DISTRICT OF COLUMBIA et al. v. HELLER
certiorari to the united states court of appeals for the district of columbia circuit
No. 07-290. Argued March 18, 2008--Decided June 26, 2008
District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and
prohibiting the registration of handguns; provides separately that no person may carry an unlicensed
handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully
owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Respondent Heller, a
D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused.
He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on
handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the
home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The
District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects
an individual's right to possess firearms and that the city's total ban on handguns, as well as its requirement
that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.
Held:
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a
militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2-53.
(a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope
of the second part, the operative clause. The operative clause's text and history demonstrate that it
connotes an individual right to keep and bear arms. Pp. 2-22.
(b) The prefatory clause comports with the Court's interpretation of the operative clause. The "militia"
comprised all males physically capable of acting in concert for the common defense. The Antifederalists
feared that the Federal Government would disarm the people in order to disable this citizens' militia,
enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to
abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be
preserved. Pp. 22-28.
(c) The Court's interpretation is confirmed by analogous arms-bearing rights in state constitutions that
preceded and immediately followed the Second Amendment. Pp. 28-30.
(d) The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state
Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30-32.
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after
its ratification through the late 19th century also supports the Court's conclusion. Pp. 32-47.
(f) None of the Court's precedents forecloses the Court's interpretation. Neither United States v.
Cruikshank, 92 U. S. 542, 553, nor Presser 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 ban on handgun possession in the home amounts to a prohibition on an
entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self-defense. Under
any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition--in
the place where the importance of the lawful defense of self, family, and property is most acute--would fail
constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or
bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-
defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing
law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy
his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from
exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue
him a license to carry it in the home. Pp. 56-64.
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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DISTRICT OF COLUMBIA, et al., PETITIONERS v.
DICK ANTHONY HELLER
on writ of certiorari to the united states court of
appeals for the district of columbia circuit
[June 26, 2008]
--------------------------------------------------------------------------------
Justice Scalia delivered the opinion of the Court.
We consider whether a District of Columbia prohibition on the possession of usable handguns in the
home violates the Second Amendment to the Constitution.
I
The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an
unregistered firearm, and the registration of handguns is prohibited. See D. C. Code §§7-2501.01(12), 7-
2502.01(a), 7-2502.02(a)(4) (2001). Wholly apart from that prohibition, no person may carry a handgun
without a license, but the chief of police may issue licenses for 1-year periods. See §§22-4504(a), 22-4506.
District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long
guns, "unloaded and dissembled or bound by a trigger lock or similar device" unless they are located in a
place of business or are being used for lawful recreational activities. See §7-2507.02.1
Respondent Dick Heller is a D. C. special police officer authorized to carry a handgun while on duty at the
Federal Judicial Center. He applied for a registration certificate for a handgun that he wished to keep at
home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for the District of
Columbia seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on the
registration of handguns, the licensing requirement insofar as it prohibits the carrying of a firearm in the
home without a license, and the trigger-lock requirement insofar as it prohibits the use of "functional firearms
within the home." App. 59a. The District Court dismissed respondent's complaint, see Parker v. District of
Columbia, 311 F. Supp. 2d 103, 109 (2004). The Court of Appeals for the District of Columbia Circuit,
construing his complaint as seeking the right to render a firearm operable and carry it about his home in that
condition only when necessary for self-defense,2 reversed, see Parker v. District of Columbia, 478 F. 3d
370, 401 (2007). It held that the Second Amendment protects an individual right to possess firearms and
that the city's total ban on handguns, as well as its requirement that firearms in the home be kept
nonfunctional even when necessary for self-defense, violated that right. See id., at 395, 399-401. The Court
of Appeals directed the District Court to enter summary judgment for respondent.
We granted certiorari. 552 U. S. ___ (2007).
II
We turn first to the meaning of the Second Amendment.
A
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." In interpreting this text, we are
guided by the principle that "[t]he Constitution was written to be understood by the voters; its words and
phrases were used in their normal and ordinary as distinguished from technical meaning." United States v.
Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning
may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not
have been known to ordinary citizens in the founding generation.
The two sides in this case have set out very different interpretations of the Amendment. Petitioners and
today's dissenting Justices believe that it protects only the right to possess and carry a firearm in connection
with militia service. See Brief for Petitioners 11-12; post, at 1 (Stevens, J., dissenting). Respondent argues
that it 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. See Brief for Respondent 2-4.
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause.
The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could
be rephrased, "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." See J. Tiffany, A Treatise on Government and
Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3
(hereinafter Linguists' Brief). Although this structure of the Second Amendment is unique in our Constitution,
other legal documents of the founding era, particularly individual-rights provisions of state constitutions,
commonly included a prefatory statement of purpose. See generally Volokh, The Commonplace Second
Amendment, 73 N. Y. U. L. Rev. 793, 814-821 (1998).
Logic demands that there be a link between the stated purpose and the command. The Second
Amendment would be nonsensical if it read, "A well regulated Militia, being necessary to the security of a
free State, the right of the people to petition for redress of grievances shall not be infringed." That
requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative
clause ("The separation of church and state being an important objective, the teachings of canons shall
have no place in our jurisprudence." The preface makes clear that the operative clause refers not to canons
of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or
expand the scope of the operative clause. See F. Dwarris, A General Treatise on Statutes 268-269 (P.
Potter ed. 1871) (hereinafter Dwarris); T. Sedgwick, The Interpretation and Construction of Statutory and
Constitutional Law 42-45 (2d ed. 1874).3 " 'It is nothing unusual in acts ... for the enacting part to go beyond
the preamble; the remedy often extends beyond the particular act or mischief which first suggested the
necessity of the law.' " J. Bishop, Commentaries on Written Laws and Their Interpretation §51, p. 49 (1882)
(quoting Rex v. Marks, 3 East, 157, 165 (K. B. 1802)). Therefore, while we will begin our textual analysis with
the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause
is consistent with the announced purpose.4
1. Operative Clause.
a. "Right of the People." The first salient feature of the operative clause is that it codifies a "right of the
people." The unamended Constitution and the Bill of Rights use the phrase "right of the people" two other
times, in the First Amendment's Assembly-and-Petition Clause and in the Fourth Amendment's Search-and-
Seizure Clause. The Ninth Amendment uses very similar terminology ("The enumeration in the Constitution,
of certain rights, shall not be construed to deny or disparage others retained by the people"). All three of
these instances unambiguously refer to individual rights, not "collective" rights, or rights that may be
exercised only through participation in some corporate body.5
Three provisions of the Constitution refer to "the people" in a context other than "rights"--the famous
preamble ("We the people"), §2 of Article I (providing that "the people" will choose members of the House),
and the Tenth Amendment (providing that those powers not given the Federal Government remain with "the
States" or "the people"). Those provisions arguably refer to "the people" acting collectively--but they deal
with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a "right"
attributed to "the people" refer to anything other than an individual right.6
What is more, in all six other provisions of the Constitution that mention "the people," the term
unambiguously refers to all members of the political community, not an unspecified subset. As we said in
United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):
" '[T]he people' seems to have been a term of art employed in select parts of the Constitution... . [Its uses]
sugges[t] 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."
This contrasts markedly with the phrase "the militia" in the prefatory clause. As we will describe below, the
"militia" in colonial America consisted of a subset of "the people"--those who were male, able bodied, and
within a certain age range. Reading the Second Amendment as protecting only the right to "keep and bear
Arms" in an organized militia therefore fits poorly with the operative clause's description of the holder of that
right as "the people."
We start therefore with a strong presumption that the Second Amendment right is exercised individually
and belongs to all Americans.
b. "Keep and bear Arms." We move now from the holder of the right--"the people"--to the substance of the
right: "to keep and bear Arms."
Before addressing the verbs "keep" and "bear," we interpret their object: "Arms." The 18th-century
meaning is no different from the meaning today. The 1773 edition of Samuel Johnson's dictionary defined
"arms" as "weapons of offence, or armour of defence." 1 Dictionary of the English Language 107 (4th ed.)
(hereinafter Johnson). Timothy Cunningham's important 1771 legal dictionary defined "arms" as "any thing
that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." 1 A
New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English
Language (1828) (reprinted 1989) (hereinafter Webster) (similar).
The term was applied, then as now, to weapons that were not specifically designed for military use and
were not employed in a military capacity. For instance, Cunningham's legal dictionary gave as an example of
usage: "Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms." See
also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6, p. 104, in 1 First Laws of the State of
Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke, 42 Tex. 455, 458 (1874)
(citing decisions of state courts construing "arms"). Although one founding-era thesaurus limited "arms" (as
opposed to "weapons") to "instruments of offence generally made use of in war," even that source stated
that all firearms constituted "arms." 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in
the English Language 37 (1794) (emphasis added).
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th
century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as
the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union,
521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v.
United States, 533 U. S. 27, 35-36 (2001), the Second Amendment extends, prima facie, to all instruments
that constitute bearable arms, even those that were not in existence at the time of the founding.
We turn to the phrases "keep arms" and "bear arms." Johnson defined "keep" as, most relevantly, "[t]o
retain; not to lose," and "[t]o have in custody." Johnson 1095. Webster defined it as "[t]o hold; to retain in
one's power or possession." No party has apprised us of an idiomatic meaning of "keep Arms." Thus, the
most natural reading of "keep Arms" in the Second Amendment is to "have weapons."
