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Hunting down the meaning of the Second Amendment: an American right to pursue game.

In District of Columbia v. Heller, the United States Supreme Court held that the Second Amendment protects a right to keep and bear arms for self-defense. In dicta, Heller suggests that the Second Amendment protects a right to bear arms for hunting. Because some federal district courts reject a Second Amendment right to bear arms for hunting, this Article explores whether the Second Amendment of the United States Constitution protects a right to keep and bear arms for the purpose of killing game. This Article examines the text of the Second Amendment while exploring its limitations and its history. It traces the Amendment's English and American origins by reviewing preeminent works by legal scholars William Blackstone and St. George Tucker, colonial statutes, early state constitutions, and other post-Revolutionary War era records and commentaries. Next, this Article discusses the Constitutional Amendment as interpreted by Heller and its progeny. In light of the text and history of the Second Amendment, this Article concludes that the Amendment protects a right to bear arms for the purpose of hunting.

I. INTRODUCTION

"Towards his prey [the hunter] takes a quasi-religious attitude. The hunted animal is hunted as an individual.... But the hunted species is elevated to divine status as the totem ...

--Roger Scruton

In 2012, five days after the movie-massacre in Aurora, Colorado, President Barack Obama said, "I, like most Americans, believe that the Second Amendment guarantees an individual the right to bear arms. And we recognize the traditions of gun ownership that passed on from generation to generation--that hunting and shooting are part of a cherished national heritage." (2) This was not the first time President Obama proclaimed his belief that the Second Amendment protects an individual right to keep and bear arms for the lawful purpose of hunting. (3) Nor is Obama the first modern president to hold this belief. President Clinton noted in his 1995 State of the Union address:

   The Members of Congress who voted for [the Brady Handgun Violence
   Prevention Act] and I would never do anything to infringe on the
   right to keep and bear arms to hunt and to engage in other
   appropriate sporting activities. I've done it since I was a boy,
   and I'm going to keep right on doing it until I can't do it
   anymore. (4)


Constitutional law scholar Cass Sunstein said, "I strongly believe that the Second Amendment creates an individual right to possess and use guns for purposes of both hunting and self-defense," a statement with which Sunstein's Harvard predecessor--Alan Dershowitz--concurred. (5) A belief is one thing; but what is their evidence for that belief?

The Second Amendment provides: "A well-regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." (6) As written, the twenty-seven word Amendment protects the right to keep and bear arms without any qualification or explanation of its purpose. (7) The United States Supreme Court in District of Columbia v. Heller held that the Second Amendment protects a right to keep and bear arms for self-defense. (8) Certainly, this is textualism and originalism gone mad! (9) The Second Amendment does not say it protects a right to keep and bear arms for self-defense or for hunting. (10) This Amendment, however, is a unique right deeply rooted in history and American tradition.

The Heller Court explained that the text of the Amendment itself is not enough to uncover its meaning, because the Second Amendment, like other rights embedded in the Bill of Rights, codified a pre-existing right. (11) According to Heller and its progeny, we must review the text and history of the Second Amendment to understand its protections. After parsing the language of the text and examining the historical background of the Amendment, the Supreme Court noted that the Second Amendment protects a right to keep and bear arms for the militia and for the natural right of armed self-defense. (12) The Heller Court, in dicta, suggested that the Second Amendment right protects a right to bear arms for hunting. (13) With at least seventeen state constitutions unequivocally protecting a right to hunt using arms, (14) President Obama and the others mentioned above hold a penumbral view of the Second Amendment, viz., that the Second Amendment implicitly protects a right to keep and bear arms for hunting. Does this belief hold true?

This Article explores whether the Second Amendment of the United States Constitution protects a right to keep and bear arms for the purpose of killing game. (15) Part I examines the text of the Second Amendment. (16) Part II reviews the history of the Amendment as it relates to hunting. Part III discusses the constitutional Amendment as interpreted under contemporary Second Amendment jurisprudence. (17) In light of the Second Amendment's text and history, and the evidence thereof, this Article argues that the Amendment protects a right to keep and bear arms for the purpose of hunting. (18)

II. THE TEXT DOES NOT FORECLOSE KEEPING AND BEARING ARMS FOR HUNTING

'"You seem very clever at explaining words, Sir, ' said Alice. 'Would you kindly tell me the meaning of the poem called "Jabberwocky"?" (19)

--Lewis Carroll

Words have meanings. Their meanings--both traditional and idiomatic-are determined by social convention. Accordingly, the Heller Court painstakingly evaluated and defined each word and phrase of the Second Amendment pursuant to its original meaning. The majority, however, was not alone in its originalistic interpretation of the Amendment. In fact, the petitioner and respondent presented the Court with arguments entirely based on the meaning of the Second Amendment at the time of the founding of the United States. Even dissenting Justices Stevens and Breyer couched their arguments in originalism. (20) Surely, this must have shocked many Supreme Court watchers. What is the meaning of twenty-seven words of the Amendment?

A. ONE PURPOSE FOR CARRYING ARMS: THE PREFATORY CLAUSE

As Heller explained, the prefatory clause of the Second Amendment announces one purpose for the Second Amendment right. (21) The prefatory clause states: "A well-regulated Militia, being necessary for the security of a free State". (22) The Court noted, that in creating the prefatory clause, the Framers codified the right to keep and bear arms for service in the militia, and that they did so out of fear that Congress would usurp state militia. (23) The Court, however, explained that the prefatory clause does not limit the Second Amendment right. (24) In other words, the announced reason for codification of a pre-existing right-the fear that the militia would be dismantled or controlled by Congress--cannot limit the right to bear arms. (25) The Court, rather, said the prefatory clause sheds light on the operative clause.

The two clauses are connected and cannot violate the other's meaning. (26) Furthermore, the prefatory clause supplies but one purpose of the right to keep and bear arms. (27) Certainly, based on the prefatory clause, an argument that the right to keep and bear arms protects a right for the purpose of hunting is not foreclosed. (28) Any argument based on the prefatory clause as controlling and limiting the operative clause was expressly rejected by Heller. (29) In other words, there may be other purposes in addition to its stated purpose. The Court found that self-defense was another purpose for which an individual has a right to keep and bear arms. This purpose--self-defense--and other purposes, as the Court noted, are determined by the text of the Amendment and the history of the right to keep and bear arms. Therefore, the prefatory clause does not preclude hunting as one such purpose.

B. THE UNMODIFIED OPERATIVE CLAUSE: RIGHT TO KEEP AND BEAR ARMS FOR LAWFUL PURPOSES

The Second Amendment protects a right to keep and bear arms. This operative clause of the Amendment is not qualified in terms of its purpose. (30) At the time of the founding, state Second Amendment analogues contained what the Court called "purposive qualifying phrases" or "modifying phrases." (31) To list a few, these modifying or purposive qualifying phrases include "for common defense," "for defense of self and state," and "for the purpose of killing game." (32) The Second Amendment, however, does not contain this qualifying language. (33) In other words, the Second Amendment right "to keep and bear arms" is not limited by any specific purposive qualifying phrase or modifying phrase, like the rights of the four state Second Amendment analogues. (34)

As Heller noted, however, the Second Amendment protects "the carrying of arms [and] a modifier can limit the purpose of the carriage." (35) The Court found that one such "modifier" that limited the purpose of carrying arms, based on the history of the Second Amendment right, was self-defense. To put it differently, the Second Amendment protects a right to keep and carry arms for self-defense. Looking to the Second Amendment analogues as modifiers of the right to carry arms under the Second Amendment and the unqualified operative clause of the Second Amendment, hunting most certainly, fits as a limit on the purpose of carriage. The operative clause's structure, therefore, supports hunting as one of the right's purposes.

1. To Keep and To Bear Arms

The Heller Court explained that "arms" means weapons, (36) "to keep" means to have, (37) and "to bear" means to carry. (38) Any argument to the contrary is error. As evidence of this, the Court rejected the District of Columbia's argument that the "to bear arms" phrase was an idiomatic expression only associated with militia use. (39) Rather, the Court found that the term "to bear arms" unambiguously "referfs] to the carrying of weapons outside of an organized militia." (40) Thus, the Second Amendment protects a right to have and to carry weapons inside an organized militia as well as outside of an organized militia. Heller's implications are clear: the Second Amendment right is a right to have and carry a weapon unconnected to the militia. Accordingly, Heller implies that the Second Amendment right is a right to keep and bear arms for hunting.

2. Shall not be Infringed

The Second Amendment is a unique pre-existing right. The text of the Amendment suggests such. As Heller noted, "[w]e look to [the history] because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right [when it says the right] "shall not be infringed." (41) The Second Amendment has long been recognized by the Supreme Court as a pre-existing right.

In United States v. Cruikshank, the Court reviewed violations of the victims' right to bear arms. (42) There, the Supreme Court wrote that the Second Amendment right to bear arms for a lawful purpose '"is not a right granted by the Constitution' and is not 'in any manner dependent upon that instrument for its existence.'" (43) Rather, the right existed and was well-established and secured in common law jurisprudence in England, prior to the Constitution. The English right to keep and bear arms, however, was an illusory right--subject to the authority of Parliament and thus, not a right at all by American standards. (44)

Because, as noted above, the Second Amendment's operative clause is not modified by a qualifying purposive phrase, the right's purpose is not apparent from the text. (45) The Amendment, prima facie, protects a right to have and carry weapons. The question arises: how do you determine what this right to keep and bear arms means? For what purposes may an individual have and carry weapons that are protected by the Second Amendment? As Heller explained, the Second Amendment right's history provides the answer.

III. THE HISTORY OF THE SECOND AMENDMENT: CARRYING ARMS FOR HUNTING

"When you have shot one bird flying you have shot all birds flying. They are all different and they fly in different ways but the sensation is the same and the last one is as good as the first." (46)

--Ernest Hemmingway

"This country was built by gun-totin ' square dancers," (47)

--Niles Crane

The English Bill of Rights of 1689 codified the predecessor right to the Second Amendment. Even before the English Bill of Rights of 1689, hunting was a right deeply rooted in custom and an exalted activity on the English Isle. (48) It was not always, however, a guaranteed right because the forest and game laws restricted hunting as a means to disarm the possible rebellious commoners.

A. AN ANCIENT AND INHERENT RIGHT TO BEAR ARMS FOR THE PURSUIT OF GAME

William Blackstone's Commentaries was the leading American law resource before, during, and shortly after the American Revolution. (49) Blackstone, like every great collection of civil legal commentaries, started with an exposition of the rights of people. (50) He noted that everyone has an equal right to seize and enjoy those things in common, including wild animals. (51) Blackstone believed that everyone has a natural right to hunt wild animals.

Tracing this natural right to hunt with arms, (52) Blackstone explained that, unless restrained by civil law, every person has a right to pursue wild game. (53) Blackstone continued that "indeed it cannot be denied, that by the law of nature every man, from the prince to the peasant, has an equal right of pursuing, and taking to his own use, all such creatures as are ferae naturae" until seized by its first occupant. (54)

Before the Norman Conquest of 1066, everyone had a right to hunt on unenclosed lands. After the Conquest, however, the rules changed. (55) Through the forest and game laws, the king took full possession of all wild animals and controlled all aspects of hunting. (56) This was done, as Blackstone noted, to disarm the common people and to secure the conqueror's new acquisition, because "[n]othing could do this more effectually than a prohibition of hunting and sporting." (57) At this point in England, no one could hunt without the permission of the king through his "royal gamekeeper." (58) Thus, the general population was disarmed by these forest and game laws.

Although Blackstone believed in a natural right to bear arms for hunting, he noted that the right "may be restrained by positive laws enacted for reasons of state[s], or for the supposed benefit of the community." (59) The common law restrictions were on the location, the animal subject to hunt, and the persons allowed to hunt. (60) Blackstone undoubtedly was suspicious of the English game and forest laws because of their restriction of the natural right to hunt with arms and the subsequent disarming the general populous, which violated the natural right to bear arms for that purpose. (61) In other words, the true intent of the game and forest laws was to disarm the general population by taking away their natural right to have arms for hunting. Even more egregious, the game and forest laws did not allow a person to have arms for hunting on his own land, unless he obtained a yearly certificate from the king. These game and forest laws continued with the Game Act of 1671--a strict, draconian law, which disarmed the general populous.

1. The Game Act of 1671: A Disarming in Disguise

As noted above, (62) the earliest game laws forbade the commoners from owning guns for hunting. (63) In response to the growth of Catholicism under Charles II, Parliament passed the Game Act of 1671. (64) The Act effectively disarmed the pauper Catholics, yet it allowed the Protestant country aristocracy to retain control of their weapons. (65) From its Civil War experience, Parliament recognized the dangers associated with gun possession by commoners and hoped to avoid the Catholic King empowering other Catholics with arms.

In doing so, this 1671 Act banned all persons from owning a firearm who did not have lands with a value of over one hundred pounds. (66) Effectually, the Act required fifty times as much property as the right to vote and thus, it allowed for widespread seizures of guns, particularly seizures of the pauper Catholics' guns. (67) Therefore, the Act did what previous forest or game laws have done: disarmed the people. (68) After King Charles died, James II, his Catholic brother, assumed the throne and disarmed Protestants while arming Catholics. As a result, Parliament asked William of Orange to become king. (69)

2. The English Declaration of Rights of 1689 Protecting Arms as Allowed by Law

In 1689, after the Glorious Revolution, recently enthroned William called Parliament to address the rights of the English subjects. (70) Parliament promulgated a Declaration of Rights which contained a list of the so-called "true, ancient, and indubitable" thirteen rights and liberties of the English people. (71) One such right provided: '"That the subjects, which are Protestants, may have arms for their defense suitable to their condition, and as allowed by law.'" (72) The previous Commons draft of this right stated "may have arms for their common defence;" however, the final version deleted "common." (73) "Not only was the militia left out of the Declaration of Rights, but even the notion that private arms were necessary for common, as opposed to individual, defence was excluded." (74) The right was qualified, however, in multiple ways. First, it only protected the right of Protestants to have arms. (75) This seems to suggest that the right was restricted to a class of people, notably the aristocracy. (76) Second, the right protected bearing arms for defense suitable to conditions. Lastly, individuals may have arms "as allowed by law." (77)

This last qualification is unusual given the preamble to the Declaration of Rights that this right was an "ancient, and indubitable" right. (78) If the right is constrained by Parliament, could it be an unquestioned right? Could it be a right at all? In the alternative, this phrase "as allowed by law" can be interpreted as a catchall phrase of the right to have arms for any purpose as allowed by law. Among those purposes allowed by law was to hunt.

This English right does not mention a right to have arms for hunting. In light of the promulgation of the post-Declaration of Rights Game Act, however, the right was interpreted as securing a right to have arms for hunting. (79) In fact, English common law cases before and after the English Bill of Rights "recognized the right of all to keep and bear arms for various lawful purposes." (80) Whatever this qualification meant, it illustrates that the American right to bear arms--and, in general, the American Bill of Rights, which was not subject to the normal legislative restraints of Congress like the English rights--was intended as a broader right than its English counterpart.

B. A COLONIAL & STATE RIGHT TO KEEP AND BEAR ARMS FOR HUNTING ON UNENCLOSED LANDS

The American colonies did not have similar restrictions on hunting with guns as the English game and forest laws were not applicable in America. Rather, the use of arms for hunting was necessary for the American colonialists. According to some accounts of colonial America, to bear arms for the purpose of hunting was among the most necessary activities for survival. (81) In addition to its importance, some state constitutions expressly protected a right to hunt with guns, while some state Second Amendment analogues provide examples of a right to keep and bear arms with a modified purposive phrase.

