There are several versions of the text of the Second Amendment, each with slight capitalization and punctuation differences, found in the official documents surrounding the adoption of the Bill of Rights.<SUP class=reference id=cite_ref-3>
[4]</SUP> One such version was passed by the
Congress, which reads:<SUP class=reference id=cite_ref-4>
[5]</SUP>
<TABLE class=cquote style="MARGIN: auto; BORDER-TOP-STYLE: none; BORDER-RIGHT-STYLE: none; BORDER-LEFT-STYLE: none; BORDER-COLLAPSE: collapse; BACKGROUND-COLOR: transparent; BORDER-BOTTOM-STYLE: none"><TBODY><TR><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; FONT-WEIGHT: bold; FONT-SIZE: 35px; PADDING-BOTTOM: 10px; COLOR: #b2b7f2; PADDING-TOP: 10px; FONT-FAMILY: 'Times New Roman',serif; TEXT-ALIGN: left" vAlign=top width=20>“</TD><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; PADDING-BOTTOM: 4px; PADDING-TOP: 4px" vAlign=top>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.</TD><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; FONT-WEIGHT: bold; FONT-SIZE: 36px; PADDING-BOTTOM: 10px; COLOR: #b2b7f2; PADDING-TOP: 10px; FONT-FAMILY: 'Times New Roman',serif; TEXT-ALIGN: right" vAlign=bottom width=20>”</TD></TR></TBODY></TABLE>
Another version is found in the copies distributed to the
states, and then ratified by them, which had this capitalization and punctuation:<SUP class=reference id=cite_ref-5>
[6]</SUP>
<TABLE class=cquote style="MARGIN: auto; BORDER-TOP-STYLE: none; BORDER-RIGHT-STYLE: none; BORDER-LEFT-STYLE: none; BORDER-COLLAPSE: collapse; BACKGROUND-COLOR: transparent; BORDER-BOTTOM-STYLE: none"><TBODY><TR><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; FONT-WEIGHT: bold; FONT-SIZE: 35px; PADDING-BOTTOM: 10px; COLOR: #b2b7f2; PADDING-TOP: 10px; FONT-FAMILY: 'Times New Roman',serif; TEXT-ALIGN: left" vAlign=top width=20>“</TD><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; PADDING-BOTTOM: 4px; PADDING-TOP: 4px" vAlign=top>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.</TD><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; FONT-WEIGHT: bold; FONT-SIZE: 36px; PADDING-BOTTOM: 10px; COLOR: #b2b7f2; PADDING-TOP: 10px; FONT-FAMILY: 'Times New Roman',serif; TEXT-ALIGN: right" vAlign=bottom width=20>”</TD></TR></TBODY></TABLE>
The original hand-written copy of the Bill of Rights, approved by the House and Senate, was prepared by
scribe William Lambert and resides in the
National Archives.
Background
English history and common law
The concept of a universal militia originated in England.<SUP class=reference id=cite_ref-6>
[7]</SUP><SUP class=reference id=cite_ref-7>
[8]</SUP><SUP class=reference id=cite_ref-8>
[9]</SUP> The requirement that subjects keep and bear arms for military duty<SUP class=reference id=cite_ref-9>
[10]</SUP><SUP class=reference id=cite_ref-Uviller_10-0>
[11]</SUP><SUP class=reference id=cite_ref-Pepper2005_11-0>
[12]</SUP><SUP class=reference id=cite_ref-Wills1995_12-0>
[13]</SUP> dates back to at least the 12th century when
King Henry II, in the
Assize of Arms, obligated all freemen to bear arms for public defense.
