In the United States, the right to keep and bear arms is a fundamental right protected by the Second Amendment to the United States Constitution, part of the Bill of Rights, and by the constitutions of most U.S. states. The Second Amendment declares:
Stemming from English common-law tradition, the concept of a right to keep and bear arms was recognized prior to the creation of a written national constitution.
English precedent
The American understanding of the right to keep and bear arms was influenced by the English Bill of Rights 1689, an Act of Parliament, which also dealt with personal defence by Protestant English subjects.
The Bill of Rights rescinded and deplored acts of the deposed King James II, a Catholic, who had forced the disarming of Protestants, while arming and deploying armed Catholics contrary to law, among other alleged violations of individual rights. The Bill of Rights did not, however, provide a universal right to bear arms and explicitly reserved the right to Protestants - "That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law."
It also established that the power to regulate the right to bear arms belonged to Parliament, not the monarch.
Sir William Blackstone wrote in the 18th century about the right to have arms being auxiliary to the "natural right of resistance and self-preservation", but conceded that the right was subject to their suitability and allowance by law.
Reception statutes
After the 1776 American Revolution, one of the first legislative acts undertaken by most of the newly independent states was to adopt a reception statute that gave legal effect to the existing body of English common law to the extent that the legislation or the constitution had not explicitly rejected English law.
For example, The Reception Statute of Virginia (1776):
The Reception statute of Pennsylvania (1777):
The New York Constitution of 1777 provides that:
Over time, as new states were formed from federal territories, the territorial reception statutes became obsolete and were re-enacted as state law. For example, a reception statute enacted by legislation in the state of Washington states:
Missouri's reception of the common law is codified under Missouri Revised Statutes Section 1.010 (2000). The statute reads:
Civilian usage meaning
In United States v. Cruikshank (1876), the U.S. Supreme Court recognized that the right to arms preexisted the Constitution and in that case and in Presser v. Illinois (1886) recognized that the Second Amendment protected the right from being infringed by Congress. In United States v. Miller (1939), the Court again recognized that the right to arms is individually held and, citing the Tennessee case of Aymette v State, indicated that it protected the right to keep and bear arms that are "part of the ordinary military equipment" or the use of which could "contribute to the common defense." In its first opportunity to rule specifically on whose right the Second Amendment protects, District of Columbia v. Heller (2008), the Court ruled that the amendment protects an individual right "to keep and carry arms in case of confrontation," not contingent on service in a militia, while indicating, in dicta, that restrictions on the possession of firearms by felons and the mentally ill, on the carrying of arms in sensitive locations, and with respect to the conditions on the sale of firearms could pass constitutional muster. In McDonald v. Chicago (2010), the Court applied incorporation doctrine to extend the Second Amendment's protections nationwide.
The people's right to have their own arms for their defense is described in the philosophical and political writings of Aristotle, Cicero, John Locke, Machiavelli, the English Whigs and others. Though possessing arms appears to be distinct from "bearing" them, the possession of arms is recognized as necessary for and a logical precursor to the bearing of arms. Don Kates, a civil liberties lawyer, cites historic English usage describing the "right to keep and bear their private arms." Likewise, Sayoko Blodgett-Ford notes a non-military usage of the phrase in a pamphlet widely circulated by the dissenting minority dating from the time of the Pennsylvania ratifying convention for the U.S. Constitution:
[T]he people have a right to bear arms for the defense of themselves and their own state, or the United States, or the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed ...
In commentary written by Judge Garwood in United States v. Emerson, the United States Court of Appeals for the Fifth Circuit concluded in 2001 that:
Similarly, in a released Senate report on the Right to Keep and Bear Arms, Senator Orrin Hatch, chairman, of the U.S. Senate Judiciary Committee, Subcommittee on the Constitution, states:
Likewise, the U.S. Supreme Court ruled in District of Columbia v. Heller (2008), No. 07-290, that "[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."Heller, Syllabus, item #1
Military service and civilian usage meanings Some historians have argued that prior to and through the 18th century, the expression "bear arms" appeared exclusively in military contexts, as opposed to the use of firearms by civilians.Uviller, H. Richard. & Merkel, William G.: The Militia and the Right to Arms, Or, How the second Amendment Fell Silent , pp. 23, 194. Duke University Press. Pepper, John; Petrie, Carol; Wellford, Charles F.: Firearms and violence, p. 290. National Academies Press, 2004. Wills, Garry. To Keep and Bear Arms. New York Review Of Books, September 21, 1995.
