The Constitution of the United States is the supreme law of the United States of America.^[2] The Constitution, originally comprising seven articles, delineates the national frame of government. Its first three articles embody the doctrine of the separation of powers, whereby the federal government is divided into three branches: the legislative, consisting of the bicameralCongress (Article One); the executive, consisting of the President (Article Two); and the judicial, consisting of the Supreme Court and other federal courts (Article Three). Articles Four, Five and Six embody concepts of federalism, describing the rights and responsibilities of state governments, the states in relationship to the federal government, and the shared process of constitutional amendment. Article Seven establishes the procedure subsequently used by the thirteen States to ratify it. It is regarded as the oldest written and codified national constitution in force.^[3]

Since the Constitution came into force in 1789, it has been amended 27 times, including an amendment to repeal a previous one,^[4] in order to meet the needs of a nation that has profoundly changed since the eighteenth century.^[5] In general, the first ten amendments, known collectively as the Bill of Rights, offer specific protections of individual liberty and justice and place restrictions on the powers of government.^[6][7] The majority of the seventeen later amendments expand individual civil rights protections. Others address issues related to federal authority or modify government processes and procedures. Amendments to the United States Constitution, unlike ones made to many constitutions worldwide, are appended to the document. All four pages^[8] of the original U.S. Constitution are written on parchment.^[9]

According to the United States Senate: 'The Constitution's first three words—We the People—affirm that the government of the United States exists to serve its citizens. For over two centuries the Constitution has remained in force because its framers wisely separated and balanced governmental powers to safeguard the interests of majority rule and minority rights, of liberty and equality, and of the federal and state governments.'^[5]

The first permanent constitution of its kind,^[a] adopted by the people's representatives for an expansive nation, it is interpreted, supplemented, and implemented by a large body of constitutional law, and has influenced the constitutions of other nations.

• 1Background
• 2History
• 4Original frame
• 5Ratified amendments
• 6Unratified amendments
• 7Judicial review
  • 7.2Establishment
• 13References
• 15External links

Background

First government

From September 5, 1774, to March 1, 1781, the Continental Congress functioned as the provisional government of the United States. Delegates to the First (1774) and then the Second (1775–1781) Continental Congress were chosen largely through the action of committees of correspondence in various colonies rather than through the colonial or later state legislatures. In no formal sense was it a gathering representative of existing colonial governments; it represented the dissatisfied elements of the people, such persons as were sufficiently interested to act, despite the strenuous opposition of the loyalists and the obstruction or disfavor of colonial governors.^[12] The process of selecting the delegates for the First and Second Continental Congresses underscores the revolutionary role of the people of the colonies in establishing a central governing body. Endowed by the people collectively, the Continental Congress alone possessed those attributes of external sovereignty which entitled it to be called a state in the international sense, while the separate states, exercising a limited or internal sovereignty, may rightly be considered a creation of the Continental Congress, which preceded them and brought them into being.^[13]

Articles of Confederation

The Articles of Confederation and Perpetual Union was the first constitution of the United States.^[14] It was drafted by the Second Continental Congress from mid-1776 through late 1777, and ratification by all 13 states was completed by early 1781. The Articles of Confederation gave little power to the central government. The Confederation Congress could make decisions, but lacked enforcement powers. Implementation of most decisions, including modifications to the Articles, required unanimous approval of all thirteen state legislatures.^[15]

Although, in a way, the Congressional powers in Article 9 made the 'league of states as cohesive and strong as any similar sort of republican confederation in history',^[16] the chief problem was, in the words of George Washington, 'no money'.^[17] The Continental Congress could print money but it was worthless. Congress could borrow money, but couldn't pay it back.^[17] No state paid all their U.S. taxes; some paid nothing. Some few paid an amount equal to interest on the national debt owed to their citizens, but no more.^[17] No interest was paid on debt owed foreign governments. By 1786, the United States would default on outstanding debts as their dates came due.^[17]

Internationally, the United States had little ability to defend its sovereignty. Most of the troops in the 625-man United States Army were deployed facing – but not threatening – British forts on American soil. They had not been paid; some were deserting and others threatening mutiny.^[18]Spain closed New Orleans to American commerce; U.S. officials protested, but to no effect. Barbary pirates began seizing American ships of commerce; the Treasury had no funds to pay their ransom. If any military crisis required action, the Congress had no credit or taxing power to finance a response.^[17]

Domestically, the Articles of Confederation was failing to bring unity to the diverse sentiments and interests of the various states. Although the Treaty of Paris (1783) was signed between Great Britain and the U.S., and named each of the American states, various states proceeded blithely to violate it. New York and South Carolina repeatedly prosecuted Loyalists for wartime activity and redistributed their lands.^[17] Individual state legislatures independently laid embargoes, negotiated directly with foreign authorities, raised armies, and made war, all violating the letter and the spirit of the Articles.

In September 1786, during an inter–state convention to discuss and develop a consensus about reversing the protectionist trade barriers that each state had erected, James Madison angrily questioned whether the Articles of Confederation was a binding compact or even a viable government. Connecticut paid nothing and 'positively refused' to pay U.S. assessments for two years.^[19] A rumor had it that a 'seditious party' of New York legislators had opened a conversation with the Viceroy of Canada. To the south, the British were said to be openly funding Creek Indian raids on Georgia, and the state was under martial law.^[20] Additionally, during Shays' Rebellion (August 1786 – June 1787) in Massachusetts, Congress could provide no money to support an endangered constituent state. General Benjamin Lincoln was obliged to raise funds from Boston merchants to pay for a volunteer army.^[21]

Congress was paralyzed. It could do nothing significant without nine states, and some legislation required all thirteen. When a state produced only one member in attendance, its vote was not counted. If a state's delegation were evenly divided, its vote could not be counted towards the nine-count requirement.^[22] The Articles Congress had 'virtually ceased trying to govern'.^[23] The vision of a 'respectable nation' among nations seemed to be fading in the eyes of revolutionaries such as George Washington, Benjamin Franklin, and Rufus King. Their dream of a republic, a nation without hereditary rulers, with power derived from the people in frequent elections, was in doubt.^[24][25]

On February 21, 1787, the Confederation Congress called a convention of state delegates at Philadelphia to propose a plan of government.^[26] Unlike earlier attempts, the convention was not meant for new laws or piecemeal alterations, but for the 'sole and express purpose of revising the Articles of Confederation'. The convention was not limited to commerce; rather, it was intended to 'render the federal constitution adequate to the exigencies of government and the preservation of the Union.' The proposal might take effect when approved by Congress and the states.^[27]

History

1787 drafting

On the appointed day, May 14, 1787, only the Virginia and Pennsylvania delegations were present, and so the convention's opening meeting was postponed for lack of a quorum.^[28] A quorum of seven states met and deliberations began on May 25. Eventually twelve states were represented; 74 delegates were named, 55 attended and 39 signed.^[29] The delegates were generally convinced that an effective central government with a wide range of enforceable powers must replace the weaker Congress established by the Articles of Confederation.

Two plans for structuring the federal government arose at the convention's outset:

• The Virginia Plan (also known as the Large State Plan or the Randolph Plan) proposed that the legislative department of the national government be composed of a Bicameral Congress, with both chambers elected with apportionment according to population. Generally favoring the most highly populated states, it used the philosophy of John Locke to rely on consent of the governed, Montesquieu for divided government, and Edward Coke to emphasize civil liberties.^[30]
• The New Jersey Plan proposed that the legislative department be a unicameral body with one vote per state. Generally favoring the less-populous states, it used the philosophy of English Whigs such as Edmund Burke to rely on received procedure and William Blackstone to emphasize sovereignty of the legislature. This position reflected the belief that the states were independent entities and, as they entered the United States of America freely and individually, remained so.^[31]

On May 31, the Convention devolved into a 'Committee of the Whole' to consider the Virginia Plan. On June 13, the Virginia resolutions in amended form were reported out of committee. The New Jersey plan was put forward in response to the Virginia Plan.

A 'Committee of Eleven' (one delegate from each state represented) met from July 2 to 16^[32] to work out a compromise on the issue of representation in the federal legislature. All agreed to a republican form of government grounded in representing the people in the states. For the legislature, two issues were to be decided: how the votes were to be allocated among the states in the Congress, and how the representatives should be elected. In its report, now known as the Connecticut Compromise (or 'Great Compromise'), the committee proposed proportional representation for seats in the House of Representatives based on population (with the people voting for representatives), and equal representation for each State in the Senate (with each state's legislators generally choosing their respective senators), and that all money bills would originate in the House.^[33]

The Great Compromise ended the stalemate between 'patriots' and 'nationalists', leading to numerous other compromises in a spirit of accommodation. There were sectional interests to be balanced by the Three-Fifths Compromise; reconciliation on Presidential term, powers, and method of selection; and jurisdiction of the federal judiciary.

On July 24, a 'Committee of Detail' – John Rutledge (South Carolina), Edmund Randolph (Virginia), Nathaniel Gorham (Massachusetts), Oliver Ellsworth (Connecticut), and James Wilson (Pennsylvania) – was elected to draft a detailed constitution reflective of the Resolutions passed by the convention up to that point.^[34] The Convention recessed from July 26 to August 6 to await the report of this 'Committee of Detail'. Overall, the report of the committee conformed to the resolutions adopted by the Convention, adding some elements. A twenty-three article (plus preamble) constitution was presented.^[35]

From August 6 to September 10, the report of the committee of detail was discussed, section by section and clause by clause. Details were attended to, and further compromises were effected.^[32][34] Toward the close of these discussions, on September 8, a 'Committee of Style and Arrangement' – Alexander Hamilton (New York), William Samuel Johnson (Connecticut), Rufus King (Massachusetts), James Madison (Virginia), and Gouverneur Morris (Pennsylvania) – was appointed to distill a final draft constitution from the twenty-three approved articles.^[34] The final draft, presented to the convention on September 12, contained seven articles, a preamble and a closing endorsement, of which Morris was the primary author.^[29] The committee also presented a proposed letter to accompany the constitution when delivered to Congress.^[36]

The final document, engrossed by Jacob Shallus,^[37] was taken up on Monday, September 17, at the Convention's final session. Several of the delegates were disappointed in the result, a makeshift series of unfortunate compromises. Some delegates left before the ceremony, and three others refused to sign. Of the thirty-nine signers, Benjamin Franklin summed up, addressing the Convention: 'There are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them.' He would accept the Constitution, 'because I expect no better and because I am not sure that it is not the best'.^[38]

The advocates of the Constitution were anxious to obtain unanimous support of all twelve states represented in the Convention. Their accepted formula for the closing endorsement was 'Done in Convention, by the unanimous consent of the States present.' At the end of the convention, the proposal was agreed to by eleven state delegations and the lone remaining delegate from New York, Alexander Hamilton.^[39]

1788 ratification

Transmitted to the Congress of the Confederation, then sitting in New York City, it was within the power of Congress to expedite or block ratification of the proposed Constitution. The new frame of government that the Philadelphia Convention presented was technically only a revision of the Articles of Confederation. After several days of debate, Congress voted to transmit the document to the thirteen states for ratification according to the process outlined in its Article VII. Each state legislature was to call elections for a 'Federal Convention' to ratify the new Constitution, rather than consider ratification itself; a departure from the constitutional practice of the time, designed to expand the franchise in order to more clearly embrace 'the people'. The frame of government itself was to go into force among the States so acting upon the approval of nine (i.e. two-thirds of the 13) states; also a departure from constitutional practice, as the Articles of Confederation could only be amended by unanimous vote of all the states.

Three members of the Convention – Madison, Gorham, and King – were also Members of Congress. They proceeded at once to New York, where Congress was in session, to placate the expected opposition. Aware of their vanishing authority, Congress, on September 28, after some debate, resolved unanimously to submit the Constitution to the States for action, 'in conformity to the resolves of the Convention',^[40] but with no recommendation either for or against its adoption.

Two parties soon developed, one in opposition, the Anti-Federalists, and one in support, the Federalists, of the Constitution; and the Constitution was debated, criticized, and expounded upon clause by clause. Hamilton, Madison, and Jay, under the name of Publius, wrote a series of commentaries, now known as The Federalist Papers, in support of ratification in the state of New York, at that time a hotbed of anti-Federalism. These commentaries on the Constitution, written during the struggle for ratification, have been frequently cited by the Supreme Court as an authoritative contemporary interpretation of the meaning of its provisions. The dispute over additional powers for the central government was close, and in some states ratification was effected only after a bitter struggle in the state convention itself.

On June 21, 1788, the constitution had been ratified by the minimum of nine states required under Article VII. Towards the end of July, and with eleven states then having ratified, the process of organizing the new government began. The Continental Congress, which still functioned at irregular intervals, passed a resolution on September 13, 1788, to put the new Constitution into operation with the eleven states that had then ratified it.^[41] The federal government began operations under the new form of government on March 4, 1789. However, the initial meeting of each chamber of Congress had to be adjourned due to lack of a quorum.^[42] George Washington was inaugurated as the nation's first president 8 weeks later, on April 30. The final two states, North Carolina and Rhode Island, both subsequently ratified the Constitution – November 21, 1789, and May 29, 1790, respectively.

Influences

Several ideas in the Constitution were new. These were associated with the combination of consolidated government along with federal relationships with constituent states.

The Due Process Clause of the Constitution was partly based on common law and on Magna Carta (1215), which had become a foundation of English liberty against arbitrary power wielded by a ruler.

Among the most prominent political theorists of the late eighteenth century were William Blackstone, John Locke, and Montesquieu.^[43]

Both the influence of Edward Coke and William Blackstone were evident at the Convention. In his Institutes of the Lawes of England, Edward Coke interpreted Magna Carta protections and rights to apply not just to nobles, but to all British subjects. In writing the Virginia Charter of 1606, he enabled the King in Parliament to give those to be born in the colonies all rights and liberties as though they were born in England. William Blackstone's Commentaries on the Laws of England were the most influential books on law in the new republic.

British political philosopher John Locke following the Glorious Revolution (1688) was a major influence expanding on the contract theory of government advanced by Thomas Hobbes. Locke advanced the principle of consent of the governed in his Two Treatises of Government. Government's duty under a social contract among the sovereign people was to serve the people by protecting their rights. These basic rights were life, liberty and property.

Montesquieu's influence on the framers is evident in Madison's Federalist No. 47 and Hamilton's Federalist No. 78. Jefferson, Adams, and Mason were known to read Montesquieu.^[44]Supreme Court Justices, the ultimate interpreters of the Constitution, have cited Montesquieu throughout the Court's history.^[45] (See, e.g., Green v. Biddle, 21 U.S. 1, 1, 36 (1823). United States v. Wood, 39 U.S. 430, 438 (1840). Myers v. United States, 272 U.S. 52, 116 (1926). Nixon v. Administrator of General Services, 433 U.S. 425, 442 (1977). Bank Markazi v. Peterson, 136 U.S. 1310, 1330 (2016). ) Montesquieu emphasized the need for balanced forces pushing against each other to prevent tyranny (reflecting the influence of Polybius's 2nd century BC treatise on the checks and balances of the Roman Republic). In his The Spirit of the Laws, Montesquieu argues that the separation of state powers should be by its service to the people's liberty: legislative, executive and judicial.

A substantial body of thought had been developed from the literature of republicanism in the United States, including work by John Adams and applied to the creation of state constitutions.

The constitution was a federal one, and was influenced by the study of other federations, both ancient and extant.

The United States Bill of Rights consists of 10 amendments added to the Constitution in 1791, as supporters of the Constitution had promised critics during the debates of 1788.^[46] The English Bill of Rights (1689) was an inspiration for the American Bill of Rights. Both require jury trials, contain a right to keep and bear arms, prohibit excessive bail and forbid 'cruel and unusual punishments'. Many liberties protected by state constitutions and the Virginia Declaration of Rights were incorporated into the Bill of Rights.

Original frame

Neither the Convention which drafted the Constitution, nor the Congress which sent it to the thirteen states for ratification in the autumn of 1787, gave it a lead caption. To fill this void, the document was most often titled 'A frame of Government' when it was printed for the convenience of ratifying conventions and the information of the public.^[47] This Frame of Government consisted of a preamble, seven articles and a signed closing endorsement.

Preamble

The preamble to the Constitution serves as an introductory statement of the document's fundamental purposes and guiding principles. It neither assigns powers to the federal government,^[48] nor does it place specific limitations on government action. Rather, it sets out the origin, scope and purpose of the Constitution. Its origin and authority is in 'We, the people of the United States'. This echoes the Declaration of Independence. 'One people' dissolved their connection with another, and assumed among the powers of the earth, a sovereign nation-state. The scope of the Constitution is twofold. First, 'to form a more perfect Union' than had previously existed in the 'perpetual Union' of the Articles of Confederation. Second, to 'secure the blessings of liberty', which were to be enjoyed by not only the first generation, but for all who came after, 'our posterity'.^[49]

Article One

Article One describes the Congress, the legislative branch of the federal government. Section 1, reads, 'All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' The article establishes the manner of election and the qualifications of members of each body. Representatives must be at least 25 years old, be a citizen of the United States for seven years, and live in the state they represent. Senators must be at least 30 years old, be a citizen for nine years, and live in the state they represent.

Article I, Section 8 enumerates the powers delegated to the legislature. Financially, Congress has the power to tax, borrow, pay debt and provide for the common defense and the general welfare; to regulate commerce, bankruptcies, and coin money. To regulate internal affairs, it has the power to regulate and govern military forces and militias, suppress insurrections and repel invasions. It is to provide for naturalization, standards of weights and measures, post offices and roads, and patents; to directly govern the federal district and cessions of land by the states for forts and arsenals. Internationally, Congress has the power to define and punish piracies and offenses against the Law of Nations, to declare war and make rules of war. The final Necessary and Proper Clause, also known as the Elastic Clause, expressly confers incidental powers upon Congress without the Articles' requirement for express delegation for each and every power. Article I, Section 9 lists eight specific limits on congressional power.

The Supreme Court has sometimes broadly interpreted the Commerce Clause and the Necessary and Proper Clause in Article One to allow Congress to enact legislation that is neither expressly allowed by the enumerated powers nor expressly denied in the limitations on Congress. In McCulloch v. Maryland (1819), the Supreme Court read the Necessary and Proper Clause to permit the federal government to take action that would 'enable [it] to perform the high duties assigned to it [by the Constitution] in the manner most beneficial to the people',^[50] even if that action is not itself within the enumerated powers. Chief Justice Marshall clarified: 'Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.'^[50]

Article Two

Article Two describes the office, qualifications, and duties of the President of the United States and the Vice President. The President is head of the executive branch of the federal government, as well as the nation's head of state and head of government.

Article two is modified by the 12th Amendment which tacitly acknowledges political parties, and the 25th Amendment relating to office succession. The president is to receive only one compensation from the federal government. The inaugural oath is specified to preserve, protect and defend the Constitution.

The president is the Commander in Chief of the United States Armed Forces and state militias when they are mobilized. He or she makes treaties with the advice and consent of a two-thirds quorum of the Senate. To administer the federal government, the president commissions all the offices of the federal government as Congress directs; he or she may require the opinions of its principal officers and make 'recess appointments' for vacancies that may happen during the recess of the Senate. The president is to see that the laws are faithfully executed, though he or she may grant reprieves and pardons except regarding Congressional impeachment of himself or other federal officers. The president reports to Congress on the State of the Union, and by the Recommendation Clause, recommends 'necessary and expedient' national measures. The president may convene and adjourn Congress under special circumstances.

