The Second Amendment is part of the Constitution referred to as the Bill of Rights. These are the first ten amendments all ratified in 1791. It reads as follows:
“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.”
Little Supreme Court Guidance on the Second Amendment
Unlike the First Amendment there has been little Supreme Court guidance on the meaning of the Second Amendment. Since 1791 there have been only two significant cases dealing with the issues. United States v. Miller was decided in 1939 and District of Columbia v. Heller was decided in 2008.
In Miller the Court upheld the constitutionality of the National Firearms Act which taxed certain weapons transported in interstate commerce after an Arkansas District Court had declared the Act unconstitutional as a violation of the Second Amendment. The Miller Court principally indicated that only weapons related to potential militia use were protected by the Second Amendment.
The Heller decision found provisions of the District of Columbia Firearms Control Regulations Act of 1975 banning residents from owning handguns, automatic firearms, and high-capacity semi-automatic firearms to be unconstitutional. The ruling did not prohibit all gun control. D. C. laws requiring firearm registration and the city's assault weapon ban were not affected.
Competing Theories of the Meaning of the Second Amendment
There are two principle interpretations of the Second Amendment, both of which find support in the text. One theory is that is protects the rights of individuals to own weapons with limited government restriction on those rights. The other leading theory is the collectivist theory that proposes the Second Amendment means that the possession of arms shall be protected for the collective defense of the community and that any regulation of private ownership by government is constitutional.
The Collectivist Theory of the Second Amendment
The language of the Second Amendment mentions specifically a “well regulated militia”. This wording is relied upon by proponents of strict gun control laws as meaning that constitutional rights to gun ownership are limited to militias as they were understood in the late 18th century. A militia consisted of male citizens who could be mustered for the protection from threats to the community. These threats could be from outside forces, bandits or in those days Indians. Many local laws required gun ownership so that citizens would be available to meet communal threats.
Gun control proponents point to this meaning of the Second Amendment as indicating that Congress cannot prohibit States from maintaining a militia and that except in the context of a state militia any regulation of gun ownership is constitutional. Today state militias have been superseded by the National Guard. The Miller case seems to support a collectivist theory.
The Personal Use Theory of the Second Amendment
The world as it existed in 1791 was much different than today. There were not well organized and ubiquitous law enforcement agencies. Self-defense and personal protection were the norm. Many individuals relied upon hunting wild game for feeding their families. Personal gun ownership was practically a necessity.
It is in this context that opponents of pervasive gun control laws argue that the meaning of the Second Amendment’s words “the right of the people to keep and bear Arms, shall not be infringed” indicate a right to personal gun ownership. The Heller court lends support to the personal use theory.
Does the Second Amendment Limit Gun Regulation by the States?
Though the Heller decision seems to support a personal use theory it dealt with a District of Columbia law. D. C. is not a state, but a federal enclave. This leaves open the question of the Second Amendment’s application to state gun regulations. One clue may be that most other amendments give specific direction to Congress e.g.: “Congress shall pass no law…”. The Second Amendment’s lack of this language would indicate that it does in fact apply to the states.
Pending Second Amendment Litigation
Since Heller there have been many suits filed challenging strict gun ownership laws in places like Illinois, New York and California. There have been suits challenging restrictions on ownership by convicted felons. As these suits find their way to the Supreme Court it is likely more clarity on the meaning of the Second Amendment will develop.
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