (1995); Richard M. Aborn, Essay, The Battle Over the Brady Bill and the Future of Gun Control\nAdvocacy, 22 Fordham Urb. L.J. 417 (1995); Carl T. Bogus, Essay, Race, Riots, and Guns, 66 S. Cal.\nL. Rev. 1365 (1993); Dennis A. Henigan, Arms, Anarchy and the Second Amendment, 26 Val. U. L.\nRev. 107 (1991); Wendy Brown, Comment, Guns, Cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson\xe2\x80\x99s The Embarrassing Second Amendment, 99 Yale L.J. 661 (1989);\nKeith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You\nSeen Your Militia Lately?, 15 U. Dayton L. Rev. 5 (1989); Samuel Fields, Guns, Crime and the\nNegligent Gun Ownerin, 10 N. Ky. L. Rev. 141 (1982); Warren Spannaus, State Firearms Regulation\nand the Second Amendment, 6 Hamline L. Rev. 383 (1983); cf. David Yassky, The Second Amendment:\nStructure, History, and Constitutional Change, 99 Mich. L. Rev. 588 (2000); David C. Williams, Civic\nRepublicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale L.J. 551, 554\xe2\x80\x9355\n(1991).\n33\nSee, e.g., 1 Laurence H. Tribe, American Constitutional Law 900 & 902 n.221 (3d ed. 2000);\nNelson Lund, The Ends of Second Amendment Jurisprudence: Firearms Disabilities and Domestic\nViolence Restraining Orders, 4 Tex. Rev. L. & Pol. 157 (1999); Leonard W. Levy, Origins of the Bill\n\n134\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nRecent decisions of the Fifth and Ninth Circuits have begun to remedy the\nrelatively sparse judicial analysis of the meaning of the Second Amendment. In\n2001, the Fifth Circuit in United States v. Emerson adopted the individual right\nview, based on an extensive analysis of the Amendment\xe2\x80\x99s text and history.34 The\nfollowing year, the Ninth Circuit in Silveira v. Lockyer rejected Emerson with an\nextended counter-analysis and reaffirmed its adherence to the collective right\nview.35 Six members of the Ninth Circuit dissented from denial of rehearing en\nbanc and endorsed an individual right view.36\nIn sum, the question of who possesses the right secured by the Second\nAmendment remains open and unsettled in the courts and among scholars.\nAccordingly, we turn to the Amendment\xe2\x80\x99s text, as commonly understood at the\ntime of its adoption and interpreted in light of other provisions of the Constitution\nand the Amendment\xe2\x80\x99s historical antecedents, to discern its proper meaning.\n\nof Rights 134 (1999); Ronald S. Resnick, Private Arms as the Palladium of Liberty: The Meaning of\nthe Second Amendment, 77 U. Det. Mercy L. Rev. 1 (1999); Brannon P. Denning, Gun Shy: The\nSecond Amendment as an \xe2\x80\x9cUnderenforced Constitutional Norm,\xe2\x80\x9d 21 Harv. J.L. & Pub. Pol\xe2\x80\x99y 719\n(1998); L.A. Powe, Jr., Guns, Words, and Constitutional Interpretation, 38 Wm. & Mary L. Rev. 1311\n(1997); Nelson Lund, The Past and Future of the Individual\xe2\x80\x99s Right to Arms, 31 Ga. L. Rev. 1 (1996);\nRandy E. Barnett & Don B. Kates, Under Fire: The New Consensus on the Second Amendment, 45\nEmory L.J. 1139 (1996); Glenn Harlan Reynolds & Don B. Kates, The Second Amendment and States\xe2\x80\x99\nRights: A Thought Experiment, 36 Wm. & Mary L. Rev. 1737 (1995); David B. Kopel, It Isn\xe2\x80\x99t About\nDuck Hunting: The British Origin of the Right to Arms, 93 Mich. L. Rev. 1333, 1355 (1995); William\nVan Alstyne, Essay, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236;\nJoyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (1994);\nClayton E. Cramer, For the Defense of Themselves and the State: The Original Intent and Judicial\nInterpretation of the Right to Keep and Bear Arms (1994); Akhil Reed Amar, The Bill of Rights as a\nConstitution, 100 Yale L.J. 1131, 1162\xe2\x80\x9368 (1991); Robert J. Cottrol & Raymond T. Diamond, The\nSecond Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309 (1991); Sanford\nLevinson, Comment, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989); Nelson Lund,\nThe Second Amendment, Political Liberty, and the Right to Self-Preservation, 39 Ala. L. Rev. 103\n(1987); David T. Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second\nAmendment, 9 Harv. J.L. & Pub. Pol\xe2\x80\x99y 559 (1986); Don B. Kates, Jr., The Second Amendment: A\nDialogue, 49 Law & Contemp. Probs. 143 (Winter 1986); Stephen P. Halbrook, That Every Man Be\nArmed: The Evolution of a Constitutional Right (1984); Don B. Kates, Jr., Handgun Prohibition and\nthe Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983); see also Printz v.\nUnited States, 521 U.S. 898, 938 n.2 (1997) (Thomas., J., concurring) (noting \xe2\x80\x9cgrowing body of scholarly commentary indicat[ing] that the [right]\xe2\x80\x9d is a personal one); Emerson, 270 F.3d at 220 (similar).\n34\n270 F.3d at 227\xe2\x80\x9360.\n35\n312 F.3d at 1060\xe2\x80\x9387.\n36\nSilveira v. Lockyer, 328 F.3d 567, 570 (9th Cir. 2003) (Kleinfeld, J., joined by Kozinski,\nO\xe2\x80\x99Scannlain, and T.G. Nelson, JJ., dissenting from denial of rehearing en banc); see 328 F.3d at 568\n(Pregerson, J., same); id. at 568 (Kozinski, J., same); id. at 592 (Gould, J., joined by Kozinski, J.,\nsame). For other recent opinions of Ninth Circuit judges endorsing the individual right view and\ncriticizing Silveira, see Nordyke, 319 F.3d at 1195 (Gould, J., concurring); Nordyke v. King, 364 F.3d\n1025, 1025 (9th Cir. 2004) (Kleinfeld, J., dissenting from denial of rehearing en banc); id. at 1026\n(Gould, J., joined by O\xe2\x80\x99Scannlain, Kleinfeld, Tallman, and Bea, JJ., same).\n\n135\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nII. Textual and Structural Analysis\nThe Second Amendment of the United States Constitution, part of the Bill of\nRights, reads in full as follows:\nA well regulated Militia, being necessary to the security of a free\nState, the right of the people to keep and bear Arms, shall not be infringed.\nThe Amendment expressly protects a \xe2\x80\x9cright of the people,\xe2\x80\x9d which is \xe2\x80\x9cto keep and\nbear Arms\xe2\x80\x9d and which has some relation to the prefatory declaration that a \xe2\x80\x9cwell\nregulated Militia\xe2\x80\x9d is necessary for the ultimate end of \xe2\x80\x9cthe security of a free\nState.\xe2\x80\x9d We address each of these phrases in turn and then consider how the\nstructure of the Constitution illuminates the Amendment\xe2\x80\x99s meaning.\nAs explained below, the text of the Second Amendment points to a personal\nright of individuals: A \xe2\x80\x9cright of the people\xe2\x80\x9d is ordinarily and most naturally a right\nof individuals, not of a state and not merely of those serving the state as militiamen. The phrase \xe2\x80\x9ckeep arms\xe2\x80\x9d at the time of the Founding usually indicated the\nprivate ownership and retention of arms by individuals as individuals, not the\nstockpiling of arms by a government or its soldiers, and the phrase certainly had\nthat meaning when used in connection with a \xe2\x80\x9cright of the people.\xe2\x80\x9d While the\nphrase \xe2\x80\x9cbear arms\xe2\x80\x9d often referred to carrying of arms in military service, it also\nsometimes denoted carrying arms for private purposes. The Amendment\xe2\x80\x99s\nprefatory clause, considered under proper rules of interpretation, could not negate\nthe individual right recognized in the clear language of the operative clause. In any\nevent, the prefatory clause\xe2\x80\x94particularly its reference to the \xe2\x80\x9cMilitia,\xe2\x80\x9d which was\nunderstood at the Founding to encompass all able-bodied male citizens, who were\nrequired to be enrolled for service\xe2\x80\x94is fully consistent with an individual right\nreading of the operative language. Moreover, the Second Amendment appears in\nthe Bill of Rights amid amendments securing numerous individual rights, a\nplacement that makes it likely that the right of the people to keep and bear arms\nlikewise belongs to individuals. Finally, a consideration of the powers that the\noriginal Constitution grants or allows over the militia makes it unlikely that the\nSecond Amendment would secure a collective or quasi-collective right.\nA. \xe2\x80\x9cThe Right of the People\xe2\x80\x9d\nThe Second Amendment\xe2\x80\x99s recognition of a \xe2\x80\x9cright\xe2\x80\x9d that belongs to \xe2\x80\x9cthe people\xe2\x80\x9d\nindicates a right of individuals. The word \xe2\x80\x9cright,\xe2\x80\x9d standing by itself in the\nConstitution, is clear. Although in some contexts entities other than individuals are\n\n136\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nsaid to have \xe2\x80\x9crights,\xe2\x80\x9d37 the Constitution itself does not use the word \xe2\x80\x9cright\xe2\x80\x9d in this\nmanner. Setting aside the Second Amendment, not once does the Constitution\nconfer a \xe2\x80\x9cright\xe2\x80\x9d on any governmental entity, state or federal. Nor does it confer\nany \xe2\x80\x9cright\xe2\x80\x9d restricted to persons in governmental service, such as members of an\norganized military unit. In addition to its various references to a \xe2\x80\x9cright of the\npeople\xe2\x80\x9d discussed below, the Constitution in the Sixth Amendment secures\n\xe2\x80\x9cright[s]\xe2\x80\x9d to an accused person, and in the Seventh secures a person\xe2\x80\x99s \xe2\x80\x9cright\xe2\x80\x9d to a\njury trial in civil cases.38 By contrast, governments, whether state or federal, have\nin the Constitution only \xe2\x80\x9cpowers\xe2\x80\x9d or \xe2\x80\x9cauthority.\xe2\x80\x9d39 It would be a marked anomaly\nif \xe2\x80\x9cright\xe2\x80\x9d in the Second Amendment departed from such uniform usage throughout\nthe Constitution.\nIn any event, any possible doubt vanishes when \xe2\x80\x9cright\xe2\x80\x9d is conjoined with \xe2\x80\x9cthe\npeople,\xe2\x80\x9d as it is in the Second Amendment. Such a right belongs to individuals:\nThe \xe2\x80\x9cpeople\xe2\x80\x9d are not a \xe2\x80\x9cState,\xe2\x80\x9d nor are they identical with the \xe2\x80\x9cMilitia.\xe2\x80\x9d Indeed,\nthe Second Amendment distinctly uses all three of these terms, yet it secures a\n\xe2\x80\x9cright\xe2\x80\x9d only to the \xe2\x80\x9cpeople.\xe2\x80\x9d The phrase \xe2\x80\x9cthe right of the people\xe2\x80\x9d appears two\nother times in the Bill of Rights, and both times refers to a personal right, which\nbelongs to individuals. The First Amendment secures \xe2\x80\x9cthe right of the people\npeaceably to assemble, and to petition the Government for a redress of grievances,\xe2\x80\x9d and the Fourth safeguards \xe2\x80\x9c[t]he right of the people to be secure in their\npersons, houses, papers, and effects, against unreasonable searches and seizures.\xe2\x80\x9d\nIn addition, the Ninth Amendment refers to \xe2\x80\x9crights . . . retained by the people.\xe2\x80\x9d\nWe see no reason to read the phrase in the Second Amendment to mean something\nother than what it plainly means in these neighboring and contemporaneous\namendments.\nThe Supreme Court, in interpreting the Fourth Amendment, likewise has recognized that the Constitution uses \xe2\x80\x9cthe people,\xe2\x80\x9d and especially \xe2\x80\x9cthe right of the\npeople,\xe2\x80\x9d to refer to individuals:\n\xe2\x80\x9c[T]he people\xe2\x80\x9d seems to have been a term of art employed in select\nparts of the Constitution. The Preamble declares that the Constitution\nis ordained and established by \xe2\x80\x9cthe People of the United States.\xe2\x80\x9d The\nSecond Amendment protects \xe2\x80\x9cthe right of the people to keep and\nbear Arms,\xe2\x80\x9d and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to \xe2\x80\x9cthe people.\xe2\x80\x9d\nSee also U.S. Const., Amdt. 1 (\xe2\x80\x9cCongress shall make no law . . .\n\n37\n\nFor example, Article II of the Articles of Confederation, drafted a decade before the Constitution,\nreserved to each state \xe2\x80\x9cevery power, jurisdiction, and right\xe2\x80\x9d not expressly delegated to the federal\ngovernment.\n38\nIn addition, the Copyright and Patent Clause authorizes Congress to grant an \xe2\x80\x9cexclusive Right\xe2\x80\x9d to\nauthors and inventors for a limited time. U.S. Const. art. I, \xc2\xa7 8, cl. 8.\n39\nSee, e.g., U.S. Const. art. I, \xc2\xa7 1; id. art. I, \xc2\xa7 8; id. art. II, \xc2\xa7 1; id. art. III, \xc2\xa7 1; id. amend. X.\n\n137\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nabridging . . . the right of the people peaceably to assemble\xe2\x80\x9d) (emphasis added); Art. I, \xc2\xa7 2, cl. 1 (\xe2\x80\x9cThe House of Representatives shall\nbe composed of Members chosen every second Year by the People\nof the several States\xe2\x80\x9d) (emphasis added). While this textual exegesis\nis by no means conclusive, it suggests that \xe2\x80\x9cthe people\xe2\x80\x9d protected by\nthe Fourth Amendment, and by the First and Second Amendments,\nand to whom rights and powers are reserved in the Ninth and Tenth\nAmendments, refers to a class of persons who are part of a national\ncommunity or who have otherwise developed sufficient connection\nwith this country to be considered part of that community.40\nThomas Cooley, the leading constitutional scholar after the Civil War, took the\nsame view in explaining \xe2\x80\x9cthe people\xe2\x80\x9d in the context of the First Amendment:\n\xe2\x80\x9cWhen the term \xe2\x80\x98the people\xe2\x80\x99 is made use of in constitutional law or discussions, it\nis often the case that those only are intended who have a share in the government\nthrough being clothed with the elective franchise. . . . But in all the enumerations\nand guaranties of rights the whole people are intended, because the rights of all\nare equal, and are meant to be equally protected.\xe2\x80\x9d41\nThe Constitution confirms this meaning of \xe2\x80\x9cthe people\xe2\x80\x9d as individuals by expressly distinguishing the \xe2\x80\x9cpeople\xe2\x80\x9d from the \xe2\x80\x9cStates,\xe2\x80\x9d using each word to refer to a\ndistinct thing. Indeed, the Second Amendment itself refers separately to \xe2\x80\x9cthe\npeople\xe2\x80\x9d and the \xe2\x80\x9cState.\xe2\x80\x9d And the difference is firmly established by the Tenth\nAmendment, which distinguishes between the powers reserved \xe2\x80\x9cto the States\xe2\x80\x9d and\nthose reserved \xe2\x80\x9cto the people.\xe2\x80\x9d The \xe2\x80\x9cpeople\xe2\x80\x9d are the individuals who compose the\nstates, distinct from\xe2\x80\x94and bearing their federal \xe2\x80\x9crights\xe2\x80\x9d apart from\xe2\x80\x94those\nentities.42\nSimilarly, the Constitution gives distinct meanings to \xe2\x80\x9cthe people\xe2\x80\x9d and the\n\xe2\x80\x9cMilitia.\xe2\x80\x9d Again, the Second Amendment itself is a notable example, referring to\n40\nUnited States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990); see also id. at 279 (Stevens, J.,\nconcurring in judgment) (\xe2\x80\x9caliens who are lawfully present in the United States are among those\n\xe2\x80\x98people\xe2\x80\x99 who are entitled to the protection of the Bill of Rights, including the Fourth Amendment\xe2\x80\x9d); id.\nat 287\xe2\x80\x9388 (Brennan, J., dissenting) (similar; contending that \xe2\x80\x9c\xe2\x80\x98the people\xe2\x80\x99\xe2\x80\x9d is broader than \xe2\x80\x9c\xe2\x80\x98citizens,\xe2\x80\x99\n\xe2\x80\x98freemen,\xe2\x80\x99 \xe2\x80\x98residents,\xe2\x80\x99 or \xe2\x80\x98the American people\xe2\x80\x99\xe2\x80\x9d). The Ninth Circuit in Silveira did not discuss the\n\xe2\x80\x9cright of the people\xe2\x80\x9d in the Second Amendment, and it disregarded Verdugo-Urquidez except to cite its\nanalysis of \xe2\x80\x9cthe people\xe2\x80\x9d as an analogy in support of its own reading of \xe2\x80\x9cMilitia.\xe2\x80\x9d See 312 F.3d at 1069\xe2\x80\x93\n70 & n.25, 1071 & n.27. While recognizing that \xe2\x80\x9c[t]he question . . . is not whether arms may be kept,\nbut by whom and for what purpose,\xe2\x80\x9d id. at 1074, the court in Silveira did not consider that the \xe2\x80\x9cwho[]\xe2\x80\x9d\nmight be \xe2\x80\x9cthe people\xe2\x80\x9d to whom the Second Amendment\xe2\x80\x99s text\xe2\x80\x94like that of the First, Fourth, and\nNinth\xe2\x80\x94expressly gives the right.\n41\nThomas M. Cooley, The General Principles of Constitutional Law in the United States of America 267\xe2\x80\x9368 (1880; reprint 2000) (emphasis added).\n42\nOf course the \xe2\x80\x9cpeople\xe2\x80\x9d might choose to exercise those individual rights in groups rather than\nalone, as in the First Amendment right to assemble and petition, but that does not make their rights\n\xe2\x80\x9ccollective\xe2\x80\x9d or quasi-collective in the sense of depending on the will or actions of a state or on one\xe2\x80\x99s\nservice to it.\n\n138\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nthe \xe2\x80\x9cwell regulated Militia\xe2\x80\x9d but granting the \xe2\x80\x9cright\xe2\x80\x9d to \xe2\x80\x9cthe people.\xe2\x80\x9d The Constitution\xe2\x80\x99s other references to \xe2\x80\x9crights\xe2\x80\x9d of \xe2\x80\x9cthe people,\xe2\x80\x9d noted above, cannot plausibly\nbe construed as referring to the \xe2\x80\x9cMilitia.\xe2\x80\x9d In addition, when granting governmental\npower over the militia, the Constitution speaks of the militia expressly, without\nany reference to or suggestion of the broader \xe2\x80\x9cpeople.\xe2\x80\x9d43 And the Fifth Amendment\xe2\x80\x99s Grand Jury Clause, which distinguishes between all \xe2\x80\x9cperson[s]\xe2\x80\x9d and those\nserving in the army, navy, or \xe2\x80\x9cthe Militia, when in actual service,\xe2\x80\x9d indicates that\nwhere the Constitution addresses rights that turn on service in the militia it does so\nexpressly.\nThe only truly \xe2\x80\x9ccollective\xe2\x80\x9d use of the \xe2\x80\x9cthe people\xe2\x80\x9d at the time of the Founding\nwas to refer to the people as they existed apart from government or any service to\nit. The Declaration of Independence refers to \xe2\x80\x9cone People\xe2\x80\x9d dissolving their\npolitical bonds with another and forming their own nation, and \xe2\x80\x9cWe the people\xe2\x80\x9d\ncreated the Constitution in ratifying conventions chosen \xe2\x80\x9cby the People\xe2\x80\x9d of each\nstate.44 Thus, even in this context, the \xe2\x80\x9cpeople\xe2\x80\x9d are distinguished from \xe2\x80\x9cthe\ngovernment\xe2\x80\x9d or \xe2\x80\x9cthe State\xe2\x80\x9d; nor can the term plausibly be limited to the \xe2\x80\x9cMilitia.\xe2\x80\x9d\nAnd when \xe2\x80\x9cthe people\xe2\x80\x9d appears in the phrase \xe2\x80\x9cthe right of the people\xe2\x80\x9d in the\nConstitution, we conclude that it indicates a personal right of individuals, whether\nthat be a right to assemble and petition, to be secure in one\xe2\x80\x99s person and property,\nor to keep and bear arms.\nB. \xe2\x80\x9cTo Keep and Bear Arms\xe2\x80\x9d\nThe \xe2\x80\x9cright of the people\xe2\x80\x9d that the Second Amendment secures is a right \xe2\x80\x9cto\nkeep and bear Arms.\xe2\x80\x9d As the previous subpart showed, those who hold the right\nare, according to the text, \xe2\x80\x9cthe people\xe2\x80\x9d\xe2\x80\x94individuals\xe2\x80\x94not the government or even\nthe militia. The phrase \xe2\x80\x9cto keep and bear Arms\xe2\x80\x9d is consistent with this conclusion:\nThe phrase \xe2\x80\x9ckeep . . . Arms\xe2\x80\x9d reinforces it,45 and the phrase \xe2\x80\x9cbear Arms\xe2\x80\x9d is not\ninconsistent with it.\n43\n\nU.S. Const. art. I, \xc2\xa7 8, cls. 15\xe2\x80\x9316; id. art. II, \xc2\xa7 2, cl. 1.\nThe last quotation is from the Constitutional Convention\xe2\x80\x99s resolution transmitting the proposed\nConstitution to the Congress. 2 The Records of the Federal Convention of 1787, at 665 (Max Farrand\ned., rev. ed. 1966). This distinction between the \xe2\x80\x9cpeople\xe2\x80\x9d and the government is why the Founders\ninsisted that the Constitution be ratified by popularly elected special conventions rather than by the\nstate governments, to ensure its supremacy over those governments. See The Federalist No. 39, at 253\xe2\x80\x93\n54 (James Madison) (Jacob E. Cooke ed., 1961); James Madison, Notes of Debates in the Federal\nConvention of 1787, at 70 (1987) (remarks of Madison, June 5, 1787); id. at 348\xe2\x80\x9349 (remarks of\nGeorge Mason and Edmund Randolph, July 23, 1787); id. at 352\xe2\x80\x9353 (remarks of Madison).\n45\nThose who reject the individual right view tend to neglect \xe2\x80\x9ckeep\xe2\x80\x9d or to treat it as redundant with\n\xe2\x80\x9cbear.\xe2\x80\x9d In Silveira, the court found it \xe2\x80\x9cnot clear\xe2\x80\x9d why the word \xe2\x80\x9cwas included in the amendment\xe2\x80\x9d and\nconcluded by summarizing the Amendment as merely protecting a right to \xe2\x80\x9c\xe2\x80\x98bear arms\xe2\x80\x99\xe2\x80\x9d in conjunction\nwith militia service. 312 F.3d at 1074, 1086. See also Michael C. Dorf, What Does the Second Amendment\nMean Today?, 76 Chi.-Kent L. Rev. 291, 317 (2000) (contending without citation that \xe2\x80\x9ckeep and bear\xe2\x80\x9d is\n\xe2\x80\x9ca unitary phrase,\xe2\x80\x9d with \xe2\x80\x9ckeep\xe2\x80\x9d adding nothing to \xe2\x80\x9cbear,\xe2\x80\x9d but admitting possibility that \xe2\x80\x9cthe plain meaning\nof \xe2\x80\x98keep\xe2\x80\x99 would have been sufficient to connote an individual right\xe2\x80\x9d); H. Richard Uviller & William G.\n44\n\n139\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\n1. \xe2\x80\x9cTo Keep . . . Arms\xe2\x80\x9d\nIn eighteenth-century English, an individual could \xe2\x80\x9ckeep arms,\xe2\x80\x9d and keep them\nfor private purposes, unrelated to militia duty, just as he could keep any other\nprivate property, and the phrase was commonly used in this sense. For example, in\nRex v. Gardner (K.B. 1738), a defendant charged with \xe2\x80\x9ckeeping a gun\xe2\x80\x9d in\nviolation of a 1706 English statute (which prohibited commoners from keeping\nspecified objects or \xe2\x80\x9cother engines\xe2\x80\x9d for the destruction of game) argued that\n\xe2\x80\x9cthough there are many things for the bare keeping of which a man may be\nconvicted; yet they are only such as can only be used for destruction of the game,\nwhereas a gun is necessary for defence of a house, or for a farmer to shoot crows.\xe2\x80\x9d\nThe court agreed, reasoning that \xe2\x80\x9ca gun differs from nets and dogs, which can only\nbe kept for an ill purpose.\xe2\x80\x9d46 The Court of Common Pleas six years later treated\nGardner as having \xe2\x80\x9csettled and determined\xe2\x80\x9d that \xe2\x80\x9ca man may keep a gun for the\ndefence of his house and family,\xe2\x80\x9d47 and in 1752 the King\xe2\x80\x99s Bench reiterated that \xe2\x80\x9ca\ngun may be kept for the defence of a man\xe2\x80\x99s house, and for divers other lawful\npurposes.\xe2\x80\x9d48 The same usage appeared in an earlier prosecution of a man for\n\xe2\x80\x9ckeeping of a gun\xe2\x80\x9d contrary to a statute that barred all but the wealthy from\nprivately owning small handguns.49\nWilliam Blackstone, whose Commentaries on the Laws of England, first published in the decade before the American Revolution, was the leading legal\nauthority in America at the Founding, wrote, without any reference to the militia,\nof \xe2\x80\x9cperson[s]\xe2\x80\x9d who are \xe2\x80\x9cqualified to keep a gun\xe2\x80\x9d and are \xe2\x80\x9cshooting at a mark,\xe2\x80\x9d\napparently on their own property.50 He also noted that certain persons could not\n\nMerkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 Chi.-Kent L. Rev.\n403, 424\xe2\x80\x9325, 508, 549\xe2\x80\x9350, 593 (2000) (similar).\n46\n2 Strange Rep. 1098, 1098 (applying 5 Ann., c. 14 (1706)); see Rex v. Gardner, 87 Eng. Rep.\n1240, 7 Mod. Rep. 279 (K.B. 1739) (apparently later case, but similar); id. at 1241 (defendant, arguing\nthat \xe2\x80\x9cto charge only that he kept a gun is improper, for it includes every man that keeps a gun,\xe2\x80\x9d and that\nguns are kept \xe2\x80\x9cfor the defence of a man\xe2\x80\x99s house\xe2\x80\x9d); id. (Lee, C.J.) (words of statute \xe2\x80\x9cdo not extend to\nprohibit a man from keeping a gun for his necessary defence\xe2\x80\x9d); id. (Probyn, J.) (\xe2\x80\x9cfarmers are generally\nobliged to keep a gun, and are no more within the Act for doing so than they are for keeping a cabbagenet\xe2\x80\x9d).\n47\nMallock v. Eastly, 87 Eng. Rep. 1370, 1374, 7 Mod. Rep. 482 (C.P. 1744).\n48\nWingfield v. Stratford, 96 Eng. Rep. 787, 787, Sayer Rep. 15 (K.B. 1752).\n49\nKing v. Silcot, 87 Eng. Rep. 186, 186, 3 Mod. Rep. 280 (K.B. 1690) (italics omitted) (interpreting\n33 Hen. VIII, c. 6 (1541), and quashing indictment because it did not specifically allege that defendant\xe2\x80\x99s income was insufficient when he kept the gun).\n50\n4 William Blackstone, Commentaries *182. The qualification to which Blackstone refers is a\nwealth requirement tied to the game laws, see id. at *174\xe2\x80\x9375, which we discuss in Part III.A and\nelsewhere. Regarding Blackstone\xe2\x80\x99s influence and authority, see, e.g., Madison, Notes of Debates, supra\nnote 44, at 547 (remarks of Dickenson, Aug. 29, 1787); The Federalist No. 69, at 465 n.* (Alexander\nHamilton); The Federalist No. 84, at 577 (Alexander Hamilton); Malcolm, To Keep and Bear Arms,\nsupra note 33, at 130; Schick v. United States, 195 U.S. 65, 69 (1904). Edmund Burke informed\nParliament that \xe2\x80\x9cthey have sold nearly as many of Blackstone\xe2\x80\x99s Commentaries in America as in\n\n140\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\n\xe2\x80\x9ckeep arms in their houses,\xe2\x80\x9d pursuant to a statute that used \xe2\x80\x9ckeep\xe2\x80\x9d to signify\nprivate ownership and control over arms, wherever located.51 Colonial and early\nstate statutes similarly used \xe2\x80\x9ckeep\xe2\x80\x9d to \xe2\x80\x9cdescribe arms possession by individuals in\nall contexts,\xe2\x80\x9d including requiring those exempt from militia service (such as the\nover-aged) to \xe2\x80\x9ckeep\xe2\x80\x9d arms in their homes for both law enforcement and \xe2\x80\x9cthe\ndefense of their homes from criminals or foreign enemies.\xe2\x80\x9d52 At the Massachusetts\nRatifying Convention in 1788, Samuel Adams proposed an amendment prohibiting Congress from \xe2\x80\x9cprevent[ing] the people of the United States, who are peaceable citizens, from keeping their own arms,\xe2\x80\x9d indicating ownership by individuals of\nprivate arms.53 And that state\xe2\x80\x99s Supreme Court, in a libel case soon after the\nFounding, likened the \xe2\x80\x9cright to keep fire arms\xe2\x80\x9d to the freedom of the press, both\nbeing individual but not unlimited rights\xe2\x80\x94the former not protecting \xe2\x80\x9chim who\nuses them for annoyance or destruction.\xe2\x80\x9d54 The basic dictionary definition of\n\xe2\x80\x9ckeep\xe2\x80\x9d\xe2\x80\x94\xe2\x80\x9d[t]o retain\xe2\x80\x9d and \xe2\x80\x9c[t]o have in custody\xe2\x80\x9d\xe2\x80\x94was consistent with this\nspecific meaning.55\nIn short, the phrase \xe2\x80\x9ckeep arms\xe2\x80\x9d was commonly understood to denote ownership of arms by private citizens for private purposes. When that phrase is read\ntogether with its subject\xe2\x80\x94\xe2\x80\x9dthe right of the people\xe2\x80\x9d\xe2\x80\x94the evidence points strongly\ntoward an individual right. Had the Constitution meant not to protect the right of\nthe whole \xe2\x80\x9cpeople\xe2\x80\x9d to \xe2\x80\x9ckeep\xe2\x80\x9d arms but instead to establish a \xe2\x80\x9cright\xe2\x80\x9d of the states or\nof only the members of their militias to store them, presumably it would have used\ndifferent language.56\n\nEngland.\xe2\x80\x9d Speech Concerning Resolutions for Conciliation With the Colonies (Mar. 22, 1775), in\nEdmund Burke, Pre-Revolutionary Writings 206, 225 (Ian Harris ed., 1993).\n51\n4 William Blackstone, Commentaries *56; see id. (person barred from \xe2\x80\x9ckeeping arms in his\nhouse\xe2\x80\x9d). See also 1 W. & M., 1st Sess., c. 15, \xc2\xa7 3 (1688) (\xe2\x80\x9cno papist . . . shall or may have or keep in\nhis house, or elsewhere, or in the possession of any other person to his use, or at his disposition, any\narms, weapons, gunpowder, or ammunition\xe2\x80\x9d).\n52\nKates, supra note 33, 82 Mich. L. Rev. at 215, 219.\n53\nWe discuss this proposal below in Part III.C.1.\n54\nCommonwealth v. Blanding, 20 Mass. (3 Pick.) 304, 338 (1825).\n55\nSamuel Johnson, A Dictionary of the English Language (1755) (unpaginated). See Noah Webster,\nAn American Dictionary of the English Language (1828) (unpaginated) (defining \xe2\x80\x9cKeep\xe2\x80\x9d first as \xe2\x80\x9cTo\nhold; to retain in one\xe2\x80\x99s power or possession\xe2\x80\x9d).\n56\nSee Stephen P. Halbrook, A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees 94 (1989) (contending that \xe2\x80\x9ccommon linguistic usage of the day . . . referr[ed] to the\ndepositing of public arms in an arsenal, in contrast with the keeping of private arms by the people,\xe2\x80\x9d and\nproviding an example of the former usage in a 1789 state statute); cf. U.S. Const. art. I, \xc2\xa7 10, cl. 3 (\xe2\x80\x9cNo\nState shall . . . keep Troops\xe2\x80\x9d without Congress\xe2\x80\x99s consent) (emphasis added). When members of a\nmilitia, as opposed to the people in general, retained their own arms for militia service, common usage\nseems to have been to speak of them \xe2\x80\x9cproviding\xe2\x80\x9d themselves with weapons, see Militia Act, ch. 33, \xc2\xa7 1,\n1 Stat. 271 (1792); Thomas Jefferson, Notes on the State of Virginia 88 (William Peden ed., 1955);\n1 The Papers of George Mason, 1725\xe2\x80\x931792, at 212 (Robert A. Rutland ed., 1970), although we do not\nmean to claim that one could not speak of militiamen \xe2\x80\x9ckeeping\xe2\x80\x9d arms for militia use.\n\n141\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\n2. \xe2\x80\x9cTo . . . Bear Arms\xe2\x80\x9d\nTo \xe2\x80\x9cbear\xe2\x80\x9d was, at the Founding as now, a word with numerous definitions\xe2\x80\x94\nused with great \xe2\x80\x9clatitude\xe2\x80\x9d and \xe2\x80\x9cin very different senses,\xe2\x80\x9d as Samuel Johnson noted\nin his dictionary.57 Its basic meaning was simply to \xe2\x80\x9ccarry\xe2\x80\x9d or \xe2\x80\x9cwear\xe2\x80\x9d something,\nparticularly carrying or wearing in a way that would be known to others, such as in\nbearing a message, bearing another person, or bearing something as a mark of\nauthority or distinction.58 As a result, \xe2\x80\x9cbear,\xe2\x80\x9d when taking \xe2\x80\x9carms\xe2\x80\x9d as its object,\ncould refer to multiple contexts in which one might carry or wear arms in this\nway.59 It is true that \xe2\x80\x9cbear arms\xe2\x80\x9d often did refer to carrying arms in military\nservice.60 But the phrase was not a term of art limited to this sense. Arms also\ncould be \xe2\x80\x9cborne\xe2\x80\x9d for private, non-military purposes, principally tied to selfdefense. For example, an early colonial statute in Massachusetts required every\n\xe2\x80\x9cfreeman or other inhabitant\xe2\x80\x9d to provide arms for himself and anyone else in his\nhousehold able to \xe2\x80\x9cbeare armes,\xe2\x80\x9d and one in Virginia required \xe2\x80\x9call men that are\nfittinge to beare armes\xe2\x80\x9d to \xe2\x80\x9cbring their pieces\xe2\x80\x9d to church.61\nThere are also several examples closer to the Founding. In 1779, a committee\nof eminent Virginians including Thomas Jefferson and George Mason, charged\nwith revising the new state\xe2\x80\x99s laws, authored a bill penalizing any person who,\nwithin a year of having violated a restriction on hunting deer, \xe2\x80\x9cshall bear a gun out\nof his inclosed ground, unless whilst performing military duty.\xe2\x80\x9d This bill demonstrates that to \xe2\x80\x9cbear a gun\xe2\x80\x9d was not limited to \xe2\x80\x9cperforming military duty.\xe2\x80\x9d James\nMadison submitted this bill to the Virginia legislature in 1785.62 Many early state\n57\n\nJohnson, Dictionary, supra note 55 (unpaginated).\nSee id. (defining \xe2\x80\x9cbear\xe2\x80\x9d as to \xe2\x80\x9ccarry as a burden,\xe2\x80\x9d \xe2\x80\x9cconvey or carry,\xe2\x80\x9d \xe2\x80\x9ccarry as a mark of authority\xe2\x80\x9d (such as a sword), \xe2\x80\x9ccarry as a mark of distinction\xe2\x80\x9d (such as to \xe2\x80\x9cbear arms in a coat\xe2\x80\x9d), and \xe2\x80\x9ccarry as\nin show\xe2\x80\x9d); Webster, American Dictionary, supra note 55 (unpaginated) (defining \xe2\x80\x9cbear\xe2\x80\x9d as to \xe2\x80\x9csupport,\xe2\x80\x9d \xe2\x80\x9csustain,\xe2\x80\x9d \xe2\x80\x9ccarry,\xe2\x80\x9d \xe2\x80\x9cconvey,\xe2\x80\x9d \xe2\x80\x9csupport and remove from place to place,\xe2\x80\x9d \xe2\x80\x9cwear,\xe2\x80\x9d and \xe2\x80\x9cbear as a\nmark of authority or distinction; as, to bear a sword, a badge, a name; to bear arms in a coat\xe2\x80\x9d).\n59\nIn Muscarello v. United States, 524 U.S. 125 (1998), which involved a statute, the Court was\nunanimous in understanding \xe2\x80\x9cbear arms\xe2\x80\x9d to refer generally to a person carrying arms upon his person\nfor the purpose of being armed and ready for offensive or defensive action, the dissent citing the\nSecond Amendment in support of this view. The majority gave \xe2\x80\x9ccarries a firearm\xe2\x80\x9d a broader meaning.\nId. at 130; id. at 139\xe2\x80\x9340, 143 (Ginsburg, J., dissenting).\n60\nSee, e.g., Kates, supra note 33, 82 Mich. L. Rev. at 219 (explaining that, in early colonial statutes, \xe2\x80\x9c\xe2\x80\x98bear\xe2\x80\x99 did generally refer to the carrying of arms by militiamen\xe2\x80\x9d); St. George Tucker, 2\nBlackstone\xe2\x80\x99s Commentaries *408\xe2\x80\x9309 n.1 (1803; reprint 1996) (\xe2\x80\x9cTucker\xe2\x80\x99s Blackstone\xe2\x80\x9d) (discussing\nVirginia law exempting from militia duty those \xe2\x80\x9creligiously scrupulous of bearing arms\xe2\x80\x9d); The\nDeclaration of Independence para. 28 (1776) (\xe2\x80\x9cHe has constrained our fellow Citizens taken Captive on\nthe high Seas to bear Arms against their country.\xe2\x80\x9d). Militia service was not, however, limited to\n\xe2\x80\x9cmilitary\xe2\x80\x9d action. The Constitution speaks of using the militia \xe2\x80\x9cto execute the Laws of the Union,\xe2\x80\x9d\nwhich is distinct from both \xe2\x80\x9crepel[ling] Invasions\xe2\x80\x9d and \xe2\x80\x9csuppress[ing] Insurrections.\xe2\x80\x9d U.S. Const. art. I,\n\xc2\xa7 8, cl. 15.\n61\nQuoted in Malcolm, To Keep and Bear Arms, supra note 33, at 139.\n62\n2 The Papers of Thomas Jefferson 443\xe2\x80\x9344 (Julian P. Boyd ed., 1950). Concerning the Committee\nof Revisors, see id. at 305; 1 Tucker\xe2\x80\x99s Blackstone, supra note 60, Note F, at 444\xe2\x80\x9345.\n58\n\n142\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nconstitutions, including some written before the Founding (Pennsylvania\xe2\x80\x99s and\nVermont\xe2\x80\x99s) and one written a month after Secretary of State Jefferson declared the\nBill of Rights ratified (Kentucky\xe2\x80\x99s), protected an individual\xe2\x80\x99s right to \xe2\x80\x9cbear arms\xe2\x80\x9d\nin \xe2\x80\x9cdefense of himself and the State\xe2\x80\x9d or in \xe2\x80\x9cdefense of themselves and the State,\xe2\x80\x9d\nindicating that a person might be said to \xe2\x80\x9cbear arms\xe2\x80\x9d in self-defense.63 A 1780\nopinion of London\xe2\x80\x99s Recorder (the city\xe2\x80\x99s legal adviser and the primary judge in its\ncriminal court) on the legality of a private self-defense association acknowledged\n\xe2\x80\x9cthe rights of the people of this realm to bear arms, and to instruct themselves in\nthe use of them, collectively,\xe2\x80\x9d albeit within limits.64 In a newspaper commentary\npublished in major cities after Madison introduced the Bill of Rights in Congress,\na friend of his wrote that the proposed Second Amendment would \xe2\x80\x9cconfirm[]\xe2\x80\x9d the\npeople\xe2\x80\x99s \xe2\x80\x9cright to keep and bear their private arms.\xe2\x80\x9d65 Supreme Court Justice\nJoseph Story, in his 1833 Commentaries on the Constitution of the United States,\nparaphrased as a \xe2\x80\x9cright to bear arms\xe2\x80\x9d the right of English \xe2\x80\x9csubjects . . . [to] have\narms for their defence,\xe2\x80\x9d an individual right not tied to service in the militia.66\nFinally, other examples of contemporaneous uses of \xe2\x80\x9cbear arms\xe2\x80\x9d to denote actions\nof individuals appear in cases from the early 1800s up to the Civil War, discussed\nbelow in Part IV.B.\nThe Minority Report issued by twenty-one delegates of the Pennsylvania Convention that ratified the Federal Constitution in late 1787 illustrates the various\nuses of the phrase at the time, including both the right of private \xe2\x80\x9cbearing\xe2\x80\x9d and the\nduty of \xe2\x80\x9cbearing\xe2\x80\x9d for the government in the militia. The Report recommended\namending the Constitution to recognize \xe2\x80\x9c[t]hat the people have a right to bear arms\nfor the defence of themselves and their own State or the United States, or for the\npurpose of killing game\xe2\x80\x9d and also urged exemption from militia service for those\n\xe2\x80\x9cconscientiously scrupulous of bearing arms.\xe2\x80\x9d Although the Minority Report was\na product of Anti-Federalists, who had lost at that convention and who lost the\n\n63\nThese are collected, through the Michigan Constitution of 1835, in Emerson, 270 F.3d at 230\nn.29. We discuss the Pennsylvania and Vermont constitutions below in Part III.B.2. For an 1822\njudicial interpretation confirming the plain meaning of the Kentucky provision as granting an\nindividual right, see Part IV.B.1 below. Regarding ratification of the Bill of Rights, see Part III.C.2\nbelow.\n64\nLegality of the London Military Foot-Association (July 24, 1780), reprinted in William Blizard,\nDesultory Reflections on Police: With an Essay on the Means of Preventing Crimes and Amending\nCriminals 59, 59 (London 1785) (emphasis omitted). Regarding this opinion, which was \xe2\x80\x9cof wide\ninterest,\xe2\x80\x9d Leon Radzinowicz, 4 A History of English Criminal Law 107 (1968), see id. at 107\xe2\x80\x9310;\nMalcolm, To Keep and Bear Arms, supra note 33, at 133\xe2\x80\x9334; and our further discussion below in Part\nIII.A. Regarding the Recorder, see 1 William Blackstone, Commentaries *76; 3 id. at *80\xe2\x80\x9381 n.i; id. at\n*334; John H. Langbein, Shaping the Eighteenth-Century Criminal Trial: A View From the Ryder\nSources, 50 U. Chi. L. Rev. 1, 8, 17\xe2\x80\x9319, 34\xe2\x80\x9336 (1983).\n65\nThis essay by Tench Coxe is discussed below in Part III.C.2.\n66\nJoseph Story, Commentaries on the Constitution of the United States \xc2\xa7 980, at 695 (Ronald D.\nRotunda & John E. Nowak eds., 1833, reprint 1987) (\xe2\x80\x9cAbridgement\xe2\x80\x9d). The English right is discussed\nbelow in Part III.A.\n\n143\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nbattle over ratifying the Constitution, we are unaware of any contemporaneous\ncriticisms that this widely circulated document misused language in giving such\nsenses to the phrase \xe2\x80\x9cbear arms.\xe2\x80\x9d67\nIn sum, although \xe2\x80\x9cbear arms\xe2\x80\x9d often referred to carrying or wearing arms in\nconnection with military duty, it was not limited to such a meaning. When, as in\nthe Second Amendment, those words are used in conjunction with \xe2\x80\x9ckeep arms,\xe2\x80\x9d\nwhich commonly did refer to private action, and the whole phrase \xe2\x80\x9cto keep and\nbear Arms\xe2\x80\x9d is used in the context of a \xe2\x80\x9cright of the people,\xe2\x80\x9d68 we conclude that the\ncore, operative text of the Amendment secures a personal right, which belongs to\nindividuals. We next consider whether the Amendment\xe2\x80\x99s prefatory language\nrequires a different conclusion.\nC. \xe2\x80\x9cA Well Regulated Militia, Being Necessary to the\nSecurity of a Free State\xe2\x80\x9d\nA feature of the Second Amendment that distinguishes it from the other rights\nthat the Bill of Rights secures is its prefatory subordinate clause, declaring: \xe2\x80\x9cA\nwell regulated Militia, being necessary to the security of a free State, . . . .\xe2\x80\x9d\nAdvocates of the collective right and quasi-collective right interpretations rely on\nthis declaration, particularly its reference to a well-regulated militia. On their\ninterpretation, the \xe2\x80\x9cpeople\xe2\x80\x9d to which the Second Amendment refers is only the\n67\nSee 2 Bernard Schwartz, The Bill of Rights: A Documentary History 665, 672 (1971). We discuss\nthe Pennsylvania Convention, including the Minority Report and its critics, in Part III.C.1 below.\nRegarding the Report\xe2\x80\x99s wide circulation, see id. at 628; 2 The Documentary History of the Ratification\nof the Constitution 617 (Merrill Jensen ed., 1976) (note); 15 id. at 7\xe2\x80\x9310 (John P. Kaminski & Gaspare\nJ. Saladino eds., 1984) (note).\n68\nIn addition, the Second Amendment\xe2\x80\x99s reference to \xe2\x80\x9cArms\xe2\x80\x9d in the context of \xe2\x80\x9ckeep\xe2\x80\x9d and \xe2\x80\x9cbear\xe2\x80\x9d\nreinforces our view that it protects an individual right. The mere word \xe2\x80\x9cArms\xe2\x80\x9d could denote any\nweapon, including artillery. See Webster, American Dictionary, supra note 55 (unpaginated) (defining\n\xe2\x80\x9carms\xe2\x80\x9d as \xe2\x80\x9cWeapons of offense, or armor for defense and protection of the body\xe2\x80\x9d and including\nexplanation of \xe2\x80\x9cFire arms\xe2\x80\x9d as \xe2\x80\x9csuch as may be charged with powder, as cannon, muskets, mortars\n&c.\xe2\x80\x9d; also defining the verb \xe2\x80\x9carm\xe2\x80\x9d as including \xe2\x80\x9c[t]o furnish with means of defense; to prepare for\nresistance; to fortify\xe2\x80\x9d); Johnson, Dictionary, supra note 55 (unpaginated) (defining \xe2\x80\x9carms\xe2\x80\x9d as\n\xe2\x80\x9cWeapons of offence, or armour of defence\xe2\x80\x9d). Certainly Congress\xe2\x80\x99s power in Article I, Section 8,\nClause 16 to provide for \xe2\x80\x9carming\xe2\x80\x9d the militia includes such weapons, particularly given that the\nConstitution contemplates that the states will use militias to defend themselves against surprise\ninvasions. See U.S. Const. art. I, \xc2\xa7 10, cl. 3 (\xe2\x80\x9cNo State shall, without the Consent of Congress, . . . keep\nTroops, . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of\ndelay.\xe2\x80\x9d); Militia Act \xc2\xa7 4, 1 Stat. 271, 272 (1792) (requiring each division of state\xe2\x80\x99s militia to have a\ncompany of artillery and troop of horse). If the Second Amendment protected a state prerogative to\nhave organized and effective militias, one would expect it to protect all of the arms essential for that\npurpose, including artillery. Yet its text suggests that the \xe2\x80\x9cArms\xe2\x80\x9d that it protects do not include those\nthat \xe2\x80\x9cthe people\xe2\x80\x9d could not both \xe2\x80\x9ckeep\xe2\x80\x9d and \xe2\x80\x9cbear\xe2\x80\x9d\xe2\x80\x94those that an individual could not store and carry.\nThis use of \xe2\x80\x9cArms\xe2\x80\x9d points toward an individual right view rather than a right of states to have select\n\xe2\x80\x9cmilitias,\xe2\x80\x9d and it also seems more consistent with an individual right than a quasi-collective right view,\nas the latter requires that the \xe2\x80\x9cmilitia\xe2\x80\x9d of which the claimant is a member be fully organized and\nequipped. See, e.g., United States v. Parker, 362 F.3d 1279, 1283 (10th Cir. 2004).\n\n144\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\n\xe2\x80\x9cpeople\xe2\x80\x9d in a collective, organized capacity as the state governments, or a small\nsubset of the \xe2\x80\x9cpeople\xe2\x80\x9d actively organized by those governments into military\nbodies. \xe2\x80\x9cPeople\xe2\x80\x9d becomes interchangeable with the \xe2\x80\x9cState\xe2\x80\x9d or its \xe2\x80\x9corganized\nmilitia.\xe2\x80\x9d\nThis argument misunderstands the proper role of such prefatory declarations in\ninterpreting the operative language of a provision. A preface can illuminate\noperative language but is ultimately subordinate to it and cannot restrict it.\nWholly apart from this interpretive principle, this argument also rests on an\nincomplete understanding of the preface\xe2\x80\x99s language. Although the Amendment\xe2\x80\x99s\nprefatory clause, standing alone, might suggest a collective or possibly quasicollective right to a modern reader, when its words are read as they were understood at the Founding, the preface is fully consistent with the individual right that\nthe Amendment\xe2\x80\x99s operative language sets out. The \xe2\x80\x9cMilitia\xe2\x80\x9d as understood at the\nFounding was not a select group such as the National Guard of today. It consisted\nof all able-bodied male citizens. The Second Amendment\xe2\x80\x99s preface identifies as a\njustification for the individual right that a necessary condition for an effective\ncitizen militia, and for the \xe2\x80\x9cfree State\xe2\x80\x9d that it helps to secure, is a citizenry that is\nprivately armed and able to use its private arms.