Second Amendment: Right to Bear Arms
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Overview of the Second Amendment
For much of its early history, the Second Amendment went largely uncriticized by the Supreme Court. The few nineteenth century cases implicating the Second Amendment established for a time that the Amendment was a bar to federal, but not state, government action, and the Court’s only significant Second Amendment decision in the twentieth century seemed to suggest that the right protected under the Amendment was tied only to state militia use of certain types of firearms. In this relative vacuum, the lower federal courts and legal scholars disputed the meaning of the Second Amendment and how it applied, if at all, to an expanding universe of federal, state, and local laws governing the private possession and sale of firearms.
By the beginning of the twenty-first century, many of the U.S. Courts of Appeals that considered the matter concluded that the Second Amendment protected a collective right tied to militia or military use of firearms, while some courts and commentators maintained that the Amendment enshrined an individual right to possess firearms outside the context of militia or military activity. In the 2008 case District of Columbia v. Heller, the Supreme Court held, after a lengthy historical analysis, that the Second Amendment protects an individual right to possess firearms for historically lawful purposes, including self-defense in the home. The Heller majority also provided some guidance on the scope of the right, explaining that it is not unlimited and that nothing in [the] opinion should be taken to cast doubt on longstanding prohibitions like laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, among other presumptively lawful regulations.
Two years after Heller, the Court revisited the question of whether the Second Amendment applies to the states, concluding in McDonald v. City of Chicago that the right to keep and bear arms is a fundamental right that is incorporated through the Fourteenth Amendment against the states. In a subsequent decision in Caetano v. Massachusetts, the Court issued a brief, per curium opinion vacating a Massachusetts Supreme Court decision that had upheld a law prohibiting the possession of stun guns. The Court in Caetano reiterated that the Second Amendment applies to the states and extends to bearable arms that were not in existence at the time of the founding.
In the 2022 case New York State Rifle & Pistol Association v. Bruen, the Court considered the constitutionality under the Second Amendment of a portion of New York’s firearms licensing scheme that restricts the carrying of certain licensed firearms outside the home. In a 6-3 decision, the Court struck down New York’s requirement that an applicant for an unrestricted license to carry a handgun outside the home for self-defense must establish proper cause, ruling that the requirement is at odds with the Second Amendment. In doing so, the Court recognized that the Second Amendment protects a right that extends beyond the home and also clarified that the proper test for evaluating Second Amendment challenges to firearms laws is an approach rooted in text and the historical tradition of firearms regulation, rejecting a two-step methodology employed by many of the lower courts.
Historical Background on the Second Amendment
Historical surveys of the Second Amendment often trace its roots, at least in part, through the English Bill of Rights of 1689, which declared that subjects, which are protestants, may have arms for their defense suitable to their condition, and as allowed by law. That provision grew out of friction over the English Crown’s efforts to use loyal militias to control and disarm dissidents and enhance the Crown’s standing army, among other things, prior to the Glorious Revolution that supplanted King James II in favor of William and Mary.
The early American experience with militias and military authority would inform what would become the Second Amendment as well. In Founding-era America, citizen militias drawn from the local community existed to provide for the common defense, and standing armies of professional soldiers were viewed by some with suspicion. The Declaration of Independence listed as grievances against King George III that he had affected to render the Military independent of and superior to the Civil power and had kept among us, in times of peace, Standing Armies without the Consent of our legislatures. Following the Revolutionary War, several states codified constitutional arms-bearing rights in contexts that echoed these concerns—for instance, Article XIII of the Pennsylvania Declaration of Rights of 1776 read:
That the people have a right to bear arms for the defense of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.
Similarly, as another example, Massachusetts’s Declaration of Rights from 1780 provided:
The people have a right to keep and to bear arms for the common defense. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.
Mistrust of standing armies, like the one employed by the English Crown to control the colonies, and anti-Federalist concerns with centralized military power colored the debate surrounding ratification of the federal Constitution and the need for a Bill of Rights. Provisions in the Constitution gave Congress power to establish and fund an Army, as well as authority to organize, arm, discipline, and call forth the militia in certain circumstances (while reserving to the states authority over appointment of militia officers and training). The motivation for these provisions appears to have been recognition of the danger of relying on inadequately trained soldiers as the primary means of providing for the common defense. However, despite structural limitations such as a two-year limit on Army appropriations and certain militia reservations to the states, fears remained during the ratification debates that these provisions of the Constitution gave too much power to the federal government and were dangerous to liberty.
In the Federalist, James Madison argued that the State governments, with the people on their side, would be more than adequate to counterbalance a federally controlled regular army, even one fully equal to the resources of the country. In Madison’s view, the advantage of being armed, together with the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Nevertheless, several states considered or proposed to the First Congress constitutional amendments that would explicitly protect arms-bearing rights, in various formulations.
Tasked with digesting the many proposals for amendments made by the various state ratification conventions and stewarding them through the First Federal Congress, James Madison produced an initial draft of the Second Amendment as follows:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
The committee of the House of Representatives that considered Madison’s formulation altered the order of the clauses such that the militia clause now came first, with a new specification of the militia as composed of the body of the people, and made several other wording and punctuation changes.
Debate in the House largely centered on the proposed Amendment’s religious-objector clause, with Elbridge Gerry, for instance, arguing that the clause would give the people in power the ability to declare who are those religiously scrupulous, and prevent them from bearing arms. Gerry proposed that the provision be confined to persons belonging to a religious sect scrupulous of bearing arms, but his proposed addition was not accepted. Other proposals not accepted included striking out the entire clause, making it subject to paying an equivalent, which Roger Sherman found problematic given religious objectors would be equally scrupulous of getting substitutes or paying an equivalent, and adding after a well regulated militia the phrase trained to arms, which Elbridge Gerry believed would make clear that it was the duty of the Government to provide the referenced security of a free State.
As resolved by the House of Representatives on August 24, 1789, the version of the Second Amendment sent to the Senate remained similar to the version initially drafted by James Madison, with one of the largest changes being the re-ordering of the first two clauses. The provision at that time read:
A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.
The Amendment would take what would become its final form in the Senate, where the religious-objector clause was finally removed and several other phrases were modified. For instance, the phrase referencing the militia as composed of the body of the People was struck, and the descriptor of the militia as the best security of a free State was modified to necessary to the security of a free State. Several other changes were proposed and rejected, including adding limitations on a standing army in time of peace and adding next to the words bear arms the phrase for the common defense. The final language of the Second Amendment was agreed to and transmitted to the states in late September of 1789.