The Right to Keep and Bear Arms Amendment

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.

—Nelson Lund

Introduction

Modern debates about the Second Amendment have focused on whether it protects the right of an individual to keep and bear arms or the right of a state to maintain militia organizations. That question, however, was apparently never even raised until long after the Bill of Rights was adopted. Disputes about the meaning of the amendment arose because of changes in the Constitution and constitutional law and because legislatures began to regulate firearms in ways undreamed of in our early history.

History Before 1789

In our legal tradition, a right to arms was first constitutionalized in the English Bill of Rights, which guaranteed “[t]hat the subjects which are Protestants may have arms for their defence suitable to their Conditions and as allowed by Law.”¹ The recognition of this right reflected a political compromise between the Crown and Parliament over control of the militia, an old institution that imposed a duty on civilians to undergo unpaid military training.² The existence of this institution had the effect of forcing the Crown to ask Parliament for funds to finance the creation of armies for foreign wars; it also deprived the Crown of a pretext for establishing standing armies during peacetime. The legal recognition of the right of individuals to have arms prevented the Crown from creating an armed “select militia” and disarming the rest of the population.

This provision in the Bill of Rights, initially characterized as a reaffirmation of the ancient rights of Englishmen, actually transformed the old customary duty of serving in the militia into a new right.³ By the mid-eighteenth century, however, Sir William Blackstone wrote that this right was rooted in “the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”⁴ Blackstone drew no distinction between protection against oppression by criminals the government fails to restrain and protection against oppression by the government itself.

After the American Revolution, four states went beyond English law by formally constitutionalizing a general right to arms for “the defence of the state” or “defence of themselves and the state.”⁵ The Constitution proposed in 1787 gave Congress nearly unfettered authority over both the armed forces (whether state or federal) and the preexisting state-based militias.⁶ (See Essay Nos. 59–63, 86.) These provisions were a departure from the English tradition of requiring the Executive to rely on the militia except when armies were raised for specific wars. The English approach had considerable popular appeal, but the Constitutional Convention had good reasons for skepticism.⁷

This massive shift of power from the states to the new federal government was very controversial both at the Convention and later during the ratification debates. The Federalists argued that the change was justified by the need to meet foreign threats. For example, Alexander Hamilton warned in Federalist No. 24 against an “excess of confidence” in the nation’s security even in times of peace. And in Federalist No. 29, Hamilton argued that “if a well-regulated militia be the most natural defence of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security.”

The Anti-Federalists were more concerned that the new federal government might use force to engage in domestic oppression. Brutus observed that the power to raise armies during times of peace had historically been exercised by rulers to usurp power and wrest liberties from the people.⁸ Federal Farmer worried that Congress could create a “select militia” that would be equivalent to a peacetime standing army.⁹

The Federalists responded that America’s armed citizenry was a significant deterrent to potential federal abuse. James Madison argued in Federalist No. 46 that any regular army controlled by a despotic federal government would be opposed by “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.” Anti-Federalists like Patrick Henry countered that if Congress had exclusive and virtually unlimited control of the arming and disciplining of the militia, that institution could easily be rendered useless as a means of resisting federal tyranny.¹⁰

Adoption of the Second Amendment

In the first Congress, Representative James Madison of Virginia proposed a bill of rights that included a right-to-arms provision: “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.”¹¹ Madison noted that its English predecessor raised a limited barrier against the Crown alone, whereas this amendment would erect “an impenetrable bulwark against every assumption of power in the legislative or executive.”¹² A House Committee, which included Madison, Roger Sherman, and John Vining, proposed a revised version: “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.”¹³

There were two main points of contention with respect to the right to arms in Madison’s proposals: The amendment did not condemn the establishment of peacetime standing armies, and it exempted conscientious objectors from compulsory military service.¹⁴ The Senate deleted the religious exemption clause, streamlined the House’s text, and rejected a change that would have specified that this is a right to keep and bear arms “for the common defense.”¹⁵ The opening clause of the final text—“A well regulated Militia, being necessary to the security of a free State”—conveyed respect for that institution as an alternative to the establishment of peacetime standing armies, but nothing on the face of the text diminishes the Constitution’s broad grant of military power to Congress. Nor does the text qualify the amendment’s prohibition on infringing the right of the people to keep and bear arms.¹⁶

The Second Amendment was ratified without provoking controversies about its meaning or desirability. Notably, nothing in the record suggested that the amendment would reduce Congress’s sweeping authority over the militia or authorize the states to keep troops without the consent of Congress. Nor did anyone claim that this “right of the people to keep and bear Arms,” unlike those enumerated in the First and Fourth Amendments, was something other than a private right belonging to individual American men and women.

Subsequent Developments

Much has changed since the Second Amendment was ratified in 1791. First, the nature of the American militia system has changed. Under the traditional system, most able-bodied men were conscripted into service, but this system fell into disuse.¹⁷ Over time, state-based volunteer militia organizations were incorporated into the federal military structure.¹⁸ State and federal statutes still recognize the existence of an “unorganized militia,” but Americans now have virtually no expectation of being summoned for active participation in the militia. For its part, the federal military establishment has become enormously more powerful than eighteenth-century armies. These changes have raised questions about whether a well-armed citizenry remains valuable in the modern world as a check against either foreign invasion or tyrannical oppression.

Second, advancements in firearms technology have complicated the relationship between military and civilian weaponry. In the eighteenth century, civilians routinely kept at home the weapons they would need for service in the militia. There was virtually no distinction between the types of small arms used in combat by soldiers and those commonly relied upon by ordinary civilians for all manner of lawful activities, including hunting and personal defense. Modern soldiers are equipped with some types of weapons that have functions and capabilities designed specifically for warfare in ways that arguably render them inappropriate for use in civilian contexts. The value of an armed citizenry has become controversial, and many people today reject important assumptions that almost everyone accepted when the Second Amendment was adopted.

Third, legislatures have become increasingly aggressive in regulating weapons. In 1791, restrictions on the right of individuals to keep and bear arms appear to have been virtually nonexistent except for laws prohibiting the misuse of weapons.¹⁹ Accordingly, there was little reason for anyone to discuss the constitutionality of hypothetical regulations that Congress had no interest in enacting. But Congress eventually did adopt new restrictions, some of which interfere with the ability of citizens to defend themselves against violent criminals.

Fourth, the Fourteenth Amendment, which was ratified in 1868, imposed restrictions on the state governments that had not previously existed.

United States v. Miller

In 1934, Congress enacted the National Firearms Act, the first federal law to regulate the private possession of firearms.²⁰ The law’s scope was quite limited. Most significantly, it imposed a registration requirement and a then-prohibitive $200 excise tax on certain weapons, including machine guns and short-barreled shotguns, that had become associated with organized crime.²¹ Five years later, the U.S. Supreme Court considered a challenge to the provision that regulated short-barreled shotguns. In United States v. Miller (1939), the Court concluded unanimously that the purpose of the Second Amendment is “to assure the continuation and render possible the effectiveness of [militia] forces” but left open the factual question of whether short-barreled shotguns could serve that purpose.²²

Thereafter, the lower federal courts uniformly rejected Second Amendment challenges to gun control laws, often on the ground that the Supreme Court had implied that the Second Amendment protects only a “collective right” of the states to maintain militia organizations. The Miller opinion did not say this, and its ruling was based on the nature of the weapon, not on the militia status of the defendants. Nevertheless, the Court declined to review any of these decisions. Although the collective right theory never attracted a consensus among the public, the Second Amendment became a dead letter.²³

District of Columbia v. Heller

In the late twentieth century, the judicial consensus was challenged by a small group of practicing lawyers, including Robert A. Sprecher, Don B. Kates, David I. Caplan, Stephen P. Halbrook, David T. Hardy, and Robert Dowlut, who argued that the text and history of the Constitution show that the original meaning of the Second Amendment protects an individual right to have weapons for self-defense.²⁴ Quixotic as this project may have seemed to some at the time, it eventually bore fruit.

