How the Second Amendment Works
By: Patrick J. Kiger
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In a March 2018 New York Times opinion essay, retired U.S. Supreme Court Associate Justice John Paul Stevens put forward a startling proposal. In the wake of the Feb. 15 school shooting in Parkland, Florida in which 17 people were killed by a teenage gunman, Stevens applauded demonstrators marching in support of stricter gun-control laws. But Stevens argued that merely banning military-style semiautomatic rifles, increasing the minimum age for purchasing guns and imposing more thorough background checks wouldn’t be enough to prevent more deaths.
Instead, Stevens proclaimed, the marchers should demand a repeal of the Second Amendment to the U.S. Constitution, which guarantees the right to bear arms.
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Stevens’ proposal immediately provoked an emphatic response from President Donald Trump, a supporter of gun rights, who tweeted in all uppercase — the online equivalent of shouting — that “THE SECOND AMENDMENT WILL NEVER BE REPEALED!”[source: Lopez].
A public argument between a former justice and the nation’s chief executive would have been a remarkable moment, except that Americans in recent decades have grown accustomed to debates on the Second Amendment provoking intense feelings and bitter strife. The object of the controversy is a single, 27-word sentence written in the late 1700s:
And despite the furor it provokes today, for most of American history, the amendment got relatively little attention. “Few citizens understood its provisions,” legal scholar Michael Waldman wrote in his 2014 book, “The Second Amendment: A Biography.” “Scholars paid it little attention. Lawyers rarely raised it in court.”
But that began to change in the last 50 years with the rise the gun rights movement, led by the National Rifle Association and embraced by conservative politicians. In 2008, a U.S. Supreme Court decision, District of Columbia v. Heller, shifted the focus away from “a well regulated militia” and interpreted the amendment as guaranteeing the individual right to own a firearm for protection, a meaning that Stevens and other critics have claimed is vastly different from what those 27 words originally meant [source: Stevens].
Others, in turn, have argued that the amendment always was meant to guarantee that Americans could keep their guns, free of government interference [source: NRA-ILA]. In this article, we’ll look at the evolution of the Second Amendment, and the history of the debate over its meaning.
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According to Second Amendment historian Michael Waldman, the amendment’s roots actually go back to England, where there was a longstanding tradition of owning guns for the purpose of serving in local militias. Males between the ages of 16 and 60 were expected to train with the militia, and they were required (not merely allowed) to bring their own weapons.
In the American colonies, where potential security threats included Native Americans and the French, militias quickly became an important institution. Again, the citizen militiamen not only were required to join, but also had to buy guns as well. If they couldn’t afford them, the militia would lend them the money. Although every white man was supposed to participate, the wealthy and the well-connected found ways to wriggle out of service.
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But when the colonists started to resist England’s efforts to impose taxes upon them in the 1760s, the American militias started to take on a different purpose. They became an integral part of that resistance — an armed citizenry that was prepared to challenge the British. In the war for independence that ensued, the militias played an important role.
Colonial legislatures began enacting new constitutions that enshrined the militias and their right to bear arms. Virginia’s 1776 Declaration of Rights, for example, specified that a “well-regulated militia, composed of the body of the people, trained to arms,” was necessary for the colony’s defense. Pennsylvania similarly passed a charter decreeing that “the people have a right to bear arms for the defense of themselves and the state” [source: Waldman].
Once America won its independence and the framers began to work on the U.S. Constitution, the role of the militias became an issue. Some saw the new federal government’s power to raise an army as a potential threat to liberty and wanted the states to continue to have their own armed forces as well. In 1789, when James Madison drew up his proposed changes to the document — which evolved into the Bill of Rights — he included an amendment that specified that the people had the right to bear arms, and that “a well armed and well regulated militia” was in the interests of a free country. Madison also included in the amendment an exemption for those who didn’t want to serve in the militia because of their religious beliefs.
