2nd Amendment

The Second Amendment to the United States Constitution recognizes the need for a “well regulated Militia” to secure a free nation, and the right of the people to “keep and bear arms” for that purpose. The Amendment, adopted on December 15, 1791, as party of the Bill of Rights, pertains to the rights of individuals under federal law, but is not without limitations.  To explore this concept, consider the following Second Amendment definition.

Definition of Second Amendment

1. noun. An Amendment to the United States Constitution that gives citizens the right to keep and bear arms.

Origin    Adopted on December 15, 1791

Second Amendment and the English Bill of Rights

Prior to the approval of the United States Constitution, U.S. law was based largely on the English Bill of Rights of 1689. This Bill of Rights declared that weapons are allowed by law, but it did not prevent the government from disarming people if they were considered dangerous to themselves or others. While there is no question that the Second Amendment was heavily influenced on English law, many Americans believe that its abbreviated language is subject to interpretation.

The Second Amendment specifically does not prohibit the government’s ability to regulate firearms or other similar devices, nor ownership of them.  The Second Amendment builds on the belief that people have the right to self defense, and a civic duty to act in defense of the country.

History of English Rights in America

As British settlers began claiming land in America, they carried with them the belief that they had a right to bear arms, participate in law enforcement, and to organize a militia system. In the 1760s, colonists who had formed militias split into two factions: the “Loyalists” who supported British rule, and the “Patriots,” who promoted independence.

As Loyalist militias began to stockpile arms, the British Parliament placed an embargo on firearms, ammunition, and parts to create both on the American colonies. Patriots protested the Crown’s attempt to disarm their militias, claiming they had a common law right to self defense. This dispute in the early American Revolution sparked a debate over the right to bear arms, which eventually became a part of American law, and for many continues today.

Background of the Constitution and the Bill of Rights

The U.S. Constitution is regarded as the highest law in the nation, and all other laws created are based on its framework. Not only does the Constitution outline the creation of the government, but it lists the rights afforded to the people.

The Constitution came about when a group of politicians, also known as the “Framers of the Constitution,” came together for the purpose of defining the rights of the citizens. This group of men included James Madison, George Washington, and Ben Franklin, who met at a Convention from May to September of 1787.

Once the Framers agreed on the language of the Constitution, it needed to be approved by each of the 13 states, though once approved by the first 9 states, the Constitution was considered ratified. Because the Framers knew the Constitution was not, and could never be perfect, they created an amendment process so that changes could be made as needed.

Many people originally opposed the Constitution because it lacked provisions that protected people from acts of the government. In 1791, Congress approved the Bill of Rights that had been proposed years earlier.

What is the Second Amendment

James Madison proposed the Bill of Rights to the House of Representatives on June 8, 1789. The proposal included the right of the people to bear arms and a right to form a well-regulated militia in order to maintain the security of the country. Madison raised the issue again the following month, this time proposing that a committee be created in order to report upon the bill.

The House agreed, and the established committee rewrote the Second Amendment, which was approved on August 17, 1789. That same month, the House debated the Amendment and made additional changes to it, mainly concerning the formation of a militia. On August 24, 1782, the modified version made its way to the Senate. After a few more changes were made, and the Bill of Rights was returned to the House where the changes were accepted on September 21, 1789. The Bill of Rights was officially adopted as part of the United States Constitution on December 15, 1971.

Immediate Response to the Second Amendment

After Congress ratified the Second Amendment, public opposition quickly began. Federalists and Anti-Federalists both showed reluctance to creating militias, which were essentially armed police forces. In 1792, however, Congress passed an act designed to establish police forces throughout the country. It also established rules and regulations for enrolling into a militia, which became known as the “draft.”

In 1794, the first major test against the Second Amendment took place when a group of Pennsylvania Farmers decided to rebel against federal tax collectors, whom they saw as agents of tyrannical power. Four states joined with Pennsylvania to suppress the uprising, but they failed. This was only the beginning of the failures and losses that the country’s militia would experience in the next 20 years. These losses led to the reform of the police and military throughout the United States.

Controversy

Though many early reforms and changes took place concerning the police forces and the militia, controversy surrounding the Second Amendment continues to be a part of American society. Some groups have interpreted the Amendment as the right of each state to maintain and form their own militia units in order to keep themselves protected from the infringement of the federal government. Their standpoint is that the right to bear arms is only a right afforded to organized groups of militia, and that the federal government cannot abolish or regulate these “state militias.”

The opposition believes that the Second Amendment gives citizens the undeniable right to bear arms, and that state and federal governments cannot restrict these rights.

Both sides of the argument have long contributed to the Second Amendment gun control debate that remains a central issue in the U.S. Some groups have even organized to fight for what they believe. An example is the National Rifle Association, which argues that all people have the right to own a gun, and that there can be no restriction on the types of firearms citizens own. On the opposite end of the spectrum is the Brady Campaign, which supports strict gun control. This group believes that the government should determine who owns a gun, which guns they can own, and the conditions afforded to them.

Supreme Court Rulings on Second Amendment Rights

The controversy over the Second Amendment does not end with public opinion or organized groups, as the Supreme Court has heard several cases concerning the issue. It is likely that the courts will continue hearing cases and issuing judicial decisions pertaining to the right to bear arms, as it remains a highly debated topic around the country.

U.S. v Cruikshank

In 1876 case of U.S. v Cruikshank, the U.S. Supreme Court made one of its first rulings on the issue of gun control. In this case, the concerned Ku Klux Klan members refusing black citizens their basic rights, including the right to bear arms. The court ruled in favor of the Klan by stating that the Constitution did not specifically state that each person was entitled to the right to bear arms.

In 1886, the court ruled again on the subject during the case of Presser v Illinois. This decision backed up the Court’s previous decision by stating that the Second Amendment pertained only to the federal government’s limitation of gun ownership, and not to the rights of each individual state.

Miller v Texas

In 1894, another ruling came about in Miller v Texas. This case involved an argument by a man named Franklin Miller that his right to carry a concealed firearm was granted by the Second Amendment regardless of any state laws. The court disagreed with Miller, stating that the Amendment did not pertain to state laws.

United States v Jack Miller

In the 1939 case of United States v Jack Miller, police arrested known bank robber Jack Miller and his associate, Frank Layton, for carrying an unregistered gun across state lines, which was prohibited by the National Firearms Act. The men claimed that the Act violated their Second Amendment rights, but the court disagreed. The court ruled that the Amendment allows the government to regulate ownership of certain types of firearms, including fully automatic firearms and short-barreled rifles and shotguns.

District of Columbia v Heller

The 2008 case of the District of Columbia v Heller involved Dick Heller, a Washington D.C. police officer, who challenged the capital’s ban on handguns. This landmark Supreme Court decision held that the Second Amendment protects the right of individuals to possess firearms for traditionally lawful purposes, such as self defense within the home. This was the first Supreme Court ruling protecting individual rights to keep and bear arms for self defense.

McDonald v Chicago

The 2010 landmark case of McDonald v Chicago arose from the argument of three men that the state of Illinois’ ban on registered handguns violated their Second Amendment rights. The U.S. Supreme Court determined that the right of individuals to keep and bear arms is indeed incorporated by the Due Process Clause of the Fourteenth Amendment, and therefore applies to the states as well as the federal government.

Related Legal Terms and Issues

• Bill of Rights – The name given to the first 10 amendments to the Constitution of the United States.
• Judicial Decision – A decision made by a judge regarding the matter or case at hand.
• Militia – A military force composed of members of the civil population, trained like soldiers to supplement a regular army in an emergency.