The phrase "keep arms" was not prevalent in the written documents of the founding period that we have
found, but there are a few examples, all of which favor viewing the right to "keep Arms" as an individual right
unconnected with militia service. William Blackstone, for example, wrote that Catholics convicted of not
attending service in the Church of England suffered certain penalties, one of which was that they were not
permitted to "keep arms in their houses." 4 Commentaries on the Laws of England 55 (1769) (hereinafter
Blackstone); see also 1 W. & M., c. 15, §4, in 3 Eng. Stat. at Large 422 (1689) ("[N]o Papist ... shall or may
have or keep in his House ... any Arms ... "); 1 Hawkins, Treatise on the Pleas of the Crown 26 (1771)
(similar). Petitioners point to militia laws of the founding period that required militia members to "keep" arms
in connection with militia service, and they conclude from this that the phrase "keep Arms" has a militia-
related connotation. See Brief for Petitioners 16-17 (citing laws of Delaware, New Jersey, and Virginia). This
is rather like saying that, since there are many statutes that authorize aggrieved employees to "file
complaints" with federal agencies, the phrase "file complaints" has an employment-related connotation.
"Keep arms" was simply a common way of referring to possessing arms, for militiamen and everyone else.7
At the time of the founding, as now, to "bear" meant to "carry." See Johnson 161; Webster; T. Sheridan,
A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989)
(hereinafter Oxford). When used with "arms," however, the term has a meaning that refers to carrying for a
particular purpose--confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of
analyzing the meaning of "carries a firearm" in a federal criminal statute, Justice Ginsburg wrote that "[s]urely
a most familiar meaning is, as the Constitution's Second Amendment ... indicate[s]: 'wear, bear, or carry ...
upon the person or in the clothing or in a pocket, for the purpose ... of being armed and ready for offensive
or defensive action in a case of conflict with another person.' " Id., at 143 (dissenting opinion) (quoting
Black's Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural
meaning of "bear arms." Although the phrase implies that the carrying of the weapon is for the purpose of
"offensive or defensive action," it in no way connotes participation in a structured military organization.
From our review of founding-era sources, we conclude that this natural meaning was also the meaning
that "bear arms" had in the 18th century. In numerous instances, "bear arms" was unambiguously used to
refer to the carrying of weapons outside of an organized militia. The most prominent examples are those
most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or
the first two decades of the 19th, which enshrined a right of citizens to "bear arms in defense of themselves
and the state" or "bear arms in defense of himself and the state." 8 It is clear from those formulations that
"bear arms" did not refer only to carrying a weapon in an organized military unit. Justice James Wilson
interpreted the Pennsylvania Constitution's arms-bearing right, for example, as a recognition of the natural
right of defense "of one's person or house"--what he called the law of "self preservation." 2 Collected Works
of James Wilson 1142, and n. x (K. Hall & M. Hall eds. 2007) (citing Pa. Const., Art. IX, §21 (1790)); see also
T. Walker, Introduction to American Law 198 (1837) ("Thus the right of self-defence [is] guaranteed by the
[Ohio] constitution"); see also id., at 157 (equating Second Amendment with that provision of the Ohio
Constitution). That was also the interpretation of those state constitutional provisions adopted by pre-Civil
War state courts.9 These provisions demonstrate--again, in the most analogous linguistic context--that "bear
arms" was not limited to the carrying of arms in a militia.
The phrase "bear Arms" also had at the time of the founding an idiomatic meaning that was significantly
different from its natural meaning: "to serve as a soldier, do military service, fight" or "to wage war." See
Linguists' Brief 18; post, at 11 (Stevens, J., dissenting). But it unequivocally bore that idiomatic meaning only
when followed by the preposition "against," which was in turn followed by the target of the hostilities. See 2
Oxford 21. (That is how, for example, our Declaration of Independence ¶28, used the phrase: "He has
constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country ... .")
Every example given by petitioners' amici for the idiomatic meaning of "bear arms" from the founding period
either includes the preposition "against" or is not clearly idiomatic. See Linguists' Brief 18-23. Without the
preposition, "bear arms" normally meant (as it continues to mean today) what Justice Ginsburg's opinion in
Muscarello said.
In any event, the meaning of "bear arms" that petitioners and Justice Stevens propose is not even the
(sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby "bear arms" connotes
the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized
militia. No dictionary has ever adopted that definition, and we have been apprised of no source that
indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the
dissent are driven to the hybrid definition. Giving "bear Arms" its idiomatic meaning would cause the
protected right to consist of the right to be a soldier or to wage war--an absurdity that no commentator has
ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase "keep and bear
Arms" would be incoherent. The word "Arms" would have two different meanings at once: "weapons" (as the
object of "keep") and (as the object of "bear") one-half of an idiom. It would be rather like saying "He filled
and kicked the bucket" to mean "He filled the bucket and died." Grotesque.
Petitioners justify their limitation of "bear arms" to the military context by pointing out the unremarkable
fact that it was often used in that context--the same mistake they made with respect to "keep arms." It is
especially unremarkable that the phrase was often used in a military context in the federal legal sources
(such as records of congressional debate) that have been the focus of petitioners' inquiry. Those sources
would have had little occasion to use it except in discussions about the standing army and the militia. And
the phrases used primarily in those military discussions include not only "bear arms" but also "carry arms,"
"possess arms," and "have arms"--though no one thinks that those other phrases also had special military
meanings. See Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized
Militia?, 83 Tex. L. Rev. 237, 261 (2004). The common references to those "fit to bear arms" in
congressional discussions about the militia are matched by use of the same phrase in the few nonmilitary
federal contexts where the concept would be relevant. See, e.g., 30 Journals of Continental Congress 349-
351 (J. Fitzpatrick ed. 1934). Other legal sources frequently used "bear arms" in nonmilitary contexts.10
Cunningham's legal dictionary, cited above, gave as an example of its usage a sentence unrelated to
military affairs ("Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other
arms"). And if one looks beyond legal sources, "bear arms" was frequently used in nonmilitary contexts. See
Cramer & Olson, What Did "Bear Arms" Mean in the Second Amendment?, 6 Georgetown J. L. & Pub. Pol'y
(forthcoming Sept. 2008), online at http://papers.ssrn.com/abstract=1086176 (as visited June 24, 2008, and
available in Clerk of Court's case file) (identifying numerous nonmilitary uses of "bear arms" from the
founding period).
Justice Stevens points to a study by amici supposedly showing that the phrase "bear arms" was most
frequently used in the military context. See post, at 12-13, n. 9; Linguists' Brief 24. Of course, as we have
said, the fact that the phrase was commonly used in a particular context does not show that it is limited to
that context, and, in any event, we have given many sources where the phrase was used in nonmilitary
contexts. Moreover, the study's collection appears to include (who knows how many times) the idiomatic
phrase "bear arms against," which is irrelevant. The amici also dismiss examples such as " 'bear arms ... for
the purpose of killing game' " because those uses are "expressly qualified." Linguists' Brief 24. (Justice
Stevens uses the same excuse for dismissing the state constitutional provisions analogous to the Second
Amendment that identify private-use purposes for which the individual right can be asserted. See post, at
12.) That analysis is faulty. A purposive qualifying phrase that contradicts the word or phrase it modifies is
unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If "bear arms"
means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage ("for the
purpose of self-defense" or "to make war against the King"). But if "bear arms" means, as the petitioners and
the dissent think, the carrying of arms only for military purposes, one simply cannot add "for the purpose of
killing game." The right "to carry arms in the militia for the purpose of killing game" is worthy of the mad
hatter. Thus, these purposive qualifying phrases positively establish that "to bear arms" is not limited to
military use.11
Justice Stevens places great weight on James Madison's inclusion of a conscientious-objector clause in
his original draft of the Second Amendment: "but no person religiously scrupulous of bearing arms, shall be
compelled to render military service in person." Creating the Bill of Rights 12 (H. Veit, K. Bowling, & C.
Bickford eds. 1991) (hereinafter Veit). He argues that this clause establishes that the drafters of the Second
Amendment intended "bear Arms" to refer only to military service. See post, at 26. It is always perilous to
derive the meaning of an adopted provision from another provision deleted in the drafting process.12 In any
case, what Justice Stevens would conclude from the deleted provision does not follow. It was not meant to
exempt from military service those who objected to going to war but had no scruples about personal
gunfights. Quakers opposed the use of arms not just for militia service, but for any violent purpose
whatsoever--so much so that Quaker frontiersmen were forbidden to use arms to defend their families, even
though "[i]n such circumstances the temptation to seize a hunting rifle or knife in self-defense ... must
sometimes have been almost overwhelming." P. Brock, Pacifism in the United States 359 (1968); see M.
Hirst, The Quakers in Peace and War 336-339 (1923); 3 T. Clarkson, Portraiture of Quakerism 103-104 (3d
ed. 1807). The Pennsylvania Militia Act of 1757 exempted from service those "scrupling the use of arms"--a
phrase that no one contends had an idiomatic meaning. See 5 Stat. at Large of Pa. 613 (J. Mitchell & H.
