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| Part of a series on the|
|Standards of review|
|Other legal theories|
|Defining moments in law|
The Second Amendment to the United States Constitution is part of a collection of the first ten amendments also known as the Bill of Rights (1789). It states: "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".
Variously, this has been interpreted as a statement recognizing the right of state governments to maintain their own militias, a sop to the states for the authority they lost in the transition from the Articles of Confederation to the Constitution. Since the Fourteenth Amendment (1868) applied the Bill of Rights to the states (something which was not the case before the Civil War), the Second Amendment has increasingly been interpreted as recognizing an individual right to firearm ownership. This right was recognized by the conservative majority on the Supreme Court in the 2010 case McDonald v. Chicago, clearing up any uncertainty left by the Court's earlier decision in D.C. v. Heller.
The United States is the only country with such a constitutional amendment, though a few keep similar policies (e.g. Mexico). Every other democracy that maintains stricter gun controls continue to scratch their heads on why this is such a big deal.
- 1 RationalWiki commentary
- 2 As viewed from outside the US
- 3 What is meant by "arms"
- 4 See also
- 5 External links
- 6 References
The historical significance of the Second Amendment.
It is obvious that the Second Amendment refers to
- The need for a regulated militia which is
- necessary for the security of the state
- and to maintain this militia an armed citizenry is needed and
- consequently the citizens need to be allowed to both keep and bear arms.
In jurisprudence, the "well-regulated militia" part is the justification clause, while the "right of the people" part is the operative clause. Some gun-ownership enthusiasts claim that justification clauses are fluff that should be totally ignored; this UCLA law professor says "yes and no."
What was the purpose of the Second Amendment? The intent was two-fold: first was out of mistrust of standing armies; the drafters of the Second Amendment feared that the standing army would overthrow democracy, so they wanted to figure out a way to disband armies in times of peace while maintaining their weapons under strict regulations. They clearly couldn't disband the standing army in times of peace, so they made a compromise by allowing the citizenry to bear regulated arms as a deterrent to the standing army. Secondly, and perhaps most revealingly, these same militias would be used to patrol slave states in the South, to make sure they don't commit the "crime" of fleeing their abusive masters. It was designed to preserve slavery. 
The amendment is frequently quote mined to only include the "rights" part which says "the right of the people to keep and bear arms, shall not be infringed". It is just as frequently quote mined to only include the part that says "a well-regulated militia." Both sides just plain need to chill.
The need for an armed militia today.
With the existence of the heavily armed National Guard and a comparatively peaceful border situation, it is not clear that citizens' militias are still necessary to deter attacks from Mexico, Canada and the Bahamas. (to say nothing of France, Spain, and England! OMGZ!) Of course, it's not clear that anything like the present standing military is at all necessary for this either; most of the US' national defense needs are more than adequately served by geography.
Even the citizen's militias are subject to control by the President during hostilities:
Article II section 2: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States
The need for a well armed citizenry today
Revolution is not necessary in a government that fears its citizens. Of course, in order for this argument to carry any weight, the citizenry must be as well- or better-armed than the government. There is a saying that "A well-armed populace is the best defense against tyranny." This can be read as a slightly more legal way of saying "we need guns in case the President ever gets too powerful and we have to shoot him." It deserves some consideration, although one could argue that if people were prepared to use their guns to revolt against the President, it would have happened by now. This is the same sort of logic that the Romans applied to King Tarquin and Julius Caesar. The contrast is with the gun-hating Commies in France, who have had not one but three violent revolutions against tyrannical governments, and keep up the tradition every year by burning cars and breaking windows in the streets of Paris. One can only conclude that for all the rantings of the Tea Party and the worship of Thomas Jefferson's famous statement that the tree of liberty needs to be watered by the blood of tyrants, Americans are all talk.
Equally one could argue that revolution is not necessary in a nation governed by its citizens. If a true democracy is in place one would wonder what the citizens have to fear. The US is unique among democratic nations in apparently having the idea that democracy requires an armed citizenry - why is democracy deemed to be so fragile in the US that it is felt to need this protection? Of course, democracies and republics have a colorful history of turning tyrannical, so while some scoff at the notion of the government turning against the people, the argument does hold weight.
Then again, the US is also one of the oldest continuously existing democracies today. Whereas the US government has never been dissolved since its inception, in roughly the same amount of time France has gone through five republics, two empires, two monarchies, two periods of foreign occupation (more or less) and a smattering of different ruling assemblies and popular fronts and periods of outright anarchy. Maybe guns can actually be stabilizing to a society. Either that or the French just really love chopping off heads.