\n1. The Limits of Prefatory Language\nIn the eighteenth century, the proper approach to interpreting a substantive or\n\xe2\x80\x9coperative\xe2\x80\x9d legal provision to which a lawmaker had joined a declaration (whether\na \xe2\x80\x9cWhereas\xe2\x80\x9d clause or analogous language) was (1) to seek to interpret the\noperative provision on its own, and (2) then to look to the declaration only to\nclarify any ambiguity remaining in the operative provision.69 It was desirable, if\nconsistent with the operative text, to interpret the operative provision so that it\ngenerally fulfilled the justification that the preface declared, but a narrow declaration provided no warrant for restricting the operative text, and the preface could\nnot itself create an ambiguity. This rule applied equally to declarations located in\nany part of a law, not simply at the beginning of it, and to both statutes and\nconstitutions. We therefore consider this rule applicable to the Second Amendment.\n69\nThis rule assumes that the legislature incorporated the declaration during the ordinary legislative\nprocess, not adopting it separately (with little consideration) or leaving it to others to insert. 2A\nNorman J. Singer, Sutherland on Statutory Construction \xc2\xa7 47.04, at 220 & 223 (6th ed. 2000); see 1\nJames Kent, Commentaries on American Law 516 (9th ed. 1858) (noting that titles and preambles\n\xe2\x80\x9cgenerally . . . are loosely and carelessly inserted, and are not safe expositors of the law\xe2\x80\x9d); see also\nKing v. Williams, 96 Eng. Rep. 51, 52, 1 Blackst. Rep. 93 (K.B. 1758) (\xe2\x80\x9cThe conciseness of the title\nshall not control the body of the Act. The title is no part of the law; it does not pass with the same\nsolemnity as the law itself. One reading is often sufficient for it.\xe2\x80\x9d); Thomas Jefferson, A Manual of\nParliamentary Practice for the Use of the Senate of the United States 41 (1801; reprint 1993) (noting\ndesirability that preamble \xe2\x80\x9cbe consistent with\xe2\x80\x9d a bill but possibility that it may not be, because of\nlegislative procedures).\n\n145\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nEnglish Parliaments of the 1700s and late 1600s regularly included prefaces\nthroughout statutes\xe2\x80\x94not only at the beginning (constituting the first section) but\nalso in particular sections.70 The same rule of interpretation applied to both uses of\nprefaces. As an example of the latter, a section of a bankruptcy statute recited the\nproblem of persons who \xe2\x80\x9cconvey their goods to other men upon good consideration\xe2\x80\x9d before becoming bankrupt, yet continue to act as owners of the goods; the\nimmediately following clause of the statute provided that if a bankrupt debtor\npossessed \xe2\x80\x9cany goods or chattels\xe2\x80\x9d with \xe2\x80\x9cthe consent and permission of the true\nowner,\xe2\x80\x9d was their reputed owner, and disposed of them as an owner, such property\nshould repay the debtor\xe2\x80\x99s debts rather than return to the true owner. The difficulty\narose when the bankrupt debtor possessed property that never had been his, such\nas property in trust. A leading case in 1716 read the enacting language to apply\neven in such cases and rejected the argument \xe2\x80\x9cthat the preamble shall restrain the\noperation of the enacting clause; and that, because the preamble is too narrow or\ndefective, therefore the enacting clause, which has general words, shall be\nrestrained from its full latitude, and from doing that good which the words would\notherwise, and of themselves, import.\xe2\x80\x9d71 The King\xe2\x80\x99s Bench reiterated the rule in\n1723, rejecting in a criminal case an argument based on declaratory language\nintroducing part of a statute: \xe2\x80\x9cNow those general words in the enacting part, shall\nnever be restrained by any words introducing that part; for it is no rule in the\nexposition of statutes to confine the general words of the enacting part to any\nparticular words either introducing it, or to any such words even in the preamble\nitself.\xe2\x80\x9d The court acknowledged that \xe2\x80\x9ca construction which agrees with the\npreamble\xe2\x80\x9d was desirable, \xe2\x80\x9cbut not such as may confine the enacting part to it.\xe2\x80\x9d72\n70\nExamples of both include the statutes discussed or cited below in Part III.A. See, e.g., the Militia\nAct of 1662, 13 & 14 Car. II, c. 3, \xc2\xa7\xc2\xa7 1, 3, 14, 20; the Game Act of 1671, 32 & 33 Car. II, c. 25, \xc2\xa7\xc2\xa7 1,\n2, 4, 5, 6, 7; the Act to Disarm Papists, 1 W. & M., 1st Sess., c. 15, \xc2\xa7\xc2\xa7 1, 3 (1688); the Bill of Rights, 1\nW. & M., 2d Sess., c. 2, \xc2\xa7\xc2\xa7 1, 9 (1689); the Game Act of 1692, 4 & 5 W. & M., c. 23, \xc2\xa7\xc2\xa7 1, 3, 4, 5, 7,\n10; the act repealing the ban on hail-shot, 6 & 7 Will. III, c. 13, \xc2\xa7\xc2\xa7 1, 3 (1695); and the Game Act of\n1706, 5 Ann., c. 14, \xc2\xa7\xc2\xa7 1, 3, 5.\n71\nCopeman v. Gallant, 24 Eng. Rep. 404, 407, 1 P. Wms. Rep. 314 (Ch. 1716); id. at 405 (quoting\nstatute) (emphases added); see 2A Sutherland, supra note 69, \xc2\xa7 47.04, at 220 (\xe2\x80\x9cCopeman . . . established the rule that the preamble could not be used to restrict the effect of the words used in the\npurview.\xe2\x80\x9d). In Ryall v. Rolle, 26 Eng. Rep. 107, 1 Atkyns Rep. 165 (Ch. 1749), although the question\nwas not at issue, see id. at 116 (Lee, C.J.); id. at 118 (Hardwicke, Ch.), some judges voiced disagreement with Copeman\xe2\x80\x99s interpretation of that statute because of the great \xe2\x80\x9cinconvenience\xe2\x80\x9d it would cause\nto commercial arrangements such as trusts, agency, and bailment, but they still recognized the general\nrule, see id. at 113 (Parker, C.B.) (recognizing another case holding \xe2\x80\x9c[t]hat the preamble shall not\nrestrain the enacting clause\xe2\x80\x9d and recognizing that Copeman \xe2\x80\x9cexploded the notion of the preamble\xe2\x80\x99s\ngoverning the enacting clause,\xe2\x80\x9d but adding that \xe2\x80\x9cif the not restraining the generality of the enacting\nclause will be attended with an inconvenience, the preamble shall restrain it\xe2\x80\x9d); id. at 118 (Hardwicke,\nCh.) (agreeing with Parker).\n72\nKing v. Athos, 8 Mod. Rep. 136, 144 (K.B. 1723). See id. (Fortescue, J.) (\xe2\x80\x9c[I]t must be admitted,\nthat a preamble may be a good expositor of a statute; but what was offered on the other side is not\nproperly a preamble, but only introductive to an enacting part of a statute: besides . . . preambles are no\nmore than recitals of inconveniences, which do not exclude any other to which a remedy is given by the\n\n146\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nBlackstone summed up this understanding in explaining that, although the\nwords of an enacting clause were \xe2\x80\x9cgenerally to be understood in their usual and\nmost known signification,\xe2\x80\x9d yet if its words, after due analysis, were \xe2\x80\x9cstill dubious\xe2\x80\x9d\nor \xe2\x80\x9cambiguous, equivocal, or intricate,\xe2\x80\x9d one might look to the context, which\nincluded \xe2\x80\x9cthe proeme, or preamble, [which] is often called in to help the construction of an act of parliament.\xe2\x80\x9d73 Chancellor Kent, a leading early American\ncommentator, likewise reasoned that a preamble, although not technically part of\nthe law, \xe2\x80\x9cmay, at times, aid in the construction of\xe2\x80\x9d a statute or \xe2\x80\x9cbe resorted to in\norder to ascertain the inducements to the making\xe2\x80\x9d of it, \xe2\x80\x9cbut when the words of the\nenacting clause are clear and positive, recourse must not be had to the preamble.\xe2\x80\x9d74\nPrefatory language also was common in constitutions, and this rule of construction applied in the same way. Speaking of the preamble of the whole federal\nConstitution, Joseph Story in his Commentaries reiterated that statutory preambles\nare \xe2\x80\x9cproperly resorted to, where doubts or ambiguities arise upon the words of the\nenacting part; for if they are clear and unambiguous, there seems little room for\ninterpretation,\xe2\x80\x9d and he could not see \xe2\x80\x9cany reason why, in a fundamental law or\nconstitution of government,\xe2\x80\x9d the same rule should not apply.75 Similarly, the\nSupreme Court has held that the Constitution\xe2\x80\x99s preamble lacks any operative legal\neffect and that, even though it states the Constitution\xe2\x80\x99s \xe2\x80\x9cgeneral purposes,\xe2\x80\x9d it\ncannot be used to conjure a \xe2\x80\x9cspirit\xe2\x80\x9d of the document to confound clear operative\nlanguage;76 the Court has, however, also sought some guidance from the preamble\nwhen the operative text did not resolve a question.77\nThe same reasoning applied to declaratory phrases in the language of individual\nconstitutional provisions, the closest analogies to the Second Amendment. The\n1784 New Hampshire Constitution provided: \xe2\x80\x9cIn criminal prosecutions, the trial of\nenacting part.\xe2\x80\x9d); Kinaston v. Clark, 26 Eng. Rep. 526, 527, 2 Atkyns Rep. 204 (Ch. 1741) (\xe2\x80\x9cThere are\nmany cases where the enacting part in a statute extends further than the preamble even in criminal\nmatters . . . .\xe2\x80\x9d).\n73\n1 William Blackstone, Commentaries *59\xe2\x80\x9360. See Crespigny v. Wittenoom, 100 Eng. Rep. 1304,\n1305, 4 Term Rep. 791 (K.B. 1792) (Buller, J.) (\xe2\x80\x9cI agree that the preamble cannot controul the enacting\npart of a statute, which is expressed in clear and unambiguous terms. But if any doubt arise on the\nwords of the enacting part, the preamble may be resorted to, to explain it.\xe2\x80\x9d); id. at 1306 (Grose, J.)\n(\xe2\x80\x9cThough the preamble cannot controul the enacting clause, we may compare it with the rest of the Act,\nin order to collect the intention of the Legislature.\xe2\x80\x9d).\n74\n1 Kent, Commentaries, supra note 69, at 516. See Mills v. Wilkins, 87 Eng. Rep. 822, 822\xe2\x80\x9323, 6\nMod. Rep. 62 (Q.B. 1703) (\xe2\x80\x9c[T]he title is not the law, but the name or description given to it by the\nmakers: just as the preamble of a statute is no part thereof, but contains generally the motives or\ninducements thereof.\xe2\x80\x9d); see also 2A Sutherland, supra note 69, \xc2\xa7 47.04, at 221\xe2\x80\x9322; id. at 224\xe2\x80\x9325 (\xe2\x80\x9cThe\npreamble can neither limit nor extend the meaning of a statute which is clear. Similarly, it cannot be\nused to create doubt or uncertainty.\xe2\x80\x9d).\n75\n1 Joseph Story, Commentaries on the Constitution of the United States \xc2\xa7\xc2\xa7 459\xe2\x80\x93460, at 443\xe2\x80\x9344\n(1833; reprint 1991).\n76\nJacobson v. Massachusetts, 197 U.S. 11, 22 (1905).\n77\nSee U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 821 n.31, 838 (1995); id. at 846 & n.1\n(Thomas, J., dissenting); see also Stenberg v. Carhart, 530 U.S. 914, 953 (2000) (Scalia, J., dissenting).\n\n147\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nfacts in the vicinity where they happen, is so essential to the security of the life,\nliberty and estate of the citizen, that no crime or offence ought to be tried in any\nother county than that in which it is committed.\xe2\x80\x9d78 Even though in some cases a\ntrial outside of the county where a crime was committed might bring it closer to\nthe crime scene, or a judge might think a trial in the county where the crime\noccurred not \xe2\x80\x9cessential to\xe2\x80\x9d (or even in conflict with) \xe2\x80\x9cthe security of the life,\nliberty and estate of the citizen,\xe2\x80\x9d neither fact would justify disregarding the clear\noperative language of this constitutional provision.79 Likewise, the pre-1787\nconstitutions of Massachusetts, New Hampshire, and Vermont declared that\nfreedom of speech in the legislature was \xe2\x80\x9cso essential to the rights of the people\xe2\x80\x9d\nthat words spoken there could not the basis of \xe2\x80\x9cany\xe2\x80\x9d suit.80 One could not use this\ndeclaration to avoid the clear immunity conferred by the operative language, even\nwhere particular statements made in the legislature\xe2\x80\x94such as an egregious slander\nunrelated to a pending bill\xe2\x80\x94were not thought \xe2\x80\x9cessential to\xe2\x80\x9d the people\xe2\x80\x99s rights.81\nIn addition, Madison\xe2\x80\x99s draft of what became the First Amendment\xe2\x80\x99s Free Press\nClause read: \xe2\x80\x9cthe freedom of the press, as one of the great bulwarks of liberty,\nshall be inviolable.\xe2\x80\x9d82 The emphasized declaratory language presumably could not\nhave qualified or limited the freedom clearly conferred, such as by exempting\nfrom protection, as hostile to \xe2\x80\x9cliberty,\xe2\x80\x9d publications advocating absolute monarchy.\nA discussion at the Constitutional Convention demonstrates the same understanding, including that prefaces in a particular constitutional provision might\nmerely state policy. What would become Article I, Section 8, Clause 16 of the\nConstitution, empowering Congress to \xe2\x80\x9cprovide for organizing, arming, and\ndisciplining the Militia,\xe2\x80\x9d had reached its final form. But George Mason proposed\n\xe2\x80\x9cto preface\xe2\x80\x9d it with the phrase, \xe2\x80\x9cAnd that the liberties of the people may be better\nsecured against the danger of standing armies in time of peace.\xe2\x80\x9d He wished \xe2\x80\x9cto\ninsert something pointing out and guarding against the danger of\xe2\x80\x9d standing armies.\nMadison spoke in favor, because the preface would \xe2\x80\x9cdiscountenance\xe2\x80\x9d a peacetime\n\n78\n\nN.H. Const. art. I, \xc2\xa7 17 (1784), reprinted in 4 The Federal and State Constitutions, Colonial\nCharters, and Other Organic Laws 2455 (Francis Newton Thorpe ed., 1909; reprint 1993).\n79\nSee Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793, 798, 804\xe2\x80\x93\n05, 808\xe2\x80\x9309 (1998); Emerson, 270 F.3d at 234 n.32.\n80\nMass. Const. pt. I, art. 21 (1780), reprinted in 3 Federal and State Constitutions, supra note 78,\nat 1892; N.H. Const. art. I, \xc2\xa7 30 (1784), reprinted in 4 id. at 2457; Vt. Const. ch. I, \xc2\xa7 16 (1786),\nreprinted in 6 id. at 3753.\n81\nSee Volokh, supra note 79, 73 N.Y.U. L. Rev. at 794\xe2\x80\x9395, 799\xe2\x80\x93800. As with statutes, constitutional prefaces and operative language often do not match exactly, the latter sometimes being\noverinclusive compared to the declaration and sometimes underinclusive. See id. at 801\xe2\x80\x9307 (providing\nexamples).\n82\nCreating the Bill of Rights: The Documentary Record from the First Federal Congress 12 (Helen\nE. Veit et. al. eds., 1991) (emphasis added).\n\n148\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nstanding army while \xe2\x80\x9cnot restrain[ing] Congress from establishing\xe2\x80\x9d one.83 No\ndoubt an organized, armed, and disciplined militia would generally \xe2\x80\x9cbetter secure\xe2\x80\x9d\nliberties against peace-time standing armies (by reducing the need for such armies\nand the threat from any that were created), and thus the operative grant of power\n\xe2\x80\x9cagree[d] with\xe2\x80\x9d the declaratory preface;84 but the preface did not restrain or\nconfine the power.\nWe see no reason to except the Second Amendment from this broadly applicable interpretive rule.85 Thus, the Amendment\xe2\x80\x99s declaratory preface could not\novercome the unambiguously individual \xe2\x80\x9cright of the people to keep and bear\nArms\xe2\x80\x9d conferred by the operative text\xe2\x80\x94even if the collective right and quasicollective right schools\xe2\x80\x99 understanding of the preface\xe2\x80\x99s meaning were correct, and\neven though the preface might help resolve any ambiguities concerning the scope\nof that individual right remaining after one has analyzed the operative text. At the\nsame time, any interpretation of the right ought, if possible consistent with its text,\nto further the declared justification in general, as the Court in Miller recognized\nwhen it stated that interpretation of the Amendment should keep the \xe2\x80\x9cend in view\xe2\x80\x9d\nof assuring the continuation and rendering possible the effectiveness of the\nmilitia.86 As we explain in the remainder of this subpart\xe2\x80\x94considering in turn the\nmeaning of \xe2\x80\x9cMilitia,\xe2\x80\x9d what a \xe2\x80\x9cwell regulated Militia\xe2\x80\x9d was, and the ultimate end of\n\xe2\x80\x9cthe security of a free State\xe2\x80\x9d\xe2\x80\x94the individual right view does further the ends set\nforth in the prefatory language, and therefore the preface, properly understood, is\nfully consistent with the individual right interpretation of the operative text.\n2. The \xe2\x80\x9cMilitia\xe2\x80\x9d\nA key claim of the collective right and quasi-collective right schools with\nregard to the Second Amendment\xe2\x80\x99s preface is that a \xe2\x80\x9cwell regulated Militia\xe2\x80\x9d is a\nstanding military organization or body of troops, of limited size, organized and\ngoverned by state governments, albeit concurrently with the federal government\n(akin to voluntary select forces such as the National Guard that were established\nover a hundred years after the Amendment was adopted). As a result, the argument\ngoes, the Amendment merely protects the states against federal efforts to undermine such forces, either by protecting the states directly or by protecting only\npersons serving in those forces.87\n\n83\nMadison, Notes of Debates, supra note 44, at 639 (Sept. 14, 1787). Mason\xe2\x80\x99s proposal was\ndefeated, apparently on the ground that it improperly impugned soldiers. Id. at 639\xe2\x80\x9340.\n84\nAthos, 8 Mod. Rep. at 144.\n85\nThe Ninth Circuit in Silveira provided only one paragraph on the proper relationship between a\npreface and operative language, concluding that the latter must be read \xe2\x80\x9cto implement the policy\xe2\x80\x9d of the\nformer. See 312 F.3d at 1075.\n86\nUnited States v. Miller, 307 U.S. 174, 178 (1939).\n87\nSee, e.g., Silveira, 312 F.3d at 1069\xe2\x80\x9372.\n\n149\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nThis argument disregards the understanding of the \xe2\x80\x9cMilitia\xe2\x80\x9d at the time of the\nFounding. As used in the Second Amendment, and elsewhere in the Constitution,\n\xe2\x80\x9cMilitia\xe2\x80\x9d referred to a body consisting of all adult male citizens up to a certain age\n(anywhere from forty-five to sixty), the goal being to include all who were\nphysically capable of service. It was not limited to a select force of persons in\nactive military duty. This entire population of able-bodied male citizens was\ninvoluntarily \xe2\x80\x9cenrolled\xe2\x80\x9d by local militia officials, somewhat as men now register\nfor the selective service (except that enrollment required no action by the citizen),\nand all enrolled citizens were required by law to join occasional \xe2\x80\x9cexercise\xe2\x80\x9d\xe2\x80\x94to\nwhich they were expected to bring their own, private arms\xe2\x80\x94but they otherwise\nremained in civilian life. The militia \xe2\x80\x9crest[ed] upon the shoulders of the people,\xe2\x80\x9d88\nbecause, as then understood, it consisted of a large number of the \xe2\x80\x9cpeople\xe2\x80\x9d at any\none time and of all of the able-bodied white men for a substantial portion of their\nlives. It was the people embodied as an armed force. Thus, a key aspect of the\nterm \xe2\x80\x9cMilitia\xe2\x80\x9d was the composition of the force to which it referred. As a result,\nthe reference to the \xe2\x80\x9cMilitia\xe2\x80\x9d in the Second Amendment\xe2\x80\x99s preface \xe2\x80\x9cagrees with\xe2\x80\x9d\nthe individual right that the Amendment\xe2\x80\x99s operative text sets out,89 because\nsecuring to \xe2\x80\x9cthe people\xe2\x80\x9d a right to keep and to bear their own arms made such a\nbroad-based, privately armed force more likely to exist and to be effective.90\nThe term \xe2\x80\x9cMilitia\xe2\x80\x9d was used in contrast both to a regular, standing army and,\nmore importantly, to a \xe2\x80\x9cselect militia\xe2\x80\x9d or \xe2\x80\x9ccorps.\xe2\x80\x9d91 The latter distinction is evident\nthroughout contemporaneous usage, \xe2\x80\x9cselect militia\xe2\x80\x9d denoting a significantly\nsmaller body, consisting either of better trained military professionals who could\nremain active for extended periods, or of those chosen selectively, perhaps\nbecause of political or other discrimination.92 For example, at the Constitutional\nConvention, George Mason mentioned the need for federal regulation of the\n\n88\nNordyke v. King, 364 F.3d 1025, 1031 (9th Cir. 2004) (Gould, J., joined by O\xe2\x80\x99Scannlain, Kleinfeld, Tallman, and Bea, J.J., dissenting from denial of rehearing en banc).\n89\nAthos, 8 Mod. Rep. at 144.\n90\nSee Kopel, supra note 33, 93 Mich. L. Rev. at 1355 (\xe2\x80\x9c[O]ne of the reasons Congress guaranteed\nthe right of the people to keep and bear arms was so that a popular militia could be drawn from the\nbody of the people.\xe2\x80\x9d) (footnote omitted). Thus, the Silveira court\xe2\x80\x99s description of the militia as \xe2\x80\x9cthe\nstate-created and -organized military force,\xe2\x80\x9d 312 F.3d at 1069, is technically true but critically\nincomplete, because it ignores the composition of the militia.\n91\nOn the former distinction, see U.S. Const. art. I, \xc2\xa7 8, cls. 12\xe2\x80\x9316; art. I, \xc2\xa7 10, cl. 3; art. II, \xc2\xa7 2, cl.\n1; amend. V; Articles of Confed. art. VI (contrasting a \xe2\x80\x9cbody of forces\xe2\x80\x9d with \xe2\x80\x9ca well regulated and\ndisciplined militia, sufficiently armed and accoutered.\xe2\x80\x9d); Authority of President to Send Militia Into a\nForeign Country, 29 Op. Att\xe2\x80\x99y Gen. 322, 322 (1912) (Wickersham, A.G.) (\xe2\x80\x9c[T]he militia has always\nbeen considered and treated as a military body quite distinct and different from the Regular or standing\narmy.\xe2\x80\x9d).\n92\nSee Malcolm, To Keep and Bear Arms, supra note 33, at 125 (discussing concerns of English\nWhigs after the English Revolution of 1688\xe2\x80\x931689 to maintain a citizens\xe2\x80\x99 militia as opposed to a select\none); id. at 95\xe2\x80\x9397, 103, 105 (discussing purges and selective disarmament of militia by Charles II and\nJames II); id. at 63 (discussing Charles II\xe2\x80\x99s select militia).\n\n150\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nmilitia to ensure that it was adequately trained. He suspected that the states would\nnot relinquish \xe2\x80\x9cthe power over the whole\xe2\x80\x9d but would \xe2\x80\x9cover a part as a select\nmilitia.\xe2\x80\x9d He added that \xe2\x80\x9ca select militia\xe2\x80\x9d would be \xe2\x80\x9cas much as the Gen[eral]\nGov[ernment] could advantageously be charged with,\xe2\x80\x9d and thus suggested that it\nreceive power only over \xe2\x80\x9cone tenth part\xe2\x80\x9d of the militia per year. Oliver Ellsworth,\nlater to be a Senator and Chief Justice, objected because a \xe2\x80\x9cselect militia\xe2\x80\x9d either\nwould be impractical or would cause \xe2\x80\x9ca ruinous declension of the great body of\nthe Militia.\xe2\x80\x9d93 Edmund Randolph, leader of the Virginia delegation, similarly\nequated the militia with \xe2\x80\x9cthe whole mass\xe2\x80\x9d of the people.94\nIn the debate over ratification, both sides shared this broad understanding of\n\xe2\x80\x9cMilitia.\xe2\x80\x9d Among the Federalists, Madison in The Federalist predicted that a\nfederal army bent on oppression would be opposed by \xe2\x80\x9ca militia amounting to near\nhalf a million of citizens with arms in their hands\xe2\x80\x9d\xe2\x80\x94a group that he likened to the\ncitizen bands that had fought in the Revolution and linked to \xe2\x80\x9cthe advantage of\nbeing armed, which the Americans possess over the people of almost every other\nnation.\xe2\x80\x9d95 Alexander Hamilton described the militia as \xe2\x80\x9cthe great body of the\nyeomanry and of the other classes of the citizens,\xe2\x80\x9d \xe2\x80\x9cthe great body of the people,\xe2\x80\x9d\nand \xe2\x80\x9cthe whole nation,\xe2\x80\x9d which he contrasted with a \xe2\x80\x9cselect corps.\xe2\x80\x9d96 A Connecticut\nFederalist writing as \xe2\x80\x9cThe Republican\xe2\x80\x9d praised as \xe2\x80\x9ca capital circumstance in\nfavour of our liberty\xe2\x80\x9d that \xe2\x80\x9cthe people of this country have arms in their hands;\nthey are not destitute of military knowledge; every citizen is required by Law to be\na soldier; we are all martialed into companies, regiments, and brigades, for the\ndefence of our country.\xe2\x80\x9d97 In a speech, later published, in response to South\nCarolina\xe2\x80\x99s vote to ratify, David Ramsay, a state legislator and delegate to the\nratifying convention, praised the Constitution\xe2\x80\x99s militia powers and asked, \xe2\x80\x9cWhat\nEuropean power will dare to attack us, when it is known that the yeomanry of the\ncountry uniformly armed and disciplined, may on any emergency be called out to\nour defence . . . ?\xe2\x80\x9d98 Maryland\xe2\x80\x99s \xe2\x80\x9cAristides,\xe2\x80\x9d in a fairly widely circulated pamphlet,\nwrote simply that \xe2\x80\x9cthe militia . . . is ourselves.\xe2\x80\x9d99\nAmong the Anti-Federalists, Mason, in the Virginia Ratifying Convention,\nasked: \xe2\x80\x9cWho are the Militia? They consist now of the whole people,\xe2\x80\x9d while\n93\n\nMadison, Notes of Debates, supra note 44, at 478, 483\xe2\x80\x9384 (Aug. 18, 1787).\nId. at 515 (Aug. 23). John Adams also praised a militia of the whole people, as opposed to a\nselect band, in works that he published in 1776 and 1787. See Part III.B.1 below.\n95\nThe Federalist No. 46, at 321 (James Madison). The population of all white males aged 16 and\nover in the 1790 census was 813,298, making Madison\xe2\x80\x99s number a fair approximation of the citizen\nmilitia. See U.S. Dept. of Commerce, Bureau of the Census, 1 Historical Statistics of the United States\n16 (1975).\n96\nThe Federalist No. 29, at 183\xe2\x80\x9385 (Alexander Hamilton).\n97\n1 The Debate on the Constitution 712 (Bernard Bailyn ed., 1993).\n98\n2 id. at 507. For Ramsey\xe2\x80\x99s biography, see id. at 1009.\n99\nAristides, Remarks on the Proposed Plan of a Federal Government (1788), reprinted in 15\nRatification, supra note 67, at 522, 533; see id. at 518\xe2\x80\x9320 (note regarding circulation and responses).\n94\n\n151\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nwarning that the new Congress might exempt the rich from service.100 The Federal\nFarmer, a leading Anti-Federalist essayist, explained that the \xe2\x80\x9cmilitia, when\nproperly formed, are in fact the people themselves,\xe2\x80\x9d and counseled \xe2\x80\x9cthat regular\ntroops, and select corps, ought not to be kept up without evident necessity.\xe2\x80\x9d If the\nfederal government properly organized, armed, and disciplined the militia\xe2\x80\x94\nincluding in it, \xe2\x80\x9caccording to the past and general usage of the states, all men\ncapable of bearing arms\xe2\x80\x9d\xe2\x80\x94the country would have a \xe2\x80\x9cgenuine\xe2\x80\x9d rather than \xe2\x80\x9cselect\nmilitia.\xe2\x80\x9d Under such wise regulation, \xe2\x80\x9cthe militia are the people.\xe2\x80\x9d101\nThis common sense of \xe2\x80\x9cMilitia\xe2\x80\x9d also appeared in the House of Representatives\xe2\x80\x99\ndebates on the Second Amendment, discussed below in Part III.C.2, and the\nSecond Congress applied it in the first Militia Act, enacted in 1792, two months\nafter the Second Amendment was officially ratified. The Act required \xe2\x80\x9ceach and\nevery able-bodied white male citizen of the respective states, resident therein, who\nis or shall be of the age of eighteen years, and under the age of forty-five years,\xe2\x80\x9d to\nbe \xe2\x80\x9cenrolled in the militia\xe2\x80\x9d by the local commanding officer. Each enrolled citizen\nwas required to provide his own arms\xe2\x80\x94\xe2\x80\x9ca good musket or firelock\xe2\x80\x9d or \xe2\x80\x9ca good\nrifle\xe2\x80\x9d\xe2\x80\x94plus ammunition and accouterments. These private arms were exempted\nfrom \xe2\x80\x9call suits, distresses, executions or sales, for debt or for the payment of\ntaxes.\xe2\x80\x9d The enrollees were required to appear, armed, \xe2\x80\x9cwhen called out to exercise,\nor into service,\xe2\x80\x9d although Congress left the details of exercise to each state.102\n(Since 1792, Congress has only expanded this definition, such as by eliminating\nthe racial restriction and including some women.103) Finally, Noah Webster in his\n1828 American dictionary defined \xe2\x80\x9cmilitia\xe2\x80\x9d in accord with this Act and the above\nunderstanding: \xe2\x80\x9cThe militia of a country are the able bodied men organized into\ncompanies, regiments and brigades, with officers of all grades, and required by\nlaw to attend military exercises on certain days only, but at other times left to\npursue their usual occupations.\xe2\x80\x9d They were \xe2\x80\x9cenrolled for discipline, but not\nengaged in actual service except in emergencies.\xe2\x80\x9d104\nThe analogy of the \xe2\x80\x9cMilitia\xe2\x80\x9d to a select (and voluntary) corps such as the National Guard is further strained by the common law prohibition against the King\xe2\x80\x99s\n\n100\n\n10 Ratification, supra note 67, at 1312 (John P. Kaminski & Gaspare J. Saladino eds., 1993)\n(June 16, 1788).\n101\nFederal Farmer No. 18 (1788), reprinted in 2 The Complete Anti-Federalist 341\xe2\x80\x9342 (Herbert J.\nStoring ed., 1981); see also Federal Farmer No. 3 (1787), reprinted in id. at 242. Publius (Hamilton)\nrecognized the Federal Farmer letters as among the best of the Anti-Federalists\xe2\x80\x99. See The Federalist\nNo. 68, at 457\xe2\x80\x9358.\n102\nAct of May 8, 1792, ch. 33, \xc2\xa7\xc2\xa7 1\xe2\x80\x932, 1 Stat. at 271\xe2\x80\x9372; see 2 Tucker\xe2\x80\x99s Blackstone, supra note 60,\nat *409 n.1.\n103\n10 U.S.C. \xc2\xa7 311(a) (2000) (including in the militia \xe2\x80\x9call able-bodied males at least 17 years of\nage and . . . under 45 years of age,\xe2\x80\x9d both citizens and those \xe2\x80\x9cwho have made a declaration of intention\nto become\xe2\x80\x9d citizens, certain men between 45 and 64, and \xe2\x80\x9cfemale citizens of the United States who are\nmembers of the National Guard\xe2\x80\x9d).\n104\nWebster, American Dictionary, supra note 55 (unpaginated) (emphasis added).\n\n152\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\ndeploying the militia outside the country\xe2\x80\x94a rule that Blackstone celebrated as part\nof the individual\xe2\x80\x99s \xe2\x80\x9cabsolute right\xe2\x80\x9d of \xe2\x80\x9cpersonal liberty.\xe2\x80\x9d105 The Constitution\nappears to incorporate this rule, by specifying domestic reasons for the federal\ngovernment to call out the militia: \xe2\x80\x9cto execute the Laws of the Union, suppress\nInsurrections and repel Invasions.\xe2\x80\x9d106 Implicit in the common law rule is that the\nmilitia was so composed that its members ought to be treated as ordinary citizens\ndoing their duty, rather than as soldiers. President Taft\xe2\x80\x99s Attorney General\nreaffirmed this ancient rule in 1912 as Congress was developing the modern\nNational Guard, which, partly to avoid this rule, was made a component of the\nregular military forces.107\nThe Supreme Court in Miller, relying on a brief historical survey, summarized\nas follows the definition of \xe2\x80\x9cMilitia\xe2\x80\x9d that we have set out and explained above:\nThe signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and\nStates, and the writings of approved commentators. These show\nplainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. \xe2\x80\x9cA body of citizens\nenrolled for military discipline.\xe2\x80\x9d And further, that ordinarily when\ncalled for service these men were expected to appear bearing arms\nsupplied by themselves and of the kind in common use at the time.108\nIf, as the Court recognized and historical usage confirms, the \xe2\x80\x9cMilitia\xe2\x80\x9d was\ncomposed of the general population of able-bodied men, an individual right of the\nwhole people to keep and bear arms would make eminent sense. A large portion of\nthe \xe2\x80\x9cpeople\xe2\x80\x9d would be required to appear occasionally for service or simply\ntraining, and they were expected to bring their private arms. If the people could be\ndisarmed, it would then, among other things, be impossible for militiamen to make\nthe required provision of their privately provided arms when called up, and the\ncitizen militia would be undermined.\n\n105\n\n1 William Blackstone, Commentaries *134, *138, *413.\nU.S. Const. art. I, \xc2\xa7 8, cl. 15.\n107\nAuthority of President to Send Militia Into a Foreign Country, 29 Op. Att\xe2\x80\x99y Gen. 322, 322\n(1912) (Wickersham, A.G.); see Perpich v. Dep\xe2\x80\x99t of Defense, 496 U.S. 334, 341\xe2\x80\x9344 (1990).\n108\n307 U.S. at 179 (emphases added); see id. at 179\xe2\x80\x9382 (collecting historical support); Presser v.\nIllinois, 116 U.S. 252, 265 (1886) (\xe2\x80\x9cIt is undoubtedly true that all citizens capable of bearing arms\nconstitute the reserved military force or reserve militia of the United States as well as of the States.\xe2\x80\x9d);\nMaryland v. United States, 381 U.S. 41, 46 (1965) (describing pre-World War I militia as \xe2\x80\x9ca citizen\narmy\xe2\x80\x9d).\n106\n\n153\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\n3. The \xe2\x80\x9cWell Regulated\xe2\x80\x9d Militia\nAdvocates of the collective right and quasi-collective right views argue that the\nAmendment\xe2\x80\x99s reference in its preface to a \xe2\x80\x9cwell regulated\xe2\x80\x9d militia indicates that\nthe preface refers to a select, organized body akin to today\xe2\x80\x99s National Guard. They\nclaim additional support for this argument from usage of the term \xe2\x80\x9cMilitia\xe2\x80\x9d\nelsewhere in the Constitution, in the context of governmental power over the\nMilitia.109 No doubt the \xe2\x80\x9cMilitia\xe2\x80\x9d was, through enrollment, exercise, and command\nwhen activated by a governor or president, a creature of the government. But it\ndoes not follow that the meaning of \xe2\x80\x9cMilitia\xe2\x80\x9d as used in the Second Amendment\ndepended on congressional (or state) legislation organizing or regulating the\nMilitia. The word\xe2\x80\x99s use elsewhere in the Constitution and the Amendment\xe2\x80\x99s\nprefatory reference to a \xe2\x80\x9cwell regulated Militia,\xe2\x80\x9d properly understood, in fact\nsuggest the opposite.\nThe Constitution distinguishes not only between the \xe2\x80\x9cMilitia\xe2\x80\x9d and the regular\narmed forces but also between different parts and conditions of the militia. The\nlatter distinctions appear in (1) Article I, Section 8, Clause 15, authorizing\nCongress to \xe2\x80\x9cprovide for calling forth the Militia\xe2\x80\x9d; (2) the immediately following\nclause authorizing Congress to \xe2\x80\x9cprovide for organizing, arming, and disciplining\nthe Militia, and for governing such Part of them as may be employed in the\nService of the United States\xe2\x80\x9d; (3) Article II, Section 2, Clause 1, making the\nPresident Commander in Chief of \xe2\x80\x9cthe Militia of the several States\xe2\x80\x9d when \xe2\x80\x9ccalled\ninto the actual Service of the United States\xe2\x80\x9d; and (4) the Fifth Amendment, which\nwithholds the protection of the Grand Jury Clause from persons whose cases arise\nin the militia, but only when \xe2\x80\x9cin actual service in time of War or public danger\xe2\x80\x9d\n(cases in the army and navy, by contrast, are always exempted).\nThese provisions indicate that the militia is of a size that will make complete\nmobilization usually unnecessary, that members of the militia will often not be in\nservice (or that not all parts of the militia will always be in service), and that when\nany members are not employed in \xe2\x80\x9cactual service,\xe2\x80\x9d they ought to be treated as\nordinary citizens. The \xe2\x80\x9cMilitia\xe2\x80\x9d is both large and largely latent. In addition, the\nreference to \xe2\x80\x9corganizing . . . the Militia\xe2\x80\x9d suggests an entity that in some sense\nexists and is definable apart from congressional regulation, in contrast to \xe2\x80\x9cArmies,\xe2\x80\x9d which Congress must \xe2\x80\x9craise,\xe2\x80\x9d pursuant to another power in Article I,\nSection 8. Congress might not \xe2\x80\x9corganiz[e]\xe2\x80\x9d all of the \xe2\x80\x9cMilitia\xe2\x80\x9d; it might organize\nsome parts differently from others; and it would be expected to give necessary\nprecision to the definition of the body\xe2\x80\x99s membership by laying down a specific age\nrange for service (as Congress did in the first Militia Act). But the background\nmeaning of the word would remain. As an Anti-Federalist writer recognized:\n\xe2\x80\x9c[T]he militia is divided into two classes, viz. active and inactive,\xe2\x80\x9d the former, he\n\n109\n\nSee, e.g., Silveira, 312 F.3d at 1069\xe2\x80\x9372.\n\n154\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nexpected, likely to \xe2\x80\x9cconsist of young men chiefly.\xe2\x80\x9d110 Thus, the use of \xe2\x80\x9cMilitia\xe2\x80\x9d\nthroughout the Constitution is consistent with the common understanding of the\nword at the Founding.\nNor does the preface\xe2\x80\x99s phrase \xe2\x80\x9cwell regulated\xe2\x80\x9d alter this sense of \xe2\x80\x9cMilitia\xe2\x80\x9d;\nrather, it presupposes it. Having an armed citizenry, which the operative text\nprotects by establishing a right of individuals, becomes a necessary (albeit not\nsufficient) condition for a well-regulated militia once one properly defines\n\xe2\x80\x9cMilitia.\xe2\x80\x9d As one academic commentator has put it: \xe2\x80\x9cThe Second Amendment\nsimply forbids one form of inappropriate regulation,\xe2\x80\x9d which would ensure a militia\nthat was not well regulated, namely \xe2\x80\x9cdisarming the people from whom the militia\nmust necessarily be drawn. . . . [T]he one thing the government is forbidden to do\nis infringe the right of the people, who are the source of the militia\xe2\x80\x99s members, to\nkeep and bear arms.\xe2\x80\x9d111 A militia composed of the whole body of able-bodied male\ncitizens and only infrequently meeting for state-sponsored exercise is more likely\nto be \xe2\x80\x9cwell regulated\xe2\x80\x9d in the bearing of arms, and can more readily be trained and\ndisciplined, if its members possess their private arms and are accustomed to them\nfrom usage for private purposes between exercises.112 And an individual right of\nthe people to have arms has the indirect effect of securing the ability of states at\nleast to have their militias armed.113 As the Court stated in Miller, the Second\nAmendment seeks \xe2\x80\x9cto assure the continuation and render possible the effectiveness of\xe2\x80\x9d the militia of \xe2\x80\x9call males physically capable of acting in concert for the\ncommon defense.\xe2\x80\x9d114 It protects the minimum for a well-regulated citizen militia.\nIn addition, the standard for a \xe2\x80\x9cwell regulated Militia,\xe2\x80\x9d as opposed to a wellregulated select militia, or well-regulated army, presupposes the background\nmeaning of \xe2\x80\x9cMilitia\xe2\x80\x9d by taking into account the body\xe2\x80\x99s large size and varied\nsource. As the Militia Act of 1792 contemplated, it might be enough to have a\ncounty officer enroll persons and ensure that they possessed arms and knew how\nto use them through basic training once or twice a year. Similarly, the Virginia\nDeclaration of Rights of 1776 defined \xe2\x80\x9ca well-regulated militia\xe2\x80\x9d as simply being\n\xe2\x80\x9ccomposed of the body of the people, trained to arms.\xe2\x80\x9d115 And the first New York\nConstitution declared that \xe2\x80\x9cthe militia\xe2\x80\x9d should always \xe2\x80\x9cbe armed and disciplined,\n\n110\n\nAristocrotis, The Government of Nature Delineated, or An Exact Picture of the New Federal\nConstitution (1788), reprinted in 3 Complete Anti-Federalist, supra note 101, at 202.\n111\nLund, supra note 33, 31 Ga. L. Rev. at 25, 26.\n112\nSee Silveira, 328 F.3d at 579 (Kleinfeld, J., joined by Kozinski, O\xe2\x80\x99Scannlain, and T.G. Nelson,\nJJ., dissenting from denial of rehearing en banc) (\xe2\x80\x9cThe panel seems to imagine that a well regulated\nmilitia is a people disarmed until the government puts guns in their hands after summoning them to\nservice.\xe2\x80\x9d).\n113\nSee Part IV.A below for St. George Tucker\xe2\x80\x99s discussion of a similar point.\n114\n307 U.S. at 178\xe2\x80\x9379 (emphasis added).\n115\nVa. Decl. of Rights \xc2\xa7 13 (1776), reprinted in 7 Federal and State Constitutions, supra note 78,\nat 3814.\n\n155\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nand in readiness for service\xe2\x80\x9d because \xe2\x80\x9cit is the duty of every man who enjoys the\nprotection of society to be prepared and willing to defend it.\xe2\x80\x9d116\nEven those Founders skeptical of the benefits of the citizen militia, and who\nadvocated a more highly regulated select corps, still recognized the distinction\nbetween the proper regulation of the two. Alexander Hamilton in The Federalist\nargued that it would be both \xe2\x80\x9cfutile\xe2\x80\x9d and \xe2\x80\x9cinjurious\xe2\x80\x9d for Congress to attempt to\n\xe2\x80\x9cdisciplin[e] all the militia of the United States.\xe2\x80\x9d Most enrolled citizens would\nneed extensive \xe2\x80\x9ctime and practice . . . under arms for the purpose of going through\nmilitary exercises and evolutions as often as might be necessary to acquire the\ndegree of perfection which would intitle them to the character of a well-regulated\nmilitia.\xe2\x80\x9d But such a burden on so many citizens \xe2\x80\x9cwould be a real grievance to the\npeople and a serious public inconvenience and loss.\xe2\x80\x9d Thus, as to \xe2\x80\x9cthe people at\nlarge,\xe2\x80\x9d he expected that \xe2\x80\x9c[l]ittle more can reasonably be aimed at . . . than to have\nthem properly armed and equipped\xe2\x80\x9d and, for this purpose, \xe2\x80\x9cassemble them once or\ntwice\xe2\x80\x9d a year. He therefore recommended that Congress use its constitutional\npower to provide for organizing the militia also to form a select militia\xe2\x80\x94\xe2\x80\x9ca select\ncorps of moderate size.\xe2\x80\x9d117 Hamilton was reiterating George Washington\xe2\x80\x99s wellknown recommendations to Congress for a two-tiered militia, consisting of (1)\n\xe2\x80\x9cthe Citizens of America . . . from 18 to 50 years of age,\xe2\x80\x9d who would be put \xe2\x80\x9con\nthe Militia Rolls\xe2\x80\x9d and given minimal training, and (2) \xe2\x80\x9ca Corps in every State\xe2\x80\x9d\nconsisting of those aged 18\xe2\x80\x9325.118 From the opposite political pole, the Federal\nFarmer likewise recognized that Congress might make just such distinctions in\n\xe2\x80\x9cmodelling the militia\xe2\x80\x9d and warned that creation of a \xe2\x80\x9cselect corps of militia\xe2\x80\x9d\nwould lead to \xe2\x80\x9cinattention to the general militia.\xe2\x80\x9d119\nThis understanding of the \xe2\x80\x9cwell regulated Militia,\xe2\x80\x9d and of the possibilities for\ncongressional organization of it (or not), leads to a view of the preface that not\nonly fits the meaning of \xe2\x80\x9cMilitia\xe2\x80\x9d in common contemporaneous usage, including\nthroughout the Constitution, but also most agrees with the meaning of the Second\nAmendment\xe2\x80\x99s operative text setting out a \xe2\x80\x9cright of the people.\xe2\x80\x9d The \xe2\x80\x9cwell\nregulated Militia\xe2\x80\x9d and the \xe2\x80\x9cpeople\xe2\x80\x9d were not identical, but because of their close\nrelationship, a right of the latter\xe2\x80\x94of individuals\xe2\x80\x94to keep and bear arms would\nfacilitate the former. By contrast, a view rejecting the individual right on the basis\nof the preface\xe2\x80\x99s reference to the \xe2\x80\x9cwell regulated Militia\xe2\x80\x9d struggles to harmonize\nthe operative language establishing a seemingly general and individual right with\nthat prefatory language. As Justice Scalia has written, a narrow definition of\n\xe2\x80\x9cMilitia\xe2\x80\x9d \xe2\x80\x9cproduces a guarantee that goes far beyond its stated purpose\xe2\x80\x94rather\n116\n\nN.Y. Const. \xc2\xa7 40 (1777), reprinted in 5 id. at 2637.\nThe Federalist No. 29, at 183\xe2\x80\x9384 (Alexander Hamilton) (emphases added).\n118\nSentiments on a Peace Establishment (1783), reprinted in 3 The Founders\xe2\x80\x99 Constitution 129\n(Phillip B. Kurland and Ralph Lerner eds., 1987) (emphases added).\n119\nFederal Farmer No. 3, reprinted in 2 Complete Anti-Federalist, supra note 101, at 242; Federal\nFarmer No. 18, reprinted in id. at 342 (emphases added).\n117\n\n156\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nlike saying \xe2\x80\x98police officers being necessary to law and order, the right of the\npeople to carry handguns shall not be infringed.