The Second Amendment
The Second Amendment guarantees: "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."
This guarantees a citizen's right to keep and bear arms for personal defense. The revolutionary experience caused our forebears to address a second concern -- the ability of Americans to maintain a citizen militia. The Founding Fathers trusted an armed citizenry as the best safeguard against the possibility of a tyrannical government.
James Madison, author of the Second Amendment, wrote that Americans had "the advantage of being armed," that was lacking in other nations, where "the governments are afraid to trust the people with arms." Patrick Henry proclaimed the "great object is that every man be armed. . . . Everyone who is able may have a gun." The Second Amendment was then, as it is today, about freedom and the means to protect it.
In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court refused to take judicial notice that a short-barreled shotgun was useful for militia purposes. Nowhere did the court hold that an individual does not have a right to keep and bear arms. In United States v. Gomez, 81 F.3d 846, 850 n. 7 (9th Cir. 1996), Judge Kozinski opined that "The Second Amendment embodies the right to defend oneself and one’s home against physical attack." In United States v. Hutzell, 217 F.3d 966, 969 (8th Cir. 2000), the court held that "... an individual's right to bear arms is constitutionally protected, see United States v. Miller ...." In United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), the court examined United States v. Miller and held: "We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it protects the right of individuals ... to privately possess and bear their own firearms ...."
The U. S. Supreme Court has recently recognized the Second Amendment as an important individual right. Planned Parenthood v. Casey, 505 U.S. 833 (1992); United States v. Verdugo-Urquidez, 494 U.S. 259 (1991).
On December 17, 2004, the U.S. Department of Justice published an exhaustive Second Amendment memorandum. It concludes without reservation that "the Second Amendment secures a personal right of individuals, not a collective right that may only be invoked by a State or a quasi-collective right restricted to those persons who serve in organized militia units." http://www.usdoj.gov/olc/2004opinions.htm
The Founding Fathers distrusted a government that wouldn't trust its people. To fulfill the promise of the Declaration of Independence, the authors of the U.S. Constitution and its Bill of Rights made it clear that individual rights were paramount. The Bill of Rights, wrote Madison, was "calculated to secure the personal rights of the people."
Some claim that banning only certain firearms does not constitute an infringement of Second Amendment rights. That measured ploy is not new. George Mason exposed it at Virginia's constitutional convention in 1788: "[W]hen the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man . . . to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually."
Our founders risked their lives to create a free nation, and they guaranteed freedom as the birthright of American citizens through the Bill of Rights. The Second Amendment remains the first right among equals, because it is the one we turn to when all else fails.
I'd like to meet:
America..s Founding Fathers On
The Individual Right To Keep And Bear Arms
Thomas Jefferson, of Virginia:
"No free man shall ever be debarred the use of arms." -- Proposed Virginia Constitution, 1776
"Laws that forbid the carrying of arms. . . disarm only those who are neither inclined nor determined to commit crimes. . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." -- Jefferson..s "Commonplace Book," 1774-1776, quoting from On Crimes and Punishment, by criminologist Cesare Beccaria, 1764
George Mason, of Virginia:
"[W]hen the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually.". . . I ask, who are the militia? They consist now of the whole people, except a few public officers." -- Virginia..s U.S. Constitution ratification convention, 1788
"That the People have a right to keep and bear Arms; that a well regulated Militia, composed of the Body of the People, trained to arms, is the proper, natural, and safe Defence of a free state." -- Within Mason..s declaration of "the essential and unalienable Rights of the People," -- later adopted by the Virginia ratification convention, 1788
Samuel Adams, of Massachusetts:
"The said Constitution [shall] be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms." -- Massachusetts.. U.S. Constitution ratification convention, 1788
William Grayson, of Virginia:
"[A] string of amendments were presented to the lower House; these altogether respected personal liberty." -- Letter to Patrick Henry, June 12, 1789, referring to the introduction of what became the Bill of Rights
Richard Henry Lee, of Virginia:
"A militia when properly formed are in fact the people themselves . . . and include all men capable of bearing arms. . . To preserve liberty it is essential that the whole body of people always possess arms... The mind that aims at a select militia, must be influenced by a truly anti-republican principle." -- Additional Letters From The Federal Farmer, 1788
James Madison, of Virginia:
The Constitution preserves "the advantage of being armed which Americans possess over the people of almost every other nation. . . (where) the governments are afraid to trust the people with arms." -- The Federalist, No. 46
Tench Coxe, of Pennsylvania:
"The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them." -- An American Citizen, Oct. 21, 1787
"Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords and every other terrible implement of the soldier, are the birthright of an American . . . . The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people." -- The Pennsylvania Gazette, Feb. 20, 1788
"As the military forces which must occasionally be raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article (of amendment) in their right to keep and bear their private arms." -- Federal Gazette, June 18, 1789
Noah Webster, of Pennsylvania:
"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. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power." -- An Examination of The Leading Principles of the Federal Constitution, Philadelphia, 1787
Alexander Hamilton, of New York:
"[I]f 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 rights and those of their fellow citizens." -- The Federalist, No. 29
Thomas Paine, of Pennsylvania:
"[A]rms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. . . Horrid mischief would ensue were the law-abiding deprived of the use of them." -- Thoughts On Defensive War, 1775
Fisher Ames, of Massachusetts:
"The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people." -- Letter to F.R. Minoe, June 12, 1789
Elbridge Gerry, of Massachusetts:
"What, sir, is the use of militia? It is to prevent the establishment of a standing army, the bane of liberty. . . Whenever Government means to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise a standing army upon its ruins." -- Debate, U.S. House of Representatives, August 17, 1789
Patrick Henry, of Virginia:
"Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel." -- Virginia..s U.S. Constitution ratification convention
For more information, see Halbrook, Stephen P., "The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment," Valparaiso Univ. Law Review, Vol. 26, No. 1, Fall, 1991; and "That Every Man Be Armed: The Evolution of a Constitutional Right," Univ. of N.M. Press, 1984
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Quizzes and Personality TestsGuarantees Of The Right To Arms In State Constitutions
Alabama
That the great, general and essential principles of liberty and free government may be recognized and established, we declare.... That every citizen has a right to bear arms in defense of himself and the state. (Art. I, § 26) (1819)
Alaska
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 individual right to keep and bear arms shall not be denied or infringed by the State or a political subdivision of the State. (Art. I, § 19) (1994; previous version 1959)
Arizona
The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men. (Art. II, § 26) (1912)
Arkansas
The citizens of this State shall have the right to keep and bear arms for their common defense. (Art. II, § 5) (1868; previous versions 1864, 1861, 1836)
Colorado
The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons. (Art. II, § 13) (1876)
Connecticut
Every citizen has a right to bear arms in defense of himself and the state. (Art. I, § 15) (1818)
Delaware
A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use. (Art. I, § 20) (1987)
Florida
The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law. (Art. I, § 8, [a]) (1990; previous versions 1968, 1885, 1868, 1838)
Georgia
The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have the power to prescribe the manner in which arms may be borne. (1982 Constitution, Art. I, § 1, para. 8) (1982; previous versions 1877, 1868, 1865)
Hawaii
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. (Art. I, § 15) (1959)
Idaho
The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony. (Art. I, § 11) (1978; previous version 1889)
Illinois
Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed. (Art. I, § 22) (1970)
Indiana
The people shall have a right to bear arms, for the defense of themselves and the State. (Art. I, § 32) (1851; previous version, 1816)
Kansas
The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power. (Bill of Rights, § 4) (1859)
Kentucky
All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: ... [t]he right to bear arms in defense of themselves and of the state, subject to the power of the general assembly to enact laws to prevent persons from carrying concealed weapons. (Bill of Rights, § 1) (1891; previous versions 1850, 1799)
Louisiana
The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person. (Art. I, § 11) (1974; previous version 1879)
Maine
Every person has a right to keep and bear arms and this right shall never be questioned. (Art. I, § 16)(1987; previous version 1819)
Massachusetts
The people have a right to keep and bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it. (Part I, Art. XVII) (1780)
Michigan
Every person has a right to keep or bear arms for the defense of himself and the State. (Art. I, § 6) (1963; previous versions 1850, 1835)
Mississippi
The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons. (Art. III, § 12) (1890; previous versions 1868, 1817)
Missouri
