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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. It was adopted on December 15, 1791, along with the rest of the Bill of Rights however The right to arms predates the Bill of rights as the Natural law right of self-defense and as the civic duties to act in concert as posse comitatus and or in defense of the state. The 2nd amendment recognizes this right. Neither the courts nor scholars paid much attention to the the 2nd amendment for many years. While the courts trended in a vague and paradoxical way towards a now discarded "States Rights" theory, they never denied an individual right to arms. Scholars have since demonstrated that the amendment was written to protect the rights of individuals, the "standard view". Accepted by the courts in Heller and incorporated against the States in MacDonald. The "Sophisticated Collective" or "Individual/ Collective" was endorsed by the disent in Heller.

Statute of Northampton

PRE malcom

1. The chief interest of Scrope's speech, however, which it shares with Herle's, lies in the fact that it professes to describe a concerted policy carried out, if not by the ill-famed Mortimer, at least under his auspices, to restore peace and order to England. There are four features of this policy: first the appointment of keepers of the peace, secondly the passing of strict laws against highway robbers, armed gangs, and maintainors, thirdly the appointing of justices of oyer and terminer with a new and comprehensive commission, and lastly the initiation of a general eyre. For all these measures we are to see the parliament of Northampton of April-May 1328 as the focus; the parliament whose work in ratifying the unpopular Scottish peace seems for most contemporary and later historians to have obscured the importance of its police legislation, though in later years the Statute of Northampton was to form the second chapter, so to speak, in the code administered by the justices of the peace.
   1. On 24 April 1328 a parliament was opened at Northampton in the course of which various measures were passed for the better keeping of the peace. Armed and mounted men were not to be present when justice was being done by any of the king's justices or ministers, or in fairs or markets, and the officials of shires, franchises, and boroughs were to enforce this.4 Justices assigned to inquire into the keeping of the Statute of Winchester were to have power to punish an not merely to report to the king in parliament 'whereof no man hath yet seen any issue'.
2. The Statute of Northampton ( 1328) forbade men to ride armed in fairs and markets 3: whether it was effective may be gauged from a petition in Chancery in the reign of Richard II. which tells how the market at Malton was invaded by an armed band, "arrayed with habergeons and palets, bows and arrows, swords and daggers" 4. Complaint was also made in Parliament of malefactors who disturbed the peace of the different marts and molested the travellers resorting to them 5. The chronicler in 1450 records that the sheriffs and aldermen of London attended Bartholomew fair with three hundred men to give protection to the traders and country folk: "For the world was so strange that time, that no man might well ride nor go in no coast of this land without a strength of fellowship, but that he was robbed" 6. Nor was the mediaeval trader always averse from giving or receiving hard blows. Strife was easily stirred up between rival communities, and in 1260 a serious affray broke out at the fair of Northampton between the inhabitants of the town and the citizens of London7.
3. 2. The Aura and the Abuse of Arms

The interaction of weaponry and architecture was largely indirect—on the social plane. The spirit of the arms-bearing class was basic. In the borderlands of Gascony, for instance, vendetta and legitimate defence might be almost indistinguishable. A quasi-national interest might additionally confuse them.35 In 1270 Daurde de Baras, tenant in Quercy of King Louis's brother Alphonse de Poitiers, alleged that 'the men of the king of England and of the bishop of Cahors “separately” are daily invading his land, “attacking” his people and the subjects (homines)

1. Edward III's Statute of Northampton ( 1328), "made it an offense to ride armed at night, or by day in fairs, markets, or in the presence of king's ministers."23 However, these restrictions appear to have been aimed at private armies, who sought to intimidate judges and juries in cases involving their feudal lords.24 Another goal was to discourage knights from engaging in tournaments and the often resulting private wars of the medieval period, though a more general concern about problems of law and order also played a part in these restrictions.25 (The Statute of Northampton and its clarification by Hawkins will reappear throughout the judicial interpretation chapters of this book.) Henry VIII's reign was marked by a series of laws that attempted to first restrict ownership of crossbows, then handguns. In 1511, a property qualification of £200 was required to own crossbows (apparently because crossbows were distracting the lower classes from their "proper" weapon, the longbow), followed by a law in 1514 that included firearms under the same property qualification. It became apparent that the law was not being obeyed, and in 1523, the property qualification was reduced to £100. In 1541, even this was relaxed, and the property qualification applied only to guns less than a yard long (the ancestors of the modern concealable firearm). Further, those meeting the property qualification were allowed to carry such weapons with them on the "King's highways and elsewhere." Coke Institutes of the Laws of England, published in 1671, defending the common law against the crown, held that, "the laws permit the taking up of arms against armed persons." During this same period of time, the Statute of Northampton, prohibiting the carrying of arms, was recognized as intended "to punish people who go armed to terrify the king's subjects." Similarly, William Hawkins ' Treatises of the Pleas of the Crown, recognized the right of every person to arm himself for individual defensive purposes.26
   1. Simpson v. State, 5 Yerg. 356, 357 ( Tenn. 1833).
2. The Statute of Northampton, enacted in 1328 by King Edward III, prohibited any person "great or small" from going armed in a public place. 22 Jules Jusserand, a Pulitzer Prize-winning historian, found that "honest folk alone conformed to the law, thus facilitating matters for the others." 23 Accordingly, the common law courts moderated the statute by interpreting it to apply only to those who went armed in a manner "terrifying the good people of the land." 24
   1. Edward III, chapter 3 ( 1328): "That no Man great or fmall, of what Condition foever he be, except the King's Servants in his Prefence, and his Minifters ... and alfo upon a Cry made-for Arms to keep the Peace ... go nor ride armed by Night nor by Day, in Fairs, Markets, nor in the Prefence of the Justices or other Minifters, nor in no Part elfewhere...."

f

Statute of Northampton 2 Edw. 3, c. 3 (1328)

Item, it is enacted, that no man great nor small, of what condition soever he be, except the king's servants in his presence, and his ministers in executing of the king's precepts, or of their office, and such as be in their company assisting them, and also [upon a cry made for arms to keep the peace, and the same in such places where such acts happen,] be so hardy to come before the King's justices, or other of the King's ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison at the King's pleasure. And that the King's justices in their presence, sheriffs, and other ministers in their bailiwicks, lords of franchises, and their bailiffs in the same, and mayors and bailiffs of cities and boroughs, within the same cities and boroughs, and borough-holders, constables, and wardens of the peace within their wards, shall have power to execute this act. And that the justices assigned, at their coming down into the country, shall have power to enquire how such officers and lords have exercised their offices in this case, and to punish them whom they find that have not done that which pertained to their office

Enforcement:Sect. 4. But granting that no bare words, in the judgment of law carry in them so much terror as to amount to an affray, yet it seems certain, that in some cases there may be an affray where there is no actual violence ; as where a man arms himself with dangerous and unusual weapons, in such a manner as will naturally cause a terror to the people, which is said to have been always an offence at common law, and is strictly prohibited by many statutes.

By 2 Edw. 3. it is enacted, " That no man, great nor small' " of what condition soever he be, except the king's servants in " his presence, and his ministers in executing of the king's pre- " cepts, or of their office, and such as be in their company assist- " ing them, and also upon a cry made for arms to keep the peace, " and the same in such places where such acts happen, be so " hardy to come before the king's justices, or other of the king's " ministers doing their office, with force and arms, nor bring no " force of affray of peace, nor to go nor ride armed by night nor " by day, in fairs, markets, nor in the presence of the justices or " other ministers, nor in no part elsewhere, upon pain to forfeit " their armour to the king, and their bodies to prison, at the " king's pleasure. And that the king's justices in their presence, " sheriffs, and other ministers in their bailiwicks, lords of fran- " chises, and their bailiffs in the same, and mayors and bailiffs of " cities and boroughs, within the same cities and boroughs, and " borough-holders, constables and wardens of the peace within " their wards, shall have power to execute this act : and that the " justices assigned, at their coming down into the country, shall " have power to inquire how such officers and lords have exer- " cised their offices in this case, and to punish them whom they " find that have not done that which pertained to their offices ;" and this statute is further enforced by 7 Rich. 2. c. 13. and 20. Rich. 2. c. 1.

Sect. 9. Fitfhly, That no wearing of arms is within the meaning of this statute, unless it be accompanied with such circumstances as are apt to terrify the people ; from whence it seems clearly to follow, that persons of quality are in no danger of offending against this statute by wearing common weapons, or having their usual number of attendants with them for their ornament or defence, in such places, and upon such occasions, in which it is the common fashion to make use of them, without causing the least suspicion of an intention to commit any act of violence or disturbance of the peace. And from the same ground it also follows, that persons armed with privy coats of mail, to the intent to defend themselves against their adversaries, are not within the meaning of this statute, because they do nothing in terrorem populi. Sir john Knights case Sir John Knight's Case 87 Eng. Rep. 75 K.B. 1686

The Statute of Winchester

( October, 1285. French text and translation, 1 S. R. 96, Stubbs, S. C. 470-472 2 Stubbs, 122, 219.)

1. FORASMUCH as from day to day, robberies, murders, and arsons be more often used than they have been heretofore, and.... 6. And further it is commanded that every man have in his house harness for to keep the peace after the ancient assize; that is to say, every man between fifteen years of age and sixty years, shall be assessed and sworn to armor according to the quantity of their lands and goods; that is to wit, for fifteen pounds lands, and goods of forty marks, an hauberke, an helm of iron, a lance, a knife, and a horse; and for ten pounds of lands, and twenty marks goods, an hauberke, an helme of iron, a lance, and a knife; and for five pound lands, a doublet, an helme of iron, a lance, and a knife; and from forty shillings of land and more up to one hundred shillings, a lance, a bow and arrows, and a knife; and he that hath less than forty shillings yearly shall be sworn to falces, gisarmes, knives, and other small arms; and he that hath less than twenty marks in goods, shall have swords, knives, and other small arms; and all other that may shall have bows and arrows out of the forest, and in the forest bows and pilets. And that view of armor be made every year two times. And in every hundred and franchise two constables shall be chosen to make the view of armor; and the constables aforesaid shall present before justices assigned, when they shall come into the country, such defaults as they shall have found about armor, and of suits, and of watches, and of highways; and also shall present all such as do lodge strangers in uplandish towns, for whom they will not answer. And the justices assigned shall present at every parliament unto the king such defaults as they shall find, and the king shall provide remedy therein. And from henceforth let the sheriffs take good heed, and bailiffs within franchises and without, greater or lesser, that have any bailiwick or forestry in fee or otherwise, that they shall follow the cry with the country, as they are able, having horses and armor so to do; and if there be any that do not, the defaults shall be presented by the constables to the justices assigned, and after by them to the king; and the king will provide remedy as before is said. And the king commandeth and forbiddeth that from henceforth neither fairs nor markets be kept in churchyards, for the honor of the church. Given at Winchester, the eighth of October, in the thirteenth year of the reign of the king.

Mediæval Police

Nor even in times of peace might the burghers lay aside their arms, for trouble was never far from their streets. Every inhabitant was bound to have his dagger or knife or Irish "skene," in case he was called out to the king's muster or to aid in keeping the king's peace. But daggers which were effective in keeping the peace were equally effective in breaking it, and the town records are full of tales of brawls and riots, of frays begun by "railing with words out of reason," or by "plucking a man down by the hair of his head," but which always ended in the appearance of a short dagger, "and so drew blood upon each other." For the safety of the community -- a safety which was the recognized charge of every member of these simple democratic states -- each householder was bound to take his turn in keeping nightly watch and ward in the streets. It is true, indeed, that reluctant citizens constantly by one excuse or another sought to escape a painful and thankless duty: whether it was whole groups of inhabitants sheltering themselves behind legal pretexts, or sturdy rebels breathing out frank defiance of the town authorities.