Section 4 provides for removal of the president and other federal officers. The president is removed on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

Article Three

Article Three describes the court system (the judicial branch), including the Supreme Court. There shall be one court called the Supreme Court. The article describes the kinds of cases the court takes as original jurisdiction. Congress can create lower courts and an appeals process. Congress enacts law defining crimes and providing for punishment. Article Three also protects the right to trial by jury in all criminal cases, and defines the crime of treason.

Section 1 vests the judicial power of the United States in federal courts, and with it, the authority to interpret and apply the law to a particular case. Also included is the power to punish, sentence, and direct future action to resolve conflicts. The Constitution outlines the U.S. judicial system. In the Judiciary Act of 1789, Congress began to fill in details. Currently, Title 28 of the U.S. Code^[51] describes judicial powers and administration.

As of the First Congress, the Supreme Court justices rode circuit to sit as panels to hear appeals from the district courts.^[b] In 1891, Congress enacted a new system. District courts would have original jurisdiction. Intermediate appellate courts (circuit courts) with exclusive jurisdiction heard regional appeals before consideration by the Supreme Court. The Supreme Court holds discretionary jurisdiction, meaning that it does not have to hear every case that is brought to it.^[51]

To enforce judicial decisions, the Constitution grants federal courts both criminal contempt and civil contempt powers. The court's summary punishment for contempt immediately overrides all other punishments applicable to the subject party. Other implied powers include injunctive relief and the habeas corpus remedy. The Court may imprison for contumacy, bad-faith litigation, and failure to obey a writ of mandamus. Judicial power includes that granted by Acts of Congress for rules of law and punishment. Judicial power also extends to areas not covered by statute. Generally, federal courts cannot interrupt state court proceedings.^[51]

Clause 1 of Section 2 authorizes the federal courts to hear actual cases and controversies only. Their judicial power does not extend to cases which are hypothetical, or which are proscribed due to standing, mootness, or ripeness issues. Generally, a case or controversy requires the presence of adverse parties who have some interest genuinely at stake in the case.^[c]

Clause 2 of Section 2 provides that the Supreme Court has original jurisdiction in cases involving ambassadors, ministers and consuls, for all cases respecting foreign nation-states,^[52] and also in those controversies which are subject to federal judicial power because at least one state is a party. Cases arising under the laws of the United States and its treaties come under the jurisdiction of federal courts. Cases under international maritime law and conflicting land grants of different states come under federal courts. Cases between U.S. citizens in different states, and cases between U.S. citizens and foreign states and their citizens, come under federal jurisdiction. The trials will be in the state where the crime was committed.^[51]

No part of the Constitution expressly authorizes judicial review, but the Framers did contemplate the idea. The Constitution is the supreme law of the land. Precedent has since established that the courts could exercise judicial review over the actions of Congress or the executive branch. Two conflicting federal laws are under 'pendent' jurisdiction if one presents a strict constitutional issue. Federal court jurisdiction is rare when a state legislature enacts something as under federal jurisdiction.^[d] To establish a federal system of national law, considerable effort goes into developing a spirit of comity between federal government and states. By the doctrine of 'Res judicata', federal courts give 'full faith and credit' to State Courts.^[e] The Supreme Court will decide Constitutional issues of state law only on a case by case basis, and only by strict Constitutional necessity, independent of state legislators motives, their policy outcomes or its national wisdom.^[f]

Section 3 bars Congress from changing or modifying Federal law on treason by simple majority statute. This section also defines treason, as an overt act of making war or materially helping those at war with the United States. Accusations must be corroborated by at least two witnesses. Congress is a political body and political disagreements routinely encountered should never be considered as treason. This allows for nonviolent resistance to the government because opposition is not a life or death proposition. However, Congress does provide for other lesser subversive crimes such as conspiracy.^[g]

Article Four

Article Four outlines the relations among the states and between each state and the federal government. In addition, it provides for such matters as admitting new states and border changes between the states. For instance, it requires states to give 'full faith and credit' to the public acts, records, and court proceedings of the other states. Congress is permitted to regulate the manner in which proof of such acts may be admitted. The 'privileges and immunities' clause prohibits state governments from discriminating against citizens of other states in favor of resident citizens. For instance, in criminal sentencing, a state may not increase a penalty on the grounds that the convicted person is a non-resident.

It also establishes extradition between the states, as well as laying down a legal basis for freedom of movement and travel amongst the states. Today, this provision is sometimes taken for granted, but in the days of the Articles of Confederation, crossing state lines was often arduous and costly. The Territorial Clause gives Congress the power to make rules for disposing of federal property and governing non-state territories of the United States. Finally, the fourth section of Article Four requires the United States to guarantee to each state a republican form of government, and to protect them from invasion and violence.

Article Five

Article Five outlines the process for amending the Constitution. Eight state constitutions in effect in 1787 included an amendment mechanism. Amendment making power rested with the legislature in three of the states and in the other five it was given to specially elected conventions. The Articles of Confederation provided that amendments were to be proposed by Congress and ratified by the unanimous vote of all thirteen state legislatures. This proved to be a major flaw in the Articles, as it created an insurmountable obstacle to constitutional reform. The amendment process crafted during the Philadelphia Constitutional Convention was, according to The Federalist No. 43, designed to establish a balance between pliancy and rigidity:^[53]

It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults. It moreover equally enables the General and the State Governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.

There are two steps in the amendment process. Proposals to amend the Constitution must be properly adopted and ratified before they change the Constitution. First, there are two procedures for adopting the language of a proposed amendment, either by (a) Congress, by two-thirds majority in both the Senate and the House of Representatives, or (b) national convention (which shall take place whenever two-thirds of the state legislatures collectively call for one). Second, there are two procedures for ratifying the proposed amendment, which requires three-fourths of the states' (presently 38 of 50) approval: (a) consent of the state legislatures, or (b) consent of state ratifying conventions. The ratification method is chosen by Congress for each amendment.^[54] State ratifying conventions were used only once, for the Twenty-first Amendment.^[55]

Presently, the Archivist of the United States is charged with responsibility for administering the ratification process under the provisions of 1 U.S. Code§ 106b. The Archivist submits the proposed amendment to the states for their consideration by sending a letter of notification to each Governor. Each Governor then formally submits the amendment to their state's legislature. When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state's action. Ratification documents are examined by the Office of the Federal Register for facial legal sufficiency and an authenticating signature.^[56]

Article Five ends by shielding certain clauses in the new frame of government from being amended. Article One, Section 9, Clauses 1 prevents Congress from passing any law that would restrict the importation of slaves into the United States prior to 1808, plus the fourth clause from that same section, which reiterates the Constitutional rule that direct taxes must be apportioned according to state populations. These clauses were explicitly shielded from Constitutional amendment prior to 1808. On January 1, 1808, the first day it was permitted to do so, Congress approved legislation prohibiting the importation of slaves into the country. On February 3, 1913, with ratification of the Sixteenth Amendment, Congress gained the authority to levy an income tax without apportioning it among the states or basing it on the United States Census. The third textually entrenched provision is Article One, Section 3, Clauses 1, which provides for equal representation of the states in the Senate. The shield protecting this clause from the amendment process is less absolute – 'no state, without its consent, shall be deprived of its equal Suffrage in the Senate' – but permanent.

Article Six

Article Six establishes the Constitution, and all federal laws and treaties of the United States made according to it, to be the supreme law of the land, and that 'the judges in every state shall be bound thereby, any thing in the laws or constitutions of any state notwithstanding.' It validates national debt created under the Articles of Confederation and requires that all federal and state legislators, officers, and judges take oaths or affirmations to support the Constitution. This means that the states' constitutions and laws should not conflict with the laws of the federal constitution and that in case of a conflict, state judges are legally bound to honor the federal laws and constitution over those of any state. Article Six also states 'no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.'

Article Seven

Article Seven describes the process for establishing the proposed new frame of government. Anticipating that the influence of many state politicians would be Antifederalist, delegates to the Philadelphia Convention provided for ratification of the Constitution by popularly elected ratifying conventions in each state. The convention method also made it possible that judges, ministers and others ineligible to serve in state legislatures, could be elected to a convention. Suspecting that Rhode Island, at least, might not ratify, delegates decided that the Constitution would go into effect as soon as nine states (two-thirds rounded up) ratified.^[57] Once ratified by this minimum number of states, it was anticipated that the proposed Constitution would become this Constitution between the nine or more that signed. It would not cover the four or fewer states that might not have signed.^[58]

Closing endorsement

The signing of the United States Constitution occurred on September 17, 1787, when 39 delegates to the Constitutional Convention endorsed the constitution created during the convention. In addition to signatures, this closing endorsement, the Constitution's eschatocol, included a brief declaration that the delegates' work has been successfully completed and that those whose signatures appear on it subscribe to the final document. Included are, a statement pronouncing the document's adoption by the states present, a formulaic dating of its adoption, and the signatures of those endorsing it. Additionally, the convention's secretary, William Jackson, signed the document to authenticate the validity of the delegate signatures. He also made a few secretarial notes.

The language of the concluding endorsement, conceived by Gouverneur Morris and presented to the convention by Benjamin Franklin, was made intentionally ambiguous in hopes of winning over the votes of dissenting delegates. Advocates for the new frame of government, realizing the impending difficulty of obtaining the consent of the states needed to make it operational, were anxious to obtain the unanimous support of the delegations from each state. It was feared that many of the delegates would refuse to give their individual assent to the Constitution. Therefore, in order that the action of the Convention would appear to be unanimous, the formula, Done in convention by the unanimous consent of the states present .. was devised.^[59]

The document is dated: 'the Seventeenth Day of September in the Year of our Lord' 1787, and 'of the Independence of the United States of America the Twelfth.' This two-fold epoch dating serves to place the Constitution in the context of the religious traditions of Western civilization and, at the same time, links it to the regime principles proclaimed in the Declaration of Independence. This dual reference can also be found in the Articles of Confederation and the Northwest Ordinance.^[59]

The closing endorsement serves an authentication function only. It neither assigns powers to the federal government nor does it provide specific limitations on government action. It does however, provide essential documentation of the Constitution's validity, a statement of 'This is what was agreed to.' It records who signed the Constitution, and when and where.

Ratified amendments

The Constitution has twenty-seven amendments. Structurally, the Constitution's original text and all prior amendments remain untouched. The precedent for this practice was set in 1789, when Congress considered and proposed the first several Constitutional amendments. Among these, Amendments 1–10 are collectively known as the Bill of Rights, and Amendments 13–15 are known as the Reconstruction Amendments. Excluding the Twenty-seventh Amendment, which was pending before the states for 202 years, 225 days, the longest pending amendment that was successfully ratified was the Twenty-second Amendment, which took 3 years, 343 days. The Twenty-sixth Amendment was ratified in the shortest time, 100 days. The average ratification time for the first twenty-six amendments was 1 year, 252 days, for all twenty-seven, 9 years, 48 days.

A proposed amendment becomes an operative part of the Constitution as soon as it is ratified by three-fourths of the States (currently 38 of the 50 States). There is no further step. The text requires no additional action by Congress or anyone else after ratification by the required number of states.^[60] Thus, when the Office of the Federal Register verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the nation's frame of government. This certification is published in the Federal Register and United States Statutes at Large and serves as official notice to Congress and to the nation that the ratification process has been successfully completed.^[56]

Safeguards of liberty (Amendments 1, 2, and 3)

The First Amendment (1791) prohibits Congress from obstructing the exercise of certain individual freedoms: freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and right to petition. Its Free Exercise Clause guarantees a person's right to hold whatever religious beliefs he or she wants, and to freely exercise that belief, and its Establishment Clause prevents the federal government from creating an official national church or favoring one set of religious beliefs over another. The amendment guarantees an individual's right to express and to be exposed to a wide range of opinions and views. It was intended to ensure a free exchange of ideas, even unpopular ones. It also guarantees an individual's right to physically gather or associate with others in groups for economic, political or religious purposes. Additionally, it guarantees an individual's right to petition the government for a redress of grievances.^[61]

The Second Amendment (1791) protects the right of individuals^[62][63] to keep and bear arms.^{[64][65][66][67]} Although the Supreme Court has ruled that this right applies to individuals, not merely to collective militias, it has also held that the government may regulate or place some limits on the manufacture, ownership and sale of firearms or other weapons.^[68][69] Requested by several states during the Constitutional ratification debates, the amendment reflected the lingering resentment over the widespread efforts of the British to confiscate the colonists' firearms at the outbreak of the Revolutionary War. Patrick Henry had rhetorically asked, shall we be stronger, 'when we are totally disarmed, and when a British Guard shall be stationed in every house?'^[70]

The Third Amendment (1791) prohibits the federal government from forcing individuals to provide lodging to soldiers in their homes during peacetime without their consent. Requested by several states during the Constitutional ratification debates, the amendment reflected the lingering resentment over the Quartering Acts passed by the British Parliament during the Revolutionary War, which had allowed British soldiers to take over private homes for their own use.^[71]

Safeguards of justice (Amendments 4, 5, 6, 7, and 8)

The Fourth Amendment (1791) protects people against unreasonable searches and seizures of either self or property by government officials. A search can mean everything from a frisking by a police officer or to a demand for a blood test to a search of an individual's home or car. A seizure occurs when the government takes control of an individual or something in his or her possession. Items that are seized often are used as evidence when the individual is charged with a crime. It also imposes certain limitations on police investigating a crime and prevents the use of illegally obtained evidence at trial.^[72]

The Fifth Amendment (1791) establishes the requirement that a trial for a major crime may commence only after an indictment has been handed down by a grand jury; protects individuals from double jeopardy, being tried and put in danger of being punished more than once for the same criminal act; prohibits punishment without due process of law, thus protecting individuals from being imprisoned without fair procedures; and provides that an accused person may not be compelled to reveal to the police, prosecutor, judge, or jury any information that might incriminate or be used against him or her in a court of law. Additionally, the Fifth Amendment also prohibits government from taking private property for public use without 'just compensation', the basis of eminent domain in the United States.^[73]

The Sixth Amendment (1791) provides several protections and rights to an individual accused of a crime. The accused has the right to a fair and speedy trial by a local and impartial jury. Likewise, a person has the right to a public trial. This right protects defendants from secret proceedings that might encourage abuse of the justice system, and serves to keep the public informed. This amendment also guarantees a right to legal counsel if accused of a crime, guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused, and guarantees the accused a right to know the charges against them. In 1966, the Supreme Court ruled that, with the Fifth Amendment, this amendment requires what has become known as the Miranda warning.^[74]

The Seventh Amendment (1791) extends the right to a jury trial to federal civil cases, and inhibits courts from overturning a jury's findings of fact. Although the Seventh Amendment itself says that it is limited to 'suits at common law', meaning cases that triggered the right to a jury under English law, the amendment has been found to apply in lawsuits that are similar to the old common law cases. For example, the right to a jury trial applies to cases brought under federal statutes that prohibit race or gender discrimination in housing or employment. Importantly, this amendment guarantees the right to a jury trial only in federal court, not in state court.^[75]

The Eighth Amendment (1791) protects people from having bail or fines set at an amount so high that it would be impossible for all but the richest defendants to pay and also protects people from being subjected to cruel and unusual punishment. Although this phrase originally was intended to outlaw certain gruesome methods of punishment, it has been broadened over the years to protect against punishments that are grossly disproportionate to or too harsh for the particular crime. This provision has also been used to challenge prison conditions such as extremely unsanitary cells, overcrowding, insufficient medical care and deliberate failure by officials to protect inmates from one another.^[76]

Unenumerated rights and reserved powers (Amendments 9 and 10)

The Ninth Amendment (1791) declares that individuals have other fundamental rights, in addition to those stated in the Constitution. During the Constitutional ratification debates Anti-Federalists argued that a Bill of Rights should be added. The Federalists opposed it on grounds that a list would necessarily be incomplete but would be taken as explicit and exhaustive, thus enlarging the power of the federal government by implication. The Anti-Federalists persisted, and several state ratification conventions refused to ratify the Constitution without a more specific list of protections, so the First Congress added what became the Ninth Amendment as a compromise. Because the rights protected by the Ninth Amendment are not specified, they are referred to as 'unenumerated'. The Supreme Court has found that unenumerated rights include such important rights as the right to travel, the right to vote, the right to privacy, and the right to make important decisions about one's health care or body.^[77]

The Tenth Amendment (1791) was included in the Bill of Rights to further define the balance of power between the federal government and the states. The amendment states that the federal government has only those powers specifically granted by the Constitution. These powers include the power to declare war, to collect taxes, to regulate interstate business activities and others that are listed in the articles or in subsequent constitutional amendments. Any power not listed is, says the Tenth Amendment, left to the states or the people. While there is no specific list of what these 'reserved powers' may be, the Supreme Court has ruled that laws affecting family relations, commerce within a state's own borders, and local law enforcement activities, are among those specifically reserved to the states or the people.^[78]

Governmental authority (Amendments 11, 16, 18, and 21)

The Eleventh Amendment (1795) specifically prohibits federal courts from hearing cases in which a state is sued by an individual from another state or another country, thus extending to the states sovereign immunity protection from certain types of legal liability. Article Three, Section 2, Clause 1 has been affected by this amendment, which also overturned the Supreme Court's decision in Chisholm v. Georgia.^[79][80]

The Sixteenth Amendment (1913) removed existing Constitutional constraints that limited the power of Congress to lay and collect taxes on income. Specifically, the apportionment constraints delineated in Article 1, Section 9, Clause 4 have been removed by this amendment, which also overturned an 1895 Supreme Court decision, in Pollock v. Farmers' Loan & Trust Co., that declared an unapportioned federal income tax on rents, dividends, and interest unconstitutional. This amendment has become the basis for all subsequent federal income tax legislation and has greatly expanded the scope of federal taxing and spending in the years since.^[81]

The Eighteenth Amendment (1919) prohibited the making, transporting, and selling of alcoholic beverages nationwide. It also authorized Congress to enact legislation enforcing this prohibition. Adopted at the urging of a national temperance movement, proponents believed that the use of alcohol was reckless and destructive and that prohibition would reduce crime and corruption, solve social problems, decrease the need for welfare and prisons, and improve the health of all Americans. During prohibition, it is estimated that alcohol consumption and alcohol related deaths declined dramatically. But prohibition had other, more negative consequences. The amendment drove the lucrative alcohol business underground, giving rise to a large and pervasive black market. In addition, prohibition encouraged disrespect for the law and strengthened organized crime. Prohibition came to an end in 1933, when this amendment was repealed.^[82]

The Twenty-first Amendment (1933) repealed the Eighteenth Amendment and returned the regulation of alcohol to the states. Each state sets its own rules for the sale and importation of alcohol, including the drinking age. Because a federal law provides federal funds to states that prohibit the sale of alcohol to minors under the age of twenty-one, all fifty states have set their drinking age there. Rules about how alcohol is sold vary greatly from state to state.^[83]

Safeguards of civil rights (Amendments 13, 14, 15, 19, 23, 24, and 26)

The Thirteenth Amendment (1865) abolished slavery and involuntary servitude, except as punishment for a crime, and authorized Congress to enforce abolition. Though millions of slaves had been declared free by the 1863 Emancipation Proclamation, their post Civil War status was unclear, as was the status of other millions.^[84] Congress intended the Thirteenth Amendment to be a proclamation of freedom for all slaves throughout the nation and to take the question of emancipation away from politics. This amendment rendered inoperative or moot several of the original parts of the constitution.^[85]

