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Second Amendment to the United  States Constitution
The Second Amendment (Amendment II) to the United  States Constitution protects the right of the people to keep and bear arms and  was adopted on December 15, 1791, as part of the first ten amendments contained  in the Bill of Rights. The Supreme Court of the United States has ruled that the  right belongs to individuals, while also ruling that the right is not unlimited  and does not prohibit all regulation of either firearms or similar devices.  State and local governments are limited to the same extent as the federal  government from infringing this right per the incorporation of the Bill of  Rights.
The Second Amendment was based partially on the right to keep and  bear arms in English common law and was influenced by the English Bill of Rights  of 1689. Sir William Blackstone described this right as an auxiliary right,  supporting the natural rights of self-defense, resistance to oppression, and the  civic duty to act in concert in defense of the state.
In United States v.  Cruikshank (1876), the Supreme Court of the United States ruled that, "The right  to bear arms is not granted by the Constitution; neither is it in any manner  dependent upon that instrument for its existence" and limited the applicability  of the Second Amendment to the federal government. In United States v. Miller  (1939), the Supreme Court ruled that the federal government and the states could  limit any weapon types not having a "reasonable relationship to the preservation  or efficiency of a well regulated militia."
In the twenty-first century,  the amendment has been subjected to renewed academic inquiry and judicial  interest. In District of Columbia v. Heller (2008), the Supreme Court handed  down a landmark decision that held the amendment protects an individual right to  possess and carry firearms. In McDonald v. Chicago (2010), the Court clarified  its earlier decisions that limited the amendment's impact to a restriction on  the federal government, expressly holding that the Fourteenth Amendment applies  the Second Amendment to state and local governments to the same extent that the  Second Amendment applies to the federal government. In Caetano v. Massachusetts  (2016), the Supreme Court reiterated its earlier rulings that "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" and  that its protection is not limited to "only those weapons useful in warfare".
Despite these decisions, the debate between various organizations regarding  gun control and gun rights continues.
Influence of the English Bill of  Rights of 1689
The right to bear arms in English history is believed to have  been regarded in English law as an auxiliary to the long-established natural  right of self-defense, auxiliary to the natural and legally defensible rights to  life. The English Bill of Rights of 1689 emerged from a tempestuous period in  English politics during which two issues were major sources of conflict: the  authority of the King to govern without the consent of Parliament and the role  of Catholics in a country that was becoming ever more Protestant. Ultimately,  the Catholic James II was overthrown in the Glorious Revolution, and his  successors, the Protestants William III and Mary II, accepted the conditions  that were codified in the Bill. One of the issues the Bill resolved was the  authority of the King to disarm its subjects, after James II had attempted to  disarm many Protestants, and had argued with Parliament over his desire to  maintain a standing (or permanent) army. The bill states that it is acting to  restore "ancient rights" trampled upon by James II, though some have argued that  the English Bill of Rights created a new right to have arms, which developed out  of a duty to have arms. In District of Columbia v. Heller (2008), the Supreme  Court did not accept this view, remarking that the English right at the time of  the passing of the English Bill of Rights was "clearly an individual right,  having nothing whatsoever to do with service in the militia" and that it was a  right not to be disarmed by the Crown and was not the granting of a new right to  have arms.
The text of the English Bill of Rights of 1689 includes  language protecting the right of Protestants against disarmament by the Crown.  This document states: "That the Subjects which are Protestants may have Arms for  their Defence suitable to their Conditions and as allowed by Law." It also  contained text that aspired to bind future Parliaments, though under English  constitutional law no Parliament can bind any later Parliament. Nevertheless,  the English Bill of Rights remains an important constitutional document, more  for enumerating the rights of Parliament over the monarchy than for its clause  concerning a right to have arms.
The statement in the English Bill of  Rights concerning the right to bear arms is often quoted only in the passage  where it is written as above and not in its full context. In its full context it  is clear that the bill was asserting the right of Protestant citizens not to be  disarmed by the King without the consent of Parliament and was merely restoring  rights to Protestants that the previous King briefly and unlawfully had removed.  In its full context it reads:
Whereas the late King James the Second by  the Assistance of diverse evill Councellors Judges and Ministers imployed by him  did endeavour to subvert and extirpate the Protestant Religion and the Lawes and  Liberties of this Kingdome (list of grievances including) ... by causing  severall good Subjects being Protestants to be disarmed at the same time when  Papists were both Armed and Imployed contrary to Law, (Recital regarding the  change of monarch) ... thereupon the said Lords Spirituall and Temporall and  Commons pursuant to their respective Letters and Elections being now assembled  in a full and free Representative of this Nation takeing into their most serious  Consideration the best meanes for attaining the Ends aforesaid Doe in the first  place (as their Auncestors in like Case have usually done) for the Vindicating  and Asserting their ancient Rights and Liberties, Declare (list of rights  including) ... That the Subjects which are Protestants may have Arms for their  Defence suitable to their Conditions and as allowed by Law.
The  historical link between the English Bill of Rights and the Second Amendment,  which both codify an existing right and do not create a new one, has been  acknowledged by the U.S. Supreme Court.
The English Bill of Rights  includes the proviso that arms must be as "allowed by law." This has been the  case before and after the passage of the Bill. While it did not override earlier  restrictions on the ownership of guns for hunting, it was written to preserve  the hunting rights of the landed aristocracy and is subject to the parliamentary  right to implicitly or explicitly repeal earlier enactments. There is some  difference of opinion as to how revolutionary the events of 1688–89 actually  were, and several commentators make the point that the provisions of the English  Bill of Rights did not represent new laws, but rather stated existing rights.  Mark Thompson wrote that, apart from determining the succession, the English  Bill of Rights did "little more than set forth certain points of existing laws  and simply secured to Englishmen the rights of which they were already posessed.  Before and after the English Bill of Rights, the government could always disarm  any individual or class of individuals it considered dangerous to the peace of  the realm. In 1765, William Blackstone wrote the Commentaries on the Laws of  England describing the right to have arms in England during the 18th century as  a natural right of the subject that was "also declared" in the English Bill of  Rights.
The fifth and last auxiliary right of the subject, that I shall  at present mention, is that of having arms for their defence, suitable to their  condition and degree, and such as are allowed by law. Which is also declared by  the same statute 1 W. & M. st.2. c.2. and is indeed a public allowance, under  due restrictions, of the natural right of resistance and self-preservation, when  the sanctions of society and laws are found insufficient to restrain the  violence of oppression.
Although there is little doubt that the writers  of the Second Amendment were heavily influenced by the English Bill of Rights,  it is a matter of interpretation as to whether they were intent on preserving  the power to regulate arms to the states over the federal government (as the  English Parliament had reserved for itself against the monarch) or whether it  was intent on creating a new right akin to the right of others written into the  Constitution (as the Supreme Court decided in Heller). Some in the United States  have preferred the "rights" argument arguing that the English Bill of Rights had  granted a right. The need to have arms for self-defence was not really in  question. Peoples all around the world since time immemorial had armed  themselves for the protection of themselves and others, and as organized nations  began to appear these arrangements had been extended to the protection of the  state. Without a regular army and police force (which in England was not  established until 1829), it had been the duty of certain men to keep watch and  ward at night and to confront and capture suspicious persons. Every subject had  an obligation to protect the king's peace and assist in the suppression of  riots.
Experience in America prior to the U.S. Constitution
Ideals  that helped to inspire the Second Amendment in part are symbolized by the  minutemen.
Early English settlers in America viewed the right to arms and/or  the right to bear arms and/or state militias as important for one or more of  these purposes (in no particular order):
enabling the people to organize  a militia system.
participating in law enforcement;
deterring tyrannical  government;
repelling invasion;
suppressing insurrection, allegedly  including slave revolts;
facilitating a natural right of self-defense.
Which of these considerations were thought of as most important and ultimately  found expression in the Second Amendment is disputed. Some of these purposes  were explicitly mentioned in early state constitutions; for example, the  Pennsylvania Constitution of 1776 asserted that, "the people have a right to  bear arms for the defence of themselves and the state".
During the 1760s  pre-revolutionary period, the established colonial militia was composed of  colonists, including many who were loyal to British imperial rule. As defiance  and opposition to British rule developed, a distrust of these Loyalists in the  militia became widespread among the colonists, known as Patriots, who favored  independence from British rule. As a result, some Patriots created their own  militias that excluded the Loyalists and then sought to stock independent  armories for their militias. In response to this arms build up, the British  Parliament established an embargo on firearms, parts and ammunition on the  American colonies.
British and Loyalist efforts to disarm the colonial  Patriot militia armories in the early phases of the American Revolution resulted  in the Patriot colonists protesting by citing the Declaration of Rights,  Blackstone's summary of the Declaration of Rights, their own militia laws and  common law rights to self-defense. While British policy in the early phases of  the Revolution clearly aimed to prevent coordinated action by the Patriot  militia, some have argued that there is no evidence that the British sought to  restrict the traditional common law right of self-defense. Patrick J. Charles  disputes these claims citing similar disarming by the patriots and challenging  those scholars' interpretation of Blackstone.
The right of the colonists  to arms and rebellion against oppression was asserted, for example, in a  pre-revolutionary newspaper editorial in 1769 Boston objecting to the British  army suppression of colonial opposition to the Townshend Acts:
Instances  of the licentious and outrageous behavior of the military conservators of the  peace still multiply upon us, some of which are of such nature, and have been  carried to such lengths, as must serve fully to evince that a late vote of this  town, calling upon its inhabitants to provide themselves with arms for their  defense, was a measure as prudent as it was legal: such violences are always to  be apprehended from military troops, when quartered in the body of a populous  city; but more especially so, when they are led to believe that they are become  necessary to awe a spirit of rebellion, injuriously said to be existing therein.  It is a natural right which the people have reserved to themselves, confirmed by  the Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone  observes, it is to be made use of when the sanctions of society and law are  found insufficient to restrain the violence of oppression.
The armed  forces that won the American Revolution consisted of the standing Continental  Army created by the Continental Congress, together with regular French army and  naval forces and various state and regional militia units. In opposition, the  British forces consisted of a mixture of the standing British Army, Loyalist  Militia and Hessian mercenaries. Following the Revolution, the United States was  governed by the Articles of Confederation. Federalists argued that this  government had an unworkable division of power between Congress and the states,  which caused military weakness, as the standing army was reduced to as few as 80  men. They considered it to be bad that there was no effective federal military  crackdown on an armed tax rebellion in western Massachusetts known as Shays'  Rebellion. Anti-federalists on the other hand took the side of limited  government and sympathized with the rebels, many of whom were former  Revolutionary War soldiers. Subsequently, the Constitutional Convention proposed  in 1787 to grant Congress exclusive power to raise and support a standing army  and navy of unlimited size. Anti-federalists objected to the shift of power from  the states to the federal government, but as adoption of the Constitution became  more and more likely, they shifted their strategy to establishing a bill of  rights that would put some limits on federal power.