Hector St. John de Crevecceur in his Letters from an American Farmer noted the importance of hunting in colonial America. (82) Some scholars claim that the importance of hunting in colonial America is overstated, arguing that colonists lived an agricultural lifestyle. Thus, these scholars claim that keeping and bearing arms for hunting was unimportant in colonial America. (83) Even if the historical record on the importance of hunting with guns in colonial America is overstated, almost every colonial--and later state--legislature, thought it important enough to promulgate regulations on hunting--regulations founded on English common law.

1. Early Colonial & State Acts Protected the Right to Hunt on Unenclosed Lands

Before and after the ratification of the Second Amendment, multiple states regulated hunting by limiting the activity to seasonable times for wildlife population management. (84) In addition, most state legislatures relied on the common law English distinction between hunting on "inclosed" and "uninclosed" (sic) lands. (85) The latter is a natural right; the former is subject to permission from the owner. A few examples from colonial laws illustrate this point. (86)

In 1704, the Virginia's General Assembly passed "An Act to prevent Indians hunting and rangeing upon Pattented Lands." (87) Virginia law in 1738 prevented the unlawful hunting of deer outside of its season for its preservation. (88) Frontiersman and Indians, however, were not subject to this Act. (89) Like other colonies, Virginia prohibited hunting on enclosed lands without the consent of the owner, but never prohibited hunting on unenclosed lands. (90)

From as early as 1722, New Jersey regulated hunting. (91) Like most colonies, New Jersey's hunting laws provided a distinction between allowing hunting on unenclosed lands, while prohibiting hunting on enclosed lands without license from the owner. (92) In 1751, New Jersey law even encouraged hunting with a reward for hunting wolves and panthers. (93) Furthermore, in 1756, New Jersey preserved the Indians' right to hunt "on any uninclosed [sic] Lands." (94) In 1771, New Jersey promulgated an Act "for the Preservation of Deer and other Game, and to prevent trespassing with Guns...." (95) The Act required any person carrying a gun or hunting on land (not his own) to have license or written permission from the owner. It also prohibited unseasonable hunting; however, the Act did not affect parks, private lands, or Indians. (96)

Shortly before the Revolution, North Carolina law on hunting stated "[t]hat no Person within this Government, shall presume to hunt, drive or kill, any Stock, Deer, or Game, on any Person's Land within this Government ... without Leave first had and obtained from the Owner." (97) North Carolina also prohibited the hunting outside of seasonable times and by slaves. (98)

In the Pennsylvania Declaration of Rights of 1776, Pennsylvania explicitly codified a right to hunt. Section forty-three stated that "[t]he inhabitants of this state shall have liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed; and in like manner to fish in all boatable waters, and others not private property." (99) Pennsylvania's Minority Report on the Ratification of the United States Constitution also suggested this same right for inclusion in the Federal Bill of Rights.

A Maryland Act of 1799, for preservation of wild deer, asserted that "no person within this province, (friend Indians excepted) shall kill any deer" out of season. (100) The act, however, continued, "nothing herein contained shall extend, to prevent the owner from killing tame deer, or deer actually confined within parks or islands." (101) Furthermore, Maryland also distinguished between hunting on unenclosed and "inclosured" [sic] lands. It stated that "[n]o person shall hunt with dogs or guns within any inclosed [sic] grounds, islands, peninsulas, or necks fenced across from water to water" while allowing hunting on unenclosed lands. (102) But Maryland also restricted hunting in another way. It prohibited "gaming, fishing, fowling, hunting, or other unlawful pastimes" and "unlawful sports or recreations" on Sundays. (103) No doubt any hunter of European decent would use a gun to hunt.

Although these statutes reveal a distinction between a common law right to bear arms for the purpose of hunting on unenclosed lands and a common law prohibition on hunting on enclosed lands, these statutes also provide a context to understand the Second Amendment right in relation to the important tradition of hunting in America--an activity of greater liberty than its English counterpart. In addition, the statutes show the importance of the right to keep and bear arms for hunting in America. If arms were not prevalent and were not used for hunting, the colony and state legislatures would not have needed to regulate hunting. Accordingly, before, during, and after the American Revolution, legislatures promulgated statutes that protected this natural right to keep and bear arms for hunting on unenclosed lands as a lawful activity in America with the general populous remaining armed, unlike its English counterpart, which was restricted and limited to the few elite.

2. Pre-Ratification State Second Amendment Analogues

From 1776 to 1791, four States adopted Second Amendment analogues. These analogues are the right to keep and bear arms in state constitutions. The Pennsylvania, North Carolina, and Vermont analogues enshrined the "right to bear arms for defence of themselves and the state," (104) while the Massachusetts analogue approved the right "to bear arms for the common defence." (105) Notably, the state analogues highlight the uniqueness of the federal Amendment. These state Second Amendment analogues all contain a purposive qualifying phrase. In addition, two other states' constitutions contained arms-related articles. (106) None of these, however, contained a provision expressly to keep and bear arms for the purpose of hunting. This does not mean that the Second Amendment does not protect a right to keep and bear arms for hunting. In fact, some viewed that these state rights protected a right for using arms for purposes other than common defense, such as for killing game, fowl, etc. (107) Although not entirely convincing, the state analogues illustrate the broad scope of the Second Amendment right when compared to state constitutions and the English Bill of Rights.

3. State Constitutional Rights to Hunt

Some state constitutions expressly protected a right to hunt, unrelated to their provisions on the right to keep and bear arms. Pennsylvania's Constitution of 1776 stated that "[t]he inhabitants of this state shall have liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed; and in like manner to fish in all boatable waters, and others not private property." (108) Vermont's Constitution of 1777 stated "[t]hat the inhabitants of this State, shall have liberty to hunt and fowl, in seasonable times, on the lands they hold, and on other lands (not enclosed) and, in like manner, to fish in all boatable and other waters, not private property, under proper regulations, to be hereafter made and provided by the General Assembly." (109) Some critics may argue that because the right to keep and bear arms is not explicit in the federal constitution or in the state constitutional arms provisions that there is no right to keep and bear arms for hunting. Yet, the Framers believed that the right to keep and bear arms, enshrined in the Bill of Rights, protected a right to keep and bear arms for the lawful purpose of hunting game.

C. THE FRAMERS' LOGIC: THE SECOND AMENDMENT RIGHT PROTECTS A RIGHT TO KEEP AND BEAR ARMS FOR THE PURPOSE OF KILLING GAME

The Framers of the Second Amendment intended to protect a right to have and use arms for the purpose of hunting. State conventions requested an arms provision to the Constitution as a condition for their ratification of the Constitution, with one state explicitly requesting a right to keep and bear arms for hunting. In addition, some Second Amendment Framers thought that the newly ratified Second Amendment protected a right to keep and bear arms for hunting. Although the opinions of the Framers differed about the need for a Bill of Rights, they all agreed on a right to keep and bear arms for self-defense and hunting.

1. State Constitutional Conventions

During the state constitutional conventions, some states requested a Bill of Rights, which included the right to bear arms. (110) The delegates attempted to eliminate the possibility that game laws, used effectively in England to disarm the population under the guise of prohibiting the use of arms for hunting, would disarm the general American population. Additionally, the Pennsylvania Minority Report, an influential request for the Bill of Rights, sought to protect the right to have arms for hunting and to prevent disarmament of the general population. (111)

2. The Framers ' View of the Second Amendment For Hunting

David T. Hardy, in his Origins and Development of the Second Amendment, claimed that "no founder of our own nation would have claimed fewer rights than those allowed an Englishman of a century before." (112) Certainly, with a difference in gun culture, particularly with regard to hunting, American Second Amendment rights were not narrower than their English counterpart. (113) Preceding the Revolutionary War, even before the ratification of the Constitution, St. George Tucker, emphatically believed the Second Amendment protected more liberty than its English counterpart. (114) Second Amendment Framers thought the same as well. (115) Some scholars argue that the Second Amendment does not protect a right to keep and bear arms for the purpose of hunting or self-defense because the Framers would have expressly said so in the text. (116) The Heller Court, as explained below, clearly rejected such an argument. (117)

A few examples from the time will help illustrate the point. Alexander White, a prominent Virginia lawyer and politician, noted that "[t]here are other things so clearly out of the power of Congress, that the bare recital of them is sufficient, I mean the 'rights of conscience, or religious liberty--the rights of bearing arms for defence, or for killing game--the liberty of fowling, hunting and fishing ...,'" (118) White was responding to the writers of the Pennsylvania Minority Report and their desire to include certain inalienable rights into the Constitution. According to White, Congress could never restrain the right to bear arms for killing game. Notably, the passage shows that it would not have been out of place to enshrine a right to keep and bear arms for hunting in the federal Constitution. (119)

Probably the most interesting example is that of Samuel Nasson, a delegate of Massachusetts, writing to Representative George Thatcher. When writing to Thatcher, Nasson said:

   I find that Amendments are once again on the Carpet.... A Bill of
   Rights well secured that we the people may know how far we may
   Proceed in Every Department. Then there will be no Dispute
   Between the people and rulers in that may be secured the right to
   keep arms for Common and Extraordinary Occasions such as to
   secure ourselves against the wild Beast and also to amuse us by
   fowling and for our Defence against a Common Enemy. You know
   to learn the Use of arms is all that can Save us from a foreign foe
   that may attempt to subdue as, for if we keep up the Use of arms
   and become well acquainted with them, we Shall always be able to
   look them in the face that arise up against us. (120)


Nasson, when explaining the Second Amendment to Thatcher, understood that it secured a right to keep and bear arms for "Common and Extraordinary Occasions," including for hunting and fowling.

D. POST-RATIFICATION HISTORY: THE AMENDMENT UNDERSTOOD AS A PROTECTION ON HUNTING WITH ARMS

The post-ratification history of the Second Amendment illustrates how the Amendment was interpreted and understood shortly after the ratification of the Bill of Rights. As Heller explained, "the examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification ... is a critical tool of constitutional interpretation." (121) Particularly, State Second Amendment analogues, early legal commentaries, and cases provide critical legal insight into the meaning of the Second Amendment.

1. Post-Ratification State Second Amendment Analogues

From 1792 to 1820, "nine States adopted Second Amendment analogues." (122) One year after the ratification of the Second Amendment, the Kentucky Constitution of 1792 and other states provided that citizens had the right to bear arms for defense of themselves and the state. (123) The Mississippi Constitution of 1817 and two other state analogues provided that a citizen has the right to bear arms for defense of himself and the state. (124) The Tennessee and Maine constitutions provided that citizens have the "right to bear arms for common defense." (125) None of these rights, however, conveyed a right to keep and bear arms for hunting. As noted above, all of the state Second Amendment analogues were qualified by a purpose qualifying phrase, such as "for defense of himself and the state," while the Second Amendment did not contain a purpose qualifying phrase. (126)

2. Commentaries: St. George Tucker

St. George Tucker's Commentaries on Blackstone and the United States Constitution was the pre-eminent legal book of its time. (127) In addition to explaining the Constitution, Tucker discussed each Amendment and its purpose. On the Second Amendment right to keep and bear arms, Tucker noted:

   [T]he right of the people to keep and bear arms is, under any
   colour or pretext whatsoever, prohibited, liberty, if not already
   annihilated, is on the brink of destruction. In England, people
   have been disarmed generally, under the specious pretext of
   preserving the game: a never failing lure to bring over the landed
   aristocracy to support any measure, under that mask, though
   calculated for very different purposes. True it is, their bill of
   rights seems at first view to counteract this policy: but the right
   of bearing arms is confined to protestants, and the words suitable
   to their condition and degree, have been interpreted to authorise
   the prohibition of keeping a gun or other engine for the
   destruction of game, to any farmer, or inferior tradesman, or other
   person not qualified to kill game. So that not one man in five
   hundred can keep a gun in his house without being subject to a
   penalty. (128)


In Tucker's view, the Second Amendment right had a broader scope than its English counterpart. The Second Amendment did not limit its right to an elite few or its scope to a certain condition or degree. Rather, the Second Amendment is "without any qualification as to [the weapon's] condition or degree, as is the case in the British government." (129) Tucker saw the Second Amendment as protecting this right of the farmer, tradesman, or any other not qualified person to keep arms for the purpose of killing game--a right infringed in England. (130)

As Blackstone noted and Tucker re-affirmed, the forest laws, or the laws for the preservation of game, are easily disguised as tools to disarm the general population. In England, disarming the general population was permissible, according to Tucker. (131) As allowed by law, "[w]hoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England." (132) Tucker juxtaposed this English right with the American right, noting that the "congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state ... nor will the constitution permit any prohibition of arms to the people ...," (133) Tucker suggested that a prohibition of arms for hunting is prohibited by the Second Amendment right. (134)

He emphatically concluded:

   In the construction of these game laws it seems to be held, that no
   person who is not qualified according to law to kill game, hath any
   right to keep a gun in his house.... In America we may reasonably
   hope that the people will never cease to regard the right of
   keeping and bearing arms as the surest pledge of their liberty.
   (135)


The Second Amendment right to keep and bear arms, as Tucker noted, protects a right to keep and bear arms for the purpose of killing game. Its English predecessor effectively prohibited keeping a gun for killing game, but the American right was a broader right, which prohibited the government from disarming its citizens under the disguise of the preservation of game. (136) Thus, as evidenced by Tucker's commentary, the Second Amendment protects a right to keep and bear arms for the purpose of hunting. (137)

3. The Right to Hunt Secured by the Second Amendment in Case Law

Until McDonald v. City of Chicago, (138) the prevailing view of early state courts was that the Bill of Rights, including the Second Amendment, only restricted the federal government. (139) Therefore, nearly all state courts never reached or addressed whether the Second Amendment protected a right to keep and bear arms un-infringeable by the state. Early courts held, however, that an individual has a natural right to hunt on unenclosed lands, and one such court tied this natural right to the Second Amendment right to keep and bear arms.

In McConico v. Singleton (140) the South Carolina Supreme Court in 1818 addressed the natural right to hunt within a case for trespass. In that case, one party argued that there was no right to hunt on unenclosed lands. The court noted that the right to hunt on unenclosed lands was an undisputed, universally exercised right from the beginning of the country "up to the present time; and the time has been, when, in all probability, obedient as our ancestors were to the laws of the country, a civil war would have been the consequence of an attempt, even by the legislature, to enforce a restraint on this privilege." (141) After establishing the long-held natural right to hunt, the court tied it to the Second Amendment and explained that:

   Large standing armies are, perhaps, wisely considered as dangerous
   to our free institutions; the militia, therefore, necessarily
   constitutes our greatest security against aggression; our forest is
   the great field in which, in the pursuit of game, they learn the
   dexterous use and consequent certainty of firearms, the great and
   decided advantages of which have been seen and felt on too many
   occasions to be forgotten, or to require a recurrence to. (142)


As the court noted, the Second Amendment, protects a right to keep and bear arms for militia service, and by implication, also protects a right to keep and bear arms for pursuit of game as means of proficiency in the arms for militia service. (143) In other words, the Second Amendment included a right to keep and bear arms for the natural right of hunting game.

