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The Second Amendment reads: “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.” These words have generated considerable controversy as part of the broader debate over gun control. Proponents of stricter controls generally contend that the amendment was meant to protect the collective right of states to maintain militia units. Their opponents respond that the amendment was intended to protect an individual right, noting that in the eighteenth century the militia was composed of the entire free white male population, who were expected to muster bearing their own arms.

This lively debate notwithstanding, the Supreme Court has only considered Second Amendment claims in a handful of cases. One reason is that for much of American history there were few regulations concerning firearms ownership. The settlers of colonial America were heirs to the English tradition of distrust of standing armies and professional police forces as dangerous to individual liberty. The English tradition of relying on the armed yeomanry both to enforce laws and protect the realm from external enemies was reinforced in the colonial era. The need to defend settlements against Native Americans and the armies of other European powers led to the deputization of the entire white population. Colonial statutes required all white men, with few exceptions, to both keep arms and bear them in militia formations. The American Revolution strengthened the traditional suspicion of standing armies and reinforced the view that militias composed of armed citizenry were the best way to guarantee both security and liberty.

Like the rest of the Bill of Rights, the Second Amendment was an attempt to answer the objections of anti‐Federalists who charged that the new Constitution would be used to deprive the people of rights traditionally considered among the rights of Englishmen. Statements by the amendment's principal author, James Madison, indicate that he saw the amendment as protecting the arms of the population at large.

The antebellum era brought no Second Amendment cases before the Supreme Court. The few firearms regulations that existed were primarily statutes in the slave states prohibiting African‐Americans from possessing firearms. Some antebellum state statutes prohibited the carrying of concealed weapons, but those laws were not the subject of Supreme Court scrutiny. The Court's holding in Barron v. Baltimore (1833) that the Bill of Rights only limited federal action effectively precluded Supreme Court review of state restrictions. Although the Court did not rule on the amendment before the Civil War, statements by Justice Joseph Story and Chief Justice Roger Taney expressed the then‐prevailing view. Story in his Commentaries on the Constitution of the United States (1833) offered the opinion that the right to keep and bear arms provided a “strong moral check against the usurpation and arbitrary power of rulers” (pp. 746–747). Taney in Dred Scott v. Sandford (1857) listed the right to own and carry arms as one of the rights of citizenship.

The aftermath of the Civil War brought a new dimension to the history of the amendment. The black Codes, enacted in Southern states immediately after the war, limited the civil rights of the newly freed slaves, including the right to own firearms. These codes helped spur the passage of the Fourteenth Amendment. A number of the framers expressed the view that the new amendment would require the states to honor the Bill of Rights, including the Second Amendment.

Despite this, the Court continued to adhere to the holding in Barron. The two principal postbellum cases involving Second Amendment claims, United States v. Cruikshank (1876) and Presser v. Illinois (1886), tell us at least as much about the Court's early reaction to the Fourteenth Amendment as they do about the Second. In Cruikshank, the Court, in an opinion authored by Justice Joseph P. *Bradley, held that the Second and Fourteenth Amendments did not give Congress the authority to legislate against private interference with the right to bear arms. The Court in Presser declared that the Second Amendment only protected individuals from federal not state infringement.

The Court thus entered the twentieth century adhering to the view that the Second Amendment only limited federal power. That view, coupled with the virtual absence of federal firearms regulation, left the Court with little to say on the topic. That changed with the violence generated during Prohibition. Responding to the increase in organized crime in the 1920s and 1930s, Congress passed the National Firearms Act of 1934. The act, which provided for taxation and registration of automatic weapons and sawed‐off shotguns, generated the principal Second Amendment case, United States v. Miller (1939). The unanimous opinion, authored by Justice James C. McReynolds, noted that the Second Amendment did not protect the right of citizens to own firearms that were not ordinary militia weapons. As the defendant in Miller had been charged with possession of an unregistered sawed‐off shotgun, the Court noted that it had no evidence that such a weapon constituted ordinary militia equipment.

Since Miller, the Supreme Court has not directly addressed the issue. Lower federal courts have upheld firearms regulations against Second Amendment claims, sometimes applying the collective rights theory, at other times on the grounds that the amendment does not apply to the states. The Court has not reviewed these decisions. In the 1970s and 1980s a number of justices expressed support for the collective rights view in out‐of‐court statements or in dicta. More recently, Chief Justice William Rehnquist, and Justices Antonin Scalia and Clarence Thomas, also in dicta or in out‐of‐court statements, appear to have endorsed individual rights readings of the amendment. The right to possess arms has also been listed among the rights of American people in some privacy cases. None of these statements can be viewed as definitive evidence of the Court's position on the issue.

Despite the Court's institutional reticence, a vigorous debate rages in other forums. Since the 1980s the amendment has been the subject of a growing body of literature in law and history journals. This debate has influenced jurists in some lower federal courts. In United States v. Emerson (2001), the Fifth Circuit recognized the Second Amendment as an individual right while sustaining a federal statute restricting firearms possession in cases involving domestic violence. In 2002 Attorney General John Ashcroft stated his view that the amendment protected an individual right while leaving broad room for firearms regulation.