Modern scholars  Thomas B. McAffee and Michael J. Quinlan have stated that James Madison "did not  invent the right to keep and bear arms when he drafted the Second Amendment; the  right was pre-existing at both common law and in the early state constitutions."  In contrast, historian Jack Rakove suggests that Madison's intention in framing  the Second Amendment was to provide assurances to moderate Anti-Federalists that  the militias would not be disarmed.
One aspect of the gun control debate  is the conflict between gun control laws and the right to rebel against unjust  governments. Blackstone in his Commentaries alluded to this right to rebel as  the natural right of resistance and self preservation, to be used only as a last  resort, exercisable when "the sanctions of society and laws are found  insufficient to restrain the violence of oppression". Some believe that the  framers of the Bill of Rights sought to balance not just political power, but  also military power, between the people, the states and the nation, as Alexander  Hamilton explained in 1788:
If circumstances should at any time oblige  the government to form an army of any magnitude that army can never be  formidable to the liberties of the people while there is a large body of  citizens, little, if at all, inferior to them in discipline and the use of arms,  who stand ready to defend their own rights and those of their fellow-citizens.
Some scholars have said that it is wrong to read a right of armed  insurrection in the Second Amendment because clearly the founding fathers sought  to place trust in the power of the ordered liberty of democratic government  versus the anarchy of insurrectionists. Other scholars, such as Glenn Reynolds,  contend that the framers did believe in an individual right to armed  insurrection. The latter scholars cite examples, such as the Declaration of  Independence (describing in 1776 "the Right of the People to...institute new  Government") and the Constitution of New Hampshire (stating in 1784 that  "nonresistance against arbitrary power, and oppression, is absurd, slavish, and  destructive of the good and happiness of mankind").
There was an ongoing  debate beginning in 1789 about "the people" fighting governmental tyranny (as  described by Anti-Federalists); or the risk of mob rule of "the people" (as  described by the Federalists) related to the increasingly violent French  Revolution. A widespread fear, during the debates on ratifying the Constitution,  was the possibility of a military takeover of the states by the federal  government, which could happen if the Congress passed laws prohibiting states  from arming citizens, or prohibiting citizens from arming themselves. Though it  has been argued that the states lost the power to arm their citizens when the  power to arm the militia was transferred from the states to the federal  government by Article I, Section 8 of the Constitution, the individual right to  arm was retained and strengthened by the Militia Acts of 1792 and the similar  act of 1795.
In March 1785, delegates from Virginia and Maryland  assembled at the Mount Vernon Conference to fashion a remedy to the  inefficiencies of the Articles of Confederation. The following year, at a  meeting in Annapolis, Maryland, 12 delegates from five states (New Jersey, New  York, Pennsylvania, Delaware, and Virginia) met and drew up a list of problems  with the current government model. At its conclusion, the delegates scheduled a  follow-up meeting in Philadelphia, Pennsylvania for May 1787 to present  solutions to these problems, such as the absence of:
interstate  arbitration processes to handle quarrels between states;
sufficiently trained  and armed intrastate security forces to suppress insurrection;
a national  militia to repel foreign invaders.
It quickly became apparent that the  solution to all three of these problems required shifting control of the states'  militias to the federal congress and giving that congress the power to raise a  standing army. Article 1, Section 8 of the Constitution codified these changes  by allowing the Congress to provide for the common defense and general welfare  of the United States by doing the following:
raise and support armies,  but no appropriation of money to that use shall be for a longer term than two  years;
provide and maintain a navy;
make rules for the government and  regulation of the land and naval forces;
provide for calling forth the  militia to execute the laws of the union, suppress insurrections and repel  invasions;
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.
Some representatives mistrusted proposals to enlarge federal  powers, because they were concerned about the inherent risks of centralizing  power. Federalists, including James Madison, initially argued that a bill of  rights was unnecessary, sufficiently confident that the federal government could  never raise a standing army powerful enough to overcome a militia. Federalist  Noah Webster argued that an armed populace would have no trouble resisting the  potential threat to liberty of a standing army. Anti-federalists, on the other  hand, advocated amending the Constitution with clearly defined and enumerated  rights providing more explicit constraints on the new government. Many  Anti-federalists feared the new federal government would choose to disarm state  militias. Federalists countered that in listing only certain rights, unlisted  rights might lose protection. The Federalists realized there was insufficient  support to ratify the Constitution without a bill of rights and so they promised  to support amending the Constitution to add a bill of rights following the  Constitution's adoption. This compromise persuaded enough Anti-federalists to  vote for the Constitution, allowing for ratification. The Constitution was  declared ratified on June 21, 1788, when nine of the original thirteen states  had ratified it. The remaining four states later followed suit, although the  last two states, North Carolina and Rhode Island, ratified only after Congress  had passed the Bill of Rights and sent it to the states for ratification. James  Madison drafted what ultimately became the Bill of Rights, which was proposed by  the first Congress on June 8, 1789, and was adopted on December 15, 1791.
Ratification debates
The debate surrounding the Constitution's  ratification is of practical importance, particularly to adherents of  originalist and strict constructionist legal theories. In the context of such  legal theories and elsewhere, it is important to understand the language of the  Constitution in terms of what that language meant to the people who wrote and  ratified the Constitution.
The Second Amendment was relatively  uncontroversial at the time of its ratification. Robert Whitehill, a delegate  from Pennsylvania, sought to clarify the draft Constitution with a bill of  rights explicitly granting individuals the right to hunt on their own land in  season, though Whitehill's language was never debated.
There was  substantial opposition to the new Constitution, because it moved the power to  arm the state militias from the states to the federal government. This created a  fear that the federal government, by neglecting the upkeep of the militia, could  have overwhelming military force at its disposal through its power to maintain a  standing army and navy, leading to a confrontation with the states, encroaching  on the states' reserved powers and even engaging in a military takeover. Article  VI of the Articles of Confederation states:
No vessel of war shall be  kept up in time of peace by any State, except such number only, as shall be  deemed necessary by the united States in congress assembled, for the defense of  such State, or its trade; nor shall any body of forces be kept up by any State  in time of peace, except such number only, as in the judgement of the united  States, in congress assembled, shall be deemed requisite to garrison the forts  necessary for the defense of such State; but every State shall always keep up a  well-regulated and disciplined militia, sufficiently armed and accoutered, and  shall provide and constantly have ready for use, in public stores, a due number  of field pieces and tents, and a proper quantity of arms, ammunition and camp  equipage.
In contrast, Article I, Section 8, Clause 16 of the U.S.  Constitution states:
To 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.
A foundation of American political  thought during the Revolutionary period was concern about political corruption  and governmental tyranny. Even the federalists, fending off their opponents who  accused them of creating an oppressive regime, were careful to acknowledge the  risks of tyranny. Against that backdrop, the framers saw the personal right to  bear arms as a potential check against tyranny. Theodore Sedgwick of  Massachusetts expressed this sentiment by declaring that it is "a chimerical  idea to suppose that a country like this could ever be enslaved ... Is it  possible ... that an army could be raised for the purpose of enslaving  themselves or their brethren? or, if raised whether they could subdue a nation  of freemen, who know how to prize liberty and who have arms in their hands?"  Noah Webster similarly argued:
Before a standing army can rule the people  must be disarmed; as they are in almost every kingdom in Europe. The supreme  power in America cannot enforce unjust laws by the sword; because the whole body  of the people are armed, and constitute a force superior to any band of regular  troops that can be, on any pretence, raised in the United States.
George  Mason argued the importance of the militia and right to bear arms by reminding  his compatriots of England's efforts "to disarm the people; that it was the best  and most effectual way to enslave them ... by totally disusing and neglecting  the militia." He also clarified that under prevailing practice the militia  included all people, rich and poor. "Who are the militia? They consist now of  the whole people, except a few public officers." Because all were members of the  militia, all enjoyed the right to individually bear arms to serve therein.
Writing after the ratification of the Constitution, but before the election  of the first Congress, James Monroe included "the right to keep and bear arms"  in a list of basic "human rights", which he proposed to be added to the  Constitution.
Patrick Henry argued in the Virginia ratification  convention on June 5, 1788, for the dual rights to arms and resistance to  oppression:
Guard with jealous attention the public liberty. Suspect  everyone who approaches that jewel. Unfortunately, nothing will preserve it but  downright force. Whenever you give up that force, you are inevitably ruined.
While both Monroe and John Adams supported the Constitution being ratified, its  most influential framer was James Madison. In Federalist No. 46, he confidently  contrasted the federal government of the United States to the European kingdoms,  which he contemptuously described as "afraid to trust the people with arms." He  assured his fellow citizens that they need never fear their government because  of "the advantage of being armed ..."
By January 1788, Delaware,  Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution  without insisting upon amendments. Several specific amendments were proposed,  but were not adopted at the time the Constitution was ratified. For example, the  Pennsylvania convention debated fifteen amendments, one of which concerned the  right of the people to be armed, another with the militia. The Massachusetts  convention also ratified the Constitution with an attached list of proposed  amendments. In the end, the ratification convention was so evenly divided  between those for and against the Constitution that the federalists agreed to  amendments to assure ratification. Samuel Adams proposed that the Constitution:
Be never construed to authorize Congress to infringe the just liberty of the  press, or the rights of conscience; or to prevent the people of the United  States, who are peaceable citizens, from keeping their own arms; or to raise  standing armies, unless when necessary for the defence of the United States, or  of some one or more of them; or to prevent the people from petitioning, in a  peaceable and orderly manner, the federal legislature, for a redress of their  grievances: or to subject the people to unreasonable searches and seizures.
During the first two decades following the ratification of the Second  Amendment, public opposition to standing armies, among Anti-Federalists and  Federalists alike, persisted and manifested itself locally as a general  reluctance to create a professional armed police force, instead relying on  county sheriffs, constables and night watchmen to enforce local ordinances.  Though sometimes compensated, often these positions were unpaid—held as a matter  of civic duty. In these early decades, law enforcement officers were rarely  armed with firearms, using billy clubs as their sole defensive weapons. In  serious emergencies, a posse comitatus, militia company, or group of vigilantes  assumed law enforcement duties; these individuals were more likely than the  local sheriff to be armed with firearms. On May 8, 1792, Congress passed "n act  more effectually to provide for the National Defence, by establishing an Uniform  Militia throughout the United States" requiring:
ach and every free  able-bodied white male citizen of the respective States, resident therein, who  is or shall be of 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... every citizen so enrolled and notified, shall, within  six months thereafter, provide himself with a good musket or firelock, a  sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a  box therein to contain not less than twenty-four cartridges, suited to the bore  of his musket or firelock, each cartridge to contain a proper quantity of powder  and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty  balls suited to the bore of his rifle, and a quarter of a pound of powder; and  shall appear, so armed, accoutred and provided, when called out to exercise, or  into service, except, that when called out on company days to exercise only, he  may appear without a knapsack.