IV. CONTEMPORARY SECOND AMENDMENT JURISPRUDENCE

We described the right protected by the Second Amendment as '"bearing arms for a lawful purpose.'" (144) District of Columbia v. Heller

Undoubtedly, Heller and McDonald transformed Second Amendment jurisprudence. In both cases, the Court reviewed the text and history of the Second Amendment right to determine its rights and applications. The Court also drew some imputable conclusions about the Second Amendment and its protections based on the text and history. These conclusions have implications on the Second Amendment right, including whether the Second Amendment protects a right to keep and bear arms for the purpose of hunting.

In District of Columbia v. Heller, the Supreme Court performed its first in-depth, although not "an exhaustive historical analysis ... of the full scope of the Second Amendment ...," (145) The Court held that a District of Columbia statute, which banned the possession of operable handguns in the home, infringed upon the right to keep and bear arms, because the Second Amendment protects an individual right, unconnected with the militia, to bear arms for lawful purposes, such as self-defense. (146) The Court reached this conclusion by reviewing the Second Amendment's text and history. (147)

In McDonald v. City of Chicago, the Court held that the Second Amendment applies to the states. (148) Writing for a plurality of the Court, Justice Alito concluded that the Second Amendment right to keep and bear arms is a fundamental right deeply rooted in the traditions of our country. (149) The plurality concluded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment. (150)

A. THE RIGHT TO KEEP AND BEAR ARMS FOR THE LAWFUL PURPOSE OF SELF-DEFENSE

In Heller, the Court noted that the Bill of Rights, including the Second Amendment, secures fundamental rights. The Heller Court explained that "the Bill of Rights codified venerable, widely understood liberties," (151) and "was written to be understood by the voters." (152) With this in mind, the Court performed an in-depth analysis of the history of the text to determine the Second Amendment's meaning. (153) In doing so, the Court relied on various founding era sources, authorities, and Framers who discussed the Second Amendment for the purpose of illuminating its meaning. (154) Before it discussed those sources, the Court started with the text of the Amendment itself. (155)

1. Text of the Amendment

First, the Court noted that the Second Amendment is naturally divided into two parts: a prefatory clause (156) and an operative clause. (157) The prefatory clause, the Court explained, "does not limit the [operative clause] grammatically, but rather announces a purpose." (158) In other words, the prefatory clause announces one purpose, (159) among other possible purposes, for which an individual has the right to keep and bear arms. (160)

After discussing the function of the prefatory clause, the Heller Court moved its discussion to the operative clause. (161) For this, the Court used eighteenth century dictionaries to uncover the meanings of the words and phrases contained in the clause: "the right of the people to keep and bear Arms, shall not be infringed." (162) The Court addressed the meaning of "arms." (163) According to the Court, "[t]he 18th-century meaning [of 'arms'] is no different from the meaning today"--it means weapons. (164) Therefore, the Second Amendment protects a right to keep and bear weapons.

Next, the Court defined "to keep" with its object "arms." (165) At the time of the founding and the ratification of the Second Amendment, "to keep," the Court noted, meant "to hold" and "to retain in one's power or possession." (166) The Court explained that "the most natural reading of 'keep Arms' in the Second Amendment is to 'have weapons.'" (167) Therefore, the Second Amendment protects a right to have and bear weapons.

Then, the Court addressed the meaning of "to bear arms." The phrase meant to "carry" arms. (168) The Court rejected the District's arguments that "to bear arms" was an idiomatic expression only associated with militia use and found that "[a]t the time of the founding, as now, to 'bear' meant to 'carry[,]'" (169) and to "bear arms was unambiguously used to refer to the carrying of weapons outside of an organized militia." (170) Therefore, the Second Amendment protects a right to have and carry weapons.

Lastly, on the Second Amendment's operative clause, the Court noted that the clause is unmodified. (171) The Court drew a parallel to other clauses like the Second Amendment. At the time of the founding, state Second Amendment analogues contained what the Court called "purposive qualifying phrases" or a "modifying phrase" for example, "for common defense," "for defense of self and state," and "for the purpose of killing game." (172) Linguistically, the Second Amendment protects a right to have and carry arms without any qualification. (173) In other words, the right "to keep and bear arms" is not limited by any specific purposive qualifying phrase or modifying phrase, like the phrases of the four state Second Amendment analogues. The Court noted, however, because the Second Amendment protects "the carrying of arms, a modifier can limit the purpose of the carriage." (174) Ultimately, the Court held that the Second Amendment, because of its historical background, implicitly protects the right to carry arms "for self-defense." (175) This point is critical. The Amendment is not limited by the prefatory clause and it is not limited by a "purposive qualifying phrase." So, then how are we to interpret the Amendment?

Because, as written, there is no express limitation on the right in terms of its purpose for carriage, the Court looked to the history of the Amendment to determine purposes for which a citizen has the right to keep and bear arms. (176) In other words, the purposes for which a citizen has the right to have and carry weapons are determined based on the common lawful purposes for carrying weapons. (177) To discern the lawful purposes, the Heller and McDonald Courts examined the pre-ratification to early post-ratification history of the Second Amendment. Based on the Amendment's text and history, and limited by the facts of the case, the Court read the operative clause as protecting the Second Amendment's core right to bear arms for the purpose of self-defense. (178)

But, does the inquiry end there? Is this enough evidence to declare emphatically that the Second Amendment protects a right to keep and bear arms for the purpose of killing game? At this time, Second Amendment jurisprudence is not significantly developed to easily reach that conclusion. It is possible, based on the text alone, to conclude that the Second Amendment right to keep and bear arms protects a right to bear arms for hunting. At the least, the text does not end the debate. An evaluation of the history of the Amendment's right will help determine whether the right protects a right to carry arms for the lawful purpose of hunting.

2. History of the Amendment: A Natural Right to Hunt

The Heller Court turned to the historical background of the Second Amendment, because the Amendment codified a pre-existing natural right. (179) The Heller and McDonald Courts reviewed English law before the American Revolution. (180) The Second Amendment's predecessor, both Courts determined, was an ancient right and liberty declared in the English Bill of Rights of 1689. (181) The McDonald Court also reviewed the historical records of the Second and Fourteenth Amendment. (182) The 1689 English right to keep and bear arms expressly codified and secured an inherent right to armed self-defense. (183)

In explaining the 1689 English right, the Court noted that the preeminent English jurist, William Blackstone, declared the right protected a fundamental right of the Englishman to armed self-defense. (184) By the 1760s, American colonists, who studied Blackstone, used his comments on the 1689 English right to protest against disarmament by King George III as a violation of their natural rights secured by the English Bill of Rights. (185) Ultimately, the English Bill of Rights influenced the American Bill of Rights so much so that "[b]y the time of the founding, the right to have arms had become fundamental for English subjects." (186) Both Heller and McDonald relied on Blackstone's exposition on the English right to bear arms to elucidate the Amendment's meaning. (187)

3. Review of Early Statutes, Constitutions, & Commentaries: A Public Understanding at the Time of the Revolution

After discussing the history prior to the American Revolution, the Heller Court turned to the history during the Revolution, when colonists were disarmed. (188) The Heller Court next reviewed state Second Amendment analogues adopted by four states before the Congress ratified the Second Amendment. (189)

After review of the history of the Second Amendment immediately before its ratification, the Court reviewed post-ratification commentaries and cases. (190) The Heller and McDonald Courts analyzed various sources from the Revolutionary period, including newspaper articles and writings of influential leaders, such as Blackstone's Commentaries by St. George Tucker, (191) and state Second Amendment analogues. (192) After discussing a variety of post-war sources, most importantly the ratification debates (on the passage the United States Constitution), (193) the McDonald Court noted the popular calls for the enshrinement of certain natural rights against the government. (194) These rights were secured by the 1689 English Bill of Rights and included the right to keep and bear arms. (195) After rejecting arguments that the Second Amendment was only valued as a right to protect the militia, (196) the McDonald Court reaffirmed Heller's position that the prefatory clause was not the only purpose for which the Second Amendment was ratified. (197)

Then, after extensive review of the various authorities, commentaries, and case law, the Supreme Court concluded that the Second Amendment protects a right to keep and bear arms for lawful purposes, most notably the core lawful purpose of self-defense. (198) Thus, the Court stmck down the District's ban on operable guns in the home because it violated the Second Amendment's right to keep and bear arms for self-defense. (199) The Court's vague reference to the Second Amendment protecting a right to keep and bear arms for hunting is not binding. (200)

Third, the McDonald Court analyzed the history of the Fourteenth Amendment, including its implications on the Second Amendment right. (201) Looking to its ratification debate, the Court stated that the Fourteenth Amendment, and its predecessor the Civil Rights Act of 1866, (202) protected the right to keep and bear arms. (203) The Court discussed various Fourteenth Amendment Framers and their understanding that the Fourteenth Amendment protected the right to keep and bear arms for armed self-defense. (204) The Fourteenth Amendment, the Court explained, "confirms that the right to keep and bear arms was considered fundamental." (205) The Court concluded, based on the above history, (206) that the Second Amendment right to keep and bear arms is an ancient and inherent right deeply rooted in the history and tradition of our country and therefore, it applies to the states. (207)

In its above opinions, the Supreme Court of the United States suggested that the Second Amendment protects a right to keep and bear arms for the purpose of hunting. Heller noted that founding-era Americans "most undoubtedly thought [the Second Amendment] even more important for self-defense and hunting" (208) and that "it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes...." (209) Although McDonald explained that the Second Amendment protects a right to bear arms for lawful purposes, the Court did not specifically mention hunting (210) McDonald noted, however, that "the right of bearing arms for a lawful purpose 'is not a right granted by the Constitution' and is not 'in any manner dependent upon that instrument for its existence.'" (211) Certainly these broad comments do not reject or secure a Second Amendment right for the purpose of hunting. (212) Although the Supreme Court has not squarely addressed the issue of this Article, at least one federal district court determined that the Second Amendment right does not protect a right to keep and bear arms for hunting. (213)

B. A RIGHT TO KEEP AND BEAR ARMS FOR HUNTING

In Hunters United for Sunday Hunting v. Pennsylvania Game Commission, (214) the plaintiffs, a group of hunters united for Sunday hunting, filed a lawsuit against the Pennsylvania Game Commission alleging, among other things, that the Pennsylvania Game and Wildlife Code, which states that it is "unlawful for any person to hunt for any lurbearer or game on Sunday," (215) violated their Second Amendment right to keep and bear arms for the purpose of hunting game. (216) The defendant moved to dismiss the complaint for lack of subject-matter jurisdiction and for failure to state a claim upon which relief may be granted. (217) In relation to the Second Amendment claims, the defendant argued that the Second Amendment right does not include a right to keep and bear arms for hunting. (218) The plaintiffs however, claimed that Supreme Court precedent in Heller extended the Second Amendment right for the purpose of hunting game. (219)

The United States District Court for the Middle District of Pennsylvania relied on the Third Circuit's Second Amendment analytical approach to tackle the challenged law. (220) This Circuit interpreted Heller as providing a two-step approach to Second Amendment challenges. (221) Following precedent, the court asked whether the challenged law burdens conduct falling within the Second Amendment right. (222) If the challenged law burdened the Second Amendment, then the court would apply intermediate scrutiny. (223)

The court only reached the first-step in its analysis of the challenged law. The court found that the Pennsylvania Game and Wildlife Code, which prohibited Sunday hunting, did not burden conduct within the scope of the Second Amendment right. (224) In finding so, the court rebuffed the plaintiffs' expansive view of Heller and McDonald and noted an "oblique reference to hunting" by the Heller Court "d[id] not create a nexus between the Second Amendment and a right to recreational hunting." (225) Moreover, the court stated that plaintiffs misunderstood Heller, because the Supreme Court "actually tie[d] the codification of the Second Amendment to the populace's fear that the federal government would destroy the citizen's militia by taking away their arms, not that the federal government would regulate recreational hunting." (226) Thus, the court found that the prohibition on Sunday hunting did not burden conduct protected by the Second Amendment right. (227) Accordingly, the court concluded that the Second Amendment does not protect a recreational right to keep and bear arms for hunting game. (228)

The court did not perform any extensive historical analysis or evaluate the historical background of the Second Amendment, because of the Circuit's precedent. (229) Rather, the court reviewed some broad historical conclusions of Heller and determined that the Second Amendment was codified to secure the citizens' militia. (230) Thus, the court concluded that the purpose for codification did not contemplate recreational hunting. (231) Although the court was correct to point out that the right was most likely codified to secure the militia against federal control, the district court ignored Heller's distinction between the purpose for codification and the purpose of the right. (232) Heller made clear that the Second Amendment's purpose for codification, i.e., to preserve the militia, was not the only purpose of the right to keep and bear arms. (233) Instead, the Amendment codified a pre-existing right to keep and bear arms for lawful purposes, such as self-defense. (234)

1. History Modifies the Purpose of Carriage: For the Purpose of Hunting

Unlike Heller, Hunters United focused only on the expressed purpose in the Second Amendment. That court ignored Heller's findings surrounding the syntax and words of the Second Amendment. Based on the Hunters United court's reasoning, the Second Amendment would only protect its express purpose of bearing arms in the militia and not its core purpose, i.e. self-defense. The text of the Second Amendment does not expressly limit the purpose of carriage to self-defense. In fact, the text lacks any mention of "self-defense." Rather, the Heller Court read into the text the purpose of carrying arms for self-defense. To state this in terms of Heller, the Second Amendment is implicitly limited by the purposive qualifying phrase "for self-defense" because of the right's historical background and its uniqueness as a natural right. On its face, the Second Amendment--as well as the phrase "for the purpose of self-defense"--does not contain a purposive qualifying phrase "for the purpose of hunting." (235) The Hunters United court should not have dismissed the possibility that the Second Amendment right to keep and bear arms includes the right to keep and bear arms for the purpose of hunting, simply because the text of the Amendment does not mention hunting. The court should have examined the text in conjunction with the history behind the Amendment, before coming to such a conclusion. Thus, the argument that the operative clause does not mention the purpose of hunting fails, because the Amendment never mentioned self-defense either.

If the Hunters United court reviewed the historical records, it would have found that the historical background of the Second Amendment confirms that the Second Amendment protects a right to keep and bear arms for the purpose of killing game. As noted above, the American right's scope is much broader than its English counterpart. (236) In England, before the Norman Conquest, the people had a natural right to keep arms for the purpose of hunting game. After the Conquest, the king took away this natural right by establishing the forest and game laws. Ultimately, the Game Act of 1671 led to tougher restrictions on the right to keep and bear arms for hunting. In reaction, Parliament passed the English Bill of Rights of 1689. The right to keep and bear arms protected a qualified right, a right only bestowed on some of the population--mostly aristocrats.

As Tucker explained, this English right was much narrower in scope than the American right. The Second Amendment right protects the right to keep and bear arms, over any forest or preservation laws, a right in which one could not be disarmed in favor of such forest laws. As in England, however, although subject to license of the King, the American colonies and states allowed individuals to hunt on unenclosed lands. Therefore, because no forest or game law in America could disarm the general population by virtue of the Second Amendment right, Americans have a right to keep and bear arms for the purpose of killing game. Although this Second Amendment right for the purpose of hunting is not the core of the right, because, as Heller noted, self-defense is its core purpose, the right to keep and bear arms for hunting is nonetheless a right protected by the Amendment. The Supreme Court, in part, explained the Second Amendment right and what the Court said about the Second Amendment confirms that the right to keep and bear arms includes a right to bear arms for hunting.

