Welcome back to Day Two of our series, in which we study the Constitution together. Today, we will cover the Second Amendment.
The Second Amendment states: 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 Amendment is quoted incorrectly rather often, so let’s dig into it.
During the Constitutional Convention, the Framers understood the necessity of a citizen militia to resist a potentially oppressive military if constitutional order broke down. The Second Amendment codified (arranged laws) the individual right to firearm possession to combat this fear. Let us also interject here the phrase, “The Second Amendment is my God-given right.” This is also false. The Second Amendment is a Constitutional right, under the correct circumstances.
The Second Amendment does not, and never has, guaranteed a constitutional right for *every* individual American to own guns.
A WELL-REGULATED MILITIA refers to a government-organized force of citizen soldiers for the defense of the state, subject to a plan of organization, arms, and discipline.
The term “militia” often confuses people, so to break that down, it means a military force that is raised from the civil population to supplement a regular army in an emergency.
SECURITY OF A FREE STATE refers to security against invasion, insurrection, and civil unrest, for the protection of public liberty.
THE RIGHT OF THE PEOPLE – Under the system, “the people” has three meanings in the Constitution: “We the People of the United States,” the people of each state, or individuals. Which meaning is in use is determined by context. In the case of the people’s right to keep and bear arms, it means the people as a collective represented by state legislatures, that is, the States.
KEEP AND BEAR ARMS – Refers to maintaining and arming militia, kept in military readiness for public defense.
SHALL NOT BE INFRINGED – This is a term of art for protecting sovereign or public rights, in contrast to “abridged,” the term of art used in the First Amendment to protect individual or private rights.
At the time of the Bill of Rights, people were apprehensive and nervous about the new national government presented to them, so this helps explain the language and purpose of the Second Amendment. A huge national defense establishment has assumed the role of the militia of 200+ years ago. Americans have a right to defend their homes, and nothing should undermine this right. That said, there are some things we need to address.
In 2008, the Supreme Court listened to the District of Columbia v. Heller. (You can search this case, 554 U.S. 570). The Primary holding: Private citizens have the right under the Second Amendment to possess an ordinary type of weapon and use it for lawful, historically established situations such as self-defense in a home, even when there is no relationship to a local militia. Copied from Justia, U.S. Supreme Court, the case commentary, “This decision may have less dramatic an impact than some observers initially expected. It did lead to a surge of litigation in lower federal courts regarding gun control laws. Most of these lawsuits have failed, however, and states still have the right to prevent criminals, undocumented immigrants, drug addicts, and other high-risk groups from gaining access to weapons. Contrary to Justice Breyer's fears, the group of weapons that is deemed constitutional for individual use has not expanded to machine guns or other types of unconventional weapons. School zones and areas around federal buildings still can be subject to restrictions, and concealed carry laws as well as laws against straw purchases generally were left intact.”
In 2008, the Supreme Court ruled on the Second Amendment for the first time in almost 70 years after Dick Heller sued the District of Columbia over its ban on handguns in the home. The court ruled in Heller’s favor, affirming an individual right to keep handguns in the home for self-defense.
Since Heller, lower courts have upheld a wide range of gun laws as constitutional, including:
- Laws restricting the concealed and open carry of loaded guns in public.
- Bans on assault weapons, large capacity magazines, and silencers.
- Extreme risk protection orders and other prohibitions on dangerous people possessing guns.
- Firearm design safety standards.
- Safe storage requirements.
- Waiting period laws.
- Private-sale background checks and licensing laws.
If you search court cases or legal sites, you will read over and over how contentious a topic the Second Amendment is. Some people believe it provides an absolute right to own weapons, while others argue that its text limits the right to bear arms to purposes related to serving in a state militia. The Supreme Court issued very few opinions on the topic until 2008. Then it found the Heller case, as mentioned above.
So what was the original intent of the Second Amendment? Some historians argue that the primary reason was to prevent the need for the United States to have a professional standing army. Alexander Hamilton argued this point in the Federalist Papers. Others say the fear of a standing army is the reason for the Second Amendment protections. That is, they say the citizens’ right to bear arms served as a necessary check in case of a tyrannical government.
Regarding current-day conversations about carrying, and when and where you can carry, if a state allows for concealed carry, it is not illegal to be outside and carrying concealed. So if your state grants concealed carry (or even open carry), you are legally permitted to carry, assuming you do not fall under any of the exceptions listed above. You can search what your individual state laws are on the website of your state’s Attorney General’s office.