\xe2\x80\x99\xe2\x80\x9d120 The \xe2\x80\x9cMilitia\xe2\x80\x9d on this erroneous view consists only of those few citizens whom a state chooses to specially\norganize, arm, and train into professional units, which requires one to reject the\nnormal, unambiguous meaning of the operative text as overbroad, rewriting \xe2\x80\x9cthe\npeople\xe2\x80\x9d to mean either \xe2\x80\x9cthe select militia\xe2\x80\x9d or \xe2\x80\x9cthe State.\xe2\x80\x9d If that were the true\nmeaning, the Amendment\xe2\x80\x99s authors chose singularly inartful language.\n4. The \xe2\x80\x9cSecurity of a Free State\xe2\x80\x9d\nThe preface\xe2\x80\x99s express linking of the \xe2\x80\x9cwell regulated Militia\xe2\x80\x9d to the ultimate\nnecessity of \xe2\x80\x9cthe security of a free State\xe2\x80\x9d is also fully consistent with the conclusion that the \xe2\x80\x9cright of the people to keep and bear Arms\xe2\x80\x9d is a personal one. The\nsecurity of a free state at the Founding no doubt was understood to include those\nthings necessary to the security of any state, such as \xe2\x80\x9cto execute the Laws . . . ,\nsuppress Insurrections and repel Invasions.\xe2\x80\x9d121 But the security of a free state was\nnot just these things. It also was understood to include the security of freedom in a\nstate. Thus, while Blackstone recognized the individual liberty of the press as\n\xe2\x80\x9cessential to the nature of a free state,\xe2\x80\x9d pre-1787 state constitutions described the\nsame right as \xe2\x80\x9cessential to the security of freedom in a state.\xe2\x80\x9d122 The Preamble of\nthe Constitution states the goal of making \xe2\x80\x9csecure the Blessings of Liberty,\xe2\x80\x9d and\nthe Fourth Amendment highlights the importance of the individual \xe2\x80\x9cright of the\npeople to be secure in their persons, houses, papers, and effects.\xe2\x80\x9d A secure free\nstate was one in which liberties and rights were secure.\nThis clause of the Second Amendment\xe2\x80\x99s preface reinforces the individual right\nto keep and bear arms in two related ways\xe2\x80\x94by supporting the broad meaning of\n\xe2\x80\x9cMilitia\xe2\x80\x9d set out above, and by identifying a benefit for individuals of the right\nthat the operative text secures. First, to say at the time of the Founding that the\nmilitia was necessary to the security of a \xe2\x80\x9cfree State\xe2\x80\x9d was to refer to the citizen\nmilitia, composed of the people, who retained the right to keep and use their\nprivate weapons. A select militia, particularly if it existed to the exclusion of the\ncitizen militia, might undermine the free state, if citizens excluded from it were\nleft defenseless, or if it disarmed the citizens and infringed their other rights (or\nboth). As we show in Part III.A, that is what had happened in England during the\n120\nAntonin Scalia, Response, in A Matter of Interpretation: Federal Courts and the Law 137 n.13\n(1997).\n121\nU.S. Const. art. I, \xc2\xa7 8, cl. 15; see id. amend V (discussing militia service in \xe2\x80\x9cWar or public\ndanger\xe2\x80\x9d).\n122\n4 William Blackstone, Commentaries *151; e.g., Mass. Const. pt. I, art. 16 (1780), reprinted in 3\nFederal and State Constitutions, supra note 78, at 1892. Similarly, the English Declaration of Rights,\nwell known to the Founding Generation, see Part III.A below, charged King James II with having\nsought to \xe2\x80\x9csubvert and extirpate\xe2\x80\x9d the \xe2\x80\x9cliberties of this kingdom\xe2\x80\x9d by taking several actions \xe2\x80\x9cutterly and\ndirectly contrary to\xe2\x80\x9d the \xe2\x80\x9cfreedom of this realm.\xe2\x80\x9d 1 W. & M., 2d Sess., c. 2, \xc2\xa7 1 (1689).\n\n157\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nstrife that produced in 1689 the express right of individual subjects to have and use\narms for their defense, the ancestor of the right in the Second Amendment.123 Thus\nthe Virginia Declaration of Rights, the only state bill of rights before the adoption\nof the Second Amendment that expressly tied the militia to the security \xe2\x80\x9cof a free\nState,\xe2\x80\x9d also emphasized that the \xe2\x80\x9cmilitia\xe2\x80\x9d was \xe2\x80\x9ccomposed of the body of the\npeople.\xe2\x80\x9d124\nContemporaneous writers across the political spectrum acknowledged the link\nbetween the citizen militia and securing the freedom of a state. \xe2\x80\x9cThe Republican\xe2\x80\x9d\npraised \xe2\x80\x9ca militia of freemen\xe2\x80\x9d as among the \xe2\x80\x9cprincipal circumstances which render\nliberty secure,\xe2\x80\x9d and singled out as \xe2\x80\x9ca capital circumstance in favour of our liberty\xe2\x80\x9d\nthat \xe2\x80\x9cthe people themselves are the military power of our country,\xe2\x80\x9d having \xe2\x80\x9carms\nin their hands\xe2\x80\x9d and \xe2\x80\x9cmilitary knowledge.\xe2\x80\x9d125 The Federal Farmer listed among the\n\xe2\x80\x9cmilitary forces of a free country\xe2\x80\x9d the \xe2\x80\x9cmilitia,\xe2\x80\x9d by which he meant \xe2\x80\x9cthe people\nthemselves . . . when properly formed.\xe2\x80\x9d A citizen militia was critical to \xe2\x80\x9cthe\nduration of a free and mild government.\xe2\x80\x9d Absent it, and in the face of an \xe2\x80\x9cantirepublican\xe2\x80\x9d select militia, \xe2\x80\x9cthe substantial men, having families and property, will\ngenerally be without arms, without knowing the use of them, and defenceless;\nwhereas, to preserve liberty, it is essential that the whole body of the people\nalways possess arms, and be taught alike, especially when young, how to use\nthem.\xe2\x80\x9d126 James Burgh, a Scotsman whose 1774 Political Disquisitions were wellknown in America, including being cited in The Federalist, wrote that a \xe2\x80\x9cgood\nmilitia\xe2\x80\x9d formed \xe2\x80\x9cthe chief part of the constitution of every free government\xe2\x80\x9d and\nwould \xe2\x80\x9cpreserve the public liberty.\xe2\x80\x9d He added that \xe2\x80\x9c[t]he possession of arms is the\ndistinction between a freeman and a slave. . . . [H]e who thinks he is his own\nmaster, and has anything he may call his own, ought to have arms to defend\nhimself and what he possesses, or else he lives precariously and at discretion.\xe2\x80\x9d127\n123\nSee also Malcolm, To Keep and Bear Arms, supra note 33, at 50\xe2\x80\x9353, 115\xe2\x80\x9316, 123 (militia\nofficers\xe2\x80\x99 use of discretionary power to disarm); id. at 45\xe2\x80\x9346 (disarmament by Charles II prior to 1662);\nid. at 85 (disarmament by militia in 1678); id. at 103 (use of militia by James II to disarm suspicious\npersons); id. at 105 (attempted use of militia in 1686 to disarm by enforcing game act); id. at 31 (in\nCivil War); see also id. at 92\xe2\x80\x9393, 95 (in response to 1683 Rye House plot; confiscated arms given to\nmilitia); id. at 100 (disarmament by Charles II in western England early in reign, and in response to\nRye House plot later). Efforts to disarm and undermine the militia also included requiring its members\nto \xe2\x80\x9cstore\xe2\x80\x9d their arms in government magazines. See id. at 38, 78\xe2\x80\x9379, 96\xe2\x80\x9397; see also id. at 3, 5, 10\xe2\x80\x9311\n(discussing private ownership and storage prior to English Civil War, and failed plans to require public\nstorage). The actions of white militias toward freed blacks in the South after the American Civil War\nwere similar. See Part IV.C below.\n124\nVa. Decl. of Rights \xc2\xa7 13 (1776), reprinted in 7 Federal and State Constitutions, supra note 78,\nat 3814; see also Md. Const., Decl. of Rights \xc2\xa7 25 (1776), reprinted in 3 id. at 1688 (\xe2\x80\x9cThat a wellregulated militia is the proper and natural defence of a free government.\xe2\x80\x9d).\n125\n1 Debate on the Constitution, supra note 97, at 711\xe2\x80\x9312.\n126\nFederal Farmer No. 18, reprinted in 2 Complete Anti-Federalist, supra note 101, at 341\xe2\x80\x9342.\n127\nJames Burgh, Political Disquisitions, reprinted in part in 3 Founders\xe2\x80\x99 Constitution, note 118, at\n126, 125; see The Federalist No. 56, at 382 n.* (James Madison); see also 2 Tucker\xe2\x80\x99s Blackstone,\nsupra note 60, at *245 n.7 (quoting Burgh\xe2\x80\x99s Disquisitions). In both passages, Burgh was loosely\n\n158\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nThus, \xe2\x80\x9cevery male\xe2\x80\x9d should be trained in the use of arms, or at least \xe2\x80\x9call men of\nproperty.\xe2\x80\x9d128\nSecond, and related, the freedom of a state was understood at the time of the\nFounding to include a citizen\xe2\x80\x99s individual right of self-defense (that is, defense of\nhis right to life and personal security) when the state cannot assist him. An\nindividual right to arms such as that secured by the Second Amendment\xe2\x80\x99s\noperative text helps to preserve this basic right and thus a free state. As the preface\nindicates, the existence of a well-regulated citizen militia further secures the link\nbetween such an individual right and this aspect of a free state (by increasing the\nnumber of persons equipped and trained to exercise the right well), but, as the\ndiscussion of the militia in the previous paragraph suggests, this link was not\nunderstood to be confined to one\xe2\x80\x99s actions while participating in even such a\nbroad-based entity.129 Blackstone\xe2\x80\x99s summary of key English rights explains this\npoint. With no mention of the militia, he described the \xe2\x80\x9cright of having and using\narms for self-preservation and defence\xe2\x80\x9d as the last security of individual English\nsubjects for keeping the state, including themselves, free:\n[T]he rights, or, as they are frequently termed, the liberties of Englishmen . . . consist primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these\nremain inviolate, the subject is perfectly free; for every species of\ncompulsive tyranny and oppression must act in opposition to one or\nother of these rights, having no other object upon which it can possibly be employed. To preserve these from violation, it is necessary,\nthat the constitution of parliament be supported in its full vigour; and\nlimits, certainly known, be set to the royal prerogative. And lastly, to\nvindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular adminquoting Andrew Fletcher, a prominent member of the Scottish Parliament prior to union with England\nin 1707. See A Discourse of Government With Relation to Militias (1698), reprinted in Andrew\nFletcher, Political Works 21\xe2\x80\x9322 (John Robertson ed., 1997); Speeches by a Member of the Parliament,\nNo. 7 (1703), reprinted in id. at 149\xe2\x80\x9350. Regarding Fletcher and Burgh, see David Thomas Konig, The\nSecond Amendment: A Missing Transatlantic Context for the Historical Meaning of \xe2\x80\x9cthe Right of the\nPeople to Keep and Bear Arms,\xe2\x80\x9d 22 L. & Hist. Rev. 119, 125\xe2\x80\x9326, 136\xe2\x80\x9339 (2004).\n128\nBurgh, Political Disquisitions, reprinted in 3 Founders\xe2\x80\x99 Constitution, note 118, at 124, 126. As\nFletcher put it: \xe2\x80\x9cI cannot see, why arms should be denied to any man who is not a slave, since they are\nthe only true badges of liberty . . . neither can I understand why any man that has arms, should not be\ntaught the use of them.\xe2\x80\x9d A Discourse of Government, reprinted in Fletcher, Political Works, supra note\n127, at 23.\n129\nThe duty to serve in the militia and the right to possess or carry weapons for self-defense were\nrelated but distinct in colonial America. One might have the latter without the former. See Cottrol &\nDiamond, supra note 33, 80 Geo. L.J. at 325\xe2\x80\x9337 (surveying colonial laws and explaining the development of \xe2\x80\x9cthe view that the security of the state was best achieved through the arming of all free\ncitizens,\xe2\x80\x9d regardless of eligibility for militia service); see also Part II.B.1 above (discussing right to\n\xe2\x80\x9ckeep\xe2\x80\x9d arms for private purposes).\n\n159\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nistration and free course of justice in the courts of law; next, to the\nright of petitioning the king and parliament for redress of grievances;\nand, lastly, to the right of having and using arms for self-preservation\nand defence.\nThis right to arms, Blackstone added, facilitates self-defense \xe2\x80\x9cwhen the sanctions\nof society and laws are found insufficient to restrain the violence of oppression.\xe2\x80\x9d130\nJohn Locke, although not explicitly discussing arms, similarly explained the\nindividual right of self-defense that a free society allows. Discussing the right of\nself-defense against a robber, he wrote: \xe2\x80\x9cI have no reason to suppose that he who\nwould take away my liberty, would not, when he had me in his power, take away\neverything else.\xe2\x80\x9d Therefore \xe2\x80\x9cthe law, which was made for my preservation, where\nit cannot interpose to secure my life from present force, which if lost, is capable of\nno reparation, permits me my own defence.\xe2\x80\x9d131\nIt is therefore reasonable to conclude that the ability of a \xe2\x80\x9cright of the people to\nkeep and bear Arms\xe2\x80\x9d to further the Second Amendment preface\xe2\x80\x99s ultimate end of\nthe \xe2\x80\x9csecurity of a free State\xe2\x80\x9d consisted not merely in the existence of a trained\nband ready to act as soldiers should the state\xe2\x80\x99s government call upon them, but\nalso in the ability of the citizens (many of them part of the privately armed citizen\nmilitia), by individually keeping and bearing arms, to help secure the freedoms of\nthe state and its citizens.132 Thus, the \xe2\x80\x9cpeople\xe2\x80\x9d in the Second Amendment were\ndistinct from the \xe2\x80\x9cMilitia\xe2\x80\x9d and a \xe2\x80\x9cState,\xe2\x80\x9d but a right of the people to keep and bear\narms was understood both to facilitate a well-regulated militia and to help\nmaintain a state that was free. By contrast, the collective right and quasi-collective\nright views would sanction not only the creation of a select militia (to the exclusion of the citizen militia) but also the disarming of the rest of the citizenry, a\n\n130\n1 William Blackstone, Commentaries *144. Blackstone also described the fundamental \xe2\x80\x9cright of\npersonal security\xe2\x80\x9d as including protection against \xe2\x80\x9closs of limb,\xe2\x80\x9d so as to guard a man\xe2\x80\x99s ability \xe2\x80\x9cto\nprotect himself from external injuries in a state of nature,\xe2\x80\x9d and condemned any destruction of limbs as\n\xe2\x80\x9ca manifest breach of civil liberty,\xe2\x80\x9d id. at *129, *130; and he set out the basic common law rule of selfdefense, \xe2\x80\x9cthe primary law of nature,\xe2\x80\x9d by which it is lawful for a person \xe2\x80\x9cforcibly attacked in his person\nor property . . . to repel force by force\xe2\x80\x9d without being liable for breach of the peace or a resulting\nhomicide, 3 id. at *3\xe2\x80\x934. The importance of this right of self-defense was reinforced by the absence of\nany constitutional duty of government to defend citizens\xe2\x80\x99 lives, liberty, or property. See DeShaney v.\nWinnebago Cnty. Soc. Servs. Dep\xe2\x80\x99t, 489 U.S. 189, 195\xe2\x80\x9397 (1989).\n131\nJohn Locke, Second Treatise of Government \xc2\xa7\xc2\xa7 18\xe2\x80\x9319, at 12\xe2\x80\x9313 (Richard H. Cox ed., 1982)\n(1689); see also id. \xc2\xa7\xc2\xa7 204\xe2\x80\x9310, at 126\xe2\x80\x9329 (similar). Blackstone and Locke disagreed on the exact scope\nof the right of self-defense. 4 William Blackstone, Commentaries *181\xe2\x80\x9382; see also 1 id. at *251.\nLocke was, after Blackstone and Montesquieu, the writer whom American political writers of the\nFounding cited most. Malcolm, To Keep and Bear Arms, supra note 33, at 142 & 214 n.44. His\nthinking is particularly evident in the Declaration of Independence. See also 2 Tucker\xe2\x80\x99s Blackstone,\nsupra note 60, at *161 & n.25.\n132\nSee Van Alstyne, supra note 33, 43 Duke L.J. at 1243 (The Second Amendment \xe2\x80\x9clooks to an\nultimate reliance on the common citizen who has a right to keep and bear arms . . . as an essential\nsource of security [for] a free state.\xe2\x80\x9d); see also Lund, supra note 33, 31 Ga. L. Rev. at 24.\n\n160\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nresult antithetical to the true \xe2\x80\x9cMilitia\xe2\x80\x9d as understood at the Founding and to the\n\xe2\x80\x9cfree State\xe2\x80\x9d that the Founding Generation understood it to secure.\nD. Structural Considerations\nOur conclusion that the text of the Second Amendment protects an individual\nright is further confirmed by the structure of the Constitution, in particular the\nAmendment\xe2\x80\x99s placement and its inter-relation with the powers that the Constitution grants over the militia.\n1. The Bill of Rights\nThe Second Amendment is embedded within the Bill of Rights. Every one of\nthe other rights and freedoms set forth in the first nine amendments of the Bill\xe2\x80\x94\nwhether or not phrased as a \xe2\x80\x9cright of the people\xe2\x80\x9d\xe2\x80\x94protects individuals, not\ngovernments; none of its provisions protects persons only in connection with\nservice to the government.133 As Thomas Cooley summarized, writing of the Bill\xe2\x80\x99s\nfirst eight amendments, \xe2\x80\x9c[I]t is declared that certain enumerated liberties of the\npeople shall not be taken away or abridged.\xe2\x80\x9d134 It is therefore reasonable to\ninterpret the Second Amendment to protect individuals just as the rest of these\nnine amendments do.\nMore particularly, the Second Amendment is located within a subset of the Bill\nof Rights amendments, the First through Fourth, that relates most directly to\npersonal freedoms (as opposed to judicial procedure regulating deprivation by the\ngovernment of one\xe2\x80\x99s life, liberty, or property)\xe2\x80\x94the amendments that, in Story\xe2\x80\x99s\nwords in his Commentaries, \xe2\x80\x9cprincipally regard subjects properly belonging to a\nbill of rights.\xe2\x80\x9d135 These four amendments concern liberties that are tied to the right\nof individuals to possess and use certain property (the printing \xe2\x80\x9cpress\xe2\x80\x9d in the First\n133\nCf. Planned Parenthood v. Casey, 505 U.S. 833, 847 (1992) (rejecting argument that the personal \xe2\x80\x9cliberty\xe2\x80\x9d that the Fourteenth Amendment protects \xe2\x80\x9cencompasses no more than those rights already\nguaranteed to the individual against federal interference by the express provisions of the first eight\nAmendments\xe2\x80\x9d) (emphasis added) (citation omitted); Moore v. City of East Cleveland, 431 U.S. 494,\n502 (1977) (plurality opinion) (similar, quoting Poe v. Ullman, 367 U.S. 497, 542\xe2\x80\x9343 (1961) (Harlan,\nJ., dissenting)); Johnson v. Eisentrager, 339 U.S. 763, 784 (1950) (describing First, Second, Fourth,\nFifth, and Sixth Amendments as the \xe2\x80\x9ccivil-rights Amendments\xe2\x80\x9d); Robertson v. Baldwin, 165 U.S. 275,\n281 (1897) (describing Bill of Rights as embodying \xe2\x80\x9ccertain guaranties and immunities which we had\ninherited from our English ancestors\xe2\x80\x9d). While some might argue that, as an original matter, the First\nAmendment\xe2\x80\x99s Establishment Clause (which makes no reference to any \xe2\x80\x9cright\xe2\x80\x9d or \xe2\x80\x9cfreedom\xe2\x80\x9d) was an\nexception to this rule, the Supreme Court has held that it too creates an individual right, applicable even\nagainst states. See Zelman v. Simmons-Harris, 536 U.S. 639, 678 (2002) (Thomas, J., concurring);\nEverson v. Bd. of Educ., 330 U.S. 1, 8 (1947); David Currie, The Constitution in the Supreme Court:\nThe Second Century 339\xe2\x80\x9340 (1990).\n134\nCooley, General Principles, supra note 41, at 200.\n135\nStory, Abridgement, supra note 66, \xc2\xa7 984, at 698 (commencing discussion of First through\nFourth, and Eighth through Tenth Amendments).\n\n161\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nAmendment,136 \xe2\x80\x9chouse[s]\xe2\x80\x9d in the Third\xe2\x80\x99s restriction on quartering soldiers, and\n\xe2\x80\x9chouses, papers, and effects\xe2\x80\x9d in the Fourth\xe2\x80\x99s restriction on searches and seizures),\nor otherwise to act without undue governmental interference (worship, speech,\nassembly and petition). Again, it seems reasonable to interpret the Second\nAmendment, consistently with this context, to set out another personal liberty\n(keeping and bearing) and privileged form of individual property (arms), useful for\nprotecting not only the citizen\xe2\x80\x99s person but also the \xe2\x80\x9chouses\xe2\x80\x9d that the Third and\nFourth Amendments guard.137\nFinally, the right in the Second Amendment immediately follows the right to\nassemble and petition, which concludes the First Amendment. The latter right is\nundeniably personal and individual, not depending on governmental organization,\nregulation, or service. And the two are aligned, not only in their placement but\nalso in their origin, purpose, and limitations. Antecedents of both appeared in\nproximity in the English Bill of Rights of 1689.138 Blackstone, in the passage\nblock-quoted in the previous subpart, discussed in immediate succession their dual\nutility as guards of the great individual rights of life, liberty, and property,139 and\nhe did likewise in discussing the criminal law\xe2\x80\x99s limitations on abuses of those\nrights.140 St. George Tucker, the first leading American commentator on Blackstone and the Constitution (discussed more in Part IV.A below), noted that both\nrights had been transplanted to the United States from England, both stripped of\nmany English restrictions.141 It follows that the former right\xe2\x80\x94that secured by the\nSecond Amendment\xe2\x80\x94also would be individual.\n\n136\nSee 4 William Blackstone, Commentaries *152 n.a; John O. McGinnis, The Once and Future\nProperty-Based Vision of the First Amendment, 63 U. Chi. L. Rev. 49, 92\xe2\x80\x9394 (1996).\n137\nCompare 1 William Blackstone, Commentaries *138 (\xe2\x80\x9cThe third absolute right, inherent in\nevery Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his\nacquisitions, without any control or diminution, save only by the laws of the land.\xe2\x80\x9d) (emphasis added),\nwith id. at *144 (recognizing \xe2\x80\x9cthe right of having and using arms\xe2\x80\x9d) (emphasis added); see Part II.B.1\nabove (discussing English cases in 1700s approving the \xe2\x80\x9ckeeping\xe2\x80\x9d of arms for defense of one\xe2\x80\x99s self and\nhome).\n138\n1 W. & M., 2d Sess., c. 2, \xc2\xa7 1, paras. 5 & 7 of the list of rights.\n139\nSee also 1 William Blackstone, Commentaries *143\xe2\x80\x9344 (similar); 2 Jean L. De Lolme, The Rise\nand Progress of the English Constitution 886\xe2\x80\x9387 (A.J. Stephens ed., 1838) (1784) (noting that English\nBill of Rights \xe2\x80\x9cexpressly ensured to individuals the right of publicly preferring complaints against the\nabuses of the government, and, moreover, of being provided with arms for their own defence,\xe2\x80\x9d and\nthen quoting 1 William Blackstone, Commentaries *144 regarding these rights).\n140\nSee 4 id. at *145\xe2\x80\x9349 (discussing the following misdemeanor breaches of the peace: affray, riot,\nrout, unlawful assembly, tumultuous petitioning, forcible entry or detainer, and going armed with\ndangerous or unusual weapons to the terror of the people). Among felonies against the public peace,\nBlackstone first listed violation of the Riot Act against \xe2\x80\x9criotous assembling of twelve persons\xe2\x80\x9d and then\ndescribed \xe2\x80\x9cunlawful hunting\xe2\x80\x9d in certain parks, which involved being disguised and \xe2\x80\x9carmed with\noffensive weapons.\xe2\x80\x9d Id. at *142\xe2\x80\x9344.\n141\n2 Tucker\xe2\x80\x99s Blackstone, supra note 60, at *143\xe2\x80\x9344 nn. 38\xe2\x80\x9341. See also United States v. Cruikshank, 92 U.S. 542, 551\xe2\x80\x9353 (1876) (analyzing the two rights similarly); Logan v. United States, 144\nU.S. 263, 286\xe2\x80\x9387 (1892) (same).\n\n162\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\n2. The Militia Powers\nInterpreting the Second Amendment in light of the militia powers granted to the\nfederal government and the states in the original Constitution likewise suggests an\nindividual right to keep and bear arms rather than a \xe2\x80\x9cright\xe2\x80\x9d of states, against the\nfederal government, to maintain select militias or a quasi-collective right to be\nexercised only by persons who serve in such entities. Clauses 15 and 16 of Article I, Section 8, respectively grant power to Congress:\nTo provide for calling forth the Militia to execute the Laws of the\nUnion, suppress Insurrections and repel Invasions; [and]\nTo provide for organizing, arming, and disciplining, the Militia, and\nfor governing such Part of them as may be employed in the Service\nof the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia\naccording to the discipline prescribed by Congress.\nIn addition, Article II, Section 2, makes the President \xe2\x80\x9cCommander in Chief . . .\nof the Militia of the several States, when called into the actual Service of the\nUnited States.\xe2\x80\x9d\nThese clauses, independently of the Second Amendment, presuppose the existence of functioning state militias and leave significant powers over them to the\nstates. The states expressly retain the powers to appoint all officers and to train the\nmilitia according to federally specified rules. They implicitly retain the power of\n\xe2\x80\x9cgoverning\xe2\x80\x9d any parts of the militias not in actual service to the federal government, and of having those state-appointed officers govern the militias even when\nin such service, subject to the President\xe2\x80\x99s supreme authority. The provision\nregarding officers is why Hamilton could argue credibly in The Federalist that the\nstates always would retain \xe2\x80\x9ca preponderating influence over the militia.\xe2\x80\x9d142 The\nConstitution, in elsewhere prohibiting states from \xe2\x80\x9ckeep[ing] Troops, or Ships of\nWar in time of peace,\xe2\x80\x9d while still allowing them to \xe2\x80\x9cengage in War\xe2\x80\x9d if \xe2\x80\x9cactually\ninvaded\xe2\x80\x9d or under an imminent threat, contemplates that the states will have, and\nhave power to employ, usable militias to provide necessary defense and emergen-\n\n142\nThe Federalist No. 29, at 185 (Alexander Hamilton); see also The Federalist No. 46, at 321\xe2\x80\x9322\n(James Madison).\n\n163\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\ncy war-making ability.143 More broadly, the states implicitly retain the power to\ncall out the militia on their own for domestic purposes.144\nThe original Constitution also leaves to the states concurrent power to provide\nfor organizing, arming, and disciplining their militias, so long as in so doing they\ndo not interfere with the federal power. This interpretation has been recognized\nfrom the beginning: At the critical Virginia Ratifying Convention, Henry Lee\n(future Governor of Virginia and congressman), Edmund Randolph (a Framer who\nbecame the first Attorney General), Madison, and John Marshall all made this\ntextual argument in response to attacks on the federal power to make such\nprovision.145 Story found the arguments for such a concurrent power \xe2\x80\x9cin their\nstructure and reasoning satisfactory and conclusive.\xe2\x80\x9d146 The Supreme Court\napproved this reading in 1820 in Houston v. Moore,147 and has recently reiterated\nit. Looking to the \xe2\x80\x9cgeneral plan\xe2\x80\x9d of the Constitution, the Court noted in 1990 that,\n\xe2\x80\x9cWere it not for the Militia Clauses, it might be possible to argue,\xe2\x80\x9d much as one\ncould regarding federal power over foreign policy and the armed forces, \xe2\x80\x9cthat the\nconstitutional allocation of powers precluded the formation of organized state\nmilitia. The Militia Clauses, however, subordinate any such structural inferences\nto an express permission while also subjecting state militia to express federal\nlimitations.\xe2\x80\x9d148 Even the Ninth Circuit in Silveira so interpreted Article I, Section\n8, Clause 16: \xe2\x80\x9cThe language indicates that the grant of power [to Congress] is\npermissive. . . . Nothing in the Article or elsewhere in the Constitution appears to\nbar the states from choosing to arm their respective militias as they wish.\xe2\x80\x9d149\nIn at least two respects, the above militia powers in the Constitution suggest an\nindividual right view of the Second Amendment. First, any constitutional amendment securing to the states power to maintain militias would have been largely\nredundant, whether the amendment protected the power through a \xe2\x80\x9cright\xe2\x80\x9d of states\nor a right restricted to persons serving in militia units that a state had organized. A\nprovision should not be read to be redundant if another reasonable interpretation\n\n143\nU.S. Const. art. I, \xc2\xa7 10, cl. 3. See Houston v. Moore, 18 U.S. (5 Wheat.) 1, 52 (1820) (Story, J.,\ndissenting); Va. Ratif. Conv., in 10 Ratification, supra note 67, at 1307 (remarks of John Marshall,\nJune 16, 1788).\n144\nSee Story, Abridgement, supra note 66, \xc2\xa7 593, at 425; Va. Ratif. Conv., in 10 Ratification, supra\nnote 67, at 1304, 1311 (remarks of James Madison, June 16, 1788); id. at 1306\xe2\x80\x9307 (remarks of John\nMarshall, same).\n145\nCompare 9 Ratification, supra note 67, at 1074 (John P. Kaminski & Gaspare J. Saladino eds.,\n1990) (H. Lee, June 9, 1788), id. at 1102 (Randolph, June 10, 1788), 10 id. at 1273 (Madison, June 14,\n1788), id. at 1306\xe2\x80\x9308 (Marshall, June 14, 1788); with 9 id. at 957\xe2\x80\x9358, 1066 (Patrick Henry, June 5 & 9,\n1788), 10 id. at 1270\xe2\x80\x9371 (George Mason, June 14, 1788), id. at 1305 (William Grayson, June 16,\n1788). Henry Lee should not be confused with his Anti-Federalist cousin Richard Henry Lee.\n146\n3 Story, Commentaries, supra note 75, \xc2\xa7 1202, at 85\xe2\x80\x9386.\n147\n18 U.S. (5 Wheat.) 1 (1820). See Part IV.B.1 below.\n148\nPerpich, 496 U.S. at 353\xe2\x80\x9354 (footnotes omitted).\n149\n312 F.3d at 1081 n.43.\n\n164\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nexists, and the individual right view of the Amendment is such an interpretation.\nSecond, one also would expect a protection of the states\xe2\x80\x99 militia powers to use\nlanguage analogous to that of Clause 16, which concludes by \xe2\x80\x9creserving to the\nStates respectively, the Appointment of the Officers, and the Authority of training\nthe Militia according to the discipline prescribed by Congress.\xe2\x80\x9d150 Clause 16\xe2\x80\x99s\nparallel to the protection of state power in the Tenth Amendment, which provides\nthat certain powers are \xe2\x80\x9creserved to the States respectively\xe2\x80\x9d (while mentioning\n\xe2\x80\x9cthe people\xe2\x80\x9d separately), is unmistakable, as is the contrast between such language\nand the Second Amendment\xe2\x80\x99s protection of a \xe2\x80\x9cright of the people.\xe2\x80\x9d Given the\nready availability of such language, it would be both surprising and inartful for a\nprotection of state authority to create and maintain organized militias to be phrased\nas the Second Amendment is, whether one conceives of the protection as belonging to the states directly or to those serving it.\nThe Militia Clauses therefore suggest that the Second Amendment, to the extent that it furthers the states\xe2\x80\x99 authority to maintain organized militias, does so\nindirectly, as we discussed in Part II.C.2 & 3, by ensuring the minimum of a \xe2\x80\x9cwell\nregulated Militia\xe2\x80\x9d\xe2\x80\x94that the States\xe2\x80\x99 people, the pool for the citizen militia, would\ncontinue to be able to keep and to bear their private arms, having them ready and\nbeing familiar with them. Thus the Militia Clauses, along with the structure of the\nBill of Rights and the preface of the Second Amendment, all support the personal,\nindividual right to keep and bear arms that the Amendment\xe2\x80\x99s operative text sets\nout.\nIII. The Original Understanding of the Right to Keep and Bear Arms\nIn the previous part, we focused on the text and structure of the Constitution,\nconsidering the meaning of the Second Amendment\xe2\x80\x99s words and phrases when\nthey were adopted and how the Amendment\xe2\x80\x99s meaning is informed by its interrelation with the rest of the Constitution. In this part, we take a broader view and\nconsider the Anglo-American right to arms as it existed at the time of the Founding and informed the adoption of the Second Amendment. This history, like the\ntext, indicates that the Amendment secures an individual right.\nWe first consider the historical context of the right to arms, both (A) in England\nbeginning with the Revolution of 1688\xe2\x80\x931689 and (B) in America through the\nAmerican Revolution and the first state constitutions. The right was consistently a\npersonal one. Beginning with the right of individual English subjects to have arms\nfor their defense, it was supplemented in revolutionary America with the notion\nthat a citizen militia, comprising the armed citizenry, was a particularly important\nmeans of securing free government. As one judge recently put it, the Americans of\nthe Founding Generation \xe2\x80\x9cwere the heirs of two revolutions,\xe2\x80\x9d both of which had\n150\nAs we explain below in Part III.C, several state ratifying conventions unsuccessfully proposed\nsimilar language in suggested amendments distinct from those securing the right to bear arms.\n\n165\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nimpressed upon them the importance of an individual right to have and use arms.151\nThis background understanding of the right is inconsistent with either the collective right or quasi-collective right views. Next, in Part III.C, we turn to (1) the\nframing and ratification of the Constitution and (2) the framing and ratification of\nthe Second Amendment. This history demonstrates that the background understanding, far from being transformed or curtailed, was incorporated in that\nAmendment, just as the Bill of Rights incorporated many other traditional rights of\nindividuals. By contrast, separate proposals to amend the Constitution to safeguard\npowers of the states to establish and maintain organized militias failed.\nA. The Right Inherited From England\nAs the Supreme Court has recognized, \xe2\x80\x9c[t]he historical necessities and events\nof the English constitutional experience . . . were familiar to\xe2\x80\x9d the Framers and\nshould \xe2\x80\x9cinform our understanding of the purpose and meaning of constitutional\nprovisions.\xe2\x80\x9d152 This rule is particularly applicable to provisions such as the Second\nAmendment, because \xe2\x80\x9c[t]he law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not\nintended to lay down any novel principles of government, but simply to embody\ncertain guaranties and immunities which we had inherited from our English\nancestors.\xe2\x80\x9d153\nThe right to arms that colonial Americans inherited from England had been set\nout first in the English Declaration of Rights of 1689, and then had been expounded by William Blackstone in his authoritative Commentaries on the Laws of\nEngland in the decade before the American Revolution. Both the Declaration and\nBlackstone made clear that the English right was a personal, individual one, not a\n\xe2\x80\x9cright\xe2\x80\x9d belonging to any government or restricted to persons in governmental\nservice. The English right could not have been a federalism provision, because\nEngland lacked a federal structure; and neither the Declaration nor the law as\nexpounded by Blackstone conditioned the right on a subject\xe2\x80\x99s service in any\nmilitia.\nThe Declaration of Rights was a product of the English Revolution of 1688\xe2\x80\x93\n1689 (commonly known as the Glorious Revolution). In 1660, a special \xe2\x80\x9cConvention\xe2\x80\x9d Parliament had restored the English monarchy by crowning Charles II,154 and\ntwo statutes enacted under him provided background for the Declaration\xe2\x80\x99s\nprovisions on arms. First was the Militia Act, enacted by the royalist Parliament in\n\n151\nSilveira, 328 F.3d at 580 (Kleinfeld, J., joined by Kozinski, O\xe2\x80\x99Scannlain, and T.G. Nelson, JJ.,\ndissenting from denial of rehearing en banc).\n152\nLoving v. United States, 517 U.S. 748, 766 (1996).\n153\nRobertson v. Baldwin, 165 U.S. 275, 281 (1897), discussed further below in Part IV.D.\n154\nSee 1 William Blackstone, Commentaries *151.\n\n166\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\n1662.155 It authorized militia officers on their own warrants \xe2\x80\x9cto search for and seize\nall arms\xe2\x80\x9d of anyone they judged \xe2\x80\x9cdangerous to the peace of the kingdom,\xe2\x80\x9d\nincluding through entering houses by force if necessary, the arms to be handed\nover to the militia and no judicial recourse being available.156 Charles II repeatedly\nused this power,157 aided not only by the regular militia but also by a volunteer\narmy that he had organized unilaterally,158 and by a select militia of about 15,000\nthat he formed in 1666.159 The second statute was the Game Act of 1671, which, in\nthe name of protecting wildlife, was \xe2\x80\x9cthe first law in English history that took\nfrom the majority of Englishmen the privilege of having firearms.\xe2\x80\x9d160 It outlawed\npossession of guns (not just their use in hunting) by anyone not among the few\nrich qualified to hunt game.161\nConcerns escalated after the accession in 1685 of Charles\xe2\x80\x99s brother, King\nJames II. He was openly Roman Catholic, at a time of sharp political distrust\nbetween England\xe2\x80\x99s Protestants and Catholics.162 He disarmed the Protestant militia\nof Ireland by seizing their arms and placing them in government magazines, while\nreturning the arms of Ireland\xe2\x80\x99s Roman Catholics. In England, he continued to use\nthe militia to disarm persons of questioned loyalties, including through strictly\n155\nThe Founders were well aware of the events leading up to the Declaration. A delegate at the\nMassachusetts Ratifying Convention, warning against overreacting to the weakness of the Articles of\nConfederation, pointed to the Restoration, in which the people, \xe2\x80\x9cso vexed, harassed and worn down . . .\n[had] run mad with loyalty, and would have given Charles any thing he could have asked.\xe2\x80\x9d 1 Debate on\nthe Constitution, supra note 97, at 897 (remarks of Charles Turner, Jan. 17, 1788). A delegate at\nVirginia\xe2\x80\x99s convention drew the opposite lesson: The new Constitution would prevent the anarchy that\nhad led England into the arms of Charles II. 2 id. at 756 (remarks of Zachariah Johnston, June 25,\n1788).\n156\n13 & 14 Car. II, c. 3, \xc2\xa7 14.\n157\nMalcolm, To Keep and Bear Arms, supra note 33, at 36, 38, 43, 45\xe2\x80\x9348, 50\xe2\x80\x9353, 85, 100, 115\xe2\x80\x9316,\n123; see also id. at 92\xe2\x80\x9393, 95; Lois G. Schwoerer, The Declaration of Rights, 1689, at 76 (1981)\n(\xe2\x80\x9cCharles II had made effective use of\xe2\x80\x9d the militia acts \xe2\x80\x9cto try to snuff out political and religious\ndissent,\xe2\x80\x9d disarming individuals and towns and confiscating weapons). He had begun doing so as soon\nas he assumed the throne. An interim act in 1661 approved his actions and provided indemnity to\nmilitiamen. 12 Car. II, c. 6, \xc2\xa7 3 (favorably recognizing that \xe2\x80\x9cdivers arms have been seized and houses\nsearched for arms\xe2\x80\x9d); cf. The Federalist No. 69, at 465 n. (Alexander Hamilton) (discussing 1661 act).\n158\nMalcolm, To Keep and Bear Arms, supra note 33, at 36\xe2\x80\x9339.\n159\nId. at 63. See also Schwoerer, Declaration, supra note 157, at 75\xe2\x80\x9376 (describing Charles II\xe2\x80\x99s\nactions, including disarmament, and noting rise of complaints from Commons beginning in 1668).\n160\nMalcolm, To Keep and Bear Arms, supra note 33, at 12; see id. at 69\xe2\x80\x9376; Schwoerer, Declaration, supra note 157, at 78 (describing it as \xe2\x80\x9cthe most stringent and comprehensive of the game laws\xe2\x80\x9d)\n(internal quotation marks omitted).\n161\n22 & 23 Car. II, c. 25, \xc2\xa7 3 (providing that all who did not have estate \xe2\x80\x9cof the clear yearly value\nof one hundred pounds\xe2\x80\x9d per year were \xe2\x80\x9cnot allowed to have or keep for themselves, or any other person\nor persons, any guns, bows, greyhounds . . . or other engines\xe2\x80\x9d).\n162\nSee 4 William Blackstone, Commentaries *55 (explaining various legal disabilities on certain\nRoman Catholics, including several dating from English Revolution or earlier, by stating that such\npersons \xe2\x80\x9cacknowledge a foreign power, superior to the sovereignty of the kingdom\xe2\x80\x9d); id. at *58\n(hoping that \xe2\x80\x9ca time . . . should arrive\xe2\x80\x9d soon when it would be safe to \xe2\x80\x9creview and soften these rigorous\nedicts\xe2\x80\x9d).\n\n167\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nenforcing the Game Act, although he ultimately preferred to undermine the militia\n(whose loyalty he questioned), by restricting musters. He also accelerated and\nexpanded his brother\xe2\x80\x99s policy of purging opponents, and Protestants in general,\nfrom the militia\xe2\x80\x99s and army\xe2\x80\x99s officer corps, and geometrically enlarged the\nstanding army.163\nJames II fled soon after William of Orange landed in England in late 1688 at\nthe invitation of leading Englishmen. A Convention Parliament in early 1689\nadopted the Declaration of Rights, which William and his wife Mary (James\xe2\x80\x99s\ndaughter) accepted before Parliament proclaimed them King and Queen, and\nwhich the ensuing regular Parliament enacted as the Bill of Rights.164 A hundred\nyears later, Alexander Hamilton in The Federalist celebrated \xe2\x80\x9cthe revolution in\n1688,\xe2\x80\x9d when at last \xe2\x80\x9cEnglish liberty was completely triumphant.\xe2\x80\x9d165\nThe Declaration first listed twelve indictments of James II for having attempted\nto subvert \xe2\x80\x9cthe laws and liberties of this kingdom,\xe2\x80\x9d including:\n5. By raising and keeping a standing army within this kingdom in\ntime of peace, without consent of parliament, and quartering soldiers\ncontrary to law.\n6. By causing several good subjects, being protestants, to be disarmed, at the same time when papists were both armed and employed, contrary to law.\nThen, in a roughly parallel list of thirteen \xe2\x80\x9cancient rights and liberties,\xe2\x80\x9d the\nDeclaration stated:\n6. That the raising or keeping a standing army within the kingdom in\ntime of peace, unless it be with consent of parliament, is against law.\n7. That the subjects which are protestants may have arms for their\ndefence suitable to their conditions and as allowed by law.\n\n163\n\nSee Malcolm, To Keep and Bear Arms, supra note 33, at 95\xe2\x80\x93106; Schwoerer, Declaration, supra\nnote 157, at 71\xe2\x80\x9373, 75\xe2\x80\x9376; see also The Federalist No. 26, at 166 (Alexander Hamilton); Marcus No. 4\n(James Iredell) (1788), reprinted in 1 Debate on the Constitution, supra note 97, at 391; Mass. Ratif.\nConv., in id. at 904 (remarks of Thomas Dawes, Jr., Jan. 24, 1788).\n164\nThe Bill of Rights is at 1 W. & M., 2d Sess., c. 2 (1689). Its first three sections, except for the\ninitial preamble, consist of the Declaration, see Schwoerer, Declaration, supra note 157, at 295, App. 1\n(reprinting Declaration), and it recounts the events of the Revolution. See also 1 W. & M., 1st Sess., c.\n1, \xc2\xa7 2 (1689) (noting presentation and acceptance of crown, and proclaiming Parliament to be regular\nfrom that date); id. c. 6 (establishing coronation oath); 1 William Blackstone, Commentaries *128,\n*152, *211\xe2\x80\x9316, *245 (discussing events); The Federalist No. 84, at 578 (Alexander Hamilton)\n(similar).\n165\nThe Federalist No. 26, at 165\xe2\x80\x9366. See Schwoerer, Declaration, supra note 157, at 289 (Americans greeted the revolution and Declaration \xe2\x80\x9cwith enthusiasm\xe2\x80\x9d).\n\n168\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nThis seventh article is most relevant here, and it set out a personal right. Neither\nthis article nor the parallel sixth indictment ties possession of arms to service in\nthe militia, which the Declaration never mentions. The sixth indictment instead\nindicates that being \xe2\x80\x9carmed\xe2\x80\x9d and being \xe2\x80\x9cemployed\xe2\x80\x9d by the government are\ndistinct\xe2\x80\x94a distinction confirmed by the historical context, which, as we have\nexplained, included subjects being disarmed by the militia. Furthermore, the right\nbelonged to \xe2\x80\x9csubjects,\xe2\x80\x9d not to any government, and these subjects were allowed\narms \xe2\x80\x9cfor their defence.