That the right of every citizen to keep and bear arms in defense of his home, person, and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons. (Art. I, § 23) (1945; previous versions 1875, 1865, 1820)
Montana
The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question; but nothing herein contained shall be held to permit the carrying of concealed weapons. (Art. II, § 12)
Militia forces shall consist of all able-bodied citizens of the state except those excepted by law. (Art. VI, § 14) (1889)
Nebraska
All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home and others, and for lawful common defense, hunting, recreational use and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof. (Art. I, § 1) (1988)
Nevada
Every citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes. (Art. I, § 11, [1]) (1982)
New Hampshire
All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state. (Part I, Art. 2a)
No person, who is conscientiously scrupulous about the lawfulness of bearing arms, shall be compelled thereto. (Part I, Art. 13) (1982)
New Mexico
No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate in any way, an incident of the right to keep and bear arms. (Art. II, § 6) (1986; previous versions 1971, 1912)
North Carolina
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; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice. (Art. I, § 30) (1971; previous versions 1876, 1868, 1776)
North Dakota
All individuals are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; pursuing and obtaining safety and happiness; and to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational and other lawful purposes, which shall not be infringed. (Art. I, § 1) (1984)
Ohio
The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power. (Art. I, §4) (1851; previous version 1802)
Oklahoma
The right of a citizen to keep and bear arms in defense of his home, person or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons. (Art. II, § 26) (1907)
Oregon
The people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power. (Art. I, § 27) (1857)
Pennsylvania
The right of the citizens to bear arms in defense of themselves and the State shall not be questioned. (Art. I, § 21) (1790)
Rhode Island
The right of the people to keep and bear arms shall not be infringed. (Art. I, § 22) (1842)
South Carolina
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. As, in times of peace, armies are dangerous to liberty, they shall not be maintained without the consent of the General Assembly. The military power of the State shall always be held in subordination to the civil authority and be governed by it. No soldier shall in time of peace be quartered in any house without the consent of the owner nor in time of war but in the manner prescribed by law. (Art. I, § 20) (1895; previous version 1868)
South Dakota
The right of the citizens to bear arms in defense of themselves and the state shall not be denied. (Art. VI, §24) (1889)
Tennessee
That the citizens of this State have a right to keep and bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime. (Art. I, § 26) (1870; previous versions 1834, 1796)
Texas
Every citizen shall have the right to keep and bear arms in lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime. (Art. I, § 23) (1876; previous versions 1868, 1845)
Note: The Texas Declaration of Independence stated that “[The Mexican government] has demanded us to deliver up our arms, which are essential to our defense—the rightful property of freemen—and formidable only to tyrannical governments.†The Republic of Texas Constitution of 1836 also protected Texans’ right to arms:
Every citizen shall have the right to bear arms in defense of himself and the republic. The military shall at all times and in all cases be subordinate to the civil power.â€
Utah
The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the legislature from defining the lawful use of arms. (Art. I, § 6) (1984; previous version 1895)
Vermont
That the people have a right to bear arms for the defence of themselves and the State—and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power. (Chapter I, Art. 16) (1777)
Virginia
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power. (Art. I, § 13) (1971; previous version 1776)
Washington
The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men. (Art. I, § 24) (1889)
West Virginia
A person has the right to keep and bear arms for the defense of self, family, home, and state, and for lawful hunting and recreational use. (Art. 3, § 22) (1986)
Wisconsin
The people have the right to keep and bear arms for security, defense, hunting, recreation, or any other lawful purpose. (Art. 1, § 25) (1998; approved by a 3:1 margin among Wisconsin voters)
Wyoming
The right of the citizens to bear arms in defense of themselves and of the state shall not be denied. (Art. I, § 24) (1889)
Other States
California, Iowa, Maryland, Minnesota, New Jersey, and New York do not have “right to keep and bear arms†provisions in their state constitutions.
Two of those states have general provisions that protect a right to defend life and liberty:
• Iowa's constitution (Art. I, § 1) states: “All men are, by nature, free and equal, and have certain inalienable rights—among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.â€
• New Jersey's (Art. I, § 1) states: “All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety, and happiness.â€
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