It is not clear how much longer the Court can maintain its silence. Although overall restrictions on firearms ownership remain relatively slight, there are a number of fairly restrictive jurisdictions. The battle over gun control has also become a perennial feature of American political life. Widespread firearms ownership coupled with strong demands for stricter gun controls ensures that the debate over the Second Amendment will remain lively; it is a debate that the Supreme Court will ultimately be forced to enter.

Bibliography

  • R. J. Cottrol and R. T. Diamond, The Second Amendment: Toward an Afro‐Americanist Reconsideration, Georgetown Law Journal 80 (1991): 309–361.
  • D. B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, Michigan Law Review 82 (1983): 204–273.
  • S. L. Levinson, The Embarrassing Second Amendment, Yale Law Journal 99 (1989): 637–659.
  • J. L. Malcolm, To Keep and Bear Arms: The Origins of an Anglo‐American Right (1994)

— Robert J. Cottrol

 
 
Law Encyclopedia: Second Amendment
This entry contains information applicable to United States law only.

The Second Amendment to the U.S. Constitution reads:

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 subject matter and unusual phrasing of this amendment have led to much controversy and analysis, especially in the last half of the twentieth century. Nevertheless, the meaning and scope of the amendment have long been decided by the Supreme Court.

Firearms played an important part in the colonization of America. In the seventeenth and eighteenth centuries, European colonists relied heavily on firearms to take land away from Native Americans and repel attacks by Native Americans and Europeans. Around the time of the Revolutionary War, male citizens were required to own firearms for fighting against the British forces. Firearms were also used in hunting.

In June 1776, one month before the signing of the Declaration of Independence, Virginia became the first colony to adopt a state constitution. In this document, the state of Virginia pronounced that "a well regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State." After the colonies declared their independence from England, other states began to include the right to bear arms in their constitution. Pennsylvania, for example, declared 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.

The wording of clauses about bearing arms in late-eighteenth-century state constitutions varied. Some states asserted that bearing arms was a "right" of the people, whereas others called it a "duty" of every able-bodied man in the defense of society.

Pennsylvania was not alone in its express discouragement of a standing (professional) army. Many of the Framers of the U.S. Constitution rejected standing armies, preferring instead the model of a citizen army, equipped with weapons and prepared for defense. According to Framers such as Elbridge Gerry, of Massachusetts, and George Mason, of Virginia, a standing army was susceptible to tyrannical use by a power-hungry government.

At the first session of Congress in March 1789, the Second Amendment was submitted as a counterweight to the federal powers of Congress and the president. According to constitutional theorists, the Framers who feared a central government extracted the amendment as a compromise from those in favor of centralized authority over the states. The Revolutionary War had, after all, been fought in large part by a citizen army against the standing armies of England.

The precise wording of the amendment was changed two times before the U.S. Senate finally cast it in its present form. As with many of the amendments, the exact wording proved critical to its interpretation.

In 1791 a majority of states ratified the Bill of Rights, which included the Second Amendment. In its final form, the amendment presented a challenge to interpreters. It was the only amendment with an opening clause that appeared to state its purpose. The amendment even had defective punctuation; the comma before shall seemed grammatically unnecessary.

Legal scholars do not agree about this comma. Some have argued that it was intentional, and that it was intended to make militia the subject of the sentence. According to these theorists, the operative words of the amendment are "[a] well regulated Militia … shall not be infringed." Others have argued that the comma was a mistake, and that the operative words of the sentence are "the right of the people to . . . bear arms . . . shall not be infringed." Under this reading, the first part of the sentence is the rationale for the absolute, personal right of the people to own firearms. Indeed, the historical backdrop — highlighted by a general disdain for professional armies— would seem to support this theory.

Some observers argue further that the Second Amendment grants the right of insurrection. According to these theorists, the Second Amendment was designed to allow citizens to rebel against the government. Thomas Jefferson is quoted as saying that "a little rebellion every now and then is a good thing."

The Supreme Court makes the ultimate determination of the Constitution's meaning, and it has defined the amendment as simply granting to the states the right to maintain a militia separate from federally controlled militias. This interpretation first came in United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1875). In Cruikshank, approximately one hundred persons were tried jointly in a Louisiana federal court with felonies in connection with an April 13, 1873, assault on two African American men. One of the criminal counts charged that the mob intended to hinder the right of the two men to bear arms. The defendants were convicted by a jury, but the circuit court arrested the judgment, effectively overturning the verdict. In affirming that decision, the Supreme Court declared that "the second amendment means no more than that [the right to bear arms] shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government."

In Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886), Herman Presser was charged in Illinois state court with parading and drilling an unauthorized militia in the streets of Chicago in December 1879, in violation of certain sections of the Illinois Military Code. One of the sections in question prohibited the organization, drilling, operation, and parading of militias other than U.S. troops or the regular organized volunteer militia of the state. Presser was tried by the judge, convicted, and ordered to pay a fine of $10.

On appeal to the U.S. Supreme Court, Presser argued, in part, that the charges violated his Second Amendment right to bear arms. The Court disagreed and upheld Presser's conviction. The Court cited Cruikshank for the proposition that the Second Amendment means only that the federal government may not infringe on the right of states to form their own militias. This meant that the Illinois state law forbidding citizen militias was not unconstitutional. However, in its opinion, the Court in Presser delivered a reading of the Second Amendment that seemed to suggest an absolute right of persons to bear arms: "It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States," and "states cannot . . . prohibit the people from keeping and bearing arms."