In District of Columbia v. Heller (2008), the Supreme Court for the first time found that a gun control regulation violated the Second Amendment.²⁵ Justice Antonin Scalia’s majority opinion for five Justices declared unconstitutional a federal law banning the civilian possession of handguns in the nation’s capital. Following the path laid out by the modern commentators, Scalia’s opinion provided considerable textual and historical support for the Court’s conclusion that the amendment protects a private right to keep and bear arms. The exercise of that right does not require any connection with militia service. The handgun ban was declared unconstitutional on the ground that it “amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for [the] lawful purpose [of self-defense] . . . . [H]andguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”²⁶

All four dissenters joined an opinion by Justice John Paul Stevens, who concluded that the amendment protects only “the right of the people of each of the several States to maintain a well-regulated militia.”²⁷ The dissent’s response to the majority’s arguments was based primarily on the Second Amendment’s reference to a well-regulated militia. Justice Stevens also relied on what he considered the idiomatic military sense of the phrase “bear arms.”²⁸ The dissent also pointed to the absence of express historical declarations that the amendment protects a private right of individuals.²⁹ All four dissenters also joined an opinion by Justice Stephen Breyer, who contended that even if the Second Amendment did protect an individual right to have arms for self-defense, it should be interpreted to allow the government to ban handguns in high-crime urban areas.³⁰

McDonald v. City of Chicago

The Bill of Rights, including the Second Amendment, originally applied only to the federal government.³¹ This limitation left the states with almost all of their extremely broad preexisting authority to restrict the possession and use of weapons. In 1868, however, the Fourteenth Amendment was ratified. There is significant historical evidence indicating that the amendment’s Privileges or Immunities Clause was meant to protect the Second Amendment right from infringement by state governments.³² (See Essay No. 194.) However, United States v. Cruikshank (1876) concluded that the Privileges or Immunities Clause did not make the Second Amendment applicable to the states.³³ The Second Amendment was therefore thought to place no limits on the power of state governments to regulate arms.

During the twentieth century, the Supreme Court began to invoke the Fourteenth Amendment’s Due Process Clause to apply most provisions of the Bill of Rights to the states and their political subdivisions. (See Essay No. 195.) The vast majority of gun control laws have been adopted at the state and local levels, so the extension of this due process “incorporation” doctrine to the Second Amendment would have significant practical consequences.

In McDonald v. City of Chicago (2010), the Court declared unconstitutional the city of Chicago’s handgun ban. The same five justices who had formed the majority in Heller now found that the Fourteenth Amendment made the Second Amendment applicable to the states. Justice Samuel Alito, writing for a four-Justice plurality, found that the right was incorporated under the Due Process Clause.³⁴ Justice Clarence Thomas, writing separately, relied instead on the original meaning of the Privileges or Immunities Clause.³⁵

Justice Breyer’s dissent for three members of the Court argued that Heller’s interpretation of the Second Amendment should not be extended to cover state laws.³⁶ Rather, he claimed, the spirit of the Constitution creates a presumption against judicial abridgements of the state’s regulatory powers.³⁷ Justice Stevens’s separate dissent argued that the Due Process Clause requires courts to work out the Second Amendment’s meaning through a process of case-by-case adjudication.³⁸ He concluded that the handgun ban should be upheld on grounds of judicial restraint.³⁹

New York State Rifle & Pistol Association v. Bruen

The holdings in Heller and McDonald were technically confined to bans on the possession of handguns by law-abiding civilians in their own homes. Those opinions, however, also included nonbinding remarks approving of (i) bans on the possession of firearms by felons and the mentally ill, (ii) bans on carrying guns in “sensitive places such as schools and government buildings,” (iii) laws restricting the commercial sale of arms, (iv) bans on the concealed carry of firearms, and (v) bans on weapons “not typically possessed by law-abiding citizens for lawful purposes.”⁴⁰ Heller and McDonald did not offer any legal analysis in support of these endorsements.⁴¹

In the years after these decisions, lower federal courts upheld almost every regulation they reviewed. Some were sustained because of the favorable comments about certain laws in Heller and McDonald. Most other regulations were upheld on the ground that an individual’s interest in exercising the right to arms must give way to restrictions that are substantially related to an important government interest. Although there were strong dissents in several cases, very few regulations were declared unconstitutional.⁴² In case after case, the Supreme Court denied review of decisions that upheld a gun control law. (In one case, the Court rejected a state court’s rationale for upholding a ban on stun guns and, without addressing the merits, sent the case back to the state court for reconsideration in light of the binding Heller precedent.⁴³)