In late-eighteenth-century parlance, bearing arms was a term of art with an obvious military and legal connotation. ... As a review of the Library of Congress's data base of congressional proceedings in the revolutionary and early national periods reveals, the thirty uses of 'bear arms' and 'bearing arms' in bills, statutes, and debates of the Continental, Confederation, and United States' Congresses between 1774 and 1821 invariably occur in a context exclusively focused on the army or the militia.Uviller, H. Richard. & Merkel, William G.: The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent , p. 194. Duke University Press.
However, this conclusion is disputed and may be due to selection bias, which arises from the use of a limited selection of government documents that overwhelmingly refer to matters of military service. Commenting on this previous research, other historians note:
Searching more comprehensive collections of English language works published before 1820 shows that there are a number of uses that ... have nothing to do with military service ... [and] The common law was in agreement. Edward Christian's edition of Blackstone's Commentaries that appeared in 1790s described the rights of Englishmen (which every American colonist had been promised) in these terms 'everyone is at liberty to keep or carry a gun, if he does not use it for the [unlawful] destruction of game.' This right was separate from militia duties.
The Oxford English Dictionary defines the term to bear arms as: "to serve as a soldier, do military service, fight," dating to about 1330.
Garry Wills, author and history professor at Northwestern University, has written of the origin of the term bear arms:
By legal and other channels, the Latin "arma ferre" entered deeply into the European language of war. Bearing arms is such a synonym for waging war that Shakespeare can call a just war " 'justborne arms" and a civil war "self-borne arms." Even outside the special phrase "bear arms," much of the noun's use echoes Latin phrases: to be under arms (sub armis), the call to arms (ad arma), to follow arms (arma sequi), to take arms (arma capere), to lay down arms (arma pœnere). "Arms" is a profession that one brother chooses the way another choose law or the church. An issue undergoes the arbitrament of arms."..."One does not bear arms against a rabbit ...".
Garry Wills also cites Greek and Latin etymology:
..."Bear Arms" refers to military service, which is why the plural is used (based on Greek 'hopla pherein' and Latin 'arma ferre') – one does not bear arm, or bear an arm. The word means, etymologically, 'equipment' (from the root ar-* in verbs like 'ararisko', to fit out). It refers to the 'equipage' of war. Thus 'bear arms' can be used of naval as well as artillery warfare, since the "profession of arms" refers to all military callings.Wills, Garry (1999). A Necessary Evil pp. 256–57. New York: Simon & Schuster.
Historically, the right to keep and bear arms, whether considered an individual or a collective or a militia right, did not originate fully formed in the Bill of Rights in 1791; rather, the Second Amendment was the codification of the six-centuries-old responsibility to keep and bear arms for king and country that was inherited from the English Colonists who settled North America, tracing its origin back to the Assize of Arms of 1181 that occurred during the reign of Henry II. Through being codified in the United States Constitution, the common law right was continued and guaranteed for the People, and statutory law enacted subsequently by Congress cannot extinguish the pre-existing common law right to keep and bear arms.
The Second Amendment to the United States Constitution refers to a pre-existing right to keep and bear arms:
The right is often presented in the United States as being an unenumerated, pre-existing right, such as provided for by the Ninth Amendment to the United States Constitution, interpreted by some as providing for unenumerated rights, and therefore implicitly a right to keep and bear arms:
Some have seen the Second Amendment as derivative of a common law right to keep and bear arms; Thomas B. McAffee & Michael J. Quinlan, writing in the North Carolina Law Review said "... Madison did not invent the right to keep and bear arms when he drafted the Second Amendment – the right was pre-existing at both common law and in the early state constitutions."
Akhil Reed Amar similarly notes the basis of Common Law for the first ten amendments of the U.S. Constitution, "following John Randolph Tucker's famous oral argument in the 1887 Chicago anarchist case, Spies v. Illinois":
Though originally the first ten Amendments were adopted as limitations on Federal power, yet insofar as they secure and recognize fundamental rights – common law rights – of the man, they make them privileges and immunities of the man as citizen of the United States ...
Uviller and Merkel hold that the right to bear arms was not reserved for the state, but rather was an individual and personal right for arms only to the extent needed to maintain a well regulated militia to support the state. They also hold that a militia recognizable to the framers of the Constitution has ceased to exist in the United States resulting from deliberate Congressional legislation and also societal neglect; nonetheless, "Technically, all males aged seventeen to forty-five are members of the unorganized militia, but that status has no practical legal significance."
A few academic writers published their opinions in several works: