The right to keep and bear arms (often referred as the right to bear arms or to have arms) is the assertion that people have a personal right to firearms for individual use, or a collective right to bear arms in a militia, or both.[1]
The phrase "right of the people to keep and bear Arms" was first used in the text of the United States Bill of Rights (coming into law as the Second Amendment to the Constitution of the United States). Beyond the United States of America, the general concept of a right to bear arms varies widely by country, state or jurisdiction.
Contents |
In Canada, all firearms require registration in the Canadian Firearms Registry.[2] Possession of a non-restricted firearm, also referred to as a long gun in Canada, requires a Possession and Acquisition License or PAL.[3] This license is acquired through a written and verbal examination and a demonstration of safety skills. Most rifles and shotguns are classified as non-restricted, but the Firearms Act lays out specific definitions and exclusions. PAL holders may transport and carry non-restricted firearms, however provincial or municipal laws may prevent the firearm from being loaded or discharged.[4]
Most handguns and certain rifles are classified as restricted firearms in Canada.[2] Certain models are classified as prohibited firearms, as defined by the Firearms Act. Possession of a restricted firearm requires a Restricted Possession and Acquisition License or RPAL.[3] An RPAL may be obtained at the same time as, or subsequent to, a PAL with additional testing and scrutiny by the RCMP. An Authorization to Transport allows RPAL holders to transport their restricted firearms directly to and from gun ranges and gunsmiths or to a change of address.[5]
Under certain circumstances, an Authorization to Carry may be issued, allowing one to carry a loaded restricted firearm on their person.[6]
Chapter 1, Article 3 of the Constitution of Cuba "When no other recourse is possible, all citizens have the right to struggle through all means, including armed struggle, against anyone who tries to overthrow the political, social and economic order established in this Constitution."
In Finland, citizens need a permission to possess a firearm. Permission is given by the police and requires a valid reason. The permission may be denied, for example, if the person has a criminal background or problems with drugs, alcohol or mental health. The right to possess a firearm does not include the right to carry it in public, except while hunting. At home, firearms must be kept behind locks or inoperative. Knives and similar items may not be carried in public.[7][8][9][10]
According to the licensing service, a permit may be issued to any individual working or living in dangerous zones defined by the Ministry, any individual who works in a specific profession listed by the Ministry, or any individual who served in the Israeli Defense Force or other military agencies.[11]
Article 10 of Mexican Constitution of 1917 states the following: "Article 10. The inhabitants of the United Mexican States have the right to possess arms within their domicile, for their safety and legitimate defense, except those forbidden by Federal Law and those reserved for the exclusive use of the Army, Militia, Air Force and National Guard. Federal law shall provide in what cases, conditions, under what requirements and in which places inhabitants shall be authorized to bear arms."[12]
Since 1917 Mexican citizens, like the under the constitution of the United States, have had the right to possess firearms "except those expressly prohibited by law". However ever after rioters looted gun stores in Mexico City in the 1960s, the Mexican government began to restrict wholesale gun ownership. By 1995, the government had closed the last private gun stores and given the military a monopoly on gun sales.
The country now only has one official gun store, the "Directorate for Arms and Munitions Sales" in Mexico City. Located near the army's main headquarters, the two-room building is heavily-guarded. [13] All Mexican citizens who wish legally possess firearms must abide by numerous regulations and limitations in order to make a weapons purchase at the store. They are as follows:
Gun control laws in Mexico are extremely strict in comparison to the United States, making it difficult for the average citizen to purchase anything larger than a .22 caliber. Article 11 (of the Mexican Constitution) “ Ley Federal de Armas de Fuego y Explosivos” lists prohibited "military firearms" in Mexico. They include:
Mexico's constitution has a right to keep and bear arms for its citizens. However, it is much more restrictive than the USA's Second Amendment:
Mexico's gun laws are very restrictive, and extremely harsh if you do not follow them and unlike Canada, where you're likely to be turned away at the border if you have unauthorized firearms or ammo, unwary visitors to Mexico have languished in Mexican jails for five years due to a single spent shell casing in their vehicle. Where there are prohibitions, there are penalties. The penalties for possession of prohibited "military firearms" include: 3-12 months in prison for bayonets, sabers and lances, 1-7 years for .357 magnum revolvers and any revolver larger than a .38 Special, and 2-12 years for other prohibited weapons.
