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Second Amendment to the U.S. Constitution

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 abridged. 

 

The Second Amendment to the U.S. Constitution, which was adopted as part of the Bill of Rights in 1791, guarantees the fundamental right "to keep and bear Arms."  Plainly, the amendment protects the ownership and use of weapons, including firearms.  But like many constitutional provisions, the amendment is written at a high level of generality and the specific parameters of the right are undefined.  So what does it mean?  What kinds of weapons and firearms does it allow Americans to own and use?  What kinds of regulations does it allow the government to impose on the ownership and use of weapons and firearms?  What is the meaning of the reference to "a well regulated Militia"?   These are difficult questions, which are heatedly debated by advocates and opponents of "gun control."  Ultimately, these questions are the province of the courts, which are empowered in our system of government to decide the meaning of the Constitution.  As Chief Justice John Marshall declared in the seminal case of Marbury v. Madison (1803):  "It is emphatically the duty of the Judicial Department to say what the law is."

In two recent landmark decisions, the U.S. Supreme Court has examined and explained the Second Amendment.  The cases are District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010).       

District of Columbia v. Heller

The Heller case involved a constitutional challenge to District of Columbia gun control laws that effectively prohibited ownership of handguns and also required residents to keep their lawfully owned firearms (like rifles or shotguns) "unloaded or dissembled or bound by a trigger lock or similar device" unless they were located in a place of business or were being used for lawful recreational activities -- which effectively prohibited the use of firearms in the home for self-defense purposes.

In a lengthy decision (written by Justice Scalia and joined by Justices Roberts, Kennedy, Thomas, and Alito, with Justices Stevens, Souter, Ginsburg, and Breyer dissenting), the Supreme Court examined the historical meaning of the language used in the Second Amendment, including the ambiguous and controversial Militia clause.  As the Court explained:  "In interpreting this text, we are guided by the principle that the Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning."  Applying this interpretive approach, the Court reached the following conclusions (which are summarized here, but explained and supported in scholarly detail in the Court's opinion):

The amendment codifies a "right of the People," and such language when used in the Constitution always refers to individual rights.  "We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans."

The meaning of the term "Arms" when the amendment was adopted "is no different from the meaning today. . . . The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity."  The Second Amendment "extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

The meaning of "bear Arms" is "the carrying of the weapon for offensive or defensive action," unrelated to any structured military organization or purpose.

In sum, "[p]utting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.  This meaning is strongly confirmed by the historical background of the Second Amendment."  The Court then surveyed English and colonial precedents demonstrating that by the time of the Founding, the right to keep and bear arms was widely understood as a fundamental individual right.  "Of course, the right was not unlimited," and the Supreme Court in Heller expressly stated that "we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation . . . ."  

The Court then turned to the perplexing Militia clause, explaining that it does not refer to any organized military institution, but rather to the entire male population capable of acting in concert for the common defense.  The purpose of the clause, therefore, is to declare that the American people must retain the right to keep and bear arms in order to be available to serve, when necessary, in the "militia"; importantly, the purpose of the clause was not to limit the right to keep and bear arms only to persons serving in the organized military.  As the Court pointed out, such an interpretation would render the Second Amendment a nullity because it would make the right to keep and bear arms dependent on Congress' authority to decide who can serve in the military; on this view, Congress would have the power to "disarm" large swaths of the American population simply by excluding them from military service.  This interpretation contradicts the original reason that the right to keep and bear arms developed in Anglo-American civilization:  to enable an armed populace to oppose a tyrannical government or faction.

The Court next reviewed the historical precedents from after the Second Amendment was adopted, showing that they confirm that the amendment was understood to protect the individual right of all Americans to keep and bear arms for self-defense and for other legitimate purposes.  This is the meaning of the Second Amendment that the Supreme Court adopted in Heller.  Nevertheless, the Court emphasized that, "[l]ike most rights, the right secured by the Second Amendment is not unlimited . . . . [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

Lastly, having established the parameters of the Second Amendment right to keep and bear arms, the Court addressed the validity of the DC laws at issue.  First, the Court declared the handgun ban unconstitutional:  "As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right.  The handgun ban amounts to a prohibition of an entire class of 'arms' that is overwhelmingly chosen by American society for that lawful purpose.  The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute.  Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family would fail constitutional muster. . . . Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid."

Second, the Court invalidated the requirement that firearms in the home be rendered and kept inoperable at all times.  "This makes it impossible for citizens to use them for their core lawful purpose of self-defense and is hence unconstitutional."

The Court's opinion concluded thusly:

In sum, we hold that the District’s ban on handgunpossession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.  Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgunownership is a solution.  The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns.  But the enshrinement of constitutional rights necessarily takes certain policychoices off the table.  These include the absolute prohibition of handguns held and used for self-defense in the home.  Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.  That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.  

McDonald v. City of Chicago

The McDonald case involved a constitutional challenge to gun control laws in Chicago and Oak Park (a suburb of Chicago), Illinois, "effectively banning handgun possession by almost all private citizens" who resided in those cities.  These cities' laws were similar to the District of Columbia laws struck down in the Heller case.  Under the reasoning in Heller, these laws clearly were unconstitutional.  However, the issue in McDonald was whether the Second Amendment applies to the states, not just to the federal government (which the District of Columbia is considered part of).  The Supreme Court said yes, and declared the laws unconstitutional.

The technical legal issue in McDonald was whether the Second Amendment is "incorporated" into the rights and liberties protected by the due process clause of the Fourteenth Amendment.  As the Supreme Court explained, "[t]he Bill of Rights, including the Second Amendment, originally applied only to the Federal Government."  However, "[t]he constitutional Amendments adopted in the aftermath of the Civil War fundamentally altered our country's federal system.  The provision at issue in this case, s. 1 of the Fourteenth Amendment, provides, among other things, that a State may not abridge 'the privileges and immunities of citizens of the United States' or deprive 'any person of life, liberty, or property, without due process of law.'"  The question was whether the Second Amendment was part of the rights and liberties protected by the Fourteenth Amendment.

After rejecting the petitioners' argument that the Second Amendment was included in the "privileges and immunities" clause of the Fourteenth Amendment, the Court examined whether it was included in the Fourteenth Amendment's due process clause, concluding that it was based on a wide reading of historical sources.  The Court's analysis showed that the right to keep and bear arms for self-defense -- which Heller explained is the "central component" of the Second Amendment right -- is a "basic right" that is "fundamental to our scheme of ordered liberty" and "deeply rooted in this Nation's history and tradition."  After examining the legislative history of the Freedman's Bureau Act of 1866 (intended to protect the rights of newly freed slaves) and the Civil Rights Act of 1866 (Which the Fourteenth Amendment was intended to constitutionalize), the Court concluded that "it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."  The purpose of the Fourteenth Amendment was to protect these rights for all Americans against the encroachments and oppressions of state and local governments.  The Court rejected the cities' arguments that the rights protected by the Second Amendment should be treated differently, and less favorably, for Fourteenth Amendment purposes than the other rights protected by the amendment (including First Amendment and Fourth Amendment rights).  "Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise, that guarantee is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values."   

In sum, the Second Amendment applies equally to state and local governments as to the federal government and, therefore, the Chicago and Oak Park gun control laws were unconstitutional for the exact same reasons set forth in Heller


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