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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.
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 ). 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.
And from other sources:
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...
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