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Brandon-
climber
The Granite State.
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Feb 18, 2018 - 12:46pm PT
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Was that post directed at me, John? If so, you’re way off the mark. Keep thinking really hard about stuff, though
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John M
climber
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Feb 18, 2018 - 12:48pm PT
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No Brandon.. I was talking to Jody..
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Norton
climber
The Wastelands
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Feb 18, 2018 - 01:19pm PT
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oh stop it
the Second amendment was written in a time of single shot black powder
the well regulated militia was added in to insure that citizens in each state would be trained and available, think today's National Guard, to band together with black power rifles in order to, again, defeat ENGLAND, if that need ever came up again
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EdwardT
Trad climber
Retired
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Feb 18, 2018 - 01:58pm PT
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Ban the production and sale of .223 Remington and 5.56×45mm NATO.
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EdwardT
Trad climber
Retired
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Feb 18, 2018 - 02:04pm PT
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Norway did it, Australia did it, Canada and England
So did Russia, Germany, China and Cambodia.
How'd that work out?
Also, let's look at the effectiveness of our war on drugs. Who's to say a war on guns will be more successful.
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zBrown
Ice climber
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Feb 18, 2018 - 02:34pm PT
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I'm sure almost everybody here has read this, but just in case a couple might have missed it.
(Slip Opinion) OCTOBER TERM, 2007 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DISTRICT OF COLUMBIA ET AL. v. HELLER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 07–290. Argued March 18, 2008—Decided June 26, 2008
District of Columbia law bans handgun possession by making it a crime
to carry an unregistered firearm and prohibiting the registration of
handguns; provides separately that no person may carry an unlicensed
handgun, but authorizes the police chief to issue 1-year licenses;
and requires residents to keep lawfully owned firearms
unloaded and dissembled or bound by a trigger lock or similar device.
Respondent Heller, a D. C. special policeman, applied to register a
handgun he wished to keep at home, but the District refused. He
filed this suit seeking, on Second Amendment grounds, to enjoin the
city from enforcing the bar on handgun registration, the licensing requirement
insofar as it prohibits carrying an unlicensed firearm in
the home, and the trigger-lock requirement insofar as it prohibits the
use of functional firearms in the home. The District Court dismissed
the suit, but the D. C. Circuit reversed, holding that the Second
Amendment protects an individual’s right to possess firearms and
that the city’s 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.
Held:
1. The Second Amendment 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.
Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but
does not limit or expand the scope of the second part, the operative
clause. The operative clause’s text and history demonstrate that it
connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation
2 DISTRICT OF COLUMBIA v. HELLER
Syllabus
of the operative clause. The “militia” comprised all males physically
capable of acting in concert for the common defense. The Antifederalists
feared that the Federal Government would disarm the people in
order to disable this citizens’ militia, enabling a politicized standing
army or a select militia to rule. The response was to deny Congress
power to abridge the ancient right of individuals to keep and bear
arms, so that the ideal of a citizens’ militia would be preserved.
Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous armsbearing
rights in state constitutions that preceded and immediately
followed the Second Amendment. Pp. 28–30.
(d) The Second Amendment’s drafting history, while of dubious
interpretive worth, reveals three state Second Amendment proposals
that unequivocally referred to an individual right to bear arms.
Pp. 30–32.
(e) Interpretation of the Second Amendment by scholars, courts
and legislators, from immediately after its ratification through the
late 19th century also supports the Court’s conclusion. Pp. 32–47.
(f) None of the Court’s precedents forecloses the Court’s interpretation.
Neither United States v. Cruikshank, 92 U. S. 542, 553, nor
Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individualrights
interpretation. United States v. Miller, 307 U. S. 174, does not
limit the right to keep and bear arms to militia purposes, but rather
limits the type of weapon to which the right applies to those used by
the militia, i.e., those in common use for lawful purposes. Pp. 47–54.
2. Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, concealed
weapons prohibitions have been upheld under the Amendment
or state analogues. The Court’s opinion should not be taken to cast
doubt on longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial sale of
arms. Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.
Pp. 54–56.
3. The handgun ban and the trigger-lock requirement (as applied to
self-defense) violate the Second Amendment. The District’s total ban
on handgun possession in the home amounts to a prohibition on an
entire class of “arms” that Americans overwhelmingly choose for the
lawful purpose of self-defense. Under any of the standards of scrutiny
the Court has applied to enumerated constitutional rights, this
Cite as: 554 U. S. (2008) 3
Syllabus
prohibition—in the place where the importance of the lawful defense
of self, family, and property is most acute—would fail constitutional
muster. Similarly, the requirement that any lawful firearm in the
home be disassembled or bound by a trigger lock makes it impossible
for citizens to use arms for the core lawful purpose of self-defense and
is hence unconstitutional. Because Heller conceded at oral argument
that the D. C. licensing law is permissible if it is not enforced arbitrarily
and capriciously, the Court assumes that a license will satisfy
his prayer for relief and does not address the licensing requirement.
Assuming he is not disqualified from exercising Second Amendment
rights, the District must permit Heller to register his handgun and
must issue him a license to carry it in the home. Pp. 56–64.
478 F. 3d 370, affirmed.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a
dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ.,
joined. BREYER, J., filed a dissenting opinion, in which STEVENS,
SOUTER, and GINSBURG, JJ., joined.
Cite as: 554 U. S. (2008) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_
No. 07–290
_
DISTRICT OF COLUMBIA, ET AL., PETITIONERS v.
DICK ANTHONY HELLER
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 26, 2008]
JUSTICE SCALIA delivered the opinion of the Court.
We consider whether a District of Columbia prohibition
on the possession of usable handguns in the home violates
the Second Amendment to the Constitution.
I
The District of Columbia generally prohibits the possession
of handguns. It is a crime to carry an unregistered
firearm, and the registration of handguns is prohibited.
See D. C. Code §§7–2501.01(12), 7–2502.01(a), 7–
2502.02(a)(4) (2001). Wholly apart from that prohibition,
no person may carry a handgun without a license, but the
chief of police may issue licenses for 1-year periods. See
§§22–4504(a), 22–4506. District of Columbia law also
requires residents to keep their lawfully owned firearms,
such as registered long guns, “unloaded and dissembled or
bound by a trigger lock or similar device” unless they are
located in a place of business or are being used for lawful
recreational activities. See §7–2507.02.1
——————
1 There are minor exceptions to all of these prohibitions, none of
which is relevant here.
2 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
Respondent Dick Heller is a D. C. special police officer
authorized to carry a handgun while on duty at the Federal
Judicial Center. He applied for a registration certificate
for a handgun that he wished to keep at home, but
the District refused. He thereafter filed a lawsuit in the
Federal District Court for the District of Columbia seeking,
on Second Amendment grounds, to enjoin the city
from enforcing the bar on the registration of handguns,
the licensing requirement insofar as it prohibits the carrying
of a firearm in the home without a license, and the
trigger-lock requirement insofar as it prohibits the use of
“functional firearms within the home.” App. 59a. The
District Court dismissed respondent’s complaint, see
Parker v. District of Columbia, 311 F. Supp. 2d 103, 109
(2004). The Court of Appeals for the District of Columbia
Circuit, construing his complaint as seeking the right to
render a firearm operable and carry it about his home in
that condition only when necessary for self-defense,2 reversed,
see Parker v. District of Columbia, 478 F. 3d 370,
401 (2007). It held that the Second Amendment protects
an individual right to possess firearms and that the city’s
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. See id., at
395, 399–401. The Court of Appeals directed the District
Court to enter summary judgment for respondent.
We granted certiorari. 552 U. S. ___ (2007).
II
We turn first to the meaning of the Second Amendment.
A
The Second Amendment provides: “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
——————
2 That construction has not been challenged here.
Cite as: 554 U. S. (2008) 3
Opinion of the Court
infringed.” In interpreting this text, we are guided by the
principle that “[t]he Constitution was written to be understood
by the voters; its words and phrases were used in
their normal and ordinary as distinguished from technical
meaning.” United States v. Sprague, 282 U. S. 716, 731
(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).
Normal meaning may of course include an idiomatic
meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the
founding generation.
The two sides in this case have set out very different
interpretations of the Amendment. Petitioners and today’s
dissenting Justices believe that it protects only the
right to possess and carry a firearm in connection with
militia service. See Brief for Petitioners 11–12; post, at 1
(STEVENS, J., dissenting). 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. See Brief for Respondent 2–4.
The Second Amendment is naturally divided into two
parts: its prefatory clause and its operative clause. The
former does not limit the latter grammatically, but rather
announces a purpose. The Amendment could be rephrased,
“Because a well regulated Militia is necessary to
the security of a free State, the right of the people to keep
and bear Arms shall not be infringed.” See J. Tiffany, A
Treatise on Government and Constitutional Law §585,
p. 394 (1867); Brief for Professors of Linguistics and English
as Amici Curiae 3 (hereinafter Linguists’ Brief).
Although this structure of the Second Amendment is
unique in our Constitution, other legal documents of the
founding era, particularly individual-rights provisions of
state constitutions, commonly included a prefatory statement
of purpose. See generally Volokh, The Commonplace
Second Amendment, 73 N. Y. U. L. Rev. 793, 814–821
4 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
(1998).
Logic demands that there be a link between the stated
purpose and the command. The 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.) But apart from that
clarifying function, a prefatory clause does not limit or
expand the scope of the operative clause. See F. Dwarris,
A General Treatise on Statutes 268–269 (P. Potter ed.
1871) (hereinafter Dwarris); T. Sedgwick, The Interpretation
and Construction of Statutory and Constitutional Law
42–45 (2d ed. 1874).3 “ ‘It is nothing unusual in acts . . . for
the enacting part to go beyond the preamble; the remedy
often extends beyond the particular act or mischief which
first suggested the necessity of the law.’ ” J. Bishop,
——————
3 As Sutherland explains, the key 18th-century English case on the
effect of preambles, Copeman v. Gallant, 1 P. Wms. 314, 24 Eng. Rep.
404 (1716), stated that “the preamble could not be used to restrict the
effect of the words of the purview.” J. Sutherland, Statutes and Statutory
Construction, 47.04 (N. Singer ed. 5th ed. 1992). This rule was
modified in England in an 1826 case to give more importance to the
preamble, but in America “the settled principle of law is that the
preamble cannot control the enacting part of the statute in cases where
the enacting part is expressed in clear, unambiguous terms.” Ibid.
JUSTICE STEVENS says that we violate the general rule that every
clause in a statute must have effect. Post, at 8. But where the text of a
clause itself indicates that it does not have operative effect, such as
“whereas” clauses in federal legislation or the Constitution’s preamble,
a court has no license to make it do what it was not designed to do. Or
to put the point differently, operative provisions should be given effect
as operative provisions, and prologues as prologues.
Cite as: 554 U. S. (2008) 5
Opinion of the Court
Commentaries on Written Laws and Their Interpretation
§51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165
(K. B. 1802)). Therefore, while we will begin our textual
analysis with the operative clause, we will return to the
prefatory clause to ensure that our reading of the operative
clause is consistent with the announced purpose.4
1. Operative Clause.
a. “Right of the People.” The first salient feature of
the operative clause is that it codifies a “right of the people.”
The unamended Constitution and the Bill of Rights
use the phrase “right of the people” two other times, in the
First Amendment’s Assembly-and-Petition Clause and in
the Fourth Amendment’s Search-and-Seizure Clause. The
Ninth Amendment uses very similar terminology (“The
enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by
the people”). All three of these instances unambiguously
refer to individual rights, not “collective” rights, or rights
that may be exercised only through participation in some
corporate body.5
——————
4 JUSTICE STEVENS criticizes us for discussing the prologue last. Post,
at 8. But if a prologue can be used only to clarify an ambiguous operative
provision, surely the first step must be to determine whether the
operative provision is ambiguous. It might be argued, we suppose, that
the prologue itself should be one of the factors that go into the determination
of whether the operative provision is ambiguous—but that
would cause the prologue to be used to produce ambiguity rather than
just to resolve it. In any event, even if we considered the prologue
along with the operative provision we would reach the same result we
do today, since (as we explain) our interpretation of “the right of the
people to keep and bear arms” furthers the purpose of an effective
militia no less than (indeed, more than) the dissent’s interpretation.
See infra, at 26–27.
5 JUSTICE STEVENS is of course correct, post, at 10, that the right to
assemble cannot be exercised alone, but it is still an individual right,
and not one conditioned upon membership in some defined “assembly,”
as he contends the right to bear arms is conditioned upon membership
6 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
Three provisions of the Constitution refer to “the people”
in a context other than “rights”—the famous preamble
(“We the people”), §2 of Article I (providing that “the people”
will choose members of the House), and the Tenth
Amendment (providing that those powers not given the
Federal Government remain with “the States” or “the
people”). Those provisions arguably refer to “the people”
acting collectively—but they deal with the exercise or
reservation of powers, not rights. Nowhere else in the
Constitution does a “right” attributed to “the people” refer
to anything other than an individual right.6
What is more, in all six other provisions of the Constitution
that mention “the people,” the term unambiguously
refers to all members of the political community, not an
unspecified subset. As we said in United States v. Verdugo-
Urquidez, 494 U. S. 259, 265 (1990):
“ ‘[T]he people’ seems to have been a term of art employed
in select parts of the Constitution. . . . [Its
uses] sugges[t] that ‘the people’ protected by the
——————
in a defined militia. And JUSTICE STEVENS is dead wrong to think that
the right to petition is “primarily collective in nature.” Ibid. See
McDonald v. Smith, 472 U. S. 479, 482–484 (1985) (describing historical
origins of right to petition).
