Federalists on Anti Federalists on Second Amendment

The Second Amendment

The Second Amendment was ratified in 1791 and is the Amendment to the US Constitution that protects the person’s right to bear arms. Yet there have been numerous challenges to this Amendment, particularly since gun violence has increased in America in recent decades. Some believe the Amendment should be restricted or overturned, while others believe that the right to own and carry a gun is an inherent right in America that must be protected at all costs. This paper will discuss why the Second Amendment was added to the US Constitution and what the Supreme Court has had to say about it in important cases.

The right to bear arms in the US was based upon common law in England, where it was held that the natural right to self-defense meant that one could bear arms. Sir Blackstone’s Commentaries laid the foundation for this system of natural rights and it carried on for centuries, informing the new American citizens when they set up their own Constitution.[footnoteRef:2] The notions of independence and self-determination were bound up in the idea of bearing arms in self-defense. Yet, ironically, it was the Federalists who justified the idea of bearing arms by stating that state militias would be needed to keep a standing federal army in check.[footnoteRef:3] That is ironic, because today the federal government represents the biggest threat to the individual’s right to bear arms. It was as though at the end of the 18th century, the Federalists knew that if they wanted the states to accept the Constitution, they would need to persuade them that a centralized power would not be a threat to their individual rights. Regardless of the motive, the right was recorded in history in these words: “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.”[footnoteRef:4] [2: Sir William Blackstone, Commentaries on the Laws of England, https://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp] [3: James Madison, Federalist No. 46, https://avalon.law.yale.edu/18th_century/fed46.asp] [4: 2nd Amendment, US Constitution]

The right to bear arms was, in other words, synonymous with the right to operate a regulated militia. This right was born out of the sense that the colonists had of the need to protect their homes, land, frontier, and communities from invasion, attack, or corruption. The idea was connected to having a militia because there was little in the way of police or other kind of protection at the time. If the only defense the settlers had was the defense supplied by the British army, they were unlikely to feel confident in their persons or possessions.

The colonists also wanted to make sure that they would not be susceptible to any form of tyranny in the future. They had just fought a war against the English crown, and it did not make sense to many of them to turn around and hand all power to a newly formed centralized government in the US. Many states wanted to be independent and to have their own state governments that could be operated locally. But the Federalists wanted more than a loose confederation of states; they wanted a central government that could oversee a union of states and have some power over them. This conflict is really what led to the 2nd Amendment: the conflict between state and federal powers. It did not have anything to do with an individual’s right to own a bump stock, as is often felt to be the case today whenever the 2nd Amendment debate pops up.

During the Revolutionary War, American forces consisted of militias, some French support, and the Continental Army. After the War, the states were governed by the Articles of Confederation, which placed a limit on what the federal government could do. The US essentially had no standing army and was dependent upon militias. The Federalists viewed this as a problem because the way they saw it, the newly created nation would need a standing army in order to put down rebellion like the Shays’ Rebellion. But the anti-Federalists who were more in favor of militias than a federal army viewed the argument as a weak one. The Federalists had to basically put the 2nd Amendment into the Constitution in order to help undermine the anti-Federalist argument that the central government would take away power from states. Thus, ultimately, the 2nd Amendment was part of the big debate between states and the federal government and which would have the bulk of the power in the US.

It would not be until the second half of the 20th century that the issue of gun rights would be taken up in earnest by scholars, commentators, and courts. Prior to the second half of the 20th century, gun ownership had not been hotly debated or even well-regulated. But as gun violence mounted in America in the second half of the century and mass shootings became more and more common, people began arguing that the 2nd Amendment was meant to protect a collective (i.e., a state’s rights) and not so much an individual person’s rights.

However, in the 2001 case, the US v. Emerson, the court ruled in favor of individual rights when it interpreting the 2nd Amendment. The Supreme Court ruled the same way in DC v. Heller in 2008. The Court argued that the prefatory clause in the 2nd Amendment is more of a literary flourish than a defining feature of the right, and therefore it is not to be interpreted solely as a right of the collective but also as a right of the individual to bear arms. The Supreme Court ruled the same way in another important case in 2010, McDonald v. Chicago: the individual has the right to own a gun and bear arms. The Supreme Court overturned a state court conviction in 2016 in the case of Caetano v. Massachusetts on the same grounds, ruling that the person convicted for carrying a stun gun had a right to bear arms and thus the conviction was found to be a violation of the person’s rights and was overruled.

The Supreme Court has thus showed that the individual person has a right to bear arms even though the 2nd Amendment was primarily added to the Constitution in order to quiet states about the concern of having a centralized government with a standing army and too much power. The big issue in recent years has been the fact that guns have become so powerful and can be easily obtained by people who have bad intentions on others. People who want to limit the spread of guns on the streets are seen as left-wing, and people who want to see guns as legal and capable of being carried everywhere are seen as right-wing, and this creates a conflict in society as two sides are unable to debate an issue without resorting to name calling fighting.