History of the Second Amendment
The Second Amendment provides U.S. citizens the right to bear arms. Ratified in December 1791, the amendment says:
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.
James Madison originally proposed the Second Amendment shortly after the Constitution was officially ratified as a way to provide more power to state militias, which today are considered the National Guard. It was deemed a compromise between Federalists — those who supported the Constitution as it was ratified — and the anti-Federalists — those who supported states having more power. Having just used guns and other arms to ward off the English, the amendment was originally created to give citizens the opportunity to fight back against a tyrannical federal government.
Interpretations of the Second Amendment
Since its ratification, Americans have been arguing over the amendment's meaning and interpretation. One side interprets the amendment to mean it provides for collective rights, while the opposing view is that it provides individual rights.
Those who take the collective side think the amendment gives each state the right to maintain and train formal militia units that can provide protection against an oppressive federal government. They argue the "well regulated militia" clause clearly means the right to bear arms should only be given to these organized groups. They believe this allows for only those in the official militia to carry guns legally, and say the federal government cannot abolish state militias.
Those with the opposite viewpoint believe the amendment gives every citizen the right to own guns, free of federal regulations, to protect themselves in the face of danger. The individualists believe the amendment's militia clause was never meant to restrict each citizen's rights to bear arms.
Both interpretations have helped shape the country's ongoing gun control debate. Those supporting an individual's right to own a gun, such as the National Rifle Association, argue that the Second Amendment should give all citizens, not just members of a militia, the right to own a gun. Those supporting stricter gun control, like the Brady Campaign, believe the Second Amendment isn't a blank check for anyone to own a gun. They feel that restrictions on firearms, such as who can have them, under what conditions, where they can be taken, and what types of firearms are available, are necessary.
The Supreme Court and the Second Amendment
While the right to bear arms is regularly debated in the court of public opinion, it is the Supreme Court whose opinion matters most. Yet despite an ongoing public battle over gun ownership rights, until recent years the Supreme Court had said very little on the issue.
One of the first rulings came in 1876 in U.S. v. Cruikshank. The case involved members of the Ku Klux Klan not allowing black citizens the right to standard freedoms, such as the right to assembly and the right to bear arms. As part of the ruling, the court said the right of each individual to bear arms was not granted under the Constitution. Ten years later, the court affirmed the ruling in Presser v. Illinois when it said that the Second Amendment only limited the federal government from prohibiting gun ownership, not the states.
The Supreme Court took up the issue again in 1894 in Miller v. Texas. In this case, Dallas' Franklin Miller sued the state of Texas, arguing that despite state laws saying otherwise, he should have been able to carry a concealed weapon under Second Amendment protection. The court disagreed, saying the Second Amendment does not apply to state laws, like Texas' restrictions on carrying dangerous weapons.
All three of the cases heard before 1900 cemented the court's opinion that the Bill of Rights, and specifically the Second Amendment, does not prohibit states from setting their own rules on gun ownership.
Until recently, the Supreme Court hadn't ruled on the Second Amendment since U.S. v. Miller in 1939. In that case, Jack Miller and Frank Layton were arrested for carrying an unregistered sawed-off shotgun across state lines, which had been prohibited since the National Firearms Act was enacted five years earlier. Miller argued that the National Firearms Act violated their rights under the Second Amendment. The Supreme Court disagreed, however, saying "in the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."
It would be nearly 70 years before the court took up the issue again, this time in the District of Columbia v. Heller in 2008. The case centered on Dick Heller, a licensed special police office in Washington, D.C., who challenged the nation's capital's handgun ban. For the first time, the Supreme Court ruled that despite state laws, individuals who were not part of a state militia did have the right to bear arms. As part of its ruling, the court wrote, "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."
The court would rule on the issue again two years later as part of McDonald v. City of Chicago, which challenged the city's ban on private handgun ownership. In a similar 5-to-4 ruling, the court affirmed its decision in the Heller case, saying the Second Amendment "applies equally to the federal government and the states."
In 2016, the Supreme Court again ruled on a right-to-bear-arms case, Caetano v. Massachusetts. The case involved a woman who was in possession of a stun gun for self-defense against an abusive ex-boyfriend. Because stun guns were illegal under Massachusetts law, the woman was arrested and convicted for possessing the weapon. The case made its way to the Supreme Court, which ruled that stun guns and, indeed "all instruments that constitute bearable arms," are protected under the Second Amendment.
In 2017, the Supreme Court declined to hear Peruta v. California, a gun-rights case centering around concealed carry, or the right to carry a concealed handgun in public. California requires that applicants for a concealed carry license show "good cause," such as a specific threat to a person's safety. A Vietnam veteran named Edward Peruta challenged this requirement as a curtailment of his Second Amendment rights. While Heller was a case about keeping firearms in the home for self-protection, Peruta v. California was about whether that right extends to the public sphere. Justice Clarence Thomas and new justice Neil Gorsuch dissented from the refusal to review the case, indicating that the Supreme Court's newest justice may be particularly conservative on gun rights.