§ i. Provisions for Municipal Defence 1 The inhabitants of a mediaeval borough were subject to a discipline as severe as that of a military state of modern times. Threatened by enemies on every side, constantly surrounded by perils, they had themselves to bear the whole charges of fortification and defence. If a French fleet appeared on the coast, if Welsh or Scotch armies made a raid across the frontier, if civil war broke out and opposing forces marched across the country, every town had to look to its own safety. The inhabitants served under a system of universal conscription. At the muster-at-arms held twice a year poor and rich appeared in military array with such weapons as they could bring forth for the king's service : the poor marching with knife or dagger or hatchet; the prosperous burghers, bound ac cording to mediaeval ideas to live "after their degree," displaying mail or wadded coats, bucklers, bows and arrows, swords, or even a gun. At any moment this armed population might be called out to active service. "Concerning our bell," say the citizens of Here ford, "we use to have it in a public place where our chief bailiff may come, as well by day as by night, to give warning to all men living within the said city and suburbs. And we do not say that it ought to ring unless it be for some terrible fire burning any row of houses within the said city, or for any common contention where by the city might be terribly moved, or for any enemies drawing near unto the city, or if the city shall be besieged, or any sedition shall be between any, and notice thereof given by any unto our chief bailiff. And in these cases aforesaid, and in all like cases, all manner of men abiding within the city and suburbs and liberties of the city, of what degree soever they be of, ought to come at any such ringing, or motion of ringing, with such weapons as fit their degree."1 Mrs. J. R. Green, Town Life in the Fifteenth Century, Vol. I, pp. 127 ft By permission of Mrs. J. R. Green and The Macmillan Company, Publishers.

Assize of Arms of 1181

• pre1181 at questia
• [2]text english]
• [3] "The text of this assize was recorded by the twelfth-century chronicler Roger of Howden (fl. 1170-1201) in his Gesta Regis Henrici Secundi. The assize is usually thought to date from the autumn of 1181 and it was seemingly preceded by the issuance of a similar document in King Henry II’s continental lands earlier in the same year. The assize is concerned with the obligations and rights to bear arms, stipulating precisely the military equipment that each man should have according to his rank and wealth." also link to Latin text.
• {http://www.penultimateharn.com/history/armsassize.html} full text english
• [4] Henry II made an Assize of Arms in 1181. It bound all freemen of England to swear on oath that they would possess and bear arms in the service of king and realm. The assize stipulated precisely the military equipment that each man should have according to his rank and wealth. The assize, frequently renewed, effectively revived the old Anglo‐Saxon fyrd duty.
• [5]
• Full text
• Short and sweet
• Free at questia [6]
• In the year before the promotion of Thomas to the primacy, king and chancellor had dealt one direct blow at all feudal ideas. In the war of Toulouse the scutage was first devised; a money payment was accepted instead of personal military service. The money was of course spent in hiring mercenaries; and it was largely by the help of mercenaries that Henry subdued his rebels in England. But later in his reign, by the Assize of Arms (1181), he regulated the old constitutional force of the country, and enjoined that every free Englishman should be ready to serve with the weapons belonging to his rank.
• An arrangement that only provided for an army composed of smaller armies, each drilled and each equipped according to the capacity or the mood of its manorial lord, could not for ever satisfy the growing needs of a nation that more and more was emerging from the isolation of its storm-swept shores, and was more and more making its being felt in the councils of kings and the destinies of mankind. It was essential that the men who for three parts of the year were well content to bide at home and know its joys, to dig the fields or guide the plough, to strew the golden corn and reap the gleaming harvest, but who at blaze of beacon or word of messenger riding in hot haste, must don the steel harness and seize the trusty weapon and haste against the Scot upon the border, or cross the waters and confront the chivalry of France — it was essential, I say, that such men should be welded into cohesion,and that some uniformity of equipment, some instruction in the art of common and concerted action, should be provided. It is doubtless to a perception of this truth that we owe the first statutes of Assize at Arms. They show that the armed forces of the land were to be, in future, not the mere retainers of powerful lords but the forces of the Crown, the defenders of the nation, the soldiers not of duke or baron, but the soldiers of their country and their king. Thus the Assize of Arms of 1181 provided that every military tenant, that is every tenant holding by service, then deemed the most honourable tenure, if not the only one that conferred honour, dignity and esteem, should be armed, not, as theretofore, just as completely, or as slenderly, as his caprice, his pride, or his parsimony inclined him, but should be furnished with a coat of mail, a shield, (on which, be sure, his coat of arms was picked with all points of heraldry), and a lance, and that the followers he led in his train, should be clad in habergeon,• an iron skull cap, and bear a lance. Itinerant judges of the Assize at Arms visited each manor and saw to it that each freeman had been mindful to equip himself in conformity with his rank and means ; a system of visitation which may serve to remind us that the volunteers in the first days of what is distinctively termed the Volunteer Movement, had ancestors, many centuries ago, who suffered the same grievances and no doubt made the same complaints as they. A similar enactment of Philip and Mary required every man, according to his position, to keep a sufficiency of arms ; the household armoury was to be equipped with the weapons then in use, and penalties were imposed upon those who absented themselves from the musters of the Sovereign or his Lieutenant. This mention of the Lord Lieutenant of the County, who once bore so prominent a part in connection with our modern Volunteers, points to the supersession in matters military of the Sheriff, who in former days had been responsible for the levy of the posse comitatus or levy of the County.
• 23. The Assize of Arms. 1181. — In September 1174 there was a general peace. In 1181 Henry issued the Assize of Arms,organizing the old fyrd in a more serviceable way. Every English freeman was bound by it to find arms of a kind suitable to his property, that he might be ready to defend the realm against rebels or invaders. The Assize of Anns is the strongest possible evidence as to the real nature of Henry's government. He had long ago sent back to the Continent the mercenaries whom he had brought with him in the peril of 1174, and he now entrusted himself not to a paid standing army, but to the whole body of English freemen. He was, in truth, king of the English not merely because he ruled over them, but because they were ready to rally round him in arms against those barons whose ancestors had worked such evil in the days of Stephen. England was not to be given over either to baronial anarchy or to military despotism.
• The Assize of Arms, (:)—1181. Regulated the National fryd (or militia.) ; Fixed the way in which every Freeman, according to his means, was bound to arm himself for the defence of his country, when summoned by the king.
  • (s) “ The Assize of Arms restored the National Militia to the place which it had lost at the Conquest. Every knight was forced to arm himself with coat of mail, and shield and lance ; every freeholder with lance and. hauberk, every burgess and poorer freeman with lance and iron helmet. This universal levy of the armed nation was wholly at the disposal of the king for the purposes of defence." “By his Assize of Arms Henry restored the Ancient Anglo-Saxon Militia System, and supplied the requisite counterbalance to the military power of the great feudatories, which, notwithstanding the temptation to avoid service by payment of scutage, they were still able and too willing to maintain. ”—-( Early Plantagenets. ) “ In all these measures (Assize of Arms, &c.) we may trace one main object, the strengthening of the Royal power, and one main means, or directing principle—the doing so by increasing the safety and security of the people. Whatever was done to help the people, served to reduce the power of the great feudal baronage, to disarm their forces, to abolish their jurisdictions, to diminish their chances of tyranny.”—(Early Ptamtagenets. )

score card for circuit courts

• 1st United States Court of Appeals for the First Circuit‎ Cases v. United States, 131 F.2d 916, 923 (1st Cir.1942) the First Circuit concluded that the Second Amendment was not infringed because there was no evidence that the defendant “was or ever had been a member of any military organization or that his use of the weapon ․ was in preparation for a military career” and the evidence showed he was “on a frolic of his own and without any thought or intention of contributing to the efficiency of the well regulated militia.” While the First Circuit did not explicitly adopt the sophisticated collective rights model, its analysis is in many respects consonant with it.

  This process of departure from, and attenuation of, Miller began with the 1942 decision in Cases v. United States. In Cases, the Court of Appeals for the First Circuit stated that a literal application of the Miller test could prevent the government from regulating the possession of machine guns and similar weapons which clearly serve military purposes. Beginning its departure from Miller, the Cases court simply stated that it doubted that the Founders intended for citizens to be able to possess weapons like machine guns, and further declared that Miller did not formulate any sort of general test to determine the limits of the second amendment.The court in Cases then applied a new test of its own formulation, focusing on whether the individual in question could be said to have possessed the prohibited weapon in his capacity as a militiaman. Applying that rationale to the case at hand, the court declared that the defendant possessed the firearm “purely and simply on a frolic of his own and without any thought or intention of contributing to the efficiency of [a] well regulated militia.”12 In essence, the holding in Cases upheld the constitutionality of a federal law prohibiting, under certain circumstances, the possession of a weapon that could be viewed as a weapon of common militia use, on the basis that the weapon was not in fact used for such a purpose.

• 2nd United States Court of Appeals for the Second Circuit‎ "It appears that only the Second and District of Columbia Circuits have not taken a position, considered or otherwise, on the nature of the right established by the Second Amendment. See Fraternal Order of Police v. United States, 152 F.3d 998, 1002 (D.C. Cir. 1998) (“Despite the intriguing questions raised, we will not attempt to resolve the status of the Second Amendment right . . . .”)."
• 3rd United States Court of Appeals for the Third Circuit‎ United States v.Tot: The concept of the Amendment as a collective protective mechanism rather than a conferral of individual rights was reinforced by the Third Circuit’s decision that same year in United States v. Tot. In that case, the Third Circuit declared that it was “abundantly clear” that the right to keep and bear arms was not adopted with individual rights in mind. The court’s support for this statement was brief and and did not address any of the relevant, competing arguments.18 This type of holding became the norm in cases addressing the Second Amendment for the remainder of the century, with courts increasingly referring to one another’s holdings to support the determination that there is no individual right conferred under the Second Amendment, without engaging in any appreciably substantive legal analysis of the issue.

United States v. Rybar, 103 F.3d 273, 286 (3d Cir.1996), held that Rybar's membership in the general, unorganized militia established by 10 U.S.C. § 311(a) did not cause his possession of a machine gun to be so connected with militia activity that the Second Amendment applied. While Rybar was not clear about whether it was adopting the states' rights view or the sophisticated collective rights view, it seems more consistent with the latter.

• 4th United States Court of Appeals for the Fourth Circuit Love v. Pepersack, 47 F.3d 120, 122 (4th Cir.1995), a citizen brought suit under 42 U.S.C. § 1983 against state officials for violating, inter alia, her Second Amendment rights by denying her application to purchase a handgun.   After stating that “[t]he Second Amendment does not apply to the states,” id. at 123, the court goes on to observe that “the Second Amendment preserves a collective, rather than individual, right.”
• 5th United States Court of Appeals for the Fifth Circuit‎ Emerson [7] on "Miller"

  We conclude that Miller does not support the government's collective rights or sophisticated collective rights approach to the Second Amendment.   Indeed, to the extent that Miller sheds light on the matter it cuts against the government's position.   Nor does the government cite any other authority binding on this panel which mandates acceptance of its position in this respect.21  However, we do not proceed on the assumption that Miller actually accepted an individual rights, as opposed to a collective or sophisticated collective rights, interpretation of the Second Amendment.   Thus, Miller itself does not resolve that issue.22  We turn, therefore, to an analysis of history and wording of the Second Amendment for guidance.   In undertaking this analysis, we are mindful that almost all of our sister circuits have rejected any individual rights view of the Second Amendment.   However, it respectfully appears to us that all or almost all of these opinions seem to have done so either on the erroneous assumption that Miller resolved that issue or without sufficient articulated examination of the history and text of the Second Amendment.

