[Constitution of the United States of America:  Analysis, and Interpretation - 1992 Edition ]
[Amendments to the Constitution]
[Second Amendment - Bearing Arms]
[From the U.S. Government Printing Office, www.gpo.gov]

[[Page 1193]]

                              BEARING ARMS


                            SECOND AMENDMENT

  A well regulated Militia being necessary to the security of a free 
State, the right of the people to keep and bear Arms shall not be 

        In spite of extensive recent discussion and much legislative 
action with respect to regulation of the purchase, possession, and 
transportation of firearms, as well as proposals to substantially 
curtail ownership of firearms, there is no definitive resolution by the 
courts of just what right the Second Amendment protects. The opposing 
theories, perhaps oversimplified, are an ``individual rights'' thesis 
whereby individuals are protected in ownership, possession, and 
transportation, and a ``states' rights'' thesis whereby it is said the 
purpose of the clause is to protect the States in their authority to 
maintain formal, organized militia units.\1\ Whatever the Amendment may 
mean, it is a bar only to federal action, not extending to state\2\ or 
private\3\ restraints. The Supreme Court has given effect to the 
dependent clause of the Amendment in the only case in which it has 
tested a congressional enactment against the constitutional prohibition, 
seeming to affirm individual protection but only in the context of the 
maintenance of a militia or other such public force.

        \1\A sampling of the diverse literature in which the same 
historical, linguistic, and case law background is the basis for 
strikingly different conclusions is: Staff of Subcom. on the 
Constitution, Senate Committee on the Judiciary, 97th Congress, 2d 
Sess., The Right to Keep and Bear Arms (Comm. Print 1982); Don B. Kates, 
Handgun Prohibition and the Original Meaning of the Second Amendment 
(1984); Gun Control and the Constitution: Sources and Explorations on 
the Second Amendment (Robert J. Cottrol, ed. 1993); Stephen P. Halbrook, 
That Every Man Be Armed: The Evolution of a Constitutional Right (1984); 
Symposium, Gun Control, 49 Law & Contemp. Probs. 1 (1986); Sanford 
Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989).
        \2\Presser v. Illinois, 116 U.S. 252, 265 (1886). See also 
Miller v. Texas, 153 U.S. 535 (1894); Robertson v. Baldwin, 165 U.S. 
275, 281-282 (1897). The non-application of the Second Amendment to the 
States is good law today. Quilici v. Village of Morton Grove, 695 F. 2d 
261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).
        \3\United States v. Cruikshank, 92 U.S. 542 (1875).

        In United States v. Miller,\4\ the Court sustained a statute 
requiring registration under the National Firearms Act of sawed-off

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shotguns. After reciting the original provisions of the Constitution 
dealing with the militia, the Court observed that ``[w]ith obvious 
purpose to assure the continuation and render possible the effectiveness 
of such forces the declaration and guarantee of the Second Amendment 
were made. It must be interpreted with that end in view.''\5\ The 
significance of the militia, the Court continued, was that it was 
composed of ``civilians primarily, soldiers on occasion.'' It was upon 
this force that the States could rely for defense and securing of the 
laws, on a force that ``comprised all males physically capable of acting 
in concert for the common defense,'' who, ``when called for service 
. . . were expected to appear bearing arms supplied by themselves and of 
the kind in common use at the time.''\6\ Therefore, ``[i]n the absence 
of any evidence tending to show that possession or use of a `shotgun 
having a barrel of less than 18 inches in length' at this time has some 
reasonable relationship to the preservation or efficiency of a well-
regulated militia, we cannot say that the Second Amendment guarantees 
the right to keep and bear such an instrument. Certainly it is not 
within judicial notice that this weapon is any part of the ordinary 
military equipment or that its use could contribute to the common 

        \4\307 U.S. 174 (1939). The defendants had been released on the 
basis of the trial court determination that prosecution would violate 
the Second Amendment and no briefs or other appearances were filed on 
their behalf; the Court acted on the basis of the Government's 
        \5\Id. at 178.
        \6\Id. at 179.
        \7\Id. at 178. In Cases v. United States, 131 F. 2d 916, 922 
(1st Cir. 1942), cert. denied, 319 U.S. 770 (1943), the court, upholding 
a similar provision of the Federal Firearms Act, said: ``Apparently, 
then, under the Second Amendment, the federal government can limit the 
keeping and bearing of arms by a single individual as well as by a group 
of individuals, but it cannot prohibit the possession or use of any 
weapon which has any reasonable relationship to the preservation or 
efficiency of a well-regulated militia.'' See Lewis v. United States, 
445 U.S. 55, 65 n.8 (1980) (dictum: Miller holds that the ``Second 
Amendment guarantees no right to keep and bear a firearm that does not 
have `some reasonable relationship to the preservation or efficiency of 
a well regulated militia''').

        Since this decision, Congress has placed greater limitations on 
the receipt, possession, and transportation of firearms,\8\ and 
proposals for national registration or prohibition of firearms 
altogether have been made.\9\ At what point regulation or prohibition of 
what classes of firearms would conflict with the Amendment, if at all, 
the Miller case does little more than cast a faint degree of 
illumination toward an answer.

        \8\Enacted measures include the Gun Control Act of 1968. 82 
Stat. 226, 18 U.S.C. Sec. Sec. 921-928. The Supreme Court's dealings 
with these laws have all arisen in the context of prosecutions of 
persons purchasing or obtaining firearms in violation of a provisions 
against such conduct by convicted felons. Lewis v. United States, 445 
U.S. 55 (1980); Barrett v. United States, 423 U.S. 212 (1976); 
Scarborough v. United States, 431 U.S. 563 (1977); United States v. 
Bass, 404 U.S. 336 (1971).
        \9\E.g., National Commission on Reform of Federal Criminal Laws, 
Working Papers 1031-1058 (1970), and Final Report 246-247 (1971).