Skip to comments.We dodged a bullet - BIG TIME!
Posted on 06/26/2008 2:45:32 PM PDT by neverdem
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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 tokeep arms in their houses. 4 Commentaries on the Laws of England 55 (1769) (hereinafter Blackstone); see also 1 W. & M., c. 15, §4, in 3 Eng. Stat. at Large 422 (1689) ([N]o Papist . . . shall or may have or keep in his House . . . any Arms . . . ); 1 Hawkins, Treatise on the Pleas of the Crown 26 (1771) (similar).
At the time of the founding, as now, to bear meant tocarry. 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 purposeconfrontation. 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 Constitutions Second Amendment . . . indicate[s]: wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person. Id., at 143 (dissenting opinion)(quoting Blacks Law Dictionary 214 (6th ed. 1998)). We think that JUSTICE GINSBURG accurately captured thenatural meaning of bear arms. Although the phraseimplies that the carrying of the weapon is for the purpose of offensive or defensive action, it in no way connotes participation in a structured military organization.
See Pa. Declaration of Rights §XIII, in 5 Thorpe 3083 (That thepeople have a right to bear arms for the defence of themselves and the state. . . ); Vt. Declaration of Rights §XV, in 6 id., at 3741 (That thepeople have a right to bear arms for the defence of themselves and the State. . .); Ky. Const., Art. XII, cl. 23 (1792), in 3 id., at 1264, 1275 (That the right of the citizens to bear arms in defence of themselves and the State shall not be questioned); Ohio Const., Art. VIII, §20 (1802), in 5 id., at 2901, 2911 (That the people have a right to bear arms for the defence of themselves and the State . . . ); Ind. Const., Art. I, §20 (1816), in 2 id., at 1057, 1059 (That the people have a right tobear arms for the defense of themselves and the State. . . ); Miss.Const., Art. I, §23 (1817), in 4 id., at 2032, 2034 (Every citizen has aright to bear arms, in defence of himself and the State); Conn. Const., Art. I, §17 (1818), in 1 id., at 536, 538 (Every citizen has a right to beararms in defence of himself and the state); Ala. Const., Art. I, §23(1819), in 1 id., at 96, 98 (Every citizen has a right to bear arms indefence of himself and the State); Mo. Const., Art. XIII, §3 (1820), in 4 id., at 2150, 2163 ([T]hat their right to bear arms in defence of themselves and of the State cannot be questioned). See generally Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Politics 191 (2006).
The phrase bear Arms also had at the time of the founding an idiomatic meaning that was significantlydifferent from its natural meaning: to serve as a soldier,do military service, fight or to wage war. See LinguistsBrief 18; post, at 11 (STEVENS, J., dissenting). But it unequivocally bore that idiomatic meaning only whenfollowed by the preposition against, which was in turnfollowed by the target of the hostilities. See 2 Oxford 21. (That is how, for example, our Declaration of Independence ¶28, used the phrase: He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country . . . .) Every example given bypetitioners amici for the idiomatic meaning of bear arms 9See Bliss v. Commonwealth, 2 Litt. 90, 9192 (Ky. 1822); State v. Reid, 1 Ala. 612, 616617 (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, 422423 (1843) (same); cf. Nunn v. State, 1 Ga. 243, 250251 (1846) (construing Second Amendment); State v. Chandler, 5 La. Ann. 489, 489490 (1850) (same). 13 Cite as: 554 U. S. ____ (2008) Opinion of the Court from the founding period either includes the prepositionagainst or is not clearly idiomatic. See Linguists Brief 1823. Without the preposition, bear arms normally meant (as it continues to mean today) what JUSTICE GINSBURGs opinion in Muscarello said.
10See J. Brydall, Privilegia Magnatud apud Anglos 14 (1704) (Privilege XXXIII) (In the 21st Year of King Edward the Third, a Proclamation Issued, that no Person should bear any Arms within London, and the Suburbs); J. Bond, A Compleat Guide to Justices of the Peace 43 (1707) (Sheriffs, and all other Officers in executing their Offices, andall other persons pursuing Hu[e] and Cry may lawfully bear arms); 1An Abridgment of the Public Statutes in Force and Use Relative to Scotland (1755) (entry for Arms: And if any person above described shall have in his custody, use, or bear arms, being thereof convicted before one justice of peace, or other judge competent, summarily, heshall for the first offense forfeit all such arms (quoting 1 Geo. 1, c. 54, §1)); Statute Law of Scotland Abridged 132133 (2d ed. 1769) (Acts fordisarming the highlands but exempting those who have particularlicenses to bear arms); E. de Vattel, The Law of Nations, or, Principles of the Law of Nature 144 (1792) (Since custom has allowed persons ofrank and gentlemen of the army to bear arms in time of peace, strictcare should be taken that none but these should be allowed to wear swords); E. Roche, Proceedings of a Court-Martial, Held at the Council- Chamber, in the City of Cork 3 (1798) (charge VI: With having held traitorous conferences, and with having conspired, with the like intent, for the purpose of attacking and despoiling of the arms of several of theKings subjects, qualified by law to bear arms); C. Humphreys, A Compendium of the Common Law in force in Kentucky 482 (1822) ([I]nthis country the constitution guaranties to all persons the right to bear arms; then it can only be a crime to exercise this right in such a manner, as to terrify people unnecessarily).
