University of Detroit Mercy Law Review
77 (1999): 1.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
PRIVATE ARMS AS THE PALLADIUM OF LIBERTY: THE MEANING OF THE SECOND AMENDMENT
Ronald S. Resnick *
Copyright © 1999 University of Detroit Mercy School of Law & Ronald S. Resnick
Recent tragedies, such as the murders at high schools in which firearms were the implements of destruction,  have spotlighted [Page 2] intense controversies about the meaning of the Second Amendment to the Constitution of the United States of America (the "Second Amendment"). The Second Amendment provides: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."  This article seeks to lead the reader along a path of discovery to the conclusions (i) that the Second Amendment guarantees individuals the right to keep and bear arms, (ii) that the unorganized citizen militia enjoys a strong historical and constitutional foundation, and (iii) that the Framers intended the Second Amendment to be the ultimate guarantor of liberty in America.
The text of the Second Amendment is simpler than many of the other provisions of the Bill of Rights. It is about concepts that are tangible----" people" and "Arms." There is nothing complicated about the phrase "the right of the people" or about the monosyllabic words in the phrase "to keep and bear Arms." There is nothing unclear about the phrase "shall not be infringed." "Shall not" is a mandatory, not a permissive, construction. The text of the Second Amendment does not contain complex phrases or complex concepts, such as "due process" or "equal protection," which are not susceptible of plain meaning.
II. TWO CLAUSES
Two distinct clauses constitute the Second Amendment. The first clause expresses a view about the importance of a militia to the freedom of a state, and does not qualify as a sentence. The second clause expresses a completed commandment and qualifies, on its [Page 3] own, as a meaningful sentence. The Second Amendment is unusual among the first ten Amendments because the Second Amendment's first clause functions as a preamble  which justifies the independent and operative second clause. However, it is not uncommon for state constitutional provisions to contain justification clauses. 
Collective right theorists believe that the Second Amendment guarantees only a right of states to maintain national guards or some other state sponsored militia and not a right of individuals to keep and bear their private arms (other than, perhaps, as part of a state militia).  The same theorists also argue that the first clause of the Second Amendment modifies and qualifies the second clause by placing a limitation on the people's right to bear arms.
Analyses of the grammatical structure of the text of the Second Amendment prove this theory to be incorrect. The transcripts of two conversations with recognized grammarians follow:
I just had a conversation with Mr. A.C. Brocki, Editorial Coordinator for the Office of Instruction of the Los Angeles Unified School District. Mr. Brocki taught Advanced Placement English for several years at Van Nuys High School, as well as having been a senior editor for Houghton Mifflin. I was referred to Mr. Brocki by Sherryl Broyles of [Page 4] the Office of Instruction of the L.A. Unified School District, who described Mr. Brocki as the foremost expert in grammar in the Los Angeles Unified School District---- the person she and others go to when they need a definitive answer on English grammar.
I gave Mr. Brocki my name, told him Sherryl Broyles referred me, then asked him to parse the following sentence: "A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed." Mr. Brocki informed me that the sentence was over punctuated, but that the meaning could be extracted anyway.
"A well-schooled electorate" is a nominative absolute. "being necessary to the security of a free State" is a participial phrase modifying "electorate." The subject (a compound subject) of the sentence is "the right of the people." "shall not be infringed" is a verb phrase, with "not" as an adverb modifying the verb phrase "shall be infringed." "to keep and read books" is an infinitive phrase modifying "right."
I then asked him if he could rephrase the sentence to make it clearer. Mr. Brocki said, "Because a well-schooled electorate is necessary to the security of a free state, the right of the people to keep and read books shall not be infringed."
I asked: "Can the sentence be interpreted to restrict the right to keep and read books to a well-schooled electorate--say, registered voters with a high- school diploma?" He said, "No."
I then identified my purpose in calling him, and read him the Second Amendment in full: "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." He said he thought the original sentence had sounded familiar, but that he hadn't recognized it.
I asked, "Is the structure and the meaning of this sentence the same as the sentence I first quoted you?" He said, "yes." I asked him to rephrase this sentence to make it clearer. He transformed it the same way as the first sentence: "Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." [Page 5]
I asked him whether this sentence could be interpreted to restrict the right to keep and bear arms to "a well-regulated militia." He said "no." According to Mr. Brocki, the sentence means that the people are the militia, and that the people have the right which is mentioned.
I asked him again to make sure:
Schulman: "Can the sentence be interpreted to mean that the right can be restricted to a well regulated militia?"
Brocki: "No, I can't see that."
Schulman: "Could another, professional in English grammar or linguistics interpret the sentence to mean otherwise?"
Brocki: "I can't see any grounds for another interpretation." 
* * *
. . . But who would you call if you wanted the top expert on American usage, to tell you the meaning of the Second Amendment to the United States Constitution? That was the question I asked Mr. A.C. Brocki, Editorial Coordinator of the Los Angeles Unified School District and formerly senior editor at Houghton Mifflin Publishers--who himself had been recommended to me as the foremost expert on English usage in the Los Angeles school system. Mr. Brocki told me to get in touch with Roy Copperud . . . . [Copperud is] on the usage panel of the American Heritage Dictionary, and Merriam Webster's Usage Dictionary frequently cites him as an expert. Copperud's fifth book on usage, American Usage and Style: The Consensus, has been in continuous print from Van Nostrand Reinhold since 1981. . . .
After a brief telephone call to Professor Copperud in which I introduced myself but did not give him any indication of why I was interested, I sent the following letter:
"July 26, 1991
Dear Professor Copperud:
I am writing you to ask you for your professional opinion as an expert in English usage, to analyze the [Page 6] text of the Second Amendment to the United States Constitution, and extract the intent from the text.
The text of the Second Amendment is, "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."
The debate over this amendment has been whether the first part of the sentence, "A well-regulated Militia, being necessary to the security of a free State," is a restrictive clause or a subordinate clause, with respect to the independent clause containing the subject of the sentence, "the right of the people to keep and bear Arms, shall not be infringed.
I would request that your analysis of this sentence not take into consideration issues of political impact or public policy, but be restricted entirely to a linguistic analysis of its meaning and intent. Further, since your professional analysis will likely become part of litigation regarding the consequences of the Second Amendment, I ask that whatever analysis you make be a professional opinion that you would be willing to stand behind with your reputation, and even be willing to testify under oath to support, if necessary."
My letter framed several questions about the text of the Second Amendment, then concluded:
"I realize that I am asking you to take on a major responsibility and task with this letter. I am doing so because, as a citizen, I believe it is vitally important to extract the actual meaning of the Second Amendment. While I ask that your analysis not be affected by the political importance of its results, I ask that you do this because of that importance.
J. Neil Schulman"
After several more letters and phone calls, in which we discussed terms for his doing such an analysis, but in which we never discussed either of our opinions regarding the Second Amendment, gun control, or any other political subject, Professor Copperud sent me the following analysis (into which I've inserted my questions for the sake of clarity): [Page 7]
Copperud: The words "A well-regulated militia, being necessary to the security of a free state," contrary to the interpretation cited in your letter of July 26, 1991, constitute a present participle, rather than a clause. It is used as an adjective, modifying "militia," which is followed by the main clause of the sentence (subject "the right," verb "shall"). The right to keep and bear arms is asserted as essential for maintaining a militia.
In reply to your numbered questions:
Schulman: (1) Can the sentence be interpreted to grant the right to keep and bear arms solely to "a well-regulated militia" ?
Copperud: (1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people.
Schulman: (2) Is "the right of the people to keep and bear arms" granted by the words of the Second Amendment, or does the Second Amendment assume a preexisting right of the people to keep and bear arms, and merely state that such right "shall not be infringed" ?
Copperud: (2) The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia.
Schulman: (3) Is the right of the people to keep and bear arms conditioned upon whether or not a well-regulated militia is, in fact, necessary to the security of a free State, and if that condition is not existing, is the statement "the right of the people to keep and bear Arms, shall not be infringed" null and void?
Copperud: (3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence. [Page 8]
Schulman: (4) Does the clause "A well-regulated Militia, being necessary to the security of a free State," grant a right to the government to place conditions on the "right of the people to keep and bear arms," or is such right deemed unconditional by the meaning of the entire sentence?
Copperud: (4) The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia.
Schulman: (5) Which of the following does the phrase "well-regulated militia" mean: "well-equipped," "well-organized," "well-drilled," "well- educated," or "subject to regulations of a superior authority" ?
Copperud: (5) The phrase means "subject to regulations of a superior authority"; this accords with the desire of the writers for civilian control over the military.
Schulman: If at all possible, I would ask you to take into account the changed meanings of words, or usage, since that sentence was written two- hundred years ago, but not to take into account historical interpretations of the intents of the authors, unless those issues can be clearly separated.
Copperud: To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: "Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged."
Schulman: As a "scientific control" on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence,
"A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed."
My questions for the usage analysis of this sentence would be:
(1) Is the grammatical structure and usage of this sentence, and the way the words modify each other, identical to the Second Amendment's sentence?; and [Page 9]
(2) Could this sentence be interpreted to restrict "the right of the people to keep and read Books" only to "a well-educated electorate"--for example, registered voters with a high-school diploma?
Copperud: (1) Your "scientific control" sentence precisely parallels the amendment in grammatical structure. (2) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation.
Professor Copperud had only one additional comment, which he placed in his cover letter: "With well-known human curiosity, I made some speculative efforts to decide how the material might be used, but was unable to reach any conclusion."
. . .
Roy Copperud told me afterwards that he, personally, favored gun control, but his analysis of the Second Amendment made clear that its protections of the right of the people to keep and bear arms were unaffected by its reference to militia. 
The view that the first clause limits the second clause such that the Second Amendment's guarantee does not apply to individuals is inconsistent with the canons of statutory construction used in the late 1700s and 1800s. 
If the Second Amendment consisted solely of its independent clause, "the right of the people to keep and bear Arms, shall not be infringed," then there would be no question whether the right is [Page 10] individual in nature. If the Second Amendment guaranteed only a collective right of states to form militias, and not a personal right of individuals to keep and bear arms, the Second Amendment would provide: "A well-regulated Militia, being necessary to the security of a free State, the right of the States to keep and bear Arms, shall not be infringed."  Alternatively, the Framers might have written: "A well-regulated militia, being necessary to the security of a free state, the power of the States to form and control militias, shall not be infringed."  The Bill of Rights, however, provides none of these collective right formulations. 
Since the Framers used both the word "State" and the word "people" in the Second Amendment it appears they knew those words mean different things. In not only the Second Amendment but throughout the Constitution, the Framers used the word "state" when they meant state and "people" when they meant people.