Meanwhile, the battle over gun rights continues at the state level. A 2016 working paper from Harvard Business School researchers found that a mass shooting leads to a 15 percent increase in the number of firearm-related bills introduced into the state legislature that year. The more fatalities, the larger the increase in firearm bills. But the bills aren't always what you might expect: When Republicans hold power in the state legislature after a mass shooting, the number of laws enacted to loosen gun restrictions goes up 75 percent. Democrat-controlled legislatures, on the other hand, did not enact a higher rate of regulation-tightening laws immediately after mass shootings than before.
"This is consistent with survey evidence suggesting that even when a majority supports a gun-control proposal, those opposed to increased gun control are more likely to take actions like writing a letter or donating money to support their side," the researchers wrote.
Despite the recent rulings, the debate on gun control continues. Incidents like those in Aurora, CO and Sandy Hook in Newtown, CT only serve as motivation for both sides to have their opinions heard and considered.
Editor's Note: This reference article was first published on Jan. 22, 2013. It was updated with new cases and information on June 26, 2017.
The interpretation of the Second Amendment to the Constitution of the United States of America has been a topic of controversy since its acceptance over two-hundred years ago. This controversy stems from the fact that the amendment was written for reasons for the most part that do not have any relevance today. One side argues the amendment void, and the other takes it out of historical context so it portrays the meaning they want. To understand what the second Amendment means, one must interpret the actual text, the historical background for its adoption, and what it means today.
“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”(Nesbit, 309). What many people see when they read this is, ‘the right of the people to keep and bear Arms, shall not be infringed’. One can say that it clearly states that the people do have a right to have firearms. Who are ‘the people’? Some argue that the people are just what it says, citizens. “[M]any legal historians have concluded that the right is corporate rather that individual”(Hook, 30). Meaning that the right is giving to the state government not to individual citizens. Others argue that it does give people the right to bear arms, but only if you belong to a certain group.
This group is defined by the beginning preamble to the Second Amendment, ‘A well regulated Militia, being necessary to the security of a Free State’. This preamble is set out to regulate the other half of the Amendment. What is a militia? “[A] militia is a body of men enrolled for military service, and called out periodically for drill and exercises, but serving full time only in emergency”(Hook, 25). This is talking about a State sponsored militia that is well-regulated. Since there are no State Militias do the people have any right to bear Arms? According to this amendment it is up to the State to decide that. This whole Amendment is guarantee’s the state the right to have a well-regulated militia in which the people can bear arms.
“[T]he individual’s right to bear arms applies only to the preservation or efficiency of a well-regulated [state] militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected”(Nisbet, 316).
One cannot only look at the text to understand the true meaning of the Second Amendment one must also look into the historical reasons for its adoption.
The struggle with England and King George scared the American people. They saw a man corrupted by power and using his power to do evil. The founding fathers realized that one man having so much power could be corrupting. That is why they set up our political system with many checks and balances so that one branch could not dominate the other two. The founding fathers feared that the one man in control could turn out to be a tyrant. For this reason, they feared to have a standing army of professionally trained soldiers. The founding fathers set up the Second Amendment for the possibility that the government would have to be overthrown.
“[The Second Amendment,] a statement perhaps aimed less at the right of the individual to carry arms than to prohibit the establishment of a permanent army of professional soldiers who might someday offer a threat to the civilian society the envisaged”(Hook, 26).
So the second Amendment was set up to protect the citizens from the possible oppression they could undergo from their own government. It was also set up to protect us from other countries.
At the time standing armies were hired soldiers and mercenaries who for the most part fought for the money instead of the country. The founding fathers believed that state militias fighting for their country and freedom would be much more effective in battle.
“A militia is the only safe form of military power that a popular government can employ; and because it is composed of the armed [citizens], it will prevail over the mercenary professionals who man the armies of neighboring monarchs”(Nesbit,318).
This is how we won the Revolutionary War, by using state militias. The Second Amendment was important to the people then, but now does it really have any meaning?
In modern times, we have what the founding fathers feared the most, a national standing army with the President as Commander. We have no State Militias that could give any resistance if President Clinton tried to take military control and ordered troops to enforce tyrannical laws. Fortunately, this has not happened.
The problem is that firearms have been a part of this nation from the beginning. In fact Congress at that time did not even feel it necessary to put an Amendment in the Constitution because having a fire arm was as common as riding a horse. “[T]his right had not been questioned, for it was viewed as a traditional privilege lying outside the Constitution…”(Hook, 30). Having a firearm at that time was so common that they did not even think about having to legalize it. Today, is a different story. With more and more regulations on firearms being passed, the Second Amendment is the only thing groups like the NRA have to hold on to. Both sides need to sit down and find a solution to this gun-control debate. Or one day this Amendment will be interpreted at face value and fire arms in citizens hands will be a thing of the past, unless of course it is in a state sponsored militia.
As time goes on the controversy of the Second Amendment increases. When examined by the actual text, the historical background, and how it applies today, the Second Amendment has little if any relevance for modern society. Groups like the NRA and ACLU need to work together to find a solution to this gun-control debate so in the end both groups are satisfied with the results.
Nesbit, Lee. Gun Control Debate: You Decide. New York: Prometheus Books, 1990.
Hook, Donald. Gun Control: The Continuing Debate. Washington: The Second Amendment Foundation, 1992.