The Fourteenth Amendment (1868) granted United States citizenship to former slaves and to all persons 'subject to U.S. jurisdiction'. It also contained three new limits on state power: a state shall not violate a citizen's privileges or immunities; shall not deprive any person of life, liberty, or property without due process of law; and must guarantee all persons equal protection of the laws. These limitations dramatically expanded the protections of the Constitution. This amendment, according to the Supreme Court's Doctrine of Incorporation, makes most provisions of the Bill of Rights applicable to state and local governments as well. It superseded the mode of apportionment of representatives delineated in Article 1, Section 2, Clause 3, and also overturned the Supreme Court's decision in Dred Scott v. Sandford.^[86]

The Fifteenth Amendment (1870) prohibits the use of race, color, or previous condition of servitude in determining which citizens may vote. The last of three post Civil War Reconstruction Amendments, it sought to abolish one of the key vestiges of slavery and to advance the civil rights and liberties of former slaves.^[87]

The Nineteenth Amendment (1920) prohibits the government from denying women the right to vote on the same terms as men. Prior to the amendment's adoption, only a few states permitted women to vote and to hold office.^[88]

The Twenty-third Amendment (1961) extends the right to vote in presidential elections to citizens residing in the District of Columbia by granting the District electors in the Electoral College, as if it were a state. When first established as the nation's capital in 1800, the District of Columbia's five thousand residents had neither a local government, nor the right to vote in federal elections. By 1960 the population of the District had grown to over 760,000 people.^[89]

The Twenty-fourth Amendment (1964) prohibits a poll tax for voting. Although passage of the Thirteenth, Fourteenth, and Fifteenth Amendments helped remove many of the discriminatory laws left over from slavery, they did not eliminate all forms of discrimination. Along with literacy tests and durational residency requirements, poll taxes were used to keep low-income (primarily African American) citizens from participating in elections. The Supreme Court has since struck down these discriminatory measures, opening democratic participation to all.^[90]

The Twenty-sixth Amendment (1971) prohibits the government from denying the right of United States citizens, eighteen years of age or older, to vote on account of age. The drive to lower the voting age was driven in large part by the broader student activism movement protesting the Vietnam War. It gained strength following the Supreme Court's decision in Oregon v. Mitchell.^[91]

Government processes and procedures (Amendments 12, 17, 20, 22, 25, and 27)

The Twelfth Amendment (1804) modifies the way the Electoral College chooses the President and Vice President. It stipulates that each elector must cast a distinct vote for President and Vice President, instead of two votes for President. It also suggests that the President and Vice President should not be from the same state. Article II, Section 1, Clause 3 is superseded by this amendment, which also extends the eligibility requirements to become President to the Vice President.^[92]

The Seventeenth Amendment (1913) modifies the way senators are elected. It stipulates that senators are to be elected by direct popular vote. The amendment supersedes Article 1, Section 2, Clauses 1 and 2, under which the two senators from each state were elected by the state legislature. It also allows state legislatures to permit their governors to make temporary appointments until a special election can be held.^[93]

The Twentieth Amendment (1933) changes the date on which a new President, Vice President and Congress take office, thus shortening the time between Election Day and the beginning of Presidential, Vice Presidential and Congressional terms.^[94] Originally, the Constitution provided that the annual meeting was to be on the first Monday in December unless otherwise provided by law. This meant that, when a new Congress was elected in November, it did not come into office until the following March, with a 'lame duck' Congress convening in the interim. By moving the beginning of the president's new term from March 4 to January 20 (and in the case of Congress, to January 3), proponents hoped to put an end to lame duck sessions, while allowing for a speedier transition for the new administration and legislators.^[95]

The Twenty-second Amendment (1951) limits an elected president to two terms in office, a total of eight years. However, under some circumstances it is possible for an individual to serve more than eight years. Although nothing in the original frame of government limited how many presidential terms one could serve, the nation's first president, George Washington, declined to run for a third term, suggesting that two terms of four years were enough for any president. This precedent remained an unwritten rule of the presidency until broken by Franklin D. Roosevelt, who was elected to a third term as president 1940 and in 1944 to a fourth.^[96]

The Twenty-fifth Amendment (1967) clarifies what happens upon the death, removal, or resignation of the President or Vice President and how the Presidency is temporarily filled if the President becomes disabled and cannot fulfill the responsibilities of the office. It supersedes the ambiguous succession rule established in Article II, Section 1, Clause 6. A concrete plan of succession has been needed on multiple occasions since 1789. However, for nearly 20% of U.S. history, there has been no vice president in office who can assume the presidency.^[97]

The Twenty-seventh Amendment (1992) prevents members of Congress from granting themselves pay raises during the current session. Rather, any raises that are adopted must take effect during the next session of Congress. Its proponents believed that Federal legislators would be more likely to be cautious about increasing congressional pay if they have no personal stake in the vote. Article One, section 6, Clause 1 has been affected by this amendment, which remained pending for over two centuries as it contained no time limit for ratification.^[98]

Unratified amendments

Collectively, members of the House and Senate typically propose around 200 amendments during each two-year term of Congress.^[99] Most however, never get out of the Congressional committees in which they were proposed, and only a fraction of those that do receive enough support to win Congressional approval to actually go through the constitutional ratification process.

Six amendments approved by Congress and proposed to the states for consideration have not been ratified by the required number of states to become part of the Constitution. Four of these are technically still pending, as Congress did not set a time limit (see also Coleman v. Miller) for their ratification. The other two are no longer pending, as both had a time limit attached and in both cases the time period set for their ratification expired.

Still pending

• The Congressional Apportionment Amendment (proposed 1789) would, if ratified, establish a formula for determining the appropriate size of the House of Representatives and the appropriate apportionment of representatives among the states following each constitutionally mandated decennial census. At the time it was sent to the states for ratification, an affirmative vote by ten states would have made this amendment operational. In 1791 and 1792, when Vermont and Kentucky joined the Union, the number climbed to twelve. Thus, the amendment remained one state shy of the number needed for it to become part of the Constitution. No additional states have ratified this amendment since. To become part of the Constitution today, ratification by an additional twenty-seven would be required. The Apportionment Act of 1792 apportioned the House of Representatives at 33,000 persons per representative in consequence of the 1790 census. Reapportionment has since been effected by statute.
• The Titles of Nobility Amendment (proposed 1810) would, if ratified, strip United States citizenship from any citizen who accepted a title of nobility from a foreign country. When submitted to the states, ratification by thirteen states was required for it to become part of the Constitution; eleven had done so by early 1812. However, with the addition of Louisiana into the Union that year (April 30, 1812), the ratification threshold rose to fourteen. Thus, when New Hampshire ratified it in December 1812, the amendment again came within two states of being ratified. No additional states have ratified this amendment since. To become part of the Constitution today, ratification by an additional twenty-six would be required.
• The Corwin Amendment (proposed 1861) would, if ratified, shield 'domestic institutions' of the states (which in 1861 included slavery) from the constitutional amendment process and from abolition or interference by Congress. This proposal was one of several measures considered by Congress in an ultimately unsuccessful attempt to attract the seceding states back into the Union and to entice border slave states to stay.^[100] Five states ratified the amendment in the early 1860s, but none have since. To become part of the Constitution today, ratification by an additional 33 states would be required. The subject of this proposal was subsequently addressed by the 1865 Thirteenth Amendment, which abolished slavery.
• The Child Labor Amendment (proposed 1924) would, if ratified, specifically authorize Congress to limit, regulate and prohibit labor of persons less than eighteen years of age. The amendment was proposed in response to Supreme Court rulings in Hammer v. Dagenhart (1918) and Bailey v. Drexel Furniture Co. (1922) that found federal laws regulating and taxing goods produced by employees under the ages of 14 and 16 unconstitutional. When submitted to the states, ratification by 36 states was required for it to become part of the Constitution, as there were forty-eight states. Twenty-eight had ratified the amendment by early 1937, but none have done so since. To become part of the Constitution today, ratification by an additional ten would be required.^[101] A federal statute approved June 25, 1938, regulated the employment of those under 16 or 18 years of age in interstate commerce. The Supreme Court, by unanimous vote in United States v. Darby Lumber Co. (1941), found this law constitutional, effectively overturning Hammer v. Dagenhart. As a result of this development, the movement pushing for the amendment concluded.^[102]

No longer pending

• The Equal Rights Amendment (proposed 1972) would have prohibited deprivation of equality of rights (discrimination) by the federal or state governments on account of sex. A seven-year ratification time limit was initially placed on the amendment, but as the deadline approached, Congress granted a three-year extension. Thirty-five states ratified the proposed amendment prior to the original deadline, three short of the number required for it to be implemented (five of them later voted to rescind their ratification). No further states ratified the amendment within the extended deadline, thus it failed to be adopted. On March 22, 2017, the 45th anniversary of Congress' submission of the ERA to the nation's state lawmakers, the Nevada Legislature became the first to ratify the ERA after the expiration of both deadlines^[103] with its adoption of Senate Joint Resolution No. 2 (designated as 'POM-15' by the U.S. Senate and published verbatim in the Congressional Record of April 5, 2017, at pages S2361 and S2362).^[104] The Illinois General Assembly ratified the ERA on May 30, 2018.
• The District of Columbia Voting Rights Amendment (proposed 1978) would have granted the District of Columbia full representation in the United States Congress as if it were a state, repealed the 23rd Amendment, granted the District unconditional Electoral College voting rights, and allowed its participation in the process by which the Constitution is amended. A seven-year ratification time limit was placed on the amendment. Sixteen states ratified the amendment (twenty-two short of the number required for it to be implemented) prior to the deadline, thus it failed to be adopted.

Judicial review

The way the Constitution is understood is influenced by court decisions, especially those of the Supreme Court. These decisions are referred to as precedents. Judicial review is the power of the Court to examine federal legislation, federal executive, and all state branches of government, to decide their constitutionality, and to strike them down if found unconstitutional.

Judicial review includes the power of the Court to explain the meaning of the Constitution as it applies to particular cases. Over the years, Court decisions on issues ranging from governmental regulation of radio and television to the rights of the accused in criminal cases have changed the way many constitutional clauses are interpreted, without amendment to the actual text of the Constitution.

Legislation passed to implement the Constitution, or to adapt those implementations to changing conditions, broadens and, in subtle ways, changes the meanings given to the words of the Constitution. Up to a point, the rules and regulations of the many federal executive agencies have a similar effect. If an action of Congress or the agencies is challenged, however, it is the court system that ultimately decides whether these actions are permissible under the Constitution.

The Supreme Court has indicated that once the Constitution has been extended to an area (by Congress or the Courts), its coverage is irrevocable. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say 'what the law is'.^[h]

Scope and theory

Courts established by the Constitution can regulate government under the Constitution, the supreme law of the land. First, they have jurisdiction over actions by an officer of government and state law. Second, federal courts may rule on whether coordinate branches of national government conform to the Constitution. Until the twentieth century, the Supreme Court of the United States may have been the only high tribunal in the world to use a court for constitutional interpretation of fundamental law, others generally depending on their national legislature.^[105]

The basic theory of American Judicial review is summarized by constitutional legal scholars and historians as follows: the written Constitution is fundamental law. It can change only by extraordinary legislative process of national proposal, then state ratification. The powers of all departments are limited to enumerated grants found in the Constitution. Courts are expected (a) to enforce provisions of the Constitution as the supreme law of the land, and (b) to refuse to enforce anything in conflict with it.^[106]

In Convention. As to judicial review and the Congress, the first proposals by Madison (Va) and Wilson (Pa) called for a supreme court veto over national legislation. In this it resembled the system in New York, where the Constitution of 1777 called for a 'Council of Revision' by the Governor and Justices of the state supreme court. The Council would review and in a way, veto any passed legislation violating the spirit of the Constitution before it went into effect. The nationalist's proposal in Convention was defeated three times, and replaced by a presidential veto with Congressional over-ride. Judicial review relies on the jurisdictional authority in Article III, and the Supremacy Clause.^[107]

The justification for judicial review is to be explicitly found in the open ratifications held in the states and reported in their newspapers. John Marshall in Virginia, James Wilson in Pennsylvania and Oliver Ellsworth of Connecticut all argued for Supreme Court judicial review of acts of state legislature. In Federalist No. 78, Alexander Hamilton advocated the doctrine of a written document held as a superior enactment of the people. 'A limited constitution can be preserved in practice no other way' than through courts which can declare void any legislation contrary to the Constitution. The preservation of the people's authority over legislatures rests 'particularly with judges'.^[108][i]

The Supreme Court was initially made up of jurists who had been intimately connected with the framing of the Constitution and the establishment of its government as law. John Jay (New York), a co-author of The Federalist Papers, served as Chief Justice for the first six years. The second Chief Justice for a term of four years, was Oliver Ellsworth (Connecticut), a delegate in the Constitutional Convention, as was John Rutledge (South Carolina), Washington's recess appointment as Chief Justice who served in 1795. John Marshall (Virginia), the fourth Chief Justice, had served in the Virginia Ratification Convention in 1788. His service on the Court would extend 34 years over some of the most important rulings to help establish the nation the Constitution had begun. In the first years of the Supreme Court, members of the Constitutional Convention who would serve included James Wilson (Pennsylvania) for ten years, John Blair Jr. (Virginia) for five, and John Rutledge (South Carolina) for one year as Justice, then Chief Justice in 1795.

Establishment

When John Marshall followed Oliver Ellsworth as Chief Justice of the Supreme Court in 1801, the federal judiciary had been established by the Judiciary Act, but there were few cases, and less prestige. 'The fate of judicial review was in the hands of the Supreme Court itself.' Review of state legislation and appeals from state supreme courts was understood. But the Court's life, jurisdiction over state legislation was limited. The Marshall Court's landmark Barron v. Baltimore held that the Bill of Rights restricted only the federal government, and not the states.^[108]

In the landmark Marbury v. Madison case, the Supreme Court asserted its authority of judicial review over Acts of Congress. Its findings were that Marbury and the others had a right to their commissions as judges in the District of Columbia. Marshall, writing the opinion for the majority, announced his discovered conflict between Section 13 of the Judiciary Act of 1789 and Article III.^[j][110][k] In this case, both the Constitution and the statutory law applied to the particulars at the same time. 'The very essence of judicial duty' according to Marshall was to determine which of the two conflicting rules should govern. The Constitution enumerates powers of the judiciary to extend to cases arising 'under the Constitution'. Further, justices take a Constitutional oath to uphold it as 'Supreme law of the land'.^[111] Therefore, since the United States government as created by the Constitution is a limited government, the Federal courts were required to choose the Constitution over Congressional law if there were deemed to be a conflict.

'This argument has been ratified by time and by practice..'^[l][m] The Supreme Court did not declare another Act of Congress unconstitutional until the controversial Dred Scott decision in 1857, held after the voided Missouri Compromise statute had already been repealed. In the eighty years following the Civil War to World War II, the Court voided Congressional statutes in 77 cases, on average almost one a year.^[113]

Something of a crisis arose when, in 1935 and 1936, the Supreme Court handed down twelve decisions voiding Acts of Congress relating to the New Deal. President Franklin D. Roosevelt then responded with his abortive 'court packing plan'. Other proposals have suggested a Court super-majority to overturn Congressional legislation, or a Constitutional Amendment to require that the Justices retire at a specified age by law. To date, the Supreme Court's power of judicial review has persisted.^[109]

Self-restraint

The power of judicial review could not have been preserved long in a democracy unless it had been 'wielded with a reasonable measure of judicial restraint, and with some attention, as Mr. Dooley said, to the election returns.' Indeed, the Supreme Court has developed a system of doctrine and practice that self-limits its power of judicial review.^[114]

The Court controls almost all of its business by choosing what cases to consider, writs of certiorari. In this way, it can avoid opinions on embarrassing or difficult cases. The Supreme Court limits itself by defining for itself what is a 'justiciable question.' First, the Court is fairly consistent in refusing to make any 'advisory opinions' in advance of actual cases.^[n] Second, 'friendly suits' between those of the same legal interest are not considered. Third, the Court requires a 'personal interest', not one generally held, and a legally protected right must be immediately threatened by government action. Cases are not taken up if the litigant has no standing to sue. Simply having the money to sue and being injured by government action are not enough.^[114]

These three procedural ways of dismissing cases have led critics to charge that the Supreme Court delays decisions by unduly insisting on technicalities in their 'standards of litigability'. They say cases are left unconsidered which are in the public interest, with genuine controversy, and resulting from good faith action. 'The Supreme Court is not only a court of law but a court of justice.'^[115]

Separation of powers

The Supreme Court balances several pressures to maintain its roles in national government. It seeks to be a co-equal branch of government, but its decrees must be enforceable. The Court seeks to minimize situations where it asserts itself superior to either President or Congress, but federal officers must be held accountable. The Supreme Court assumes power to declare acts of Congress as unconstitutional but it self-limits its passing on constitutional questions.^[116] But the Court's guidance on basic problems of life and governance in a democracy is most effective when American political life reinforce its rulings.^[117]

Justice Brandeis summarized four general guidelines that the Supreme Court uses to avoid constitutional decisions relating to Congress:^[o] The Court will not anticipate a question of constitutional law nor decide open questions unless a case decision requires it. If it does, a rule of constitutional law is formulated only as the precise facts in the case require. The Court will choose statutes or general law for the basis of its decision if it can without constitutional grounds. If it does, the Court will choose a constitutional construction of an Act of Congress, even if its constitutionality is seriously in doubt. ^[116]

Likewise with the Executive Department, Edwin Corwin observed that the Court does sometimes rebuff presidential pretensions, but it more often tries to rationalize them. Against Congress, an Act is merely 'disallowed'. In the executive case, exercising judicial review produces 'some change in the external world' beyond the ordinary judicial sphere.^[118] The 'political question' doctrine especially applies to questions which present a difficult enforcement issue. Chief Justice Charles Evans Hughes addressed the Court's limitation when political process allowed future policy change, but a judicial ruling would 'attribute finality'. Political questions lack 'satisfactory criteria for a judicial determination'.^[119]

John Marshall recognized that the president holds 'important political powers' which as Executive privilege allows great discretion. This doctrine was applied in Court rulings on President Grant's duty to enforce the law during Reconstruction. It extends to the sphere of foreign affairs. Justice Robert Jackson explained, Foreign affairs are inherently political, 'wholly confided by our Constitution to the political departments of the government .. [and] not subject to judicial intrusion or inquiry.'^[120]

Critics of the Court object in two principal ways to self-restraint in judicial review, deferring as it does as a matter of doctrine to Acts of Congress and Presidential actions.

1. Its inaction is said to allow 'a flood of legislative appropriations' which permanently create an imbalance between the states and federal government.
2. Supreme Court deference to Congress and the executive compromises American protection of civil rights, political minority groups and aliens.^[121]

Subsequent Courts

Supreme Courts under the leadership of subsequent Chief Justices have also used judicial review to interpret the Constitution among individuals, states and federal branches. Notable contributions were made by the Chase Court, the Taft Court, the Warren Court, and the Rehnquist Court.

Salmon P. Chase was a Lincoln appointee, serving as Chief Justice from 1864 to 1873. His career encompassed service as a U.S. Senator and Governor of Ohio. He coined the slogan, 'Free soil, free Labor, free men.' One of Lincoln's 'team of rivals', he was appointed Secretary of Treasury during the Civil War, issuing 'greenbacks'. To appease radical Republicans, Lincoln appointed him to replace Chief Justice Roger B. Taney of Dred Scott case fame.

In one of his first official acts, Chase admitted John Rock, the first African-American to practice before the Supreme Court. The 'Chase Court' is famous for Texas v. White, which asserted a permanent Union of indestructible states. Veazie Bank v. Fenno upheld the Civil War tax on state banknotes. Hepburn v. Griswold found parts of the Legal Tender Acts unconstitutional, though it was reversed under a late Supreme Court majority.

