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Definition: Amendment, Second from The Hutchinson Unabridged Encyclopedia with Atlas and Weather Guide

Amendment to the US Constitution, ratified in 1791, guaranteeing the right of the people to ‘bear arms’. The interpretation of this amendment, part of the Bill of Rights, has been hotly debated, especially in relation to gun control laws.

Some argue that the Second Amendment was designed to enable state militias to operate as a means of defence. Others argue that the amendment was designed to ensure each individual the right to own a firearm. Members of gun organizations such as the National Rifle Association use the latter interpretation to justify their opposition to any major restriction on ownership of firearms.


Summary Article: Second Amendment
from American Governance

The Second Amendment's guarantee of a right to keep and bear arms is profoundly divisive in American politics and culture because of the ongoing debate over whether and how government should regulate firearms when attempting to limit gun violence. Modern advocates for gun control most often interpret the Second Amendment as protecting a collective, military right, while gun rights advocates argue for an individual right to self-defense and a right of the people to take up arms against their own government. The United States Supreme Court, after handing down only one ruling, suggesting a collective rights interpretation pertaining to the Second Amendment, in more than a hundred years, ruled in District of Columbia v. Heller, 554 U.S. 570 (2008), in favor of the individual rights interpretation while leaving the precise scope of that right open to future interpretation.

HISTORY

During the ratification of the federal Constitution in 1787 and 1788, Anti-Federalists complained about the lack of safeguards from a standing army. George Mason, the author of Virginia's 1776 Declaration of Rights and one of that state's delegates to the Federal Convention in Philadelphia in 1787, refused to sign the Constitution, complaining in part that “there is no declaration of any kind … against the danger of standing armies in time of peace” (Elliot 1836, vol. 1, 496). He and other Anti-Federalists were afraid that if Congress had the exclusive right to arm militias, then it could easily choose not to arm them and establish a standing army, leaving states defenseless against federal tyranny. Mason supported an amendment recognizing “that the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state; [and] that standing armies, in time of peace, are dangerous to liberty” (Elliot 1836, vol. 3, 659).

Many Americans at the time of the founding did not limit the right to bear arms to the militia, regarding selfdefense and hunting as central to their freedom. The Virginia Declaration of Rights declared, “The people have a right to bear arms for the defence of themselves and the state.” Pennsylvania Anti-Federalists proposed a constitutional amendment stating that “the people have a right to bear arms for the defense of themselves and for their own state, or the United States, or for the purpose of killing game” (Gillman, Graber, and Whittington 2013, 94).

In the First Federal Congress, Representative James Madison spearheaded the effort to amend the Constitution and assuage the various concerns for a bill of rights. He proposed to insert amendments within the existing articles and sections of the Constitution. In between the third and fourth clauses of Article I, Section 9, among other restrictions on Congress's power, he suggested that the following be added: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person” (Gales [1834] 2003, 451).

When the House considered the amendment on August 17, 1789, some members questioned the exemption for pacifists. Elbridge Gerry argued that the government could easily “declare who are those religiously scrupulous and prevent them from bearing arms,” thus destroying the militia (Gales [1834] 2003, 778). Despite opposition, the exemption survived in the House, which sent a revised version of Madison's original draft (along with sixteen other amendments) to the Senate on August 24: “A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person” (Journal of the Senate, 1st. session, Aug. 25, 1789, 63–64).

The fifteen senators present on September 4 removed the conscientious objector clause. On September 9, a motion to add “for the common defence” after “bear arms” was defeated, but a motion to drop “best” succeeded. The amendment now read: “A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed” (Journal of the Senate, 1st. session, Sept. 9, 1789, 77).

The Senate pared the list of amendments down to twelve and sent it back to the House. On September 24, the members of the House voted 37–14 to “recede from their disagreement” to some of the amendments the senate proposed, and sent the list of amendments to the states (House Journal 124). The final version of the Fourth Amendment read: “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” (Senate Journal, 1st. session, 96). Within months, the right to bear arms was ratified by the constitutionally required threefourths of all states.

The original meaning of the Second Amendment is contested. Proponents of the individual rights model point out that the text speaks of an individual right rather than simply state control over the militia. Proponents of the collective rights model note that the prefatory clause indicates that maintaining a militia was the purpose of the right. The few fragments surviving of the debates do not clearly resolve this issue.