Of course, the skeptic will argue that with all the colonial and early state statutes restricting hunting, the Second Amendment could never protect a right to keep and bear arms for hunting. True. But this misunderstands the history of the Amendment. The prevailing view at the time of the nation's founding noted that the Bill of Rights only secured rights against the federal government and not the state government. Evidence of this is the Lacey Act of 1900. (237) The Act was the first federal regulation on hunting. The States, of course, at the time of the founding, would have the police power to restrain hunting, unless their state constitution said otherwise. But, once McDonald applied the Second Amendment to the states, the Second Amendment also secured a right against the state government, not merely the federal government.

2. Prima Facie Application: The Right to Keep and Bear Arms for Lawful Purposes Such As Hunting

Some contemporary courts, much like Hunters United, are unwilling to perform an analysis of the history of the Second Amendment right. (238) The inquiry, however, does not end with a historical analysis. The Heller Court also rejected arguments that the Second Amendment right only extends to those weapons in existence at the time of the Amendment's ratification and noted that "[t]he 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." (239)

Heller noted that the Second Amendment applies to all bearable arms. (240) This statement, among many others in Heller and McDonald, shows that the right to bear arms extends to the right to keep and bear arms for any lawful purpose. Among those lawful purposes is for the militia and self-defense. Another lawful purpose as illustrated by the history of the Amendment is hunting. (241)

Indeed, Heller's interpretation of the Second Amendment confirms that the Amendment protects a right to keep and bear arms for hunting. As shown above, (242) the Second Amendment right is not modified by a purposive phrase. Because it is not modified, its purpose and protections are broader in scope than its English counterpart and Second Amendment state analogues. Heller noted the Amendment, long interpreted by the Supreme Court, is a right to lawfully possess firearms and suggested hunting as a lawful purpose. In addition, Heller noted that founding-era Americans "most undoubtedly thought [the Second Amendment] even more important for self-defense and hunting" (243) and that "it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes." (244)

These statements, supported by the history and the text, powerfully suggest a broad reading of the Amendment: a right to keep and bear arms for lawful purposes. Consistent with Heller, McDonald also described the Second Amendment right as a right to bear arms for lawful purposes, but did not specifically mention hunting. (245) McDonald explained that "the right of bearing arms for a lawful purpose 'is not a right granted by the Constitution' and is not 'in any manner dependent upon that instrument for its existence.'" (246) Certainly, given these statements about the Second Amendment, Heller and McDonald point to one conclusion: the Second Amendment protects a right to keep and bear arms for hunting. Therefore, read broadly, the text of the Second Amendment supports a right to bear arms for hunting. (247)

3. The Right to Keep and Bear Arms for the Lawful Purpose of Hunting

The Heller Court found that the Second Amendment implicitly protects a right to have and to carry weapons outside of an organized militia for the purpose of self-defense. (248) The Court arrived at this conclusion, based on the history and text of the Amendment, noting that the Second Amendment protects carrying a gun for lawful purposes--much like its English counterpart, but broader in scope. (249) Beginning with colonial America, at the founding and continuing to the present, one of the lawful purposes for which an individual may carry a gun is for hunting. (250) The historical evidence overwhelmingly confirms that hunting was and is a pastime, a recreation deeply rooted in the American tradition of lawful activity on one's own property and on unenclosed state land. (251) At its most basic level, hunting involves carrying weapons outside of militia service for the lawful purpose of killing game. (252) Thus, the Second Amendment protects a right to keep and bear arms for the lawful purpose of hunting. (253)

The above argument and Supreme Court precedent suggest a penumbral view of the Second Amendment. (254) Presidents Clinton and Obama cloaked their arguments for a right to keep and bear arms for hunting under this penumbra-deeply rooted in tradition-and unmentioned by the Amendment itself, but implicitly guaranteed. Although, the penumbral view of the Second Amendment evades wading through the morass of history unlike Heller and McDonald, this view still fastens "lawful purposes" to a time period. (255) Accordingly, the courts still need to review the history of the Amendment to determine its protections. (256) Otherwise, without reviewing the history of this pre-existing right, a court's interpretation of the Second Amendment would be akin to a movie critic only reviewing the last twenty minutes of a movie and then writing a scathing review of a film he never fully watched. Without a review of the history, courts may tell any story, including one which ignores hunting as a lawful and traditional purpose for carrying weapons. Regardless of the time period, however, hunting was and is a lawful purpose to carry guns. Thus, the Second Amendment protects a right to keep and bear arms for hunting. Furthermore, Heller provides the foundation for another view of Second Amendment jurisprudence. Indeed, the Supreme Court has told a different story.

As bearable arms, the Second Amendment right extends to guns used for hunting. (257) Akhil Reed Amar and David Yassky argued that one cannot bear arms for the purpose of hunting because, properly speaking, no one used "bear" to refer to carrying arms for hunting. (258) But, evidence from the time of the founding suggests that some, in fact, used the phrase "bears arms" in the context of hunting. As referenced above, (259) in a Massachusetts newspaper article, "Scribble Scrabble" wrote, all men have "a right to keep and bear arms for their common defence, to kill game, fowl, &c [sic]." (260) In his discussion on the right to bear arms, Tucker noted that an individual has a right under the Second Amendment to bear arms for the pursuit of game. (261) Moreover, the Heller Court dismissed arguments against the bearing arms for hunting, when it noted that the phrase "bear arms" simply means "to carry" arms. Therefore, an individual may carry arms for hunting.

V. CONCLUSION

In the era of legal positivism, courts have a hard time understanding preexisting fundamental rights. (262) Most rights--nearly all rights--are granted by and are dependent on the Constitution or a statute. In essence, today, fundamental rights do not exist outside of a constitution or a statute. (263) The Supreme Court noted, however, that the Second Amendment is a pre-existing right to keep and bear arms for lawful purposes, (264) not dependent on constitutions or statutes, but rather it is secured by longstanding custom and history. (265) Thus, to determine those lawful purposes, courts must review the Second Amendment's historical background to understand its protections. And, history and tradition tell the story of a Second Amendment right to keep and bear arms for hunting.

In sum, the Second Amendment, as interpreted by Heller and affirmed in McDonald, protects a right to keep and bear arms for lawful purposes, including hunting. The text of the Amendment supports this conclusion because the right, as written, is not modified or qualified by a purposive phrase. Furthermore, as evidence of the Amendment protecting a right to bear arms for hunting, the Second Amendment right, based on its history, is greater in scope than its English predecessor. In England, the forest and game laws disarmed the general populous, while in America, those laws were not enforced and the populations generally had arms for the purpose of hunting. Moreover, the American right to keep and bear arms at the time of the passage of the Bill of Rights and shortly thereafter was understood as protecting a right to keep and bear arms for the treasured and important activity of killing game.

As seen by Tucker's expose on the United States Constitution, the unmodified Second Amendment right evinces a right of the commoner to keep and bear arms for hunting. In addition, with the game and forest laws in mind, the Second Amendment prohibits the government from disarming its citizens under the guise of the preservation of game and forest laws. By implication, then, the Amendment protects the ancillary right to keep and bear arms for hunting. History confirms this conclusion. Heller affirms it, as well. The Second Amendment right extends to all bearable arms and the use of such arms for lawful hunting.

Simply put, the Second Amendment is not only about self-defense. It is about protecting the right to keep and bear arms. The right to keep and bear arms for hunting, for self-defense, and for other lawful purposes, according to its history. Courts must start "hunting" for this proper understanding of the Second Amendment.

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(2) President Barack H. Obama, Remarks by the President at the National Urban League Convention (July 25, 2012) (transcript available at http://www.whitehouse.gov/the-press office/2012/07/25/remarks-president-national-urban-league-convention).

(3.) Explaining his position, then presidential candidate Obama stated: "As president, I will uphold the constitutional rights of law-abiding gun-owners, hunters and sportsmen." Pete Williams, Alex Johnson, & Brian Mooar, Gun Ruling to Spark Legal Battles Nationwide, NBC NEWS (June 26, 2008, 2:29 PM), http://www.nbcnews.com/id/25390404/ns/us_news-crime_and_courts/t/gun-ruling-sparklegal-battles- nationwide/#.VLXHlivF_sE; see GLENN H. UTTER & ROBERT J. SPITZER, ENCYCLOPEDIA OF GUN CONTROL and GUN Rights 255-56 (2d ed. 2011) (noting Obama's stance on the Second Amendment, gun control, and the rights of hunters and sportsmen).

(4.) President William J. Clinton, Address Before a Joint Session of the Congress on the State of the Union 80 (Jan. 24, 1995), (transcript available at http://www.gpo.gov/fdsys/pkg/PPP-1995bookl/pdf/PPP-1995-bookl- doc-pg75.pdf).

(5.) 155 CONG. Rec. S7574-05 (daily ed. July 15, 2009) (statement of Cass Sunstein). Cass Sunstein, Dershowitz's successor at Harvard Law said, during his confirmation hearing for Administrator of the White House, Office of Information and Regulatory Affairs, that he believes the Second Amendment creates an individual right to keep and bear arms for hunting. Id. (affirming that Obama's political allies agree with him as well); see Sunlen Miller, Biden Confirms Support for Second Amendment, Says He Owns Two Shotguns, ABC NEWS, Jan. 17, 2013, http://abcnews.go.com/blogs/politics/2013/01/biden-confirms-support-for-second-amendment-says-heowns-two-shotguns/. In an interview with Piers Morgan about gun control, famed constitutional law scholar Alan Dershowitz said: "We have to fulfill what the real meaning of the Second Amendment is: reasonable access to guns for self-protection and for hunting. And there's no room in America for these semiautomatic, automatic and other kinds of weapons that are simply designed to cause mass havoc [.]" Josh Levs & Ben Brumfield, Social Media Abuzz over Piers Morgan vs. Alex Jones, CNN, Jan. 9, 2013, 9:51AM, http://www.cnn.com/2013/01/07/us/piers-morgan-guns-debate/. State governors also made the same claim. In his 2013 State of the State Address, New York's Governor Andrew Cuomo called for greater gun regulations, noting that his proposed regulations would not interfere with the rights of hunters. See Governor Andrew Cuomo, 2013 State of the State Address (Jan. 9, 2013) (transcript available at http://www.govemor.ny.gov/news/transcript-govemor-andrew-m-cuomos-2013-state-stateaddress) ("We respect hunters and sportsmen. This is not taking away people's guns. I own a gun. I own a Remington shotgun. I've hunted, I've shot.... Its [sic] simple; no one hunts with an assault rifle. No one needs ten bullets to kill a deer."). Oddly enough, some conservatives resist this belief. With much rhetoric, some conservative thinkers argue that a belief that the Second Amendment protects a right to keep and bear arms for hunting misses the right's true purpose or is a political scheme by the left to justify their gun control agenda while advocating for Second Amendment rights. See, e.g., Neil Snyder, The Second Amendment is Not about Hunting, AMERICAN THINKER (Jan. 27, 2013), http://www.americanthinker.com/blog/2013/01/the_second_amendment_is_not_about_hunting_l.html; see also Thomas M. Moncure, Jr., The Second Amendment Ain 7 About Hunting, 34 HOW. L.J. 589, 597 (1991) (arguing that the Second Amendment is not about hunting, as that article's title suggests). At the time of publication, Mr. Moncure was assistant general counsel at the National Rifle Association.

(6.) U.S. CONST, amend. II.

(7.) District of Columbia v. Heller, 554 U.S. 570, 579-81 (2008). The Court determined that "a well regulated militia" did not limit 'the right of the people to keep and bear Arms;" that phrase, according to the Court, is one purpose for which an individual has the right to keep and bear arms. Id. (quoting U.S. CONST, amend. II).

(8.) Id. at 635.

(9.) Justice Antonin Scalia, A Theory of Constitution Interpretation, Remarks at The Catholic University of America, (Oct. 18, 1996) (transcript available at http://web.archive.Org/web/19980119172058/www.courttv.com/library/rights/scalia.html). Justice Scalia stated:

   The theory of originalism treats a constitution like a statute, and
   gives it the meaning that its words were understood to bear at the
   time they were promulgated. You will sometimes hear it described as
   the theory of original intent. You will never hear me refer to
   original intent, because as I say I am first of all a textualist,
   and secondly an originalist. If you are a textualist, you don't
   care about the intent, and I don't care if the framers of the
   Constitution had some secret meaning in mind when they adopted its
   words. I take the words as they were promulgated to the people of
   the United States, and what is the fairly understood meaning of
   those words.


(10.) Heller, 554 U.S. at 642-44, 666-68 (Stevens, J., dissenting).

(11.) Id. at 592 (majority opinion) (stating that the Second Amendment, like the First and Fourth Amendments, codified pre-existing rights); id. at 592-93 (noting that the Second Amendment right "shall not be infringed" implies that the right is not a right granted by the Constitution, but pre-exists as an inherent right); see also Kenneth Pennington, The Spirit of Legal History, 64 U. CHI. L. REV. 1097, 1113-15 (1997) (explaining the "concept of transcendent rights, norms, and principles is not alien to American law and society").

(12.) Heller, 554 U.S. at 598-99.

(13.) Compare id. at 709-10 (Breyer, J., dissenting), with Heller, 554 U.S. at 599 ("The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.") (emphasis added). See also, Heller, 554 U.S. at 599 (majority opinion) (stating that Americans valued the ancient right to keep and bear arms for hunting). In his Heller dissent, Justice Stevens broadly framed the Questioned Presented as "[w]hether [the Second Amendment] also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense." Heller, 554 U.S. at 636-37 (Stevens, J., dissenting). Justice Breyer, however, saw it differently and dismissed the majority's suggestion "that the right to keep and bear Arms might encompass an interest in hunting" and in marksmanship. Heller, 554 U.S. at 709-10 (Breyer J., dissenting) (internal quotations omitted); see also David B. Kopel et. al., Knives and the Second Amendment, 47 U. MICH. J.L. REFORM 167, 194 (2013) ("As Heller points out, those in the Founding Era valued firearms in part because they were useful 'for self-defense and hunting.' Thus, knives that are useful for self-defense or hunting are also within the scope of the Second Amendment.").

