The Second Amendment & The Right to Bare Arms (guns)

The interpretation of the Second Amendment may be the most controversial of all 27 amendments. One interpretation questions whether the founders ever intended individuals to own firearms, others view this right as a fundamental necessity for any nation to remain free.

What you need to learn

Skill to Practice: Skill

gun control advocate’s interpretation of the language of the 2nd Amendment

District of Columbia v. Heller*

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Court Cases

Mc Donald v. Chicago (2010)

Documents

U.S. Constitution, Second Amendment

Text Section

The Second Amendment and the Right to Bear Arms

The Second Amendment to the United States Constitution reads: “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 brief, 27-word amendment has been the source of significant debate and legal analysis throughout U.S. history.


1. Interpretation: Militia Members Only

Some argue that the framers’ primary intention behind the Second Amendment was to ensure the ability of state militias to resist potential tyranny, and not necessarily to guarantee an individual right to gun ownership. Supporters of this interpretation emphasize the amendment’s prefatory clause (“A well regulated Militia”) as contextually defining the operative clause (“the right of the people to keep and bear Arms”).

Historical Context: During the time of the founders, the term “militia” was commonly understood to mean all able-bodied men of a certain age. The militia served as a counterbalance to standing armies, which were viewed with suspicion given historical instances of abuse by monarchs.


2. Interpretation: Individual Right Fundamental for a Free Nation

Pro-gun advocates believe the Second Amendment protects an individual’s right to own firearms, regardless of militia service. They argue that the right is “pre-existing” or “natural,” meaning it exists independently of the Constitution.

Historical Context: Some founders believed that an armed citizenry was a hedge against tyranny. They contended that if the government ever became despotic, the people would have the means to resist. For many, the individual right to own firearms was essential to maintain the balance of power and the spirit of liberty.


3. Landmark Supreme Court Cases

District of Columbia v. Heller (2008): In this case, the Supreme Court held in a 5-4 decision that the Second Amendment protects an individual’s right to possess a firearm, unconnected with service in a militia, for traditionally lawful purposes, such as self-defense within the home. This was a pivotal decision that endorsed the individual-rights view of the Second Amendment. Justice Antonin Scalia, writing for the majority, emphasized that the right is not unlimited and does not preclude the prohibition of certain types of firearms or gun possession by felons and the mentally ill.

McDonald v. Chicago (2010): Two years after Heller, the Court held that the Second Amendment is incorporated against the states through the Due Process Clause of the Fourteenth Amendment. This means that state and local governments, like the federal government, cannot infringe upon an individual’s Second Amendment rights. The case was significant in extending the individual right recognized in Heller to all levels of government.

Other relevant cases include United States v. Miller (1939), in which the Court held that the federal government could regulate the possession of a sawed-off shotgun because it had no reasonable relationship to the preservation or efficiency of a “well regulated militia.”


Conclusion

The debate surrounding the Second Amendment is emblematic of broader discussions about the role of government, individual liberties, and public safety. While the Supreme Court has clarified some aspects of the Second Amendment through landmark decisions like Heller and McDonald, debates continue on the regulation, interpretation, and scope of this right.