Two of them— (i.e., of the four)
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:
Cite as: 554 U. S. ____ (2008) 29
Opinion of the Court
“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].”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.——————
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.
30 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
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 selfdefense.
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.