• 6th United States Court of Appeals for the Sixth Circuit‎ United States v. Warin, 530 F.2d 103, 106 (6th Cir.1976), also discussed in note 19, infra, the Sixth Circuit stated:  “ ‘Since the Second Amendment right “to keep and bear Arms” applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.’ ”   (quoting Stevens v. United States, 440 F.2d 144, 149 (6th Cir.1971))
• 7th United States Court of Appeals for the Seventh Circuit‎ Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir.1999), a police officer convicted of a misdemeanor crime of domestic violence was fired because, under 18 U.S.C. § 922(g)(9), he could no longer possess a firearm and was, as a result, unable to perform his duties.   He brought suit against the city officials and challenged the constitutionality of § 922(g)(9) on, inter alia, Second Amendment grounds.   The Seventh Circuit rejected the challenge, noting that the Second Amendment's introductory clause “suggests” that it “inures not to the individual but to the people collectively, its reach extending so far as is necessary to protect their common interest in protection by a militia.”  Id. at 710.   Despite the collective nature of the Second Amendment, the court found the plaintiff had standing to mount his Second Amendment challenge.  Id. at 711.   The court also said that the Second Amendment was not violated because under no “plausible set of facts” would “the viability and efficacy of state militias ․ be undermined by prohibiting those convicted of perpetrating domestic violence from possessing weapons in or affecting interstate commerce.”  
• 8th United States Court of Appeals for the Eighth Circuit‎ United States v. Hale, 978 F.2d 1016 (8th Cir.1992), the Eighth Circuit found it unnecessary to commit to either the states' rights or the sophisticated collective rights model of the Second Amendment.   The court proclaimed that “[c]onsidering this history, we cannot conclude that the Second Amendment protects the individual possession of military weapons.”
• 9th United States Court of Appeals for the Ninth Circuit‎ Hickman v. Block, 81 F.3d 98, 99 (9th Cir.1996), involved another § 1983 suit by a citizen against state officials who denied his application for a concealed weapons permit.   The Ninth Circuit decided to “follow our sister circuits in holding that the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen.”  Id. at 101.   Thus, the plaintiff's lack of standing was dispositive, though the court did note that the Second Amendment “is not incorporated against the states.”  Dissent in silveira-v-lockyer [8]
• 10th United States Court of Appeals for the Tenth Circuit‎ United States v. Oakes, 564 F.2d 384 (10th Cir.1977), is similar to Rybar.   In Oakes the Tenth Circuit first rebuffed the individual rights view of the Second Amendment, then rejected defendant's argument that, because he was “technically” a member of the Kansas militia, as Kansas law defined its militia to include all able-bodied male citizens between ages 21 and 45, his possession of a machine gun preserved the effectiveness of the militia such that the Second Amendment applied.   The court did not specify whether the Second Amendment was an individual right of extremely limited scope or whether it protected only states rather than individuals;  however, the court's willingness to address the defendant's state militia argument is more in accord with the sophisticated collective rights model
• 11th United States Court of Appeals for the Eleventh Circuit .United States v. Wright, 117 F.3d 1265 (11th Cir.1997), is similar to, and relied upon, Hale. The court held that the defendant's membership in Georgia's “unorganized militia”(defined as all able-bodied males between ages 17 and 45 not in the organized or retired militia-or national guard-or on the reserve list) did not render his possession of machine guns and pipe bombs so related to the preservation of a well regulated militia that it was necessary to determine whether the Second Amendment “creates” a collective or individual right.
• (12) United States Court of Appeals for the District of Columbia Circuit‎
• xx United States Court of Appeals for the Federal Circuit‎
• xx United States Court of Appeals for Veterans Claims‎

Cases v. United States, 131 F.2d 916 (1st Cir. 1942); United States v. Toner, 728 F.2d 115 (2nd Cir. 1984); United States v. Rybar, 103 F.3d 273 (3rd Cir. 1997); Love v. Peppersack, 47 F.3d 120 (4th Cir. 1995); United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971); United States v. Warin, 530 F.2d 103 (6th Cir. 1976); Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1983); United States v. Hale, 978 F.2d 1016 (8th Cir. 1993); Hickman v. Block, 81 F.3d 98 (9th Cir. 1996); United States v. Oakes, 564 F.2d 384 (10th Cir. 1978); and United States v. Wright, 117 F.3d 1265 (11th Cir. 1997

1689

Enforcement:

Sect. 17. As to the Third of the above-mentioned restraints, Popish recusant viz. that which relates to the keeping of arms, it is enacted by J*^ 3 Jac. 1 . c. 5. s. 27, 28, 29- " That all such armour, gunpowder, i,aving any gun- " and munition, of whatsoever kinds, as any popish recusant con- powder and mu- " vict shall have in his own house or elsewhere, or in the posses- nitlon in tueir " sion of any other at his disposition, shall be taken from him by u '* " warrant of four justices of peace at their general or quarter- " sessions (except such necessary weapons as shall be allowed " him by the said four justices for the defence of his person or " house); and that the said armour, &c. so taken, shall be kept at " the cost of such recusant, in such place as the said four justices, " at their said sessions, shall appoint; and that if any such re- " cusant having such armour, &c, or if any other person who " shall have any such armour, &c. to the use of such recusant, " shall refuse to discover to the said justices, or any of them, " what armour he hath, or shall let or hinder the delivery thereof " to any of the said justices, or to any other person authorised by " their warrant to take the same, that then every person so " offending shall forfeit his said armour, &c, and also be impri- " soned for three months without bail, by warrant from any jus- '* tices of peace of such county." And it is further enacted, " That notwithstanding the taking away such armour, &c. yet " such recusant shall be charged with the maintaining of the " same, and with the providing of a horse, &c. in such sort asothers of his majesty's subjects." Also it is further enacted by 1 Will, and Mary, c. 15. " That no reputed papist, refusing to " make the said declaration against popery, mentioned in 30 Car. " shall keep arms," as it is set forth more at large in the sec tion " Of not making a Declaration against Popery.

Emerson

States rights scholars

See Michael A. Bellesiles, The Second Amendment in Action, 76 Chi.-Kent L.Rev. 61 (2000);  Carl T. Bogus, The History and Politics of Second Amendment Scholarship:  A Primer, 76 Chi.-Kent L.Rev. 3 (2000);  Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L.Rev. 309 (1998);  Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century:  Have You Seen Your Militia Lately?, 15 U. Dayton L.Rev. 5 (1989);  Paul Finkelman, “A Well Regulated Militia”:  The Second Amendment in Historical Perspective, 76 Chi.-Kent L.Rev. 195 (2000);  Steven J. Heyman, Natural Rights and the Second Amendment, 76 Chi.-Kent L.Rev. 237 (2000);  H. Richard Uviller & William G. Merkel, The Second Amendment in Context:  The Case of the Vanishing Predicate, 76 Chi.-Kent L.Rev. 403 (2000).Not every proponent of this model conceives of it in exactly the same way.   For example, Heyman and Uviller argue that the Second Amendment simply guarantees that the federal government will not do anything to destroy the militia.

Sophisticated/collective

Robert J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary Right, 104 Yale L.J. 995, 1003-1004 (1995) and Nelson Lund, The Ends of Second Amendment Jurisprudence:  Firearms Disabilities and Domestic Violence Restraining Orders, 4 Tex. Rev. L. & Pol. 157, 184-86 (1999).

Standard view scholars

See Scott Bursor, Toward a Functional Framework for Interpreting the Second Amendment, 74 Texas L.Rev. 1125 (1996);  Robert J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary Right, 104 Yale L.J. (1995);  Robert Dowlut, The Right to Arms:  Does the Constitution or the Predilection of Judges Reign?, 36 Okla. L.Rev. 65 (1983);  Stephen P. Halbrook, The Right of the People or the Power of the State:  Bearing Arms, Arming Militias, and the Second Amendment, 26 Val. U.L.Rev. 131 (1991);  Stephen P. Halbrook, What the Framers Intended:  A Linguistic Analysis of the Right to “Bear Arms”, 49 Law & Contemp.  Probs. 151 (1986);  Don B. Kates, Jr., The Second Amendment and the Ideology of Self-Protection, 9 Const.  Comm. 87 (1992); ;  Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L.Rev. 204 (1983);  Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989);  Nelson Lund, The Ends of Second Amendment Jurisprudence:  Firearms Disabilities and Domestic Violence Restraining Orders, 4 Tex. Rev. L. & Pol. 157 (1999);  Nelson Lund, The Past and Future of the Individual's Right to Arms, 31 Ga. L.Rev. 1 (1996);  Glenn H. Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L.Rev. 461 (1995);  Robert E. Shalhope, The Ideological Origins of the Second Amendment, 69 J. Am. Hist. 599 (1982);  William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236 (1994);  Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793 (1998).

new list

This literature has now become quite large. For representative examples, see STEPHEN P. HALBROOK, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT (1984); JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT (1994); Randy Barnett & Don B. Kates, Under Fire: The New Consensus on the Second Amendment, 45 EMORY L.J. 1139, 1141 (1996); Robert Dowlut, Federal and State Constitutional Guarantees to Arms, 15 U. DAYTON L. REV. 59 (1989); Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204 (1983) [hereinafter Kates, Jr., Original Meaning]; Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 LAW & CONTEMP. PROBS. 143 (1986); Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637 (1989); Nelson Lund, The Past and Future of the Individual's Right to Arms, 31 GA. L. REV. 1 (1996); L.A. Powe, Jr., Guns, Words and Constitutional Interpretation, 38 WM. & MARY L. REV. 1311 (1997); Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 TENN. L. REV. 461 (1995); William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 DUKE L.J. 1236 (1994); Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. REV. 793 (1998). For a complete bibliography, see David B. Kopel, The Supreme Court's Thirty-Five Other Gun Cases: What the Supreme Court Has Said About the Second Amendment, 18 ST. LOUIS U. PUB. L. REV. 99, 101 n.9 (1999). There is also a substantial body of work by both legal scholars and historians disputing the revisionists. The legal scholarship includes: Carl T. Bogus, Race, Riots, and Guns, 66 S. CAL. L. REV. 1365 (1993) [hereinafter Bogus, Race, Riots and Guns]; Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. DAVIS L. REV. 309 (1998) [hereinafter Bogus, Hidden History]; Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. DAYTON L. REV. 5 (1989); Dennis A. Henigan, Arms, Anarchy and the Second Amendment, 26 VAL. U. L. REV. 107 (1991); Andrew D. Herz, Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility, 75 B.U. L. REV. 57 (1995); John Dwight Ingram & Allison Ann Ray, The Right(?) to Keep and Bear Arms, 27 N.M.L. REV. 491 (1997); H. Richard Uviller & William G. Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 CHI-KENT L. REV. 403 (2000); David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 YALE L.J. 551 (1991) [hereinafter Williams, The Terrifying Second Amendment]; David C. Williams, The Militia Movement and Second Amendment Revolution: Conjuring with the People, 81 CORNELL L. REV. 879 (1996) [hereinafter Williams, Conjuring with the People]; David C. Williams, The Unitary Second Amendment, 73 N.Y.U. L. Rev. 822 (1998). The historians' work includes: Michael Bellesiles, The Origins of Gun Culture in the United States 1760-1865, 83 J. AM. HIST. 425 (Sept. 1996) [hereinafter Bellesiles, Gun Culture]; Michael Bellesiles, Gun Laws in Early America: The Regulation Of Firearms Ownership 1607-1794, 16 LAW & HIST. REV. 567 (1998) [hereinafter Bellesiles, Gun Laws]; Michael Bellesiles, Suicide Pact: New Readings of the Second Amendment, 16 CONST. COMMENTARY 247 (1999) [hereinafter Bellesiles, Suicide Pact]; Saul Cornell, Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory, 16 CONST. COMMENTARY 221 (1999); Lawrence D. Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71 J. AM. HIST. 22 (1984); Don Higginbotham, The Second Amendment in Historical Context, 16 CONST. COMMENTARY 263 (1999). 4. Emerson, 46 F. Supp. at 600 (summarizing views of revisionist scholars).

new

The Second Amendment (Amendment II) to the United States Constitution is the second part of the United States Bill of Rights and protects the right of the people to keep and bear arms from infringement. It was adopted on December 15, 1791, along with the rest of the Bill of Rights. The Second Amendment was based partially on the right to bear arms in English common-law, and was influenced by the English Bill of Rights of 1689. This right was described by Sir William Blackstone as an auxiliary right, supporting the natural rights of self-defense, resistance to oppression, and the civic duty to act in concert in defense of the state.

The Second Amendment is unique among the Bill of Rights for historically having elicited very little judicial attention. In recent years, though, it has been the source of controversy and renewed Supreme court interest; only the Third Amendment (which prohibits the quartering of troops in homes without the owner's consent) has received less judicial attention. Prior to the landmark 2008 Heller case, the United States Supreme Court handed down only three opinions dealing directly with the Second Amendment, the last in 1939 (with the Miller case).