King Henry III required certain subjects between the ages of fifteen and fifty (including non-land owning subjects) to bear arms. The reason for such a requirement was that in the absence of a regular army and police force (which was not established until 1829), it was the duty of certain men to keep watch and ward at night to capture and confront suspicious persons. Every subject had an obligation to protect the king’s peace and assist in the suppression of riots.<SUP class=reference id=cite_ref-Levy1999_13-0>
[14]</SUP>
In response to complaints that local people were reluctant to take up arms to enforce justice for strangers, The Statute of Winchester of 1285 (13 Edw. I) declared that each district or
hundred would be held responsible for unsolved crimes. Each man was to keep arms to take part in the
hue and cry when necessary.<SUP class=reference id=cite_ref-14>
[15]</SUP>
Following the Protestant overthrow of the Catholic
King James II, the Protestant controlled
Parliament obliged the newly installed Protestant monarchs
William and Mary to enact the
English Bill of Rights of 1689 which granted Protestants a series of liberties including the right to arms for self defense: "That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law."<SUP class=reference id=cite_ref-15>
[16]</SUP> For instance, in 1780 after some riots, the recorder of London - the city attorney - was asked if the right to arms protected armed groups, he wrote: "The right of his majesty's Protestant subjects, to have arms for their own defense, and to use them for lawful purposes, is most clear and undeniable."<SUP class=reference id=cite_ref-16>
[17]</SUP> At least one historian describes this as the first instance when the customary duty to bear arms transitioned into a right.<SUP class=reference id=cite_ref-isbn0-674-89307-7_17-0>
[18]</SUP><SUP class=reference id=cite_ref-DeConde13_18-0>
[19]</SUP> Other historians describe this as an example of the traditional restricting of weapons access for one class of people over another, in this case the Protestant victors over the vanquished Catholics.<SUP class=reference id=cite_ref-DeConde13_18-1>
[19]</SUP><SUP class=reference id=cite_ref-isbn0-8018-2430-3_19-0>
[20]</SUP> Additionally, this reflected the popular dread of a standing army and the preference instead for a select militia. These values would have a long life both in England and America.<SUP class=reference id=cite_ref-DeConde13_18-2>
[19]</SUP>
Sir
William Blackstone's
Commentaries on the Laws of England describes the right to arms in England during the eighteenth century:
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the
natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of
oppression.<SUP class=reference id=cite_ref-20>
[21]</SUP>
The right of some English subjects to possess arms was recognized under
English common law; however many English subjects were not permitted by law to possess arms.<SUP class=reference id=cite_ref-isbn0-674-89307-7_17-1>
[18]</SUP> Regarding these constraints,
St. George Tucker wrote in 1803:
In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.<SUP class=reference id=cite_ref-21>
[22]</SUP>
Experience in America prior to the U.S. Constitution
In no particular order, early American settlers viewed the
right to arms and/or
the right to bear arms and state militias as important for one or more of these purposes:<SUP class=reference id=cite_ref-papers.ssrn.com_22-0>
[23]</SUP><SUP class=reference id=cite_ref-23>
[24]</SUP><SUP class=reference id=cite_ref-isbn0-300-08901-5_24-0>
[25]</SUP><SUP class=reference id=cite_ref-isbn0-19-514786-3pg23_25-0>
[26]</SUP><SUP class=reference id=cite_ref-isbn1-57607-347-5pg155_26-0>
[27]</SUP><SUP class=reference id=cite_ref-isbn0-253-21040-2_27-0>
[28]</SUP><SUP class=reference id=cite_ref-28>
[29]</SUP><SUP class=reference id=cite_ref-urlVPC_-_May_98_Press_Release_29-0>
[30]</SUP><SUP class=reference id=cite_ref-isbn1-56584-699-0_30-0>
[31]</SUP><SUP class=reference id=cite_ref-isbn0-8223-3017-2pg189_31-0>
[32]</SUP>
- deterring undemocratic government;
- repelling invasion;
- suppressing insurrection;
- facilitating a natural right of self-defense;
- participating in law enforcement;
- slave control in Southern slave states.
