Constitutional Topic: The Second Amendment
The Constitutional Topics pages at the USConstitution.net site are presented
to delve deeper into topics than can be provided on the Glossary Page or in the FAQ
pages. This Topic Page concerns The Second Amendment. This topic has a
home directly in the Constitution, at the 2nd
Amendment.
A great source of information for this topic came from Origins of the Bill
of Rights (Yale Nota Bene, 2001) by Leonard W. Levy. The 2nd Amendment page
at the Government
Printing Office Site is also of considerable use.
- Historical context
- Today’s debate
- Recent developments
- A proposed amendment
- Further information
- Documentary History
The 2nd Amendment, starting in the latter half of the 20th century, became
an object of much debate. Concerned with rising violence in society and the
role firearms play in that violence, gun control advocates began to read the
2nd Amendment one way. On the other side, firearm enthusiasts saw the attacks
on gun ownership as attacks on freedom, and defended their interpretation of
the 2nd Amendment just as fiercely. If the authors of the 2nd Amendment could
have foreseen the debate, they might have phrased the amendment differently,
because much of the debate has centered around the way the amendment is
phrased.
Is the amendment one that was created to ensure the continuation and
flourishing of the state militias as a means of defense, or was it created to
ensure an individual’s right to own a firearm?
Despite the rhetoric on both sides of the issue, the answer to both
questions is most likely, “Yes.” The attitude of Americans toward the military
was much different in the 1790’s than it is today. Standing armies were
mistrusted, as they had been used as tools of oppression by the monarchs of
Europe for centuries. In the war for independence, there had been a regular
army, but much of the fighting had been done by the state militias, under the
command of local officers. Aside from the war, militias were needed because
attacks were relatively common, whether by bandits, Indians, and even by troops
from other states.
Today, the state militias have evolved into the National Guard in every
state. These soldiers, while part-time, are professionally trained and armed by
the government. No longer are regular, non-Guardsmen, expected to take up arms
in defense of the state or the nation (though the US Code does still recognize
the unorganized militia as an entity, and state laws vary on the subject [10
USC 311]).
This is in great contrast to the way things were at the time of adoption of
the 2nd Amendment. Many state constitutions had a right to bear arms for the
purposes of the maintenance of the militia. Many had laws that required men of
age to own a gun and supplies, including powder and bullets.
In the state constitutions written around the time of the Declaration of Independence, the right to bear arms was
presented in different ways. The Articles of
Confederation specified that the states should maintain their militias, but
did not mention a right to bear arms. Thus, any such protections would have to
come from state law. The Virginia Declaration of
Rights, though it mentioned the militia, did not mention a right to bear
arms — the right might be implied, since the state did not furnish
weapons for militiamen. The constitutions of North Carolina and Massachusetts
did guarantee the right, to ensure proper defense of the states. The
constitution of Pennsylvania guaranteed the right with no mention of the
militia (at the time, Pennsylvania had no organized militia). One of the
arguments of the Anti-Federalists during the
ratification debates was that the new nation did not arm the militias, an odd
argument since neither did the U.S. under the Articles. Finally, Madison’s original proposal for the Bill of Rights
mentioned the individual right much more directly than the final result that
came out of Congress.
Perhaps in the 1780’s, the rise of a tyrant to a leadership position in the
U.S. was a cause for concern. Today, in my opinion, the
voters are much too sophisticated to elect a leader whose stated aims would be
to suppress freedom or declare martial law. For the leader whose unstated aim
it was to seize the nation, the task would be more than daunting — it
would be next to impossible. The size and scope of the conspiracy needed, the
cooperation of patriots who would see right through such a plan — it is
unfathomable, the stuff of fiction. There are some who fear the rise in
executive power under the second Bush presidency is just such a usurpation, and
in some ways it may be. But similar usurpations of power by the Congress and
the President, such as the Alien and Sedition Acts, the suspension of habeas
corpus during the Civil War, or the internment of Japanese-Americans during
World War II, were all eventually overturned or struck down and then condemned
by history. My hope is that history can be our guide this time, too.
