2nd Amendment

The Second Amendment to the Constitution contains one of the more controversial individual rights: the right to keep and bear arms. The possession and use of weapons - both for the military and for individuals - have changed significantly over the years. Below we'll learn about the history, interpretations, and Supreme Court cases related to the Second Amendment!

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Table of contents

    2nd Amendment of the Constitution

    The history of the Second Amendment goes all the way back to the English Bill of Rights, passed in 1689 during the Glorious Revolution.

    Glorious Revolution

    The American colonists were deeply impacted by England's historical events, especially the Glorious Revolution of 1689.

    At this time, the people of England were becoming increasingly disgruntled and angry at the monarchy. Instead of listening to their complaints about tyranny and abuse, King James II doubled down even harder. He disbanded parliament and enlisted the royal militia to try to squash dissidents. Most citizens didn't have their own weapons at that point, so they weren't able to defend themselves.

    Eventually, they were successful at forcing him to step down, ushering in a new era of greater influence and control for citizens. The English Bill of Rights passed in 1689 included a provision that subjects "may have arms for their defence suitable to their condition, and as allowed by law."1

    In this context, "arms" means weapons.

    American Revolution

    Fast forward to the mid-18th century. American colonists are growing disgruntled with oppressive British policies. A major grievance was the fact that King George III kept standing armies in the colonies, even in times of peace. The Declaration of Independence, written in 1776, cited this, saying "King George III... kept among us, in times of peace, Standing Armies without the Consent of our legislatures."2 The colonies didn't have their own formal armies - rather, they called for volunteers from within their community. Local militias were the first "army" to fight in the Revolutionary War.

    Civil Liberties vs Civil Rights Second Amendment Revolutionary War weapons StudySmarterFigure 1: Revolutionary War reenactors hold replicas of the types of guns that would have been used during the Revolutionary War. Source: watts_photos, Wikimedia Commons, CC-BY-SA-2.0

    States also passed their own Declaration of Rights around the same time as the Declaration of Independence. Pennsylvania's Declaration said that "people have a right to bear arms for the defence of themselves and the state," that "standing armies in the time of peace are dangerous to liberty," and that "the military should be under strict subordination to... the civil power."3 Similarly, Massachusetts' Declaration said "the people have a right to keep and to bear arms for the common defence" and that "in times of peace, armies... ought not to be maintained without the consent of the legislature."4

    Constitutional Convention

    The colonies won the right to form their own country in 1783 when the Treaty of Paris ended the Revolutionary War. Now was the hard part: deciding how this new country would run. In 1787, a few delegates convinced Congress to get together to create a better constitution.

    The Antifederalists, a faction within Congress, wanted the states to remain in control because they thought that a strong federal government would lead to tyranny and abuse. But the Federalists thought a strong federal government was the only way to unite the states and create a legitimate country. Many of the provisions in the Constitution were compromises between these two camps, including the Bill of Rights (see Ratification of the Constitution).

    Bill of Rights

    Several states, led by the Antifederalists, refused to ratify the Constitution unless Congress promised to add a Bill of Rights that the federal government couldn't violate. The Bill of Rights, passed in 1791, is made up of the first ten amendments to the Constitution, including the 2nd Amendment.

    2nd Amendment Text

    The initial draft of the Second Amendment focused on (1) whether people should be required to serve in the military or if there should be religious exemptions, and (2) whether the country should be allowed to authorize a standing army even in times of peace. In the end, they took most of that wording out and focused on protecting the right to a militia and of the people to keep and bear arms. Below is the full text of the Second Amendment:

    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.

    The 2nd Amendment is often discussed in terms of the first clause (regarding a well-regulated militia) and the second clause (the right of the people to keep and bear arms).

    Slavery and the Second Amendment

    In some states, enslaved people made up 40% of the population. Delegates from slave states feared that a federal militia wouldn't be responsive enough if there was a rebellion, so they pushed for states to have their own militias.