In the 19th century: State supreme court decisions, Constitutional commentary, the debates over adoption of the 14th amendment, and six SCOTUS cases speak to the 2nd amendment.

In the Twenty-First Century, a lower Federal Court determined that the Second Amendment confers an individual right to keep and bear arms, notwithstanding lack of service in a militia. In 2008, the Supreme Court of the United States officially verified this view, holding expressly that the Second Amendment protects an individual right to possess and carry firearms via the Heller case. In McDonald v. Chicago the Court overruled its earlier decisions issued prior to the incorporation of the Second Amendment, formerly limiting the Second Amendment's impact to a restriction on the Federal Government alone and expressly found that the Second Amendment limits state and local governments to the same extent that it limits the federal government. These decisions notwithstanding, the debate between the 'gun control' and 'gun rights' movements and related organizations continues.

1. some mention of the academic research in the late 20th century.
2. Of interest in the 19th century: State supreme court decisions, commentary, the debates over adoption of the 14th amendment, and two SCOTUS decisions
3. That "Heller" is the first in depth look at the 2nd amendment by SCOTUS

{cite web|last=Bogus|first=Carl T.|title=THE HIDDEN HISTORY OF THE SECOND AMENDMENT|url=http://www.saf.org/lawreviews/bogus2.htm%7Cpublisher=University of California at Davis Law Review 31 (1998): 309.|accessdate=1 August 2013}} "Blackstone's Commentaries on the Laws of England". Avalon.law.yale.edu. Retrieved 2013-08-01.

The Second Amendment (Amendment II) to the United States Constitution is part of the United States Bill of Rights which protects the right of the people to keep and bear arms from infringement. It was adopted on December 15, 1791, along with the rest of the Bill of Rights. The Second Amendment was based partially on the right to bear arms in English common-law and was influenced by the English Bill of Rights of 1689. This right was described by Sir William Blackstone as an auxiliary right, supporting the natural rights of self-defense, resistance to oppression, and the civic duty to act in concert in defense of the state.

While in recent years it has been the subject of Academic inquiry and judicial interest, only the Third Amendment (which prohibits the quartering of troops in homes without the owner's consent) has received less judicial attention. Prior to the landmark 2008 Heller case, the United States Supreme Court handed down only a few opinions dealing directly with the Amendment, the last in 1939 (with the Miller case),

In the Nineteenth Century, the Supreme court limited enforcement of the Second Amendment to the Federal government alone via the 1875 Cruikshank case. By the Twentieth Century, the Federal courts had construed that the Government could limit any weapons not having a “reasonable relationship to the preservation or efficiency of a well regulated militia” via the Miller case.

In the Twenty-First Century the United States courts of appeals split on the question: does Second Amendment confer an individual the right to keep and bear arms absent militia service? with both sides citing Miller. Hutzell 8th, Emerson 5th, and Parker D.C. and the dissent in Silveira endorsing the standard model. In 2008 the Supreme court officially adopted this view, holding expressly that the Amendment protects an individual right to possess and carry firearms, via the Heller case. In the 2010 McDonald v. Chicago case the court overruled its earlier decisions limiting the Amendment's impact to a restriction on the Federal government and expressly found that the Amendment limits state and local governments to the same extent that it limits the Federal government. These decisions notwithstanding, the debate between the 'gun control' and 'gun rights' movements and related organizations continues.

State rights

1776 North Carolina: That the people have a right to bear arms, for the defence of 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.

1776 Pennsylvania: That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are 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.

1777 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.

1780 Massachusetts: The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they 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.

1790 Pennsylvania: The right of the citizens to bear arms in defence of themselves and the State shall not be questioned.

1792 Kentucky: That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned.

1796 Tennessee: That the freemen of this State have a right to keep and to bear arms for their common defence.

1799 Kentucky: That the rights of the citizens to bear arms in defense of themselves and the State shall not be questioned.

1803: MARBURY v. MADISON - The court found that the Constitution is the "superior, paramount law" of the land and that "a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument."

1802 Ohio: 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 shall not be kept up, and that the military shall be kept under strict subordination to the civil power.

1816 Indiana: That the people have a right to bear arms for the defense of themselves and the State, and that the military shall be kept in strict subordination to the civil power.

1817 Mississippi: Every citizen has a right to bear arms, in defence of himself and the State.

1818 Connecticut: Every citizen has a right to bear arms in defense of himself and the state.

1819 Maine: Every citizen has a right to keep and bear arms for the common defence; and this right shall never be questioned.

1819 Alabama: That every citizen has a right to bear arms in defence of himself and the state.

1820 Missouri: That the people have the right peaceably to assemble for their common good, and to apply to those vested with the powers of government for redress of grievances by petition or remonstrance; and that their right to bear arms in defence of themselves and of the State cannot be questioned.

1820: HOUSTON v. MOORE - This case seems to distinguish the Militia powers under Article 1, Section 8 of the U.S. Constitution and "the right to keep and bear arms." Future decisions only mention one provision or the other.[9] See also MARYLAND v. U.S.[10]

1832 Mississippi: Every citizen has a right to bear arms in defence of himself and of the State.

1834 Tennessee: That the free white men of this State have a right to keep and to bear arms for their common defence.

1835 Michigan: Every person has a right to bear arms for the defence of himself and the State.

1836 Texas: Every citizen shall have the right to bear arms in defence of himself and the republic. The military shall at all times and in all cases be subordinate to the civil power.

1836 Arkansas: That the free white men of this State shall have a right to keep and to bear arms for their common defence.

1838 Florida: That the free white men of this State shall have a right to keep and to bear arms for their common defence.

1842 Rhode Island: The right of the people to keep and bear arms shall not be infringed.

1844: THE MALEK ADHEL - A piracy case where the court noted that "All vessels going to the Pacific carry arms for defence."[11]

1845 Texas: Every citizen shall have the right to keep and bear arms in lawful defence of himself or the State.

1850 Kentucky: That the rights of the citizens to bear arms in defense of themselves and the State shall not be questioned; but the General Assembly may pass laws to prevent persons from carrying concealed arms.

1850 Michigan: Every person has a right to bear arms for the defense of himself and the state.

1851 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.

1851 Indiana: The people shall have a right to bear arms, for the defense of themselves and the State [military subordination clause removed].

1857 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[.]

1857: DRED SCOTT v. SANDFORD - Slavery kept legal based in part on the fear that freed slaves could "carry arms wherever they went" under the Second Amendment.[12]

1859 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.

1865 Missouri: That the people have the right peaceably to assemble for their common good, and to apply to those vested with the powers of government for redress of grievances by petition or remonstrance; and that their right to bear arms in defence of themselves and of the lawful authority of the State cannot be questioned.

1865 Georgia: 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.

1866: EX PARTE MILLIGAN - The court discounted the notion that The Fourth, Fifth, and Sixth Amendments were limitations on "war-making" powers. Similarly, the right of the people to keep and bear arms would not "hinder the President from disarming insurrectionists, rebels, and traitors in arms while he was carrying on war against them."[13]

1865 Florida: Clause omitted.

1868 Texas: Every person shall have the right to keep and bear arms in the lawful defence of himself or the State, under such regulations as the legislature may prescribe.

1868 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 ought not to be kept up, and the military should be kept under strict subordination to, and governed by, the civil power.

1868 Florida: The people shall have the right to bear arms in defence of themselves and of the lawful authority of the State.

1868 South Carolina: The people have a right to keep and bear arms for the common defence. 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.

1868 Mississippi: All persons shall have a right to keep and bear arms for their defence.

1868 Georgia: A well-regulated militia being necessary to the security of a free people, the right of the people to keep and bear arms shall not be infringed; but the general assembly shall have power to prescribe by law the manner in which arms may be borne.

1868 Arkansas: The citizens of this State shall have the right to keep and bear arms for their common defense.

1870 Tennessee: That the citizens of this State have a right to keep and to 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.

1875 Missouri: That the right of no citizen 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 into question; but nothing herein contained is intended to justify the practice of wearing concealed weapons.

1875: U.S. v. CRUIKSHANK - First and Second Amendment rights only limitation on Congress. These rights are not granted by, nor in any manner dependent, upon the Constitution. This case failed to recognize the Fourteen Amendment (Equal Protection - 1868).

1875 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 ought not to be kept up, and the military should be kept under strict subordination to, and governed by, the civil power. Nothing herein contained shall justify the practice of carrying concealed weapons, or prevent the Legislature from enacting penal statutes against said practice.

1876 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.

1876 Texas: Every citizen shall have the right to keep and bear arms in the 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.

1877 Georgia: [Militia clause deleted.] The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.

1879 Louisiana: 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 abridged. This shall not prevent the passage of laws to punish those who carry weapons concealed.

1885 Florida: The right of the people to bear arms in defence of themselves and the lawful authority of the State, shall not be infringed, but the Legislature may prescribe the manner in which they may be borne.

1886: PRESSER v. STATE OF ILLINOIS - Second Amendment only a limitation on Congress, not the States. This case failed to recognize the Fourteen Amendment (Equal Protection - 1868).

1889 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.

1889 Wyoming: The right of citizens to bear arms in defense of themselves and of the state shall not be denied.

1889 South Dakota: The right of the citizens to bear arms in defense of themselves and the state shall not be denied.

1889 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.

1889 Idaho: The people have the right to bear arms for their security and defense; but the Legislature shall regulate the exercise of this right by law.

1890 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.

1891 Kentucky: All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: First: The right of enjoying and defending their lives and liberties. . . . Seventh: The 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.

1892: LOGAN v. U.S. - The Court was faced with a question about the scope of the conspiracy statute involved in U.S. v. CRUIKSHANK. The court found that the First and Second Amendments under Cruikshank are not granted by the Constitution, but were both already existing and only a limitation on Congress. This case failed to recognize the Fourteen Amendment (Equal Protection - 1868).

1894: MILLER v. TEXAS - Court refused to expand the Second and Fourth Amendment to the States since it was not brought up first during the trail. A very unfortunate trial mistake.

1895 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.

1896 Utah: The people have the right to bear arms for their security and defense, but the legislature may regulate the exercise of this right by law.

1896: BROWN v. WALKER - In his dissent, Justice Field quoted the counsel for the appellant: "The freedom of thought, of speech, and of the press; the right to bear arms; exemption from military dictation;. . . . . -- are, together with exemption from self-crimination, the essential and inseparable features of English liberty."

1897: ROBERTSON v. BALDWIN - The court notes that each of the "Bill of Rights" have limitations on those rights, including the freedom of speech and of the press; the right of the people to keep and bear arms; double jeopardy, etc.

1900: THE PANAMA - The court recognized that a ship carries guns and cannons for "self-defense" and quoted from Portalis, "defense is a natural right, and means of defense are lawful in voyages at sea, as in all other dangerous occupations of life". However, this did not apply to enemy property like the Panama. [14]

1900: U S v. ELDER - The court repeatedly cited Government officials in the 1800s that provided "notice that they should keep arms sufficient for their defense

1900: MAXWELL v. DOW - Cited PRESSER v. STATE OF ILLINOIS on how "all citizens capable of bearing arms constitute the reserved military force of the national government".

1901 Alabama: That every citizen has a right to bear arms in defense of himself and the state.

1904: KEPNER v. U.S. - Noted that the act of Congress regarding rights in the Philippines forget several Amendments, including the "the right of the people to bear arms" among several others. [15] See also TRONO v. U.S.

1905: TRONO v. U.S. - In questioning whether an action of the Supreme Court of the Philippines, then a U.S. possession, violated an act of Congress applying most of the Bill of Rights to the Philippines, the court noted that the Act omitted "the provisions in regard to the right of trial by jury and the right of the people to bear arms, . . . . " [16] See also KEPNER v. U.S.

1907 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.

1908: TWINING v. STATE OF NEW JERSEY - The Court concluded that the privilege against self-incrimination (Fifth Amendment) wasn't incorporated into the Fourteenth Amendment, nor are other personal rights including the 7th Amendment, "and the right to bear arms, guaranteed by the 2d Amendment" citing PRESSER v. STATE OF ILLINOIS

1912 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.

1912 New Mexico: The people have the right to bear arms for their security and defense, but nothing herein shall be held to permit the carrying of concealed weapons.