The defense of our borders had not been a cause for concern for nearly a
century before the subject really came up again around the time of the turn of
the millennium, in 1999. Concern with border defense again became an issue
after September 11, 2001, when a series of terrorist attacks, both in the form
of hijacked airliners crashing into buildings and anthrax-laced mail, made
people realize that we do have enemies that wish to invade our nation, though
not on the scale of an army. But while each state has its National Guard it can
call up to guard the borders, the coordination needed is much more on a
national scale, and special units of the regular army or border patrol are
better suited for such duty than the Guard.
With the historical context set above, a look at the
current interpretations of the 2nd Amendment are appropriate.
These interpretations tend to lean in one of two ways. The first is that the
amendment was meant to ensure that individuals have the absolute right to own
firearms; the second is that the amendment was meant to ensure that States
could form, arm, and maintain their own militias. Either way, it is a bar to
federal action only, because the 2nd Amendment has not been incorporated by the Supreme Court to apply
to the states. This means that within its own constitution, a state may be as
restrictive or non-restrictive as it wishes to be in the regulation of
firearms; likewise, private rules and regulations may prohibit or encourage
firearms. For example, if a housing association wishes to bar any firearm from
being held within its borders, it is free to do so.
The Supreme Court, in permitting the United States to apply a stamp tax to
sawed-off shotguns (a move, it was argued, that was intended to make such
weapons de facto illegal), essentially said that if a weapon does not
contribute to the maintenance of a militia, and has no use in ensuring the
common defense, it can be regulated (United States v. Miller, 307 US
174 [1939]). Though the outcome of Miller was never fully resolved (the
Court asked that Miller prove the relevance of the sawed-off shotgun to the
maintenance of the militia, but Jack Miller died before he could, and the case
died with him), the rationale used in Miller has been the basis for all
gun control laws since 1939. As the GPO
page notes, “At what point regulation or prohibition of what classes of
firearms would conflict with the Amendment, if at all, the Miller case
does little more than cast a faint degree of illumination toward an
answer.”
Both contemporary interpretations are correct, in a way. As illustrated in
the first section, the amendment does appear to have been designed to protect
the militias, and it was also designed to protect an individual’s right to own
and bear a gun. The question, then, is do we have to adhere to both tenets of
the amendment today? If we decide to do away with the individual ownership
aspect of the Amendment, reinterpreting the amendment to allow highly
restricted gun ownership, we seem to open the door to radical reinterpretation
of other, more basic parts of the Constitution. If we decide to do nothing, and
allow unrestricted gun ownership, we run the risk of creating a society of the
gun, a risk that seems too great to take. So the real question seems to be, can
we have the a constitutional freedom to bear arms, and still allow restriction
and regulation?
Reasonable restrictions do seem to be the way to go, acknowledging the
Amendment, but molding it, as we’ve done with much of the Constitution. After
all, we have freedom of speech in the United States, but you are not truly free
to say whatever you wish. You cannot incite violence without consequence; you
cannot libel someone without consequence; you cannot shout “Fire!” in a crowded
theater without consequence. Why cannot gun ownership by similarly regulated
without violating the Constitution? Of course, prosecution for speech
violations only take place after the fact, and regulation of gun ownership is
necessarily different — it is a “prior restraint,” a condition rarely
allowed in speech restrictions, but necessary in gun restrictions.
The trick is finding that balance between freedom and reasonable regulation,
between unreasonable unfettered ownership and unreasonable prior restraint. Gun
ownership is indeed a right — but it is also a grand responsibility. With
responsibility comes the interests of society to ensure that guns are used
safely and are used by those with proper training and licensing. If we can
agree on this simple premise, it should not be too difficult to work out the
details and find a proper compromise.
In 2007, the United States Court of Appeals for the District of Columbia
Circuit ruled in the case of Parker v District of Columbia. In the case,
the court ruled that D.C. laws that essentially prohibit the private ownership
of handguns within the District, were unconstitutional. Specifically, the
appellants, residents of D.C., were denied their 2nd Amendment rights by laws
that bar the registration of handguns by anyone except retired D.C. police
officers; that bar the carrying of a pistol without a license, even within
one’s home; and that require that lawfully owned firearms be kept unloaded and
disassembled unless used for “lawful recreational purposes.”