    During the American Revolution, George Washington and his officers initially refused to enlist enslaved Black people because they worried that arming them could lead to an uprising. Additionally, the rebellion in Haiti throughout the 1790s, where enslaved people in Haiti overthrew the French colonial rule, instilled fear in slave owners.

    Because of this, while the Second Amendment clearly restricted the federal government's authority to infringe on the right to bear arms, many states passed protections for slaveowners' access to guns while criminalizing gun possession for Black people.

    2nd Amendment Rights

    2nd Amendment rights focus on who should be allowed to own or restrict gun access.

    The Supreme Court case Dred Scott v. Sanford (1846) centered on whether an enslaved Black man named Dred Scott was rightfully free since he had lived for a time in a free state.

    The Supreme Court decided that he didn't have the right to petition for freedom because Black people couldn't be citizens (this decision was overturned with the passage of the Thirteenth Amendment). The majority opinion made sure to list the specific rights that did not apply to Black Americans, including keeping and carrying arms.

    Government Restriction vs. Individual Right

    Many provisions within the Bill of Rights can be interpreted two ways: a restriction on government authority vs. a protection for an individual right. Over time, interpretations of the 2nd Amendment have shifted from the former to the latter.

    Throughout the 19th and 20th Centuries, courts often focused on tying the right to bear arms to use in the military. However, in 1982, a Senate Judiciary Committee report solidified a growing sentiment: the 2nd Amendment does create a legal right for individual citizens to privately possess and carry firearms.

    2nd Amendment Supreme Court Cases

    Like many individual rights, the Supreme Court has interpreted the 2nd Amendment very differently over the years.

    United States v. Miller

    One of the first 2nd Amendment Supreme Court cases was United States v. Miller (1939). The case dealt with Jack Miller transporting a sawed-off shotgun across state lines, which violated the National Firearms Act of 1934. He argued that the law violated his rights under the 2nd Amendment.

    The Supreme Court ruled against Miller, tying the right to bear arms to militia use. They held that the federal government had the authority to ban sawed-off shotguns since there was no "reasonable relationship" between the gun and common defense.

    District of Columbia v. Heller

    The next major decision, District of Columbia v. Heller (2008), focused on whether the 2nd Amendment protects gun use for self-defense outside of any connection to the military.

    The Supreme Court determined that the Second Amendment does protect the individual right to possess firearms for self-defense in homes. While the 2nd Amendment isn't unlimited (meaning it doesn't extend to places like schools and government buildings), they ruled that it isn't exclusive to a connection with military use or common defense either.

    McDonald v. Chicago

    Two years later, McDonald v. Chicago (2010) built on the Supreme Court's decision in Heller. The case focused on a law passed in Chicago in 1982 that required a lengthy registration process in order to own guns, in an effort to reduce gun violence. Otis McDonald sued the city, saying that the registration process was so difficult that it amounted to a ban on gun ownership. He argued that the 2nd Amendment should restrict not just the federal government, but state and local governments too because of the 14th Amendment.

    The 14th Amendment, passed in the aftermath of the Civil War, extends many of the individual rights (and therefore, restrictions on the government's authority) to state and local governments. The 14th Amendment says (emphasis added):

    ……nor shall any State deprive any person of life, liberty, or property, without due process of law."

    The Supreme Court ruled in his favor in a 5-4 decision, saying that state and local governments can't violate the 2nd Amendment by passing laws that infringe on an individual's right to bear arms. However, the four dissenting judges argued that the framers of the Constitution never intended the 2nd Amendment to be a fundamental right.

    New York State Rifle & Pistol Association v. Bruen

    One of the most recent Supreme Court cases, New York State Rifle & Pistol Association v. Bruen (2022), focused on a New York law requiring gun owners to apply for a permit to carry a firearm outside of their home. The Supreme Court ruled that the law violated the Second Amendment.

    2nd Amendment Gun Control

    Controversy about 2nd Amendment rights has grown with the increase in gun violence in recent decades. Deaths rose from almost 29,000 in 1999 to over 45,000 in 2020 (over half of which were due to suicide).5 Additionally, mass shootings (events with multiple victims of gun violence) have also increased over the years. This has led to an intense debate over the cause of this violence and whether the government should enact more restrictions on gun use and possession.