More than a decade after McDonald, the Supreme Court decided New York State Rifle & Pistol Association v. Bruen (2022).⁴⁴ Justice Thomas’s six-to-three majority opinion found that a New York law giving government officials virtually unlimited discretion to ban the carrying of handguns in public was unconstitutional. For the first time, the Supreme Court found that the Second Amendment protects a right to bear arms in public as well as a right to keep arms at home. The Court rejected the interest-balancing approach that had been adopted by the lower courts. The Bruen majority considered this test excessively deferential to legislative judgments, and instead the Court required the government to “justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”⁴⁵

Nevertheless, Bruen left undisturbed the approving comments from Heller and McDonald about various forms of gun control, none of which had been supported by any historical or legal analysis. In a concurrence, Justice Brett Kavanaugh, joined by Chief Justice John Roberts, expressly reiterated these endorsements.⁴⁶ In addition, Bruen approved dozens of licensing regimes that restrict the right to carry firearms in public, although the Court qualified this endorsement by saying that it did not rule out constitutional challenges to permitting schemes that are put to abusive ends.⁴⁷ Again, no historical or legal support was offered for these endorsements.

Justice Breyer wrote a dissent for three members of the Court in which he argued that the Second Amendment leaves the states with wide discretion to balance the costs and benefits of restrictions on the public carry of firearms.⁴⁸ He also predicted that the majority’s nearly exclusive reliance on history will prove impractical.⁴⁹

United States v. Rahimi

Two years after Bruen, the Court decided United States v. Rahimi (2024).⁵⁰ Under federal law, a person subject to certain domestic-violence restraining orders is forbidden to possess a firearm. By a vote of 8 to 1, Rahimi upheld this statute. Chief Justice Roberts’s majority opinion did not identify any historical laws that disarmed people who had not misused weapons but were considered dangerous by government officials. Instead, the majority pointed to laws that forbade people to terrorize the public by going about with dangerous and unusual weapons. The Court also pointed to laws that allowed courts to require an individual to post a surety, or bond, for a short period of time when there was probable cause to suspect future misbehavior by that individual. The Court maintained that these two kinds of laws confirm a principle suggested by common sense: The government may disarm anyone who poses a clear threat of physical violence to another person.

Justice Thomas, author of the Bruen majority opinion, dissented.⁵¹ Under Bruen, when a modern regulation addresses a social problem that existed at the founding, like interpersonal violence, the government must prove that the problem was addressed by a historical regulation with a comparable burden and justification. The historical regulations cited by the majority did not stop anyone from possessing or carrying a weapon, but the statute at issue in Rahimi completely strips individuals of their Second Amendment rights even without evidence that they have ever used or threatened to misuse weapons. Therefore, Justice Thomas concluded, the burdens imposed by the regulations are not remotely comparable.

Open Questions

Two questions especially invite further attention from the Supreme Court. First, what kinds of conditions and qualifications on the exercise of gun rights will the courts permit? Second, what kind of historical evidence and how much of it will be required to justify specific restrictions on the possession, carrying, or use of firearms? Depending on how those questions are answered, the judicial revival of the Second Amendment initiated in Heller could either effectively expand our constitutional rights or prove to be a largely symbolic exercise that has little practical effect on the government’s regulatory discretion.