William Howard Taft was a Harding appointment to Chief Justice from 1921 to 1930. A Progressive Republican from Ohio, he was a one-term President.

As Chief Justice, he advocated the Judiciary Act of 1925 that brought the Federal District Courts under the administrative jurisdiction of the Supreme Court. Taft successfully sought the expansion of Court jurisdiction over non- states such as District of Columbia and Territories of Alaska and Hawaii.

In 1925, the Taft Court issued a ruling overturning a Marshall Court ruling on the Bill of Rights. In Gitlow v. New York, the Court established the doctrine of 'incorporation which applied the Bill of Rights to the states. Important cases included the Board of Trade of City of Chicago v. Olsen that upheld Congressional regulation of commerce. Olmstead v. United States allowed exclusion of evidence obtained without a warrant based on application of the 14th Amendment proscription against unreasonable searches. Wisconsin v. Illinois ruled the equitable power of the United States can impose positive action on a state to prevent its inaction from damaging another state.

Earl Warren was an Eisenhower nominee, Chief Justice from 1953 to 1969. Warren's Republican career in the law reached from County Prosecutor, California state attorney general, and three consecutive terms as Governor. His programs stressed progressive efficiency, expanding state education, re-integrating returning veterans, infrastructure and highway construction.

In 1954, the Warren Court overturned a landmark Fuller Court ruling on the Fourteenth Amendment interpreting racial segregation as permissible in government and commerce providing 'separate but equal' services. Warren built a coalition of Justices after 1962 that developed the idea of natural rights as guaranteed in the Constitution. Brown v. Board of Education banned segregation in public schools. Baker v. Carr and Reynolds v. Sims established Court ordered 'one-man-one-vote'. Bill of Rights Amendments were incorporated into the states. Due process was expanded in Gideon v. Wainwright and Miranda v. Arizona. First Amendment rights were addressed in Griswold v. Connecticut concerning privacy, and Engel v. Vitale relative to free speech.

William Rehnquist was a Reagan appointment to Chief Justice, serving from 1986 to 2005. While he would concur with overthrowing a state supreme court's decision, as in Bush v. Gore, he built a coalition of Justices after 1994 that developed the idea of federalism as provided for in the Tenth Amendment. In the hands of the Supreme Court, the Constitution and its Amendments were to restrain Congress, as in City of Boerne v. Flores.

Nevertheless, the Rehnquist Court was noted in the contemporary 'culture wars' for overturning state laws relating to privacy prohibiting late-term abortions in Stenberg v. Carhart, prohibiting sodomy in Lawrence v. Texas, or ruling so as to protect free speech in Texas v. Johnson or affirmative action in Grutter v. Bollinger.

Civic religion

There is a viewpoint that some Americans have come to see the documents of the Constitution, along with the Declaration of Independence and the Bill of Rights, as being a cornerstone of a type of civil religion. This is suggested by the prominent display of the Constitution, along with the Declaration of Independence and the Bill of Rights, in massive, bronze-framed, bulletproof, moisture-controlled glass containers vacuum-sealed in a rotunda by day and in multi-ton bomb-proof vaults by night at the National Archives Building.^[122]

The idea of displaying the documents struck one academic critic looking from the point of view of the 1776 or 1789 America as 'idolatrous, and also curiously at odds with the values of the Revolution'.^[122] By 1816, Jefferson wrote that '[s]ome men look at constitutions with sanctimonious reverence and deem them like the Ark of the Covenant, too sacred to be touched'. But he saw imperfections and imagined that there could potentially be others, believing as he did that 'institutions must advance also'.^[123]

Some commentators depict the multi-ethnic, multi-sectarian United States as held together by a political orthodoxy, in contrast with a nation state of people having more 'natural' ties.^[124][125]

Worldwide influence

The United States Constitution has been a notable model for governance around the world. Its international influence is found in similarities of phrasing and borrowed passages in other constitutions, as well as in the principles of the rule of law, separation of powers and recognition of individual rights. The American experience of fundamental law with amendments and judicial review has motivated constitutionalists at times when they were considering the possibilities for their nation's future.^[126] It informed Abraham Lincoln during the American Civil War,^[t] his contemporary and ally Benito Juárez of Mexico,^[u] and the second generation of 19th-century constitutional nationalists, José Rizal of the Philippines^[v] and Sun Yat-sen of China.^[w] Since the latter half of the 20th century, the influence of the United States Constitution may be waning as other countries have revised their constitutions with new influences.^[132][133]

Criticisms

The United States Constitution has faced various criticisms since its inception in 1787.

The Constitution did not originally define who was eligible to vote, allowing each state to determine who was eligible. In the early history of the U.S., most states allowed only white male adult property owners to vote.^{[134][135][136]} Until the Reconstruction Amendments were adopted between 1865 and 1870, the five years immediately following the Civil War, the Constitution did not abolish slavery, nor give citizenship and voting rights to former slaves.^[137] These amendments did not include a specific prohibition on discrimination on the basis of sex; it took another amendment – the Nineteenth, ratified in 1920 – for the Constitution to prohibit any United States citizen from being denied the right to vote on the basis of sex.^[138]

See also

• Commentaries on the Constitution of the United States by Joseph Story (three volumes)
• List of national constitutions (world countries)

Related documents

• Mayflower Compact (1620)
• Fundamental Orders of Connecticut (1639)
• Massachusetts Body of Liberties (1641)
• Bill of Rights 1689 – English Bill of Rights
• United States Declaration of Independence (1776)
• Virginia Statute for Religious Freedom (1779)
• Constitution of Massachusetts (1780)

Notes

1. ^Historically, the first written constitution of an independent polity which was adopted by representatives elected by the people was the 1755 Corsican Constitution, despite being short-lived, drafted by Pasquale Paoli, whose work was an inspiration for many American patriots,^[10] including the Hearts of Oak, originally named 'The Corsicans', and the Sons of Liberty.^[11]

   Earlier written constitutions of independent states exist but were not adopted by bodies elected by the people, such as the Swedish Constitution of 1772, adopted by the king, the Constitution of San Marino of 1600 which is the oldest surviving constitution in the world, or the Constitution of Pylyp Orlyk, the first establishing separation of powers.

2. ^The Judiciary Act of 1789 established six Supreme Court justices. The number was periodically increased, reaching ten in 1863, allowing Lincoln additional appointments. After the Civil War, vacancies reduced the number to seven. Congress finally fixed the number at nine.
3. ^The four concepts which determine 'justiciability', the formula for a federal court taking and deciding a case, are the doctrines of (a) standing, (b) real and substantial interests, (c) adversity, and (d) avoidance of political questions.^[51]
4. ^Judicial Review is explained in Hamilton's Federalist No. 78. It also has roots in Natural Law expressions in the Declaration of Independence. The Supreme Court first ruled an act of Congress unconstitutional in Marbury v. Madison, the second was Dred Scott.^[51]
5. ^For instance, 'collateral estoppel' directs that when a litigant wins in a state court, they cannot sue in federal court to get a more favorable outcome.
6. ^Recently numerous habeas corpus reforms have tried to preserve a working 'relationship of comity' and simultaneously streamline the process for state and lower courts to apply Supreme Court interpretations.^[51]
7. ^Contrary to this source when viewed, the Constitution provides that punishments, including forfeiture of income and property, must apply to the person convicted. 'No attainder of treason shall work corruption of blood or forfeiture' on the convicted traitor's children or heirs. This avoids the perpetuation of civil war into the generations by Parliamentary majorities as in the Wars of the Roses.^[51]
8. ^Downes v. Bidwell, 182 U.S. 244, 261 (1901), commenting on an earlier Supreme Court decision, Loughborough v. Blake, 18 U.S. (5 Wheat.) 317 (1820); Rasmussen v. United States, 197 U.S. 516, 529–530, 536 (1905)(concurring opinions of Justices Harlan and Brown), that once the Constitution has been extended to an area, its coverage is irrevocable; Boumediene v. Bush – That where the Constitution has been once formally extended by Congress to territories, neither Congress nor the territorial legislature can enact laws inconsistent therewith. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.
9. ^The Supreme Court found 658 cases of invalid state statutes from 1790 to 1941 before the advent of civil rights cases in the last half of the twentieth century^[109]
10. ^In this, John Marshall leaned on the argument of Hamilton in Federalist No. 78.
11. ^Although it may be that the true meaning of the Constitution to the people of the United States in 1788 can only be divined by a study of the state ratification conventions, the Supreme Court has used The Federalist Papers as a supplemental guide to the Constitution since their co-author, John Jay, was the first Chief Justice.
12. ^The entire quote reads, 'This argument has been ratified by time and by practice, and there is little point in quibbling with it. Of course, the President also takes an oath to support the Constitution.'^[112]
13. ^The presidential reference is to Andrew Jackson's disagreement with Marshall's Court over Worcester v. Georgia, finding Georgia could not impose its laws in Cherokee Territory. Jackson replied, 'John Marshall has made his decision; now let him enforce it!', and the Trail of Tears proceeded. Jackson would not politically interpose the U.S. Army between Georgia and the Cherokee people as Eisenhower would do between Arkansas and the integrating students.
14. ^'Advisory opinions' are not the same as 'declaratory judgments.' (a) These address rights and legal relationships in cases of 'actual controversy', and (b) the holding has the force and effect of a final judgment. (c) There is no coercive order, as the parties are assumed to follow the judgment, but a 'declaratory judgment' is the basis of any subsequent ruling in case law.
15. ^Louis Brandeis concurring opinion, Ashwander v. Tennessee Valley Authority, 1936.
16. ^The Chase Court, 1864–1873, in 1865 were the Hon. Salmon P. Chase, Chief Justice, U.S.; Hon. Nathan Clifford, Maine; Stephen J. Field, Justice Supreme Court, U.S.; Hon. Samuel F. Miller, U.S. Supreme Court; Hon. Noah H. Swayne, Justice Supreme Court, U.S.; Judge Morrison R. Waite
17. ^The Taft Court, 1921–1930, in 1925 were James Clark McReynolds, Oliver Wendell Holmes Jr., William Howard Taft (Chief Justice), Willis Van Devanter, Louis Brandeis. Edward Sanford, George Sutherland, Pierce Butler, Harlan Fiske Stone
18. ^The Warren Court, 1953–1969, in 1963 were Felix Frankfurter; Hugo Black; Earl Warren (Chief Justice); Stanley Reed; WIlliam O. Douglas. Tom Clark; Robert H. Jackson; Harold Burton; Sherman Minton
19. ^The Rehnquist Court, 1986–2005.
20. ^'Secession was indeed unconstitutional .. military resistance to secession was not only constitutional but also morally justified.^[127] 'the primary purpose of the Constitution was .. to create 'a more perfect union' .. the Constitution was an exercise in nation building.^[128]
21. ^Juarez regarded the United States as a model of republican democracy and consistently supported Abraham Lincoln.^[129]
22. ^The institutions of the two countries which have most influenced constitutional development are Spain and the United States'. One of the reforms, 'sine quibus non', to use the words of Rizal and Mabini, always insisted upon by the Filipinos, was Philippine representation in the Spanish Cortez, the promulgation in the Islands of the Spanish Constitution, and the complete assimilation equal to that of any in the Spanish provinces on the continent.^[130]
23. ^In the modern history of China, there were many revolutionaries who tried to seek the truth from the West in order to overthrow the feudal system of the Qing dynasty. Dr. Sun Yat-sen, for example, was much influenced by American democracy, especially the U.S. Constitution.^[131]

References

Footnotes

1. ^16 Am. Jur. 2d Constitutional Law § 10; 'The Constitution went into effect in March of 1789.' Referring to Owings v. Speed, 18 U.S. 420, 5 L. Ed. 124 (1820), 'The present Constitution of the United States did not commence its operation until the first Wednesday in March, 1789.'
2. ^Maier 2010, p. 35
3. ^Goodlatte says U.S. has the oldest working national constitution, Politifact Virginia website, September 22, 2014.
4. ^United States Senate (1992). 'Amendments to the Constitution of the United States of America'(PDF). The Constitution of the United States of America: Analysis and Interpretation(PDF) format= requires url= (help). U.S. Government Printing Office. p. 25 n.2. ISBN9780160632686.
5. ^ ^ab'Constitution Day'. Senate.gov. United States Senate. Retrieved September 10, 2016.
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7. ^Lloyd, Gordon. 'Introduction to the Bill of Rights'. TeachingAmericanHistory.org. The Ashbrook Center at Ashland University. Retrieved September 21, 2014.
8. ^'America's Founding Documents'. October 30, 2015.
9. ^'Differences between Parchment, Vellum and Paper'. August 15, 2016.
10. ^'Pasquale Paoli – Corsican statesman'.
11. ^Ruppert, Bob. 'Paoli: Hero of the Sons of Liberty'. Journal of the American Revolution. Retrieved May 20, 2017.
12. ^McLaughlin, Andrew C. (1936). 'A constitutional History of the United States'. New York, London: D. Appleton-Century Company. pp. 83–90. Archived from the original on September 16, 2014. Retrieved August 27, 2014.
13. ^Morris, Richard B. (December 28, 1976). Presidential Address (Speech). American Historical Association. Retrieved June 8, 2014.
14. ^Fritz, Christian G. (2008). American Sovereigns: The People and America's Constitutional Tradition Before the Civil War. New York: Cambridge University Press. p. 131. ISBN978-0-521-88188-3; noting that 'Madison, along with other Americans clearly understood' the Articles of Confederation 'to be the first federal Constitution'.
15. ^Jensen, Merrill (1950). The New Nation: A History of the United States During the Confederation, 1781–1789. Boston: Northeastern University Press. pp. 177–233. ISBN978-0-930350-14-7.
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17. ^ ^abcdefMaier 2010, pp. 11–13
18. ^Maier 2010, pp. 12–13, 19.
19. ^Bowen 2010, pp. 129–130.
20. ^Bowen 2010, p. 31.
21. ^Maier 2010, pp. 15–16.
22. ^Maier 2010, p. 13.
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24. ^Maier 2010, pp. 14, 30, 66.
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113. ^Pritchett 1959, pp. 141–142.
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• Maier, Pauline (2010). Ratification: The People Debate the Constitution, 1787–1788. New York: Simon & Schuster. ISBN978-0-684-86854-7.
• Malcolm, George A. (1920). 'Constitutional History of the Philippines'. American Bar Association Journal. 6.
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• Qing Yu, Li (1988). 'Dr. Sun Yat Sen and the U.S. Constitution'. In Starr, Joseph Barton (ed.). The United States Constitution: Its Birth, Growth, and Influence in Asia. Hong Kong: Hong Kong University Press. ISBN978-962-209-201-3.
• Stacy, Lee, ed. (2003). Mexico and the United States. vol. 2. London: Marshall Cavendish. ISBN978-0-7614-7402-9.
• Wood, Gordon (1998). The Creation of the American Republic, 1776–1787. Chapel Hill: University of North Carolina Press. ISBN978-0-8078-4723-7.

Further reading

• Bailyn, Bernard, ed. (1993). The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle for Ratification. Part One: September 1787 to February 1788. The Library of America.
• Bailyn, Bernard, ed. (1993). The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle for Ratification. Part Two: January to August 1788. The Library of America. ISBN0-940450-64-X.
• Bryce, James, viscount (1891). The American Commonwealth. vol. 1 (2nd ed.). London: Macmillan and Co. pp. [350]–397, [636]–645, 669–682, et passim.
• Casey, Gregory (Spring 1974). 'The Supreme Court and Myth: An Empirical Investigation'. Law & Society Review. 8 (3): 385–420. doi:10.2307/3053081. JSTOR3053081.
• Elliot, Jonathan. The Debates in the Several State Conventions of the Adoption of the Federal Constitution. Vol. 1, Constitution, Declaration of Independence, Articles of Confederation, Journal of Federal Convention, Vol. 2, State Conventions Massachusetts, Connecticut., New Hampshire, New York, Pennsylvania, Maryland, Vol. 3, Virginia, Vol. 4, North. and South. Carolina, Resolutions, Tariffs, Banks, Debt, Vol. 5 Debates in Congress, Madison's Notes, Misc. Letters.
• Ford, Paul Leicester, ed. (1888). Pamphlets on the Constitution of the United States, Published During its Discussion by the People, 1787–1788. Brooklyn, NY; Pamphlets written between 1787–88 by Elbridge Gerry, Noah Webster, John Jay, Melancthon Smith, Pelatiah Werster, Tench Coxe, James Wilson, John Dickinson, Alexander Contee Hanson, Edmund Randolph, Richard Henry Lee, George Mason, and David Ramsay. The essay attributed to Gerry was in fact written by Mercy Otis Warren.
• Fritz, Christian G. (2008). American Sovereigns: The People and America's Constitutional Tradition Before the Civil War. Cambridge University Press.
• Garvey, John H., ed. (2004). Modern Constitutional Theory: A Reader (5th ed.). ISBN978-0314149053.
• Hall, Kermit (1992). The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press.
• Kaminski, John P.; Saladino, Gaspare J.; Leffler, Richard; Schoenleber, Charles H. & Hogan, Margaret A. (eds.). Documentary History of the Ratification of the Constitution, 1976-. Published volumes 1–10, 13–23, forthcoming volumes 11–12, 24–29. Most recent volume: The Documentary History of the Ratification of the Constitution, Vol. 23, Ratification by the States: New York, No. 5. Madison: The State Historical Society of Wisconsin. ISBN978-0-87020-439-5.
• Klos, Stanley L. (2004). President Who? Forgotten Founders. Pittsburgh, PA: Evisum. p. 261. ISBN0-9752627-5-0.
• Kurland, Philip B. & Lerner, Ralph (eds.). The Founders' Constitution. University of Chicago Press and the Liberty Fund. ISBN0-86597-279-6; The work consists of 'extracts from the leading works of political theory, history, law, and constitutional argument on which the Framers and their contemporaries drew and which they themselves produced'.
• Levy, Leonard W.; Karst, Kenneth L. & West, John G., eds. (1992). Encyclopedia of the American Constitution. New York: Macmillan.
• Mason, Alpheus Thomas & Stephenson, Donald Grier, eds. (2004). American Constitutional Law: Introductory Essays and Selected Cases (14th ed.).^{[full citation needed]}
• McDonald, Forrest (1985). Novus Ordo Seclorum: The Intellectual Origins of the Constitution. Lawrence: University Press of Kansas. ISBN978-0-7006-0311-4.
• Robertson, David Brian (2013). The Original Compromise: What the Constitutional Framers Were Really Thinking. New York: Oxford University Press.
• Tribe, Laurence H. (1999). American Constitutional Law.^{[full citation needed]}
• Yale Law School. 'The Avalon Project: Notes on the Debates in the Federal Convention'. The Avalon Project. Yale Law School. Retrieved May 8, 2011.