That exemption would become controversial when the amendment was considered by the House and Senate. Ultimately, a Senate committee reworked the amendment, removing the “well armed” and the religious exemption and creating the wording that ultimately made its way into the Bill of Rights [source: Waldman].
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The Second Amendment‘s inclusion of the preface about a well-regulated militia has led some to argue that its authors were mostly concerned about preserving militias as a check upon federal power. But others counter that the nation’s founders also believed in an individual right to own a firearm. They point, for example, to Patrick Henry’s statement in Virginia’s constitutional debates that “The great object is, that every man be armed” [source: NRA-ILA].
But for much of the nation’s history, that didn’t matter, because guns were mostly thought of as an issue for the states. In the early 1800s, states tried to curb the custom of fighting duels and prevent squabbles among citizens from erupting into bloodshed by passing some of the first gun control laws. Those laws usually restricted pistols and knives, weapons that — unlike a musket — were easily concealed under a person’s clothing.
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Some citizens challenged those laws in court as being in violation of their rights, but in most cases, they lost. An 1840 court ruling in Alabama, for example, upheld the state’s right to determine where and how citizens could carry guns, and noted that even though the state constitution also contained a right to bear arms, it was not a right “to bear arms upon all occasions and in all places” [source: Jancer].
In the 1842 case State v. Buzzard, the defendant was charged with carrying a concealed weapon, which was against Arkansas state law and he said the law infringed on this Second Amendment rights. The Arkansas Supreme Court ruled that both the Second Amendment and the state’s constitution, which guaranteed white men the right to bear arms “for their common defense,” really only applied to militias, and the “well regulated” clause meant that this right could be restricted for the common good [source: Pruden]. That ruling helped spread something called the collective rights theory, which we’ll explain later.
After the Civil War, the Second Amendment took on a new significance. In the South, where African-Americans who were supposed to be equal under the Fourteenth Amendment now faced the threat of violence from whites, Republicans in Congress passed the Civil Rights Act of 1866 partly with the intention of assuring blacks the right to possess guns to protect themselves. Some scholars have argued that moment was when the right to bear arms started to evolve from militia membership into an individual right to self-defense, though that question wouldn’t be settled by the Supreme Court for nearly another 150 years [source: Waldman].
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The idea that the Second Amendment only guaranteed a state’s, rather than an individual’s, right to bear arms is known as the collective rights theory. To legal scholars who embrace that interpretation, it means that local, state and federal legislators have broad authority to regulate firearms, including who can own them, what types they can own and what they can do with them. (The opposing view is the individual right theory, which says that the Second Amendment prevents legislative bodies from prohibiting or restricting a person’s possession of firearms) [source: Cornell].
This didn’t become significant until 1934, when Congress — in an effort to stop violence by heavily armed criminal gangs — passed the National Firearms Act, requiring the registration and taxation of machine guns and certain other weapons [source: ATF]. Five years later, in United States v. Miller, the U.S. Supreme Court ruled in the case of two bank robbers who’d been charged with violating the act, “in the absence of any evidence tending to show that possession or use of a [sawed-off] shotgun … 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” [sources: LOC, Frye ].
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The Supreme Court’s apparent embrace of the collective rights theory seemed to give Congress and the states wide leeway to regulate guns. That view didn’t get much of a challenge for several decades. But then, in the late 1960s, amid fear of rising violence in cities and increasing racial strife, there was a surge in people wanting to arm themselves, particularly in conservative parts of the country.
By the late 1970s, the National Rifle Association, once primarily a sports shooting group, had morphed into an increasingly vocal force advocating the individual right to possess a firearm for protection. And the Republican Party, which in 1972 actually advocated gun control in its presidential platform, shifted to opposing firearms registration in 1980 [source: Waldman].
Those shifts started a debate on the meaning of the Second Amendment, which would culminate in a landmark 2008 U.S. Supreme Court case.