The act also gave specific instructions to  domestic weapon manufacturers "that from and after five years from the passing  of this act, muskets for arming the militia as herein required, shall be of  bores sufficient for balls of the eighteenth part of a pound." In practice,  private acquisition and maintenance of rifles and muskets meeting specifications  and readily available for militia duty proved problematic; estimates of  compliance ranged from 10 to 65 percent. Compliance with the enrollment  provisions was also poor. In addition to the exemptions granted by the law for  custom-house officers and their clerks, post-officers and stage drivers employed  in the care and conveyance of U.S. mail, ferrymen, export inspectors, pilots,  merchant mariners and those deployed at sea in active service; state  legislatures granted numerous exemptions under Section 2 of the Act, including  exemptions for: clergy, conscientious objectors, teachers, students, and jurors.  And though a number of able-bodied white men remained available for service,  many simply did not show up for militia duty. Penalties for failure to appear  were enforced sporadically and selectively. None is mentioned in the  legislation.
The first test of the militia system occurred in July 1794,  when a group of disaffected Pennsylvania farmers rebelled against federal tax  collectors whom they viewed as illegitimate tools of tyrannical power. Attempts  by the four adjoining states to raise a militia for nationalization to suppress  the insurrection proved inadequate. When officials resorted to drafting men,  they faced bitter resistance. Forthcoming soldiers consisted primarily of  draftees or paid substitutes as well as poor enlistees lured by enlistment  bonuses. The officers, however, were of a higher quality, responding out of a  sense of civic duty and patriotism, and generally critical of the rank and file.  Most of the 13,000 soldiers lacked the required weaponry; the war department  provided nearly two-thirds of them with guns. In October, President George  Washington and General Harry Lee marched on the 7,000 rebels who conceded  without fighting. The episode provoked criticism of the citizen militia and  inspired calls for a universal militia. Secretary of War Henry Knox and  Vice-President John Adams had lobbied Congress to establish federal armories to  stock imported weapons and encourage domestic production. Congress did  subsequently pass "n act for the erecting and repairing of Arsenals and  Magazines" on April 2, 1794, two months prior to the insurrection. Nevertheless,  the militia continued to deteriorate and twenty years later, the militia's poor  condition contributed to several losses in the War of 1812, including the  sacking of Washington, D.C., and the burning of the White House in 1814.
Early commentary
William Rawle of Pennsylvania (left) was a lawyer and  district attorney; Thomas M. Cooley of Michigan (right) was an educator and  judge.
Joseph Story of Massachusetts (left) became a U.S. Supreme Court  justice; Tench Coxe of Pennsylvania (right) was a political economist and  delegate to the Continental Congress.
Tench Coxe
In 1792, Tench Coxe made  the following point in a commentary on the Second Amendment:
As civil  rulers, not having their duty to the people duly before them, may attempt to  tyrannize, and as the military forces which must be occasionally raised to  defend our country, might pervert their power to the injury of their fellow  citizens, the people are confirmed by the next article in their right to keep  and bear their private arms.
Tucker/Blackstone
The earliest published  commentary on the Second Amendment by a major constitutional theorist was by St.  George Tucker. He annotated a five-volume edition of Sir William Blackstone's  Commentaries on the Laws of England, a critical legal reference for early  American attorneys published in 1803. Tucker wrote:
A well regulated  militia being necessary to the security of a free state, the right of the people  to keep, and bear arms, shall not be infringed. Amendments to C. U. S. Art. 4.  This may be considered as the true palladium of liberty ... The right of self  defence is the ?rst law of nature: in most governments it has been the study of  rulers to con?ne this 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. In England, the people have been  disarmed, generally, under the specious pretext of preserving the game : a never  failing lure to bring over the landed aristocracy to support any measure, under  that mask, though calculated for very different purposes. True it is, their bill  of rights seems at ?rst view to counteract this policy: but the right of bearing  arms is con?ned to protestants, and the words suitable to their condition and  degree, have been interpreted to authorise the prohibition of keeping a gun or  other engine for the destruction of game, to any farmer, or inferior tradesman,  or other person not quali?ed to kill game. So that not one man in ?ve hundred  can keep a gun in his house without being subject to a penalty.
In  footnotes 40 and 41 of the Commentaries, Tucker stated that the right to bear  arms under the Second Amendment was not subject to the restrictions that were  part of English law: "The right of the people to keep and bear arms shall not be  infringed. Amendments to C. U. S. Art. 4, and this without any qualification as  to their condition or degree, as is the case in the British government" and  "whoever examines the forest, and game laws in the British code, will readily  perceive that the right of keeping arms is effectually taken away from the  people of England." Blackstone himself also commented on English game laws, Vol.  II, p. 412, "that the prevention of popular insurrections and resistance to  government by disarming the bulk of the people, is a reason oftener meant than  avowed by the makers of the forest and game laws." Blackstone discussed the  right of self-defense in a separate section of his treatise on the common law of  crimes. Tucker's annotations for that latter section did not mention the Second  Amendment but cited the standard works of English jurists such as Hawkins.
Further, Tucker criticized the English Bill of Rights for limiting gun  ownership to the very wealthy, leaving the populace effectively disarmed, and  expressed the hope that Americans "never cease to regard the right of keeping  and bearing arms as the surest pledge of their liberty."
William Rawle
Tucker's commentary was soon followed, in 1825, by that of William Rawle in his  landmark text, A View of the Constitution of the United States of America. Like  Tucker, Rawle condemned England's "arbitrary code for the preservation of game,"  portraying that country as one that "boasts so much of its freedom," yet  provides a right to "protestant subjects only" that it "cautiously describe to  be that of bearing arms for their defence" and reserves for "a very small  proportion of the people[." In contrast, Rawle characterizes the second clause  of the Second Amendment, which he calls the corollary clause, as a general  prohibition against such capricious abuse of government power, declaring  bluntly:
No clause 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.
Speaking of the Second Amendment  generally, Rawle said:
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, long before the concept of incorporation was  formally recognized by the courts, or Congress drafted the Fourteenth Amendment,  contended that citizens could appeal to the Second Amendment should either the  state or federal government attempt to disarm them. He did warn, however, that  "this right [to bear arms ought not...be abused to the disturbance of the public  peace" and observed, paraphrasing Coke, that "[an assemblage of persons with  arms, for unlawful purpose, is an indictable offence, and even the carrying of  arms abroad by a single individual, attended with circumstances giving just  reason to fear that he purposes to make an unlawful use of them, would be  sufficient cause to require him to give surety of the peace."
Joseph  Story
Joseph Story articulated in his influential Commentaries on the  Constitution the orthodox view of the Second Amendment, which he viewed as the  amendment's clear meaning:
The right of the citizens to keep and bear  arms has justly been considered, as the palladium of the liberties of a  republic; since it offers a strong moral check against the usurpations and  arbitrary power of rulers; and it will generally, even if these are successful  in the first instance, enable the people to resist and triumph over them. And  yet, though this truth would seem so clear, and the importance of a  well-regulated militia would seem so undeniable, it cannot be disguised, that  among the American people there is a growing indifference to any system of  militia discipline, and a strong disposition, from a sense of its burdens, to be  rid of all regulations. How it is practicable to keep the people duly armed  without some organization, it is difficult to see. There is certainly no small  danger, that indifference may lead to disgust, and disgust to contempt; and thus  gradually undermine all the protection intended by this clause of our National  Bill of Rights.
Story describes a militia as the "natural defence of a  free country," both against foreign foes, domestic revolts and usurpation by  rulers. The book regards the militia as a "moral check" against both usurpation  and the arbitrary use of power, while expressing distress at the growing  indifference of the American people to maintaining such an organized militia,  which could lead to the undermining of the protection of the Second Amendment.
Lysander Spooner
Abolitionist Lysander Spooner, commenting on bills of  rights, stated that the object of all bills of rights is to assert the rights of  individuals against the government and that the Second Amendment right to keep  and bear arms was in support of the right to resist government oppression, as  the only security against the tyranny of government lies in forcible resistance  to injustice, for injustice will certainly be executed, unless forcibly  resisted. Spooner's theory provided the intellectual foundation for John Brown  and other radical abolitionists who believed that arming slaves was not only  morally justified, but entirely consistent with the Second Amendment. An express  connection between this right and the Second Amendment was drawn by Lysander  Spooner who commented that a "right of resistance" is protected by both the  right to trial by jury and the Second Amendment.
The congressional debate  on the proposed Fourteenth Amendment concentrated on what the Southern States  were doing to harm the newly freed slaves, including disarming the former  slaves.
Timothy Farrar
In 1867, Judge Timothy Farrar published his  Manual of the Constitution of the United States of America, which was written  when the Fourteenth Amendment was "in the process of adoption by the State  legislatures.":
The States are recognized as governments, and, when their  own constitutions permit, may do as they please; provided they do not interfere  with the Constitution and laws of the United States, or with the civil or  natural rights of the people recognized thereby, and held in conformity to them.  The right of every person to "life, liberty, and property," to "keep and bear  arms," to the "writ of habeas corpus" to "trial by jury," and divers others, are  recognized by, and held under, the Constitution of the United States, and cannot  be infringed by individuals or even by the government itself.
Judge  Thomas Cooley
Judge Thomas Cooley, perhaps the most widely read  constitutional scholar of the nineteenth century, wrote extensively about this  amendment, and he explained in 1880 how the Second Amendment protected the  "right of the people":
It might be supposed from the phraseology of this  provision that the right to keep and bear arms was only guaranteed to the  militia; but this would be an interpretation not warranted by the intent. The  militia, as has been elsewhere explained, consists of those persons who, under  the law, are liable to the performance of military duty, and are officered and  enrolled for service when called upon. But the law may make provision for the  enrolment of all who are fit to perform military duty, or of a small number  only, or it may wholly omit to make any provision at all; and if the right were  limited to those enrolled, the purpose of this guaranty might be defeated  altogether by the action or neglect to act of the government it was meant to  hold in check. The meaning of the provision undoubtedly is, that the people,  from whom the militia must be taken, shall have the right to keep and bear arms;  and they need no permission or regulation of law for the purpose.
Late  20th century commentary
Assortment of 20th century handguns
In the  latter half of the 20th century, there was considerable debate over whether the  Second Amendment protected an individual right or a collective right. The debate  centered on whether the prefatory clause ("A well regulated militia being  necessary to the security of a free State") declared the amendment’s only  purpose or merely announced a purpose to introduce the operative clause ("the  right of the People to keep and bear arms shall not be infringed"). Scholars  advanced three competing theoretical models for how the prefatory clause should  be interpreted.
The first, known as the "states' rights" or "collective  right" model, held that the Second Amendment does not apply to individuals;  rather, it recognizes the right of each state to arm its militia. Under this  approach, citizens "have no right to keep or bear arms, but the states have a  collective right to have the National Guard". Advocates of collective rights  models argued that the Second Amendment was written to prevent the federal  government from disarming state militias, rather than to secure an individual  right to possess firearms. Prior to 2001, every circuit court decision that  interpreted the Second Amendment endorsed the "collective right" model. However,  beginning with the Fifth Circuit's opinion United States v. Emerson in 2001,  some circuit courts recognized that the Second Amendment protects an individual  right to bear arms.
