Unlike armies and navies, which Congress is given the power to create (to raise Armies; to provide a Navy, Art. It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. The judgment in the case upheld against a Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. 1, 24 (1820), this Court held that States have concurrent power over the militia, at least where not pre-empted by Congress. Private citizens have the right under the Second Amendment to possess an ordinary type of weapon and use it for lawful, historically established situations such as self-defense in a home, even when there is no relationship to a local militia. Second Amendment would be nonsensical if it read, A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed. That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence. The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) For example, Representative Butler said of the Act: Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to keep and bear arms, and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same. H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. @Iv0K-O^my=w:@phEb|2i|V,@-(*`o1 Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. Second Amendment . Relationship between Prefatory Clause and Operative Clause. See also State v. Reid, 1 Ala. 612, 616617 (1840) (A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional). Had the Court believed that the That was also the interpretation of those state constitutional provisions adopted by pre-Civil War state courts.9 These provisions demonstrateagain, in the most analogous linguistic contextthat bear arms was not limited to the carrying of arms in a militia. District of Columbia v. Heller, 554 U.S. 570 (2008), was a case decided by the Supreme Court of the United States involving the constitutionality of a ban on handguns in the District of Columbia.The Court held that the Second Amendment guarantees an individual's right to possess a firearm unconnected with service in a militia, and to use that 1833). McDonald v 10 See J. Brydall, Privilegia Magnatud apud Anglos 14 (1704) (Privilege XXXIII) (In the 21st Year of King Edward the Third, a Proclamation Issued, that no Person should bear any Arms within London, and the Suburbs); J. District of Columbia V. Heller - Supreme Court - Dissenting Opinions Doc. Similar discussion attended the passage of the Civil Rights Act of 1871 and the Few laws in the history of our Nation have come close to the severe restriction of the Districts handgun ban. 17342. 70, 39th Cong., 1st Sess., 233, 236. Bond, A Compleat Guide to Justices of the Peace 43 (1707) (Sheriffs, and all other Officers in executing their Offices, and all other persons pursuing Hu[e] and Cry may lawfully bear arms); 1 An Abridgment of the Public Statutes in Force and Use Relative to Scotland (1755) (entry for Arms: And if any person above described shall have in his custody, use, or bear arms, being thereof convicted before one justice of peace, or other judge competent, summarily, he shall for the first offense forfeit all such arms (quoting 1 Geo. Second Amendment . We affirm the judgment of the Court of Appeals. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined. Concerning the See Malcolm 122134. 251 (1846), the Georgia Supreme Court construed the Although we agree with petitioners interpretive assumption that militia means the same thing in Article I and the We think that Millers ordinary military equipment language must be read in tandem with what comes after: [O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. 307 U. S., at 179. Justice Stevens points to a study by amici supposedly showing that the phrase bear arms was most frequently used in the military context. Second Amendment precursors, by contrast, referred to the individual English right already codified in two (and probably four) State constitutions. 1981 (pt. Our interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Petitioners and todays dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. Web07-290 DISTRICT OF COLUMBIA V. HELLER DECISION BELOW: 478 F. 3d 370 THE PETITION FOR A WRIT OF QPReport engaged in racial gerrymandering in Congressional District 35 when it simply adopted the district unchanged as part of the court-ordered remedial plan QPReport That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizens right to self-defense is strong evidence that that is how the founding generation conceived of the right. 1998)). See Tenn. This Court first held a law to violate the This could plausibly be read to support only a right to bear arms in a militiabut that is a peculiar way to make the point in a constitution that elsewhere repeatedly mentions the militia explicitly. 265 (1990) of Agriculture, 553 U. S. ___, ___ (2008) (slip op., at 910). The historical narrative that petitioners must endorse would thus treat the Federal It is not possible to read this as discussing anything other than an individual right unconnected to militia service. 59a. Gun control laws serve a compelling government interest in public safety, and historically cities and states were able to regulate the use of weapons by civilians. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,27 banning from the home the most preferred firearm in the nation to keep and use for protection of ones home and family, 478 F. 3d, at 400, would fail constitutional muster. And their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms. 20 Rawle, writing before our decision in Barron ex rel. The Court of Appeals directed the District Court to enter summary judgment for respondent. Moreover, the other instances of state in the Constitution are typically accompanied by modifiers making clear that the reference is to the several Stateseach state, several states, any state, that state, particular states, one state, no state. And the presence of the term foreign state in Article I and Article III shows that the word state did not have a single meaning in the Constitution. 