Despite this generous language, the Court refused to incorporate the Second Amendment into the Fourteenth Amendment. Under the first section of the Fourteenth Amendment, passed in 1868, states may not abridge the privileges and immunities of citizens of the United States. The privileges and immunities of citizens are listed in the Bill of Rights, of which the Second Amendment is part. Presser had argued that states may not, by virtue of the Fourteenth Amendment, abridge the right to bear arms. The Court refused to accept the argument that the right to bear arms is a personal right of the people. According to the Court, "The right to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship."

The Presser opinion is best understood in its historical context. The Northern states and the federal government had just fought the Civil War against Southern militias unauthorized by the federal government. After this ordeal, the Supreme Court was in no mood to accept an expansive right to bear arms. At the same time, the Court was sensitive to the subject of federal encroachment on states' rights.

Several decades later, the Supreme Court ignored the contradictory language in Presser and cemented a limited reading of the Second Amendment. In United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939), defendants Jack Miller and Frank Layton were charged in federal court with unlawful transportation of firearms in violation of certain sections of the National Firearms Act of June 26, 1934 (ch. 757, 48 Stat. 1236-1240 [26 U.S.C.A. § 1132 et seq.]). Specifically, Miller and Layton had transported shotguns with barrels less than eighteen inches long, without the registration required under the act.

The district court dismissed the indictment, holding that the act violated the Second Amendment. The United States appealed. The Supreme Court reversed the decision and sent the case back to the trial court. The Supreme Court stated that the Second Amendment was fashioned "to assure the continuation and render possible the effectiveness of . . . militia forces."

The Miller opinion confirmed the restrictive language of Presser and solidified a narrow reading of the Second Amendment. According to the Court in Miller, the Second Amendment does not guarantee the right to own a firearm unless the possession or use of the firearm has "a reasonable relationship to the preservation or efficiency of a well regulated militia."

The legislative measures that inspire most Second Amendment discussions are gun control laws. Since the mid-nineteenth century, state legislatures have been passing laws that infringe a perceived right to bear arms. Congress has also asserted the power to regulate firearms. No law regulating firearms has ever been struck down by the Supreme Court as a violation of the Second Amendment.

Historically, the academic community has largely ignored the Second Amendment. However, gun control laws have turned many laypersons into scholars of the Second Amendment's history. The arguments for a broader interpretation are many and varied. Most center on the original intent of the Framers. Some emphasize that the Second Amendment should be interpreted to grant an unconditional personal right to bear arms for defensive and sporting purposes. Others adhere to an insurrection theory, under which the Second Amendment not only grants the personal right to bear arms, it gives citizens the right to rebel against a government perceived as tyrannical.

In response to these arguments, supporters of the prevailing Second Amendment interpretation maintain that any right to bear arms should be secondary to concerns for public safety. They also point out that other provisions in the Constitution grant power to Congress to quell insurrections, thus contradicting the insurrection theory. Lastly, they argue that the Constitution should be interpreted in accordance with a changing society, and that the destructive capability of semiautomatic and automatic firearms was not envisioned by the Framers.

In response to the last argument, critics maintain that because such firearms exist, it should be legal to use them against violent criminals who are themselves wielding such weapons.

 
Wikipedia: Second Amendment to the United States Constitution
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Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, declares "a well regulated militia " as "being necessary to the security of a free State", and prohibits Congress or any other government agency from infringement of "the right of the people to keep and bear arms."

Text

The Second Amendment, as written by the Constitutional Convention of 1787, states:

“ 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 hand-written copy of the Bill of Rights which hangs in the National Archives had slightly different capitalization and punctuation inserted by William Lambert, the scribe who prepared it. This copy reads:

“ 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. ”

Both versions are commonly used in official US Government publications.

Precedents

The philosophy behind the Second Amendment began several hundred years before its creation, originating in England. The concept of citizens or "subjects" bearing arms dates back to at least the 12th century when King Henry II obligated all freemen to possess certain arms for defense. In the following century, King Henry III required every subject between the ages of fifteen and fifty to own a weapon other than a knife. This was of such importance that Crown officials gave periodic inspections to guarantee a properly armed townspeople. This was because England did not have a police force until 1829, and in the absence of a regular army it was the responsibility and duty of the subjects to keep watch and ward at night to confront and capture "suspicious persons". This remained relatively unchanged until 1671, when Parliament created a statute that drastically raised the property qualifications needed to possess firearms. In essence, this statute disarmed all but the very wealthy. In 1686, King James II banned without exception the Protestants' ability to possess firearms, even while Protestants constituted over 95% of the English subjects. Not until 1689, with the rise of William of Orange, did the Protestants possess firearms once again with the newly enacted law that reads, "That the Subjects which are Protestants may have Arms for their defence suitable to their Conditions, and as allowed by Law". The tradition of securing a military force through a duty of universal military obligation for all able-bodied males follows from the Elizabethan era militia in England.[1][2]

The English Declaration of Rights (1689) affirmed freedom for Protestants to "have arms for their defence suitable to their conditions and as allowed by law." When Colonists protested British efforts to disarm their militias in the early phases of the Revolution, colonists cited the Declaration of Rights, Blackstone's summary of the Declaration of Rights, their own militia laws, and Common Law rights to self-defense. While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the militia, there is no evidence that the British sought to restrict the traditional common law right of self-defense. Indeed, in his arguments on behalf of British troops in the Boston Massacre, John Adams invoked the common law of self-defense.[3]