External links

U.S. government sources

• Analysis and Interpretation of the Constitution of the United States: legal analysis and interpretation of the Constitution, based primarily on Supreme Court case law
• United States Constitution: Library of Congress web guide to Constitution related primary documents and resources
• America's Founding Documents: original text and articles exploring the Declaration of Independence, Constitution, and Bill of Rights
• Constitution of the United States: original text of each clause in the Constitution with an accompanying explanation of its meaning and how that meaning has changed over time

Non-governmental sources

• Constitution of the United States of America at the Encyclopædia Britannica
• Audio reading of the Constitution in MP3 format provided by the University of Chicago Law School
• Mobile friendly version of the Constitution

The Second Amendment (Amendment II) to the United States Constitution protects an individual right to keep and bear arms.^[1] It was ratified on December 15, 1791 as part of the Bill of Rights.^[2][3][4]

In District of Columbia v. Heller (2008), the Supreme Court affirmed for the first time that the right belongs to individuals, exclusively for self-defense in the home,^[5][6][7][8] while also including, as dicta, that the right is not unlimited and does not preclude the existence of certain long-standing prohibitions such as those forbidding 'the possession of firearms by felons and the mentally ill' or restrictions on 'the carrying of dangerous and unusual weapons.'^[9][10]State and local governments are limited to the same extent as the federal government from infringing this right.^[11]

The Second Amendment was based partially on the right to keep and bear arms in English common law and was influenced by the English Bill of Rights of 1689. Sir William Blackstone described this right as an auxiliary right, supporting the natural rights of self-defense and resistance to oppression, and the civic duty to act in concert in defense of the state.^[12] Any labels of rights as auxiliary must be viewed in the context of the inherent purpose of a Bill of Rights, which is to empower a group with the ability to achieve a mutually desired outcome, and not to necessarily enumerate or rank the importance of rights. Thus all rights enumerated in a Constitution are thus auxiliary in the eyes of Sir William Blackstone because all rights are only as good as the extent they are exercised in fact.

While both James Monroe and John Adams supported the Constitution being ratified, its most influential framer was James Madison. In Federalist No. 46, Madison wrote how a federal army could be kept in check by state militias, 'a standing army .. would be opposed [by] a militia.' He argued that state militias 'would be able to repel the danger' of a federal army, 'It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.' He contrasted the federal government of the United States to the European kingdoms, which he described as 'afraid to trust the people with arms,' and assured that 'the existence of subordinate governments .. forms a barrier against the enterprises of ambition'.^[13][14]

By January 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several amendments were proposed, but were not adopted at the time the Constitution was ratified. For example, the Pennsylvania convention debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to the Bill of Rights to assure ratification.

In United States v. Cruikshank (1876), the Supreme Court ruled that, 'The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments [sic] means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.'^[15] In United States v. Miller (1939), the Supreme Court ruled that the Second Amendment did not protect weapon types not having a 'reasonable relationship to the preservation or efficiency of a well regulated militia.'^[16][17]

In the twenty-first century, the amendment has been subjected to renewed academic inquiry and judicial interest.^[17] In Heller, the Supreme Court handed down a landmark decision that held the amendment protects an individual's right to keep a gun for self-defense.^[18][19] This was the first time the Court had ruled that the Second Amendment guarantees an individual's right to own a gun.^[20][21][19] In McDonald v. Chicago (2010), the Court clarified that the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment against state and local governments.^[22] In Caetano v. Massachusetts (2016), the Supreme Court reiterated its earlier rulings that 'the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding' and that its protection is not limited to 'only those weapons useful in warfare.'

The 1939 Supreme Court decision United States v. Miller spawned a debate as to whether the amendment protects a collective right or an individual right to own guns, with the vast majority of courts historically embracing the former.^[23] The debate between various organizations regarding gun control and gun rights continues.^[24]

• 2Pre-Constitution background
• 3State Constitutional Precursors to the Second Amendment
• 5Ratification debates
• 8Scholarly commentary
  • 8.1Early commentary
• 9Supreme Court cases
  • 9.6District of Columbia v. Heller
• 10United States Courts of Appeals decisions before and after Heller
• 15References

Text[edit]

There are several versions of the text of the Second Amendment, each with capitalization or punctuation differences. Differences exist between the drafted and ratified copies, the signed copies on display, and various published transcriptions.^{[25][26][27][28][29][30][31][32]} The importance (or lack thereof) of these differences has been a source of debate regarding the meaning and interpretation of the amendment, particularly regarding the importance of the prefatory clause.^[33][34]

One version was passed by the Congress, and a slightly different version was ratified.^{[a][35][36][37][38]} As passed by the Congress and preserved in the National Archives, with the rest of the original handwritten copy of the Bill of Rights prepared by scribeWilliam Lambert, the amendment says:^[39]

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.

The amendment was ratified by the States and authenticated by Secretary of State Thomas Jefferson as:^[40]

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.

Pre-Constitution background[edit]

Influence of the English Bill of Rights of 1689[edit]

The right to bear arms in English history is regarded in English law as a subordinate auxiliary right of the primary rights to personal security, personal liberty, and private property. According to Sir William Blackstone, 'The .. last auxiliary right of the subject .. is that of having arms for their [defense], suitable to their condition and degree, and such as are allowed by law. Which is .. declared by .. statute, and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.'^[b]

The English Bill of Rights of 1689 emerged from a tempestuous period in English politics during which two issues were major sources of conflict: the authority of the King to govern without the consent of Parliament, and the role of Catholics in a country that was becoming ever more Protestant. Ultimately, the Catholic James II was overthrown in the Glorious Revolution, and his successors, the Protestants William III and Mary II, accepted the conditions that were codified in the Bill. One of the issues the Bill resolved was the authority of the King to disarm his subjects, after King Charles II and James II had disarmed many Protestants that were 'suspected or knowne' of disliking the government,^[41] and had argued with Parliament over his desire to maintain a standing (or permanent) army.^[c] The bill states that it is acting to restore 'ancient rights' trampled upon by James II, though some have argued that the English Bill of Rights created a new right to have arms, which developed out of a duty to have arms.^[42] In District of Columbia v. Heller (2008), the Supreme Court did not accept this view, remarking that the English right at the time of the passing of the English Bill of Rights was 'clearly an individual right, having nothing whatsoever to do with service in the militia' and that it was a right not to be disarmed by the Crown and was not the granting of a new right to have arms.^[43]

The text of the English Bill of Rights of 1689 includes language protecting the right of Protestants against disarmament by the Crown. This document states: 'That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.'^[44] It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament.^[45] Nevertheless, the English Bill of Rights remains an important constitutional document, more for enumerating the rights of Parliament over the monarchy than for its clause concerning a right to have arms.

The statement in the English Bill of Rights concerning the right to bear arms is often quoted only in the passage where it is written as above and not in its full context. In its full context it is clear that the bill was asserting the right of Protestant citizens not to be disarmed by the King without the consent of Parliament and was merely restoring rights to Protestants that the previous King briefly and unlawfully had removed. In its full context it reads:

Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome (list of grievances including) .. by causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law, (Recital regarding the change of monarch) .. thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors in like Case have usually done) for the Vindicating and Asserting their ancient Rights and Liberties, Declare (list of rights including) .. That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.^[44]

The historical link between the English Bill of Rights and the Second Amendment, which both codify an existing right and do not create a new one, has been acknowledged by the U.S. Supreme Court.^[d][e]

The English Bill of Rights includes the proviso that arms must be as 'allowed by law.' This has been the case before and after the passage of the Bill. While it did not override earlier restrictions on the ownership of guns for hunting, it is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments.^[46]

There is some difference of opinion as to how revolutionary the events of 1688–89 actually were, and several commentators make the point that the provisions of the English Bill of Rights did not represent new laws, but rather stated existing rights. Mark Thompson wrote that, apart from determining the succession, the English Bill of Rights did 'little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already posessed [sic].'^[47] Before and after the English Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm.^[48] In 1765, William Blackstone wrote the Commentaries on the Laws of England describing the right to have arms in England during the 18th century as a subordinate auxiliary right of the subject that was 'also declared' in the English Bill of Rights.^[49][50]

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.^[51]

Although there is little doubt that the writers of the Second Amendment were heavily influenced by the English Bill of Rights, it is a matter of interpretation as to whether they were intent on preserving the power to regulate arms to the states over the federal government (as the English Parliament had reserved for itself against the monarch) or whether it was intent on creating a new right akin to the right of others written into the Constitution (as the Supreme Court decided in Heller). Some in the United States have preferred the 'rights' argument arguing that the English Bill of Rights had granted a right. The need to have arms for self-defence was not really in question. Peoples all around the world since time immemorial had armed themselves for the protection of themselves and others, and as organized nations began to appear these arrangements had been extended to the protection of the state.^[52] Without a regular army and police force (which in England was not established until 1829), it had been the duty of certain men to keep watch and ward at night and to confront and capture suspicious persons. Every subject had an obligation to protect the king's peace and assist in the suppression of riots.^[53]

Experience in America prior to the U.S. Constitution[edit]

Early English settlers in America viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes (in no particular order):^{[f][g][55][56][57][58][59][60]}

• enabling the people to organize a militia system;^[61]
• participating in law enforcement;
• safeguarding against tyrannical government;^[62]
• repelling invasion;^[61]
• suppressing insurrection, allegedly including slave revolts,^[63][64][65] though some scholars say these claims are factually incorrect;^[66]
• facilitating a natural right of self-defense.^[61]

Which of these considerations were thought of as most important and ultimately found expression in the Second Amendment is disputed. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776 asserted that, 'the people have a right to bear arms for the defence of themselves and the state.'^[67]

During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, including many who were loyal to British imperial rule. As defiance and opposition to British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists, known as Patriots, who favored independence from British rule. As a result, some Patriots created their own militias that excluded the Loyalists and then sought to stock independent armories for their militias. In response to this arms build up, the British Parliament established an embargo of firearms, parts and ammunition against the American colonies.^[68] King George III also began disarming individuals who were in the most rebellious areas in the 1760's and 70's.^[69]

British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, Blackstone's summary of the Declaration of Rights, their own militia laws and common law rights to self-defense.^[70] While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense.^[70] Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars' interpretation of Blackstone.^[71]

The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 Boston objecting to the British army suppression of colonial opposition to the Townshend Acts:

Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such nature, and have been carried to such lengths, as must serve fully to evince that a late vote of this town, calling upon its inhabitants to provide themselves with arms for their defense, was a measure as prudent as it was legal: such violences are always to be apprehended from military troops, when quartered in the body of a populous city; but more especially so, when they are led to believe that they are become necessary to awe a spirit of rebellion, injuriously said to be existing therein. It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.^[70]

Furthermore, one article from New York in 1769 stated: 'it is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.'^[72]

The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with regular French army and naval forces and various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist militia and Hessianmercenaries. Following the Revolution, the United States was governed by the Articles of Confederation. Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the standing army was reduced to as few as 80 men.^[73] They considered it to be bad that there was no effective federal military crackdown on an armed tax rebellion in western Massachusetts known as Shays' Rebellion.^[74] Anti-federalists on the other hand took the side of limited government and sympathized with the rebels, many of whom were former Revolutionary War soldiers. Subsequently, the Constitutional Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.^[75][76]Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power.^[77]

Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that James Madison 'did not invent the right to keep and bear arms when he drafted the Second Amendment; the right was pre-existing at both common law and in the early state constitutions.'^[78] In contrast, historian Jack Rakove suggests that Madison's intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed.^[79]

One aspect of the gun control debate is the conflict between gun control laws and the right to rebel against unjust governments. Blackstone in his Commentaries alluded to this right to rebel as the natural right of resistance and self preservation, to be used only as a last resort, exercisable when 'the sanctions of society and laws are found insufficient to restrain the violence of oppression'.^[80] Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation,^[81] as Alexander Hamilton explained in his Concerning the Militia essay published in 1788:

.. it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defence of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the Government to form an army of any magnitude, that army can never be formidable to the liberties of the People, while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights, and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.^[81][82]

Some scholars have said that it is wrong to read a right of armed insurrection in the Second Amendment because clearly the founding fathers sought to place trust in the power of the ordered liberty of democratic government versus the anarchy of insurrectionists.^[83][84] Other writers, such as Glenn Reynolds, contend that the framers did believe in an individual right to armed insurrection. They cite examples, such as the Declaration of Independence (describing in 1776 'the Right of the People to .. institute new Government') and the Constitution of New Hampshire (stating in 1784 that 'nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind').^[85]

There was an ongoing debate beginning in 1789 about 'the people' fighting governmental tyranny (as described by Anti-Federalists); or the risk of mob rule of 'the people' (as described by the Federalists) related to the increasingly violent French Revolution.^[86] A widespread fear, during the debates on ratifying the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens,^[h] or prohibiting citizens from arming themselves.^[70] Though it has been argued that the states lost the power to arm their citizens when the power to arm the militia was transferred from the states to the federal government by Article I, Section 8 of the Constitution, the individual right to arm was retained and strengthened by the Militia Acts of 1792 and the similar act of 1795.^[87][88]

State Constitutional Precursors to the Second Amendment[edit]

Drafting and adoption of the Constitution[edit]

In March 1785, delegates from Virginia and Maryland assembled at the Mount Vernon Conference to fashion a remedy to the inefficiencies of the Articles of Confederation. The following year, at a meeting in Annapolis, Maryland, 12 delegates from five states (New Jersey, New York, Pennsylvania, Delaware, and Virginia) met and drew up a list of problems with the current government model. At its conclusion, the delegates scheduled a follow-up meeting in Philadelphia, Pennsylvania for May 1787 to present solutions to these problems, such as the absence of:^[102][103]

• interstate arbitration processes to handle quarrels between states;
• sufficiently trained and armed intrastate security forces to suppress insurrection;
• a national militia to repel foreign invaders.

It quickly became apparent that the solution to all three of these problems required shifting control of the states' militias to the federal Congress and giving that congress the power to raise a standing army.^[104]Article 1, Section 8 of the Constitution codified these changes by allowing the Congress to provide for the common defense and general welfare of the United States by doing the following:^[105]

• raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
• provide and maintain a navy;
• make rules for the government and regulation of the land and naval forces;
• provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
• provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.

Some representatives mistrusted proposals to enlarge federal powers, because they were concerned about the inherent risks of centralizing power. Federalists, including James Madison, initially argued that a bill of rights was unnecessary, sufficiently confident that the federal government could never raise a standing army powerful enough to overcome a militia.^[106] Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.^[107][108]Anti-federalists, on the other hand, advocated amending the Constitution with clearly defined and enumerated rights providing more explicit constraints on the new government. Many Anti-federalists feared the new federal government would choose to disarm state militias. Federalists countered that in listing only certain rights, unlisted rights might lose protection. The Federalists realized there was insufficient support to ratify the Constitution without a bill of rights and so they promised to support amending the Constitution to add a bill of rights following the Constitution's adoption. This compromise persuaded enough Anti-federalists to vote for the Constitution, allowing for ratification.^[109] The Constitution was declared ratified on June 21, 1788, when nine of the original thirteen states had ratified it. The remaining four states later followed suit, although the last two states, North Carolina and Rhode Island, ratified only after Congress had passed the Bill of Rights and sent it to the states for ratification.^[110] James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June 8, 1789, and was adopted on December 15, 1791.

Ratification debates[edit]

The debate surrounding the Constitution's ratification is of practical importance, particularly to adherents of originalist and strict constructionist legal theories. In the context of such legal theories and elsewhere, it is important to understand the language of the Constitution in terms of what that language meant to the people who wrote and ratified the Constitution.^[111]

The Second Amendment was relatively uncontroversial at the time of its ratification.^[112]Robert Whitehill, a delegate from Pennsylvania, sought to clarify the draft Constitution with a bill of rights explicitly granting individuals the right to hunt on their own land in season,^[113] though Whitehill's language was never debated.^[114]

Argument for state power[edit]

There was substantial opposition to the new Constitution, because it moved the power to arm the state militias from the states to the federal government. This created a fear that the federal government, by neglecting the upkeep of the militia, could have overwhelming military force at its disposal through its power to maintain a standing army and navy, leading to a confrontation with the states, encroaching on the states' reserved powers and even engaging in a military takeover. Article VI of the Articles of Confederation states:

No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the united States in congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the united States, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.^[115][116]

In contrast, Article I, Section 8, Clause 16 of the U.S. Constitution states:

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.^[117]

Government tyranny[edit]

A foundation of American political thought during the Revolutionary period was concerned about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is 'a chimerical idea to suppose that a country like this could ever be enslaved .. Is it possible .. that an army could be raised for the purpose of enslaving themselves or their brethren? Or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?'^[118] Noah Webster similarly argued:

Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.^[13][119]

George Mason also argued the importance of the militia and right to bear arms by reminding his compatriots of England's efforts 'to disarm the people; that it was the best and most effectual way to enslave them .. by totally disusing and neglecting the militia.' He also clarified that under prevailing practice the militia included all people, rich and poor. 'Who are the militia? They consist now of the whole people, except a few public officers.' Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.^[13][120]

Writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included 'the right to keep and bear arms' in a list of basic 'human rights', which he proposed to be added to the Constitution.^[121]

Patrick Henry argued in the Virginia ratification convention on June 5, 1788, for the dual rights to arms and resistance to oppression:

Henry, Patrick (1788). Speech on the Federal Constitution. Virginia Ratifying Convention. Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.</ref>

Preserving slave patrols[edit]

According to political commentator Thom Hartmann, the Virginians James Madison, Patrick Henry, and George Mason were concerned that 'slave patrols,' organized groups of white men who enforced discipline upon enslaved blacks, needed to remain armed and, therefore, the Constitution needed to clarify that states have the right to organize white men in such militias.^[122] Also, Patrick Henry argued against the ratification of both the Constitution and the Second Amendment.^[66] Most Southern white men aged 18–45 were required to serve on such patrols.

Legal historian Paul Finkelman disputes Hartmann's claim that the Second Amendment was adopted to protect slave patrols, arguing that Hartmann's claim is 'factually incorrect and misleading' and that there is no historical evidence for this assertion.^[66]

Conflict and compromise in Congress produce the Bill of Rights[edit]

James Madison's initial proposal for a bill of rights was brought to the floor of the House of Representatives on June 8, 1789, during the first session of Congress. The initial proposed passage relating to arms was:

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.^[123]

On July 21, Madison again raised the issue of his bill and proposed a select committee be created to report on it. The House voted in favor of Madison's motion,^[124] and the Bill of Rights entered committee for review. The committee returned to the House a reworded version of the Second Amendment on July 28.^[125] On August 17, that version was read into the Journal:

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 person religiously scrupulous shall be compelled to bear arms.^[126]

In late August 1789, the House debated and modified the Second Amendment. These debates revolved primarily around risk of 'mal-administration of the government' using the 'religiously scrupulous' clause to destroy the militia as Great Britain had attempted to destroy the militia at the commencement of the American Revolution. These concerns were addressed by modifying the final clause, and on August 24, the House sent the following version to the Senate:

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 next day, August 25, the Senate received the amendment from the House and entered it into the Senate Journal. However, the Senate scribe added a comma before 'shall not be infringed' and changed the semicolon separating that phrase from the religious exemption portion to a comma:

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.^[127]

By this time, the proposed right to keep and bear arms was in a separate amendment, instead of being in a single amendment together with other proposed rights such as the due process right. As a Representative explained, this change allowed each amendment to 'be passed upon distinctly by the States.'^[128] On September 4, the Senate voted to change the language of the Second Amendment by removing the definition of militia, and striking the conscientious objector clause:

A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.^[129]

The Senate returned to this amendment for a final time on September 9. A proposal to insert the words 'for the common defence' next to the words 'bear arms' was defeated. A motion passed to replace the words 'the best,' and insert in lieu thereof 'necessary to the' .^[130] The Senate then slightly modified the language to read as the fourth article and voted to return the Bill of Rights to the House. The final version by the Senate was amended to read as:

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.

The House voted on September 21, 1789 to accept the changes made by the Senate.

