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).
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)(quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that JUSTICE GINSBURG accurately captured thenatural meaning of “bear arms.” Although the phraseimplies 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.
See Pa. Declaration of Rights §XIII, in 5 Thorpe 3083 (“That thepeople 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 thepeople 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 tobear arms for the defense of themselves and the State. . . ”); Miss.Const., Art. I, §23 (1817), in 4 id., at 2032, 2034 (“Every citizen has aright 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 beararms 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 indefence 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).
The phrase “bear Arms” also had at the time of the founding an idiomatic meaning that was significantlydifferent 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 whenfollowed by the preposition “against,” which was in turnfollowed 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 bypetitioners’ amici for the idiomatic meaning of “bear arms” —————— 9See 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). 13 Cite as: 554 U. S. ____ (2008) 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.
10See 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, andall other persons pursuing Hu[e] and Cry may lawfully bear arms”); 1An 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, heshall 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 fordisarming the highlands” but “exempting those who have particularlicenses to bear arms”); E. de Vattel, The Law of Nations, or, Principles of the Law of Nature 144 (1792) (“Since custom has allowed persons ofrank and gentlemen of the army to bear arms in time of peace, strictcare 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 theKing’s subjects, qualified by law to bear arms”); C. Humphreys, A Compendium of the Common Law in force in Kentucky 482 (1822) (“[I]nthis 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”).
Finally, JUSTICE STEVENS suggests that “keep and bearArms” was some sort of term of art, presumably akin to“hue and cry” or “cease and desist.” (This suggestionusefully evades the problem that there is no evidencewhatsoever to support a military reading of “keep arms.”)JUSTICE STEVENS believes that the unitary meaning of —————— 13The same applies to the conscientious-objector amendments proposed by Virginia and North Carolina, which said: “That any personreligiously 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 armsin 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.
(Page)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 topetition 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 constitutionalright 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 ofbearing arms for personal defence,” making clear that nospecial military meaning for “keep and bear arms” was intended in the discussion. Id., at 467–468.15
Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded inusing select militias loyal to them to suppress politicaldissidents, 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 experiencescaused Englishmen to be extremely wary of concentratedmilitary 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 wascodified as the English Bill of Rights), that Protestants —————— Officers or their Assistants, employed in the Execution of Justice . . .”). 16Contrary to JUSTICE STEVENS’ wholly unsupported assertion, post, at 17, there was no pre-existing right in English law “to use weaponsfor 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 haslong been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights andWhat 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 Bogus207, 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 “libertarianpolitical 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).
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 “[i]t is anatural 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 Writingsof 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 notesto 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).
St. George Tucker’s version of Blackstone’s Commentaries, as we explained above, conceived of the Blackstonianarms right as necessary for self-defense. He equated thatright, absent the religious and class-based restrictions,with the Second Amendment. See 2 Tucker’s Blackstone 143. In Note D, entitled, “View of the Constitution of the United States,” Tucker elaborated on the Second Amendment: “This may be considered as the true palladium ofliberty . . . . The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limitspossible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” 1 id., at App. 300 (ellipsis in original). He believed that the English game laws had abridged the right by prohibiting “keeping a gun or other engine for the destruction of game.” Ibid; see also 2 id., at 143, and nn. 40 and 41. He later grouped the right with some of the individual rightsincluded in the First Amendment and said that if “a law be passed by congress, prohibiting” any of those rights, itwould “be the province of the judiciary to pronouncewhether any such act were constitutional, or not; and if not, to acquit the accused . . . .” 1 id., at App. 357. It is unlikely that Tucker was referring to a person’s being “accused” of violating a law making it a crime to bear armsin a state militia.19
In 1825, William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that ratified the Bill of Rights, published an influential treatise, whichanalyzed the Second Amendment as follows:
“The first [principle] is a declaration that a wellregulated militia is necessary to the security of a free state; a proposition from which few will dissent. . . .“The corollary, from the first position is, that theright of the people to keep and bear arms shall not be infringed.
“The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”
Rawle 121–122.20 Like Tucker, Rawle regarded the English game laws asviolating the right codified in the Second Amendment. See id., 122–123.
