|
Second Amendment Ruling of 2008
by US Supreme Court
(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 disassembled 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.
© 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 disassembled
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
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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,
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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
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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
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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
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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-
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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) ("[I]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 "[i]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 "[i]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--
Pennsylvania and Vermont--clearly adopted individual
rights unconnected to militia service. Pennsylvania's
Declaration of Rights of 1776 said: "That the people have a
right to bear arms for the defence of themselves, and the
state . . . ." ?XIII, in 5 Thorpe 3082, 3083 (emphasis
added). In 1777, Vermont adopted the identical provision,
except for inconsequential differences in punctuation and
capitalization. See Vt. Const., ch. 1, ?15, in 6 id., at 3741.
North Carolina also codified a right to bear arms in
1776: "That the people have a right to bear arms, for the
defence of the State . . . ." Declaration of Rights ?XVII, in
id., at 2787, 2788. 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. See ??14, 18,
35, in 5 id., 2789, 2791, 2793. Many colonial statutes
required individual arms-bearing for public-safety reasons--
such as the 1770 Georgia law that "for the security
and defence of this province from internal dangers and
insurrections" required those men who qualified for militia
duty individually "to carry fire arms" "to places of public
worship." 19 Colonial Records of the State of Georgia 137-
139 (A. Candler ed. 1911 (pt. 2)) (emphasis added). That
broad public-safety understanding was the connotation
given to the North Carolina right by that State's Supreme
Court in 1843. See State v. Huntly, 3 Ired. 418, 422-423.
The 1780 Massachusetts Constitution presented another
variation on the theme: "The people have a right to keep
and to bear arms for the common defence. . . ." Pt. First,
Art. XVII, in 3 Thorpe 1888, 1892. Once again, if one
gives narrow meaning to the phrase "common defence"
this can be thought to limit the right to the bearing of
arms in a state-organized military force. But once again
the State's highest court thought otherwise. Writing for
the court in an 1825 libel case, Chief Justice Parker wrote:
Cite as: 554 U. S. ____ (2008) 29
Opinion of the Court
"The liberty of the press was to be unrestrained, but he
who used it was to be responsible in cases of its abuse; like
the right to keep fire arms, which does not protect him
who uses them for annoyance or destruction." Commonwealth
v. Blanding, 20 Mass. 304, 313-314. The analogy
makes no sense if firearms could not be used for any individual
purpose at all. See also Kates, Handgun Prohibition
and the Original Meaning of the Second Amendment,
82 Mich. L. Rev. 204, 244 (1983) (19th-century courts
never read "common defence" to limit the use of weapons
to militia service).
We therefore 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--
although in Virginia a Second Amendment analogue was
proposed (unsuccessfully) by Thomas Jefferson. (It read:
"No freeman shall ever be debarred the use of arms
[within his own lands or tenements]."18 1 The Papers of
Thomas Jefferson 344 (J. Boyd ed. 1950)).
Between 1789 and 1820, nine States adopted Second
Amendment analogues. Four of them--Kentucky, Ohio,
Indiana, and Missouri--referred to the right of the people
to "bear arms in defence of themselves and the State." See
n. 8, supra. Another three States--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." See ibid. Finally, two
States--Tennessee and Maine--used the "common defence"
language of Massachusetts. See Tenn. Const., Art.
------------
18 JUSTICE STEVENS says that the drafters of the Virginia Declaration
of Rights rejected this proposal and adopted "instead" a provision
written by George Mason stressing the importance of the militia. See
post, at 24, and n. 24. There is no evidence that the drafters regarded
the Mason proposal as a substitute for the Jefferson proposal.
30 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
XI, ?26 (1796), in 6 Thorpe 3414, 3424; Me. Const., Art. I,
?16 (1819), in 3 id., at 1646, 1648. 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. And with one possible exception
that we discuss in Part II-D-2, 19th-century courts and
commentators interpreted these state constitutional provisions
to protect an individual right to use arms for selfdefense.
See n. 9, supra; Simpson v. State, 5 Yer. 356, 360
(Tenn. 1833).
The historical narrative that petitioners must endorse
would thus treat the Federal Second Amendment as an
odd outlier, protecting a right unknown in state constitutions
or at English common law, based on little more than
an overreading of the prefatory clause.