Finally, JUSTICE STEVENS suggests that keep and bearArms was some sort of term of art, presumably akin tohue and cry or cease and desist. (This suggestionusefully evades the problem that there is no evidencewhatsoever to support a military reading of keep arms.)JUSTICE STEVENS believes that the unitary meaning of 13The same applies to the conscientious-objector amendments proposed by Virginia and North Carolina, which said: That any personreligiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.See Veit 19; 4 J. Eliot, The Debates in the Several State Constitutions on the Adoption of the Federal Constitution 243, 244 (2d ed. 1836) (reprinted 1941). Certainly their second use of the phrase (bear armsin his stead) refers, by reason of context, to compulsory bearing of arms for military duty. But their first use of the phrase (any person religiously scrupulous of bearing arms) assuredly did not refer to people whose God allowed them to bear arms for defense of themselves but not for defense of their country.
(Page)18 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court keep and bear Arms is established by the Second Amendments calling it a right (singular) rather than rights (plural). See post, at 16. There is nothing to this. State constitutions of the founding period routinely grouped multiple (related) guarantees under a singular right, and the First Amendment protects the right[singular] of the people peaceably to assemble, and topetition the Government for a redress of grievances. See, e.g., Pa. Declaration of Rights §§IX, XII, XVI, in 5 Thorpe 30833084; Ohio Const., Arts. VIII, §§11, 19 (1802), in id., at 29102911.14 And even if keep and bear Arms were a unitary phrase, we find no evidence that it bore a military meaning. Although the phrase was not at all common(which would be unusual for a term of art), we have found instances of its use with a clearly nonmilitary connotation. In a 1780 debate in the House of Lords, for example, Lord Richmond described an order to disarm private citizens(not militia members) as a violation of the constitutionalright of Protestant subjects to keep and bear arms for their own defense. 49 The London Magazine or Gentlemans Monthly Intelligencer 467 (1780). In response,another member of Parliament referred to the right ofbearing arms for personal defence, making clear that nospecial military meaning for keep and bear arms was intended in the discussion. Id., at 467468.15
Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded inusing select militias loyal to them to suppress politicaldissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 3153 (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 103106. These experiencescaused Englishmen to be extremely wary of concentratedmilitary forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which wascodified as the English Bill of Rights), that Protestants Officers or their Assistants, employed in the Execution of Justice . . .). 16Contrary to JUSTICE STEVENS wholly unsupported assertion, post, at 17, there was no pre-existing right in English law to use weaponsfor certain military purposes or to use arms in an organized militia. 20
DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court would never be disarmed: That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law. 1 W. & M., c. 2, §7, in 3 Eng. Stat. at Large 441 (1689). This right haslong been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights andWhat It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle). It was clearly an individual right,having nothing whatever to do with service in a militia.To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament. See Schwoerer, To Hold and Bear Arms: The English Perspective, in Bogus207, 218; but see 3 J. Story, Commentaries on the Constitution of the United States §1858 (1833) (hereinafter Story) (contending that the right to bear arms is a limitatio[ n] upon the power of parliament as well). But it was secured to them as individuals, according to libertarianpolitical principles, not as members of a fighting force.Schwoerer, Declaration of Rights, at 283; see also id., at 78; G. Jellinek, The Declaration of the Rights of Man and of Citizens 49, and n. 7 (1901) (reprinted 1979).
And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists.
In the tumultuous decades of the 1760s and 1770s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that [i]t is anatural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence. A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writingsof Samuel Adams 299 (H. Cushing ed. 1968). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstones Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notesto the description of the arms right, Americans understood the right of self-preservation as permitting a citizen torepe[l] force by force when the intervention of society in his behalf, may be too late to prevent an injury. 1 Blackstones Commentaries 145146, n. 42 (1803) (hereinafter Tuckers Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 3132(1833).