The enrolled original Joint Resolution passed by Congress on September 25, 1789, on permanent display in the Rotunda, reads as:

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.^[131]

On December 15, 1791, the Bill of Rights (the first ten amendments to the Constitution) was adopted, having been ratified by three-fourths of the states, having been ratified as a group by all the fourteen states then in existence except Connecticut, Massachusetts, and Georgia – which added ratifications in 1939.^[132]

Militia in the decades following ratification[edit]

During the first two decades following the ratification of the Second Amendment, public opposition to standing armies, among Anti-Federalists and Federalists alike, persisted and manifested itself locally as a general reluctance to create a professional armed police force, instead relying on county sheriffs, constables and night watchmen to enforce local ordinances.^[68] Though sometimes compensated, often these positions were unpaid – held as a matter of civic duty. In these early decades, law enforcement officers were rarely armed with firearms, using billy clubs as their sole defensive weapons.^[68] In serious emergencies, a posse comitatus, militia company, or group of vigilantes assumed law enforcement duties; these individuals were more likely than the local sheriff to be armed with firearms.^[68]On May 8, 1792, Congress passed '[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States' requiring:

[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia .. [and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.^[133]

The act also gave specific instructions to domestic weapon manufacturers 'that from and after five years from the passing of this act, muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound.'^[133] In practice, private acquisition and maintenance of rifles and muskets meeting specifications and readily available for militia duty proved problematic; estimates of compliance ranged from 10 to 65 percent.^[134] Compliance with the enrollment provisions was also poor. In addition to the exemptions granted by the law for custom-house officers and their clerks, post-officers and stage drivers employed in the care and conveyance of U.S. mail, ferrymen, export inspectors, pilots, merchant mariners and those deployed at sea in active service; state legislatures granted numerous exemptions under Section 2 of the Act, including exemptions for: clergy, conscientious objectors, teachers, students, and jurors. And though a number of able-bodied white men remained available for service, many simply did not show up for militia duty. Penalties for failure to appear were enforced sporadically and selectively.^[135] None is mentioned in the legislation.^[133]

The first test of the militia system occurred in July 1794, when a group of disaffected Pennsylvania farmers rebelled against federal tax collectors whom they viewed as illegitimate tools of tyrannical power.^[136] Attempts by the four adjoining states to raise a militia for nationalization to suppress the insurrection proved inadequate. When officials resorted to drafting men, they faced bitter resistance. Forthcoming soldiers consisted primarily of draftees or paid substitutes as well as poor enlistees lured by enlistment bonuses. The officers, however, were of a higher quality, responding out of a sense of civic duty and patriotism, and generally critical of the rank and file.^[68] Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.^[68] In October, President George Washington and General Harry Lee marched on the 7,000 rebels who conceded without fighting. The episode provoked criticism of the citizen militia and inspired calls for a universal militia. Secretary of War Henry Knox and Vice-President John Adams had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production.^[68] Congress did subsequently pass '[a]n act for the erecting and repairing of Arsenals and Magazines' on April 2, 1794, two months prior to the insurrection.^[137] Nevertheless, the militia continued to deteriorate and twenty years later, the militia's poor condition contributed to several losses in the War of 1812, including the sacking of Washington, D.C., and the burning of the White House in 1814.^[135]

Scholarly commentary[edit]

Early commentary[edit]

Richard Henry Lee[edit]

In May of 1788, Richard Henry Lee wrote in Additional Letters From The Federal Farmer #169 or Letter XVIII regarding the definition of a 'militia':

A militia, when properly formed, are in fact the people themselves, and render regular troops in a great measure unnecessary.

George Mason[edit]

In June of 1788, George Mason addressed the Virginia Ratifying Convention regarding a 'militia:' Bengali movie download torrent.

A worthy member has asked, who are the militia, if they be not the people, of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c. by our representation? I ask who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government all ranks of people are subject to militia duty.

Tench Coxe[edit]

In 1792, Tench Coxe made the following point in a commentary on the Second Amendment:^[138]

As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.^[139][140]

Tucker/Blackstone[edit]

The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker. He annotated a five-volume edition of Sir William Blackstone's Commentaries on the Laws of England, a critical legal reference for early American attorneys published in 1803.^[141][142] Tucker wrote:

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. Amendments to C. U. S. Art. 4. This may be considered as the true palladium of liberty .. The right of self defence is the first law of nature: In most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game : a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.^[143]

In footnotes 40 and 41 of the Commentaries, Tucker stated that the right to bear arms under the Second Amendment was not subject to the restrictions that were part of English law: 'The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government' and 'whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England.' Blackstone himself also commented on English game laws, Vol. II, p. 412, 'that the prevention of popular insurrections and resistance to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws.'^[141] Blackstone discussed the right of self-defense in a separate section of his treatise on the common law of crimes. Tucker's annotations for that latter section did not mention the Second Amendment but cited the standard works of English jurists such as Hawkins.^[i]

Further, Tucker criticized the English Bill of Rights for limiting gun ownership to the very wealthy, leaving the populace effectively disarmed, and expressed the hope that Americans 'never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.'^[141]

William Rawle[edit]

Tucker's commentary was soon followed, in 1825, by that of William Rawle in his landmark text, A View of the Constitution of the United States of America. Like Tucker, Rawle condemned England's 'arbitrary code for the preservation of game,' portraying that country as one that 'boasts so much of its freedom,' yet provides a right to 'protestant subjects only' that it 'cautiously describ[es] to be that of bearing arms for their defence' and reserves for '[a] very small proportion of the people[.]'^[144] In contrast, Rawle characterizes the second clause of the Second Amendment, which he calls the corollary clause, as a general prohibition against such capricious abuse of government power, declaring bluntly:

No clause could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.^[145]

Speaking of the Second Amendment generally, Rawle said:^[j]

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.^[j][146]

Rawle, long before the concept of incorporation was formally recognized by the courts, or Congress drafted the Fourteenth Amendment, contended that citizens could appeal to the Second Amendment should either the state or federal government attempt to disarm them. He did warn, however, that 'this right [to bear arms] ought not .. be abused to the disturbance of the public peace' and, paraphrasing Coke, observed: 'An assemblage of persons with arms, for unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace.'^[144]

Joseph Story[edit]

Joseph Story articulated in his influential Commentaries on the Constitution^[147] the orthodox view of the Second Amendment, which he viewed as the amendment's clear meaning:

The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpations and arbitrary power of rulers; and it will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well-regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our National Bill of Rights.^[k][148]

Story describes a militia as the 'natural defence of a free country,' both against foreign foes, domestic revolts and usurpation by rulers. The book regards the militia as a 'moral check' against both usurpation and the arbitrary use of power, while expressing distress at the growing indifference of the American people to maintaining such an organized militia, which could lead to the undermining of the protection of the Second Amendment.^[148]

Lysander Spooner[edit]

AbolitionistLysander Spooner, commenting on bills of rights, stated that the object of all bills of rights is to assert the rights of individuals against the government and that the Second Amendment right to keep and bear arms was in support of the right to resist government oppression, as the only security against the tyranny of government lies in forcible resistance to injustice, for injustice will certainly be executed, unless forcibly resisted.^[149] Spooner's theory provided the intellectual foundation for John Brown and other radical abolitionists who believed that arming slaves was not only morally justified, but entirely consistent with the Second Amendment.^[150] An express connection between this right and the Second Amendment was drawn by Lysander Spooner who commented that a 'right of resistance' is protected by both the right to trial by jury and the Second Amendment.^[151]

The congressional debate on the proposed Fourteenth Amendment concentrated on what the Southern States were doing to harm the newly freed slaves, including disarming the former slaves.^[152]

Timothy Farrar[edit]

In 1867, Judge Timothy Farrar published his Manual of the Constitution of the United States of America, which was written when the Fourteenth Amendment was 'in the process of adoption by the State legislatures.':^[140][l]

The States are recognized as governments, and, when their own constitutions permit, may do as they please; provided they do not interfere with the Constitution and laws of the United States, or with the civil or natural rights of the people recognized thereby, and held in conformity to them. The right of every person to 'life, liberty, and property,' to 'keep and bear arms,' to the 'writ of habeas corpus' to 'trial by jury,' and divers others, are recognized by, and held under, the Constitution of the United States, and cannot be infringed by individuals or even by the government itself.

Judge Thomas Cooley[edit]

Judge Thomas M. Cooley, perhaps the most widely read constitutional scholar of the nineteenth century, wrote extensively about this amendment,^[153][154] and he explained in 1880 how the Second Amendment protected the 'right of the people':

It might be supposed from the phraseology of 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. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; 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; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.^[155]

Late 20th century commentary[edit]

In the latter half of the 20th century, there was considerable debate over whether the Second Amendment protected an individual right or a collective right.^[156] The debate centered on whether the prefatory clause ('A well regulated militia being necessary to the security of a free State') declared the amendment's only purpose or merely announced a purpose to introduce the operative clause ('the right of the People to keep and bear arms shall not be infringed'). Scholars advanced three competing theoretical models for how the prefatory clause should be interpreted.^[157]

The first, known as the 'states' rights' or 'collective right' model, held that the Second Amendment does not apply to individuals; rather, it recognizes the right of each state to arm its militia. Under this approach, citizens 'have no right to keep or bear arms, but the states have a collective right to have the National Guard'.^[140] Advocates of collective rights models argued that the Second Amendment was written to prevent the federal government from disarming state militias, rather than to secure an individual right to possess firearms.^[158] Prior to 2001, every circuit court decision that interpreted the Second Amendment endorsed the 'collective right' model.^[159][160] However, beginning with the Fifth Circuit's opinion United States v. Emerson in 2001, some circuit courts recognized that the Second Amendment protects an individual right to bear arms.^[161][162]

The second, known as the 'sophisticated collective right model', held that the Second Amendment recognizes some limited individual right. However, this individual right could only be exercised by actively participating members of a functioning, organized state militia.^[163][164] Some scholars have argued that the 'sophisticated collective rights model' is, in fact, the functional equivalent of the 'collective rights model.'^[165] Other commentators have observed that prior to Emerson, five circuit courts specifically endorsed the 'sophisticated collective right model'.^[166]

The third, known as the 'standard model', held that the Second Amendment recognized the personal right of individuals to keep and bear arms.^[140] Supporters of this model argued that 'although the first clause may describe a general purpose for the amendment, the second clause is controlling and therefore the amendment confers an individual right 'of the people' to keep and bear arms'.^[167] Additionally, scholars who favored this model argued the 'absence of founding-era militias mentioned in the Amendment's preamble does not render it a 'dead letter' because the preamble is a 'philosophical declaration' safeguarding militias and is but one of multiple 'civic purposes' for which the Amendment was enacted'.^[168]

Under both of the collective right models, the opening phrase was considered essential as a pre-condition for the main clause.^[169] These interpretations held that this was a grammar structure that was common during that era^[170] and that this grammar dictated that the Second Amendment protected a collective right to firearms to the extent necessary for militia duty.^[171] However, under the standard model, the opening phrase was believed to be prefatory or amplifying to the operative clause. The opening phrase was meant as a non-exclusive example – one of many reasons for the amendment.^[49] This interpretation is consistent with the position that the Second Amendment protects a modified individual right.^[172]

The question of a collective right versus an individual right was progressively resolved in favor of the individual rights model, beginning with the Fifth Circuit ruling in United States v. Emerson (2001), along with the Supreme Court's rulings in District of Columbia v. Heller (2008), and McDonald v. Chicago (2010). In Heller, the Supreme Court resolved any remaining circuit splits by ruling that the Second Amendment protects an individual right.^[173] Although the Second Amendment is the only Constitutional amendment with a prefatory clause, such linguistic constructions were widely used elsewhere in the late eighteenth century.^[174]

Warren E. Burger, a conservative Republican appointed Chief Justice of the United States by President Richard Nixon, wrote in 1990 following his retirement:

'The Constitution of the United States, in its Second Amendment, guarantees a 'right of the people to keep and bear arms.' However, the meaning of this clause cannot be understood except by looking to the purpose, the setting and the objectives of the draftsmen .. People of that day were apprehensive about the new 'monster' national government presented to them, and this helps explain the language and purpose of the Second Amendment .. We see that the need for a state militia was the predicate of the 'right' guaranteed; in short, it was declared 'necessary' in order to have a state military force to protect the security of the state.'^[175]

And in 1991 Burger stated:

'If I were writing the Bill of Rights now, there wouldn't be any such thing as the Second Amendment .. that a well regulated militia being necessary for the defense of the state, the peoples' rights to bear arms. This has been the subject of one of the greatest pieces of fraud — I repeat the word 'fraud' — on the American public by special interest groups that I have ever seen in my lifetime.'^[176]

In a 1992 opinion piece, six former American attorneys general wrote:

'For more than 200 years, the federal courts have unanimously determined that the Second Amendment concerns only the arming of the people in service to an organized state militia; it does not guarantee immediate access to guns for private purposes. The nation can no longer afford to let the gun lobby's distortion of the Constitution cripple every reasonable attempt to implement an effective national policy toward guns and crime.'^[177]

Research by Robert Spitzer found that every law journal article discussing the Second Amendment through 1959 'reflected the Second Amendment affects citizens only in connection with citizen service in a government organizedand regulated militia.' Only beginning in 1960 did law journal articles begin to advocate an 'individualist' view of gun ownership rights.^[178][179]

Meaning of 'well regulated militia'[edit]

The term 'regulated' means 'disciplined' or 'trained.'^[180] In Heller, the U.S. Supreme Court stated that '[t]he adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training.'^[181]

In the year prior to the drafting of the Second Amendment, in Federalist No. 29 Alexander Hamilton wrote the following about 'organizing,' 'disciplining,' 'arming,' and 'training.' of the militia as specified in the enumerated powers:

If a well regulated militia be the most natural defence of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security .. confiding the regulation of the militia to the direction of the national authority .. [but] reserving to the states .. the authority of training the militia .. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss .. Little more can reasonably be aimed at, with respect to the People at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.^[82]

Justice Scalia, writing for the Court in Heller: 'In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the 'natural right of self-defence' and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right':

Nor is the right involved in this discussion less comprehensive or valuable: 'The right of the people to bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta [sic]! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans, plead eloquently for this interpretation! And the acquisition of Texas may be considered the full fruits of this great constitutional right.^[182]

Justice Stevens in dissent:

When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms. Even if the meaning of the text were genuinely susceptible to more than one interpretation, the burden would remain on those advocating a departure from the purpose identified in the preamble and from settled law to come forward with persuasive new arguments or evidence. The textual analysis offered by respondent and embraced by the Court falls far short of sustaining that heavy burden. And the Court's emphatic reliance on the claim 'that the Second Amendment .. codified a pre-existing right,' ante, at 19 [refers to p. 19 of the opinion], is of course beside the point because the right to keep and bear arms for service in a state militia was also a pre-existing right.^[183]

Meaning of 'the right of the People'[edit]

Justice Antonin Scalia, writing for the majority in Heller, stated:

Nowhere else in the Constitution does a 'right' attributed to 'the people' refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention 'the people,' the term unambiguously refers to all members of the political community, not an unspecified subset. This contrasts markedly with the phrase 'the militia' in the prefatory clause. As we will describe below, the 'militia' in colonial America consisted of a subset of 'the people' – those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to 'keep and bear Arms' in an organized militia therefore fits poorly with the operative clause's description of the holder of that right as 'the people.'^[184]

An earlier case, United States v. Verdugo-Urquidez (1990), dealt with nonresident aliens and the Fourth Amendment, but led to a discussion of who are 'the People' when referred to elsewhere in the Constitution:^[185]

The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people'.. While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

According to the majority in Heller, there were several different reasons for this amendment, and protecting militias was only one of them; if protecting militias had been the only reason then the amendment could have instead referred to 'the right of the militia to keep and bear arms' instead of 'the right of the people to keep and bear arms.'^[186][187]

Meaning of 'keep and bear arms'[edit]

In Heller the majority rejected the view that the term 'to bear arms' implies only the military use of arms:

Before addressing the verbs 'keep' and 'bear,' we interpret their object: 'Arms.' The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. Thus, the most natural reading of 'keep Arms' in the Second Amendment is to 'have weapons.' At the time of the founding, as now, to 'bear' meant to 'carry.' In numerous instances, 'bear arms' was unambiguously used to refer to the carrying of weapons outside of an organized militia. Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens 'bear arms in defense of themselves and the state' again, in the most analogous linguistic context – that 'bear arms' was not limited to the carrying of arms in a militia. The phrase 'bear Arms' also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: 'to serve as a soldier, do military service, fight' or 'to wage war.' But it unequivocally bore that idiomatic meaning only when followed by the preposition 'against.' Every example given by petitioners' amici for the idiomatic meaning of 'bear arms' from the founding period either includes the preposition 'against' or is not clearly idiomatic. In any event, the meaning of 'bear arms' that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby 'bear arms' connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. Worse still, the phrase 'keep and bear Arms' would be incoherent. The word 'Arms' would have two different meanings at once: 'weapons' (as the object of 'keep') and (as the object of 'bear') one-half of an idiom. It would be rather like saying 'He filled and kicked the bucket' to mean 'He filled the bucket and died.'^[184]

In a dissent, joined by Justices Souter, Ginsburg, and Breyer, Justice Stevens said:

The Amendment's text does justify a different limitation: the 'right to keep and bear arms' protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase 'bear arms' to encompass civilian possession and use, they could have done so by the addition of phrases such as 'for the defense of themselves.'^[188]

A May 2018 analysis by Dennis Baron contradicted the majority opinion:

A search of Brigham Young University's new online Corpus of Founding Era American English, with more than 95,000 texts and 138 million words, yields 281 instances of the phrase 'bear arms.' BYU's Corpus of Early Modern English, with 40,000 texts and close to 1.3 billion words, shows 1,572 instances of the phrase. Subtracting about 350 duplicate matches, that leaves about 1,500 separate occurrences of 'bear arms' in the 17th and 18th centuries, and only a handful don't refer to war, soldiering or organized, armed action. These databases confirm that the natural meaning of 'bear arms' in the framers' day was military.^[189]

However, a paper from 2008 found that before 1820, the use of the phrase 'bear arms.' was commonly used in a civilian context, such as hunting and personal self-defense, in both American and British law. ^[190]

Supreme Court cases[edit]

In the century following the ratification of the Bill of Rights, the intended meaning and application of the Second Amendment drew less interest than it does in modern times.^[191] The vast majority of regulation was done by states, and the first case law on weapons regulation dealt with state interpretations of the Second Amendment. A notable exception to this general rule was Houston v. Moore, 18 U.S./1 / 1 (1820), where the U.S. Supreme Court mentioned the Second Amendment in an aside.^[m] In the Dred Scott decision (1857), the opinion of the court stated that if African Americans were considered U.S. citizens, 'It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right .. to keep and carry arms wherever they went.'^[192]

State and federal courts historically have used two models to interpret the Second Amendment: the 'individual rights' model, which holds that individuals hold the right to bear arms, and the 'collective rights' model, which holds that the right is dependent on militia membership. The 'collective rights' model has been rejected by the Supreme Court, in favor of the individual rights model.

The Supreme Court's primary Second Amendment cases include United States v. Miller, (1939); District of Columbia v. Heller (2008); and McDonald v. Chicago (2010).

