Amendment 2 — Early Second Amendment Jurisprudence

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Second Amendment :

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

For most of its history, the Second Amendment was not substantively addressed by the Supreme Court. Few nineteenth and early twentieth century cases implicated the Second Amendment directly, and thus the small number of references in early cases were glancing and largely unilluminating as to the nature and scope of the right protected by the Amendment.

In the 1820 case Houston v. Moore,[1](https://www.law.cornell.edu/constitution-conan/amendment-2/early-second-amendment-jurisprudence#fn1amd2 " 18 U.S. (5 Wheat.) 1 (1820). ") the Court addressed the constitutionality of a state statute providing for state court-martial punishment of militia members called into the service of the United States who refused deployment.[2](https://www.law.cornell.edu/constitution-conan/amendment-2/early-second-amendment-jurisprudence#fn2amd2 " Id. at 12. ") The case turned not on the Second Amendment but rather on the nature of federal and state authority over the militia, with the Court concluding that the state retained concurrent jurisdiction, at least where not withdrawn by Congress, to punish militia members in such circumstances.[3](https://www.law.cornell.edu/constitution-conan/amendment-2/early-second-amendment-jurisprudence#fn3amd2 " Id. at 14. ") In a dissenting opinion, Justice Joseph Story agreed that “a State might organize, arm, and discipline its own militia in the absence of, or subordinate to, the regulations of Congress.” Justice Story explained 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.” [4](https://www.law.cornell.edu/constitution-conan/amendment-2/early-second-amendment-jurisprudence#fn4amd2 " Id. at 21 (Story, J., dissenting). ") Although Justice Story did not provide further elaboration of how the Second Amendment might “confirm[ ] and illustrate[ ]” the proposition that a state retains concurrent, subordinate authority over the militia, it seems he may have been suggesting that the Amendment’s reference to the importance of a “well regulated militia” supported such authority.

Another passing reference to the Second Amendment in a pre-Civil War case came in the infamous and now-superseded Dred Scott v. Sandford[5](https://www.law.cornell.edu/constitution-conan/amendment-2/early-second-amendment-jurisprudence#fn5amd2 " 60 U.S. 393 (1857), superseded by constitutional amendment, U.S. Const. amend. XIV. ") decision. In holding that Black Americans were not citizens of the United States, the majority opinion in Dred Scott listed among the implications of an alternative conclusion that citizenship “would give them the full liberty of speech in public and in private . . . ; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” [6](https://www.law.cornell.edu/constitution-conan/amendment-2/early-second-amendment-jurisprudence#fn6amd2 " Id. at 417; see also id. at 450 (stating, in reference to the applicability of the Bill of Rights to the territories, that Congress could not “deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.” ). In a later case, the Court in dicta suggested that “the right of the people to keep and bear arms . . . is not infringed by laws prohibiting the carrying of concealed weapons.” Robertson v. Baldwin, 165 U.S. 275, 281–82 (1897). As described infra, the Court has since squarely addressed a Second Amendment challenge to state laws restricting public carry, in New York State Rifle & Pistol Assocation v. Bruen, No. 20-843 (U.S. June 23, 2022). ")