St. George Tuckers version of Blackstones Commentaries, as we explained above, conceived of the Blackstonianarms right as necessary for self-defense. He equated thatright, absent the religious and class-based restrictions,with the Second Amendment. See 2 Tuckers Blackstone 143. In Note D, entitled, View of the Constitution of the United States, Tucker elaborated on the Second Amendment: This may be considered as the true palladium ofliberty . . . . The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limitspossible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. 1 id., at App. 300 (ellipsis in original). He believed that the English game laws had abridged the right by prohibiting keeping a gun or other engine for the destruction of game. Ibid; see also 2 id., at 143, and nn. 40 and 41. He later grouped the right with some of the individual rightsincluded in the First Amendment and said that if a law be passed by congress, prohibiting any of those rights, itwould be the province of the judiciary to pronouncewhether any such act were constitutional, or not; and if not, to acquit the accused . . . . 1 id., at App. 357. It is unlikely that Tucker was referring to a persons being accused of violating a law making it a crime to bear armsin a state militia.19
In 1825, William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that ratified the Bill of Rights, published an influential treatise, whichanalyzed the Second Amendment as follows:
The first [principle] is a declaration that a wellregulated militia is necessary to the security of a free state; a proposition from which few will dissent. . . .
The corollary, from the first position is, that theright of the people to keep and bear arms shall not be infringed.
The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.
Rawle 121122.20 Like Tucker, Rawle regarded the English game laws asviolating the right codified in the Second Amendment. See id., 122123.
The rifle has ever been the companion of the pioneerand, under God, his tutelary protector against the red man and the beast of the forest. Never was this efficient weapon more needed in just self-defence, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guarantee, embodied in the Amendments to the Constitution, that the right of the people to keep and bear arms shall not be infringed, 37 Cite as: 554 U. S. ____ (2008) Opinion of the Court the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, thatthey should be disarmedof course, that the fanatics of Slavery, his allies and constituents, may meet no impediment. The Crime Against Kansas, May 1920, 1856, in American Speeches: Political Oratory fromthe Revolution to the Civil War 553, 606607 (2006).
Kennedy was the swing vote, and he sided with us!
That was close...
Problem is, socialists (read democrats) don't want to recognize the Constitution. They want to twist it for their own self serving good.
echo what you said. It concerns me greatly that we had four against. Especially considering yesterday’s decision.
I’m not surprised, especially by Ginsberg, Souter and Stevens, but I’m a little surprised by Breyer. Breyer has surprised court watchers in the past, I thought he might this time, but no.
I thought the same thing. It should have been 9-0. This goes to show you that 4 justices believe they are the supreme law makers of the nation. That is very scary.
bookmarking for later, and thanks for posting!
The scariest thing is that the minority voted against the individual right by making a point that almost all of the BOR apply to the collective, not the individual. SCARY!
I didn’t read Breyer and Stevens dissents, because that would be a big waste of my time. But if they think that the 2nd Amendment does not allow me to have a handgun in my house.... then what’s it there for? What right does it then guarantee? Do they answer that in their dissents?
Needless to say, Chicago and other places that ban handguns will come in the crosshairs. I thought I included that sentiment after my comments about the “open carry” movement and paying for registration and licensing fees. Somehow it was omitted. This decision is manna from Heaven!
P.S. My Abiword file openned up again. The Lord works is mysterious ways. I don’t know why I didn’t dump it in the recycle bin. I was working off of backups that were made unknowingly.
Thank you for a superb post.
Any time that neverdem writes a vanity, I have a better day.
Thank you for your clarity of thought and for taking the time to share it.
Four justices of the Supreme Court of the United State voted for Civil War.
I was really disappointed with Ginsburg and Souter. I really expected at least one of them to go with the majority. Without one of them to drag Kennedy along, I didn’t expect Kennedy. Go figure. Give Thanks to the Lord!
Yes, it shows that at least four of these guys can't read ENGLISH.
Yes, Scalia tried to tread the needle and failed. He recognized the full meaning of “the right to keep and bear arms” yet failed to recognize that the right exists any further than your front door. He could have ruled that your rights exist regardless of your location in public with a few exceptions, but didn’t. It is a start, but there are many battles yet to fight.
Thanks very much for all your time and effort! You’ve kept us up to date since the beginning of Parker/Heller and and we appreciate it.
The next president may select the next justice....There are some that say it doesn’t matter who wins the next election Obama or McCain. I say that the more conservative of the two needs to win and this case illustrates why.
As I've posted elsewhere, I think a fundamental right that no one talks about is the right to self-defense. I think it was so self-evident that the general populace could protect themselves against criminals, savages, and wild beasts in 1776 that it wasn't specifically spelled out for the obtuse generations to come. If criminals are armed, self-defense requires arms.