Some have seen the Second Amendment as derivative of a common law right to keep and bear arms; Thomas B. McAffee & Michael J. Quinlan, writing in the North Carolina Law Review, March 1997, Page 781, have stated "... 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."[4]

Others perceive a distinction between the right to bear arms and the right to self-defense; Robert Spitzer has stated: "...the matter of personal or individual self-defense, whether from wild animals or modern-day predators, does not fall within, nor is it dependent on, the Second Amendment rubric. Nothing in the history, construction, or interpretation of the Amendment applies or infers such a protection. Rather, legal protection for personal self-defense arises from the British common law tradition and modern criminal law; not from constitutional law."[5] Heyman has similarly argued that the common law right of self defense was legally distinct from the right to bear arms.[6]

The potential connection between the right of self defense and the new constitutional protection of a right to keep and bear arms contained in the Second Amendment depends on the distinction whether 'keep and bear arms' is synonymous more broadly with the right of individual self defense or does 'keep and bear arms' pertain more narrowly towards use of arms in a military context, or, in the case of the Common Law while still under the British, in service of the king and country. This distinction was not subject to serious judicial notice until the first gun control laws were passed in the Jacksonian era. Judges in the nineteenth century split over how to interpret this connection; some saw the Common Law right and the protection of a right to keep and bear arms contained in the Second Amendment as identical; others viewed these as being legally distinct. Texts from the era of the Second Amendment are largely silent on this important question.

Origin

In 1786, a decade after the Declaration of Independence was signed, the United States existed as a loose national government under the Articles of Confederation. This confederation was perceived to have several weaknesses, among which was the inability to mount a Federal military response to an armed uprising in western Massachusetts known as Shays' Rebellion.

In 1787, to address these weaknesses, the Philadelphia Convention was convened with the charter of amending the Articles. When the convention concluded with a proposed Constitution, those who debated the ratification of the Constitution divided into two camps; the Federalists (who supported ratification of the Constitution) and the Anti-Federalists (who opposed it).

Among their objections to the Constitution, anti-Federalists feared creation of a standing army not under civilian control that could eventually endanger democracy and civil liberties as had happened recently in the American Colonies and Europe.[7] Although the anti-Federalists were ultimately unsuccessful at blocking ratification of the Constitution, through the Massachusetts Compromise they laid the groundwork to ensure that a Bill of Rights would be drafted, which would provide constitutional guarantees against encroachment by the government of certain rights.

The Federalists on the other hand held that a Bill of Rights was unnecessary, particularly since the Federal Government could never raise a standard army powerful enough to overcome the militia. Leading Federalist James Madison wrote:

Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.[8]

Similarly, Federalist Noah Webster wrote:

Tyranny is the exercise of some power over a man, which is not warranted by law, or necessary for the public safety. A people can never be deprived of their liberties, while they retain in their own hands, a power sufficient to any other power in the state.[9]

One example given by Webster of a "power" that the people could resist was that of a standing army:

Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.[8]

The controversy of a standing army for the United States existed in context of the Continental Forces that had won the American Revolutionary War which consisted of both the standing Continental Army created by the Continental Congress and of State and Militia Units. In opposition, the British Forces consisted of a mixture of the standing British Army, Loyalist Militia, and Hessian mercenaries.

Federalists, on the other hand, believed that federal government must be trusted and that the army and the militias "ought certainly to be under the regulation and at the disposal" of federal government. This belief was fundamentally stated by Alexander Hamilton:

The power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.[10]

The origin of the Second Amendment also occurred in context of an ongoing debate 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). These feelings can be seen in the "a force superior" quote of Noah Webster above, and in contrast, when John Adams wrote of his fears about Antifederalists in the ongoing revolution in France:

The State is in critical Circumstances, and have been brought into them by the Heat and Impatience of the People. If nothing will bring them to consideration, I fear they will suffer[11]

Reaching a compromise between these widely disparate positions was not easy, but nonetheless, a compromise was negotiated with the result being the Second Amendment.

Creation

Conflict and compromise

In the early months of 1789, the United States was engaged in an ideological conflict between Federalists who favored a stronger central government and Antifederalists skeptical of a strong central government. This conflict was accentuated by the recent news of a brewing, potentially violent, revolution in France with similar Antifederal tensions. Also, the conflict in beliefs continued between northern states, that generally favored Federalist values, and southern states that tended to share Antifederalist values.

Intense concerns gripped the country of the potential for success or failure of these newly-formed United States. The first presidential inauguration of George Washington had occurred just a few short weeks earlier. A spirited public concern and debate from this time is captured in numerous heated newspaper articles, personal diaries and letters from this pivotal time in United States history.

Antifederalists supported the 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.

