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Right to Keep and Bear Arms

Article 17 (1780)

The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

Precedents, Following Law, and Quotations

“Northampton Returns to the Convention on the Constitution for the Massachusetts Bay,” (1780), The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780, O. & M. Handlin ed.s, Belknap Press, 1966, p. 574:

”We also judge that the people’s right to keep and bear arms, declared in the seventeenth article of the same declaration is not expressed with that ample and manly openness and latitude which the importance of the right merits; and therefore propose that it should run in this or some like manner, to wit, The people have a right to keep and bear arms as well for their own as the common defense. Which mode of expression we are of opinion would harmonize much better with the first article than the form of expression used in the seventeenth article.”

 

Second Amendment, United States Constitution, became law Dec. 15, 1791 when ratified by Virginia, the 10th state to approve the 10 Amendments to the U.S. Constitution, now known as the Bill of Rights.

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.”

Cornell University, Legal Information Institute, U.S Constitution Annotated, “Bearing Arms: Second Amendment:

“For over 200 years, despite extensive debate and much legislative action with respect to regulation of the purchase, possession, and transportation of firearms, as well as proposals to substantially curtail ownership of firearms, there was no definitive resolution by the courts of just what right the Second Amendment protects. The  Second Amendment  is naturally divided into two parts: its prefatory clause (“A well regulated Militia, being necessary to the security of a free State”) and its operative clause (“the right of the people to keep and bear Arms shall not be infringed”). To perhaps oversimplify the opposing arguments, the “states’ rights” thesis emphasized the importance of the prefatory clause, arguing that the purpose of the clause was to protect the states in their authority to maintain formal, organized militia units. The “individual rights” thesis emphasized the operative clause, so that individuals would be protected in the ownership, possession, and transportation of firearms. Whatever the Amendment meant, it was seen as a bar only to federal action, not state or private restraints. . . It was not until 2008 that the Supreme Court definitively came down on the side of an ‘individual rights’ theory.”

 

District of Columbia et al. v. Heller, 554 US 570 (2008):

“The 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.”

 

Commonwealth v. Davis, 369 Mass. 886  (1976):

“Provisions like art. 17 were not directed to guaranteeing individual ownership or possession of weapons.”

 

Commonwealth v. Caetano, 470 Mass. 774, (2015):

“At issue here is only the applicability of the Second Amendment to the statute. The cognate Massachusetts constitutional provision, art. 17 of the Massachusetts Declaration of Rights, previously has been held to encompass a collective, and not an individual, right to bear arms. See Commonwealth v. Davis, 369 Mass. 886 , 888 (1976).”

 

For more information, see the Massachusetts Trial Court Law Libraries’ Massachusetts law about Guns and other weapons: A compilation of laws, regulations, cases, and web sources on weapons law” .

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