Gun Rights and the Second Amendment
The phrase “right to bear arms” comes from the Second Amendment of the Bill of Rights. The Second Amendment is comprised of only 27 words, stated as,
“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 first half of the Second Amendment describes that it is necessary for a free State to maintain a “well regulated Militia”. The meaning of “well regulated” differs from our present day usage of the phrase. Here, “well regulated” is the equivalent of “well-armed” or “well-stocked”. And in order to form a “well regulated Militia”, the second half of the amendment states that the people have the right to “keep and bear Arms”.
In many ways, the Bill of Rights has become an embodiment of American culture. And the Second Amendment is no exception.
Dispute over the interpretation of these 27 words has been significant. Gun rights advocates have previously cited the Second Amendment as support for their side, arguing that the right for a citizen to bear arms is a fundamental aspect of American freedom.
However, protesters and scholars alike have pointed out the change our society has undergone since 1791, the year of the Bill’s ratification, arguing that both the wording and the purpose of the Second Amendment is outdated.
The story of the Second Amendment begins at the Constitutional Convention in 1787. The question of the gun rights of citizens was a product of a much larger question regarding the amount of power that should be given to the State and Federal government. The Anti-Federalists had suggested that in the case of Federal oppression, a stronger State government could provide protection to its citizens. The Federalist responded that in a balanced Federal government, armed oppression was highly unlikely. Furthermore, they responded that an armed American population would be almost impossible to subdue with a military.
In 1791, the weapons owned by citizens were of little difference to that owned by the military. Today, it is obvious to see that there is an enormous difference between our military’s equipment and the weapons available to citizens. However, the argument of whether or not and armed populace could defeat or at least match that of the United State’s military is extremely broad and complex, and for our purposes, would not be discussed in the remainder.
Please keep in mind that the following courts cases are summarized in an extremely brief manner.
In 1876, the Supreme Court rejected the interpretation that the Second Amendment protected the right of individuals to keep and bear arms from infringement by the State government in United States v. Cruikshank. US v. Cruikshank was evidence of the Supreme Court’s narrow interpretation of the Fourteenth Amendment. The Court had sided with the defendants, declaring that the Second Amendment right to the bearing of arms was of an aim to restrict the actions of the Federal government, and hence did apply to the state or private citizen. After the case, the Second Amendment was treated with far less importance by the American people and legal system.
Another considerable change since 1791 was the adoption of the Fourteenth Amendment in 1968, which forbid the States to restrict the basic rights and privileges of its citizens. The question soon arose of whether the right to bear arms fell under these basic rights and privileges.
In 2008, the Supreme Court refuted a similar law to that discussed in United States v. Cruikshank in District of Columbia v. Heller. The case restricted any civilians from possessing handguns in the nation’s capital. This case marked a change in interpretation, for it ruled that the Second Amendment protects an individual’s right to bear arms for self-defense and not necessarily the right of a state to maintain a militia.
Two years later, the Supreme Court made another major ruling in McDonald v. City of Chicago that refuted a similar handgun ban at the State level. The ban was struck down by 5 -4 vote. The four Justices cited the Fourteenth Amendment’s Due Process Clause, while the other five Justices concluded that the Fourteenth Amendment supports the Second Amendment in that it protects an individual’s right to bear arms at both the State and Federal level.
The court case of Caetano v. Massachusetts occurred in the year 2016, providing a good example of our Court’s current stance on this subject. The specific weapon of concern in the case was a stun gun. The Massachusetts Judicial Supreme Court had ruled that a stun gun did not fall under the Second Amendment. The United States Supreme Court, on the other hand, stated that the Second Amendment also protects arms that did not exist at the time of its ratification. From this evidence, one could argue the proof of the continuous effectiveness of the Second Amendment, regardless of the time period in which it is questioned.
There is no question that there has been a great deal of change since 1971. The question, instead, lies in how the Second Amendment should be treated today with consideration to its historical context. Though some may argue that the right to bear arms is supported by the Second Amendment, it is absolutely incorrect to believe that the precise intention for which the Second Amendment was written is identical to the purpose it serves today. It is only after numerous court cases that we have largely established that the Second Amendment refers to an individual’s right to bear arms.
Even if the individual rights interpretation of the Second Amendment is completely legally sound, many of our current beliefs, not laws, differ from the beliefs during the time of its ratification, and these beliefs, not their legal standing, are what makes certain aspects of gun rights still debatable. After all, it is the people, collectively, that are the ones who will challenge preexisting notions and fuel this debate that is nowhere near dissipating.
Thank you for reading. I am aware of the controversy of this issue. Any feedback or criticism would be greatly appreciated. Please feel free to comment your opinions and thoughts on this situation below.