OPINION OF THE COURT DISTRICT OF COLUMBIA V. HELLER 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-290 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.[ Footnote 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,[ Footnote 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).[ Footnote 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.[ Footnote
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.[ Footnote
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.[ Footnote
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.[ Footnote 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.” [ Footnote 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.[ Footnote 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.[ Footnote
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.[ Footnote 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.[ Footnote
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.[ Footnote
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.[ Footnote 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.[ Footnote
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
… .”[ Footnote
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.[ Footnote 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].”[ Footnote
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.[ Footnote
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.[ Footnote
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.[ Footnote 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’ ”[ Footnote
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.[ Footnote
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.[ Footnote
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.[ Footnote
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.[ Footnote
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,[ Footnote
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).[ Footnote
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.[ Footnote 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. Footnote
1 There are minor
exceptions to all of these prohibitions, none of which is relevant
here. Footnote
2 That construction has
not been challenged
here. Footnote
3 As Sutherland
explains, the key 18th-century English case on the effect of
preambles, Copeman v. Gallant , 1 P. Wms. 314, 24
Eng. Rep. 404 (1716), stated that “the preamble could not be used
to restrict the effect of the words of the purview.” J. Sutherland,
Statutes and Statutory Construction, 47.04 (N. Singer ed. 5th ed.
1992). This rule was modified in England in an 1826 case to give
more importance to the preamble, but in America “the settled
principle of law is that the preamble cannot control the enacting
part of the statute in cases where the enacting part is expressed
in clear, unambiguous terms.” Ibid . Justice Stevens says
that we violate the general rule that every clause in a statute
must have effect. Post , at 8. But where the text of a
clause itself indicates that it does not have operative effect,
such as “whereas” clauses in federal legislation or the
Constitution’s preamble, a court has no license to make it do what
it was not designed to do. Or to put the point differently,
operative provisions should be given effect as operative
provisions, and prologues as
prologues. Footnote
4 Justice Stevens
criticizes us for discussing the prologue last. Post , at
8. But if a prologue can be used only to clarify an ambiguous
operative provision, surely the first step must be to determine
whether the operative provision is ambiguous. It might be argued,
we suppose, that the prologue itself should be one of the factors
that go into the determination of whether the operative provision
is ambiguous—but that would cause the prologue to be used to
produce ambiguity rather than just to resolve it. In any event,
even if we considered the prologue along with the
operative provision we would reach the same result we do today,
since (as we explain) our interpretation of “the right of the
people to keep and bear arms” furthers the purpose of an effective
militia no less than (indeed, more than) the dissent’s
interpretation. See infra , at
26–27. Footnote
5 Justice Stevens is of
course correct, post , at 10, that the right to assemble
cannot be exercised alone, but it is still an individual right, and
not one conditioned upon membership in some defined “assembly,” as
he contends the right to bear arms is conditioned upon membership
in a defined militia. And Justice Stevens is dead wrong to think
that the right to petition is “primarily collective in nature.” Ibid. See McDonald v. Smith , 472 U. S. 479 , 482–484
(1985) (describing historical origins of right to
petition). Footnote
6 If we look to other
founding-era documents, we find that some state constitutions used
the term “the people” to refer to the people collectively, in
contrast to “citizen,” which was used to invoke individual rights.
See Heyman, Natural Rights and the Second Amendment, in The Second
Amendment in Law and History 179, 193–195 (C. Bogus ed. 2000)
(hereinafter Bogus). But that usage was not remotely uniform. See, e.g. , N. C. Declaration of Rights §XIV (1776), in 5
The Federal and State Constitutions, Colonial Charters, and Other
Organic Laws 2787, 2788 (F. Thorpe ed. 1909) (hereinafter Thorpe)
(jury trial); Md. Declaration of Rights §XVIII (1776), in 3 id. , at 1686, 1688 (vicinage requirement); Vt. Declaration
of Rights ch. 1, §XI (1777), in 6 id. , at 3737, 3741
(searches and seizures); Pa. Declaration of Rights §XII (1776), in
5 id. , at 3081, 3083 (free speech). And, most importantly,
it was clearly not the terminology used in the Federal
Constitution, given the First, Fourth, and Ninth
Amendments. Footnote
7 See, e.g. , 3
A Compleat Collection of State-Tryals 185 (1719) (“Hath not every
Subject power to keep Arms, as well as Servants in his House for
defence of his Person?”); T. Wood, A New Institute of the Imperial
or Civil Law 282 (1730) (“Those are guilty of publick Force, who keep Arms in their Houses, and make use of them
otherwise than upon Journeys or Hunting, or for Sale …”); A
Collection of All the Acts of Assembly, Now in Force, in the Colony
of Virginia 596 (1733) (“Free Negros, Mulattos, or Indians, and
Owners of Slaves, seated at Frontier Plantations, may obtain
Licence from a Justice of Peace, for keeping Arms, &c.”); J.
Ayliffe, A New Pandect of Roman Civil Law 195 (1734) (“Yet
a Person might keep Arms in his House, or on his Estate, on the
Account of Hunting, Navigation, Travelling, and on the Score of
Selling them in the way of Trade or Commerce, or such Arms as
accrued to him by way of Inheritance”); J. Trusler, A Concise View
of the Common Law and Statute Law of England 270 (1781) (“if
[papists] keep arms in their houses, such arms may be seized by a
justice of the peace”); Some Considerations on the Game Laws 54
(1796) (“Who has been deprived by [the law] of keeping arms for his
own defence? What law forbids the veriest pauper, if he can raise a
sum sufficient for the purchase of it, from mounting his Gun on his
Chimney Piece … ?”); 3 B. Wilson, The Works of the
Honourable James Wilson 84 (1804) (with reference to state
constitutional right: “This is one of our many renewals of the
Saxon regulations. ‘They were bound,’ says Mr. Selden, ‘to keep
arms for the preservation of the kingdom, and of their own
person’ ”); W. Duer, Outlines of the Constitutional
Jurisprudence of the United States 31–32 (1833) (with reference to
colonists’ English rights: “The right of every individual to keep
arms for his defence, suitable to his condition and degree; which
was the public allowance, under due restrictions of the natural
right of resistance and self-preservation”); 3 R. Burn, Justice of
the Peace and the Parish Officer 88 (1815) (“It is, however, laid
down by Serjeant Hawkins, … that if a lessee, after the end of the
term, keep arms in his house to oppose the entry of the
lessor, …”); State v. Dempsey , 31 N. C.
384, 385 (1849) (citing 1840 state law making it a misdemeanor for
a member of certain racial groups “to carry about his person or
keep in his house any shot gun or other
arms”). Footnote
8 See Pa. Declaration
of Rights §XIII, in 5 Thorpe 3083 (“That the people have a right to
bear arms for the defence of themselves and the state… ”); Vt.
Declaration of Rights §XV, in 6 id. , at 3741 (“That the
people have a right to bear arms for the defence of themselves and
the State…”); Ky. Const., Art. XII, cl. 23 (1792), in 3 id. , at 1264, 1275 (“That the right of the citizens to
bear arms in defence of themselves and the State shall not be
questioned”); Ohio Const., Art. VIII, §20 (1802), in 5 id. , at 2901, 2911 (“That the people have a right to bear
arms for the defence of themselves and the State … ”);
Ind. Const., Art. I, §20 (1816), in 2 id. , at 1057, 1059
(“That the people have a right to bear arms for the defense of
themselves and the State… ”); Miss. Const., Art. I, §23
(1817), in 4 id. , at 2032, 2034 (“Every citizen has a
right to bear arms, in defence of himself and the State”); Conn.
Const., Art. I, §17 (1818), in 1 id. , at 536, 538 (“Every
citizen has a right to bear arms in defence of himself and the
state”); Ala. Const., Art. I, §23 (1819), in 1 id. , at 96,
98 (“Every citizen has a right to bear arms in defence of himself
and the State”); Mo. Const., Art. XIII, §3 (1820), in 4 id. , at 2150, 2163 (“[T]hat their right to bear arms in
defence of themselves and of the State cannot be questioned”). See
generally Volokh, State Constitutional Rights to Keep and Bear
Arms, 11 Tex. Rev. L. & Politics 191
(2006). Footnote
9 See Bliss v. Commonwealth , 2 Litt. 90, 91–92 (Ky. 1822); State v. Reid , 1 Ala. 612, 616–617 (1840); State v. Schoultz , 25 Mo. 128, 155 (1857); see also Simpson v. State, 5 Yer. 356, 360 (Tenn. 1833)
(interpreting similar provision with “common defence” purpose); State v. Huntly , 25 N. C. 418, 422–423
(1843) (same); cf. Nunn v. State , 1 Ga. 243,
250–251 (1846) (construing Second Amendment); State v. Chandler , 5 La. Ann. 489, 489–490 (1850)
(same). Footnote
10 See J. Brydall,
Privilegia Magnatud apud Anglos 14 (1704) (Privilege XXXIII) (“In
the 21st Year of King Edward the Third, a Proclamation Issued, that
no Person should bear any Arms within London, and the Suburbs”); J.
Bond, A Compleat Guide to Justices of the Peace 43 (1707)
(“Sheriffs, and all other Officers in executing their Offices, and
all other persons pursuing Hu[e] and Cry may lawfully bear arms”);
1 An Abridgment of the Public Statutes in Force and Use Relative to
Scotland (1755) (entry for “Arms”: “And if any person above
described shall have in his custody, use, or bear arms, being
thereof convicted before one justice of peace, or other judge
competent, summarily, he shall for the first offense forfeit all
such arms” (quoting 1 Geo. 1, c. 54, §1)); Statute Law of Scotland
Abridged 132–133 (2d ed. 1769) (“Acts for disarming the highlands”
but “exempting those who have particular licenses to bear arms”);
E. de Vattel, The Law of Nations, or, Principles of the Law of
Nature 144 (1792) (“Since custom has allowed persons of rank and
gentlemen of the army to bear arms in time of peace, strict care
should be taken that none but these should be allowed to wear
swords”); E. Roche, Proceedings of a Court-Martial, Held at the
Council-Chamber, in the City of Cork 3 (1798) (charge VI: “With
having held traitorous conferences, and with having conspired, with
the like intent, for the purpose of attacking and despoiling of the
arms of several of the King’s subjects, qualified by law to bear
arms”); C. Humphreys, A Compendium of the Common Law in force in
Kentucky 482 (1822) (“[I]n this country the constitution guaranties
to all persons the right to bear arms; then it can only be a crime
to exercise this right in such a manner, as to terrify people
unnecessarily”). Footnote
11 Justice Stevens
contends, post , at 15, that since we assert that adding
“against” to “bear arms” gives it a military meaning we must
concede that adding a purposive qualifying phrase to “bear arms”
can alter its meaning. But the difference is that we do not
maintain that “against” alters the meaning of “bear arms”
but merely that it clarifies which of various meanings
(one of which is military) is intended. Justice Stevens, however,
argues that “[t]he term ‘bear arms’ is a familiar idiom; when used
unadorned by any additional words, its meaning is ‘to serve as a
soldier, do military service, fight.’ ” Post , at 11.
He therefore must establish that adding a contradictory purposive
phrase can alter a word’s
meaning. Footnote
12 Justice Stevens finds
support for his legislative history inference from the recorded
views of one Antifederalist member of the House. Post , at
26 n. 25. “The claim that the best or most representative reading
of the [language of the] amendments would conform to the
understanding and concerns of [the Antifederalists] is … highly
problematic.” Rakove, The Second Amendment: The Highest Stage of
Originalism, Bogus 74,
81. Footnote
13 The same applies to
the conscientious-objector amendments proposed by Virginia and
North Carolina, which said: “That any person religiously scrupulous
of bearing arms ought to be exempted upon payment of an equivalent
to employ another to bear arms in his stead.” See Veit 19; 4 J.
Eliot, The Debates in the Several State Constitutions on the
Adoption of the Federal Constitution 243, 244 (2d ed. 1836)
(reprinted 1941). Certainly their second use of the phrase (“bear
arms in his stead”) refers, by reason of context, to compulsory
bearing of arms for military duty. But their first use of the
phrase (“any person religiously scrupulous of bearing arms”)
assuredly did not refer to people whose God allowed them to bear
arms for defense of themselves but not for defense of their
country. Footnote
14 Faced with this clear
historical usage, Justice Stevens resorts to the bizarre argument
that because the word “to” is not included before “bear” (whereas
it is included before “petition” in the First Amendment), the
unitary meaning of “to keep and bear” is established. Post , at 16, n. 13. We have never heard of the
proposition that omitting repetition of the “to” causes two verbs
with different meanings to become one. A promise “to support and to
defend the Constitution of the United States” is not a whit
different from a promise “to support and defend the Constitution of
the United
States.” Footnote
15 Cf. 3 Geo., 34, §3,
in 7 Eng. Stat. at Large 126 (1748) (“That the Prohibition
contained … in this Act, of having, keeping, bearing, or wearing
any Arms or Warlike Weapons … shall not extend … to any Officers or
their Assistants, employed in the Execution of
Justice …”). Footnote
16 Contrary to Justice
Stevens’ wholly unsupported assertion, post , at 17, there
was no pre-existing right in English law “to use weapons for
certain military purposes” or to use arms in an organized
militia. Footnote
17 Article I, §8, cl. 16
of the Constitution gives Congress the
power “[t]o provide for
organizing, arming, and disciplining, the Militia, and for
governing such Part of them as may be employed in the Service of
the United States, reserving to the States respectively, the
Appointment of the Officers, and the Authority of training the
Militia according to the discipline prescribed by
Congress.” It could not be clearer that Congress’s
“organizing” power, unlike its “governing” power, can be invoked
even for that part of the militia not “employed in the Service of
the United States.” Justice Stevens provides no support whatever
for his contrary view, see post , at 19 n. 20. Both the
Federalists and Anti-Federalists read the provision as it was
written, to permit the creation of a “select” militia. See The
Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961); Centinel,
Revived, No. XXIX, Philadelphia Independent Gazetteer, Sept. 9,
1789, in Young 711,
712. Footnote
18 Justice Stevens says
that the drafters of the Virginia Declaration of Rights rejected
this proposal and adopted “instead” a provision written by George
Mason stressing the importance of the militia. See post ,
at 24, and n. 24. There is no evidence that the drafters regarded
the Mason proposal as a substitute for the Jefferson
proposal. Footnote
19 Justice Stevens
quotes some of Tucker’s unpublished notes, which he claims show
that Tucker had ambiguous views about the Second Amendment. See post , at 31, and n. 32. But it is clear from the notes
that Tucker located the power of States to arm their militias in
the Tenth Amendment, and that he cited the Second
Amendment for the proposition that such armament could not run
afoul of any power of the federal government (since the amendment
prohibits Congress from ordering disarmament). Nothing in the
passage implies that the Second Amendment pertains only to the
carrying of arms in the organized
militia. Footnote
20 Rawle, writing before
our decision in Barron ex rel. Tiernan v. Mayor of
Baltimore , 7 Pet. 243 (1833), believed that the Second
Amendment could be applied against the States. Such a belief would
of course be nonsensical on petitioners’ view that it protected
only a right to possess and carry arms when conscripted by the
State itself into militia
service. Footnote
21 Justice Stevens
suggests that this is not obvious because free blacks in Virginia
had been required to muster without arms. See post , at 28,
n. 29 (citing Siegel, The Federal Government’s Power to Enact
Color-Conscious Laws, 92 Nw. U. L. Rev. 477, 497 (1998)). But
that could not have been the type of law referred to in Aldridge , because that practice had stopped 30 years
earlier when blacks were excluded entirely from the militia by the
First Militia Act. See Siegel, supra , at 498, n. 120.
Justice Stevens further suggests that laws barring blacks from
militia service could have been said to violate the “right to bear
arms.” But under Justice Stevens’ reading of the Second Amendment
(we think), the protected right is the right to carry arms to the
extent one is enrolled in the militia, not the right to be in
the militia . Perhaps Justice Stevens really does adopt the
full-blown idiomatic meaning of “bear arms,” in which case every
man and woman in this country has a right “to be a soldier” or even
“to wage war.” In any case, it is clear to us that Aldridge ’s allusion to the existing Virginia “restriction”
upon the right of free blacks “to bear arms” could only have
referred to “laws prohibiting blacks from keeping weapons,” Siegel, supra, at
497–498. Footnote
22 Justice Stevens’
accusation that this is “not accurate,” post , at 39, is
wrong. It is true it was the indictment that described the right as
“bearing arms for a lawful purpose.” But, in explicit reference to
the right described in the indictment, the Court stated that “The
second amendment declares that it [ i.e., the right of
bearing arms for a lawful purpose] shall not be infringed.” 92 U.
S., at
553. Footnote
23 With respect to Cruikshank ’s continuing validity on incorporation, a
question not presented by this case, we note that Cruikshank also said that the First Amendment did not
apply against the States and did not engage in the sort of
Fourteenth Amendment inquiry required by our later cases. Our later
decisions in Presser v. Illinois , 116 U. S. 252 , 265 (1886) and Miller v. Texas , 153 U. S. 535 , 538
(1894), reaffirmed that the Second Amendment applies only to the
Federal
Government. Footnote
24 As for the “hundreds
of judges,” post , at 2, who have relied on the view of the
Second Amendment Justice Stevens claims we endorsed in Miller : If so, they overread Miller. And their
erroneous reliance upon an uncontested and virtually unreasoned
case cannot nullify the reliance of millions of Americans (as our
historical analysis has shown) upon the true meaning of the right
to keep and bear arms. In any event, it should not be thought that
the cases decided by these judges would necessarily have come out
differently under a proper interpretation of the
right . Footnote
25 Miller was
briefly mentioned in our decision in Lewis v. United
States , 445 U.
S. 55 (1980), an appeal from a conviction for being a felon in
possession of a firearm. The challenge was based on the contention
that the prior felony conviction had been unconstitutional. No
Second Amendment claim was raised or briefed by any party. In the
course of rejecting the asserted challenge, the Court commented
gratuitously, in a footnote, that “[t]hese legislative restrictions
on the use of firearms are neither based upon constitutionally
suspect criteria, nor do they trench upon any constitutionally
protected liberties. See United States v. Miller … (the Second Amendment guarantees no right to
keep and bear a firearm that does not have ‘some reasonable
relationship to the preservation or efficiency of a well regulated
militia’).” Id., at 65–66, n. 8. The footnote then
cites several Court of Appeals cases to the same effect. It is
inconceivable that we would rest our interpretation of the basic
meaning of any guarantee of the Bill of Rights upon such a
footnoted dictum in a case where the point was not at issue and was
not
argued. Footnote
26 We identify these
presumptively lawful regulatory measures only as examples; our list
does not purport to be
exhaustive. Footnote
27 Justice Breyer
correctly notes that this law, like almost all laws, would pass
rational-basis scrutiny. Post , at 8. But rational-basis
scrutiny is a mode of analysis we have used when evaluating laws
under constitutional commands that are themselves prohibitions on
irrational laws. See, e.g. , Engquist v .
Oregon Dept. of Agriculture , 553 U. S. ___, ___ (2008) (slip
op., at 9–10). In those cases, “rational basis” is not just the
standard of scrutiny, but the very substance of the constitutional
guarantee. Obviously, the same test could not be used to evaluate
the extent to which a legislature may regulate a specific,
enumerated right, be it the freedom of speech, the guarantee
against double jeopardy, the right to counsel, or the right to keep
and bear arms. See United States v. Carolene Products
Co. , 304 U. S.
144 , 152, n. 4 (1938) (“There may be narrower scope for
operation of the presumption of constitutionality [ i.e. ,
narrower than that provided by rational-basis review] when
legislation appears on its face to be within a specific prohibition
of the Constitution, such as those of the first ten amendments…”).
If all that was required to overcome the right to keep and bear
arms was a rational basis, the Second Amendment would be redundant
with the separate constitutional prohibitions on irrational laws,
and would have no
effect. Footnote
28 McIntosh upheld the law against a claim that it violated the Equal
Protection Clause by arbitrarily distinguishing between residences
and businesses. See 395 A. 2d, at 755. One of the rational
bases listed for that distinction was the legislative finding “that
for each intruder stopped by a firearm there are four gun-related
accidents within the home.” Ibid . That tradeoff would not
bear mention if the statute did not prevent stopping intruders by
firearms. Footnote
29 The Supreme Court of
Pennsylvania described the amount of five shillings in a contract
matter in 1792 as “nominal consideration.” Morris’s Lessee v. Smith , 4 Dall. 119, 120 (Pa. 1792). Many of the laws
cited punished violation with fine in a similar amount; the 1783
Massachusetts gunpowder-storage law carried a somewhat larger fine
of 10 (200 shillings) and forfeiture of the
weapon. STEVENS, J., DISSENTING DISTRICT OF COLUMBIA V. HELLER 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-290 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 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 enforced by individuals. But a conclusion that the Second
Amendment protects an individual right does not tell us anything
about the scope of that right.

															   Guns are used to hunt, for self-defense, to
commit crimes, for sporting activities, and to perform military
duties. The Second Amendment plainly does not protect the right to
use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes.
Whether it also protects the right to possess and use guns for
nonmilitary purposes like hunting and personal self-defense is the
question presented by this case. The text of the Amendment, its
history, and our decision in United States v. Miller , 307 U. S. 174 (1939), provide a clear
answer to that question.

															   The Second Amendment was adopted to protect
the right of the people of each of the several States to maintain a
well-regulated militia. It was a response to concerns raised during
the ratification of the Constitution that the power of Congress to
disarm the state militias and create a national standing army posed
an intolerable threat to the sovereignty of the several States.
Neither the text of the Amendment nor the arguments advanced by its
proponents evidenced the slightest interest in limiting any
legislature’s authority to regulate private civilian uses of
firearms. Specifically, there is no indication that the Framers of
the Amendment intended to enshrine the common-law right of
self-defense in the Constitution.

															   In 1934, Congress enacted the National
Firearms Act, the first major federal firearms law.[ Footnote 1 ] Upholding a conviction under
that Act, this Court held that, “[i]n the absence of any evidence
tending to show that possession or use of a ‘shotgun having a
barrel of less than eighteen inches in length’ at this time has
some reasonable relationship to 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.” Miller , 307 U. S., at 178. The view of the Amendment we
took in Miller— that it 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—is both the most natural reading of the
Amendment’s text and the interpretation most faithful to the
history of its adoption.

															   Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we
endorsed there;[ Footnote 2 ] we
ourselves affirmed it in 1980. See Lewis v. United
States, 445 U.
S. 55 , 65–66, n. 8 (1980).[ Footnote 3 ] No new evidence has surfaced since 1980
supporting the view that the Amendment was intended to curtail the
power of Congress to regulate civilian use or misuse of weapons.
Indeed, a review of the drafting history of the Amendment
demonstrates that its Framers rejected proposals that
would have broadened its coverage to include such uses.

															   The opinion the Court announces today fails to
identify any new evidence supporting the view that the Amendment
was intended to limit the power of Congress to regulate civilian
uses of weapons. Unable to point to any such evidence, the Court
stakes its holding on a strained and unpersuasive reading of the
Amendment’s text; significantly different provisions in the 1689
English Bill of Rights, and in various 19th-century State
Constitutions; postenactment commentary that was available to the
Court when it decided Miller; and, ultimately, a feeble
attempt to distinguish Miller that places more emphasis on
the Court’s decisional process than on the reasoning in the opinion
itself.

															   Even if the textual and historical arguments
on both sides 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, see Mitchell v. W. T.
Grant Co., 416
U. S. 600 , 636 (1974) (Stewart, J., dissenting), would prevent
most jurists from endorsing such a dramatic upheaval in the
law.[ Footnote 4 ] As Justice
Cardozo observed years ago, the “labor of judges would be increased
almost to the breaking point if every past decision could be
reopened in every case, and one could not lay one’s own course of
bricks on the secure foundation of the courses laid by others who
had gone before him.” The Nature of the Judicial Process 149
(1921).

															   In this dissent I shall first explain why our
decision in Miller was faithful to the text of the Second
Amendment and the purposes revealed in its drafting history. I
shall then comment on the postratification history of the
Amendment, which makes abundantly clear that the Amendment should
not be interpreted as limiting the authority of Congress to
regulate the use or possession of firearms for purely civilian
purposes.

															I

															   The text of the Second Amendment
is brief. It 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.”

															   Three portions of that text merit
special focus: the introductory language defining the Amendment’s
purpose, the class of persons encompassed within its reach, and the
unitary nature of the right that it protects. “A well regulated Militia, being necessary to
the security of a free State” The preamble to the Second
Amendment makes three important points. It identifies the
preservation of the militia as the Amendment’s purpose; it explains
that the militia is necessary to the security of a free State; and
it recognizes that the militia must be “well regulated.” In all
three respects it is comparable to provisions in several State
Declarations of Rights that were adopted roughly contemporaneously
with the Declaration of Independence.[ Footnote 5 ] Those state provisions highlight the
importance members of the founding generation attached to the
maintenance of state militias; they also underscore the profound
fear shared by many in that era of the dangers posed by standing
armies.[ Footnote 6 ] While the
need for state militias has not been a matter of significant public
interest for almost two centuries, that fact should not obscure the
contemporary concerns that animated the Framers. The parallels between the
Second Amendment and these state declarations, and the Second
Amendment’s omission of any statement of purpose related to the
right to use firearms for hunting or personal self-defense, is
especially striking in light of the fact that the Declarations of
Rights of Pennsylvania and Vermont did expressly protect such
civilian uses at the time. Article XIII of Pennsylvania’s 1776
Declaration of Rights announced that “the people have a right to
bear arms for the defence of themselves and the state,” 1
Schwartz 266 (emphasis added); §43 of the Declaration assured that
“the inhabitants of this state shall have the liberty to fowl and
hunt in seasonable times on the lands they hold, and on all other
lands therein not inclosed,” id., at 274. And Article XV
of the 1777 Vermont Declaration of Rights guaranteed “[t]hat the
people have a right to bear arms for the defence of
themselves and the State.” Id., at 324 (emphasis
added). The contrast between those two declarations and the Second
Amendment reinforces the clear statement of purpose announced in
the Amendment’s preamble. It confirms that the Framers’
single-minded focus in crafting the constitutional guarantee “to
keep and bear arms” was on military uses of firearms, which they
viewed in the context of service in state militias.

															   The preamble thus both sets forth the object
of the Amendment and informs the meaning of the remainder of its
text. Such text should not be treated as mere surplusage, for “[i]t
cannot be presumed that any clause in the constitution is intended
to be without effect.” Marbury v. Madison, 1
Cranch 137, 174 (1803).

															   The Court today tries to denigrate the
importance of this clause of the Amendment by beginning its
analysis with the Amendment’s operative provision and returning to
the preamble merely “to ensure that our reading of the operative
clause is consistent with the announced purpose.” Ante, at
5. That is not how this Court ordinarily reads such texts, and it
is not how the preamble would have been viewed at the time the
Amendment was adopted. While the Court makes the novel suggestion
that it need only find some “logical connection” between the
preamble and the operative provision, it does acknowledge that a
prefatory clause may resolve an ambiguity in the text. Ante, at 4.[ Footnote
7 ] Without identifying any language in the text that even
mentions civilian uses of firearms, the Court proceeds to “find”
its preferred reading in what is at best an ambiguous text, and
then concludes that its reading is not foreclosed by the preamble.
Perhaps the Court’s approach to the text is acceptable advocacy,
but it is surely an unusual approach for judges to follow. “The right of the people” The centerpiece of the
Court’s textual argument is its insistence that the words “the
people” as used in the Second Amendment must have the same meaning,
and protect the same class of individuals, as when they are used in
the First and Fourth Amendments. According to the Court, in all
three provisions—as well as the Constitution’s preamble, section 2
of Article I, and the Tenth Amendment—“the term unambiguously
refers to all members of the political community, not an
unspecified subset.” Ante, at 6. But the Court itself reads the Second Amendment to protect a “subset” significantly
narrower than the class of persons protected by the First and
Fourth Amendments; when it finally drills down on the substantive
meaning of the Second Amendment, the Court limits the protected
class to “law-abiding, responsible citizens,” ante, at 63.
But the class of persons protected by the First and Fourth
Amendments is not so limited; for even felons (and
presumably irresponsible citizens as well) may invoke the
protections of those constitutional provisions. The Court offers no
way to harmonize its conflicting pronouncements.

															   The Court also overlooks the
significance of the way the Framers used the phrase “the people” in
these constitutional provisions. In the First Amendment, no words
define the class of individuals entitled to speak, to publish, or
to worship; in that Amendment it is only the right peaceably to
assemble, and to petition the Government for a redress of
grievances, that is described as a right of “the people.” These
rights contemplate collective action. While the right peaceably to
assemble protects the individual rights of those persons
participating in the assembly, its concern is with action engaged
in by members of a group, rather than any single individual.
Likewise, although the act of petitioning the Government is a right
that can be exercised by individuals, it is primarily collective in
nature. For if they are to be effective, petitions must involve
groups of individuals acting in concert.

															   Similarly, the words “the people” in the
Second Amendment refer back to the object announced in the
Amendment’s preamble. They remind us that it is the collective
action of individuals having a duty to serve in the militia that
the text directly protects and, perhaps more importantly, that the
ultimate purpose of the Amendment was to protect the States’ share
of the divided sovereignty created by the Constitution.

															    As used in the Fourth Amendment, “the people”
describes the class of persons protected from unreasonable searches
and seizures by Government officials.    It is true
that the Fourth Amendment describes a right that need not be
exercised in any collective sense. But that observation does not
settle the meaning of the phrase “the people” when used in the
Second Amendment. For, as we have seen, the phrase means something
quite different in the Petition and Assembly Clauses of the First
Amendment. Although the abstract definition of the phrase “the
people” could carry the same meaning in the Second Amendment as in
the Fourth Amendment, the preamble of the Second Amendment suggests
that the uses of the phrase in the First and Second Amendments are
the same in referring to a collective activity. By way of contrast,
the Fourth Amendment describes a right against governmental interference rather than an affirmative right to engage in protected conduct, and so refers to a right
to protect a purely individual interest. As used in the Second
Amendment, the words “the people” do not enlarge the right to keep
and bear arms to encompass use or ownership of weapons outside the
context of service in a well-regulated militia. “To keep and bear Arms” Although the Court’s
discussion of these words treats them as two “phrases”—as if they
read “to keep” and “to bear”—they describe a unitary right: to
possess arms if needed for military purposes and to use them in
conjunction with military activities. As a threshold matter, it is
worth pausing to note an oddity in the Court’s interpretation of
“to keep and bear arms.” Unlike the Court of Appeals, the Court
does not read that phrase to create a right to possess arms for
“lawful, private purposes.” Parker v. District of
Columbia, 478 F. 3d 370, 382 (CADC 2007). Instead, the
Court limits the Amendment’s protection to the right “to possess
and carry weapons in case of confrontation.” Ante, at 19.
No party or amicus urged this interpretation; the Court
appears to have fashioned it out of whole cloth. But although this
novel limitation lacks support in the text of the Amendment, the
Amendment’s text does justify a different limitation: the
“right to keep and bear arms” protects only a right to possess and
use firearms in connection with service in a state-organized
militia.

															   The term “bear arms” is a familiar idiom; when
used unadorned by any additional words, its meaning is “to serve as
a soldier, do military service, fight.” 1 Oxford English Dictionary
634 (2d ed. 1989). It is derived from the Latin arma
ferre, which, translated literally, means “to bear [ferre] war equipment [arma] .” Brief for
Professors of Linguistics and English as Amici Curiae 19.
One 18th-century dictionary defined “arms” as “weapons of offence,
or armour of defence,” 1 S. Johnson, A Dictionary of the English
Language (1755), and another contemporaneous source explained that
“[b]y arms , we understand those instruments of offence
generally made use of in war; such as firearms, swords, & c. By weapons, we more particularly mean instruments of other
kinds (exclusive of fire-arms), made use of as offensive, on
special occasions.” 1 J. Trusler, The Distinction Between Words
Esteemed Synonymous in the English Language 37 (1794).[ Footnote 8 ] Had the Framers wished to expand
the meaning of the phrase “bear arms” to encompass civilian
possession and use, they could have done so by the addition of
phrases such as “for the defense of themselves,” as was done in the
Pennsylvania and Vermont Declarations of Rights. The unmodified use of “bear arms,” by contrast, refers most
naturally to a military purpose, as evidenced by its use in
literally dozens of contemporary texts.[ Footnote 9 ] The absence of any reference to civilian uses
of weapons tailors the text of the Amendment to the purpose
identified in its preamble.[ Footnote 10 ] But when discussing these words, the Court
simply ignores the preamble.

															   The Court argues that a “qualifying phrase
that contradicts the word or phrase it modifies is unknown this
side of the looking glass.” Ante, at 15. But this
fundamentally fails to grasp the point. The stand-alone phrase
“bear arms” most naturally conveys a military meaning unless the addition of a qualifying phrase signals that a
different meaning is intended. When, as in this case, there is no
such qualifier, the most natural meaning is the military one; and,
in the absence of any qualifier, it is all the more appropriate to
look to the preamble to confirm the natural meaning of the
text.[ Footnote 11 ] The
Court’s objection is particularly puzzling in light of its own
contention that the addition of the modifier “against” changes the
meaning of “bear arms.” Compare ante , at 10 (defining
“bear arms” to mean “carrying [a weapon] for a particular
purpose—confrontation”), with ante , at 12 (“The phrase
‘bear Arms’ also had at the time of the founding an idiomatic
meaning that was significantly different from its natural meaning:
to serve as a soldier, do military service, fight or to wage war.
But it unequivocally bore that idiomatic meaning only when followed
by the preposition ‘against.’ ” (citations and some internal
quotation marks omitted)).

															   The Amendment’s use of the term “keep” in no
way contradicts the military meaning conveyed by the phrase “bear
arms” and the Amendment’s preamble. To the contrary, a number of
state militia laws in effect at the time of the Second Amendment’s
drafting used the term “keep” to describe the requirement that
militia members store their arms at their homes, ready to be used
for service when necessary. The Virginia military law, for example,
ordered that “every one of the said officers, non-commissioned
officers, and privates, shall constantly keep the
aforesaid arms, accoutrements, and ammunition, ready to be produced
whenever called for by his commanding officer.” Act for Regulating
and Disciplining the Militia, 1785 Va. Acts ch. 1, §3, p. 2
(emphasis added).[ Footnote
12 ] “[K]eep and bear arms” thus perfectly describes the
responsibilities of a framing-era militia member.

															   This reading is confirmed by the fact that the
clause protects only one right, rather than two. It does not
describe a right “to keep arms” and a separate right “to bear
arms.” Rather, the single right that it does describe is both a
duty and a right to have arms available and ready for military
service, and to use them for military purposes when
necessary.[ Footnote 13 ]
Different language surely would have been used to protect
nonmilitary use and possession of weapons from regulation if such
an intent had played any role in the drafting of the Amendment.

															*  *  *

															   When each word in the text is
given full effect, the Amendment is most naturally read to secure
to the people a right to use and possess arms in conjunction with
service in a well-regulated militia. So far as appears, no more
than that was contemplated by its drafters or is encompassed within
its terms. Even if the meaning of the text were genuinely
susceptible to more than one interpretation, the burden would
remain on those advocating a departure from the purpose identified
in the preamble and from settled law to come forward with
persuasive new arguments or evidence. The textual analysis offered
by respondent and embraced by the Court falls far short of
sustaining that heavy burden.[ Footnote 14 ] And the Court’s emphatic reliance on the
claim “that the Second Amendment … codified a pre-existing right,” ante, at 19, is of course beside the point because
the right to keep and bear arms for service in a state militia was
also a pre-existing right.

															   Indeed, not a word in the
constitutional text even arguably supports the Court’s overwrought
and novel description of the Second Amendment as “elevat[ing] above
all other interests” “the right of law-abiding, responsible
citizens to use arms in defense of hearth and home.” Ante, at 63.

															II

															   The proper allocation of military
power in the new Nation was an issue of central concern for the
Framers. The compromises they ultimately reached, reflected in
Article I’s Militia Clauses and the Second Amendment, represent
quintessential examples of the Framers’ “splitting the atom of
sovereignty.” [ Footnote
15 ]

															   Two themes relevant to our
current interpretive task ran through the debates on the original
Constitution. “On the one hand, there was a widespread fear that a
national standing Army posed an intolerable threat to individual
liberty and to the sovereignty of the separate States.” Perpich v. Department of Defense, 496 U. S. 334 , 340
(1990).[ Footnote 16 ]
Governor Edmund Randolph, reporting on the Constitutional
Convention to the Virginia Ratification Convention, explained:
“With respect to a standing army, I believe there was not a member
in the federal Convention, who did not feel indignation at such an
institution.” 3 J. Elliot, Debates in the Several State Conventions
on the Adoption of the Federal Constitution 401 (2d ed. 1863)
(hereinafter Elliot). On the other hand, the Framers recognized the
dangers inherent in relying on inadequately trained militia members
“as the primary means of providing for the common defense,” Perpich, 496 U. S., at 340; during the Revolutionary War,
“[t]his force, though armed, was largely untrained, and its
deficiencies were the subject of bitter complaint.” Wiener, The
Militia Clause of the Constitution, 54 Harv. L. Rev. 181, 182
(1940).[ Footnote 17 ] In
order to respond to those twin concerns, a compromise was reached:
Congress would be authorized to raise and support a national
Army[ Footnote 18 ] and Navy,
and also to organize, arm, discipline, and provide for the calling
forth of “the Militia.” U. S. Const., Art. I, §8, cls. 12–16. The
President, at the same time, was empowered as the “Commander in
Chief of the Army and Navy of the United States, and of the Militia
of the several States, when called into the actual Service of the
United States.” Art. II, §2. But, with respect to the militia, a
significant reservation was made to the States: Although Congress
would have the power to call forth,[ Footnote 19 ] organize, arm, and discipline the militia,
as well as to govern “such Part of them as may be employed in the
Service of the United States,” the States respectively would retain
the right to appoint the officers and to train the militia in
accordance with the discipline prescribed by Congress. Art. I, §8,
cl. 16.[ Footnote 20 ]

															   But the original Constitution’s retention of
the militia and its creation of divided authority over that body
did not prove sufficient to allay fears about the dangers posed by
a standing army. For it was perceived by some that Article I
contained a significant gap: While it empowered Congress to
organize, arm, and discipline the militia, it did not prevent
Congress from providing for the militia’s dis armament. As
George Mason argued during the debates in Virginia on the
ratification of the original Constitution:

															“The militia may be here destroyed by that method
which has been practiced in other parts of the world before; that
is, by rendering them useless—by disarming them. Under various
pretences, Congress may neglect to provide for arming and
disciplining the militia; and the state governments cannot do it,
for Congress has the exclusive right to arm them.” Elliot 379.

															   This sentiment was echoed at a
number of state ratification conventions; indeed, it was one of the
primary objections to the original Constitution voiced by its
opponents. The Anti-Federalists were ultimately unsuccessful in
persuading state ratification conventions to condition their
approval of the Constitution upon the eventual inclusion of any
particular amendment. But a number of States did propose to the
first Federal Congress amendments reflecting a desire to ensure
that the institution of the militia would remain protected under
the new Government. The proposed amendments sent by the States of
Virginia, North Carolina, and New York focused on the importance of
preserving the state militias and reiterated the dangers posed by
standing armies. New Hampshire sent a proposal that differed
significantly from the others; while also invoking the dangers of a
standing army, it suggested that the Constitution should more
broadly protect the use and possession of weapons, without tying
such a guarantee expressly to the maintenance of the militia. The
States of Maryland, Pennsylvania, and Massachusetts sent no
relevant proposed amendments to Congress, but in each of those
States a minority of the delegates advocated related amendments.
While the Maryland minority proposals were exclusively concerned
with standing armies and conscientious objectors, the unsuccessful
proposals in both Massachusetts and Pennsylvania would have
protected a more broadly worded right, less clearly tied to service
in a state militia. Faced with all of these options, it is telling
that James Madison chose to craft the Second Amendment as he
did.

															   The relevant proposals sent by the Virginia
Ratifying Convention read as follows:

															“17th, That the people have a right to keep and
bear arms; that a well regulated Militia composed of the body of
the people trained to arms is the proper, natural and safe defence
of a free State. That standing armies are dangerous to liberty, and
therefore ought to be avoided, as far as the circumstances and
protection of the Community will admit; and that in all cases the
military should be under strict subordination to and be governed by
the civil power.” Elliot 659.

															   “19th. That any person religiously scrupulous
of bearing arms ought to be exempted, upon payment of an equivalent
to employ another to bear arms in his stead.” Ibid. North Carolina adopted
Virginia’s proposals and sent them to Congress as its own, although
it did not actually ratify the original Constitution until Congress
had sent the proposed Bill of Rights to the States for
ratification. 2 Schwartz 932–933; see The Complete Bill of
Rights 182–183 (N. Cogan ed. 1997) (hereinafter Cogan).

															   New York produced a proposal with nearly
identical language. It read:

															   “That the people have a right to
keep and bear Arms; that a well regulated Militia, including the
body of the People capable of bearing Arms, is the proper, natural,
and safe defence of a free State… . That standing Armies, in
time of Peace, are dangerous to Liberty, and ought not to be kept
up, except in Cases of necessity; and that at all times, the
Military should be kept under strict Subordination to the civil
Power.” 2 Schwartz 912.

															   Notably, each of these proposals
used the phrase “keep and bear arms,” which was eventually adopted
by Madison. And each proposal embedded the phrase within a group of
principles that are distinctly military in meaning.[ Footnote 21 ]

															   By contrast, New Hampshire’s proposal,
although it followed another proposed amendment that echoed the
familiar concern about standing armies,[ Footnote 22 ] described the protection involved in more
clearly personal terms. Its proposal read: “Twelfth, Congress shall
never disarm any Citizen unless such as are or have been in Actual
Rebellion.” Id., at 758, 761.

															   The proposals considered in the
other three States, although ultimately rejected by their
respective ratification conventions, are also relevant to our
historical inquiry. First, the Maryland proposal, endorsed by a
minority of the delegates and later circulated in pamphlet form,
read:

															   “4. That no standing army
shall be kept up in time of peace, unless with the consent of two
thirds of the members present of each branch of Congress.

															.     .     .     .     .

															   “10. That no person conscientiously
scrupulous of bearing arms in any case, shall be compelled
personally to serve as a soldier.” Id., at 729, 735.

															   The rejected Pennsylvania
proposal, which was later incorporated into a critique of the
Constitution titled “The Address and Reasons of Dissent of the
Pennsylvania Minority of the Convention of the State of
Pennsylvania to Their Constituents (1787),” signed by a minority of
the State’s delegates (those who had voted against ratification of
the Constitution), id., at 628, 662, read:

															   7. “That the people have a
right to bear arms for the defense of themselves and their own
State, or the United States, or for the purpose of killing game;
and no law shall be passed for disarming the people or any of them
unless for crimes committed, or real danger of public injury from
individuals; and as standing armies in the time of peace are
dangerous to liberty, they ought not to be kept up; and that the
military shall be kept under strict subordination to, and be
governed by the civil powers.” Id., at 665.

															   Finally, after the delegates at
the Massachusetts Ratification Convention had compiled a list of
proposed amendments and alterations, a motion was made to add to
the list the following language: “[T]hat the said Constitution
never be construed to authorize Congress to … prevent the people of
the United States, who are peaceable citizens, from keeping their
own arms.” Cogan 181. This motion, however, failed to achieve the
necessary support, and the proposal was excluded from the list of
amendments the State sent to Congress. 2 Schwartz 674–675.

															   Madison, charged with the task of assembling
the proposals for amendments sent by the ratifying States, was the
principal draftsman of the Second Amendment.[ Footnote 23 ] He had before him, or at the very
least would have been aware of, all of these proposed formulations.
In addition, Madison had been a member, some years earlier, of the
committee tasked with drafting the Virginia Declaration of Rights.
That committee considered a proposal by Thomas Jefferson that would
have included within the Virginia Declaration the following
language: “No freeman shall ever be debarred the use of arms
[within his own lands or tenements].” 1 Papers of Thomas Jefferson
363 (J. Boyd ed. 1950). But the committee rejected that language,
adopting instead the provision drafted by George Mason.[ Footnote 24 ]

															   With all of these sources upon which to draw,
it is strikingly significant that Madison’s first draft omitted any
mention of nonmilitary use or possession of weapons. Rather, his
original draft repeated the essence of the two proposed amendments
sent by Virginia, combining the substance of the two provisions
succinctly into one, which read: “The right of the people to keep
and bear arms shall not be infringed; a well armed, and well
regulated militia being the best security of a free country; but no
person religiously scrupulous of bearing arms, shall be compelled
to render military service in person.” Cogan 169.

															   Madison’s decision to model the Second
Amendment on the distinctly military Virginia proposal is therefore
revealing, since it is clear that he considered and rejected
formulations that would have unambiguously protected civilian uses
of firearms. When Madison prepared his first draft, and when that
draft was debated and modified, it is reasonable to assume that all
participants in the drafting process were fully aware of the other
formulations that would have protected civilian use and possession
of weapons and that their choice to craft the Amendment as they did
represented a rejection of those alternative formulations.

															   Madison’s initial inclusion of an exemption
for conscientious objectors sheds revelatory light on the purpose
of the Amendment. It confirms an intent to describe a duty as well
as a right, and it unequivocally identifies the military character
of both. The objections voiced to the conscientious-objector clause
only confirm the central meaning of the text. Although records of
the debate in the Senate, which is where the conscientious-objector
clause was removed, do not survive, the arguments raised in the
House illuminate the perceived problems with the clause:
Specifically, there was concern that Congress “can declare who are
those religiously scrupulous, and prevent them from bearing
arms.”[ Footnote 25 ] The
ultimate removal of the clause, therefore, only serves to confirm
the purpose of the Amendment—to protect against congressional
disarmament, by whatever means, of the States’ militias.

															   The Court also contends that because “Quakers
opposed the use of arms not just for militia service, but for any
violent purpose whatsoever,” ante, at 17, the inclusion of
a conscientious-objector clause in the original draft of the
Amendment does not support the conclusion that the phrase “bear
arms” was military in meaning. But that claim cannot be squared
with the record. In the proposals cited supra, at 21–22,
both Virginia and North Carolina included the following language:
“That any person religiously scrupulous of bearing arms ought to be
exempted, upon payment of an equivalent to employ another to
bear arms in his stead ” (emphasis added).[ Footnote 26 ] There is no plausible argument
that the use of “bear arms” in those provisions was not
unequivocally and exclusively military: The State simply does not
compel its citizens to carry arms for the purpose of private
“confrontation,” ante, at 10, or for self-defense.

															   The history of the adoption of the Amendment
thus describes an overriding concern about the potential threat to
state sovereignty that a federal standing army would pose, and a
desire to protect the States’ militias as the means by which to
guard against that danger. But state militias could not effectively
check the prospect of a federal standing army so long as Congress
retained the power to disarm them, and so a guarantee against such
disarmament was needed.[ Footnote
27 ] As we explained in Miller: “With obvious purpose
to assure the continuation and render possible the effectiveness of
such forces the declaration and guarantee of the Second Amendment
were made. It must be interpreted and applied with that end in
view.” 307 U. S., at 178. The evidence plainly refutes the claim
that the Amendment was motivated by the Framers’ fears that
Congress might act to regulate any civilian uses of weapons. And
even if the historical record were genuinely ambiguous, the burden
would remain on the parties advocating a change in the law to
introduce facts or arguments “ ‘newly ascertained,’ ” Vasquez, 474 U. S., at 266; the Court is unable to
identify any such facts or arguments.

															III

															   Although it gives short shrift to
the drafting history of the Second Amendment, the Court dwells at
length on four other sources: the 17th-century English Bill of
Rights; Blackstone’s Commentaries on the Laws of England;
postenactment commentary on the Second Amendment; and post-Civil
War legislative history.[ Footnote 28 ] All of these sources shed only indirect
light on the question before us, and in any event offer little
support for the Court’s conclusion.[ Footnote 29 ] The English Bill of Rights The Court’s reliance on
Article VII of the 1689 English Bill of Rights—which, like most of
the evidence offered by the Court today, was considered in
Miller[ Footnote 30 ]— is
misguided both because Article VII was enacted in response to
different concerns from those that motivated the Framers of the
Second Amendment, and because the guarantees of the two provisions
were by no means coextensive. Moreover, the English text contained
no preamble or other provision identifying a narrow,
militia-related purpose.

															   The English Bill of Rights
responded to abuses by the Stuart monarchs; among the grievances
set forth in the Bill of Rights was that the King had violated the
law “[b]y causing several good Subjects being Protestants to be
disarmed at the same time when Papists were both armed and Employed
contrary to Law.” Article VII of the Bill of Rights was a response
to that selective disarmament; it guaranteed that “the Subjects
which are Protestants may have Armes for their defence, Suitable to
their condition and as allowed by Law.” L. Schwoerer, The
Declaration of Rights, 1689 (App. 1, pp. 295, 297) (1981). This
grant did not establish a general right of all persons, or even of
all Protestants, to possess weapons. Rather, the right was
qualified in two distinct ways: First, it was restricted to those
of adequate social and economic status (“suitable to their
Condition”); second, it was only available subject to regulation by
Parliament (“as allowed by Law”).[ Footnote 31 ]

															   The Court may well be correct that the English
Bill of Rights protected the right of some English
subjects to use some arms for personal self-defense free
from restrictions by the Crown (but not Parliament). But that
right—adopted in a different historical and political context and
framed in markedly different language—tells us little about the
meaning of the Second Amendment. Blackstone’s Commentaries The Court’s reliance on
Blackstone’s Commentaries on the Laws of England is unpersuasive for the same reason as its reliance on the English
Bill of Rights. Blackstone’s invocation of “ ‘the natural
right of resistance and self-preservation,’ ” ante ,
at 20, and “ ‘the right of having and using arms for
self-preservation and defence’ ” ibid., referred
specifically to Article VII in the English Bill of Rights . The excerpt from Blackstone offered by the Court, therefore, is,
like Article VII itself, of limited use in interpreting the very
differently worded, and differently historically situated, Second
Amendment . What is important about
Blackstone is the instruction he provided on reading the sort of
text before us today. Blackstone described an interpretive approach
that gave far more weight to preambles than the Court allows.
Counseling that “[t]he fairest and most rational method to
interpret the will of the legislator, is by exploring his
intentions at the time when the law was made, by signs the
most natural and probable,” Blackstone explained that “[i]f words
happen to be still dubious, we may establish their meaning from the
context; with which it may be of singular use to compare a word, or
a sentence, whenever they are ambiguous, equivocal, or intricate.
Thus, the proeme, or preamble, is often called in to help the
construction of an act of parliament.” 1 Commentaries on the Laws
of England 59–60 (1765) (hereinafter Blackstone). In light of the
Court’s invocation of Blackstone as “ ‘the preeminent
authority on English law for the founding generation,’ ” ante, at 20 (quoting Alden v. Maine , 527 U. S. 706 ,
715 (1999)), its disregard for his guidance on matters of
interpretation is striking. Postenactment Commentary The Court also excerpts,
without any real analysis, commentary by a number of additional
scholars, some near in time to the framing and others post-dating
it by close to a century. Those scholars are for the most part of
limited relevance in construing the guarantee of the Second
Amendment: Their views are not altogether clear,[ Footnote 32 ] they tended to collapse the
Second Amendment with Article VII of the English Bill of Rights,
and they appear to have been unfamiliar with the drafting history
of the Second Amendment.[ Footnote 33 ] The most significant of these
commentators was Joseph Story. Contrary to the Court’s assertions,
however, Story actually supports the view that the Amendment was
designed to protect the right of each of the States to maintain a
well-regulated militia. When Story used the term “palladium” in
discussions of the Second Amendment, he merely echoed the concerns
that animated the Framers of the Amendment and led to its adoption.
An excerpt from his 1833 Commentaries on the Constitution of the
United States—the same passage cited by the Court in
Miller[ Footnote
34 ]— merits reproducing at some length:

															“The importance of [the Second Amendment] will
scarcely be doubted by any persons who have duly reflected upon the
subject. The militia is the natural defence of a free country
against sudden foreign invasions, domestic insurrections, and
domestic usurpations of power by rulers. It is against sound policy
for a free people to keep up large military establishments and
standing armies in time of peace, both from the enormous expenses
with which they are attended and the facile means which they afford
to ambitious and unprincipled rulers to subvert the government, or
trample upon the rights of the people. The right of the citizens to
keep and bear arms has justly been considered as the palladium of
the liberties of a republic, since it offers a strong moral check
against the usurpation and arbitrary power of rulers, and will
generally, even if these are successful in the first instance,
enable the people to resist and triumph over them. And yet, though
this truth would seem so clear, and the importance of a
well-regulated militia would seem so undeniable, it cannot be
disguised that, among the American people, there is a growing
indifference to any system of militia discipline, and a strong
disposition, from a sense of its burdens, to be rid of all
regulations. How it is practicable to keep the people duly armed
without some organization, it is difficult to see. There is
certainly no small danger that indifference may lead to disgust,
and disgust to contempt; and thus gradually undermine all the
protection intended by the clause of our national bill of rights.”
2 J. Story, Commentaries on the Constitution of the United States
§1897, pp. 620–621 (4th ed. 1873) (footnote omitted).

															   Story thus began by tying the
significance of the Amendment directly to the paramount importance
of the militia. He then invoked the fear that drove the Framers of
the Second Amendment—specifically, the threat to liberty posed by a
standing army. An important check on that danger, he suggested, was
a “well-regulated militia,” id., at 621, for which he
assumed that arms would have to be kept and, when necessary, borne.
There is not so much as a whisper in the passage above that Story
believed that the right secured by the Amendment bore any relation
to private use or possession of weapons for activities like hunting
or personal self-defense.

															   After extolling the virtues of the militia as
a bulwark against tyranny, Story went on to decry the “growing
indifference to any system of militia discipline.” Ibid. When he wrote, “[h]ow it is practicable to keep the people duly
armed without some organization it is difficult to see,” ibid ., he underscored the degree to which he viewed the
arming of the people and the militia as indissolubly linked. Story
warned that the “growing indifference” he perceived would
“gradually undermine all the protection intended by this clause of
our national bill of rights,” ibid. In his view, the
importance of the Amendment was directly related to the continuing
vitality of an institution in the process of apparently becoming
obsolete.

															   In an attempt to downplay the absence of any
reference to nonmilitary uses of weapons in Story’s commentary, the
Court relies on the fact that Story characterized Article VII of
the English Declaration of Rights as a “ ‘similar
provision,’ ” ante, at 36. The two provisions were
indeed similar, in that both protected some uses of firearms. But
Story’s characterization in no way suggests that he believed that
the provisions had the same scope. To the contrary, Story’s
exclusive focus on the militia in his discussion of the Second
Amendment confirms his understanding of the right protected by the
Second Amendment as limited to military uses of arms.

															   Story’s writings as a Justice of this Court,
to the extent that they shed light on this question, only confirm
that Justice Story did not view the Amendment as conferring upon
individuals any “self-defense” right disconnected from service in a
state militia. Justice Story dissented from the Court’s decision in Houston v. Moore, 5 Wheat. 1, 24 (1820), which
held that a state court “had a concurrent jurisdiction” with the
federal courts “to try a militia man who had disobeyed the call of
the President, and to enforce the laws of Congress against such
delinquent.” Id., at 31–32. Justice Story believed that
Congress’ power to provide for the organizing, arming, and
disciplining of the militia was, when Congress acted, plenary; but
he explained that in the absence of congressional action, “I am
certainly not prepared to deny the legitimacy of such an exercise
of [state] authority.” Id., at 52. As to the Second
Amendment, he wrote that it “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 52–53. The Court contends that had Justice Story
understood the Amendment to have a militia purpose, the Amendment
would have had “enormous and obvious bearing on the point.” Ante, at 38. But the Court has it quite backwards: If
Story had believed that the purpose of the Amendment was to permit
civilians to keep firearms for activities like personal
self-defense, what “confirm[ation] and illustrat[ion],” Houston, 5 Wheat., at 53, could the Amendment possibly
have provided for the point that States retained the power to
organize, arm, and discipline their own militias? Post-Civil War Legislative History The Court suggests that by
the post-Civil War period, the Second Amendment was understood to
secure a right to firearm use and ownership for purely private
purposes like personal self-defense. While it is true that some of
the legislative history on which the Court relies supports that
contention, see ante, at 41–44, such sources are entitled to
limited, if any, weight. All of the statements the Court cites were
made long after the framing of the Amendment and cannot possibly
supply any insight into the intent of the Framers; and all were
made during pitched political debates, so that they are better
characterized as advocacy than good-faith attempts at
constitutional interpretation.

															   What is more, much of the
evidence the Court offers is decidedly less clear than its
discussion allows. The Court notes that “[b]lacks 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.” Ante, at 42.
The Court hastily concludes that “[n]eedless to say, the claim was
not that blacks were being prohibited from carrying arms in an
organized state militia,” ibid. But some of the claims of
the sort the Court cites may have been just that. In some Southern
States, Reconstruction-era Republican governments created state
militias in which both blacks and whites were permitted to serve.
Because “[t]he decision to allow blacks to serve alongside whites
meant that most southerners refused to join the new militia,” the
bodies were dubbed “Negro militia[s].” S. Cornell, A Well-Regulated
Militia 176–177 (2006). The “arming of the Negro militias met with
especially fierce resistance in South Carolina… . The sight of
organized, armed freedmen incensed opponents of Reconstruction and
led to an intensified campaign of Klan terror. Leading members of
the Negro militia were beaten or lynched and their weapons stolen.” Id., at 177.

															   One particularly chilling account of
Reconstruction-era Klan violence directed at a black militia member
is recounted in the memoir of Louis F. Post, A “Carpetbagger” in
South Carolina, 10 Journal of Negro History 10 (1925). Post
describes the murder by local Klan members of Jim Williams, the
captain of a “Negro militia company,” id., at 59, this
way:

															“[A] cavalcade of sixty cowardly white men,
completely disguised with face masks and body gowns, rode up one
night in March, 1871, to the house of Captain Williams … in the
wood [they] hanged [and shot] him … [and on his body they] then
pinned a slip of paper inscribed, as I remember it, with these grim
words: ‘Jim Williams gone to his last muster.’ ” Id., at 61.

															   In light of this evidence, it is
quite possible that at least some of the statements on which the
Court relies actually did mean to refer to the disarmament of black
militia members.

															IV

															   The brilliance of the debates
that resulted in the Second Amendment faded into oblivion during
the ensuing years, for the concerns about Article I’s Militia
Clauses that generated such pitched debate during the ratification
process and led to the adoption of the Second Amendment were short
lived.

															   In 1792, the year after the
Amendment was ratified, Congress passed a statute that purported to
establish “an Uniform Militia throughout the United States.” 1
Stat. 271. The statute commanded every able-bodied white male
citizen between the ages of 18 and 45 to be enrolled therein and to
“provide himself with a good musket or firelock” and other
specified weaponry.[ Footnote
35 ] Ibid. The statute is significant, for it confirmed
the way those in the founding generation viewed firearm ownership:
as a duty linked to military service. The statute they enacted,
however, “was virtually ignored for more than a century,” and was
finally repealed in 1901. See Perpich, 496 U. S., at
341.

															   The postratification history of the Second
Amendment is strikingly similar. The Amendment played little role
in any legislative debate about the civilian use of firearms for
most of the 19th century, and it made few appearances in the
decisions of this Court. Two 19th-century cases, however, bear
mentioning.

															   In United States v. Cruikshank, 92 U. S. 542 (1876), the
Court sustained a challenge to respondents’ convictions under the
Enforcement Act of 1870 for conspiring to deprive any individual of
“ ‘any right or privilege granted or secured to him by the
constitution or laws of the United States.’ ” Id., at
548. The Court wrote, as to counts 2 and 10 of respondents’
indictment:

															“The right there specified is that of ‘bearing arms
for a lawful purpose.’ This is not a right granted by the
Constitution. Neither is it in any manner dependent on that
instrument for its existence. The second amendment declares that it
shall not be infringed; but this, as has been seen, means no more
than that it shall not be infringed by Congress. This is one of the
amendments that has no other effect than to restrict the powers of
the national government.” Id., at 553.

															   The majority’s assertion that the
Court in Cruikshank “described the right protected by the
Second Amendment as ‘ “bearing arms for a lawful
purpose,” ’ ” ante, at 47 (quoting Cruikshank, 92 U. S., at 553), is not accurate. The Cruikshank Court explained that the defective indictment contained such language, but the Court did not
itself describe the right, or endorse the indictment’s description
of the right.

															   Moreover, it is entirely possible that the
basis for the indictment’s counts 2 and 10, which charged
respondents with depriving the victims of rights secured by the
Second Amendment, was the prosecutor’s belief that the
victims—members of a group of citizens, mostly black but also
white, who were rounded up by the Sheriff, sworn in as a posse to
defend the local courthouse, and attacked by a white mob—bore
sufficient resemblance to members of a state militia that they were
brought within the reach of the Second Amendment. See generally C.
Lane, The Day Freedom Died: The Colfax Massacre, The Supreme Court,
and the Betrayal of Reconstruction (2008).

															   Only one other 19th-century case in this
Court, Presser v. Illinois, 116 U. S. 252 (1886),
engaged in any significant discussion of the Second Amendment. The
petitioner in Presser was convicted of violating a state
statute that prohibited organizations other than the Illinois
National Guard from associating together as military companies or
parading with arms. Presser challenged his conviction, asserting,
as relevant, that the statute violated both the Second and the
Fourteenth Amendments. With respect to the Second Amendment, the
Court wrote:

															“We think it clear that the sections under
consideration, which only forbid bodies of men to associate
together as military organizations, or to drill or parade with arms
in cities and towns unless authorized by law, do not infringe the
right of the people to keep and bear arms. But a conclusive answer
to the contention that this amendment prohibits the legislation in
question lies in the fact that the amendment is a limitation only
upon the power of Congress and the National government, and not
upon that of the States.” Id., at 264–265.

															And in discussing the Fourteenth Amendment, the
Court explained:

															“The plaintiff in error was not a member of the
organized volunteer militia of the State of Illinois, nor did he
belong to the troops of the United States or to any organization
under the militia law of the United States. On the contrary, the
fact that he did not belong to the organized militia or the troops
of the United States was an ingredient in the offence for which he
was convicted and sentenced. The question is, therefore, had he a
right as a citizen of the United States, in disobedience of the
State law, to associate with others as a military company, and to
drill and parade with arms in the towns and cities of the State? If
the plaintiff in error has any such privilege he must be able to
point to the provision of the Constitution or statutes of the
United States by which it is conferred.” Id., at 266. Presser, therefore, both
affirmed Cruikshank ’s holding that the Second Amendment
posed no obstacle to regulation by state governments, and suggested
that in any event nothing in the Constitution protected the use of
arms outside the context of a militia “authorized by law” and
organized by the State or Federal Government.[ Footnote 36 ]

															   In 1901 the President revitalized the militia
by creating “ ‘the National Guard of the several
States,’ ” Perpich, 496 U. S., at 341, and nn. 9–10;
meanwhile, the dominant understanding of the Second Amendment’s
inapplicability to private gun ownership continued well into the
20th century. The first two federal laws directly restricting
civilian use and possession of firearms—the 1927 Act prohibiting
mail delivery of “pistols, revolvers, and other firearms capable of
being concealed on the person,” Ch. 75, 44 Stat. 1059, and the 1934
Act prohibiting the possession of sawed-off shotguns and machine
guns—were enacted over minor Second Amendment objections dismissed
by the vast majority of the legislators who participated in the
debates.[ Footnote 37 ]
Members of Congress clashed over the wisdom and efficacy of such
laws as crime-control measures. But since the statutes did not
infringe upon the military use or possession of weapons, for most
legislators they did not even raise the specter of possible
conflict with the Second Amendment.

															   Thus, for most of our history, the invalidity
of Second-Amendment-based objections to firearms regulations has
been well settled and uncontroversial.[ Footnote 38 ] Indeed, the Second Amendment was not even
mentioned in either full House of Congress during the legislative
proceedings that led to the passage of the 1934 Act. Yet
enforcement of that law produced the judicial decision that
confirmed the status of the Amendment as limited in reach to
military usage. After reviewing many of the same sources that are
discussed at greater length by the Court today, the Miller Court unanimously concluded that the Second Amendment did not apply
to the possession of a firearm that did not have “some reasonable
relationship to the preservation or efficiency of a well regulated
militia.” 307 U. S., at 178.

															   The key to that decision did not, as the Court
belatedly suggests, ante, at 49–51, 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. Indeed, if the Second Amendment were not
limited in its coverage to military uses of weapons, why should the
Court in Miller have suggested that some weapons but not
others were eligible for Second Amendment protection? If use for
self-defense were the relevant standard, why did the Court not
inquire into the suitability of a particular weapon for
self-defense purposes?