Perhaps the first clause exists simply to remind elected officials and citizens of the importance of armed citizens to the preservation of liberty.  Perhaps the first clause is intended, as the Supreme Court concluded in United States v. Miller,  to provide guidance as to [Page 11] the types of "Arms" which are protected by the Second Amendment by identifying the manner in which they are likely to be deployed. 
Perhaps, as is most likely, the first clause was written to explain the purpose  behind the independent clause and to justify the reason why Congress may not infringe the right of the people to keep and bear arms: to maintain a well-regulated militia by cultivating an armed citizenry.  The plain language of the Second Amendment shows that the function of the first clause was not to qualify the right guaranteed in the second clause, but instead to explain why that right must be protected. The right exists independent of the existence of the militia. If this right were not protected, the existence of the militia and, consequently, the security of the state, would be jeopardized. Whatever the reason for the first clause, there is no textual, logical, grammatical, historical  or judicial basis for concluding that the first clause limits the second clause such that the Second Amendment's guarantee does not apply to individuals owning private arms.  [Page 12]
III. "THE PEOPLE" MEANS INDIVIDUALS
The phrase "the people," ubiquitous in the Constitution, appears, among other places, in the Preamble,  the First Amendment,  the Second Amendment and the Fourth Amendment.  No one suggests that "the people" in the Preamble, the First Amendment, or the Fourth Amendment means anything other than individuals. There is no evidence, from any method of constitutional construction, that "the people" in the Second Amendment means something different from "the people" in the Preamble, the First Amendment, or the Fourth Amendment. Yet collective right theorists argue that "the people" in the Second Amendment means something different than it does in the Preamble and in the amendment immediately preceding, and the second amendment immediately following.
Why did not the founders use the word "individuals" instead of "people" ? It does not matter why, for whatever reason the Founders used the word "people" instead of individuals, they used "people" repeatedly. "People," everyone agrees, means individuals in the Preamble, the First Amendment, and the Fourth Amendment. Does anyone argue that freedom of speech or assembly does not apply to individuals? Identically, the right to keep and bear arms belongs to individuals.  [Page 13]
Nothing in the first clause of the Second Amendment undermines, contradicts, or limits the view that "people" in the second clause of the Second Amendment means individuals. It is nonsensical to suppose that the "well-regulated Militia" the Second Amendment contemplates is made up of people who have no right to keep and bear arms.
James Madison, who drafted the text of the provisions that became the Bill of Rights, including the text of the provision that became the Second Amendment, wrote in his notes that "They [the proposed amendments] relate first to private rights."  Madison's original plan for the location of the amendments constituting the Bill of Rights reflected his belief and intent that the Second Amendment guarantees a personal right. 
A reader of the Federalist Papers  likely would conclude that no proposed amendment is afforded less attention in the Federalist Papers than the Second Amendment. There was no dispute among [Page 14] the Framers or the opponents of federalism about the meaning of the Second Amendment or about the persons or instruments to which it applies. Federalists and anti-federalists alike were in agreement on the meaning of the Second Amendment and the importance of an armed citizenry.  In the later part of the Eighteenth Century in America, it would have been thought nonsensical to suggest that the Second Amendment means anything other than that the right of individuals (whether or not enrolled in a militia) to own personal firearms is guaranteed.  [Page 15]
In Dred Scott v. Sandford the Supreme Court decided whether persons of African descent could be citizens.  Chief Justice Roger Taney, who wrote the opinion, presented the question as follows:
The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? 
Taney was from Maryland, where slavery was legal and widely practiced. In 1857, four years before the commencement of the Civil War, Southerners vehemently opposed freeing the slaves and bestowing upon them the rights of citizens. Taney discussed the meaning of the words "people" and "citizens":
The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty. 
Taney concluded that persons of African descent could not be citizens. The opposite conclusion would have the following consequences:
It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. 
If the Second Amendment guaranteed only the collective right of states to maintain militias then Taney would have had no reason to [Page 16] fear that black citizens "could keep and carry arms wherever they went" since citizenship does not automatically entail service in a militia. Taney was concerned about the rights all blacks would enjoy as citizens.
In discussing the Constitution's constraints upon the federal government, Taney explained:
For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.
Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.
These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. 
Thus, the Court considered the right to keep and bear arms to be commensurate with other rights the Court considered to be of an individual nature, such as freedom of religion, freedom of speech, freedom of the press, peaceable assembly and the right against self-incrimination.
In United States v. Cruikshank,  the Court reviewed Cruikshank's indictment under a federal statute, which prohibited people from preventing or hindering a person's "free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States . . . ."  Cruikshank was accused of, among other things, "an intent to hinder and prevent the exercise by [two citizens of the United States of African descent and persons of color] of the 'right to keep and bear arms for a lawful purpose." '  The Court stated:
The first amendment to the Constitution prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State [Page 17] governments in respect to their own citizens, but to operate upon the National government alone. 
The right there specified [in that count of the indictment] is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States. 
The Cruikshank Court implicitly obliterated the Due Process Clause of the Fourteenth Amendment  by holding that the Second Amendment, like the other amendments in the Bill of Rights, operates only as a restraint upon the federal government. According to Cruikshank, none of the Bill of Rights was applicable to the states. The Supreme Court, however, long ago abandoned such a narrow interpretation of the Bill of Rights.
Note that the Court equated "the people" with "their fellow-citizens."  The Court thus interpreted "the people" in the Second Amendment to mean individuals. If "the people" meant only a collective right of states, the sentence would make no sense because states do not have "fellow-citizens."
In Presser v. Illinois,  Presser led a parade of armed men through the streets of Chicago without a license. The Court upheld Presser's [Page 18] conviction for violating a provision of the Military Code of Illinois, which provided:
It shall not be lawful for any body of men whatever, other than the regular organized volunteer militia of this state, and the troops of the United States, to associate themselves together as a military company or organization, or to drill or parade with arms in any city or town of this state, without the license of the governor thereof . . . . 
Relying upon Cruikshank, the Court held that this provision did not infringe upon the right of the people to keep and bear arms because the Second Amendment is a limitation only upon Congress and the federal government, and not upon the states.  Note, however, that neither the Court in Cruikshank nor the Court in Presser considered in any respect whether the guarantees in the Bill of Rights are incorporated into the Fourteenth Amendment so as to limit state action. 
The Court also stated:
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of [Page 19] this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. 
In Presser, the Supreme Court declared that "all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states" and that "states cannot . . . prohibit the people from keeping and bearing arms."  The Court thus drew a clear distinction between "the people" and "the states." If the Presser Court believed the Second Amendment guaranteed only a collective right of states to maintain militias, then this distinction would have been meaningless. The Court also would not have addressed Presser's Second Amendment claim on its merits.  If the Second Amendment guaranteed only a collective right of states, an individual citizen like Presser would not have had standing to assert a Second Amendment claim.
In Moore v. East Cleveland  and Planned Parenthood v. Casey,  the Supreme Court quoted approvingly from a dissenting opinion written by Justice John Harlan in an earlier case.  Justice Harlan wrote:
[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and [Page 20] so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints. 
Thus, in 1977 and as recently as 1992, the Supreme Court treated the "right to keep and bear arms" as part of a list of rights guaranteed to individuals--- a list which also included the freedom of speech, press, and religion. 
In United States v. Verdugo-Urquidez , a Mexican citizen and resident believed to be a leader of an organization that smuggles narcotics into the United States was apprehended by Mexican police and transported to the United States where he was arrested.  Following his arrest, Drug Enforcement Agency agents, working with Mexican officials, searched his Mexican residences and seized certain documents.  The District Court granted the defendant's motion to suppress the evidence, concluding that the Fourth Amendment--which protects "the people" against unreasonable searches and seizures--applied to the searches, and that the agents had failed to justify searching the premises without a warrant. The court of appeals affirmed. The Supreme Court had to decide whether illegal aliens in the United States have Fourth Amendment rights.  The Court held that the Fourth Amendment does not apply to the search and seizure by United States agents of property owned by a nonresident alien and located in a foreign country. 
In its opinion, the Court discussed the meaning of the phrase "the people" and made clear that all law-abiding Americans are protected by the Second Amendment:
The Fourth Amendment provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
This text, in contrast with the Fifth and Sixth Amendments, extends its reach only to "the people." Contrary to the suggestion of amici curiae, the Framers did not use this [Page 21] phrase "simply to avoid [an] awkward rhetorical redundancy" . . ." the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the People of the United States." 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. 
Thus, the Supreme Court concluded that the phrase "the people" in the First and Fourth Amendments are the same "people" protected by the Second Amendment, and that "the people" has the same meaning in the Preamble to the Constitution and in the First, Second, Fourth, Fifth, Ninth and Tenth Amendments. 
In a dissenting opinion, Justice William Brennan, joined by Justice Thurgood Marshall, argued even more broadly that the phrase "the people" is better understood as a rhetorical counterpoint to "the government":
In its effort to establish that respondent does not have sufficient connection to the United States to be considered one of "the people" protected by the Fourth Amendment, the Court relies on the text of the Amendment, historical evidence, and cases refusing to apply certain constitutional provisions outside the United States. None of these, however, justifies the majority's cramped interpretation of the Fourth Amendment's applicability.
The majority looks to various constitutional provisions and suggests that "'the people' seems to have been a term of art." But the majority admits that its "textual exegesis is by no means conclusive." One Member of the majority even states that he "cannot place any weight on the reference to 'the people' in the Fourth Amendment as a source of restricting its protections." The majority suggests a restrictive interpretation of those with "sufficient connection" to this country to be considered among "the [Page 22] people," but the term "the people" is better understood as a rhetorical counterpoint to "the Government," such that rights that were reserved to "the people" were to protect all those subject to "the Government." "The people" are "the governed." 
Justice Brennan continued:
The drafting history of the Fourth Amendment also does not support the majority's interpretation of "the people." First, the Drafters chose not to limit the right against unreasonable searches and seizures in more specific ways. They could have limited the right to "citizens," "freemen," "residents," or "the American people." The conventions called to ratify the Constitution in New York and Virginia, for example, each recommended an amendment stating, "That every freeman has a right to be secure from all unreasonable searches and seizures . . . ." But the Drafters of the Fourth Amendment rejected this limitation and instead provided broadly for "[t]he right of the people to be secure in their persons, houses, papers, and effects." Second, historical materials contain no evidence that the Drafters intended to limit the availability of the right expressed in the Fourth Amendment. The Amendment was introduced on the floor of Congress, considered by Committee, debated by the House of Representatives and the Senate, and submitted to the 13 States for approval. Throughout that entire process, no speaker or commentator, pro or con, referred to the term "the people" as a limitation. 