These are the possible legal consequences of being convicted of possessing illegal firearms in Mexico:
The consequences of possessing a knife on your person in Mexico, even a pocketknife are:
Chapter IV, Article 60 of the Socialist Constitution of the Democratic People's Republic of Korea (North Korea) "The State shall implement the line of self-reliant defence, the import of which is to arm the entire people, fortify the country, train the army into a cadre army and modernize the army on the basis of equipping the army and the people politically and ideologically."[17]
According to PRC law, there are firearms regulations and according to those regulations "whoever, in violation of firearm-control regulations, secretly keeps firearms or ammunition and refuses to relinquish them shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention."[18]
Private ownership of firearms in China was first banned by the Qing dynasty.[19]
Under Sharia law, there is an intrinsic freedom to own arms. However, in times of civil strife or internal violence, this right can be temporarily suspended to keep peace, as mentioned by Imam ash-Shatibi in his works on Maqasid ash-Shari'ah (The Intents and Purposes of Shari'ah). [20] Jews and Christians are prohibited from bearing arms and are required to be protected by the Islamic State's Military, the state for which they pay the jizyah.[21] Today, many Muslims in heavily populated Muslim nations such as Indonesia, Turkey and Pakistan do not live under Islamic law Sharia at all but instead under civil law. Many others live in countries such as India where Sharia is applied only to family law. Only very few nations attempt to apply Sharia across the legal spectrum. Thus for most Muslims Sharia law as does not affect the present day rights concerning arms and the civil and criminal codes will be the main reference.
Per section 149.26 of the Spanish Constitution "The State shall have exclusive competence over ... the regime for the production, trading, holding and use of weapons"
In practice, there is a tight regime over firearms which are regulated by law and administered by the Intervención de Armas unit of the Guardia Civil. The law requires every person carrying or having possession of a firearm to have a licence issued by the Civil Guard Authority. There are separate licence cateogries for officers of the state (e.g., the armed forces, the police and customs officers), personal use, security guards, game hunters large and small, for collectors, sports users and for minors participating in sports. Licences usually are issued for a limited period and are restrictive regarding the class of weapon that may be held.[22]
Rules regarding firearms in Switzerland differ markedly from those in other European countries. Under Swiss law, all adult males who have received training in the Swiss armed forces are reservists who are required under law to keep their official firearms at home. According to the gun law of 1999 (larm99), automatic weapons like the Swiss army assault rifle have to be stocked separately of the bolt, which has to be in a locked place.
Switzerland has one of the lowest crime rates in the world, and one of the highest gun ownership rates in the world. In recent times political opposition has expressed a desire for tighter gun regulations.[23]
English law and Scots law do not in general talk about rights. Modern law exists only to curtail certain actions which are deemed illegal for the common good. There is an English common law right to keep and bear arms for self protection but the possession of certain arms is controlled for the common good. Police officers in Great Britain do not routinely carry firearms except at national ports of entry and those on diplomatic security, but may carry a side baton and/or pepper spray. Firearm possession requires a firearms certificate or similar shotgun certificate which is granted in accordance with firearms law only to persons who can demonstrate both a need and that they are sufficiently responsible.[24]
The Bill of Rights of 1689 undid the disarming of Protestants which had occurred in the aftermath of the Civil War but did not create any new rights. The right to regulate arms was clarified, making it certain to be the prerogative of Parliament and not the monarch. The first serious control on firearms after this was not made until the passing of the Pistols Act 1903 more than 200 years later.[25]
The Prevention of Crime Act 1953 prohibited the carrying of an offensive weapon without lawful authority or reasonable excuse. This is defined as any article made or adapted for use to causing injury to the person, or intended by the person having it with him for such use.[26] The law covers not just firearms but also knives. A person cannot merely carry a knife around with him for self defence as the courts will not regard this as reasonable excuse. The threat has to be believed to be real and imminent.[27] A person with fishing tackle and carrying a knife or on a camping expedition would have a reasonable excuse for carrying a knife. Non locking, folding knives with a blade under 3 inches, may be carried freely without "reasonable excuse", however the police and courts will regard them as an offensive weapon, if used as such.