															   Perhaps in recognition of the weakness of its
attempt to distinguish Miller , the Court argues in the
alternative that Miller should be discounted because of
its decisional history. It is true that the appellee in Miller did not file a brief or make an appearance,
although the court below had held that the relevant provision of
the National Firearms Act violated the Second Amendment (albeit
without any reasoned opinion). But, as our decision in Marbury v. Madison, 1 Cranch 137, in which only
one side appeared and presented arguments, demonstrates, the
absence of adversarial presentation alone is not a basis for
refusing to accord stare decisis effect to a decision of
this Court. See Bloch, Marbury Redux, in Arguing Marbury v. Madison 59, 63 (M. Tushnet ed. 2005).
Of course, if it can be demonstrated that new evidence or arguments
were genuinely not available to an earlier Court, that fact should
be given special weight as we consider whether to overrule a prior
case. But the Court does not make that claim, because it cannot.
Although it is true that the drafting history of the Amendment was
not discussed in the Government’s brief, see ante, at 51,
it is certainly not the drafting history that the Court’s decision
today turns on. And those sources upon which the Court today relies
most heavily were available to the Miller Court.
The Government cited the English Bill of Rights and quoted a
lengthy passage from Aymette detailing the history leading
to the English guarantee, Brief for United States in United
States v. Miller, O. T. 1938, No. 696, pp 12–13; it
also cited Blackstone, id., at 9, n. 2, Cooley, id., at 12, 15, and Story, id., at 15 . The Court is reduced to critiquing the number of pages the
Government devoted to exploring the English legal sources. Only two
(in a brief 21 pages in length)! Would the Court be satisfied with
four? Ten?

															   The Court is simply wrong when it intones that Miller contained “ not a word ” about the
Amendment’s history. Ante, at 52. The Court plainly looked
to history to construe the term “Militia,” and, on the best reading
of Miller, the entire guarantee of the Second Amendment.
After noting the original Constitution’s grant of power to Congress
and to the States over the militia, the Court explained:

															“With obvious purpose to assure the continuation
and render possible the effectiveness of such forces the
declaration and guarantee of the Second Amendment were made. It
must be interpreted and applied with that end in view.

															   “The Militia which the States were expected to
maintain and train is set in contrast with Troops which they were
forbidden to keep without the consent of Congress. The sentiment of
the time strongly disfavored standing armies; the common view was
that adequate defense of country and laws could be secured through
the Militia—civilians primarily, soldiers on occasion.

															   “The signification attributed to the term
Militia appears from the debates in the Convention, the history and
legislation of Colonies and States, and the writings of approved
commentators.” Miller, 307 U. S., at 178–179.

															The majority cannot seriously believe that the Miller Court did not consider any relevant evidence; the
majority simply does not approve of the conclusion the Miller Court reached on that evidence. Standing alone,
that is insufficient reason to disregard a unanimous opinion of
this Court, upon which substantial reliance has been placed by
legislators and citizens for nearly 70 years.

															V

															   The Court concludes its opinion
by declaring that it is not the proper role of this Court to change
the meaning of rights “enshrine[d]” in the Constitution. Ante, at 64 . But the right the Court announces
was not “enshrined” in the Second Amendment by the Framers; it is
the product of today’s law-changing decision. The majority’s
exegesis has utterly failed to establish that as a matter of text
or history, “the right of law-abiding, responsible citizens to use
arms in defense of hearth and home” is “elevate[d] above all other
interests” by the Second Amendment. Ante, at 64.

															   Until today, it has been understood that
legislatures may regulate the civilian use and misuse of firearms
so long as they do not interfere with the preservation of a
well-regulated militia. The Court’s announcement of a new
constitutional right to own and use firearms for private purposes
upsets that settled understanding, but leaves for future cases the
formidable task of defining the scope of permissible regulations.
Today judicial craftsmen have confidently asserted that a policy
choice that denies a “law-abiding, responsible citize[n]” the right
to keep and use weapons in the home for self-defense is “off the
table.” Ante, at 64. Given the presumption that most
citizens are law abiding, and the reality that the need to defend
oneself may suddenly arise in a host of locations outside the home,
I fear that the District’s policy choice may well be just the first
of an unknown number of dominoes to be knocked off the
table.[ Footnote 39 ]

															   I do not know whether today’s decision will
increase the labor of federal judges to the “breaking point”
envisioned by Justice Cardozo, but it will surely give rise to a
far more active judicial role in making vitally important national
policy decisions than was envisioned at any time in the 18th, 19th,
or 20th centuries.

															   The Court properly disclaims any interest in
evaluating the wisdom of the specific policy choice challenged in
this case, but it fails to pay heed to a far more important policy
choice—the choice made by the Framers themselves. The Court would
have us believe that over 200 years ago, the Framers made a choice
to limit the tools available to elected officials wishing to
regulate civilian uses of weapons, and to authorize this Court to
use the common-law process of case-by-case judicial lawmaking to
define the contours of acceptable gun control policy. Absent
compelling evidence that is nowhere to be found in the Court’s
opinion, I could not possibly conclude that the Framers made such a
choice.

															   For these reasons, I respectfully dissent. Footnote 1 There was some limited congressional activity
earlier: A 10% federal excise tax on firearms was passed as part of
the Revenue Act of 1918, 40 Stat. 1057, and in 1927 a statute was
enacted prohibiting the shipment of handguns, revolvers, and other
concealable weapons through the United States mails. Ch. 75, 44
Stat. 1059–1060 (hereinafter 1927 Act). Footnote 2 Until the Fifth Circuit’s decision in United States v. Emerson, 270 F. 3d 203
(2001) , every Court of Appeals to consider the question
had understood Miller to hold that the Second Amendment
does not protect the right to possess and use guns for purely
private, civilian purposes. See, e.g., United States v. Haney, 264 F. 3d 1161, 1164–1166 (CA10 2001); United States v. Napier, 233 F. 3d 394,
402–404 (CA6 2000); Gillespie v. Indianapolis, 185 F. 3d 693, 710–711 (CA7 1999); United States v. Scanio, No. 97–1584, 1998 WL 802060, *2 (CA2, Nov. 12,
1998) (unpublished opinion); United States v. Wright, 117 F. 3d 1265, 1271–1274 (CA11 1997); United States v. Rybar, 103 F. 3d 273,
285–286 (CA3 1996); Hickman v. Block, 81
F. 3d 98, 100–103 (CA9 1996); United States v. Hale, 978 F. 2d 1016, 1018–1020 (CA8 1992); Thomas v. City Council of Portland, 730
F. 2d 41, 42 (CA1 1984) (per curiam); United
States v. Johnson, 497 F. 2d 548, 550 (CA4 1974) (per curiam); United States v. Johnson ,
441 F. 2d 1134, 1136 (CA5 1971); see also Sandidge v. United States, 520 A. 2d 1057, 1058–1059 (DC App.
1987). And a number of courts have remained firm in
their prior positions, even after considering Emerson. See, e.g., United States v. Lippman, 369
F. 3d 1039, 1043–1045 (CA8 2004); United States v. Parker, 362 F. 3d 1279, 1282–1284 (CA10 2004); United States v. Jackubowski, 63 Fed. Appx. 959,
961 (CA7 2003) (unpublished opinion); Silveira v. Lockyer, 312 F. 3d 1052, 1060–1066 (CA9 2002); United States v. Milheron, 231 F. Supp. 2d
376, 378 (Me. 2002); Bach v. Pataki, 289
F. Supp. 2d 217, 224–226 (NDNY 2003); United States v. Smith, 56 M. J. 711, 716 (C. A. Armed Forces
2001). Footnote 3 Our discussion in Lewis was brief but significant. Upholding a conviction for receipt of a
firearm by a felon, we wrote: “These legislative restrictions on
the use of firearms are neither based upon constitutionally suspect
criteria, nor do they entrench upon any constitutionally protected
liberties. See United States v. Miller, 307 U. S. 174 , 178 (1939) (the Second
Amendment guarantees no right to keep and bear a firearm that does
not have ‘some reasonable relationship to the preservation or
efficiency of a well regulated militia’).” 445 U. S., at 65,
n. 8. Footnote 4 See Vasquez v. Hillery, 474 U. S. 254 , 265, 266
(1986) (“ [Stare decisis] permits society to presume that
bedrock principles are founded in the law rather than in the
proclivities of individuals, and thereby contributes to the
integrity of our constitutional system of government, both in
appearance and in fact. While stare decisis is not an
inexorable command, the careful observer will discern that any
detours from the straight path of stare decisis in our
past have occurred for articulable reasons, and only when the Court
has felt obliged ‘to bring its opinions into agreement with
experience and with facts newly ascertained.’ Burnet v. Coronado Oil & Gas Co., 285 U. S. 393 , 412
(1932) (Brandeis, J., dissenting)”); Pollock v. Farmers’ Loan & Trust Co. , 157 U. S. 429 , 652
(1895) (White, J., dissenting) (“The fundamental conception of a
judicial body is that of one hedged about by precedents which are
binding on the court without regard to the personality of its
members. Break down this belief in judicial continuity and let it
be felt that on great constitutional questions this Court is to
depart from the settled conclusions of its predecessors, and to
determine them all according to the mere opinion of those who
temporarily fill its bench, and our Constitution will, in my
judgment, be bereft of value and become a most dangerous instrument
to the rights and liberties of the people”). Footnote 5 The Virginia Declaration of
Rights ¶13 (1776), provided: “That a well-regulated militia,
composed of the body of the people, trained to arms, is the proper,
natural, and safe defence of a free State; that Standing Armies, in
time of peace, should be avoided, as dangerous to liberty; and
that, in all cases, the military should be under strict
subordination to, and governed by, the civil power.” 1 B. Schwartz,
The Bill of Rights 235 (1971) (hereinafter Schwartz). Maryland’s Declaration of Rights,
Arts. XXV–XXVII (1776), provided: “That a well-regulated militia is
the proper and natural defence of a free government”; “That
standing armies are dangerous to liberty, and ought not to be
raised or kept up, without consent of the Legislature”; “That in
all cases, and at all times, the military ought to be under strict
subordination to and control of the civil power.” 1 Schwartz
282. Delaware’s Declaration of Rights,
§§18–20 (1776), provided: “That a well regulated militia is the
proper, natural, and safe defence of a free government”; “That
standing armies are dangerous to liberty, and ought not to be
raised or kept up without the consent of the Legislature”; “That in
all cases and at all times the military ought to be under strict
subordination to and governed by the civil power.” 1 Schwartz
278. Finally, New Hampshire’s Bill of
Rights, Arts. XXIV–XXVI (1783), read: “A well regulated militia is
the proper, natural, and sure defence of a state”; “Standing armies
are dangerous to liberty, and ought not to be raised or kept up
without consent of the legislature”; “In all cases, and at all
times, the military ought to be under strict subordination to, and
governed by the civil power.” 1 Schwartz 378. It elsewhere
provided: “No person who is conscientiously scrupulous about the
lawfulness of bearing arms, shall be compelled thereto, provided he
will pay an equivalent.” Id., at 377 (Art.
XIII). Footnote 6 The language of the Amendment’s
preamble also closely tracks the language of a number of
contemporaneous state militia statutes, many of which began with
nearly identical statements. Georgia’s 1778 militia statute, for
example, began, “[w]hereas a well ordered and disciplined Militia,
is essentially necessary, to the Safety, peace and prosperity, of
this State.” Act of Nov. 15, 1778, 19 Colonial Records of the State
of Georgia 103 (Candler ed. 1911 (pt. 2)). North Carolina’s 1777
militia statute started with this language: “Whereas a well
regulated Militia is absolutely necessary for the defending and
securing the Liberties of a free State.” N. C. Sess. Laws ch.
1, §I, p. 1. And Connecticut’s 1782 “Acts and Laws Regulating
the Militia” began, “Whereas the Defence and Security of all free
States depends (under God) upon the Exertions of a well regulated
Militia, and the Laws heretofore enacted have proved inadequate to
the End designed.” Conn. Acts and Laws p. 585 (hereinafter
1782 Conn. Acts). These state militia statutes give
content to the notion of a “well-regulated militia.” They identify
those persons who compose the State’s militia; they create
regiments, brigades, and divisions; they set forth command
structures and provide for the appointment of officers; they
describe how the militia will be assembled when necessary and
provide for training; and they prescribe penalties for
nonappearance, delinquency, and failure to keep the required
weapons, ammunition, and other necessary equipment. The obligation
of militia members to “keep” certain specified arms is detailed
further, n. 14, infra , and accompanying
text. Footnote 7 The sources the Court cites
simply do not support the proposition that some “logical
connection” between the two clauses is all that is required. The
Dwarris treatise, for example, merely explains that “[t]he general
purview of a statute is not … necessarily to be restrained
by any words introductory to the enacting clauses.” F. Dwarris, A
General Treatise on Statutes 268 (P. Potter ed. 1871) (emphasis
added). The treatise proceeds to caution that “the preamble cannot
control the enacting part of a statute, which is expressed in clear
and unambiguous terms, yet, if any doubt arise on the words of the
enacting part, the preamble may be resorted to, to explain it.” Id., at 269. Sutherland makes the same point. Explaining
that “[i]n the United States preambles are not as important as they
are in England,” the treatise notes that in the United States “the
settled principle of law is that the preamble cannot control the
enacting part of the statute in cases where the enacting part
is expressed in clear, unambiguous terms .” 2A N. Singer,
Sutherland on Statutory Construction §47.04, p. 146 (rev. 5th ed.
1992) (emphasis added). Surely not even the Court believes that the
Amendment’s operative provision, which, though only 14 words in
length, takes the Court the better part of 18 pages to parse, is
perfectly “clear and unambiguous.” Footnote 8 The Court’s repeated citation to
the dissenting opinion in Muscarello v. United
States, 524 U.
S. 125 (1998), ante, at 10, 13, as illuminating the
meaning of “bear arms,” borders on the risible. At issue in Muscarello was the proper construction of the word
“carries” in 18 U. S. C. §924(c) (2000 ed. and Supp. V); the
dissent in that case made passing reference to the Second Amendment
only in the course of observing that both the Constitution and
Black’s Law Dictionary suggested that something more active than
placement of a gun in a glove compartment might be meant by the
phrase “ ‘carries a firearm.’ ” 524 U. S., at
143. Footnote 9 Amici professors of
Linguistics and English reviewed uses of the term “bear arms” in a
compilation of books, pamphlets, and other sources disseminated in
the period between the Declaration of Independence and the adoption
of the Second Amendment. See Brief for Professors of Linguistics
and English as Amici Curiae 23–25. Amici determined that of 115 texts that employed the term, all but five
usages were in a clearly military context, and in four of the
remaining five instances, further qualifying language conveyed a
different meaning. The Court allows that the phrase “bear Arms” did
have as an idiomatic meaning, “ ‘to serve as a soldier, do
military service, fight,’ ” ante, at 12, but asserts
that it “ unequivocally bore that idiomatic meaning only
when followed by the preposition ‘against,’ which was in turn
followed by the target of the hostilities,” ante, at
12–13. But contemporary sources make clear that the phrase “bear
arms” was often used to convey a military meaning without those
additional words. See, e.g., To The Printer, Providence
Gazette, (May 27, 1775) (“By the common estimate of three millions
of people in America, allowing one in five to bear arms, there will
be found 600,000 fighting men”); Letter of Henry Laurens to the
Mass. Council (Jan. 21, 1778), in Letters of Delegates to Congress
1774–1789, p. 622 (P. Smith ed. 1981) (“Congress were yesterday
informed … that those Canadians who returned from Saratoga … had
been compelled by Sir Guy Carleton to bear Arms”); Of the Manner of
Making War among the Indians of North-America, Connecticut Courant
(May 23, 1785) (“The Indians begin to bear arms at the age of
fifteen, and lay them aside when they arrive at the age of sixty.
Some nations to the southward, I have been informed, do not
continue their military exercises after they are fifty”); 28
Journals of the Continental Congress 1030 (G. Hunt ed. 1910) (“That
hostages be mutually given as a security that the Convention troops
and those received in exchange for them do not bear arms prior to
the first day of May next”); H. R. J., 9th Cong., 1st
Sess., 217 (Feb. 12, 1806) (“Whereas the commanders of British
armed vessels have impressed many American seamen, and compelled
them to bear arms on board said vessels, and assist in fighting
their battles with nations in amity and peace with the United
States”); H. R. J., 15th Cong., 2d Sess., 182–183 (Jan.
14, 1819) (“[The petitioners] state that they were residing in the
British province of Canada, at the commencement of the late war,
and that owing to their attachment to the United States, they
refused to bear arms, when called upon by the British authorities
…”). Footnote
10 Aymette v. State, 21 Tenn. 154, 156 (1840), a case we cited in Miller, further confirms this reading of the phrase. In Aymette , the Tennessee Supreme Court construed the
guarantee in Tennessee’s 1834 Constitution that “ ‘the free
white men of this State, have a right to keep and bear arms for
their common defence.’ ” Explaining that the provision was
adopted with the same goals as the Federal Constitution’s Second
Amendment, the court wrote: “The words ‘bear arms’ … have reference
to their military use, and were not employed to mean wearing them
about the person as part of the dress.  As the object for
which the right to keep and bear arms is secured, is of general and
public nature, to be exercised by the people in a body, for their common defence , so the arms, the right to keep
which is secured, are such as are usually employed in civilized
warfare, and that constitute the ordinary military equipment.” 21
Tenn., at 158. The court elaborated: “[W]e may remark, that the
phrase ‘bear arms’ is used in the Kentucky Constitution as
well as our own, and implies, as has already been suggested, their
military use… . A man in the pursuit of deer, elk, and buffaloes,
might carry his rifle every day, for forty years, and, yet, it
would never be said of him, that he had borne arms, much
less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a
spear in a cane.” Id., at 161. Footnote
11 As lucidly explained in the
context of a statute mandating a sentencing enhancement for any
person who “uses” a firearm during a crime of violence or drug
trafficking crime: “To use an instrumentality
ordinarily means to use it for its intended purpose. When someone
asks, ‘Do you use a cane?,’ he is not inquiring whether you have
your grandfather’s silver-handled walking stick on display in the
hall; he wants to know whether you walk with a cane.
Similarly, to speak of ‘using a firearm’ is to speak of using it
for its distinctive purpose, i.e. , as a weapon. To be
sure, one can use a firearm in a number of ways, including as an
article of exchange, just as one can ‘use’ a cane as a hall
decoration—but that is not the ordinary meaning of ‘using’ the one
or the other. The Court does not appear to grasp the distinction
between how a word can be used and how it ordinarily is used.” Smith v. United
States , 508 U.
S. 223 , 242 (1993) (Scalia, J., dissenting) (some internal
marks, footnotes, and citations omitted). Footnote
12 See also Act for the regulating,
training, and arraying of the Militia, … of the State, 1781
N. J. Laws, ch. XIII, §12, p. 43 (“And be it Enacted,
That each Person enrolled as aforesaid, shall also keep at
his Place of Abode one Pound of good merchantable Gunpowder and
three Pounds of Ball sized to his Musket or Rifle” (emphasis
added)); An Act for establishing a Militia, 1785 Del. Laws §7,
p. 59 (“ And be it enacted, That every person between
the ages of eighteen and fifty … shall at his own expense, provide
himself … with a musket or firelock, with a bayonet, a cartouch box
to contain twenty three cartridges, a priming wire, a brush and six
flints, all in good order, on or before the first day of April
next, under the penalty of forty shillings, and shall keep the same by him at all times, ready and fit for service, under the
penalty of two shillings and six pence for each neglect or default
thereof on every muster day” (second emphasis added)); 1782 Conn.
Acts 590 (“And it shall be the duty of the Regional Quarter-Master
to provide and keep a sufficient quantity of Ammunition
and warlike stores for the use of their respective regiments, to be kept in such place or places as shall be ordered by the
Field Officers” (emphasis added)). Footnote
13 The Court notes that the First
Amendment protects two separate rights with the phrase “the ‘right
[singular] of the people peaceably to assemble, and to petition the
Government for a redress of grievances.’ ” Ante , at
18. But this only proves the point: In contrast to the language
quoted by the Court, the Second Amendment does not protect a “right
to keep and to bear arms,” but rather a “right to keep and
bear arms.” The state constitutions cited by the Court are
distinguishable on the same ground. Footnote
14 The Court’s atomistic,
word-by-word approach to construing the Amendment calls to mind the
parable of the six blind men and the elephant, famously set in
verse by John Godfrey Saxe. The Poems of John Godfrey Saxe 135–136
(1873). In the parable, each blind man approaches a single
elephant; touching a different part of the elephant’s body in
isolation, each concludes that he has learned its true nature. One
touches the animal’s leg, and concludes that the elephant is like a
tree; another touches the trunk and decides that the elephant is
like a snake; and so on. Each of them, of course, has fundamentally
failed to grasp the nature of the creature. Footnote
15 By “ ‘split[ting] the atom
of sovereignty,’ ” the Framers created “ ‘two political
capacities, one state and one federal, each protected from
incursion by the other. The resulting Constitution created a legal
system unprecedented in form and design, establishing two orders of
government, each with its own direct relationship, its own privity,
its own set of mutual rights and obligations to the people who
sustain it and are governed by it.’ ” Saenz v. Roe, 526 U.
S. 489 , 504, n. 17 (1999) (quoting U. S. Term Limits,
Inc. v. Thornton, 514 U. S. 779 , 838
(1995) (Kennedy, J., concurring)). Footnote
16 Indeed, this was one of the
grievances voiced by the colonists: Paragraph 13 of the Declaration
of Independence charged of King George, “He has kept among us, in
times of peace, Standing Armies without the Consent of our
legislatures.” Footnote
17 George Washington, writing to
Congress on September 24, 1776, warned that for Congress “[t]o
place any dependance upon Militia, is, assuredly, resting upon a
broken staff.” 6 Writings of George Washington 106, 110 (J.
Fitzpatrick ed. 1932). Several years later he reiterated this view
in another letter to Congress: “Regular Troops alone are equal to
the exigencies of modern war, as well for defence as offence
… . No Militia will ever acquire the habits necessary
to resist a regular force… . The firmness requisite for the
real business of fighting is only to be attained by a constant
course of discipline and service.” 20 id., at 49, 49–50
(Sept. 15, 1780). And Alexander Hamilton argued this view in many
debates. In 1787, he wrote: “Here I expect we shall be told
that the militia of the country is its natural bulwark, and would
be at all times equal to the national defense. This doctrine, in
substance, had like to have lost us our independence. . . .
War, like most other things, is a science to be acquired and
perfected by diligence, by perseverance, by time, and by practice.”
The Federalist No. 25, p. 166 (C. Rossiter ed.
1961). Footnote
18 “[B]ut no Appropriation of Money
to that Use [raising and supporting Armies] shall be for a longer
Term than two Years.” U. S. Const., Art I, §8, cl. 12 Footnote
19 This “calling forth” power was
only permitted in order for the militia “to execute the Laws of the
Union, suppress Insurrections and repel Invasions.” Id., Art. I, §8, cl. 15. Footnote
20 The Court assumes—incorrectly, in
my view—that even when a state militia was not called into service,
Congress would have had the power to exclude individuals from
enlistment in that state militia. See ante , at 27. That
assumption is not supported by the text of the Militia Clauses of
the original Constitution, which confer upon Congress the power to
“organiz[e], ar[m], and disciplin[e], the Militia,” Art. I,
§8, cl. 16, but not the power to say who will be members of a state
militia. It is also flatly inconsistent with the Second Amendment.
The States’ power to create their own militias provides an easy
answer to the Court’s complaint that the right as I have described
it is empty because it merely guarantees “citizens’ right to use a
gun in an organization from which Congress has plenary authority to
exclude them.” Ante, at 28. Footnote
21 In addition to the cautionary
references to standing armies and to the importance of civil
authority over the military, each of the proposals contained a
guarantee that closely resembled the language of what later became
the Third Amendment. The 18th proposal from Virginia and North
Carolina read “That no soldier in time of peace ought to be
quartered in any house without the consent of the owner, and in
time of war in such manner only as the law directs.” Elliott 659.
And New York’s language read: “That in time of Peace no Soldier
ought to be quartered in any House without the consent of the
Owner, and in time of War only by the Civil Magistrate in such
manner as the Laws may direct.” 2 Schwartz 912. Footnote
22 “Tenth, That no standing
Army shall be Kept up in time of Peace unless with the consent of
three fourths of the Members of each branch of Congress, nor shall
Soldiers in Time of Peace be quartered upon private Houses with out
the consent of the Owners.” Footnote
23 Madison explained in a letter to
Richard Peters, Aug. 19, 1789, the paramount importance of
preparing a list of amendments to placate those States that had
ratified the Constitution in reliance on a commitment that
amendments would follow: “In many States the [Constitution] was
adopted under a tacit compact in [favor] of some subsequent
provisions on this head. In [Virginia]. It would have been certainly rejected, had no assurances been given by its
advocates that such provisions would be pursued. As an honest man I feel my self bound by this consideration.” Creating the
Bill of Rights 281, 282 (H. Veit, K. Bowling, & C. Bickford
eds. 1991) (hereinafter Veit). Footnote
24 The adopted language, Virginia
Declaration of Rights ¶13 (1776), read as follows: “That a
well-regulated Militia, composed of the body of the people, trained
to arms, is the proper, natural, and safe defence of a free State;
that Standing Armies, in time of peace, should be avoided as
dangerous to liberty; and that, in all cases, the military should
be under strict subordination to, and governed by, the civil
power.” 1 Schwartz 234. Footnote
25 Veit 182. This was the objection
voiced by Elbridge Gerry, who went on to remark, in the next
breath: “What, sir, is the use of a militia? It is to prevent the
establishment of a standing army, the bane of liberty…. Whenever
government mean to invade the rights and liberties of the people,
they always attempt to destroy the militia, in order to raise an
army upon their ruins.” Ibid. Footnote
26 The failed Maryland proposals
contained similar language. See supra, at 23. Footnote
27 The Court suggests that this
historical analysis casts the Second Amendment as an “odd outlier,” ante, at 30; if by “outlier,” the Court means that the
Second Amendment was enacted in a unique and novel context, and
responded to the particular challenges presented by the Framers’
federalism experiment, I have no quarrel with the Court’s
characterization. Footnote
28 The Court’s fixation on the last
two types of sources is particularly puzzling, since both have the
same characteristics as postenactment legislative history, which is
generally viewed as the least reliable source of authority for
ascertaining the intent of any provision’s drafters. As has been
explained: “The legislative history of a
statute is the history of its consideration and enactment.
‘Subsequent legislative history’—which presumably means the post- enactment history of a statute’s consideration and
enactment—is a contradiction in terms. The phrase is used to
smuggle into judicial consideration legislators’ expression not of what a bill currently under consideration means
(which, the theory goes, reflects what their colleagues understood
they were voting for), but of what a law previously
enacted means. … In my opinion, the views of a legislator
concerning a statute already enacted are entitled to no more weight
than the views of a judge concerning a statute not yet passed.” Sullivan v. Finkelstein, 496 U. S. 617 , 631–632
(1990) (Scalia, J., concurring in part). Footnote
29 The Court stretches to derive
additional support from scattered state-court cases primarily
concerned with state constitutional provisions. See ante, at 38–41. To the extent that those state courts assumed that the
Second Amendment was coterminous with their differently worded
state constitutional arms provisions, their discussions were of
course dicta. Moreover, the cases on which the Court relies were
decided between 30 and 60 years after the ratification of the
Second Amendment, and there is no indication that any of them
engaged in a careful textual or historical analysis of the federal
constitutional provision. Finally, the interpretation of the Second
Amendment advanced in those cases is not as clear as the Court
apparently believes. In Aldridge v. Commonwealth ,
2 Va. Cas. 447 (Gen. Ct. 1824), for example, a Virginia court
pointed to the restriction on free blacks’ “right to bear arms” as
evidence that the protections of the State and Federal
Constitutions did not extend to free blacks. The Court asserts that
“[t]he claim was obviously not that blacks were prevented from
carrying guns in the militia .” Ante , at 39. But it is not
obvious at all. For in many States, including Virginia, free blacks
during the colonial period were prohibited from carrying guns in
the militia, instead being required to “muste[r] without arms”;
they were later barred from serving in the militia altogether. See
Siegel, The Federal Government’s Power to Enact Color-Conscious
Laws: An Originalist Inquiry, 92 Nw. U. L. Rev. 477, 497–498,
and n. 120 (1998). But my point is not that the Aldridge court endorsed my view of the Amendment—plainly it did not, as the
premise of the relevant passage was that the Second Amendment
applied to the States. Rather, my point is simply that the court
could have understood the Second Amendment to protect a
militia-focused right, and thus that its passing mention of the
right to bear arms provides scant support for the Court’s
position. Footnote
30 The Government argued in its
brief that: “[I]t would seem that the early English law did not
guarantee an unrestricted right to bear arms. Such recognition as
existed of a right in the people to keep and bear arms appears to
have resulted from oppression by rulers who disarmed their
political opponents and who organized large standing armies which
were obnoxious and burdensome to the people. This right, however,
it is clear, gave sanction only to the arming of the people as a
body to defend their rights against tyrannical and unprincipled
rulers. It did not permit the keeping of arms for purposes of
private defense.” Brief for United States in United States v. Miller, O. T. 1938, No. 696, pp. 11–12
(citations omitted). The Government then cited at length the
Tennessee Supreme Court’s opinion in Aymette, 21 Tenn.
154, which further situated the English Bill of Rights in its
historical context. See n. 10, supra . Footnote
31 Moreover, it was the Crown, not
Parliament, that was bound by the English provision; indeed,
according to some prominent historians, Article VII is best
understood not as announcing any individual right to unregulated
firearm ownership (after all, such a reading would fly in the face
of the text), but as an assertion of the concept of parliamentary
supremacy. See Brief for Jack N. Rakove et al. as Amici
Curiae 6–9. Footnote
32 For example, St. George Tucker,
on whom the Court relies heavily, did not consistently adhere to
the position that the Amendment was designed to protect the
“Blackstonian” self-defense right, ante, at 33. In a
series of unpublished lectures, Tucker suggested that the Amendment
should be understood in the context of the compromise over military
power represented by the original Constitution and the Second and
Tenth Amendments: “If a State chooses to incur the expense of putting
arms into the Hands of its own Citizens for their defense, it would
require no small ingenuity to prove that they have no right to do
it, or that it could by any means contravene the Authority of the
federal Govt. It may be alleged indeed that this might be done for
the purpose of resisting the laws of the federal Government, or of
shaking off the union: to which the plainest answer seems to be,
that whenever the States think proper to adopt either of these
measures, they will not be with-held by the fear of infringing any
of the powers of the federal Government. But to contend that such a
power would be dangerous for the reasons above maintained would be
subversive of every principle of Freedom in our Government; of
which the first Congress appears to have been sensible by proposing
an Amendment to the Constitution, which has since been ratified and
has become part of it, viz., ‘That 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.’ To this we may add
that this power of arming the militia, is not one of those
prohibited to the States by the Constitution, and, consequently, is
reserved to them under the twelfth Article of the ratified aments.”
S. Tucker, Ten Notebooks of Law Lectures, 1790’s, Tucker-Coleman
Papers, pp. 127–128 (College of William and Mary). See also Cornell, St. George
Tucker and the Second Amendment: Original Understandings and Modern
Misunderstandings, 47 Wm. & Mary L. Rev. 1123
(2006). Footnote
33 The Court does acknowledge that
at least one early commentator described the Second Amendment as
creating a right conditioned upon service in a state militia. See ante, at 37–38 (citing B. Oliver, The Rights of an
American Citizen (1832)). Apart from the fact that Oliver is the only commentator in the Court’s exhaustive survey who
appears to have inquired into the intent of the drafters of the
Amendment, what is striking about the Court’s discussion is its
failure to refute Oliver’s description of the meaning of the
Amendment or the intent of its drafters; rather, the Court adverts
to simple nose-counting to dismiss his view. Footnote
34 Miller, 307 U. S., at
182, n. 3. Footnote
35 The additional specified weaponry
included: “a sufficient bayonet and belt, two spare flints, and a
knapsack, a pouch with a box therein to contain not less than
twenty-four cartridges, suited to the bore of his musket or
firelock, each cartridge to contain a proper quantity of powder and
ball: or with a good rifle, knapsack, shot-pouch and powder-horn,
twenty balls suited to the bore of his rifle and a quarter of a
pound of powder.” 1 Stat. 271. Footnote
36 In another case the Court
endorsed, albeit indirectly, the reading of Miller that
has been well settled until today. In Burton v. Sills, 394
U. S. 812 (1969) (per curiam), the Court dismissed for
want of a substantial federal question an appeal from a decision of
the New Jersey Supreme Court upholding, against a Second Amendment
challenge, New Jersey’s gun control law. Although much of the
analysis in the New Jersey court’s opinion turned on the
inapplicability of the Second Amendment as a constraint on the
States, the court also quite correctly read Miller to hold
that “Congress, though admittedly governed by the second amendment,
may regulate interstate firearms so long as the regulation does not
impair the maintenance of the active, organized militia of the
states.” Burton v. Sills, 53 N. J. 86, 98,
248 A. 2d 521, 527 (1968). Footnote
37 The 1927 statute was enacted with
no mention of the Second Amendment as a potential obstacle,
although an earlier version of the bill had generated some limited
objections on Second Amendment grounds; see 66 Cong. Rec. 725–735
(1924). And the 1934 Act featured just one colloquy, during the
course of lengthy Committee debates, on whether the Second
Amendment constrained Congress’ ability to legislate in this
sphere; see Hearings on House Committee on Ways and Means
H. R. 9006, before the 73d Cong., 2d Sess., p. 19
(1934). Footnote
38 The majority appears to suggest
that even if the meaning of the Second Amendment has been
considered settled by courts and legislatures for over two
centuries, that settled meaning is overcome by the “reliance of
millions of Americans” “upon the true meaning of the right to keep
and bear arms.” Ante, at 52, n. 24. Presumably by this the
Court means that many Americans own guns for self-defense,
recreation, and other lawful purposes, and object to government
interference with their gun ownership. I do not dispute the
correctness of this observation. But it is hard to see how
Americans have “relied,” in the usual sense of the word, on the
existence of a constitutional right that, until 2001, had been
rejected by every federal court to take up the question. Rather,
gun owners have “relied” on the laws passed by democratically
elected legislatures, which have generally adopted only limited
gun-control measures. Indeed, reliance interests surely
cut the other way: Even apart from the reliance of judges and
legislators who properly believed, until today, that the Second
Amendment did not reach possession of firearms for purely private
activities, “millions of Americans,” have relied on the power of
government to protect their safety and well-being, and that of
their families. With respect to the case before us, the legislature
of the District of Columbia has relied on its ability to act to
“reduce the potentiality for gun-related crimes and gun-related
deaths from occurring within the District of Columbia,” H. Con.
Res. 694, 94th Cong., 2d Sess., 25 (1976); see post , at
14–17 (Breyer, J., dissenting); so, too have the residents of the
District. Footnote
39 It was just a few years after the
decision in Miller that Justice Frankfurter (by any
measure a true judicial conservative) warned of the perils that
would attend this Court’s entry into the “political thicket” of
legislative districting. Colegrove v. Green, 328 U. S. 549 ,
556 (1946) (plurality opinion). The equally controversial political
thicket that the Court has decided to enter today is qualitatively
different from the one that concerned Justice Frankfurter: While
our entry into that thicket was justified because the political
process was manifestly unable to solve the problem of unequal
districts, no one has suggested that the political process is not
working exactly as it should in mediating the debate between the
advocates and opponents of gun control. What impact the Court’s
unjustified entry into this thicket will have on that
ongoing debate—or indeed on the Court itself—is a matter that
future historians will no doubt discuss at length. It is, however,
clear to me that adherence to a policy of judicial restraint would
be far wiser than the bold decision announced today. BREYER, J., DISSENTING DISTRICT OF COLUMBIA V. HELLER 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-290 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 Breyer, with whom Justice
Stevens, Justice Souter, and Justice Ginsburg join, dissenting.

