Woolard v. Sheridan -- MD Right to Carry Case

We turn first to the meaning of the Second Amendment.
The Second Amendment provides: “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.”

In interpreting this text, we are guided by the
principle that “[t]he Constitution was written to be understood
by the voters; its words and phrases were used in
their normal and ordinary as distinguished from technical
meaning.” United States v. Sprague, 282 U. S. 716, 731
(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).
Normal meaning may of course include an idiomatic
meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the
founding generation.

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The Second Amendment is naturally divided into two
parts: its prefatory clause and its operative clause. The
former does not limit the latter grammatically, but rather
announces a purpose. The Amendment could be rephrased,
“Because a well regulated Militia is necessary to
the security of a free State, the right of the people to keep
and bear Arms shall not be infringed.” See J. Tiffany, A
Treatise on Government and Constitutional Law §585,
p. 394 (1867); Brief for Professors of Linguistics and English
as Amici Curiae 3 (hereinafter Linguists’ Brief).
Although this structure of the Second Amendment is
unique in our Constitution, other legal documents of the
founding era, particularly individual-rights provisions of
state constitutions, commonly included a prefatory statement
of purpose.

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Constitution as Ratified by the States
December 15, 1791
Preamble

Congress OF THE United States
begun and held at the City of New York, on Wednesday
the Fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.:

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

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The term was applied, then as now, to weapons that
were not specifically designed for military use and were
not employed in a military capacity. For instance, Cunningham’s
legal dictionary gave as an example of usage:
“Servants and labourers shall use bows and arrows on
Sundays, &c. and not bear other arms.” See also, e.g., An
Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6,
p. 104, in 1 First Laws of the State of Delaware 102, 104
(J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke,
42 Tex. 455, 458 (1874) (citing decisions of state courts
construing “arms”). Although one founding-era thesaurus
limited “arms” (as opposed to “weapons”) to “instruments
of offence generally made use of in war,” even that source
stated that all firearms constituted “arms.” 1 J. Trusler,
The Distinction Between Words Esteemed Synonymous in
the English Language 37 (1794) (emphasis added).
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. Just as the First
Amendment protects modern forms of communications,
e.g., Reno v. American Civil Liberties Union, 521 U. S. 844,
849 (1997), and the Fourth Amendment applies to modern
forms of search, e.g., Kyllo v. United States, 533 U. S. 27,
35–36 (2001), 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.

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The phrase “keep arms” was not prevalent in the written
documents of the founding period that we have found,
but there are a few examples, all of which favor viewing
the right to “keep Arms” as an individual right unconnected
with militia service. William Blackstone, for example,
wrote that Catholics convicted of not attending
service in the Church of England suffered certain penalties,
one of which was that they were not permitted to
“keep arms in their houses.” 4 Commentaries on the Laws
of England 55 (1769) (hereinafter Blackstone); see also 1
W. & M., c. 15, §4, in 3 Eng. Stat. at Large 422 (1689)
(“[N]o Papist . . . shall or may have or keep in his House
. . . any Arms . . . ”); 1 Hawkins, Treatise on the Pleas of
the Crown 26 (1771) (similar). Petitioners point to militia
laws of the founding period that required militia members
to “keep” arms in connection with militia service, and they
conclude from this that the phrase “keep Arms” has a
militia-related connotation. See Brief for Petitioners 16–
17 (citing laws of Delaware, New Jersey, and Virginia).
This is rather like saying that, since there are many statutes
that authorize aggrieved employees to “file complaints”
with federal agencies, the phrase “file complaints”
has an employment-related connotation. “Keep arms” was
simply a common way of referring to possessing arms, for
militiamen and everyone else.

(The italics were the Court's --230RN)

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And if one looks beyond legal sources, “bear arms” was
frequently used in nonmilitary contexts. See Cramer &
Olson, What Did “Bear Arms” Mean in the Second Amendment?,
6 Georgetown J. L. & Pub. Pol’y (forthcoming Sept.
2008), online at http://papers.ssrn.com/abstract=1086176
(as visited June 24, 2008, and available in Clerk of Court’s
case file) (identifying numerous nonmilitary uses of “bear
arms” from the founding period).
JUSTICE STEVENS points to a study by amici supposedly
showing that the phrase “bear arms” was most frequently
used in the military context. See post, at 12–13, n. 9;
Linguists’ Brief 24. Of course, as we have said, the fact
that the phrase was commonly used in a particular context
does not show that it is limited to that context, and, in any
event, we have given many sources where the phrase was
used in nonmilitary contexts. Moreover, the study’s collection
appears to include (who knows how many times) the
idiomatic phrase “bear arms against,” which is irrelevant.
The amici also dismiss examples such as “ ‘bear arms . . .
for the purpose of killing game’ ” because those uses are
“expressly qualified.” Linguists’ Brief 24. (JUSTICE
STEVENS uses the same excuse for dismissing the state
constitutional provisions analogous to the Second Amendment
that identify private-use purposes for which the
individual right can be asserted. See post, at 12.) That
analysis is faulty. A purposive qualifying phrase that
contradicts the word or phrase it modifies is unknown this
side of the looking glass (except, apparently, in some
courses on Linguistics). If “bear arms” means, as we
think, simply the carrying of arms, a modifier can limit
the purpose of the carriage (“for the purpose of selfdefense”
or “to make war against the King”). But if “bear
arms” means, as the petitioners and the dissent think, the
carrying of arms only for military purposes, one simply
cannot add “for the purpose of killing game.” The right “to
carry arms in the militia for the purpose of killing game”
is worthy of the mad hatter. Thus, these purposive qualifying
phrases positively establish that “to bear arms” is
not limited to military use.11

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