It is a matter of some dispute which of these considerations they thought were most important, which of these considerations they were most alarmed about, and the extent to which each of these considerations ultimately found expression in the Second Amendment. Additionally,
Dave Kopel has challenged the claim that the Second Amendment was adopted entirely for the preservation of slavery in the
southern states, while acknowledging this unattractive aspect of the southern militia.<SUP class=reference id=cite_ref-32>
[33]</SUP>
Ideals that helped to inspire the Second Amendment in part are symbolized by the
minutemen.<SUP class=reference id=cite_ref-Cornell_33-0>
[34]</SUP>
During the 1760s pre-revolutionary period, the established colonial militia was comprised of colonists, which included a number who were loyal to British imperial rule. As defiance and opposition to the British rule developed, a distrust of these
Loyalists in the militia became widespread among the colonists, known as
Patriots, who favored independence from British rule. As a result, these Patriots established independent colonial legislatures to create their own militias which excluded the Loyalists and then sought out to stock up independent armories for their militias. In response to this arms build up, the
British Parliament established an embargo on firearms, parts and ammunition on the American colonies.<SUP class=reference id=cite_ref-isbn1-55553-486-4pg27_34-0>
[35]</SUP>
British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the
American Revolution, resulted in the Patriot colonists protesting by citing the
Declaration of Rights, Blackstone's summary of the Declaration of Rights, their own militia laws and
common law rights to self-defense.<SUP class=reference id=cite_ref-HalbrookHardy_35-0>
[36]</SUP> While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense.<SUP class=reference id=cite_ref-HalbrookHardy_35-1>
[36]</SUP>
The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 Boston objecting to the British army suppression of colonial opposition to the
Townshend Acts:
Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such nature, and have been carried to such lengths, as must serve fully to evince that a late vote of this town, calling upon its inhabitants to provide themselves with arms for their defense, was a measure as prudent as it was legal: such violences are always to be apprehended from military troops, when quartered in the body of a populous city; but more especially so, when they are led to believe that they are become necessary to awe a spirit of rebellion, injuriously said to be existing therein. It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.<SUP class=reference id=cite_ref-HalbrookHardy_35-2>
[36]</SUP>
The
Continental Forces which won the American Revolution consisted of both the standing
Continental Army, created by the
Continental Congress, together with
state and militia units. In opposition, the
British forces consisted of a mixture of the standing
British Army, Loyalist Militia and
Hessian mercenaries. Following the Revolution, the United States was governed by the
Articles of Confederation. An unworkable division of power between Congress and the states caused military weakness, and the
standing army was reduced to as few as 80 men.<SUP class=reference id=cite_ref-isbn0-472-03370-0pg91-92_36-0>
[37]</SUP> There was no effective federal military response to an armed uprising in western
Massachusetts known as
Shays' Rebellion.<SUP class=reference id=cite_ref-37>
[38]</SUP> Subsequently, the
Philadelphia Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.<SUP class=reference id=cite_ref-isbn1-4051-1674-9pg398_38-0>
[39]</SUP><SUP class=reference id=cite_ref-isbn1-85109-669-8_39-0>
[40]</SUP>
Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power.<SUP class=reference id=cite_ref-isbn0-8223-3017-2pg79_40-0>
[41]</SUP><SUP class=reference id=cite_ref-Evil_41-0>
[42]</SUP>
Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that
James Madison "did not invent the right to keep and bear arms when he drafted the Second Amendment; the right was pre-existing at both common law and in the early state constitutions."<SUP class=reference id=cite_ref-42>
[43]</SUP> In contrast, historian
Jack Rakove suggests that Madison's intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed.<SUP class=reference id=cite_ref-43>
[44]</SUP>
One aspect of the gun control debate is the conflict between gun control laws and the alleged right to rebel against unjust governments. Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation,<SUP class=reference id=cite_ref-Millis_44-0>
[45]</SUP> as
Alexander Hamilton explained in 1788:
f circumstances should at any time oblige the government to form an army of any magnitude[,] that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.<SUP class=reference id=cite_ref-Fed29_45-0>[46]</SUP><SUP class=reference id=cite_ref-Millis_44-1>[45]</SUP>
