Investigating the Second Amendment

Image of a Revolver - Second Amendment and Guns
Image of a Revolver - Second Amendment and Guns. Getty Images / Image Source

The Second Amendment to the United States Constitution provides “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.”  This extremely short in word length amendment often referred to as the “Right to Bear Arms”, is one of the most contentious of the amendment. It can also be very difficult to understand.

When the Constitution was drafted as a replacement of the Articles of Confederation, the Federalists hoped to establish a stronger form of government for the United States.

 However, the Anti-Federalists argued that the Constitution, as drafted, would lead to a tyrannical federal government and they also objected that it did not contain any individual freedoms or rights which was commonplace in state constitutions at the time and which was also contrary to the British constitution that did not contain any written protections.

In addition, the Constitutional Convention took into consideration the unreliability of militia during the American Revolutionary War in deciding that there was not only a need for a federal standing army during peacetime and that the individual state militias needed to be regulated.  However this decision resulted in the Anti-Federalists being concerned that the Constitution would make the states indefensible against federal oppression, but the Federalists argued that since American citizens would keep their right to be armed, it would be very difficult for a federal army to subjugate them with the use of military force.

 Therefore, it was assumed that the federal government would not have the power to disarm the American public.

During the ratification process, several states, led by Massachusetts, argued that the Constitution did not provide individuals the basic rights which the British had refused them. These states also complained about the lack of powers for the individual states.

Therefore, a concession was made that resulted in the “Bill of Rights.” These encompass the first ten amendments to the Constitution and were ratified on December 17, 1791.

While the Second Amendment did nothing to quell Anti-Federalists’ concerns about federal oppression, it did establish that the federal government could not invade the public’s right to bear arm, just as other amendments provided additional individual rights to citizens such as the freedom of speech or the free exercise of religion.

The modern day debate that surrounds the Second Amendment pits those who believe that the Amendment provides for an unlimited right to bear arms and, therefore, prohibits both the federal government and the individual states from enacting any gun-control legislation whatsoever against those who argue that the words “well-regulated militia” mean that our founding fathers recognized the need for gun control.

Those who favor gun control use the dissenting opinion from the 2008 U.S. Supreme Court case District of Columbia v. Heller to support their position.  In Heller, a 5 to 4 majority struck down a law that prohibited people from possessing a handgun within the District of Columbia holding that based on its’ express language and history, the Second Amendment protects the private right of individuals to possess arms for their defense, as opposed to the right of the individual states to keep a militia.

 
The dissent opined that only a nominal individual right is protected by the Amendment – one that solely protects “the right of the people of each of the several States to maintain a well-regulated militia.”   They further stated that even if the majority were correct about individual’s right to possess firearms for their own defense, the government should have the ability ban firearms in certain high-crime areas.

While Heller involved a federal law, in 2010 the Supreme Court struck down a state law involving firearms in McDonald v. City of Chicago finding that the Second Amendment applies to the individual states as well as to the federal government.

Since 1791, the individual states no longer have militias. At the same time, the Anti-Federalists concerns of federal usurpation through the use of military force has dissipated.

 Also, there also has been a significant change in the types of firearms that are manufactured, especially those made for personal versus military use.

Obviously, the right to bear arms contained in the Second Amendment is not unfettered since there are valid laws which prohibit convicted felons possessing firearms and making possession of firearms illegal in certain places such as schools, airports, banks and other sensitive places. Nonetheless, the debate continues concerning the exact limits that need to be placed on the interpretation of the second amendment. 

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Kelly, Martin. "Investigating the Second Amendment." ThoughtCo, Jan. 30, 2016, thoughtco.com/investigating-the-second-amendment-105419. Kelly, Martin. (2016, January 30). Investigating the Second Amendment. Retrieved from https://www.thoughtco.com/investigating-the-second-amendment-105419 Kelly, Martin. "Investigating the Second Amendment." ThoughtCo. https://www.thoughtco.com/investigating-the-second-amendment-105419 (accessed December 13, 2017).