The Second Amendment: History, Meaning, and Supreme Court Rulings

Introduction

The Second Amendment was ratified in 1791 and is the amendment to the US Constitution that protects the individual's right to bear arms. Yet there have been numerous challenges to this Amendment, particularly as 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 discusses why the Second Amendment was added to the US Constitution and what the Supreme Court has had to say about it in several important cases.

English Common Law and the Origins of the Right to Bear Arms

The right to bear arms in the United States 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 William Blackstone's Commentaries on the Laws of England laid the foundation for this system of natural rights, and it carried on for centuries, informing the new American citizens when they established their own Constitution. 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 arguing that state militias would be needed to keep a standing federal army in check. That is ironic because today the federal government represents the biggest perceived threat to the individual's right to bear arms.

It was as though, at the end of the eighteenth century, the Federalists understood 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."

The right to bear arms was, in other words, synonymous with the right to operate a regulated militia. This right grew out of the colonists' sense that they needed 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 formal protection at the time. If the only defense the settlers had was that supplied by the British army, they were unlikely to feel confident in the security of their persons or possessions.

The Federalist Debate and the Second Amendment's Constitutional Purpose

The colonists also wanted to ensure 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 United States. Many states wanted to remain independent and to operate their own local governments. The Federalists, however, wanted more than a loose confederation of states; they wanted a central government that could oversee a union of states and exercise some power over them. This conflict is really what led to the Second Amendment: the tension between state and federal powers. It had little to do with an individual's right to own particular weapons, as the debate is often framed today.

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 strict limits on what the federal government could do. The United States essentially had no standing army and was dependent upon militias. The Federalists viewed this as a problem, arguing that the newly created nation would need a standing army to put down rebellions such as Shays' Rebellion. Anti-Federalists, who favored militias over a federal army, considered this argument weak. The Federalists ultimately incorporated the Second Amendment into the Constitution in part to undermine the Anti-Federalist argument that a central government would strip power from the states. Thus, the Second Amendment was fundamentally part of the great debate between state and federal authority over where the bulk of power in the United States would reside.

Gun Rights in the Courts: Key Supreme Court Cases

It would not be until the second half of the twentieth century that the issue of gun rights was taken up in earnest by scholars, commentators, and courts. Prior to that period, gun ownership had not been hotly debated or extensively regulated. But as gun violence mounted in America and mass shootings became more common, people began arguing that the Second Amendment was meant to protect a collective right — namely, a state's right to maintain a militia — rather than an individual's right to own a firearm.

However, in the 2001 case United States v. Emerson, the court ruled in favor of individual rights when interpreting the Second Amendment. The Supreme Court ruled the same way in District of Columbia v. Heller in 2008. The Court held that the prefatory clause of the Second Amendment functions more as a statement of purpose than as a defining limitation on the right, and therefore the Amendment must be interpreted as protecting not only a collective right but also an individual's right to bear arms. The Supreme Court reaffirmed this position in McDonald v. City of Chicago (2010), ruling that the individual has the right to own a gun and bear arms against state and local government restrictions. In 2016, the Supreme Court overturned a state conviction in Caetano v. Massachusetts on the same grounds, ruling that the defendant's conviction for carrying a stun gun violated her constitutional right to bear arms.

Conclusion

The Second Amendment was not meant to be such a controversial right; it was meant to serve as a curb on the power of the federal government to act tyrannically over the states. In that sense, it has arguably failed, as today the federal government operates with considerable power, largely unchecked except by the Supreme Court when it chooses to take up relevant cases. The people themselves have very little institutional power, and militias are frequently viewed by federal agencies as potentially radical organizations. The Second Amendment may offer little practical protection for such groups today — and yet that protection was precisely what the Amendment was designed to provide when it was ratified at the end of the eighteenth century. Now, more than 200 years later, that original purpose has been largely forgotten, and the debate over the Second Amendment has transformed into something quite different from what its framers intended.

Bibliography

2nd Amendment, US Constitution.

Blackstone, Sir William. Commentaries on the Laws of England. Accessed at https://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp

Madison, James. Federalist No. 46. Accessed at https://avalon.law.yale.edu/18th_century/fed46.asp