Second Amendment Decisions

Contents
DC v. Heller (2008)
The Meaning of the Second Amendment
  • Overview
    • In DC v Heller (2008) Justices Antonin Scalia and John Paul Stevens go head-to-head in a debate about the original public meaning of the Second Amendment.
    • Second 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.”
    • The amendment was adopted so that militias of armed citizens could be a counterforce to a standing federal army.
    • Does the amendment guarantee:
      1. a right to possess and carry weapons in case of confrontation, e.g. in self-defense?
      2. a right to possess and use arms in conjunction with service in a well-regulated militia?
      3. or simply a right to possess and carry arms.
  • Basics
    • Facts of the case
      • Dick Anthony Heller was a D.C. special police officer authorized to carry a handgun on duty. He applied for a one-year license for a handgun to keep at home, but his application was denied. Heller sued the District of Columbia, arguing it had violated his Second Amendment right to keep a functional firearm in his home without a license. 
    • Scalia’s Ruling
      • The inherent right of self-defense has been central to the Second Amendment right.
      • We hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.
    • oyez.org/cases/2007/07-290
    • law.cornell.edu/supct/html/07-290.ZS.html
  • Second 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.”
  • Terminology
    • Prefatory Clause (Preamble)
      • A well regulated Militia, being necessary to the security of a free State
    • Operative Clause
      • the right of the people to keep and bear Arms, shall not be infringed
  • Equivalent Formulations using since, therefore, reason, why, because:
    • The right of the people to keep and bear Arms shall not be infringed, since a well regulated Militia is necessary to the security of a free State.
    • A well regulated Militia is necessary to the security of a free State. Therefore, the right of the people to keep and bear Arms shall not be infringed.
    • The right of the people to keep and bear Arms shall not be infringed. The reason: 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. Why? Because a well regulated Militia is necessary to the security of a free State.
  • Why the Amendment was Adopted
    • Scalia
      • 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.
    • Stevens
      • The history of the adoption of the Amendment thus describes an overriding concern about the potential threat to state sovereignty that a federal standing army would pose, and a desire to protect the States’ militias as the means by which to guard against that danger. But state militias could not effectively check the prospect of a federal standing army so long as Congress retained the power to disarm them, and so a guarantee against such disarmament was needed
    • View Adoption of the Second Amendment.
  • Original Public Meaning of the Second Amendment
    • Scalia
      • Prefatory Clause
        • The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause.
      • 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.
    • Stevens
      • When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.
    • In sum,
      • For Scalia, the Second Amendment guarantees a right to possess and carry weapons for use in a confrontation, e.g. in self-defense
      • For Stevens, the Second Amendment guarantees a right to possess and use arms for use in a well-regulated militia.
  • Arguments
    • Scalia’s arguments for the right to possess and carry weapons for use in a confrontation
      • Article VII of the English Bill of Rights of 1689
        • The second amendment derives from Article VII of the English Bill of Rights of 1689, which had nothing to do with service in a militia.
      • Meaning of “Bear Arms”
        • At the time of the founding “bear arms” referred to carrying weapons for a particular purpose—confrontation. 
      • State Analogues
        • Pre-Second Amendment state constitutional provisions secured an individual right to bear arms for defensive purposes. 
    • Stevens’ arguments for the right to possess and use arms for use in a well-regulated militia.
      • Prefatory Clause
        • The reason for the right to possess and use arms is that militias of armed citizens are necessary for a free country.
        • The absence of any reference to civilian uses of weapons tailors the text of the Amendment to the purpose identified in its preamble
      • Meaning of “Bear Arms”
        • “Bear arms” most naturally conveys a military meaning unless qualified otherwise.
      • State Analogues
        • Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves,” as was done in the Pennsylvania and Vermont Declarations of Rights. 
      • Stare Decisis, Based on the Precedent of US v. Miller (1939)
        • The Miller Court unanimously concluded that the Second Amendment did not apply to the possession of a firearm that did not have “some reasonable relationship to the preservation or efficiency of a well regulated militia.”
  • Overviews
    • Scalia
      • 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.
        • The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause.
        • The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment.
        • 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.
        • 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.
        • None of the Court’s precedents forecloses the Court’s interpretation.
    • Stevens
      • The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.
  • Does the Prefatory Clause Modify the Operative Clause?
    • Scalia
      • The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause.
      • 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. 
    • Stevens
      • The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. Such text should not be treated as mere surplusage, for “it cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison (1803).
      • The absence of any reference to civilian uses of weapons tailors the text of the Amendment to the purpose identified in its preamble
      • Similarly, the words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble.
      •  As used in the Second Amendment , the words “the people” do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia.
    • Analogy
      • Opiates being necessary for the relief of severe pain, the right of the people to keep and use opiates shall not be infringed.