Flanders eds. 1898) (emphasis added). Thus, the most natural interpretation of Madison's deleted text is
that those opposed to carrying weapons for potential violent confrontation would not be "compelled to
render military service," in which such carrying would be required.13
Finally, Justice Stevens suggests that "keep and bear Arms" was some sort of term of art, presumably
akin to "hue and cry" or "cease and desist." (This suggestion usefully evades the problem that there is no
evidence whatsoever to support a military reading of "keep arms.") Justice Stevens believes that the unitary
meaning of "keep and bear Arms" is established by the Second Amendment's calling it a "right" (singular)
rather than "rights" (plural). See post, at 16. There is nothing to this. State constitutions of the founding
period routinely grouped multiple (related) guarantees under a singular "right," and the First Amendment
protects the "right [singular] of the people peaceably to assemble, and to petition the Government for a
redress of grievances." See, e.g., Pa. Declaration of Rights §§IX, XII, XVI, in 5 Thorpe 3083-3084; Ohio
Const., Arts. VIII, §§11, 19 (1802), in id., at 2910-2911.14 And even if "keep and bear Arms" were a unitary
phrase, we find no evidence that it bore a military meaning. Although the phrase was not at all common
(which would be unusual for a term of art), we have found instances of its use with a clearly nonmilitary
connotation. In a 1780 debate in the House of Lords, for example, Lord Richmond described an order to
disarm private citizens (not militia members) as "a violation of the constitutional right of Protestant subjects to
keep and bear arms for their own defense." 49 The London Magazine or Gentleman's Monthly Intelligencer
467 (1780). In response, another member of Parliament referred to "the right of bearing arms for personal
defence," making clear that no special military meaning for "keep and bear arms" was intended in the
discussion. Id., at 467-468.15
c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they
guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is
strongly confirmed by the historical background of the Second Amendment. We look to this because it has
always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified
a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the
right and declares only that it "shall not be infringed." As we said in United States v. Cruikshank, 92 U. S.
542, 553 (1876), "[t]his 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 ... ."16
Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded
in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents.
See J. Malcolm, To Keep and Bear Arms 31-53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration
of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic James II
had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103-106.
These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state
and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the
Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be
disarmed: "That the subjects which are Protestants may have arms for their defense suitable to their
conditions and as allowed by law." 1 W. & M., c. 2, §7, in 3 Eng. Stat. at Large 441 (1689). This right has
long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of
Rights and What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of
America 122 (1825) (hereinafter Rawle). It was clearly an individual right, having nothing whatever to do with
service in a militia. To be sure, it was an individual right not available to the whole population, given that it
was restricted to Protestants, and like all written English rights it was held only against the Crown, not
Parliament. See Schwoerer, To Hold and Bear Arms: The English Perspective, in Bogus 207, 218; but see 3
J. Story, Commentaries on the Constitution of the United States §1858 (1833) (hereinafter Story)
(contending that the "right to bear arms" is a "limitatio[n] upon the power of parliament" as well). But it was
secured to them as individuals, according to "libertarian political principles," not as members of a fighting
force. Schwoerer, Declaration of Rights, at 283; see also id., at 78; G. Jellinek, The Declaration of the Rights
of Man and of Citizens 49, and n. 7 (1901) (reprinted 1979).
By the time of the founding, the right to have arms had become fundamental for English subjects. See
Malcolm 122-134. Blackstone, whose works, we have said, "constituted the preeminent authority on English
law for the founding generation," Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the
Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139-140 (1765). His
description of it cannot possibly be thought to tie it to militia or military service. It was, he said, "the natural
right of resistance and self-preservation," id., at 139, and "the right of having and using arms for self-
preservation and defence," id., at 140; see also 3 id., at 2-4 (1768). Other contemporary authorities
concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence,
by a Free Militia 17-18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution
886-887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59-60 (1785). Thus, the
right secured in 1689 as a result of the Stuarts' abuses was by the time of the founding understood to be an
individual right protecting against both public and private violence.
And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the
colonists. In the tumultuous decades of the 1760's and 1770's, the Crown began to disarm the inhabitants of
the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as
Englishmen to keep arms. A New York article of April 1769 said that "[i]t is a natural right which the people
have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence." A Journal
of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O.
Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel
Adams 299 (H. Cushing ed. 1968). They understood the right to enable individuals to defend themselves. As
the most important early American edition of Blackstone's Commentaries (by the law professor and former
Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans
understood the "right of self-preservation" as permitting a citizen to "repe[l] force by force" when "the
intervention of society in his behalf, may be too late to prevent an injury." 1 Blackstone's Commentaries 145-
146, n. 42 (1803) (hereinafter Tucker's Blackstone). See also W. Duer, Outlines of the Constitutional
Jurisprudence of the United States 31-32 (1833).
There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred
an individual right to keep and bear arms. Of course the right was not unlimited, just as the First
Amendment's right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus,
we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of
confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any
purpose. Before turning to limitations upon the individual right, however, we must determine whether the
prefatory clause of the Second Amendment comports with our interpretation of the operative clause.
2. Prefatory Clause.
The prefatory clause reads: "A well regulated Militia, being necessary to the security of a free State ... ."
a. "Well-Regulated Militia." In United States v. Miller, 307 U. S. 174, 179 (1939), we explained that "the
Militia comprised all males physically capable of acting in concert for the common defense." That definition
comports with founding-era sources. See, e.g., Webster ("The militia of a country are the able bodied men
organized into companies, regiments and brigades ... and required by law to attend military exercises on
certain days only, but at other times left to pursue their usual occupations"); The Federalist No. 46, pp. 329,
334 (B. Wright ed. 1961) (J. Madison) ("near half a million of citizens with arms in their hands"); Letter to
Destutt de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975) ("[T]
he militia of the State, that is to say, of every man in it able to bear arms").
Petitioners take a seemingly narrower view of the militia, stating that "[m]ilitias are the state- and
congressionally-regulated military forces described in the Militia Clauses (art. I, §8, cls. 15-16)." Brief for
Petitioners 12. Although we agree with petitioners' interpretive assumption that "militia" means the same
thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the
organized militia. Unlike armies and navies, which Congress is given the power to create ("to raise ...
Armies"; "to provide ... a Navy," Art. I, §8, cls. 12-13), the militia is assumed by Article I already to be in
existence. Congress is given the power to "provide for calling forth the militia," §8, cl. 15; and the power not
to create, but to "organiz[e]" it--and not to organize "a" militia, which is what one would expect if the militia
were to be a federal creation, but to organize "the" militia, connoting a body already in existence, ibid., cl. 16.
This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool,
Congress has plenary power to organize the units that will make up an effective fighting force. That is what
Congress did in the first militia Act, which specified 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." Act of May 8, 1792, 1 Stat. 271. To be sure, Congress need not conscript every able-bodied man
into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and
arm the militia, Congress must focus upon the entire body. Although the militia consists of all able-bodied
men, the federally organized militia may consist of a subset of them.
Finally, the adjective "well-regulated" implies nothing more than the imposition of proper discipline and
training. See Johnson 1619 ("Regulate": "To adjust by rule or method"); Rawle 121-122; cf. Va. Declaration
of Rights §13 (1776), in 7 Thorpe 3812, 3814 (referring to "a well-regulated militia, composed of the body of
the people, trained to arms").
b. "Security of a Free State." The phrase "security of a free state" meant "security of a free polity," not
security of each of the several States as the dissent below argued, see 478 F. 3d, at 405, and n. 10. Joseph
Story wrote in his treatise on the Constitution that "the word 'state' is used in various senses [and in] its most
enlarged sense, it means the people composing a particular nation or community." 1 Story §208; see also 3
id., §1890 (in reference to the Second Amendment's prefatory clause: "The militia is the natural defence of a
free country"). It is true that the term "State" elsewhere in the Constitution refers to individual States, but the
phrase "security of a free state" and close variations seem to have been terms of art in 18th-century political
discourse, meaning a " 'free country' " or free polity. See Volokh, "Necessary to the Security of a Free
State," 83 Notre Dame L. Rev. 1, 5 (2007); see, e.g., 4 Blackstone 151 (1769); Brutus Essay III (Nov. 15,
1787), in The Essential Antifederalist 251, 253 (W. Allen & G. Lloyd eds., 2d ed. 2002). Moreover, the other
instances of "state" in the Constitution are typically accompanied by modifiers making clear that the
reference is to the several States--"each state," "several states," "any state," "that state," "particular states,"
"one state," "no state." And the presence of the term "foreign state" in Article I and Article III shows that the
word "state" did not have a single meaning in the Constitution.
There are many reasons why the militia was thought to be "necessary to the security of a free state." See
3 Story §1890. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it
renders large standing armies unnecessary--an argument that Alexander Hamilton made in favor of federal
control over the militia. The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961) (A. Hamilton). Third, when
the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.
3. Relationship between Prefatory Clause and Operative Clause
We reach the question, then: Does the preface fit with an operative clause that creates an individual right
to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and
that we have described above. That history showed that the way tyrants had eliminated a militia consisting of
all the able-bodied men was not by banning the militia but simply by taking away the people's arms, enabling
a select militia or standing army to suppress political opponents. This is what had occurred in England that
prompted codification of the right to have arms in the English Bill of Rights.