Also discussed by the founders was the need to bear arms against potential government misconduct, but that's not the daily issue facing most Americans, and hopefully it won't ever be.
those 4 justices are traitors.....
their job is to defend the constitution, not re-write it.
You want scary, consider what will happen if Obama-dama is elected and proceeds to stack that court with his favorite folks. We've already seen that it doesn't bother those twits one bit to revisit and usurp precedents.
I have some questions.
1. How does this effect the New York State Sullivan gun law?
2. Can one buy a pistol for home defense in any state (New York?) without a permit. Presently one has to go before a local judge and pay a whopping fee?
3. Once you have a pistol, where can one go to target practice with it? In your basement?
4. Can one have more than one pistol for self defense? Can one have a pistol for the wife.?
I always dodge bullets.
Government already has control of the 1st. They want total control of the 2nd because it is the most dangerous to them personally.
Wow, now THAT is a vanity!!!!
Great work, I need to now REALLY read it closely....after I get myself around a beer.
(Been outside all day in the sun.)
You want us to celebrate this? Pray tell, why? We are on the fast road to tyranny. The fact that our black robed lords and masters, by a very slim majority, voted to “give” us a right that is already OURS to being with, is DISGUSTING. They trash the US Constitution in decision after decision and we are supposed to celebrate when they turn off the heat right before the proverbial frog is boiled????
All we’ve “won” is a temporary reprieve, and THAT is nothing to celebrate.
Yes! I’m celebrating!
The SCOTUS just ended *decades* of liberal lies about so-called “collective rights” for the 2nd, but “individual” rights for the 1st.
This is an enormous victory, and it is important to celebrate milestones.
...that you lament past setbacks instead of celebrating current victories shows problems that you need to deal with personally...but the rest of the U.S. should be celebrating FREEDOM!
We didn’t even have to shed blood for this win.
Why do we need the amendment process when we have the Supreme Court as constituted after Marbury v. Madison?
A similar query, why bother enumerating powers if the “general welfare” clause allows all?
1. I too prayed. Not a common event, but last night on retiring, I realized that there was a real chance for a wrong decision, and the potential ruin of the Republic.
2. It wasn’t that close. It’s a false notion that one judge would have led to the opposite result. If Kennedy had been more anti, the opinion would have been less favorable, but a negotiated compromise. If Kennedy had been fully stubborn, then one of the 4 would have been brought in to the majority, with the decision watered down to their satisfaction. There may even have been an element of letting them have safe dissenting votes, but they might have supported a reasonable result if necessary.
3. The answer to all the “how does this affect...?” questions is the same. After generations of minimal Supreme Court activity on the gun issue, we are entering a fertile era. In the next 10-15 years, we will see numerous cases decided, and the Court will draw the lines for future gun rights and restrictions. This includes right to carry, full faith and credit, right to travel, city bans, Assault Weapon (so-called) bans, machine guns, taxes, regulations. Everything. The decision does not resolve any of them in advance, but lays a solid brick for the foundation. This is the first ever gun restriction to be overturned based on the Second Amendment, and there will probably be more. With good strategy, the next case will be an incremental one. Perhaps it will establish that the Second Amendment applies to the States. The Chicago gun ban would be good for this. California AWB has other issues (like “what is an unusually dangerous weapon”?)
4. I wonder if the dissenters are receiving extra security. A large fraction of the nation believes them to have attempted treason. One wonders if there are any unstable nuts among that group who think they need to take action.
5. Prediction: 10 years from now, Chicago bans and AWBs will be overturned. Machine guns will still be expensive, and travelers may have more rights to carry for self defense away form home.
If it comes down to weathervane Kennedy, I'll take what I can get. I happen to consider this a Divine Intervention. We need more, no doubt.
Justice Kennedy is the King of America. Whatever he says is law of the land. It’s a very sad state of affairs.
I tend to believe the notion that says he wrote it to be as aggressive as possible while still retaining the majority, purposely alienating the 4 stooges.
He could perhaps have been somewhat less absolutist, still overturned the DC ban, and maybe nabbed Souter.
I think he was purposely pushing the limit. Not that this was a perfect result, and I agree that it should have been 9-0 regardless, but I think 5-4 is a reflection of the strength of the opinion moreso than risk of finding for a collective right.
When future monumental Constitutional issues come before the Court,
We cannot afford to have one or more Obama appointees on that bench.
Just Say No to O!
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 unnecessaryan 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 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 able bodied men was not by banning the militia but simply by taking away the peoples 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.
Now what? Four justices appointed to the highest position in our legal system just 'flunked'? Are we that infested? And what does that say about the rest of the legal system and all the players?
If the foundation of this country has been eaten away such that some of it's culprits now sit on our highest court, it's collapse is imminent. Holy cow.
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