Verdugo-Urquidez demonstrates that the Supreme Court in 1990 clearly stated that "the people" in the Second Amendment means individuals, as it does in the rest of the Bill of Rights.
In Planned Parenthood v. Casey, the Supreme Court reviewed a state law imposing various information, notification, and consent requirements on women contemplating abortion. The Court discussed the contours of the Due Process Clause of the Fourteenth Amendment:
Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process [Page 23] Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life, liberty, or property, without due process of law."
. . . .
Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States.
. . . .
The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States. It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution. But of course this Court has never accepted that view.
. . . .
Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. As the second Justice Harlan recognized:
The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. 
While not discussing the Second Amendment specifically, the Casey Court declared: "Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from [Page 24] invasion by the States."  The Court also stated that the right protected by the Second Amendment, one of "the first eight amendments to the Constitution," is one of "those rights . . . guaranteed to the individual." 
The Casey Court answered the question Cruikshank and Presser Courts left unanswered by holding that the Fourteenth Amendment incorporates "most of the Bill of Rights against the states."  Since the Supreme Court began using the Fourteenth Amendment to incorporate guarantees in the Bill of Rights to the states, it never has had the occasion to address explicitly whether the Fourteenth Amendment incorporates the Second Amendment to the states. The Court has made clear, however, that the Second Amendment guarantees a right of the individual to keep and bear arms. 
Certain provisions of the Brady Handgun Violence Prevention Act required the Attorney General to establish a national system for instantly checking prospective handgun purchasers' backgrounds and commanded the "chief law enforcement officer" of each local jurisdiction to conduct such checks and perform related tasks on an interim basis until the national system became operative. In Printz v. United States,  two chief law enforcement officers challenged the constitutionality of the interim provisions. The Supreme Court struck down the Brady Act's interim provision commanding chief law enforcement officers to conduct background checks and to perform certain related tasks.  [Page 25]
In a concurring opinion, Justice Clarence Thomas wrote:
The Constitution, in addition to delegating certain enumerated powers to Congress, places whole areas outside the reach of Congress' regulatory authority. The First Amendment, for example, is fittingly celebrated for preventing Congress from "prohibiting the free exercise" of religion or "abridging the freedom of speech." The Second Amendment similarly appears to contain an express limitation on the government's authority. That Amendment provides: "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. If, however, the Second Amendment is read to confer a personal right to "keep and bear arms," a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections. As the parties did not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms "has justly been considered, as the palladium of the liberties of a republic." In the meantime, I join the Court's opinion striking down the challenged provisions of the Brady Act as inconsistent with the Tenth Amendment. 
In a footnote to his concurring opinion, Justice Thomas noted:
Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right. [citations omitted] Other scholars, however, argue that the Second Amendment does not secure a personal right to keep or to bear arms. [citations omitted] Although somewhat overlooked in our jurisprudence, the Amendment has certainly engendered considerable academic, as well as public, debate. 
Justice Thomas appears to be looking forward to a future opportunity to opine on the meaning of the Second Amendment. Apparently he could not resist leaving in Printz a clue as to his views. [Page 26]
In Spencer v. Kemna,  a convict petitioned for a writ of habeas corpus seeking to invalidate an order revoking his parole. The Court found the petition moot since the petitioner completed the entire term of imprisonment underlying his parole revocation. In a dissenting opinion Justice John Stevens wrote:
An official determination that a person has committed a crime may cause two different kinds of injury. It may result in tangible harms such as imprisonment, loss of the right to vote or to bear arms, and the risk of greater punishment if another crime is committed. It may also severely injure the person's reputation and good name. 
Although Spencer is not a Second Amendment case it is interesting that even the liberal Justice Stevens conceived of the right to bear arms as a guarantee of an individual nature; one that may be enjoyed by an individual and one of which an individual who has been convicted of a crime may be deprived. Justice Stevens also equated the right to bear arms with the right to vote, implying that each is a right of individual persons. 
The foregoing set of cases constitutes the universe of Supreme Court decisions relevant to the meaning of "the people" in the Second Amendment. These cases demonstrate there is no basis in Supreme Court decisions for believing that "the people" in the Second Amendment do not mean individuals.
IV. TO KEEP AND BEAR
The 5th Edition of Black's Law Dictionary defines "keep" firstly as "[t]o continue" and secondly as "[t]o have or retain in one's power or possession."  The American Heritage Dictionary defines "keep" firstly as "to retain possession of." 
Thomas Jefferson  drafted and James Madison proposed in the Virginia Legislature a bill that would have fined persons who hunted deer other than during deer season.  A hunter so fined would be in violation of the law if, within a year of being fined, "[the hunter] shall bear a gun out of his inclosed ground, unless whilst performing [Page 27] military duty." The violator would have had to go back to court for "every such bearing of a gun." 
To Thomas Jefferson and James Madison, to "bear a gun" meant simply to carry it about in one's hands or on one's person. "Bearing arms" was not associated only with militia duty, for the bill addresses the "bearing of a gun" by any person when not "performing military duty." 
Black's Law Dictionary defines "bear" firstly as "[t]o support, sustain, or carry."  The American Heritage Dictionary defines "bear" firstly as "[t]o support; hold up" and secondly as "[t]o carry on one's person; convey." 
The 5th Edition of Black's Law Dictionary defines "[c]arry arms or weapons" as "[t]o wear, bear or carry them upon the person or in the clothing or in a pocket, for the purpose of use, or for the purpose of being armed and ready for offensive or defensive action in case of a conflict with another person." 
Four justices of the Supreme Court agree with the common sense understanding of what it means to "bear arms." In Muscarello v. United States  the Court recently considered whether a person who transports a firearm in his vehicle "carries a firearm" under a certain federal statute. 
In a divided decision, the Court held that a person who transports a firearm in his vehicle "carries a firearm." Justice Ruth Ginsburg, joined by Chief Justice William Rehnquist and Justices Antonin Scalia and David Souter, disagreed, and wrote in a dissenting opinion:
It is uncontested that §924(c)(1) applies when the defendant bears a firearm, i.e., carries the weapon on or about his person "for the purpose of being armed and ready for offensive or defensive action in case of a conflict."
. . . .
Surely a most familiar meaning is, as the Constitution's Second Amendment ("keep and bear Arms") (emphasis added) and Black's Law Dictionary . . . indicate: "wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for [Page 28] offensive or defensive action in a case of conflict with another person." 
V. WHICH ARMS?
Which "Arms" does the Second Amendment protect? To the Framers, the term "Arms" meant weapons that are in common use for both personal and military defense. In United States v. Miller,  Miller and another person were charged with transporting an unregistered double barrel 12-gauge shotgun with a barrel less than 18 inches in length in violation of the National Firearms Act of 1934, which required the firearm to be registered and required the defendants to possess a stamp-affixed written order for the firearm.  The defendants argued that the National Firearms Act "offends the inhibition of the Second Amendment to the Constitution . . . ." 
The Miller Court decided that whether the Second Amendment guarantees a person the ability to possess a particular weapon depends upon whether or not there is "any evidence tending to show that possession or use of [such weapon] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia . . . ."  The Court then surveyed various sources and state laws regarding the ownership of certain weapons to determine if there was any evidence that the type of weapon in question "at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia." 
The Court stated:
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 [Page 29] 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 defense.
The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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.' With 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 and applied with that end in view.
The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia - civilians primarily, soldiers on occasion.
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.
. . . .
'The American Colonies In The 17th Century', Osgood, Vol. 1, ch. XIII, affirms in reference to the early system of defense in New England-
'In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in [Page 30] the work of defence.' 'The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former.' 'A year later  it was ordered that any single man who had not furnished himself with arms might be put out to service, and this became a permanent part of the legislation of the colony [Massachusetts].'
. . . .
The General Court of Massachusetts, January Session 1784, provided for the organization and government of the Militia. It directed that the Train Band should 'contain all able bodied men, from sixteen to forty years of age, and the Alarm List, all other men under sixty years of age . . . .' Also, 'That every non-commissioned officer and private soldier of the said militia not under the control of parents, masters or guardians, and being of sufficient ability therefor in the judgment of the Selectmen of the town in which he shall dwell, shall equip himself, and be constantly provided with a good fire arm, & c.'
By an Act passed April 4, 1786, the New York Legislature directed: 'That every able-bodied Male Person, being a Citizen of this State, or of any of the United States, and residing in this State, (except such Persons as are herein after excepted) and who are of the Age of Sixteen, and under the Age of Forty- five Years, shall, by the Captain or commanding Officer of the Beat in which such Citizens shall reside, within four Months after the passing of this Act, be enrolled in the Company of such Beat. . . . That every Citizen so enrolled and notified, shall, within three Months thereafter, provide himself, at his own Expense, with a good Musket or Firelock, a sufficient Bayonet and Belt, 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 containing a proper Quantity of Powder and Ball, two spare Flints, a Blanket and Knapsack . . . .'
The General Assembly of Virginia, declared: 'The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty.'
It further provided for organization and control of the Militia and directed that 'All free male persons between the ages of eighteen and fifty years,' with certain exceptions, 'shall be inrolled or formed into companies.' 'There shall be a private muster of every company once in two months.' [Page 31]
. . . .
Most if not all of the States have adopted provisions touching the right to keep and bear arms. 
In Printz, Justice Clarence Thomas, in a concurring opinion, stated his understanding of the decision in United States v. Miller:
In Miller, we determined that the Second Amendment did not guarantee a citizen's right to possess a sawed off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment. 
Although the Miller Court may not have construed explicitly the substantive right protected by the Second Amendment, the Court did construe implicitly such right as an individual right. If the Second Amendment guarantees only a collective right of states, and not an individual right of citizens, the Court would have found that Miller had no right to possess any weapon and would not have embarked upon a detailed analysis of whether the Second Amendment guarantees Miller the right to possess his particular shotgun. The Supreme Court would have had no reason to engage in an analysis of whether Miller was guaranteed the possession of this particular weapon if it had not first concluded that Miller had an individual right to possess some weapon.
The Miller Court also made clear that the weapons the Second Amendment protects are those that "at this time [have] some reasonable relationship to the preservation or efficiency of a well regulated militia."  This means the Court will evaluate whether the weapons of today are useful to the militia of today, regardless of the fact that such weapons did not exist at the time of the ratification of the Constitution. [Page 32]
What does "well-regulated" as used in the term a "well-regulated Militia" mean? By "well-regulated" the Founders apparently meant "well-disciplined" or "well-functioning." In Federalist Number 29, Alexander Hamilton wrote of "disciplining all the militia" to achieve a "tolerable expertness in military movements" and "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."  The Oxford English Dictionary defines "regulated" with respect to troops as "Properly disciplined." 