Pistols with barrels shorter than 9 inches were first controlled by the 1903 Pistols Act, which placed hurdles in the path of those who were not householders. Pistols, revolvers, rifles and ammunition, but not shotguns, were much more tightly controlled by the Firearms Act of 1920, which made it illegal to possess these weapons without first obtaining a certificate from the police and registering each individual firearm. Less stringent provisions were introduced for shotguns in 1967.[28]
UK legislation often gives considerable powers to ministers to issue regulations that control the way the various acts are applied. In relation to firearms, this power generally falls to the Home Secretary. The Home Office therefore has some control of the conditions under which firearms certificates can be issued. On a few occasions over the years, permits have been granted to private individuals to keep firearms for personal protection, however these are very limited and exceptional cases.
The Firearms Acts 1936/7 placed additional controls on fully automatic firearms, effectively restricting them to the armed forces and police. The Criminal Justice Act 1967 was passed which introduced Shotgun Certificates. The act was at least in part a response to the murder by criminals of three policemen the previous year, though this had been committed with handguns. The Firearms Act 1968 introduced the concept of compulsory security for rifles and pistols and incorporated the Shotgun Certificate first outlined in the Criminal Justice Act 1967. The Firearms Act 1982 extended the provision of the 1968 Act, including control of imitation firearms. The Hungerford killings in 1987 was followed by the Firearms Act 1988 which banned centre-fire self-loading and pump action rifles and extended compulsory security to shotguns. The Dunblane massacre in Scotland in 1996 was followed by the Firearms (Amendment) Act 1997, which effectively banned all but .22 pistols; and then, after the Labour government led by Tony Blair came into power, the Firearms (Amendment) (No.2) Act 1997 was introduced, which effectively banned the private possession of all modern pistols, even for competitive sporting purposes. Rifles are not limited to smallbore, or to competition use and numerous types of rifles, shotguns and black powder pistols and longarms, may be owned privately. [29]
The Anti-Social Behaviour Act 2003 has brought certain types of air weapons into the categories of control created by the firearms acts.[30]
The Crown Prosecution Service has published a summary of the laws regarding firearms in England and Wales.[31]
The following laws[32] apply to the controlled use of knives in the UK; possession of an offensive weapon in a public place (section 1 Prevention of Crime Act 1953); the possession of a bladed or pointed article in a public place (Section 139 Criminal Justice Act 1988); trading in flick or gravity knives (restricted under the Offensive Weapons Act 1959), the unlawful marketing of combat knives and publishing adverts for combat knives and using someone to mind a weapon (Violent Crime Reduction Act VCRA 2006). The police have powers entry, seizure, retention and forfeiture(The Knives Act 1997). School staff members have powers to search school students and others (VCRA s.45, 46 and 47 & S550aa of the Education Act 1996). Senior police officers can authorise constables to stop and search persons in a specific area either where a serious public order problem is likely to arise, or look for offensive weapons or dangerous instruments (S60 Criminal Justice and Public Order Act 1994).
The Crown Prosecution Service has published a summary of the laws regarding knives in England and Wales.[33]
The Firearms Act 1968 also forbids the use of "any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing." This for example covers pepper spray, ammonia, CS gas, and electric shock armaments such as the Taser.