The original text of what was to become the Second Amendment, as brought to the floor to the first session of the first congress of the U.S. House of Representatives 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.[12]

The Bill of Rights that Madison introduced on June 8 were not numbered amendments intended to be added at the end of the Constitution. The Rights instead were to be inserted into the existing Constitution. The right to keep and bear arms was to be inserted in Article 1, section 8 that specifies Congress's power over the militia. The sentence that later became the Second Amendment was to be inserted in the First Article, Section Nine, between clauses 3 and 4, following the prohibition on suspension of habeas corpus, bills of attainder, and ex post facto laws, all individual civil rights asserted by individuals as a defense against government action.[12] (Additionally, these provisions can all be interpreted as limits on congressional power, a view that has been advanced by supporters of the individual rights view of the Amendment.[13]) 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, however, 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,[14] and the Bill of Rights entered committee for review. No official records were kept of the proceedings of the committee, but on July 28, the committee returned to the House a reworded version of the Second Amendment.[15] 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.[16]

The Second Amendment was debated and modified during sessions of the House on August 17 and August 20.[17] 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.[18]

On September 4, the Senate voted to change significantly 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[19]

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.[20] 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 to accept the changes made by the Senate, however 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.[21]

This version was transmitted to the states for ratification.

Historical sources

The House Journal[22] and Senate Journal[23] are the official records kept by the legislature at the time debate was taking place. Because these journals are often sparse, they are frequently augmented by the Annals of Congress[24] (AoC) which were compiled forty to seventy years after the debates, using the best sources which could then be found, which at the time was primarily newspaper reports.

The Debates in the Several State Conventions, on the Adoption of the Federal Constitution[25] by Jonathan Elliot (1836), contains additional information concerning the desire by Antifederalists to amend the Constitution, and the intent of the amendments that were negotiated and adopted attempting to answer their concerns.

Commas

There is some question as to whether the Second Amendment contains a comma after the word "militia". In the twentieth century, it became unusual to separate a subject and verb or verb and object with a comma. In the eighteenth and nineteenth centuries, commas were used to indicate rhetorical pauses; in the twentieth century, commas were generally used to differentiate between restrictive and nonrestrictive modifiers. This practice continues in the early twenty-first century.

On March 4, 1789, the completed, hand-written Bill of Rights was approved by the first Federal Congress, and attested to (signed) by Frederick Augustus Muhlenberg, the Speaker of the House of Representatives and John Adams, the Vice-President of the United States and President of the Senate, as well as the Clerk of the House and the Secretary of the Senate.[26]. In this original signed document, now held by the National Archives, the commas were present. Some of the later type-cast printings of the Constitution, such as those in the National Annals, delete the commas from the Second Amendment.

The U.S. Government is inconsistent in the use of the comma in publications. The Statutes at Large (the official permanent record of all laws enacted) does not include the comma.[27] The Government Printing Office (GPO) has produced versions both with and without this comma.

A second comma, after the word "State", is generally seen in printed versions. It is not controversial.

The third comma, after the phrase "to keep and bear arms", is also an example of changing customs. It is generally seen in contemporary reprints of the Amendment, but it did not appear if the Amendment had been drafted and enacted recently.

Ratification

On December 15, 1791, the Virginia legislature ratified the Bill of Rights, rounding out the requisite three-fourths of the states needed to make the Amendments part of the Constitution.

Early commentary

The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker, also known as The American Blackstone. He authored a set of law books in 1803 that annotated Sir William Blackstone's Commentaries on the Laws of England (discussed at length later, under Colonial Rights), for American use, and that formed, in many cases, the sole legal written works read by many early American attorneys.[28] Tucker, the leading Jeffersonian constitutional theorist, was widely read, even by those who rejected his interpretation of the Constitution.

In two footnotes, he wrote: "[fn40] The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government." "[fn41] Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England. The commentator himself informs us, Vol. II, p. 412, "that the prevention of popular insurrections and resistance to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws."[28] Blackstone discussed the right of individual self defense in a separate section of his treatise on the common law of crimes. Tucker's annotations for that latter section made no mention of the Second Amendment but cited the standard works of English jurists such as Hawkins.[29]

Further, Tucker writes of the English Bill of Rights:

The bill of rights, 1 W. and M, says Mr. Blackstone, (Vol. 1 p. 143), secures to the subjects of England the right of having arms for their defence, suitable to their condition and degree. In the construction of these game laws it seems to be held, that no person who is not qualified according to law to kill game, hath any right to keep a gun in his house. Now, as no person, (except the game-keeper of a lord or lady of a manor) is admitted to be qualified to kill game, unless he has 100l. per annum, &c. it follows that no others can keep a gun for their defence; so that the whole nation are completely disarmed, and left at the mercy of the government, under the pretext of preserving the breed of hares and partridges, for the exclusive use of the independent country gentlemen. In America we may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.[28]

Tucker also wrote of the British,

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.[28]

Another one of the most important early commentaries on the Second Amendment was the 1833 book Commentaries on the U.S. Constitution authored by Associate Justice of the Supreme Court Joseph Story. Both sides in the modern gun debate have excerpted parts of this commentary to support their particular points of view:

§ 1890 of the book describes the Second Amendment:

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 usurpation and arbitrary power of rulers; and 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 burthens, 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.[30]

§1202 of the book describes Power over the Militia and analyzes the origins of the Second Amendment. Justice Story clearly viewed the original meaning of the Amendment as a concession to moderate Anti-Federalists who feared federal control over the militia:

It is difficult fully to comprehend the influence of such objections, urged with much apparent sincerity and earnestness at such an eventful period. The answers then given seem to have been in their structure and reasoning satisfactory and conclusive. But the amendments proposed to the constitution (some of which have been since adopted) show, that the objections were extensively felt, and sedulously cherished. The power of congress over the militia (it was urged) was limited, and concurrent with that of the states. The right of governing them was confined to the single case of their being in the actual service of the United States, in some of the cases pointed out in the constitution. It was then, and then only, that they could be subjected by the general government to martial law. If congress did not choose to arm, organize, or discipline the militia, there would be an inherent right in the states to do it. All, that the constitution intended, was, to give a power to congress to ensure uniformity, and thereby efficiency. But, if congress refused, or neglected to perform the duty, the states had a perfect concurrent right, and might act upon it to the utmost extent of sovereignty. As little pretence was there to say, that congress possessed the exclusive power to suppress insurrections and repel invasions. Their power was merely competent to reach these objects; but did not, and could not, in regard to the militia, supersede the ordinary rights of the states. It was, indeed, made a duty of congress to provide for such cases; but this did not exclude the co-operation of the states. The idea of congress inflicting severe and ignominious punishments upon the militia in times of peace was absurd. It presupposed, that the representatives had an interest, and would intentionally take measures to oppress them, and alienate their affections. The appointment of the officers of the militia was exclusively in the states; and how could it be presumed, that such men would ever consent to the destruction of the rights or privileges of their fellow-citizens. The power to discipline and train the militia, except when in the actual service of the United States, was also exclusively vested in the states; and under such circumstances, it was secure against any serious abuses. It was added, that any project of disciplining the whole militia of the United States would be so utterly impracticable and mischievous, that it would probably never be attempted. The most, that could be done, would be to organize and discipline select corps; and these for all general purposes, either of the states, or of the Union, would be found to combine all, that was useful or desirable in militia services.[31]

Historical interpretations

During its first ten or twelve decades, the intended meaning of the Second Amendment, and how the Amendment applied, drew less interest than it does in modern times. The vast majority of regulation was done by states, and the first case law on the right to bear arms dealt with state provisions, not the Second Amendment. The notable exception to this general rule was Houston v. Moore, (1820),[32] where the U.S. Supreme Court mentioned the Second Amendment in an aside, but Justice Story "misidentified"[33] it as the 5th Amendment. The Second Amendment did not attract serious judicial attention again until the Reconstruction era case of Cruikshank.

In Dred Scott v. Sandford, 60 U.S. 393 (1856) (the "Dred Scott Decision"),[34] the Supreme Court indicated that: "It would give to persons of the negro race, who were recognised as citizens in any one State of the Union . . .the full liberty . . .to keep and carry arms wherever they went." This may indicate that the right to carry arms was considered to be universal for citizens of the United States, though it is not clear that the terms to 'carry arms' and to 'bear arms' were considered synonymous. The term "to keep arms" may have been considered distinctly different than to "carry arms". Both actions may have been considered to be protected for "citizens in any one State of the Union". These comments were obiter dicta (non-binding).

The Dred Scott Decision contains additional significant wording.

"More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went." [emphasis added]

When the Fourteenth Amendment was drafted, Representative John A. Bingham of Ohio used the Court's own phrase "privileges and immunities of citizens" to include the first Eight Amendments of the Bill of Rights under its protection and guard these rights against state legislation.[35]

The debate in the Congress on the Fourteenth Amendment after the Civil War also concentrated on what the Southern States were doing to harm the newly freed slaves. One particular concern was the disarming of former slaves.

Akhil Reed Amar notes in the Yale Law Journal, April 1992, Page 1193, the basis of Common Law for the first ten amendments of the U.S. Constitution, which would include the Second Amendment, "following John Randolph Tucker's famous oral argument in the 1887 Chicago anarchist Haymarket Riot case, Spies v. Illinois":

Though originally the first ten Amendments were adopted as limitations on Federal power, yet in so far as they secure and recognize fundamental rights—common law rights—of the man, they make them privileges and immunities of the man as citizen of the United States...[36]

Modern interpretations

During the last two decades, the intended meaning of the Second Amendment, and how the Amendment applies in the twenty-first century, is one of the most frequently debated topics in American politics. The reason may stem in part from the perceived encroachments on, or enhancements of, individual rights to arms, amidst the increased prominence of gun control positions in modern politics.

The modern Second Amendment debate centers on questions such as:

  • Who does the Amendment mean by "the People"?
  • Why does the Amendment protect the right to 'keep and bear arms', and not protect just the right to 'bear arms'?
  • Does "bear arms" or "keep and bear arms" mean the same now as it did in 1789?
  • Is there significance that the Amendment is constructed of two clauses?
  • Is there significance that the phrase "defense of himself/themselves and the State" was included in some state constitutions at the time but not included in the Federal Second Amendment?

In addition, the debate often involves discussion focused on more precise details around the word "militia", such as:

  • Who or what does the Amendment mean by the "militia"?
  • What relationship does "militia" today have with "militia" in 1789?
  • What is meant by "well regulated", relative to "militia"?
  • Does the mention of "militia" in the Second Amendment mean that maintaining viable militia is the 'obvious purpose' of the Second Amendment?

It also often involves topics on differences in historical meanings and thoughts such as:

  • What does "shall not be infringed" mean?

It also expands to include discussions on the impact among states, such as:

  • Does the Amendment prohibit states from regulating arms?
  • Does the Amendment permit some states to deviate from interpretations of the Amendment as taken by other states?