The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights,
was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the
Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the
people in order to impose rule through a standing army or select militia was pervasive in Antifederalist
rhetoric. See, e.g., Letters from The Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist
234, 242 (H. Storing ed. 1981). John Smilie, for example, worried not only that Congress's "command of the
militia" could be used to create a "select militia," or to have "no militia at all," but also, as a separate concern,
that "[w]hen a select militia is formed; the people in general may be disarmed." 2 Documentary History of the
Ratification of the Constitution 508-509 (M. Jensen ed. 1976) (hereinafter Documentary Hist.). Federalists
responded that because Congress was given no power to abridge the ancient right of individuals to keep
and bear arms, such a force could never oppress the people. See, e.g., A Pennsylvanian III (Feb. 20, 1788),
in The Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed. 2001) (hereinafter Young); White,
To the Citizens of Virginia, Feb. 22, 1788, in id., at 280, 281; A Citizen of America, (Oct. 10, 1787) in id., at
38, 40; Remarks on the Amendments to the federal Constitution, Nov. 7, 1788, in id., at 556. It was
understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which
might be necessary to oppose an oppressive military force if the constitutional order broke down.
It is therefore entirely sensible that the Second Amendment's prefatory clause announces the purpose for
which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that
preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it
even more important for self-defense and hunting. But the threat that the new Federal Government would
destroy the citizens' militia by taking away their arms was the reason that right--unlike some other English
rights--was codified in a written Constitution. Justice Breyer's assertion that individual self-defense is merely
a "subsidiary interest" of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases
that assertion solely upon the prologue--but that can only show that self-defense had little to do with the
right's codification; it was the central component of the right itself.
Besides ignoring the historical reality that the Second Amendment was not intended to lay down a "novel
principl[e]" but rather codified a right "inherited from our English ancestors," Robertson v. Baldwin, 165 U. S.
275, 281 (1897), petitioners' interpretation does not even achieve the narrower purpose that prompted
codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep
and use weapons as a member of an organized militia, see Brief for Petititioners 8--if, that is, the organized
militia is the sole institutional beneficiary of the Second Amendment's guarantee--it does not assure the
existence of a "citizens' militia" as a safeguard against tyranny. For Congress retains plenary authority to
organize the militia, which must include the authority to say who will belong to the organized force.17 That is
why the first Militia Act's requirement that only whites enroll caused States to amend their militia laws to
exclude free blacks. See Siegel, The Federal Government's Power to Enact Color-Conscious Laws, 92 Nw.
U. L. Rev. 477, 521-525 (1998). Thus, if petitioners are correct, the Second Amendment protects citizens'
right to use a gun in an organization from which Congress has plenary authority to exclude them. It
guarantees a select militia of the sort the Stuart kings found useful, but not the people's militia that was the
concern of the founding generation.
B
Our interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and
immediately followed adoption of the Second Amendment. Four States adopted analogues to the Federal
Second Amendment in the period between independence and the ratification of the Bill of Rights. Two of
them--Pennsylvania and Vermont--clearly adopted individual rights unconnected to militia service.
Pennsylvania's Declaration of Rights of 1776 said: "That the people have a right to bear arms for the
defence of themselves, and the state ... ." §XIII, in 5 Thorpe 3082, 3083 (emphasis added). In 1777, Vermont
adopted the identical provision, except for inconsequential differences in punctuation and capitalization. See
Vt. Const., ch. 1, §15, in 6 id., at 3741.
North Carolina also codified a right to bear arms in 1776: "That the people have a right to bear arms, for
the defence of the State ... ." Declaration of Rights §XVII, in id., at 2787, 2788. This could plausibly be read
to support only a right to bear arms in a militia--but that is a peculiar way to make the point in a constitution
that elsewhere repeatedly mentions the militia explicitly. See §§14, 18, 35, in 5 id., 2789, 2791, 2793. Many
colonial statutes required individual arms-bearing for public-safety reasons--such as the 1770 Georgia law
that "for the security and defence of this province from internal dangers and insurrections" required those
men who qualified for militia duty individually "to carry fire arms" "to places of public worship." 19 Colonial
Records of the State of Georgia 137-139 (A. Candler ed. 1911 (pt. 2)) (emphasis added). That broad public-
safety understanding was the connotation given to the North Carolina right by that State's Supreme Court in
1843. See State v. Huntly, 3 Ired. 418, 422-423.
The 1780 Massachusetts Constitution presented another variation on the theme: "The people have a
right to keep and to bear arms for the common defence... ." Pt. First, Art. XVII, in 3 Thorpe 1888, 1892. Once
again, if one gives narrow meaning to the phrase "common defence" this can be thought to limit the right to
the bearing of arms in a state-organized military force. But once again the State's highest court thought
otherwise. Writing for the court in an 1825 libel case, Chief Justice Parker wrote: "The liberty of the press
was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep
fire arms, which does not protect him who uses them for annoyance or destruction." Commonwealth v.
Blanding, 20 Mass. 304, 313-314. The analogy makes no sense if firearms could not be used for any
individual purpose at all. See also Kates, Handgun Prohibition and the Original Meaning of the Second
Amendment, 82 Mich. L. Rev. 204, 244 (1983) (19th-century courts never read "common defence" to limit
the use of weapons to militia service).
We therefore believe that the most likely reading of all four of these pre-Second Amendment state
constitutional provisions is that they secured an individual right to bear arms for defensive purposes. Other
States did not include rights to bear arms in their pre-1789 constitutions--although in Virginia a Second
Amendment analogue was proposed (unsuccessfully) by Thomas Jefferson. (It read: "No freeman shall ever
be debarred the use of arms [within his own lands or tenements]."18 1 The Papers of Thomas Jefferson 344
(J. Boyd ed. 1950)).
Between 1789 and 1820, nine States adopted Second Amendment analogues. Four of them--Kentucky,
Ohio, Indiana, and Missouri--referred to the right of the people to "bear arms in defence of themselves and
the State." See n. 8, supra. Another three States--Mississippi, Connecticut, and Alabama--used the even
more individualistic phrasing that each citizen has the "right to bear arms in defence of himself and the
State." See ibid. Finally, two States--Tennessee and Maine--used the "common defence" language of
Massachusetts. See Tenn. Const., Art. XI, §26 (1796), in 6 Thorpe 3414, 3424; Me. Const., Art. I, §16
(1819), in 3 id., at 1646, 1648. That of the nine state constitutional protections for the right to bear arms
enacted immediately after 1789 at least seven unequivocally protected an individual citizen's right to self-
defense is strong evidence that that is how the founding generation conceived of the right. And with one
possible exception that we discuss in Part II-D-2, 19th-century courts and commentators interpreted these
state constitutional provisions to protect an individual right to use arms for self-defense. See n. 9, supra;
Simpson v. State, 5 Yer. 356, 360 (Tenn. 1833).
The historical narrative that petitioners must endorse would thus treat the Federal Second Amendment as
an odd outlier, protecting a right unknown in state constitutions or at English common law, based on little
more than an overreading of the prefatory clause.
C
Justice Stevens relies on the drafting history of the Second Amendment--the various proposals in the
state conventions and the debates in Congress. It is dubious to rely on such history to interpret a text that
was widely understood to codify a pre-existing right, rather than to fashion a new one. But even assuming
that this legislative history is relevant, Justice Stevens flatly misreads the historical record.
It is true, as Justice Stevens says, that there was concern that the Federal Government would abolish the
institution of the state militia. See post, at 20. That concern found expression, however, not in the various
Second Amendment precursors proposed in the State conventions, but in separate structural provisions that
would have given the States concurrent and seemingly nonpre-emptible authority to organize, discipline, and
arm the militia when the Federal Government failed to do so. See Veit 17, 20 (Virginia proposal); 4 J. Eliot,
The Debates in the Several State Conventions on the Adoption of the Federal Constitution 244, 245 (2d ed.
1836) (reprinted 1941) (North Carolina proposal); see also 2 Documentary Hist. 624 (Pennsylvania
minority's proposal). The Second Amendment precursors, by contrast, referred to the individual English right
already codified in two (and probably four) State constitutions. The Federalist-dominated first Congress
chose to reject virtually all major structural revisions favored by the Antifederalists, including the proposed
militia amendments. Rather, it adopted primarily the popular and uncontroversial (though, in the Federalists'
view, unnecessary) individual-rights amendments. The Second Amendment right, protecting only individuals'
liberty to keep and carry arms, did nothing to assuage Antifederalists' concerns about federal control of the
militia. See, e.g., Centinel, Revived, No. XXIX, Philadelphia Independent Gazetteer, Sept. 9, 1789, in Young
711, 712.
Justice Stevens thinks it significant that the Virginia, New York, and North Carolina Second Amendment
proposals were "embedded ... within a group of principles that are distinctly military in meaning," such as
statements about the danger of standing armies. Post, at 22. But so was the highly influential minority
proposal in Pennsylvania, yet that proposal, with its reference to hunting, plainly referred to an individual
right. See 2 Documentary Hist. 624. Other than that erroneous point, Justice Stevens has brought forward
absolutely no evidence that those proposals conferred only a right to carry arms in a militia. By contrast,
New Hampshire's proposal, the Pennsylvania minority's proposal, and Samuel Adams' proposal in
Massachusetts unequivocally referred to individual rights, as did two state constitutional provisions at the
time. See Veit 16, 17 (New Hampshire proposal); 6 Documentary Hist. 1452, 1453 (J. Kaminski & G. Saladino
eds. 2000) (Samuel Adams' proposal). Justice Stevens' view thus relies on the proposition, unsupported by
any evidence, that different people of the founding period had vastly different conceptions of the right to
keep and bear arms. That simply does not comport with our longstanding view that the Bill of Rights codified
venerable, widely understood liberties.