Following the Civil War, the Court issued several opinions that more squarely implicated the Second Amendment and established for a time that the Amendment was a bar only to federal government action.[7](https://www.law.cornell.edu/constitution-conan/amendment-2/early-second-amendment-jurisprudence#fn7amd2 " This view of the Second Amendment has been invalidated by subsequent Supreme Court precedent. See ; see also . ") In United States v. Cruikshank,[8](https://www.law.cornell.edu/constitution-conan/amendment-2/early-second-amendment-jurisprudence#fn8amd2 " 92 U.S. 542 (1875). ") the Court vacated the convictions of a group of men under a federal statute proscribing conspiracies to deprive citizens of rights “granted or secured . . . by the constitution or laws of the United States,” among other things.[9](https://www.law.cornell.edu/constitution-conan/amendment-2/early-second-amendment-jurisprudence#fn9amd2 " Id. at 548. ") The indictment averred, in relevant part, that the defendants intended to prevent two Black men from exercising their right “of ‘bearing arms for a lawful purpose.’” [10](https://www.law.cornell.edu/constitution-conan/amendment-2/early-second-amendment-jurisprudence#fn10amd2 " Id. at 553. ") The Court rejected the proposition that this could be a valid basis for a violation of the statute, as “[t]his is not a right granted by the Constitution.” [11](https://www.law.cornell.edu/constitution-conan/amendment-2/early-second-amendment-jurisprudence#fn11amd2 " Id. ") Rather, according to the Court, the Second Amendment “means no more than that it shall not be infringed by Congress,” i.e., it “has no other effect than to restrict the powers of the national government,” and thus the actions of private “fellow-citizens” could not deprive the victims of a right covered by the Second Amendment .[12](https://www.law.cornell.edu/constitution-conan/amendment-2/early-second-amendment-jurisprudence#fn12amd2 " Id. ") In the 1886 case Presser v. Illinois,[13](https://www.law.cornell.edu/constitution-conan/amendment-2/early-second-amendment-jurisprudence#fn13amd2 " 116 U.S. 252 (1886). ") the Supreme Court addressed a Second Amendment challenge to Illinois laws prohibiting “bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.” [14](https://www.law.cornell.edu/constitution-conan/amendment-2/early-second-amendment-jurisprudence#fn14amd2 " Id. at 264–65. ") The Court held that these provisions did not infringe the right of the people to keep and bear arms, as the Second Amendment “is a limitation only upon the power of congress and the national government, and not upon that of the state.” [15](https://www.law.cornell.edu/constitution-conan/amendment-2/early-second-amendment-jurisprudence#fn15amd2 " Id. at 265; see also Miller v. Texas, 153 U.S. 535, 538 (1894) (stating that it was “well settled” that the Second Amendment “operate[s] only upon the federal power, and [has] no reference whatever to proceedings in state courts” ). ")

Given scant guidance from the Supreme Court, there was no definitive resolution in the twentieth century of what the right protected by the Second Amendment encompasses, and what role, if any, the textual reference to a “well regulated Militia” plays in addressing that question. The Second Amendment is divided into a first clause ( “A well regulated Militia, being necessary to the security of a free State” ) and a second clause ( “the right of the people to keep and bear Arms shall not be infringed” ). Courts, commentators, and Congress debated, over the course of decades, the meaning of, and relationship between, these two clauses, primarily with respect to whether (1) in light of the first clause, the Amendment protects a collective right tied to maintaining formal, organized militia units; or (2) in light of the second clause, the Amendment protects an individual right to possess a firearm unconnected with service in a militia.[16](https://www.law.cornell.edu/constitution-conan/amendment-2/early-second-amendment-jurisprudence#fn16amd2 " A sampling of the diverse literature in which the same historical, linguistic, and case law background shows the basis for strikingly different conclusions includes: Staff of Subcomm. on the Const., S. Comm. on the Judiciary, 97th Cong., The Right to Keep and Bear Arms (Comm. Print 1982)[hereinafter Second Amendment Report]; Don B. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment (1984); Gun Control and the Constitution: Sources and Explorations on the Second Amendment (Robert J. Cottrol ed., 1993); Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (1984); Symposium, Gun Control, 49 Law & Contemp. Probs. 1 (1986); Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989); Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (1994); Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461 (1995); William Van Alystyne, The Second Amendment and the Personal Right to Bear Arms, 43 Duke L.J. 1236 (1994); Symposium, Symposium on the Second Amendment: Fresh Looks, 76 Chi.-Kent L. Rev. 3 (2000). ")

The Supreme Court’s most thorough consideration of the Second Amendment in the twentieth century came in United States v. Miller,[17](https://www.law.cornell.edu/constitution-conan/amendment-2/early-second-amendment-jurisprudence#fn17amd2 " <a href="/supremecourt/text/307/174" aria-label="307 U.S. 1