\xe2\x80\x9d166\nCritics of the individual right view contend that the two concluding clauses of\nthe seventh article\xe2\x80\x94\xe2\x80\x9csuitable to their Conditions, and as allowed by Law\xe2\x80\x9d\xe2\x80\x94so\nrestricted the right that it was a dead letter. Among the restrictions to which these\nclauses referred was the Game Act, which literally, albeit likely not in practice,\nbarred most subjects from owning firearms.167 As Lois G. Schwoerer has argued:\n\xe2\x80\x9cEnglish-men did not secure to \xe2\x80\x98ordinary citizens\xe2\x80\x99 the right to possess weapons. . . . Drafted by upper-class Protestants who had their own interests at heart,\nArticle VII was a gun control measure.\xe2\x80\x9d168 The Declaration, therefore, the argument goes, could have had little relevance to the right in the Second Amendment.\nBut this argument regarding the scope of the right does not speak to the question that we consider here, which is whether the English right was a right of\nindividuals, a right of government, or a right specifically connected with military\nservice to the government. On that question, the answer is clear. Schwoerer herself\nrecognizes that many articles of the Declaration \xe2\x80\x9cguaranteed rights to the individual,\xe2\x80\x9d including the right \xe2\x80\x9cto bear arms (under certain restrictions).\xe2\x80\x9d169 Class- and\nreligion-based restrictions did not destroy the personal nature of the right,\nwhatever its scope. The precedent for Americans was an individual right.\n\n166\nSimilarly, the same Parliament enacted a law providing that a \xe2\x80\x9cpapist or reputed papist\xe2\x80\x9d could\n\xe2\x80\x9chave or keep . . . such necessary weapons, as shall be allowed to him by order of the justices of the\npeace . . . for the defence of his house or person.\xe2\x80\x9d 1 W. & M., 1st Sess., c. 15, \xc2\xa7 3 (1688) (emphasis\nadded).\n167\nSee Malcolm, To Keep and Bear Arms, supra note 33, at 86\xe2\x80\x9389 (noting effect of wealth qualification but also dearth of prosecutions merely for possession). Blackstone complained that there was\n\xe2\x80\x9cfifty times the property required to enable a man to kill a partridge, as to vote for a knight of the\nshire.\xe2\x80\x9d 4 William Blackstone, Commentaries *175. In addition, these clauses probably referred to two\nstatutes from the 1540s restricting ownership and use of short handguns based on wealth, outlawing\nshot, and regulating the use of guns in cities or towns, see 33 Hen. VIII, c. 6 (1541); 2 & 3 Edw. VI, c.\n14 (1548), and they may also have referred to the Militia Act, see Malcolm, To Keep and Bear Arms,\nsupra note 33, at 120.\n168\nLois G. Schwoerer, To Hold and Bear Arms: The English Perspective, 76 Chi.-Kent L. Rev. 27,\n59 (2000). She seems to misunderstand the individual right view as requiring an unlimited right. See id.\nat 56, 60.\n169\nSchwoerer, Declaration, supra note 157, at 283; see Malcolm, To Keep and Bear Arms, supra\nnote 33, at 119\xe2\x80\x9320. See also 2 De Lolme, English Constitution, supra note 139, at 886 (Declaration\n\xe2\x80\x9cexpressly ensured to individuals the right of [petition and] of being provided with arms for their own\ndefence\xe2\x80\x9d).\n\n169\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nIn addition, that Article 7 of the Declaration (and the Bill) only recognized a\nright to possess arms \xe2\x80\x9cas allowed by Law\xe2\x80\x9d does not mean that it did not secure a\ntrue right. In England\xe2\x80\x99s constitutional tradition, particularly evident in the events\nsurrounding the Declaration of Rights described above, formal English rights\nrestricted only the Crown\xe2\x80\x99s prerogative, not the legislature\xe2\x80\x99s power, which was\nunrestricted. Thus, although Blackstone was able to explain many years after the\nEnglish Revolution that a royal proclamation \xe2\x80\x9cfor disarming any protestant\nsubjects, will not bind,\xe2\x80\x9d170 the right to arms, like all other English rights, remained\nsubject to revision or abolition by Parliament.171 That characteristic of English\nrights hardly prevented Americans from borrowing and adapting them to a\ndifferent constitutional structure.\nFinally, whatever the actual ability of ordinary English subjects to have arms\nfor their defense in 1689, by the Founding, a hundred years later, the right to do so\nextended to most of the country. As Judge Kleinfeld of the Ninth Circuit recently\nobserved, \xe2\x80\x9c[t]he historical context of the Second Amendment is a long struggle by\nthe English citizenry to enable common people to possess firearms.\xe2\x80\x9d172 In new\ngame laws, particularly that of 1706, Parliament deleted guns from the list of\nimplements that those not qualified to hunt game were prohibited from owning.173\nThe courts determined that Parliament had made this deletion \xe2\x80\x9cpurposely.\xe2\x80\x9d174 Thus,\nnotwithstanding the list\xe2\x80\x99s catch-all prohibition of \xe2\x80\x9cany other engines,\xe2\x80\x9d they\ninterpreted the deletion\xe2\x80\x94together with the existence of \xe2\x80\x9cdivers . . . lawful\npurposes\xe2\x80\x9d for which one might keep a gun, such as \xe2\x80\x9cfor the defence of his house\nand family\xe2\x80\x9d\xe2\x80\x94as protecting the right of individuals to keep guns even if they were\nnot qualified to hunt game, so long as they did not hunt with them.175 This\n170\n\n1 William Blackstone, Commentaries *271.\nSee The Federalist No. 84, at 578\xe2\x80\x9379 (Alexander Hamilton) (arguing \xe2\x80\x9cthat bills of rights are in\ntheir origin, stipulations between kings and their subjects, abridgments of prerogative in favor of\nprivilege, reservations of rights not surrendered to the prince,\xe2\x80\x9d and \xe2\x80\x9c[s]uch . . . was the declaration of\nrights presented by the lords and commons to the prince of Orange in 1688, and afterwards thrown into\nthe form of an act of parliament called the bill of rights\xe2\x80\x9d).\n172\nSilveira, 328 F.3d at 582 (Kleinfeld, J., joined by Kozinski, O\xe2\x80\x99Scannlain, and T.G. Nelson, JJ.,\ndissenting from denial of rehearing en banc).\n173\n5 Ann., c. 14, \xc2\xa7 3 (1706); see 4 & 5 W. & M., c. 23, \xc2\xa7 3 (1693) (similar). Parliament also repealed the later of the two statutes of the 1540s mentioned in note 167, noting its desuetude. 6 & 7\nWill. III, c. 13, \xc2\xa7 3 (1695). Enforcement of the other was, at least in the 1600s, lax and selective. See\nMalcolm, To Keep and Bear Arms, supra note 33, at 80\xe2\x80\x9381, 87. Efforts to revise the Militia Act failed,\nbut the right in the Bill may have sufficed to restrain the King from disarming Protestants. See id. at\n123\xe2\x80\x9325; see also 1 William Blackstone, Commentaries *271; Schwoerer, Declaration, supra note 157,\nat 75\xe2\x80\x9378, 267, 283.\n174\nRex v. Gardner, 87 Eng. Rep. 1240, 1241, 7 Mod. Rep. 279 (K.B. 1739).\n175\nWingfield v. Stratford, 96 Eng. Rep. 787, 787\xe2\x80\x9388, Sayer Rep. 15 (K.B. 1752) (Lee, C.J., citing\nRex v. Gardner, 2 Strange Rep. 1098 (K.B. 1738)); Mallock v. Eastly, 87 Eng. Rep. 1370, 1374, 7\nMod. Rep. 482 (C.P. 1744), respectively; see also Part II.B.1 (discussing use of \xe2\x80\x9ckeep\xe2\x80\x9d in these and\nother cases); Malcolm, To Keep and Bear Arms, supra note 33, at 128 (quoting commentator of early\n1800s reaffirming rule of these cases). In addition, it appears that courts strictly interpreted indictments\n171\n\n170\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\ninterpretation of the 1706 game act was considered \xe2\x80\x9csettled and determined\xe2\x80\x9d by\n1744, and in 1752 the Chief Justice of the King\xe2\x80\x99s Bench reaffirmed that it was\n\xe2\x80\x9cnot to be imagined\xe2\x80\x9d that Parliament in that act had intended \xe2\x80\x9cto disarm all the\npeople of England.\xe2\x80\x9d176 By 1780, London\xe2\x80\x99s Recorder\xe2\x80\x94the city\xe2\x80\x99s legal adviser and\nthe primary judge of its criminal court\xe2\x80\x94in an opinion supporting the legality of\nthe city\xe2\x80\x99s private armed associations formed for self-defense against riots, could\nannounce as \xe2\x80\x9cmost clear and undeniable\xe2\x80\x9d the \xe2\x80\x9cright of his majesty\xe2\x80\x99s Protestant\nsubjects, to have arms for their own defence, and to use them for lawful purposes,\xe2\x80\x9d\nadding that \xe2\x80\x9cthis right, which every Protestant most unquestionably possesses\nindividually,\xe2\x80\x9d also \xe2\x80\x9cmay, and in many cases must, be exercised collectively,\xe2\x80\x9d\nsubject to certain restrictions.177 Similarly, an English commentator in the early\n1790s wrote that \xe2\x80\x9cevery one is at liberty to keep or carry a gun, if he does not use\nit for the destruction of game.\xe2\x80\x9d178\nBlackstone\xe2\x80\x99s Commentaries, first published in 1765\xe2\x80\x931769, were for the colonists and the Founding Generation the leading exposition of England\xe2\x80\x99s laws and\nconstitution. In them, he confirmed that the English right to arms was an individual one and explained that it had grounds broader and deeper than the right that had\nbeen declared in the Revolution of 1688\xe2\x80\x931689.\nIn the first chapter of the first book, Blackstone detailed the \xe2\x80\x9cabsolute rights of\nindividuals,\xe2\x80\x9d179 that is, \xe2\x80\x9csuch as appertain and belong to particular men, merely as\nindividuals or single persons\xe2\x80\x9d and which \xe2\x80\x9cevery man is entitled to enjoy, whether\nout of society or in it.\xe2\x80\x9d180 It was the purpose of law \xe2\x80\x9cto maintain and regulate\xe2\x80\x9d\nunder the game laws. See King v. Silcot, 87 Eng. Rep. 186, 186 n.(b), 3 Mod. Rep. 280 (K.B. 1690)\n(reporter\xe2\x80\x99s note from 1793).\n176\nMallock, 87 Eng. Rep. at 1374; Wingfield, 96 Eng. Rep. at 787 (Lee, C.J.).\n177\nLegality of the London Military Foot-Association, supra note 64, at 59\xe2\x80\x9360 (italics omitted). For\nbackground, see Part II.B.2 above. The Recorder found it \xe2\x80\x9ca matter of some difficulty to define the\nprecise limits and extent of the rights of the people of this realm to bear arms, and to instruct\nthemselves in the use of them, collectively.\xe2\x80\x9d Id. at 59. At the very least, he opined, such a group needed\nto (1) have a \xe2\x80\x9clawful\xe2\x80\x9d \xe2\x80\x9cprofessed purpose and object,\xe2\x80\x9d (2) \xe2\x80\x9cdemean themselves in a peaceable and\norderly manner\xe2\x80\x9d consistent with that purpose, (3) not assemble in numbers that \xe2\x80\x9cmanifestly and greatly\nexceed\xe2\x80\x9d that purpose; and (4) not \xe2\x80\x9cact without the authority of the civil magistrate\xe2\x80\x9d except to suppress\n\xe2\x80\x9csudden, violent, and felonious breaches of the peace.\xe2\x80\x9d Id. at 62 (italics omitted). See also 1 William\nHawkins, A Treatise on the Pleas of the Crown ch. 63, \xc2\xa7 10, at 136 (1724; reprint 1972) (noting legality\nof person \xe2\x80\x9carm[ing] himself to suppress dangerous Rioters, Rebels, or Enemies\xe2\x80\x9d and \xe2\x80\x9cendeavour[ing]\nto suppress or resist such Disturbers of the Peace or Quiet of the Realm\xe2\x80\x9d); id. ch. 65, \xc2\xa7 21, at 161\n(noting right to do so when assisting Justice of Peace against riot).\n178\nSee William Blackstone, 2 Commentaries on the Laws of England *412 n.8 (William Draper\nLewis ed., 1900) (reprinting annotation of Edward Christian). Christian\xe2\x80\x99s posthumous Blackstone was\npublished in 1793\xe2\x80\x9395, see Malcolm, To Keep and Bear Arms, supra note 33, at 134, 210, and available\nin America, see 1 Tucker\xe2\x80\x99s Blackstone, supra note 60, at *145 n.42. Although the law was clear, some\nquestioned how much as a practical matter the revision of the game laws had benefited commoners, as\nwe explain in the discussion of the Pennsylvania Constitution below in Part III.B.2.\n179\n1 William Blackstone, Commentaries *121; id. at *123, 124.\n180\nId. at *123. He contrasted \xe2\x80\x9crelative\xe2\x80\x9d individual rights, \xe2\x80\x9cwhich are incident to [persons] as members of society, and standing in various relations to each other.\xe2\x80\x9d Id.\n\n171\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nthese rights in society, but \xe2\x80\x9cwanton and causeless restraint\xe2\x80\x9d was \xe2\x80\x9ca degree of\ntyranny.\xe2\x80\x9d181 He delineated three \xe2\x80\x9cprincipal or primary . . . rights of the people of\nEngland\xe2\x80\x9d: \xe2\x80\x9cthe right of personal security, the right of personal liberty, and the\nright of private property.\xe2\x80\x9d182\nBut Blackstone recognized that declaring these three primary rights would be\n\xe2\x80\x9cin vain\xe2\x80\x9d and a \xe2\x80\x9cdead letter of the laws, if the constitution had provided no other\nmethod to secure their actual enjoyment.\xe2\x80\x9d He therefore identified five \xe2\x80\x9cauxiliary\nsubordinate rights of the subject\xe2\x80\x9d\xe2\x80\x94\xe2\x80\x9coutworks or barriers to protect and maintain\xe2\x80\x9d\nthe principal rights.183 The first two were maintaining the constitution of Parliament and clear limits on the King\xe2\x80\x99s prerogative. Because these were more properly\nissues of governmental structure, he postponed their discussion to later chapters.184\nThe other three, however, were plainly individual rights: (a) the \xe2\x80\x9cright of every\nEnglishman . . . of applying to the courts of justice for redress of injuries\xe2\x80\x9d; (b) the\n\xe2\x80\x9cright, appertaining to every individual . . . of petitioning the king, or either house\nof parliament, for the redress of grievances,\xe2\x80\x9d so long as no \xe2\x80\x9criot or tumult\xe2\x80\x9d\nresulted; and (c) the \xe2\x80\x9cright of the subject . . . of having arms for their defence\nsuitable to their condition and degree, and such as are allowed by law.\xe2\x80\x9d He noted\nthat the latter two rights both had been recognized in the 1689 Bill of Rights.185\nBlackstone explained the subject\xe2\x80\x99s right of having arms as \xe2\x80\x9ca public allowance,\nunder due restrictions, of the natural right of resistance and self-preservation,\nwhen the sanctions of society and laws are found insufficient to restrain the\nviolence of oppression.\xe2\x80\x9d186 By tying the right to the natural\xe2\x80\x94and thus individual\nand pre-political\xe2\x80\x94right of self-defense, he recognized a deeper foundation than its\ndeclaration and enactment in 1689 and confirmed that the right existed independently of any bearing of arms in service to the militia, a subject that he did not\nmention in connection with the right.187\nHe returned to the right in concluding the first chapter. Again grouping together\nthe last three auxiliary rights (suing, petitioning, and having arms), he explained\nthat all were means for \xe2\x80\x9cthe subjects of England\xe2\x80\x9d to \xe2\x80\x9cvindicate\xe2\x80\x9d the three primary\nrights \xe2\x80\x9cwhen actually violated or attacked.\xe2\x80\x9d Thus, subjects were \xe2\x80\x9centitled . . . to\n\n181\n\nId. at *124\xe2\x80\x9328.\nId. at *129. These reappear throughout the American Constitution, in general protections against\ndeprivations of \xe2\x80\x9clife, liberty, or property, without due process of law\xe2\x80\x9d and in specific rights. See, for\nexample, St. George Tucker\xe2\x80\x99s footnotes annotating Blackstone\xe2\x80\x99s exposition of the three principal rights\nwith parallels in the Constitution, 2 Tucker\xe2\x80\x99s Blackstone, supra note 60, at *129, *133\xe2\x80\x9340.\n183\n1 William Blackstone, Commentaries *140\xe2\x80\x9341.\n184\nSee id. at *141.\n185\nId. at *141, *143\xe2\x80\x9344.\n186\nId. at *144.\n187\nSee also 4 id. at *55\xe2\x80\x9358 (elsewhere describing prohibitions against certain Roman Catholics\nkeeping arms as hopefully temporary suspensions of rights). He summarized the militia in Chapter 13,\n1 id. at *412\xe2\x80\x9313.\n182\n\n172\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nthe right of having and using arms for self-preservation and defence.\xe2\x80\x9d188 By his\nrepeated reference to \xe2\x80\x9cself-preservation\xe2\x80\x9d and his description of the right as\nincluding both \xe2\x80\x9chaving and using\xe2\x80\x9d arms, Blackstone reiterated that the right had a\npersonal aspect and was linked to self-defense\xe2\x80\x94to the right to use one\xe2\x80\x99s\n\xe2\x80\x9climbs . . . to protect himself from external injuries,\xe2\x80\x9d which was part of the\nindividual right of personal security.189\nFinally, Blackstone\xe2\x80\x99s view of the right as belonging to individuals re-appears in\nhis repeated disparagement of game laws as a pretext to undermine commoners\xe2\x80\x99\nability to use or have arms. He traced them to \xe2\x80\x9cslavery\xe2\x80\x9d imposed after the fall of\nthe Roman Empire by invading generals, who sought to \xe2\x80\x9ckeep the rustici or\nnatives . . . in as low a condition as possible, and especially to prohibit them the\nuse of arms.\xe2\x80\x9d Thus, \xe2\x80\x9cwe find, in the feudal constitutions, one and the same law\nprohibiting the rustici in general from carrying arms, and also proscribing the use\nof nets, snares, or other engines for destroying the game.\xe2\x80\x9d190 He denounced those\narising in England after the Norman Conquest of 1066 as a \xe2\x80\x9ctyranny to the\ncommons,\xe2\x80\x9d191 and thought their real rationale was an aristocratic desire to \xe2\x80\x9cdisarm[] the bulk of the people.\xe2\x80\x9d192 He briefly described England\xe2\x80\x99s existing criminal\ngame laws as confused and having a \xe2\x80\x9cquestionable\xe2\x80\x9d nature, their \xe2\x80\x9crational footing\xe2\x80\x9d\nbeing elusive.193 But he approved hunting restrictions against trespassing194 and did\nnot criticize several other restrictions on the use and carrying of arms, involving\nbreaches of the peace.195\n188\n\n1 id. at *144.\nId. at *130. See id. at *134 (summarizing common law\xe2\x80\x99s special protection for \xe2\x80\x9cthose limbs and\nmembers that may be necessary to a man in order to defend himself or annoy his enemy\xe2\x80\x9d).\n190\n2 id. at *412, 413.\n191\n4 id. at *416; see 2 id. at *415\xe2\x80\x9316 (forest laws produced \xe2\x80\x9cthe most horrid tyrannies and oppressions\xe2\x80\x9d).\n192\n2 id. at *412. As an example, he cited a popular book, by a bishop (and thus lord), that praised\nbanning \xe2\x80\x9cPeasants and Mechanics\xe2\x80\x9d from hunting game: \xe2\x80\x9cIt was not at all for the public Good to suffer\n[them] . . . to run up and down the Woods and Forests, armed; which . . . draws them on to Robbery\nand Brigandage: Nor to permit the populace, in Towns and Cities, to have, and carry Arms at their\npleasure; which would give opportunity and encouragement to Sedition, and Commotions.\xe2\x80\x9d 1 William\nWarburton, The Alliance Between Church and State: Or, the Necessity and Equity of An Established\nReligion and a Test Law Demonstrated 324 (London 4th ed. 1766).\n193\n4 William Blackstone, Commentaries *174\xe2\x80\x9375.\n194\nSee 2 id. at *411\xe2\x80\x9312 (approving as \xe2\x80\x9cnatural\xe2\x80\x9d a ban on unauthorized hunting on private property);\nsee 4 id. at *174 (being less critical of the \xe2\x80\x9cforest law,\xe2\x80\x9d which simply prohibited hunting in the king\xe2\x80\x99s\nforests).\n195\nSee 4 id. at *144 (unlawful hunting\xe2\x80\x94being disguised and \xe2\x80\x9carmed with offensive weapons\xe2\x80\x9d in\nbreach of peace and to terror of public); id. at *145 (affray (public fighting), including attack with or\ndrawing of weapon on church grounds); id. at *148 (forcible entry or detainer, \xe2\x80\x9csuch as is carried on\nand maintained with force, with violence, and unusual weapons\xe2\x80\x9d); id. at *149 (\xe2\x80\x9criding or going armed,\nwith dangerous or unusual weapons . . . by terrifying\xe2\x80\x9d the people); see also id. at *146\xe2\x80\x9347 (riots, routs,\nunlawful assemblies, and tumultuous petitioning); id. at *168 (quasi-nuisance of \xe2\x80\x9cmaking, keeping, or\ncarriage, of too large a quantity of gunpowder at one time or in one place or vehicle\xe2\x80\x9d); cf. id. at *182\n(excusable homicide by misadventure, such as \xe2\x80\x9cwhere a person qualified to keep a gun is shooting at a\n189\n\n173\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nThus, the right to arms that America inherited from England was a right of\nindividuals, and had deep roots by the time of the Framing. It did not depend on\nservice in the government\xe2\x80\x99s militia, nor was it a federalism-related \xe2\x80\x9cright\xe2\x80\x9d of any\ngovernment. It therefore provides no warrant for a quasi-collective right or\ncollective right view of the Second Amendment. And, absent any evidence that\nAmericans wished to abridge this individual right or transform it substantially, a\nquestion that we consider next, the English precedent supports an individual right\nview of that Amendment.\nB. The Right in America Before the Framing\nThe English colonists in America recognized this right of individual subjects to\nhave and use arms, and they retained it as they broke from the mother country.\nThey also recognized that it furthered the citizen militia to which they looked as a\nsecurity for their freedom. These related ideas of an individual right to arms and\nregard for the citizen militia formed the backdrop for the Second Amendment. We\nfirst consider the history of the American Revolution and then review the states\xe2\x80\x99\nfirst constitutions, written during that war.\n1. The Experience of the Revolution\nAs the Revolution approached and conflicts with royal authorities rose, colonial\nleaders both reaffirmed the individual right to arms inherited from England and\npraised the shared duty of being armed imposed by local law. The colonial militias\nwere broad-based, composed of all able-bodied white men, who were expected to\nbe armed with the private weapons that all households were required to keep\n(regardless of eligibility for militia duty), there being a \xe2\x80\x9cgeneral obligation of all\nadult male inhabitants to possess arms, and, with certain exceptions, to cooperate\nin the work of defense.\xe2\x80\x9d196 Citizens sometimes were required not only to own\n\nmark and undesignedly kills a man: for the act is lawful, and the effect is merely accidental\xe2\x80\x9d); 3 id. at\n*4 (noting limitation of self-defense to \xe2\x80\x9cresistance\xe2\x80\x9d that \xe2\x80\x9cdoes not exceed the bounds of mere defence\nand prevention\xe2\x80\x9d).\n196\nUnited States v. Miller, 307 U.S. 174, 179\xe2\x80\x9380 (1939) (internal quotation marks omitted). See\nKates, supra note 33, 82 Mich. L. Rev. at 215\xe2\x80\x9316 (\xe2\x80\x9cWith slight variations, the different colonies\nimposed a duty to keep arms and to muster occasionally for drill upon virtually every able-bodied\nwhite man between the age of majority and a designated cut-off age. Moreover, the duty to keep arms\napplied to every household, not just to those containing persons subject to militia service. Thus, the\nover-aged and seamen, who were exempt from militia service, were required to keep arms for law\nenforcement and for the defense of their homes from criminals or foreign enemies.\xe2\x80\x9d) (footnotes\nomitted). In Virginia, \xe2\x80\x9cEvery able-bodied freeman, between the ages of 16 and 50, is enrolled in the\nmilitia. . . . The law requires every militia-man to provide himself with the arms usual in the regular\nservice.\xe2\x80\x9d That requirement \xe2\x80\x9cwas always indifferently complied with,\xe2\x80\x9d and the militia\xe2\x80\x99s arms were\n\xe2\x80\x9cfrequently called for to arm the regulars,\xe2\x80\x9d so that \xe2\x80\x9cin the lower parts of the country they are entirely\ndisarmed.\xe2\x80\x9d But \xe2\x80\x9c[i]n the middle country a fourth or fifth part of them may have such firelocks as they\nhad provided to destroy the noxious animals which infest their farms; and on the western side of the\n\n174\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nweapons but also to carry them, and the class-based distinctions of England\ngenerally did not apply.197 America had its own set of distinctions, based on race,\nbut even free blacks were often allowed to possess arms as individuals, even\nthough usually barred from militia service.198\nBoston was the focus of early opposition to Britain, and its leaders invoked\nboth the individual right to arms (as secured by the 1689 Bill of Rights and also as\nexpounded by Blackstone) and the local duty of being armed. A 1768 town\nmeeting led by Samuel Adams, John Hancock, and others resolved that the right\nenacted in the English Bill of Rights was \xe2\x80\x9cfounded in Nature, Reason and sound\nPolicy, and is well adapted for the necessary Defence of the Community,\xe2\x80\x9d while\nalso praising the colony\xe2\x80\x99s law requiring \xe2\x80\x9cevery listed Soldier and other Householder\xe2\x80\x9d to be armed. The resolution thus requested that any Bostonian lacking\narms \xe2\x80\x9cduly . . . observe the said Law.\xe2\x80\x9d199 Boston newspapers defended the\nmeeting\xe2\x80\x99s actions:\n[I]t is certainly beyond human art and sophistry, to prove the British\nsubjects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights, and, who live in a province where the\nlaw requires them to be equip\xe2\x80\x99d with arms, &c. are guilty of an illegal act, in calling upon one another to be provided with them, as the\nlaw directs.200\n\nBlue [R]idge they are generally armed with rifles.\xe2\x80\x9d Jefferson, Notes, supra note 56, at 88. For more\nregarding the militia, see Part II.C.2\xe2\x80\x934 above.\n197\nSee Malcolm, To Keep and Bear Arms, supra note 33, at 139 (quoting colonial statutes from\nRhode Island, Virginia, and Georgia); Kates, supra note 33, 82 Mich. L. Rev. at 216 (discussing\nGeorgia law); id. at 240 (\xe2\x80\x9cthe English Game Acts . . . had never been a part of the colonial law\xe2\x80\x9d); 5\nTucker\xe2\x80\x99s Blackstone, supra note 60, at *175 n.16 (describing game laws of Virginia, limited to\nprohibiting trespass and conversion and establishing hunting season for deer).\n198\nSee Cottrol & Diamond, supra note 33, 80 Geo. L.J. at 323\xe2\x80\x9327 (noting that \xe2\x80\x9cthe traditional\nEnglish right\xe2\x80\x9d became \xe2\x80\x9ca much broader American one\xe2\x80\x9d as part of \xe2\x80\x9ca more general lessening of class,\nreligious, and ethnic distinctions among whites in colonial America,\xe2\x80\x9d but that \xe2\x80\x9cthe law was much more\nambivalent with respect to blacks\xe2\x80\x9d; surveying varying colonial laws regarding right of blacks to carry\nweapons or keep them in their homes, and noting usual exclusion from militia duty, except in \xe2\x80\x9ctimes of\ncrisis\xe2\x80\x9d); Malcolm, To Keep and Bear Arms, supra note 33, at 140\xe2\x80\x9341 (\xe2\x80\x9cThe second group [after\nIndians] forbidden to possess weapons were black slaves, with restrictions sometimes extended to free\nblacks . . . . Northern colonies were ambivalent about blacks possessing firearms\xe2\x80\x9d; surveying colonial\nlaws and drawing parallel to England\xe2\x80\x99s ambivalent treatment of right of Roman Catholics to have\narms).\n199\nBoston Chron., Sept. 19, 1768, at 363, col. 2, quoted in Halbrook, Right to Bear Arms, supra\nnote 56, at 1\xe2\x80\x932. This resolution was republished in the Maryland Gazette. See id. at 61.\n200\nBos. Gazette, and Country J., Jan. 30, 1769, at 2, col. 1, quoted in Halbrook, Right to Bear Arms,\nsupra note 56, at 6; see Boston Under Military Rule, 1768\xe2\x80\x931769, as Revealed in a Journal of the Times\n61 (Oliver Morton Dickerson ed., 1936) (reprinting same passage from Boston Evening Post, Apr. 3,\n1769).\n\n175\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nA subsequent article by Adams recounted the English Revolution and then quoted\nboth of Blackstone\xe2\x80\x99s primary discussions of the right to arms. Adams attacked\ncritics of the \xe2\x80\x9clate vote of this town, calling upon the inhabitants to provide\nthemselves with arms for their defence,\xe2\x80\x9d as insufficiently \xe2\x80\x9cattend[ing] to the rights\nof the constitution.\xe2\x80\x9d201 The New York Journal Supplement reiterated this argument:\nIt is a natural right which the people have reserved to themselves,\nconfirmed by the Bill of Rights, to keep arms for their own defence;\nand as Mr. Blackstone observes, it is to be made use of when the\nsanctions of society and law are found insufficient to restrain the violence of oppression.202\nThe individual\xe2\x80\x99s right to have and use arms for self-defense was reaffirmed in\nthe celebrated \xe2\x80\x9cBoston Massacre\xe2\x80\x9d murder trial, in 1770, of British soldiers for\nfiring on a harassing crowd. (Soldiers had been garrisoned in Boston since late\n1768.) John Adams, counsel for the soldiers, argued that they had acted in selfdefense. In his closing argument, he quoted William Hawkins\xe2\x80\x99s Treatise on the\nPleas of the Crown to establish that \xe2\x80\x9c\xe2\x80\x98every private person seems to be authorized\nby the law, to arm himself\xe2\x80\x99\xe2\x80\x9d to defend against dangerous rioters. Adams added:\n\xe2\x80\x9cHere every private person is authorized to arm himself, and on the strength of this\nauthority, I do not deny the inhabitants had a right to arm themselves at that time,\nfor their defence . . . .\xe2\x80\x9d203 Adams reiterated that view in his 1787 Defence of the\nConstitutions of Government of the United States of America, recognizing the\npropriety of \xe2\x80\x9carms in the hands of citizens, to be used . . . in private selfdefence.\xe2\x80\x9d204\nBritish authorities, much like Charles II and James II a century before, moved\nto disarm the colonists as hostilities mounted in 1774. Britain banned the export of\narms and ammunition to any of the colonies and ordered General Gage to consider\nhow to disarm residents of rebellious areas. At least in Massachusetts, some\ndisarmament occurred, and in the \xe2\x80\x9cPowder Alarm\xe2\x80\x9d of September 1, 1774, British\n\n201\nSamuel Adams, Boston Gazette, Feb. 27, 1769, reprinted in 1 Founders\xe2\x80\x99 Constitution, note 118,\nat 90. Adams quoted 1 William Blackstone, Commentaries *143\xe2\x80\x9344 & *144.\n202\nBoston, March 17, N.Y.J. Supp., Apr. 13, 1769, at 1, col. 3, reprinted in Boston Under Military\nRule at 79; see Halbrook, Right to Bear Arms, supra note 56, at 7 (quoting same passage).\n203\n3 Legal Papers of John Adams 248 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965) (quoting\n\xe2\x80\x9cHawkins p. 71, \xc2\xa7 14\xe2\x80\x9d). For the facts, see id. at 1 (note). Adams secured several acquittals. Id. at 29.\n204\n3 John Adams, A Defence of the Constitutions of Government of the United States of America\n475 (1787). The Ninth Circuit selectively quoted this sentence to claim that Adams \xe2\x80\x9cridiculed . . . an\nindividual right to personal arms\xe2\x80\x9d and asserted that \xe2\x80\x9cthe general availability of arms\xe2\x80\x9d would \xe2\x80\x9c\xe2\x80\x98demolish\nevery constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man\xe2\x80\x94it is a\ndissolution of the government.\xe2\x80\x99\xe2\x80\x9d Silveira, 312 F.3d at 1085. In these portions, Adams was merely\narguing against command of the militia by private persons or localities, while also expressly reiterating\nthe right of arming for private self-defense.\n\n176\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nsoldiers seized ammunition belonging to the colonial militia.205 These actions\nstiffened resistance throughout the colonies206 and led the colonists to form\nindependent local militias with broad membership, the \xe2\x80\x9cMinutemen.\xe2\x80\x9d207 Gage\xe2\x80\x99s\nattempts in late 1774 and early 1775 to seize these groups\xe2\x80\x99 arms across Massachusetts provoked confrontations with large forces of armed colonists, and the\nRevolution was famously ignited by his efforts to do so at Concord and Lexington\nin April 1775.208 Virginia Governor Dunmore\xe2\x80\x99s raid on an ammunitions store in\nWilliamsburg soon thereafter prompted a similar response, as militiamen surrounded his home.209 British authorities\xe2\x80\x99 continuing efforts to disarm colonists\nwere among the actions that the Continental Congress cited when, in July 1775, it\ndeclared the colonies\xe2\x80\x99 reasons for taking up arms.210\nAs the colonists armed and organized themselves, their leaders continued to\nturn to their rights as British subjects and praised the citizen militias that these\nrights made possible. George Mason\xe2\x80\x99s actions in Virginia (in conjunction with\nGeorge Washington and others) provide an example. In September 1774, he\nchaired a meeting of Fairfax County citizens to form a private militia association\nknown as the Fairfax Independent Company. Being \xe2\x80\x9cthreat\xe2\x80\x99ned with the Destruction of our Civil-rights, & Liberty, and all that is dear to British Subjects &\nFreemen,\xe2\x80\x9d members promised to keep themselves well armed and to train together\nunder elected officers.211 The following January, in a document attributed to\nMason, the county\xe2\x80\x99s Committee of Safety recommended a tax to purchase\nammunition, resolved that \xe2\x80\x9ca well regulated Militia, composed of gentlemen\nfreeholders, and other freemen, is the natural strength and only stable security of a\n205\nSee Hardy, supra note 33, 9 Harv. J.L. & Pub. Pol\xe2\x80\x99y at 590; Halbrook, Right to Bear Arms,\nsupra note 56, at 9, 16, 72. Soldiers seized provincial armories in Cambridge and Charlestown. In\nresponse, \xe2\x80\x9ctwenty thousand Yankees picked up their muskets and headed for Boston\xe2\x80\x9d to confront the\nBritish. Robert A. Gross, The Minutemen and Their World 55 (1976).\n206\nSee First Continental Congress, Appeal to the Inhabitants of Quebec (Oct. 1774), reprinted in 1\nAmerican Political Writing During the Founding Era, 1760\xe2\x80\x931805, at 237 (Charles S. Hyneman &\nDonald S. Lutz eds., 1983) (\xe2\x80\x9cThe injuries of Boston have roused and associated every colony.\xe2\x80\x9d);\nHalbrook, Right to Bear Arms, supra note 56, at 88\xe2\x80\x9389 (quoting warning of South Carolina\xe2\x80\x99s\ngoverning body in 1774 against British \xe2\x80\x9cdesign of disarming the people of America\xe2\x80\x9d through the\nembargo).\n207\nSee Gross, Minutemen, supra note 205, at 59. In Concord, \xe2\x80\x9cMinutemen trained twice a week on\nthe common and carried their muskets everywhere, in the fields, in shops, even in church.\xe2\x80\x9d When they\nwere mustered in March 1775, it \xe2\x80\x9cpresented a revealing portrait of the community. This was a citizen\narmy of rural neighbors. . . . The Concord militia included nearly everyone between the ages of sixteen\nand sixty.\xe2\x80\x9d Id. at 69\xe2\x80\x9370.\n208\nHardy, supra note 33, 9 Harv. J.L. & Pub. Pol\xe2\x80\x99y at 590\xe2\x80\x9391; Malcolm, To Keep and Bear Arms,\nsupra note 33, at 145\xe2\x80\x9346.\n209\nHardy, supra note 33, 9 Harv. J.L. & Pub. Pol\xe2\x80\x99y at 592; Halbrook, Right to Bear Arms, supra\nnote 56, at 16.\n210\n1 Journals of Congress 137 (July 6, 1775) (1800); see Halbrook, Right to Bear Arms, supra note\n56, at 13\xe2\x80\x9315; Hardy, supra note 33, 9 Harv. J.L. & Pub. Pol\xe2\x80\x99y at 591.\n211\n1 Mason Papers, supra note 56, at 210\xe2\x80\x9311.\n\n177\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nfree Government,\xe2\x80\x9d and urged residents \xe2\x80\x9cfrom sixteen to fifty years of age\xe2\x80\x9d to\nchoose officers, \xe2\x80\x9cprovide themselves with good Firelocks,\xe2\x80\x9d and train.212 In April\n1775, Mason addressed the Company and praised it as formed \xe2\x80\x9cfor the great and\nuseful purposes of defending our country, and preserving those inestimable rights\nwhich we inherit from our ancestors.\xe2\x80\x9d In a time of \xe2\x80\x9cthreatened . . . ruin of that\nconstitution under which we were born,\xe2\x80\x9d it was a security \xe2\x80\x9cthat in case of absolute\nnecessity, the people might be the better enabled to act in defence of their invaded\nliberty.\xe2\x80\x9d213\nSimilar sentiments appeared in North Carolina. Soon after Lexington and Concord, the royal Governor denounced those urging people \xe2\x80\x9cto be prepared with\nArms\xe2\x80\x9d and train under committees of safety.214 But in July 1775, North Carolina\xe2\x80\x99s\ndelegates to the Continental Congress urged the committees to \xe2\x80\x9cform yourselves\ninto a Militia\xe2\x80\x9d in the exercise of \xe2\x80\x9cthe Right of every English Subject to be\nprepared with Weapons for his Defense.\xe2\x80\x9d215\nIn October 1775, Britain declared the colonies in rebellion,216 but organizational\nefforts continued. John Adams, in his Thoughts on Government written in early\n1776 in response to requests for advice, recommended a \xe2\x80\x9cMilitia Law requiring all\nmen, or with very few exceptions, besides cases of conscience, to be provided with\narms and ammunition, to be trained at certain seasons.\xe2\x80\x9d Such a law would be\n\xe2\x80\x9calways a wise institution\xe2\x80\x9d but was \xe2\x80\x9cin the present circumstances of our country\nindispensible.\xe2\x80\x9d217\nMany lauded the citizen militias that fought in the Revolution. American General Nathanael Greene, writing to Thomas Jefferson, remarked on the \xe2\x80\x9cEnterprize\nand Spirit\xe2\x80\x9d of \xe2\x80\x9cthis Great Bulwark of Civil Liberty [that] promises Security and\nIndependence to this Country.\xe2\x80\x9d218 Americans credited crucial early victories to the\ncitizen militias, even while recognizing their limitations.219 Well after the war,\n212\n\nId. at 212.\nId. at 229\xe2\x80\x9331.\n214\nSee Halbrook, Right to Bear Arms, supra note 56, at 29\xe2\x80\x9330.\n215\nRichard Caswell, William Hooper, & Joseph Hewes, To the Committees of the Several Towns\nand Counties of the Province of North Carolina, N.C. Gazette (Newburn), July 7, 1775, at 2, col. 3,\nexcerpted in Halbrook, Right to Bear Arms, supra note 56, at 29.\n216\nSee 4 Papers of John Adams 78 n.6 (Robert J. Taylor ed., 1979) (editorial note).\n217\nJohn Adams, Thoughts on Government (Apr. 1776), reprinted in 4 id. at 91. This pamphlet,\nwritten for political leaders in North Carolina, Virginia, and New Jersey, was widely reprinted and\ndiscussed for several years. See id. at 65, 68\xe2\x80\x9372 (editorial note).\n218\nLetter from Greene to Jefferson (Nov. 20, 1780), in 4 Jefferson Papers, supra note 62, at 130\xe2\x80\x93\n31.\n219\nSee, e.g., A Democratic Federalist, Penn. Herald, Oct. 17, 1787, reprinted in 2 Ratification,\nsupra note 67, at 197 (arguing that \xe2\x80\x9ca well-regulated militia\xe2\x80\x9d is \xe2\x80\x9csufficient for every purpose of internal\ndefense,\xe2\x80\x9d as shown by victories at Lexington and Bunker Hill); Va. Ratif. Conv., in 9 Ratification,\nsupra note 67, at 981 (remarks of Edmund Randolph, June 6, 1788) (\xe2\x80\x9cI will pay the last tribute of\ngratitude to the militia of my country: They performed some of the most gallant feats during the last\nwar, and acted as nobly as men enured to other avocations could be expected to do: But, Sir, it is\n213\n\n178\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nJames Madison could argue in The Federalist that an oppressive army would be\nno match for citizen militias, as \xe2\x80\x9c[t]hose who are best acquainted with the late\nsuccessful resistance of this country against the British arms\xe2\x80\x9d would recognize. He\nalso pointed to \xe2\x80\x9cthe advantage of being armed, which the Americans possess over\nthe people of almost every other nation,\xe2\x80\x9d governments in most of the world being\n\xe2\x80\x9cafraid to trust the people with arms.\xe2\x80\x9d220\n2. Early Constitutional Recognition of the Right\nOne product of this experience of the American Revolution was that several\nstates included explicit right to bear arms provisions in declarations of rights that\nthey adopted during the war. These appeared in Pennsylvania, North Carolina,\nVermont, and Massachusetts. In the identical provisions of Pennsylvania and\nVermont, the language plainly reaffirmed the established right of individuals to\narm themselves for self-defense. In the provisions of North Carolina and Massachusetts, although the express scope of the right may have been narrower, the right\nstill belonged to individuals\xe2\x80\x94these state provisions could not have been intended\nto protect the states\xe2\x80\x99 prerogatives, nor did they restrict the right to participants in\nmilitia units. Other states, most notably Virginia, did not include any provision\nregarding the right to bear arms in their declarations but did praise \xe2\x80\x9ca well\nregulated Militia.\xe2\x80\x9d221\nVirginia. Virginia\xe2\x80\x99s Declaration of Rights, adopted a month before the Declaration of Independence, was the country\xe2\x80\x99s first. Section 13 provided:\nThat a well regulated militia, composed of the body of the people,\ntrained to arms, is the proper, natural, and safe defence of a free\nState: that standing armies, in time of peace, should be avoided, as\ndangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.222\n\ndangerous to look to them as our sole protectors.\xe2\x80\x9d); The Federalist No. 25, at 161\xe2\x80\x9362 (Alexander\nHamilton) (praising militias\xe2\x80\x99 valor but emphasizing insufficiency for defense). General Greene\nrecognized that the militia should \xe2\x80\x9cnot [be] depended upon as a principal but employed as an\nAuxilliary.\xe2\x80\x9d Letter to Jefferson, reprinted in 4 Jefferson Papers, supra note 62, at 131.\n220\nThe Federalist No. 46, at 321\xe2\x80\x9322.\n221\nThe first constitutions of New Jersey, South Carolina, Georgia, and New York did not include\nseparate bills of rights. Their constitutions did protect a few rights, but did not include the right to arms\nor general statements regarding the militia. See 1 Schwartz, Bill of Rights, supra note 67, at 256 (N.J.\n1776); id. at 291 (Ga. 1777); id. at 301 (N.Y. 1777); id. at 325 (S.C. 1778). Georgia did provide for\nforming a militia battalion in any county with \xe2\x80\x9ctwo hundred and fifty men, and upwards, liable to bear\narms,\xe2\x80\x9d id. at 297, and New York declared the duty of all to provide personal service to protect society,\nsee id. at 312, much as the Pennsylvania Declaration, discussed below, did. Connecticut and Rhode\nIsland did not adopt new constitutions. Id. at 289.\n222\nVa. Bill of Rights \xc2\xa7 13 (1776), reprinted in 7 Federal and State Constitutions, supra note 78, at\n3814.\n\n179\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nThis provision expressly recognizes the background definition of \xe2\x80\x9cmilitia\xe2\x80\x9d\nexplained in Part II.C: It was not a specialized or select force, but rather a force of\nthe people. Such an understanding of the militia is consistent with the right of\nindividuals to have arms\xe2\x80\x94particularly given that, as we have explained, the\ncitizen militia was supposed to be \xe2\x80\x9ctrained to\xe2\x80\x9d its members\xe2\x80\x99 private arms.223\nSignificantly, the provision\xe2\x80\x99s primary author was George Mason,224 whose public\nviews have already been noted and who would play a leading role twelve years\nlater, explained below, in authoring the proposal of Virginia\xe2\x80\x99s ratifying convention\nthat placed together in a single article the individual right and this praise of the\ncitizen militia.225\nPennsylvania. Pennsylvania adopted its Declaration of Rights in September\n1776. Article 13, immediately following an article providing \xe2\x80\x9c[t]hat the people\nhave a right to freedom of speech,\xe2\x80\x9d read:\nThat the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are\ndangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by,\nthe civil power.226\nWhile following the same structure as Virginia\xe2\x80\x99s (of which the convention\nmembers were well aware227), this article replaced the praise of the well-regulated\ncitizen militia with a right\xe2\x80\x94a right of \xe2\x80\x9cthe people,\xe2\x80\x9d who, just as they had an\nindividual right to speak, also had an individual right to \xe2\x80\x9cbear arms,\xe2\x80\x9d for either of\nthe dual purposes of defending \xe2\x80\x9cthemselves and the state.\xe2\x80\x9d The article does not\nrestrict the right to those in militia service, which it does not mention and which\nPennsylvania addressed separately: Article 8 broadly provided that \xe2\x80\x9cevery member\nof society,\xe2\x80\x9d receiving protection from it, was bound to contribute money and \xe2\x80\x9chis\n223\nRegarding this point and the meaning of both \xe2\x80\x9cmilitia\xe2\x80\x9d and \xe2\x80\x9cwell regulated militia,\xe2\x80\x9d see above\nParts II.C.2\xe2\x80\x934 and III.B.1, at note 196 (quoting Jefferson\xe2\x80\x99s Notes on the State of Virginia, supra note\n56).\n224\nSee 1 Mason Papers, supra note 56, at 274\xe2\x80\x9375, 286 (editorial notes); id. at 287 (final draft).\n225\nDelaware, Maryland, and New Hampshire adapted Virginia\xe2\x80\x99s language, omitting definition of\nthe militia and changing \xe2\x80\x9cfree state\xe2\x80\x9d to \xe2\x80\x9cfree government\xe2\x80\x9d while retaining the implicit connection\nbetween \xe2\x80\x9ca well regulated militia\xe2\x80\x9d and the avoidance of standing armies and military insubordination.\nSee Del. Decl. of Rights \xc2\xa7\xc2\xa7 18\xe2\x80\x9320 (1776), reprinted in 5 Founders\xe2\x80\x99 Constitution, note 118, at 5, 6; Md.\nDecl. of Rights \xc2\xa7\xc2\xa7 25\xe2\x80\x9327 (1776), reprinted in 3 Federal and State Constitutions, supra note 78, at\n1688; N.H. Const. pt. I, arts. 24\xe2\x80\x9326 (1784), reprinted in 4 Federal and State Constitutions, supra note\n78, at 2456. The Delaware Constitution also specially provided that \xe2\x80\x9c[t]o prevent any violence or force\nbeing used at . . . elections, no person shall come armed to any of them, and no muster of the militia\nshall be made on that day.\xe2\x80\x9d Del. Const. art. XXVIII (1776), reprinted in 1 Federal and State\nConstitutions, supra note 78, at 567.\n226\nReprinted in 5 Federal and State Constitutions, supra note 78, at 3083.\n227\nSee 1 Mason Papers, supra note 56, at 276 (note discussing \xe2\x80\x9cthe widespread and almost immediate influence of the Virginia Declaration of Rights on other nascent states,\xe2\x80\x9d including Pennsylvania).\n\n180\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\npersonal service when necessary,\xe2\x80\x9d while allowing an exception for anyone\n\xe2\x80\x9cconscientiously scrupulous of bearing arms, . . . if he will pay [an] equivalent.\xe2\x80\x9d228\nAnd the plan of government, adopted concurrently, provided for a militia of \xe2\x80\x9c[t]he\nfreemen of this commonwealth and their sons.\xe2\x80\x9d229\nThe plan of government also provided that persons could use their arms to hunt\n(without trespassing): \xe2\x80\x9cThe inhabitants of this state shall have liberty to fowl and\nhunt in seasonable times on the lands they hold, and on all other lands therein not\ninclosed.\xe2\x80\x9d230 Regardless of the relevance of this provision to the contours of the\nright to bear arms (a question beyond the scope of this memorandum), the\nprovision does seem to have been viewed as a practical security for, and thus a\nway of emphasizing the importance of, the right of individuals that Pennsylvania\nhad elsewhere secured. The view that the English game laws\xe2\x80\x94which had provided\nfor disarming many in the name of the hunting privileges of a few\xe2\x80\x94had been a\npretext for undermining the right in practice was prevalent at the time. Thomas\nPaine had criticized the game laws in the Pennsylvania Magazine the year before\nPennsylvania adopted its constitution, and one newspaper article, although\nrecognizing that the newer game acts did not prohibit merely keeping a gun,\nargued that English aristocrats still used them to disarm commoners, by procuring\nwitnesses to claim that defendants had used their arms for hunting.231\nPennsylvania held another convention from November 1789 through September 1790, as the Second Amendment was before the states for ratification. The\nresulting constitution retained essentially the same individual right. Section 21 of\nthe declaration of rights, immediately following a section providing \xe2\x80\x9c[t]hat the\ncitizens have a right\xe2\x80\x9d to assemble and petition, provided:\nThat the right of the citizens to bear arms, in defence of themselves\nand the State, shall not be questioned.232\n\n228\n\n5 Federal and State Constitutions, supra note 78, at 3083. Such personal service would be\ndifficult if one could not own private arms. This duty may have been broader than the obligation of\nmilitia duty, perhaps including the posse comitatus. See generally The Federalist No. 29, at 182\xe2\x80\x9383\n(Alexander Hamilton). New Hampshire\xe2\x80\x99s constitution, while praising the well-regulated militia,\nrecognized this duty separately, N.H. Const. pt. I, arts. 12\xe2\x80\x9313, reprinted in 4 Federal and State\nConstitutions, supra note 78, at 2455, although New York\xe2\x80\x99s connected the two, N.Y. Const. \xc2\xa7 40\n(1777), reprinted in 5 id. at 2637.\n229\nPa. Plan or Frame of Gov\xe2\x80\x99t \xc2\xa7 5 (1776), reprinted in 5 Federal and State Constitutions, supra\nnote 78, at 3084.\n230\nId. \xc2\xa7 43, reprinted in 5 Federal and State Constitutions, supra note 78, at 3091.\n231\nSee Halbrook, Right to Bear Arms, supra note 56, at 23\xe2\x80\x9325. Some in England shared this concern. See Schwoerer, supra note 168, 76 Chi.-Kent L. Rev. at 52\xe2\x80\x9353.\n232\nPa. Const. art. IX, \xc2\xa7\xc2\xa7 20 & 21, reprinted in 5 Federal and State Constitutions, supra note 78, at\n3101. Section 22 addressed standing armies and civilian control of the military. Kentucky, admitted in\n1791 as the fifteenth state, copied this language on the right verbatim. See Ky. Const. art. XII, \xc2\xa7 23\n(1792), reprinted in 3 Federal and State Constitutions, supra note 78, at 1275.\n\n181\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nSeparately, in the body of the constitution, the protection of conscientious\nobjectors was combined with the provision relating to the citizen militia:\nThe freemen of this commonwealth shall be armed and disciplined\nfor its defence. Those who conscientiously scruple to bear arms shall\nnot be compelled to do so, but shall pay an equivalent for personal\nservice. The militia officers shall be appointed in such manner and\nfor such time as shall be directed by law.233\nThus, the right to \xe2\x80\x9cbear arms\xe2\x80\x9d remained with individual people, now \xe2\x80\x9cthe citizens,\xe2\x80\x9d and existed for the dual purpose of facilitating the defense of individuals\nand the state. Neither purpose was expressly tied to, let alone limited to, service in\nthe militia. And the duty of \xe2\x80\x9cfreemen\xe2\x80\x9d to \xe2\x80\x9cbear arms,\xe2\x80\x9d including possible exemption from that duty, was distinct and was tied to the militia. In both the 1776 and\n1790 Pennsylvania constitutions, \xe2\x80\x9cbear arms\xe2\x80\x9d could and did bear both meanings.\nNorth Carolina. North Carolina adopted its constitution and declaration of\nrights in December 1776. Article 17 of the declaration provided:\nThat the people have a right to bear arms, for the defence of the\nState; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be\nkept under strict subordination to, and governed by, the civil power.234\nThis article mentions only the right of the people to bear arms for \xe2\x80\x9cthe defence of\nthe State.\xe2\x80\x9d Regardless of the provision\xe2\x80\x99s scope, however, the right still belonged to\nindividuals, just as the immediately following Article 18 set out a right of\nindividuals in providing \xe2\x80\x9c[t]hat the people have a right to assemble together,\xe2\x80\x9d and\nin contrast with Article 25\xe2\x80\x99s declaration, in delineating the state\xe2\x80\x99s boundaries, of\n\xe2\x80\x9cthe essential rights of the collective body of the people\xe2\x80\x9d in the \xe2\x80\x9cproperty of the\nsoil.\xe2\x80\x9d235 It would not have made sense, in the context of a state constitution, for a\n\xe2\x80\x9cright\xe2\x80\x9d of \xe2\x80\x9cthe people\xe2\x80\x9d to protect only the prerogatives of the state. And the\nprovision\xe2\x80\x99s text indicates that all of the people (not just those organized by the\nstate into militia units) had a right to bear arms, at least in defense of the state. As\nan early North Carolina Supreme Court decision recognized, the right in Article 17\nbelonged \xe2\x80\x9cto every man indeed\xe2\x80\x9d and \xe2\x80\x9csecur[ed] to him a right of which he cannot\n\n233\nPa. Const. art. VI, \xc2\xa7 2, reprinted in 5 Federal and State Constitutions, supra note 78, at 3099.\nKentucky also copied this provision. See Ky. Const. art. VI, \xc2\xa7 2, reprinted in 3 Federal and State\nConstitutions, supra note 78, at 1271.\n234\nReprinted in 5 Federal and State Constitutions, supra note 78, at 2788.\n235\nId.\n\n182\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nbe deprived,\xe2\x80\x9d to be exercised \xe2\x80\x9cfor the safety and protection of his country.\xe2\x80\x9d236\nMoreover, by expressly protecting the right of the people to bear arms \xe2\x80\x9cfor the\ndefence of the State\xe2\x80\x9d (something that North Carolinians were then doing against\nthe British), the drafters of the North Carolina Constitution do not appear to have\nintended to abrogate the arguably more modest individual English right.237 Indeed,\nthe president of the constitutional convention, who served on the committee that\nwrote the declaration, had been one of the three congressional delegates who the\nyear before, as discussed above, had urged North Carolinians to exercise \xe2\x80\x9cthe\nRight of every English Subject to be prepared with Weapons for his Defense.\xe2\x80\x9d238\nVermont. The Vermont constitution approved in July 1777 provided that \xe2\x80\x9cthe\npeople have a right to bear arms for the defence of themselves and the State,\xe2\x80\x9d in an\narticle identical to Article 13 of Pennsylvania\xe2\x80\x99s Declaration.239 As in Pennsylvania,\nthis individual right immediately followed the individual right of \xe2\x80\x9cthe people . . .\nto freedom of speech,\xe2\x80\x9d and the constitution separately included a hunting guarantee, citizen militia provisions, and an exception for conscientious objectors.240 All\nof these remained in Vermont\xe2\x80\x99s 1786 and 1793 constitutions.241\nMassachusetts. Article 17 of the Massachusetts Declaration of Rights of 1780\nprovided:\nThe people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they\nought not to be maintained without the consent of the legislature; and\n236\nState v. Huntly, 25 N.C. (3 Ired.) 418, 1843 WL 891, at *2. Another early decision recognized\nthat the right of \xe2\x80\x9cfree people of color\xe2\x80\x9d to bear arms might be abridged\xe2\x80\x94but only because the court\nbelieved that they \xe2\x80\x9ccannot be considered as citizens,\xe2\x80\x9d or at least not full citizens, not because of any\nexclusion from the militia (a subject the court did not mention). State v. Newsom, 27 N.C. (5 Ired.) 250,\n1844 WL 1059, at *1, *2.\n237\nSee below note 239.\n238\nThis was Richard Caswell, who became the first governor. Another member of the committee\nalso had been one of the three delegates. See Halbrook, Right to Bear Arms, supra note 56, at 29\xe2\x80\x9331;\nsee also 5 Federal and State Constitutions, supra note 78, at 2794.\n239\nVt. Const. ch. I, \xc2\xa7 15, reprinted in 6 Federal and State Constitutions, supra note 78, at 3741.\nThe constitution also asserted independence from New York. Id. at 3738\xe2\x80\x9339 (preamble); see Halbrook,\nRight to Bear Arms, supra note 56, at 37 (\xe2\x80\x9cRecognition of bearing arms to defend the state was more\nradical than self-defense, since it justified action by armed private citizens to defend an incipient state\nfrom the constituted authorities of both New York and Great Britain.\xe2\x80\x9d). The First Congress admitted\nVermont as the fourteenth state, see Act of Feb. 18, 1791, 1 Stat. 191, in time for it to ratify the Bill of\nRights, see 2 Schwartz, Bill of Rights, supra note 67, at 1202\xe2\x80\x9303.\n240\nVt. Const. ch. I, \xc2\xa7 14, reprinted in 6 Federal and State Constitutions, supra note 78, at 3741\n(speech); id. \xc2\xa7 9, at 3740\xe2\x80\x9341 (duty of personal service, and conscientious objectors); id. ch. II, \xc2\xa7 5, at\n3742 (militia of \xe2\x80\x9cfreemen . . . and their sons\xe2\x80\x9d); id. \xc2\xa7 39, at 3748 (hunting).\n241\nSee Vt. Const. ch. I, \xc2\xa7\xc2\xa7 10, 15 & 18 (1786), reprinted in 6 id. at 3753 (duty of personal service\nand conscientious objectors, speech, and arms, respectively); id. ch. II, \xc2\xa7 19, at 3758 (militia, including\nall \xe2\x80\x9cinhabitants\xe2\x80\x9d rather than all freemen and their sons); id. \xc2\xa7 37, at 3760 (hunting); Vt. Const. ch. I,\narts. 9, 13 & 16 (1793), reprinted in id. at 3763\xe2\x80\x9364 (duty of personal service and conscientious objectors, speech, and arms, respectively); id. ch. II, \xc2\xa7 22, at 3768 (militia); id. \xc2\xa7 40, at 3770 (hunting).\n\n183\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nthe military power shall always be held in an exact subordination to\nthe civil authority, and be governed by it.242\nIn addition, Article 1 announced as among the \xe2\x80\x9cnatural, essential, and unalienable\nrights\xe2\x80\x9d of all men \xe2\x80\x9cthe right of enjoying and defending their lives and liberties\xe2\x80\x9d\nand \xe2\x80\x9cof acquiring, possessing, and protecting property.\xe2\x80\x9d243 Massachusetts was the\nfirst state to add \xe2\x80\x9ckeep\xe2\x80\x9d to \xe2\x80\x9cbear.\xe2\x80\x9d But this double right was said to be \xe2\x80\x9cfor the\ncommon defence,\xe2\x80\x9d a phrase that arguably limits the purposes for which one might\nexercise it. Two towns had unsuccessfully proposed adding \xe2\x80\x9ctheir own and\xe2\x80\x9d before\nthat phrase, one arguing that this change would make Article 17 \xe2\x80\x9charmonize much\nbetter with\xe2\x80\x9d Article 1.244\nEven assuming that the phrase \xe2\x80\x9cfor the common defence\xe2\x80\x9d limited the purposes\nfor which arms could be kept and borne, the \xe2\x80\x9cright\xe2\x80\x9d remained an individual one\xe2\x80\x94\nresiding in \xe2\x80\x9cthe people,\xe2\x80\x9d just as Article 19 set out an individual right in providing\nthat \xe2\x80\x9c[t]he people have a right, in an orderly and peaceable manner, to assemble to\nconsult upon the common good.\xe2\x80\x9d245 Nothing in Article 17 or any other provision\nconnected the right to service in the militia, much less indicated that this \xe2\x80\x9cright\xe2\x80\x9d of\nthe \xe2\x80\x9cpeople\xe2\x80\x9d belonged to the state or was intended to protect its prerogatives.246\nMoreover, the addition of the word \xe2\x80\x9ckeep\xe2\x80\x9d to the right of the people reinforced the\nindividual nature of the right, because, as explained above in Part II.B.1, the\nphrase \xe2\x80\x9ckeep arms\xe2\x80\x9d commonly referred to individuals privately possessing their\nprivate arms.\nThe history of the provision reinforces this understanding of its text as securing\nan individual right. The principal draftsman was John Adams, joined by his cousin\nSamuel Adams and another individual.247 As explained above, John Adams\npublicly acknowledged the individual right inherited from England both before\nand after he wrote the Declaration, and Samuel Adams both helped lead the\nBoston town meeting that had urged Bostonians to exercise that individual right\n242\n\nReprinted in 3 Federal and State Constitutions, supra note 78, at 1892.\nMass. Const. pt. I, art. 1 (1780), reprinted in id. at 1889.\n244\nSee Halbrook, Right to Bear Arms, supra note 56, at 41\xe2\x80\x9342.\n245\nMass. Const. pt. I, art. 19, reprinted in 3 Federal and State Constitutions, supra note 78, at\n1892. An early decision of the state\xe2\x80\x99s supreme court, interpreting the Declaration\xe2\x80\x99s protection of the\nindividual\xe2\x80\x99s \xe2\x80\x9cliberty of the press\xe2\x80\x9d as not protecting common law libel, drew a parallel to \xe2\x80\x9cthe right to\nkeep fire arms, which does not protect him who uses them for annoyance or destruction.\xe2\x80\x9d Commonwealth v. Blanding, 20 Mass. 304, 338 (1825). Whether the court had in mind Article 17 or the right\nfrom England is unclear, but in either case it recognized a right of individuals to keep arms.\n246\nIn addition, the purposes of calling out the militia seem to have been narrower than whatever\n\xe2\x80\x9cfor the common defence\xe2\x80\x9d signified, as the governor was authorized to call it out \xe2\x80\x9cfor the special\ndefence and safety of the commonwealth,\xe2\x80\x9d which appears to have meant war, invasion, or rebellion.\nMass. Const. pt. II, ch. 2, \xc2\xa7 1, art. 7, reprinted in 3 Federal and State Constitutions, supra note 78, at\n1901.\n247\n1 Schwartz, Bill of Rights, supra note 67, at 337. The only change between their draft and the\nfinal was the deletion of \xe2\x80\x9cstanding\xe2\x80\x9d before \xe2\x80\x9carmies.\xe2\x80\x9d Id. at 372 (draft); id. at 364 (deletion).\n243\n\n184\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nand publicly defended its resolution on the authority of the English Bill of Rights\nand Blackstone.248 Much like Mason, Samuel Adams also would, during the\nratification debate, urge that the Constitution protect that right, as we explain\nbelow.\nThus, the right of individual English subjects was transplanted to America.\nAmericans also, from their experience in the American Revolution, came to\nemphasize the citizen militia, which they recognized was furthered by the\nindividual right to private arms. But the English right as Americans came to\nunderstand it was not, as a result, somehow newly restricted to a person\xe2\x80\x99s service\nin that militia, much less to service in a select militia. Nor did early Americans see\nthe right as a federalism protection (which would not have made sense in the\ncontext of state constitutions) or otherwise the property of the state rather than its\ncitizens.\nC. The Development of the Second Amendment\nThe proposed Constitution that emerged from the Constitutional Convention in\n1787 did not have a bill of rights, notwithstanding a late effort by Mason, joined\nby Elbridge Gerry, to have one drawn up \xe2\x80\x9cwith the aid of the State declarations.\xe2\x80\x9d249\nIt did contain a careful compromise regarding the militia. The federal government\nreceived, in Article I, Section 8, the powers to call out the militia \xe2\x80\x9cto execute the\nLaws of the Union, suppress Insurrections, and repel Invasions,\xe2\x80\x9d to provide for\n\xe2\x80\x9corganizing, arming, and disciplining\xe2\x80\x9d it, and to govern any part of it in the service\nof the federal government (during which the President would be its Commander in\nChief); states expressly retained the authority to appoint officers and to train the\nmilitia.250\n248\nAs with North Carolina\xe2\x80\x99s emphasis on the \xe2\x80\x9cdefence of the State,\xe2\x80\x9d Massachusetts\xe2\x80\x99s emphasis on\nthe \xe2\x80\x9ccommon defence\xe2\x80\x9d may have represented the assertion of a right that went beyond the traditional\nEnglish one. \xe2\x80\x9cCommon\xe2\x80\x9d had been deleted from a similar clause (\xe2\x80\x9cfor their common defence\xe2\x80\x9d) in a draft\nof the English Declaration, perhaps at the urging of William of Orange or conservative Lords, who\nobjected to suggestion of a popular right to check royal power. See Malcolm, To Keep and Bear Arms,\nsupra note 33, at 119\xe2\x80\x9321.\n249\nMadison, Notes of Debates, supra note 44, at 630 (Sept. 12, 1787).\n250\nU.S. Const. art. I, \xc2\xa7 8, cls. 15 & 16, and art. II, \xc2\xa7 2, cl. 1. The Ninth Circuit claims that there was\n\xe2\x80\x9cdisagreement among the delegates\xe2\x80\x9d over whether Congress\xe2\x80\x99s power to arm the militias \xe2\x80\x9cshould be\nexclusive or concurrent\xe2\x80\x9d with the states. Silveira, 312 F.3d at 1079. But the court only cites Perpich v.\nDep\xe2\x80\x99t of Defense, 496 U.S. 334, 340 (1990), which does not support this claim; nor do the debates of\nthe Convention, where the focus was on the extent of any federal authority to establish uniform\ndiscipline and regulation of the militia (including providing for arms), not on whether the states would\nretain concurrent authority in areas where federal power was granted. For the two chief debates, see\nMadison, Notes of Debates, supra note 44, at 478, 483\xe2\x80\x9385 (Aug. 18, 1787); id. at 512\xe2\x80\x9316 (Aug. 23,\n1787). Similarly, the Third Circuit has cited, in support of the collective right view, a statement by\nRoger Sherman that states should retain power to use their militias for internal needs. See United States\nv. Tot, 131 F.2d 261, 266 (1942), rev\xe2\x80\x99d on other grounds, 319 U.S. 463 (1943) (citing 5 Elliot\xe2\x80\x99s\nDebates 445 (2d ed. 1901)). We fail to see how this statement supports that view, particularly given\nthat no one appears to have disagreed with Sherman; that he served on the committee that drafted what\n\n185\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nProposed bills of rights emerged from the ratifying conventions of several of\nthe states. Many of these included protection for the right to arms\xe2\x80\x94usually in\nlanguage borrowed or adapted from the individual right to arms in the states\xe2\x80\x99\ndeclarations of rights, and in any event always in language indicating an individual\nright. In those proposals, several states for the first time in a single constitutional\nprovision both set out an individual right to arms and praised the citizen militia,\nuniting language from the different state declarations discussed above. In addition,\nsome Anti-Federalists, concerned about the Constitution\xe2\x80\x99s allocation of powers\nover the militia, sought to protect the ability of the states to maintain effective\nmilitias. They proposed to do so expressly, in amendments using language similar\nto that of Article I, Section 8, and to be placed in the body of the Constitution, not\nin a bill of rights.251\nYet it was the former proposals that laid the foundation for the Second\nAmendment. And the latter proposals failed in the Federalist-controlled First\nCongress, which was, as many recognized at the time, willing to protect individual\nrights but not to alter the balance of power struck by the new Constitution between\nthe states and the nascent federal government. Thus, the evidence points to an\nunderstanding of the Amendment as securing the individual right to arms already\nwell established in America, rather than safeguarding the ability of states to\nestablish well-regulated militias, whether through a \xe2\x80\x9ccollective right\xe2\x80\x9d of states or a\nquasi-collective right of militiamen. Rather than \xe2\x80\x9clay down any novel principles of\ngovernment,\xe2\x80\x9d the Second Amendment embodied the individual \xe2\x80\x9cguarant[ee] and\nimmunit[y]\xe2\x80\x9d to which Americans were accustomed.252\n1. Recommendations From the Ratification of the\nOriginal Constitution\nAlthough the right of individuals to have arms was not a subject of much direct\ndiscussion in the ratification debates, two major topics are relevant. First, Antibecame the final version of Article I, Section 8, Clause 16, Madison, Notes of Debates at 480, 485\n(Aug. 18, 1787); id. at 494\xe2\x80\x9395 (Aug. 21, 1787), and generally supported its compromise, id. at 513\xe2\x80\x9314;\nand that he saw no need for amendments, see A Countryman No. 2 (1787), reprinted in 14 Ratification,\nsupra note 67, at 172 (John P. Kaminski & Gaspare J. Saladino eds., 1983); A Countryman No. 3\n(1787), reprinted in id. at 296; A Citizen of New Haven (1789), reprinted in Creating the Bill of Rights,\nsupra note 82, at 220.\n251\nThe Ninth Circuit in Silveira did not mention this latter set of proposals, and the court presented\nthe comments in the ratification debates most relevant to these separate proposals as if they instead\nrelated to the Second Amendment. See 312 F.3d at 1082\xe2\x80\x9383; see also id. at 1078 (claiming without\ncitation that \xe2\x80\x9c[t]he compromise that the convention eventually reached, which granted the federal\ngovernment the dominant control over the national defense, led ultimately to the enactment of the\ncounter-balancing Second Amendment\xe2\x80\x9d).\n252\nRobertson, 165 U.S. at 281 (discussing Bill of Rights in general); see Silveira, 328 F.3d at 584\n(Kleinfeld, J., joined by Kozinski, O\xe2\x80\x99Scannlain, and T.G. Nelson, JJ., dissenting from denial of rehearing en banc) (\xe2\x80\x9cThe Second Amendment was not novel, but rather codified and expanded upon long\nestablished principles.\xe2\x80\x9d).\n\n186\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nFederalists objected to the absence of a bill of rights, often pointing to the English\nBill of Rights (as well as the declarations of the states) as models.253 The Federalists\xe2\x80\x99 response likewise recognized the English precedent, but sought to distinguish\nit on various grounds or to argue that many rights, such as the English Bill of\nRights\xe2\x80\x99 ban on \xe2\x80\x9ccruel and unusual punishments,\xe2\x80\x9d or \xe2\x80\x9cthe liberty of the press\xe2\x80\x9d\n(which developed after the Bill), were too indefinite to provide dependable legal\nprotections.254\nSecond, Anti-Federalists denounced the militia powers to be granted to the\nfederal government, warning that it would destroy the militia through any number\nof means\xe2\x80\x94by neglecting it, by creating a select militia and then neglecting the\ngeneral militia, or (somewhat inconsistently255) by destroying the militia through\nonerous discipline and excessive deployment. The arguments from neglect rested\non the premise that Congress\xe2\x80\x99s power of organizing, arming, and disciplining the\nmilitia would foreclose any such state power. If true, the militia might be left\nwithout any government ensuring its arming and training. The arguments also\nwere premised on the common understanding of the \xe2\x80\x9cmilitia\xe2\x80\x9d as the citizen militia:\nThe Federal Farmer, the leading Anti-Federalist essayist, admonished that \xe2\x80\x9cto\npreserve liberty, it is essential that the whole body of the people always possess\narms, and be taught alike, especially when young, how to use them,\xe2\x80\x9d and Patrick\nHenry, leader in the Virginia Ratifying Convention, warned, \xe2\x80\x9cThe great object is,\nthat every man be armed. . . . When this power is given up to Congress without\nlimitation or bounds, how will your militia be armed?\xe2\x80\x9d256 Anti-Federalists also\nwarned that Congress would use its power to establish a standing army to trample\n\n253\nSee, e.g., 2 Complete Anti-Federalist, supra note 101, at 7, 11 (public objections of Mason and\nGerry); Va. Ratif. Conv., reprinted in 10 Ratification, supra note 67, at 1212 (remarks of Patrick\nHenry, June 12, 1788) (invoking English Bill and state declarations); Address by Sydney (Robert\nYates) (1788), reprinted in 6 Complete Anti-Federalist, supra note 101, at 107, 109 (similar to Henry).\nOne of the leading arguments of this point was by the Federal Farmer. See Federal Farmer No. 16\n(1788), reprinted in 2 Complete Anti-Federalist, supra note 101, at 323.\n254\nSee, e.g., The Federalist No. 84, at 575\xe2\x80\x9381 (Alexander Hamilton); Marcus No. 1, Answer to Mr.\nMason\xe2\x80\x99s Objections (James Iredell) (1788), reprinted in 1 Debate on the Constitution, supra note 97, at\n363\xe2\x80\x9364; Marcus No. 4 (1788), reprinted in id. at 387\xe2\x80\x9390; America, To the Dissenting Members of the\nlate Convention of Pennsylvania (Noah Webster) (1787), reprinted in 1 Debate on the Constitution,\nsupra note 97, at 555\xe2\x80\x9360.\n255\nAs one Federalist criticized Luther Martin, an Anti-Federalist who had been a delegate to the\nConstitutional Convention: \xe2\x80\x9cOne hour you sported the opinion, that Congress, afraid of the militia\nresisting their measures, would neither arm nor organize them: and the next, as if men required no time\nto breathe between such contradictions, that they would harass them by long and unnecessary marches,\ntill they wore down their spirit and rendered them fit subjects for despotism.\xe2\x80\x9d The Landholder No. 10\n(1788), reprinted in 16 Ratification, supra note 67, at 265, 267 (John P. Kaminski & Gaspare J.\nSaladino eds., 1986).\n256\nFederal Farmer No. 18 (1788), reprinted in 2 Complete Anti-Federalist, supra note 101, at 342;\nVa. Ratif. Conv., in 10 Ratification, supra note 67, at 1276 (Henry, June 14, 1788).\n\n187\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\ntraditional liberties, particularly after it had destroyed the militia.257 The Federalists\xe2\x80\x99 response emphasized the same understanding of the citizen militia, asking\nhow the federal government could tyrannize over a populace armed as America\xe2\x80\x99s\nwas.258 As already noted in Part II.D.2 above, they also argued that, in any event,\nthe states would retain a concurrent power over their militias, including a power to\narm them.259\nTwo separate categories of proposed amendments resulted from these two sets\nof arguments. Proposed amendments to protect the right to keep and bear arms not\nonly were phrased as individual rights (even when accompanied by language\nconcerning the militia and civilian control of the military) but also were distinct\nfrom proposals that would safeguard state powers over the militia or restrain\nfederal power to create a standing army. (Restriction on standing armies would\n\n257\n\nSee, e.g., regarding all of these concerns, John De Witt No. 5 (1787), reprinted in 4 Complete\nAnti-Federalist, supra note 101, at 36\xe2\x80\x9337 (warning that federal government would neglect to arm\nmilitia, not trusting the people, and enforce unjust laws through standing army); Pa. Ratif. Conv., in 2\nRatification, supra note 67, at 509 (remarks of John Smilie, Dec. 6, 1787) (\xe2\x80\x9cWhen a select militia is\nformed; the people in general may be disarmed.\xe2\x80\x9d); Federal Farmer No. 3 (1787), reprinted in 2\nComplete Anti-Federalist, supra note 101, at 242 (discounting safeguard of armed \xe2\x80\x9cyeomanry of the\npeople,\xe2\x80\x9d whom Congress would undermine through creating select militia); The Genuine Information\nDelivered to the Legislature of the State of Maryland Relative to the Proceedings of the General\nConvention Lately Held at Philadelphia; By Luther Martin, Esquire (1788), reprinted in 2 Complete\nAnti-Federalist, supra note 101, at 59\xe2\x80\x9360 (warning that Congress would use its militia and army\npowers \xe2\x80\x9cto subvert the liberties of the States and their citizens, since we [allow an unlimited standing\narmy and,] by placing the militia under its power, enable it to leave the militia totally unorganized,\nundisciplined, and even to disarm them\xe2\x80\x9d); Va. Ratif. Conv., in 10 Ratification, supra note 67, at 1271\n(remarks of Mason, June 14, 1788) (warning that Congress would \xe2\x80\x9cdisarm the people\xe2\x80\x9d gradually, rather\nthan \xe2\x80\x9copenly,\xe2\x80\x9d by \xe2\x80\x9ctotally disusing and neglecting the militia\xe2\x80\x9d). Henry repeatedly denounced the allegedly exclusive power. See 9 Ratification, supra note 67, at 957 (June 5) (\xe2\x80\x9cOf what service would\nmilitia be to you, when most probably you will not have a single musket in the State; for as arms are to\nbe provided by Congress, they may or may not furnish them.\xe2\x80\x9d); id. at 1066 (June 9) (\xe2\x80\x9cThe power of\narming the militia, and the means of purchasing arms, are taken from the States . . . . If Congress will\nnot arm them, they will not be armed at all.\xe2\x80\x9d).\n258\nSee, e.g., The Federalist No. 46, at 321\xe2\x80\x9322 (James Madison) (contrasting the \xe2\x80\x9cadvantage of\nbeing armed, which the Americans possess,\xe2\x80\x9d with the circumstances in \xe2\x80\x9cseveral kingdoms of Europe . . . [where] the governments are afraid to trust the people with arms\xe2\x80\x9d); An American Citizen IV:\nOn the Federal Government (Tench Coxe) (1787), reprinted in 13 Ratification, supra note 67, at 433\n(John P. Kaminski & Gaspare J. Saladino eds., 1981) (arguing that, if tyranny threatened, the \xe2\x80\x9cfriends\nto liberty . . . using those arms which Providence has put into their hands, will make a solemn appeal\n\xe2\x80\x9bto the power above\xe2\x80\x99\xe2\x80\x9d); A Citizen of America, An Examination Into the Leading Principles of the\nFederal Constitution (Noah Webster) (1787), reprinted in 1 Debate on the Constitution, supra note 97,\nat 155 (\xe2\x80\x9cBefore a standing army can rule the people must be disarmed; as they are in almost every\nkingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because\nthe whole body of the people are armed\xe2\x80\x9d).\n259\nJohn Marshall, for example, provided a standard analysis: \xe2\x80\x9cThe truth is, that when power is\ngiven to the General Legislature, if it was in the State Legislatures before, both shall exercise it; unless\nthere be an incompatibility in the exercise by one, to that by the other; or negative words precluding the\nState Governments from it. But there are no negative words here. It rests therefore with the States.\xe2\x80\x9d Va.\nRatif. Conv., in 10 Ratification, supra note 67, at 1307 (June 16, 1788).\n\n188\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nhelp ensure that the new government maintained the militia, by ensuring the\ngovernment\xe2\x80\x99s dependence on it.)\nPennsylvania\xe2\x80\x99s Convention, the second to meet, ratified the Constitution by a 2\nto 1 margin in December 1787, without proposing amendments.260 A week later, 21\nof the 23 dissenting delegates published their Address and Reasons of Dissent\n(\xe2\x80\x9cMinority Report\xe2\x80\x9d), including amendments that they had proposed but the\nconvention had refused to consider. It drew heavily from the 1776 Pennsylvania\nDeclaration of Rights. The proposal regarding arms was Article 7, immediately\nfollowing one stating that \xe2\x80\x9cthe people have a right to the freedom of speech,\xe2\x80\x9d and\nit read as follows:\nThat the people have a right to bear arms for the defence of themselves and their own State or the United States, or for the purpose of\nkilling game; and no law shall be passed for disarming the people or\nany of them unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are\ndangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by\nthe civil powers.261\nArticle 8, immediately following, protected the right to hunt on one\xe2\x80\x99s private\nproperty and certain other lands.262\nSeparately, the Minority sought, in Article 11, both to restrict Congress\xe2\x80\x99s Article I, Section 8, Clause 16 powers over the militia and to protect state authority\nover it, by providing \xe2\x80\x9c[t]hat the power of organizing, arming and disciplining the\nmilitia (the manner of disciplining the militia to be prescribed by Congress),\nremain with the individual States.\xe2\x80\x9d263 They warned that, without this restriction,\nCongress\xe2\x80\x99s power over the militia could place \xe2\x80\x9cevery man, probably from sixteen\nto sixty years of age\xe2\x80\x9d under Congress\xe2\x80\x99s power and military discipline\xe2\x80\x94\n260\nDelaware already had ratified unanimously. After Pennsylvania\xe2\x80\x99s vote, New Jersey, Georgia,\nand Connecticut ratified by large majorities. No proposed amendments emerged from these conventions. See 2 Schwartz, Bill of Rights, supra note 67, at 627, 674. Maryland ratified on April 26, 1788,\nwithout proposing amendments, although a committee had approved several, including a prohibition on\nsubjecting the militia to martial law \xe2\x80\x9cexcept in time of war, invasion, or rebellion.\xe2\x80\x9d The committee\nunderstood the militia to consist of \xe2\x80\x9call men, able to bear arms,\xe2\x80\x9d which would make martial law for the\nmilitia a pretext for applying it to the populace. See id. at 729\xe2\x80\x9330, 734\xe2\x80\x9335.\n261\n2 Schwartz, Bill of Rights, supra note 67, at 665. Tench Coxe, in a critique of the Minority,\ndescribed this proposal as a \xe2\x80\x9cprovision against disarming the people.\xe2\x80\x9d Philanthropos, Penn. Gazette,\n1788, reprinted in 15 Ratification, supra note 67, at 391, 393.\n262\n2 Schwartz, Bill of Rights, supra note 67, at 665. Noah Webster suggested that the Minority also\npropose \xe2\x80\x9c[t]hat Congress shall never restrain any inhabitant of America from eating and drinking, at\nseasonable times.\xe2\x80\x9d His serious criticism of Article 8 was that it was useless because aimed at game\nlaws, which had never existed in America. He did not comment on Article 7. America, Daily\nAdvertiser, 1787, reprinted in 1 Debate on the Constitution, supra note 97, at 559\xe2\x80\x9360.\n263\n2 Schwartz, Bill of Rights, supra note 67, at 665.\n\n189\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nparticularly \xe2\x80\x9cour young men, . . . as a select militia, composed of them, will best\nanswer the purposes of government\xe2\x80\x9d\xe2\x80\x94and also could leave conscientious\nobjectors compelled to bear arms in the militia.264 As in Pennsylvania\xe2\x80\x99s 1776\ndeclaration and constitution, a right to bear arms was distinct from bearing arms in\nservice to the government. There was no suggestion that the individual right\nsomehow would directly guard the states\xe2\x80\x99 power, and this separate proposal and\ncomment indicate that the Minority believed that it would not.\nThe Massachusetts Convention was the first to include with its ratification, in\nFebruary 1788, a list of recommended amendments. The Federalists prepared and\nhad John Hancock introduce the nine proposals to woo marginal Anti-Federalists.\nSamuel Adams, while supporting Hancock\xe2\x80\x99s list, also led an effort to add several\nrights that would appear in the First, Second, and Fourth Amendments, plus a ban\non standing armies \xe2\x80\x9cunless when necessary for the defence of the United States, or\nof some one or more of them.\xe2\x80\x9d Regarding arms, he proposed that the Constitution\n\xe2\x80\x9cbe never construed to authorize Congress . . . to prevent the people of the United\nStates, who are peaceable citizens, from keeping their own arms.\xe2\x80\x9d This language\nindicated that the \xe2\x80\x9cpeople\xe2\x80\x9d consisted of the \xe2\x80\x9ccitizens,\xe2\x80\x9d who would, so long as they\nwere peaceable, individually keep private arms. Adams\xe2\x80\x99s proposed additions were\nvoted down, and the Convention then narrowly voted to ratify and to recommend\nthe Federalists\xe2\x80\x99 list.265\nFour months later, New Hampshire\xe2\x80\x99s Convention, also closely divided, adapted\nsome of Adams\xe2\x80\x99s proposals.266 It recommended the nine amendments that Massachusetts had, but added three: one calling for a supermajority before Congress\ncould keep up a standing army in peacetime; the next barring Congress from\nmaking laws regarding religion or infringing the rights of conscience; and the final\none providing that \xe2\x80\x9cCongress shall never disarm any Citizen unless such as are or\nhave been in Actual Rebellion.\xe2\x80\x9d267 New Hampshire thus became the first state\nwhose ratifying convention as a body recommended that the Constitution protect a\nright to arms. Again, the right belonged to the individual citizen.\nAlthough New Hampshire had provided the crucial ninth state for the Constitution to take effect,268 the convention of Virginia, occurring simultaneously and\nconcluding four days later (on June 25, 1788), had particular importance, not only\nbecause of the possibility that Virginia would be the ninth state to ratify but also\nbecause of the state\xe2\x80\x99s significance, the prominence of its leaders, and the strength\n264\n\nId. at 671\xe2\x80\x9372.\nId. at 674\xe2\x80\x9375, 681. South Carolina ratified in May 1788 without proposing any relevant amendments. See id. at 739, 756\xe2\x80\x9357.\n266\nThe convention had adjourned in February 1788 to avoid a vote against ratification. When it\nreconvened in the summer, it ratified by a vote of 57 to 47. See id. at 758.\n267\nId. at 761; see id. at 758 (noting that the first nine New Hampshire amendments \xe2\x80\x9cwere taken\nalmost verbatim from those proposed by Massachusetts\xe2\x80\x9d).\n268\nId. at 758. See U.S. Const. art. VII.\n265\n\n190\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nof the Anti-Federalists, led by Patrick Henry.269 The convention did vote to ratify,\nbut also recommended numerous amendments. Written by a committee of Mason,\nHenry, Madison, George Wythe, and John Marshall, twenty were proposed for a\nseparate bill of rights and twenty for the body of the Constitution. Those in the\nformer category amounted to the first full bill of rights proposed by a state\nconvention, and most made their way into the federal Bill of Rights.270\nThe proposal regarding arms appeared in the bill, immediately after the\n\xe2\x80\x9cright[s]\xe2\x80\x9d of \xe2\x80\x9cthe people\xe2\x80\x9d to assemble and petition and to speak, write, and\npublish. It was a synthesis from the leading state declarations, providing:\nThat the people have a right to keep and bear arms; that a wellregulated militia, composed of the body of the people trained to\narms, is the proper, natural, and safe defence of a free state; that\nstanding armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection\nof the community will admit; and that, in all cases, the military\nshould be under strict subordination to, and governed by, the civil\npower.271\nThe two strands evident in the Revolutionary Era\xe2\x80\x94an individual right to arms and\nhigh regard for the citizen militia\xe2\x80\x94were brought together: The proposal combined\nan individual right to arms provision such as those from the Pennsylvania and\nMassachusetts Declarations with the praise of the militia from Virginia\xe2\x80\x99s. The\n\xe2\x80\x9cpeople\xe2\x80\x9d would have a right to keep and bear arms, and a well-regulated militia\ncomposed \xe2\x80\x9cof the body of the people\xe2\x80\x9d\xe2\x80\x94the people as an organized whole\xe2\x80\x94would\nprotect \xe2\x80\x9ca free state.\xe2\x80\x9d This language became the foundation for the Second\nAmendment. In addition, the combination of the two clauses indicates (as the\ndiffering first clauses of the analogous articles in the Virginia and Pennsylvania\nDeclarations had done separately) that the individual right and the well-regulated\nmilitia both would contribute to the avoidance of standing armies and to civilian\nrule.\nOnly in its separate list of amendments for the body of the Constitution did the\nVirginia convention directly protect the power of states to maintain militias and\nrestrict the federal power to raise standing armies. It recommended a supermajority vote for Congress to maintain a peacetime army (in the spirit of Samuel Adams\nand the New Hampshire Convention), and it sought to protect state power over the\nmilitia (much as the Pennsylvania Minority had) with the following provision:\n269\n\nSee 2 Schwartz, Bill of Rights, supra note 67, at 762, 764.\nSee id. at 765\xe2\x80\x9366.\n271\n2 Schwartz, Bill of Rights, supra note 67, at 842. Mason drafted this provision. See 9 Ratification,\nsupra note 67, at 821 (reprinting Mason\xe2\x80\x99s draft). Two articles later, Virginia also proposed exemptions for\nthose \xe2\x80\x9creligiously scrupulous of bearing arms,\xe2\x80\x9d again borrowing from Pennsylvania\xe2\x80\x99s Declaration.\n2 Schwartz, Bill of Rights, supra note 67, at 842.\n270\n\n191\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nThat each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same.272\nThese distinct proposals confirm what is evident from the declarations included\nwith the proposal for the bill of rights: The individual right of the people to keep\nand bear arms does not directly guard any power of states to maintain militias.\n(Much less does it guarantee against standing armies.) But it does indirectly\nfurther the policy of having a well-regulated militia of the body of the people, as\nwell as that of mitigating the need for and risk from a standing army.\nThe New York Convention, voting just over a month after Virginia\xe2\x80\x99s (and\nratifying by only 30\xe2\x80\x9327), followed Virginia\xe2\x80\x99s model. The separate declaration of\nrights included both an individual right to keep and bear arms (immediately after\nthe \xe2\x80\x9cright\xe2\x80\x9d of \xe2\x80\x9cthe People\xe2\x80\x9d to free exercise of religion) and declarations regarding\nthe militia and standing armies:\nThat the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing\narms, is the proper, natural, and safe defence of a free State.\n....\nThat standing Armies in time of Peace are dangerous to Liberty, and\nought not to be kept up, except in Cases of necessity; and that at all\ntimes, the Military should be under strict Subordination to the civil\nPower.273\nFor the body of the Constitution, New York proposed, like New Hampshire and\nVirginia, an amendment requiring a supermajority for Congress to maintain a\npeacetime standing army. It did not propose express protection of state power over\nthe militia.274\nThe force of Virginia\xe2\x80\x99s proposals is evident not only in New York\xe2\x80\x99s borrowing\nbut also in the first North Carolina Convention. On August 1, 1788, North\nCarolina became the only state to decline to ratify until the Constitution had been\namended to include a bill of rights (Rhode Island had declined even to call a\nconvention), and it proposed verbatim the amendments that Virginia had proposed\xe2\x80\x94including the individual right to keep and bear arms and the separate\nproposals, for the body of the Constitution, guarding state power over the militias\nand mandating supermajorities for standing armies. North Carolina\xe2\x80\x99s actions made\n\n272\n\n2 Schwartz, Bill of Rights, supra note 67, at 843.