VII. MILITIA - ORGANIZED AND UNORGANIZED
By "Militia" the Founders did not mean federal armies. The Constitution provides that Congress shall raise and support "Armies" and provides, separately, for Congress to "provide for calling forth the Militia" and to be responsible for "organizing, arming and disciplining, the Militia." 
Federalist Number 29 makes clear that the militia was to be composed of all able-bodied, ordinary citizens and leaves no doubt that Hamilton intended and expected individual persons to own firearms. Hamilton's conception of the population of the militia was broad. He was concerned that regular militia training would drain so many people from their ordinary activities that the economy might be jeopardized:
The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, nor even a month 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 [Page 33] to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount, which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. 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. 
Hamilton suggested in Federalist Number 29 that while the "scheme of disciplining the whole nation must be abandoned as mischievous or impracticable . . . a select corps [should be formed]."  The assumption that this "select corps" is, today, each state's national guard, does not result in the conclusion that only the national guard constitutes the militia. Hamilton conceived of the "select corps" not as a substitute for the militia or as the entire militia but merely as an especially fit and trained subset of the militia. He described the militia as "the great body of the . . . citizens" and as "the people at large" and as "the whole nation" from which the "select corps" is merely drawn. 
Hamilton's views were shared widely, by both proponents and opponents of federalism. George Mason asked rhetorically: "Who are the Militia? They consist now of the whole people, except a few [Page 34] public officers."  Similarly, the Federal Farmer  referred to a "militia, when properly formed, [as] in fact the people themselves." 
The Militia Act of 1792 provides in pertinent part:
Section 1. Be it enacted . . . . That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia . . . . That 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 . . . .
Section 2. [Exempting the Vice President, federal judicial and executive officers, congressmen and congressional officers, custom-house officers and clerks, post-officers and postal stage drivers, ferrymen on post roads, export inspectors, pilots, merchant mariners, and people exempted under the laws of their states.] 
Militia does not mean solely today's state national guards. Under the current United States Code, the militia of the United States consists of all able-bodied males between 17 and 45 years old. Title 10 provides:
Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. [Page 35]
(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. 
Title 10 affirms the existence and legitimacy of the citizen militia. Title 10 explicitly differentiates between the "organized militia" which is the National Guard and the Naval Militia and the "unorganized militia" which includes all able-bodied males between 17 and 45 years old who are not in the National Guard or the Naval Militia. 
The Supreme Court in United States v. Miller conducted an exhaustive review of the legislative history of the meaning of the term "militia." The Court declared:
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. 
If the Second Amendment does not guarantee the right of individuals to keep and bear arms, how are such persons supposed to "appear bearing arms supplied by themselves" which arms are to be "of the kind in common use at the time" ?  The Miller Court affirmed that the "militia" refers to the entire armed citizenry.  [Page 37]
In Perpich v. Department of Defense  the Supreme Court was asked to decide whether the Militia Clauses of Article I, Section 8, of the Constitution, which authorize Congress to provide for calling forth the militia to execute federal law, suppress insurrections and repel invasions, and for organizing, arming, disciplining and governing such part of the militia as may be employed in the federal service, allow the President to order members of the National Guard to train outside the United States without the consent of a state governor or the declaration of a national emergency. The Court, in a unanimous decision, began with a history of the Militia clauses:
Two conflicting themes, developed at the Constitutional Convention and repeated in debates over military policy during the next century, led to a compromise in the text of the Constitution and in later statutory enactments. On the one hand, there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States, while, on the other hand, there was a recognition of the danger of relying on inadequately trained soldiers as the primary means of providing for the common defense. Thus, Congress was authorized both to raise and support a national Army and also to organize "the Militia."
In the early years of the Republic, Congress did neither. In 1792, it did pass a statute that purported to establish "a Uniform Militia throughout the United States," but its detailed command that every able-bodied male citizen between the ages of 18 and 45 be enrolled therein and equip himself with appropriate weaponry was virtually ignored for more than a century, during which time the militia proved to be a decidedly unreliable fighting force. The statute was finally repealed in 1901. It was in that year that President Theodore Roosevelt declared: "Our militia law is obsolete and worthless." The process of transforming "the National Guard of the several States" into an effective fighting force then began.
The Dick Act divided the class of able-bodied male citizens between 18 and 45 years of age into an "organized militia" [Page 38] to be known as the National Guard of the several States, and the remainder of which was then described as the "reserve militia," and which later statutes have termed the "unorganized militia." The statute created a table of organization for the National Guard conforming to that of the Regular Army, and provided that federal funds and Regular Army instructors should be used to train its members. It is undisputed that Congress was acting pursuant to the Militia Clauses of the Constitution in passing the Dick Act. Moreover, the legislative history of that Act indicates that Congress contemplated that the services of the organized militia would "be rendered only upon the soil of the United States or of its Territories." In 1908, however, the statute was amended to provide expressly that the Organized Militia should be available for service "either within or without the territory of the United States."
When the Army made plans to invoke that authority by using National Guard units south of the Mexican border, Attorney General Wickersham expressed the opinion that the Militia Clauses precluded such use outside the Nation's borders. In response to that opinion and to the widening conflict in Europe, in 1916 Congress decided to "federalize" the National Guard. In addition to providing for greater federal control and federal funding of the Guard, the statute required every guardsman to take a dual oath - to support the Nation as well as the States and to obey the President as well as the Governor - and authorized the President to draft members of the Guard into federal service. The statute expressly provided that the Army of the United States should include not only "the Regular Army," but also "the National Guard while in the service of the United States," and that when drafted into federal service by the President, members of the Guard so drafted should "from the date of their draft, stand discharged from the militia, and shall from said date be subject to" the rules and regulations governing the Regular Army. 
In 1792 the militia consisted of "every able-bodied male" between the ages of 18 and 45, and each was required to "equip himself with appropriate weaponry."  Today's National Guard came into being through an exercise by Congress of the power to raise armies, not the power to organize the militia. The Court also recognized that the National Guard is part of the armed forces of the [Page 39] United States and that the "Reserve Militia" (also referred to as the "unorganized militia") includes all able-bodied citizens.
The Court continued:
This change in status [i.e., "the dual enlistment system" pursuant to which "the members of the National Guard of Minnesota who are ordered into federal service with the National Guard of the United States lose their status as members of the state militia during their period of active duty" ] is unremarkable in light of the traditional understanding of the militia as a part-time, nonprofessional fighting force. In Dunne v. People, the Illinois Supreme Court expressed its understanding of the term "militia" as follows:
"Lexicographers and others define militia, and so the common understanding is, to be 'a body of armed citizens trained to military duty, who may be called out in certain cases, but may not be kept on service like standing armies, in time of peace.' That is the case as to the active militia of this State. The men comprising it come from the body of the militia, and when not engaged at stated periods in drilling and other exercises, they return to their usual avocations, as is usual with militia, and are subject to call when the public exigencies demand it." 
The Court confirmed that the militia is a "body of armed citizens."  The Court continued:
Moreover, Congress has provided by statute that in addition to its National Guard, a State may provide and maintain at its own expense a defense force that is exempt from being drafted into the Armed Forces of the United States. See 32 U.S.C. 109(c). As long as that provision remains in effect, there is no basis for an argument that the federal statutory scheme deprives Minnesota of any constitutional entitlement to a separate militia of its own. 
The Court confirmed that a state is entitled to a separate militia of its own. The Court continued:
It is true that the state defense forces "may not be called, ordered, or drafted into the armed forces." 32 U.S.C. [Page 40] 109(c). It is nonetheless possible that they are subject to call under 10 U.S.C. 331- 333, which distinguish the "militia" from the "armed forces," and which appear to subject all portions of the "militia" - organized or not - to call if needed for the purposes specified in the Militia Clauses. 
The Court recognized the existence of "all portions of the 'militia' - organized or not . . . ."  Perpich demonstrates that it was clear to the Supreme Court in 1990 that "militia" means the body of armed citizens at large, organized and unorganized. Thus the unorganized citizen militia enjoys a strong historical and constitutional foundation. 
VIII. THE FRAMERS CONCEIVED OF THE SECOND AMENDMENT AS THE ULTIMATE GUARANTOR OF LIBERTY
The Framers of the Constitution believed that firearms are vital to liberty. Alexander Hamilton in Federalist Number 28 wrote: "If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defence which is paramount to all positive forms of government."  Thomas Jefferson, the third President of the United States, wrote: "And what country can preserve its liberties, if its rulers are not warned from time to time that this people preserve the spirit of resistance? Let them take arms . . . ." 
The Framers viewed the disarmament of citizens by the government as a grave threat to liberty. Patrick Henry declared:
Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, [Page 41] nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.  . . . The great object is that every man be armed . . . . Everyone who is able may have a gun. 
George Mason stated: "[T]o disarm the people; that [is] the best and most effective way to enslave them . . . ."  James Madison wrote: "A Government resting on a minority, is an aristocracy not a Republic, and could not be safe with a numerical [and] physical force against it, without a standing Army, and enslaved press, and a disarmed populace."  Constitutional commentators during the 1700s and 1800s agreed with the Framers that the Second Amendment exists to provide the citizens of America with the ability to overthrow an irredeemably tyrannical government which has violated the Constitution.  [Page 42]
IX. THE CONSTITUTION DOES NOT CREATE THE RIGHT TO KEEP AND BEAR ARMS
The Supreme Court has held repeatedly that the Bill of Rights does not create or grant rights, which did not exist prior to the adoption of the Constitution. Such rights do not depend upon the Constitution for their existence. In United States v. Cruikshank, the Supreme Court stated: "[t]he right there specified [in that count of the indictment] is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence." 
In Robertson v. Baldwin the Supreme Court declared:
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, [Page 43] the freedom of speech and of the press (art. 1) 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. 2) is not infringed by laws prohibiting the carrying of concealed weapons . . . . 
Justice Brennan, joined in his dissenting opinion in United States v. Verdugo-Urquidez by Justice Marshall, wrote:
In drafting both the Constitution and the Bill of Rights, the Framers strove to create a form of Government decidedly different from their British heritage. Whereas the British Parliament was unconstrained, the Framers intended to create a Government of limited powers. The colonists considered the British Government dangerously omnipotent. After all, the British declaration of rights in 1688 had been enacted not by the people, but by Parliament. Americans vehemently attacked the notion that rights were matters of "'favor and grace," ' given to the people from the Government.