“The rifle has ever been the companion of the pioneerand, under God, his tutelary protector against the red man and the beast of the forest. Never was this efficient weapon more needed in just self-defence, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guarantee, embodied in the Amendments to the Constitution, that ‘the right of the people to keep and bear arms shall not be infringed,’ 37 Cite as: 554 U. S. ____ (2008) Opinion of the Court the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, thatthey should be disarmed—of course, that the fanatics of Slavery, his allies and constituents, may meet no impediment.” The Crime Against Kansas, May 19–20, 1856, in American Speeches: Political Oratory fromthe Revolution to the Civil War 553, 606–607 (2006).
Why do we need the amendment process when we have the Supreme Court as constituted after Marbury v. Madison?
A similar query, why bother enumerating powers if the “general welfare” clause allows all?
My thoughts:
1. I too prayed. Not a common event, but last night on retiring, I realized that there was a real chance for a wrong decision, and the potential ruin of the Republic.
2. It wasn’t that close. It’s a false notion that one judge would have led to the opposite result. If Kennedy had been more anti, the opinion would have been less favorable, but a negotiated compromise. If Kennedy had been fully stubborn, then one of the 4 would have been brought in to the majority, with the decision watered down to their satisfaction. There may even have been an element of letting them have safe dissenting votes, but they might have supported a reasonable result if necessary.
3. The answer to all the “how does this affect...?” questions is the same. After generations of minimal Supreme Court activity on the gun issue, we are entering a fertile era. In the next 10-15 years, we will see numerous cases decided, and the Court will draw the lines for future gun rights and restrictions. This includes right to carry, full faith and credit, right to travel, city bans, Assault Weapon (so-called) bans, machine guns, taxes, regulations. Everything. The decision does not resolve any of them in advance, but lays a solid brick for the foundation. This is the first ever gun restriction to be overturned based on the Second Amendment, and there will probably be more. With good strategy, the next case will be an incremental one. Perhaps it will establish that the Second Amendment applies to the States. The Chicago gun ban would be good for this. California AWB has other issues (like “what is an unusually dangerous weapon”?)
4. I wonder if the dissenters are receiving extra security. A large fraction of the nation believes them to have attempted treason. One wonders if there are any unstable nuts among that group who think they need to take action.
5. Prediction: 10 years from now, Chicago bans and AWBs will be overturned. Machine guns will still be expensive, and travelers may have more rights to carry for self defense away form home.
I tend to believe the notion that says he wrote it to be as aggressive as possible while still retaining the majority, purposely alienating the 4 stooges.
He could perhaps have been somewhat less absolutist, still overturned the DC ban, and maybe nabbed Souter.
I think he was purposely pushing the limit. Not that this was a perfect result, and I agree that it should have been 9-0 regardless, but I think 5-4 is a reflection of the strength of the opinion moreso than risk of finding for a collective right.
When future monumental Constitutional issues come before the Court,
We cannot afford to have one or more Obama appointees on that bench.
Just Say No to O!
It’s a good decision, but one that should NEVER have been needful. Our RIGHTS are not up for a vote by ANYONE. Since they are not GRANTED by government, they are not subject to restriction by government. Only at the LOCAL level can a city regulate where and when someone may discharge a firearm in other than an emergency situation. That’s it and that’s all. Numbers, types, etcetera, are NOT subject to ANYONE’S regulation or restriction. Ever.
As others have said: one vote away from tyranny is WAY too close for comfort.
Some cop lady was on TV this evening saying that DC residents could bring their “legal” firearms to the police department and register it. Who decides what is legal and who decides DC gets to keep a list of who has what firearm? Do the law abiding citizens of DC really have to report to the PD so some flunkie can write down a serial number next to their name and address?
The right of the people to keep and bear arms shall not be infringed, and one reason for that is the need for militias. (a clearer wording) Thanks neverdem.
5-4 is waaaaaay too close. I do not find comfort that 4 black roded tyrants tried to undo the Republic. But for the weekend I will celebrate our victory. God bless America!
If McCain runs on this premise, he has my vote. Hands down. Even with all his other warts.
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 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).
If the title isn't the understatement of the day, please show it to me.
Well, you're right, of course. But it may also be just as true to say that they're the ones who dodged the bullet. Or at least delayed it a bit.
We shall see.
Scalia exposes, eviscerates and fillets Stevens' and all statist gun grabbing pretensions with irony as sharp as a stiletto: Here's one of my favorite parts of the opinion:
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 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.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...
...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, ... that is, the organized militia is the sole institutional 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. 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.
[emphasis mine]
Now THAT, my FRiends, is a thing of beauty.
Cordially