C
JUSTICE STEVENS relies on the drafting history of the
Second Amendment--the various proposals in the state
conventions and the debates in Congress. It is dubious to
rely on such history to interpret a text that was widely
understood to codify a pre-existing right, rather than to
fashion a new one. But even assuming that this legislative
history is relevant, JUSTICE STEVENS flatly misreads
the historical record.
It is true, as JUSTICE STEVENS says, that there was
concern that the Federal Government would abolish the
institution of the state militia. See post, at 20. That
concern found expression, however, not in the various
Second Amendment precursors proposed in the State
conventions, but in separate structural provisions that
would have given the States concurrent and seemingly
nonpre-emptible authority to organize, discipline, and arm
the militia when the Federal Government failed to do so.
Cite as: 554 U. S. ____ (2008) 31
Opinion of the Court
See Veit 17, 20 (Virginia proposal); 4 J. Eliot, The Debates
in the Several State Conventions on the Adoption of the
Federal Constitution 244, 245 (2d ed. 1836) (reprinted
1941) (North Carolina proposal); see also 2 Documentary
Hist. 624 (Pennsylvania minority's proposal). The Second
Amendment precursors, by contrast, referred to the individual
English right already codified in two (and probably
four) State constitutions. The Federalist-dominated first
Congress chose to reject virtually all major structural
revisions favored by the Antifederalists, including the
proposed militia amendments. Rather, it adopted primarily
the popular and uncontroversial (though, in the Federalists'
view, unnecessary) individual-rights amendments.
The Second Amendment right, protecting only individuals'
liberty to keep and carry arms, did nothing to assuage
Antifederalists' concerns about federal control of the militia.
See, e.g., Centinel, Revived, No. XXIX, Philadelphia
Independent Gazetteer, Sept. 9, 1789, in Young 711, 712.
JUSTICE STEVENS thinks it significant that the Virginia,
New York, and North Carolina Second Amendment proposals
were "embedded . . . within a group of principles
that are distinctly military in meaning," such as statements
about the danger of standing armies. Post, at 22.
But so was the highly influential minority proposal in
Pennsylvania, yet that proposal, with its reference to
hunting, plainly referred to an individual right. See 2
Documentary Hist. 624. Other than that erroneous point,
JUSTICE STEVENS has brought forward absolutely no
evidence that those proposals conferred only a right to
carry arms in a militia. By contrast, New Hampshire's
proposal, the Pennsylvania minority's proposal, and Samuel
Adams' proposal in Massachusetts unequivocally
referred to individual rights, as did two state constitutional
provisions at the time. See Veit 16, 17 (New Hampshire
proposal); 6 Documentary Hist. 1452, 1453 (J.
Kaminski & G. Saladino eds. 2000) (Samuel Adams' pro32
DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
posal). JUSTICE STEVENS' view thus relies on the proposition,
unsupported by any evidence, that different people of
the founding period had vastly different conceptions of the
right to keep and bear arms. That simply does not comport
with our longstanding view that the Bill of Rights
codified venerable, widely understood liberties.
D
We now address how the Second Amendment was interpreted
from immediately after its ratification through the
end of the 19th century. Before proceeding, however, we
take issue with JUSTICE STEVENS' equating of these
sources with postenactment legislative history, a comparison
that betrays a fundamental misunderstanding of a
court's interpretive task. See post, at 27, n. 28. "Legislative
history," of course, refers to the pre-enactment statements
of those who drafted or voted for a law; it is considered
persuasive by some, not because they reflect the
general understanding of the disputed terms, but because
the legislators who heard or read those statements presumably
voted with that understanding. Ibid. "Postenactment
legislative history," ibid., a deprecatory contradiction
in terms, refers to statements of those who
drafted or voted for the law that are made after its enactment
and hence could have had no effect on the congressional
vote. It most certainly does not refer to the examination
of a variety of legal and other sources to determine
the public understanding of a legal text in the period after
its enactment or ratification. That sort of inquiry is a
critical tool of constitutional interpretation. As we will
show, virtually all interpreters of the Second Amendment
in the century after its enactment interpreted the amendment
as we do.
1. Post-ratification Commentary
Three important founding-era legal scholars interpreted
Cite as: 554 U. S. ____ (2008) 33
Opinion of the Court
the Second Amendment in published writings. All three
understood it to protect an individual right unconnected
with militia service.