The Court found that in spite of the first part of the 2nd Amendment —
that which refers to the militia — “the Second Amendment’s premise is
that guns would be kept by citizens for self-protection (and hunting).” The
court acknowledged the history the militia played in the creation of the 2nd
Amendment, but did not allow the militia to be sole measure to be viewed when
looking at these laws restricting gun ownership and reasonable use. Parker, the
court ruled, should be allowed to keep handguns in his home.
The case, filed as District of Columbia v Heller, was granted
certiorari by the United States Supreme Court, and was heard in March, 2008. At
issue were two questions. The first, raised by the District, is whether the
District is forbidden by the Second Amendment to ban the possession of handguns
while allowing the possession of rifles and shotguns. The second, broader issue
is raised by Heller (another of the original petitioners in the Parker case):
whether the Second guarantees that guns, including handguns, can be kept in
homes by law-abiding citizens. The Court decided that the issue it should hear
is “Whether the [D.C. laws] violate the Second Amendment rights of individuals
who are not affiliated with any state-regulated militia, but who wish to keep
handguns and other firearms for private use in their homes?”
The Supreme Court ruled on the Heller case at the end of its term in
June, 2008. The Court, which found for Heller in a close 5-4 decision, wrote
that the 2nd Amendment did, in fact, protect an individual right. While the
court was careful to note that the case did not call into question any laws
that regulate guns, it did state, unequivocally, that Heller and his fellow
petitioners had a right to own guns in their home. The Court also ruled that
while reasonable regulation may be permitted, the requirement that guns be
locked and disassembled was not reasonable. The Court finally noted that its
ruling affected only the District of Columbia, as a federal enclave.
Another case wss decided by the Court in 2010. In McDonald v Chicago,
the constitutionality of restrictive local and state gun control laws was
challenged. The case specifically challenged four limits placed on handgun
registration by the city of Chicago and a suburb, Oak Park: a ban on the
registration of handguns; that all guns must be registered prior to purchase;
that all guns must be reregistered annually; and that any lapse in a gun’s
registration renders the gun permanently unregisterable. The plaintiffs in the
case asked the Court to not only render the regulations unconstitutional, but
to overrule the rule of selective incorporation the Court has used since the
late 1800’s.
The Court ruled that the Chicago regulations were unconstitutional, and that
the rights previously found in the Heller case were individual rights
that also applied to state and local governments. Justice Samuel Alito, writing
for the majority, was matter-of-fact in his conclusion: “In Heller, we
held that the Second Amendment protects the right to possess a handgun in the
home for the purpose of self-defense. Unless considerations of stare decisis
counsel otherwise, a provision of the Bill of Rights that protects a right that
is fundamental from an American perspective applies equally to the Federal
Government and the States. We therefore hold that the Due Process Clause of the
Fourteenth Amendment incorporates the Second Amendment right recognized in
Heller.”
The Court refused, however, to abandon the selective incorporation process.
It also refused to remove all gun restrictions, recognizing that some, such as
restrictions against felons and the mentally ill and geographical restrictions,
were constitutional.
Recognizing that the need to arm the populace as a militia is no longer of
much concern, but also realizing that firearms are a part of our history and
culture and are used by many for both personal defense and sport, this site has
proposed a new 2nd Amendment — an amendment to replace the 2nd Amendment
to the Constitution. This proposed text is offered as a way to spark discussion
of the topic.
Section 1. The second article of amendment to the Constitution of the
United States is hereby repealed.
Section 2. The right of the people to keep arms reasonable for hunting,
sport, collecting, and personal defense shall not be infringed.
Section 3. Restrictions of arms must be found to be reasonable under
Section 2 by a two-thirds vote of Congress in two consecutive sessions of
Congress before they can be forwarded to the President for approval.
This proposed amendment is a truer representation of how our society views
our freedom to bear arms. Because “reasonableness” can be far too elastic, the
two-Congress restriction requires that two Congresses in a row pass the same
bill — this allows both thoughtful reflection and for the opinions of the
people, to be expressed between these votes, to be heard (both at the ballot
box and in general). It is an unusual, but not unprecedented, way of passing
legislation. Finally, the courts would have the ultimate authority in
determining if a restriction is not reasonable, providing a final layer of
protection (after the two pairs of debate in the House and Senate and the
President’s own agreement). The militia is removed from the equation, greatly
clarifying the purpose of the amendment.