Thus, the Framers of the Bill of Rights did not purport to "create" rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be pre-existing. The Fourth Amendment, for example, does not create a new right of security against unreasonable searches and seizures. It states that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." The focus of the Fourth Amendment is on what the Government can and cannot do, and how it may act, not on against whom these actions may be taken. Bestowing rights and delineating protected groups would have been inconsistent with the Drafters' fundamental conception of a Bill of Rights as a limitation on the Government's conduct with respect to all whom it seeks to govern. 
Justices Brennan and Marshall agreed with the declarations in Cruikshank and Robertson v. Baldwin  that the Second Amendment does not create the right of people to keep and bear arms but rather guarantees the sanctity of that pre-existing right. [Page 44]
X. THE SECOND AMENDMENT MUST BE RESPECTED
The Supreme Court, in Ullmann v. United States,  admonished students of the Constitution not to elevate a constitutional provision they value above those with which they do not agree. Justice Felix Frankfurter declared: "[a]s no constitutional guarantee enjoys preference, so none should suffer subordination or deletion. . . . To view a particular provision of the Bill of Rights with disfavor inevitably results in a constricted application of it. This is to disrespect the Constitution." 
The Ullmann Court rejected the notion that a Bill of Rights guarantee (in Ullmann the privilege against self-incrimination) may become less important or less worthy of preservation over time or in certain situations:
Time has not shown that protection from the evils against which this safeguard was directed is needless or unwarranted. This constitutional protection must not be interpreted in a hostile or niggardly spirit. Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege. Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States.
. . . .
If it be thought that the privilege is outmoded in the conditions of this modern age, then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion." Nothing new can be put into the Constitution except through the amendatory process. Nothing old can be taken out without the same process. 
In Valley Forge Christian College v. Americans United,  the Supreme Court rejected the suggestion that some freedoms guaranteed by the Bill of Rights are somehow more fundamental than others:
Nor can Schlesinger and Richardson be distinguished on the ground that the Incompatibility and Accounts Clauses are in some way less "fundamental" than the Establishment Clause. Each establishes a norm of conduct which the Federal Government is bound to honor - to no greater or lesser extent than [Page 45] any other inscribed in the Constitution. To the extent the Court of Appeals relied on a view of standing under which the Art. III burdens diminish as the "importance" of the claim on the merits increases, we reject that notion. The requirement of standing "focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated." Flast v. Cohen, supra, at 99. Moreover, we know of no principled basis on which to create a hierarchy of constitutional values or a complementary "sliding scale" of standing which might permit respondents to invoke the judicial power of the United States. 
In Minneapolis Star v. Minnesota Commissioner of Revenue,  the Supreme Court stated: "[b]ut when we do have evidence that a particular law would have offended the Framers, we have not hesitated to invalidate it on that ground alone."  In Minneapolis Star the Supreme Court suggested that if the Framers would have thought a law under review (e.g., a ban on the ownership of rifles useful to persons in a militia) violates the meaning they intended a constitutional provision (e.g., the Second Amendment) to possess (e.g., a guarantee of the right to own arms useful to persons in a militia), then such law should be struck down as unconstitutional.  This 1983 decision affirms the propriety of interpreting the Constitution according to the original intent of the Framers.
Regardless of one's personal opinion about firearms and the private ownership of them, the Supreme Court has made clear that the Second Amendment, like each of the other provisions of the Constitution, must be respected. People may have different political opinions and personally may value one section of the Bill of Rights more than another section,  but the Supreme Court has declared there is "no principled basis" for believing, for example, that the First Amendment is more important, or is more worthy of defense, than the Second Amendment.  [Page 46]
If one wishes to abolish the guarantee provided by the Second Amendment, then one must utilize the amendment procedure prescribed in the Constitution. The amendment procedure is the only method by which the Second Amendment may be repealed or its meaning changed. The Constitution does not countenance the emasculation of one of its provisions through neglect or derision.
XI. RESTRICTIONS ON THE RIGHT TO KEEP AND BEAR ARMS
The Framers' pronouncements and the Supreme Court's decisions prove (i) that the Second Amendment guarantees individuals the right to keep and bear arms, (ii) that the unorganized citizen militia enjoys a strong historical and constitutional foundation, and (iii) that the Framers intended the Second Amendment to be the ultimate guarantor of liberty in America. Yet legislative attacks upon the right guaranteed by the Second Amendment have been numerous.
Certain laws would offend the Framers and manifestly are unconstitutional.  For example, a law banning the possession of rifles with high- capacity magazines or with pistol grips--features which make rifles especially useful to persons in a militia--is unconstitutional under United States v. Miller.  A prohibition on the [Page 47] ownership of handguns also is unconstitutional.  The Framers would find such restrictions ludicrous, counterproductive and inconsistent with the Second Amendment.  In Minneapolis Star, the Supreme Court declared that such laws may be invalidated solely on the ground that they "would have offended the Framers." 
If such laws were enacted by states, then such laws would be unconstitutional. The Supreme Court declared in Planned Parenthood that the right protected by the Second Amendment, one of "the first eight amendments to the Constitution," is one of "those rights . . . guaranteed to the individual" and that "all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States."  The Supreme Court likely would hold that the Fourteenth Amendment incorporates the Second Amendment to the states.
Other proposed laws are more difficult to evaluate. For example, a national program requiring firearms owners to register their firearms probably is unconstitutional because registration can lead to governmental confiscation and the forced disarmament of the citizenry, an evil about which the Framers were intensely fearful.  A [Page 48] law which requires firearms to be stored with trigger locks,  or a law which prohibits a person from purchasing more than one firearm per month,  probably would not greatly offend the Framers, may be rationally related to a legitimate governmental interest, and probably is constitutional.
XII. THE SECOND AMENDMENT WILL NEVER BECOME OBSOLETE
The Second Amendment guarantees the right of individuals to own firearms. The Second Amendment is important because firearms are important. As proved above the Framers believed that firearms in the hands of individual citizens assure liberty in America.
Firearms make people who like them, own them and use them, whether for target shooting, hunting or self-defense, happy.  Happiness is an inherently good thing, and happiness is blessed by the Declaration of Independence.  Happiness, and the pursuit of happiness, absent negative externalities to others, requires no independent justification. [Page 49]
The Second Amendment is important because it is the only amendment from which the other amendments may be defended. If the Second Amendment falls, there is no practical, effective way to defend the other amendments. This, then, is the ultimate reason the Second Amendment deserves vigorous support and respect, even in contemporary America where the other provisions of the Bill of Rights may appear more relevant to daily life: The Second Amendment is the only means Americans have of defending effectively the other provisions of the Bill of Rights against actual or threatened violent attack, and of preserving America's heritage of liberty.  Alexander Hamilton wrote: "If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self- defence which is paramount to all positive forms of government." 
If there were no theoretical possibility, given the requisite brew of economic and social circumstances in the United States, that the Government of the United States of America, or a cunning and charismatic demagogue, would attempt to deny to Americans the rights guaranteed to them by the Constitution, then the author would agree the Second Amendment has become obsolete. However, no matter how many generations the United States thrives as a democracy human nature does not change.
Demagogues have come to power and swayed masses of people throughout the centuries. People forget easily the lessons of history. Americans can become (and, perhaps, have become) frighteningly complacent about their constitutional freedoms.  [Page 50]
Mussolini and Hitler did not seize control of their country's political system by force; they rose to power through the honest and voluntary support of millions of their country's citizens. The belief in America that "it can't happen here" is the first step toward forgetting the lessons of history. 
Totalitarians consolidate their power by neutralizing sources of opposition. Historically, rational totalitarians have sought to disarm the people they wish to subjugate. 
When the Fifth Amendment was under attack in the 1950s by politicians who alleged it was an anachronistic luxury in which America could no longer afford to indulge in view of the perceived Communist threat, Justice Frankfurter reminded Americans in Ullmann not to trample the Fifth Amendment because then-present exigencies appeared to make its existence frustrating and destructive. Justice Frankfurter's defense of the Fifth Amendment applies equally well to a defense of the Second Amendment: "Time has not shown that protection from the evils against which this safeguard was directed is needless or unwarranted." 
It is not logical to conclude there is no theoretical possibility that duly elected political leaders, or a demagogue, would seek to undermine the Constitution. The vast quantity of firearms in private hands throughout America is the single greatest and, perhaps, the only effective guarantor of the legacy of liberty of the men who drafted and ratified the Constitution. Therefore, the Second Amendment will never become obsolete.
* Ronald S. Resnick, J.D., The University of Chicago Law School (1988), was an associate at Skadden, Arps, Slate, Meagher & Flom from September 1988 to December 1992. Since January 1993, he has been a Managing Director and the General Counsel of a private international investment management firm.
. Firearms also have been used to save lives. For example, on October 1, 1997, a student with a rifle at Pearl High School in Pearl, Mississippi shot nine students before an assistant principal at the school retrieved a pistol from his car and "subdued [the shooter] at gunpoint." Court TV Online (visited Oct. 16, 1999) <http://www.courttv.com/trials/woodham/index.html>. On July 6, 1999, a man with a rifle held three employees hostage in a gun store in Santa Clara, California, until one of the employees shot the perpetrator. Reuters reported that "[p]olice investigating the case believed the quick action by the gun club employee may have headed off a massacre" since a suicide note left by the gunman indicated he planned to kill many people in addition to the store employees. Shooting Range Shootout Ends California Drama, Reuters July 7, 1999.
John R. Lott, the John M. Olin Law and Economics Fellow at The University of Chicago Law School, conducted a survey in which he found that "[p]otential victims use guns more than 2,000,000 times a year to stop violent crimes; 98% of the time simply brandishing a gun is sufficient to stop an attack. Crimes are stopped with guns about five times as frequently as crimes are committed with guns." John R. Lott, Gun Laws Can Be Dangerous, Too, Wall St. J. May 12, 1999 at A22. Data from the 1994 National Survey of Private Ownership of Firearms, conducted by telephone by the National Institute of Justice Research, a component of the Office of Justice Programs of the U.S. Department of Justice, revealed that in 1994 1,500,000 Americans used a firearm "to scare off trespassers and fend off assaults." This study stated: "This estimate is directly comparable to the well-known estimate by [Florida State University professors Gary] Kleck and [Mark] Gertz of [2,500,000 defensive gun uses from their 1994 telephone survey]." Jeremy Travis, Guns in America: National Survey on Private Ownership and Use of Firearms (visited Oct. 16, 1999) <http://www. ncjrs.org/txtfiles/165476.txt>.