1915: STEARNS v. WOOD - An officer tried to use the Second Amendment, Tenth Amendment and other Constitutional protections against limits on promotions in the National Guard, but the court refused to hear his arguments.

1929: UNITED STATES v. SCHWIMMER - A woman's petition for Naturalization is rejected because she was not willing to "take up arms" in defense of the U.S. The court mentioned the right to keep and bear arms and stated, "Whatever tends to lessen the willingness of citizens to discharge their duty to bear arms in the country's defense detracts from the strength and safety of the government."

1931: U.S. v. BLAND - A woman's petition for Naturalization is rejected because she is not willing to "bear arms in defense of the U.S." See also UNITED STATES v. SCHWIMMER & U.S. v. MACINTOSH.

1932: POWELL v. STATE OF ALABAMA - This fourteenth amendment case quotes from TWINING v. STATE OF NEW JERSEY about, "the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action...."

1934: HAMILTON v. REGENTS OF THE UNIVERSITY OF CALIF. - School's requirement for military training for all male students is upheld as constitutional, citing "duty" to "support and defend government against all enemies."

1936: GROSJEAN v. AMERICAN PRESS CO. - Citing the findings from POWELL v. STATE OF ALABAMA , the court wrote, "We concluded that certain fundamental rights, safeguarded by the first eight amendments against federal action, were also safe-guarded against state action by the due process of law clause of the Fourteenth Amendment...."

1939: U.S. v. MILLER - Militia-type weapons covered under Second Amendment/Militia composed of civilians primarily and bearing their own firearms.

1945 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.

1959 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.

1959 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.

1963 Michigan: Every person has a right to keep and bear arms for the defense of himself and the state.

1968 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.

1970 Illinois: Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.

1971 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 [word omitted] shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.

1971 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.

1971 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.

1974 Louisiana: [Militia clause deleted.] 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.

1978 Idaho: The people have the right to keep and bear arms [qualifiers omitted], 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 the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any 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.

1982 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.

1982 New Hampshire: All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.

1984 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.

1984 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.

1986 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.

1986 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.

1987 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.

1987 Maine: Every citizen has a right to keep and bear arms [for the common defence omitted] and this right shall never be questioned.

1988 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. To secure these rights, and the protection of property, governments are instituted among people, deriving their just powers from the consent of the governed.

1990 Florida: (a) 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. (b) There shall be a mandatory period of three days, excluding weekends and legal holidays, between the purchase and delivery at retail of any handgun. For the purposes of this section, "purchase" means the transfer of money or other valuable consideration to the retailer, and "handgun" means a firearm capable of being carried and used by one hand, such as a pistol or revolver. Holders of a concealed weapon permit as prescribed in Florida law shall not be subject to the provisions of this paragraph. (c) The legislature shall enact legislation implementing subsection (b) of this section, effective no later than December 31, 1991, which shall provide that anyone violating the provisions of subsection (b) shall be guilty of a felony. (d) This restriction shall not apply to a trade in of another handgun.

1994 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.

1998 Wisconsin: The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose. [17] [18]

SCOTUS

cited from [19] SAF 1998: MUSCARELLO v. UNITED STATES - In the dissent on defining "carries a firearm", several Justices note that "Surely a most familiar meaning is, as the Constitution's Second Amendment ("keep and bear Arms"). . . ."

1998: SPENCER v. KEMNA - In his dissent, Justice Stevens noted that a conviction "may result in tangible harms such as imprisonment, loss of the right to vote or to bear arms. . . ."

1997: PRINTZ, SHERIFF/CORONER, RAVALLI COUNTY, MONTANA v. UNITED STATES - Brady Background Check overturned as unfunded mandate in violation of Tenth Amendment. Justice Thomas requests a Second Amendment case. [20]

1995: U.S. v. LOPEZ - Gun-Free School Zones Overturned as Congress exceeded its powers.

1994: ALBRIGHT v. OLIVER - The court quoted POE v. ULLMAN on how the right to keep and bear arms and other rights are to have, "freedom from all substantial arbitrary impositions and purposeless restraints" under the Fourteenth Amendment.

1992: PLANNED PARENTHOOD OF SOUTHEASTERN PA. v. CASEY - The court quoted POE v. ULLMAN on how the right to keep and bear arms and other rights are to have, "freedom from all substantial arbitrary impositions and purposeless restraints" under the Fourteenth Amendment.

1990: PERPICH v. DEPARTMENT OF DEFENSE - National Guard is NOT the militia but part of Armed Forces. Militia divided into "organized" and "unorganized".

1990: UNITED STATES v. VERDUGO-URQUIDEZ - The "people" under the First, Second, Fourth, Ninth & Tenth Amendments are individuals, not the States.

1980: LEWIS v. UNITED STATES - This case notes in a footnote that prohibiting felons from possessing firearms does not violate the Second Amendment.

1977: MOORE v. EAST CLEVELAND - The court quoted POE v. ULLMAN on how the right to keep and bear arms and other rights are to have, "freedom from all substantial arbitrary impositions and purposeless restraints" under the Fourteenth Amendment.

1973: ROE v. WADE - The court quoted POE v. ULLMAN on how the right to keep and bear arms and other rights are to have, "freedom from all substantial arbitrary impositions and purposeless restraints" under the Fourteenth Amendment.

1972: ADAMS v. WILLIAMS - In the dissent, Justices Douglas & Marshall took the portions of U.S. v. MILLER toward preservation of the Militia, but noted that some controls would be Constitutional, and preferable to "watering-down" the Fourth Amendment in this case.

1972: LAIRD v. TATUM - The court quoted Chief Justice Warren on how "fear and concern of military dominance" gave rise to the Second and Third Amendments and a decentralized militia." The right to keep and bear arms is also listed with other individual rights.

1969: BURTON v. SILLS - U.S. Supreme Court refused to hear a challenge to a STATE licensing law. Even today, the Second Amendment is not applied to the states.

1968: DUNCAN v. LOUISIANA - Court quotes Senator Howard, who introduced the Fourteenth Amendment for passage in the Senate, discussing why to pass the Amendment. Sen. Howard included "the right to keep and to bear arms" with other individual rights.

1965: GRISWOLD v. CONNECTICUT - In a case deciding that Connecticut's birth-control law unconstitutionally intrudes upon the right of marital privacy, Justice Goldberg writes a concurring opinion that, "I have not accepted the view that "due process" as used in the Fourteenth Amendment incorporates all of the first eight Amendments ... I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights." As in other courts, the Second Amendment is listed with personal rights, and not distinguished or excluded as only a collective right.

1965: MARYLAND v. U.S. - The court found that the National Guard is the modern militia guaranteed to the states under Article 1, Section 8 of the U.S. Constitution but does not mention what is the Militia under the Second Amendment. See also HOUSTON v. MOORE.

1964: BELL v. MARYLAND - In a footnote on Black Codes, the court noted how "Negroes were not allowed to bear arms or to appear in all public places".

1964: MALLOY v. HOGAN - The court notes in a footnote that the Second Amendment is one of the rights not yet held applicable to the states through the 14th amendment.

1963: GIDEON v. WAINWRIGHT - The court found that Amendments that are, "fundamental safeguards of liberty" are immune from both federal and state "abridgment" under the "Due Process Clause of the Fourteenth Amendment." GROSJEAN v. AMERICAN PRESS CO. and POWELL v. STATE OF ALABAMA are both cited.

1961: KONIGSBERG v. STATE BAR - The court found that Free Speech and other individual rights are based on rights "transplanted from English soil." The court went on to find Free Speech to be in unqualified terms and "In this connection also compare the equally unqualified command of the Second Amendment: 'the right of the people to keep and bear Arms shall not be infringed.'"

1961: POE v. ULLMAN - Lists the "right to keep and bear arms" with "the freedom of speech, press, and religion;" and "the freedom from unreasonable searches and seizures." The courts seemless aproach indicates that all are individual rights. [21]

1958: KNAPP v. SCHWEITZER - The court rejected the Fifth Amendment as applying to the States under the Fourteenth Amendment. "By 1900 the applicability of the Bill of Rights to the States had been rejected in cases involving claims based on virtually every provision in the first eight Articles of Amendment." The Court cited U.S. v. CRUIKSHANK for both the First and Second Amendments.

1957: GREEN v. UNITED STATES - Mentions how President Taft stated that the Philippine people secured "all the guaranties of our Bill of Rights except trial by jury and the right to bear arms." See also KEPNER v. U.S. and TRONO v. U S.

1950: JOHNSON v. EISENTRAGER - The Court found that the Fifth Amendment doesn't apply to alien enemies on occupied alien territory. The court listed the Second Amendment as a civil-right along with the First, Fourth, Fifth and Sixth Amendments. The Supreme Court also uses the term "werewolves."

1947: ADAMSON v. PEOPLE OF STATE OF CALIFORNIA - Justice Black in his dissent notes the many rights not incorporated under the Fourteen Amendment, including the Eighth Amendment, Seventh Amendment, and the Second Amendment's right of the people to keep and bear arms citing PRESSER v. STATE OF ILLINOIS.

1939: U.S. v. MILLER - Militia-type weapons covered under Second Amendment/Militia composed of civilians primarily and bearing their own firearms. One Summary of Miller Documents.

1936: GROSJEAN v. AMERICAN PRESS CO. - Citing the findings from POWELL v. STATE OF ALABAMA , the court wrote, "We concluded that certain fundamental rights, safeguarded by the first eight amendments against federal action, were also safe-guarded against state action by the due process of law clause of the Fourteenth Amendment...."

1934: HAMILTON v. REGENTS OF THE UNIVERSITY OF CALIF. - School's requirement for military training for all male students is upheld as constitutional, citing "duty" to "support and defend government against all enemies."

1932: POWELL v. STATE OF ALABAMA - This fourteenth amendment case quotes from TWINING v. STATE OF NEW JERSEY about, "the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action...."

1931: U.S. v. BLAND - A woman's petition for Naturalization is rejected because she is not willing to "bear arms in defense of the U.S." See also UNITED STATES v. SCHWIMMER & U.S. v. MACINTOSH.

1929: UNITED STATES v. SCHWIMMER - A woman's petition for Naturalization is rejected because she was not willing to "take up arms" in defense of the U.S. The court mentioned the right to keep and bear arms and stated, "Whatever tends to lessen the willingness of citizens to discharge their duty to bear arms in the country's defense detracts from the strength and safety of the government."

1915: STEARNS v. WOOD - An officer tried to use the Second Amendment, Tenth Amendment and other Constitutional protections against limits on promotions in the National Guard, but the court refused to hear his arguments.

1908: TWINING v. STATE OF NEW JERSEY - The Court concluded that the privilege against self-incrimination (Fifth Amendment) wasn't incorporated into the Fourteenth Amendment, nor are other personal rights including the 7th Amendment, "and the right to bear arms, guaranteed by the 2d Amendment" citing PRESSER v. STATE OF ILLINOIS

1905: TRONO v. U.S. - In questioning whether an action of the Supreme Court of the Philippines, then a U.S. possession, violated an act of Congress applying most of the Bill of Rights to the Philippines, the court noted that the Act omitted "the provisions in regard to the right of trial by jury and the right of the people to bear arms, . . . . " [22] See also KEPNER v. U.S.

1904: KEPNER v. U.S. - Noted that the act of Congress regarding rights in the Philippines forget several Amendments, including the "the right of the people to bear arms" among several others. [23] See also TRONO v. U.S.

1900: MAXWELL v. DOW - Cited PRESSER v. STATE OF ILLINOIS on how "all citizens capable of bearing arms constitute the reserved military force of the national government".

1900: U S v. ELDER - The court repeatedly cited Government officials in the 1800s that provided "notice that they should keep arms sufficient for their defense."

1900: THE PANAMA - The court recognized that a ship carries guns and cannons for "self-defense" and quoted from Portalis, "defense is a natural right, and means of defense are lawful in voyages at sea, as in all other dangerous occupations of life". However, this did not apply to enemy property like the Panama. [24]

1897: ROBERTSON v. BALDWIN - The court notes that each of the "Bill of Rights" have limitations on those rights, including the freedom of speech and of the press; the right of the people to keep and bear arms; double jeopardy, etc.