Historical note: in Section 2, the “collecting” clause was added, and
Section 3 is a replacement for “The Congress shall have power to enforce this
article by appropriate legislation” after concerns over “reasonableness” were
examined more fully.
For further research, here are some links on both sides
of the issue. Please note that these sites are outside the control of this
site, and broken links may arise. Please contact the
Webmaster if you do notice any broken links.
- Our
2nd Amendment: The Original Perspective - Federal
Court Cases Regarding The Second Amendment - Firearm
Facts - Guarantees
of the Right to Keep and Bear Arms In State Constitutions - The
Founders, Not the NRA, Originated the “Myth” of the People Armed and
Free
Brady Campaign to Prevent Gun
Violence:
- Unintended
Consequences: What the Supreme Court’s Second Amendment Decision in D.C. v.
Heller Means for the Future of Gun Laws - Guns and
Hate: A Lethal Combination
And from other sources:
- Interpreting the
Right to Bear Arms � Gun Regulation and Constitutional Law from the New
England Journal of Medicine - What the
Supreme Court Has Said about the Second Amendment from the Independence
Institute - Commonplace Or
Anachronism from The Potowmack Institute - The High Road, a pro-gun message
board for discussion and debate
It is often useful to not only try to interpret what the
words of a part of the Constitution mean today, but also to see what they meant
in the past. Proponents of the Original Intent
method of interpretation always use the original meaning when looking at the
Constitution. But even those who do not adhere to Original Intent still find
the documentary history to be useful.
What follows are mentions of the right to bear arms in the documents leading
up to the codification of the 2nd Amendment. Most are referenced on this site
or others. Those that are not are transcribed from the publication The Bill
of Rights (National Archives and Records Administration, 1980).
From the Virginia Declaration of Rights (1776):
That a well regulated militia, composed of the body of the people, trained to
arms, is the proper, natural, and safe defense of a free state…
From the Vermont
Constitution (1777): That the people have a right to bear arms for the
defence of themselves and the State…
From the Articles of Confederation (1781):
…every State shall always keep up a well-regulated and disciplined militia,
sufficiently armed and accoutered, and shall provide and constantly have ready
for use, in public stores, a due number of field pieces and tents, and a proper
quantity of arms, ammunition and camp equipage.
From the New Hampshire Ratification Document
(1788): Congress shall never disarm any citizen, unless such as are or
have been in actual rebellion.
From the Virginia Ratification Document (1788):
That the people have a right to keep and bear arms; that a well regulated
militia composed of the body of the people trained to arms, is the proper,
natural and safe defence of a free state… That any person religiously
scrupulous of bearing arms ought to be exempted upon payment of an equivalent to
employ another to bear arms in his stead.
From the New York Ratification Document (1788):
That the people have a right to keep and bear arms; that a well-regulated
militia, including the body of the people capable of bearing arms, is the
proper, natural, and safe defence of a free state.
From Madison’s Introduction of the Bill of Rights
(1789): The right of the people to keep and bear arms shall not be
infringed; a well armed and well regulated militia being the best security of a
free country; but no person religiously scrupulous of bearing arms shall be
compelled to render military service in person.
From the Report of the House Committee of Eleven (1789):
A well regulated militia, composed of the body of the people, being the best
security of a free State, the right of the people to keep and bear arms shall
not be infringed, but no person religiously scrupulous shall be compelled to
bear arms.
From the amendments as passed by the House (1789): A well regulated
militia, composed of the body of the People, being the best security of a free
State, the right of the People to keep and bear arms, shall not be infringed,
but no one religiously scrupulous of bearing arms, shall be compelled to render
military service in person.
From the amendments as passed by the Senate (1789): A well regulated
militia, being necessary to the security of a free State, the right of the
people to keep and bear arms, shall not be infringed.
From the Rhode Island Ratification Document (1790):
That the people have a right to keep and bear arms; that a well-regulated
militia, including the body of the people capable of bearing arms, is the
proper, natural, and safe defence of a free state…