D
We now address how the Second Amendment was interpreted from immediately after its ratification
through the end of the 19th century. Before proceeding, however, we take issue with Justice Stevens'
equating of these sources with postenactment legislative history, a comparison that betrays a fundamental
misunderstanding of a court's interpretive task. See post, at 27, n. 28. "Legislative history," of course, refers
to the pre-enactment statements of those who drafted or voted for a law; it is considered persuasive by
some, not because they reflect the general understanding of the disputed terms, but because the legislators
who heard or read those statements presumably voted with that understanding. Ibid. "Postenactment
legislative history," ibid., a deprecatory contradiction in terms, refers to statements of those who drafted or
voted for the law that are made after its enactment and hence could have had no effect on the
congressional vote. It most certainly does not refer to the examination of a variety of legal and other sources
to determine the public understanding of a legal text in the period after its enactment or ratification. That sort
of inquiry is a critical tool of constitutional interpretation. As we will show, virtually all interpreters of the
Second Amendment in the century after its enactment interpreted the amendment as we do.
1. Post-ratification Commentary
Three important founding-era legal scholars interpreted the Second Amendment in published writings. All
three understood it to protect an individual right unconnected with militia service.
St. George Tucker's version of Blackstone's Commentaries, as we explained above, conceived of the
Blackstonian arms right as necessary for self-defense. He equated that right, absent the religious and class-
based restrictions, with the Second Amendment. See 2 Tucker's Blackstone 143. In Note D, entitled, "View of
the Constitution of the United States," Tucker elaborated on the Second Amendment: "This may be
considered as the true palladium of liberty ... . The right to self-defence is the first law of nature: in most
governments it has been the study of rulers to confine the right within the narrowest 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." 1
id., at App. 300 (ellipsis in original). He believed that the English game laws had abridged the right by
prohibiting "keeping a gun or other engine for the destruction of game." Ibid; see also 2 id., at 143, and nn.
40 and 41. He later grouped the right with some of the individual rights included in the First Amendment and
said that if "a law be passed by congress, prohibiting" any of those rights, it would "be the province of the
judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused ...
." 1 id., at App. 357. It is unlikely that Tucker was referring to a person's being "accused" of violating a law
making it a crime to bear arms in a state militia.19
In 1825, William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that
ratified the Bill of Rights, published an influential treatise, which analyzed the Second Amendment as follows:
"The first [principle] is a declaration that a well regulated militia is necessary to the security of a free state;
a proposition from which few will dissent... .
"The corollary, from the first position is, that the right of the people to keep and bear arms shall not be
infringed.
"The prohibition is general. No clause in the constitution could by any rule of construction be conceived to
give to congress a power to disarm the people. Such a flagitious attempt could only be made under some
general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt
it, this amendment may be appealed to as a restraint on both." Rawle 121-122.20
Like Tucker, Rawle regarded the English game laws as violating the right codified in the Second
Amendment. See id., 122-123. Rawle clearly differentiated between the people's right to bear arms and their
service in a militia: "In a people permitted and accustomed to bear arms, we have the rudiments of a militia,
which properly consists of armed citizens, divided into military bands, and instructed at least in part, in the
use of arms for the purposes of war." Id., at 140. Rawle further said that the Second Amendment right ought
not "be abused to the disturbance of the public peace," such as by assembling with other armed individuals
"for an unlawful purpose"--statements that make no sense if the right does not extend to any individual
purpose.
Joseph Story published his famous Commentaries on the Constitution of the United States in 1833.
Justice Stevens suggests that "[t]here is not so much as a whisper" in Story's explanation of the Second
Amendment that favors the individual-rights view. Post, at 34. That is wrong. Story explained that the English
Bill of Rights had also included a "right to bear arms," a right that, as we have discussed, had nothing to do
with militia service. 3 Story §1858. He then equated the English right with the Second Amendment:
"§1891. A similar provision [to the Second Amendment] in favour of protestants (for to them it is confined)
is to be found in the bill of rights of 1688, it being declared, 'that the subjects, which are protestants, may
have arms for their defence suitable to their condition, and as allowed by law.' But under various pretences
the effect of this provision has been greatly narrowed; and it is at present in England more nominal than
real, as a defensive privilege." (Footnotes omitted.)
This comparison to the Declaration of Right would not make sense if the Second Amendment right was
the right to use a gun in a militia, which was plainly not what the English right protected. As the Tennessee
Supreme Court recognized 38 years after Story wrote his Commentaries, "[t]he passage from Story, shows
clearly that this right was intended ... and was guaranteed to, and to be exercised and enjoyed by the citizen
as such, and not by him as a soldier, or in defense solely of his political rights." Andrews v. State, 50 Tenn.
165, 183 (1871). Story's Commentaries also cite as support Tucker and Rawle, both of whom clearly viewed
the right as unconnected to militia service. See 3 Story §1890, n. 2; §1891, n. 3. In addition, in a shorter
1840 work Story wrote: "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." A Familiar Exposition of the Constitution of the United States
§450 (reprinted in 1986).
Antislavery advocates routinely invoked the right to bear arms for self-defense. Joel Tiffany, for example,
citing Blackstone's description of the right, wrote that "the right to keep and bear arms, also implies the right
to use them if necessary in self defence; without this right to use the guaranty would have hardly been worth
the paper it consumed." A Treatise on the Unconstitutionality of American Slavery 117-118 (1849); see also
L. Spooner, The Unconstitutionality of Slavery 116 (1845) (right enables "personal defence"). In his famous
Senate speech about the 1856 "Bleeding Kansas" conflict, Charles Sumner proclaimed:
"The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red
man and the beast of the forest. Never was this efficient weapon more needed in just self-defence, than now
in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right
to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn
guarantee, embodied in the Amendments to the Constitution, that 'the right of the people to keep and bear
arms shall not be infringed,' the people of Kansas have been arraigned for keeping and bearing them, and
the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmed--
of course, that the fanatics of Slavery, his allies and constituents, may meet no impediment." The Crime
Against Kansas, May 19-20, 1856, in American Speeches: Political Oratory from the Revolution to the Civil
War 553, 606-607 (2006).
We have found only one early 19th-century commentator who clearly conditioned the right to keep and
bear arms upon service in the militia--and he recognized that the prevailing view was to the contrary. "The
provision of the constitution, declaring the right of the people to keep and bear arms, &c. was probably
intended to apply to the right of the people to bear arms for such [militia-related] purposes only, and not to
prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from
always going armed. A different construction however has been given to it." B. Oliver, The Rights of an
American Citizen 177 (1832).
2. Pre-Civil War Case Law
The 19th-century cases that interpreted the Second Amendment universally support an individual right
unconnected to militia service. In Houston v. Moore, 5 Wheat. 1, 24 (1820), this Court held that States have
concurrent power over the militia, at least where not pre-empted by Congress. Agreeing in dissent that
States could "organize, discipline, and arm" the militia in the absence of conflicting federal regulation, Justice
Story said that the Second Amendment "may not, perhaps, be thought to have any important bearing on this
point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested." Id., at 51-
53. Of course, if the Amendment simply "protect[ed] the right of the people of each of the several States to
maintain a well-regulated militia," post, at 1 (Stevens, J., dissenting), it would have enormous and obvious
bearing on the point. But the Court and Story derived the States' power over the militia from the
nonexclusive nature of federal power, not from the Second Amendment, whose preamble merely "confirms
and illustrates" the importance of the militia. Even clearer was Justice Baldwin. In the famous fugitive-slave
case of Johnson v. Tompkins, 13 F. Cas. 840, 850, 852 (CC Pa. 1833), Baldwin, sitting as a circuit judge,
cited both the Second Amendment and the Pennsylvania analogue for his conclusion that a citizen has "a
right to carry arms in defence of his property or person, and to use them, if either were assailed with such
force, numbers or violence as made it necessary for the protection or safety of either."
Many early 19th-century state cases indicated that the Second Amendment right to bear arms was an
individual right unconnected to militia service, though subject to certain restrictions. A Virginia case in 1824
holding that the Constitution did not extend to free blacks explained that "numerous restrictions imposed on
[blacks] in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both
of this State and of the United States as respects the free whites, demonstrate, that, here, those instruments
have not been considered to extend equally to both classes of our population. We will only instance the
restriction upon the migration of free blacks into this State, and upon their right to bear arms." Aldridge v.
Commonwealth, 2 Va. Cas. 447, 449 (Gen. Ct.). The claim was obviously not that blacks were prevented
from carrying guns in the militia.21 See also Waters v. State, 1 Gill 302, 309 (Md. 1843) (because free
blacks were treated as a "dangerous population," "laws have been passed to prevent their migration into this
State; to make it unlawful for them to bear arms; to guard even their religious assemblages with peculiar
watchfulness"). An 1829 decision by the Supreme Court of Michigan said: "The constitution of the United
States also grants to the citizen the right to keep and bear arms. But the grant of this privilege cannot be
construed into the right in him who keeps a gun to destroy his neighbor. No rights are intended to be
granted by the constitution for an unlawful or unjustifiable purpose." United States v. Sheldon, in 5
Transactions of the Supreme Court of the Territory of Michigan 337, 346 (W. Blume ed. 1940) (hereinafter
Blume). It is not possible to read this as discussing anything other than an individual right unconnected to
militia service. If it did have to do with militia service, the limitation upon it would not be any "unlawful or
unjustifiable purpose," but any nonmilitary purpose whatsoever.
