Second Amendment to the United States Constitution
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The Second Amendment to the United States Constitution, part of the Bill of Rights, prevents the federal government from infringing on the right of people to keep and bear firearms.
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Text 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.
alternatively
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.
See Commas in the Second Amendment below for more explanation:
Historical context of the Second Amendment
Earlier drafts of the United States Bill of Rights had much lengthier text that was trimmed as part of an overall effort by the Founding Fathers to shorten a document that was then perceived to be too wordy. Some constitutional scholars ascribe significance to these drafts, which tend to support a broader application of the Second Amendment. The constitutions of over 40 states provide more clearly written protection for the individual right to firearms ownership. Additionally, the reader must consider the well-documented fact that opponents to the Bill of Rights during the Constitutional Convention were not against the existence of the rights it enshrined, but because they believed that it was so self evident that the rights existed, originating as all government power did, in the individual as a tautological basis of Lockean Natural Law, that they could not imagine a future society in which such an obvious truth could come into dispute, yet not fall into the most abject tyranny and degeneracy.
Gun rights advocates point to the writings and speeches of the Founding Founders (including James Madison, who actually proposed the Bill of Rights, and George Mason, from whom Madison's work was largely based on) to illustrate that the intent of the Second Amendment was to ensure that the ordinary individual citizens of America would have the freedom of choice to own whatever sorts of weapons they wished. There is also a distinct lack of any quote by any of the Founding Fathers or their contemporaries that would indicate that the Second Amendnemt was only meant to apply to state run militias. Here is a sample of those statements:
James Madison
James Madison is considered the father of the constitution, and was the primary author of the Bill of Rights.
- "The Constitution preserves "the advantage of being armed which Americans possess over the people of almost every other nation. . . (where) the governments are afraid to trust the people with arms." --James Madison, The Federalist, No. 46
George Mason
George Mason is considered the father of the Bill of Rights. Mason wrote the Virginia Declaration of Rights, which detailed specific rights of citizens. He was later a leader of those who pressed for the addition of explicitly stated individual rights as part of the U.S. Constitution.
- "[W]hen the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually.". . . I ask, who are the militia? They consist now of the whole people, except a few public officers." --George Mason, Virginia's U.S. Constitution ratification convention, 1788
- "That the People have a right to keep and bear Arms; that a well regulated Militia, composed of the Body of the People, trained to arms, is the proper, natural, and safe Defence of a free state." -- Within Mason's declaration of "the essential and unalienable Rights of the People," --George Mason, later adopted by the Virginia ratification convention, 1788
Thomas Jefferson
- "No freeman shall ever be debarred the use of arms." -- Thomas Jefferson, Proposed Virginia Constitution, June, 1776
- "Laws that forbid the carrying of arms. . . disarm only those who are neither inclined nor determined to commit crimes. . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." -- Thomas Jefferson, Commonplace Book, 1774-1776, quoting from On Crimes and Punishment, by criminologist Cesare Beccaria, 1764
Others
- "To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws." --John Adams, A Defence of the Constitutions of the United States 475 (1787-1788)
- "The said Constitution [shall] be never 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." --Samuel Adams, Massachusetts' U.S. Constitution ratification convention, 1788
- "[A] string of amendments were presented to the lower House; these altogether respected personal liberty." --William Grayson, Letter to Patrick Henry, June 12, 1789, referring to the introduction of what became the Bill of Rights
- "A militia when properly formed are in fact the people themselves . . . and include all men capable of bearing arms. . . To preserve liberty it is essential that the whole body of people always possess arms... The mind that aims at a select militia, must be influenced by a truly anti-republican principle." --Richard Henry Lee, Additional Letters From The Federal Farmer, 1788
- "The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them." --Tench Coxe, Delegate to Continental Congress, Oct. 21, 1787
- "Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords and every other terrible implement of the soldier, are the birthright of an American . . . . The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people." --Tench Coxe, The Pennsylvania Gazette, Feb. 20, 1788
- "As the military forces which must occasionally be raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article (of amendment) in their right to keep and bear their private arms." --Tench Coxe, Federal Gazette, June 18, 1789
- "Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power." --Noah Webster, An Examination of The Leading Principles of the Federal Constitution, Philadelphia, 1787
- "[I]f circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there is a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their rights and those of their fellow citizens." --Alexander Hamilton, The Federalist, No. 29
- "[A]rms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. . . Horrid mischief would ensue were the law-abiding deprived of the use of them." --Thomas Paine, Thoughts On Defensive War, 1775
- "The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people." --Fisher Ames, Letter to F.R. Minoe, June 12, 1789
- "What, sir, is the use of militia? It is to prevent the establishment of a standing army, the bane of liberty. . . Whenever Government means to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise a standing army upon its ruins." --Elbridge Gerry, Debate, U.S. House of Representatives, August 17, 1789 +
- "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel." --Patrick Henry, Virginia's U.S. Constitution ratification convention
Original text of the Second Amendment
James Madison originally proposed the text of the Second Amendment on June 8, 1789, to read the following:
"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."