6 If we look to other founding-era documents, we find that some state
constitutions used the term “the people” to refer to the people collectively,
in contrast to “citizen,” which was used to invoke individual
rights. See Heyman, Natural Rights and the Second Amendment, in
The Second Amendment in Law and History 179, 193–195 (C. Bogus
ed. 2000) (hereinafter Bogus). But that usage was not remotely uniform.
See, e.g., N. C. Declaration of Rights §XIV (1776), in 5 The
Federal and State Constitutions, Colonial Charters, and Other Organic
Laws 2787, 2788 (F. Thorpe ed. 1909) (hereinafter Thorpe) (jury trial);
Md. Declaration of Rights §XVIII (1776), in 3 id., at 1686, 1688 (vicinage
requirement); Vt. Declaration of Rights ch. 1, §XI (1777), in 6 id.,
at 3737, 3741 (searches and seizures); Pa. Declaration of Rights §XII
(1776), in 5 id., at 3081, 3083 (free speech). And, most importantly, it
was clearly not the terminology used in the Federal Constitution, given
the First, Fourth, and Ninth Amendments.
Cite as: 554 U. S. (2008) 7
Opinion of the Court
Fourth Amendment, and by the First and Second
Amendments, and to whom rights and powers are reserved
in the Ninth and Tenth Amendments, 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.”
This contrasts markedly with the phrase “the militia” in
the prefatory clause. As we will describe below, the “militia”
in colonial America consisted of a subset of “the people”—
those who were male, able bodied, and within a
certain age range. Reading the Second Amendment as
protecting only the right to “keep and bear Arms” in an
organized militia therefore fits poorly with the operative
clause’s description of the holder of that right as “the
people.”
We start therefore with a strong presumption that the
Second Amendment right is exercised individually and
belongs to all Americans.
b. “Keep and bear Arms.” We move now from the
holder of the right—“the people”—to the substance of the
right: “to keep and bear Arms.”
Before addressing the verbs “keep” and “bear,” we interpret
their object: “Arms.” The 18th-century meaning is no
different from the meaning today. The 1773 edition of
Samuel Johnson’s dictionary defined “arms” as “weapons
of offence, or armour of defence.” 1 Dictionary of the
English Language 107 (4th ed.) (hereinafter Johnson).
Timothy Cunningham’s important 1771 legal dictionary
defined “arms” as “any thing that a man wears for his
defence, or takes into his hands, or useth in wrath to cast
at or strike another.” 1 A New and Complete Law Dictionary
(1771); see also N. Webster, American Dictionary
of the English Language (1828) (reprinted 1989) (hereinafter
Webster) (similar).
8 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
The term was applied, then as now, to weapons that
were not specifically designed for military use and were
not employed in a military capacity. For instance, Cunningham’s
legal dictionary gave as an example of usage:
“Servants and labourers shall use bows and arrows on
Sundays, &c. and not bear other arms.” See also, e.g., An
Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6,
p. 104, in 1 First Laws of the State of Delaware 102, 104
(J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke,
42 Tex. 455, 458 (1874) (citing decisions of state courts
construing “arms”). Although one founding-era thesaurus
limited “arms” (as opposed to “weapons”) to “instruments
of offence generally made use of in war,” even that source
stated that all firearms constituted “arms.” 1 J. Trusler,
The Distinction Between Words Esteemed Synonymous in
the English Language 37 (1794) (emphasis added).
Some have made the argument, bordering on the frivolous,
that only those arms in existence in the 18th century
are protected by the Second Amendment. We do not interpret
constitutional rights that way. Just as the First
Amendment protects modern forms of communications,
e.g., Reno v. American Civil Liberties Union, 521 U. S. 844,
849 (1997), and the Fourth Amendment applies to modern
forms of search, e.g., Kyllo v. United States, 533 U. S. 27,
35–36 (2001), the 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.
We turn to the phrases “keep arms” and “bear arms.”
Johnson defined “keep” as, most relevantly, “[t]o retain;
not to lose,” and “[t]o have in custody.” Johnson 1095.
Webster defined it as “[t]o hold; to retain in one’s power or
possession.” No party has apprised us of an idiomatic
meaning of “keep Arms.” Thus, the most natural reading
of “keep Arms” in the Second Amendment is to “have
weapons.”
Cite as: 554 U. S. (2008) 9
Opinion of the Court
The phrase “keep arms” was not prevalent in the written
documents of the founding period that we have found,
but there are a few examples, all of which favor viewing
the right to “keep Arms” as an individual right unconnected
with militia service. William Blackstone, for example,
wrote that Catholics convicted of not attending
service in the Church of England suffered certain penalties,
one of which was that they were not permitted to
“keep arms in their houses.” 4 Commentaries on the Laws
of England 55 (1769) (hereinafter Blackstone); see also 1
W. & M., c. 15, §4, in 3 Eng. Stat. at Large 422 (1689)
(“[N]o Papist . . . shall or may have or keep in his House
. . . any Arms . . . ”); 1 Hawkins, Treatise on the Pleas of
the Crown 26 (1771) (similar). Petitioners point to militia
laws of the founding period that required militia members
to “keep” arms in connection with militia service, and they
conclude from this that the phrase “keep Arms” has a
militia-related connotation. See Brief for Petitioners 16–
17 (citing laws of Delaware, New Jersey, and Virginia).
This is rather like saying that, since there are many statutes
that authorize aggrieved employees to “file complaints”
with federal agencies, the phrase “file complaints”
has an employment-related connotation. “Keep arms” was
simply a common way of referring to possessing arms, for
militiamen and everyone else.7
——————
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
10 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
At the time of the founding, as now, to “bear” meant to
“carry.” See Johnson 161; Webster; T. Sheridan, A Complete
Dictionary of the English Language (1796); 2 Oxford
English Dictionary 20 (2d ed. 1989) (hereinafter Oxford).
When used with “arms,” however, the term has a meaning
that refers to carrying for a particular purpose—
confrontation. In Muscarello v. United States, 524 U. S.
125 (1998), in the course of analyzing the meaning of
“carries a firearm” in a federal criminal statute, JUSTICE
GINSBURG wrote that “[s]urely a most familiar meaning is,
as the Constitution’s Second Amendment . . . indicate[s]:
‘wear, bear, or carry . . . upon the person or in the clothing
or in a pocket, for the purpose . . . of being armed and
ready for offensive or defensive action in a case of conflict
with another person.’ ” Id., at 143 (dissenting opinion)
——————
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? What law forbids the
veriest pauper, if he can raise a sum sufficient for the purchase of it,
from mounting his Gun on his Chimney Piece . . . ?”); 3 B. Wilson, The
Works of the Honourable James Wilson 84 (1804) (with reference to
state constitutional right: “This is one of our many renewals of the
Saxon regulations. ‘They were bound,’ says Mr. Selden, ‘to keep arms
for the preservation of the kingdom, and of their own person’ ”); W.