In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment
as protecting the "natural right of self-defence" and therefore struck down a ban on carrying pistols openly.
Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the
purpose announced in the prefatory clause, in continuity with the English right:
"The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear
arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or
broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and
qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any
law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally
belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-
established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally
incorporated conspicuously in our own Magna Charta!"
Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that
citizens had a right to carry arms openly: "This is the right guaranteed by the Constitution of the United
States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and
of their country, without any tendency to secret advantages and unmanly assassinations."
Those who believe that the Second Amendment preserves only a militia-centered right place great
reliance on the Tennessee Supreme Court's 1840 decision in Aymette v. State, 21 Tenn. 154. The case
does not stand for that broad proposition; in fact, the case does not mention the word "militia" at all, except
in its quoting of the Second Amendment. Aymette held that the state constitutional guarantee of the right to
"bear" arms did not prohibit the banning of concealed weapons. The opinion first recognized that both the
state right and the federal right were descendents of the 1689 English right, but (erroneously, and contrary
to virtually all other authorities) read that right to refer only to "protect[ion of] the public liberty" and "keep
[ing] in awe those in power," id., at 158. The court then adopted a sort of middle position, whereby citizens
were permitted to carry arms openly, unconnected with any service in a formal militia, but were given the
right to use them only for the military purpose of banding together to oppose tyranny. This odd reading of
the right is, to be sure, not the one we adopt--but it is not petitioners' reading either. More importantly, seven
years earlier the Tennessee Supreme Court had treated the state constitutional provision as conferring a
right "of all the free citizens of the State to keep and bear arms for their defence," Simpson, 5 Yer., at 360;
and 21 years later the court held that the "keep" portion of the state constitutional right included the right to
personal self-defense: "[T]he right to keep arms involves, necessarily, the right to use such arms for all the
ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted,
limited by the duties of a good citizen in times of peace." Andrews, 50 Tenn., at 178; see also ibid. (equating
state provision with Second Amendment).
3. Post-Civil War Legislation.
In the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in
Congress and in public discourse, as people debated whether and how to secure constitutional rights for
newly free slaves. See generally S. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear
Arms, 1866-1876 (1998) (hereinafter Halbrook); Brief for Institute for Justice as Amicus Curiae. Since those
discussions took place 75 years after the ratification of the Second Amendment, they do not provide as
much insight into its original meaning as earlier sources. Yet those born and educated in the early 19th
century faced a widespread effort to limit arms ownership by a large number of citizens; their understanding
of the origins and continuing significance of the Amendment is instructive.
Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these
injustices frequently stated that they infringed blacks' constitutional right to keep and bear arms. Needless to
say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia. A
Report of the Commission of the Freedmen's Bureau in 1866 stated plainly: "[T]he civil law [of Kentucky]
prohibits the colored man from bearing arms. . . . Their arms are taken from them by the civil authorities... .
Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed." H. R. Exec.
Doc. No. 70, 39th Cong., 1st Sess., 233, 236. A joint congressional Report decried:
"in some parts of [South Carolina], armed parties are, without proper authority, engaged in seizing all fire-
arms found in the hands of the freemen. Such conduct is in clear and direct violation of their personal rights
as guaranteed by the Constitution of the United States, which declares that 'the right of the people to keep
and bear arms shall not be infringed.' The freedmen of South Carolina have shown by their peaceful and
orderly conduct that they can safely be trusted with fire-arms, and they need them to kill game for
subsistence, and to protect their crops from destruction by birds and animals." Joint Comm. on
Reconstruction, H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 229 (1866) (Proposed Circular of
Brigadier General R. Saxton).
The view expressed in these statements was widely reported and was apparently widely held. For
example, an editorial in The Loyal Georgian (Augusta) on February 3, 1866, assured blacks that "[a]ll men,
without distinction of color, have the right to keep and bear arms to defend their homes, families or
themselves." Halbrook 19.
Congress enacted the Freedmen's Bureau Act on July 16, 1866. Section 14 stated:
"[T]he right ... to have full and equal benefit of all laws and proceedings concerning personal liberty,
personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the
constitutional right to bear arms, shall be secured to and enjoyed by all the citizens ... without respect to
race or color, or previous condition of slavery... . " 14 Stat. 176-177.
The understanding that the Second Amendment gave freed blacks the right to keep and bear arms was
reflected in congressional discussion of the bill, with even an opponent of it saying that the founding
generation "were for every man bearing his arms about him and keeping them in his house, his castle, for
his own defense." Cong. Globe, 39th Cong., 1st Sess., 362, 371 (1866) (Sen. Davis).
Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth Amendment.
For example, Representative Butler said of the Act: "Section eight is intended to enforce the well-known
constitutional provision guaranteeing the right of the citizen to 'keep and bear arms,' and provides that
whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which
any person may have for his defense, shall be deemed guilty of larceny of the same." H. R. Rep. No. 37,
41st Cong., 3d Sess., pp. 7-8 (1871). With respect to the proposed Amendment, Senator Pomeroy
described as one of the three "indispensable" "safeguards of liberty ... under the Constitution" a man's "right
to bear arms for the defense of himself and family and his homestead." Cong. Globe, 39th Cong., 1st Sess.,
1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because "[a]s citizens of
the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense." Id., at
1073 (1866).
It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an
individual right to use arms for self-defense.
4. Post-Civil War Commentators.
Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an
individual right unconnected with militia service. The most famous was the judge and professor Thomas
Cooley, who wrote a massively popular 1868 Treatise on Constitutional Limitations. Concerning the Second
Amendment it said:
"Among the other defences to personal liberty should be mentioned the right of the people to keep and
bear arms... . The alternative to a standing army is 'a well-regulated militia,' but this cannot exist unless the
people are trained to bearing arms. How far it is in the power of the legislature to regulate this right, we shall
not undertake to say, as happily there has been very little occasion to discuss that subject by the courts."
Id., at 350.
That Cooley understood the right not as connected to militia service, but as securing the militia by ensuring
a populace familiar with arms, is made even clearer in his 1880 work, General Principles of Constitutional
Law. The Second Amendment, he said, "was adopted with some modification and enlargement from the
English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty
in disarming the people." Id., at 270. In a section entitled "The Right in General," he continued:
"It might be supposed from the phraseology of this provision that the right to keep and bear arms was only
guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has
been elsewhere explained, consists of those persons who, under the law, are liable to the performance of
military duty, and are officered and enrolled for service when called upon. But the law may make provision
for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to
make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might
be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The
meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the
right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this
enables government to have a well-regulated militia; for to bear arms implies something more than the mere
keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for
their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in
doing so the laws of public order." Id., at 271.
All other post-Civil War 19th-century sources we have found concurred with Cooley. One example from
each decade will convey the general flavor:
"[The purpose of the Second Amendment is] to secure a well-armed militia... . But a militia would be useless
unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this
privilege, and to secure to the people the ability to oppose themselves in military force against the
usurpations of government, as well as against enemies from without, that government is forbidden by any
law or proceeding to invade or destroy the right to keep and bear arms... . The clause is analogous to the
one securing the freedom of speech and of the press. Freedom, not license, is secured; the fair use, not the
libellous abuse, is protected." J. Pomeroy, An Introduction to the Constitutional Law of the United States 152-
153 (1868) (hereinafter Pomeroy).
"As the Constitution of the United States, and the constitutions of several of the states, in terms more or less
comprehensive, declare the right of the people to keep and bear arms, it has been a subject of grave
discussion, in some of the state courts, whether a statute prohibiting persons, when not on a journey, or as
travellers, from wearing or carrying concealed weapons, be constitutional. There has been a great
difference of opinion on the question." 2 J. Kent, Commentaries on American Law *340, n. 2 (O. Holmes ed.,
12th ed. 1873) (hereinafter Kent).
"Some general knowledge of firearms is important to the public welfare; because it would be impossible, in
case of war, to organize promptly an efficient force of volunteers unless the people had some familiarity with
weapons of war. The Constitution secures the right of the people to keep and bear arms. No doubt, a citizen
who keeps a gun or pistol under judicious precautions, practices in safe places the use of it, and in due time
teaches his sons to do the same, exercises his individual right. No doubt, a person whose residence or
duties involve peculiar peril may keep a pistol for prudent self-defence." B. Abbott, Judge and Jury: A
Popular Explanation of the Leading Topics in the Law of the Land 333 (1880) (hereinafter Abbott).
"The right to bear arms has always been the distinctive privilege of freemen. Aside from any necessity of
self-protection to the person, it represents among all nations power coupled with the exercise of a certain
jurisdiction. ... [I]t was not necessary that the right to bear arms should be granted in the Constitution, for it
had always existed." J. Ordronaux, Constitutional Legislation in the United States 241-242 (1891).
E
We now ask whether any of our precedents forecloses the conclusions we have reached about the
meaning of the Second Amendment.
United States v. Cruikshank, 92 U. S. 542, in the course of vacating the convictions of members of a white
mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by
its own force apply to anyone other than the Federal Government. The opinion explained that the right "is
not a right granted by the Constitution [or] in any manner dependent upon that instrument for its existence.
The second amendment ... means no more than that it shall not be infringed by Congress." 92 U. S., at 553.
States, we said, were free to restrict or protect the right under their police powers. The limited discussion of
the Second Amendment in Cruikshank supports, if anything, the individual-rights interpretation. There was
no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the
Governor had disbanded the local militia unit the year before the mob's attack, see C. Lane, The Day
Freedom Died 62 (2008). We described the right protected by the Second Amendment as " 'bearing arms
for a lawful purpose' "22 and said that "the people [must] look for their protection against any violation by
their fellow-citizens of the rights it recognizes" to the States' police power. 92 U. S., at 553. That discussion
makes little sense if it is only a right to bear arms in a state militia.23
Presser v. Illinois, 116 U. S. 252 (1886), held that the right to keep and bear arms was not violated by a
law that forbade "bodies of men to associate together as military organizations, or to drill or parade with
arms in cities and towns unless authorized by law." Id., at 264-265. This does not refute the individual-rights
interpretation of the Amendment; no one supporting that interpretation has contended that States may not
ban such groups. Justice Stevens presses Presser into service to support his view that the right to bear
arms is limited to service in the militia by joining Presser's brief discussion of the Second Amendment with a
later portion of the opinion making the seemingly relevant (to the Second Amendment) point that the plaintiff
was not a member of the state militia. Unfortunately for Justice Stevens' argument, that later portion deals
with the Fourteenth Amendment; it was the Fourteenth Amendment to which the plaintiff's nonmembership in
the militia was relevant. Thus, Justice Stevens' statement that Presser "suggested that... nothing in the
Constitution protected the use of arms outside the context of a militia," post, at 40, is simply wrong. Presser
said nothing about the Second Amendment's meaning or scope, beyond the fact that it does not prevent the
prohibition of private paramilitary organizations.
Justice Stevens places overwhelming reliance upon this Court's decision in United States v. Miller, 307 U.
S. 174 (1939). "[H]undreds of judges," we are told, "have relied on the view of the amendment we endorsed
there," post, at 2, and "[e]ven if the textual and historical arguments on both side of the issue were evenly
balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law
itself ... would prevent most jurists from endorsing such a dramatic upheaval in the law," post, at 4. And what
is, according to Justice Stevens, the holding of Miller that demands such obeisance? That the Second
Amendment "protects the right to keep and bear arms for certain military purposes, but that it does not
curtail the legislature's power to regulate the nonmilitary use and ownership of weapons." Post, at 2.
Nothing so clearly demonstrates the weakness of Justice Stevens' case. Miller did not hold that and
cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment
challenge two men's federal convictions for transporting an unregistered short-barreled shotgun in interstate
commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court's basis
for saying that the Second Amendment did not apply was not that the defendants were "bear[ing] arms" not
"for ... military purposes" but for "nonmilitary use," post, at 2. Rather, it was that the type of weapon at issue
was not eligible for Second Amendment protection: "In the absence of any evidence tending to show that the
possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the
preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees
the right to keep and bear such an instrument." 307 U. S., at 178 (emphasis added). "Certainly," the Court
continued, "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." Ibid. Beyond that, the opinion provided no explanation
of the content of the right.
This holding is not only consistent with, but positively suggests, that the Second Amendment confers an
individual right to keep and bear arms (though only arms that "have some reasonable relationship to the
preservation or efficiency of a well regulated militia"). Had the Court believed that the Second Amendment
protects only those serving in the militia, it would have been odd to examine the character of the weapon
rather than simply note that the two crooks were not militiamen. Justice Stevens can say again and again
that Miller did "not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the
basic difference between the military and nonmilitary use and possession of guns," post, at 42-43, but the
words of the opinion prove otherwise. The most Justice Stevens can plausibly claim for Miller is that it
declined to decide the nature of the Second Amendment right, despite the Solicitor General's argument
(made in the alternative) that the right was collective, see Brief for United States, O. T. 1938, No. 696, pp. 4-
5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only
to certain types of weapons.
It is particularly wrongheaded to read Miller for more than what it said, because the case did not even
purport to be a thorough examination of the Second Amendment. Justice Stevens claims, post, at 42, that
the opinion reached its conclusion "[a]fter reviewing many of the same sources that are discussed at greater
length by the Court today." Not many, which was not entirely the Court's fault. The respondent made no
appearance in the case, neither filing a brief nor appearing at oral argument; the Court heard from no one
but the Government (reason enough, one would think, not to make that case the beginning and the end of
this Court's consideration of the Second Amendment). See Frye, The Peculiar Story of United States v.
Miller, 3 N. Y. U. J. L. & Liberty 48, 65-68 (2008). The Government's brief spent two pages discussing
English legal sources, concluding "that at least the carrying of weapons without lawful occasion or excuse
was always a crime" and that (because of the class-based restrictions and the prohibition on terrorizing
people with dangerous or unusual weapons) "the early English law did not guarantee an unrestricted right to
bear arms." Brief for United States, O. T. 1938, No. 696, at 9-11. It then went on to rely primarily on the
discussion of the English right to bear arms in Aymette v. State, 21 Tenn. 154, for the proposition that the
only uses of arms protected by the Second Amendment are those that relate to the militia, not self-defense.
See Brief for United States, O. T. 1938, No. 696, at 12-18. The final section of the brief recognized that
"some courts have said that the right to bear arms includes the right of the individual to have them for the
protection of his person and property," and launched an alternative argument that "weapons which are
commonly used by criminals," such as sawed-off shotguns, are not protected. See id., at 18-21. The
Government's Miller brief thus provided scant discussion of the history of the Second Amendment--and the
Court was presented with no counterdiscussion. As for the text of the Court's opinion itself, that discusses
none of the history of the Second Amendment. It assumes from the prologue that the Amendment was
designed to preserve the militia, 307 U. S., at 178 (which we do not dispute), and then reviews some
historical materials dealing with the nature of the militia, and in particular with the nature of the arms their
members were expected to possess, id., at 178-182. Not a word (not a word) about the history of the Second
Amendment. This is the mighty rock upon which the dissent rests its case.24
We may as well consider at this point (for we will have to consider eventually) what types of weapons
Miller permits. Read in isolation, Miller's phrase "part of ordinary military equipment" could mean that only
those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it
would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be
unconstitutional, machineguns being useful in warfare in 1939. We think that Miller's "ordinary military
equipment" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia]
service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in
common use at the time." 307 U. S., at 179. The traditional militia was formed from a pool of men bringing
arms "in common use at the time" for lawful purposes like self-defense. "In the colonial and revolutionary war
era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one
and the same." State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords
and Blades of the American Revolution 6-15, 252-254 (1973)). Indeed, that is precisely the way in which the
Second Amendment's operative clause furthers the purpose announced in its preface. We therefore read
Miller to say only that the Second Amendment does not protect those weapons not typically possessed by
law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical
understanding of the scope of the right, see Part III, infra.25
We conclude that nothing in our precedents forecloses our adoption of the original understanding of the
Second Amendment. It should be unsurprising that such a significant matter has been for so long judicially
unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the
Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other
provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods. This Court first held
a law to violate the First Amendment's guarantee of freedom of speech in 1931, almost 150 years after the
Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and it was not until after
World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. McCollum v. Board
of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203 (1948). Even a question as basic as the scope
of proscribable libel was not addressed by this Court until 1964, nearly two centuries after the founding. See
New York Times Co. v. Sullivan, 376 U. S. 254 (1964). It is demonstrably not true that, as Justice Stevens
claims, post, at 41-42, "for most of our history, the invalidity of Second-Amendment-based objections to
firearms regulations has been well settled and uncontroversial." For most of our history the question did not
present itself.
III
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep
and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon,
in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century
courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the
Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State,
1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students' Blackstone 84, n. 11 (G. Chase ed.
1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second
Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings, or laws imposing conditions and qualifications on the
commercial sale of arms.26
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we
have explained, that the sorts of weapons protected were those "in common use at the time." 307 U. S., at
179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of
"dangerous and unusual weapons." See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the
Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A
Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and
Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An
Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law
of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383-384 (1824); O'Neill v. State,
16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).
It may be objected that if weapons that are most useful in military service--M-16 rifles and the like--may be
banned, then the Second Amendment right is completely detached from the prefatory clause. But as we
have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all
citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home
to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would
require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount
of small arms could be useful against modern-day bombers and tanks. But the fact that modern
developments have limited the degree of fit between the prefatory clause and the protected right cannot
change our interpretation of the right.
IV
We turn finally to the law at issue here. As we have said, the law totally bans handgun possession in the
home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all
times, rendering it inoperable.
As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central
to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of "arms" that
is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to
the home, where the need for defense of self, family, and property is most acute. Under any of the
standards of scrutiny that we have applied to enumerated constitutional rights,27 banning from the home
"the most preferred firearm in the nation to 'keep' and use for protection of one's home and family," 478 F.
3d, at 400, would fail constitutional muster.
Few laws in the history of our Nation have come close to the severe restriction of the District's handgun
ban. And some of those few have been struck down. In Nunn v. State, the Georgia Supreme Court struck
down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed
weapons). See 1 Ga., at 251. In Andrews v. State, the Tennessee Supreme Court likewise held that a
statute that forbade openly carrying a pistol "publicly or privately, without regard to time or place, or
circumstances," 50 Tenn., at 187, violated the state constitutional provision (which the court equated with
the Second Amendment). That was so even though the statute did not restrict the carrying of long guns.
Ibid. See also State v. Reid, 1 Ala. 612, 616-617 (1840) ("A statute which, under the pretence of regulating,
amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly
useless for the purpose of defence, would be clearly unconstitutional").
It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long
as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed,
that the American people have considered the handgun to be the quintessential self-defense weapon.
There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a
location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an
attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be
pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns
are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition
of their use is invalid.
We must also address the District's requirement (as applied to respondent's handgun) that firearms in the
home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the
core lawful purpose of self-defense and is hence unconstitutional. The District argues that we should
interpret this element of the statute to contain an exception for self-defense. See Brief for Petitioners 56-57.
But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated
exceptions: "Except for law enforcement personnel ... , each registrant shall keep any firearm in his
possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is
kept at his place of business, or while being used for lawful recreational purposes within the District of
Columbia." D. C. Code §7-2507.02. The nonexistence of a self-defense exception is also suggested by the
D. C. Court of Appeals' statement that the statute forbids residents to use firearms to stop intruders, see
McIntosh v. Washington, 395 A. 2d 744, 755-756 (1978).28
Apart from his challenge to the handgun ban and the trigger-lock requirement respondent asked the
District Court to enjoin petitioners from enforcing the separate licensing requirement "in such a manner as to
forbid the carrying of a firearm within one's home or possessed land without a license." App. 59a. The Court
of Appeals did not invalidate the licensing requirement, but held only that the District "may not prevent [a
handgun] from being moved throughout one's house." 478 F. 3d, at 400. It then ordered the District Court to
enter summary judgment "consistent with [respondent's] prayer for relief." Id., at 401. Before this Court
petitioners have stated that "if the handgun ban is struck down and respondent registers a handgun, he
could obtain a license, assuming he is not otherwise disqualified," by which they apparently mean if he is not
a felon and is not insane. Brief for Petitioners 58. Respondent conceded at oral argument that he does not
"have a problem with ... licensing" and that the District's law is permissible so long as it is "not enforced in an
arbitrary and capricious manner." Tr. of Oral Arg. 74-75. We therefore assume that petitioners' issuance of
a license will satisfy respondent's prayer for relief and do not address the licensing requirement.
Justice Breyer has devoted most of his separate dissent to the handgun ban. He says that, even
assuming the Second Amendment is a personal guarantee of the right to bear arms, the District's prohibition
is valid. He first tries to establish this by founding-era historical precedent, pointing to various restrictive laws
in the colonial period. These demonstrate, in his view, that the District's law "imposes a burden upon gun
owners that seems proportionately no greater than restrictions in existence at the time the Second
Amendment was adopted." Post, at 2. Of the laws he cites, only one offers even marginal support for his
assertion. A 1783 Massachusetts law forbade the residents of Boston to "take into" or "receive into" "any
Dwelling House, Stable, Barn, Out-house, Ware-house, Store, Shop or other Building" loaded firearms, and
permitted the seizure of any loaded firearms that "shall be found" there. Act of Mar. 1, 1783, ch. 13, 1783
Mass. Acts p. 218. That statute's text and its prologue, which makes clear that the purpose of the prohibition
was to eliminate the danger to firefighters posed by the "depositing of loaded Arms" in buildings, give reason
to doubt that colonial Boston authorities would have enforced that general prohibition against someone who
temporarily loaded a firearm to confront an intruder (despite the law's application in that case). In any case,
we would not stake our interpretation of the Second Amendment upon a single law, in effect in a single city,
that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms for
defense of the home. The other laws Justice Breyer cites are gunpowder-storage laws that he concedes did
not clearly prohibit loaded weapons, but required only that excess gunpowder be kept in a special container
or on the top floor of the home. Post, at 6-7. Nothing about those fire-safety laws undermines our analysis;
they do not remotely burden the right of self-defense as much as an absolute ban on handguns. Nor,
correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to
prevent accidents.
Justice Breyer points to other founding-era laws that he says "restricted the firing of guns within the city
limits to at least some degree" in Boston, Philadelphia and New York. Post, at 4 (citing Churchill, Gun
Regulation, the Police Power, and the Right to Keep Arms in Early America, 25 Law & Hist. Rev. 139, 162
(2007)). Those laws provide no support for the severe restriction in the present case. The New York law
levied a fine of 20 shillings on anyone who fired a gun in certain places (including houses) on New Year's
Eve and the first two days of January, and was aimed at preventing the "great Damages ... frequently done
on [those days] by persons going House to House, with Guns and other Firearms and being often
intoxicated with Liquor." 5 Colonial Laws of New York 244-246 (1894). It is inconceivable that this law would
have been enforced against a person exercising his right to self-defense on New Year's Day against such
drunken hooligans. The Pennsylvania law to which Justice Breyer refers levied a fine of 5 shillings on one
who fired a gun or set off fireworks in Philadelphia without first obtaining a license from the governor. See
Act of Aug. 26, 1721, §4, in 3 Stat. at Large 253-254. Given Justice Wilson's explanation that the right to self-
defense with arms was protected by the Pennsylvania Constitution, it is unlikely that this law (which in any
event amounted to at most a licensing regime) would have been enforced against a person who used
firearms for self-defense. Justice Breyer cites a Rhode Island law that simply levied a 5-shilling fine on those
who fired guns in streets and taverns, a law obviously inapplicable to this case. See An Act for preventing
Mischief being done in the town of Newport, or in any other town in this Government, 1731, Rhode Island
Session Laws. Finally, Justice Breyer points to a Massachusetts law similar to the Pennsylvania law,
prohibiting "discharg[ing] any Gun or Pistol charged with Shot or Ball in the Town of Boston." Act of May 28,
1746, ch. X, Acts and Laws of Mass. Bay 208. It is again implausible that this would have been enforced
against a citizen acting in self-defense, particularly given its preambulatory reference to "the indiscreet firing
of Guns." Ibid. (preamble) (emphasis added).
A broader point about the laws that Justice Breyer cites: All of them punished the discharge (or loading) of
guns with a small fine and forfeiture of the weapon (or in a few cases a very brief stay in the local jail), not
with significant criminal penalties.29 They are akin to modern penalties for minor public-safety infractions like
speeding or jaywalking. And although such public-safety laws may not contain exceptions for self-defense, it
is inconceivable that the threat of a jaywalking ticket would deter someone from disregarding a "Do Not
Walk" sign in order to flee an attacker, or that the Government would enforce those laws under such
circumstances. Likewise, we do not think that a law imposing a 5-shilling fine and forfeiture of the gun would
have prevented a person in the founding era from using a gun to protect himself or his family from violence,
or that if he did so the law would be enforced against him. The District law, by contrast, far from imposing a
minor fine, threatens citizens with a year in prison (five years for a second violation) for even obtaining a gun
in the first place. See D. C. Code §7-2507.06.
Justice Breyer moves on to make a broad jurisprudential point: He criticizes us for declining to establish a
level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the
traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-
empowering "interest-balancing inquiry" that "asks whether the statute burdens a protected interest in a way
or to an extent that is out of proportion to the statute's salutary effects upon other important governmental
interests." Post, at 10. After an exhaustive discussion of the arguments for and against gun control, Justice
Breyer arrives at his interest-balanced answer: because handgun violence is a problem, because the law is
limited to an urban area, and because there were somewhat similar restrictions in the founding period (a
false proposition that we have already discussed), the interest-balancing inquiry results in the
constitutionality of the handgun ban. QED.
We know of no other enumerated constitutional right whose core protection has been subjected to a
freestanding "interest-balancing" approach. The very enumeration of the right takes out of the hands of
government--even the Third Branch of Government--the power to decide on a case-by-case basis whether
the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its
usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were
understood to have when the people adopted them, whether or not future legislatures or (yes) even future
judges think that scope too broad. We would not apply an "interest-balancing" approach to the prohibition of
a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43
(1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people
ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the
expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like
the First, it is the very product of an interest-balancing by the people--which Justice Breyer would now
conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other
interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.
Justice Breyer chides us for leaving so many applications of the right to keep and bear arms in doubt, and
for not providing extensive historical justification for those regulations of the right that we describe as
permissible. See post, at 42-43. But since this case represents this Court's first in-depth examination of the
Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United
States, 98 U. S. 145 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter
certainty. And there will be time enough to expound upon the historical justifications for the exceptions we
have mentioned if and when those exceptions come before us.
In sum, we hold that the District's ban on handgun possession in the home violates the Second
Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the
purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second
Amendment rights, the District must permit him to register his handgun and must issue him a license to carry
it in the home.
* * *
We are aware of the problem of handgun violence in this country, and we take seriously the concerns
raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution
leaves the District of Columbia a variety of tools for combating that problem, including some measures
regulating handguns, see supra, at 54-55, and n. 26. But the enshrinement of constitutional rights
necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns
held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is
outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces
provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but
what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
We affirm the judgment of the Court of Appeals.
It is so ordered.
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DISTRICT OF COLUMBIA, et al., PETITIONERS v.
DICK ANTHONY HELLER
on writ of certiorari to the united states court of
appeals for the district of columbia circuit
[June 26, 2008]
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Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.
The question presented by this case is not whether the Second Amendment protects a "collective right" or
an "individual right." Surely it protects a right that can be enforce