(14.) ALA. CONST, art. I, [section] 36.02 ("The people have a right to hunt, fish, and harvest wildlife, including by the use of traditional methods...."); Ark. CONST, amend. LXXXVIII, [section] 1(a)(2) ("The right to hunt, fish, trap, and harvest wildlife shall be subject only to regulations that promote sound wildlife conservation and management and are consistent with Amendment 35 of the Arkansas Constitution."); IDAHO CONST, art. I, [section] 23 ("The rights to hunt, fish and trap, including by the use of traditional methods, are a valued part of the heritage of the State of Idaho and shall forever be preserved for the people and managed through the laws, rules and proclamations that preserve the future of hunting, fishing and trapping."); GA. CONST, art. I, [section] 1, [paragraph] XXVIII ("The tradition of fishing and hunting and the taking of fish and wildlife shall be preserved for the people and shall be managed by law and regulation for the public good."); KY. CONST. [section] 255A ("The citizens of Kentucky have the personal right to hunt, fish, and harvest wildlife, using traditional methods, subject only to statutes enacted by the Legislature, and to administrative regulations...."); LA. CONST, art. I, [section] 27 ("The freedom to hunt, fish, and trap wildlife, including all aquatic life, traditionally taken by hunters, trappers and anglers, is a valued natural heritage that shall be forever preserved for the people."); Minn. CONST, art. XIII, [section] 12 ("Hunting and fishing and the taking of game and fish are a valued part of our heritage that shall be forever preserved for the people and shall be managed by law and regulation for the public good."); MONT. Const, art. IX, [section] 7 ("The opportunity to harvest wild fish and wild game animals is a heritage that shall forever be preserved to the individual citizens of the state and does not create a right to trespass on private property or diminution of other private rights."); NEB. CONST, art. I, [section] 1 ("All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof."); N.D. CONST, art. I, [section] 1 ("All individuals are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; pursuing and obtaining safety and happiness; and to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational, and other lawful purposes, which shall not be infringed); OKLA. Const, art. II, [section] 36 ("All citizens of this state shall have a right to hunt, fish, trap, and harvest game and fish, subject only to reasonable regulation as prescribed by the Legislature and the Wildlife Conservation Commission."); S.C. CONST, art. I, [section] 25 ("The citizens of this State have the right to hunt, fish, and harvest wildlife traditionally pursued, subject to laws and regulations promoting sound wildlife conservation and management as prescribed by the General Assembly."); Tenn. Const, art. XI, [section] 13 ("The citizens of this state shall have the personal right to hunt and fish, subject to reasonable regulations and restrictions prescribed by law."); VT. CONST, ch. II, [section] 67 ('The inhabitants of this State shall have liberty in seasonable times, to hunt and fowl on the lands they hold, and on other lands not inclosed, and in like manner to fish in all boatable and other waters (not private property) under proper regulations, to be made and provided by the General Assembly."); VA. CONST, art. XI, [section] 4 ("The people have a right to hunt, fish, and harvest game, subject to such regulations and restrictions as the General Assembly may prescribe by general law."); WIS. CONST, art. I, [section] 25 ("The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."); WIS. CONST, art. I, [section] 26 ("The people have the right to fish, hunt, trap, and take game subject only to reasonable restrictions as prescribed by law."); WYO. CONST, art. I, [section] 39 ("The opportunity to fish, hunt and trap wildlife is a heritage that shall forever be preserved to the individual citizens of the state, subject to regulation as prescribed by law, and does not create a right to trespass on private property, diminish other private rights or alter the duty of the state to manage wildlife."). See also Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, 11 TEX. REV. L. & POL. 191, 208-17 (2006) (listing state constitutional rights to keep and bear arms).

(15.) This Article does not analyze or discuss the applicable level of judicial scrutiny for Second Amendment challenges. Scholars and courts have addressed the applicable level of judicial scrutiny for Second Amendment challenges, but at no point will this Article discuss it. See e.g., Drake v. Filko, 724 F.3d 426, 436 (3d Cir. 2013), cert, denied sub nom. Drake v. Jerejian, 134 S. Ct. 2134 (2014); Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013), cert, denied, 134 S. Ct. 422 (2013); United States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010); Kachalsky v. Cacace, 817 F. Supp. 2d 235, 268 (S.D.N.Y. 2011), affd sub nom. Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 96-97 (2d Cir. 2012); Adam Winkler, Scrutinizing the Second Amendment, 105 MTCH. L. REV. 683, 718 (2007). Rather, this Article is only concerned with the question of whether the Second Amendment right protects a right to keep and bear arms for the purpose of hunting.

(16.) See infra Part 1.

(17.) See infra Part II.

(18.) See infra Part III-1V.

(19.) Lewis Carroll, Through the looking Glass (And What Alice found there) 47 (1871).

(20.) District of Columbia v. Heller, 554 U.S. 570, 636-37, 683-85 (Stevens, J., dissenting).

(21.) Id. at 595-96 (majority opinion).

(22.) U.S. CONST, amend. II.

(23.) Id. at 577-79,598.

(24.) Id. at 578.

(25.) Id. at 598-600.

(26.) Id. at 598-602.

(27.) Id. at 599.

(28.) Id. at 599-600.

(29.) Id. at 578 ("[A] prefatory clause does not limit or expand the scope of the operative clause.").

(30.) Id. at 589.

(31.) Id. (using those phrases).

(32.) Id. (using such phrases).

(33.) Id. at 587-90.

(34.) Otherwise, the Court may have concluded that the Second Amendment right is only for the militia.

(35.) Heller, 554 U.S. at 589 (emphasis added) (discussing an unmodified purposive phrase or an open-ended purposive qualifying phrase).

(36.) Id. at 581-82 ("The 18th-century meaning [of 'arms'] is no different from the meaning today."); see also Eileen Kaufman, The Second Amendment: An Analysis of District of Columbia v. Heller, 25 TOURO L. REV. 703, 707 (2009) [hereinafter Kaufman] ("What is the meaning of the word 'arms'? 'Arms' means weapons and not just those designed for military use or in existence in the eighteenth century.").

(37.) Heller, 554 U.S. at 582 (citations omitted).

(38.) Id. at 584 ("[T]o 'bear' meant to 'carry.'") (citations omitted).

(39.) Id. at 600.

(40.) Id. at 584.

(41.) Id. at 592.

(42.) United States v. Cruikshank, 92 U.S. 542, 553, 559 (1875).

(43.) McDonald v. City of Chicago, 561 U.S. 742, 757 (2010) (quoting Cruikshank, 92 U.S. at 553).

(44.) See infra Sec.II.A.1-2.

(45.) See supra Sec. I.A. & accompanying notes.

(46.) Ernest Hemingway, Fathers and Sons, in Winner Take nothing 160 (1933).

(47.) Frasier: Analyzed Kiss (NBC television broadcast May 13, 2003).

(48.) See, e.g., 3 WILLIAM HUGHES, THE GRAND ABRIDGMENT OF THE LAW 2092 (1662)

   Note, It is [s]aid in Cook II Part, in the Cafsje of Monopolies,
   That no man ever made a Park, Cha[sle, or Warren, without the
   King's Licence; for that were quodam modo to appropriate tho[s]e
   things which were ferae Naturae, & nullius in bonis to him[s]elf,
   and to refsltrein them of their naturall Liberty, which he cannot
   do without the Kings Licence: But for Hawking, Hunting, &c. which
   are matters of Pa[s]time and Recreation, there needeth not any
   Licence, but every man may in his own Land u[s]e them without
   re[s]traint to be made if it be not by Parliament.


(alternations in original).

(49.) District of Columbia v. Heller, 554 U.S. 570, 593-94(2008).

(50.) 2 William Blackstone, Commentaries *1-2.

(51.) Id. at * 14.

(52.) Id. at *38-39 (explaining that "every one had a natural right to kill [ferae naturae] as he could...."). As Edward the Confessor said, "sit quilibet homo dingus venatione sua, in sylva, et in agris, sibi propiis, et in domino suo...." Id. at *415. This translates approximately to: Let every man be entitled to hunt in his own forest fields, and on his own estate....

(53.) Id. at *411.

(54.) Id.

(55.) Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 40-43 (1984) [hereinafter Halbrook I] (explaining that in England, the king restrained the natural right to keep and bear arms for hunting and for self-defense from as early as 1485).

(56.) 2 BLACKSTONE, supra note 50, at *38-39. The forest and game laws defined various properties and lands. In distinguishing between these different lands, people obtained different rights. For example, a forest and a chase are "properly the same thing." Id. at *38. A chase, however, is "not enclosed" and therefore differs from a park, which is an enclosed chase. Id. Before the Conquest, everyone had a right to hunt on unenclosed lands, because the ferae naturae were held in common for all individuals equally. But, after the Conquest, in England, this common law distinction between enclosed and unenclosed lands faded away because the king owned all ferae naturae. Therefore, to hunt the wild animals required the grant of the king.

(57.) Id. at *413.

(58.) Id. at *38-39.

(59.) Id. at *411; see also Patrick J. Charles, The Second Amendment in Historiographical Crisis: Why the Supreme Court Must Reevaluate the Embarrassing "Standard Model" Moving Forward, 39 FORDHAM URB. L.J. 1727, 1757 (2012) [hereinafter Charles] ("Blackstone's reference to 'the natural right of resistance and self-preservation' ... is a public allowance (under due restrictions) of a 'natural right'-and that allowance is made for a particular, public purpose: to 'restrain the violence of oppression' from a tyrannical sovereign.").

(60.) 2 Blackstone, supra note 50, at 411; 4 William Blackstone, Commentaries *269-271 (noting the various penalties for the unlawful taking of game). Many laws existed forbidding hunting on another's land, protecting specific species, and requiring hunting in a lawful manner as according to the state.

(61.) The underlying reason for restriction of arms for hunting, as Blackstone claimed, was "[f]or preventing of popular insurrections and resistance to the government, by disarming the bulk of the people: which last is a reason oftener meant, than avowed, by the makers of forest or game laws." 2 Blackstone, supra note 50, at *412; David T. Hardy, Origins and Development of the Second AMENDMENT 38 (1986) [hereinafter HARDY I] (explaining that after the English Bill of Rights, Parliament re-enacted the Game Act and omitted "guns" from the list of prohibited means of hunting).

(62.) See supra Sect.II.A. & accompanying notes.

(63.) Lois G. Schwoerer, To Hold and Bear Arms: The English Perspective, 76 CHI.-KENT L. Rev. 27, 35 (2000) (stating 'Game Laws also restricted gun possession. The earliest Game Laws, starting in the fourteenth century, limited hunting to persons of a certain wealth, because, it was observed later by King James I, hunting was for gentlemen...."); Michael A Bellesiles, Gun Laws in Early America: The Regulation of Firearms Ownership, 1607-1794, 16 LAW & HIST. REV. 567, 567 (1998) (noting that "King James I stated the official position of the English governing elite on gun ownership succinctly. When it was suggested that more of England's subjects should enjoy the right to hunt and own firearms, James responded that 'it is not fit that clowns should have these sports. '").

(64.) Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American RIGHT 77 (1994) [hereinafter MALCOLM I]; Robert Hardaway, The Inconvenient Militia Clause of the Second Amendment: Why the Supreme Court Declines to Resolve the Debate Over the Right to Bear Arms, 16 ST. JOHN'S J. C.R. & ECON. DEV. 41,64 (2002) (discussing that during the reign of James I, from 1604-1609, England passed multiple games laws, which "increased the property requirements for hunting, prohibited the use of certain weapons in hunting, and permitted homes to be searched for the prohibited weapons.").

(65.) See District of Columbia v. Heller, 554 U.S. 570, 592-93 (2008); Adam Winkler, GUNFIGHT: The Battle over the Right to Bear Arms in America 102-105 (2011).

(66.) David T. Hardy, The Second Amendment and the Historiography of the Bill of Rights, 4 J.L. & Pol. 1, 19,41 (1987) [hereinafter Hardy II] ("The 1671 Act added all firearms to the list of contraband, and extended the ban to all persons not owning lands with an annual rental value exceeding 100 pounds sterling.").

(67.) Hardy 1, supra note 61, at 32 ("The Hunting Act [of 1671] now broadly sought to disarm all persons not owning real estate worth 100 pounds annual rental"--fifty times the property requirement for voting); DANIEL J. BOORSTIN, THE AMERICANS: THE COLONIAL EXPERIENCE 261 (1958) (explaining that middle and lower class Englishmen were not accustomed to hunting); JOYCE LEE MALCOLM, GUNS and Violence: The English Experience 52-53, 60-61 (2002) [hereinafter Malcolm II] (noting that the right to hunt before the English Bill of Rights was conditioned on property ownership and firearms were expressly banned from hunting use with the Game Act of 1671).

(68.) Stephen P. Halbrook, The Constitutional Right to Hunt: New Recognition of an Old Liberty in Virginia, 19 Wm. & MARY BILL RTS. J. 197, 199-200 (2010) [hereinafter Halbrook II] ("Historically, the English game laws made hunting a monopoly of those privileged to do so by the Crown, and imposed draconian penalties-sometimes including the death penalty-on commoners for hunting.... By contrast, the American colonists were free to hunt.").

(69.) MALCOLM 1, supra note 64, at 133.

(70.) Id. at 114.

(71.) Heller, 554 U.S. at 592-93 (quoting 1 W. & M., c 2, [section] 7, in 3 Eng. Stat. at Large 441 (1689)); Malcolm 1, supra note 64, at 115.

(72.) Heller, 554 U.S. at 593; Drew A. Lagow, Note, Parker: An Interpretive Shift for the Supreme Court to Adopt, 43 TULSA L. REV. 793, 815-16 (2008) [hereinafter Lagow] ("The common law of

(73.) MALCOLM I, supra note 6464, at 119-20 (noting that this right protected an individual right rather than a collective right to bear arms).

(74.) Id. at 120.

(75.) Id. at 120-21.

(76.) Id.

(77.) See Heller, 554 U.S. at 593.

(78.) Malcolm 1, supra note 64, at 121.

(79.) Keith A Ehrman & Dennis A Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. DAYTON L. Rev. 5, 9 (1989) ("Even the famous English Bill of Rights of 1689 clearly established that the right to have guns could be regulated by the government. "); Akhil Reed Amar, The Second Amendment: A Case Study in Constitutional Interpretation, 2001 UTAH L. Rev. 889, 889 (2001) [hereinafter Amar I] ("We must read the Second Amendment alongside similarly worded provisions of state constitutions, and against the backdrop of earlier English charters of liberty such as the English Bill of Rights of 1689.").

(80.) HALBROOK I, supra note 55, at 53.

(81.) But see CARL BAKAL, THE RIGHT TO BEAR Arms 84-85 (1966) (noting that to bear arms for hunting is deeply rooted in the American tradition).

(82.) These letters are a collection of letters about colonial life shortly before the Revolutionary War. Hector St. JOHN DE CREVEOEUR, Letter III: What is an American, in LETTERS FROM AN AMERICAN FARMER 66-67 (1782), available at http://xroads.virginia.edu/~hyper/crev/contents.html. In one letter, Crevecceur noted:

   But to return to our back settlers. I must tell you, that there is
   something in the proximity of the woods, which is very singular ...
   By living in or near the woods, their actions are regulated by the
   wildness of the neighbourhood. The deer often come to eat their
   grain, the wolves to destroy their sheep, the bears to kill their
   hogs, the foxes to catch their poultry. This surrounding hostility
   immediately puts the gun into their hands; they watch these
   animals, they kill some; and thus by defending their property, they
   soon become professed hunters; this is the progress; once hunters,
   farewell to the plough.


Id.

   After I have done sowing, by way of recreation, I prepare for a
   week's jaunt in the woods, not to hunt either the deer or the
   bears, as my neighbours do, but to catch the more harmless bees ...
   I take with me my dog, as a companion, for he is useless as to this
   game; my gun for no man you know ought to enter the woods without
   one....


Id. at Letter II: On the Situation, Feelings, and Pleasures, of an American Farmer, 35-36.

   Whatever success they may meet with in hunting or fishing, shall
   only be considered as recreation and pastime; I shall thereby
   prevent them from estimating their skill in the chase as an
   important and necessary accomplishment. I mean to say to them: 'You
   shall hunt and fish merely to show your new companions that you are
   not inferior to them in point of sagacity and dexterity.'


Id. at Letter XII: Distresses of a Frontier Man 322-23.

(83.) Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism, 76 CHI.-KENT L. Rev. 103, 154 (2000) ("[T]hat Americans had little use for hunting, it being much more efficient to slaughter your favorite mammal grazing in the neighboring pasture...."); Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. DAVIS L. REV. 309, 341-42 (1998) (arguing that not many colonists owned guns).

(84.) Bellesiles, supra note 6363, at 72-78 (noting various colonial restrictions on possession of guns); Warren Freedman, The Privilege to Keep and Bear Arms: The Second Amendment AND ITS INTERPRETATION 65-67 (1989) (explaining that state police power, as evidenced by eighteenth century hunting laws, restricted a person's ability to hunt); ROBERT J. SPITZER, GUN CONTROL: A Documentary and Reference Guide 66-70 (2009) (discussing eighteenth century hunting restrictions).