The Second Amendment to the United States Constitution was heavily influenced by the English Bill of Rights 1689, which restricted the right of the English Crown to interfere with the personal right to bear arms. The 1689 Bill of Rights restricted the right of the monarch to have a standing army and to interfere with the personal right to bear arms. It did not create a new right to have arms, but instead rescinded and deplored acts of the deposed King James II which restricted Protestants' right to have arms while allowing Catholics to keep theirs. The English Bill of Rights firmly established that regulating the right to bear arms was one of the powers of Parliament, and did not belong to the monarch.
The strong English right to bear arms has been eroded in the modern United Kingdom. Although it was never repealed, those parts of the Bill that refer to the ban on the keeping of standing armies and the right to bear arms are now considered obsolete . Because of Parliamentary supremacy, the enactment of subsequent legislation in the U.K. that creates a permanent army owing allegiance to the constitutional monarch [34] and puts the ownership and use of certain arms under tight licensing regulations has effectively repealed these laws implicitly.[35] The English Bill of Rights remains important and a part of the English Constitution primarily because it stripped the monarchy of powers and gave more powers and rights to Parliament. A recent decision of the Supreme Court in the United States has taken a stronger view on the personal right to arms and has effectively recognized a personal right to arms, enforceable if needs be and within limits, against the States. Thus English and American legal principles as well as regulations have now diverged quite significantly.
Sir William Blackstone wrote in the eighteenth century, at a time when there were no police or forces of law enforcement, 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.
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.[36]
Later parliaments would transfer responsibility for maintaining law and order to the police force, for civil defence planning in times of emergency to local and national government, and national defence to the armed forces under democratic control. Thus the element of the Bill of Rights regarding the personal right to have arms is no longer part of constitutional law. The right to defend oneself remains a basic common law right and the obligation to defend the country when called upon is now enshrined in statute law.
The right to keep and bear arms is often presented in the context of military service and the broader right of self defense. Whether this right pertains to individuals acting independently or the people acting collectively has been the topic of several Supreme Court decisions. On June 26, 2008, the Supreme Court of the United States, in a 5-4 decision, held that residents of the District of Columbia have an individual right to handguns for self-defense within the home in the case District of Columbia v. Heller while at the same time reaffirming a broad range of federal restrictions on firearms as being constitutional. Also, the large body of state based law regarding the right to firearms and restrictions on firearms remain largely unchanged, though the Supreme Court ruled in the 2010 case McDonald v. Chicago that the right to keep and bear arms applies to state governments via the due process clause of the fourteenth amendment.[37]
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.[38] 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.[39]
Don Kates, a civil liberties lawyer, cites historic English usage describing the "right to keep and bear their private arms."[40]
Likewise, Sayoko Blodgett-Ford notes a non-military usage of the phrase in pamphlet widely circulated by the dissenting minority dating from the time of the Pennsylvania ratifying convention for the US 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..."[41]
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:[42]
there are numerous instances of the phrase 'bear arms' being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the 'people' [or 'citizen' or 'citizens'] "to bear arms in defense of themselves [or 'himself'] and the state,' or equivalent words, thus indisputably reflecting that under common usage 'bear arms' was in no sense restricted to bearing arms in military service. See Bliss v. Commonwealth, 13 Am. Dec. 251, 12 Ky. 90 (Ky. 1822).[43]
Similarly, in a released Senate report on the Right to Keep and Bear Arms, Senator Orrin Hatch, chairman, U.S. Senate Judiciary Committee, Subcommittee on the Constitution, states:
They argue that the Second Amendment's words "right of the people" mean "a right of the state" — apparently overlooking the impact of those same words when used in the First and Fourth Amendments. The "right of the people" to assemble or to be free from unreasonable searches and seizures is not contested as an individual guarantee. Still they ignore consistency and claim that the right to "bear arms" relates only to military uses. This not only violates a consistent constitutional reading of "right of the people" but also ignores that the second amendment protects a right to "keep" arms. "When our ancestors forged a land "conceived in liberty", they did so with musket and rifle. When they reacted to attempts to dissolve their free institutions, and established their identity as a free nation, they did so as a nation of armed freemen. When they sought to record forever a guarantee of their rights, they devoted one full amendment out of ten to nothing but the protection of their right to keep and bear arms against governmental interference. Under my chairmanship the Subcommittee on the Constitution will concern itself with a proper recognition of, and respect for, this right most valued by free men."[44]
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."[45]
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.[46][47][48][49]
"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."[46]
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.[50] 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 the 1790's 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."[50]
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...".[51]
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."[52]
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 that 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.[53]
This right is often presented in the United States as synonymous with the Second Amendment to the United States Constitution.