St. George Tucker's version of Blackstone's Commentaries,
as we explained above, conceived of the Blackstonian
arms right as necessary for self-defense. He equated that
right, 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 of
liberty . . . . 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 limits
possible. 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 rights
included in the First Amendment and said that if "a law
be passed by congress, prohibiting" any of those rights, it
would "be the province of the judiciary to pronounce
whether 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 arms
in a state militia.19
------------
19 JUSTICE STEVENS quotes some of Tucker's unpublished notes, which
he claims show that Tucker had ambiguous views about the Second
Amendment. See post, at 31, and n. 32. But it is clear from the notes
that Tucker located the power of States to arm their militias in the
Tenth Amendment, and that he cited the Second Amendment for the
34 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
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, which
analyzed the Second Amendment as follows:
"The first [principle] is a declaration that a well
regulated 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 the
right 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 as
violating the right codified in the Second Amendment. See
id., 122-123. Rawle clearly differentiated between the
people's right to bear arms and their service in a militia:
"In a people permitted and accustomed to bear arms, we
have the rudiments of a militia, which properly consists of
armed citizens, divided into military bands, and instructed
------------
proposition that such armament could not run afoul of any power of the
federal government (since the amendment prohibits Congress from
ordering disarmament). Nothing in the passage implies that the
Second Amendment pertains only to the carrying of arms in the organized
militia.
20 Rawle, writing before our decision in Barron ex rel. Tiernan v.
Mayor of Baltimore, 7 Pet. 243 (1833), believed that the Second
Amendment could be applied against the States. Such a belief would of
course be nonsensical on petitioners' view that it protected only a right
to possess and carry arms when conscripted by the State itself into
militia service.
Cite as: 554 U. S. ____ (2008) 35
Opinion of the Court
at least in part, in the use of arms for the purposes of
war." Id., at 140. Rawle further said that the Second
Amendment right ought not "be abused to the disturbance
of the public peace," such as by assembling with other
armed individuals "for an unlawful purpose"--statements
that make no sense if the right does not extend to any
individual purpose.
Joseph Story published his famous Commentaries on
the Constitution of the United States in 1833. JUSTICE
STEVENS suggests that "[t]here is not so much as a whisper"
in Story's explanation of the Second Amendment that
favors the individual-rights view. Post, at 34. That is
wrong. Story explained that the English Bill of Rights had
also included a "right to bear arms," a right that, as we
have discussed, had nothing to do with militia service. 3
Story ?1858. He then equated the English right with the
Second Amendment:
"?1891. A similar provision [to the Second Amendment]
in favour of protestants (for to them it is confined)
is to be found in the bill of rights of 1688, it being
declared, `that the subjects, which are protestants,
may have arms for their defence suitable to their condition,
and as allowed by law.' But under various pretences
the effect of this provision has been greatly
narrowed; and it is at present in England more nominal
than real, as a defensive privilege." (Footnotes
omitted.)
This comparison to the Declaration of Right would not
make sense if the Second Amendment right was the right
to use a gun in a militia, which was plainly not what the
English right protected. As the Tennessee Supreme Court
recognized 38 years after Story wrote his Commentaries,
"[t]he passage from Story, shows clearly that this right
was intended . . . and was guaranteed to, and to be exercised
and enjoyed by the citizen as such, and not by him as
36 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
a soldier, or in defense solely of his political rights." Andrews
v. State, 50 Tenn. 165, 183 (1871). Story's Commentaries
also cite as support Tucker and Rawle, both of
whom clearly viewed the right as unconnected to militia
service. See 3 Story ?1890, n. 2; ?1891, n. 3. In addition,
in a shorter 1840 work Story wrote: "One of the ordinary
modes, by which tyrants accomplish their purposes without
resistance, is, by disarming the people, and making it
an offence to keep arms, and by substituting a regular
army in the stead of a resort to the militia." A Familiar
Exposition of the Constitution of the United States ?450
(reprinted in 1986).