      • Does this mean:
        • The right of the people to keep and use opiates shall not be infringed.
        • The right of the people to keep and use opiates for severe pain relief shall not be infringed.
  • Article VII of the English Bill of Rights of 1689
    • avalon.law.yale.edu/17th_century/england.asp
      • “That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law”
    • Scalia
      • It has always been widely understood that the Second Amendment, like the First and Fourth Amendment’s, 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.”
      • This English right to have arms for their defense has long been understood to be the predecessor to our Second Amendment.
      • 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. 
    • Stevens
      • The Court’s reliance on Article VII of the 1689 English Bill of Rights is misguided both because Article VII was enacted in response to different concerns from those that motivated the Framers of the Second Amendment, and because the guarantees of the two provisions were by no means coextensive. Moreover, the English text contained no preamble or other provision identifying a narrow, militia-related purpose.
  • Original Public Meaning of “Bear Arms”
    • Scalia
      • At the time of the founding, as now, to “bear” meant to “carry.”  When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. 
      • 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 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.” 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. Every example given by petitioners’ amici for the idiomatic meaning of “bear arms” from the founding period either includes the preposition “against” or is not clearly idiomatic.
    • Stevens
      • The stand-alone phrase “bear arms” most naturally conveys a military meaning unless the addition of a qualifying phrase signals that a different meaning is intended. When, as in this case, there is no such qualifier, the most natural meaning is the military one; and, in the absence of any qualifier, it is all the more appropriate to look to the preamble to confirm the natural meaning of the text
    • The Mysterious Meaning of the Second Amendment, by James C. Phillips and Josh Blackman  Atlantic
      • With that in mind, in mid-2018 we searched large collections of language from around the time of the founding, and published our tentative findings on the Harvard Law Review’s blog. We used two databases: the Corpus of Founding Era American English (COFEA), which contains about 140 million words of text from various American documents published from 1760 to 1799, and the Corpus of Early Modern English (COEME), which covers British English from 1475 to 1800 and includes more than 1 billion words of text. We have now expanded that initial research to consider how other aspects of the Second Amendment were understood at the time of the framing. 
      • We combed through COFEA for a specific pattern, locating documents in which bear and arms (and their variants) appear within six words of each other. Doing so, we were able to find documents with grammatical constructions such as the arms were borne. In roughly 90 percent of our data set, the phrase bear arms had a militia-related meaning, which strongly implies that bear arms was generally used to refer to collective military activity, not individual use.
      • Further, we found that bear arms often took on a military meaning without being followed by against. Thus, the word against was sufficient, but not necessary, to give the phrase bear arms a militia-related meaning. Scalia was wrong on this particular claim.
  • State Analogues
    • Scalia
      • The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment
      • Four States adopted analogues to the Federal Second Amendment in the period between independence and the ratification of the Bill of Rights. We believe that the most likely reading of all four of these pre-Second Amendment state constitutional provisions is that they secured an individual right to bear arms for defensive purposes. Other States did not include rights to bear arms in their pre-1789 constitutions.
        • Pennsylvania 1776 “That the people have a right to bear arms for the defence of themselves, and the state … .”
        • Vermont 1777 same as Pennsylvania
        • North Carolina 1776 “That the people have a right to bear arms, for the defence of the State … .” 
          • This could plausibly be read to support only a right to bear arms in a militia—but that is a peculiar way to make the point in a constitution that elsewhere repeatedly mentions the militia explicitly. 
        • Massachusetts 1780  “The people have a right to keep and to bear arms for the common defence… .” 
      • Between 1789 and 1820, nine States adopted Second Amendment analogues. That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right.
        • Kentucky, Ohio, Indiana, and Missouri—referred to the right of the people to “bear arms in defence of themselves and the State.” 
        • Mississippi, Connecticut, and Alabama—used the even more individualistic phrasing that each citizen has the “right to bear arms in defence of himself and the State.”
        • Tennessee and Maine—used the “common defence” language of Massachusetts. 
    • Stevens
      • Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves,” as was done in the Pennsylvania and Vermont Declarations of Rights. 
        • Pennsylvania 1776 “That the people have a right to bear arms for the defence of themselves, and the state … .”
        • Vermont 1777 “[t]hat the people have a right to bear arms for the defence of themselves and the State.” 
      • The contrast between those two declarations and the Second Amendment reinforces the clear statement of purpose announced in the Amendment’s preamble. It confirms that the Framers’ single-minded focus in crafting the constitutional guarantee “to keep and bear arms” was on military uses of firearms, which they viewed in the context of service in state militias.
  • US v. Miller (1939) 
    • In US v. Miller the Court ruled that the possession of a weapon with no “reasonable relation to the preservation or efficiency of a well-regulated militia” is not protected by the Second Amendment.
    • Scalia
      • This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”).