Constitutional analysis and rhetorical structures

"The Embarrassing Second Amendment" by Sanford Levinson[37] indicates the six approaches to constitutional analysis outlined in Constitutional Fate by Philip Bobbitt:

  1. textual argument — the unadorned language of the text
  2. historical argument — the historical background of the vision being considered, whether the general history (such as the American Revolution) or specific appeals to the so-called intentions of Founding Fathers of the United States
  3. structural argument — inferences from the particular structures established by the Constitution, including the tripartite division of the US federal government; the separate existence of both state and nation as political entities; and the structured role of citizens within the political order
  4. doctrinal argument — prior cases decided by the Supreme Court
  5. prudential argument — consequences of adopting a proferred decision in any given case
  6. ethical argument — reliance on the overall ethos of limited government as centrally constituting American political culture

The legal grammar of constitutional argument comprise these six approaches — or "modalities", as Bobbitt terms them. These approaches are the rhetorical structures within which "law-talk" as a recognizable form of conversation is carried on in analysis of United States constitutional law:

"The People"

Regarding the meaning of "the People", the U.S. Supreme Court stated in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990),

"the people" seems to be a term of art used in select parts of the Constitution and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.[38]

Applied to the first and fourth amendments, other clauses enumerating rights to "the people", this would imply the right applies to all members of this class and in some cases individually. The right of free speech, for instance, applies to all those within the class of those attached to the national community.

As Richard Primus and Jack Rakove have noted, the right of the people to assemble was generally understood not to refer to individuals in isolation. The Pennsylvania Declaration of Rights affirmed a right of the people "to regulate their internal police", another formulation in which this right was used in a more collective sense.

However, as noted earlier by the Supreme Court in 1886, the Second Amendment is not restricted to American citizens. In Presser v. Illinois (1886) before the high court, Presser made an attempt to link the Second Amendment as being a privilege or immunity of citizens of the United States. This attempt was found lacking when the Supreme Court stated

The plaintiff in error [Presser] next insists that the sections of the Military Code of Illinois under which he was indicted are an invasion of that clause of the first section of the fourteenth amendment to the constitution of the United States which declares: 'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.'

Additionally, the Supreme Court stated in Presser v. Illinois,

The constitution and laws of the United States will be searched in vain for any support to the view that these [Second Amendment] rights are privileges and immunities of citizens of the United States...

Hence, because the Second Amendment did not apply solely to citizens of the United States, "the people" mentioned in the Second Amendment are not necessarily American citizens but are instead simply "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community".

"To keep and bear arms"

The legal meanings of the terms "keep" and "bear" are integral to the debate and much of the amendment jurisprudence relies on such interpretations.

Relative to the "bear arms" meanings, an extensive study found "...that the overwhelming preponderance of usage of 300 examples of the 'bear arms' expression in public discourse in early America was in an unambiguous, explicitly military context in a figurative (and euphemistic) sense to stand for military service".[39] Further, the Oxford English Dictionary on Historical Principles declares that a meaning of "to bear arms" is a figurative usage meaning "to serve as a soldier, do military service, fight".

The United States Declaration of Independence uses the expression "bear arms" in the sense of military duty on a ship.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country.

In Amyette v. State the Tennessee Supreme Court stated in 1840 that the term "bear arms" "has a military sense, and no other" and further stated "A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane."[40]

The term "keep" has also been subject to scrutiny. In the recent case Parker v. District of Columbia the court analyzed two different interpretations, one claiming "keep" meant to upkeep the weapons, and another claiming "keep" meant personal retention.

From the opinion: "Turning again to Dr. Johnson's Dictionary , we see the first three definitions of keep are "to retain; not to lose," "to have custody," "to preserve; not to let go." Johnson, supra , at 540. We think "keep" is a straightforward term that implies ownership or possession of a functional weapon by an individual for private use."[41]

In a released Senate report on the Right to Keep and Bear Arms, Senator Orrin G. Hatch, chairman, U.S. Senate Judiciary Committee, Subcommittee on the Constitution, and well known gun rights proponent, states

They argue that the Second Amendment's words "right of the people" mean "a right of the state" — apparently overlooking the impact of those same words when used in the First and Fourth Amendments. The "right of the people" to assemble or to be free from unreasonable searches and seizures is not contested as an individual guarantee. Still they ignore consistency and claim that the right to "bear arms" relates only to military uses. This not only violates a consistent constitutional reading of "right of the people" but also ignores that the second amendment protects a right to "keep" arms.

"When our ancestors forged a land "conceived in liberty", they did so with musket and rifle. When they reacted to attempts to dissolve their free institutions, and established their identity as a free nation, they did so as a nation of armed freemen. When they sought to record forever a guarantee of their rights, they devoted one full amendment out of ten to nothing but the protection of their right to keep and bear arms against governmental interference. Under my chairmanship the Subcommittee on the Constitution will concern itself with a proper recognition of, and respect for, this right most valued by free men."[42]

For a more recent judicial interpretation, the United States Court of Appeals for the Fifth Circuit stated in 2001 that

there are numerous instances of the phrase "bear arms" being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the "people" [or "citizen" or "citizens"] "to bear arms in defense of themselves [or "himself"] and the state", or equivalent words, thus indisputably reflecting that under common usage "bear arms" was in no sense restricted to bearing arms in military service.[43]

