We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.
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.
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.
“Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.
At the time of the founding, as now, to “bear” meant to “carry.” ... When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. ... it in no way connotes participation in a structured military organization.
Grotesque.
it has always been widely understood that the Second Amendment ... codified a pre-existing right.
It was clearly an individual right, having nothing whatever to do with service in a militia.
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,
Although the militia consists of all ablebodied men, the federally organized militia may consist of a subset of them.
the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training.
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 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
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.
“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.
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.
"...But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons."
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
[Miller's] 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”).
{Scalia beats the crap out of Stevens, by name, with alarming frequency in this opinion.}
Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.
Not a word (not a word) [in Miller] about the history of the Second Amendment. This is the mighty rock upon which the dissent rests its case.
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 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.
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.
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.
For most of our history the question did not present itself.
Like most rights, the right secured by the Second Amendment is not unlimited.
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.
Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”
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.
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.
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.
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.
It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.
Whatever the reason, handguns are the most popu-lar 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.
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.
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 ... 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.
the District must permit him to register his handgun and must issue him a license to carry it in the home.
it is not the role of this Court to pronounce the Second Amendment extinct.