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The legal meaning of the Second Amendment changed significantly, as a result of the lawsuit District of Columbia v. Heller. It started when a security guard in Washington, D.C. challenged the district’s strict gun control laws, which essentially prevented him from keeping a firearm in his home for self-defense [source: Duggan].
The lawsuit eventually reached the U.S. Supreme Court, whose 2008 ruling was the first since the Miller case in 1939 to actually interpret what the Second Amendment meant. The court decided that the Second Amendment gave an individual the right to possess a gun for traditionally lawful uses, in particular self-defense. In doing so, the Supreme Court invalidated two parts of the district’s law: the ban against handgun possession, and another provision that compelled those who owned weapons that predated the law to either disassemble them or use trigger locks. It found that those rules violated gun owners’ rights, because they hindered self-defense [source: LOC].
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In the majority opinion, the late Justice Antonin Scalia wrote that the amendment’s prefatory clause — the part that talks about “a well regulated militia” — didn’t limit the operative clause, which delineated a “right of the people to keep and bear arms” similar to other amendments that used the phrase.
But at the same time, Scalia also noted that the right to bear arms wasn’t completely without limits. “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,” he wrote [source: Cornell].
A subsequent 2010 Supreme Court decision, McDonald v. City of Chicago, found that the rights recognized in Heller also applied to states and local governments [source: LOC].
But while both of these rulings established that individuals have the right to arm themselves for self-defense, neither cleared up the stickier question of whether the Second Amendment entitled them to carry weapons for protection outside their homes. Federal appellate and state high courts had taken different positions on that issue.
The Supreme Court had declined, in a 2017 case called Peruta v. California, to rule on the issue. But justices Clarence Thomas and Neil Gorsuch indicated that they believed the Second Amendment extended to carrying weapons for protection in public places as well. The justices wrote, in a dissent from the denial of certiorari for the case, that they found it “extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.” To believe that, the justices wrote, would be to conflate “bearing” arms with “keeping” them [source: Volokh].
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Justice Stevens’ startling advocacy of repealing the Second Amendment provided ammunition to gun rights supporters such as President Trump, who in a February 2018 speech at CPAC claimed that if his Democratic opponents gained control of Congress in the 2018 midterm elections, “they’ll take away your Second Amendment” [source: Cillizza].
In truth, there’s been no indication that Democratic politicians are considering such a move. The party’s 2016 platform did call for measures such as expanding background checks for gun purchases, but it also stated that “we can respect the rights of responsible gun owners while keeping our communities safe.”
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And political rhetoric aside, it seems unlikely that the Second Amendment will ever be repealed. For one thing, it’s complicated and difficult to take something out of the Constitution. Such a move first would have to be approved by two-thirds of both the U.S. House and the U.S. Senate, and then by 38 of the nation’s 50 state legislatures.
From 1789 through 2016, an estimated 11,699 changes to the Constitution were proposed in Congress, but only one amendment has ever been repealed — the 18th Amendment imposing Prohibition, which was enacted in 1919 and subsequently repealed in 1933 by ratification of the 21st Amendment [source: Bomboy].
And unlike the repeal of Prohibition, which was widely supported by the public, most Americans don’t want to repeal the Second Amendment. A February 2018 Economist/YouGov poll, for example, found that only 21 percent of Americans favored repeal. In contrast, 60 percent of the public opposed removing the amendment [source: Economist/YouGov].
But while a strong majority of Americans want the right to bear arms to continue to be enshrined in the Constitution, the Economist/YouGov poll found that nearly half — 46 percent — favored the idea of modifying it to allow stricter regulation of guns, versus 39 percent who want it to stay unchanged [source: Economist/YouGov].
It’s unclear, though, how the Second Amendment could be revised without going through the arduous process of passing another constitutional amendment. That means that, for the foreseeable future at least, the Second Amendment probably will remain as it is now, and it’ll be up to the Supreme Court to decide what the right to bear arms actually means.
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The Second Amendment is the section of the Constitution that stirs up the most powerful feelings and the most impassioned debate. That makes it a challenging subject to write about.
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