On August 24, 1789, the House completed its work on the proposed amendments and forwarded them to the Senate. Leaving the House, the amendment read as follows:
"A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person."
The next day, the Senate received the amendment from the house and entered it into the Senate Journal. When the amendment was transcribed, several changes to punctuation and capitalization were made:
"A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person."
The Senate, after some debate, modified the amendment and on September 9th sent it back to the House in this form:
"A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed."
The house voted on September 21st to accept the changes made by the Senate, however the amendment as finally entered into the House journal contained the additional words "necessary to":
"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."
It is this version that was transmitted to the states for ratification.
Commas in the Second Amendment
There is some debate as to whether the second amendment contains a comma after the word "militia", and a parallel debate as to whether the presence or lack of this comma effects the overall meaning of the amendment.
Both the U.S. Senate Journal and the Annals of Congress show the final version of the Second Amendment as not containing this comma. On September 25th, 1789, the completed Bill of Rights was written to parchment. In this version, now held by the national archives, the comma was inserted. All other surviving texts of the constitution do not contain the comma.
The U.S. Government is inconsistent in the use of the comma. The GPO has produced versions both with and without this comma, while the Statutes at Large (considered the canonical source for the U.S. Congress) does not include the comma.
Relevancy of the type of arms
Some might point out that when this amendment was written, the most deadly firearm that was in existence in 1787 was the 5'5" English Short Land Pattern "Brown Bess" flintlock musket, capable of firing three times a minute, with an accuracy of less than 50 yards, under optimal (dry, unhurried) conditions. Most rifles at that time, while capable of longer range, were much slower to load. Breechloading weapons, like the Brunswick rifle, were essentially non-existent in the United States at that time, and were in extremely rare quantities worldwide. The framers cited above, then, were familiar with clumsy, inaccurate, and temperamental single-shot weapons as being the firearms protected by this amendment. However, similar arguments can be made for all other personal freedoms, such as freedom of the press which would be limited to newspapers and the news which could only be spread at the speed of a horseback rider. If the above logic is accepted, then live coverage, radio, television, and certainly internet media would not be covered by the constitution.
The weapons at the time of the framing of the consitution would have seemed quite deadly and advanced when compared to the matchlock or wheellock muskets of the 15th and 16th centuries. Similarly, "assault weapons" of today will surely seem clumsy, inaccurate, and temperamental when compared to the standards of the 22nd century. Weapons of the past will always seem obsolete, while weapons of the present will always seem extremely destructive.
Furthermore, small arms like muskets, blunderbusses, flintlock pistols, etc. were not the only arms in private hands in that era. Cannon, in the form of mortars, field guns, fortress guns, and ship mounted cannon of all sizes were widely owned by land owners, communities, and merchantmen of the waterways and high seas. Private armed merchantmen and privateers, granted letters of marque, made up the bulk of the United States Navy up into the 1830's. In this era, cannon were the equivalent of modern WMD and many were stamped with the phrase "Ultima Ratio Regum (http://www.metaweb.com/wiki/wiki.phtml?title=Ultima_Ratio_Regum)", latin for "The Last Argument of Kings", after the habit of Louis XIV.