(85.) See supra Sections. II.A-B.

(86.) In Connecticut, an Act of 1796 encouraged the keeping of deer in parks or other enclosures, provided for hunting for the specified hunting seasons, and increased the monetary penalties associated with hunting out of season and hunting while trespassing on private property. See 1 ACTS & LAWS OF THE STATE OF Conn. IN America 139^11 (1797); Hardaway, supra note 6464, at 63-64 (noting that laws were passed forbidding hunting). In 1802, Massachusetts regulated the taking of deer to seasonable times "except [when it is] his own tame deer, or deer kept in his park, or on his island." 3 The LAWS OF THE COMMONWEALTH OF MASSACHUSETTS FROM 1780 TO FEBRUARY 28 1807 WITH THE CONSTITUTIONS OF UNITED STATES OF AMERICA AND OF THE COMMONWEALTH 70 (1780-1807) (stating parks and islands are enclosed lands); see id. at 382 (increasing the monetary penalties for unlawful hunting and prohibiting the use of dogs for hunting in certain counties).

(87.) The Laws of Virginia; Being a Supplement to Hening's The Statutes at Large 1700-1750 at 18-19 (1971); see also 3 STATUTES AT LARGE BEING A COLLECTION OF ALL THE LAWS Virginia from the First Session of the Legislature 343 (1823) (discussing an Act in 1705, providing a more detailed list preventing Indians hunting and ranging upon patented lands).

(88.) 13 Journals of the House of Burgesses of Virginia 1773-1776 Including the Records of the Committee of Correspondence 73-131 (John Pendleton Kennedy ed., 1906-1908, H.R. Mcllwaine ed., 1909-1915). In 1774, the Committee moved to repeal the above act. Id. at 121.

(89.) The Acts of Assembly, Now in Force, in the Colony of Virginia: With An Exact Table to the Whole 116 (General Assembly 1769).

(90.) Id. at 116-17 (prohibiting a unique and dangerous method of hunting: fire hunting.); see also id. at 116 (prohibition and penalty for fire hunting, where hunters would start fires to encircle deer for easier hunting).

(91.) Samuel Nevill, The Acts of the General Assembly of Province of New Jersey, From the Time of the Surrender of the Government in the Second Year of the Reign of Queen Anne, to This Present Time, being the Twenty Fifth Year of the Reign of King GEORGE the Second 101, 448-49 (General Assembly 1752) (showing a 1722 Act stated that no person "shall at any Time after the Publication hereof, carry any Gun, or hunt in the Woods or uninclosed [sic] Lands, without Licence or Permission obtained from the Owner ..." and furthering restrictions in regard to trapping); The laws and acts of the General Assembly of His Majesties Province of Nova Caesarea or New Jersey: as they were enacted by the Governour, Council and General Assembly, for the time being, in divers sessions, the first of which began in NOVEMBER, 1703 141 (William Bradford 1717) (early hunting regulation); see The Acts OF THE General Assembly of the Province of New Jersey: from the time of the Surrender of the Government of the Said Province to the Fourth Year of the Reign of King George and SECOND COMP. 122-23 (John Kinsey 1732) (early hunting regulation); see also The LAWS AND ACTS OF the General Assembly of His Majesties Province of nova Caesarea or New Jersey: as they were enacted by the Governour, Council and General Assembly, for the time being, in divers sessions, the first of which began in November 29 (1717) (discussing killing swine on 'inclosed" [sic] lands).

(92.) For example, New Jersey law noted:

   That all the Inhabitants within said Province of West Jersey, have
   the Liberty of Fishing in Delaware River, or on the Sea Coast, and
   the liberty of hunting and killing any Deer, or other wild Beasts,
   the liberty to Shoot, or take any wild Fowl within the said
   Province. PROVIDED ALWAYS that they do not Hunt, Kill, Shoot, or
   take any such Deer, wild Beasts, or Fowls upon the Lands, that is
   or shall be surveyed, taken up, inclosed, sown, and planted except
   the Owners of the said Lands, or their Assigns.


The Grants Concessions Original Constitutions of the Province of New Jersey 390-91 (Aaron Learning & Jacob Spicer, eds. 2002).

(93.) Acts of the General Assembly of the Province of New-Jersey 192 (Samuel Allinson 1776) (authorizing rewards for killing wolves and panthers).

(94.) Id. at 221.

(95.) Id. at 343-44, 347.

(96.) Id. at 344-47.

(97.) A Complete Revisal of All the Acts of Assembly of the Province of North Carolina Now in Force and Use 42 (James Davis 1773).

(98.) Id. at 84-85, 152-53 (concerning the prohibitions and permissions of a slave's use of guns for hunting).

(99.) The Acts of the General Assembly of Commonwealth of Pennsylvania (Thomas McKean 1782) (emphasis added).

(100.) 1 THOMAS HERTY A DIGEST OF THE LAWS OF MARYLAND BEING AN ABRIDGMENT Alphabetically Arranged of All the Public of Assembly Now in Force and of General USE 210 (1799).

(101.) A7. at 211 (excepting the killing of deer on one's own property).

(102.) Id. at 286.

(103.) Id. at 469.

(104.) PA. CONST, of 1776, art. 1, [section] XIII.

   That the people have a right to bear arms for the defence of
   themselves and the state; and as standing armies in the time of
   peace are dangerous to liberty, they ought not to be kept up; And
   that the military should be kept under strict subordination to, and
   governed by, the civil power.


Id.; N.C. Const, of 1776, A Declaration of Rights, [section] XVII. (providing aright to bear arms for defense of state); VT. CONST, of 1777 ch. 1, [section] XV (providing aright to bear arms for defense of self and state)

(105.) MASS. CONST, of 1780, art. XVII (amended 2016). "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...." Id. England as far back as 1400 ... supports] the root of the Second Amendment, codified in the English Bill of Rights of 1689.").

(106.) See N.H. CONST, of 1784, pt. 1, art. XIII (amended 2007). 'No person who is conscientiously scrupulous about the lawfulness of bearing arms, shall be compelled thereto." Id. The 1784 version had a reference to buying one's way out of military service: "provided he will pay an equivalent." See https://www.nh.gov/constitution/billofrights.html. See also N.Y. CONST, of 1777, art. XL. "And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it...." Id.

(107.) Stephen p. Halbrook, The Founder's Second Amendment: Origins of the Right to Bear ARMS 160-62 (2008) [hereinafter HALBROOK III] (citing a Massachusetts newspaper from 1786-1787).

(108.) Pa. Const, of 1776, [section] XLI1I.

(109.) VT. Const, of 1777 ch. II, [section] XXXIX.

(110.) RATIFICATION OF THE CONSTITUTION BY THE STATE OF VIRGINIA, June 26, 1788. "That there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable rights of the people in some such manner as the following.... That the people have a right to keep and bear arms." Id. RATIFICATION OF THE CONSTITUTION BY THE STATE OF RHODE ISLAND, May 29, 1790. "That the people have a right to keep and bear arms." Id. RATIFICATION OF THE Constitution by the State of North Carolina, November 21,1789. "That the people have aright to keep and bear arms." Id. Ratification of the Constitution by the State of New York, July 26, 1788. "That the people have aright to keep and bear arms...." Id.

(111.) But see Paul Finkelman, "A Well Regulated Militia": The Second Amendment in Historical Perspective, 76 CHI.-KENT L. Rev. 195, 212 (2000) [hereinafter Finkelman] ("The Congressmen of 1789 were not interested in protecting the rights to 'killing game,' 'to fowl and hunt in seasonable times,' 'to fish in all navigable waters,' or even to guarantee that people should be able to 'bear arms for the defense of themselves.'"); Charles, supra note 5959, at 1791 (quoting Noah Webster's sarcastic comments about the Pennsylvania Minority: "But to complete the list of unalienable rights, you would insert a clause in your declaration, that every body shall, in good weather, hunt on his own land, and catch fish in rivers that are public property. Here, Gentlemen, you must have exerted the whole force of your genius!"); FRIENDS OF THE CONSTITUTION: WRITINGS OF THE ''OTHER" FEDERALISTS 1787-1788 at 175-76 (Colleen A. Sheehan & Gary L. McDowell eds., 1998) (quoting Noah Webster's explanation that it is redundant to include the right to hunt expressly in the Bill of Rights, because it is already a natural right guaranteed in America); see also Bogus, supra note 8383, at 315 n.22 (noting that disarming individuals was not a grievance for the American Revolution).

(112.) HARDY 1, supra note 6161, at 35.

(113.) HALBROOK I, supra note 5555, at 198 ("Unlike the British tradition of privilege, which denied hunting rights to commoners, in America the right to hunt was deemed universal, albeit not explicitly expressed in most constitutions.").

(114.) See infra Section II.D.2.

(115.) Allison L. Mollenhauer, Shot Down!: The D.C. Circuit Disarms Gun Control Laws in Parker v. District of Columbia, 53 VILL. L. REV. 353, 360 (2008) ("Early Americans understood the right as permitting private uses of guns, including hunting, defending against attacks by individuals and resisting a tyrannical government, in addition to any militia service the state required of an individual."); Andrew R. Gould, The Hidden Second Amendment Framework Within District of Columbia v. Heller, 62 VAND. L. REV. 1535, 1562-63 (2009) (arguing that the Second Amendment protects an individual right to keep a gun for the lawful purpose of hunting); see also Stephen P. Halbrook, The Right to Bear Arms in the Virginia Constitution and the Second Amendment: Historical Development and Precedent in Virginia and the Fourth Circuit, 8 LIBERTY U.L. REV. 619, 620-21 (2014) [hereinafter Halbrook IV] (reviewing founding era comments).

(116.) George A. Nation III, The New Constitutional Right to Guns: Exploring the Illegitimate Birth and Acceptable Limitations of This New Right, 40 RUTGERS L.J. 353, 385-86 (2009) (stating that it is unclear whether at the time of its ratification the Second Amendment "was also intended to serve a personal self-defense and/or hunting purpose"); David C. Williams, Constitutional Tales of Violence: Populists, Outgroups, and the Multicultural Landscape of the Second Amendment, 74 TUL. L. REV. 387, 422 (1999) (arguing that the Second Amendment is not for hunting because 'the Framers would have said so 'in plain English.'"). This argument is wrong for two reasons. First, Framers noted that the Second Amendment protected a right to keep and bear arms for hunting. Second, the Supreme Court has not interpreted the Second Amendment in that manner. Instead, the Heller Court, after explaining the text of the Second Amendment, noted that history tells us that this right is 'for the core lawful purpose of self-defense," even though it was not plainly stated in the text of the Amendment. District of Columbia v. Heller, 554 U.S. 570, 571 (2008).

(117.) See infra Section III.A.

(118.) HALBROOK in, supra note 107107, at 216-17 (citing Alexander White's essay "To the Citizens of Virginia" replying to the objections of the Pennsylvania Minority Report).

(119.) Id. at 196-97 (noting that a right to hunt was not foreign to the bill of rights).

(120.) Id. at 259.

(121.) Heller, 554 U.S. at 605 (2008).

(122.) Id. at 602.

(123.) Ky. CONST, of 1792, art. XII, [section] 23 ("The right of the citizens to bear arms in defence of themselves and the State shall not be questioned."). Three other states' Second Amendment analogues also used the phrase "to bear arms in defence of themselves and the State." See OHIO CONST, of 1802, art. VIII, [section] 20 ("That the people have a right to bear arms for the defence of themselves and the State ..."); IND. CONST, of 1816, art. 1, [section] 20 ("That the people have a right to bear arms for the defence of themselves and the State...."); Mo. CONST, of 1820, art. XIII, [section] 3 ("[T]hat their right to bear arms in defence of themselves and of the state cannot be questioned").

(124.) MISS. CONST, of 1817, art. 1, [section] 23 ("Every citizen has a right to bear arms in defence of himself and the State."); see CONN. CONST, of 1818, art. I, [section] 17 ("Every citizen has a right to bear arms in defence of himself and the state."); Ala. CONST, of 1819, art. I, [section] 23 ("Every citizen has a right to bear arms in defence of himself and the State.").

(125.) TENN. CONST, of 1796, art. XI, [section] 26 ("That the freemen of this State have a right to Keep and to bear Arms for their common defence."); ME. CONST, of 1819, art. I, [section] 16 (amended 2011) ("Every citizen has a right to keep and bear arms for common defence; and this right shall never be questioned.").

(126.) See supra Sections II.B.2, D. 1.

(127.) HARDY I, supra note 61, at 80-81 (noting the prominence of St. George Tucker as the preeminent legal scholar, who clearly understood the meaning of the Bill of Rights and his work written contemporaneously to the amendments introductions).

(128.) 1 St. George Tucker, Blackstone's Commentaries with Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia 300 (St. George Tucker edition, Philadelphia, Birch & Small 1803) [hereinafter TUCKER]; Michael P. O'Shea, Modeling the Second Amendment Right to Carry Arms (I): Judicial Tradition and the Scope of "Bearing Arms" for Self-Defense, 61 AM. U. L. REV. 585, 638 (2012) [hereinafter O'Shea I] (noting that Tucker understood "bearing arms" according to the Second Amendment as a right to carry firearms outside the home for hunting).

(129.) 1 TUCKER, supra note 128, at 143. Joseph Story in his Commentaries noted that the predecessor right to keep and bear arms "has been greatly narrowed, and it is at present in England more nominal than real as a defensive privilege." 2 Joseph Story, Commentaries on the Constitution OF THE UNITED States [section] 1897 (2d ed. 1851). After Blackstone's comments on French and German prohibitions on hunting, Tucker noted that the English bill of rights secured the right to keep and bear arms for defense, "suitable to their condition and degree." 3 TUCKER, supra note 128, at 414 n.3.

(130.) 5 TUCKER, supra note 128, at 174 (commenting on Blackstone's explanation on the qualifications for killing game and the exemption from the penalties for unlawful hunting, Tucker explained that Virginia law on the matter contained no qualifications, e.g., real property ownership and being an heir of an aristocrat, like its English counterpart).

(131.) 1 TUCKER, supra note 128, at 144n,41.

(132.) Id. "An attentive perusal of the preceding pages must be sufficient to convince us, that the game-laws are among the powerful instruments of state-enginery, for the purpose of retaining the mass of the people in a state of the most abject subjection." 3 TUCKER, supra note 128, at 414 n.3; but see David B. Kopel, The Right to Arms in the Living Constitution, 2010 CARDOZO L. REV. DE NOVO 99,104 (2010) [hereinafter Kopel I] (noting St. George Tucker's importance in early America). 'Tucker described the Second Amendment right to arms as an expansion of the arms right from the 1689 English Declaration of Right, and as including the right to arms for self-defense and for hunting." Id.

(133.) 1 TUCKER, supra note 128, at 315; David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 B.Y.U. L. REV. 1359, 1375 [hereinafter Kopel II] (stating Tucker was wrong in his description of the state of English law, "in 1689, the game laws were no longer used to disarm the common people.... But more important than whether Tucker accurately understood English circumstances is what his widely read treatise shows about the state of American law.").

(134.) After discussing how the structure of the American federal government differs from the English government, Tucker noted "the game-laws ... have been converted into the means of disarming the body of the people...." 1 TUCKER, supra note 128, at 315; Kopel II, supra note 133133, at 1374 ('Tucker added his own condemnation of British practice, contrasting it with the robust right to arms in America....").