Duer, Outlines of the Constitutional Jurisprudence of the United States
31–32 (1833) (with reference to colonists’ English rights: “The right of
every individual to keep arms for his defence, suitable to his condition
and degree; which was the public allowance, under due restrictions of
the natural right of resistance and self-preservation”); 3 R. Burn,
Justice of the Peace and the Parish Officer 88 (1815) (“It is, however,
laid down by Serjeant Hawkins, . . . that if a lessee, after the end of the
term, keep arms in his house to oppose the entry of the lessor, . . .”);
State v. Dempsey, 31 N. C. 384, 385 (1849) (citing 1840 state law
making it a misdemeanor for a member of certain racial groups “to
carry about his person or keep in his house any shot gun or other
arms”).
Cite as: 554 U. S. (2008) 11
Opinion of the Court
(quoting Black’s Law Dictionary 214 (6th ed. 1998)). We
think that JUSTICE GINSBURG accurately captured the
natural meaning of “bear arms.” Although the phrase
implies that the carrying of the weapon is for the purpose
of “offensive or defensive action,” it in no way connotes
participation in a structured military organization.
From our review of founding-era sources, we conclude
that this natural meaning was also the meaning that
“bear arms” had in the 18th century. In numerous instances,
“bear arms” was unambiguously used to refer to
the carrying of weapons outside of an organized militia.
The most prominent examples are those most relevant to
the Second Amendment: Nine state constitutional provisions
written in the 18th century or the first two decades
of the 19th, which enshrined a right of citizens to “bear
arms in defense of themselves and the state” or “bear arms
in defense of himself and the state.” 8 It is clear from those
formulations that “bear arms” did not refer only to carry-
——————
8 See Pa. Declaration of Rights §XIII, in 5 Thorpe 3083 (“That the
people have a right to bear arms for the defence of themselves and the
state. . . ”); Vt. 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. Const., Art. XII, cl. 23 (1792), in 3 id., at 1264, 1275
(“That the right of the citizens to bear arms in defence of themselves
and the State shall not be questioned”); Ohio Const., Art. 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. Const., Art.
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.
Const., Art. I, §23 (1817), in 4 id., at 2032, 2034 (“Every citizen has a
right to bear arms, in defence of himself and the State”); Conn. Const.,
Art. I, §17 (1818), in 1 id., at 536, 538 (“Every citizen has a right to bear
arms in defence of himself and the state”); Ala. Const., Art. 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. Const., Art. XIII, §3 (1820), in 4
id., at 2150, 2163 (“[T]hat their right to bear arms in defence of themselves
and of the State cannot be questioned”). See generally Volokh,
State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. &
Politics 191 (2006).
12 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
ing a weapon in an organized military unit. Justice James
Wilson interpreted the Pennsylvania Constitution’s armsbearing
right, for example, as a recognition of the natural
right of defense “of one’s person or house”—what he called
the law of “self preservation.” 2 Collected Works of James
Wilson 1142, and n. x (K. Hall & M. Hall eds. 2007) (citing
Pa. Const., Art. IX, §21 (1790)); see also T. Walker, Introduction
to American Law 198 (1837) (“Thus the right of
self-defence [is] guaranteed by the [Ohio] constitution”);
see also id., at 157 (equating Second Amendment with
that provision of the Ohio Constitution). That was also
the interpretation of those state constitutional provisions
adopted by pre-Civil War state courts.9 These provisions
demonstrate—again, in the most analogous linguistic
context—that “bear arms” was not limited to the carrying
of arms in a militia.
The phrase “bear Arms” also had at the time of the
founding an idiomatic meaning that was significantly
different from its natural meaning: “to serve as a soldier,
do military service, fight” or “to wage war.” See Linguists’
Brief 18; post, at 11 (STEVENS, J., dissenting). But it
unequivocally bore that idiomatic meaning only when
followed by the preposition “against,” which was in turn
followed by the target of the hostilities. See 2 Oxford 21.
(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”
——————
9 See Bliss v. Commonwealth, 2 Litt. 90, 91–92 (Ky. 1822); State v.
Reid, 1 Ala. 612, 616–617 (1840); State v. Schoultz, 25 Mo. 128, 155
(1857); see also Simpson v. State, 5 Yer. 356, 360 (Tenn. 1833) (interpreting
similar provision with “common defence” purpose); State v.
Huntly, 25 N. C. 418, 422–423 (1843) (same); cf. Nunn v. State, 1 Ga.
243, 250–251 (1846) (construing Second Amendment); State v. Chandler,
5 La. Ann. 489, 489–490 (1850) (same).
Cite as: 554 U. S. (2008) 13
Opinion of the Court
from the founding period either includes the preposition
“against” or is not clearly idiomatic. See Linguists’ Brief
18–23. Without the preposition, “bear arms” normally
meant (as it continues to mean today) what JUSTICE
GINSBURG’s opinion in Muscarello said.
In any event, the meaning of “bear arms” that petitioners
and JUSTICE STEVENS propose is not even the (sometimes)
idiomatic meaning. Rather, they manufacture a
hybrid definition, whereby “bear arms” connotes the
actual carrying of arms (and therefore is not really an
idiom) but only in the service of an organized militia. No
dictionary has ever adopted that definition, and we have
been apprised of no source that indicates that it carried
that meaning at the time of the founding. But it is easy
to see why petitioners and the dissent are driven to the
hybrid definition. Giving “bear Arms” its idiomatic meaning
would cause the protected right to consist of the right
to be a soldier or to wage war—an absurdity that no
commentator has ever endorsed. See L. Levy, Origins of
the Bill of Rights 135 (1999). Worse still, the phrase
“keep and bear Arms” would be incoherent. The word
“Arms” would have two different meanings at once:
“weapons” (as the object of “keep”) and (as the object of
“bear”) one-half of an idiom. It would be rather like saying
“He filled and kicked the bucket” to mean “He filled
the bucket and died.” Grotesque.
Petitioners justify their limitation of “bear arms” to the
military context by pointing out the unremarkable fact
that it was often used in that context—the same mistake
they made with respect to “keep arms.” It is especially
unremarkable that the phrase was often used in a military
context in the federal legal sources (such as records of
congressional debate) that have been the focus of petitioners’
inquiry. Those sources would have had little occasion
to use it except in discussions about the standing army and
the militia. And the phrases used primarily in those
14 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
military discussions include not only “bear arms” but also
“carry arms,” “possess arms,” and “have arms”—though no
one thinks that those other phrases also had special military
meanings. See Barnett, Was the Right to Keep and
Bear Arms Conditioned on Service in an Organized Militia?,
83 Tex. L. Rev. 237, 261 (2004). The common references
to those “fit to bear arms” in congressional discussions
about the militia are matched by use of the same
phrase in the few nonmilitary federal contexts where the
concept would be relevant. See, e.g., 30 Journals of Continental
Congress 349–351 (J. Fitzpatrick ed. 1934). Other
legal sources frequently used “bear arms” in nonmilitary
contexts.10 Cunningham’s legal dictionary, cited above,
——————
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. 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. 1, c. 54,
§1)); Statute Law of Scotland Abridged 132–133 (2d ed. 1769) (“Acts for
disarming the highlands” but “exempting those who have particular
licenses to bear arms”); E. de Vattel, The Law of Nations, or, Principles
of the Law of Nature 144 (1792) (“Since custom has allowed persons of
rank and gentlemen of the army to bear arms in time of peace, strict
care should be taken that none but these should be allowed to wear
swords”); E. Roche, Proceedings of a Court-Martial, Held at the Council-
Chamber, in the City of Cork 3 (1798) (charge VI: “With having held
traitorous conferences, and with having conspired, with the like intent,
for the purpose of attacking and despoiling of the arms of several of the
King’s subjects, qualified by law to bear arms”); C. Humphreys, A
Compendium of the Common Law in force in Kentucky 482 (1822) (“n
this country the constitution guaranties to all persons the right to bear
arms; then it can only be a crime to exercise this right in such a manner,
as to terrify people unnecessarily”).