Collective and individual rights
Judicial decisions, or firearm case law on the Second Amendment are scarce, so its meaning is a matter of dispute. The term "well regulated militia" is interpreted by gun control advocates as empowering states to maintain armed militias for defense and order. In their opinion the Second Amendment does not grant an individual right to private individuals to own firearms.
Gun rights advocates assert that the first 10 amendments are all individual rights. The phrase "the people" used in the 1st, 4th, 9th and 10th amendments refers only to individual rights. By context "the people" in the 2nd amendment has the same meaning.
Gun rights advocates also note that in the Colonial Era "militia" specifically referred to the armed citizenry as a whole (as distinct from an "organized militia" which was a government-controlled body such as a standing army. Currently U.S. Code: Title 10: Section 311: defines the classes of the militia as
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."
The non-Guard members of the militia are all able-bodied male citizens 17 to 45 years old. In essence, a person does not have to be in the National Guard to be in the militia.
On these grounds, gun rights advocates claim that the Second Amendment protects the individual citizens' pre-existing right to keep and bear arms, whether the government agrees or not. In addition, even if the Second Amendment actually had only applied to government-controlled armed bodies, that still does not eliminate a pre-existing natural right of the people to keep and bear arms for self-defense or other proper purposes.
United States v. Miller
Both gun rights advocates and gun control advocates point to United States v. Miller (1939), being the only United States Supreme Court accepted case which partly stood on the Second Amendment, which states in part: "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense... The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."
Both sides in the gun rights debate claim that the Miller ruling supports their positions. The gun control advocates tend to focus on "we cannot say that the Second Amendment guarantees the right", "ordinary military equipment" and "contribute to the common defense." From these phrases they claim that a person must be a sworn member of a government-controlled armed body and must only be in possession of a government-approved type of firearm for the Second Amendment to apply at all.
Gun rights advocates assert that since Miller was certainly not a member of any "government-controlled armed body", then (by the assertions of the gun control advocates) the Court's decision would have had no reason to mention anything further than his lack of militia membership to reject his claims of protection by the Second Amendment. Further, gun rights advocates argue that the Court did not say that this type of firearm was not protected, but simply that no evidence had been presented in the official record ("not within judicial notice") to show that "such an instrument" could potentially be of use towards a well regulated militia, which was what the court was asking for by saying: "In the absence of any evidence tending to show...some reasonable relationship to the preservation or efficiency of a well regulated militia." The Court did not state that the owner of such a firearm needed to actually be in a "well regulated militia" for the Second Amendment to protect his right to own such a firearm, merely that the firearm could be of some use towards "the preservation or efficiency" of such a militia for the Second Amendment to apply.
It is important to note that nobody appeared in either the Appeals Court or the Supreme Court for the accused, Miller, nor to argue the side of the Second Amendment protecting the individual rights to keep and bear arms, nor even to state the fact that sawed-off shotguns were indeed in common use by not only organised militias, but were also common issue to U.S. Army soldiers who fought in World War I. In fact, short-barreled shotguns were normal issue for the U.S. Army right through the Vietnam War and various Special Forces units still use them today. The complete lack of representation for the gun rights side of these issues in Court is probably due to Miller's murder, which had occurred long before the issue got through the appeals process.
Recent rulings
- For sixty years, the executive branch of the U.S. government also rejected the individual rights interpretation. This changed in 2002; a brief filed by John Ashcroft's Justice Department states:
"the amendment broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse".
- The United States Senate subcommittee on the Constitution, chaired by Orrin G. Hatch, submitted a report in 1982 [1] (http://www.constitution.org/mil/rkba1982.htm) with a definitive conclusion that the Second Amendment was written with the intent of individual rights:
"The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner."
