This paper examines the Second Amendment to the United States Constitution — "the right to bear arms" — tracing its origins from the Declaration of Independence and the founding of the American republic through its contested interpretation in modern courts and scholarship. Drawing on legal scholars including Abrams, Kinsey, Levinson, and Cottrol and Diamond, the paper argues that the Amendment was drafted with state militias in mind and does not confer an individual right to own or carry firearms. The paper also compares the Second Amendment to Article Seven of the English Bill of Rights of 1688, finding a shared ideology of conditional, law-regulated armament rather than an unconditional individual entitlement.
When the Thirteen Colonies declared their independence in 1776, they broke away from one of the most powerful nations in the world at the time. With the signing and ratification of the Bill of Rights and the Constitution, they brought forward a series of legal documents envisioned to address every instance of grievance they had felt under Great Britain. Moreover, the idea of removing themselves from any contact with Great Britain was to secure a free future from the tyranny of the Crown.
It must be asked, however, whether the Constitution of the United States and the Bill of Rights actually avoided the tyranny of George III that had been described within the Declaration of Independence of 1776.
Between the eleventh and twenty-eighth of June 1776, Thomas Jefferson, with the consent of the Continental Congress, prepared a document that was to reshape the face and history of many nations across the globe — especially the histories of America and Great Britain. The Declaration of Independence, or to give it its full legal title, "The Unanimous Declaration of the Thirteen United States of America," is the most cherished document in America's history. It is a symbol of liberty and freedom from oppression for many Americans.
Jefferson's words were not meant to provoke philosophical debate; rather, they were an inspiration for the hearts and minds of the oppressed members of the thirteen colonies and an accusation against King George III of England. Jefferson clearly stated that all he and the Continental Congress wished for was freedom under the natural state that God had ordained. Jefferson's words and philosophical ideals were not entirely new — they drew on the ideals of individual liberty that John Locke had previously expressed.
Rather than inventing new philosophy, Jefferson took these self-evident truths and set forth a list of accusations and grievances against the King in a systematic and legal way, justifying a severing of the bonds that held the thirteen colonies to Great Britain.
The Constitution of the United States was written in 1787 and ratified by the thirteen colonies in 1789. It is made up of seven Articles, each concerning a different aspect of government, and is supported by the Amendments to the Constitution, of which there are now twenty-seven. In 1789, however, there were none. The aim of the Constitution was to serve as the supreme law of the newly formed United States of America and to establish a new republican-style government with three branches, as laid out by Montesquieu's theory of the separation of powers: the judicial, executive, and legislative.
The Bill of Rights consists of the first ten amendments to the Constitution, each written on December 15, 1791. They are:
Amendment I [Religion, Speech, Press, Assembly, Petition]; Amendment II [Right to Bear Arms]; Amendment III [Quartering of Troops]; Amendment IV [Search and Seizure]; Amendment V [Grand Jury, Double Jeopardy, Self-Incrimination, Due Process]; Amendment VI [Criminal Prosecutions — Jury Trial, Right to Confront and to Counsel]; Amendment VII [Common Law Suits — Jury Trial]; Amendment VIII [Excess Bail or Fines, Cruel and Unusual Punishment]; Amendment IX [Non-Enumerated Rights]; Amendment X [Rights Reserved to States].
The Bill of Rights is a guarantee for all citizens of the United States of America. In looking at the new Constitution and the Bill of Rights, there is clear evidence that the Founding Fathers remembered well the lessons they had learned under the tyrannical rule of King George III. The people had suffered greatly — many had been killed by British troops for trivial reasons and in many ways had no legal recourse. The new laws gave power to the people: the right to speak without fear of imprisonment, to protect their homes, and protection from wrongful seizure of property or undue punishment. No longer would they have to fear the redcoats of George III. They were free.
It is the Second Amendment that has proven to be the most misleading amendment in the Bill of Rights. Throughout its history, citizens of the United States have continually misinterpreted this amendment, either deliberately or by genuine mistake. The text of the Second Amendment reads: "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 United States appeals court stated in 1973: "It must be remembered that the right to bear arms is not a right given by the United States Constitution" (cited in Abrams). In his article "What Right to Bear Arms?", Abrams quotes the above ruling and then asks: "No right to keep and bear arms? After everything we have heard about the Second Amendment of the United States Constitution?"
Since the mid-1800s, Americans have tried to defend their conduct by invoking their right to bear arms under the Second Amendment. Since that time, courts have consistently replied with essentially the same ruling — one that mirrors the 1973 appeals court decision. So why, in the twentieth and twenty-first centuries, are people still attempting to invoke the Second Amendment? Why have they forgotten, or why are they ignoring, the law?
In looking at the Second Amendment and its interpretation, there is no mention of the "right to bear arms" outside the context of state militias. Every case the courts have interpreted concerning the Amendment has been within the scope of the militias (Abrams). Furthermore, the courts have held that the Second Amendment does not give a citizen the right to carry a concealed weapon, possess a firearm, or "bear an arm for a lawful purpose" (Abrams).
The National Rifle Association ran advertisements featuring images of bloodied Chinese students, with text arguing that if the Chinese had had the right to bear arms under the Second Amendment, they might have been able to resist their despotic government (Abrams). These advertisements reopened the argument about how the Second Amendment fits into modern society. However, the courts have remained adamant in their interpretation: the Amendment was written with the militias in mind, and the courts have consistently reasoned accordingly (Abrams).
Abrams concludes his article by quoting Justice Douglas, who stated: "A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment — designed to keep alive the militia" (cited in Abrams).
In "Slicing Up the Second Amendment," Michael Kinsey discusses the right of militias to arm themselves but also argues that the Amendment does not provide for individual citizens to arm themselves. Kinsey moves on to discuss the First Amendment and free speech, drawing a contrast with how citizens invoke different amendments. He notes that political parties hold divergent views on the amendments: using liberals as an example, Kinsey points out that if they were to argue the Second Amendment on the same grounds as they argue others, many law professors would be arguing for mandatory gun ownership (Kinsey).
Kinsey draws on an article by Don Kates published in the 1983 Michigan Law Review. Kates points out that when the Second Amendment was written, all able-bodied men formed part of the militia. This argument is, however, very weak, because it is no longer necessary for all able-bodied men to be part of the militia, and therefore this does not extend to them a right to bear arms (Kinsey).
"Abrams, Kinsey, Kates, and Levinson on gun debate"
"Comparing Second Amendment to English 1688 Bill of Rights"
Society has no need to be armed. Citizens are protected by the police and, in the event of a national emergency, by the national guard — the new militia. Therefore, when the debate over gun control is continually driven by lawyers who argue that their clients have been wrongfully arrested for carrying a weapon, and the courts return to the same consistent ruling regarding the Second Amendment, it becomes clear that such lawyers have not learned from precedent, have not studied the legal theory and terminology embedded in the founding documents, or are simply determined to be controversial.
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