The Second Amendment of the Constitution, or the right to keep and bear arms, is one of 10 amendments that make up the Bill of Rights. Different interpretations of the Second Amendment have caused a long-running and heated argument over gun rights in America. But how did we get here? What is the point of the Second Amendment?
Why Was the Second Amendment Created?
There are several factors that led to the creation of the Second Amendment. Many colonists believed the British government used its army to oppress the people. They believed militias, or groups of ordinary civilians, were strong enough to protect their communities instead. Unfortunately, these “part-time militias” couldn’t defend against the British Army during the Revolutionary War, making it clear the U.S. Constitution needed to provide a federal standing army. But many feared this would lead back to an oppressive government, so the idea behind the Second Amendment was born.
When Was the Second Amendment Written?
The Second Amendment and the Bill of Rights were added to the U.S. Constitution on December 15, 1791, during the First Congressional session. When America declared independence, the original 13 states each wrote their own constitutions. And each one included provisions intended to protect the people from government abuse. Because of this, many of the Founding Fathers didn’t think it was necessary to include these rights in a federal constitution—a document meant for enumerated powers (defined powers given to the federal government). In fact, James Madison believed that naming specific rights would imply that those were the only rights an individual had. But many refused to accept the drafted Constitution without the promise of a Bill of Rights, so these amendments were later written by Madison himself.
What are Second Amendment Rights?
The Second Amendment simply reinforces our right to keep and bear arms. Remember, the Founding Fathers wrote the Bill of Rights to restate our pre-existing rights, which is why it should not be changed. The Second Amendment protects our rights to:
- organize a militia;
- assist in law enforcement;
- defend against an oppressive government;
- guard against invasion; and
- act in self-defense.
Because of the Second Amendment, we can enjoy things like private security companies, protecting our families, and so much more. Also, these protections apply to more than guns! The Founding Fathers guaranteed our rights to self-defense, not merely gun-defense.
The Second Amendment Debate
The Second Amendment is often interpreted in different ways by different people. But what is the exact wording 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.”
There are two important parts to the Second Amendment:
- The Prefatory Clause: An introduction explaining why the right is necessary, and
- The Operative Clause: A statement of what the right is.
The prefatory clause of the Second Amendment explains that a well-regulated militia is necessary to the security of a free state, while the operative clause says the individual right to bear arms belongs to the people. For years, anti-gun activists have argued this right applies only to “militias” and not individuals. Luckily, the Supreme Court has decided otherwise.
What Is a Well-Regulated Militia?
The U.S. Supreme Court (“SCOTUS”) has clearly defined what the phrase “well regulated militia” does—and does not—mean. In United States v. Miller, 307 U.S. 174 (1939), SCOTUS defined a “militia” as a group consisting of “all males physically capable of acting in concert for the common defense.” The Court stated, based on how the amendment was drafted, that militias clearly existed before the idea of a standing army because they did not need to be created by Congress (unlike armies and navies).
So, how does the Court define “well regulated”? Exactly how it sounds: maintenance through discipline, training, and supplies. Isn’t this the National Guard? No. SCOTUS has considered and rejected the position that the National Guard is the current militia. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Court stated a “well regulated militia” is not the state’s military forces, but a separate entity altogether. They also explained that “militia” refers to the body of the people, and they—the people—are essential to keeping a centralized government in check.
Do Individuals Have the Right to Keep and Bear Arms?
Yes, according to the Supreme Court. In fact, there are a few SCOTUS Second Amendment cases that relate to an individual’s right to firearm ownership. In these cases, the Supreme Court held:
- The Second Amendment protects an individual right to possess firearms for the purpose of self-defense, unrelated to military or militia activity.
- The Second Amendment is not unlimited or absolute. Reasonable restrictions on types of weapons and/or ownership are upheld.
- Second Amendment rights are protected at state and local level (through “selective incorporation” of the Fourteenth Amendment).
You can get an easy-to-understand breakdown of each of these cases and their impact on your Second Amendment rights here.