EARLY COMMENTARY

Virginia judge St. George Tucker, a moderate Jeffersonian, was the first to write a comprehensive analysis of the Constitution. In his law lectures at the College of William and Mary, and in his influential Blackstone's Commentaries (1803), he explored what the Second Amendment meant for the American people and their government. The right to keep and bear arms was “the true palladium [i.e. safeguard] of liberty,” he argued (Tucker 1803, appendix, 300). Even though self-defense was the first law of nature, most governments had tried to confine that right. “Wherever standing armies are kept up,” Tucker wrote, “and the right of the people to keep and bear arms is … prohibited, liberty, if not already annihilated, is on the brink of destruction” (Tucker 1803, appendix, 300). William Rawle, another prominent legal treatise writer in the early republic, most clearly linked the right to bear arms with militia service when he declared: “The militia form the palladium of the country” (Rawle [1825] 2003, 121). To ensure the militia's viability, the right to keep and bear arms was necessary and thus “no clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people” (Rawle [1825] 2003, 122). In 1833 Supreme Court justice Joseph Story argued that the importance of the Second Amendment could “scarcely be doubted by any persons,” because “the militia is the natural defence of a free country” (Story 1833, vol. 3, 746). Standing armies could subvert liberty, and so “the right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers” (Story 1833, vol. 3, 746).

THE LIMITS OF THE SECOND AMENDMENT

The Anti-Federalists had warned that if the Constitution was ratified then only the force of arms could win back the people's liberties. Tucker did not have a problem with this line of reasoning and argued that the Second Amendment provided a check on federal power by ensuring that the states could arm their militias, possibly for the purpose of “resisting the Laws of the federal Government, or of shaking off the Union” (Tucker-Coleman Papers, vol. 4, 127). Rawle, who had prosecuted the whiskey rebels as a district attorney in Pennsylvania, did not agree, writing that the right to bear arms should not be “abused to the disturbance of the public peace” ([1825] 2003, 126). In 1868 Michigan Supreme Court Justice Thomas Cooley offered a treatise on constitutional limitations in which he considered the Second Amendment to be essential to the protection of individual liberty via a well-regulated militia. Indeed, the militia could not exist “unless the people are trained to bearing arms” which was why “federal and state constitutions … provide[d] that the right of the people to bear arms shall not be infringed” ; how much the legislature could regulate that right “we shall not undertake to say,” Cooley wrote (Cooley 1868, 350).

© AP IMAGES

Gun-rights advocates demonstrate to protect their Second Amendment right to bear arms, Harrisburg, Pennsylvania, 2014.

State court decisions on state constitutional rights to bear arms varied. The Supreme Court of Kentucky in Bliss v. Commonwealth, 2 Litt. 90 (KY 1822), insisted that the state constitution protected an individual right that could not be regulated by the state government. The Supreme Court of Georgia in Nunn v. State, 1 Kelley 243 (GA 1846), ruled that the state constitution protected an individual right that was subject to reasonable state regulation. The Supreme Court of Arkansas in State v. Buzzard, 4 Ark. 18 (1842), declared that the state constitution did not protect an individual right at all. By the turn of the twentieth century, most state court decisions either claimed that the right to bear arms was subject to reasonable restrictions or not an individual right.

THE SECOND AMENDMENT AND THE SUPREME COURT

Six cases directly related to the Second Amendment reached the Supreme Court between 1791 and 2014. In the cases decided before the twentieth century, the Court rejected the assertion that the Second Amendment checked anything other than congressional power, largely because until 1895 the Supreme Court rejected all claims that any provision in the Bill of Rights restricted federal power. The Court dismissed United States v. Cruikshank, 92 U.S. 542 (1875), a case addressing charges under the Enforcement Act of 1870, arguing that “bearing arms for a lawful purpose” was not a “right granted by the Constitution.” Indeed, the Second Amendment had “no other effect than to restrict the powers of the national government” (92 U.S. at 553). The Court reaffirmed that holding in Presser v. Illinois, 116 U.S. 252, 265 (1886), arguing that state laws restricting military organizations “do not infringe the right of the people to keep and bear arms” under the Second Amendment because the Bill of Rights applied only to Congress. It dismissed Miller v. Texas, 153 U.S. 535, 538 (1894), because the Second Amendment “operate[d] only upon the federal power, and [had] no reference whatever to proceedings in state courts.”