The second, known as the "sophisticated collective  right model", held that the Second Amendment recognizes some limited individual  right. However, this individual right could only be exercised by actively  participating members of a functioning, organized state militia. Some scholars  have argued that the "sophisticated collective rights model" is, in fact, the  functional equivalent of the "collective rights model." Other commentators have  observed that prior to Emerson, five circuit courts specifically endorsed the  "sophisticated collective right model".
The third, known as the "standard  model", held that the Second Amendment recognized the personal right of  individuals to keep and bear arms. Supporters of this model argued that  "although the first clause may describe a general purpose for the amendment, the  second clause is controlling and therefore the amendment confers an individual  right 'of the people' to keep and bear arms". Additionally, scholars who favored  this model argued the "absence of founding-era militias mentioned in the  Amendment's preamble does not render it a 'dead letter' because the preamble is  a 'philosophical declaration' safeguarding militias and is but one of multiple  'civic purposes' for which the Amendment was enacted".
Under both of the  collective right models, the opening phrase was considered essential as a  pre-condition for the main clause. These interpretations held that this was a  grammar structure that was common during that era and that this grammar dictated  that the Second Amendment protected a collective right to firearms to the extent  necessary for militia duty. However, under the standard model, the opening  phrase was believed to be prefatory or amplifying to the operative clause. The  opening phrase was meant as a non-exclusive example—one of many reasons for the  amendment. This interpretation is consistent with the position that the Second  Amendment protects a modified individual right.
The question of a  collective right versus an individual right was progressively resolved in favor  of the individual rights model, beginning with the Fifth Circuit ruling in  United States v. Emerson (2001), along with the Supreme Court's rulings in  District of Columbia v. Heller (2008), and McDonald v. Chicago (2010). In  Heller, the Supreme Court resolved any remaining circuit splits by ruling that  the Second Amendment protects an individual right. Although the Second Amendment  is the only Constitutional amendment with a prefatory clause, such linguistic  constructions were widely used elsewhere in the late eighteenth century.
Meaning of "well regulated militia"
The term "regulated" means "disciplined"  or "trained". In Heller, the U.S. Supreme Court stated that "he adjective  'well-regulated' implies nothing more than the imposition of proper discipline  and training."
In the year prior to the drafting of the Second Amendment,  in Federalist No. 29 Alexander Hamilton wrote the following about "organizing",  "disciplining", "arming", and "training" of the militia as specified in the  enumerated powers:
If a well regulated militia be the most natural  defence of a free country, it ought certainly to be under the regulation and at  the disposal of that body which is constituted the guardian of the national  security ... confiding the regulation of the militia to the direction of the  national authority ... [but] reserving to the states ... the authority of  training the militia ... A tolerable expertness in military movements is a  business that requires time and practice. It is not a day, or even a week, that  will suffice for the attainment of it. To oblige the great body of the yeomanry,  and of the other classes of the citizens, to be under arms for the purpose of  going through military exercises and evolutions, as often as might be necessary  to acquire the degree of perfection which would entitle them to the character of  a well-regulated militia, would be a real grievance to the people, and a serious  public inconvenience and loss ... Little more can reasonably be aimed at, with  respect to the People at large, than to have them properly armed and equipped;  and in order to see that this be not neglected, it will be necessary to assemble  them once or twice in the course of a year.
Justice Scalia, writing for  the Court in Heller: "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 in the prefatory clause, in continuity  with the English right":
Nor is the right involved in this discussion  less comprehensive or valuable: "The right of the people to bear arms shall not  be infringed." 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, 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, reestablished by the revolution of  1688, conveyed to this land of liberty by the colonists, and finally  incorporated conspicuously in our own Magna Charta! And Lexington, Concord,  Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans,  plead eloquently for this interpretation! And the acquisition of Texas may be  considered the full fruits of this great constitutional right.
Justice  Stevens in dissent:
When each word in the text is given full effect, the  Amendment is most naturally read to secure to the people a right to use and  possess arms in conjunction with service in a well-regulated militia. So far as  appears, no more than that was contemplated by its drafters or is encompassed  within its terms. Even if the meaning of the text were genuinely susceptible to  more than one interpretation, the burden would remain on those advocating a  departure from the purpose identified in the preamble and from settled law to  come forward with persuasive new arguments or evidence. The textual analysis  offered by respondent and embraced by the Court falls far short of sustaining  that heavy burden. And the Court’s emphatic reliance on the claim "that the  Second Amendment ... codified a pre-existing right," ante, at 19, is of course  beside the point because the right to keep and bear arms for service in a state  militia was also a pre-existing right.
Meaning of "the right of the  People"
Justice Antonin Scalia, writing for the majority in Heller, stated:
Nowhere else in the Constitution does a "right" attributed to "the people"  refer to anything other than an individual right. 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.  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".
An  earlier case, United States v. Verdugo-Urquidez (1990), dealt with nonresident  aliens and the Fourth Amendment, but led to a discussion of who are "the People"  when referred to elsewhere in the Constitution:
The Second Amendment  protects "the right of the people to keep and bear Arms," and the Ninth and  Tenth Amendments provide that certain rights and powers are retained by and  reserved to "the people" ... While this textual exegesis is by no means  conclusive, it suggests that "the people" protected by the 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.
There were several  different reasons for this amendment, and protecting militias was only one of  them; if protecting militias had been the only reason then the amendment could  have instead referred to "the right of the militia to keep and bear arms"  instead of "the right of the people to keep and bear arms".
Meaning of  "keep and bear arms"
In Heller the majority rejected the view that the term  "to bear arms" implies only the military use of arms:
Before addressing  the verbs "keep" and "bear," we interpret their object: "Arms." 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. Thus, the most  natural reading of "keep Arms" in the Second Amendment is to "have weapons." At  the time of the founding, as now, to "bear" meant to "carry." In numerous  instances, "bear arms" was unambiguously used to refer to the carrying of  weapons outside of an organized militia. Nine state constitutional provisions  written in the 18th century or the first two decades of the 19th, which  enshrined a right of citizens "bear arms in defense of themselves and the state"  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." But it unequivocally bore that idiomatic meaning only when followed  by the preposition "against,". Every example given by petitioners’ amici for the  idiomatic meaning of "bear arms" from the founding period either includes the  preposition "against" or is not clearly idiomatic. 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. 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."
In  a dissent, joined by Justices Souter, Ginsburg, and Breyer, Justice Stevens  said:
The Amendment's text does justify a different limitation: the  "right to keep and bear arms" protects only a right to possess and use firearms  in connection with service in a state-organized militia. Had the Framers wished  to expand the meaning of the phrase "bear arms" to encompass civilian possession  and use, they could have done so by the addition of phrases such as "for the  defense of themselves".
Supreme Court cases
U.S. Supreme Court
See also: Firearm case law in the United States
In the century following the  ratification of the Bill of Rights, the intended meaning and application of the  Second Amendment drew less interest than it does in modern times. The vast  majority of regulation was done by states, and the first case law on weapons  regulation dealt with state interpretations of the Second Amendment. A notable  exception to this general rule was Houston v. Moore, 18 U.S. 1 (1820), where the  U.S. Supreme Court mentioned the Second Amendment in an aside. In the Dred Scott  decision, the opinion of the court stated that if African Americans were  considered U.S. citizens, "It would give to persons of the negro race, who were  recognised as citizens in any one State of the Union, the right...to keep and  carry arms wherever they went."
State and federal courts historically  have used two models to interpret the Second Amendment: the "individual rights"  model, which holds that individuals hold the right to bear arms, and the  "collective rights" model, which holds that the right is dependent on militia  membership. The "collective rights" model has been rejected by the Supreme  Court, in favor of the individual rights model.
The Supreme Court's  primary Second Amendment cases include United States v. Miller, (1939); District  of Columbia v. Heller (2008); and McDonald v. Chicago (2010).
Heller and  McDonald supported the individual rights model, under which the Second Amendment  protects the right to keep and bear arms much as the First Amendment protects  the right to free speech. Under this model, the militia is composed of members  who supply their own arms and ammunition. This is generally recognized as the  method by which militias have historically been armed, as the Supreme Court in  Miller said:
The signification attributed to the term Militia appears  from the debates in the Convention, the history and legislation of Colonies and  States, and the writings of approved commentators. These show plainly enough  that the Militia comprised all males physically capable of acting in concert for  the common defense. 'A body of citizens enrolled for military discipline.' And  further, that ordinarily when called for service these men were expected to  appear bearing arms supplied by themselves and of the kind in common use at the  time.
Of the collective rights model that holds that the right to arms is  based on militia membership, the Supreme Court in Heller said:
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  self-defense" or "to make war against the King"). But if "bear arms" means, as  the petitioners and the dissent think, the 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.
United States v. Cruikshank
Main article: United States v.  Cruikshank
In the Reconstruction Era case of United States v. Cruikshank, 92  U.S. 542 (1875), the defendants were white men who had killed more than sixty  black people in what was known as the Colfax massacre and had been charged with  conspiring to prevent blacks from exercising their right to bear arms. The Court  dismissed the charges, holding that the Bill of Rights restricted Congress but  not private individuals. The Court concluded, "[for their protection in its  enjoyment, the people must look to the States."
The Court stated that  "[the Second Amendment...has no other effect than to restrict the powers of the  national government ......" Likewise, the Court held that there was no state  action in this case, and therefore the Fourteenth Amendment was not applicable:
The fourteenth amendment prohibits a State from depriving any person of  life, liberty, or property, without due process of law; but this adds nothing to  the rights of one citizen as against another.
Thus, the Court held a  federal anti-Ku-Klux-Klan statute to be unconstitutional as applied in that  case.
Presser v. Illinois
Main article: Presser v. Illinois
In  Presser v. Illinois, 116 U.S. 252 (1886), Herman Presser headed a  German-American paramilitary shooting organization and was arrested for leading  a parade group of 400 men, training and drilling with military weapons with the  declared intention to fight, through the streets of Chicago as a violation of  Illinois law that prohibited public drilling and parading in military style  without a permit from the governor.
At his trial, Presser argued that the  State of Illinois had violated his Second Amendment rights. The Supreme Court  reaffirmed Cruikshank, and also held that the Second Amendment prevented neither  the States nor Congress from barring private militias that parade with arms;  such a right "cannot be claimed as a right independent of law." This decision  upheld the States' authority to regulate the militia and that citizens had no  right to create their own militias or to own weapons for semi-military purposes.  However the court said: "A state cannot prohibit the people therein from keeping  and bearing arms to an extent that would deprive the United States of the  protection afforded by them as a reserve military force."