1896: BROWN v. WALKER - In his dissent, Justice Field quoted the counsel for the appellant: "The freedom of thought, of speech, and of the press; the right to bear arms; exemption from military dictation;. . . . . -- are, together with exemption from self-crimination, the essential and inseparable features of English liberty."

1894: MILLER v. TEXAS - Court refused to expand the Second and Fourth Amendment to the States since it was not brought up first during the trail. A very unfortunate trial mistake.

1892: LOGAN v. U.S. - The Court was faced with a question about the scope of the conspiracy statute involved in U.S. v. CRUIKSHANK. The court found that the First and Second Amendments under Cruikshank are not granted by the Constitution, but were both already existing and only a limitation on Congress. This case failed to recognize the Fourteen Amendment (Equal Protection - 1868).

1886: PRESSER v. STATE OF ILLINOIS - Second Amendment only a limitation on Congress, not the States. This case failed to recognize the Fourteen Amendment (Equal Protection - 1868).

1875: U.S. v. CRUIKSHANK - First and Second Amendment rights only limitation on Congress. These rights are not granted by, nor in any manner dependent, upon the Constitution. This case failed to recognize the Fourteen Amendment (Equal Protection - 1868).

1866: EX PARTE MILLIGAN - The court discounted the notion that The Fourth, Fifth, and Sixth Amendments were limitations on "war-making" powers. Similarly, the right of the people to keep and bear arms would not "hinder the President from disarming insurrectionists, rebels, and traitors in arms while he was carrying on war against them."[25]

1857: DRED SCOTT v. SANDFORD - Slavery kept legal based in part on the fear that freed slaves could "carry arms wherever they went" under the Second Amendment.[26]

1844: THE MALEK ADHEL - A piracy case where the court noted that "All vessels going to the Pacific carry arms for defence."[27]

1820: HOUSTON v. MOORE - This case seems to distinguish the Militia powers under Article 1, Section 8 of the U.S. Constitution and "the right to keep and bear arms." Future decisions only mention one provision or the other.[28] See also MARYLAND v. U.S.[29]

1803: MARBURY v. MADISON - The court found that the Constitution is the "superior, paramount law" of the land and that "a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument."

alphabetical

Alabama: "That every citizen has a right to bear arms in defense of himself and the state." Ala. Const. art. 1, § 26.

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." Alaska Const. art. 1, § 19.

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." Ariz. Const. art. II, § 26.

Arkansas: "The citizens of this State shall have the right to keep and bear arms for their common defense." Ark. Const. art. II, § 5.

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." Colo. Const. art. II, § 13. Connecticut: "Every citizen has a right to bear arms in defense of himself and the state." Conn. Const. art. I, § 15.

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." Fla. Const. art. I, § 8.

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." Ga. Const. art. I, § 1, para. 5.

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." Hawaii Const. art. 1, § 15.

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 the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any 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." Idaho Const. art. 1, § 11.

Illinois: "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed." Ill. Const. art. I, § 22.

Indiana: "The people shall have a right to bear arms, for the defense of themselves and the State." Ind. Const. art. I, § 32.

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." Kan. Const., Bill of Rights, § 4.

Kentucky: "All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:... Seventh: The 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." Ky. Const. § I, para. 7.

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." La. Const. art. 1, § 11.

Maine: "Every citizen has a right to keep and bear arms for the common defense; and this right shall never be questioned." Me. Const. art. I, § 16.

Massachusetts: "The people have a right to keep and bear arms for the common defense. And as, in times 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." Mass. Const. Pt. I, art. xvii.

Michigan: "Every person has a right to keep or bear arms for the defense of himself and the State." Mich. Const. art. I, § 6.

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 where thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons." Miss. Const. art. III, § 12.

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." Mo. Const. art. 1, § 23.

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." Mont. Const. art. II, § 12.

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. To secure these rights, and the protection of property, governments are instituted among people, deriving their just powers from the consent of the governed." Neb. Const. Art. I, § 1.

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." Nev. Const. art. 1, § 11(1).

New Hampshire: "All persons have the right to keep and bear arms in defense of themselves, their families, their property, and the State." N.H. Const. Pt. I, art. 2a.

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." N.M. Const. art. II, § 6. North Carolina: "A well regulated militia being necessary to be 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." N.C. Const. art. I, § 30.

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." N.D. Const. Art. I, § 1.

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." Ohio Const. art. I, § 4.

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." Okla. Const. art. 11, § 26.

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." Or. Const. art. I, § 27.

Pennsylvania: "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned." Pa. Const. art. I, § 21.

Rhode Island: "The right of the people to keep and bear arms shall not be infringed." R.I. Const. art. 1, § 22.

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." S.C. Const. art. I, § 20.

South Dakota: "The right of the citizens to bear arms in defense of themselves and the state shall not be denied." S.D. Const. art. VI, § 24. 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." Tenn. Const. art. I, § 26.

Texas: "Every citizen shall have the right to keep and bear arms in the lawful defence 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." Tex. Const. art. 1, § 23.

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." Utah Const. art. 1, § 6.

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." Vt. Const. Ch. I, art. 16.

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." Va. Const. art. I, § 13.

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." Wash. Const. art. I, § 24.

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." W. Va. Art. III, § 22.

Wisconsin: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." Wis. Const. Art. I, § 25.

Wyoming: "The right of citizens to bear arms in defense of themselves and of the state shall not be denied." Wyo. Const. art. I, § 24.

In addition, New York State's Civil Right Law has a statutory provision which is a word for word copy of the Second Amendment. N.Y. Civ. Rights § 4.

Commentary

The nineteenth century scholars were (in roughly chronological order):

• St. George Tucker (July 10, 1752 – November 10, 1827)
• William Rawle(April 28, 1759 – April 12, 1836)
• Joseph Story(September 18, 1779 – September 10, 1845)
• Henry St. George Tucker, Sr. (December 29, 1780 – August 28, 1848)
• Benjamin Lynde Oliver Jr (September 14th, 1788 - June 18, 1843) Bio
• James Bayard ?
• Francis Lieber (March 18, 1798[1] or 1800 – October 2, 1872)
• Thomas M. Cooley (January 6, 1824 – September 12, 1898)
• Joel Tiffany
• Timothy Farrar
• George W. Paschal
• Joel Prentiss Bishop (March 10, 1814 – November 4, 1901)
• John Norton Pomeroy (April 12, 1828 – February 25, 1885) 14th amendment is pending
• Oliver Wendell Holmes, Jr (March 8, 1841 – March 6, 1935)
• Herbert Broom (1815–1882) english Blackstone
• Edward A. Hadley with Broom
• Hermann von Holst cites Farrar
• John Hare;
• George Ticknor Curtis;
• John C. Ordronaux
• Samuel F. Miller
• J.C. Bancroft Davis
• Henry Campbell Black
• George S. Boutwell;
• James Schouler;
• John Randolph Tucker
• William Draper Lewis.

Tucker/Blackstone

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. With an Appendix to Each Volume, Containing Short Tracts Upon Such Subjects as Appeared Necessary to Form a Connected View of the Laws of Virginia, as a Member of the Federal Union 1803

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 go vernments 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'a.nnihilated, 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 pro testants, 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.

Trench Coxe

Tench Coxe made this point in a commentary on the Second Amendment.“Remarks on the First Part of the Amendments to the Federal Constitution,” Federal Gazette, June 18, 1792, at 2, col. 1, Coxe explained the purpose of the Amendment this way:

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.

William Rawle.

In 1825 William Rawle published: A View of the Constitution of the United States of America

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. 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.

Benjamin L. Oliver

Benjamin Lynde Oliver was born in Salem in 1788. He graduated from Harvard College in 1808, studied law with Joseph Story and Samuel Putnam and was admitted to the Bar in 1809. He was the author of " Forms of Practice," " Practical Conveyancing," " Forms in Chancery, Admiralty and Common Law." He died in Maiden, June 18, 1848.

The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States Oliver, Benjamin Lynde (1832). The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States. Marsh, Capen & Lyon. Retrieved 6 December 2013.

3. The right of the citizens to bear arms. The second amendment to the constitution, declares, that ' the right of the people to keep and bear arms, shall not be infringed.' The reason assigned in the amendment for this restriction on the power of congress, is sufficient to show its true construction. This reason is, ' because a well regulated militia is necessary to the security of a free state.' Certainly, it is impossible to provide any other mode of defence which shall be at the same time so safe so cheap, and so effectual as that of a well organized militia. For, every able bodied man, with the exception of those who are exempted because they are engaged in the discharge of other public duties, is bound to assist in the public defence; and consequently, with the exception of the small number referred to, the number of the whole militia of the United States, is limited only by that of its effective citizens. The chief excellence of the militia system, is that every citizen at a moment's warning becomes a soldier ; and when the exigency is over, at a moment's warning retires again to the calm and usual pursuits and occupations of peace. To repel a sudden invasion of a foreign enemy ; to put down a domestic insurrection at its first commencement; to protect the country from any attempt to usurp power by persons not confided with it, are occasions, in which the policy of the militia system is very apparent. Another advantage, which however is not quite so obvious, is the assistance which it is always ready- to lend the civil arm of the government ; in preserving domestic peace and tranquillity ; in the execution of the process of the law ; and in suppressing the tumults and riots and other disorders of the less informed citizens, when under the influence of their own unruly passions, whether excited by some unfortunate occasion, or exasperated by the false reasonings or representations of designing and unprincipled leaders or declaimers. The influence of the militia system in these last cases, is less perceived by the orderly citizens, because it is so much felt by those whose irregularity of conduct can only be restrain ed by the consciousness of a superior controlling power, which they cannot withstand, and therefore will not attempt to provoke. - i Their inefficiency in the field against a regular army, arises from, and is consequently in direct proportion with the follow ing circumstances; viz; want of military skill and experience, in the officers ; want of respect for their superiors, and of a spirit of subordination, in the private soldiers. The officers are unable to teach ; the privates will not learn. The officers neither know how to command, nor how to enforce obedience. The privates will neither submit nor obey. The whole results in a total disregard of discipline, a want of confidence in their officers, and a distrust of themselves and of each other. These defects however may be remedied by drilling and exercising under officers, who have had an opportunity of see ing service. . - There is but little danger that the militia will betray their country. There may be traitors among them ; but having their own interests to protect, and being in reality the country itself, it would be absurd to suppose that they would ever betray themselves. It is true, that they may ruin themselves by act ing under erroneous views of their own interests. But this is incident to human nature. The provision of the constitution, declaring the right of the people to keep and bear arms, Sic. was probably intended to apply to the right of the people to bear arms for such purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from always going armed. A different construction however has been given to it. It is a common practice in some parts of the United States, for individuals to carry concealed about their persons, some deadly weapon, and such as is not much used, as a regular weapon of attack or defence, in the army, as, a dirk or a loaded pistol. This cowardly and disgraceful practice, if it is really un constitutional to restrain it by law, ought to be discountenanced by all persons who are actuated by proper feelings of humanity or a just regard for the dictates of religion. For, what does this practice in a civilized community imply ? In what light does the wearer expect to be viewed ? Is he under the influence of unmanly timidity ? Has he not sufficient courage to declare his sentiments, unless supported by the consciousness that he has a deadly weapon at hand, to which he can appeal, in case of any difficulty or quarrel ? Or, is it vanity ? If so, then he must frequently display his pistol or dirk. But the weapon of a soldier, worn by one who is not so, becomes the badge of a fop or coxcomb. Or, does he mean to act the part of an assassin, and gratify his temper or malignity by stab bing or shooting the first person who happens to offend him, or who is unwilling to assent to his opinions ? The alarming frequency of bloody affrays attended with fatal results, in those parts of the country where this low bred practice is most prevalent, would seem to demand the interposition of the legislature, if it might constitutionally be had. However, the courts and juries may do much, if they will set their faces against it. This they may do with perfect propriety and without either violating the constitution, or overstepping any legal principle. To constitute the crime of murder, it is not necessary, that the act should arise from malice against any particular individual, it is sufficient, if it results from an unprincipled disregard of the lives of other people in general ; as, if a man maliciously or wantonly rides a horse used to kick, into a crowd of people, or turns loose in the street a furious wild beast, and any one loses his life in consequence of it, it will be murder. And, there appears to be no reason, why a man, who arms himself with a deadly weapon, with an intent to use it upon the first person who offends him, and afterwards uses it upon some provocation which does not constitute a legal excuse, and kills his antagonist, should be regarded, in any other light than a murderer. There are without doubt circumstances, which may justify a man for going armed ; as, if he has valuable property in his custody ; or, if he is travelling in a dangerous part of the country ; or, if his life has been threatened. But under other circumstances, it ought not to be tolerated or countenanced ; because the presence of such weapons has frequently turn ed a quarrel into a bloody affray, which otherwise would have terminated in angry words, or at most an inconsiderable breach of the peace. While on this subject, it may not be amiss to suggest, that if the state legislatures would pass a law, providing that if any man should by writing, or by advised speaking, either in a per son's presence or absence, charge him with any failure of truth or honesty, for the mere purpose of reproach, and not for the purpose of demanding legal reparation ; or, should apply to such person the contumelious epithets, usually resorted to for the purpose of insult, he should be liable to a certain heavy pecuniary fine, or to imprisonment for a certain number of days, to be remitted at any time upon asking pardon of the injured party in open court, either verbally or in writing, accord ing to the manner of the offence, it would probably tend to put a stop to duelling. The public sentiment too, ought to be corrected with regard to acts of personal violence. When an assault and battery has been committed, the jury seldom assess sufficient damages ; the judges too frequently impose such in considerable fines, that an injured party is frequently discouraged from attempting to obtain redress by law, and unless he is a conscientious man, prefers to resort to modes of redress which the law forbids.