13 The same applies to the conscientious-objector amendments proposed by Virginia and North Carolina, which said: That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead. See Veit 19; 4 J. Eliot, The Debates in the Several State Constitutions on the Adoption of the Federal Constitution 243, 244 (2d ed. In his famous Senate speech about the 1856 Bleeding Kansas conflict, Charles Sumner proclaimed: The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the forest. Nowhere else in the Constitution does a right attributed to the people refer to anything other than an individual right.6. Const., Art. See Veit 17, 20 (Virginia proposal); 4 J. Eliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 244, 245 (2d ed. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down. Second Amendment . See post, at 26. 29, pp. Second Amendment was interpreted from immediately after its ratification through the end of the 19th century. 840, 850, 852 (CC Pa. 1833), Baldwin, sitting as a circuit judge, cited both the 16 Contrary to Justice Stevens wholly unsupported assertion, post, at 17, there was no pre-existing right in English law to use weapons for certain military purposes or to use arms in an organized militia. I, 23 (1819), in 1 id., at 96, 98 (Every citizen has a right to bear arms in defence of himself and the State); Mo. The It was not meant to exempt from military service those who objected to going to war but had no scruples about personal gunfights. Of course, if the Amendment simply protect[ed] the right of the people of each of the several States to maintain a well-regulated militia, post, at 1 (Stevens, J., dissenting), it would have enormous and obvious bearing on the point. Second Amendment applies only to the Federal Government. And some of those few have been struck down. The traditional militia was formed from a pool of men bringing arms in common use at the time for lawful purposes like self-defense. Second Amendment ). The District Court dismissed the suit, but the D.C. Circuit reversed, holding that the Second Amendment protects an individuals right to possess firearms and that the citys total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right. Fourteenth Amendment unnecessary because [a]s citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense. Id., at 1073 (1866). See, e.g., 30 Journals of Continental Congress 349351 (J. Fitzpatrick ed. 1807). Ninth Amendment s. 7 See, e.g., 3 A Compleat Collection of State-Tryals 185 (1719) (Hath not every Subject power to keep Arms, as well as Servants in his House for defence of his Person?); T. Wood, A New Institute of the Imperial or Civil Law 282 (1730) (Those are guilty of publick Force, who keep Arms in their Houses, and make use of them otherwise than upon Journeys or Hunting, or for Sale ); A Collection of All the Acts of Assembly, Now in Force, in the Colony of Virginia 596 (1733) (Free Negros, Mulattos, or Indians, and Owners of Slaves, seated at Frontier Plantations, may obtain Licence from a Justice of Peace, for keeping Arms, &c.); J. Ayliffe, A New Pandect of Roman Civil Law 195 (1734) (Yet a Person might keep Arms in his House, or on his Estate, on the Account of Hunting, Navigation, Travelling, and on the Score of Selling them in the way of Trade or Commerce, or such Arms as accrued to him by way of Inheritance); J. Trusler, A Concise View of the Common Law and Statute Law of England 270 (1781) (if [papists] keep arms in their houses, such arms may be seized by a justice of the peace); Some Considerations on the Game Laws 54 (1796) (Who has been deprived by [the law] of keeping arms for his own defence? That Cooley understood the right not as connected to militia service, but as securing the militia by ensuring a populace familiar with arms, is made even clearer in his 1880 work, General Principles of Constitutional Law. 46, pp. Nothing so clearly demonstrates the weakness of Justice Stevens case. WebJustice Breyer filed a separate dissenting opinion, joined by the same dissenting Justices, which sought to demonstrate that, starting from the premise of an individual-rights view, See 72507.02.1. Many early 19th-century state cases indicated that the 12 Justice Stevens finds support for his legislative history inference from the recorded views of one Antifederalist member of the House. 1, 1783, ch. Justice Stevens places overwhelming reliance upon this Courts decision in United States v. Miller, Justice Stevens suggests that [t]here is not so much as a whisper in Storys explanation of the Post, at 8. 7Pet. Const., Art. 07290. 2228. As for the text of the Courts opinion itself, that discusses none of the history of the Those who believe that the But the grant of this privilege cannot be construed into the right in him who keeps a gun to destroy his neighbor. See 14, 18, 35, in 5 id., 2789, 2791, 2793. hQ87N{XW{ ?@*Rt?XvAn84{d7 S56K4}g5~Y~PT%"xKYleoxR,GjE)2rc See 2 Documentary Hist. We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? We therefore read Miller to say only that the That is wrong. (Only these types of weapons could have been used by the militia.) 333 U. S. 203 (1948) Second Amendment gave freed blacks the right to keep and bear arms was reflected in congressional discussion of the bill, with even an opponent of it saying that the founding generation were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense. Cong. 25Law & Hist. 455, It would be rather like saying He filled and kicked the bucket to mean He filled the bucket and died. Grotesque. Second Amendment s calling it a right (singular) rather than rights (plural). 