| “ | 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. | ” |
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.[53]
| “ | The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people. | ” |
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, March 1997, Page 781, have stated "... 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."[55]
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...[56]
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."[42][49]
"From the text as well as a fair understanding of the contemporary ethic regarding arms and liberty, it seems to us overwhelmingly evident that the principal purpose of the Amendment was to secure a personal, individual entitlement to the possession and use of arms. We cannot, however, (as the individual rights contingent generally does) disregard entirely the first part of the text proclaiming a well regulated militia necessary to the security of a free state."[57]
"...we understand the Second Amendment as though it read: "Inasmuch as and so long as a well regulated Militia shall be necessary to the security of a free state and so long as privately held arms shall be essential to the maintenance thereof, the right of the people to keep and bear arms shall not be infringed." "..to us, the language of the Amendment cannot support a right to personal weaponry independent of the social value of a regulated organization of armed citizens.."[58]
The Second Amendment of the United States Constitution is a federal provision. Each of the fifty states also has its own state constitution. Forty-four states have chosen to explicitly embody a right to bear arms into its state constitution.[61]
Approximately thirty-one states have explicitly chosen to include the right to arms for "individual right", "defense of self", "defense of home" or similarly worded reasons. Approximately thirteen states, as with the U.S. Constitution, did not choose to explicitly include "individual", "self" or "home" wording associated with a right to bear arms for their specific states.
Approximately twenty-eight states have explicitly chosen to include the right to bear arms for "security of a free state", "defense of state", "common defense" or similarly worded reasons, as with the U.S. Constitution. Approximately sixteen states did not choose to include explicitly "free state", "defense of state" or "common defense" wording for their specific state. Whether the inclusion of these kinds of wording in state constitutions has relevance to the issue of whether implicit "individual" rights exist, or whether such rights (if any) are implicitly protected by the states' constitutions or by the U.S. Constitution's Second Amendment, remains a matter of dispute.
Regarding the state interpretations of these state and the federal constitutional rights to bear arms, state courts have addressed the meaning of these specific rights in considerable detail. Two different models have emerged from state jurisprudence: an individual right and a collective right.
Bliss v. Commonwealth (1822, KY)[62] addressed the right to bear arms pursuant to Art. 10, Sec. 23 of the Second Constitution of Kentucky (1799):[63] "That the right of the citizens to bear arms in defence of themselves and the state, shall not be questioned." This was interpreted to include the right to carry a concealed sword in a cane. This case has been described as about "a statute prohibiting the carrying of concealed weapons [that] was violative of the Second Amendment."[64] Others, however, have seen no conflict with the Second Amendment by the Commonwealth of Kentucky's statute under consideration in Bliss since "The Kentucky law was aimed at concealed weapons. No one saw any conflict with the Second Amendment. As a matter of fact, most of the few people who considered the question at all believed amendments to the U.S. Constitution did not apply to state laws."[65]
The Kentucky High Court stated in Bliss, "But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution."[62] The "constitution" mentioned in this quote refers to Kentucky's Constitution.[44]