Some scholars have said that it is wrong to read a right of armed insurrection in the Second Amendment because it is clear that the founding fathers sought to place trust in the power of the ordered liberty of democratic government versus the anarchy of insurrectionists.<SUP class=reference id=cite_ref-CarlBogus_law_or_guns_46-0>[47]</SUP><SUP class=reference id=cite_ref-47>[48]</SUP> Other scholars, such as Glenn Reynolds, contend that the framers did believe in an individual right to armed insurrection. The latter scholars cite examples, such as the Declaration of Independence (describing in 1776 “the Right of the People to … institute new Government”) and the New Hampshire Constitution (stating in 1784 that “nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind”).<SUP class=reference id=cite_ref-48>[49]</SUP>
There was an ongoing debate in the 1780s about "the people" fighting governmental tyranny (as described by Anti-Federalists); or the risk of mob rule of "the people" (as described by the Federalists) related to the ongoing revolution in France.<SUP class=reference id=cite_ref-49>[50]</SUP> A widespread fear, during the debates on the ratification of the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens,<SUP class=reference id=cite_ref-50>[51]</SUP> prohibiting citizens from arming themselves<SUP class=reference id=cite_ref-HalbrookHardy_35-3>[36]</SUP> or the federal government prohibiting the southern tradition of using their state militia for slave control.<SUP class=reference id=cite_ref-isbn1-56584-699-0_30-1>[31]</SUP>
Drafting and adoption
The prefatory clause of the Second Amendment is a shortened version of language found in the 1776 Virginia Declaration of Rights. That part of the Declaration was largely the work of George Mason. Similar language appears in many Revolutionary Era state constitutions. This Declaration states:
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; 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.<SUP class=reference id=cite_ref-isbn1-58477-369-3_51-0>
[52]</SUP>
Federalists such as James Madison initially argued that a federal Bill of Rights was unnecessary, asserting that the federal government could never raise a standing army powerful enough to overcome a militia.<SUP class=reference id=cite_ref-fed46_52-0>[53]</SUP> Similarly, Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.<SUP class=reference id=cite_ref-53>[54]</SUP><SUP class=reference id=cite_ref-54>[55]</SUP> However, Madison would later become a leading advocate for the federal Bill of Rights.
Activity during state conventions to ratify the Constitution
One of the main opposition points of contention was the Constitution's omission of a bill of rights.<SUP class=reference id=cite_ref-55>[56]</SUP> This objection was raised frequently at the state conventions that were called to ratify the Constitution.
At the Pennsylvania ratification convention, the majority would not allow proposed amendments or a bill of rights to be appended to their Ratification of the Constitution in December of 1787. The Pennsylvania Minority therefore published a statement that included a defense of the right to bear arms:
7. That the people have a right to bear arms for the defense of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals...."<SUP class=reference id=cite_ref-56>
[57]</SUP>
In Virginia, anti-federalist Patrick Henry said during the opening debates of the Virginia Ratification Convention that arms are required to secure rights and freedoms from those who would take them away.<SUP class=reference id=cite_ref-57>[58]</SUP> He also questioned how the people could resist a tyrant if their arms had been taken from them.<SUP class=reference id=cite_ref-58>[59]</SUP><SUP class=reference id=cite_ref-59>[60]</SUP>
Also at the Virginia ratification convention, George Mason showed his distrust of Congress and the possibility that it would not fund the arming for the militia as an excuse for the creation of a standing army, which could later to be used as an instrument of tyranny by Congress.<SUP class=reference id=cite_ref-60>[61]</SUP>
Five of the state ratification conventions for the U.S. Constitution made explicit requests or demands for the protection of rights to keep and bear arms. Four of these states also clearly defined that a well-regulated militia consists of "the body of the people trained to arms" or "the body of the people capable of bearing arms". These four states - New Hampshire, New York, Virginia and Rhode Island - attached proposed bills of rights to their approvals of the Constitution. New Hampshire further demanded that "Congress shall never disarm any citizen except such as are or have been in actual rebellion."<SUP class=reference id=cite_ref-Blodgett_61-0>[62]</SUP> The fifth, North Carolina, refused to ratify the Constitution and submitted a bill of unalienable rights of the people that must be protected before they would sign.<SUP class=reference id=cite_ref-62>[63]</SUP> North Carolina ratified the Constitution on November 21, 1789, after the Congress approved the Bill of Rights and submitted it to the states for ratification.