Cite as: 554 U. S. (2008) 15
Opinion of the Court
gave as an example of its usage a sentence unrelated to
military affairs (“Servants and labourers shall use bows
and arrows on Sundays, &c. and not bear other arms”).
And if one looks beyond legal sources, “bear arms” was
frequently used in nonmilitary contexts. See Cramer &
Olson, What Did “Bear Arms” Mean in the Second Amendment?,
6 Georgetown J. L. & Pub. Pol’y (forthcoming Sept.
2008), online at http://papers.ssrn.com/abstract=1086176
(as visited June 24, 2008, and available in Clerk of Court’s
case file) (identifying numerous nonmilitary uses of “bear
arms” from the founding period).
JUSTICE STEVENS points to a study by amici supposedly
showing that the phrase “bear arms” was most frequently
used in the military context. See post, at 12–13, n. 9;
Linguists’ Brief 24. Of course, as we have said, the fact
that the phrase was commonly used in a particular context
does not show that it is limited to that context, and, in any
event, we have given many sources where the phrase was
used in nonmilitary contexts. Moreover, the study’s collection
appears to include (who knows how many times) the
idiomatic phrase “bear arms against,” which is irrelevant.
The amici also dismiss examples such as “ ‘bear arms . . .
for the purpose of killing game’ ” because those uses are
“expressly qualified.” Linguists’ Brief 24. (JUSTICE
STEVENS uses the same excuse for dismissing the state
constitutional provisions analogous to the Second Amendment
that identify private-use purposes for which the
individual right can be asserted. See post, at 12.) That
analysis is faulty. A purposive qualifying phrase that
contradicts the word or phrase it modifies is unknown this
side of the looking glass (except, apparently, in some
courses on Linguistics). If “bear arms” means, as we
think, simply the carrying of arms, a modifier can limit
the purpose of the carriage (“for the purpose of selfdefense”
or “to make war against the King”). But if “bear
arms” means, as the petitioners and the dissent think, the
16 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
carrying of arms only for military purposes, one simply
cannot add “for the purpose of killing game.” The right “to
carry arms in the militia for the purpose of killing game”
is worthy of the mad hatter. Thus, these purposive qualifying
phrases positively establish that “to bear arms” is
not limited to military use.11
JUSTICE STEVENS places great weight on James Madison’s
inclusion of a conscientious-objector clause in his
original draft of the Second Amendment: “but no person
religiously scrupulous of bearing arms, shall be compelled
to render military service in person.” Creating the Bill of
Rights 12 (H. Veit, K. Bowling, & C. Bickford eds. 1991)
(hereinafter Veit). He argues that this clause establishes
that the drafters of the Second Amendment intended “bear
Arms” to refer only to military service. See post, at 26. It
is always perilous to derive the meaning of an adopted
provision from another provision deleted in the drafting
process.12 In any case, what JUSTICE STEVENS would
conclude from the deleted provision does not follow. It was
not meant to exempt from military service those who
——————
11 JUSTICE STEVENS contends, post, at 15, that since we assert that
adding “against” to “bear arms” gives it a military meaning we must
concede that adding a purposive qualifying phrase to “bear arms” can
alter its meaning. But the difference is that we do not maintain that
“against” alters the meaning of “bear arms” but merely that it clarifies
which of various meanings (one of which is military) is intended.
JUSTICE STEVENS, however, argues that “[t]he term ‘bear arms’ is a
familiar idiom; when used unadorned by any additional words, its
meaning is ‘to serve as a soldier, do military service, fight.’ ” Post, at
11. He therefore must establish that adding a contradictory purposive
phrase can alter a word’s meaning.
12 JUSTICE STEVENS finds support for his legislative history inference
from the recorded views of one Antifederalist member of the House.
Post, at 26 n. 25. “The claim that the best or most representative
reading of the [language of the] amendments would conform to the
understanding and concerns of [the Antifederalists] is . . . highly
problematic.” Rakove, The Second Amendment: The Highest Stage of
Originalism, Bogus 74, 81.
Cite as: 554 U. S. (2008) 17
Opinion of the Court
objected to going to war but had no scruples about personal
gunfights. Quakers opposed the use of arms not just
for militia service, but for any violent purpose whatsoever—
so much so that Quaker frontiersmen were forbidden
to use arms to defend their families, even though “n
such circumstances the temptation to seize a hunting rifle
or knife in self-defense . . . must sometimes have been
almost overwhelming.” P. Brock, Pacifism in the United
States 359 (1968); see M. Hirst, The Quakers in Peace and
War 336–339 (1923); 3 T. Clarkson, Portraiture of Quakerism
103–104 (3d ed. 1807). The Pennsylvania Militia Act
of 1757 exempted from service those “scrupling the use of
arms”—a phrase that no one contends had an idiomatic
meaning. See 5 Stat. at Large of Pa. 613 (J. Mitchell & H.
Flanders eds. 1898) (emphasis added). Thus, the most
natural interpretation of Madison’s deleted text is that
those opposed to carrying weapons for potential violent
confrontation would not be “compelled to render military
service,” in which such carrying would be required.13
Finally, JUSTICE STEVENS suggests that “keep and bear
Arms” was some sort of term of art, presumably akin to
“hue and cry” or “cease and desist.” (This suggestion
usefully evades the problem that there is no evidence
whatsoever to support a military reading of “keep arms.”)
JUSTICE STEVENS believes that the unitary meaning of
——————
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. 1836)
(reprinted 1941). Certainly their second use of the phrase (“bear arms
in his stead”) refers, by reason of context, to compulsory bearing of
arms for military duty. But their first use of the phrase (“any person
religiously scrupulous of bearing arms”) assuredly did not refer to
people whose God allowed them to bear arms for defense of themselves
but not for defense of their country.
18 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
“keep and bear Arms” is established by the Second
Amendment’s calling it a “right” (singular) rather than
“rights” (plural). See post, at 16. There is nothing to this.
