The Right To Keep And Bear Arms Is An Individual Right

From the most excellent SCOTUSblog:


1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.  Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

 (c) The Court’s interpretation is confirmed by analogous armsbearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.

(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms.  Pp. 30–32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.

(f) None of the Court’s precedents forecloses the Court’s interpretation.  Neither


United States v. Cruikshank, 92 U. S. 542, 553, norPresser v. Illinois, 116 U. S. 252, 264–265, refutes the individual rights interpretation.   United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e. those in common use for lawful purposes. Pp. 47–54.

2. Like most rights, the Second Amendment right is not unlimited.  It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.  Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.  Pp. 54–56.

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total banon handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for thelawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossiblefor citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argumentthat the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement.  Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.

478 F. 3d 370, affirmed.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.








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17 responses to “The Right To Keep And Bear Arms Is An Individual Right

  1. Now we need to repeal the NFA and enforce reciprocity of CCW’s. Better yet, get all States to follw Vermont’s example.

  2. “Better yet, get all States to follw Vermont’s example.”

    What, this nest of crime a murder?! Surely you jest!

    Put one in the win column for the logical (and good) guys.

  3. suek

    The second amendment won…

    Yeah….5 to 4. One vote difference. On an absolutely straightforward amendment.

    We’re in trouble. It’s not as bad as it could be, but it’s not good.

  4. A win is a win.

    I am relieved. The Tree of Liberty didn’t have to get refreshed with my blood. This time.

    But there will be a next time. Make good use of the reprieve.

    “God forbid we should ever be 20 years without such a rebellion. The people cannot be all, & always well informed. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty. We have had 13. states independent 11. years. There has been one rebellion. That comes to one rebellion in a century & a half for each state. What country before ever existed a century & a half without a rebellion? & what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon & pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is it’s natural manure.”

  5. Hey, suek, pop over to Soob and look at this:

    “A final parting thought. How much in danger are our rights from an activist Court? But for one vote, the right of an individual to keep and bear arms could have been taken away from us. By the skin on our collective teeth, we dodged that bullet today.”

    Thanks, Jay.

  6. Grimmy

    “How much in danger are our rights from an activist Court? But for one vote, the right of an individual to keep and bear arms could have been taken away from us.”

    Yep. But only for so long as we keep acting like feckless peasants rather than free men and women.

    Don’t forget now:
    When a “better” comes into view, bow your head and tug your forelock.
    Don’t speak to a “better” unless directly addressed by your master. And then only answer the question in as short and direct a manner possible. Don’t forget to add m’lord or m’lady at the end of your say.
    Don’t ever look your one of your masters in the eye. It could be taken as a challenge and get you flogged or hanged as a trouble causer.

    Peasants are as disgusting as the aristocrats that they create to run their lousy lives. Neither are worthy to live in a free nation.

  7. Piss on the peasants and shit on the aristocrats!.

    Uh, who haven’t we alienated yet?

    If all the oxygen thieves who are unworthy to live in this great nation were to be broken of their oxygen habit, would we have enough worthies left to keep it?

  8. Grimmy

    You know what I’m aiming at. I’m aiming at that feeble mindset that simply submits to whatever whims dribble from the minds of those who manage to get appointed to some level of federal power.

    Just because a man gets a black robe job does not mean he is capable, competent or infallible. It simply means he managed to get a black robe job.

    If we allow ourselves to just accept whatever happens to tumble down from on high, then we deserve whatever gets dumped on us.

    Just getting the job is the start of earning the right to that job. From that day forward, the man/woman must prove him/herself worthy of holding that job.

    It is we who it must be proven to. It is we who have the duty to see to it that the federal powers behave themselves.

    Oh, and drop the “we” stuff. I speak for me. I realize I tend to be a bit over simple in lots of things, so when I put up something that you feel is out of line or so far off base that it causes problems, remove it. I’ll be the last to bitch about it.

    This is your site. I am a firm believer in the rights of them what take the time and effort to create to decide what stays and what goes.

    You’re working toward something here. If I put up a comment that works against that something… remove it or attack it. Owners choice.

    It’s all about winning the war. Not at all about appeasing ego.