The Second Amendment came before the Court once in the twentieth century, in United States v. Miller, 307 U.S. 174 (1939). In Justice James McReynolds's very terse majority opinion, the Court maintained that, because the Second Amendment was created “with obvious purpose to assure the continuation and render possible the effectiveness of” the militia under Article I, Section 8, “it must be interpreted and applied with that end in view” (307 U.S. at 178). The justices unanimously ruled that the charges against Jack Miller under the National Firearms Act of 1934 did not violate the Second Amendment because “a shotgun having a barrel of less than eighteen inches in length” did not have “any reasonable relationship to the preservation or efficiency of a well regulated militia” (307 U.S. at 178).

In 2008 the Court ruled for the first time in its history that the Second Amendment protected an “individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home” (554 U.S. at 577). Two years later, in McDonald v. City of Chicago, 561 U.S. 3025 (2010), the Court incorporated the Second Amendment as a protection against state action via the privileges and immunities clause of the Fourteenth Amendment.

MODERN COMMENTARY

The change in thinking about the Second Amendment came in the late 1980s, partly inspired by Sanford Levinson's influential revisionist article, “The Embarrassing Second Amendment.” Levinson, who was far more interested in constitutional theory than in opposing gun control, argued that political considerations had prevented legal scholars from taking the Second Amendment seriously. Indeed, the right to bear arms was “profoundly embarrassing” for a largely left-leaning legal academy that championed individual rights but rejected the notion that the Second Amendment protected such a right. “Perhaps ‘we,’” Levinson concluded, “might be led to stop referring casually to ‘gun nut’ just as, maybe, members of the NRA could be brought to understand the real fear that the currently almost uncontrolled system of gun ownership sparks in the minds of many whom they casually dismiss as ‘bleeding-heart liberal’” (1989, 659).

In the ensuing decade, a flood of new writing arguing that the Second Amendment protected an individual right to self-defense unrelated to the militia inundated law reviews (see, e.g., Halbrook 2008). Some scholars (e.g., Uviller and Merkel 2003) rebutted this claim, insisting that the right to bear arms was exclusively tied to collective action in a militia, or to the right of states to mobilize citizens into a militia. This individual–collective dichotomy had become complicated by the early 2000s, and the US Fifth Circuit Court noted in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), that a “sophisticated collective rights model” also existed. In this new third interpretation of the Second Amendment, a civic-rights model, the right to bear arms is a right of citizens to keep and bear those arms needed to meet their civic obligation to participate in a well-regulated militia (Cornell 2006).

Some scholars proclaimed the individual-rights interpretation to be the “new standard model” of the Second Amendment (Reynolds 1995, 463), but acceptance of the new consensus did not always fit into neat political categories. In 1991 former chief justice of the Supreme Court Warren Burger, a Nixon appointee, considered the interpretation to be one of “the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special interest groups that I have ever seen in my lifetime” (quoted in Sunstein 2007). Conversely, the third edition of liberal scholar Laurence Tribe's influential treatise, American Constitutional Law, asserted that the Second Amendment recognized a right of individuals to “use firearms in the defense of themselves and their homes” (Tribe 2000, 902, n.221). In the wake of the Newtown, Connecticut, massacre in 2012, Tribe clarified his position from 2000 in response to an inquiry: though the limited individual right to keep and bear arms outside of the organized militia is, when applied to state and local gun laws, “a right derived from the Fourteenth Amendment rather than the Second, … ‘federal gun control legislation [is] essentially invulnerable under the Second Amendment provided the state militia [is] not undermined’” (Tribe 2012, quoting Tribe 2000, 902, n.221).

POST-HELLER REALITIES

The key issue for post-Heller litigation is how to apply a jurisprudence of original meaning. Although the Court recognized an individual right to use a handgun for selfdefense inside the home, it made clear that its opinion does not “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” (554 U.S. at 571). In his dissenting opinion, Justice John Paul Stevens argued that the majority opinion upsets the understanding that legislatures may regulate the civilian use of firearms while leaving “for future cases the formidable task of defining the scope of permissible regulations” (554 U.S. at 679). Nelson Lund, who agrees that the Court's decision is “an easily defensible originalist result,” argues that in terms of the “longstanding prohibitions” listed in the majority opinion, “the Court should have refrained from issuing dicta on an array of issues to which it had apparently devoted little thought and less research” (2009, 1368).