Heller and McDonald supported the individual rights model, under which the Second Amendment protects the right to keep and bear arms much as the First Amendment protects the right to free speech. Under this model, the militia is composed of members who supply their own arms and ammunition. This is generally recognized as the method by which militias have historically been armed, as the Supreme Court in Miller said:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.^[193]

Of the collective rights model that holds that the right to arms is based on militia membership, the Supreme Court in Heller said:

A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If 'bear arms' means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage ('for the purpose of self-defense' or 'to make war against the King'). But if 'bear arms' means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add 'for the purpose of killing game.' The right 'to carry arms in the militia for the purpose of killing game' is worthy of the mad hatter.^[194]

United States v. Cruikshank[edit]

In the Reconstruction Era case of United States v. Cruikshank, 92 U.S./542 / 542 (1875), the defendants were white men who had killed more than sixty black people in what was known as the Colfax massacre and had been charged with conspiring to prevent blacks from exercising their right to bear arms. The Court dismissed the charges, holding that the Bill of Rights restricted Congress but not private individuals. The Court concluded, '[f]or their protection in its enjoyment, the people must look to the States.'^[195]

The Court stated that '[t]he Second Amendment .. has no other effect than to restrict the powers of the national government ...'^[196] Likewise, the Court held that there was no state action in this case, and therefore the Fourteenth Amendment was not applicable:

The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another.^[197]

Thus, the Court held a federal anti-Ku-Klux-Klan statute to be unconstitutional as applied in that case.^[198]

Presser v. Illinois[edit]

In Presser v. Illinois, 116 U.S./252 / 252 (1886), Herman Presser headed a German-American paramilitary shooting organization and was arrested for leading a parade group of 400 men, training and drilling with military weapons with the declared intention to fight, through the streets of Chicago as a violation of Illinois law that prohibited public drilling and parading in military style without a permit from the governor.^[68][199]

At his trial, Presser argued that the State of Illinois had violated his Second Amendment rights. The Supreme Court reaffirmed Cruikshank, and also held that the Second Amendment prevented neither the States nor Congress from barring private militias that parade with arms; such a right 'cannot be claimed as a right independent of law.' This decision upheld the States' authority to regulate the militia and that citizens had no right to create their own militias or to own weapons for semi-military purposes.^[68] However the court said: 'A state cannot prohibit the people therein from keeping and bearing arms to an extent that would deprive the United States of the protection afforded by them as a reserve military force.'^[200]

Miller v. Texas[edit]

In Miller v. Texas, 153 U.S./535 / 535 (1894), Franklin Miller was convicted and sentenced to be executed for shooting a police officer to death with an illegally carried handgun in violation of Texas law. Miller sought to have his conviction overturned, claiming his Second Amendment rights were violated and that the Bill of Rights should be applied to state law. The Supreme Court ruled that the Second Amendment did not apply to state laws such as the Texas law:^[68] 'As the proceedings were conducted under the ordinary forms of criminal prosecutions there certainly was no denial of due process of law.'^[201]

Robertson v. Baldwin[edit]

In Robertson v. Baldwin, 165 U.S./275 / 275 (1897), the Court stated in dicta that laws regulating concealed arms did not infringe upon the right to keep and bear arms and thus were not a violation of the Second Amendment:

The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the 'Bill of Rights,' were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons.^[202]

United States v. Miller[edit]

In United States v. Miller, 307 U.S./174 / 174 (1939), the Supreme Court rejected a Second Amendment challenge to the National Firearms Act prohibiting the interstate transportation of unregistered Title II weapons:

Jack Miller and Frank Layton 'did unlawfully .. transport in interstate commerce from .. Claremore .. Oklahoma to .. Siloam Springs .. Arkansas a certain firearm .. a double barrel .. shotgun having a barrel less than 18 inches in length .. at the time of so transporting said firearm in interstate commerce .. not having registered said firearm as required by Section 1132d of Title 26, United States Code .. and not having in their possession a stamp-affixed written order .. as provided by Section 1132C ..'^[203]

In a unanimous opinion authored by Justice McReynolds, the Supreme Court stated 'the objection that the Act usurps police power reserved to the States is plainly untenable.'^[204] As the Court explained:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to any preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.^[205]

Gun rights advocates claim that the Court in Miller ruled that the Second Amendment protected the right to keep arms that are part of 'ordinary military equipment.'^[206] They also claim that the Court did not consider the question of whether the sawed-off shotgun in the case would be an applicable weapon for personal defense, instead looking solely at the weapon's suitability for the 'common defense.'^[207] Law professor Andrew McClurg states, 'The only certainty about Miller is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact.'^[208]

District of Columbia v. Heller[edit]

Judgment[edit]

According to the syllabus prepared by the U.S. Supreme Court Reporter of Decisions,^[209] in District of Columbia v. Heller, 554 U.S./570 / 570 (2008), the Supreme Court held:^[209][210]

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. pp. 2–53.^[209][210]

(a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms. pp. 2–22.^[209][210]

(b) The prefatory clause comports with the Court's interpretation of the operative clause. The 'militia' comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved. pp. 22–28.^[209][210]

(c) The Court's interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. pp. 28–30.^[209][210]

(d) The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. pp. 30–32.^[209][210]

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court's conclusion. pp. 32–47.^[209][210]

(f) None of the Court's precedents forecloses the Court's interpretation. Neither United States v. Cruikshank, 92 U.S. 542, nor Presser v. Illinois, 116 U.S. 252, refutes the individual-rights interpretation. United States v. Miller, 307 U.S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. pp. 47–54.^[209][210]

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller's holding that the sorts of weapons protected are those 'in common use at the time' finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. pp. 54–56.^[209][210]

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District's total ban on handgun possession in the home amounts to a prohibition on an entire class of 'arms' that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition – in the place where the importance of the lawful defense of self, family, and property is most acute – would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. pp. 56–64.^[210]

There are similar legal summaries of the Supreme Court's findings in Heller.^{[211][212][213][214][215][216]} For example, the Illinois Supreme Court in People v. Aguilar (2013), summed up Heller's findings and reasoning:

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court undertook its first-ever 'in-depth examination' of the second amendment's meaning Id. at 635. After a lengthy historical discussion, the Court ultimately concluded that the second amendment 'guarantee[s] the individual right to possess and carry weapons in case of confrontation' (id. at 592); that 'central to' this right is 'the inherent right of self-defense' (id. at 628); that 'the home' is 'where the need for defense of self, family, and property is most acute' (id. at 628); and that, 'above all other interests,' the second amendment elevates 'the right of law-abiding, responsible citizens to use arms in defense of hearth and home' (id. at 635). Based on this understanding, the Court held that a District of Columbia law banning handgun possession in the home violated the second amendment. Id. at 635.^[217]

Notes and analysis[edit]

Heller has been widely described as a landmark decision because it was the first time the Court affirmed an individual's right to own a gun.^{[218][219][220][221][222]} To clarify that its ruling does not invalidate a broad range of existing firearm laws, the majority opinion, written by Justice Antonin Scalia, said:^[223]

Like most rights, the right secured by the Second Amendment is not unlimited .. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.^[224]

The Court's statement that the right is limited has been widely discussed by lower courts and the media.^{[225][226][227][228]} The majority opinion also said that the amendment's prefatory clause (referencing the 'militia') serves to clarify the operative clause (referencing 'the people'), but does not limit the scope of the operative clause, because 'the 'militia' in colonial America consisted of a subset of 'the people' . .. '^[229]

Justice Stevens' dissenting opinion, which was joined by the three other dissenters, said:

The question presented by this case is not whether the Second Amendment protects a 'collective right' or an 'individual right.' Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.^[230]

Stevens went on to say the following:

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature's authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.^[231]

This dissent called the majority opinion 'strained and unpersuasive' and said that the right to possess a firearm exists only in relation to the militia and that the D.C. laws constitute permissible regulation. In the majority opinion, Justice Stevens' interpretation of the phrase 'to keep and bear arms' was referred to as a 'hybrid' definition that Stevens purportedly chose in order to avoid an 'incoherent' and '[g]rotesque' idiomatic meeting.^[231]

Justice Breyer, in his own dissent joined by Stevens, Souter, and Ginsburg, stated that the entire Court subscribes to the proposition that 'the amendment protects an 'individual' right – i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred'.^[232]Responsibilities of employees at work.

Regarding the term 'well regulated', the majority opinion said, 'The adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training.'^[181] The majority opinion quoted Spooner from The Unconstitutionality of Slavery as saying that the right to bear arms was necessary for those who wanted to take a stand against slavery.^[233] The majority opinion also stated that:

A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If 'bear arms' means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage ('for the purpose of self-defense' or 'to make war against the King'). But if 'bear arms' means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add 'for the purpose of killing game.' The right 'to carry arms in the militia for the purpose of killing game' is worthy of the mad hatter.^[234]

The dissenting justices were not persuaded by this argument.^[235]

Reaction to Heller has varied, with many sources giving focus to the ruling referring to itself as being the first in Supreme Court history to read the Second Amendment as protecting an individual right. The majority opinion, authored by Justice Scalia, gives explanation of the majority legal reasoning behind this decision.^[210] The majority opinion made clear that the recent ruling did not foreclose the Court's prior interpretations given in United States v. Cruikshank, Presser v. Illinois, and United States v. Miller though these earlier rulings did not limit the right to keep and bear arms solely to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia (i.e., those in common use for lawful purposes).^[210]

Heller pertained to three District of Columbia ordinances involving restrictions on firearms amounting to a total ban. These three ordinances were a ban on handgun registration, a requirement that all firearms in a home be either disassembled or have a trigger lock, and licensing requirement that prohibits carrying an unlicensed firearm in the home, such as from one room to another.

Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition – in the place where the importance of the lawful defense of self, family, and property is most acute – would fail constitutional muster. .. Because Heller conceded at oral argument that the District's licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumed that a license will satisfy his prayer for relief and did not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.'^[210]

Justice Ginsburg has been a vocal critic of Heller. Speaking in an interview on public radio station WNYC, she called the Second Amendment 'outdated,' saying:

When we no longer need people to keep muskets in their home, then the Second Amendment has no function .. If the Court had properly interpreted the Second Amendment, the Court would have said that amendment was very important when the nation was new; it gave a qualified right to keep and bear arms, but it was for one purpose only – and that was the purpose of having militiamen who were able to fight to preserve the nation.^[236]

McDonald v. City of Chicago[edit]

On June 28, 2010, the Court in McDonald v. City of Chicago, 561 U.S. 742 (2010), held that the Second Amendment was incorporated, saying that '[i]t is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.'^[237] This means that the Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government.^[22] It also remanded a case regarding a Chicago handgun prohibition. Four of the five Justices in the majority voted to do so by way of the Due Process Clause of the Fourteenth Amendment, while the fifth Justice, Clarence Thomas, voted to do so through the amendment's Privileges or Immunities Clause.^[238]

Justice Thomas, in his concurring opinion, noted that the Privileges or Immunities Clause refers to 'citizens' whereas the Due Process Clause refers more broadly to any 'person', and therefore Thomas reserved the issue of non-citizens for later decision.^[239] After McDonald, many questions about the Second Amendment remain unsettled, such as whether non-citizens are protected through the Equal Protection Clause.^[239]

In People v. Aguilar (2013), the Illinois Supreme Court summed up the central Second Amendment findings in McDonald:

Two years later, in McDonald v. City of Chicago, 561 U.S. 742, ___, 130 S. Ct. 3020, 3050 (2010), the Supreme Court held that the second amendment right recognized in Heller is applicable to the states through the due process clause of the fourteenth amendment. In so holding, the Court reiterated that 'the Second Amendment protects the right to keep and bear arms for the purpose of self-defense' (id. at ___, 130 S. Ct. at 3026); that 'individual self-defense is 'the central component' of the Second Amendment right' (emphasis in original) (id. at ___, 130 S. Ct. at 3036 (quoting Heller, 554 U.S. at 599)); and that '[s]elf-defense is a basic right, recognized by many legal systems from ancient times to the present day' (id. at ___, 130 S. Ct. at 3036).^[217]

Caetano v. Massachusetts[edit]

On March 21, 2016, in a per curiam decision the Court vacated a Massachusetts Supreme Judicial Court decision upholding the conviction of a woman who carried a stun gun for self-defense.^[240] The Court reiterated that the Heller and McDonald decisions saying that 'the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding', that 'the Second Amendment right is fully applicable to the States', and that the protection is not restricted to 'only those weapons useful in warfare'.

New York State Rifle & Pistol Association Inc. v. City of New York, New York[edit]

The Court agreed to hear New York State Rifle & Pistol Association Inc. v. City of New York, New York in January 2019 to decide whether a New York City ordinance that prevents the transport of guns, even if properly unloaded and locked in containers, outside of the city limits is unconstitutional. The New York Rifle & Pistol Association is challenging the ordinance on the basis of the Second Amendment, the Dormant Commerce Clause, and the right to travel.^[241]

United States Courts of Appeals decisions before and after Heller[edit]

Before Heller[edit]

Until District of Columbia v. Heller (2008), United States v. Miller (1939) had been the only Supreme Court decision that 'tested a congressional enactment against [the Second Amendment].'^[242]Miller did not directly mention either a collective or individual right, but for the 62-year period from Miller until the Fifth Circuit's decision in United States v. Emerson (2001), federal courts recognized only the collective right,^[243] with 'courts increasingly referring to one another's holdings .. without engaging in any appreciably substantive legal analysis of the issue'.^[242]

Emerson changed this by addressing the question in depth, with the Fifth Circuit determining that the Second Amendment protects an individual right.^[242] Subsequently, the Ninth Circuit conflicted with Emerson in Silveira v. Lockyer, and the D.C. Circuit supported Emerson in Parker v. District of Columbia.^[242]Parker evolved into District of Columbia v. Heller, in which the U.S. Supreme Court determined that the Second Amendment protects an individual right.

After Heller[edit]

Since Heller, the United States courts of appeals have ruled on many Second Amendment challenges to convictions and gun control laws.^[244][245] The following are post-Heller cases, divided by Circuit, along with summary notes:

D.C. Circuit

• Heller v. District of Columbia, Civil Action No. 08-1289 (RMU), No. 23., 25 – On March 26, 2010, the D.C. Circuit denied the follow up appeal of Dick Heller who requested the court to overturn the new District of Columbia gun control ordinances newly enacted after the 2008 Heller ruling. The court refused to do so, stating that the firearms registration procedures, the prohibition on assault weapons, and the prohibition on large capacity ammunition feeding devices were found to not violate the Second Amendment.^[246] On September 18, 2015, the D.C. Circuit ruled that requiring gun owners to re-register a gun every three years, make a gun available for inspection or pass a test about firearms laws violated the Second Amendment, although the court upheld requirements that gun owners be fingerprinted, photographed, and complete a safety training course.^[247]
• Wrenn v. District of Columbia, No. 16-7025 – On July 25, 2017, the D.C. Circuit ruled that a District of Columbia regulation that limited conceal-carry licenses only to those individuals who could demonstrate, to the satisfaction of the chief of police, that they have a 'good reason' to carry a handgun in public was essentially designed to prevent the exercise of the right to bear arms by most District residents and so violated the Second Amendment by amounting to a complete prohibition on firearms possession.^[248]

First Circuit

• United States v. Rene E., 583 F.3 d 8 (1st Cir. 2009 ) – On August 31, 2009, the First Circuit affirmed the conviction of a juvenile for the illegal possession of a handgun as a juvenile, under 18 U.S.C.§ 922(x)(2)(A) and 18 U.S.C.§ 5032, rejecting the defendant's argument that the federal law violated his Second Amendment rights under Heller. The court cited 'the existence of a longstanding tradition of prohibiting juveniles from both receiving and possessing handguns' and observed 'the federal ban on juvenile possession of handguns is part of a longstanding practice of prohibiting certain classes of individuals from possessing firearms – those whose possession poses a particular danger to the public.'^[249]

Second Circuit

• Kachalsky v. County of Westchester, 11-3942 – On November 28, 2012, the Second Circuit upheld New York's may-issueconcealed carry permit law, ruling that 'the proper cause requirement is substantially related to New York's compelling interests in public safety and crime prevention.'^[250]

Fourth Circuit

• United States v. Hall, 551 F.3 d 257 (4th Cir. 2009 ) – On August 4, 2008, the Fourth Circuit upheld as constitutional the prohibition of possession of a concealed weapon without a permit.^[251]
• United States v. Chester, 628 F.3d 673 (4th Cir. 2010) – On December 30, 2010, the Fourth Circuit vacated William Chester's conviction for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C.§ 922(g)(9).^[252] The court found that the district court erred in perfunctorily relying on Heller's exception for 'presumptively lawful' gun regulations made in accordance with 'longstanding prohibitions'.^[253]
• Kolbe v. Hogan, No. 14-1945 (4th Cir. 2016) – On February 4, 2016, the Fourth Circuit vacated a U.S. District Court decision upholding a Maryland law banning high-capacity magazines and semi-automatic rifles, ruling that the District Court was wrong to have applied intermediate scrutiny. The Fourth Circuit ruled that the higher strict scrutiny standard is to be applied on remand.^[254] On March 4, 2016, the court agreed to rehear the case en banc on May 11, 2016.^[255]

Fifth Circuit

• United States v. Dorosan, 350 Fed. Appx. 874 (5th Cir. 2009) – On June 30, 2008, the Fifth Circuit upheld 39 C.F.R.232.1(l), which bans weapons on postal property, sustaining restrictions on guns outside the home, specifically in private vehicles parked in employee parking lots of government facilities, despite Second Amendment claims that were dismissed. The employee's Second Amendment rights were not infringed since the employee could have instead parked across the street in a public parking lot, instead of on government property.^[256][257]
• United States v. Bledsoe, 334 Fed. Appx. 771 (5th Cir. 2009) – The Fifth Circuit affirmed the decision of a U.S. District Court decision in Texas, upholding 18 U.S.C.§ 922(a)(6), which prohibits 'straw purchases.' A 'straw purchase' occurs when someone eligible to purchase a firearm buys one for an ineligible person. Additionally, the court rejected the request for a strict scrutiny standard of review.^[251]
• United States v. Scroggins, 551 F.3 d 257 (5th Cir. 2010 ) – On March 4, 2010, the Fifth Circuit affirmed the conviction of Ernie Scroggins for possession of a firearm as a convicted felon, in violation of 18 U.S.C.§ 922(g)(1). The court noted that it had, prior to Heller, identified the Second Amendment as providing an individual right to bear arms, and had already, likewise, determined that restrictions on felon ownership of firearms did not violate this right. Moreover, it observed that Heller did not affect the longstanding prohibition of firearm possession by felons.