    Advocates for gun control argue that:

    • The 2nd Amendment has been interpreted far too broadly.
    • Technology has made guns more deadly than those that existed when the Constitution was drafted.
    • Preventing gun violence should take precedence over preserving access to guns
    • There is no common defense argument for owning the more deadly types of guns like assault rifles.

    Civil Liberties vs Civil Rights Second Amendment Gun control protest StudySmarterFigure 2: A group of students protests in favor of gun control. Source: Fibonacci Blue, Wikimedia Commons, CC-BY-SA-2.0

    Advocates against gun control argue that:

    • Restricting gun access sets a dangerous precedent for government power.
    • The right to gun ownership is critical for ensuring citizens' rights and preventing government tyranny.
    • The underlying cause of gun violence is mental illness, not access to guns.
    • Law-abiding gun owners shouldn't be penalized for the actions of bad actors.

    Civil Liberties vs Civil Rights Second Amendment Gun rights rally  StudySmarterFigure 3: A rally against gun control. Source: David, Wikimedia Commons, CC-BY-2.0

    2nd Amendment Sanctuary States

    Several states have self-identified as "Second Amendment Sanctuary States" because of legislation preventing the implementation of gun control measures like background checks and assault weapons bans. For example, Arizona passed a law prohibiting the enforcement of federal gun control laws that are inconsistent with state law. Similar laws have been passed in 19 states.

    Civil Liberties vs Civil Rights Second Amendment 2nd AMendment Sanctuary States StudySmarterFigure 4: A map of 2nd Amendment sanctuary states. Green indicates county level while blue indicates state level. Purple indicates state AND county level. Source: terrorist96, Wikimedia Commons, CC-BY-SA-4.0

    2nd Amendment - Key takeaways

    • The 2nd Amendment is a part of the Bill of Rights, which was added to the Constitution in 1791.
    • The 2nd Amendment says that the right to have a well-regulated militia and the right to keep and bear arms will not be infringed by the government.
    • Bearing arms goes back to the Glorious Revolution and the American Revolution.
    • In recent decades, Supreme Court cases have favored a more expansive view of gun rights and their applicability outside of connection to military or common defense.
    • Gun control advocates point to the rise in gun violence to argue that the framers of the Constitution didn't intend such an expansive interpretation of gun rights.

    References

    1. English Bill of Rights, 1689
    2. Declaration of Independence, 1776
    3. Pennsylvania Declaration of Rights, 1776
    4. Massachusetts Declaration of Rights, 1780
    5. Injury Facts, Home and Community, Safety Topics, Guns. https://injuryfacts.nsc.org/home-and-community/safety-topics/guns/data-details/
    Frequently Asked Questions about 2nd Amendment

    What is the 2nd Amendment?

    The 2nd Amendment is part of the Bill of Rights and provides Constitutional protections for having a well-regulated militia and the right to keep and bear arms.

    What does the 2nd Amendment say?

    The 2nd Amendment says that the government will not infringe the right to a well-regulated militia or the right to keep and bear arms.

    When was the 2nd Amendment written?

    The initial draft of the Second Amendment was written in 1789 and the final version was passed in 1791.

    Why was the 2nd Amendment created?

    The 2nd Amendment was created to address concerns over oppression from the British government or the federal government by enshrining the right to common defense.

    Why is the 2nd Amendment important?

    The 2nd Amendment is important because it codifies the right for individuals to bear arms. It has become one of the more controversial Constitutional amendments as the instances of gun violence has increased in recent decades.

    Test your knowledge with multiple choice flashcards

    What is the Constitutional Provision Central to District of Columbia v. Heller?

    In D.C. v. Heller, the Court, ruled that the 2nd Amendment protected an individual’s right to do what?

    What did the majority in D.C. v. Heller say was a fundamental right?

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