      • We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machine guns (not challenged in Miller) might be unconstitutional, machine guns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: 
        • “Ordinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
      • The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment ’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.
    • Stevens
      • After reviewing many of the same sources that are discussed at greater length by the Court today, the Miller Court unanimously concluded that the Second Amendment did not apply to the possession of a firearm that did not have “some reasonable relationship to the preservation or efficiency of a well regulated militia.”
      • Indeed, if the Second Amendment were not limited in its coverage to military uses of weapons, why should the Court in Miller have suggested that some weapons but not others were eligible for Second Amendment protection? If use for self-defense were the relevant standard, why did the Court not inquire into the suitability of a particular weapon for self-defense purposes?
  • Right to Bear Arms and Gun Regulation
    • Scalia
      • 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. 
    • Breyer’s Dissent
      • I assume that one objective of those who wrote the Second Amendment was to help assure citizens that they would have arms available for purposes of self-defense. Even so, a legislature could reasonably conclude that the law will advance goals of great public importance, namely, saving lives, preventing injury, and reducing crime. 
      • Colonial history itself offers important examples of the kinds of gun regulation that citizens would then have thought compatible with the “right to keep and bear arms,” whether embodied in Federal or State Constitutions, or the background common law. And those examples include substantial regulation of firearms in urban areas, including regulations that imposed obstacles to the use of firearms for the protection of the home. 
      • How is a court to determine whether a particular firearm regulation is consistent with the Second Amendment ? What kind of constitutional standard should the court use? How high a protective hurdle does the Amendment erect?
      • I would simply adopt an interest-balancing inquiry. The fact that important interests lie on both sides of the constitutional equation suggests that review of gun-control regulation is not a context in which a court should effectively presume either constitutionality (as in rational-basis review) or unconstitutionality (as in strict scrutiny). Rather, “where a law significantly implicates competing constitutionally protected interests in complex ways,” the Court generally asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.
US v. Miller (1939)
  • Ruling
    • The possession of a weapon with no “reasonable relation to the preservation or efficiency of a well-regulated militia” is not protected by the Second Amendment.
  • oyez.org/cases/1900-1940/307us174
  • law.cornell.edu/supremecourt/text/307/174
    • In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. (Aymette v. State of Tennessee)
  • The Court’s argument, reconstructed:
    • The Court cannot say that the possession of a sawed-off shotgun has has some reasonable relationship to the preservation or efficiency of a well regulated militia,
    • Therefore, the Court cannot say that the Second Amendment guarantees the right to keep and bear a sawed-off shotgun.
  • The conclusion follows only if: 
    • It’s known that the possession of a weapon with no “reasonable relation to the preservation or efficiency of a well-regulated militia” is not protected by the Second Amendment.
  • Analogy
    • Argument
      • It’s not known that Jones is a native-born US citizen.
      • Therefore it’s not known that Jones is eligible to be president
    • The conclusion follows only if
      • It’s known that if a person is eligible to be president, they’re a native-born US citizen.
  • Argument Form
    • K(if P then Q)
      • It’s known that if P then Q
    • ~K(Q)
      • It’s not known that Q
    • Therefore ~K(P)
      • It’s not known that P
McDonald v. Chicago (2010)
  • In Heller, the Court ruled the Second Amendment limits the federal government’s powers in the District of Columbia. In McDonald v. Chicago, the Court extended that ruling to the states so that the Second Amendment’s “right to keep and bear arms” also limits state gun-control laws, by virtue of the Fourteenth Amendment.
  • oyez.org/cases/2009/08-1521
  • law.cornell.edu/supct/cert/08-1521
New York State Rifle & Pistol Association Inc. v. Bruen (Current)
  • In New York state it’s hard to get an unlimited license to carry a firearm. You’ve got to “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” Two guys who failed to get such licenses sued New York arguing that the state’s 108-year-old law requiring proof of special need infringed their right to carry firearms for self-defense.  The case before the court is New York State Rifle & Pistol Association v. Bruen.
  • Websites
  • The Supreme Court case that could gut America’s gun laws, explained, Ian Millhiser Vox
    • The plaintiffs, represented by Republican lawyer Paul Clement, argue that “founding-era cases, commentaries, and laws on both sides of the Atlantic … confirm that the founding generation understood the Second Amendment and its English predecessor to guarantee a right to carry common arms for self-defense.”
    • New York’s lawyers, meanwhile, cite many of the same historical sources but make a more nuanced argument that “any right to bear arms outside the home permits a State to condition handgun carrying in areas ‘frequented by the general public’ on a showing of a non-speculative need for armed self-defense in those areas.” Thus, they argue, states may apply stricter gun-control rules in cities and other population centers than they can in more sparsely populated areas.