. On June 8, 1789, James Madison presented to Members of Congress his draft of a bill of rights. Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 159 (1994). Madison's draft provided: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person." James Madison, I Annals of Congress 434 (1789). The text approved by the House of Representatives committee provided: "A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms." Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 77 (1984).
The Senate then considered the Bill of Rights, but no record exists of the Senate's deliberations. It is believed that the Senate rejected a motion to add "for the common defense" after the phrase "to keep and bear arms." Malcolm, supra note 2, at 161 (citing Halbrook, supra note 2, at 81 n.167). Thus, the Senate recognized and the Second Amendment reflects the individual's right to have weapons for his or her own personal defense, rather than for collective, common defense.
. See Laurence H. Tribe, American Constitutional Law 72 n.10 (3d ed. 1999)("Note that only two specific provisions of the Constitution - the Copyright and Patent Clause and the Second Amendment - come packaged with preambles of their own.").
. See Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793, 794-96 (1998):
My modest discovery is that the Second Amendment is actually not unusual at all: Many contemporaneous state constitutional provisions are structured similarly....To begin with, so long as the Second Amendment seems strikingly unusual--so long as it appears to be the only provision with a justification clause--people will naturally wonder whether this oddity is some sort of signal: Perhaps, for instance, the Framers were themselves so hesitant about the right that they intentionally tried to limit its force; in any event, they must have been telling us something, or else why would they have written the Amendment so strangely? The state provisions show that the Second Amendment is just one of many constitutional provisions that happen to be structured this way, and that the federal Bill of Rights is just one of many that contain only one or a few justification clauses.
. Gun Control (American Civil Liberties Union Policy #47) <http:// www.e77.org/pub/caf/civil-liberty/gun-control.aclu>:
The setting in which the Second Amendment was proposed and adopted demonstrates that the right to bear arms is a collective one, existing only in the collective population of each state for the purpose of maintaining an effective state militia. ...[T]he individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Note here the belief that the term "militia" means only an organized state militia.
. J. Neil Schulman, A Conversation With An Expert On English Language, (visited Sept. 21, 1999), <http://www.netside.com/<tilde> 1coble/2ndamend/freedom.txt> (on file with the University of Detroit Mercy Law Review).
. J. Neil Schulman, The Unabridged Second Amendment, Gun Week, Sept. 13, 1991, at 4. Schulman confirmed in writing to the author on June 7, 1999, the authenticity and accuracy of these conversations and this correspondence.
. See, e.g., Theodore Sedgwick, A Treatise on the Rules Which Govern the Interpretation and Application of Statutory and Constitutional Law 55 (1857) (quoted in Volokh, supra note 4, at 821 n.51) ("[The] body of the act may even be restrained by the preamble, when no inconsistency or contradiction results. But it is well settled that where the intention of the Legislature is clearly expressed in the [body], the preamble shall not restrain it, although it be of much narrower import."); Joel P. Bishop, Commentaries on the Written Laws and Their Interpretation § 48 at 48 (1882) (quoted in Volokh, supra note 4, at 821 n.51)("[a]s showing the inducements to the act, [the preamble] may have a decisive weight in a doubtful case. But where the body of the statute is distinct, it will prevail over a more restricted preamble."); Fortunatus Dwarris, A General Treatise on Statutes 504 (2d ed. 1848) (quoted in Volokh, supra note 4, at 821 n.51)("[i]n the laws of England, in doubtful cases recourse may be had to the preamble, to discover the inducements the Legislature had, to the making of the statute; but where the terms of the enacting clause are clear and positive, the preamble cannot be resorted to.").
. See David E. Johnson, Note, Taking a Second Look at the Second Amendment and Modern Gun Control Laws, 86 KY. L.J. 197, 200 (1997-1998).
. Sheldon Richman, What The Second Amendment Says (visited Nov. 5,1999) <http://www.netside.com/<tilde>1coble/2ndamend/freedom.txt> (on file with the University of Detroit Mercy Law Review)>. See also Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637, 644-45 (1989) ("This is not a wholly implausible reading, but one might ask why the Framers did not simply say something like 'Congress shall have no power to prohibit state- organized and directed militias.' ").
. Note that acceptance of the collective right view would not mean that people are not permitted to keep and bear arms. It would mean only that the Bill of Rights does not enumerate the right of private firearms ownership. The Ninth Amendment provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. Const. amend. IX. The right to own automobiles is not enumerated in the Constitution, but the Ninth Amendment makes clear that its absence from the Constitution does not in any way mean that the people do not have the right to own automobiles.
. See Volokh, supra note 4, at 807.
What then does the justification clause mean? It might have a political and educational goal--stressing to the public and government officials the connection between an armed citizenry and freedom, just as other provisions may aim to persuade people about the desirability of 'a more perfect Union' or the virtue of local trials or the importance of the liberty of the press.
See, e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (appealing to the "more perfect Union" language in the Preamble); Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 54 (1994) (likewise as to "establish Justice").
. 307 U.S. 174 (1939).
. Id. at 178 (holding that the test is whether the weapon in question has "some reasonable relationship to the preservation or efficiency of a well regulated militia.").
. See Geoffrey R. Stone et al., Constitutional Law Supplement 53-54 (3d ed., Supp. 1997) ("The Second Amendment, unusually for constitutional provisions, contains a statement of purpose as well as a guarantee of a right to bear arms.").
. See Volokh, supra note 4, at 806 (citations omitted):
The Framers may have intended the right to keep and bear arms as a means towards the end of maintaining a well-regulated Militia--a well-trained armed citizenry--which in turn would have been a means towards the end of ensuring the security of a free State. But they didn't merely say that "a well- regulated Militia is necessary to the security of a free State" (as some state constitutions said), or "Congress shall ensure that the Militia is well-regulated," or even "Congress shall make no law interfering with the security of a free State." Rather, they sought to further their purposes through a very specific means. Congress thus may not deprive people of the right to keep and bear arms, even if their keeping and bearing arms in a particular instance doesn't further the Amendment's purposes. See also William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236, 1242 (1994).
. Halbrook, supra note 2, at 83:
In recent years it has been suggested that the Second Amendment protects the 'collective' right of states to maintain militias, while it does not protect the right of 'the people' to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and the Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis.
. See Volokh, supra note 4, at 807:
I believe the justification clause may aid construction of the operative clause, but may not trump the meaning of the operative clause: To the extent the operative clause is ambiguous, the justification clause may inform our interpretation of it, but the justification clause can't take away what the operative clause provides.
. The Preamble provides:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
U.S. Const. preamble. (emphasis added).
. The First Amendment provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
U.S. Const. amend. I (emphasis added).
. The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV (emphasis added).
. Shortly after James Madison proposed the Bill of Rights to Congress in 1789, Tench Coxe, a prominent federalist, wrote that the text that became the Second Amendment would confirm for the people "their right to keep and bear their private arms." Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to "Bear Arms," 49 Law & Contemp. Probs., 151, 155 (1986) (citing "A Pennsylvanian," Remarks of the First Part of the Amendments, Federal Gazette, June 18, 1789 at 2.)(emphasis added). Coxe's writings supported an individual "right to own and keep and use arms and consequently of self-defense and of the public militia power." Id. (citing Sidney, To the Friends of the Principles of the Constitution, Democratic Press (Philadelphia), Jan. 23, 1823, at 2) (emphasis added).
. Halbrook, supra note 22, at 76. See Letter from Senator William Grayson of Virginia to Patrick Henry (June 12, 1789) in 3 Patrick Henry, 391 (1951) ("Last Monday a string of amendments were presented to the lower House; these altogether respect personal liberty.")(emphasis added).
. Madison's original plan was to designate the amendments as inserts between specific sections of the existing Constitution, rather than as separate amendments added to the end of the document. David T. Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 Harv. J.L. & Pub. Pol'y 559, 609 (1986) (citing 1 Annals of Congress 707-08 (Joseph Gales ed., 1789)). Madison's desired placement of the right to keep and bear arms in the Constitution makes clear that Madison envisioned a private and personal right to keep and bear arms, rather than merely a right of states to organize militias or of people to bear arms only while performing service as part of an organized militia. Madison did not designate the right to keep and bear arms as a limitation of the militia clause of Section 8 of Article I. Rather, he placed it as part of a group of provisions, with freedom of speech and freedom of the press, to be inserted in "Article 1st. Section 9, between Clauses 3 and 4." Id. (quoted in 5 Documentary History of the Constitution of the United States of America 186-187 (1905)). Thus, Madison aligned the right to keep and bear arms along with the other individual rights of freedom of religion and freedom of the press, rather than with congressional power to regulate the militia. Id. This suggested placement of the Second Amendment reflected recognition of an individual right rather than a collective right of states or a right dependent upon the existence of a militia.
. The Federalist Papers is a series of 85 articles written during 1787 and 1788 by Alexander Hamilton (a Revolutionary statesman and the first Secretary of the Treasury of the United States), James Madison (the fourth President of the United States), and John Jay (the first Chief Justice of the United States), analyzing, explaining and promoting the ratification of the proposed Constitution.
. James Madison wrote in Federalist Number 46 of "the advantage of being armed, which the Americans possess over the people of almost every other nation...." The Federalist No. 46, at 299 (James Madison) (Clinton Rossiter ed. 1961). The Federal Farmer wrote: "To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them...." Halbrook, supra note 22, at 21 (citing Richard Henry Lee, Additional Letters From the Federal Farmer 169 (Philadelphia, 1788)). "The Federal Farmer" was the pseudonym of an anti- federalist critic of the new Constitution and the absence therein of a Bill of Rights. Levinson, supra note 10, at 649.
. See, e.g., Halbrook, supra note 22, at 26 (citing B. Schwartz, The Bill of Rights: A Documentary History 681 (1971)). (Samuel Adams proposed a bill of rights in the Massachusetts convention with these provisions: "the said 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...."); 1 The Papers of Thomas Jefferson, 334 (Julian P. Boyd, ed. 1950) ("No freeman shall ever be debarred the use of arms (within his own lands or tenements)."); Patrick Henry and George Mason, 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution at 185 (2d ed. 1836) ("the people have a right to keep and bear arms"); Zachariah Johnson, id. ("The people are not to be disarmed of their weapons. They are left in full possession of them."); Letter from Thomas Jefferson to John Cartwright (1824) reprinted in 16 The Writings of Thomas Jefferson, Memorial Edition 45 (Lipscomb and Bergh, eds. 1903-04) ("The Constitutions of most of our states assert that all power is inherent in the people;...that it is their right and duty to be at all times armed."); Halbrook, supra note 2, at 72 (citing Charleston State Gazette Sept. 8, 1788):
Whenever, therefore, the profession of arms becomes a distinct order in the state...the end of the social compact is defeated.... No free government was ever founded, or ever preserved its liberty, without uniting the characters of the citizen and the soldier in those destined for the defence of the state.... Such are a well regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen. Id.