482484 (1985) In sum, we hold that the Districts ban on handgun possession in the home violates the WebNo. It is true, as Justice Stevens says, that there was concern that the Federal Government would abolish the institution of the state militia. 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. Rather, it adopted primarily the popular and uncontroversial (though, in the Federalists view, unnecessary) individual-rights amendments. No. Second Amendment analogue was proposed (unsuccessfully) by Thomas Jefferson. Like most rights, the right secured by the We do not interpret constitutional rights that way. SYLLABUS (That is how, for example, our Declaration of Independence 28, used the phrase: He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country .) Every example given by petitioners amici for the idiomatic meaning of bear arms from the founding period either includes the preposition against or is not clearly idiomatic. Second Amendment ) point that the plaintiff was not a member of the state militia. I, 20 (1816), in 2 id., at 1057, 1059 (That the people have a right to bear arms for the defense of themselves and the State ); Miss. Pp. In the aftermath of the Civil War, there was an outpouring of discussion of the This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. The alternative to a standing army is a well-regulated militia, but this cannot exist unless the people are trained to bearing arms. 92 U. S. 542 The challenge was based on the contention that the prior felony conviction had been unconstitutional. Fourteenth Amendment , and the Right to Bear Arms, 18661876 (1998) (hereinafter Halbrook); Brief for Institute for Justice as Amicus Curiae. The very enumeration of the right takes out of the hands of governmenteven the Third Branch of Governmentthe power to decide on a case-by-case basis whether the right is really worth insisting upon. Apart from his challenge to the handgun ban and the trigger-lock requirement respondent asked the District Court to enjoin petitioners from enforcing the separate licensing requirement in such a manner as to forbid the carrying of a firearm within ones home or possessed land without a license. App. Second Amendment , whose preamble merely confirms and illustrates the importance of the militia. This decision may have less dramatic an impact than some observers initially expected. See, e.g., Centinel, Revived, No. Second Amendment , we believe that petitioners identify the wrong thing, namely, the organized militia. See Vt. 494 U. S. 259, See 2 Tuckers Blackstone 143. Those sources would have had little occasion to use it except in discussions about the standing army and the militia. VIII, 20 (1802), in 5 id., at 2901, 2911 (That the people have a right to bear arms for the defence of themselves and the State ); Ind. %\ _=_wY.SF-BOt6aU4-,nT_A4WhfKJ$8/Qf}&89 ycH0?l8"~A}$~Q.>sOKaTOjy/[J%Od]rf~ ?> )fa+t+z!p/,Z-^+X )+GI%=D$ Second Amendment conferred an individual right to keep and bear arms. Finally, two StatesTennessee and Maineused the common defence language of Massachusetts. 14 Faced with this clear historical usage, Justice Stevens resorts to the bizarre argument that because the word to is not included before bear (whereas it is included before petition in the It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. The Second amendment declares that it shall not be infringed .16. The heavily historical nature of the opinion does make it a useful window onto the reasoning of the current Justices, which can help others in crafting constitutional challenges. 1989) (hereinafter Oxford). (e)Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Courts conclusion. 715 (1999) Second Amendment in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves. (hereinafter Johnson). Our later decisions in Presser v. Illinois, Story explained that the English Bill of Rights had also included a right to bear arms, a right that, as we have discussed, had nothing to do with militia service. Fourth Amendment s, codified a pre-existing right. Declaration of Rights XV, in 6 id., at 3741 (That the people have a right to bear arms for the defence of themselves and the State); Ky. Justice Stevens presses Presser into service to support his view that the right to bear arms is limited to service in the militia by joining Pressers brief discussion of the Pp. They understood the right to enable individuals to defend themselves. 1961); Centinel, Revived, No. Post, at 22. 696, pp. SUPREME COURT OF THE UNITED STATES - LII / It fits perfectly, once one knows the history that the founding generation knew and that we have described above. Mr. Bash is an attorney in private practice in Austin, Texas. 329, 334 (B. Wright ed. And if one looks beyond legal sources, bear arms was frequently used in nonmilitary contexts. Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. 696, at 1218. See also State v. Langford, 10 N. C. 381, 383384 (1824); ONeill v. State, 139, Writing for the court in an 1825 libel case, Chief Justice Parker wrote: The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction. Commonwealth v. Blanding, 20 Mass. See The Federalist No. , in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the He criticized the majority for departing from settled Court jurisprudence on this issue and noted that many decisions in the lower courts would need to be repudiated or overturned. 1, XI (1777), in 6 id., at 3737, 3741 (searches and seizures); Pa. 17, New York Journal, Supp. ]Tz1n\aEi+g7+bGxM&abXY ^n:7ZSf$x M |q TCYbJhYAvcRM +@W7aw r1(OEKkg[r6G2/8{tmQe5%Y#~7.\Q)Qf!3T{$Bp7/5jvd3U^i@~h([1dZlQP)X[# fj;i}upv
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