															   We must decide whether a District
of Columbia law that prohibits the possession of handguns in the
home violates the Second Amendment. The majority, relying upon its
view that the Second Amendment seeks to protect a right of personal
self-defense, holds that this law violates that Amendment. In my
view, it does not.

															I

															   The majority’s conclusion is
wrong for two independent reasons. The first reason is that set
forth by Justice Stevens—namely, that the Second Amendment protects
militia-related, not self-defense-related, interests. These two
interests are sometimes intertwined. To assure 18th-century
citizens that they could keep arms for militia purposes would
necessarily have allowed them to keep arms that they could have
used for self-defense as well. But self-defense alone, detached
from any militia-related objective, is not the Amendment’s
concern.

															   The second independent reason is
that the protection the Amendment provides is not absolute. The
Amendment permits government to regulate the interests that it
serves. Thus, irrespective of what those interests are—whether they
do or do not include an independent interest in self-defense—the
majority’s view cannot be correct unless it can show that the
District’s regulation is unreasonable or inappropriate in Second
Amendment terms. This the majority cannot do.

															   In respect to the first independent reason, I
agree with Justice Stevens, and I join his opinion. In this opinion
I shall focus upon the second reason. I shall show that the
District’s law is consistent with the Second Amendment even if that
Amendment is interpreted as protecting a wholly separate interest
in individual self-defense. That is so because the District’s
regulation, which focuses upon the presence of handguns in
high-crime urban areas, represents a permissible legislative
response to a serious, indeed life-threatening, problem.

															   Thus I here assume that one objective (but, as
the majority concedes, ante , at 26, not the primary objective) of those who wrote the Second Amendment
was to help assure citizens that they would have arms available for
purposes of self-defense. Even so, a legislature could reasonably
conclude that the law will advance goals of great public
importance, namely, saving lives, preventing injury, and reducing
crime. The law is tailored to the urban crime problem in that it is
local in scope and thus affects only a geographic area both limited
in size and entirely urban; the law concerns handguns, which are
specially linked to urban gun deaths and injuries, and which are
the overwhelmingly favorite weapon of armed criminals; and at the
same time, the law imposes a burden upon gun owners that seems
proportionately no greater than restrictions in existence at the
time the Second Amendment was adopted. In these circumstances, the
District’s law falls within the zone that the Second Amendment
leaves open to regulation by legislatures.

															II

															   The Second Amendment says that:
“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 and applying this Amendment, I
take as a starting point the following four propositions, based on
our precedent and today’s opinions, to which I believe the entire
Court subscribes:

															   (1) The Amendment protects an
“individual” right— i.e. , one that is separately possessed,
and may be separately enforced, by each person on whom it is
conferred. See, e.g. , ante , at 22 (opinion of the
Court); ante , at 1 (Stevens, J., dissenting).

															   (2) As evidenced by its preamble, the
Amendment was adopted “[w]ith obvious purpose to assure the
continuation and render possible the effectiveness of [militia]
forces.” United States v. Miller , 307 U. S. 174 , 178
(1939); see ante , at 26 (opinion of the Court); ante , at 1 (Stevens, J., dissenting).

															   (3) The Amendment “must be interpreted and
applied with that end in view.” Miller , supra , at
178.

															   (4) The right protected by the Second
Amendment is not absolute, but instead is subject to government
regulation. See Robertson v. Baldwin , 165 U. S. 275 , 281–282
(1897); ante , at 22, 54 (opinion of the Court).

															   My approach to this case, while involving the
first three points, primarily concerns the fourth. I shall, as I
said, assume with the majority that the Amendment, in addition to
furthering a militia-related purpose, also furthers an interest in
possessing guns for purposes of self-defense, at least to some
degree. And I shall then ask whether the Amendment nevertheless
permits the District handgun restriction at issue here.

															   Although I adopt for present purposes the
majority’s position that the Second Amendment embodies a general
concern about self-defense, I shall not assume that the Amendment
contains a specific untouchable right to keep guns in the house to
shoot burglars. The majority, which presents evidence in favor of
the former proposition, does not, because it cannot, convincingly
show that the Second Amendment seeks to maintain the latter in
pristine, unregulated form.

															   To the contrary, colonial history itself
offers important examples of the kinds of gun regulation that
citizens would then have thought compatible with the “right to keep
and bear arms,” whether embodied in Federal or State Constitutions,
or the background common law. And those examples include
substantial regulation of firearms in urban areas, including
regulations that imposed obstacles to the use of firearms for the
protection of the home.

															   Boston, Philadelphia, and New York City, the
three largest cities in America during that period, all restricted
the firing of guns within city limits to at least some degree. See
Churchill, Gun Regulation, the Police Power, and the Right to Keep
Arms in Early America, 25 Law & Hist. Rev. 139, 162 (2007);
Dept. of Commerce, Bureau of Census, C. Gibson, Population of the
100 Largest Cities and Other Urban Places in the United States:
1790 to 1990 (1998) (Table 2), online at http://www.census.gov/
population/documentation/twps0027/tab02.txt (all Internet materials
as visited June 19, 2008, and available in Clerk of Court’s case
file). Boston in 1746 had a law prohibiting the “discharge” of “any
Gun or Pistol charged with Shot or Ball in the Town” on penalty of
40 shillings, a law that was later revived in 1778. See Act of May
28, 1746, ch. 10; An Act for Reviving and Continuing Sundry Laws
that are Expired, and Near Expiring, 1778 Massachusetts Session
Laws, ch. 5, pp. 193, 194. Philadelphia prohibited, on penalty of 5
shillings (or two days in jail if the fine were not paid), firing a
gun or setting off fireworks in Philadelphia without a “governor’s
special license.” See Act of Aug. 26, 1721, §4, in 3 Mitchell,
Statutes at Large of Pennsylvania 253–254. And New York City
banned, on penalty of a 20-shilling fine, the firing of guns (even
in houses) for the three days surrounding New Year’s Day. 5
Colonial Laws of New York, ch. 1501, pp. 244–246 (1894); see also
An Act to Suppress the Disorderly Practice of Firing Guns, &
c., on the Times Therein Mentioned, 8 Statutes at Large of
Pennsylvania 1770–1776, pp. 410–412 (1902) (similar law for all
“inhabited parts” of Pennsylvania). See also 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
(prohibiting, on penalty of 5 shillings for a first offense and
more for subsequent offenses, the firing of “any Gun or Pistol … in
the Streets of any of the Towns of this Government, or in any
Tavern of the same, after dark, on any Night whatsoever”).

															   Furthermore, several towns and cities
(including Philadelphia, New York, and Boston) regulated, for
fire-safety reasons, the storage of gunpowder, a necessary
component of an operational firearm. See Cornell & DeDino, A
Well Regulated Right, 73 Fordham L. Rev. 487, 510–512 (2004).
Boston’s law in particular impacted the use of firearms in the home
very much as the District’s law does today. Boston’s gunpowder law
imposed a 10 fine upon “any Person” who “shall take into any
Dwelling-House, Stable, Barn, Out-house, Ware-house, Store, Shop,
or other Building, within the Town of Boston, any … Fire-Arm,
loaded with, or having Gun-Powder.” An Act in Addition to the
several Acts already made for the prudent Storage of Gun-Powder
within the Town of Boston, ch. XIII, 1783 Mass. Acts 218–219; see
also 1 S. Johnson, A Dictionary of the English Language 751 (4th
ed. 1773) (defining “firearms” as “[a]rms which owe their efficacy
to fire; guns”). Even assuming, as the majority does, see ante , at 59–60, that this law included an implicit
self-defense exception, it would nevertheless have prevented a
homeowner from keeping in his home a gun that he could immediately
pick up and use against an intruder. Rather, the homeowner would
have had to get the gunpowder and load it into the gun, an
operation that would have taken a fair amount of time to perform.
See Hicks, United States Military Shoulder Arms, 1795–1935, 1 Am.
Military Hist. Foundation 23, 30 (1937) (experienced soldier could,
with specially prepared cartridges as opposed to plain gunpowder
and ball, load and fire musket 3-to-4 times per minute); id. , at 26–30 (describing the loading process); see also
Grancsay, The Craft of the Early American Gunsmith, 6 Metropolitan
Museum of Art Bulletin 54, 60 (1947) (noting that rifles were
slower to load and fire than muskets).