Joseph Story

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 : Designed for the Use of School Libraries and General Readers : with an Appendix, Containing Important Public Documents, Illustrative of the Constitution. 1833

§ 450. 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.

Judge Timothy Farrar

In 1867, Judge Timothy Farrar published his Manual of the Constitution, which was written the year before when the Fourteenth Amendment was “in the process of adoption by the State legislatures.”

§ 34. 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 bene fit; 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 Ameri can 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?

else where:

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 beinfringed by individuals or or even by the government itself.

and:

§ 300. The first Amendment is even more explicitly to our purpose than any of the above. It relates to the establishment and free exercise of religion, freedom of speech and of the press, peaceable assemblies of the people, and the right to petition the government. "Which of the enumerated powers, as they have been insidiously called, or what other specific power mentioned in any part of the Constitution, authorizes Congress to touch any one of these subjects, for any purpose whatever? Why, then, restrict the power? So of "the right to keep and bear arms," and divers other valuable common-law rights. Obviously they are all carefully guarded; because, under the general powers of the government to provide for the common defence, the general welfare, and the blessings of liberty, and to do any thing necessary and proper for those purposes,"nothing could be said to be beyond the legitimate claims of an agent charged with these duties.

Judge Thomas Cooley

Judge Thomas M. Cooley, perhaps the most widely-read constitutional scholar of the nineteenth century, explained why the Second Amendment protected the right of the people to form local militias:

The Abnegation of Self-Government

The right of the people to bear arms in their own defence, and to form and drill military organizations in defence of the State,… is reserved by the people as a possible and necessary resort for the protection of self-government against usurpation, and against any attempt on the part of those who may for the time be in possession of State authority or resources to set aside the constitution and substitute their own rule for that of the people. Should the contingency ever arise when it would be necessary for the people to make use of the arms in their hands for the protection of constitutional liberty, the proceeding, so far from being revolutionary, would be in strict accord with popular right and duty.

Thomas M. Cooley, The Abnegation of Self-Government, 12 PRINCETON REVIEW 213–14(1883).

A treatise on the constitutional limitations which rest upon the legislative power of the states of the American union

Right to bear Arms.

[* 350] Among the other safeguards to liberty should be mentioned the right of the people to keep and bear arms.1 A standing army is peculiarly obnoxious in any free government, and the jealousy of such an army has at times been so strongly demonstrated in England as to lead to the belief that even though recruited from among themselves, it was more dreaded by the people as an instrument of oppression than a tyrannical monarch or any foreign power. So impatient did the English people become of the very army that liberated them from the tyranny of James II. that they demanded its reduction even before the liberation became complete ; and to this day the British Parliament render a standing army practically impossible by only passing a mutiny act from session to session. The alternative to a standing army is " a well-regulated militia ; " but this cannot exist unless the people are trained to bearing arms. The federal and State constitutions therefore provide that the right of the people to bear arms shall not be infringed ; but how far it may be in the power of the legislature to regulate the right we shall not undertake to say, as happily there neither has been, nor perhaps is likely to be, much occasion for a discussion of that question by the courts.:2

1 1 Bl. Com. 143.

2 In Bliss p. Commonwealth, 2 Lit. 90, the statute " to prevent persons wearing concealed arms " was held unconstitutional, as infringing on the right of the people to bear arms in defence of themselves and the State. But see Nunn v. State, 1 Kelly, 243. As bearing also upon the right of self-defence, see Ely v. Thompson, 3 A. K. Marsh. 73, where it was held that the statute subjecting free persons of color to corporal punishment for " lifting their hands in opposition " to a white person was unconstitutional.

Cooley, Thomas McIntyre (1871). A treatise on the constitutional limitations which rest upon the legislative power of the states of the American union. Little, Brown and company. Retrieved 7 July 2013.

General Principles of Constitutional Law

The Constitution. — By the second amendment to the Constitution it is declared that, " a well-regulated mili tia 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, like most other provisions in the Constitution, has a history. It was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people, and as a pledge of the new rulers that this tyrannical action should cease. The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation.

The Right is General. —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.

Cooley, Thomas McIntyre (1880). The General Principles of Constitutional Law in the United States of America. Little, Brown. Retrieved 4 August 2013.

Joel Prentis Bishop

Bishop, Joel Prentiss (1859). Commentaries on the Criminal Law. Little, Brown. pp. 81–. Retrieved 23 September 2014.

§ 100 0.. BLACKSTONE says: “The offence of riding or going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land; and it is particularly prohibited by the Statute of Northampton, 2 Edw. 3, c. 3, upon pain of forfeiture of the arms, and imprison ment during the king’s pleasure: in like manner as, by the laws of Solon, every Athenian was finable who walked about the city in armor.“ This statute will be found quoted at length, with the exception of the part providing for its enforcement, in a section further on.3 The offence created by it is said in England to have been an offence also by the earlier common law.‘ The same thing has moreover been very properly held in the United States; and so here, whether we receive the English statute or not, we hold as criminal by our common law the going or riding about armed, with unusual and dangerous weapons, to the terror of the people!‘

§ 101. But a greater danger may under some circumstances be found in the "act of going about with secret or concealed weapons ; therefore we have, in some of the States, statutes upon this subject. They are intended for the protection of the community against the assaults of those who carry such weapons. The words of the Indiana enactment are, “ Every person, &c., who shall wear or carry any dirk, pistol, sword, or any cane or other dangerous weapon concealed,” shall be punished in a way pointed out ; 2 and the language of the statutes of the other States which have adopted this provision is similar.“

§ 102. A point of some embarrassment has been, whether these statutes are constitutional. The constitution of Kentucky declares, that “the rights of the citizens to bear arms in defence of themselves and the State shall not be questioned;” and a majority of the court held this statutory provision to be in violation of this constitutional guaranty, wherefore they pronounced it void. The learned judge who delivered the opinion said: “ To be in conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form; it is the right to bear arms in defence of the citizens and the State that is secured by the constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the constitution.“ On the other hand, a similar clause in the Arkansas constitution was declared by the Arkansas court not to be violated by this enactment,—the object of which is, the court considered, not to prevent the carrying of weapons in self-defence, but only to regulate the manner of carrying them.“ And the Arkansas doctrine is the one approved generally by the American tribunals.“

‘ Haynes v. The State, 5 Humph. 120. ' The State v. Duzan, 6 Blackf. 31. ' See Haynes v. The State, supra. * Bliss v. Commonwealth, 2 Litt. 90. 5 The State v. Buzzard, 4 Ark. 18. ° Aymettc v. The State, 2 Humph. 154 ; The State v. Reid, 1 Ala. 612; The State v. Mitchell, 3 Blackf. 229. The North Carolina court held, that the “act to prevent free people of color from carrying fire-arms” does not violate this constitutional provision; for, first, these people are not in the fullest sense citizens; or, secondly, if they are, they “occupy such a position in society as justifies the legislature in adopting a course of policy in its acts peculiar to them.” The State v. Newson, 5 Ired. 250. ‘ The State v. Duzan, 6 Blackf. 31. ' \Valls v. The State, 7 Blackf. 572; Vol. I. § 146. ‘ Hicks v. Commonwealth, 7 Grat. 597.

• Haynes v. The State, 5 Humph. 120. Cite as Haynes v. State, 5 Humph. 120 (Tenn. 1844) convicted of carrying a "Bowie knife"Penal Statute--Construction. The maxim, qui haeret in litera, haeret in cortice, is as well applicable to penal statutes as to remedial, and although such statutes are strictly construed in favor of offenders, yet they are not construed according to the letter, but according to their spirit, for the purpose of suppressing the evil; and the protection against conviction when the words of a statute cover the charge, and its true spirit and meaning do not, rests in the judge and jury who try the case. Concealed weapons designated and others resembling them. A statute is sufficient to sustain a conviction under an indictment in pursuance of its words, which makes it a highly penal misdemeanor to wear concealed about the person any bowie-knife, Arkansas tooth-pick, or other knife or weapon in form, shape, or size resembling them. (See Code, sec. 4746; Aymette v. State, 2 Humph., 154.)
• The State v. Duzan, 6 Blackf. 31. Cite as State v. Duzan, 6 Blackf. 31 (Ind. 1841) An indictment for carrying a pistol concealed, &c. need not state that the pistol was loaded.
• Bliss v. Commonwealth, 2 Litt. 90. 5
• The State v. Buzzard, 4 Ark. 18.
• Aymettc v. The State, 2 Humph. 154 ;
• The State v. Reid, 1 Ala. 612; Cite as State v. Reid, 1 Ala. 612, 35 Am. Dec. 44 (1840)1.the court held The act of the 1st of February, 1839, "To suppress the evil practice of carrying weapons secretly," does not either directly, or indirectly tend to divest the citizen of the "right to bear arms in defence of himself and the State;" and is, therefore consistent with the 23d section of the 1 Art. of the constitution. and The Attorney General for the State, argued that it was competent for the Legislature to prohibit the wearing of concealed weapons, that such a law did not conflict with the constitutional provision, which guarantied to the citizen the right to bear arms in the defence of himself and the State. That the statute under which the defendant was convicted did not impair that right, while it proposed to discountenance by punishment, a practice which had been greatly promotive of violence and bloodshed. Every man was still left free to carry arms openly, the only manner in which they could be used for defensive purposes.
• The State v. Mitchell, 3 Blackf. 229. The North Carolina court held, that the “act to prevent free people of color from carrying fire-arms” does not violate this constitutional provision; for, first, these people are not in the fullest sense citizens; or, secondly, if they are, they “occupy such a position in society as justifies the legislature in adopting a course of policy in its acts peculiar to them.”
• The State v. Newson, 5 Ired. 250.
• Walls v. The State, 7 Blackf. 572; Vol. I. § 146. Cite as Walls v. State, 7 Blackf. 572 (Ind. 1845). If a person, not being a traveler, carry a pistol concealed about his person, he is guilty of an indictable offense. His motive for carrying the pistol is immaterial
• Hicks v. Commonwealth, 7 Grat. 597

Henry Campbell Black

Handbook of American Constitutional Law 1st ed 1895

Black, Henry Campbell (1910). Handbook of American Constitutional Law. West Publishing Company. Retrieved 7 December 2013.

203. The second amendment to the federal constitution, as well as the constitutions of many of the states, guaranty to the people the right to bear arms. This is a natural right, not created or granted by the constitutions. The second amendment means no more than that it shall not be denied or infringed by congress or the other departments of the national government. The amendment is no restriction upon the power of the several states." Hence, unless restrained by their own constitutions, the state legislatures may enact laws to control and regulate all military organizations, and the drilling and parading of military bodies and associations, except those which are authorized by the militia laws or the laws of the United States. The "arms" here meant are those of a soldier. They do not include dirks, bowie knives, and such other weapons as are used in brawls, fights, and riots. The citizen has at all times the right to keep arms of modern warfare, if without danger to others, and for purposes of training and efficiency in their use, but not such weapons as are only intended to be the instruments of private feuds or vengeance. The right to bear arms is not infringed by a state law prohibiting the carrying of concealed deadly weapons. Such a law is a police regulation, and is justified by the fact that the practice forbidden endangers the peace of society and the safety of individuals."

Cases cited; »« U. S. v. Cruikshank, 92 U. S. 542. »» Presser v. Illinois, 116 U. S. 252, 6 Sup. Ct. 580; Com. v. Murphy (Mass.) 44 N. B. 138. « English v. State, 35 Tex. 473; Fife v. State, 31 Ark. 455; State v. Work man, 35 W. Va. 367, 14 S. E. 9. »8 State v. Wilforth, 74 Mo. 528; Halle v. State, 38 Ark. 564; Wright v. Com., 77 Pa. St. 470; State v. Speller, 86 N. C. 697.

Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?

By Barnett, Randy E.Academic journal article from Texas Law Review, Vol. 83, No. 1 November 2004

Who says that even heated conflicts over constitutional meaning can never progress? Over the past ten years, the intellectual clash between those who claimed that, at the time of the founding, the "right to keep and bear arms" protected by the Second Amendment was a "collective right" of the states to preserve their militia and those who maintain instead that it originally referred to an individual right akin to the others protected in the Bill of Rights has been resolved. That the individual right view prevailed definitively is evidenced by the fact that no Second Amendment scholar, no matter how inimical to gun rights, makes the "collective right" claim any more. All now agree that the Second Amendment originally referred to the right of the individual.1

Indeed, the fact that the collective right theory was once so confidently advanced by gun control enthusiasts2 is on its way down the collective memory hole as though it had never been asserted. With its demise, the intellectual debate over the original meaning of the second Amendment has turned in a different direction. Although now conceding that the right to keep and bear arms indeed belongs to individuals rather than to states, almost without missing a beat, gun control enthusiasts now claim with equal assurance that the individual right to bear arms was somehow "conditioned" in its exercise on participation in an organized militia. Cited in

Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876 By: Stephen P. Halbrook

Judicial reluctance to consider seriously whether the Fourteenth Amendment protects the right to keep and bear arms from state infringement perhaps reflects a tendency to view the Second Amendment, with its apparent guarantee of gun ownership, as embarrassing and politically incorrect.8 Under the twentieth-century “State’s rights” view, “the people” have no right to keep or bear arms, but the states have a collective right to have the National Guard.9 However, the weight of serious scholarship supports the historical intent of the Second Amendment to protect individual rights and to deter governmental tyranny.10 From the Federalist Papers11 to explanations when the Bill of Rights was introduced,12 it is clear that the purpose of the Second Amendment was to protect individual rights.

Historically, the right to keep and bear arms has been a key Bill of Rights guarantee related to the defense of African Americans from racist violence.13 The Southern slave codes were the only significant prohibitions on firearm ownership in the antebellum United States.14 Any historical analysis of the Fourteenth Amendment must take account of its origins in abolitionist thought, a fundamental tenet of which was that “the people” in the Second Amendment included individuals of all races, and that freedom for the slaves meant protection in their personal right to keep and bear arms.15

A Companion to the United States Constitution and Its Amendments John R. Vile

To date, the Supreme Court has been almost completely silent on the subject, with its decision in United States v. Miller (1939) serving as a fairly ambiguous precedent allowing for some state and federal restrictions on gun ownership. These have included the five-day waiting period imposed by Congress in the so-called Brady Bill—named after Reagan’s press secretary who was wounded in Hinckley’s assassination attempt against the president—and the ban on certain types of semi-automatic weapons.

Given such inattention at the highest level of the judiciary, lower courts have sustained laws that have regulated and restricted gun possession. Given the increasing attention that scholars are devoting to this amendment and the diversity of existing lower court precedents, it would not be surprising to see greater judicial intervention, and attempted clarification, in this area in the near future.new edition

SECOND AMENDMENT

BEARING ARMS CRS-LOC [30]

ISECOND AMENDMENT BEARING ARMS It was not until 2008 that the Supreme Court definitively came down on the side of an “individual rights” theory. Relying on new scholarship regarding the origins of the Amendment, the 1 Court in District of Columbia v. Heller confirmed what had been 2 a growing consensus of legal scholars – that the rights of the Second Amendment adhered to individuals. The Court reached this conclusion after a textual analysis of the Amendment, an 3 examination of the historical use of prefatory phrases in statutes, and a detailed exploration of the 18th century meaning of phrases found in the Amendment. Although accepting that the historical and contemporaneous use of the phrase “keep and bear Arms” often arose in connection with military activities, the Court noted that its use was not limited to those contexts. Further, the Court found that the phrase “well regulated Militia” referred not to formally organized state or federal militias, but to the pool of “able-bodied men” who were available for conscription. Finally, 5 the Court reviewed contemporaneous state constitutions, post-enactment commentary, and subsequent case law to conclude that the purpose of the right to keep and bear arms extended beyond the context of militia service to include self-defense. Using this “individual rights theory,” the Court struck down a District of Columbia law that banned virtually all handguns, and required that any other type of firearm in a home be dissembled or bound by a trigger lock at all times. The Court rejected the argument that handguns could be banned as long as other guns (such as long-guns) were available, noting that, for a variety of reasons, handguns are the “most popular weapon chosen by Americans for self-defense in the home.” Similarly, the requirement that all firearms be rendered inoperable at all times was found to limit the “core lawful purpose of self-defense.” However, the Court specifically stated (albeit in dicta) that the Second Amendment did not limit prohibitions on the possession of firearms by felons and the mentally ill, penalties for carrying firearms in schools and government buildings, or laws regulating the sales of guns. The Court also noted that there was a historical tradition of prohibiting the carrying of “dangerous and unusual weapons” that would not be affected by its decision. The Court, however, declined to establish the standard by which future gun regulations would be evaluated. And, more importantly, because the District of Columbia is a federal enclave, the Court did not have occasion to address whether it would reconsider its prior decisions that the Second Amendment does not[CRS-Loc 2008[31]] at google books

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FIREARMS AND VIOLENCE

FIREARMS AND VIOLENCE

A CRITICAL REVIEW

Committee to Improve Research Information and Data on Firearms

Charles F. Wellford, John V. Pepper, and Carol V. Petrie, editors Committee on Law and Justice

Division of Behavioral and Social Sciences and Education

NATIONAL RESEARCH COUNCIL OF THE NATIONAL ACADEMIES

THE NATIONAL ACADEMIES PRESS Washington, D.C. On the web [51]

Between 1980 and 1984 there were more than three times as many nongun homicides per capita in America than in England (Zimring and Hawkins, 1998). There were over 41,000 nongun homicides and over 63,000 gun homicides in the United States during this period. New York City has had a homicide rate that is 8 to15 times higher than London’s for at least the last 200 years, long before either city could have had its rates affected by English gun control laws, the advent of dangerous drugs, or the supposedly harmful effects of the mass media (Monkkonen, 2001). Thus, the United States arguably has a high level of violence and homicide independent of firearm availability. Nonetheless, today homicides by a firearm occur in the United States at a rate that is more than 63 times that of England, so firearms, though not the sole source of violence, play a large role in it (Zimring and Hawkins, 1998). On the web [52]

standard model

• Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983)
• Sanford Levinson's The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989)
• Akhil R. Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193, 1205-11, 1261-62 (1992)
• Akhil R. Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1164 (1991)
• Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309 (1991)
• Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of the "Right to Bear Arms," 49 Law & Contemp. Probs. 151 (1986)
• Don B. Kates Jr., The Second Amendment: A Dialogue, 49 Law & Contemp. Probs. 143 (1986)
• Don B. Kates Jr., The Second Amendment and the Ideology of Self-Protection, 9 Const. Commentary 87 (1992)
• Robert E. Shalhope, The Armed Citizen in the Early Republic, 49 Law & Contemp. Probs. 125 (1986);
• William Van Alstyne, The Second Amendment and the Personal Right to Arms, Duke L.J. 1236, 1254-55 (1994)
• Robert J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary Right, 104 Yale L.J. 995 (1995) (reviewing Joyce L. Malcolm, The Origins of an Anglo American Right (1994))
• F. Smith Fussner, That Every Man Be Armed: The Evolution of a Constitutional Right, 3 Const. Commentary 582 (1986) (book review)
• Joyce L. Malcolm, That Every Man Be Armed: The Evolution of A Constitutional Right, 54 Geo. Wash. L. Rev. 452 (1986) (book review)
• James G. Pope, Republican Moments: The Role of Direct Popular Power in the American Constitutional Order, 139 U. Pa. L. Rev. 287, 328 (1990)
• Elaine Scarry, War and the Social Contract: Nuclear Policy, Distribution, and the Right to Bear Arms, 139 U. Pa. L. Rev. 1257 (1991)
• David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale L.J. 551 (1991).

wiki links

• Second Amendment to the United States Constitution
  • Right to keep and bear arms
• Number of guns per capita by country
• Gun politics
  • Australia
  • Brazil
  • Canada
  • Czech Republic
  • Finland
  • Germany
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  • Italy
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  • United Kingdom
  • United States
    • Gun law in the United States
    • Gun laws in the United States (by state)
      • Firearm case law in the United States
      • One handgun a month law
      • Uniform Firearms Act
    • Concealed carry in the United States
    • Open carry in the United States
      • Concealed carry
        • Right of self-defense
        • Castle Doctrine
        • Duty to retreat
        • Stand-your-ground law
• Gun violence
• Gun violence in the United States
• Gun culture
• Gun Control
  • Coalition to Stop Gun Violence
  • Political arguments of gun politics in the United States
  • Domains of gun politics

• Gun Owners of America
• Jews for the Preservation of Firearms Ownership
• Mayors Against Illegal Guns
• National Rifle Association
• Pink Pistols
• Second Amendment Foundation
• Second Amendment Sisters
• Students for Concealed Carry

Law review

• The Constitutional Right to Keep and Bear Arms and Statutes Against Carrying Weapons, 46 AM. L. REV. 777 (1912).
• Right to Bear Arms, 16 LAW NOTES 207 (1913). 1915
• Lucilius A. Emery, The Constitutional Right to Keep and Bear Arms, 28 HARV. L. REV. 473 (1915).
• Daniel J. McKenna, The Right to Keep and Bear Arms, 12 MARQ. L. REV. 138 (1928).
• John Brabner-Smith, Firearm Regulation, 1 LAW & CONTEMP. PROBS. 400 (1934). 1939
• Willimina Montague, Second Amendment, National Firearms Act, 13 S. CAL. L. REV. 129 (1939).
• A.S.V., Second Amendment, 14 ST. JOHN'S L. REV. 167 (1939). 1940
• V. Breen et al., Federal Revenue As Limitation on State Police Power and the Right to Bear Arms-Purpose of Legislation As Affecting Its Validity, 9 J. B. ASS'N KAN. 178 (1940).
• Frederick Bernays Wiener, The Militia Clause of the Constitution, 54 HARV. L. REV. 181 (1940).
  • It is significant that two of the first ten Amendments concern mili-

tary matters, and that additional limiting Amendments were pro-
posed in several of the conventions.27 The circumstance that the
Second Amendment,28 which purportedly guarantees the right to
bear arms, is now substantially a dead letter in the face of police
power necessities and a recession from the frontier conditions
which required every citizen to go armed for his own defense, and
that the Third Amendment,29 which limits the quartering of sol-
diers, has yet to be invoked, indicate rather forcefully that the
fears of the ratifiers were not well-founded; they cannot detract,
however, from the prevalence of

14th amendment or