Conflict and compromise in Congress
Anti-Federalists supported a proposal to amend the Constitution with clearly defined and enumerated rights to provide further constraints on the new government, while opponents felt that by listing only certain rights, other unlisted rights would fail to be protected. Amidst this debate, a compromise was reached, and James Madison drafted what ultimately became the United States Bill of Rights, which was proposed to the Congress on June 8, 1789.
Madison proposed nine amendments. The fourth included not only a right to keep and bear arms, but also other rights such as a right to due process. The portion that would become the Second Amendment, as brought to the floor of the House of Representatives during the first session of the First Congress, was:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.<SUP class=reference id=cite_ref-aoc-p451_66-0>
[67]</SUP>
The Bill of Rights introduced by Madison on June 8 was not intended to be added at the end of the Constitution. Instead, the Bill of Rights was to be inserted into the existing Constitution. The sentence that became the Second Amendment was to be inserted in Article I, Section 9, between Clauses 3 and 4, which list individual rights, instead of Article I, Section 8, Clauses 15 and 16, which specify the Congress's power over the state militias.<SUP class=reference id=cite_ref-aoc-p451_66-1>[67]</SUP> Debate in the House on the remainder of June 8 focused again on whether a Bill of Rights was appropriate, and the matter was held for a later time. On July 21, Madison raised the issue of his Bill and proposed a select committee be created to report on it. The House voted in favor of Madison's motion,<SUP class=reference id=cite_ref-67>[68]</SUP> and the Bill of Rights entered committee for review. No official records were kept of the committee's proceedings, but the committee returned to the House a reworded version of the Second Amendment on July 28.<SUP class=reference id=cite_ref-68>[69]</SUP> On August 17, that version was read into the Journal:
A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.<SUP class=reference id=cite_ref-69>
[70]</SUP>
The Second Amendment was debated and modified during sessions of the House on August 17 and August 20.<SUP class=reference id=cite_ref-70>[71]</SUP> These debates revolved primarily around risk of "mal-administration of the government" using the "religiously scrupulous" clause to destroy the militia as Great Britain had attempted to destroy the militia at the commencement of the American Revolution. These concerns were addressed by modifying the final clause, and on August 24, the House sent the following version to the U.S. Senate:
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.
The next day, August 25, the Senate received the Amendment from the House and entered it into the Senate Journal. When the Amendment was transcribed, the semicolon in the religious exemption portion was changed to a comma by the Senate scribe:
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.<SUP class=reference id=cite_ref-71>
[72]</SUP>
By this time, the proposed right to keep and bear arms was in a separate amendment, instead of being in a single amendment together with other proposed rights such as the due process right. As a Representative explained, this change allowed each amendment to "be passed upon distinctly by the States."<SUP class=reference id=cite_ref-72>[73]</SUP>
On September 4, the Senate voted to change the language of the Second Amendment by removing the definition of militia, and striking the conscientious objector clause:
A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.<SUP class=reference id=cite_ref-73>
[74]</SUP>
The Senate returned to this Amendment for a final time on September 9. A proposal to insert the words "For the common defence" next to the words "Bear Arms" was defeated.<SUP class=reference id=cite_ref-74>[75]</SUP> The Senate then slightly modified the language and voted to return the Bill of Rights to the House. The final version passed by the Senate was:
A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.
The House voted on September 21, 1789 to accept the changes made by the Senate, but the Amendment as finally entered into the House journal contained the additional words "necessary to":
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.<SUP class=reference id=cite_ref-75>
[76]</SUP>
This version was transmitted to the states for ratification.
On December 15, 1791, the Virginia General Assembly ratified the Bill of Rights, thereby achieving the ratification of three-fourths of the states needed to add the Bill of Rights to the Constitution.
So after reading this the amendment was written to allow for the common people to bear arms for self defense.