Miller v. Texas
In Miller v. Texas, 153 U.S. 535 (1894), Franklin Miller was convicted and  sentenced to be executed for shooting a police officer to death with an  illegally carried handgun in violation of Texas law. Miller sought to have his  conviction overturned, claiming his Second Amendment rights were violated and  that the Bill of Rights should be applied to state law. The Supreme Court ruled  that the Second Amendment did not apply to state laws such as the Texas law: "As  the proceedings were conducted under the ordinary forms of criminal prosecutions  there certainly was no denial of due process of law."
Robertson v.  Baldwin
In Robertson v. Baldwin, 165 U.S. 275 (1897), the Court stated in  dicta that laws regulating concealed arms did not infringe upon the right to  keep and bear arms and thus were not a violation of the Second Amendment:
The law is perfectly well settled that the first ten amendments to the  Constitution, commonly known as the "Bill of Rights," were not intended to lay  down any novel principles of government, but simply to embody certain guaranties  and immunities which we had inherited from our English ancestors, and which had,  from time immemorial, been subject to certain well recognized exceptions arising  from the necessities of the case. In incorporating these principles into the  fundamental law, there was no intention of disregarding the exceptions, which  continued to be recognized as if they had been formally expressed. Thus, the  freedom of speech and of the press (Art. I) does not permit the publication of  libels, blasphemous or indecent articles, or other publications injurious to  public morals or private reputation; the right of the people to keep and bear  arms (Art. II) is not infringed by laws prohibiting the carrying of concealed  weapons.
United States v. Miller
Main article: United States v. Miller
In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court rejected a  Second Amendment challenge to the National Firearms Act prohibiting the  interstate transportation of unregistered Title II weapons:
Jack Miller  and Frank Layton "did unlawfully ... transport in interstate commerce from ...  Claremore ... Oklahoma to ... Siloam Springs ... Arkansas a certain firearm ...  a double barrel ... shotgun having a barrel less than 18 inches in length ... at  the time of so transporting said firearm in interstate commerce ... not having  registered said firearm as required by Section 1132d of Title 26, United States  Code ... and not having in their possession a stamp-affixed written order ... as  provided by Section 1132C ..."
In a unanimous opinion authored by Justice  McReynolds, the Supreme Court stated "the objection that the Act usurps police  power reserved to the States is plainly untenable." As the Court explained:
In the absence of any evidence tending to show that possession or use of a  'shotgun having a barrel of less than eighteen inches in length' at this time  has some reasonable relationship to any preservation or efficiency of a well  regulated militia, we cannot say that the Second Amendment guarantees the right  to keep and bear such an instrument. Certainly it is not within judicial notice  that this weapon is any part of the ordinary military equipment or that its use  could contribute to the common defense.
Gun rights advocates claim that  the Court in Miller ruled that the Second Amendment protected the right to keep  arms that are part of "ordinary military equipment." They also claim that the  Court did not consider the question of whether the sawed-off shotgun in the case  would be an applicable weapon for personal defense, instead looking solely at  the weapon's suitability for the "common defense." Law professor Andrew McClurg  states, "The only certainty about Miller is that it failed to give either side a  clear-cut victory. Most modern scholars recognize this fact."
District of  Columbia v. Heller
Main article: District of Columbia v. Heller
Judgment
The Justices who decided Heller
According to the syllabus prepared by the  U.S. Supreme Court Reporter of Decisions, in District of Columbia v. Heller, 554  U.S. 570 (2008), the Supreme Court 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 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.
(c) The Court’s interpretation is confirmed by analogous arms-bearing  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, nor Presser v. Illinois, 116 U. S. 252, refutes the individual-rights  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 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.
There are similar legal  summaries of the Supreme Court's findings in Heller. For example, the Illinois  Supreme Court in People v. Aguilar (2013), summed up Heller's findings and  reasoning:
In District of Columbia v. Heller, 554 U.S. 570 (2008), the  Supreme Court undertook its first-ever "in-depth examination" of the second  amendment’s meaning Id. at 635. After a lengthy historical discussion, the Court  ultimately concluded that the second amendment "guarantee the individual right  to possess and carry weapons in case of confrontation" (id. at 592); that  "central to" this right is "the inherent right of self-defense"(id. at 628);  that "the home" is "where the need for defense of self, family, and property is  most acute" (id. at 628); and that, "above all other interests," the second  amendment elevates "the right of law-abiding, responsible citizens to use arms  in defense of hearth and home" (id. at 635). Based on this understanding, the  Court held that a District of Columbia law banning handgun possession in the  home violated the second amendment. Id. at 635.
Notes and analysis
Heller has been widely described as a landmark decision. To clarify that its  ruling does not invalidate a broad range of existing firearm laws, the majority  opinion, written by Justice Antonin Scalia, said:
Like most rights, the  right secured by the Second Amendment is not unlimited ... Although we do not  undertake an exhaustive historical analysis today of the full scope of the  Second Amendment, nothing in our opinion should be taken to cast doubt on  longstanding prohibitions on the possession of firearms by felons and the  mentally ill, or laws forbidding the carrying of firearms in sensitive places  such as schools and government buildings, or laws imposing conditions and  qualifications on the commercial sale of arms.
The Court's statement that  the right is limited has been widely discussed by lower courts and the media.  The majority opinion also said that the amendment's prefatory clause  (referencing the "militia") serves to clarify the operative clause (referencing  "the people"), but does not limit the scope of the operative clause, because  "the 'militia' in colonial America consisted of a subset of 'the people'...."
Justice Stevens' dissenting opinion, which was joined by the three other  dissenters, said:
The question presented by this case is not whether the  Second Amendment protects a "collective right" or an "individual right." Surely  it protects a right that can be enforced by individuals. But a conclusion that  the Second Amendment protects an individual right does not tell us anything  about the scope of that right.
Stevens went on to say the following:
The Second Amendment was adopted to protect the right of the people of each  of the several States to maintain a well-regulated militia. It was a response to  concerns raised during the ratification of the Constitution that the power of  Congress to disarm the state militias and create a national standing army posed  an intolerable threat to the sovereignty of the several States. Neither the text  of the Amendment nor the arguments advanced by its proponents evidenced the  slightest interest in limiting any legislature’s authority to regulate private  civilian uses of firearms. Specifically, there is no indication that the Framers  of the Amendment intended to enshrine the common-law right of self-defense in  the Constitution.
This dissent called the majority opinion "strained and  unpersuasive" and said that the right to possess a firearm exists only in  relation to the militia and that the D.C. laws constitute permissible  regulation. In the majority opinion, Justice Stevens' interpretation of the  phrase "to keep and bear arms" was referred to as a "hybrid" definition that  Stevens purportedly chose in order to avoid an "incoherent" and "[grotesque"  idiomatic meeting.
Justice Breyer, in his own dissent joined by Stevens,  Souter, and Ginsburg, stated that the entire Court subscribes to the proposition  that "the amendment protects an 'individual' right—i.e., one that is separately  possessed, and may be separately enforced, by each person on whom it is  conferred".
Regarding the term "well regulated", the majority opinion  said, "The adjective 'well-regulated' implies nothing more than the imposition  of proper discipline and training." The majority opinion quoted Spooner from The  Unconstitutionality of Slavery as saying that the right to bear arms was  necessary for those who wanted to take a stand against slavery. The majority  opinion also stated that:
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 self-defense" or "to make war against the King").  But if "bear arms" means, as the petitioners and the dissent think, the 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.
The dissenting justices were  not persuaded by this argument.
Reaction to Heller has varied, with many  sources giving focus to the ruling referring to itself as being the first in  Supreme Court history to read the Second Amendment as protecting an individual  right. The majority opinion, authored by Justice Scalia, gives explanation of  the majority legal reasoning behind this decision. The majority opinion made  clear that the recent ruling did not foreclose the Court’s prior interpretations  given in United States v. Cruikshank, Presser v. Illinois, and United States v.  Miller though these earlier rulings did not limit the right to keep and bear  arms solely 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).
Heller pertained to three District of Columbia  ordinances involving restrictions on firearms amounting to a total ban. These  three ordinances were a ban on handgun registration, a requirement that all  firearms in a home be either disassembled or have a trigger lock, and licensing  requirement that prohibits carrying an unlicensed firearm in the home, such as  from one room to another.
Under any of the standards of scrutiny the  Court has applied to enumerated constitutional rights, this prohibition—in the  place where the importance of the lawful defense of self, family, and property  is most acute—would fail constitutional muster.... Because Heller conceded at  oral argument that the District's licensing law is permissible if it is not  enforced arbitrarily and capriciously, the Court assumed that a license will  satisfy his prayer for relief and did 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."
Justice Ginsberg has been a vocal critic of  Heller. Speaking in an interview on public radio station WNYC, she called the  Second Amendment "outdated," saying:
When we no longer need people to  keep muskets in their home, then the Second Amendment has no function ... If the  Court had properly interpreted the Second Amendment, the Court would have said  that amendment was very important when the nation was new; it gave a qualified  right to keep and bear arms, but it was for one purpose only—and that was the  purpose of having militiamen who were able to fight to preserve the nation.
McDonald v. Chicago
Main article: McDonald v. Chicago
On June 28,  2010, the Court in McDonald v. Chicago, 561 U.S. 3025 (2010), held that the  Second Amendment was incorporated, saying that "[it is clear that the Framers  and ratifiers of the Fourteenth Amendment counted the right to keep and bear  arms among those fundamental rights necessary to our system of ordered liberty."  This means that the Court ruled that the Second Amendment limits state and local  governments to the same extent that it limits the federal government. It also  remanded a case regarding a Chicago handgun prohibition. Four of the five  Justices in the majority voted to do so by way of the Due Process Clause of the  Fourteenth Amendment, while the fifth Justice, Clarence Thomas, voted to do so  through the amendment's Privileges or Immunities Clause.
Justice Thomas  noted that the Privileges or Immunities Clause refers to "citizens" whereas the  Due Process Clause refers more broadly to any "person", and therefore Thomas  reserved the issue of non-citizens for later decision. After McDonald, many  questions about the Second Amendment remain unsettled, such as whether  non-citizens are protected through the Equal Protection Clause.
In People  v. Aguilar (2013), the Illinois Supreme Court summed up the central Second  Amendment findings in McDonald:
Two years later, in McDonald v. City of  Chicago, 561 U.S. ___, ___, 130 S. Ct. 3020, 3050 (2010), the Supreme Court held  that the second amendment right recognized in Heller is applicable to the states  through the due process clause of the fourteenth amendment. In so holding, the  Court reiterated that "the Second Amendment protects the right to keep and bear  arms for the purpose of self-defense" (id. at ___, 130 S. Ct. at 3026); that  "individual self-defense is ‘the central component’ of the Second Amendment  right" (emphasis in original) (id. at ___, 130 S. Ct. at 3036 (quoting Heller,  554 U.S. at 599)); and that "[self-defense is a basic right, recognized by many  legal systems from ancient times to the present day" (id. at ___, 130 S. Ct. at  3036).