The case prompted outrage in the Kentucky House, all the while recognizing that Section 23 of the Second Constitution of Kentucky (1799) did guarantee individuals the right to bear arms. The Bliss ruling, to the extent that it dealt with concealed weapons, was overturned by constitutional amendment with Section 26 in Kentucky's Third Constitution (1850) banning the future carrying of concealed weapons, while still asserting that the bearing of arms in defense of themselves and the state was an individual and collective right in the Commonwealth of Kentucky. This recognition, has remained to the present day in the Commonwealth of Kentucky's Fourth Constitution enacted in 1891, in Section 1, Article 7, that guarantees "The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons." As noted in the Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in the 1980s, vol. 10, no. 1, 1982, p. 155, "The first state court decision resulting from the "right to bear arms" issue was Bliss v. Commonwealth. The court held that "the right of citizens to bear arms in defense of themselves and the State must be preserved entire, ..." "This holding was unique because it stated that the right to bear arms is absolute and unqualified."[66][67]
The importance of Bliss is also seen from the defense subsequently given against a murder charge in Kentucky against Mattews Ward, who in 1852 pulled out a concealed pistol and fatally wounded his brother's teacher over an accusation regarding eating chestnuts in class. Ward's defense team consisted of eighteen lawyers, including U.S. Senator John Crittenden, former Governor of Kentucky, and former United States Attorney General. The defense successfully defended Ward in 1854 through an assertion that "a man has a right to carry arms; I am aware of nothing in the laws of God or man, prohibiting it. The Constitution of Kentucky and our Bill of Rights guarantee it. The Legislature once passed an act forbidding it, but it was decided unconstitutional, and overruled by our highest tribunal, the Court of Appeals." As noted by Cornell, "Ward's lawyers took advantage of the doctrine advanced in Bliss and wrapped their client's action under the banner of a constitutional right to bear arms. Ward was acquitted."[68]
In contrast, in State v. Buzzard (1842, Ark), the Arkansas high court adopted a militia-based, political right, reading of the right to bear arms under state law, and upheld the 21st section of the second article of the Arkansas Constitution that declared, "that the free white men of this State shall have a right to keep and bear arms for their common defense",[69] while rejecting a challenge to a statute prohibiting the carrying of concealed weapons. Buzzard had carried a concealed weapon and stood "indicted by virtue of the authority of the 13th section of an act of the Legislature prohibiting any person wearing a pistol, dirk, large knife or sword-cane concealed as a weapon, unless upon a journey, under the penalties of fine and imprisonment." Justice Lacy, in a dissenting opinion in Buzzard, summarizing the majority viewpoint to which he disagreed, declared:
"That the words "a well regulated militia being necessary for the security of a free State", and the words "common defense" clearly show the true intent and meaning of these Constitutions [i.e., Ark. and U.S.] and prove that it is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then the people, neither individually nor collectively, have the right to keep and bear arms."[69]
Joel Prentiss Bishop's influential Commentaries on the Law of Statutory Crimes (1873) took Buzzard's militia-based interpretation, a view that Bishop characterized as the "Arkansas doctrine", as the orthodox view of the right to bear arms in American law.[69][70]
Political scientist Earl Kruschke has categorized both Bliss and Buzzard as being "cases illustrating the individual view."[71] Professor Eugene Volokh revealed, in the California Political Review, that a statement in a concurring opinion in Buzzard was the only support for a collective right view of the right to keep and bear arms in the 19th century.[72]
In 1905, the Kansas Supreme Court in Salina v. Blaksley[73] made the first collective right judicial interpretation.[74] The Kansas high court declared: "That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal Constitution, which says: '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 models of interpreting the right to bear arms in the United States commonly exist. These three models are founded on differing interpretations of the 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."