\nId. at 912. New York did not propose any protection for conscientious objectors.\n274\nId. at 915, 918.\n273\n\n192\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nthe momentum for a bill of rights \xe2\x80\x9cvirtually irresistible,\xe2\x80\x9d and, two months after\nCongress approved one, a new convention ratified.275\nEvery recommendation in these state conventions regarding the right to arms\nsought to protect an individual right\xe2\x80\x94not a \xe2\x80\x9cright\xe2\x80\x9d to maintain well-regulated\nstate militias, whether belonging to the states or to those serving in such entities\n(much less belonging just to those serving in well-regulated select militias).\nVirginia, New York, and North Carolina also appended declaratory clauses to the\nright suggesting that it would benefit the citizen militia, preserve the freedom of\nthe state, and reduce the need for or risk from a standing army. But those states\nthat wanted to protect state authority to maintain militias (Virginia and North\nCarolina) followed the lead of the Pennsylvania Minority by proposing separate\namendments doing so directly, intended not for the bill of rights but for the body\nof the Constitution. Thus, regarding the right to arms, those who ratified the\nConstitution did nothing novel, but rather followed the path marked by the state\ndeclarations and the earlier right from England. They proposed an individual right,\nnot a \xe2\x80\x9cright\xe2\x80\x9d of states and not a right restricted to their militias or militiamen. As\nthe First Congress met, it had before it numerous proposals for an individual right\nto arms and a few proposals for safeguarding state militias by directly protecting\nstate authority, but none for protecting that authority through a collective or quasicollective \xe2\x80\x9cright\xe2\x80\x9d to arms.\n2. The Drafting and Ratification of the Second Amendment\nWhen the First Congress convened in 1789, Federalist Congressman James\nMadison moved quickly to win over marginal Anti-Federalists by responding to\nthe calls for a bill of rights. The House soon approved seventeen amendments. The\nSenate reduced these to twelve, of which the states ratified the ten that form the\nBill of Rights.\nThe Federalists, victorious in ratification and dominant in Congress, openly\navoided any amendment that would materially alter the balance of power with the\nstates or otherwise threaten legitimate federal powers. Thus, the amendments that\nCongress approved were devoted almost exclusively to protecting individual\nrights. Of the categories of proposals discussed in the previous subpart, only the\nfirst\xe2\x80\x94the individual right of the people to keep and bear arms\xe2\x80\x94received approval.\nThe separate proposals for protecting state power to organize, discipline, and arm\nthe militia and for restricting federal power to maintain standing armies failed.\nPresident Washington set the stage in his inaugural address, urging Congress to\nconsider amendments out of \xe2\x80\x9ca reverence for the characteristic rights of freemen\xe2\x80\x9d\nbut \xe2\x80\x9ccarefully avoid every alteration which might endanger the benefits of an\n\n275\n\nId. at 932\xe2\x80\x9333, 968\xe2\x80\x9369; Halbrook, Right to Bear Arms, supra note 56, at 33\xe2\x80\x9334.\n\n193\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nunited and effective government.\xe2\x80\x9d276 Madison reiterated this view in introducing\nhis proposals in June 1789:\nIt will be a desirable thing to extinguish from the bosom of every\nmember of the community, any apprehensions that there are those\namong his countrymen who wish to deprive them of the liberty for\nwhich they valiantly fought and honorably bled.\n....\nI should be unwilling to see a door opened for a re-consideration of\nthe whole structure of the government, for a re-consideration of the\nprinciples and the substance of the powers given . . . . But I do wish\nto see a door opened to consider, so far as to incorporate those provisions for the security of rights . . . .\n....\nI believe that the great mass of the people who opposed [the Constitution], disliked it because it did not contain effectual provision\nagainst encroachments on particular rights, and those safeguards\nwhich they have been long accustomed to have interposed between\nthem and the magistrate who exercised the sovereign power.277\nMadison also urged Congress to \xe2\x80\x9cexpressly declare the great rights of mankind\xe2\x80\x9d\nand provide \xe2\x80\x9cthose securities for liberty\xe2\x80\x9d demanded by North Carolina and Rhode\nIsland. In contrast, he was confident that those who opposed the Constitution\xe2\x80\x99s\n\xe2\x80\x9cstructure,\xe2\x80\x9d powers, or restrictions on state powers were a much smaller group.278\nOther congressmen similarly hoped that such an approach would win over many\nof the disaffected in various states.279\nAnti-Federalist leaders recognized this focus on individual rights. Richard\nHenry Lee, one of Virginia\xe2\x80\x99s first senators, reported to Patrick Henry about a week\nbefore Madison\xe2\x80\x99s speech \xe2\x80\x9cthat many of our amendments will not succeed, but my\n\n276\n\nFirst Inaugural Address (Apr. 30, 1789), reprinted in 1 A Compilation of the Messages and\nPapers of the Presidents 43, 45 (James D. Richardson ed., 1897).\n277\nSpeech of Madison (June 8, 1789), reprinted in Creating the Bill of Rights, supra note 82, at 78\xe2\x80\x93\n79.\n278\nId.\n279\nSee Letter from Rep. Fisher Ames to George R. Minot (July 23, 1789) (discussing North Carolina), reprinted in Creating the Bill of Rights, supra note 82, at 269; Letter from Rep. William L. Smith\nto Edward Rutledge (Aug. 9, 1789) (North Carolina; noting disposition of House to \xe2\x80\x9cagree to some,\nwhich will more effectually secure private rights\xe2\x80\x9d), reprinted in id. at 272\xe2\x80\x9373; Letter from Rep.\nFrederick A. Muhlenberg to Benjamin Rush (Aug. 18, 1789) (Pennsylvania Minority), reprinted in id.\nat 280.\n\n194\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nhopes are strong that such as may effectually secure civil liberty will not be\nrefused.\xe2\x80\x9d280 Soon after Madison spoke, Virginia\xe2\x80\x99s other senator, William Grayson,\nwrote to Henry that Madison\xe2\x80\x99s proposals \xe2\x80\x9caltogether respected personal liberty.\xe2\x80\x9d281\nAmong Madison\xe2\x80\x99s proposals was the following, which became the Second\nAmendment:\nThe right of the people to keep and bear arms shall not be infringed;\na well armed, and well regulated militia being the best security of a\nfree country: but no person religiously scrupulous of bearing arms,\nshall be compelled to render military service in person.282\nThe first and second clauses resembled the proposals of the Virginia, New York,\nand North Carolina conventions, including by making the connection between the\nindividual right and the militia. The first clause stated, as they had, a right both to\nkeep and to bear arms, which belonged to \xe2\x80\x9cthe people.\xe2\x80\x9d Having made this into a\nfull sentence, Madison made the second clause, which had been free-standing in\nthe Virginia, New York, and North Carolina proposals, subordinate to the first. In\nshortening the second clause, he omitted the definition of the militia, just as\nDelaware, Maryland, and New Hampshire had done in their declarations of\nrights.283 He also omitted the conventions\xe2\x80\x99 disparagement of standing armies and\nadmonition to civilian rule, and appended protection for conscientious objectors,\nwhich the Pennsylvania Minority, Virginia, and North Carolina had separately\nrequested. As the Pennsylvania and Vermont Declarations had shown even before\nratification, there was no inconsistency in recognizing both an individual right to\n\xe2\x80\x9cbear arms\xe2\x80\x9d and an individual exemption from being compelled to \xe2\x80\x9cbear arms\xe2\x80\x9d in\nmilitary service.\nThat Madison envisioned this proposed \xe2\x80\x9cright of the people\xe2\x80\x9d to secure an individual right is confirmed by the notes for his speech, in which he wrote that those\nprovisions \xe2\x80\x9crelat[ing] to what may be called a bill of rights,\xe2\x80\x9d including this one,\n\xe2\x80\x9crelate . . . to private rights\xe2\x80\x9d;284 by his using in his speech the same language to\ndiscuss both the rights of English subjects and those in his proposed bill;285 and by\n280\n\nLetter from Lee to Henry (May 28, 1789), reprinted in Creating the Bill of Rights, supra note\n82, at 241.\n281\nLetter from Grayson to Henry (June 12, 1789), reprinted in id. at 249. See also Letter from\nJoseph Jones to Madison (June 24, 1789), reprinted in id. at 253 (describing Madison\xe2\x80\x99s proposed\namendments as well \xe2\x80\x9ccalculated to secure the personal rights of the people\xe2\x80\x9d).\n282\nMadison Resolution (June 8, 1789), reprinted in id. at 12.\n283\nSee above Part III.B.2, at note 225 (discussing differences from Virginia Declaration).\n284\nNotes for Speech in Congress (ca. June 8, 1789), reprinted in 12 The Papers of James Madison\n193, 193 (Charles F. Hobson et al. eds., 1979) (emphasis added); see id. at 194\xe2\x80\x9395; Speech of Madison,\nreprinted in Creating the Bill of Rights, supra note 82, at 80.\n285\nCompare Speech of Madison, reprinted in Creating the Bill of Rights, supra note 82, at 80\n(discussing \xe2\x80\x9cthe declaration of rights\xe2\x80\x9d of England), with id. at 84 (concluding by describing his\nproposals \xe2\x80\x9cas a declaration of the rights of the people\xe2\x80\x9d). In his notes, although apparently not in his\n\n195\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nthe location in the body of the Constitution in which he proposed to place these\namendments. He recommended that the right to arms, along with antecedents of\nthe First, Third, Fourth, Eighth, Ninth, and portions of the Fifth and Sixth\nAmendments, be added in Article I, Section 9, immediately after clauses protecting three other individual rights: the writ of habeas corpus and the prohibitions\nagainst ex post facto laws and bills of attainder.286 It is reasonable to assume that\nMadison viewed the additional rights as likewise belonging to the individual.287\nHad he instead intended to protect state militias (whether directly through a\ncollective right or indirectly through a quasi-collective right), a more reasonable\nlocation would have been in or near the two clauses in Article I, Section 8, that\ngranted congressional power over the militia, one of which already \xe2\x80\x9creserv[ed] to\nthe States\xe2\x80\x9d certain powers over the militia. And Madison likely would have drawn\nfrom the separate language that Virginia and others had proposed for just this\npurpose\xe2\x80\x94but those proposals had the potential to threaten the balance of powers,\nat least by inviting disputes over whether the federal government had \xe2\x80\x9cneglect[ed]\xe2\x80\x9d the militia.\nOthers also understood Madison\xe2\x80\x99s proposal to secure an individual right to\nkeep and bear arms. Leading Federalist Congressman Fisher Ames wrote: \xe2\x80\x9cMr.\nMadison has introduced his long expected Amendments. . . . It contains a Bill of\nRights . . . [including] the right of the people to bear arms.\xe2\x80\x9d288 Elsewhere he wrote:\n\xe2\x80\x9cThe rights of conscience, of bearing arms, of changing the government, are\ndeclared to be inherent in the people.\xe2\x80\x9d289 Tench Coxe took the same view in his\nRemarks on the First Part of the Amendments to the Federal Constitution,\npublished in the major cities. Writing as \xe2\x80\x9cA Pennsylvanian\xe2\x80\x9d (a pseudonym that he\nhad used during the ratification debates), he explained the right that Madison\xe2\x80\x99s\nproposal protected as follows:\n\nspeech, he pointed out that the English right to arms was limited to Protestants. 12 Madison Papers,\nsupra note 284, at 193\xe2\x80\x9394.\n286\nSee Creating the Bill of Rights, supra note 82, at 12 (Madison\xe2\x80\x99s proposal); id. at 80, 84 (Madison\xe2\x80\x99s speech). His separate proposal of what would become the Tenth Amendment was to be placed\nbetween Articles 6 and 7, as its own article. Id. at 13\xe2\x80\x9314.\n287\nThe arguable exception, as discussed above in Part II.D.1 regarding the Establishment Clause,\nwas a prohibition on \xe2\x80\x9cany national religion.\xe2\x80\x9d Madison proposed other amendments that did not relate to\nprivate rights, such as altering the ratio of representation in the House of Representatives and banning\nincreases of legislator pay without an ensuing election, but he proposed to place these elsewhere in the\nConstitution. Id. at 12.\n288\nLetter from Ames to Thomas Dwight (June 11, 1789), reprinted in Creating the Bill of Rights,\nsupra note 82, at 247.\n289\nLetter from Ames to George R. Minot (June 12, 1789), reprinted in Creating the Bill of Rights,\nsupra note 82, at 247\xe2\x80\x9348. The right of \xe2\x80\x9cchanging the government\xe2\x80\x9d to which Ames referred was a\nprovision, in a separate section of Madison\xe2\x80\x99s proposal, affirming the right of the people \xe2\x80\x9cto reform or\nchange their government, whenever it be found adverse or inadequate to the purposes of its institution.\xe2\x80\x9d\nRegarding such usage of the \xe2\x80\x9cthe people,\xe2\x80\x9d see Part II.A above.\n\n196\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nAs civil rulers, not having their duty to the people duly before them,\nmay attempt to tyrannize, and as the military forces which must be\noccasionally raised to defend our country, might pervert their power\nto the injury of their fellow citizens, the people are confirmed by\nthe . . . article in their right to keep and bear their private arms.290\nCoxe recognized that the \xe2\x80\x9cright\xe2\x80\x9d of \xe2\x80\x9cthe people\xe2\x80\x9d belonged to the \xe2\x80\x9ccitizens,\xe2\x80\x9d who\ncould both keep and bear \xe2\x80\x9cprivate\xe2\x80\x9d arms. He sent his Remarks to Madison the day\nthat they were published, and Madison six days later returned thanks for his\n\xe2\x80\x9cexplanatory strictures\xe2\x80\x9d and the \xe2\x80\x9cco-operation of your pen,\xe2\x80\x9d noting from New\nYork City that the Remarks \xe2\x80\x9care already I find in the Gazettes here.\xe2\x80\x9d291 Neither\nMadison nor, it appears, anyone else disputed Coxe\xe2\x80\x99s interpretation.292 Samuel\nNasson, who had been an Anti-Federalist delegate to the Massachusetts Ratifying\nConvention, described the right similarly in a letter to a Federalist congressman\nfrom the state a month after Madison introduced his proposals:\nI find that Ammendments are once again on the Carpet. I hope that\nsuch may take place as will be for the Best Interest of the whole[.] A\nBill of rights well secured that we the people may know how far we\nmay Proceade in Every Department[,] then their will be no Dispute\nBetween the people and rulers[.] [I]n that may be secured the right to\nkeep arms for Common and Extraordinary Occations such as to secure ourselves against the wild Beast and also to amuse us by fowling and for our Defence against a Common Enemy[.] [Y]ou know to\nlearn the Use of arms is all that can Save us from a forighn foe that\nmay attempt to subdue us[,] for if we keep up the Use of arms and\nbecome acquainted with them we Shall allway be able to look them\nin the face that arise up against us[.]293\n\n290\nPhiladelphia Fed. Gazette, June 18, 1789, at 2, excerpted in Kates, supra note 33, 82 Mich. L.\nRev. at 224 & nn. 81\xe2\x80\x9382. The Remarks were reprinted within three weeks in newspapers in Boston (on\nthe front page of a special July 4 issue) and New York. See Stephen P. Halbrook & David B. Kopel,\nTench Coxe and the Right to Keep and Bear Arms, 1787\xe2\x80\x931823, 7 Wm. & Mary Bill Rts. J. 347, 367\n(1999).\n291\nSee Letter from Coxe to Madison (June 18, 1789), reprinted in Creating the Bill of Rights, supra\nnote 82, at 252\xe2\x80\x9353; Letter from Madison to Coxe (June 24, 1789), reprinted in 12 Madison Papers,\nsupra note 284, at 257; see also Creating the Bill of Rights, supra note 82, at 254 (excerpting\nMadison\xe2\x80\x99s letter).\n292\nSee Halbrook, That Every Man Be Armed, supra note 33, at 77 (noting that author\xe2\x80\x99s \xe2\x80\x9csearch of\nthe literature of the time reveals that no writer disputed or contradicted Coxe\xe2\x80\x99s analysis\xe2\x80\x9d).\n293\nLetter from Nasson to Thatcher (July 9, 1789), reprinted in Creating the Bill of Rights, supra\nnote 82, at 260\xe2\x80\x9361 (sic); see id. at 309 (brief biography of Nasson).\n\n197\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nLike Coxe and others, Nasson understood \xe2\x80\x9cthe people\xe2\x80\x9d as distinct from the\ngovernment, and included in \xe2\x80\x9cthe right\xe2\x80\x9d of the people private ownership and\nprivate uses of arms.\nIn late July 1789, a committee, to which had been referred both Madison\xe2\x80\x99s\nproposals and all amendments that ratifying conventions had proposed, issued a\nrevised draft. It provided:\nA well regulated militia, composed of the body of the people, being\nthe best security of a free state, the right of the people to keep and\nbear arms shall not be infringed, but no person religiously scrupulous\nshall be compelled to bear arms.294\nThe Committee had left unchanged the text of Madison\xe2\x80\x99s independent clause\nstating the right. But it had inverted the first two clauses, modified the language\nregarding the militia to return it somewhat to what had been proposed by some of\nthe state conventions (including by defining the militia), and revised the conscientious objector clause.\nThere is no reason to suppose that the mere reversal of order, or any of the other\nchanges, had altered the right that Madison, and the ratifying conventions before\nhim, had set out: The operative text of the independent clause was unchanged from\nMadison\xe2\x80\x99s draft, with the militia clause retaining its subordinate relationship;\nMadison had served on the committee, which does not seem to have had any serious\ndisagreements over content;295 and the committee had retained Madison\xe2\x80\x99s proposal\nthat this amendment, along with the rest of the \xe2\x80\x9cBill of Rights,\xe2\x80\x9d be placed among the\nthree pre-existing individual rights in Article I, Section 9, albeit moved forward one\nclause.296 In the ensuing debates, no member of the House suggested that any change\nin the right had occurred. The Speaker of the House, from Pennsylvania, wrote to a\nleading fellow Federalist in the state that the committee\xe2\x80\x99s proposals \xe2\x80\x9ctake[] in the\nprincipal Amendments which our Minority had so much at heart\xe2\x80\x9d; the Minority had,\nas discussed above, proposed an individual right to bear arms.297 And an article in\nBoston, reprinted in Philadelphia, described the committee\xe2\x80\x99s proposal as containing\n\xe2\x80\x9c[e]very one of\xe2\x80\x9d the amendments \xe2\x80\x9cintroduced to the convention of this common294\n\nCreating the Bill of Rights, supra note 82, at 30.\nId. at 6, 102\xe2\x80\x9303; see Letter from Madison to Wilson Cary Nicholas (Aug. 2, 1789), reprinted in\nid. at 271 (referring to \xe2\x80\x9cthe concord\xe2\x80\x9d of the committee); Letter from Roger Sherman to Henry Gibbs\n(Aug. 4, 1789), reprinted in id. (another committee member, predicting that committee\xe2\x80\x99s proposals\n\xe2\x80\x9cwill probably be harmless & Satisfactory to those who are fond of Bills of rights,\xe2\x80\x9d although noting his\ndesire to place them at the end of the Constitution).\n296\nSee id. at 30. The separate placement of what would become the Tenth Amendment remained\nunchanged, and Madison\xe2\x80\x99s other proposals, noted above, also remained separate.\n297\nLetter from Rep. Frederick A. Muhlenberg to Benjamin Rush (Aug. 18, 1789), reprinted in\nCreating the Bill of Rights, supra note 82, at 280 (writing after the first day of debate that involved the\narms provision, in which no changes were made, and describing proposed amendments to date as\n\xe2\x80\x9cnearly the same as\xe2\x80\x9d the committee \xe2\x80\x9chad reported them\xe2\x80\x9d).\n295\n\n198\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nwealth by . . . Samuel Adams\xe2\x80\x9d (except the restriction against a standing army),\nincluding that \xe2\x80\x9cthe said constitution be never construed . . . to prevent the people of\nthe United States who are peaceable citizens, from keeping their own arms.\xe2\x80\x9d298\nClearly, the committee\xe2\x80\x99s proposed amendment on arms, like Madison\xe2\x80\x99s and like\nAdams\xe2\x80\x99s, was understood to protect an individual right.\nIn floor debate that began in mid-August, the focus was on the concluding\nexemption for conscientious objectors and thus on militia service rather than \xe2\x80\x9cthe\nright of the people\xe2\x80\x9d that the committee\xe2\x80\x99s draft secured. Representative Gerry of\nMassachusetts, who had refused to sign the Constitution and was a leading AntiFederalist,299 objected that this final clause would enable the federal government to\n\xe2\x80\x9cdeclare who are those religiously scrupulous, and prevent them from bearing\narms.\xe2\x80\x9d This, he warned, \xe2\x80\x9ctogether with [Congress\xe2\x80\x99s] other powers,\xe2\x80\x9d would enable\nCongress to \xe2\x80\x9cdestroy the militia\xe2\x80\x9d and establish \xe2\x80\x9ca standing army, the bane of\nliberty.\xe2\x80\x9d300 He moved to narrow the clause, but after a debate, including an effort to\ndelete it, the House approved the committee\xe2\x80\x99s draft. Immediately after, it resoundingly defeated another Anti-Federalist\xe2\x80\x99s motion to require a supermajority to\nauthorize a standing army in peacetime.301\nIt does not appear from the debates that any congressman shared Gerry\xe2\x80\x99s concern, but, in any event, his concern seems more consistent with a view that the\namendment secured an individual right than with the alternative views. Gerry\npresumed that the first two clauses\xe2\x80\x94praising the well-regulated militia and setting\nout the right of the people\xe2\x80\x94would not suffice to protect the militia in the face of\naffirmative federal efforts to undermine it. The individual right was inadequate to\ndo so. That understanding is consistent with the individual right view, as we\nexplained above in Part II.C. It also was the understanding, and concern, implicit\nin the dual recommendations of Virginia, North Carolina, and the Pennsylvania\nMinority, which sought separately to protect both state militia powers and the\nindividual right to arms. In addition, if the \xe2\x80\x9cright of the people . . . to bear arms\xe2\x80\x9d\nmeant some right restricted to serving in an organized militia, rather than a\npersonal right, Gerry\xe2\x80\x99s concern would not have made sense: Persons whom\nCongress declared religiously scrupulous pursuant to the proposed amendment,\nalthough therefore not \xe2\x80\x9ccompelled to bear arms\xe2\x80\x9d in the militia, still would, under a\n298\n\nFrom the Bos. Indep. Chronicle, Phila. Indep. Gazetteer, Aug. 20, 1789, at 2, excerpted in Halbrook, Right to Bear Arms, supra note 56, at 45.\n299\nAt the Constitutional Convention, Gerry had bitterly opposed the federal powers over the militia\nin Article I, Section 8, Clause 16. Madison, Notes of Debates, supra note 44, at 513\xe2\x80\x9316 (Aug. 23,\n1787). Regarding his Anti-Federalist writings during ratification, see 1 Schwartz, Bill of Rights, supra\nnote 67, at 464\xe2\x80\x9365, 480\xe2\x80\x9393, he had attended the Massachusetts Convention as an invited observer and\nhelped lead the opposition, id. at 465. Presumably, therefore, he supported Samuel Adams\xe2\x80\x99s proposed\namendments, even though he also desired additional ones. See id. at 486\xe2\x80\x9389.\n300\nRemarks of Gerry (Aug. 17, 1789), reprinted in Creating the Bill of Rights, supra note 82, at\n182.\n301\nSee Creating the Bill of Rights, supra note 82, at 183\xe2\x80\x9385.\n\n199\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nquasi-collective right view of the other clauses of the amendment, have some right\nto do so, and thus Congress could not, as Gerry charged, \xe2\x80\x9cprevent them\xe2\x80\x9d from\nserving.\nAfter more debate over the conscientious objector clause on August 20, the\nHouse added back \xe2\x80\x9cin person\xe2\x80\x9d at the end and approved the draft.302 It attached all\nof the amendments to the end of the Constitution rather than incorporating them,\nbut no substantive change was intended.303 The right of the people to keep and bear\narms was the fifth of the seventeen proposed amendments that the House then sent\nto the Senate.304\nAn Anti-Federalist who during the ratification debates had written widely\npublished essays as \xe2\x80\x9cCentinel\xe2\x80\x9d was enraged enough by the House\xe2\x80\x99s failure to\nrestrict federal, and protect state, power that he took up his pen again, as Centinel\nRevived.305 He denounced \xe2\x80\x9cthe partial amendments making [sic] by Congress\xe2\x80\x9d and\nlamented that, although \xe2\x80\x9cmany of these amendments are very proper and necessary, yet . . . the constitution is suffered to retain powers that may not only defeat\ntheir salutary operation, but may, and incontrovertibly will be so decisively\ninjurious as to sweep away every vestige of liberty.\xe2\x80\x9d He highlighted the Second\nAmendment for criticism:\nIt is remarkable that this article only makes the observation, \xe2\x80\x9cthat a\nwell regulated militia, composed of the body of the people, is the\nbest security of a free state\xe2\x80\x9d; it does not ordain, or constitutionally\nprovide for, the establishment of such a one. The absolute command\nvested by other sections in Congress over the militia, are not in the\nleast abridged by this amendment.306\n\n302\nSee id. at 198\xe2\x80\x9399. The addition may have been an effort to partially satisfy Representative Scott,\nby ensuring that Congress could at least require conscientious objectors to provide an equivalent.\nUnlike Gerry, he objected to the exemption because he worried that citizens, rather than Congress,\nwould abuse it, with the result that \xe2\x80\x9cyou can never depend upon your militia.\xe2\x80\x9d He added, \xe2\x80\x9cThis will\nlead to the violation of another article in the constitution, which secures to the people the right of\nkeeping arms, as in this case you must have recourse to a standing army.\xe2\x80\x9d Id. at 198. While this cryptic\nand elliptical comment conceivably might be construed to suggest a quasi-collective right, its meaning\nis far from clear, and we find little probative value in it. The Fifth Circuit in Emerson reasonably\nconcluded that Scott\xe2\x80\x99s comment \xe2\x80\x9cdoes not plainly lend support to any of the Second Amendment\nmodels,\xe2\x80\x9d 270 F.3d at 248, and the Ninth Circuit in Silveira did not cite it, see 312 F.3d at 1085\xe2\x80\x9386.\n303\nSee Creating the Bill of Rights, supra note 82, at 117\xe2\x80\x9328 (debate of Aug. 13, 1789); id. at 197\xe2\x80\x93\n98 (debate of Aug. 19, 1789).\n304\nId. at 37\xe2\x80\x9341.\n305\n\xe2\x80\x9cThe most prolific and one of the best known of the Anti-Federalist essayists was the Centinel,\nwhose essays appeared in the Philadelphia Independent Gazetteer and the Philadelphia Freeman\xe2\x80\x99s\nJournal and were widely reprinted.\xe2\x80\x9d 2 Complete Anti-Federalist, supra note 101, at 130. He published\ntwelve essays as Centinel Revived. Id.\n306\nCentinel (Revived), No. 29 (1789), Phila. Indep. Gazetteer, Sept. 9, 1789, quoted in Emerson,\n270 F.3d at 255.\n\n200\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nCentinel understood the Second Amendment not to constrain Congress\xe2\x80\x99s Article I,\nSection 8 \xe2\x80\x9cabsolute command\xe2\x80\x9d over the militia or otherwise secure any power of\nthe states to maintain one (whether by creating a \xe2\x80\x9cright\xe2\x80\x9d of states or of the\nmembers of their organized militia units), and understood the Amendment\xe2\x80\x99s\nprefatory praise of the militia\xe2\x80\x94a mere \xe2\x80\x9cobservation\xe2\x80\x9d\xe2\x80\x94not to have any operative\neffect. The reasonable inference is that he viewed the \xe2\x80\x9cright of the people to keep\nand bear arms\xe2\x80\x9d as one belonging to individuals.\nThe Senate reduced the House\xe2\x80\x99s proposed amendments to twelve in early September.307 In so doing, it made three changes in what would become the Second\nAmendment: (1) deleting \xe2\x80\x9ccomposed of the body of the people,\xe2\x80\x9d (2) replacing \xe2\x80\x9cthe\nbest\xe2\x80\x9d with \xe2\x80\x9cnecessary to the,\xe2\x80\x9d and (3) deleting the conscientious objector clause. It\nalso voted down a motion to insert \xe2\x80\x9cfor the common defense\xe2\x80\x9d immediately after\n\xe2\x80\x9cto keep and bear Arms.\xe2\x80\x9d308 The Senate deliberated in secret, and its minutes are\nconclusory, so it is difficult to discern the reasons for these changes. One could\nargue that some of them (deletion of the conscientious objector clause and\nrejection of the \xe2\x80\x9ccommon defense\xe2\x80\x9d clause) tend to support the individual right\nview of the Amendment, although contrary arguments are no doubt possible.309\nOne also could argue that deletion of the definition of the militia cuts against the\nindividual right view\xe2\x80\x99s reading of the prefatory language, although there, too, a\ncounter-argument is possible.310 Because of the lack of historical records and the\nmultiple possible explanations, we are reluctant to attribute any material significance to these actions.\nWe do, however, find it significant that the Senate rejected a motion to add a\nseparate amendment securing state power to organize, arm, and discipline the\nmilitias if Congress should \xe2\x80\x9comit or neglect\xe2\x80\x9d to do so.311 Notwithstanding the lack\nof historical records of the deliberations on this motion, the broader historical\n307\nThe Senate combined provisions (such as in creating what became the First and Fifth Amendments) and rejected House provisions regulating appeals to the Supreme Court; applying religion,\nspeech, press, and criminal jury protections to the states; and prohibiting violations of the separation of\npowers. See 2 Schwartz, Bill of Rights, supra note 67, at 1145\xe2\x80\x9347 (summarizing changes); compare\nCreating the Bill of Rights, supra note 82, at 37\xe2\x80\x9341 (House proposals), with id. at 47\xe2\x80\x9349 (Senate).\n308\nSee Creating the Bill of Rights, supra note 82, at 39 n.13; 2 Schwartz, Bill of Rights, supra note\n67, at 1153\xe2\x80\x9354 (Sen. Journal).\n309\nSee Uviller & Merkel, supra note 45, 76 Chi.-Kent L. Rev. at 507 (theorizing that vote on\ncommon defense clause was prompted by desire to avoid either redundancy or the objection that the\namendment failed to protect militia service in defense of a state, as opposed to the \xe2\x80\x9ccommon\xe2\x80\x9d national\ndefense). The deletion of the troublesome conscientious objector clause could have been simply\nbecause of a desire, as voiced in the House, to leave the matter to Congress\xe2\x80\x99s discretion, see, e.g.,\nRemarks of Rep. Benson (Aug. 17, 1789), reprinted in Creating the Bill of Rights, supra note 82, at\n184, without affecting the right one way or the other.\n310\nOne could argue that the definition was considered superfluous. See 2 Schwartz, Bill of Rights,\nsupra note 67, at 1145 (observing that Senate in its revisions of the House proposals generally\n\xe2\x80\x9ctighten[ed] up the language of the House version, striking out surplus wording and provisions.\xe2\x80\x9d); Part\nII.C.2\xe2\x80\x934 (discussing meaning of \xe2\x80\x9cMilitia\xe2\x80\x9d at the time).\n311\n2 Schwartz, Bill of Rights, supra note 67, at 1152 (Sen. Journal).\n\n201\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\ncontext suggests that, had Congress sought to secure the states\xe2\x80\x99 ability to maintain\norganized militia units, adopting this provision is how it would have done so. It is\nhard to ascribe this vote to a view that the proposed amendment was redundant\nwith the right of the people to keep and bear arms: Not only are the texts of the\ntwo provisions markedly different, but also, as explained in the previous subpart,\nthe Virginia and North Carolina Ratifying Conventions (from which the rejected\nlanguage was directly taken) had made distinct proposals, one covering the right to\narms and the other covering state power over the militia (the Pennsylvania\nMinority also had done this). In addition, the Senate was even more Federalist\nthan the House (Lee and Grayson of Virginia being the only Anti-Federalists\namong the 22 senators).312 As already noted, the Federalists were determined to\navoid amendments affecting the federal-state balance of power and instead to\nfocus on individual rights. If senators had thought that what became the Second\nAmendment had the effect of this rejected provision, one would have expected\nthem to have refused to approve it as well. Finally, the two Anti-Federalist\nsenators acknowledged that their efforts to obtain amendments affecting the\nfederal-state balance had failed. Senator Lee, like Centinel, complained, in a letter\nto Patrick Henry, that the amendments were inadequate for \xe2\x80\x9csecuring the due\nAuthority of the States.\xe2\x80\x9d313 Senators Lee and Grayson jointly informed the Virginia\nlegislature of their failure to secure the \xe2\x80\x9cRadical Amendments proposed by the\nConvention.\xe2\x80\x9d314 Thus, the Senate continued the House\xe2\x80\x99s approach\xe2\x80\x94rejecting\nattempts to restrict congressional powers or augment state powers, while securing\nindividual rights in the hope of creating a national consensus in favor of the new\ngovernment.\nOn September 24, 1789, a conference committee agreed to some changes in the\nSenate\xe2\x80\x99s proposed amendments, but there was no change in (or effort to change)\nthe Senate\xe2\x80\x99s version of what became the Second Amendment. Congress, through\nthe President, then sent the twelve proposed amendments to the then-eleven states\nfor ratification and to North Carolina and Rhode Island (which still had not ratified\nthe Constitution).315 The records of the state ratifying conventions are sparse and\ndo not appear to provide any significant material concerning the meaning of the\n312\nSee Creating the Bill of Rights, supra note 82, at xii; Letter from Madison to Jefferson (Mar. 29,\n1789), reprinted in id. at 225.\n313\nLetter from Lee to Henry (Sept. 14, 1789), reprinted in id. at 295. The Senate also, like the\nHouse, had rejected a proposal to append to what became the Second Amendment a supermajority\nrequirement for peacetime standing armies, a provision to help ensure that Congress would depend on\nand therefore provide for the militia. 2 Schwartz, Bill of Rights, supra note 67, at 1149 (Sen. Journal);\nsee Creating the Bill of Rights, supra note 82, at 38\xe2\x80\x9339 n.13.\n314\nLetter from Lee and Grayson to the Speaker of the Virginia House of Delegates (Sept. 28, 1789),\nreprinted in Creating the Bill of Rights, supra note 82, at 299.\n315\nSee id. at 49\xe2\x80\x9350 (Conference Committee Report and House Resolution); id. at 296\xe2\x80\x9398 (various\nletters of Sept. 1789, including by Madison, detailing concerns with certain Senate revisions but not\nmentioning Second Amendment); 2 Schwartz, Bill of Rights, supra note 67, at 1171\xe2\x80\x9373 (regarding\npresidential transmittal).\n\n202\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nSecond Amendment right.316 The states approved ten of the twelve proposed\namendments, and in March 1792, Secretary of State Jefferson officially declared\nthe Bill of Rights ratified.317\nThe history in this subpart of the immediate development of the Second\nAmendment reveals a right consistent with, and developed from, the individual\nright to arms that had been inherited from England, recognized and invoked in\nrevolutionary America, and codified to various extents in early state declarations\nof rights. In addition, the early states prized a well-regulated citizen militia, as\nsome of their declarations recognized, and understood the individual right to arms\nto facilitate such a militia. The Second Amendment, following the lead of several\nof the ratifying conventions, reflects the contemporaneous understanding of this\nrelationship; in so doing, it grants the right to \xe2\x80\x9cthe people,\xe2\x80\x9d not to the \xe2\x80\x9cMilitia\xe2\x80\x9d\n(much less to members of select militia units), or to the \xe2\x80\x9cState.\xe2\x80\x9d Nor does the\nhistory support limiting the right secured by the Amendment to any of these\nentities. Indeed, those who wanted to ensure that the states could have fully\nfunctioning militias proposed a separate amendment, expressly protecting state\npower. Their proposals failed.318 Thus, the history of the Amendment, like its text,\nindicates that the Second Amendment\xe2\x80\x99s \xe2\x80\x9cright of the people to keep and bear\nArms\xe2\x80\x9d is not collective or quasi-collective but rather is a personal right that\nbelongs to individuals.\nIV. The Early Interpretations\nOur analysis of the Second Amendment\xe2\x80\x99s text and history in the two preceding\nparts of this memorandum is supported by the views of those who first interpreted\nthe Amendment. In the generations immediately following its ratification, the\nthree leading commentators to consider the Second Amendment each recognized\nthat its right of the people to keep and bear arms belonged to individuals, not to\nstates and not just to members of militias (whether of organized, select militia\nunits or even of the citizen militia). Nearly all of the discussions of the antebellum\ncourts, including in the leading cases, understood the right in the same way,\nwhether they were considering the Second Amendment or similar provisions in\n316\nSee 2 Schwartz, Bill of Rights, supra note 67, at 1171\xe2\x80\x9372 (\xe2\x80\x9c[W]e know practically nothing about\nwhat went on in the state legislatures during the ratification process\xe2\x80\x9d and \xe2\x80\x9c[e]ven the contemporary\nnewspapers are virtually silent.\xe2\x80\x9d); Emerson, 270 F.3d at 255 (without comment, omitting discussion of\nratification); Silveira, 312 F.3d at 1086 (same).\n317\n2 Schwartz, Bill of Rights, supra note 67, at 1171, 1203. One of the two not then ratified was\nratified in 1992 as the Twenty-Seventh Amendment, which relates to congressional pay. The other\naddressed the size of the House.\n318\nAnd even if one believes, contrary to the historical record, that Anti-Federalists\xe2\x80\x99 concerns about\nthe militia were resolved in their favor, the Anti-Federalists\xe2\x80\x99 insistence on the superiority of a citizen\nmilitia to a select militia, noted at the beginning of Part III.C, would lead to the understanding of the\nAmendment\xe2\x80\x99s prefatory clause that we set out in Part II.C, an understanding that is, as we explained,\nfully consistent with the individual right view of the Second Amendment.\n\n203\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nstate constitutions. This early understanding of a personal right continued at least\nthrough Reconstruction. The modern alternative views of the Second Amendment\ndid not take hold until 1905, well over a century after the Amendment had been\nratified.\nA. The First Commentators\nIn the first few decades after the Second Amendment was drafted and ratified,\neach of the three leading commentators on the Constitution addressed it: St.\nGeorge Tucker, William Rawle, and Joseph Story. Each agreed that it protects an\nindividual right. Less prominent early commentators also concurred with this\ninterpretation.\nTucker, a judge and law professor from Virginia, published in 1803 an edition\nof Blackstone\xe2\x80\x99s Commentaries to which he had added annotations and essays\nexplaining the relation of American law, including the new Constitution, to\nEngland\xe2\x80\x99s. Tucker\xe2\x80\x99s Blackstone quickly became the leading American authority\non both Blackstone and American law.319\nTucker addressed the Second Amendment at several points. He first did so,\nrepeatedly, in his introductory View of the Constitution of the United States. He\ntied the federal right, as Blackstone had the English one, to the individual, natural\nright of self-defense and to the freedom of the state. After quoting the Amendment, he wrote:\nThis may be considered as the true palladium of liberty . . . . The\nright of self defence is the first law of nature: in most governments it\nhas been the study of rulers to confine this right within the narrowest\nlimits possible. Wherever standing armies are kept up, and the right\nof the people to keep and bear arms is, under any colour or pretext\nwhatsoever, prohibited, liberty, if not already annihilated, is on the\nbrink of destruction.320\nHe condemned the use of the game laws in England as a pretext to disarm ordinary\npeople\xe2\x80\x94the \xe2\x80\x9cfarmer, or inferior tradesman, or other person not qualified to kill\ngame.\xe2\x80\x9d321 And he grouped the Second Amendment right with those of the First,\nconfirming that all belonged to individuals:\n\n319\n\nSee Clyde N. Wilson, Forward, in St. George Tucker, View of the Constitution of the United\nStates, with Selected Writings at viii\xe2\x80\x93ix (1999); Paul Finkelman & David Cobin, An Introduction to St.\nGeorge Tucker\xe2\x80\x99s Blackstone\xe2\x80\x99s Commentaries, in 1 Tucker\xe2\x80\x99s Blackstone, supra note 60, at v\xe2\x80\x93xii; 1 id.,\nEditor\xe2\x80\x99s Preface at v.\n320\n1 Tucker\xe2\x80\x99s Blackstone, supra note 60, Note D, at 300 (ellipsis in original).\n321\nId.\n\n204\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nIf, for example, a law be passed by congress, prohibiting the free exercise of religion, according to the dictates, or persuasions of a man\xe2\x80\x99s\nown conscience; or abridging the freedom of speech, or of the press;\nor the right of the people to assemble peaceably, or to keep and bear\narms; it would, in any of these cases, be the province of the judiciary\nto pronounce whether any such act were constitutional, or not; and if\nnot, to acquit the accused . . . .322\nSecond, in annotating Blackstone\xe2\x80\x99s description, in Book I, Chapter 1, of the\nindividual English subject\xe2\x80\x99s right to have and use arms for self-defense (discussed\nabove in Part III.A), Tucker praised the Second Amendment \xe2\x80\x9cright of the people\xe2\x80\x9d\nfor being \xe2\x80\x9cwithout any qualification as to their condition or degree, as is the case\nin the British government\xe2\x80\x9d (under England\xe2\x80\x99s Bill of Rights) and again denounced\nthe game laws, by which \xe2\x80\x9cthe right of keeping arms is effectually taken away from\nthe people of England.\xe2\x80\x9d323 Finally, in a note to one of Blackstone\xe2\x80\x99s (critical)\ndiscussions of the game laws, Tucker once more attacked them, because \xe2\x80\x9cit seems\nto be held\xe2\x80\x9d that no one but the very rich has \xe2\x80\x9cany right to keep a gun in his house\xe2\x80\x9d\nor \xe2\x80\x9ckeep a gun for their defence,\xe2\x80\x9d the result being that \xe2\x80\x9cthe whole nation are\ncompletely disarmed, and left at the mercy of the government,\xe2\x80\x9d and \xe2\x80\x9cthe mass of\nthe people\xe2\x80\x9d are kept \xe2\x80\x9cin a state of the most abject subjection.\xe2\x80\x9d By contrast, \xe2\x80\x9cin\nAmerica we may reasonably hope that the people will never cease to regard the\nright of keeping and bearing arms as the surest pledge of their liberty.\xe2\x80\x9d324\nIn all of these discussions, the right belonged to individuals\xe2\x80\x94to persons availing themselves of the natural, individual \xe2\x80\x9cright of self defence,\xe2\x80\x9d to the \xe2\x80\x9caccused\xe2\x80\x9d\nseeking judicial review of a violation of the Second Amendment, and to \xe2\x80\x9cthe\nmass\xe2\x80\x9d of ordinary people able to defend themselves because protected by the\nSecond Amendment from class-based pretexts for disarmament. Tucker understood both the English and American rights to arms to belong to individuals, and\nhe thought the latter more secure and broad-based.\nNowhere did Tucker suggest that the right of the people to keep and bear arms\ndepended on a person\xe2\x80\x99s enrollment and exercise in the citizen militia (much less\nhis membership in an organized, select militia unit) or that it was a \xe2\x80\x9cright\xe2\x80\x9d that\nbelonged to state governments. He did elsewhere, in discussing the Militia\nClauses, point out that the Second Amendment eliminated \xe2\x80\x9call room for doubt, or\n322\nId. at 357; see id. at 315\xe2\x80\x9316 (explaining that, whereas in England, \xe2\x80\x9cthe game-laws, as was before\nobserved, have been converted into the means of disarming the body of the people,\xe2\x80\x9d and statutes have\nrestricted assemblies, the Constitution will not \xe2\x80\x9cpermit any prohibition of arms to the people; or of\npeaceable assemblies by them\xe2\x80\x9d); id. at 289 (describing hypothetical law \xe2\x80\x9cprohibiting any person from\nbearing arms\xe2\x80\x9d as violating the Second Amendment).\n323\n2 id. at *143\xe2\x80\x9344 & nn. 40\xe2\x80\x9341. See also id. at *145 n.42 (again criticizing game laws).\n324\n3 id. at *414 n.3; see also Parts III.A (discussing right to arms in England) & III.B.2 (discussing\ndoubts whether the relaxation of English game laws in 1700s succeeded as a practical matter in\nenabling commoners to keep arms).\n\n205\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nuneasiness\xe2\x80\x9d on whether the federal government could prohibit states from simply\nproviding arms for their militias (doubt he rightly found questionable given that\nthe original Constitution left a concurrent arming power in the states).325 Tucker\ndid not suggest here that he thought the Amendment had only this effect, and his\nother discussions confirm that he did not so understand it.\nWilliam Rawle of Pennsylvania published his View of the Constitution of the\nUnited States of America in 1825, with a second edition appearing in 1829. After\nhaving turned down President Washington\xe2\x80\x99s offer to be the first attorney general,\nhe had served in the Pennsylvania Assembly when it ratified the Bill of Rights.\nHis commentary, like Tucker\xe2\x80\x99s, gained wide prominence.326\nRawle analyzed the Second Amendment in a chapter entitled \xe2\x80\x9cOf the Restrictions on the Powers of Congress . . . [,] Restrictions on the Powers of States\nand Security to the Rights of Individuals,\xe2\x80\x9d by which he meant, respectively,\nArticle I, Section 9; Article I, Section 10; and the first eight amendments of the\nBill of Rights.327 He started with the Second Amendment\xe2\x80\x99s preface, giving to it,\nincluding the word \xe2\x80\x9cMilitia,\xe2\x80\x9d precisely the sense and significance that emerges\nfrom our analysis above, and making clear that the substantive right belonged to\nthe ordinary citizen:\nIn the second article, it is declared, that a well regulated militia is\nnecessary to the security of a free state; a proposition from which\nfew will dissent. Although in actual war, the services of regular\ntroops are confessedly more valuable; yet, while peace prevails, and\nin the commencement of a war before a regular force can be raised,\nthe militia form the palladium of the country. . . . That they should\nbe well regulated, is judiciously added. . . . The duty of the state\ngovernment is, to adopt such regulations as will tend to make good\nsoldiers with the least interruptions of the ordinary and useful occupations of civil life. . . .\nThe corollary, from the first position, is, that the right of the people\nto keep and bear arms shall not be infringed.\n325\n1 id. at 273. Tucker thought the federal powers in Article I, Section 8, Clause 16, to provide for\n\xe2\x80\x9corganizing\xe2\x80\x9d and \xe2\x80\x9cdisciplining\xe2\x80\x9d the militia were exclusive, id. at 180\xe2\x80\x9381, but that states retained\n\xe2\x80\x9cconcurrent, though perhaps subordinate\xe2\x80\x9d powers to provide for \xe2\x80\x9carming\xe2\x80\x9d their militias and \xe2\x80\x9cto call\nthem forth when necessary for their internal defence,\xe2\x80\x9d id. at 182, 183. His only other reference to the\nSecond Amendment in connection with the militia was in a note to Blackstone\xe2\x80\x99s discussion of the\nmilitia, in which Tucker collected all references in the Constitution to the militia, along with the Third\nAmendment, Virginia laws, and the federal Militia Act. 2 id. at *409 n.1.\n326\nSee Hardy, supra note 33, 9 Harv. J.L. & Pub. Pol\xe2\x80\x99y at 613. Rawle did agree to be United States\nAttorney for the District of Pennsylvania. See, e.g., United States v. Fries, 3 U.S. (3 Dall.) 515, 517\n(C.C.D. Pa. 1799).\n327\nWilliam Rawle, A View of the Constitution of the United States of America 115 (2d ed. 1829;\nreprint 1970) (font altered; emphasis added).\n\n206\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nThe prohibition is general. No clause in the Constitution could by\nany rule of construction be conceived to give to congress a power to\ndisarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind\npursuit of inordinate power, either should attempt it, this amendment\nmay be appealed to as a restraint on both.328\nBoth Rawle\xe2\x80\x99s language\xe2\x80\x94the Amendment\xe2\x80\x99s prohibition \xe2\x80\x9cis general\xe2\x80\x9d and protects\nthe arms of \xe2\x80\x9cthe people\xe2\x80\x9d\xe2\x80\x94and his view of the Second Amendment as applying to\nthe states and restricting their power indicate that he saw the right as individual,\nnot as collective or quasi-collective.\nTwo additional points further show that Rawle viewed the right as belonging to\nindividuals. Like Tucker, he favorably contrasted the right of the people that the\nSecond Amendment secured with the more selective individual right in England\nunder the aristocratic game laws, including a summary of Blackstone\xe2\x80\x99s critique of\nthose laws. In addition, he expressly recognized, as had Blackstone, Tucker, and,\nin varying degrees, the Pennsylvania Minority, Samuel Adams, and the New\nHampshire Ratifying Convention, that the right provided no warrant to breach the\npeace, including by inciting reasonable fear of a breach.329 This recognition\nindicates an individual right view because there is no need for ordinary criminal\nlaw to oversee either the actions of states in regulating their militias or the bearing\nof arms by members of a state\xe2\x80\x99s militia in connection with their service and under\nstate regulation.\nRawle further explained the individual right view\xe2\x80\x99s understanding of the Second Amendment preface when discussing the President\xe2\x80\x99s limited power to\ncommand the militia. Although not mentioning the Amendment expressly, he\nnoted: \xe2\x80\x9cIn a people permitted and accustomed to bear arms, we have the rudiments\nof a militia, which properly consists of armed citizens, divided into military bands,\nand instructed at least in part in the use of arms for the purposes of war.\xe2\x80\x9d330 Thus,\nthe \xe2\x80\x9cpeople\xe2\x80\x9d of the country, as individuals, keep and bear arms for private\npurposes; they also form the militia; and the former facilitates the latter, but only\nas a rudiment. That is why the individual right is a \xe2\x80\x9ccorollary\xe2\x80\x9d from the need for a\nmilitia.\nThe same view appears in the influential 1833 Commentaries on the Constitution of the United States of Supreme Court Justice and law professor Joseph Story,\n328\n\nId. at 125\xe2\x80\x9326.\nId. at 126. Regarding Blackstone, see Part III.A above. For Tucker\xe2\x80\x99s annotations of some of\nBlackstone\xe2\x80\x99s discussions of improper uses of arms, see 5 Tucker\xe2\x80\x99s Blackstone, supra note 60, at *126,\n*142\xe2\x80\x9349, *175. Regarding the Pennsylvania Minority, Adams, and New Hampshire, see Part III.C.1\nabove.\n330\nRawle, View of the Constitution, supra note 327, at 153. Significantly, in separately discussing\nthe Militia Clauses of Article I, Section 8, Rawle made no mention of the Second Amendment. Id. at\n111\xe2\x80\x9312.\n329\n\n207\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nas well as in his later Familiar Exposition of the Constitution. The Commentaries\nappeared first in a three-volume set and then, a few months later, in a one-volume\nabridgement by Story (the \xe2\x80\x9cAbridgement\xe2\x80\x9d).331\nStory devoted a chapter of his Abridgement to the Bill of Rights. Before turning\nto its provisions, he recounted the debate over whether to add one and identified\nseveral purposes, all related to individual rights: (1) to prevent powers granted to\nthe government from being exercised in a way \xe2\x80\x9cdangerous to the people\xe2\x80\x9d; (2) as\npart of \xe2\x80\x9cthe muniments of freemen, showing their title to protection,\xe2\x80\x9d to ensure\nagainst an \xe2\x80\x9cextravagant or undue extention of\xe2\x80\x9d powers granted; and (3) to protect\nminorities.332 He then singled out those amendments that did not relate to judicial\nprocedure (the First, Second, Third, Fourth, Eighth, Ninth, and Tenth) as those\naddressing \xe2\x80\x9csubjects properly belonging to a bill of rights.\xe2\x80\x9d333\nWith regard to the Second Amendment, he first explained the importance of the\nmilitia for \xe2\x80\x9ca free country,\xe2\x80\x9d including as a check on \xe2\x80\x9cdomestic usurpations of\npower,\xe2\x80\x9d and the hazards \xe2\x80\x9cfor a free people\xe2\x80\x9d of keeping up \xe2\x80\x9clarge military establishments and standing armies in time of peace.\xe2\x80\x9d He linked these policies to the\nright: \xe2\x80\x9cThe right of the citizens to keep, and bear arms has justly been considered,\nas the palladium of the liberties of a republic; since it offers a strong moral check\nagainst the usurpation and arbitrary power of rulers; and will generally, even if\nthese are successful in the first instance, enable the people to resist and triumph\nover them.\xe2\x80\x9d334 In the unabridged version, he cited Tucker, Rawle, and the House of\nRepresentatives\xe2\x80\x99 first day of debate on the Amendment in support of this sentence.335\nBy paraphrasing the \xe2\x80\x9cright of the people\xe2\x80\x9d as the \xe2\x80\x9cright of the citizens\xe2\x80\x9d\xe2\x80\x94not of\nstates or members of their militias\xe2\x80\x94as well as by citing Tucker and Rawle\xe2\x80\x99s\ndiscussions (including borrowing from Tucker\xe2\x80\x99s \xe2\x80\x9cpalladium\xe2\x80\x9d language), Story left\nno doubt that he considered the right to belong to individuals. He reinforced this\npoint in an additional paragraph in the unabridged version, citing both Blackstone\xe2\x80\x99s discussion of the \xe2\x80\x9csimilar provision\xe2\x80\x9d in England\xe2\x80\x94clearly an individual\nright, as explained above\xe2\x80\x94and Tucker\xe2\x80\x99s discussion of what Story called the\n\xe2\x80\x9cdefensive privilege\xe2\x80\x9d there.336 In his Familiar Exposition, Story began his discus331\n\nRonald D. Rotunda & John E. Nowak, Introduction, in Story, Abridgement, supra note 66, at xi\xe2\x80\x93\n\nxiv.\n332\n\nId. \xc2\xa7\xc2\xa7 980\xe2\x80\x93982, at 696\xe2\x80\x9397.\nId. \xc2\xa7 984, at 698; see id. \xc2\xa7\xc2\xa7 985\xe2\x80\x931011, at 698\xe2\x80\x93714.\n334\nId. \xc2\xa7 1001, at 708.\n335\n3 Story, Commentaries, supra note 75, \xc2\xa7 1890, at 746 n.1. In United States v. Miller, 307 U.S.\n174, 182 n.3 (1939), the Supreme Court included this passage (from a later edition) in a string citation.\n336\n3 Story, Commentaries, supra note 75, \xc2\xa7 1891, at 747. In a separate chapter, the full Commentaries also included an extended discussion of the Anti-Federalist charges leveled against the Militia\nClauses, including the charge that the federal militia powers would be exclusive (which Story found\nunpersuasive). Story alluded to the failure of proposals explicitly to protect state militia powers. Id.\n\xc2\xa7\xc2\xa7 1198\xe2\x80\x931202, at 83\xe2\x80\x9387.\n333\n\n208\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nsion of the Amendment with an even more explicit statement: \xe2\x80\x9cOne of the\nordinary modes, by which tyrants accomplish their purposes without resistance, is,\nby disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.\xe2\x80\x9d337\nThus Story, like Tucker, Rawle, and others, recognized that the right that the\nSecond Amendment secured was an individual one. He also saw, as they had, that\nthis personal right was necessary for ensuring a well-regulated militia of the\npeople. But he likewise recognized, consistent with the individual right view, that\nsuch a right was not sufficient for ensuring such an entity, wondering how it\nwould be \xe2\x80\x9cpracticable to keep the people duly armed without some organization,\xe2\x80\x9d\nand lamenting the decline of militia discipline.338\nLess prominent commentators shared Tucker, Rawle, and Story\xe2\x80\x99s view of the\nSecond Amendment as securing an individual right. Most significant of these was\nprobably Henry Tucker (son of St. George). In an 1831 commentary, he explained:\nThe right of bearing arms\xe2\x80\x94which with us is not limited and restrained by an arbitrary system of game laws as in England; but is\npractically enjoyed by every citizen, and is among his most valuable\nprivileges, since it furnishes the means of resisting as a freeman\nought, the inroads of usurpation.339\nHe also noted that the right inherited from England and expounded by Blackstone\n\xe2\x80\x9cis secured with us by\xe2\x80\x9d the Second Amendment.340 And Jonathan Elliot, in his\nrecord of the ratification debates first published in the 1830s, provided an index of\nthe Constitution that, under the heading \xe2\x80\x9cRights of the citizen declared to be,\xe2\x80\x9d\nlisted each of the rights of the first nine amendments of the Bill of Rights,\nincluding \xe2\x80\x9cTo keep and bear arms.\xe2\x80\x9d341 He grouped the right secured by the Second\nAmendment with the unquestionably individual rights secured by its neighbors.\nThere was no entry in the index for the militia or its members, aside from reference to the congressional powers in Article I, Section 8, and none of his entries\nregarding the states included reference to the militia or the Second Amendment.342\nThus, these early commentators were all consistent in recognizing that the Second\n\n337\nJoseph Story, A Familiar Exposition of the Constitution of the United States \xc2\xa7 450, at 319 (1840;\nreprint 1986).\n338\nStory, Abridgement, supra note 66, \xc2\xa7 1001, at 708\xe2\x80\x9309.\n339\nHenry St. George Tucker, Commentaries on the Laws of Virginia 43 (1831).\n340\nId.\n341\nThe Debates in the Several State Conventions on the Adoption of the Federal Constitution xv\n(Jonathan Elliot ed., 2d ed. 1836; reprint 1987).\n342\nFor additional antebellum commentators, see David B. Kopel, The Second Amendment in the\nNineteenth Century, 1998 BYU L. Rev. 1359, 1399\xe2\x80\x931403, 1435\xe2\x80\x9341; see also id. at 1397\xe2\x80\x9398 (discussing Henry Tucker).\n\n209\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nAmendment secures an individual right. They did not even mention possible\nalternative views, whether involving a collective or a quasi-collective \xe2\x80\x9cright.\xe2\x80\x9d\nB. The First Cases\nLike the commentators, the early case law also treated the Second Amendment\nas securing a right of individuals, not a right of governments or those in its service.\nWithout taking any position on the correctness of the courts\xe2\x80\x99 holdings or the\nconstitutionality, under the Second Amendment, of any particular limitations on\nowning, carrying, or using firearms, we find it significant that these decisions\nconsistently understood the right to be an individual one. The earliest cases,\nalthough not numerous, consistently recognized that the right to \xe2\x80\x9cbear\xe2\x80\x9d arms\nbelonged to individuals, just as the right to \xe2\x80\x9ckeep\xe2\x80\x9d them did. Judicial treatment\nbecame more common beginning in the 1840s, mostly because of new prohibitions\non carrying weapons concealed. The courts upheld these prohibitions (some courts\napplying the Second Amendment and some applying similar state provisions), but\nin so doing they all recognized an individual right to arms: All of the decisions\nrecognized an individual right to keep private arms; nearly all, including the\nleading cases, recognized a right of individuals to \xe2\x80\x9cbear\xe2\x80\x9d those arms for private\npurposes; and all recognized some manner of individual right to bear them. Most\nnotably, the Supreme Court of Georgia twice unanimously ruled in favor of\nindividuals on the basis of the Second Amendment.\n1. Cases Before 1840\nThe first of the early cases is Houston v. Moore, in 1820. The Supreme Court,\nin upholding Pennsylvania\xe2\x80\x99s power to try a militiaman for failing to report for\nfederal service in the War of 1812, recognized that states had concurrent power to\nregulate their militias at least when the militias were in the service of their state or\nin the absence of congressional regulation. Yet it did not mention the Second\nAmendment. Justice Story, in dissent, also recognized the concurrent power, and\nhe noted that the Second Amendment was probably irrelevant to the question.343 As\nwe explained above in Part III.C.1, the Anti-Federalists who claimed to fear that\nthe federal militia powers would not allow a concurrent state jurisdiction did not\nrely on the proposals for a right to arms to resolve their concern, but rather\nproposed separate amendments (which failed to pass). It appears that the Court in\nHouston similarly recognized that the Second Amendment did not guard state\npower to maintain militias, whether by creating a collective right of states or a\nquasi-collective right of militiamen to vindicate state power. Otherwise, one would\n\n343\n\nHouston v. Moore, 18 U.S. (5 Wheat.) 1, 16\xe2\x80\x9317, 21\xe2\x80\x9322 (1820) (plurality opinion of Washington,\nJ.); see id. at 34\xe2\x80\x9336 (Johnson, J., concurring); id. at 50\xe2\x80\x9353 (Story, J., dissenting). Story dissented on the\nground that the militia law granted enforcement authority exclusively to federal courts. Id. at 71\xe2\x80\x9372.\n\n210\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nexpect the Court to have discussed it. Thus, Houston, although far from conclusive, lends some support to an individual right view.\nSecond, in Bliss v. Commonwealth (1822), in what appears to be the first judicial interpretation of the right to bear arms in America, a divided highest court of\nKentucky applied that state\xe2\x80\x99s constitutional protection of \xe2\x80\x9cthe right of the citizens\nto bear arms in defense of themselves and the state,\xe2\x80\x9d first adopted in 1792, to void\na ban on wearing certain weapons concealed.344 The state had argued that the ban\nmerely restricted the manner of exercising the right. The court, although not citing\nauthority, gave two primary reasons for rejecting this argument: (1) the right in\n1792 included carrying weapons concealed, and (2) to recognize this one exception would leave no principled basis to reject others, eviscerating the right.345 The\ncourt\xe2\x80\x99s specific holding was rejected thereafter\xe2\x80\x94by courts346 and by the people of\nKentucky, who in their 1850 constitution added a clause allowing laws to prevent\ncarrying concealed arms.347 But the holding was rejected, not on the ground that it\nimproperly recognized a right of individuals to \xe2\x80\x9cbear arms\xe2\x80\x9d (Kentucky\xe2\x80\x99s provision\nremained otherwise unchanged), but rather on the ground that Bliss erred in\ndetermining the right\xe2\x80\x99s scope. Thus Bliss confirms the individual nature of the\nright.\nThird, several early references to the right or to \xe2\x80\x9cbearing arms\xe2\x80\x9d indicate that\ncourts viewed the right as an individual one, or at least that an individual carrying\nweapons and not in militia service could be said to \xe2\x80\x9cbear arms.\xe2\x80\x9d A Virginia\nappellate court in 1824, discussing that state\xe2\x80\x99s restrictions on the rights of free\nblacks\xe2\x80\x94\xe2\x80\x9cmany of which are inconsistent with the letter and spirit of the Constitution, both of this State and of the United States\xe2\x80\x9d\xe2\x80\x94cited the restriction \xe2\x80\x9cupon their\nright to bear arms.\xe2\x80\x9d348 That the restriction involved their rights as individuals is\nevident from Tucker\xe2\x80\x99s summary of the Virginia laws.349 In an 1829 libel case, the\nSupreme Court of Michigan (then a territory) drew a parallel between the freedoms of speech and press and the right of the people to bear arms to explain that\n344\n\n12 Ky. (2 Litt.) 90, 1822 WL 1085. The dissenting judge did not issue an opinion. See id. at *4.\nId. at *2.\n346\nThe first court to depart from Bliss\xe2\x80\x99s holding, the Indiana Supreme Court eleven years later in\nState v. Mitchell, 3 Blackf. 229, 1833 WL 2617, at *1, did not cite its neighboring court or otherwise\nexplain itself, the entire opinion being as follows: \xe2\x80\x9cIt was held in this case, that the statute of 1831,\nprohibiting all persons, except travelers, from wearing or carrying concealed weapons, is not\nunconstitutional.\xe2\x80\x9d We discuss the later antebellum cases in the next subpart.\n347\nSee Ky. Const. art. XIII, \xc2\xa7 25 (1850), reprinted in 3 Federal and State Constitutions, supra note\n78, at 1314.\n348\nAldridge v. Commonwealth, 4 Va. (2 Va. Cas.) 447, 1824 WL 1072, at *3 (Va. Gen. Ct.).\n349\n5 Tucker\xe2\x80\x99s Blackstone, supra note 60, at *175 n.17, \xc2\xb6 7 (listing as among the \xe2\x80\x9coffences against\nthe public police, or [e]conomy,\xe2\x80\x9d the restriction against \xe2\x80\x9cany\xe2\x80\x9d black or mulatto \xe2\x80\x9ckeeping or carrying\nany gun-powder, shot, club, or other weapon,\xe2\x80\x9d including a \xe2\x80\x9cgun\xe2\x80\x9d). See also Waters v. State, 1 Gill. 302,\n1843 WL 3024 (Md.) (explaining, with regard to free blacks, that \xe2\x80\x9claws have been passed to prevent\ntheir migration to this State; to make it unlawful for them to bear arms; to guard even their religious\nassemblages with peculiar watchfulness.\xe2\x80\x9d).\n345\n\n211\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nindividual rights are not unlimited: \xe2\x80\x9cThe constitution of the United States also\ngrants to the citizen the right to keep and bear arms. But the grant of this privilege\ncannot be construed into the right in him who keeps a gun to destroy his neighbor.\xe2\x80\x9d350 And in a jury instruction while riding circuit in 1833, in a case unrelated to\nthe militia, U.S. Supreme Court Justice Baldwin included the Amendment in a list\nof potentially relevant individual rights.351\nLast of the earliest cases is the 1833 decision of the Supreme Court of Tennessee in Simpson v. State.352 The question was the validity of a boilerplate indictment\nalleging that the defendant had appeared in a \xe2\x80\x9cpublic street and highway . . .\narrayed in a warlike manner\xe2\x80\x9d and then \xe2\x80\x9cto the great terror and disturbance of\ndivers good citizens . . . an affray did make . . . against the peace and dignity of the\nstate.\xe2\x80\x9d353 The court held the indictment invalid because it alleged neither fighting\n(an element of \xe2\x80\x9caffray\xe2\x80\x9d) nor any other act likely to have caused public terror and\nindictable at common law. The court reached this conclusion first by considering\nthe common law, particularly as set out by Blackstone. But because there was\nsome uncertainty regarding the common law, the court also relied on the 1796\nTennessee Constitution, which provided \xe2\x80\x9cthat the freemen of this state have a right\nto keep and to bear arms for their common defence.\xe2\x80\x9d354 This right eliminated any\ndoubt whether merely appearing in public armed could create \xe2\x80\x9cterror\xe2\x80\x9d and thus be\ncriminal: \xe2\x80\x9cBy this clause of the constitution, an express power is given and\nsecured to all the free citizens of the state to keep and bear arms for their defence,\nwithout any qualification whatever as to their kind or nature.\xe2\x80\x9d355 The court\nrecognized that individuals could \xe2\x80\x9cbear arms\xe2\x80\x9d for private purposes, just as they\ncould \xe2\x80\x9ckeep\xe2\x80\x9d them, and included self-defense within \xe2\x80\x9ctheir common defence.\xe2\x80\x9d\nThus, in the first four decades after the Founding, the courts were consistent in\nrecognizing that the right to keep and bear arms was a right of individuals,\n\n350\nUnited States v. Sheldon, 5 Blume Sup. Ct. Trans. 337, 1829 WL 3021, at *12 (Mich. Terr.). See\nalso Commonwealth v. Blanding, 20 Mass. (3 Pick.) 304, 338 (1825) (invoking right to keep arms to\ndraw same analogy).\n351\nJohnson v. Tompkins, 13 F. Cas. 840, 850 (C.C.E.D. Pa. 1833) (No. 7,416).\n352\n13 Tenn. (5 Yer.) 356, 1833 WL 1227.\n353\n1833 WL 1227, at *1.\n354\nId. For more regarding the relevant common law, see the discussion in State v. Huntly, 25 N.C.\n(3 Ired.) 418, 1843 WL 891, at *2\xe2\x80\x933 (surveying common law and noting \xe2\x80\x9cthat the carrying of a gun per\nse constitutes no offence\xe2\x80\x9d). See also State v. Langford, 10 N.C. (3 Hawks) 381, 1824 WL 380;\n4 William Blackstone, Commentaries *149; 1 Hawkins, Pleas of the Crown, supra note 177, ch. 63,\n\xc2\xa7 9, at 136. An English case that the court cited in Huntly, predating the English Declaration of Rights,\nhad construed a seemingly restrictive medieval statute as only punishing \xe2\x80\x9cpeople who go armed to\nterrify the king\xe2\x80\x99s subjects,\xe2\x80\x9d not all who go armed. Sir John Knight\xe2\x80\x99s Case, 87 Eng. Rep. 75, 76, 3 Mod.\nRep. 117 (K.B. 1686). The court recognized that \xe2\x80\x9cnow there be a general connivance to gentlemen to\nride armed for their security,\xe2\x80\x9d such that violating the statute required riding \xe2\x80\x9cmalo animo.\xe2\x80\x9d Id., 90 Eng.\nRep. 330, 330, Comberbach Rep. 38.\n355\n1833 WL 1227, at *1.\n\n212\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nallowing both the keeping of private arms and the bearing of them for private\npurposes.\n2. Cases From 1840 to the Civil War\nThe leading case from the antebellum period on the right to bear arms, and the\nfirst major decision, was State v. Reid in 1840. The Supreme Court of Alabama\nunanimously upheld the state\xe2\x80\x99s new ban on carrying guns or knives secretly,\nfinding no violation of the provision in the state\xe2\x80\x99s 1819 constitution that \xe2\x80\x9c[e]very\ncitizen has a right to bear arms, in defence of himself and the State.\xe2\x80\x9d356 In so doing,\nthe court recognized that the provision\xe2\x80\x99s right to \xe2\x80\x9cbear arms\xe2\x80\x9d was a right of an\nindividual, who could bear them to facilitate his self-defense. The court first\nlooked to the origins of the right in the \xe2\x80\x9cprovisions in favor of the liberty of the\nsubject\xe2\x80\x9d in the English Declaration of Rights. Quoting the right of subjects to have\narms for their defense, the court explained: \xe2\x80\x9cThe evil which was intended to be\nremedied by the provision quoted, was a denial of the right of Protestants to have\narms for their defence, and not an inhibition to wear them secretly.\xe2\x80\x9d357\nThe court then adopted the state\xe2\x80\x99s factual argument that carrying weapons\nconcealed did not facilitate self-defense but rather served the purpose of aggression and breaching the peace. The court elaborated in explaining the limits of the\nstate\xe2\x80\x99s power to enact laws regulating \xe2\x80\x9cthe manner in which arms shall be borne\xe2\x80\x9d:\nA statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to\nrender them wholly useless for the purpose of defence, would be\nclearly unconstitutional. But a law which is intended merely to promote personal security, and to put down lawless aggression and violence, and to that end inhibits the wearing of certain weapons, in\nsuch a manner as is calculated to exert an unhappy influence upon\nthe moral feelings of the wearer, by making him less regardful of the\npersonal security of others, does not come in collision with the constitution.358\nThe court thus rejected Bliss\xe2\x80\x99s holding: \xe2\x80\x9c[The constitution] authorizes him to bear\nthem for the purposes of defending himself and the State, and it is only when\ncarried openly, that they can be efficiently used for defence.\xe2\x80\x9d359 If the need for\ndefense were immediate, \xe2\x80\x9cthere can be no necessity for concealing the weapon,\xe2\x80\x9d\nand if it were not immediate, there were legal processes for securing protection. If\n\n356\n\n1 Ala. 612, 1840 WL 229, at *2.\n1840 WL 229, at *2.\n358\nId. at *3.\n359\nId. at *5\xe2\x80\x936.\n357\n\n213\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\na defendant could prove that it was \xe2\x80\x9cindispensable to the right of defence\xe2\x80\x9d for him\nto conceal his weapon, the court might construe the statute not to apply, but Mr.\nReid had not done so.360\nEighteen years later, the same court in Owen v. State reaffirmed Reid in recognizing the constitutionality of a similar statute (the legislature, perhaps prompted\nby Reid, had added an exception for those threatened with or reasonably fearing\nattack). In so doing, the court made explicit what had been implicit in Reid\xe2\x80\x94that\n\xe2\x80\x9ccarries\xe2\x80\x9d in the statute \xe2\x80\x9cwas used as the synonym of \xe2\x80\x98bears.\xe2\x80\x99\xe2\x80\x9d361\nSoon after Reid, the Supreme Court of Georgia, in Nunn v. State, relied on\nReid, as well as Bliss, in unanimously reversing a conviction for openly carrying a\npistol. The court applied the Second Amendment, holding \xe2\x80\x9cthat so far as the\nact . . . seeks to suppress the practice of carrying certain weapons secretly, . . . it is\nvalid, inasmuch as it does not deprive the citizen of his natural right of selfdefence, or of his constitutional right to keep and bear arms. But that so much of\nit, as contains a prohibition against bearing arms openly, is in conflict with the\nConstitution, and void.\xe2\x80\x9d362 As had Reid, Nunn looked for guidance to the right to\nhave and use arms in England. The court viewed that right, the right of the Second\nAmendment, and the rights protected by the states\xe2\x80\x99 constitutions as all securing a\npersonal right of individuals: \xe2\x80\x9cWhen, I would ask, did any legislative body in the\nUnion have the right to deny to its citizens the privilege of keeping and bearing\narms in defence of themselves and their country?\xe2\x80\x9d Likewise, \xe2\x80\x9cthe Constitution of\nthe United States, in declaring that the right of the people to keep and bear arms,\nshould not be infringed, only reiterated a truth announced a century before, in the\nact of 1689.\xe2\x80\x9d363 This \xe2\x80\x9cright of the people\xe2\x80\x9d was just as \xe2\x80\x9ccomprehensive\xe2\x80\x9d and\n\xe2\x80\x9cvaluable\xe2\x80\x9d as those in the First, Fourth, Fifth, and Sixth Amendments.364\nLike Rawle and Story, the Nunn court recognized the harmony between the\nSecond Amendment\xe2\x80\x99s individual right and its preface: \xe2\x80\x9c[O]ur Constitution assigns\nas a reason why this right shall not be interfered with or in any manner abridged,\nthat the free enjoyment of it will prepare and qualify a well-regulated militia,\nwhich are necessary to the security of a free State.\xe2\x80\x9d More broadly:\nThe right of the whole people, old and young, men, women and\nboys, and not militia only, to keep and bear arms of every descrip360\n\nId. at *6\xe2\x80\x937; see id. at *1.\n31 Ala. 387, 1858 WL 340, at *1, *2.\n362\n1 Ga. (1 Kelly) 243, 1846 WL 1167, at *11. Georgia\xe2\x80\x99s constitution did not expressly protect the\nright to arms. The court alluded to Barron v. Mayor & City Council of Baltimore, 32 U.S. (7 Pet.) 243\n(1833), which held that the Takings Clause of the Fifth Amendment did not apply to the states and\nreasoned that none of the Bill of Rights did, but rejected it because of the court\xe2\x80\x99s own precedent, the\nSecond Amendment\xe2\x80\x99s broad, non-restrictive language, and the fundamental importance of the right.\n1846 WL 1167, at *9\xe2\x80\x9310.\n363\nId. at *8.\n364\nId. at *10.\n361\n\n214\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\ntion, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all\nthis for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a\nfree State.365\nThe preface\xe2\x80\x99s reference to the militia as \xe2\x80\x9cnecessary to the security of a free State\xe2\x80\x9d\nreinforced this understanding and helped convince the court that the Amendment\nalso restricted the states: \xe2\x80\x9cIf a well-regulated militia is necessary to the security of\nthe State of Georgia and of the United States, is it competent for the General\nAssembly to take away this security, by disarming the people?\xe2\x80\x9d The right lay \xe2\x80\x9cat\nthe bottom of every free government,\xe2\x80\x9d state or federal.366 As had Rawle, the court\nin Nunn, by concluding that the Amendment restricted the powers of the states,\nconfirmed its view that the Amendment did not protect the powers of the states but\nrather protected the rights of their individual citizens.\nFifteen years later, the same court reported that Nunn had \xe2\x80\x9cbeen constantly\nadhered to,\xe2\x80\x9d and unanimously applied it to reverse a jury instruction that, for a\nweapon to be carried openly, it had to be entirely uncovered. Because such\ncarrying was \xe2\x80\x9cimpossible,\xe2\x80\x9d such an interpretation \xe2\x80\x9cwould . . . prohibit the bearing\nof those arms altogether.\xe2\x80\x9d367\nThe Louisiana Supreme Court took the same view of the Second Amendment\nas an individual right in a series of cases in the 1850s. In State v. Chandler, a\nmurder defendant had sought an instruction that carrying weapons \xe2\x80\x9ceither\nconcealed or openly\xe2\x80\x9d could not be a crime consistent with the Constitution. The\ncourt affirmed the denial of the instruction. Like Reid and Nunn, the court saw no\nfactual link between carrying weapons concealed and self-defense. But, also like\nthem, it viewed open carrying of arms differently: \xe2\x80\x9cThis is the right guaranteed by\nthe Constitution of the United States, and which is calculated to incite men to a\nmanly and noble defence of themselves, if necessary, and of their country.\xe2\x80\x9d368 Six\nyears later, the court upheld a conviction for carrying a concealed weapon, finding\nno Second Amendment violation because \xe2\x80\x9c[t]he arms there spoken of are such as\nare borne by a people in war, or at least carried openly.\xe2\x80\x9d369 And two years after\n365\n\nId.\nId. at *10, *9.\n367\nStockdale v. State, 32 Ga. 225, 1861 WL 1336, at *3. The Texas Supreme Court before the Civil\nWar appears also to have viewed the Second Amendment as applying to the states and including an\nindividual right to own arms and use them for self-defense and perhaps hunting. See Choate v.\nRedding, 18 Tex. 579, 1857 WL 5009, at *2; Cockrum v. State, 24 Tex. 394, 1859 WL 6446, at *6\xe2\x80\x938.\nIn the latter case, in which the court rejected a constitutional challenge to a sentencing enhancement for\nhomicide with a bowie knife, the court did not cite any authority, but the defendant had cited Nunn,\nReid, Bliss, and Mitchell. 1859 WL 6446, at *3.\n368\n5 La. Ann. 489, 1850 WL 3838, at *1; see id. at *2 (discussing self-defense).\n369\nState v. Smith, 11 La. Ann. 633, 1856 WL 4793, at *1.\n366\n\n215\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nthat, the same court cited these decisions in upholding another such conviction,\nagain treating the right as belonging to individuals and understanding \xe2\x80\x9ccarry\xe2\x80\x9d to be\nsynonymous with \xe2\x80\x9cbear\xe2\x80\x9d: \xe2\x80\x9cThe statute in question . . . . is a measure of police\nprohibiting only a particular mode of bearing arms which is found dangerous to\nthe peace of society.\xe2\x80\x9d370\nTwo other state court cases of this later antebellum period merit special mention. The first and more significant is Aymette v. State,371 the second, State v.\nBuzzard.372 In both, the court\xe2\x80\x99s holding was unremarkable\xe2\x80\x94that bans on carrying\nweapons concealed were constitutional. But the courts\xe2\x80\x99 rationales were novel.\nWhile still recognizing a right to keep and to bear arms that belonged to individuals, these decisions sharply restricted the purposes for which arms could be borne.\nUnlike Reid and Nunn, neither case was cited until several years after the Civil\nWar (and then usually just for their holdings), but Aymette acquired some\nprominence thereafter, and Buzzard is notable for one judge\xe2\x80\x99s separate opinion\nsomewhat foreshadowing the collective and quasi-collective right views.\nIn Aymette, the Tennessee Supreme Court applied that state\xe2\x80\x99s 1834 Constitution, which provided \xe2\x80\x9cthat the free white men of this State have a right to keep and\nbear arms for their common defence.\xe2\x80\x9d (The only difference from the provision\ndiscussed in Simpson was the change of \xe2\x80\x9cfreemen\xe2\x80\x9d to \xe2\x80\x9cfree white men.\xe2\x80\x9d373) In\nupholding the defendant\xe2\x80\x99s conviction for carrying a concealed bowie knife, the\ncourt limited the state right to \xe2\x80\x9cbear arms\xe2\x80\x9d to actions done \xe2\x80\x9cby the people in a\nbody for their common defense.\xe2\x80\x9d374 Some have relied on Aymette\xe2\x80\x99s reasoning in\narguing against the individual right view of the Second Amendment. The Ninth\nCircuit in Silveira, for example, overlooking all of the antebellum cases discussed\nabove, described Aymette as \xe2\x80\x9cthe most significant judicial decision to construe the\nterm \xe2\x80\x98bear arms\xe2\x80\x99\xe2\x80\x9d and as concluding that the phrase \xe2\x80\x9creferred to the performance\nof a military function.\xe2\x80\x9d375 Silveira particularly relied on Aymette\xe2\x80\x99s statement that\n\xe2\x80\x9c\xe2\x80\x98[a] man in pursuit of deer, elk and buffaloes might carry his rifle every day for\nforty years, and yet it would never be said of him that he had borne arms.\xe2\x80\x99\xe2\x80\x9d376\nFairly read, however, Aymette does not contravene an individual right view of the\nSecond Amendment.\nFirst, even assuming for the sake of argument that Aymette read the Tennessee\nConstitution not to secure any individual right to bear arms, the decision has two\n370\n\nState v. Jumel, 13 La. Ann. 399, 1858 WL 5151, at *1.\n21 Tenn. (2 Hum.) 154, 1840 WL 1554.\n372\n4 Ark. (4 Pike) 18, 1842 WL 331.\n373\nThat change may have been prompted by Nat Turner\xe2\x80\x99s 1831 slave rebellion, which created fears\nof free blacks arming and inciting slaves. See Cottrol & Diamond, supra note 33, 80 Geo. L.J. at 337\xe2\x80\x93\n38.\n374\n1840 WL 1554, at *3.\n375\n312 F.3d at 1073.\n376\nId. (quoting Aymette, 1840 WL 1554, at *5).\n371\n\n216\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\ndistinctive features that undermine its relevance to the Second Amendment.\nAymette\xe2\x80\x99s analysis rested heavily on the phrase \xe2\x80\x9cfor their common defence\xe2\x80\x9d in the\nTennessee provision, which is absent from the Second Amendment. The phrase\npervades the court\xe2\x80\x99s brief analysis. The court defined \xe2\x80\x9ccommon\xe2\x80\x9d and even\ndescribed the right to arms in the English Bill of Rights as if it included the\nword.377 The court also relied on a conscientious objector clause that appeared\nelsewhere in the state constitution, citing it at the end of its opinion, in criticizing\nBliss, to make \xe2\x80\x9cthe case still more clear.\xe2\x80\x9d378 Yet no conscientious objector clause\nappears in the Second Amendment or even the Constitution.379\nSecond, and more importantly, Aymette does not reject an individual right\neither to keep or to bear arms, even though it may exclude individual self-defense\nfrom the meaning of \xe2\x80\x9cbear.\xe2\x80\x9d The court was unequivocal on \xe2\x80\x9ckeep\xe2\x80\x9d: \xe2\x80\x9cThe citizens\nhave the unqualified right to keep the weapon,\xe2\x80\x9d so long as it is a protected\n\xe2\x80\x9carm.\xe2\x80\x9d380 It did describe \xe2\x80\x9cbear\xe2\x80\x9d as limited to \xe2\x80\x9cmilitary use,\xe2\x80\x9d381 but by that appears\nstill to have contemplated a right that belonged to individuals rather than to the\nstate or those engaged in its service.382 The court did not mention the militia.\nRather, the \xe2\x80\x9cmilitary\xe2\x80\x9d bearing that it appears to have had in mind was the people,\nin an extreme case of governmental tyranny, independently bearing arms as a body\nto check the government. The court confined \xe2\x80\x9cbear\xe2\x80\x9d to the most radical of\nemergencies. Thus, it provided the following account of the English Revolution of\n1688\xe2\x80\x931689:\n\n377\n1840 WL 1554, at *3; see id. at *2. As noted above in Part III.B.2, in discussing the Massachusetts Declaration of Rights, the phrase \xe2\x80\x9ccommon defense\xe2\x80\x9d is not necessarily inconsistent with a right to\nbear arms for private purposes.\n378\nId. at *5. Thus the Ninth Circuit was incorrect in contending that Aymette \xe2\x80\x9creached its conclusion primarily because of\xe2\x80\x9d the conscientious objector provision, rather than the \xe2\x80\x9ccommon defense\xe2\x80\x9d\nlanguage. Silveira, 312 F.3d at 1073. Furthermore, Aymette\xe2\x80\x99s reliance on the conscientious objector\nprovision was not persuasive, as our discussions of the Pennsylvania and Vermont declarations of\nrights (Part III.B.2) and proposals emerging from the Pennsylvania, Virginia, and North Carolina\nratifying conventions (Part III.C.1) showed. See also Part II.B.2 (discussing meaning of \xe2\x80\x9cbear arms\xe2\x80\x9d).\nIt was common in a single document to refer separately both to the right of individuals to \xe2\x80\x9cbear arms\xe2\x80\x9d\nand to exemption of individuals from the duty to \xe2\x80\x9cbear\xe2\x80\x9d them in the service of the government. In\naddition, the court\xe2\x80\x99s assertion that a hunter could never be said to \xe2\x80\x9cbear\xe2\x80\x9d arms, quoted above, is open to\ndoubt, given the proposed Virginia law discussed in Part II.B.2 and the Pennsylvania Minority Report\n(see Parts II.B.2 and III.C.1), and, in any event, says nothing about persons \xe2\x80\x9cbearing\xe2\x80\x9d arms in selfdefense. The court did not cite the decision of its southern neighbor in Reid, which appears to have\nbeen decided about six months before; it treated its previous discussion of the right in Simpson as dicta,\n1840 WL 1554, at *5\xe2\x80\x936.\n379\nSee Part III.C.2 above (discussing conscientious objector clause in draft of Second Amendment).\n380\n1840 WL 1554, at *4. As we noted in the introduction of Part II.B, the Ninth Circuit, in reaffirming its collective right view, did not attempt to reconcile the right to \xe2\x80\x9ckeep\xe2\x80\x9d arms with its view.\n381\nId. at *3, *5.\n382\nSee id. at *4 (\xe2\x80\x9cthe citizens may bear [arms] for the common defence,\xe2\x80\x9d but \xe2\x80\x9cthe Legislature may\nprohibit such manner of wearing as would never be resorted to by persons engaged in the common\ndefence\xe2\x80\x9d) (emphasis added).\n\n217\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\n[I]f the people had retained their arms, they would have been able,\nby a just and proper resistance to those oppressive measures, either\nto have caused the king to respect their rights, or surrender (as he\nwas eventually compelled to do) the government into other hands.\nNo private defence was contemplated, or would have availed anything. . . . [The right in the English Declaration means] that they may\nas a body rise up to defend their just rights, and compel their rulers\nto respect the laws. . . . The complaint was against the government.\nThe grievances to which they were thus forced to submit were for\nthe most part of a public character, and could have been redressed\nonly by the people rising up for their common defence, to vindicate\ntheir rights.383\nThe court also wrote that the people \xe2\x80\x9cmay keep arms to protect the public liberty,\nto keep in awe those in power, and to maintain the supremacy of the laws and the\nconstitution.\xe2\x80\x9d Citizens need to be prepared \xe2\x80\x9cto repel any encroachments upon their\nrights by those in authority,\xe2\x80\x9d and the right \xe2\x80\x9cis a great political right. It respects the\ncitizens, on the one hand, and the rulers on the other.\xe2\x80\x9d384\nSubsequent treatment by the same court confirms that Aymette, despite its\nnarrow reading of \xe2\x80\x9cbear,\xe2\x80\x9d still recognized an individual right. In Andrews v. State,\na prominent case after the Civil War, the Tennessee Supreme Court interpreted the\nright of the \xe2\x80\x9ccitizens of this State . . . to keep and bear arms for their common\ndefense\xe2\x80\x9d under the state\xe2\x80\x99s 1870 constitution. It was not until after Andrews that\nAymette, previously uncited, acquired any prominence.385 The new constitution had\nadded an exception granting to \xe2\x80\x9cthe Legislature . . . power by law, to regulate the\nwearing of arms, with a view to prevent crime,\xe2\x80\x9d which had been prompted by an\n\n383\n\nId. at *2.\nId. at *3\xe2\x80\x934. Furthermore, even if one might read the court\xe2\x80\x99s rejection of an individual right to\nbear arms in \xe2\x80\x9cprivate defence\xe2\x80\x9d as foreclosing any individual right to bear arms, two aspects of the\ncourt\xe2\x80\x99s reasoning (in addition to its analysis of \xe2\x80\x9cbear\xe2\x80\x9d) leave it open to question. First, the court\xe2\x80\x99s\naccount of the English right, see id. at *2, was contrary to the text of the English Bill of Rights and\nBlackstone\xe2\x80\x99s exposition of an individual right to arms for self-defense, and failed to recognize that the\nindividual English right was transplanted to America free of England\xe2\x80\x99s aristocratic restrictions, as\nTucker, Rawle, Story, and others had recognized and praised. Second, faced with the defendant\xe2\x80\x99s\nprovocatively absolute claim regarding the scope of the right, see id. at *1, the court responded with\ndichotomies between bearing arms by the body of the people for the common defense and \xe2\x80\x9cbearing\xe2\x80\x9d\narms for hypothetical criminal purposes, such as terrifying people. In thus defining the question, the\ncourt defined away the well-established third possibility\xe2\x80\x94bearing arms in legitimate self-defense\xe2\x80\x94and\noverlooked background law prohibiting bearing weapons for the hypothesized purposes. Compare id.\nat *3\xe2\x80\x934, with Simpson, 1833 WL 1227, at *1; State v. Huntly, 25 N.C. (3 Ired.) 418, 1843 WL 891; 4\nWilliam Blackstone, Commentaries *145\xe2\x80\x9347; Reid, 1840 WL 229, at *3, *5\xe2\x80\x936.\n385\nAndrews v. State, 50 Tenn. (3 Heisk.) 165, 1871 WL 3579, at *6. Andrews was the first case in\nany jurisdiction to cite Aymette regarding the right to bear arms.\n384\n\n218\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nenduring dispute between partisans of Aymette and Simpson.386 The statute at issue\nprohibited any public or private carrying of \xe2\x80\x9ca dirk, swordcane, Spanish stiletto,\nbelt or pocket pistol or revolver.\xe2\x80\x9d387 Notwithstanding the added constitutional\nclause and the arguable implications of Aymette, the court held it unconstitutional\nas applied to certain revolvers.388\nIn reaching this holding, the court went far to assimilate Aymette to the reasoning of Reid and Nunn, even while technically retaining Aymette\xe2\x80\x99s view of \xe2\x80\x9cbear.\xe2\x80\x9d389\nIt did so in three ways. First, it expressly reaffirmed that at least the right to \xe2\x80\x9ckeep\xe2\x80\x9d\nbelonged to individuals: The \xe2\x80\x9cright to bear arms for the common defense . . . may\nwell be held to be a political right, or for protection and maintenance of such\nrights, intended to be guaranteed; but the right to keep them, with all that is\nimplied fairly as an incident to this right, is a private individual right, guaranteed\nto the citizen, not the soldier.\xe2\x80\x9d390 The court added, relying on Story, that it is \xe2\x80\x9cto be\nexercised and enjoyed by the citizen as such, and not by him as a soldier, or in\ndefense solely of his political rights.\xe2\x80\x9d391\nSecond, Andrews read \xe2\x80\x9ckeep\xe2\x80\x9d expansively to include broad \xe2\x80\x9cincidental use,\xe2\x80\x9d\nemphasizing that the goal of the right was to ensure that \xe2\x80\x9cthe citizens making up\nthe yeomanry of the land, the body of the militia,\xe2\x80\x9d would be prepared when\nneeded. Thus:\nThe right to keep arms, necessarily involves the right to purchase\nthem, to keep them in a state of efficiency for use, and to purchase\nand provide ammunition suitable for such arms, and to keep them in\nrepair. And clearly for this purpose, a man would have the right to\ncarry them to and from his home, and no one could claim that the\nLegislature had the right to punish him for it, without violating this\nclause of the Constitution.\nBut farther than this, it must be held, that the right to keep arms involves, necessarily, the right to use such arms for all the ordinary\n386\nSee id. at *8 (\xe2\x80\x9cThe Convention of 1870, knowing that there had been differences of opinion on\nthis question, have conferred on the Legislature in this added clause, the right to regulate the wearing of\narms, with a view to prevent crime\xe2\x80\x9d); id. at *13 (\xe2\x80\x9cEver since the opinions were promulgated, it has\nbeen my deliberate conviction that the exposition of the Constitution . . . in Simpson . . . was much\nmore correct than that . . . in Aymette . . . .\xe2\x80\x9d) (Nelson, J., joined by Turley, J., dissenting in part).\n387\nId. at *3.\n388\nId. at *11.\n389\nId. at *10 (finding \xe2\x80\x9cmuch of interesting and able discussion of these questions\xe2\x80\x9d in Bliss, Reid,\nand Nunn; explaining that in Reid and Nunn \xe2\x80\x9cthe general line of argument found in this opinion is\nmaintained\xe2\x80\x9d and that the court had been \xe2\x80\x9caided . . . greatly by the reasoning of these enlightened\ncourts\xe2\x80\x9d); id. (describing Aymette as \xe2\x80\x9chold[ing] the same general views\xe2\x80\x9d as the Andrews court) (emphasis added).\n390\nId. at *8 (emphasis added).\n391\nId. at *9.\n\n219\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\npurposes, and in all the ordinary modes usual in the country, and to\nwhich arms are adapted, limited by the duties of a good citizen in\ntimes of peace . . . .\nBecause citizens needed to be able to \xe2\x80\x9cbecome familiar with\xe2\x80\x9d the use of arms \xe2\x80\x9cin\ntimes of peace, that they may the more efficiently use them in times of war, . . . the\nright to keep arms for this purpose involves the right to practice their use.\xe2\x80\x9d392 Use\nfor \xe2\x80\x9cordinary purposes\xe2\x80\x9d included a man taking his gun \xe2\x80\x9cfrom his room into the\nstreet to shoot a rabid dog that threatened his child\xe2\x80\x9d393 and using them on one\xe2\x80\x99s\nproperty in lawful self-defense.394 Such reasoning is in large measure the same as\nthat taken by the traditional individual right view in explaining the relation\nbetween the Second Amendment\xe2\x80\x99s preface and operative text.\nThird, consistently with its reading of \xe2\x80\x9ckeep,\xe2\x80\x9d the court also broadened \xe2\x80\x9carms.\xe2\x80\x9d\nAymette had defined the word to include only such arms \xe2\x80\x9cas are usually employed\nin civilized warfare, and that constitute the ordinary military equipment.\xe2\x80\x9d395\nAndrews explained it as follows: \xe2\x80\x9c[T]he idea of the Constitution is, the keeping\nand use of such arms as are useful either in warfare, or in preparing the citizen for\ntheir use in warfare, by training him as a citizen, to their use in times of peace.\xe2\x80\x9d396\nThe court took judicial notice \xe2\x80\x9cthat the rifle of all descriptions, the shot gun, the\nmusket, and repeater, are such arms.\xe2\x80\x9d397\nThus, setting aside any distinctions based on the specific language of Tennessee\xe2\x80\x99s Constitution, the consequence of Aymette, taken together with Andrews, is\nthat \xe2\x80\x9cbear arms\xe2\x80\x9d was defined more narrowly in those cases, and \xe2\x80\x9ckeep arms\xe2\x80\x9d more\nbroadly, than was usual. The net result seems to be not far from the traditional\nindividual right view held at the Founding and reflected in the great weight of\nearly authority.\nThe divided 1842 decision of the Arkansas Supreme Court in Buzzard did not,\neven after the Civil War, ever acquire the prominence of Aymette, and when cited\n392\n\nId. at *6\xe2\x80\x937.\nId. at *11.\n394\nId. at *13.\n395\n1840 WL 1554, at *3.\n396\n1871 WL 3579, at *9. The court elsewhere defined \xe2\x80\x9carms\xe2\x80\x9d as those furthering the end of \xe2\x80\x9cthe\nefficiency of the citizen as a soldier,\xe2\x80\x9d id. at *7, and as including not only weapons \xe2\x80\x9cadapted to the usual\nequipment of the soldier\xe2\x80\x9d but also those \xe2\x80\x9cthe use of which may render him more efficient as such,\xe2\x80\x9d id.\nat *11. The term had to be \xe2\x80\x9ctaken in connection with the fact that the citizen is to keep them as a\ncitizen\xe2\x80\x9d and therefore included such \xe2\x80\x9cas are found to make up the usual arms of the country, and the\nuse of which will properly train and render him efficient in defense of his own liberties, as well as of\nthe State.\xe2\x80\x9d Id. at *7.\n397\nId. at *7; id. at *11. Two judges dissented in part, criticizing Aymette and taking a broader view\nthan the majority based on Simpson, Bliss, Blackstone, and Tucker. Id. at *13\xe2\x80\x9315 (Nelson, J., joined by\nTurney, J., dissenting in part). They argued that \xe2\x80\x9cfor their common defense\xe2\x80\x9d was equivalent to \xe2\x80\x9cin\ndefense of themselves and the State.\xe2\x80\x9d Id. at *13\xe2\x80\x9314. Similarly, \xe2\x80\x9c[t]he word \xe2\x80\x98bear\xe2\x80\x99 was not used alone in\nthe military sense of carrying arms, but in the popular sense of wearing them in war or in peace.\xe2\x80\x9d Id.\n393\n\n220\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nit was simply for its limited, uncontroversial holding, upholding a ban on carrying\nweapons concealed.398 Nevertheless, coming four years before Nunn, it appears to\nhave been the first judicial holding involving the Second Amendment, and one\njudge\xe2\x80\x99s concurring opinion was the first appearance of something suggesting a\ncollective right or quasi-collective right view.\nThe reasoning of the leading opinion for the 2-1 court was similar to that of\nAymette. The court addressed both the Second Amendment and the 1836 Arkansas\nConstitution, which, like Tennessee\xe2\x80\x99s, provided that \xe2\x80\x9cthe free white men of this\nState shall have a right to keep and bear arms for their common defense.\xe2\x80\x9d399\nDespite the textual differences between these two provisions (in particular the\nArkansas provision\xe2\x80\x99s \xe2\x80\x9cfor their common defense\xe2\x80\x9d language), the court treated\nthem as the same.400 Much like Aymette, albeit without distinguishing between\n\xe2\x80\x9ckeep\xe2\x80\x9d and \xe2\x80\x9cbear,\xe2\x80\x9d the court apparently recognized a right of individuals but gave\nit a limited scope.401 The Arkansas court\xe2\x80\x99s post-war decisions confirmed that the\nright secured by the Arkansas Constitution belonged to individuals and included\nthe right to bear arms for at least some private purposes.402\n398\nE.g., Fife v. State, 31 Ark. 455, 1876 WL 1562, at *3 (summarizing holding and then relying on\nAymette and Andrews); State v. Wilforth, 74 Mo. 528, 1881 WL 10279, at *1 (including Buzzard in\nstring citation with Nunn, Jumel, Mitchell, Owen, and Reid, and relying on Reid). Buzzard was first\ncited in 1872. See State v. English, 35 Tex. 473, 1872 WL 7422; Carroll v. State, 28 Ark. 99, 1872 WL\n1104.\n399\nBuzzard, 4 Ark. 18, 1842 WL 331, at *6.\n400\nSee id. (equating the two, and adopting a single rule for evaluating restrictions).\n401\nSee id. at *4 (explaining that \xe2\x80\x9cthe militia, without arms . . . might be unable to resist, successfully, the effort of those who should conspire to overthrow the established institutions of the country, or\nsubjugate their common liberties\xe2\x80\x9d and that \xe2\x80\x9cthe people designed and expected to accomplish this object\nby the adoption of the article under consideration, which would forever invest them with a legal right to\nkeep and bear arms for that purpose\xe2\x80\x9d); id. at *6 (\xe2\x80\x9cThe act in question does not . . . detract anything\nfrom the power of the people to defend their free state and the established institutions of the country.\xe2\x80\x9d);\nsee also id. at *2 (expressly equating Second Amendment right with rights in First); id. at *7 (noting\nthat Reid and Mitchell had upheld similar laws notwithstanding constitutional provisions expressly\nprotecting bearing arms in self-defense). As in Aymette, the court was faced with an absolute claim that\nthe right was subject to no restrictions, and responded similarly. See id. at *3, *5.\n402\nSee Carroll, 1872 WL 1104, at *2 (upholding conviction for carrying deadly weapon concealed\nand explaining Buzzard as holding that \xe2\x80\x9ca constitutional right to bear arms in defense of person and\nproperty does not prohibit the legislature from making such police regulations as may be necessary for\nthe good of society, as to the manner in which such arms shall be borne\xe2\x80\x9d; adding that a \xe2\x80\x9ccitizen\xe2\x80\x9d may\nnot \xe2\x80\x9cuse his own property or bear his own arms in such way as to injure the property or endanger the\nlife of his fellow citizen\xe2\x80\x9d) (emphases added); Fife, 1876 WL 1562, at *3, *4 (restating Buzzard\xe2\x80\x99s holding, and upholding conviction for carrying pistol by construing statute only to apply to pistol that \xe2\x80\x9cis\nusually carried in the pocket, or of a size to be concealed about the person, and used in private quarrels,\nand brawls, and not such as is in ordinary use, and effective as a weapon of war, and useful and\nnecessary for \xe2\x80\x98the common defence\xe2\x80\x99\xe2\x80\x9d); Wilson v. State, 33 Ark. 557, 1878 WL 1301, at *2 (reversing\nconviction for carrying side arms, where trial court had refused jury instruction to acquit if pistol was\n\xe2\x80\x9carmy size . . . such as are commonly used in warfare\xe2\x80\x9d; citing Fife and Andrews and explaining that \xe2\x80\x9cto\nprohibit the citizen from wearing or carrying a war arm, except upon his own premises or when on a\njourney . . . , or when acting as or in aid of an officer, is an unwarranted restriction upon his constitutional right to keep and bear arms\xe2\x80\x9d) (emphases added).\n\n221\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nThe concurring opinion cited no history or authority and, as far as we are\naware, no court or even judge has ever cited it in interpreting a right to bear arms,\nwhether secured by the Second Amendment or by any of the analogous provisions\nin state constitutions.403 It did not present what would now be considered a\nstandard collective right or quasi-collective right view. Whereas those views\naddress the limits of federal power to interfere with state law, Judge Dickinson\naddressed the case from the opposite vantage point, stating the question as whether\nthe state\xe2\x80\x99s ban on carrying weapons concealed \xe2\x80\x9cinterfere[s] with any regulations\nmade by Congress, as to the organizing, arming, or disciplining the militia, or in\nthe manner in which that militia are either to keep or bear their arms.\xe2\x80\x9d404 In modern\nterminology, the judge seemed to recast the case as turning on possible federal\npreemption of the state law. The Second Amendment, in setting out what he\ndescribed as \xe2\x80\x9cthe power given the militia to keep and bear arms,\xe2\x80\x9d merely rephrased the express federal powers in Article I, Section 8, Clause 16 of the\nConstitution, the Amendment being \xe2\x80\x9cbut an assertion of that general right of\nsovereignty belonging to independent nations to regulate their military force.\xe2\x80\x9d405\nThe Amendment thus did not add any protection of state powers. That protection\nwas implicit in Clause 16: \xe2\x80\x9c[T]he States retain the power to legislate in relation to\narms and the mode of carrying and keeping them, provided its exercise is not\nrepugnant to the previous grant to the Federal Government. . . . Could Congress\nauthorize any and every person by express law, to carry deadly weapons concealed\nabout his person, when not composing one of the militia, and not a part of the\nregulations ordained for their government?\xe2\x80\x9d406\nThe dissenting opinion employed the general rule for interpreting prefaces\n(discussed above in Part II.C.1), and the same reasoning as Rawle, Story, and\nNunn, to explain the relation of the Amendment\xe2\x80\x99s preface to the right:\nNow, I take the expressions \xe2\x80\x98a well regulated militia being necessary\nfor the security of a free State,\xe2\x80\x99 and the terms \xe2\x80\x98common defense,\xe2\x80\x99 to\nbe the reasons assigned for the granting of the right, and not a restriction or limitation upon the right itself . . . . [W]hen was it contended before that the reason given for the establishment of a right or\n\n403\n\n1842 WL 331, at *7 (Dickinson, J., concurring). See also Kopel, supra note 342, 1998 BYU L.\nRev. at 1425 (\xe2\x80\x9cThe Buzzard concurrence\xe2\x80\x99s assertion that the right to arms was not individual vanished\nfrom American case law for the rest of the nineteenth century.\xe2\x80\x9d).\n404\n1842 WL 331, at *7 (Dickinson, J.); see id. at *10 (\xe2\x80\x9cThe act . . . does not, in my opinion, conflict\nwith any of the powers of the General Government.\xe2\x80\x9d).\n405\nId. at *7, *9. It is unclear what significance he gave to the state constitution\xe2\x80\x99s provision. See id.\nat *9.\n406\nId. at *8.\n\n222\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nits uninterrupted enjoyment not only limited the right itself, but restrained it to a single specific object?407\nJudge Lacy also pointed to the Second Amendment\xe2\x80\x99s reference to a \xe2\x80\x9cfree State\xe2\x80\x9d:\n\xe2\x80\x9cTo suppose that liberty cannot be in danger, except from a foreign foe or internal\ndisorder, is virtually to deny the importance and necessity of written constitutions. . . . I cannot separate the political freedom of the State from the personal\nrights of its citizens.\xe2\x80\x9d408 He singled out the concurring opinion for granting the\nright to \xe2\x80\x9cthe militia alone,\xe2\x80\x9d and only at \xe2\x80\x9cthe discretion of the Legislature\xe2\x80\x9d\xe2\x80\x94a right\n\xe2\x80\x9cvalueless and not worth preserving; for the State unquestionably possesses the\npower, without the grant, to arm the militia and direct how they shall be employed\nin cases of invasion or domestic insurrection. . . . [W]hy give that which is no right\nin itself and guarantees a privilege that is useless?\xe2\x80\x9d409 Finally, the dissent explained\nthe right much as Blackstone had, tying it to self-defense and pointing out that it\nwas no more unlimited than the freedoms of speech and press.410\nIn sum, the activity of courts closest to the Founding tends to reinforce what the\ntext and history establish\xe2\x80\x94that the right secured by the Second Amendment\nbelongs to individuals. No court questioned the private right to keep arms, and\nmost recognized the traditional individual right to bear them. Two of the three\nstate supreme courts to apply the Second Amendment (Georgia and Louisiana)\nrepeatedly recognized a private right to bear arms for self-defense. The two cases\ntaking the narrowest view of the right (both in states whose constitutions had\n\xe2\x80\x9ccommon defense\xe2\x80\x9d clauses in their right) were ignored, and even they recognized\nsome manner of individual right. Only in an opinion of a single judge, which was\nand has continued to be ignored, did something like a quasi-collective or collective\nright understanding appear, but even that opinion did not view the Second\nAmendment as securing any right of states or of state (as opposed to federal)\nmilitias. On balance, then, the cases before the Civil War, like the first commentators, confirm that the text and history of the Second Amendment support the\nindividual right view, not the collective right or quasi-collective right views.\nC. Reconstruction\nAs the Civil War ended in 1865, southern governments enacted \xe2\x80\x9cblack codes,\xe2\x80\x9d\nwhich, among other things, either directly prohibited the newly freed slaves from\nkeeping and bearing arms or imposed stringent permit systems. In addition, armed\nwhite mobs, sometimes including the militias, frequently disarmed the freed\n\n407\n\nId. at *10 (Lacy, J., dissenting).\nId. at *14. See also id. (arguing that the right has at times \xe2\x80\x9cbeen the only means by which public\nliberty or the security of free States has been vindicated and maintained\xe2\x80\x9d).\n409\nId. at *10.\n410\nId. at *12\xe2\x80\x9314.\n408\n\n223\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nblacks.411 Such practices, coupled with blacks\xe2\x80\x99 lack of citizenship, prompted the\nThirty-Ninth Congress to take several actions securing the rights of the newly\nfreed slaves and reaffirming the understanding that the right to keep and bear arms\nwas a personal right.\nThe first action was enactment of the Civil Rights Act of 1866. One goal of\nmany who sought its passage, noted by them and lamented by their opponents,\nappears to have been to secure to freedmen the Second Amendment\xe2\x80\x99s right to keep\nand bear arms. Both representatives and senators highlighted disarmament of\nblacks and argued that the Act, by making blacks citizens, would secure to them\nthat right. Senator Trumbull, Chairman of the Judiciary Committee and a sponsor\nof the Act, explained that it would counteract those portions of the black codes\nthat \xe2\x80\x9cprohibit any negro or mulatto from having fire-arms.\xe2\x80\x9d412 In the House,\nRepresentative Clarke quoted the Second Amendment and declared, \xe2\x80\x9cI shall insist\nthat the reconstructed rebels of Mississippi respect the Constitution in their local\nlaws\xe2\x80\x9d; he also decried that newly formed southern governments had been \xe2\x80\x9callowed\nto rob and disarm our [black] veteran soldiers.\xe2\x80\x9d Representative Raymond argued,\nin favor of the Act, that making blacks citizens would give to them \xe2\x80\x9cevery right\nwhich you or I have,\xe2\x80\x9d including \xe2\x80\x9ca right to bear arms.\xe2\x80\x9d413\nThe second congressional action was passage of the Fourteenth Amendment in\nJune 1866. Senator Pomeroy, in addressing an early draft, listed as among the\n\xe2\x80\x9csafeguards of liberty . . . under our Constitution\xe2\x80\x9d the right of \xe2\x80\x9cthe freedman\xe2\x80\x9d to\n\xe2\x80\x9cbear arms for the defense of himself and family and his homestead,\xe2\x80\x9d even\nsuggesting that Congress\xe2\x80\x99s power to enforce the Thirteenth Amendment\xe2\x80\x99s ban on\nslavery might justify it in protecting this right in the South.414 One of the Fourteenth Amendment\xe2\x80\x99s sponsors, in listing the rights of citizenship that its Privileges\nor Immunities Clause would extend to blacks, pointed to \xe2\x80\x9cthe personal rights\nguaranteed and secured by the first eight amendments of the Constitution; such as\nthe freedom of speech and of the press; . . . [and] the right to keep and to bear\n\n411\nSee, e.g., Laws of Miss. ch. 23, \xc2\xa7 1, at 165 (enacted Nov. 29, 1865), reprinted in Stephen P.\nHalbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866\xe2\x80\x931876, at 2 (1998).\nSee generally Halbrook, Freedmen at 2\xe2\x80\x933, 5, 8\xe2\x80\x9312, 15\xe2\x80\x9316, 18\xe2\x80\x9320, 22\xe2\x80\x9323, 26\xe2\x80\x9332, 34\xe2\x80\x9337 (collecting\nreports of army and Freedmen\xe2\x80\x99s Bureau officers to President and Congress, petitions to Congress, and\nother public materials documenting attempts in former Confederacy in 1865 and 1866 to disarm blacks,\nincluding through legislation and by militias).\n412\nCong. Globe, 39th Cong., 1st Sess. 474 (1866). See also id. at 478 (Sen. Saulsbury, lamenting\nthis effect of the Act). Regarding Trumbull, see Raoul Berger, Government by Judiciary: The\nTransformation of the Fourteenth Amendment 32 (2d ed. 1997).\n413\nCong. Globe at 1838\xe2\x80\x9339 (Rep. Clarke); id. at 1266 (Rep. Raymond). See also id. at 1629 (Rep.\nHart, explaining that Act would guarantee to free blacks \xe2\x80\x9c[a] government . . . where \xe2\x80\x98no law shall be\nmade prohibiting the free exercise of religion\xe2\x80\x99; where \xe2\x80\x98the right of the people to keep and bear arms\nshall not be infringed\xe2\x80\x99\xe2\x80\x9d).\n414\nId. at 1182.\n\n224\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\narms.\xe2\x80\x9d415 The New York Times and other leading newspapers reprinted these comments, including the reference to the Second Amendment, and praised them.416\nThis history indicates that it was widely recognized that the right to keep and\nbear arms was to be protected by the Civil Rights Act and the Fourteenth Amendment, and that that right was understood to belong to individuals. For example,\nRaoul Berger, even while arguing against the view that the Fourteenth Amendment \xe2\x80\x9cincorporated\xe2\x80\x9d the Bill of Rights to apply to the states, explains that \xe2\x80\x9call are\nagreed\xe2\x80\x9d that the Fourteenth Amendment aimed at least \xe2\x80\x9cto embody and protect\xe2\x80\x9d\nthe Civil Rights Act of 1866; he contends that the Act, in turn, \xe2\x80\x9cintended to confer\non the freedmen the auxiliary rights that would protect their \xe2\x80\x98life, liberty, and\nproperty\xe2\x80\x99\xe2\x80\x94no more.\xe2\x80\x9d He quotes Blackstone\xe2\x80\x99s listing of these three principal rights\nand demonstrates Blackstone\xe2\x80\x99s prominence in the debates and in the denunciations\nof the black codes.417 As explained above in Part III.A, Blackstone described five\n\xe2\x80\x9cauxiliary rights,\xe2\x80\x9d and the right of individuals to have and use arms for their\ndefense was one of them. Given the language of Section 1 of the Civil Rights Act,\nit may be that states simply could not discriminate against blacks in the right to\nkeep and bear arms, not that the Second Amendment applied per se, but the point\nremains that there was a consensus that the right in question belonged to individuals and was a right against the state.418\nWere there any remaining doubt on this question, Congress eliminated it a\nmonth after approving the Fourteenth Amendment, when it renewed the Freedmen\xe2\x80\x99s Bureau over President Andrew Johnson\xe2\x80\x99s veto. The act provided that\nwherever the courts were not open, or in any state that had not been restored to the\nUnion, various rights, largely paralleling those in the Civil Rights Act, should \xe2\x80\x9cbe\nsecured to and enjoyed by all the citizens . . . without respect to race or color, or\nprevious condition of slavery.\xe2\x80\x9d Among these were \xe2\x80\x9cthe right . . . to have full and\nequal benefit of all laws and proceedings concerning personal liberty, personal\nsecurity, and the acquisition, enjoyment, and disposition of estate, real and\npersonal, including the constitutional right to bear arms.\xe2\x80\x9d419 Congress thus not\n415\n\nId. at 2765 (Sen. Howard).\nSee Halbrook, Freedmen, supra note 411, at 36 (collecting excerpts).\n417\nBerger, Government by Judiciary, supra note 412, at 30, 30\xe2\x80\x9339, 53\xe2\x80\x9354. Berger does not specifically mention the right to keep and bear arms. See, e.g., id. at 166\xe2\x80\x9369 (addressing Sen. Howard\xe2\x80\x99s\nstatement but omitting his listing of rights).\n418\nSection 1 of the Civil Rights Act declares all those born in the United States to be citizens,\ngrants \xe2\x80\x9cthe same right, in every State and Territory in the United States . . . as is enjoyed by white\ncitizens\xe2\x80\x9d with regard to certain enumerated aspects of property, contracting, and lawsuits, and\nguarantees \xe2\x80\x9cfull and equal benefit of all laws and proceedings for the security of person and property.\xe2\x80\x9d\n14 Stat. 27, 27 (1866). In light of Blackstone\xe2\x80\x99s understanding and the context of the black codes, any\nlaws regarding the ability to keep or bear arms would presumably be \xe2\x80\x9claws . . . for the security of\nperson and property\xe2\x80\x9d and therefore would need to be equal for all citizens regardless of color.\n419\nAct of July 16, 1866, \xc2\xa7 14, 14 Stat. 173, 176 (emphasis added). The President\xe2\x80\x99s reasons for his\nveto did not involve any disagreement with Congress regarding this right. See Veto Message (July 16,\n1866), reprinted in 8 Messages and Papers, supra note 276, at 3620.\n416\n\n225\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nonly enacted the understanding that the Second Amendment protected an individual right, including the right to \xe2\x80\x9cbear\xe2\x80\x9d arms, but also did so in a way that rested on\nBlackstone\xe2\x80\x99s exposition of the individual right to arms as a critical auxiliary to the\nthree primary individual rights of life, liberty, and property.\nCongress took the same view early in the following year, demonstrating not\nonly its understanding that the right belonged to individuals but also the limited,\nindirect way in which it protected the states\xe2\x80\x99 militias. Responding to the southern\nmilitias\xe2\x80\x99 depredations against the freed blacks, Congress included in a bill, which\nthe President signed, a provision \xe2\x80\x9c[t]hat all militia forces now organized or in\nservice\xe2\x80\x9d in the states of the former Confederacy \xe2\x80\x9cbe forthwith disbanded, and that\nthe further organization, arming, or calling into service of the said militia forces,\nor any part thereof, is hereby prohibited.\xe2\x80\x9d420 Significantly, the bill\xe2\x80\x99s sponsor had\nagreed to strike \xe2\x80\x9cdisarmed\xe2\x80\x9d after \xe2\x80\x9cdisbanded,\xe2\x80\x9d in the face of opposition from\nseveral (northern) senators that to disarm the citizens from whom the militia was\ndrawn, rather than merely disbanding the militias, would violate the Second\nAmendment.421 Congress\xe2\x80\x99s actions both in disbanding the southern states\xe2\x80\x99 militias\nand in not disarming their citizens show that it understood the Second Amendment\nright to protect individuals, not states or their militias.422 Thus, from the Founding\nthrough the Civil War, the overwhelming understanding of the right of the people\nto keep and bear arms was that it was a right that belonged to individuals.\nD. Beyond Reconstruction\nAs already suggested by our discussions above of Andrews and cases citing\nBuzzard, the understanding of the right to keep and bear arms as an individual\nright continued beyond the Civil War and Reconstruction. Although we do not\nprovide an exhaustive survey of the post-war period, we find it significant that the\nmodern alternative views of the right did not take hold until the twentieth century,\nwell over a century after the Second Amendment was ratified. Before that, the\n420\n\nAct of Mar. 2, 1867, \xc2\xa7 6, 14 Stat. 485, 487. The President did inform the House that he was signing under \xe2\x80\x9cprotest\xe2\x80\x9d because this provision, and another to which he objected, were included in an\nessential appropriation bill. See Letter to the House of Representatives (Mar. 2, 1867), reprinted in 8\nMessages and Papers, supra note 276, at 3670. Regarding the militia provision, he objected that it\n\xe2\x80\x9cdenies to ten States of this Union their constitutional right to protect themselves in any emergency by\nmeans of their own militia.\xe2\x80\x9d It may be that in his constitutional objection he had in mind Article I,\nSection 10\xe2\x80\x99s implicit recognition of the prerogative of states to defend themselves with their militias in\ncases of invasion or imminent danger. See Part II.D.2 above (discussing ways in which original\nConstitution recognizes that states will have and be able to use militias).\n421\nThe Senate debate is summarized from the Congressional Globe in Halbrook, Freedmen, supra\nnote 411, at 68\xe2\x80\x9369.\n422\nSee id. at 69 (\xe2\x80\x9cAstonishingly, while still waving the bloody shirt and depriving Southerners of\nsuffrage, Republicans were unwilling to deny the right to have arms to ex-Confederates.\xe2\x80\x9d); Nelson\nLund, Book Review, Outsider Voices on Guns and the Constitution, 17 Const. Comm. 701, 713 (2000)\n(reviewing Halbrook) (\xe2\x80\x9cThis incident perfectly illustrates why the Second Amendment had been\nadopted in the first place.\xe2\x80\x9d).\n\n226\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\nviews of the leading constitutional law scholar of the period, Thomas Cooley,\nwere in accord with his predecessors Tucker, Rawle, and Story, in recognizing an\nindividual right. And the Supreme Court, although making no holding regarding\nthe substance of the Amendment, suggested in dicta that it protected an individual\nright.\nCooley\xe2\x80\x99s General Principles of Constitutional Law, first published in 1880,\ngained a prominence on the level of the works of his predecessors.423 As had the\nantebellum commentators, he espoused the individual right view of the Second\nAmendment. After quoting the Amendment, noting that it was a \xe2\x80\x9cmodification and\nenlargement from the English Bill of Rights,\xe2\x80\x9d and citing Tucker, Cooley added the\nfollowing:\nThe Right is General.\xe2\x80\x94It might be supposed from the phraseology\nof this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. . . . [I]f the right were limited to those enrolled [in\nthe militia, a number that the government could constrict], the purpose of this guaranty might be defeated altogether by the action or\nneglect to act of the government it was meant to hold in check. The\nmeaning of the provision undoubtedly is, that the people, from\nwhom the militia must be taken, shall have the right to keep and bear\narms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well-regulated militia; for to bear arms implies something more than the mere keeping;\nit implies the learning to handle and use them in a way that makes\nthose who keep them ready for their efficient use; in other words, it\nimplies the right to meet for voluntary discipline in arms, observing\nin doing so the laws of public order.424\nCooley\xe2\x80\x99s rejection of any collective right and quasi-collective right view is\nconsistent with the understanding of the Amendment\xe2\x80\x99s prefatory clause that is\nevident from the Founding and had been reiterated before the Civil War by Rawle,\nStory, and Nunn. Even Cooley\xe2\x80\x99s heading echoed Rawle\xe2\x80\x99s statement over fifty\nyears earlier: \xe2\x80\x9cThe prohibition is general.\xe2\x80\x9d425 Cooley likewise treated both keeping\nand bearing as private rights of citizens, and recognized that the right has limita-\n\n423\n\nSee supra note 41; Kates, supra note 33, 82 Mich. L. Rev. at 243. Among Cooley\xe2\x80\x99s many works\nwas to prepare the fourth edition of Story\xe2\x80\x99s unabridged Commentaries, published in 1873.\n424\nCooley, General Principles, supra note 41, at 271. Cooley cited 1 Tucker\xe2\x80\x99s Blackstone, supra\nnote 60, at 300, which praises the right in the Second Amendment as \xe2\x80\x9cthe true palladium of liberty\xe2\x80\x9d\nand, paralleling Blackstone, ties it to the natural \xe2\x80\x9cright of self defence.\xe2\x80\x9d See Part IV.A above.\n425\nRawle, View of the Constitution, supra note 327, at 125, discussed above in Part IV.A.\n\n227\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\ntions (\xe2\x80\x9cthe laws of public order\xe2\x80\x9d), just as any other individual right does.426\nConversely, in discussing the Militia Clauses of Article I, Section 8, in a separate\npart of his treatise, he made no mention of the Second Amendment.427\nCooley reiterated this individual right interpretation in his even more celebrated\nTreatise on the Constitutional Limitations, first published in 1868.428 Among the\nclauses common in state constitutions, he explained, were \xe2\x80\x9c[t]hose declaratory of\nthe fundamental rights of the citizen,\xe2\x80\x9d among which were freedom of speech and\nof the press and \xe2\x80\x9cthat every man may bear arms for the defence of himself and the\nState.\xe2\x80\x9d429 In a later chapter he included the right among the \xe2\x80\x9cthe constitutional\nprotections to personal liberty\xe2\x80\x9d: \xe2\x80\x9cAmong the other defences to personal liberty\nshould be mentioned the right of the people to keep and bear arms.\xe2\x80\x9d He explained\nthe right\xe2\x80\x99s English origins, noted the importance for a \xe2\x80\x9cwell-regulated militia\xe2\x80\x9d of\n\xe2\x80\x9cthe people\xe2\x80\x9d being \xe2\x80\x9ctrained to bearing arms,\xe2\x80\x9d praised the lack of legislation\n\xe2\x80\x9cregulat[ing] this right,\xe2\x80\x9d and cited Bliss, Nunn, and a case concerning the right of\nself-defense.430 Finally, in elsewhere explaining the scope of a state\xe2\x80\x99s concurrent\npower to organize and discipline the militia, Cooley simply cited Houston v.\nMoore, not mentioning the Second Amendment.431 Like the Court, he apparently\ndid not see the Amendment as relevant to the scope of the state\xe2\x80\x99s power to\nmaintain a militia.\nThe Supreme Court did not address the substance of the Second Amendment\nduring this period, because of its view that the Bill of Rights, including the Second\nAmendment, did not apply to the states.432 In Robertson v. Baldwin, however, the\nCourt invoked the history of, and limitations on, the various rights in the Bill of\nRights, including the Second Amendment, to illustrate and defend a holding\nregarding the limitations on the Thirteenth Amendment\xe2\x80\x99s ban on slavery:\nThe law is perfectly well settled that the first ten amendments to the\nConstitution, commonly known as the Bill of Rights, were not intend426\n\nHe added, citing Andrews (which had not interpreted the Second Amendment), that the Amendment protected the keeping of arms \xe2\x80\x9csuitable for the general defence of the community against invasion\nor oppression,\xe2\x80\x9d whereas \xe2\x80\x9cthe secret carrying of those suited merely to deadly individual encounters\nmay be prohibited.\xe2\x80\x9d Cooley, General Principles, supra note 41, at 271\xe2\x80\x9372.\n427\nId. at 88\xe2\x80\x9389.\n428\nSee Kopel, supra note 342, 1998 BYU L. Rev. at 1462.\n429\nThomas Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative\nPower of the States of the American Union 35\xe2\x80\x9336 (1868).\n430\nId. at 350; see id. at 295 (chapter title). Miller cited this section. See 307 U.S. at 182 n.3 (citing\n\xe2\x80\x9cCooley\xe2\x80\x99s Constitutional Limitations, Vol. 1, p. 729,\xe2\x80\x9d likely the 8th edition, published well after Cooley\xe2\x80\x99s death).\n431\nCooley, Constitutional Limitations, supra note 429, at 18.\n432\nSee Presser v. Illinois, 116 U.S. 252, 264\xe2\x80\x9365 (1886); see also United States v. Cruikshank, 92\nU.S. 542, 553 (1876); Logan v. United States, 144 U.S. 263, 286\xe2\x80\x9387 (1892); Maxwell v. Dow, 176 U.S.\n581, 597 (1900). As noted above in Part I, the federal government did not regulate private firearms\nuntil 1934.\n\n228\n\n\x0cWhether the Second Amendment Secures an Individual Right\n\ned to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from\nour English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities\nof the case. In incorporating these principles into the fundamental law\nthere was no intention of disregarding the exceptions, which continued\nto be recognized as if they had been formally expressed. Thus, the\nfreedom of speech and of the press (art. 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications\ninjurious to public morals or private reputation; [and] the right of the\npeople to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons . . . .433\nThe Court added similar illustrations from the Fifth and Sixth Amendments. The\nCourt thus suggested that the Second Amendment protected an individual right,\nboth by treating it in parallel with the individual rights in the rest of the Bill of\nRights and by pointing to the right\xe2\x80\x99s English origins.\nNot until 1905 was a view rejecting the individual right view truly born, and then\nin a decision interpreting not the Second Amendment but rather a provision in a state\nconstitution. In City of Salina v. Blaksley, the Kansas Supreme Court held that a\nclause in the Kansas Bill of Rights, providing that \xe2\x80\x9c\xe2\x80\x98[t]he people have the right to\nbear arms for their defence and security,\xe2\x80\x99\xe2\x80\x9d referred only \xe2\x80\x9cto the people as a collective body\xe2\x80\x9d and dealt \xe2\x80\x9cexclusively with the military. Individual rights are not\nconsidered in this section.\xe2\x80\x9d Rather, the \xe2\x80\x9cpeople shall exercise this right\xe2\x80\x9d through the\npower of their legislature, set out in the body of the state constitution, to organize,\nequip, and discipline the militia. The right extended \xe2\x80\x9conly to the right to bear arms as\na member of the state militia, or some other military organization provided for by\nlaw.\xe2\x80\x9d434 The court seems to have been influenced by a provision in the state constitution admonishing against standing armies in time of peace, and praising civilian\ncontrol of the military, that immediately followed the text of the right.435 The court\nalso, without citing historical authority and with little explanation, pointed to the\nSecond Amendment as analogous and reinforcing its reading.436 Salina\xe2\x80\x99s novelty was\n433\n\n165 U.S. 275, 281\xe2\x80\x9382 (1897).\n83 P. 619, 620 (Kan. 1905).\n435\nSee id. As shown in Parts III.B.2 and III.C.1, however, there was nothing unusual in combining\nsuch declarations with an individual right to arms.\n436\nSee Blaksley, 83 P. at 620. The Fifth Circuit in Emerson criticized Salina, to the extent that it\nwas endorsing a quasi-collective right view, as \xe2\x80\x9cconstru[ing] the constitutional provision as saying no\nmore than that the citizen has a right to do that which the state orders him to do and thus neither grants\nthe citizen any right nor in any way restricts the power of the state.\xe2\x80\x9d It found such a criticism\n\xe2\x80\x9cespecially applicable to the theory that such state constitutional provisions grant rights only to the\nstate,\xe2\x80\x9d noting that Salina did \xe2\x80\x9cnot appear even to recognize, much less attempt to justify, the anomaly\nof construing a constitutional declaration of rights as conferring rights only on the state which had them\nanyway.\xe2\x80\x9d 270 F.3d at 231 n.30 (emphasis added). In the context of the right to keep and bear arms in\n434\n\n229\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nnot missed. One state supreme court soon after, in a survey reaching back to Bliss,\nReid, Nunn, and Aymette, described Salina as having gone \xe2\x80\x9cfurther than any other\ncase\xe2\x80\x9d by holding that the right to bear arms in the Kansas Constitution imposed no\nlimit on the legislature\xe2\x80\x99s power to prohibit private individuals from carrying arms.437\nV. Conclusion\nFor the foregoing reasons, we conclude that the Second Amendment secures an\nindividual right to keep and to bear arms. Current case law leaves open and\nunsettled the question of whose right is secured by the Amendment. Although we\ndo not address the scope of the right, our examination of the original meaning of\nthe Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective\nright or quasi-collective right views. The text of the Amendment\xe2\x80\x99s operative\nclause, setting out a \xe2\x80\x9cright of the people to keep and bear Arms,\xe2\x80\x9d is clear and is\nreinforced by the Constitution\xe2\x80\x99s structure. The Amendment\xe2\x80\x99s prefatory clause,\nproperly understood, is fully consistent with this interpretation. The broader\nhistory of the Anglo-American right of individuals to have and use arms, from\nEngland\xe2\x80\x99s Revolution of 1688\xe2\x80\x931689 to the ratification of the Second Amendment\na hundred years later, leads to the same conclusion. Finally, the first hundred years\nof interpretations of the Amendment, and especially the commentaries and case\nlaw in the pre-Civil War period closest to the Amendment\xe2\x80\x99s ratification, confirm\nwhat the text and history of the Second Amendment require.\nSTEVEN G. BRADBURY\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\nHOWARD C. NIELSON, JR.\nDeputy Assistant Attorney General\nOffice of Legal Counsel\nC. KEVIN MARSHALL\nActing Deputy Assistant Attorney General\nOffice of Legal Counsel\n\nthe federal Constitution, the quasi-collective right view appears to amount to the right of a militiaman,\nthrough a private cause of action (or defense), to act as an agent for the interests of the state to\nvindicate its power to establish and maintain an armed and organized militia such as the National\nGuard. See, e.g., United States v. Haney, 264 F.3d 1161, 1165 (10th Cir. 2001).\n437\nStrickland v. State, 72 S.E. 260, 262 (Ga. 1911). For additional discussion of Salina, see Kopel,\nsupra note 342, 1998 BYU L. Rev. at 1510\xe2\x80\x9312.\n\n230\n\n\x0c'