Caetano v. Massachusetts
Main article: Caetano v. Massachusetts
On March 21, 2016, in a per curiam decision the Court vacated a Massachusetts  Supreme Judicial Court decision upholding the conviction of a woman who carried  a stun gun for self defense. The Court reiterated that the Heller and McDonald  decisions saying that "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", that "the Second Amendment right is fully  applicable to the States", and that the protection is not restricted to "only  those weapons useful in warfare".
United States Courts of Appeals  decisions before and after Heller
Before Heller
Until District of Columbia  v. Heller (2008), United States v. Miller (1939) had been the only Supreme Court  decision that "tested a congressional enactment against [the Second Amendment."  Miller did not directly mention either a collective or individual right, but for  the 62-year period from Miller until the Fifth Circuit's decision in United  States v. Emerson (2001), federal courts recognized only the collective right,  with "courts increasingly referring to one another's holdings...without engaging  in any appreciably substantive legal analysis of the issue".
Emerson  changed this by addressing the question in depth, with the Fifth Circuit  determining that the Second Amendment protects an individual right.  Subsequently, the Ninth Circuit conflicted with Emerson in Silviera v. Lockyer,  and the D.C. Circuit supported Emerson in Parker v. District of Columbia. Parker  evolved into District of Columbia v. Heller, in which the U.S. Supreme Court  determined that the Second Amendment protects an individual right.
After  Heller
Since Heller, the United States courts of appeals have ruled on many  Second Amendment challenges to convictions and gun control laws. The following  are post-Heller cases, divided by Circuit, along with summary notes:
D.C.  Circuit
Heller v. District of Columbia, Civil Action No. 08-1289 (RMU),  No. 23., 25 On March 26, 2010, the D.C. Circuit denied the follow up appeal of  Dick Heller who requested the court to overturn the new District of Columbia gun  control ordinances newly enacted after the 2008 Heller ruling. The court refused  to do so, stating that the firearms registration procedures, the prohibition on  assault weapons, and the prohibition on large capacity ammunition feeding  devices were found to not violate the Second Amendment. On September 18, 2015,  the D.C. Circuit ruled that requiring gun owners to re-register a gun every  three years, make a gun available for inspection or pass a test about firearms  laws violated the Second Amendment. The court upheld requirements that gun  owners be fingerprinted, photographed and complete a safety training course.
First Circuit
United States v. Rene E., 583 F.3d 8 (1st Cir. 2009) – On  August 31, 2009, the First Circuit affirmed the conviction of a juvenile for the  illegal possession of a handgun as a juvenile, under 18 U.S.C. § 922(x)(2)(A)  and 18 U.S.C. § 5032, rejecting the defendant's argument that the federal law  violated his Second Amendment rights under Heller. The court cited "the  existence of a longstanding tradition of prohibiting juveniles from both  receiving and possessing handguns" and observed "the federal ban on juvenile  possession of handguns is part of a longstanding practice of prohibiting certain  classes of individuals from possessing firearms — those whose possession poses a  particular danger to the public."
Second Circuit
Kachalsky v. County  of Westchester, 11-3942 – On November 28, 2012, the Second Circuit upheld New  York's may-issue concealed carry permit law, ruling that "the proper cause  requirement is substantially related to New York's compelling interests in  public safety and crime prevention."
Fourth Circuit
United States v.  Hall, 551 F.3d 257 (4th Cir. 2009) – On August 4, 2008, the Fourth Circuit  upheld as constitutional the prohibition of possession of a concealed weapon  without a permit.
United States v. Chester, 628 F.3d 673 (4th Cir. 2010) – On  December 30, 2010, the Fourth Circuit vacated William Chester's conviction for  possession of a firearm after having been convicted of a misdemeanor crime of  domestic violence, in violation of 18 U.S.C. § 922(g)(9). The court found that  the district court erred in perfunctorily relying on Heller's exception for  "presumptively lawful" gun regulations made in accordance with "longstanding  prohibitions".
Kolbe v. Hogan, No. 14-1945 (4th Cir. 2016) - On February 4,  2016, the Fourth Circuit vacated a U.S. District Court decision upholding a  Maryland law banning high-capacity magazines and semi-automatic rifles, ruling  that the District Court was wrong to have applied intermediate scrutiny. The  Fourth Circuit ruled that the higher strict scrutiny standard is to be applied  on remand. On March 4, 2016, the court agreed to rehear the case en banc on May  11, 2016.
Fifth Circuit
United States v. Dorosan, 350 Fed. Appx. 874  (5th Cir. 2009) – On June 30, 2008, the Fifth Circuit upheld 39 C.F.R. 232.1(l),  which bans weapons on postal property, sustaining restrictions on guns outside  the home, specifically in private vehicles parked in employee parking lots of  government facilities, despite Second Amendment claims that were dismissed. The  employee's Second Amendment rights were not infringed since the employee could  have instead parked across the street in a public parking lot, instead of on  government property.
United States v. Bledsoe, 334 Fed. Appx. 771 (5th Cir.  2009) – The Fifth Circuit affirmed the decision of a U.S. District Court  decision in Texas, upholding 18 U.S.C. § 922(a)(6), which prohibits "straw  purchases." A "straw purchase" occurs when someone eligible to purchase a  firearm buys one for an ineligible person. Additionally, the court rejected the  request for a strict scrutiny standard of review.
United States v. Scroggins,  551 F.3d 257 (5th Cir. 2010) – On March 4, 2010, the Fifth Circuit affirmed the  conviction of Ernie Scroggins for possession of a firearm as a convicted felon,  in violation of 18 U.S.C. § 922(g)(1). The court noted that it had, prior to  Heller, identified the Second Amendment as providing an individual right to bear  arms, and had already, likewise, determined that restrictions on felon ownership  of firearms did not violate this right. Moreover, it observed that Heller did  not affect the longstanding prohibition of firearm possession by felons.
Sixth Circuit
Tyler v. Hillsdale Co. Sheriff’s Dept., 775 F.3d 308 (6th  Cir. 2014) - On December 18, 2014, the Sixth Circuit ruled that strict scrutiny  should be applied to firearms regulations when regulations burden "conduct that  falls within the scope of the Second Amendment right, as historically  understood." At issue in this case was whether the Second Amendment is violated  by a provision of the Gun Control Act of 1968 that prohibits possession of a  firearm by a person who has been involuntarily committed to a psychiatric  hospital. The court did not rule on the provision's constitutionality, instead  remanding the case to the United States district court that has earlier heard  this case. On April 21, 2015, the Sixth Circuit voted to rehear the case en  banc, thereby vacating the December 18 opinion.
Seventh Circuit
United  States v. Skoien, 587 F.3d 803 (7th Cir. 2009) – Steven Skoien, a Wisconsin man  convicted of two misdemeanor domestic violence convictions, appealed his  conviction based on the argument that the prohibition violated the individual  rights to bear arms, as described in Heller. After initial favorable rulings in  lower court based on a standard of intermediate scrutiny, on July 13, 2010, the  Seventh Circuit, sitting en banc, ruled 10–1 against Skoien and reinstated his  conviction for a gun violation, citing the strong relation between the law in  question and the government objective. Skoien was convicted and sentenced to two  years in prison for the gun violation, and will thus likely be subject to a  lifetime ban on gun ownership. Editorials favoring gun rights sharply criticized  this ruling as going too far with the enactment of a lifetime gun ban, while  editorials favoring gun regulations praised the ruling as "a bucket of cold  water thrown on the 'gun rights' celebration".
Moore v. Madigan (Circuit  docket 12-1269) – On December 11, 2012, the Seventh Circuit ruled that the  Second Amendment protected a right to keep and bear arms in public for  self-defense. This was an expansion of the Supreme Court's decisions in Heller  and McDonald, each of which referred only to such a right in the home. Based on  this ruling, the court declared Illinois's ban on the concealed carrying of  firearms to be unconstitutional. The court stayed this ruling for 180 days, so  Illinois could enact replacement legislation. On February 22, 2013, a petition  for rehearing en banc was denied by a vote of 5-4. On July 9, 2013, the Illinois  General Assembly, overriding Governor Quinn's veto, passed a law permitting the  concealed carrying of firearms.
Ninth Circuit
Nordyke v. King, 2012 WL  1959239 (9th Cir. 2012) – On July 29, 2009, the Ninth Circuit vacated an April  20 panel decision and reheard the case en banc on September 24, 2009. The April  20 decision had held that the Second Amendment applies to state and local  governments, while upholding an Alameda County, California ordinance that makes  it a crime to bring a gun or ammunition on to, or possess either while on,  county property. The en banc panel remanded the case to the three-judge panel.  On May 2, 2011, that panel ruled that intermediate scrutiny was the correct  standard by which to judge the ordinance's constitutionality and remanded the  case to the United States District Court for the Northern District of  California. On November 28, 2011, the Ninth Circuit vacated the panel's May 2  decision and agreed to rehear the case en banc. On April 4, 2012, the panel sent  the case to mediation. The panel dismissed the case on June 1, 2012, but only  after Alameda County officials changed their interpretation of the challenged  ordinance. Under the new interpretation, gun shows may take place on county  property under the ordinance's exception for "events", subject to restrictions  regarding the display and handling of firearms.
Teixeira v. County of  Alameda, (Circuit docket 13-17132) – On May 16, 2016, the Ninth Circuit ruled  that the right to keep and bear arms included being able to buy and sell  firearms. The court ruled that a county law prohibiting a gun store being within  500 feet of a "[residentially zoned district; elementary, middle or high school;  pre-school or day care center; other firearms sales business; or liquor stores  or establishments in which liquor is served" violated the Second Amendment.
The flag of the United States of America, often referred to as the American  flag, is the national flag of the United States. It consists of thirteen equal  horizontal stripes of red (top and bottom) alternating with white, with a blue  rectangle in the canton (referred to specifically as the "union") bearing fifty  small, white, five-pointed stars arranged in nine offset horizontal rows of six  stars (top and bottom) alternating with rows of five stars. The 50 stars on the  flag represent the 50 states of the United States of America, and the 13 stripes  represent the thirteen British colonies that declared independence from the  Kingdom of Great Britain, and became the first states in the Union. Nicknames  for the flag include the Stars and Stripes, Old Glory, and the Star-Spangled  Banner.