(135.) 3 TUCKER, supra note 128 at 414. William Rawle, another early and prominent legal commentator, who had personal knowledge of the Framers' views of the Amendment, noted in his commentary on the Second Amendment:

   The corollary from the first position is, that the right of the
   people to keep and bear arms shall not be infringed. The
   prohibition is general. No clause in the Constitution could by any
   rule of construction be conceived to give the Congress a power to
   disarm the people. Such a flagitious attempt could only be made
   under some general pretence [sic] by a state legislature. But, if
   in any blind pursuit of inordinate power either should attempt it,
   this amendment may be appealed to as a restraint on both.


HARDY I, supra note 6161, at 83.

(136.) George Paschal noted that the Second Amendment 'has reference to a free government, and is based on the idea, that the people cannot be oppressed or enslaved, who are not first disarmed." George Washington Paschal, The Constitution of the United States Defined and Carefully Annotated 256 (1st ed. 1868).

(137.) 1 Gun Control and the Constitution: Sources and Explorations on the Second Amendment xiv-xv (Robert J. Cottrol ed., 1994) (noting Tucker's view on the Second Amendment, the difference between the right in America and England, and absurdity of a gun ban for hunting).

(138.) 561 U.S. 742 (2010).

(139.) See United States v. Cruikshank, 92 U.S. 542, 547 (1875) ("The second amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government."); Rakove, supra note 8383, at 135 ("While the resolutions articulate a fear of national power, they do not identify the provisions of the Constitution that threatened private rights of ownership, much less the fowling and hunting practices of residents of a state in which the federal government could have no valid title to any land."). But see McDonald, 561 U.S. at 754-56; HARDY I, supra note 61, at 83.

(140.) 9 S.C.L. 244 (S.C. Const. App. 1818).

(141.) Id. at 352.

(142.) Id.

(143.) Id.

(144.) District of Columbia v. Heller, 554 U.S. 570, 620 (2008) (internal quotations omitted).

(145.) Id. at 626; Dan M. Peterson, Stephen P. Halbrook, A Revolution in Second Amendment Law, 29 DEL. Law. 12, 13 (Winter 2011/2012) ("The case was brought by a resident of Washington, D.C., who wished to possess a handgun for self-protection at home.").

(146.) Heller, 554 U.S. at 573-626; see Parker v. District of Columbia, 478 F.3d 370, 400 (D.C. Cir. 2007) ("And, as we have noted, the Second Amendment's premise is that guns would be kept by citizens for self-protection (and hunting)."), aff'd sub nom. District of Columbia v. Heller, 554 U.S. 570 (2008); see also David B. Kopel, The Second Amendment in the Tenth Circuit: Three Decades of (Mostly) Harmless Error, 86 Denv. U. L. REV. 901, 901-02 (2009).

   Heller affirmed the Standard Model of the Second Amendment: that
   the Second Amendment is functionally similar to the First
   Amendment, and to most of the rest of the Bill of Rights; and the
   right protects all law-abiding citizens, not just a small number of
   people in government service. And the right is not limited to a
   single purpose (militia service), but encompasses a wide variety of
   lawful purposes, particularly self-defense.


Id. See also Michael C. Dorf, What Does the Second Amendment Mean Today?, 76 CHI.-KENT L. Rev. 291, 303 (2000) ("In my view, protecting a 'right of the people to keep and bear Arms' is a sufficiently odd way of protecting an individual right to possess firearms for rebellion, self-defense, or hunting as to provoke further inquiry.").

(147.) Heller, 554 U.S. at 573-96. To determine whether the Second Amendment protects a right to keep and bear arms for the purpose of self-defense, as argued and won in the lower court, the Court evaluated the history of the text. Kopel I, supra note 132, at 99 ("The argument between Justice Scalia's opinion and Justice Stevens ' dissent was conducted almost entirely on originalist grounds. Heller delves more deeply and broadly into originalism than any previous Supreme Court opinion."); Michael P. O'Shea, The Right to Defensive Arms After District of Columbia v. Heller, 111 W. VA. L. REV. 349, 371 (2009) [hereinafter O'Shea II] ("Both Scalia's and Stevens' approaches are originalist because they focus attention upon one particular temporal context, the context of enactment, in interpreting the Second Amendment's meaning."). William G. Merkel, Heller As Hubris, and How McDonald v. City of Chicago May Well Change the Constitutional World As We Know It, 50 SANTA CLARA L. REV. 1221, 1231, 1235 (2010).

   Hence, Justice Scalia emphasizes that the task of the judge
   applying original public meaning originalism is to interpret text
   according to its everyday and ordinary meaning, and not probe into
   its secret or technical meanings.... And Justice Scalia is here
   today to interpret the language exactly as those people 220 years
   ago would have interpreted it, because he says so.


Id.

(148.) Id. at 750.

   More sadly still, barring unforeseen and nearly unforeseeable
   momentary spasms of insight among one of the five members of the
   Heller [sic] majority, the United States may well stand mere weeks
   away from a judicial fiat endorsing a new constitutional
   dispensation of universal and unfettered access to arms utterly
   unlike any secular or pious understanding that animated the
   national mainstream during the age of independence or during that
   most Godly epoch of anti-slavery and national constitutional
   regeneration that produced the Fourteenth Amendment.


Merkel, supra note 146, at 1260-61.

(149.) McDonald, 561 U.S. at 767-70.

(150.) Id. At 778.

(151.) Heller, 554 U.S. at 605.

(152.) Id. at 576 (quoting United States v. Sprague, 282 U.S. 716, 731 (1931)).

(153.) Merkel, supra note 146, at 1229. "Thus, it is not only the counter-factuality of Justice Scalia's opinion that strikes historians as wrongheaded: from the perspective of specialists in late-eighteenth-century American political thought, the most disturbing feature of the Heller opinion is that it is militantly a-contextual." Id.

(154.) See Nation III, supra note 116116, at 356 ("The Court, however, looks outside the Constitution, and concludes that it was common in other legal documents of the founding era to include a prefatory statement of purpose."); see also Lagow, supra note 7272, at 812 ("Since the Second Amendment has roots in the common law, the court looked to the restrictions recognized in that body of authority."); Nation III, supra note 116116, at 363 ("The Court then reviews post-enactment commentary, judicial dicta, and legislative dicta evidently in search of the apparition of original public meaning") (internal quotations omitted); Allen Rostron, Justice Breyer's Triumph in the Third Battle over the Second Amendment, 80 Geo. Wash. L. Rev. 703, 709 (2012) ("The opinion, with its intensely historical perspective, has been hailed by some as a 'triumph for originalism.'") (citing Jamal Greene, Selling Originalism, 97 Geo. L.J. 657, 684 (2009)).

(155.) Kaufman, supra note 36, at 705-06. "Justice Scalia analyzed virtually every one of the twenty-seven words contained in the Second Amendment. He divided the text into its prefatory clause and its operative clause." Id.

(156.) "A well regulated Militia, being necessary to the security of a free State...." U.S. CONST. amend. II.

(157.) "[T]he right of the people to keep and bear Arms, shall not be infringed." U.S. CONST, amend. II; see District of Columbia v. Heller, 554 U.S. 570, 579 (2008) ("The first salient feature of the operative clause is that it codifies a 'right of the people.'").

(158.) Heller, 554 U.S. at 577 (emphasis added). ("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."') (citing J. TIFFANY, A TREATISE ON GOVERNMENT AND CONSTITUTIONAL law [section] 585 at 394 (1867); see Kaufman, supra note 36, at 706 ("Justice Scalia relied on an amicus brief submitted by professors of linguistics to conclude that the prefatory clause--'[a] well regulated Militia, being necessary to ... a free State'--merely announces a purpose.").

(159.) Kaufman, supra note 36, at 706-07. A citizen has the right to keep and bear arms for the purpose of service in the militia. Id.

(160.) Heller, 554 U.S. at 577. "That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause.... But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause." Id. But the prefatory clause also can be read as the reason for the codification of a natural right. Id. at 599. "It is therefore entirely sensible that the Second Amendment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia." Id.

(161.) Id. at 579-95.

(162.) Id. at 581; U.S. CONST, amend. II.

(163.) Heller, 554 U.S. at 581.

(164.) Id. Furthermore, the Court rejected arguments to limit the Second Amendment's protections to only those weapons in existence at the time of the Amendment's ratification and noted that the Second Amendment applies to any bearable arms. Id. at 582. "[T]he 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." Id. See also Kaufman, supra note 3636, at 707. "What is the meaning of the word 'arms'? 'Arms' means weapons and not just those designed for military use or in existence in the eighteenth century." Id.

(165.) Heller, 554 U.S. at 583 n.7 (quoting JOHN AYLIFFE, A NEW PANDECT OF ROMAN CIVIL LAW 195 (1734) ("'Yet a Person might keep Arms in his House, or on his Estate, on the Account of Hunting, Navigation, Travelling, and on the Score of Selling them in the way of Trade or Commerce, or such Arms as accrued to him by way of Inheritance.'")).

(166.) Id. at 582 (citations omitted).

(167.) Id.; see Aimee Kaloyares, Annie, Get Your Gun? An Analysis of Reactionary Gun Control Laws and Their Utter Failure to Protect Americans from Violent Gun Crimes, 40 S. U. L. REV. 319, 344 (2013) ("[T]he court ruled that keep means to 'have weapons,' bear means to 'carry upon the person'....").

(168.) Heller, 554 U.S. at 584 (citing Dictionary of the English Language 161 (4th ed. 1978); American Dictionary of the English Language (1828); A Complete Dictionary of the English Language (1796); and Oxford English Dictionary 20 (2d ed. 1989)).

(169.) Id. (citations omitted); see Peterson, supra note 145, at 12, 15 ("To 'bear arms' means to 'carry' them."). But see PATRICK J. CHARLES, THE SECOND AMENDMENT: THE INTENT AND ITS INTERPRETATION BY THE STATES AND THE SUPREME COURT 19-21, 39-41, 136-37 (2009) (arguing that because hunting laws of the eighteenth century did not use bear to mean to carry, thus, hunting is not protected under the Second Amendment).

(170.) Heller, 554 U.S. at 584-85, 588 (internal quotations omitted). But see David Yassky, The Second Amendment: Structure. History, and Constitutional Change, 99 MICH. L. REV. 588, 620-21 (2000) ("A full review of the evidence, however, shows that at the time the Second Amendment was adopted, the overwhelmingly dominant meaning of the phrase 'bear arms', particularly in a political context, was to refer to the use of weapons by soldiers or militiamen.").

(171.) Heller, 554 U.S. at 589.

(172.) Supra Section II.B.2.

(173.) Heller, 554 U.S. at 587-90.

(174.) Id. at 589 (emphasis added).

(175.) Id. at 588-89, 630. As the Court explained, "[a] purposive qualifying phrase" can modify the right 'to keep and bear arms." Id. Although the text does not state that the right to bear arms is for a particular purpose, Heller concluded--based on the Second Amendment's history--that the core protection of the Second Amendment is a right to bear arms for the purpose of self-defense. Id. (noting that the Second Amendment right to keep and bear arms is not "expressly qualified" or modified by any purposive phrase). The purposive qualifying phrase modifying the carriage of arms, however, cannot contradict the phrase "to keep and bear arms." Id. at 589. "A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass." Id.

(176.) Id. "Thus, these purposive qualifying phrases positively establish that 'to bear arms' is not limited to military use." Id.

(177.) Id. at 590.

(178.) Id. at 592 ("Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation."); Michael P. O'Shea, Why Firearm Federalism Beats Firearm Localism, 123 YALE L.J. ONLINE 359, 363 (2014) [hereinafter O'Shea III] ("Personal defense, not hunting, is the right's 'core lawful purpose.'"); O'Shea II, supra note 147, at 351 ("Finally, at the heart of Heller is the purpose of self-defense against criminal violence, which Justice Antonin Scalia's opinion for the Court ringingly endorses as 'the core lawful purpose' served by the Second Amendment right to arms. Self-defense is best conceived of as a primarily personal purpose, but one that also has a significant civic importance.") But see Akhil Reed Amar, An(Other) Afterword on the Bill of Rights, 87 GEO. L.J. 2347, 2361 (1999) [hereinafter Amar II], ("Thus, the Second Amendment as originally drafted seems to me more about the army than about hunting, more about collective than individual self-defense.").

(179.) Heller, 554 U.S. at 592.

   We look to [history] because it has always been widely understood
   that the Second Amendment, like the First and Fourth Amendments,
   codified a pre-existing right. The very text of the Second
   Amendment implicitly recognizes the pre-existence of the right and
   declares only that it "shall not be infringed."


Id. (emphasis in original) (citing United States v. Cruikshank, 92 U. S. 542, 553 (1876)). See also O'Shea II, supra note 147, at 363.

   Many of these remarks echoed a provocative amicus curiae brief
   filed by Professor Nelson Lund on behalf of the Second Amendment
   Foundation. Lund's brief argued that the Court should reject
   Miller's stress on the militia and adopt a theory of the Second
   Amendment founded on the natural right of self defense.


Id.

   This emphasis on a pre-existing right--arguably reflected in the
   syntax of the Second Amendment, which refers to 'the right to keep
   and bear arms'--is important to Heller's [sic] rejection of the
   dissenters' argument that the Second Amendment only protects
   participation in an organized militia. The English right to
   personal arms (and, in Blackstone's account the underpinning
   natural right to self-defense) provides an obvious source to
   explain the general nature of the pre-existing right guaranteed by
   the Second Amendment.


Id. at 365-66; Jason Racine, What the Hell(Er)? The Fine Print Standard of Review Under Heller, 29 N. ILL. U. L. REV. 605, 609 (2009) ("The Court spent nearly thirty-five pages of the opinion analyzing textual and historical arguments surrounding the twenty-seven words making up the Second Amendment."); Amar II, supra note 178, at 2360-61.

   The American revolutionaries were heirs to a tradition of English
   liberty, Cottrol elegantly reminds us. In pondering a text such as
   the Second Amendment, we should also pay close attention to
   predecessor texts on similar topics-in particular, the language of
   the English Bill of Rights of 1689. I heartily approve of Cottrol's
   reminder of the importance of what I call in my book
   "intertextualism"-that is, reading the language of the United
   States Constitution against the backdrop of other important
   charters of liberty, like the English Bill of Rights, the
   Declaration of Independen, and state constitutions.


Amar II, supra note 178, at 2360-61.

(180.) McDonald v. City of Chicago, 561 U.S. 742, 815-19 (2010); Heller, 554 U.S. at 592-94; Hardaway, supra note 64, at 60 (explaining "that the right to possess arms as it existed in the ancient English system deeply influenced the right as it was codified under the Second Amendment"). The English Declaration of Rights deeply influenced the right to possess arms and all the other rights contained in the Bill of Rights to the United States Constitution.

(181.) McDonald, 561 U.S. at 767-70; Heller, 554 U.S. at 592-94.

(182.) McDonald, 561 U.S. at 767, 778.

(183.) Id. at 767-70, 780.

(184.) Id. at 768.

(185.) Id. at 768-70.

(186.) District of Columbia v. Heller, 554 U.S. 570, 593 (2008).

(187.) Id. at 593-94 ("Blackstone, whose works, we have said, 'constituted the preeminent authority on English law for the founding generation,' cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen.") (citation omitted).

(188.) Id. at 594-95.

(189.) Id. at 600-04 (citing the first Constitutions of Pennsylvania, Vermont, North Carolina, and Massachusetts).

(190.) Id. at 605-19.