															   Moreover, the law would, as a practical
matter, have prohibited the carrying of loaded firearms anywhere in
the city, unless the carrier had no plans to enter any building or
was willing to unload or discard his weapons before going inside.
And Massachusetts residents must have believed this kind of law
compatible with the provision in the Massachusetts Constitution
that granted “the people … a right to keep and to bear arms for the
common defence”—a provision that the majority says was interpreted
as “secur[ing] an individual right to bear arms for defensive
purposes.” Art. XVII (1780), in 3 The Federal and State
Constitutions, Colonial Charters, and Other Organic Laws 1888, 1892
(F. Thorpe ed. 1909) (hereinafter Thorpe); ante , at 28–29
(opinion of the Court).

															   The New York City law, which required that
gunpowder in the home be stored in certain sorts of containers, and
laws in certain Pennsylvania towns, which required that gunpowder
be stored on the highest story of the home, could well have
presented similar obstacles to in-home use of firearms. See Act of
April 13, 1784, ch. 28, 1784 N. Y. Laws p. 627; An Act for
Erecting the Town of Carlisle, in the County of Cumberland, into a
Borough, ch. XIV, §XLII, 1782 Pa. Laws p. 49; An Act for Erecting
the Town of Reading, in the County of Berks, into a Borough, ch.
LXXVI, §XLII, 1783 Pa. Laws p. 211. Although it is unclear whether
these laws, like the Boston law, would have prohibited the storage
of gunpowder inside a firearm, they would at the very least have
made it difficult to reload the gun to fire a second shot unless
the homeowner happened to be in the portion of the house where the
extra gunpowder was required to be kept. See 7 United States
Encyclopedia of History 1297 (P. Oehser ed. 1967) (“Until 1835 all
small arms [were] single-shot weapons, requiring reloading by hand
after every shot”). And Pennsylvania, like Massachusetts, had at
the time one of the self-defense-guaranteeing state constitutional
provisions on which the majority relies. See ante , at 28
(citing Pa. Declaration of Rights, Art. XIII (1776), in 5 Thorpe
3083).

															   The majority criticizes my citation of these
colonial laws. See ante , at 59–62. But, as much as it
tries, it cannot ignore their existence. I suppose it is possible
that, as the majority suggests, see ante , at 59–61, they
all in practice contained self-defense exceptions. But none of them
expressly provided one, and the majority’s assumption that such
exceptions existed relies largely on the preambles to these acts—an
interpretive methodology that it elsewhere roundly derides. Compare ibid. (interpreting 18th-century statutes in light of
their preambles), with ante , at 4–5, and n. 3 (contending
that the operative language of an 18th-century enactment may extend
beyond its preamble). And in any event, as I have shown, the
gunpowder-storage laws would have burdened armed
self-defense, even if they did not completely prohibit it.

															   This historical evidence demonstrates that a
self-defense assumption is the beginning , rather than the end , of any constitutional inquiry. That the District law
impacts self-defense merely raises questions about the
law’s constitutionality. But to answer the questions that are
raised (that is, to see whether the statute is unconstitutional)
requires us to focus on practicalities, the statute’s rationale,
the problems that called it into being, its relation to those
objectives—in a word, the details. There are no purely logical or
conceptual answers to such questions. All of which to say that to
raise a self-defense question is not to answer it.

															III

															   I therefore begin by asking a
process-based question: How is a court to determine whether a
particular firearm regulation (here, the District’s restriction on
handguns) is consistent with the Second Amendment? What kind of
constitutional standard should the court use? How high a protective
hurdle does the Amendment erect?

															   The question matters. The
majority is wrong when it says that the District’s law is
unconstitutional “[u]nder any of the standards of scrutiny that we
have applied to enumerated constitutional rights.” Ante ,
at 56. How could that be? It certainly would not be
unconstitutional under, for example, a “rational basis” standard,
which requires a court to uphold regulation so long as it bears a
“rational relationship” to a “legitimate governmental purpose.” Heller v. Doe , 509 U. S. 312 , 320
(1993). The law at issue here, which in part seeks to prevent
gun-related accidents, at least bears a “rational relationship” to
that “legitimate” life-saving objective. And nothing in the three
19th-century state cases to which the majority turns for support
mandates the conclusion that the present District law must fall.
See Andrews v. State , 50 Tenn. 165, 177, 186–187,
192 (1871) (striking down, as violating a state constitutional provision adopted in 1870, a statewide ban
on a carrying a broad class of weapons, insofar as it applied to
revolvers); Nunn v. State , 1 Ga. 243, 246,
250–251 (1846) (striking down similarly broad ban on openly
carrying weapons, based on erroneous view that the Federal Second
Amendment applied to the States); State v. Reid ,
1 Ala. 612, 614–615, 622 (1840) ( upholding a
concealed-weapon ban against a state constitutional
challenge). These cases were decided well (80, 55, and 49 years,
respectively) after the framing; they neither claim nor provide any
special insight into the intent of the Framers; they involve laws
much less narrowly tailored that the one before us; and state cases
in any event are not determinative of federal constitutional
questions, see, e.g. , Garcia v. San Antonio
Metropolitan Transit Authority , 469 U. S. 528 , 549 (1985) (citing Martin v. Hunter’s Lessee , 1 Wheat. 304
(1816)).

															   Respondent proposes that the Court adopt a
“strict scrutiny” test, which would require reviewing with care
each gun law to determine whether it is “narrowly tailored to
achieve a compelling governmental interest.” Abrams v. Johnson , 521
U. S. 74 , 82 (1997); see Brief for Respondent 54–62. But the
majority implicitly, and appropriately, rejects that suggestion by
broadly approving a set of laws—prohibitions on concealed weapons,
forfeiture by criminals of the Second Amendment right, prohibitions
on firearms in certain locales, and governmental regulation of
commercial firearm sales—whose constitutionality under a strict
scrutiny standard would be far from clear. See ante , at
54.

															   Indeed, adoption of a true strict-scrutiny
standard for evaluating gun regulations would be impossible. That
is because almost every gun-control regulation will seek to advance
(as the one here does) a “primary concern of every government—a
concern for the safety and indeed the lives of its citizens.” United States v. Salerno , 481 U. S. 739 , 755
(1987). The Court has deemed that interest, as well as “the
Government’s general interest in preventing crime,” to be
“compelling,” see id., at 750, 754, and the Court has in a
wide variety of constitutional contexts found such public-safety
concerns sufficiently forceful to justify restrictions on
individual liberties, see e.g. , Brandenburg v. Ohio , 395
U. S. 444 , 447 (1969) (per curiam) (First Amendment
free speech rights); Sherbert v. Verner , 374 U. S. 398 , 403
(1963) (First Amendment religious rights); Brigham City v. Stuart , 547
U. S. 398 , 403–404 (2006) (Fourth Amendment protection of the
home); New York v. Quarles , 467 U. S. 649 , 655
(1984) (Fifth Amendment rights under Miranda v. Arizona , 384 U. S. 436 (1966)); Salerno , supra , at 755 (Eighth Amendment bail
rights). Thus, any attempt in theory to apply strict
scrutiny to gun regulations will in practice turn into an
interest-balancing inquiry, with the interests protected by the
Second Amendment on one side and the governmental public-safety
concerns on the other, the only question being whether the
regulation at issue impermissibly burdens the former in the course
of advancing the latter.

															   I would simply adopt such an
interest-balancing inquiry explicitly. The fact that important
interests lie on both sides of the constitutional equation suggests
that review of gun-control regulation is not a context in which a
court should effectively presume either constitutionality (as in
rational-basis review) or unconstitutionality (as in strict
scrutiny). Rather, “where a law significantly implicates competing
constitutionally protected interests in complex ways,” the Court
generally 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. See Nixon v. Shrink Missouri Government PAC , 528 U. S. 377 , 402
(2000) (Breyer, J., concurring). Any answer would take account both
of the statute’s effects upon the competing interests and the
existence of any clearly superior less restrictive alternative. See ibid. Contrary to the majority’s unsupported suggestion
that this sort of “proportionality” approach is unprecedented, see ante , at 62, the Court has applied it in various
constitutional contexts, including election-law cases, speech
cases, and due process cases. See 528 U. S., at 403 (citing
examples where the Court has taken such an approach); see also, e.g. , Thompson v. Western States Medical
Center , 535 U.
S. 357 , 388 (2002) (Breyer, J., dissenting) (commercial
speech); Burdick v. Takushi , 504 U. S. 428 , 433
(1992) (election regulation); Mathews v. Eldridge , 424 U. S. 319 , 339–349
(1976) (procedural due process); Pickering v. Board of
Ed. of Township High School Dist. 205, Will Cty. , 391 U. S. 563 , 568
(1968) (government employee speech).

															   In applying this kind of standard the Court
normally defers to a legislature’s empirical judgment in matters
where a legislature is likely to have greater expertise and greater
institutional factfinding capacity. See Turner Broadcasting
System, Inc. v. FCC , 520 U. S. 180 , 195–196
(1997); see also Nixon , supra, at 403 (Breyer,
J., concurring). Nonetheless, a court, not a legislature, must make
the ultimate constitutional conclusion, exercising its “independent
judicial judgment” in light of the whole record to determine
whether a law exceeds constitutional boundaries. Randall v. Sorrell , 548 U. S. 230 , 249
(2006) (opinion of Breyer, J.) (citing Bose Corp. v. Consumers Union of United States, Inc. , 466 U. S. 485 , 499
(1984)).

															   The above-described approach seems preferable
to a more rigid approach here for a further reason. Experience as
much as logic has led the Court to decide that in one area of
constitutional law or another the interests are likely to prove
stronger on one side of a typical constitutional case than on the
other. See, e.g. , United States v. Virginia , 518 U. S. 515 , 531–534
(1996) (applying heightened scrutiny to gender-based
classifications, based upon experience with prior cases); Williamson v. Lee Optical of Okla., Inc. , 348 U. S. 483 ,
488 (1955) (applying rational-basis scrutiny to economic
legislation, based upon experience with prior cases). Here, we have
little prior experience. Courts that do have experience in
these matters have uniformly taken an approach that treats
empirically-based legislative judgment with a degree of deference.
See Winkler, Scrutinizing the Second Amendment, 105 Mich.
L. Rev. 683, 687, 716–718 (2007) (describing hundreds of
gun-law decisions issued in the last half-century by Supreme Courts
in 42 States, which courts with “surprisingly little variation,”
have adopted a standard more deferential than strict scrutiny).
While these state cases obviously are not controlling, they are
instructive. Cf., e.g. , Bartkus v. Illinois , 359 U. S. 121 , 134
(1959) (looking to the “experience of state courts” as informative
of a constitutional question). And they thus provide some comfort
regarding the practical wisdom of following the approach that I
believe our constitutional precedent would in any event
suggest.

															IV

															   The present suit involves
challenges to three separate District firearm restrictions. The
first requires a license from the District’s Chief of Police in
order to carry a “pistol,” i.e. , a handgun, anywhere in
the District. See D. C. Code §22–4504(a) (2001); see also
§§22–4501(a), 22–4506. Because the District assures us that
respondent could obtain such a license so long as he meets the
statutory eligibility criteria, and because respondent concedes
that those criteria are facially constitutional, I, like the
majority, see no need to address the constitutionality of the
licensing requirement. See ante , at 58–59.

															   The second District restriction
requires that the lawful owner of a firearm keep his weapon
“unloaded and disassembled or bound by a trigger lock or similar
device” unless it is kept at his place of business or being used
for lawful recreational purposes. See §7–2507.02. The only dispute
regarding this provision appears to be whether the Constitution
requires an exception that would allow someone to render a firearm
operational when necessary for self-defense ( i.e. , that
the firearm may be operated under circumstances where the common
law would normally permit a self-defense justification in defense
against a criminal charge). See Parker v. District of
Columbia , 478 F. 3d 370, 401 (2007) (case below); ante , at 57–58 (opinion of the Court); Brief for
Respondent 52–54. The District concedes that such an exception
exists. See Brief for Petitioners 56–57. This Court has final
authority (albeit not often used) to definitively interpret
District law, which is, after all, simply a species of federal law.
See, e.g. , Whalen v. United States , 445 U. S. 684 ,
687–688 (1980); see also Griffin v. United
States , 336 U.
S. 704 , 716–718 (1949). And because I see nothing in the
District law that would preclude the existence of a
background common-law self-defense exception, I would avoid the
constitutional question by interpreting the statute to include it.
See Ashwander v. TVA , 297 U. S. 288 , 348
(1936) (Brandeis, J., concurring).

															   I am puzzled by the majority’s unwillingness
to adopt a similar approach. It readily reads unspoken self-defense
exceptions into every colonial law, but it refuses to accept the
District’s concession that this law has one. Compare ante ,
at 59–61, with ante , at 57–58. The one District case it
cites to support that refusal, McIntosh v. Washington , 395 A. 2d 744, 755–756 (1978), merely
concludes that the District Legislature had a rational basis for
applying the trigger-lock law in homes but not in places of
business. Nowhere does that case say that the statute precludes a
self-defense exception of the sort that I have just described. And
even if it did, we are not bound by a lower court’s interpretation
of federal law.

															   The third District restriction prohibits (in
most cases) the registration of a handgun within the District. See
§7–2502.02(a)(4). Because registration is a prerequisite to firearm
possession, see §7–2502.01(a), the effect of this provision is
generally to prevent people in the District from possessing
handguns. In determining whether this regulation violates the
Second Amendment, I shall ask how the statute seeks to further the
governmental interests that it serves, how the statute burdens the
interests that the Second Amendment seeks to protect, and whether
there are practical less burdensome ways of furthering those
interests. The ultimate question is whether the statute imposes
burdens that, when viewed in light of the statute’s legitimate
objectives, are disproportionate. See Nixon , 528 U. S., at
402 (Breyer, J., concurring).

															A

															   No one doubts the constitutional
importance of the statute’s basic objective, saving lives. See, e.g. , Salerno , 481 U. S., at 755. But there is
considerable debate about whether the District’s statute helps to
achieve that objective. I begin by reviewing the statute’s tendency
to secure that objective from the perspective of (1) the
legislature (namely, the Council of the District of Columbia) that
enacted the statute in 1976, and (2) a court that seeks to evaluate
the Council’s decision today.

															1

															   First, consider the facts as the
legislature saw them when it adopted the District statute. As
stated by the local council committee that recommended its
adoption, the major substantive goal of the District’s handgun
restriction is “to reduce the potentiality for gun-related crimes
and gun-related deaths from occurring within the District of
Columbia.” Hearing and Disposition before the House Committee on
the District of Columbia, 94th Cong., 2d Sess., on H. Con. Res.
694, Ser. No. 94–24, p. 25 (1976) (herinafter DC Rep.)
(reproducing, inter alia, the Council committee report).
The committee concluded, on the basis of “extensive public
hearings” and “lengthy research,” that “[t]he easy availability of
firearms in the United States has been a major factor contributing
to the drastic increase in gun-related violence and crime over the
past 40 years.” Id., at 24, 25. It reported to the Council
“startling statistics,” id., at 26, regarding gun-related
crime, accidents, and deaths, focusing particularly on the relation
between handguns and crime and the proliferation of handguns within
the District. See id., at 25–26.

															   The committee informed the
Council that guns were “responsible for 69 deaths in this country
each day,” for a total of “[a]pproximately 25,000 gun-deaths … each
year,” along with an additional 200,000 gun-related injuries. Id., at 25. Three thousand of these deaths, the report
stated, were accidental. Ibid. A quarter of the victims in
those accidental deaths were children under the age of 14. Ibid. And according to the committee, “[f]or every
intruder stopped by a homeowner with a firearm, there are 4
gun-related accidents within the home.” Ibid. In respect to local crime, the committee
observed that there were 285 murders in the District during 1974—a
record number. Id., at 26. The committee also stated that,
“[c]ontrary to popular opinion on the subject, firearms are more
frequently involved in deaths and violence among relatives and
friends than in premeditated criminal activities.” Ibid. Citing an article from the American Journal of Psychiatry, the
committee reported that “[m]ost murders are committed by previously
law-abiding citizens, in situations where spontaneous violence is
generated by anger, passion or intoxication, and where the killer
and victim are acquainted.” Ibid. “Twenty-five percent of
these murders,” the committee informed the Council, “occur within
families.” Ibid. The committee report furthermore presented
statistics strongly correlating handguns with crime. Of the 285
murders in the District in 1974, 155 were committed with handguns. Ibid. This did not appear to be an aberration, as the
report revealed that “handguns [had been] used in roughly 54% of
all murders” (and 87% of murders of law enforcement officers)
nationwide over the preceding several years. Ibid. Nor
were handguns only linked to murders, as statistics showed that
they were used in roughly 60% of robberies and 26% of assaults. Ibid. “A crime committed with a pistol,” the committee
reported, “is 7 times more likely to be lethal than a crime
committed with any other weapon.” Id. , at 25. The
committee furthermore presented statistics regarding the
availability of handguns in the United States, ibid. , and
noted that they had “become easy for juveniles to obtain,” even
despite then-current District laws prohibiting juveniles from
possessing them, id., at 26.

															   In the committee’s view, the current District
firearms laws were unable “to reduce the potentiality for
gun-related violence,” or to “cope with the problems of gun control
in the District” more generally. Ibid. In the absence of
adequate federal gun legislation, the committee concluded, it
“becomes necessary for local governments to act to protect their
citizens, and certainly the District of Columbia as the only
totally urban statelike jurisdiction should be strong in its
approach.” Id., at 27. It recommended that the Council
adopt a restriction on handgun registration to reflect “a
legislative decision that, at this point in time and due to the
gun-control tragedies and horrors enumerated previously” in the
committee report, “pistols … are no longer justified in this
jurisdiction.” Id., at 31; see also ibid. (handgun restriction “denotes a policy decision that handguns …
have no legitimate use in the purely urban environment of the
District”).

															   The District’s special focus on handguns thus
reflects the fact that the committee report found them to have a
particularly strong link to undesirable activities in the
District’s exclusively urban environment. See id., at
25–26. The District did not seek to prohibit possession of other
sorts of weapons deemed more suitable for an “urban area.” See id., at 25. Indeed, an original draft of the bill, and the
original committee recommendations, had sought to prohibit
registration of shotguns as well as handguns, but the Council as a
whole decided to narrow the prohibition. Compare id., at
30 (describing early version of the bill), with D. C. Code
§7–2502.02).

															2

															   Next, consider the facts as a
court must consider them looking at the matter as of today. See, e.g. , Turner , 520 U. S., at 195 (discussing role
of court as factfinder in a constitutional case). Petitioners, and
their amici, have presented us with more recent statistics
that tell much the same story that the committee report told 30
years ago. At the least, they present nothing that would permit us
to second-guess the Council in respect to the numbers of gun
crimes, injuries, and deaths, or the role of handguns.

															   From 1993 to 1997, there were
180,533 firearm-related deaths in the United States, an average of
over 36,000 per year. Dept. of Justice, Bureau of Justice
Statistics, M. Zawitz & K. Strom, Firearm Injury and Death from
Crime, 1993–97, p. 2 (Oct. 2000), online at http://
www.ojp.usdoj.gov/bjs/pub/pdf/fidc9397.pdf (hereinafter Firearm
Injury and Death from Crime). Fifty-one percent were suicides, 44%
were homicides, 1% were legal interventions, 3% were unintentional
accidents, and 1% were of undetermined causes. See ibid. Over that same period there were an additional 411,800 nonfatal
firearm-related injuries treated in U. S. hospitals, an average of
over 82,000 per year. Ibid. Of these, 62% resulted from
assaults, 17% were unintentional, 6% were suicide attempts, 1% were
legal interventions, and 13% were of unknown causes. Ibid. The statistics are particularly striking in
respect to children and adolescents. In over one in every eight
firearm-related deaths in 1997, the victim was someone under the
age of 20. American Academy of Pediatrics, Firearm-Related Injuries
Affecting the Pediatric Population, 105 Pediatrics 888 (2000)
(hereinafter Firearm-Related Injuries). Firearm-related deaths
account for 22.5% of all injury deaths between the ages of 1 and
19. Ibid. More male teenagers die from firearms than from
all natural causes combined. Dresang, Gun Deaths in Rural and Urban
Settings, 14 J. Am. Bd. Family Practice 107 (2001). Persons under
25 accounted for 47% of hospital-treated firearm injuries between
June 1, 1992 and May 31, 1993. Firearm-Related Injuries 891.

															   Handguns are involved in a majority of firearm
deaths and injuries in the United States. Id., at 888.
From 1993 to 1997, 81% of firearm-homicide victims were killed by
handgun. Firearm Injury and Death from Crime 4; see also Dept. of
Justice, Bureau of Justice Statistics, C. Perkins, Weapon Use and
Violent Crime, p. 8 (Sept. 2003), (Table 10),
http://www.ojp.usdoj.gov/bjs/pub/pdf/wuvc01. pdf (hereinafter
Weapon Use and Violent Crime) (statistics indicating roughly the
same rate for 1993–2001). In the same period, for the 41% of
firearm injuries for which the weapon type is known, 82% of them
were from handguns. Firearm Injury and Death From Crime 4. And
among children under the age of 20, handguns account for
approximately 70% of all unintentional firearm-related injuries and
deaths. Firearm-Related Injuries 890. In particular, 70% of all
firearm-related teenage suicides in 1996 involved a handgun. Id., at 889; see also Zwerling, Lynch, Burmeister, &
Goertz, The Choice of Weapons in Firearm Suicides in Iowa, 83 Am.
J. Public Health 1630, 1631 (1993) (Table 1) (handguns used in
36.6% of all firearm suicides in Iowa from 1980–1984 and 43.8% from
1990–1991).