Antislavery advocates routinely invoked the right to
bear arms for self-defense. Joel Tiffany, for example,
citing Blackstone's description of the right, wrote that "the
right to keep and bear arms, also implies the right to use
them if necessary in self defence; without this right to use
the guaranty would have hardly been worth the paper it
consumed." A Treatise on the Unconstitutionality of
American Slavery 117-118 (1849); see also L. Spooner, The
Unconstitutionality of Slavery 116 (1845) (right enables
"personal defence"). In his famous Senate speech about
the 1856 "Bleeding Kansas" conflict, Charles Sumner
proclaimed:
"The rifle has ever been the companion of the pioneer
and, 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,'
Cite as: 554 U. S. ____ (2008) 37
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, that
they 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 from
the Revolution to the Civil War 553, 606-607 (2006).
We have found only one early 19th-century commentator
who clearly conditioned the right to keep and bear
arms upon service in the militia--and he recognized that
the prevailing view was to the contrary. "The provision of
the constitution, declaring the right of the people to keep
and bear arms, &c. was probably intended to apply to the
right of the people to bear arms for such [militia-related]
purposes only, and not to prevent congress or the legislatures
of the different states from enacting laws to prevent
the citizens from always going armed. A different construction
however has been given to it." B. Oliver, The
Rights of an American Citizen 177 (1832).
2. Pre-Civil War Case Law
The 19th-century cases that interpreted the Second
Amendment universally support an individual right unconnected
to militia service. In Houston v. Moore, 5
Wheat. 1, 24 (1820), this Court held that States have
concurrent power over the militia, at least where not preempted
by Congress. Agreeing in dissent that States
could "organize, discipline, and arm" the militia in the
absence of conflicting federal regulation, Justice Story said
that the Second Amendment "may not, perhaps, be
thought to have any important bearing on this point. If it
have, it confirms and illustrates, rather than impugns the
reasoning already suggested." Id., at 51-53. Of course, if
the Amendment simply "protect[ed] the right of the people
of each of the several States to maintain a well-regulated
38 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
militia," post, at 1 (STEVENS, J., dissenting), it would have
enormous and obvious bearing on the point. But the Court
and Story derived the States' power over the militia from
the nonexclusive nature of federal power, not from the
Second Amendment, whose preamble merely "confirms
and illustrates" the importance of the militia. Even
clearer was Justice Baldwin. In the famous fugitive-slave
case of Johnson v. Tompkins, 13 F. Cas. 840, 850, 852 (CC
Pa. 1833), Baldwin, sitting as a circuit judge, cited both
the Second Amendment and the Pennsylvania analogue
for his conclusion that a citizen has "a right to carry arms
in defence of his property or person, and to use them, if
either were assailed with such force, numbers or violence
as made it necessary for the protection or safety of either."
Many early 19th-century state cases indicated that the
Second Amendment right to bear arms was an individual
right unconnected to militia service, though subject to
certain restrictions. A Virginia case in 1824 holding that
the Constitution did not extend to free blacks explained
that "numerous restrictions imposed on [blacks] in our
Statute Book, many of which are inconsistent with the
letter and spirit of the Constitution, both of this State and
of the United States as respects the free whites, demonstrate,
that, here, those instruments have not been considered
to extend equally to both classes of our population.
We will only instance the restriction upon the migration of
free blacks into this State, and upon their right to bear
arms." Aldridge v. Commonwealth, 2 Va. Cas. 447, 449
(Gen. Ct.). The claim was obviously not that blacks were
prevented from carrying guns in the militia.21 See also
------------
21 JUSTICE STEVENS suggests that this is not obvious because free
blacks in Virginia had been required to muster without arms. See post,
at 28, n. 29 (citing Siegel, The Federal Government's Power to Enact
Color-Conscious Laws, 92 Nw. U. L. Rev. 477, 497 (1998)). But that
could not have been the type of law referred to in Aldridge, because
that practice had stopped 30 years earlier when blacks were excluded
Cite as: 554 U. S. ____ (2008) 39
Opinion of the Court
Waters v. State, 1 Gill 302, 309 (Md. 1843) (because free
blacks were treated as a "dangerous population," "laws
have been passed to prevent their migration into this
State; to make it unlawful for them to bear arms; to guard
even their religious assemblages with peculiar watchfulness").
An 1829 decision by the Supreme Court of Michigan
said: "The constitution of the United States also
grants to the citizen the right to keep and bear arms. But
the grant of this privilege cannot be construed into the
right in him who keeps a gun to destroy his neighbor. No
rights are intended to be granted by the constitution for
an unlawful or unjustifiable purpose." United States v.