(191.) Id. at 594-95.

(192.) McDonald v. City of Chicago, 561 U.S. 742,769-70 (2010).

(193.) Id. at 768-70 (listing a variety of ratification sources).

(194.) Id. at 767-72.

(195.) Id.

(196.) Id. at 769-70 (noting that to preserve the militia was one purpose for which the Second Amendment right was adopted).

(197.) Id. at 769 ("But those who were fearful that the new Federal Government would infringe traditional rights such as the right to keep and bear arms insisted on the adoption of the Bill of Rights as a condition for ratification of the Constitution.").

(198.) District of Columbia v. Heller, 554 U.S. 570, 624-25 (2008); Rostron, supra note 154, at 710 ("Scalia went on to recognize specifically that the Second Amendment should protect a right to use guns only for lawful purposes."); O'Shea 1, supra note 128, at 609 ("[T]he majority, in contrast, held that the amendment protects a traditional right to own and use firearms for a variety of personal purposes, including self-defense.").

(199.) Heller, 554 U.S. at 628, 635-36; Nation III, supra note 116, at 417 ("First, it creates in the Second Amendment an individual right to have and use arms for self-defense. Second, it defines arms as popular weapons commonly chosen by reasonable, law-abiding citizens for lawful purposes, and concludes that handguns fit into this definition."); Charles, supra note 59, at 1728 (noting that Second Amendment protects a right to armed self-defense in the house and this applies to the federal government and to the State).

(200.) See, e.g., Hunters United for Sunday Hunting v. Pa. Game Comm'n, 28 F. Supp. 3d 340, 346 (M.D. Pa. 2014) (holding that the Second Amendment does not protect a right to keep and bear arms for the purpose of killing game).

(201.) McDonald, 561 U.S. at 770-78.

(202.) Id. at 775 ("Today, it is generally accepted that the [Fourteenth] Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act [of 1866],").

(203.) Id. at 774 ("The Civil Rights Act of 1866 ... which was considered at the same time as the Freedmen's Bureau Act, similarly sought to protect the right of all citizens to keep and bear arms.").

(204.) Id. at 775-78 (noting Senator Samuel Pomeroy, Senator James Nye, Representative Stevens, and "the Framers and ratifiers [sic] of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.").

(205.) Id. at 776.

(206.) See supra Sections III.2-3.

(207.) McDonald, 561 U.S. at 791 ("We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.").

(208.) District of Columbia v. Heller, 554 U.S. 570, 599 (2008).

(209.) Id. at 577. "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes." Id. at 625; see id. at 582 ("[T]he Second Amendment extends, prima facie, to all instruments that constitute bearable arms....").

(210.) McDonald, 561 U.S. at 779 (stating the rights that it does protect, but does not specifically include hunting).

(211.) See id. at 757 (emphasis added) (citing United States v. Cruikshank, 92 U.S. 542, 553, 559 (1875)) (stating that the Second Amendment right is an inherent and natural right that exists regardless of the Constitution).

(212.) Charles, supra note 59, at 1852-53 ("And in the case of McDonald, references to both hunting rights and the Amendment's 'well regulated militia' language were noticeably absent, further illustrating the narrowness of the holding.").

(213.) Hunters United for Sunday Hunting v. Pa. Game Comm'n, 28 F. Supp. 3d 340 (M.D. Pa. 2014).

(214.) Id.

(215.) 34 PA. CONS. STAT. ANN. [section] 2303(a) (West 2014)); see also 34 PA. CONS. STAT. Ann. [section] 2303(b.1) (West 2014) (noting that fox and coyote hunting are exceptions to the general prohibition against Sunday hunting).

(216.) Hunters United, 28 F. Supp. 3d at 345.

(217.) Id. at 343.

(218.) See id. at 345.

(219.) Id. at 345.

(220.) Id. at 345.

(221.) See id.', see also United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010) ("First, we ask whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee. If it does not, our inquiry is complete. If it does, we evaluate the law under some form of means-end scrutiny."); Drake v. Filko, 724 F.3d 426, 429 (3d. Cir. 2013) cert, denied sub nom. Drake v. Jerejian, 134 S. Ct. 2134 (2014) (utilizing the same two-step approach).

(222.) But see Drake, 724 F.3d at 431 ("We do, however, recognize that the Second Amendment's individual right to bear arms may have some application beyond the home.") cert, denied sub nom. Drake v. Jerejian, 134 S. Ct. 2134 (2014) (emphasis in original).

(223.) Id. The Third Circuit is not clear as to what burdens the Second Amendment right. There is no clear direction from the Supreme Court.

(224.) Hunters United, 28 F. Supp. 3d at 345-47.

(225.) Id. at 346.

(226.) Id.

(227.) Id. at 346-47

(228.) See id. at 346.

(229.) See id. at 345-47 (showing that the court raises case law but does not reach any historical analysis relating to the Second Amendment.); see also Ryan Notarangelo, Carrying the Second Amendment Outside of the Home: A Critique of the Third Circuit's Decision in Drake v. Filko, 64 CATH U.L. REV. 235,255-60 (2014).

(230.) Hunters United, 28 F. Supp. 3d at 346.

(231.) Id.

(232.) Id.

(233.) District of Columbia v. Heller, 554 U.S. 570, 592-94 (2008) ("It was clearly an individual right, having nothing whatever to do with service in a militia."). Contra Hunters United, 28 F. Supp. 3d at 346.

(234.) Heller, 554 U.S. at 577, 591-92. Contra Hunters United, 28 F. Supp. 3d at 345-47.

(235.) As the Court explained, "[a] purposive qualifying phrase" can modify the right "to bear arms." Heller, 554 U.S. at 588-89. The Court also noted that the Second Amendment right to keep and bear arms is not "expressly qualified" or modified by any purposive phrase. Id. However, the purposive qualifying phrase modifying the carriage of arms cannot contradict the phrase to keep and bear arms. Id. at 589.

(236.) See supra Sections II.B-D.

(237.) 16 U.S.C. [section][section]3371-3378 (West 2010).

(238.) See e.g., Drake v. Filko, 724 F.3d 426, 430-31 (3d Cir. 2013) (assuming arguendo that the Second Amendment protects a right outside of the home), cert, denied sub nom. Drake v. Jerejian, 134 S. Ct. 2134 (2014); Kachalsky v. Cacace, 817 F. Supp. 2d 235, 264 (S.D.N.Y. 2011), affd sub nom. Kachalsky v. Cnty. of Westchester, 701 F.3d 81 (2d Cir. 2012),cert. denied, 133 S. Ct. 1806 (2013).

(239.) Heller, 554 U.S. at 582 (emphasis added).

(240.) Id.; see id. at 625 ("We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes....").

(241.) O'Shea II, supra note 147, at 369 (noting the Heller Court did not discuss hunting, because "the District of Columbia prohibitions challenged in the case so directly implicate the core purpose of self-defense. However, with respect to hunting arms, the Court does list both 'self-defense and hunting' as primary purposes for which founding-era Americans valued the right to arms."). The court in Hunters United rejected the argument that the Second Amendment extends to protect a right to keep and bear arms for hunting without a proper understanding of the Second Amendment right as interpreted in Heller. Hunters United for Sunday Hunting v. Pennsylvania Game Com'n, 28 F. Supp. 3d 340, 345 (M.D. Penn. 2014).

(242.) See supra Section III.A. and accompanying notes. St. George Tucker emphatically affirms this point, too. See Tucker, supra note 128, at 143.

(243.) Heller, 554 U.S. at 599.

(244.) Id. at 577. "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes...." Id. at 625; see id. at 582 ("[T]he Second Amendment extends, prima facie, to all instruments that constitute bearable arms.... ").

(245.) See McDonald v. City of Chicago, 561 U.S. 742, 753 (2010).

(246.) Id. at 757 (emphasis added) (quoting United States v. Cruikshank, 92 U.S. 542, 553 (1875)) (stating that the Second Amendment right is an inherent and natural right that exists regardless of the Constitution).

(247.) Other courts have read it similarly. Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011) ("The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use...."); Jeffrey Omar Usman, The Game Is Afoot: Constitutionalizing the Right to Hunt and Fish in the Tennessee Constitution, 11 TENN. L. REV. 57, 60-68 (2009) (providing an analysis on the right to hunt).

(248.) Heller, 554 U.S. at 635-36.

(249.) Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. Rev. 204, 245 (1983) ('Even where the right specified is to have a gun for one purpose, however, one who lawfully has it for that purpose may properly use it for such other purposes as hunting...."); but see Finkelman, supra note 111, at 236 ('Could Congress ban hunting rifles? It would be politically impossible and constitutionally absurd, although it would be possible and reasonable to ban hunting, and hunting rifles, in national parks.").

(250.) See supra Sections II.B.1-C.2. See also e.g., N.J. ST AT. ANN. [section] 2C:39-6(i)(2) (West 2016) (expecting hunting from N.J. STAT. Ann. [section] 2C:39-6 (West 2016), a prohibition on carrying firearms without a justifiable need); CONN. GEN. STAT. ANN. [section] 53-206(b)(3)(F) (West 2016).

(251.) See supra Sections II.B. 1-3.

(252.) Kopel II, supra note 133, at 1407 ("Hunting--'killing game'--is obviously a personal, non-militia purpose for which one could 'bear arms.'").

(253.) David B. Kopel, How the British Gun Control Program Precipitated the American Revolution, 6 CHARLESTON L. Rev. 283, 327 (2012) ("District of Columbia v. Heller and McDonald v. City of Chicago, both of which hold that, while sporting uses such as hunting are part of the Second Amendment, the 'core' and 'central component' of the Second Amendment is self-defense."); contra L.A. Powe, Jr., Guns, Words, and Constitutional Interpretation, 38 Wm. & MARY L. REV. 1311, 1314, 1339-40 (1997) ("Instead, by its very terms, the Amendment is addressed to the militia and military. Therefore, it is not about duck hunting either...."); Finkelman, supra note 111, at 236 (arguing that the Second Amendment does not protect the individual right to hunt).

(254.) O'Shea III, supra note 178, at 363 ("The right to arms has traditionally been valued, in part, for hunting purposes, and I agree with Blocher that hunting arms, as such, deserve 'penumbral' protection under the Second Amendment."); William C. Plouffe, Jr., A Federal Court Holds the Second Amendment Is an Individual Right: Jeffersonian Utopia or Apocalypse Now?, 30 U. Mem. L. Rev. 55, 102-03 (1999) ("As the Court stated in Griswold, the penumbra of the Bill of Rights includes those rights which give 'life and substance' to the enumerated rights.") (arguing that the Second Amendment is a penumbral right); see also Jonathan Meltzer, Open Carry for All: Heller and Our Nineteenth-Century Second Amendment, 123 YALE L.J. 1486, 1493 n.28 (2014) (arguing that the Second Amendment protects a right to hunt).

(255.) Is the penumbral rights view of the Second Amendment for lawful purposes now? Lawful purposes at the time of the founding? Lawful purposes at English common law? And why? The safest move for courts is to consider whether it is for lawful purposes now, but in light of Heller this seems too limiting.

(256.) Most recently, the Supreme Court of the United States summarily reversed the Supreme Judicial Court of Massachusetts holding that the Second Amendment's protections extend to stun guns. Caetano v. Massachusetts, 136 S. Ct. 1027, 1032 (2016). Justice Alito concurred in the decision advancing another theory of Second Amendment jurisprudence, viz. whether the arms are commonly possessed by law-abiding citizens for lawful purposes today. Id. at 1032 (Alito, J., concurring (stating that "the pertinent Second Amendment inquiry is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today"). Undoubtedly, the courts will continue to struggle with this concept. See, e.g., Kolbe v. Hogan, 813 F.3d 160, 176 (4th Cir. 2016) (stating that the pertinent Second Amendment inquiry is "whether the prohibited weapons and magazines are 'typically possessed by law-abiding citizens for lawful purposes' as a matter of history and tradition").

(257.) Various scholars and courts have argued for strict or intermediate scrutiny application for Second Amendment challenges. See supra note 15. This is not the focus of this article. A challenge to a statute, however, for violation of the Second Amendment right to hunt would include a few well-known constitutional principles: state police power, interstate commerce, etc. See e.g., Toomer v. Witsell, 334 U.S. 385, 402 (1948); Geer v. Connecticut, 161 U.S. 519, 538-41 (1896) (Field, J., dissenting) (explaining that the State has a right 'to provide for the protection of wild game, so far as such protection is necessary for their preservation, or for the comfort, health, or security of its citizens...."), overruled by Hughes v. Oklahoma, 441 U.S. 322 (1979); see also Gibbons v. Ogden, 22 U.S. 1,33-34 (1824).

(258.) See Akhil Reed Amar, The Second Amendment: A Case Study in Constitutional Interpretation, 2001 UTAH L. REV. 889, 891, 902, 904 (2001) ("A deer hunter or target shooter carries a gun but does not, properly speaking, bear arms."); Yassky, supra note 170, at 619 (arguing that early interpretation of the phrase "bear arms" did not comport with bearing arms for hunting).

(259.) See Halbrook III, supra note 107, at 160-62.

(260.) Id. at 161.

(261.) See supra Section II.D.2.

(262.) Thiago Luiz Blundi Sturzenegger, The Second Amendment's Fixed Meaning and Multiple Purposes, 37 S. ILL. U. L.J. 337, 346 (2013) ('During the end of the nineteenth century, the arrival of John Austin's analytical positivism to the American legal field resulted in the isolation of law from other fields of knowledge ... such as politics and morality."); KENNETH PENNINGTON, THIS PRINCE AND THE LAW 1200-1600: SOVEREIGNTY AND RIGHTS IN THE WESTERN LEGAL TRADITION 1-5 (1993); see also Mark S. Kende, Free Exercise of Religion: A Pragmatic and Comparative Perspective, 55 S.D. L. REV. 412,424 (2010) (discussing courts using balancing tests for fundamental rights).

(263.) See generally R. H. Helmholz, Natural Law and Human Rights in English Law: From Bracton to Blackstone,?) AVE MARIAL. REV. 1,2, 11, 14 (2005) (noting the basic natural and inviolable right to marry, sustenance, and due process); Kenneth Pennington, The History of Rights in Western Thought, 47 EMORY L.J. 237, 237-39 (1998) (noting a distinction between basic rights and laws). But see OLIVER Wendell Holmes, Natural Law, in Collected Legal Papers 310-12 (1920).

(264.) District of Columbia v. Heller, 554 U.S. 570, 592 (2008); Plouffe, supra note 254, at 96 ("In its early years, the Supreme Court used the concept of natural rights as the foundation for determining what rights were fundamental.... The use of natural rights as a foundation for the determination of fundamental rights continued through the twentieth century."); contra Joseph Blocher, Gun Rights Talk, 94 B.U. L. REV. 813, 832 (2014) ("Heller itself said it was simply recognizing a 'pre-existing' right, and some have seized on this language to suggest that the right to keep and bear arms is truly inalienable and unregulable. Such arguments are rights talk on stilts. They leave little room for debate or reason....").

(265.) See Heller, 554 U.S. at 591-92; Pennington, supra note 263, at 243-44.

Ryan Notarangelo ([dagger])

([dagger]) Ryan Notarangelo, J.D. I am indebted to Professor Beverly P. Jennison, clinical associate professor of The Catholic University of America, Columbus School of Law, for her insightful guidance. Special thanks to Elias Arroyo, Esq. for his comments and critique of this work. 1 ROGER SCRUTON, ON HUNTING 73 (1998).
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