															   Handguns also appear to be a very popular
weapon among criminals. In a 1997 survey of inmates who were armed
during the crime for which they were incarcerated, 83.2% of state
inmates and 86.7% of federal inmates said that they were armed with
a handgun. See Dept. of Justice, Bureau of Justice Statistics, C.
Harlow, Firearm Use by Offenders, p. 3 (Nov. 2001), online at
http:// www.ojp.usdoj.gov/bjs/pub/pdf/fuo.pdf; see also Weapon Use
and Violent Crime 2 (Table 2) (statistics indicating that handguns
were used in over 84% of nonlethal violent crimes involving
firearms from 1993 to 2001). And handguns are not only popular
tools for crime, but popular objects of it as well: the FBI
received on average over 274,000 reports of stolen guns for each
year between 1985 and 1994, and almost 60% of stolen guns are
handguns. Dept. of Justice, Bureau of Justice Statistics, M.
Zawitz, Guns Used in Crime, p. 3 (July 1995), online at
http://www.ojp.usdoj.gov/bjs/pub/pdf/guic.pdf. Department of
Justice studies have concluded that stolen handguns in particular
are an important source of weapons for both adult and juvenile
offenders. Ibid. Statistics further suggest that urban
areas, such as the District, have different experiences with
gun-related death, injury, and crime, than do less densely
populated rural areas. A disproportionate amount of violent and
property crimes occur in urban areas, and urban criminals are more
likely than other offenders to use a firearm during the commission
of a violent crime. See Dept. of Justice, Bureau of Justice
Statistics, D. Duhart, Urban, Suburban, and Rural Victimization,
1993–98, pp. 1, 9 (Oct. 2000), online at
http://www.ojp.usdoj.gov/bjs/pub/pdf/ usrv98.pdf. Homicide appears
to be a much greater issue in urban areas; from 1985 to 1993, for
example, “half of all homicides occurred in 63 cities with 16% of
the nation’s population.” Wintemute, The Future of Firearm Violence
Prevention, 282 JAMA 475 (1999). One study concluded that although
the overall rate of gun death between 1989 and 1999 was roughly the
same in urban than rural areas, the urban homicide rate was three
times as high; even after adjusting for other variables, it was
still twice as high. Branas, Nance, Elliott, Richmond, &
Schwab, Urban-Rural Shifts in Intentional Firearm Death, 94 Am. J.
Public Health 1750, 1752 (2004); see also ibid. (noting
that rural areas appear to have a higher rate of firearm suicide).
And a study of firearm injuries to children and adolescents in
Pennsylvania between 1987 and 2000 showed an injury rate in urban
counties 10 times higher than in nonurban counties. Nance &
Branas, The Rural-Urban Continuum, 156 Archives of Pediatrics &
Adolescent Medicine 781, 782 (2002).

															   Finally, the linkage of handguns to firearms
deaths and injuries appears to be much stronger in urban than in
rural areas. “[S]tudies to date generally support the hypothesis
that the greater number of rural gun deaths are from rifles or
shotguns, whereas the greater number of urban gun deaths are from
handguns.” Dresang, supra , at 108. And the Pennsylvania
study reached a similar conclusion with respect to firearm
injuries—they are much more likely to be caused by handguns in
urban areas than in rural areas. See Nance & Branas, supra , at 784.

															3

															   Respondent and his many amici for the most part do not disagree about the figures set forth in the preceding subsection, but they do
disagree strongly with the District’s predictive judgment that a ban on handguns will help solve the crime and accident
problems that those figures disclose. In particular, they disagree
with the District Council’s assessment that “freezing the pistol …
population within the District,” DC Rep., at 26, will reduce crime,
accidents, and deaths related to guns. And they provide facts and
figures designed to show that it has not done so in the past, and
hence will not do so in the future.

															   First, they point out that, since
the ban took effect, violent crime in the District has increased,
not decreased. See Brief for Criminologists et al. as Amici Curiae 4–8, 3a (hereinafter Criminologists’ Brief);
Brief for Congress of Racial Equality as Amicus Curiae 35–36; Brief for National Rifle Assn. et al. as Amici
Curiae 28–30 (hereinafter NRA Brief). Indeed, a comparison
with 49 other major cities reveals that the District’s homicide
rate is actually substantially higher relative to these
other cities than it was before the handgun restriction went into
effect. See Brief for Academics as Amici Curiae 7–10
(hereinafter Academics’ Brief); see also Criminologists’ Brief 6–9,
3a–4a, 7a. Respondent’s amici report similar results in
comparing the District’s homicide rates during that period to that
of the neighboring States of Maryland and Virginia (neither of
which restricts handguns to the same degree), and to the homicide
rate of the Nation as a whole. See Academics’ Brief 11–17;
Criminologists’ Brief 6a, 8a.

															   Second, respondent’s amici point to a
statistical analysis that regresses murder rates against the
presence or absence of strict gun laws in 20 European nations. See
Criminologists’ Brief 23 (citing Kates & Mauser, Would Banning
Firearms Reduce Murder and Suicide? 30 Harv. J. L. & Pub.
Pol’y 649, 651–694 (2007)). That analysis concludes that strict gun
laws are correlated with more murders, not fewer. See
Criminologists’ Brief 23; see also id., at 25–28. They
also cite domestic studies, based on data from various cities,
States, and the Nation as a whole, suggesting that a reduction in
the number of guns does not lead to a reduction in the amount of
violent crime. See id., at 17–20. They further argue that
handgun bans do not reduce suicide rates, see id., at
28–31, 9a, or rates of accidents, even those involving children,
see Brief for International Law Enforcement Educators and Trainers
Assn. et al. as Amici Curiae App. 7–15 (hereinafter
ILEETA Brief).

															   Third, they point to evidence indicating that
firearm ownership does have a beneficial self-defense effect. Based
on a 1993 survey, the authors of one study estimated that there
were 2.2-to-2.5 million defensive uses of guns (mostly brandishing,
about a quarter involving the actual firing of a gun) annually. See
Kleck & Gertz, Armed Resistance to Crime, 86 J. Crim. L. &
C. 150, 164 (1995); see also ILEETA Brief App. 1–6 (summarizing
studies regarding defensive uses of guns). Another study estimated
that for a period of 12 months ending in 1994, there were 503,481
incidents in which a burglar found himself confronted by an armed
homeowner, and that in 497,646 (98.8%) of them, the intruder was
successfully scared away. See Ikida, Dahlberg, Sacks, Mercy, &
Powell, Estimating Intruder-Related Firearms Retrievals in U. S.
Households, 12 Violence & Victims 363 (1997). A third study
suggests that gun-armed victims are substantially less likely than
non-gun-armed victims to be injured in resisting robbery or
assault. Barnett & Kates, Under Fire, 45 Emory L. J. 1139,
1243–1244, n. 478 (1996). And additional evidence suggests that
criminals are likely to be deterred from burglary and other crimes
if they know the victim is likely to have a gun. See Kleck, Crime
Control Through the Private Use of Armed Force, 35 Social Problems
1, 15 (1988) (reporting a substantial drop in the burglary rate in
an Atlanta suburb that required heads of households to own guns);
see also ILEETA Brief 17–18 (describing decrease in sexual assaults
in Orlando when women were trained in the use of guns).

															   Fourth, respondent’s amici argue that
laws criminalizing gun possession are self-defeating, as evidence
suggests that they will have the effect only of restricting
law-abiding citizens, but not criminals, from acquiring guns. See, e.g. , Brief for President Pro Tempore of Senate
of Pennsylvania as Amicus Curiae 35, 36, and n. 15.
That effect, they argue, will be especially pronounced in the
District, whose proximity to Virginia and Maryland will provide
criminals with a steady supply of guns. See Brief for Heartland
Institute as Amicus Curiae 20.

															   In the view of respondent’s amici ,
this evidence shows that other remedies—such as less restriction on gun ownership, or liberal authorization of
law-abiding citizens to carry concealed weapons—better fit the
problem. See, e.g. , Criminologists’ Brief 35–37
(advocating easily obtainable gun licenses); Brief for Southeastern
Legal Foundation, Inc. et al. as Amici Curiae 15
(hereinafter SLF Brief) (advocating “widespread gun ownership” as a
deterrent to crime); see also J. Lott, More Guns, Less Crime (2d
ed. 2000). They further suggest that at a minimum the District
fails to show that its remedy, the gun ban, bears a
reasonable relation to the crime and accident problems that the District seeks to solve. See, e.g. , Brief for
Respondent 59–61.

															   These empirically based arguments may have
proved strong enough to convince many legislatures, as a matter of
legislative policy, not to adopt total handgun bans. But the
question here is whether they are strong enough to destroy judicial
confidence in the reasonableness of a legislature that rejects
them. And that they are not. For one thing, they can lead us more
deeply into the uncertainties that surround any effort to reduce
crime, but they cannot prove either that handgun possession
diminishes crime or that handgun bans are ineffective. The
statistics do show a soaring District crime rate. And the
District’s crime rate went up after the District adopted its
handgun ban. But, as students of elementary logic know, after
it does not mean because of it. What would the
District’s crime rate have looked like without the ban? Higher?
Lower? The same? Experts differ; and we, as judges, cannot say.

															   What about the fact that foreign nations with
strict gun laws have higher crime rates? Which is the cause and
which the effect? The proposition that strict gun laws cause crime is harder to accept than the proposition that
strict gun laws in part grow out of the fact that a nation already
has a higher crime rate. And we are then left with the same
question as before: What would have happened to crime without the
gun laws—a question that respondent and his amici do not
convincingly answer.

															   Further, suppose that respondent’s amici are right when they say that householders’
possession of loaded handguns help to frighten away intruders. On
that assumption, one must still ask whether that benefit is worth
the potential death-related cost. And that is a question without a
directly provable answer.

															   Finally, consider the claim of respondent’s amici that handgun bans cannot work; there are
simply too many illegal guns already in existence for a ban on
legal guns to make a difference. In a word, they claim that, given
the urban sea of pre-existing legal guns, criminals can readily
find arms regardless. Nonetheless, a legislature might respond, we
want to make an effort to try to dry up that urban sea, drop by
drop. And none of the studies can show that effort is not
worthwhile.

															   In a word, the studies to which respondent’s amici point raise policy-related questions. They succeed
in proving that the District’s predictive judgments are
controversial. But they do not by themselves show that those
judgments are incorrect; nor do they demonstrate a consensus,
academic or otherwise, supporting that conclusion.

															   Thus, it is not surprising that the District
and its amici support the District’s handgun restriction
with studies of their own. One in particular suggests that,
statistically speaking, the District’s law has indeed had positive
life-saving effects. See Loftin, McDowall, Weirsema, & Cottey,
Effects of Restrictive Licensing of Handguns on Homicide and
Suicide in the District of Columbia, 325 New England J. Med. 1615
(1991) (hereinafter Loftin study). Others suggest that firearm
restrictions as a general matter reduce homicides, suicides, and
accidents in the home. See, e.g. , Duggan, More Guns, More
Crime, 109 J. Pol. Econ. 1086 (2001); Kellerman, Somes, Rivara,
Lee, & Banton, Injuries and Deaths Due to Firearms in the Home,
45 J. Trauma, Infection & Critical Care 263 (1998); Miller,
Azrael, & Hemenway, Household Firearm Ownership and Suicide
Rates in the United States, 13 Epidemiology 517 (2002). Still
others suggest that the defensive uses of handguns are not as great
in number as respondent’s amici claim. See, e.g. ,
Brief for American Public Health Assn. et al. as Amici
Curiae 17–19 (hereinafter APHA Brief) (citing studies).

															   Respondent and his amici reply to
these responses; and in doing so, they seek to discredit as
methodologically flawed the studies and evidence relied upon by the
District. See, e.g. , Criminologists’ Brief 9–17, 20–24;
Brief for Assn. Am. Physicians and Surgeons, Inc. as Amicus
Curiae 12–18; SLF Brief 17–22; Britt, Kleck, & Bordua, A
Reassessment of the D.C. Gun Law, 30 Law & Soc. Rev. 361 (1996)
(criticizing the Loftin study). And, of course, the District’s amici produce counter-rejoinders, referring to articles
that defend their studies. See, e.g. , APHA Brief 23,
n. 5 (citing McDowall, Loftin, & Wiersema et al.,
Using Quasi-Experiments to Evaluate Firearm Laws, 30 Law & Soc.
Rev. 381 (1996)).

															   The upshot is a set of studies and
counterstudies that, at most, could leave a judge uncertain about
the proper policy conclusion. But from respondent’s perspective any
such uncertainty is not good enough. That is because legislators,
not judges, have primary responsibility for drawing policy
conclusions from empirical fact. And, given that constitutional
allocation of decisionmaking responsibility, the empirical evidence
presented here is sufficient to allow a judge to reach a firm legal conclusion.

															   In particular this Court, in First Amendment
cases applying intermediate scrutiny, has said that our “sole
obligation” in reviewing a legislature’s “predictive judgments” is
“to assure that, in formulating its judgments,” the legislature
“has drawn reasonable inferences based on substantial evidence.” Turner , 520 U. S., at 195 (internal quotation marks
omitted). And judges, looking at the evidence before us, should
agree that the District legislature’s predictive judgments satisfy
that legal standard. That is to say, the District’s judgment, while
open to question, is nevertheless supported by “substantial
evidence.”