Designer of the first stars and stripes
Francis Hopkinson of  New Jersey, a naval flag designer, and a signer of the Declaration of  Independence, designed the 1777 flag while he was the Chairman of the  Continental Navy Board's Middle Department, sometime between his appointment to  that position in November 1776 and the time that the flag resolution was adopted  in June 1777. The Navy Board was under the Continental Marine Committee. Not  only did Hopkinson claim that he designed the U.S. flag, but he also claimed  that he designed a flag for the U.S. Navy. Hopkinson was the only person to have  made such a claim during his own lifetime, when he sent a letter and several  bills to Congress for his work. These claims are documented in the Journals of  the Continental Congress and George Hasting's biography of Hopkinson. Hopkinson  initially wrote a letter to Congress, via the Continental Board of Admiralty. In  this letter, he asked for a "Quarter Cask of the Public Wine" as payment for  designing the U.S. flag, the seal for the Admiralty Board, the seal for the  Treasury Board, Continental currency, the Great Seal of the United States, and  other devices. However, in three subsequent bills to Congress, Hopkinson asked  to be paid in cash, but he did not list his U.S. flag design. Instead, he asked  to be paid for designing the "great Naval Flag of the United States" in the  first bill; the "Naval Flag of the United States" in the second bill; and "the  Naval Flag of the States" in the third, along with the other items. The flag  references were generic terms for the naval ensign that Hopkinson had designed,  that is, a flag of seven red stripes and six white ones. The predominance of red  stripes made the naval flag more visible against the sky on a ship at sea. By  contrast, Hopkinson's flag for the United States had seven white stripes, and  six red ones – in reality, six red stripes laid on a white background.  Hopkinson's sketches have not been found, but we can make these conclusions  because Hopkinson incorporated different stripe arrangements in the Admiralty  (naval) Seal that he designed in the Spring of 1780 and the Great Seal of the  United States that he proposed at the same time. His Admiralty Seal had seven  red stripes; whereas, his second U.S. Seal proposal had seven white ones.  Hopkinson's flag for the Navy is the one that the Nation preferred as the  national flag. Remnants of Hopkinson's U.S. flag of seven white stripes can be  found in the Great Seal of the United States and the President's seal. When  Hopkinson was chairman of the Navy Board, his position was like that of today's  Secretary of the Navy. The payment was not made, however, because it was  determined he had already received a salary as a member of Congress. This  contradicts the legend of the Betsy Ross flag, which suggests that she sewed the  first Stars and Stripes flag by request of the government in the Spring of 1776.  Furthermore, a letter from the War Board to George Washington on May 10, 1779,  documents that there was still no design established for a national flag for the  Army's use in battle.
The origin of the stars and stripes design has been  muddled by a story disseminated by the descendants of Betsy Ross. The apocryphal  story credits Betsy Ross for sewing the first flag from a pencil sketch handed  to her by George Washington. No evidence for this exists either in the diaries  of George Washington nor in the records of the Continental Congress. Indeed,  nearly a century passed before Ross' grandson, William Canby, first publicly  suggested the story in 1870. By her family's own admission, Ross ran an  upholstery business, and she had never made a flag as of the supposed visit in  June 1776. Furthermore, her grandson admitted that his own search through the  Journals of Congress and other official records failed to find corroboration of  his grandmother's story.
The family of Rebecca Young claimed that she  sewed the first flag. Young's daughter was Mary Pickersgill, who made the Star  Spangled Banner Flag. According to rumor, the Washington family coat of arms,  shown in a 15th-century window of Selby Abbey, was the origin of the stars and  stripes.
The modern meaning of the flag was forged in December 1860, when  Major Robert Anderson moved the U.S. garrison from Fort Moultrie to Fort Sumter  in Charleston Harbor. Author Adam Goodheart argues this was the opening move of  the American Civil War, and the flag was used throughout northern states to  symbolize American nationalism and rejection of secessionism.
Before that  day, the flag had served mostly as a military ensign or a convenient marking of  American territory, flown from forts, embassies, and ships, and displayed on  special occasions like American Independence day. But in the weeks after Major  Anderson's surprising stand, it became something different. Suddenly the Stars  and Stripes flew—as it does today, and especially as it did after the September  11 attacks in 2001—from houses, from storefronts, from churches; above the  village greens and college quads. For the first time American flags were  mass-produced rather than individually stitched and even so, manufacturers could  not keep up with demand. As the long winter of 1861 turned into spring, that old  flag meant something new. The abstraction of the Union cause was transfigured  into a physical thing: strips of cloth that millions of people would fight for,  and many thousands die for.
– Adam Goodheart.
The flag of the United  States is one of the nation's most widely recognized symbols. Within the United  States, flags are frequently displayed not only on public buildings but on  private residences. The flag is a common motif on decals for car windows, and  clothing ornaments such as badges and lapel pins. Throughout the world the flag  has been used in public discourse to refer to the United States.
The flag  has become a powerful symbol of Americanism, and is proudly flown on many  occasions, with giant outdoor flags used by retail outlets to draw customers.  Desecration of the flag is considered a public outrage, but remains protected as  freedom of speech. In worldwide comparison, Testi noted in 2010 that the United  States was not unique in adoring its banner, for the flags of Scandinavian  countries are also "beloved, domesticated, commercialized and sacralized  objects".
The 49- and 50-star unions
A U.S. flag with gold fringe  and a gold eagle on top of the flag pole.
When Alaska and Hawaii were being  considered for statehood in the 1950s, more than 1,500 designs were submitted to  President Dwight D. Eisenhower. Although some of them were 49-star versions, the  vast majority were 50-star proposals. At least three of these designs were  identical to the present design of the 50-star flag. At the time, credit was  given by the executive department to the United States Army Institute of  Heraldry for the design.
Of these proposals, one created by 17-year-old  Robert G. Heft in 1958 as a school project received the most publicity. His  mother was a seamstress, but refused to do any of the work for him. He  originally received a B– for the project. After discussing the grade with his  teacher, it was agreed (somewhat jokingly) that if the flag was accepted by  Congress, the grade would be reconsidered. Heft's flag design was chosen and  adopted by presidential proclamation after Alaska and before Hawaii was admitted  into the Union in 1959. According to Heft, his teacher did keep to their  agreement and changed his grade to an A for the project. Both the 49- and  50-star flags were each flown for the first time ever at Fort McHenry on  Independence Day one year apart, 1959 and 1960 respectively.
Decoration
Traditionally, the flag may be decorated with golden fringe surrounding the  perimeter of the flag as long as it does not deface the flag proper. Ceremonial  displays of the flag, such as those in parades or on indoor posts, often use  fringe to enhance the appearance of the flag.
The first recorded use of  fringe on a flag dates from 1835, and the Army used it officially in 1895. No  specific law governs the legality of fringe, but a 1925 opinion of the attorney  general addresses the use of fringe (and the number of stars) "... is at the  discretion of the Commander in Chief of the Army and Navy ..." as quoted from  footnote in previous volumes of Title 4 of the United States Code law books and  is a source for claims that such a flag is a military ensign not civilian.  However, according to the Army Institute of Heraldry, which has official custody  of the flag designs and makes any change ordered, there are no implications of  symbolism in the use of fringe. Several federal courts have upheld this  conclusion, most recently and forcefully in Colorado v. Drew, a Colorado Court  of Appeals judgment that was released in May 2010. Traditionally, the Army and  Air Force use a fringed National Color for parade, color guard and indoor  display, while the Sea Services (Navy, Marine Corps and Coast Guard) use a  fringeless National Color for all uses.
Display and use
The flag  is customarily flown year-round at most public buildings, and it is not unusual  to find private houses flying full-size (3 by 5 feet (0.91 by 1.52 m)) flags.  Some private use is year-round, but becomes widespread on civic holidays like  Memorial Day, Veterans Day, Presidents' Day, Flag Day, and on Independence Day.  On Memorial Day it is common to place small flags by war memorials and next to  the graves of U.S. war veterans. Also on Memorial Day it is common to fly the  flag at half staff, until noon, in remembrance of those who lost their lives  fighting in U.S. wars.
Flag etiquette
Main article: United States Flag  Code
The proper stationary vertical display. The canton (blue box of  stars) should always be in the upper-left corner.
The United States Flag Code  outlines certain guidelines for the use, display, and disposal of the flag. For  example, the flag should never be dipped to any person or thing, unless it is  the ensign responding to a salute from a ship of a foreign nation. This  tradition may come from the 1908 Summer Olympics in London, where countries were  asked to dip their flag to King Edward VII: the American flag bearer did not.  Team captain Martin Sheridan is famously quoted as saying "this flag dips to no  earthly king", though the true provenance of this quotation is unclear.
The flag should never be allowed to touch the ground and, if flown at night,  must be illuminated. If the edges become tattered through wear, the flag should  be repaired or replaced. When a flag is so tattered that it can no longer serve  as a symbol of the United States, it should be destroyed in a dignified manner,  preferably by burning. The American Legion and other organizations regularly  conduct flag retirement ceremonies, often on Flag Day, June 14. (The Boy Scouts  of America recommends that modern nylon or polyester flags be recycled instead  of burned, due to hazardous gases being produced when such materials are  burned.)
The Flag Code prohibits using the flag "for any advertising  purpose" and also states that the flag "should not be embroidered, printed, or  otherwise impressed on such articles as cushions, handkerchiefs, napkins, boxes,  or anything intended to be discarded after temporary use". Both of these codes  are generally ignored, almost always without comment.
Section 8, entitled  Respect For Flag states in part: "The flag should never be used as wearing  apparel, bedding, or drapery", and "No part of the flag should ever be used as a  costume or athletic uniform". Section 3 of the Flag Code defines "the flag" as  anything "by which the average person seeing the same without deliberation may  believe the same to represent the flag of the United States of America".
An additional part of Section 8 Respect For Flag, that is frequently violated at  sporting events is part (c) "The flag should never be carried flat or  horizontally, but always aloft and free."
Although the Flag Code is U.S.  federal law, there is no penalty for a private citizen or group failing to  comply with the Flag Code and it is not widely enforced—indeed, punitive  enforcement would conflict with the First Amendment right to freedom of speech.  Passage of the proposed Flag Desecration Amendment would overrule legal  precedent that has been established.
Display on vehicles
When the flag  is affixed to the right side of a vehicle of any kind (e.g.: cars, boats,  planes, any physical object that moves), it should be oriented so that the  canton is towards the front of the vehicle, as if the flag were streaming  backwards from its hoist as the vehicle moves forward. Therefore, U.S. flag  decals on the right sides of vehicles may appear to be reversed, with the union  to the observer's right instead of left as more commonly seen.
The flag  has been displayed on every U.S. spacecraft designed for manned flight,  including Mercury, Gemini, Apollo Command/Service Module, Apollo Lunar Module,  and the Space Shuttle. The flag also appeared on the S-IC first stage of the  Saturn V launch vehicle used for Apollo. But since Mercury, Gemini, and Apollo  were launched and landed vertically and were not capable of horizontal  atmospheric flight as the Space Shuttle did on its landing approach, the  "streaming" convention was not followed and these flags were oriented with the  stripes running horizontally, perpendicular to the direction of flight.
Display on uniforms
The crew of Apollo 1 wore their flags on the right  shoulder, unlike all other US astronaut flight crews
On some U.S.  military uniforms, flag patches are worn on the right shoulder, following the  vehicle convention with the union toward the front. This rule dates back to the  Army's early history, when both mounted cavalry and infantry units would  designate a standard bearer, who carried the Colors into battle. As he charged,  his forward motion caused the flag to stream back. Since the Stars and Stripes  are mounted with the canton closest to the pole, that section stayed to the  right, while the stripes flew to the left. Several US military uniforms, such as  flight suits worn by members of the United States Navy, have the flag patch on  the left shoulder.