  9. suek

    There’s an email quoted at this link that makes clear the propaganda we’re up against…

  10. Just in case you happened to see the ABC News piece (if you watch ABC News) with interviews of 5 military folks in Iraq – 3 planned to vote for Obama and 2 for Hillary; no mention of any McCain supporters. Well, here’s the “Rest of the Story.”

    This from Major General (ret) Buckman, a close friend of ours.


    My niece, Katelyn, stationed at Baluud, Iraq was assigned, with others of her detachment, to be escort/guard/watcher for Martha Raddatz of ABC News as she covered John McCain’s recent trip to Iraq . Katelyn and her Captain stood directly behind Raddatz as she queried GIs walking past. They kept count of the GIs and you should remember these numbers.

    She asked 60 GIs who they planned to vote for in November. 54 said John McCain, 4 for Obama and 2 for Hillary.

    Katelyn called home and told her Mom and Dad to watch ABC news the next night
    because she was standing directly behind Raddatz and maybe they’d see her on TV.

    Mom and Dad of course, called and emailed all the kinfolk to watch the newscast and maybe see Katelyn. Well, of course, we all watched and what we saw wasn’t a glimpse of Katelyn, but got a hell’uva view of skewed news. After a dissertation on McCain’s trip and speech, ABC showed 5 GIs being asked by Raddatz how they were going to
    vote in November; 3 for Obama and 2 for Clinton. No mention of the 54 for McCain.

    ABC and all the other alphabet soup media arms are in the tank for Obama. McCain doesn’t have too many in the tank for him.

  11. Much welcome, C4. Though I’d like to clarify that your quote is a quote of my quote of GW at Wolf Howling.


    “Yep. But only for so long as we keep acting like feckless peasants rather than free men and women.”

    Heh, the masses have been doing this for ages. They’re unlikely to undergo a sudden epiphany. In this respect your skepticism is near paralyzing and bespeaks a sense of surrender and ignores the fact that there are those that will harness themselves with a semblance of understanding and will beyond the norm. All isn’t quite yet lost Grimmy.

  12. Grimmy


    Surrender? Not on your, or anyone else’s life. It was a “sudden epiphany” sort of thing that caused this nation to be born and the fruits of that epiphany that has created the single most powerful, successful, and freedom oriented nation ever.

    It is the constant pressure of brain sickness wrapped up in the guise of ideological philosophy flowing out of europe that is working to erode away what makes this nation great and exceptional in an effort to reduce us to something more tolerable to the totalitarian mindset that has always dominated in europe.


    Which fight? The fight the citizens of this nation have been fighting since before they even had a nation to fight for.

    The fight to establish a place free as humanly possible of the excesses of aristocracy, shed completely of monarchy, and where a man had a chance to build himself a life without the all crushing weight of caste and class systems crushing the will and ability out of him.

    The primary enemy of this nation is and always has been those who can not conceive of a way of being or of living other than the totalitarianism that europe is always either under or working its way back toward. Those enemy have had many tags over the existence of our nation. They’ve been monarchists, loyalists, communists, fascists, nazis, pomozers, etc. The thread common to them all is a love of our enemy, regardless of who that enemy is. If it is for the destruction of the US of A, then it is their friend.

    All: The reason we’re having to fight this current fight against this holdout gang of medieval rejects is because of the gains made by our long term and traditional enemy. It is the constant effort of that old enemy to show us as weak, feeble, indecisive and unwilling to do the hard or harsh things required for a nation to survive that has given this foreign enemy the false impression that we were ripe for the plucking.

    We will defeat, and most probably, eventually, destroy this foreign enemy and it’s ideology. It is that old traditional enemy that has the potential to end our exceptional way of life. That is the true and ever present danger to our ceasing to exist as a people, a culture, a society and a way.

  13. The weak, feeble, indecisive and unwilling to do the hard or harsh things required for a nation to survive live cheek by jowl with the strong, vigorous, decisive and willing, and may actually outnumber them.

  14. Grimmy

    It is and always has been so, Cannoneer. Nothing new under the sun.

    The numbers mean next to nothing. The feeble and unwilling are manageable in the same way a herd is.

    A stampede of the mindless and spineless is useful if it’s properly channeled and aimed.

    This current evolution in this forever war may well hinge on which side manages to kick start the stampede first.

  15. Sounds like a job for

    Judas Goat!

  16. You sound like you have a plan to put useful idiots to some useful purpose for the Good Guys.