John Adams, A Defense of the Constitutions of Government of the United States of America, 1787-88 ("Arms in the hands of citizens [may] be used at individual discretion...in private self-defense."); and Halbrook, supra note 22, at 156 (quoting Tench Coxe & Sherman, To the People of the United States (apparently published in Democratic Press of the Philadelphia Sentinel (early 1823), microformed on Papers of Trench Coxe, reel 113 at 716 (1977) (available from the Historical Society of Pennsylvania (Philadelphia))) ("His own firearms are the second and better right hand of every freeman.")).
. Dred Scott v. Sandford, 60 U.S. 393 (1856).
. Id. at 403.
. Id. at 404 (emphasis added).
. Id. at 417 (emphasis added).
. Id. at 450 (emphasis added).
. 92 U.S. 542 (1875).
. Id. at 547.
. Id. at 545-46.
. Id. at 552 (emphasis added).
. Id. at 553 (citation omitted) (emphasis added).
. Section 1 of the Fourteenth Amendment provides:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const. amend. XIV, § 1.
. Cruikshank, 92 U.S. at 552.
. 116 U.S. 252 (1886).
. Id. at 253.
. Id. at 266.
. In Miller v. Texas, 153 U.S. 535 (1894), the question of whether the Fourteenth Amendment incorporates to the states the Second Amendment and the Fourth Amendment was considered a completely separate issue from the Court's reliance upon Cruikshank for its decision that those amendments themselves do not apply to the states:
In his motion for a rehearing, however, defendant claimed that the law of the State of Texas forbidding the carrying of weapons, and authorizing the arrest, without warrant of any person violating such law, under which certain questions arose upon the trial of the case, was in conflict with the Second and Fourth Amendments to the Constitution of the United States, one of which provides that the right of the people to keep and bear arms shall not be infringed, and the other of which protects the people against unreasonable searches and seizures. We have examined the record in vain, however, to find where the defendant was denied the benefit of any of these provisions, and, even if he were, it is well settled that the restrictions of these amendments operate only upon the Federal power, and have no reference whatever to proceedings in state courts. And if the Fourteenth Amendment limited the power of the states as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court.
Id. at 538 (citations omitted).
If the Second Amendment guaranteed only a collective right of states to maintain militias, then Miller would not have had standing to raise a Second Amendment claim at the trial level, and the Court could have disposed of his claim simply by holding that, as an individual, he lacked standing to assert a Second Amendment claim.
. Presser, 116 U.S. at 265 (emphasis added).
. The Presser Court stated:
We are next to inquire whether the 5th and 6th sections of article XI of the Military Code are in violation of the other provisions of the Constitution of the United States relied on by the plaintiff in error. The first of these is the Second Amendment, which declares: "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."
We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms.
Id. at 264-65.
. 431 U.S. 494 (1977).
. 505 U.S. 833 (1997).
. Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J. dissenting).
. Moore, 431 U.S. at 502 (quoting Poe, 367 U.S. at 543 (Harlan, J. dissenting)) (emphasis added).
. 494 U.S. 259 (1990).
. Id. at 262.
. Id. at 263.
. Id. at 261.
. Id. at 275.
. Verdugo-Urquidez, 494 U.S. at 264-65. (citations omitted) (emphasis added).
. Id. at 264-65.
. Id. at 286 (Brennan, J. dissenting)(citations omitted).
. Id. at 287-289 (Brennan, J. dissenting)(citations omitted) (emphasis added). Black's Law Dictionary defines "freeman" as "[a] person who possesses and enjoys all the civil and political rights belonging to the people under a free government." Black's Law Dictionary 675 (7th ed. 1999). The American Heritage Dictionary defines "freeman" first as "[a] person not in slavery or serfdom," and second as "[o]ne who possesses the rights or privileges of a citizen." The American Heritage Dictionary of the English Language 724 (3rd ed. 1992).
. Casey, 505 U.S. at 846-49 (citations omitted) (emphasis added).
. Id. at 847 (quoting Whitney v. California, 274 U.S. 357, 373 (1972) (Brandeis, J., concurring) (emphasis added).
. Id. (emphasis added). See also Gideon v. Wainwright, 372 U.S. 335, 341-43 (1963) (citations omitted) (emphasis added):
This Court has looked to the fundamental nature of original Bill of Rights guarantees to decide whether the Fourteenth Amendment makes them obligatory to the States. Explicitly recognized to be of this 'fundamental nature' and therefore made immune from state invasion by the Fourteenth, or some part of it, are the First Amendment's freedoms of speech, press, religion, assembly, association, and petition for redress of grievances. For the same reason, though not always in precisely the same terminology, the Court has made obligatory on the States the Fifth Amendment's command that private property shall not be taken for public use without just compensation, the Fourth Amendment 's prohibition of unreasonable searches and seizures, and the Eighth's ban on cruel and unusual punishment.... [I]n 1936, the Court reemphasized what it had said about the fundamental nature of the right to counsel in this language: 'we concluded that certain fundamental rights, safeguarded by the first eight amendments against federal action, were also safeguarded against state action by the due process of law clause of the Fourteenth Amendment....'
. Casey, 505 U.S. at 847.
. Id. (emphasis added).
. 521 U.S. 898 (1997).
. Id. 521 U.S. at 937-39. (Thomas, J., concurring) (citation omitted) (emphasis added).
. Id. at 939 n.2 (Thomas, J., concurring) (citations omitted) (emphasis added).
. 523 U.S.1 (1998).
. Id. at 22 (Stevens, J. dissenting).
. Black's Law Dictionary, 780 (5th ed. 1979).
. The American Heritage Dictionary, supra note 60, at 716.
. Thomas Jefferson authored the Declaration of Independence and was the third President of the United States.
. Halbrook, supra note 22, at 153 (citing A Bill for Preservation of Deer (1785), in 2 The Papers of Thomas Jefferson 443).
79]. Black's Law Dictionary, supra note 60, at 140.
. The American Heritage Dictionary, supra note 60, at 115.
. Black's Law Dictionary, supra note 73, at 194.
. 118 S.Ct. 1911 (1998).
. Id. at 1921.
. Id. at 1920-2 (Ginsburg, J., dissenting).
. 307 U.S.174 (1938).
. Id. at 175.
. Id. at 176.
. Id. at 178.
. Miller, 307 U.S. at 178. The argument that the Court must not be serious about using this test to determine whether a weapon is protected by the Second Amendment because this test could justify the private ownership of bazookas and tanks if such weapons are found useful to a militia is specious. "Arms" under the Second Amendment are those which an individual is capable of bearing. See Halbrook, supra note 22, at 159-60:
Since "arms" under the second amendment are those which an individual is capable of bearing, artillery pieces, tanks, nuclear devices, and other heavy ordnances are not constitutionally protected. Nor are other dangerous and unusual weapons, such as grenades, bombs, bazookas, and other devices which, while capable of being carried by hand, have never been commonly possessed for self-defense.
See also Malcolm, supra note 2.
. Miller, 307 U.S. at 178-182 (citations omitted) (emphasis added).
. Printz v. United States, 521 U.S. 898, 938 n.1. (1997) (Thomas, J., concurring) (citation omitted).
. Miller, 307 U.S. at 177 (emphasis added). This proves as specious the argument that the Second Amendment protects the right of the people to keep and bear only muskets since they were the arms in use at the time of the ratification of the Constitution. Further, does anyone suggest that speech which is protected by the First Amendment when uttered in person becomes unprotected when broadcast by a radio frequency transmitter, or when delivered electronically to multiple locations simultaneously, merely because the Framers did not foresee such technology?
. The Federalist No. 29 (Alexander Hamilton) (Clinton Rossiter ed. 1961).
. 13 Oxford English Dictionary 524 (2d ed. 1989) ("regulated...b. Of troops: Properly disciplined. Obs. Rare (providing example from 1690 Cond. Gaz No. 2568/.3) ("We hear likewise that the French are in a great Allarm in Dauphine and Bresse, not having at present 1500 Men of regulated troops on that side.")
. U.S. Const. art. I, § 8.
. The American Heritage Dictionary defines a "yeoman" firstly as "[a]n independent farmer; especially, a member of a former class of small freeholding farmers in England." "Yeomanry" is defined firstly as "[t]he class of yeoman; small farmers." The American Heritage Dictionary, supra note 60, at 1484.
. The Federalist No. 29, supra note 93 (emphasis added).
. Id. Hamilton wanted the militia to counterbalance the power of a standing federal army and to constitute the last line of defense to protect the liberties of the people:
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. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.
Contrary to Hamilton's desire, the modern militia is grossly inferior in numbers, training, discipline and arms to the United States Army, Navy, Air Force and Marines.
. Patrick Henry and George Mason, 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 425-26 (2d ed. 1836)
. See supra note 26 and accompanying text.
. Stephen P. Halbrook, To Keep and Bear Their Private Arms: The Adoption of the Second Amendment, 1787-1791, 10 N. Ky. L. Rev. 13, 20 (1982) (citing Richard Henry Lee, Additional Letters From the Federal Farmer 169 (Philadelphia, 1788).
. The Militia Act of 1792, ch. 33 1 Stat. 271, 271-72 (1792) (emphasis added).
. 10 U.S.C. § 311 (1994) (emphasis added).
. Miller, 307 U.S. at 179.
. In Adams v. Williams, Justice William Douglas, wrote in a dissenting opinion, in which Justice Thurgood Marshall concurred:
A powerful lobby dins into the ears of our citizenry that these [hand]gun purchases are constitutional rights protected by the Second Amendment, which reads, "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." There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.
The leading case is United States v. Miller, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia."
"The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia - civilians primarily, soldiers on occasion."
Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia.
Adams v. Williams, 407 U.S. 143, 150-51 (1972) (Douglas, J. dissenting). In his Adams dissent Justice Douglas stated that "decisions" supported his views. However, Justice Douglas cited only Miller. Justice Douglas seized upon language in Miller to suggest that pistols are not protected by the Second Amendment, but Miller does not suggest any such notion. The Miller Court wrote: "[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [the militia] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." Miller, 307 U.S. at 178. The Miller Court wrote this to explain the basis for the test it was fashioning - a test which would be used to determine which weapons are protected by the Second Amendment and which are not so protected. The test adopted is whether or not the weapon in question "at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia." Id. at 178. Since the Court did not apply this test to handguns, it is puzzling why Justice Douglas believed that the portions of Miller he quoted support his "proposals" to ban handguns.