Sixth Circuit

• Tyler v. Hillsdale Co. Sheriff's Dept., 775 F.3 d 308 (6th Cir. 2014 ) – On December 18, 2014, the Sixth Circuit ruled that strict scrutiny should be applied to firearms regulations when regulations burden 'conduct that falls within the scope of the Second Amendment right, as historically understood.'^[258] At issue in this case was whether the Second Amendment is violated by a provision of the Gun Control Act of 1968 that prohibits possession of a firearm by a person who has been involuntarily committed to a psychiatric hospital. The court did not rule on the provision's constitutionality, instead remanding the case to the United States district court that has earlier heard this case.^[259] On April 21, 2015, the Sixth Circuit voted to rehear the case en banc, thereby vacating the December 18 opinion.^[260]

Seventh Circuit

• United States v. Skoien, 587 F.3 d 803 (7th Cir. 2009 ) – Steven Skoien, a Wisconsin man convicted of two misdemeanor domestic violence convictions, appealed his conviction based on the argument that the prohibition violated the individual rights to bear arms, as described in Heller. After initial favorable rulings in lower court based on a standard of intermediate scrutiny,^[261] on July 13, 2010, the Seventh Circuit, sitting en banc, ruled 10–1 against Skoien and reinstated his conviction for a gun violation, citing the strong relation between the law in question and the government objective.^[261] Skoien was convicted and sentenced to two years in prison for the gun violation, and will thus likely be subject to a lifetime ban on gun ownership.^[262][263] Editorials favoring gun rights sharply criticized this ruling as going too far with the enactment of a lifetime gun ban,^[264] while editorials favoring gun regulations praised the ruling as 'a bucket of cold water thrown on the 'gun rights' celebration'.^[265]
• Moore v. Madigan (Circuit docket 12-1269)^[266] – On December 11, 2012, the Seventh Circuit ruled that the Second Amendment protected a right to keep and bear arms in public for self-defense. This was an expansion of the Supreme Court's decisions in Heller and McDonald, each of which referred only to such a right in the home. Based on this ruling, the court declared Illinois's ban on the concealed carrying of firearms to be unconstitutional. The court stayed this ruling for 180 days, so Illinois could enact replacement legislation.^{[267][268][269]} On February 22, 2013, a petition for rehearing en banc was denied by a vote of 5–4.^[270] On July 9, 2013, the Illinois General Assembly, overriding Governor Quinn's veto, passed a law permitting the concealed carrying of firearms.^[271]

Ninth Circuit

• Nordyke v. King, 2012 WL 1959239 (9th Cir. 2012) – On July 29, 2009, the Ninth Circuit vacated an April 20 panel decision and reheard the case en banc on September 24, 2009.^{[272][273][274][275]} The April 20 decision had held that the Second Amendment applies to state and local governments, while upholding an Alameda County, California ordinance that makes it a crime to bring a gun or ammunition on to, or possess either while on, county property.^[276][277] The en banc panel remanded the case to the three-judge panel. On May 2, 2011, that panel ruled that intermediate scrutiny was the correct standard by which to judge the ordinance's constitutionality and remanded the case to the United States District Court for the Northern District of California.^[278] On November 28, 2011, the Ninth Circuit vacated the panel's May 2 decision and agreed to rehear the case en banc.^[279][280] On April 4, 2012, the panel sent the case to mediation.^[281] The panel dismissed the case on June 1, 2012, but only after Alameda County officials changed their interpretation of the challenged ordinance. Under the new interpretation, gun shows may take place on county property under the ordinance's exception for 'events', subject to restrictions regarding the display and handling of firearms.^[282]
• Teixeira v. County of Alameda, (Circuit docket 13-17132) – On May 16, 2016, the Ninth Circuit ruled that the right to keep and bear arms included being able to buy and sell firearms. The court ruled that a county law prohibiting a gun store being within 500 feet of a '[r]esidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served' violated the Second Amendment.^[283]
• Peruta v. San Diego No. 10-56971 (9th Cir. 2016), (Circuit docket 13-17132) – On June 9, 2016, pertaining to the legality of San Diego County's restrictive policy regarding requiring documentation of 'good cause' before issuing a concealed carry permit, the Ninth Circuit upheld the policy, finding that 'there is no Second Amendment right for members of the general public to carry concealed firearms in public.'^[284]

Calls for repeal[edit]

On June 27, 2008, a day after the Supreme Court handed down its decision in District of Columbia v. Heller, the Chicago Tribune wrote in an editorial that the Second Amendment should be repealed so local governments could ban firearms in an effort to protect their residents.^[285]

On October 5, 2017, political commentator Bret Stephens called for the repeal of the Second Amendment, arguing that repeal is the only effective way to regulate firearms.^[286]

On March 27, 2018, former Supreme Court Justice John Paul Stevens said the Second Amendment should be repealed. Stevens said that Heller went against the settled understanding of the Second Amendment as being militia-based and that overruling that decision by repealing the Second Amendment would be 'simple.'^[287] President Trump responded the next day to Stevens's call for repeal by saying that it would never happen.^[288] Elizabeth Wydra, president of the Constitutional Accountability Center, says that Stevens's comments were 'staggeringly misplaced' and could set back demands for gun control. She also said an attempt at repeal would be 'a daunting task' likely to fail.^[289]

See also[edit]

• Right to keep and bear arms – international views on the concept by country
• Second Amendment Caucus – a Congressional caucus dedicated to supporting the right to bear arms'
• Uniform Firearms Act – a set of statutes in Pennsylvania that define and amplify the right to bear arms in that state's Constitution.

Notes[edit]

1. ^In Part II-A of the Opinion of the Court in District of Columbia v. Heller, the Supreme Court cited this version of the amendment, but another version is found in the copies distributed and then ratified by them.
2. ^Blackstone's Commentaries Book 1 Ch 1 – 'The fifth and last auxiliary right of the subject .. is that of having arms for their defence'.
3. ^From the English Civil War until the Glorious Revolution militias occasionally disarmed Catholics, and the King, without Parliament's consent, likewise occasionally disarmed Protestants. Malcolm, 'The Role of the Militia,' pp. 139–51.
4. ^'This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.' As we (the United States Supreme Court) said in United States v. Cruikshank, 92 U.S./542 /#553 542 , 553 (1876), '[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed ..'. Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31–53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103–106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: 'That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.' 1 W. & M., c. 2, §7, in 3 Eng. Stat. at Large 441 (1689). This right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights and What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle).' From the Opinion of the Court in District of Coöimbia versus Heller 'Archived copy'(PDF). Archived(PDF) from the original on 2 March 2013. Retrieved 25 February 2013.CS1 maint: Archived copy as title (link)
5. ^Justice Antonin Scalia, wrote that 'the right of the people to keep and bear Arms, shall not be infringed' was a just a controlling one and referred to it as a pre-existing right of individuals to possess and carry personal weapons for self-defense and intrinsically for defense against tyranny. As with the English law 'like most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.' 'District of Columbia v. Heller'(PDF). Archived from the original(PDF) on 2 March 2013.
6. ^Hardy, p. 1237. 'Early Americans wrote of the right in light of three considerations: (1) as auxiliary to a natural right of self-defense; (2) as enabling an armed people to deter undemocratic government; and (3) as enabling the people to organize a militia system.'
7. ^Malcolm, 'That Every Man Be Armed,' pp. 452, 466. 'The Second Amendment reflects traditional English attitudes toward these three distinct, but intertwined, issues: the right of the individual to protect his life, the challenge to government of an armed citizenry, and the preference for a militia over a standing army. The framers' attempt to address all three in a single declarative sentence has contributed mightily to the subsequent confusion over the proper interpretation of the Second Amendment.'
8. ^Cooke, p. 100. 'This is another protection against a possible abuse by Congress. The right protected is really the right of a state to maintain an armed militia, or national guard, as we call it now. In the eighteenth century people feared that Congress might, by passing a law, prohibit the states from arming their citizens. Then having all the armed strength at its command, the national government could overwhelm the states. Such a circumstance has never happened, but this amendment would prevent it. The Second Amendment does not give anybody or everybody the right to possess and use firearms. The states may very properly prescribe regulations and permits governing the use of guns within their borders.'
9. ^For two radically different views of Blackstone on the Second Amendment, see Heyman, Chicago-Kent, and Volokh, Senate Testimony.
10. ^ ^abRawle, William (1825). A View of the Constitution of the United States of America. H.C. Carey & I. Lea. Retrieved July 5, 2013. In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest. The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.
11. ^Story, Joseph (1865). A Familiar Exposition of the Constitution of the United States: Containing a Brief Commentary on Every Clause, Explaining the True Nature, Reasons, and Objects Thereof. The Lawbook Exchange, Ltd. ISBN9781886363717. Retrieved July 5, 2013. The next amendment is, '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.' One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by 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. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men. § 451. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpations and arbitrary power of rulers; and it will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well-regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our National Bill of Rights.
12. ^Farrar, Timothy (1872). Manual of the Constitution of the United States of America. Little, Brown. § 34. Retrieved 6 July 2013. The people of the United States, in making their Constitution, do not create or confer on themselves any new rights, but they expressly reserve all the rights they then held, except what were delegated for their own benefit; and they particularly and expressly recognize and perpetuate many natural and civil common-law rights, which, of course, are placed beyond the reach of any subordinate government, and even of their own. Among these are the following: 1. The right to be, what they call themselves, 'the people of the United States,' citizens, and component members of the body politic, – the nation; and to participate in all the privileges, immunities, and benefits the Constitution was designed to obtain or secure for all the American people, especially the right to be protected and governed according to the provisions of the Constitution. 2. A right to the privileges and immunities of citizens in any of the several States. Among these is the fundamental and elementary right of suffrage. The Representatives to the national and State legislatures must be chosen by the people, the citizens (Section 2). Consequently, the citizens must choose them, and have a right to choose them. Am. 14, § 2. 3. A right to the common-law writ of habeas corpus, to protect the other common-law right, as well as natural and constitutional right, of personal liberty. 4. A right to trial by jury in any criminal case. 5. A right to keep and bear arms. 6. A right to life, liberty, and property, unless deprived by due process of law. 7. A right to just compensation for private property legally taken for public use. 8. A right to participate in all rights retained by, or reserved to, the people. Most of these rights, with many others, belong by the Constitution not only to the citizens, – the people of the United States, strictly so called, by reason of the franchise of natural birth or otherwise, – but also to all persons who may be allowed to be and remain under the jurisdiction and protection of our government. These are a part only of the rights held by every member of the nation, under and by virtue of the Constitution of the United States, independent of any other earthly power, and which, of course, 'cannot be destroyed or abridged by the laws of any particular State.' Who, then, in the United States is destitute of rights? .. The States are recognized as governments, and, when their own constitutions permit, may do as they please; provided they do not interfere with the Constitution and laws of the United States, or with the civil or natural rights of the people recognized thereby, and held in conformity to them. The right of every person to 'life, liberty, and property,' to 'keep and bear arms,' to the 'writ of habeas corpus' to 'trial by jury,' and divers others, are recognized by, and held under, the Constitution of the United States, and cannot be infringed by individuals or even by the government itself.
13. ^Justice Story 'misidentified' it as the '5th Amendment.' Several public officials, including James Madison and Supreme Court Justice Joseph Story, retained the confusing practice of referring to each of the ten amendments in the Bill of Rights by the enumeration found in the first draft; the fifth article is the Second Amendment.

Citations[edit]

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References[edit]

Books[edit]

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• Hemenway, David (2007). Private Guns, Public Health. University of Michigan Press. ISBN978-0-472-03162-7.
• Kruschke, Earl R. (1995). Gun Control: A Reference Handbook. Santa Barbara, CA: ABC-CLIO. ISBN0-87436-695-X.
• Levy, Leonard W. (1999). Origins of the Bill of Rights. New Haven, CT: Yale University Press. ISBN0-300-07802-1.
• Madison, James (2010). The Writings of James Madison: 1787–1790. Nabu Press. ISBN978-1-144-58273-7.
• Malcolm, Joyce Lee (1996). To Keep and Bear Arms: The Origins of an Anglo-American Right. Cambridge: Harvard University Press. ISBN0-674-89307-7.
• Merkel, William G.; Uviller, H. Richard (2002). The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent. Durham, NC: Duke University Press. ISBN0-8223-3017-2. Retrieved February 14, 2013.
• Millis, Walter (1981). Arms and Men. Rutgers University Press.
• Mulloy, D. (2004). American Extremism. Routledge.
• Pepper, John; Petrie, Carol; Wellford, Charles F. (2005). Firearms and Violence. A Critical Review. Washington, DC: National Academies Press. ISBN0-309-09124-1.
• Pole, J. R.; Greene, Jack P. (2003). A Companion to the American Revolution (Blackwell Companions to American History). Cambridge, MA: Blackwell Publishers. ISBN1-4051-1674-9.
• Renehan, Edward J. (1997). The Secret Six: The True Tale of the Men Who Conspired With John Brown. Columbia, SC: University of South Carolina Press. ISBN1-57003-181-9.
• Schmidt, Steffen; Bardes, Barbara A.; Shelley, Mack C. (2008). American Government and Politics Today: The Essentials. Belmont, CA: Wadsworth Publishing. ISBN0-495-57170-9.
• Shapiro, Ilya (2008). Cato Supreme Court Review 2007–2008. Washington, D.C: Cato Institute. ISBN1-933995-17-3.
• Smith, Rich (2007). The Bill of Rights: Defining Our Freedoms. ABDO Group. ISBN978-1-59928-913-7.
• Spitzer, Robert J. (2001). The Right to Bear Arms: Rights and Liberties under the Law. Santa Barbara, CA: ABC-CLIO. ISBN1-57607-347-5.
• Szatmary, David P. (1980). Shays' Rebellion: the Making of an Agrarian Insurrection. Amherst: University of Massachusetts Press. ISBN0-87023-295-9.
• Tucker, St. George; Blackstone, William (1996). Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws, of the Federal Government of the United States, and of the Commonwealth of Virginia: In Five Volumes. The Lawbook Exchange, Ltd. ISBN978-1-886363-15-1.
• Tushnet, Mark V. (2007). Out of Range: Why the Constitution Can't End the Battle Over Guns. Oxford University Press. p. xv. ISBN978-0-19-530424-4.
• Rabban, David (1999). Free Speech in its Forgotten Years. Cambridge University Press.
• Rawle, William (1829). A View of the Constitution of the United States of America (2 ed.). P.H. Nicklin.
• Spooner, Lysander (1852). An Essay on the Trial by Jury. Retrieved July 6, 2013.
• Vile, John R. (2005). The Constitutional Convention of 1787: A Comprehensive Encyclopedia of America's Founding (2 Volume Set). Santa Barbara, CA: ABC-CLIO. ISBN1-85109-669-8.
• Williams, David H. (2003). The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic. New Haven, CT: Yale University Press. ISBN0-300-09562-7.
• Wills, Garry (2000). Saul, Cornell (ed.). Whose Right to Bear Arms did the Second Amendment Protect?. Boston: Bedford/St. Martin's. ISBN0-312-24060-0.
• Wills, Garry (2002). A Necessary Evil: A History of American Distrust of Government. New York: Simon & Schuster. pp. 256–57. ISBN0-684-87026-6.
• Winterer, Caroline (2002). The Culture of Classicism: Ancient Greece and Rome in American Intellectual Life, 1780–1910. Baltimore: Johns Hopkins University Press.
• Young, David E. (2001). The Origin of the Second Amendment: A Documentary History of the Bill of Rights 1787–1792 (2 ed.). Golden Oak Books. ISBN0-9623664-3-9.

Periodicals[edit]

• Barnett, Gary E. (June 24, 2008). 'The Reasonable Regulation of the Right to Keep and Bear Arms'. Geo. J. L. & Pub. Policy. 6 (2). SSRN1152102.
• Bogus, Carl T. (Winter 1998). 'The Hidden History of the Second Amendment'(PDF). U.C. Davis Law Review. 31 (2): 309–408.
• Breen, T. H. (1972). 'English Origins and New World Development: The Case of the Covenanted Militia in Seventeenth-Century Massachusetts'. Past & Present. 57 (1): 74. doi:10.1093/past/57.1.74.
• Charles, Patrick J. (2009). ''Arms for their defence?': An historical, legal, and textual analysis of the English right to have arms and whether the Second Amendment should be incorporated in McDonald v. City of Chicago'. Clev. St. L. Rev. 57 (3). SSRN1550768.
• Cramer, Clayton (June 15, 2007). 'The Racist Roots of Gun Control'. Libcom.org. Archived from the original on September 30, 2017.
• Davies, Ross (Winter 2008). 'Which is the Constitution'(PDF). Green Bag 2d. 11 (2): 209–16.
• Gunn, Steven H. (1998). 'A Lawyer's Guide to the Second Amendment'. BYU L. Rev. 35.
• Hardy, David (2007). 'Book Review: A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America'. Wm. & Mary Bill of Rts. J. 15. SSRN947334.
• Henigan, Denis (1991). 'Arms, Anarchy, and the Second Amendment'. Val. U. L. Rev. 26 (107).
• Heyman, Stephen (2000). 'Natural Rights and the Second Amendment'. Chi.-Kent. L. Rev. 76 (237).
• Kates Jr., Don B. (November 1983). 'Handgun Prohibition and the Original Meaning of the Second Amendment'. Mich. L. Rev. 82 (2): 204–73. doi:10.2307/1288537. JSTOR1288537.
• Konig, David Thomas (Spring 2004). 'The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of 'the Right of the People to Keep and Bear Arms''. Law and History Review. 22 (1): 120–59. doi:10.2307/4141667.
• Lund, Nelson. 'Heller and Second Amendment Precedent'. Lewis & Clark L. Rev. SSRN1235537.
• Malcolm, Joyce Lee (1986). 'Book Review: That Every Man Be Armed'. George Washington Law Review. 54.
• Malcolm, Joyce Lee (1993). 'The Role of the Militia in the Development of the Englishman's Right to be Armed – Clarifying the Legacy'. J. On Firearms & Pub. Pol'y. 5. Archived from the original on 23 August 2010.
• McAffee, Thomas B.; Quinlan, Michael J. (March 1997). 'Bringing Forward the Right to Keep and Bear Arms: Do Text, History, or Precedent Stand in the Way?'. N.C. L. Rev. Archived from the original on August 16, 2000.
• McClurg, Andrew (1999). 'Lotts' More Guns and Other Fallacies Infecting the Gun Control Debate'. J. Of Firearms & Pub. Pol'y. 11.
• Merkel, William (Summer 2009). 'Heller and Scalia's Originalism'. Lewis & Clark L. Rev. 13 (2). SSRN1422048.
• Rakove, Jack (2000). 'The Second Amendment: The Highest Stage of Originalism'. Chi.-Kent. L. Rev. 76.
• Reynolds, Glenn (1995). 'A Critical Guide to the Second Amendment'. Tenn. L. Rev. 62 (461). SSRN960788.
• Schmidt, Christopher (February 2007). 'An International Human Right to Keep and Bear Arms'. Wm. & Mary Bill of Rts. J. 15 (3): 983.
• Smith, Douglas (2008). 'The Second Amendment and the Supreme Court'. Geo. J.L. & Pub. Pol'y. 6. SSRN1093751.
• Volokh, Eugene (1998). 'The Commonplace Second Amendment'. NYU L. Rev. 73 (793).
• Volokh, Eugene (November – December 1998). 'Testimony of Eugene Volokh on the Second Amendment, Senate Subcommittee on the Constitution, September 23, 1998'. Cal. Pol. Rev.
• Weisselberg, Charles D. (2009). 'Selected Criminal Law Cases in the Supreme Court's 2007–2008 Term, and a Look Ahead'(PDF). Court Review. 44.
• Winkler, Adam (February 2007). 'Scrutinizing the Second Amendment'. Mich. L. Rev. 105.
• Winkler, Adam (June 2009). 'Heller's Catch 22'. UCLA L. Rev. 56. SSRN1359225.

Other publications[edit]

• Maer, Lucinda; Gay, Oonagh (2009). 'The Bill of Rights 1689'. Parliament and Constitution Centre.

Further reading[edit]

• Tahmassebi, S. B. (1991). 'Gun Control and Racism'. George Mason University Civil Rights Law Journal. 2 (1): 67–100. Archived from the original on August 16, 2000.

External links[edit]

• Works related to United States Bill of Rights at Wikisource
• 'District of Columbia v. Heller'.
• 'National Archives Scanned Image of the Bill of Rights, including the Second Amendment'.
• The short film Big Picture: To Keep and Bear Arms is available for free download at the Internet Archive
• Volokh, Eugene (ed.). 'State Constitutional Right to Keep and Bear Arms Provisions'. UCLA Law School.