Several scholars have challenged the 5th Circuit's history.[44] Several of the earliest state constitutions used variants of the Pennsylvania (September 28, 1776) model, affirming a right to "bear arms in defense of themselves and the state." Thus, North Carolina's declaration of rights (December 18, 1776) stated 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."[45] Less than two decades later (1796), Tennessee affirmed that "The freemen of this State have a right to keep and bear arms for their common defence."[46]

According to these same scholars, a more individualistic formulation emerged only during the Jacksonian era.[44] Alabama's constitution of 1819 declared that "that every citizen has a right to bear arms in defence of himself and the state." In Buzzard v. State (1842), the Arkansas high court took notice of these two different constitutional models of arms bearing. More recently, Stanford Law professor Robert Weissberg has noted that the shift in the language of arms bearing provisions challenges the historical accounts put forth by supporters of the collective rights and individual rights accounts.[47]

Models of interpretation

Modern legal theorists have identified three models used to interpret the Second Amendment. Professor Michael Dorf has described these models as follows:[48]


“ The first and second both emphasize the preamble, or "purpose" clause, of the Amendment — the words "A well regulated Militia, being necessary to the security of a free State." The third does not. The first model holds that the right to keep and bear arms belongs to the people collectively rather than to individuals, because the right's only purpose is to enable states to maintain a militia; it is not for individuals' benefit. The second model is similar to the first. It holds that the right to keep and bear arms exists only for individuals actively serving in the militia, and then only pursuant to such regulations as may be prescribed. Under either of the first two models, a private citizen has no right to possess a firearm for personal use. But the court rejected these two models in favor of a third, the individual rights model. Under this third model, the Second Amendment protects a right of individuals to own and possess firearms, much as the First Amendment protects a right of individuals to engage in free speech. ”

Until recently United States federal courts have consistently interpreted the Second Amendment per a collective right model.[49] Two recent exceptions to this trend have occurred in federal circuit courts: The 2001 Fifth Circuit court ruling United States v. Emerson and the D.C. Circuit court 2007 ruling Parker v. District of Columbia, both of which found per an individual rights model. Presently, nine of the federal circuit courts support a collective rights model, two of the federal circuit courts an individual rights model, and the Supreme Court and one federal circuit court have not addressed the question.[50]

Early commentary about the right to bear arms in state courts

The Second Amendment of the United States Constitution is a Federal provision. Each of the fifty states also has its own state constitution addressing their specific state. Forty-four states have chosen to embody explicitly a right to bear arms into their state's constitution,[51] and six states have chosen explicitly not to do so.

Of the forty-four states that have chosen to embody explicitly a right to bear arms into their state's constitution, approximately thirty-one have explicitly chosen to include the right to arms for "individual right", "defense of self", "defense of home" or similarly worded reasons. Approximately thirteen states, as with the Federal Constitution, did not choose to include explicitly "individual", "self" or "home" wording associated with a right to bear arms for their specific state.

Of the forty-four states, approximately twenty-eight have explicitly chosen to include the right to bear arms for "security of a free state", "defense of state", "common defense" or similarly worded reasons, as with the Federal Constitution. Approximately sixteen states did not choose to include explicitly "free state", "defense of state" or "common defense" wording for their specific state. Whether the inclusion of these kinds of wording in state constitutions has relevance to the issue of whether implicit "individual" rights exist, or whether such rights (if any) are implicitly protected by the states' constitutions or by the Federal Constitution's Second Amendment, remains a matter of dispute.

Regarding the state constitutional rights to bear arms, the state courts have addressed the meaning of their specific state rights under their specific state's constitution. Two different models have emerged in state jurisprudence.

In Bliss v. Commonwealth (1822, KY),[52] which evaluated the right to bear arms in defence of themselves and the state pursuant to Section 28 of the Second Constitution of Kentucky (1799), the right to bear arms in defense of themselves and the state was interpreted as an individual right, for the case of a concealed sword cane. As stated by the Kentucky High Court, "But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution."[52] The "constitution" mentioned in this quote refers to Kentucky's Constitution.[42] As mentioned in this quotation "as it existed at the adoption of the constitution" would have had to have been the pre-existing right in force when Kentucky's First Constitution was drawn in 1799.[53]

The case prompted outrage in the Kentucky House, all the while recognizing that Section 23 of the Second Constitution of Kentucky (1799), which stated "That the right of the citizens to bear arms in defence of themselves and the State shall not be questioned."[54] did guarantee individuals the right to bear arms in defense of themselves and the state.

The result was that the law of the Commonwealth of Kentucky was eventually over-turned by constitutional amendment with Section 26 in Kentucky's Third Constitution (1850), banning the future carrying of concealed weapons, while still asserting that the bearing of arms in defense of themselves and the state was an individual and collective right in the Commonwealth of Kentucky. This recognition, has remained to the present day in the Commonwealth of Kentucky's Fourth Constitution enacted in 1891, in Section 1, Article 7, that guarantees "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." As noted in the Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in the 1980’s, vol. 10, no. 1, 1982, p. 155, "The first state court decision resulting from the "right to bear arms" issue was Bliss v. Commonwealth. The court held that "the right of citizens to bear arms in defense of themselves and the State must be preserved entire, . . ." This holding was unique because it stated that the right to bear arms is absolute and unqualified. In contrast to this, all states currently regulate the possession and use of firearms to some extent."