Sheldon, in 5 Transactions of the Supreme Court of the
Territory of Michigan 337, 346 (W. Blume ed. 1940) (hereinafter
Blume). It is not possible to read this as discussing
anything other than an individual right unconnected to
militia service. If it did have to do with militia service, the
limitation upon it would not be any "unlawful or unjustifiable
purpose," but any nonmilitary purpose whatsoever.
In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia
Supreme Court construed the Second Amendment as
protecting the "natural right of self-defence" and therefore
struck down a ban on carrying pistols openly. Its opinion
perfectly captured the way in which the operative clause of
the Second Amendment furthers the purpose announced
------------
entirely from the militia by the First Militia Act. See Siegel, supra, at
498, n. 120. JUSTICE STEVENS further suggests that laws barring blacks
from militia service could have been said to violate the "right to bear
arms." But under JUSTICE STEVENS' reading of the Second Amendment
(we think), the protected right is the right to carry arms to the extent
one is enrolled in the militia, not the right to be in the militia. Perhaps
JUSTICE STEVENS really does adopt the full-blown idiomatic meaning of
"bear arms," in which case every man and woman in this country has a
right "to be a soldier" or even "to wage war." In any case, it is clear to
us that Aldridge's allusion to the existing Virginia "restriction" upon
the right of free blacks "to bear arms" could only have referred to "laws
prohibiting blacks from keeping weapons," Siegel, supra, at 497-498.
40 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
in the prefatory clause, in continuity with the English
right:
"The right of the whole people, old and young, men,
women and boys, and not militia only, to keep and
bear arms of every description, and not such merely as
are used by the militia, shall not be infringed, curtailed,
or broken in upon, in the smallest degree; and
all this for the important end to be attained: the rearing
up and qualifying a well-regulated militia, so vitally
necessary to the security of a free State. Our
opinion is, that any law, State or Federal, is repugnant
to the Constitution, and void, which contravenes
this right, originally belonging to our forefathers,
trampled under foot by Charles I. and his two wicked
sons and successors, re-established by the revolution
of 1688, conveyed to this land of liberty by the colonists,
and finally incorporated conspicuously in our
own Magna Charta!"
Likewise, in State v. Chandler, 5 La. Ann. 489, 490
(1850), the Louisiana Supreme Court held that citizens
had a right to carry arms openly: "This is the right guaranteed
by the Constitution of the United States, and
which is calculated to incite men to a manly and noble
defence of themselves, if necessary, and of their country,
without any tendency to secret advantages and unmanly
assassinations."
Those who believe that the Second Amendment preserves
only a militia-centered right place great reliance on
the Tennessee Supreme Court's 1840 decision in Aymette
v. State, 21 Tenn. 154. The case does not stand for that
broad proposition; in fact, the case does not mention the
word "militia" at all, except in its quoting of the Second
Amendment. Aymette held that the state constitutional
guarantee of the right to "bear" arms did not prohibit the
banning of concealed weapons. The opinion first recogCite
as: 554 U. S. ____ (2008) 41
Opinion of the Court
nized that both the state right and the federal right were
descendents of the 1689 English right, but (erroneously,
and contrary to virtually all other authorities) read that
right to refer only to "protect[ion of] the public liberty" and
"keep[ing] in awe those in power," id., at 158. The court
then adopted a sort of middle position, whereby citizens
were permitted to carry arms openly, unconnected with
any service in a formal militia, but were given the right to
use them only for the military purpose of banding together
to oppose tyranny. This odd reading of the right is, to be
sure, not the one we adopt--but it is not petitioners' reading
either. More importantly, seven years earlier the
Tennessee Supreme Court had treated the state constitutional
provision as conferring a right "of all the free citizens
of the State to keep and bear arms for their defence,"
Simpson, 5 Yer., at 360; and 21 years later the court held
that the "keep" portion of the state constitutional right
included the right to personal self-defense: "[T]he right to
keep arms involves, necessarily, the right to use such
arms for all the ordinary purposes, and in all the ordinary
modes usual in the country, and to which arms are
adapted, limited by the duties of a good citizen in times of
peace." Andrews, 50 Tenn., at 178; see also ibid. (equating
state provision with Second Amendment).
3. Post-Civil War Legislation.
In the aftermath of the Civil War, there was an outpouring
of discussion of the Second Amendment in Congress
and in public discourse, as people debated whether and |
