The Second Amendment to the United States Constitution
Amendment II of the Unites States Constitution, commonly referred to as, “the right to bear arms”, is written 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.” This amendment was adopted along with 9 other amendments contained in the Bill of Rights, on December 15, 1791. At that point, it was merely a federal provision, and the states varied on their choices of how to include the right to bear arms in their own constitution. In fact, some chose not to include it at all. It has been described as an auxiliary right, supporting the natural rights of self-defense. Political thought at the time was rightfully concerned about political corruption and governmental tyranny. A personal right to bear arms was a potential check against tyranny.
The wording of the amendment is somewhat ambiguous, and has been subjected to much interpretation. Additionally, the exact wording and punctuation of the amendment changes from document to document, until its final version, the way it appears in the Bill of Rights. In modern commentary, the different opinions have been classified into 3 interpretive models: 1) Individual- rights model → it is the right of an individual to own and possess firearms. 2) The collective model → the right belongs to people collectively rather than individuals; the rights only purpose is to enable states to maintain a militia. 3) Modified collective model → the right only applies for those actively serving in the militia.
Two different models have evolved from State court jurisprudence: 1) Individual right → defense of self or home. 2) Collective right → defense of the state.
The debate centers on whether the prefatory clause, “A well-regulated militia, being necessary to the security of a free state,” is the only use of the right or is merely an introduction to and one of many examples to the operative clause, “the right of the people to keep and bear arms, shall not be infringed.” It is interesting to note that the Second Amendment is the only one to include a prefatory clause, which is perhaps why the meaning and intention has been debated so extensively. Nowadays, the collective model has been rejected by the Supreme Court, through what is commonly held as the most landmark case in the entire history of the Second Amendment- District of Columbia v. Heller (2008). This was the first Supreme Court case to decide whether the Second Amendment protects an individual right to keep and bear arms for self-defense. It was also the first time the Supreme Court was directly addressing the scope of the Second Amendment in almost 70 years. The plaintiff’s question was, do laws that virtually make it impossible to own a handgun violate the Second Amendment rights of individuals who wish to keep handguns for personal use in their home? The Supreme Court held that indeed, the laws were unconstitutional, and violated the right guaranteed by the Second Amendment. They proclaimed that the Second Amendment was an individual right, though, like most rights, it can be limited. However, the ban on handguns was a violation of the Second Amendment, for a handgun is used for a lawful purpose of self-defense. This only applied on a federal level, however, and not to the states.
Two years later, in McDonald v. Chicago (2010), the Supreme Court determined that the Second Amendment, through the Due Process Clause of the Fourteenth Amendment, applied to the states as well. The plaintiff was Chicago resident Otis McDonald, at the time 76 years old. Living in a declining neighborhood, he had been subjected to repeated robberies, and therefore he was inclined to buy a handgun for self-defense. Due to Chicago’s laws on handguns however, he was unable to do so. Because of this case, the Second Amendment became incorporated to apply against state and local government, in addition to applying to federal jurisdictions. In the Twenty- First Century, there are two major opinions regarding the right to bear arms. One is that there needs to be stricter regulation regarding gun control in order to protect the public, and the other holds that the Second Amendment cannot be infringed upon under any circumstances, indeed they hold the right to bear arms almost as an unalienable right. These two opinions are represented by 2 major interest groups. The National Rifle Association is the leading advocacy group towards protecting Second Amendment Rights. Their membership has now exceeded 5 million. Alternatively, The Brady Campaign to Prevent Gun Violence is the main gun control advocacy group. They have considerably fewer members, and have been described as less effective than gun-rights organizations. The debate about gun control has turned into a major political issue, particularly in the aftermath of the shooting at Sandy Hook Elementary school, which pushed forwards a new popularity for reforms on gun laws. The entire issue is hotly debated, and people are sharply divided in their opinions about the Second Amendment. It remains to be seen as America continues to mature what popular opinion will decide is fundamentally and morally correct regarding the right to bear arms.
Bibliography
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"DISTRICT OF COLUMBIA v. HELLER (No. 07-290)". Legal Information Institute. Cornell University Law School. Retrieved December 26, 2012.
"Cornell School of Law Summary of the ''Heller'' Decision". Law.cornell.edu. Retrieved September 1, 2012.
Liptak, Adam (June 28, 2010). "Justices Extend Firearm Rights in 5-to-4 Ruling". The New York Times. Retrieved December 17, 2012.