State constitutions of the founding period routinely
grouped multiple (related) guarantees under a singular
“right,” and the First Amendment protects the “right
[singular] of the people peaceably to assemble, and to
petition the Government for a redress of grievances.” See,
e.g., Pa. Declaration of Rights §§IX, XII, XVI, in 5 Thorpe
3083–3084; Ohio Const., Arts. VIII, §§11, 19 (1802), in id.,
at 2910–2911.14 And even if “keep and bear Arms” were a
unitary phrase, we find no evidence that it bore a military
meaning. Although the phrase was not at all common
(which would be unusual for a term of art), we have found
instances of its use with a clearly nonmilitary connotation.
In a 1780 debate in the House of Lords, for example, Lord
Richmond described an order to disarm private citizens
(not militia members) as “a violation of the constitutional
right of Protestant subjects to keep and bear arms for
their own defense.” 49 The London Magazine or Gentleman’s
Monthly Intelligencer 467 (1780). In response,
another member of Parliament referred to “the right of
bearing arms for personal defence,” making clear that no
special military meaning for “keep and bear arms” was
intended in the discussion. Id., at 467–468.15
——————
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 First Amendment),
the unitary meaning of “to keep and bear” is established. Post,
at 16, n. 13. We have never heard of the proposition that omitting
repetition of the “to” causes two verbs with different meanings to
become one. A promise “to support and to defend the Constitution of
the United States” is not a whit different from a promise “to support
and defend the Constitution of the United States.”
15 Cf. 3 Geo., 34, §3, in 7 Eng. Stat. at Large 126 (1748) (“That the
Prohibition contained . . . in this Act, of having, keeping, bearing, or
wearing any Arms or Warlike Weapons . . . shall not extend . . . to any
Cite as: 554 U. S. (2008) 19
Opinion of the Court
c. Meaning of the Operative Clause. Putting all of
these textual elements together, we find that they guarantee
the individual right to possess and carry weapons in
case of confrontation. This meaning is strongly confirmed
by the historical background of the Second Amendment.
We look to this because it has always been widely understood
that the Second Amendment, like the First and
Fourth Amendments, codified a pre-existing right. The
very text of the Second Amendment implicitly recognizes
the pre-existence of the right and declares only that it
“shall not be infringed.” As we said in United States v.
Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right
granted by the Constitution. Neither is it in any manner
dependent upon that instrument for its existence. The
Second amendment declares that it shall not be infringed
. . . .”16
Between the Restoration and the Glorious Revolution,
the Stuart Kings Charles II and James II succeeded in
using select militias loyal to them to suppress political
dissidents, in part by disarming their opponents. See J.
Malcolm, To Keep and Bear Arms 31–53 (1994) (hereinafter
Malcolm); L. Schwoerer, The Declaration of Rights,
1689, p. 76 (1981). Under the auspices of the 1671 Game
Act, for example, the Catholic James II had ordered general
disarmaments of regions home to his Protestant
enemies. See Malcolm 103–106. These experiences
caused Englishmen to be extremely wary of concentrated
military forces run by the state and to be jealous of their
arms. They accordingly obtained an assurance from William
and Mary, in the Declaration of Right (which was
codified as the English Bill of Rights), that Protestants
——————
Officers or their Assistants, employed in the Execution of Justice . . .”).
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.
20 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
would never be disarmed: “That the subjects which are
Protestants may have arms for their defense suitable to
their conditions and as allowed by law.” 1 W. & M., c. 2,
§7, in 3 Eng. Stat. at Large 441 (1689). This right has
long been understood to be the predecessor to our Second
Amendment. See E. Dumbauld, The Bill of Rights and
What It Means Today 51 (1957); W. Rawle, A View of the
Constitution of the United States of America 122 (1825)
(hereinafter Rawle). It was clearly an individual right,
having nothing whatever to do with service in a militia.
To be sure, it was an individual right not available to the
whole population, given that it was restricted to Protestants,
and like all written English rights it was held only
against the Crown, not Parliament. See Schwoerer, To
Hold and Bear Arms: The English Perspective, in Bogus
207, 218; but see 3 J. Story, Commentaries on the Constitution
of the United States §1858 (1833) (hereinafter
Story) (contending that the “right to bear arms” is a “limitatio[
n] upon the power of parliament” as well). But it was
secured to them as individuals, according to “libertarian
political principles,” not as members of a fighting force.
Schwoerer, Declaration of Rights, at 283; see also id., at
78; G. Jellinek, The Declaration of the Rights of Man and
of Citizens 49, and n. 7 (1901) (reprinted 1979).
By the time of the founding, the right to have arms had
become fundamental for English subjects. See Malcolm
122–134. Blackstone, whose works, we have said, “constituted
the preeminent authority on English law for the
founding generation,” Alden v. Maine, 527 U. S. 706, 715
(1999), cited the arms provision of the Bill of Rights as one
of the fundamental rights of Englishmen. See 1 Blackstone
136, 139–140 (1765). His description of it cannot
possibly be thought to tie it to militia or military service.
It was, he said, “the natural right of resistance and selfpreservation,”
id., at 139, and “the right of having and
using arms for self-preservation and defence,” id., at 140;
Cite as: 554 U. S. (2008) 21
Opinion of the Court
see also 3 id., at 2–4 (1768). Other contemporary authorities
concurred. See G. Sharp, Tracts, Concerning the
Ancient and Only True Legal Means of National Defence,
by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme,
The Rise and Progress of the English Constitution 886–
887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory
Reflections on Police 59–60 (1785). Thus, the right secured
in 1689 as a result of the Stuarts’ abuses was by the
time of the founding understood to be an individual right
protecting against both public and private violence.
And, of course, what the Stuarts had tried to do to their
political enemies, George III had tried to do to the colonists.
In the tumultuous decades of the 1760’s and 1770’s,
the Crown began to disarm the inhabitants of the most
rebellious areas. That provoked polemical reactions by
Americans invoking their rights as Englishmen to keep
arms. A New York article of April 1769 said that “t is a
natural right which the people have reserved to themselves,
confirmed by the Bill of Rights, to keep arms for
their own defence.” A Journal of the Times: Mar. 17, New
York Journal, Supp. 1, Apr. 13, 1769, in Boston Under
Military Rule 79 (O. Dickerson ed. 1936); see also, e.g.,
Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings
of Samuel Adams 299 (H. Cushing ed. 1968). They understood
the right to enable individuals to defend themselves.
As the most important early American edition of Blackstone’s
Commentaries (by the law professor and former
Antifederalist St. George Tucker) made clear in the notes
to the description of the arms right, Americans understood
the “right of self-preservation” as permitting a citizen to
“repe[l] force by force” when “the intervention of society in
his behalf, may be too late to prevent an injury.” 1 Blackstone’s
Commentaries 145–146, n. 42 (1803) (hereinafter
Tucker’s Blackstone). See also W. Duer, Outlines of the
Constitutional Jurisprudence of the United States 31–32
(1833).
22 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
There seems to us no doubt, on the basis of both text
and history, that the Second Amendment conferred an
individual right to keep and bear arms. Of course the
right was not unlimited, just as the First Amendment’s
right of free speech was not, see, e.g., United States v.
Williams, 553 U. S. ___ (2008). Thus, we do not read the
Second Amendment to protect the right of citizens to carry
arms for any sort of confrontation, just as we do not read
the First Amendment to protect the right of citizens to
speak for any purpose. Before turning to limitations upon
the individual right, however, we must determine whether
the prefatory clause of the Second Amendment comports
with our interpretation of the operative clause.
2. Prefatory Clause.
The prefatory clause reads: “A well regulated Militia,
being necessary to the security of a free State . . . .”
a. “Well-Regulated Militia.” In United States v.
Miller, 307 U. S. 174, 179 (1939), we explained that “the
Militia comprised all males physically capable of acting in
concert for the common defense.” That definition comports
with founding-era sources. See, e.g., Webster (“The militia
of a country are the able bodied men organized into companies,
regiments and brigades . . . and required by law to
attend military exercises on certain days only, but at other
times left to pursue their usual occupations”); The Federalist
No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison)
(“near half a million of citizens with arms in their hands”);
Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable
Thomas Jefferson 520, 524 (M. Peterson ed. 1975) (“[T]he
militia of the State, that is to say, of every man in it able
to bear arms”).
Petitioners take a seemingly narrower view of the militia,
stating that “[m]ilitias are the state- and congressionally-
regulated military forces described in the Militia
Clauses (art. I, §8, cls. 15–16).” Brief for Petitioners 12.
Cite as: 554 U. S. (2008) 23
Opinion of the Court
Although we agree with petitioners’ interpretive assumption
that “militia” means the same thing in Article I and
the Second Amendment, we believe that petitioners identify
the wrong thing, namely, the organized militia.
Unlike armies and navies, which Congress is given the
power to create (“to raise . . . Armies”; “to provide . . . a
Navy,” Art. I, §8, cls. 12–13), the militia is assumed by
Article I already to be in existence. Congress is given the
power to “provide for calling forth the militia,” §8, cl. 15;
and the power not to create, but to “organiz[e]” it—and not
to organize “a” militia, which is what one would expect if
the militia were to be a federal creation, but to organize
“the” militia, connoting a body already in existence, ibid.,
cl. 16. This is fully consistent with the ordinary definition
of the militia as all able-bodied men. From that pool,
Congress has plenary power to organize the units that will
make up an effective fighting force. That is what Congress
did in the first militia Act, which specified that “each
and every free able-bodied white male citizen of the respective
states, resident therein, who is or shall be of the
age of eighteen years, and under the age of forty-five years
(except as is herein after excepted) shall severally and
respectively be enrolled in the militia.” Act of May 8,
1792, 1 Stat. 271. To be sure, Congress need not conscript
every able-bodied man into the militia, because nothing in
Article I suggests that in exercising its power to organize,
discipline, and arm the militia, Congress must focus upon
the entire body. Although the militia consists of all ablebodied
men, the federally organized militia may consist of
a subset of them.
Finally, the adjective “well-regulated” implies nothing
more than the imposition of proper discipline and training.
See Johnson 1619 (“Regulate”: “To adjust by rule or
method”); Rawle 121–122; cf. Va. Declaration of Rights
§13 (1776), in 7 Thorpe 3812, 3814 (referring to “a wellregulated
militia, composed of the body of the people,
24 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
trained to arms”).
b. “Security of a Free State.” The phrase “security of
a free state” meant “security of a free polity,” not security
of each of the several States as the dissent below argued,
see 478 F. 3d, at 405, and n. 10. Joseph Story wrote in his
treatise on the Constitution that “the word ‘state’ is used
in various senses [and in] its most enlarged sense, it
means the people composing a particular nation or community.”
1 Story §208; see also 3 id., §1890 (in reference
to the Second Amendment’s prefatory clause: “The militia
is the natural defence of a free country”). It is true that
the term “State” elsewhere in the Constitution refers to
individual States, but the phrase “security of a free state”
and close variations seem to have been terms of art in
18th-century political discourse, meaning a “ ‘free country’
” or free polity. See Volokh, “Necessary to the Security
of a Free State,” 83 Notre Dame L. Rev. 1, 5 (2007); see,
e.g., 4 Blackstone 151 (1769); Brutus Essay III (Nov. 15,
1787), in The Essential Antifederalist 251, 253 (W. Allen
& G. Lloyd eds., 2d ed. 2002). Moreover, the other instances
of “state” in the Constitution are typically accompanied
by modifiers making clear that the reference is to
the several States—“each 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.
There are many reasons why the militia was thought to
be “necessary to the security of a free state.” See 3 Story
§1890. First, of course, it is useful in repelling invasions
and suppressing insurrections. Second, it renders large
standing armies unnecessary—an argument that Alexander
Hamilton made in favor of federal control over the
militia. The Federalist No. 29, pp. 226, 227 (B. Wright ed.
1961) (A. Hamilton). Third, when the able-bodied men of
a nation are trained in arms and organized, they are
Cite as: 554 U. S. (2008) 25
Opinion of the Court
better able to resist tyranny.
3. Relationship between Prefatory Clause and
Operative Clause
We reach the question, then: Does the preface fit with
an operative clause that creates an individual right to
keep and bear arms? It fits perfectly, once one knows the
history that the founding generation knew and that we
have described above. That history showed that the way
tyrants had eliminated a militia consisting of all the ablebodied
men was not by banning the militia but simply by
taking away the people’s arms, enabling a select militia or
standing army to suppress political opponents. This is
what had occurred in England that prompted codification
of the right to have arms in the English Bill of Rights.
The debate with respect to the right to keep and bear
arms, as with other guarantees in the Bill of Rights, was
not over whether it was desirable (all agreed that it was)
but over whether it needed to be codified in the Constitution.
During the 1788 ratification debates, the fear that
the federal government would disarm the people in order
to impose rule through a standing army or select militia
was pervasive in Antifederalist rhetoric. See, e.g., Letters
from The Federal Farmer III (Oct. 10, 1787), in 2 The
Complete Anti-Federalist 234, 242 (H. Storing ed. 1981).
John Smilie, for example, worried not only that Congress’s
“command of the militia” could be used to create a “select
militia,” or to have “no militia at all,” but also, as a separate
concern, that “[w]hen a select militia is formed; the
people in general may be disarmed.” 2 Documentary
History of the Ratification of the Constitution 508–509 (M.
Jensen ed. 1976) (hereinafter Documentary Hist.). Federalists
responded that because Congress was given no
power to abridge the ancient right of individuals to keep
and bear arms, such a force could never oppress the people.
See, e.g., A Pennsylvanian III (Feb. 20, 1788), in The
26 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
Origin of the Second Amendment 275, 276 (D. Young ed.,
2d ed. 2001) (hereinafter Young); White, To the Citizens of
Virginia, Feb. 22, 1788, in id., at 280, 281; A Citizen of
America, (Oct. 10, 1787) in id., at 38, 40; Remarks on the
Amendments to the federal Constitution, Nov. 7, 1788, in
id., at 556. 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.
It is therefore entirely sensible that the Second Amendment’s
prefatory clause announces the purpose for which
the right was codified: to prevent elimination of the militia.
The prefatory clause does not suggest that preserving
the militia was the only reason Americans valued the
ancient right; most undoubtedly thought it even more
important for self-defense and hunting. But the threat
that the new Federal Government would destroy the
citizens’ militia by taking away their arms was the reason
that right—unlike some other English rights—was codified
in a written Constitution. JUSTICE BREYER’s assertion
that individual self-defense is merely a “subsidiary
interest” of the right to keep and bear arms, see post, at
36, is profoundly mistaken. He bases that assertion solely
upon the prologue—but that can only show that selfdefense
had little to do with the right’s codification; it was
the central component of the right itself.
Besides ignoring the historical reality that the Second
Amendment was not intended to lay down a “novel principl[
e]” but rather codified a right “inherited from our
English ancestors,” Robertson v. Baldwin, 165 U. S. 275,
281 (1897), petitioners’ interpretation does not even
achieve the narrower purpose that prompted codification
of the right. If, as they believe, the Second Amendment
right is no more than the right to keep and use weapons as
a member of an organized militia, see Brief for Petititioners
8—if, that is, the organized militia is the sole instituCite
as: 554 U. S. (2008) 27
Opinion of the Court
tional beneficiary of the Second Amendment’s guarantee—
it does not assure the existence of a “citizens’ militia” as a
safeguard against tyranny. For Congress retains plenary
authority to organize the militia, which must include the
authority to say who will belong to the organized force.17
That is why the first Militia Act’s requirement that only
whites enroll caused States to amend their militia laws to
exclude free blacks. See Siegel, The Federal Government’s
Power to Enact Color-Conscious Laws, 92 Nw. U. L. Rev.
477, 521–525 (1998). Thus, if petitioners are correct, the
Second Amendment protects citizens’ right to use a gun in
an organization from which Congress has plenary authority
to exclude them. It guarantees a select militia of the
sort the Stuart kings found useful, but not the people’s
militia that was the concern of the founding generation.
B
Our interpretation is confirmed by analogous armsbearing
rights in state constitutions that preceded and
immediately followed adoption of the Second Amendment.
Four States adopted analogues to the Federal Second
Amendment in the period between independence and the
——————
17 Article I, §8, cl. 16 of the Constitution gives Congress the power
“[t]o provide for organizing, arming, and disciplining, the Militia,
and for governing such Part of them as may be employed in the
Service of the United States, reserving to the States respectively,
the Appointment of the Officers, and the Authority of training the
Militia according to the discipline prescribed by Congress.”
It could not be clearer that Congress’s “organizing” power, unlike its
“governing” power, can be invoked even for that part of the militia not
“employed in the Service of the United States.” JUSTICE STEVENS
provides no support whatever for his contrary view, see post, at 19 n.
20. Both the Federalists and Anti-Federalists read the provision as it
was written, to permit the creation of a “select” militia. See The Federalist
No. 29, pp. 226, 227 (B. Wright ed. 1961); Centinel, Revived, No.
XXIX, Philadelphia Independent Gazetteer, Sept. 9, 1789, in Young
711, 712.
28 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
ratification of the Bill of Rights. Two of them—
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Norton
climber
The Wastelands
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Feb 18, 2018 - 02:52pm PT
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Norway did it, Australia did it, Canada and England
So did Russia, Germany, China and Cambodia.
How'd that work out?
---
obviously, Norway, Australia, Canada and England did it "better", more complete, smarter, duh
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Norton
climber
The Wastelands
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Feb 18, 2018 - 02:55pm PT
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The Second Amendment precisely protects the kinds of weapons a foot soldier would carry.
prove it, show that language from the Constitution
precisely
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rottingjohnny
Sport climber
Sands Motel , Las Vegas
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Feb 18, 2018 - 03:19pm PT
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Yeah..You should have listened to Werner but you didn't proving you're just another internet whack job...
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zBrown
Ice climber
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Feb 18, 2018 - 03:25pm PT
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Herr Braun is right. Choose any of his posts.
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Ken M
Mountain climber
Los Angeles, Ca
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Feb 18, 2018 - 03:33pm PT
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Jody, I'm curious. If the Congress passed a law requiring the turning in of all semi-automatic high capacity rapid fire rifles, like an AR-15, and you owned one, would you comply (after all the legal challenges had failed)?
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Ken M
Mountain climber
Los Angeles, Ca
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Feb 18, 2018 - 03:37pm PT
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Norton, don't be so ignorant. The First Amendment wasn't written in the time of the internet, radio, and TV either. The Second Amendment precisely protects the kinds of weapons a foot soldier would carry. Then it was muskets, today it is semi-automatic rifles(fully auto having been banned years ago).
This statement says to me that you accept the "full auto" ban. Why would not a ban on ar-15-style weapons not also be legal?
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Ken M
Mountain climber
Los Angeles, Ca
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Feb 18, 2018 - 03:39pm PT
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So did Russia, Germany, China and Cambodia.
How'd that work out?
I'm hard pressed to be able to point out regular mass shootings in schools in those countries. Am I wrong?
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EdwardT
Trad climber
Retired
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Feb 18, 2018 - 03:41pm PT
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Not sure about events at schools, but there were plenty of mass shootings.
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Ken M
Mountain climber
Los Angeles, Ca
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Feb 18, 2018 - 03:43pm PT
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he's starting to come unglued, he can't take the pressure:
Trump takes on the FBI, Russia probe and 2016 election in a nine-hour tweetstorm
President Trump questioned the intensifying special counsel's investigation of his campaign and administration while attacking his own national security adviser, the FBI, Hillary Clinton and others in a remarkable nine-hour span of tweets that included profanity and misspellings.
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rottingjohnny
Sport climber
Sands Motel , Las Vegas
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Feb 18, 2018 - 03:46pm PT
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Trump's squirming as they tighten the screws on him...LMAO...
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Lennox
climber
in the land of the blind
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Feb 18, 2018 - 04:01pm PT
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The Second Amendment precisely protects the kinds of weapons a foot soldier would carry.
If this were true then we should be able to keep and bear grenades too.
And I guess if we were ever able to shake off these unfair and burdensome restrictions to our 2nd amendment right to grenades, it would makes sense that we arm our school teachers and janitors with grenades and grenade launchers.
#jodylogic
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F
climber
away from the ground
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Feb 18, 2018 - 09:40pm PT
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Reilly
Mountain climber
The Other Monrovia- CA
Feb 18, 2018 - 11:42am PT
Right you are. A pity that the operation I had three months ago so I could get out more was all phukked up, but thanks for asking.
How do they fuc k up a head from ass removal procedure?
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