Other organizations that wear flag patches on their  uniforms can have the flag facing in either direction. The congressional charter  of the Boy Scouts of America stipulates that the uniforms should not imitate  U.S. military uniforms; consequently, the flags are displayed on the right  shoulder with the stripes facing front, the reverse of the military style. Law  enforcement officers often wear a small flag patch, either on a shoulder, or  above a shirt pocket.
Every U.S. astronaut since the crew of Gemini 4 has  worn the flag on the left shoulder of his or her space suit, with the exception  of the crew of Apollo 1, whose flags were worn on the right shoulder. In this  case, the canton was on the left.
Postage stamps
The flag did not  appear on U.S. postal stamp issues until the Battle of White Plains Issue was  released in 1926, depicting the flag with a circle of 13 stars. The 48-star flag  first appeared on the General Casimir Pulaski issue of 1931, though in a small  monochrome depiction. The first U.S. postage stamp to feature the flag as the  sole subject was issued July 4, 1957, Scott catalog number 1094. Since that time  the flag has frequently appeared on U.S. stamps.
Display in museums
In 1907 Eben Appleton, New York stockbroker and grandson of Lieutenant  Colonel George Armistead (the commander of Fort McHenry during the 1814  bombardment) lent the Star Spangled Banner Flag to the Smithsonian Institution,  and in 1912 he converted the loan to a gift. Appleton donated the flag with the  wish that it would always be on view to the public. In 1994, the National Museum  of American History determined that the Star Spangled Banner Flag required  further conservation treatment to remain on public display. In 1998 teams of  museum conservators, curators, and other specialists helped move the flag from  its home in the Museum's Flag Hall into a new conservation laboratory. Following  the reopening of the National Museum of American History on November 21, 2008,  the flag is now on display in a special exhibition, "The Star-Spangled Banner:  The Flag That Inspired the National Anthem," where it rests at a 10 degree angle  in dim light for conservation purposes.
Places of continuous display
By presidential proclamation, acts of Congress, and custom, U.S. flags are  displayed continuously at certain locations.
Replicas of the Star  Spangled Banner Flag (15 stars, 15 stripes) are flown at two sites in Baltimore,  Maryland: Fort McHenry National Monument and Historic Shrine and Flag House  Square.
Marine Corps War Memorial (Raising the Flag on Iwo Jima),  Arlington, Virginia
The Battle Green in Lexington, Massachusetts, site of  the first shots fired in the Revolution
The White House, Washington, D.C.
Fifty U.S. flags are displayed continuously at the Washington Monument,  Washington, D.C.
Marine Corps War Memorial, Arlington, Virginia
At  U.S. Customs and Border Protection Ports of Entry that are continuously open.
A Civil War era flag (for the year 1863) flies above Pennsylvania Hall (Old  Dorm) at Gettysburg College. This building, occupied by both sides at various  points of the Battle of Gettysburg, served as a lookout and battlefield  hospital.
Grounds of the National Memorial Arch in Valley Forge NHP,  Valley Forge, Pennsylvania
By custom, at the Maryland home, birthplace,  and grave of Francis Scott Key; at the Worcester, Massachusetts war memorial; at  the plaza in Taos, New Mexico (since 1861); at the United States Capitol (since  1918); and at Mount Moriah Cemetery in Deadwood, South Dakota.
Newark Liberty  International Airport's Terminal A, Gate 17 and Boston Logan Airport's Terminal  B, Gate 32 and Terminal C, Gate 19 in memoriam of the events of September 11,  2001.
Slover Mountain (Colton Liberty Flag), in Colton, California. July  4, 1917 to circa. 1952 & 1997 to present.
At the ceremonial South Pole as one  of the 12 flags representing the signatory countries of the original Antarctic  Treaty.
On the Moon: six manned missions successfully landed at various  location and each had a flag raised at the site. The flag placed by the Apollo  11 mission was blown over by exhaust gases when the Ascent Stage launched to  return the astronauts to their Command Module Columbia for return to Earth.
MORALE PATCH - BIKER PATCH - MOTORCYCLE PATCH
Colors are the insignia, or "patches", worn  by motorcycle club members on cut-offs to identify membership of their  club and territorial location. Club patches have been worn by many  different groups but, since the 1960s, have become largely synonymous  with outlaw bikers. They are regarded by many to symbolize an elite among motorcyclists and the style has been widely copied by other  subcultures and commercialized.
Colors are considered to represent  "significant markers of the socialization" of new members to clubs, rank  and present a dominant symbol of identity and marked with related  symbolism. They can be embroidered patches sewn onto clothing or  stenciled in paint, the primary symbol being the "back-patch" of club's  insignia or logo and generally remain the property of the club. Wearing  such clothing is referred to as "flying one's colors".
Colors identify the rank of members within  clubs from new members, from "prospects" to full members known as  "patch-holders", and usually consist of a top and bottom circumferential  badge called a "rocker" stating the club name and location, and a  central logo of the club's insignia, with a fourth, smaller badge  carrying the initials "MC" standing for "Motorcycle Club". They are used  to create social bond and boundaries and, generally, belong to the clubs  involved rather than the individual wearing them. The wearing of them  can often lead individuals to be refused service at related businesses  and bars.
Many motorcyclists wear one-piece patches to  differentiate themselves from three piece patches of outlaw bikers.  These generally do not state a territorial location. The motorcycle  manufacturer Harley-Davidson notably adopted the style in its branding  and community-building effort.
HARLEY DAVIDSON HISTORY
Harley-Davidson is the iconic American motorcycle manufacturer. Founded out of a small shed in 1903 by William S. Harley and brothers Arthur and Walter Davidson in Milwaukee, Wisconsin. The Motor Company produces traditional cruiser motorcycles utilizing air-cooled V-Twin engines. When Harley and Davidson produced and sold their first motorcycle in 1903, they were one of many small motorcycle marques springing up across the country. Flash forward more than a century and the Harley-Davidson brand is so rooted in American culture that the history of the company intertwines with the history of America itself.
Harley-Davidson incorporated in 1907, with William Davidson officially joining forces with his two brothers and Harley. Setting down roots in Milwaukee, Harley-Davidson began hiring employees and by the end of the decade were producing bikes using its signature 45-degree air-cooled V-Twin.
During the next decade H-D continued to expand. Many sales were generated by Uncle Sam, with the American military sourcing Harley motorcycles during the First World War.
Harley-Davidson The Bar and Shield continued to grow and by the early ‘30s, its only surviving domestic rival was Indian. Again H-D expanded in peacetime and found itself producing high quantities of bikes for the American military during World War II. Harley-Davidson press material cites its wartime motorcycle production at 90,000 units.
Post-war Harley-Davidson developments include the introduction of the Sportster in 1957, the oldest production model in the current H-D lineup, as well as other signature H-D models.
Harley experienced changes in ownership in the ‘60s, going public in 1965 and eventually merging with American Machine and Foundry (AMF) in 1969. A decline in fortunes saw AMF sell its stake back to current ownership, which included members of the founding families, in the early ‘80s. The Davidson family’s involvement in the day-to-day running of H-D continues, with direct descendent Willie G. Davidson serving as President of Styling.
The ‘80s and ‘90s saw the introduction of model families that continue to this day, like the Softail, FLT and Road King lines, joining classic models like the Electra Glide. In the ‘90s Harley-Davidson also solidified its hold over Buell motorcycles, taking a controlling stake in the American sportbike/street bike manufacturer and selling Buell motorcycles at many H-D dealers.
Since the turn of the century, Harley-Davidson has retained its image as a classic American icon. But the Motor Co is reaching out to other riders with the introduction of more performance-oriented models, like the V-Rod – significant as the first liquid-cooled production Harley. As the riding demographic ages, H-D is also realizing it must break into the younger market with the release of edgier makeovers of its classic models like the Cross Bones and other members of its Dark Custom line like the Iron 883.
Harley-Davidson has also been working hard to improve the riding quality of its touring bikes. In 2009, it did away with the stamped and welded single-piece frame that anchored Harley touring motorcycles for the last 30 years and replaced it with a cast, single-spar, rigid-backbone frame. It also went with a wider, longer swingarm. H-D also introduced a new three-wheel motorcycle called the Tri Glide that has the classic styling and popular touring features of its best-selling Ultra Classic Electra Glide.
Harley-Davidson also demonstrates what can be done with products from its vast Genuine Motor Accessories and Motor Parts catalog in the form of its CVO (Custom Vehicle Operations) line. The CVO motorcycles are models from Harley’s standard lineup that have received the royal treatment, like the Screamin’ Eagle Twin Cam 110 engine, show-topping custom paint and top-shelf H-D controls and components.
One constant of Harley-Davidson, since almost the very beginning, has been the use of 45-degree air-cooled V-Twins. Popular Harley powerplants and their service timelines are seen below, courtesy of the Harley-Davidson archives.
Twin Cam 103 1999-2006 Twin Cam 96 2007-Present
Twin Cam 88B (counter balanced version of the Twin Cam 88) 2000-2006
Twin Cam 88 2000-2006 Evolution 1340cc 1984-1999
Shovelhead 1966-1985
Panhead 1948-1965
Knucklehead 1936-1947
Flathead 1930 -1948
F-Head, aka JD, pocket valve and IOE (intake over exhaust)
1914-1929 (1000cc), and 1922-1929 (1200cc)
Revolution Engine 2001-Present
Evolution Sportster 1986-Present
Ironhead Sportster 1957-1985
Flathead K Model 1952-1956
RACING
The public best knows Harley-Davidson for is cruisers, but the American firm does have a storied racing past. Pre-WWII riders like Joe Petrali made a name for himself campaigning the Bar and Shield in AMA Hillclimb and Dirt Track races, with Petrali scoring numerous Grand National titles.
Post war, H-D continued to wreak havoc on dirt tracks and the American marque found success in road racing as well. One name forever linked with Harley-Davidson is Cal Rayborn. The AMA Hall of Famer won back-to-back Daytona 200s for Harley and also set the ultimate motorcycle land speed record at Bonneville with a 265.492 mph run in a Harley-Davidson-powered streamliner.
On the dirt track, the Harley-Davidson XR750 dominated the AMA series. The most successful dirt tracker in H-D history was Scott Parker, who tallied 93 wins and nine championship titles under the Bar and Shield banner. Another Flat Track racer linked to the Harley name and the XR750 is Chris Carr, a seven-time Flat Track champion.
Present racing success is focused in the NHRA drag and AMA Flat Track series. Andrew Hines and Eddie Krawiec lead the factory Vance & Hines NHRA squad. Krawiec won his first NHRA title in 2009, while factory rider and defending champion Kenny Coolbeth continues to be the rider to beat in the AMA Flat Track series.
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