One thing is clear from Heller: outright bans on handguns are unconstitutional, and thus since 2008 several have been struck down, most famously in McDonald. In the absence of clear direction from the Court, those laws that have survived intermediate scrutiny and show that the government is furthering its interest in public safety have remained on the books. Most lower federal courts that have heard challenges to state gun control measures have sustained those measures, while requiring that they meet a higher level of constitutional scrutiny known as intermediate scrutiny. This emerging consensus suggests that restrictions on weapons are constitutional if and only if they are substantial means for achieving important government ends.

SEE ALSO Breyer, Stephen; Gun Control; Incorporation of the Bill of Rights; Interest Groups; Police Powers; Scalia, Antonin.

BIBLIOGRAPHY
  • Cooley, Thomas. A Treatise on the Constitutional Limitations. Little, Brown Boston, 1868.
  • Cornell, Saul. A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America. Oxford University Press Oxford and New York, 2006.
  • Elliot, Jonathan, ed. The Debates in the Several State Conventions, on the Adoption of the Federal Constitution. Vols. 1.and 3. Taylor and Maury Washington, DC, 1836.
  • Emery, Lucilius A.The Constitutional Right to Keep and Bear Arms.” Harvard Law Review 28 (1915): 473-77.
  • Gales, Joseph, ed. The Debates and Proceedings in the Congress of the United States. Vol. 1. (1834.) Hein Buffalo NY, 2003.
  • Gillman, Howard; Mark A. Graber; Keith E. Whittington. American Constitutionalism. Vol. 2. Oxford University Press New York, 2013.
  • Halbrook, Stephen P. The Founders' Second Amendment: Origins of the Right to Bear Arms. Ivan R. Dee Chicago, 2008.
  • Journal of the House of Representatives of the United States of America. First Congress, 1789-1791. Library of Congress, American Memory. http://memory.loc.gov/ammem/amlaw/lwhj.html.
  • Journal of the Senate of the United States of America. First Congress, 1789-1791. Library of Congress, American Memory. http://memory.loc.gov/ammem/amlaw/lwsj.html.
  • Levinson, Sanford.The Embarrassing Second Amendment.” Yale Law Journal 99 (Dec. 1989): 637-59; repr., Constitution Society. http://www.constitution.org/mil/embar2nd.htm.
  • Lund, Nelson.The Second Amendment, Heller, and Originalist Jurisprudence.” UCLA Law Review 56 (2009): 1343-76.
  • Rawle, William. A View of the Constitution of the United States of America. (1825.) Lawbook Exchange Clark NJ, 2003.
  • Reynolds, Glenn Harlan.A Critical Guide to the Second Amendment.” Tennessee Law Review 62 (1995): 461-511.
  • Story, Joseph. Commentaries on the Constitution. 3 vols. Hilliard, Gray Boston, 1833.
  • Sunstein, Cass.The Most Mysterious Right.” The New Republic, November 18, 2007. http://www.tnr.com/article/books-andarts/archive/76368/second-amendment-gun-rights.
  • Tribe, Laurence H. American Constitutional Law. 3rd ed. Foundation Press New York, 2000.
  • Tribe, Laurence, in response to Marc Ash. “A Response from Laurence Tribe in the Wake of Newtown.” Reader Supported News. December 17, 2012. http://readersupportednews.org/opinion2/265-34/15098-a-response-from-laurence-tribe-inthe-wake-ofnewtown.
  • Tucker, St. George. Law Lectures, vol. 4. In Tucker-Coleman Papers, Mss. 40 T79, Box 62, Special Collections Research Center, Earl Gregg Swem Library, College of William and Mary. https://digitalarchive.wm.edu/handle/10288/13361.
  • Tucker, St. George. Blackstone's Commentaries, with Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States, and of the Commonwealth of Virginia, vol. 1. William Birch and Abraham Small Philadelphia, 1803.
  • Uviller, H. Richard; William G. Merkel. The Militia and the Right to Arms, or How the Second Amendment Fell Silent. Duke University Press Durham NC, 2003.
  • Nathan R. Kozuskanich
    Nipissing University
    COPYRIGHT 2016 Macmillan Reference USA, a part of Gale, Cengage Learning

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