Amendment II: To Keep and Bear Arms


“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.”

At the time of our nation’s founding, Americans relied on firearms to procure food and protect themselves from those who would harm them. With the Revolutionary War only a few years behind them, the Founders understood that the people of this country had to be able to defend themselves if they were to preserve their newly acquired freedoms.

The Second Amendment, as one federal appeals court has held, “protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons…regardless of whether the particular individual is then actually a member of the militia.” Patrick Henry, the fiery patriot of the American Revolution, said: “The great object is that every man be armed….  Everyone who is able may have a gun.” Richard Henry Lee, a fellow Virginian and member of the first Senate, wrote: “To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.” And George Mason, also a Virginian, declared: “To disarm the people [is] the best and most effective way to enslave them.

Some have argued in recent years that the Second Amendment only applies to the militia—not to the right of individuals—to possess guns. George Mason refuted this argument long ago at the time of the Second Amendment’s passage when he proclaimed: “[W]hat is the militia? It is the whole people, except for a few public officials.” And American statesman Samuel Adams proclaimed that the “Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms.”

 

The Second Amendment Today

 

The case is often made that gun ownership in America should be restricted to law enforcement and government officials. Renowned Harvard law professor Laurence Tribe, however, has recognized that individual Americans have the right to “possess and use firearms in defense of themselves and their homes” and that the “government may not disarm individual citizens without some unusually strong justification.”

While individuals still possess the right to “keep and bear arms,” Congress and state legislatures have regulated the ownership and use of firearms through modern gun control laws. Federal law regulates the types of firearms citizens may own, outlines various criteria for gun ownership such as age, training and criminal history, mandates how firearms must be registered and regulates how firearms must be displayed. Two of the most notable gun control measures passed by Congress are the Gun Control Act of 1968, which established a tracking system that permits the federal government to track the owners of each gun and prohibits convicted felons from owning a gun, and the 1986 Firearm Owners Protection Act, which restricts the availability and ownership of certain automatic weapons. In January 2008, President Bush signed the first new gun-control legislation in 14 years. The NICS (National Instant Check System) Improvement Amendments Act of 2007 provides up to $250 million a year to states and state courts to automate records on mentally ill people and forward the information to the FBI. That information is included in the National Instant Criminal Background Check System, which prevents anyone from buying a gun who is seriously mentally ill, a criminal or somebody who has a restraining order against them for domestic violence. Most of these laws are in response to tragic deaths that result from the misuse of firearms, as well as the need to control the criminal use of guns.

Those who founded this country, however, had no intention of decrying the ownership of weapons such as hunting rifles and handguns for use by ordinary Americans. As James Madison, the father of the Constitution, wrote, “The advantage that Americans have over every other nation is that they are armed.” And when Patrick Henry proclaimed, “The great objective is that every man be armed; everyone who is able may have a gun,” he clearly saw the Second Amendment as giving individuals the right to bear arms.

Despite these sentiments, gun control bans have become increasingly popular in cities across the nation. In the District of Columbia, an absolute ban on handguns has been in place for the past 30 years. Like most gun-control bans, it was justified as constitutional by proponents on the basis that the Second Amendment applies to militias, not to individuals. The word “people” in the Second Amendment, however, is the same word used in the First Amendment (guaranteeing “the right of the people peaceably to assemble”) and in the Fourth Amendment (guaranteeing “the right of the people to be secure . . . against unreasonable searches and seizures”). Those rights clearly belong to individuals, not to states. In a Fourth Amendment case from 1990, the U.S. Supreme Court held that when the phrase “the people” is used in the context of the Second Amendment, it means “a class of persons who are part of a national community.”

In June 2010 the Supreme Court ruled 5-4 that the right to keep and bear arms is an individual liberty retained by the citizens of the United States under the Second Amendment. While the ruling did not specifically strike down any gun-control laws, such as the ban in D.C., it certainly questions their constitutionality. At the time of the ruling, Justice Samuel Alito wrote, "It is clear that the Framers . . . counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”

In 2011, the Indiana Supreme Court broadly ruled that citizens don't have the right to resist police officers who enter their homes illegally, which is the law in most states. And consider how many individuals have been killed simply for instinctively reaching for any kind of weapon, loaded or not, during the initial trauma of a SWAT team raid. Thus, as local police departments become more and more like paramilitary units, dressed in black riot gear and armed with assault weapons, the ability of the citizenry to protect itself from the government will become much more difficult. Consider instances such as New Orleans after Hurricane Katrina, where one of the government agents’ first orders in restoring order was that no individuals have a gun, while they themselves brandished automatic assault rifles.

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