Justice Douglas apparently misunderstood the nature of the "militia." As demonstrated herein "militia" means all able-bodied citizens. The Second Amendment is intended to "keep alive the Militia," as Justice Douglas wrote, but this is merely another way of saying the Second Amendment is intended to keep alive the right of the people to keep and bear arms.
If one assumes that Justice Douglas was advancing the version of the collective right theory that holds the Second Amendment guarantees people the right to keep and bear arms only while serving in an organized militia, Miller is unhelpful because the Miller Court believed the Second Amendment guarantees individuals the right to keep and bear arms, whether or not they are serving in an organized militia. One knows this because Miller and his co-defendant made no pretense about possessing or transporting the shotgun in connection with militia service, and yet the Court conducted an exhaustive factual analysis to which the Court applied its newly minted test. If the Court believed that Miller had a right to possess or transport his shotgun or any other weapon only while serving in an organized militia, the Court could have rejected summarily Miller's contention that the Second Amendment guaranteed his right to possess and transport his shotgun, and avoided the comprehensive factual analysis it conducted, simply on the basis that Miller was not acting in connection with service in an organized militia.
Justice Douglas is entitled to his personal opinion that the Second Amendment does not guarantee the right of individuals to keep and bear pistols, and that pistols should be banned except to police. However, whether or not handguns are protected by the Second Amendment depends upon the Supreme Court's application of the test adopted in Miller. See Levinson, supra note 10, at 655 ("Arguments about the constitutional legitimacy of a prohibition by Congress of private ownership of handguns or, what is much more likely, assault rifles, might turn on the usefulness of such guns in military settings."). The Supreme Court never has ruled specifically upon the usefulness of handguns to a militia.
. 496 U.S. 334 (1990).
. Id. at 340-44 (1990) (citations omitted) (emphasis added).
. Id. at 341.
. Id. at 348 (citation omitted) (emphasis added). Note the reference to the "active militia" to distinguish it from the inactive militia. The members of the "active militia" are "subject to call" and constitute today's state national guards. This suggests strongly that the inactive militia is the portion of the militia that is not "active" or "subject to call" and is a separately cognizable subset of the militia.
. Id. at 348.
. Id. at 351-52.(citation omitted).
. Perpich, 496 U.S. at 353, n.25 (citation omitted) (emphasis added).
. See, e.g., Halbrook, supra note 102, at 17 (quoting Tench Coxe, Pennsylvania Gazette (Feb. 20, 1788):
Congress has no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American...[t]he unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust in God it will ever remain, in the hands of the people.
. The Federalist No. 28, at 224 (Alexander Hamilton) (Clinton Rossiter ed. 1961).
. Letter from Thomas Jefferson to William S. Smith (1787) in Jefferson, On Democracy 20 (S. Padover ed. 1939). Tench Coxe, commenting on the proposed amendment which became the Second Amendment wrote: "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." Halbrook, supra note 102, at 29.
. Henry and Mason, 3 Jonathan Elliot, supra note 100, at 45.
. Id. at 386.
. Id. at 380. See, also, William Lenoir, 4 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution at 203 (2d ed. 1836) ("If the laws of the union were oppressive, they could not carry them into effect, if the people were possessed of the proper means of defence.").
. James Madison, James Madison's Autobiography quoted in 2 William and Mary Quarterly 208 (1945).
. See, e.g., Noah Webster, An Examination into the Leading Principles of the Federal Constitution (1787), in Pamphlets on the United States Constitution 56 (Paul L. Ford ed.) (1888):
Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of 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 bands of regular troops that can be, on any pretense, raised in the United States.
1 William Blackstone's Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia 300 (St. George Tucker ed., 1996):
[The Second Amendment] may be considered as the true palladium of liberty.... The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine 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.
St. George Tucker's William Blackstone's Commentaries contained the earliest prominent commentary on the United States Constitution.
Joseph Story, A Familiar Exposition of the Constitution of the United States 264 (1st pub. 1833, repub. 1893):
One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men.
3 J. Story Commentaries on the Constitution of the United States; With a Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution § 1890 746 (1833) (footnote omitted):
The importance of [the Second Amendment] will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. 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 usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
Thomas Cooley, The General Principles of Constitutional Law 270 (1880) ("The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation."). Joseph Story was a United States Supreme Court justice and the leading constitutional commentator of the early 1800s. Thomas Cooley was the leading constitutional commentator of the late 1800s.
. Cruikshank, 92 U.S. at 543 (emphasis added).
. Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897).
. Verdugo-Urquidez, 494 U.S. at 287-88 (emphasis added).
. Robertson, 165 U.S. at 281-82.
. 350 U.S. 422 (1956).
. Id. at 428-29.
. Id. at 426-28. (citations omitted).
. 454 U.S. 464 (1982).
. Id. at 484 (emphasis added).
. 460 U.S. 575 (1983).
. Id. at 584 n.6 (1983).
. Id. at 584.
. Telephone Interview by Dan Gifford with Alan Dershowitz, Law Professor, Harvard University (May 3-4 1994), quoted in Dan Gifford, The Conceptual Foundations of Anglo-American Jurisprudence in Religion and Reason, 62 Tenn. L. Rev. 759, 789 (1995):
Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a public safety hazard don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like.
. Valley Forge Christian College, 454 U.S. at 484.
. How does one know what would offend the Framers? An analysis of originalism--the view that the Constitution must be interpreted in light of the understanding of the Framers, and that the Supreme "Court's role is to vindicate an actual historical judgment made by those who ratified the Constitution"--is beyond the scope of this paper. See Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court 6 (1999). However, the Second Amendment is comprised of simple words and does not contain complex phrases or complex concepts. The Second Amendment is a simple solution to a determinate array of clearly explained potential problems. If the application of originalism to the interpretation of the Constitution ever is appropriate, then it must be appropriate to the interpretation of the Second Amendment.
One need only accept, at a minimum, that the Framers were concerned about evils to which they believed the right to keep and bear arms to be an antidote, that the words comprising the Second Amendment have meaning and that no provision of the Bill of Rights may be ignored. Equipped with an understanding of the intent of the Framers, the concerns they sought to address with the Second Amendment and the meaning they accorded the words constituting the Second Amendment, one may apply such understanding to present facts and circumstances, directly or by analogy. See Letter from Thomas Jefferson to William Johnson (June 12, 1823) in The Complete Jefferson 322 (War ed. 1943):
On every question of [constitutional] construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.
. Miller, 307 U.S. at 177.
. Thomas Jefferson, The Commonplace Book of Thomas Jefferson 314 (G. Chinard ed. 1926) (quoting Cesare Beccaria, On Crimes And Punishments ch. 40 (1764):
False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the less important and arbitrary ones, which can be violated with ease and impunity, and which, if strictly obeyed, would put an end to personal liberty--so dear to men, so dear to the enlightened legislator--and subject innocent persons to all the vexations that the guilty alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. They ought to be designated as laws not preventive but fearful of crimes, produced by the tumultuous impression of a few isolated facts, and not by thoughtful consideration of the inconveniences and advantages of a universal decree.
It is constitutional for the government to prohibit children, criminals and people with mental disabilities from owning firearms because such restrictions are consistent with the Framers' intent and are reasonably related to a legitimate governmental interest.
. Minneapolis Star, 460 U.S. at 584.
. Planned Parenthood, 505 U.S. at 848.
. See Halbrook, supra note 22, at 161 ("Throughout history, firearms registration classically has been required as a prelude to confiscation."). Would anyone consider constitutional a law requiring citizens to register with the government prior to exercising their right to speak freely or to worship God?
. Trigger locks render firearms difficult and slow to deploy in emergencies, and may result in the deaths of victims who could not bring their firearms to bear in time to defend themselves from assault.
. Persons to whom a restriction upon the frequency with which a right guaranteed by the Second Amendment may be exercised is appealing should consider whether such a restriction may also be applied to the right to speak freely or to worship God.
. See, e.g., Letter from Thomas Jefferson to his nephew, Peter Carr (August 19, 1785), in The Avalon Project at the Yale Law School (also available at The Avalon Project at the Yale Law School (visited Nov. 3, 1999) < http://www.yale.edu/lawweb/avalon/jefflett/let31.htm)>:
A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks.
. The Declaration of Independence states:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The Declaration of Independence, para. 1 (U.S. 1776) (emphasis added).
. See Levinson, supra note 10, at 656:
One would, of course, like to believe that the state, whether at the local or national level, presents no threat to important political values, including liberty. But our propensity to believe that this is the case may be little more than a sign of how truly different we are from our radical forbearers. I do not want to argue that the state is necessarily tyrannical; I am not an anarchist. But it seems foolhardy to assume that the armed state will necessarily be benevolent.
. The Federalist No. 28, supra note 118 at 224.
. See James Madison, in Henry and Mason, 3 Jonathan Elliot, supra note 100, at 87 ("I believe there are more instances of the abridgment of the freedom of the people by the gradual and silent encroachments of those in power, than by violent and sudden usurpations."; Story, Commentaries, supra note 124, at 746-47:
And yet, though this truth [that "[t]he right of the citizens to keep and bear arms...offers a strong moral check against the usurpation and arbitrary power of rulers" ] 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 burthens, to be rid of all regulations. ... 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.
. Restrictions on liberty have been enforced by people who are not generally totalitarians. See Mohandus K. Ghandi, an Autobiography 446 (Mahadev Desai trans. 1957). ("Among the many misdeeds of the British rule in India, history will look upon the act of depriving a whole nation of arms, as the blackest.").
. See Hitler's Tischegesprache Im Fuhrerhauptquartier 1941-1942
(Henry Picker, ed. 1951) ("The most foolish mistake we could possibly make would be to permit the conquered Eastern peoples to have arms. History teaches that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by doing so.") For a different English translation, see H.R. Trevor-Roper, Hitler's Secret Conversations 1941-1944 345 (Norman Cameron & R.H. Stevens trans., 1953) ("The most foolish mistake we could possibly make would be to allow the subjected people to carry arms. History shows that all conquerors who have allowed their subjected peoples to carry arms have prepared their own downfall by so doing."); Halbrook, supra note 22 n.73 ("It is well known that the Nazis used registration lists to confiscate guns and to find and execute gun owners.").
. Ullmann, 350 U.S. at 426-28.