  • Now the Supreme Court will decide what it means to ‘bear’ arms, George Will WaPo
    • Thirteen years have passed since this ruling that the amendment guarantees an individual right, independent of militia membership. But the particular right at issue in 2008 was the right to keep a functioning handgun in one’s home for self-defense. Now, the court must construe one of the amendment’s 14 other words: “bear.”
    • Hawaii is one of seven states with laws similar to New York’s, and last March the U.S. Court of Appeals for the 9th Circuit, noting a long tradition of governments regulating “firearms in the public square,” ruled (7 to 4) that Hawaii’s law is constitutional because there is no Second Amendment right “to carry arms openly.” Five years ago, the 9th Circuit, which includes 67 million Americans, said the same about concealed carrying.
    • Briefs supporting and opposing New York have excavated historical examples of laws protecting, and laws circumscribing, the right to carry guns in public. Even 19th century Tombstone, Ariz., when it was a wilder part of the Wild West than it wanted to be, required new arrivals to deposit their guns at the edge of town, or to register them with the sheriff.
    • But 25 Republican U.S. senators say these various laws, which illustrate the history of legislatures balancing gun rights and consideration of public safety, are irrelevant because such legislative balancing is impermissible. The senators’ amicus brief says the Second Amendment’s framers did the balancing with finality: They decided that the benefits of guaranteeing the right to bear arms “outweigh” any costs, and by writing this judgment into the Constitution they precluded any future legislature from adopting a different risk-benefit calculation. Bearing arms is a right “the people” enjoy without seeking permission; it is not a “mere privilege” for a few government-favored categories of people. The senators say the right to “bear” as well as “keep” arms means that the amendment’s framers meant the right to apply “both at home and out in the world.” This “constitutional choice made in 1791” stands until the Constitution is amended.
    • The senators’ argument has a beguiling clarity that essentially eliminates the need for, or possibility of, making policy judgments. It must, however, accommodate what Justice Antonin Scalia, writing for the majority, said in 2008: Nothing “in our opinion should 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.” Furthermore, the opinion protected the sort of weapons “in common use” when the amendment was ratified, and acknowledged “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”
    • So, some balancing of the Second Amendment individual right with concerns about public safety, although supposedly proscribed in 1791, was contemplated in 2008. It would be astonishing for the court to say, when it decides New York’s case, this: The individual right first explicitly affirmed in 2008 is unique among constitutional rights in being absolutely immune from limits.
Adoption of the Second Amendment
  • Second Amendment Britannica
    • The Second Amendment provided a constitutional check on congressional power under Article I Section 8 to organize, arm, and discipline the federal militia.
  • Bill of Rights Britannica
    • Hostility to standing armies found expression in the Second Amendment’s guarantee of the people’s right to bear arms and in the Third Amendment’s prohibition of the involuntary quartering of soldiers in private houses.
  • Second Amendment  History.com
    • During the Revolutionary War era, “militia” referred to groups of men who banded together to protect their communities, towns, colonies and eventually states, once the United States declared its independence from Great Britain in 1776
    • But as militias had proved insufficient against the British, the Constitutional Convention gave the new federal government the power to establish a standing army, even in peacetime.
    • However, opponents of a strong central government (known as Anti-Federalists) argued that this federal army deprived states of their ability to defend themselves against oppression. They feared that Congress might abuse its constitutional power of “organizing, arming and disciplining the Militia” by failing to keep militiamen equipped with adequate arms.
    • So, shortly after the U.S. Constitution was officially ratified, James Madison proposed the Second Amendment as a way to empower these state militias. While the Second Amendment did not answer the broader Anti-Federalist concern that the federal government had too much power, it did establish the principle (held by both Federalists and their opponents) that the government did not have the authority to disarm citizens.
  • Second Amendment to the United States Constitution Wiki
    • Subsequently, the Constitutional Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size. Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power
    • A widespread fear, during the debates on ratifying the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens, or prohibiting citizens from arming themselves. Though it has been argued that the states lost the power to arm their citizens when the power to arm the militia was transferred from the states to the federal government by Article I, Section 8 of the Constitution, the individual right to arm was retained and strengthened by the Militia Acts of 1792 and the similar act of 1795.
  • What the Second Amendment really meant to the Founders  WaPo
    • The amendment’s primary justification was to prevent the United States from needing a standing army.
      • Preventing the United States from starting a professional army, in fact, was the single most important goal of the Second Amendment. It is hard to recapture this fear today, but during the 18th century few boogeymen were as scary as the standing army — an army made up of professional, full-time soldiers.
      • By the logic of the 18th century, any society with a professional army could never be truly free. The men in charge of that army could order it to attack the citizens themselves, who, unarmed and unorganized, would be unable to fight back. This was why a well-regulated militia was necessary to the security of a free state: To be secure, a society needed to be able to defend itself; to be free, it could not exist merely at the whim of a standing army and its generals.