A recent federal court ruling to touch on the issue is that of the 5th Circuit Court of Appeals in 2001 in United States v. Emerson. The court of appeals supported the position taken by Ashcroft in its 77-page decision. Notably the court said that the United States v. Miller judgment applied only to a narrow category of firearm not typically carried by individuals. Secondly, as regards to the "right" to bear arms expressed in the Second Amendment, the court said that "as used throughout the Constitution, 'the people' have 'rights' and 'powers,' but federal and state governments only have 'powers' or 'authority', never 'rights.'" Furthermore, "There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words 'the people' have a different connotation within the Second Amendment than when employed elsewhere in the Constitution." However, the decision of the Fifth Circuit is in conflict with those of other circuit courts, such as Silveira v. Lockyer. This means that the Second Amendment is currently understood to create individual rights in certain parts of the country, but not in others. For a historical review of how courts have ruled on the subject, see firearm case law.
Semantic issues
Arms had different extensive meaning in 1789
- 1789 "arms" included flintlock rifles, muskets, and shotguns, one-shot pistols, swords, bayonets, and cannons, so some argue that such is all that the Second Amendment was meant to protect -- not breechloader or repeater shotguns, automatic rifles, grenade launchers, anti-aircraft weapons, nor any weapons of mass destruction. Others contend that if one were to follow that line of reasoning, freedom of speech and of the press would not include radio, nor TV, nor the Internet.
Infringe possibly had a different intensive meaning in 1789
- There is some disagreement over what the word infringe means. Relevant to this are definitions given in the 1828 Webster's Dictionary [2] (http://65.66.134.201/cgi-bin/webster/webster.exe?search_for_texts_web1828=infringe), all of which give a sense of the complete removal of a right, not to encroachment nor to abridgement that is now one meaning of the word. It remains an open question whether or not the 1828 dictionary definition was a complete account of usage of the word at that time. According to the Encarta dictionary [3] (http://encarta.msn.com/encnet/features/dictionary/DictionaryResults.aspx?refid=1861621241) infringe entered the English language about 1550 from the French word frangere meaning "to break", and is the source of the word fracture. An early appearance is in Shakespeare's Measure for Measure. The Supreme Court of the United States has repeatedly permitted to stand many gun-control laws, all of which would seem to constitute abridgements on Second Amendment protections without completely removing them.
See also
External References
- A transcript of the Bill of Rights (from the National Archives) (http://www.archives.gov/national_archives_experience/charters/bill_of_rights_transcript.html)
- Constitution of the United States (http://sources.wikipedia.org/wiki/Constitution_of_the_United_States_of_America)
- Kilman, Johnny and George Costello (Eds). (2000). The Constitution of the United States of America: Analysis and Interpretation (http://www.gpoaccess.gov/constitution/browse.html)
- Sources on the Second Amendment and Rights to Keep and Bear Arms in State Constitutions (http://www1.law.ucla.edu/~volokh/2amteach/sources.htm)
- Right to Keep and Bear Arms Report of the Senate Subcommittee on the Constitution, February 1982 (http://www.constitution.org/mil/rkba1982.htm)
- 1828 meaning of infringe (http://65.66.134.201/cgi-bin/webster/webster.exe?search_for_texts_web1828=infringe)
- Whether the Second Amendment Secures an Individual Right, August 24, 2004 (http://www.usdoj.gov/olc/secondamendment2.htm)
- Guncite: Gun Control and Second Amendment Issues (http://www.guncite.com/)
- Armed and Secure - Because the 2nd Amendment Matters (http://www.armedandsecure.org)
- Jews for the Preservation of Firearms Ownership (http://www.jpfo.org)
- Gunowners of America (http://www.gunowners.org)
- National Rifle Association (http://www.nrahq.org)
- City of Kennesaw, GA Ordinance requiring Gun Ownership (http://www.kennesaw.ga.us/CodeOfOrdinances.aspx)
- David Hardy's blog on Arms & Law (http://armsandthelaw.com)