															   There is no cause here to depart from the
standard set forth in Turner, for the District’s decision
represents the kind of empirically based judgment that
legislatures, not courts, are best suited to make. See Nixon , 528 U. S., at 402 (Breyer, J., concurring). In
fact, deference to legislative judgment seems particularly
appropriate here, where the judgment has been made by a local
legislature, with particular knowledge of local problems and
insight into appropriate local solutions. See Los Angeles v. Alameda Books, Inc. , 535 U. S. 425 , 440
(2002) (plurality opinion) (“[W]e must acknowledge that the Los
Angeles City Council is in a better position than the Judiciary to
gather an evaluate data on local problems”); cf. DC Rep., at 67
(statement of Rep. Gude) (describing District’s law as “a decision
made on the local level after extensive debate and deliberations”). Different localities may seek to solve similar problems
in different ways, and a “city must be allowed a reasonable
opportunity to experiment with solutions to admittedly serious
problems.” Renton v. Playtime Theatres, Inc. , 475 U. S. 41 , 52
(1986) (internal quotation marks omitted). “The Framers recognized
that the most effective democracy occurs at local levels of
government, where people with firsthand knowledge of local problems
have more ready access to public officials responsible for dealing
with them.” Garcia v. San Antonio Metropolitan Transit
Authority , 469 U. S. 528 , 575, n. 18 (1985)
(Powell, J., dissenting) (citing The Federalist No. 17, p. 107 (J.
Cooke ed. 1961) (A. Hamilton)). We owe that democratic process some
substantial weight in the constitutional calculus. For these reasons, I conclude that
the District’s statute properly seeks to further the sort of
life-preserving and public-safety interests that the Court has
called “compelling.” Salerno , 481 U. S., at 750,
754. B I next assess the
extent to which the District’s law burdens the interests that the
Second Amendment seeks to protect. Respondent and his amici , as well as the majority, suggest that those
interests include: (1) the preservation of a “well regulated
Militia”; (2) safeguarding the use of firearms for sporting
purposes, e.g. , hunting and marksmanship; and (3) assuring
the use of firearms for self-defense. For argument’s sake, I shall
consider all three of those interests here. 1 The District’s
statute burdens the Amendment’s first and primary objective hardly
at all. As previously noted, there is general agreement among the
Members of the Court that the principal (if not the only) purpose
of the Second Amendment is found in the Amendment’s text: the
preservation of a “well regulated Militia.” See supra , at
3. What scant Court precedent there is on the Second Amendment
teaches that the Amendment was adopted “[w]ith obvious purpose to
assure the continuation and render possible the effectiveness of
[militia] forces” and “must be interpreted and applied with that
end in view.” Miller , 307 U. S., at 178. Where that end is
implicated only minimally (or not at all), there is substantially
less reason for constitutional concern. Compare ibid. (“In
the absence of any evidence tending to show that possession or use
of a ‘shotgun having a barrel of less than eighteen inches in
length’ at this time has some reasonable relationship to 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”). To begin with, the
present case has nothing to do with actual military
service. The question presented presumes that respondent is
“ not affiliated with any state-regulated militia.” 552 U.
S. __ (2007) (emphasis added). I am aware of no indication that the
District either now or in the recent past has called up its
citizenry to serve in a militia, that it has any inkling of doing
so anytime in the foreseeable future, or that this law must be
construed to prevent the use of handguns during legitimate militia
activities. Moreover, even if the District were to call up its
militia, respondent would not be among the citizens whose service
would be requested. The District does not consider him, at 66 years
of age, to be a member of its militia. See D. C. Code §49–401
(2001) (militia includes only male residents ages 18 to 45); App.
to Pet. for Cert. 120a (indicating respondent’s date of
birth). Nonetheless, as some amici claim, the statute might interfere with training in
the use of weapons, training useful for military purposes. The
19th-century constitutional scholar, Thomas Cooley, wrote that the
Second Amendment protects “learning to handle and use [arms] in a
way that makes those who keep them ready for their efficient use”
during militia service. General Principles of Constitutional Law
271 (1880); ante , at 45 (opinion of the Court); see also ante , at 45–46 (citing other scholars agreeing with Cooley
on that point). And former military officers tell us that “private
ownership of firearms makes for a more effective fighting force”
because “[m]ilitary recruits with previous firearms experience and
training are generally better marksmen, and accordingly, better
soldiers.” Brief for Retired Military Officers as Amici
Curiae 1–2 (hereinafter Military Officers’ Brief). An amicus brief filed by retired Army generals adds that a
“well-regulated militia—whether ad hoc or as part of
our organized military—depends on recruits who have familiarity and
training with firearms—rifles, pistols, and shotguns.” Brief for
Major General John D. Altenburg, Jr., et al. as Amici
Curiae 4 (hereinafter Generals’ Brief). Both briefs point out
the importance of handgun training. Military Officers’ Brief 26–28;
Generals’ Brief 4. Handguns are used in military service, see id., at 26, and “civilians who are familiar with handgun
marksmanship and safety are much more likely to be able to safely
and accurately fire a rifle or other firearm with minimal training
upon entering military service,” id., at 28. Regardless, to consider the
military-training objective a modern counterpart to a similar
militia-related colonial objective and to treat that objective as
falling within the Amendment’s primary purposes makes no difference
here. That is because the District’s law does not seriously affect
military training interests. The law permits residents to engage in
activities that will increase their familiarity with firearms. They
may register (and thus possess in their homes) weapons other than
handguns, such as rifles and shotguns. See D. C. Code §§7–2502.01,
7–2502.02(a) (only weapons that cannot be registered are sawed-off
shotguns, machine guns, short-barreled rifles, and pistols not
registered before 1976); compare Generals’ Brief 4 (listing
“ rifles , pistols, and shotguns ” as useful
military weapons; emphasis added). And they may operate those
weapons within the District “for lawful recreational purposes.”
§7–2507.02; see also §7–2502.01(b)(3) (nonresidents “participating
in any lawful recreational firearm-related activity in the
District, or on his way to or from such activity in another
jurisdiction” may carry even weapons not registered in the
District). These permissible recreations plainly include actually
using and firing the weapons, as evidenced by a specific D. C. Code
provision contemplating the existence of local firing ranges. See
§7–2507.03. And while the District law
prevents citizens from training with handguns within the
District , the District consists of only 61.4 square miles of
urban area. See Dept. of Commerce, Bureau of Census, United States:
2000 (pt. 1), p. 11 (2002) (Table 8). The adjacent States do permit
the use of handguns for target practice, and those States are only
a brief subway ride away. See Md. Crim. Law Code Ann. §4–203(b)(4)
(Lexis Supp. 2007) (general handgun restriction does not apply to
“the wearing, carrying, or transporting by a person of a handgun
used in connection with,” inter alia, “a target shoot,
formal or informal target practice, sport shooting event, hunting,
[or] a Department of Natural Resources-sponsored firearms and
hunter safety class”); Va. Code Ann. §18.2–287.4 (Lexis Supp. 2007)
(general restriction on carrying certain loaded pistols in certain
public areas does not apply “to any person actually engaged in
lawful hunting or lawful recreational shooting activities at an
established shooting range or shooting contest”); Washington
Metropolitan Area Transit Authority, Metrorail System Map,
http://www.wmata.com/ metrorail/systemmmap.cfm. Of course, a subway rider must buy
a ticket, and the ride takes time. It also costs money to store a
pistol, say, at a target range, outside the District. But given the
costs already associated with gun ownership and firearms training,
I cannot say that a subway ticket and a short subway ride (and
storage costs) create more than a minimal burden. Compare Crawford v. Marion County Election Bd. , 553 U. S.
___, ___ (2008) (slip op., at 3) (Breyer, J., dissenting)
(acknowledging travel burdens on indigent persons in the context of
voting where public transportation options were limited). Indeed,
respondent and two of his coplaintiffs below may well use handguns
outside the District on a regular basis, as their declarations
indicate that they keep such weapons stored there. See App. to Pet.
for Cert. 77a (respondent); see also id., at 78a, 84a
(coplaintiffs). I conclude that the District’s law burdens the
Second Amendment’s primary objective little, or not at
all. 2 The majority briefly
suggests that the “right to keep and bear Arms” might encompass an
interest in hunting. See, e.g. , ante , at 26. But
in enacting the present provisions, the District sought “to take
nothing away from sportsmen.” DC Rep., at 33. And any
inability of District residents to hunt near where they live has
much to do with the jurisdiction’s exclusively urban character and
little to do with the District’s firearm laws. For reasons similar
to those I discussed in the preceding subsection—that the
District’s law does not prohibit possession of rifles or shotguns,
and the presence of opportunities for sporting activities in nearby
States—I reach a similar conclusion, namely, that the District’s
law burdens any sports-related or hunting-related objectives that
the Amendment may protect little, or not at all. 3 The District’s law
does prevent a resident from keeping a loaded handgun in his home.
And it consequently makes it more difficult for the householder to
use the handgun for self-defense in the home against intruders,
such as burglars. As the Court of Appeals noted, statistics suggest
that handguns are the most popular weapon for self defense. See 478
F. 3d, at 400 (citing Kleck & Gertz, 86 J. Crim. L. &
C., at 182–183). And there are some legitimate reasons why that
would be the case: Amici suggest (with some empirical
support) that handguns are easier to hold and control (particularly
for persons with physical infirmities), easier to carry, easier to
maneuver in enclosed spaces, and that a person using one will still
have a hand free to dial 911. See ILEETA Brief 37–39; NRA Brief
32–33; see also ante , at 57. But see Brief for Petitioners
54–55 (citing sources preferring shotguns and rifles to handguns
for purposes of self-defense). To that extent the law burdens to
some degree an interest in self-defense that for present purposes I
have assumed the Amendment seeks to further. C In weighing needs and
burdens, we must take account of the possibility that there are
reasonable, but less restrictive alternatives. Are there other potential measures that might similarly promote the
same goals while imposing lesser restrictions? See Nixon ,
528 U. S., at 402 (Breyer, J., concurring) (“existence of a clearly
superior, less restrictive alternative” can be a factor in
determining whether a law is constitutionally proportionate). Here
I see none. The reason there is
no clearly superior, less restrictive alternative to the District’s
handgun ban is that the ban’s very objective is to reduce
significantly the number of handguns in the District, say, for
example, by allowing a law enforcement officer immediately to
assume that any handgun he sees is an illegal handgun. And there is no plausible way to achieve that objective
other than to ban the guns. It does not help respondent’s case
to describe the District’s objective more generally as an “effort
to diminish the dangers associated with guns.” That is because the
very attributes that make handguns particularly useful for
self-defense are also what make them particularly dangerous. That
they are easy to hold and control means that they are easier for
children to use. See Brief for American Academy of Pediatrics
et al. as Amici Curiae 19 (“[C]hildren as young as
three are able to pull the trigger of most handguns”). That they
are maneuverable and permit a free hand likely contributes to the
fact that they are by far the firearm of choice for crimes such as
rape and robbery. See Weapon Use and Violent Crime 2 (Table 2).
That they are small and light makes them easy to steal, see supra , at 19, and concealable, cf. ante , at 54
(opinion of the Court) (suggesting that concealed-weapon bans are
constitutional). This symmetry suggests that any
measure less restrictive in respect to the use of handguns for
self-defense will, to that same extent, prove less effective in
preventing the use of handguns for illicit purposes. If a resident
has a handgun in the home that he can use for self-defense, then he
has a handgun in the home that he can use to commit suicide or
engage in acts of domestic violence. See supra , at 18
(handguns prevalent in suicides); Brief for National Network to End
Domestic Violence et al. as Amici Curiae 27 (handguns
prevalent in domestic violence). If it is indeed the case, as the
District believes, that the number of guns contributes to the
number of gun-related crimes, accidents, and deaths, then, although
there may be less restrictive , less effective substitutes
for an outright ban, there is no less restrictive equivalent of an outright ban. Licensing restrictions would not
similarly reduce the handgun population, and the District may
reasonably fear that even if guns are initially restricted to
law-abiding citizens, they might be stolen and thereby placed in
the hands of criminals. See supra , at 19. Permitting
certain types of handguns, but not others, would affect the
commercial market for handguns, but not their availability. And
requiring safety devices such as trigger locks, or imposing
safe-storage requirements would interfere with any self-defense
interest while simultaneously leaving operable weapons in the hands
of owners (or others capable of acquiring the weapon and disabling
the safety device) who might use them for domestic violence or
other crimes. The absence of equally effective
alternatives to a complete prohibition finds support in the
empirical fact that other States and urban centers prohibit
particular types of weapons. Chicago has a law very similar to the
District’s, and many of its suburbs also ban handgun possession
under most circumstances. See Chicago, Ill., Municipal Code
§§8–20–030(k), 8–20–40, 8–20–50(c) (2008); Evanston, Ill., City
Code §9–8–2 (2007); Morton Grove, Ill., Village Code §6–2–3(C)
(2008); Oak Park, Ill., Village Code §27–2–1 (2007); Winnetka,
Ill., Village Ordinance §9.12.020(B) (2008); Wilmette, Ill.,
Ordinance §12–24(b) (2008). Toledo bans certain types of handguns.
Toledo, Ohio, Municipal Code, ch. 549.25 (2007). And San Francisco
in 2005 enacted by popular referendum a ban on most handgun
possession by city residents; it has been precluded from enforcing
that prohibition, however, by state-court decisions deeming it
pre-empted by state law. See Fiscal v. City and County
of San Francisco , 158 Cal. App. 4th 895, 900–901, 70 Cal.
Rptr. 3d 324, 326–328 (2008). (Indeed, the fact that as many as 41
States may pre-empt local gun regulation suggests that the absence
of more regulation like the District’s may perhaps have more to do
with state law than with a lack of locally perceived need for them.
See Legal Community Against Violence, Regulating Guns in America 14
(2006), http://www.
lcav.org/Library/reports_analyses/National_Audit_Total_
8.16.06.pdf. In addition, at least six States
and Puerto Rico impose general bans on certain types of weapons, in
particular assault weapons or semiautomatic weapons. See Cal. Penal
Code §12280(b) (West Supp. 2008); Conn. Gen. Stat. §§53–202c
(2007); Haw. Rev. Stat. §134–8 (1993); Md. Crim. Law Code Ann.
§4–303(a) (Lexis 2002); Mass. Gen. Laws, ch. 140, §131M (West
2006); N. Y. Penal Law Ann. §265.02(7) (West Supp. 2008); 25
Laws P. R. Ann. §456m (Supp. 2006); see also 18 U. S. C.
§922(o) (federal machinegun ban). And at least 14 municipalities do
the same. See Albany, N. Y., Municipal Code §193–16(A) (2005);
Aurora, Ill., Ordinance §29–49(a) (2007); Buffalo, N. Y., City
Code §180–1(F) (2000); Chicago, Ill., Municipal Code §8–24–025(a),
8–20–030(h); Cincinnati, Ohio, Admin. Code §708–37(a) (Supp. 2008);
Cleveland, Ohio, Ordinance §628.03(a) (2008); Columbus, Ohio, City
Code §2323.31 (2007); Denver, Colo., Municipal Code §38–130(e)
(2008); Morton Grove, Ill., Village Code §6–2–3(B);
N. Y. C. Admin. Code §10–303.1 (2007); Oak Park, Ill.,
Village Code §27–2-1; Rochester, N. Y., Code §47–5(f) (2008);
South Bend, Ind., Ordinance §§13–97(b), 13–98 (2008); Toledo, Ohio,
Municipal Code §549.23(a). These bans, too, suggest that there may
be no substitute to an outright prohibition in cases where a
governmental body has deemed a particular type of weapon especially
dangerous. D The upshot is that
the District’s objectives are compelling; its predictive judgments
as to its law’s tendency to achieve those objectives are adequately
supported; the law does impose a burden upon any self-defense
interest that the Amendment seeks to secure; and there is no clear
less restrictive alternative. I turn now to the final portion of
the “permissible regulation” question: Does the District’s law disproportionately burden Amendment-protected interests?
Several considerations, taken together, convince me that it does
not. First, the District
law is tailored to the life-threatening problems it attempts to
address. The law concerns one class of weapons, handguns, leaving
residents free to possess shotguns and rifles, along with
ammunition. The area that falls within its scope is totally urban.
Cf. Lorillard Tobacco Co. v. Reilly , 533 U. S. 525 , 563
(2001) (varied effect of statewide speech restriction in “rural,
urban, or suburban” locales “demonstrates a lack of narrow
tailoring”). That urban area suffers from a serious
handgun-fatality problem. The District’s law directly aims at that
compelling problem. And there is no less restrictive way to achieve
the problem-related benefits that it seeks. Second, the self-defense interest
in maintaining loaded handguns in the home to shoot intruders is
not the primary interest, but at most a subsidiary
interest, that the Second Amendment seeks to serve. The Second
Amendment’s language, while speaking of a “Militia,” says nothing
of “self-defense.” As Justice Stevens points out, the Second
Amendment’s drafting history shows that the language reflects the
Framers’ primary, if not exclusive, objective. See ante ,
at 17–28 (dissenting opinion). And the majority itself says that
“the threat that the new Federal Government would destroy the
citizens’ militia by taking away their arms was the reason
that right . . . was codified in a written Constitution.” Ante , at 26 (emphasis added). The way in which
the Amendment’s operative clause seeks to promote that interest—by
protecting a right “to keep and bear Arms”—may in fact help further an interest in self-defense. But a factual connection
falls far short of a primary objective. The Amendment itself tells
us that militia preservation was first and foremost in the Framers’
minds. See Miller , 307 U. S., at 178 (“With obvious
purpose to assure the continuation and render possible the
effectiveness of [militia] forces the declaration and guarantee of
the Second Amendment were made,” and the amendment “must be
interpreted and applied with that end in view”). Further, any self-defense interest
at the time of the Framing could not have focused exclusively upon
urban-crime related dangers. Two hundred years ago, most Americans,
many living on the frontier, would likely have thought of
self-defense primarily in terms of outbreaks of fighting with
Indian tribes, rebellions such as Shays’ Rebellion, marauders, and
crime-related dangers to travelers on the roads, on footpaths, or
along waterways. See Dept. of Commerce, Bureau of Census,
Population: 1790 to 1990 (1998) (Table 4), online at
http://www.census.gov/ population/censusdata/table-4.pdf (of the
3,929,214 Americans in 1790, only 201,655—about 5%—lived in urban
areas). Insofar as the Framers focused at all on the tiny fraction
of the population living in large cities, they would have been
aware that these city dwellers were subject to firearm restrictions
that their rural counterparts were not. See supra , at 4–7.
They are unlikely then to have thought of a right to keep loaded
handguns in homes to confront intruders in urban settings as central. And the subsequent development of modern urban
police departments, by diminishing the need to keep loaded guns
nearby in case of intruders, would have moved any such right even
further away from the heart of the amendment’s more basic
protective ends. See, e.g. , Sklansky, The Private Police,
46 UCLA L. Rev. 1165, 1206–1207 (1999) (professional urban
police departments did not develop until roughly the mid-19th
century). Nor, for that matter, am I aware
of any evidence that handguns in particular were central
to the Framers’ conception of the Second Amendment. The lists of
militia-related weapons in the late 18th-century state statutes
appear primarily to refer to other sorts of weapons, muskets in
particular. See Miller , 307 U. S., at 180–182 (reproducing
colonial militia laws). Respondent points out in his brief that the
Federal Government and two States at the time of the founding had
enacted statutes that listed handguns as “acceptable” militia
weapons. Brief for Respondent 47. But these statutes apparently
found them “acceptable” only for certain special militiamen
(generally, certain soldiers on horseback), while requiring muskets
or rifles for the general infantry. See Act of May 8, 1792, ch.
XXXIII, 1 Stat. 271; Laws of the State of North Carolina 592
(1791); First Laws of the State of Connecticut 150 (1784); see also
25 Journals of the Continental Congress, pp. 1774–1789 741–742
(1922). Third, irrespective of
what the Framers could have thought, we know what they did think. Samuel Adams, who lived in Boston, advocated a
constitutional amendment that would have precluded the Constitution
from ever being “construed” to “prevent the people of the United
States, who are peaceable citizens, from keeping their own arms.” 6
Documentary History of the Ratification of the Constitution 1453
(J. Kaminski & G. Saladino eds. 2000). Samuel Adams doubtless
knew that the Massachusetts Constitution contained somewhat similar
protection. And he doubtless knew that Massachusetts law prohibited
Bostonians from keeping loaded guns in the house. So how could
Samuel Adams have advocated such protection unless he
thought that the protection was consistent with local
regulation that seriously impeded urban residents from using their
arms against intruders? It seems unlikely that he meant to deprive
the Federal Government of power (to enact Boston-type weapons
regulation) that he know Boston had and (as far as we know) he
would have thought constitutional under the Massachusetts
Constitution. Indeed, since the District of Columbia (the subject
of the Seat of Government Clause, U. S. Const., Art. I, §8,
cl. 17) was the only urban area under direct federal
control, it seems unlikely that the Framers thought about urban gun control at all. Cf. Palmore v. United States , 411 U. S. 389 , 397–398
(1973) (Congress can “legislate for the District in a manner with
respect to subjects that would exceed its powers, or at least would
be very unusual, in the context of national legislation enacted
under other powers delegated to it”). Of course the District’s law and
the colonial Boston law are not identical. But the Boston law
disabled an even wider class of weapons (indeed, all firearms). And
its existence shows at the least that local legislatures could
impose (as here) serious restrictions on the right to use firearms.
Moreover, as I have said, Boston’s law, though highly analogous to
the District’s, was not the only colonial law that could
have impeded a homeowner’s ability to shoot a burglar.
Pennsylvania’s and New York’s laws could well have had a similar
effect. See supra , at 6–7. And the Massachusetts and
Pennsylvania laws were not only thought consistent with an unwritten common-law gun-possession right, but also
consistent with written state constitutional provisions
providing protections similar to those provided by the Federal
Second Amendment. See supra , at 6–7. I cannot agree with
the majority that these laws are largely uninformative because the
penalty for violating them was civil, rather than criminal. Ante , at 61–62. The Court has long recognized that the
exercise of a constitutional right can be burdened by penalties far
short of jail time. See, e.g. , Murdock v. Pennsylvania , 319 U. S. 105 (1943)
(invalidating $7 per week solicitation fee as applied to religious
group); see also Forsyth County v. Nationalist
Movement , 505
U. S. 123 , 136 (1992) (“A tax based on the content of speech
does not become more constitutional because it is a small
tax”). Regardless, why would the majority
require a precise colonial regulatory analogue in order to save a
modern gun regulation from constitutional challenge? After all,
insofar as we look to history to discover how we can
constitutionally regulate a right to self-defense, we must look,
not to what 18th-century legislatures actually did enact,
but to what they would have thought they could enact.
There are innumerable policy-related reasons why a legislature
might not act on a particular matter, despite having the power to
do so. This Court has “frequently cautioned that it is at best
treacherous to find in congressional silence alone the adoption of
a controlling rule of law.” United States v. Wells , 519
U. S. 482 , 496 (1997). It is similarly “treacherous” to reason
from the fact that colonial legislatures did not enact
certain kinds of legislation an unalterable constitutional
limitation on the power of a modern legislature cannot do
so. The question should not be whether a modern restriction on a
right to self-defense duplicates a past one, but whether
that restriction, when compared with restrictions originally
thought possible, enjoys a similarly strong justification. At a
minimum that similarly strong justification is what the District’s
modern law, compared with Boston’s colonial law,
reveals. Fourth, a contrary view, as
embodied in today’s decision, will have unfortunate consequences.
The decision will encourage legal challenges to gun regulation
throughout the Nation. Because it says little about the standards
used to evaluate regulatory decisions, it will leave the Nation
without clear standards for resolving those challenges. See ante , at 54, and n. 26. And litigation over the course of
many years, or the mere specter of such litigation, threatens to
leave cities without effective protection against gun violence and
accidents during that time. As important, the majority’s
decision threatens severely to limit the ability of more
knowledgeable, democratically elected officials to deal with
gun-related problems. The majority says that it leaves the District
“a variety of tools for combating” such problems. Ante , at
64. It fails to list even one seemingly adequate replacement for
the law it strikes down. I can understand how reasonable
individuals can disagree about the merits of strict gun control as
a crime-control measure, even in a totally urbanized area. But I
cannot understand how one can take from the elected branches of
government the right to decide whether to insist upon a
handgun-free urban populace in a city now facing a serious crime
problem and which, in the future, could well face environmental or
other emergencies that threaten the breakdown of law and
order. V The majority derides
my approach as “judge-empowering.” Ante , at 62. I take
this criticism seriously, but I do not think it accurate. As I have
previously explained, this is an approach that the Court has taken
in other areas of constitutional law. See supra , at 10–11.
Application of such an approach, of course, requires judgment, but
the very nature of the approach—requiring careful identification of
the relevant interests and evaluating the law’s effect upon
them—limits the judge’s choices; and the method’s necessary
transparency lays bare the judge’s reasoning for all to see and to
criticize. The majority’s
methodology is, in my view, substantially less transparent than
mine. At a minimum, I find it difficult to understand the reasoning
that seems to underlie certain conclusions that it
reaches. The majority spends the first 54
pages of its opinion attempting to rebut Justice Stevens’ evidence
that the Amendment was enacted with a purely militia-related
purpose. In the majority’s view, the Amendment also protects an
interest in armed personal self-defense, at least to some degree.
But the majority does not tell us precisely what that interest is.
“Putting all of [the Second Amendment’s] textual elements
together,” the majority says, “we find that they guarantee the
individual right to possess and carry weapons in case of
confrontation.” Ante , at 19. Then, three pages later, it
says that “we do not read the Second Amendment to permit citizens
to carry arms for any sort of confrontation.” Ante, at 22. Yet, with one critical exception, it does not
explain which confrontations count. It simply leaves that question
unanswered. The majority does, however, point
to one type of confrontation that counts, for it describes the
Amendment as “elevat[ing] above all other interests the right of
law-abiding, responsible citizens to use arms in defense of hearth
and home.” Ante , at 63. What is its basis for finding that
to be the core of the Second Amendment right? The only historical
sources identified by the majority that even appear to touch upon
that specific matter consist of an 1866 newspaper editorial
discussing the Freedmen’s Bureau Act, see ante , at 43, two
quotations from that 1866 Act’s legislative history, see ante , at 43–44, and a 1980 state court opinion saying that
in colonial times the same were used to defend the home as to
maintain the militia, see ante , at 52. How can citations
such as these support the far-reaching proposition that the Second
Amendment’s primary concern is not its stated concern about the
militia, but rather a right to keep loaded weapons at one’s bedside
to shoot intruders? Nor is it at all clear to me how
the majority decides which loaded “arms” a homeowner may
keep. The majority says that that Amendment protects those weapons
“typically possessed by law-abiding citizens for lawful purposes.” Ante , at 53. This definition conveniently excludes
machineguns, but permits handguns, which the majority describes as
“the most popular weapon chosen by Americans for self-defense in
the home.” Ante , at 57; see also ante, at 54–55.
But what sense does this approach make? According to the majority’s
reasoning, if Congress and the States lift restrictions on the
possession and use of machineguns, and people buy machineguns to
protect their homes, the Court will have to reverse course and find
that the Second Amendment does , in fact, protect the
individual self-defense-related right to possess a machinegun. On
the majority’s reasoning, if tomorrow someone invents a
particularly useful, highly dangerous self-defense weapon, Congress
and the States had better ban it immediately, for once it becomes
popular Congress will no longer possess the constitutional
authority to do so. In essence, the majority determines what
regulations are permissible by looking to see what existing
regulations permit. There is no basis for believing that the
Framers intended such circular reasoning. I am similarly puzzled by the
majority’s list, in Part III of its opinion, of provisions that in
its view would survive Second Amendment scrutiny. These consist of
(1) “prohibitions on carrying concealed weapons”; (2) “prohibitions
on the possession of firearms by felons”; (3) “prohibitions on the
possession of firearms by … the mentally ill”; (4) “laws forbidding
the carrying of firearms in sensitive places such as schools and
government buildings”; and (5) government “conditions and
qualifications” attached “to the commercial sale of arms.” Ante , at 54. Why these? Is it that similar restrictions
existed in the late 18th century? The majority fails to cite any
colonial analogues. And even were it possible to find analogous
colonial laws in respect to all these restrictions, why should
these colonial laws count, while the Boston loaded-gun restriction
(along with the other laws I have identified) apparently does not
count? See supra , at 5–6, 38–39. At the same time the majority
ignores a more important question: Given the purposes for which the
Framers enacted the Second Amendment, how should it be applied to
modern-day circumstances that they could not have anticipated?
Assume, for argument’s sake, that the Framers did intend the
Amendment to offer a degree of self-defense protection. Does that
mean that the Framers also intended to guarantee a right to possess
a loaded gun near swimming pools, parks, and playgrounds? That they
would not have cared about the children who might pick up a loaded
gun on their parents’ bedside table? That they (who certainly
showed concern for the risk of fire, see supra , at 5–7)
would have lacked concern for the risk of accidental deaths or
suicides that readily accessible loaded handguns in urban areas
might bring? Unless we believe that they intended future
generations to ignore such matters, answering questions such as the
questions in this case requires judgment—judicial judgment
exercised within a framework for constitutional analysis that
guides that judgment and which makes its exercise transparent. One
cannot answer those questions by combining inconclusive historical
research with judicial ipse dixit . The argument about method,
however, is by far the less important argument surrounding today’s
decision. Far more important are the unfortunate consequences that
today’s decision is likely to spawn. Not least of these, as I have
said, is the fact that the decision threatens to throw into doubt
the constitutionality of gun laws throughout the United States. I
can find no sound legal basis for launching the courts on so
formidable and potentially dangerous a mission. In my view, there
simply is no untouchable constitutional right guaranteed by the
Second Amendment to keep loaded handguns in the house in
crime-ridden urban areas. VI For these reasons, I
conclude that the District’s measure is a proportionate, not a
disproportionate, response to the compelling concerns that led the
District to adopt it. And, for these reasons as well as the
independently sufficient reasons set forth by Justice Stevens, I
would find the District’s measure consistent with the Second
Amendment’s demands. With respect, I
dissent.