The first two models focus on the preamble, or "purpose" clause, of the Amendment — the words "A well regulated Militia, being necessary to the security of a free State." The first model, the collective model, holds that the right to bear arms belongs to the people collectively rather than to individuals, because the right's only purpose is to enable states to maintain a militia. The second model, the modified collective model, is similar to the first. It holds that the right to keep and bear arms exists only for individuals actively serving in the militia, and then only pursuant to such regulations as may be prescribed.[75]
The third model, the individual-rights model, holds that a right of individuals is to own and possess firearms, much as the First Amendment protects a right of individuals to engage in free speech.[75] This view was more strongly reflected by the Supreme Court in District of Columbia v. Heller (2008) than had previous interpretations by the Court. Prior to the Supreme Court's ruling in Heller there was a split among the federal courts, with nine of the federal circuit courts of appeal supporting a modified collective rights view, two of the federal circuits supporting an individual rights view, and one federal circuit court having not addressed the question.[76]
Supreme Court justice Antonin Scalia in 2008 wrote that the right to bear arms is not unlimited and is subject to reasonable prohibitions and regulations and subsequently federal court rulings have upheld existing gun prohibitions and regulations.[77]
Nadine Strossen, President of the American Civil Liberties Union, has stated the argument that the Individual Rights model must yield to reasonable regulation.[78] "Let's assume for the sake of argument it does protect an individual right," said Strossen, "it is no more absolute than freedom of speech or any other right in the Constitution. No right is absolute; the government is always allowed to restrict the right if it can satisfy Constitutional strict scrutiny and show the restriction is narrowly tailored to promote a goal of compelling importance."[79]
At the state level, each of the fifty state constitutions, state laws, and state courts address the state-based right to bear arms distinctly within their respective jurisdictions.[80] The degree and the nature of the protection, prohibition, and regulation at the state level varies from state to state. The District of Columbia, not being a state, falls within the federal jurisdiction.
In the Nineteenth century, in the United States, considerable attention in public discourse and the courts was directed to the issue of the risks of arming of slaves (prior to the Civil War), and later to the right of the Negro people to belong to militia and the arming of the Negro people. Most famously this is seen in the court arguments of the court case Dred Scott v. Sandford, whether the slave Dred Scott could be a citizen, with rights, including the right to bear arms. This debate about the rights of slaves and former slaves often included the usage of the term 'bear arms' with the meaning of individual Negroes having or not having the right to possess firearms.
In October 2001, the United States Court of Appeals for the Fifth Circuit stated:
"there are numerous instances of the phrase 'bear arms' being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the 'people' [or 'citizen' or 'citizens'] "to bear arms in defense of themselves [or 'himself'] and the state,' or equivalent words, thus indisputably reflecting that under common usage 'bear arms' was in no sense restricted to bearing arms in military service."[81][82]
The Emerson decision was consistent with a view of Constitutional interpretation known by its principal advocates[83] as the "Standard Model" view, and alternatively referred to as the "Individualist view".[60][84] There is some dispute whether the "individualist view" predates the collective "militia view" in American jurisprudence. Some assert the "militia view" first appeared only in the early to mid 1990s.[85][86] A contrasting opinion asserts the militia view long predates the individualist view, with the individualist view dating back to only 1960.[60][87][88]
In the late twentieth (20th) century, gun advocates argued[89] that the term 'keep and bear arms' means and has meant keeping and bearing private arms for self defense or hunting purposes. The 1986 TV film The Right of the People refers to this for self-defense against crime.[90]
The Second Amendment of the United States has also been viewed by many private Americans, including those who are part of the modern militia movement as providing a means for resisting governmental tyranny, also known as the "insurrectionary theory of the Second Amendment". The modern militia movement in the United States has sought to advance its case through selective quoting on websites and publications the words of the founding fathers, though the accuracy of these quotations has been debated. What is notable is that the quotations generally align not with the Federalist Framers, but rather with the Anti-Federalist objectors to the Constitution. People sympathetic with the modern militia movement object to this analysis.[91][92]
Interest groups, primarily in the United States, exert political pressure for and against legislation limiting the right to keep and bear arms. This political debate in America is organized between those who seek stricter regulations and those who believe gun regulations violate the Second Amendment protection of a right to keep and bear arms.[93] The largest advocacy group in this regard is the National Rifle Association, and its political wing, the NRA Institute for Legislative Action. The NRA has been described as one of the largest and most powerful political special interest group in the United States.[94] Several other groups including the Gun Owners of America and the Citizens Committee for the Right to Keep and Bear Arms, while smaller in size, are also politically active.[95] The main gun control advocacy group is the Brady Campaign which has been described as considerably less effective than gun-rights organizations.[96]