1. 1 W. & M., ch. 2, sess. 2 (1689) (Eng.). ↩︎
2. Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 113–21 (1994). ↩︎
3. Id. ↩︎
4. 1 Blackstone 144. ↩︎
5. N.C. Const. of 1776, Decl. of Rts., art. XVII; Pa. Const. of 1776, Decl. of Rts., art. XIII; VT. Const. of 1776, Decl. of Rts., art. XV; Mass. Const. of 1780, part I, art. XVII; Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Pol. 191, 208–09 (2006). ↩︎
6. Art. I, § 8, cls. 12–16; § 10, cl. 3. ↩︎
7. Nelson Lund, The Past and Future of the Individual’s Right to Arms, 31 Ga. L. Rev. 1, 30–32 (1996). ↩︎
8. Storing 2.9.99–101; 2.9.105; 2.9.110; 2.9.115–20. ↩︎
9. Id. at 2.8.39. ↩︎
10. Storing 5.16.2. ↩︎
11. 1 Annals of Cong. 434 (1789). ↩︎
12. Id. at 457. ↩︎
13. Id. at 749. ↩︎
14. The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins 169–81, 185–91 (Neil H. Cogan ed., 1997). ↩︎
15. Id. at 174–75; Lund, Past and Future, supra at 34 n.77. ↩︎
16. Lund, Past and Future, supra at 20–29; Nelson Lund, D.C.’s Handgun Ban and the Constitutional Right to Arms: One Hard Question?, 18 Geo. Mason U. Civ. Rts. L. J. 229, 236–40 (2008). ↩︎
17. 3 Story’s Commentaries § 1890; Andrews v. State, 50 Tenn. 165, 184 (1871). ↩︎
18. Perpich v. Dep’t of Def., 496 U.S. 334, 341–46 (1990); James B. Whisker, The Rise and Decline of the American Militia System 338–39 (1999). ↩︎
19. Dist. of Columbia v. Heller, 554 U.S. 570, 631–35 (2008); Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1362–64 (2009). ↩︎
20. National Firearms Act, Pub. L. 73-474, 26 U.S.C. §§ 5801–5872. ↩︎
21. Stephen P. Halbrook, Congress Interprets the Second Amendment: Declarations by a Co-Equal Branch on the Individual Right to Keep and Bear Arms, 62 Tenn. L. Rev. 597, 601–18 (1995). ↩︎
22. 307 U.S. 174, 178 (1939). ↩︎
23. Nelson Lund, The Right to Arms and the American Philosophy of Freedom, Heritage Found. First Principles No. 62 (Oct. 17, 2016), https://perma.cc/D76Q-5VKE. ↩︎
24. Nelson Lund, Outsider Voices on Guns and the Constitution, 17 Const. Comment. 701, 703–07 (2000). ↩︎
25. 554 U.S. 570 (2008). ↩︎
26. Id. at 628–29. Stephen P. Halbrook, Text-and-History or Means-End Scrutiny? A Response to Professor Nelson Lund’s Critique of Bruen, 24 Fed. Soc’y Rev. 54, 56–57 (2023); Nelson Lund, Stephen P. Halbrook’s Confused Defense of Bruen’s Novel Interpretive Rule, 31 Geo. Mason L. Rev. Forum 82, 89 (2023). ↩︎
27. 554 U.S. at 637 (Stevens, J., dissenting). ↩︎
28. Id. at 646–51. ↩︎
29. Id. at 652–80. ↩︎
30. Id. at 681–723 (Breyer, J., dissenting). ↩︎
31. Barron v. City of Balt., 322 U.S. 43 (1833). ↩︎
32. McDonald v. City of Chi., 561 U.S. 742, 822–38 (2010) (Thomas, J., concurring in part and concurring in the judgment). ↩︎
33. 925 U.S. 542, 551–53 (1876). ↩︎
34. McDonald, 561 U.S. at 780–87 (Alito, J.). ↩︎
35. Id. at 805–58 (Thomas, J., concurring in part and concurring in the judgment). ↩︎
36. Id. at 912–40 (Breyer, J., dissenting). ↩︎
37. Nelson Lund, Two Faces of Judicial Restraint (Or Are There More?) in McDonald v. Chicago, 63 Fla. L. Rev. 487, 514–23 (2011). ↩︎
38. 561 U.S. at 858–912 (Stevens, J., dissenting). ↩︎
39. Lund, Two Faces, supra at 514–20. ↩︎
40. Heller, 554 U.S. at 625–27; McDonald, 561 U.S. at 786 (plurality opinion). ↩︎
41. Lund, The Second Amendment, supra at 1356–68. ↩︎
42. Nelson Lund, The Future of the Second Amendment in a Time of Lawless Violence, 116 Nw. U. L. Rev. 81, 93 (2021); Nelson Lund, Bruen’s Preliminary Preservation of the Second Amendment, 23 Fed. Soc’y Rev. 279, 284–89 (2022). ↩︎
43. Caetano v. Massachusetts, 577 U.S. 411 (2016). ↩︎
44. 597 U.S. 1 (2022). ↩︎
45. Id. at 18 (quotation marks and citation omitted). ↩︎
46. Id. at 80–81 (Kavanaugh, J., concurring). ↩︎
47. Id. at 38 n.9 (majority opinion). ↩︎
48. Id. at 93–102 (Breyer, J., dissenting). ↩︎
49. Id. at 107–115. ↩︎
50. 602 U.S. 680 (2024). ↩︎
51. Id. at 747. ↩︎