Since not every gun owner wants to serve the country as a form of militia or regular military personnel, the problem is to link between well-armed citizenry and well-regulated militia. The answer can be found in US Code Title 10 Chapter 13: The militia of the United States consists of all able-bodied males at least 17 years of age and, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. The classes of the militia are the organized militia (the National Guard and the Naval Militia) and the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia (i.e. all other able bodied males etc). 
On the other hand
Gun ownership is widespread; restrictions on individual gun ownership which declare gun ownership off-limits to some people and to some types of firearms, and mandatory minimum sentences under federal law for technical gun violations, would theoretically have the effect of driving gun traffic underground and putting people in prison for no other reason than something in their top dresser drawer being declared illegal. Guns are dangerous, true, but so are motor vehicles. Opinions may vary widely on guns, and if one is opposed to guns, don't own one.
Furthermore, it seems kind of weird that liberals would be tolerant and support personal choice except on individual gun ownership, and conservatives who otherwise want restrictions on social issues favor individual choice on this one issue - how did this one issue wind up inverted like this? This could be because liberals tend to gravitate to urban settings where moose hunting is rarely done, but gun crime is rampant. Or, conversely, it could be that urban living tends to "liberalize" people due to the intense communal nature of cities (i.e. lots of people in close proximity, quite interdependent on each other), but in the same way, reduces the appeal of guns due to lack adequate wild game for hunting.
Another point, the phrase "militia" in the Second Amendment could be read to mean that all able-bodied Americans form a sort of militia, which can be tapped by the government using the draft (Selective Service). Indeed, since 1903 all able-bodied male U.S. citizens from age 18-45 have been legally classed as the "Reserve Militia" or "Unorganized Militia", to allow them to be called into service should such a dire need arise. Ostensibly, it would be easier to teach someone to fire a weapon if they have some experience with a firearm. An interesting result of this is a justification for denying firearms to the mentally ill: these are people that wouldn't be sent into combat.
Still, it should be noted
For all the lack of clarity of the original intent in the final language of the amendment (which was revised many times in committee, with the clear intent of addressing military service), it should be noted that the amendment does not protect citizens' rights to purchase or build arms, simply to keep and bear them.
As viewed from outside the US
To outsiders, it looks a lot like a religious axiom: something that some US Americans believe as a fait accompli that has no actual support, and asking what its support is gets an angry reaction.
Switzerland is commonly viewed as an example that "guns don't kill people," but there are a great number of issues with said example. Firstly, Switzerland has created increasingly strict gun laws after a number of mass shootings. Second, all guns, ammo, and parts are stored at depots now, and in order to keep a gun, one must register with the police, have yearly psychiatric evaluations, and be subject to random and obligatory home searches to ensure that guns are kept in locked safes. Every piece of ammo is also accounted for, and needless to say, all guns are registered. One must also keep in mind that in order to have this privilege, one must serve in the military, as well, so firearm training is also required. Considering all of these steps in which Switzerland does to keep violence to a minimum, it is obvious that using Switzerland is a poor example, unless one advocates for the same tactics to be used in America. Many in the NRA would consider Switzerland's tactics "tyranny," sadly.
The Belgian political party Mouvement Nation (Nation Movement) wants to introduce the right to bear firearms on Belgian soil. Interestingly, the party itself was banned in Belgium at one point in time due to their anti-immigration stance that would make the Vlaams Belang look moderate by comparison and it's a member of the same European Alliance that Golden Dawn is a member of. It isn't unreasonable to assume that, as these parties become more and more part of national parliaments in Europe, that it will ultimately be viewed as a neo-nazi platform, much to the dismay of any American that doesn't frequent Stormfront.
What is meant by "arms"
For some reason, everyone considers "arms" synonymous with "guns". While gun-control laws may restrict your ability to own a gun, they do not restrict your ability to own a sword, knife, bow and arrow, sling shot, club, pepper spray, taser, or numerous other weapons (but, as with gun control laws, the carry of these as defensive weapons is frequently restricted or prohibited). Interestingly enough, very few gun-rights advocates believe the average citizen should be able to own RPGs, grenades, or high explosives, and even fewer support the right of other countries to maintain a nuclear arsenal. Don't even mention chemical or biological weapons. ("They" have international treaties to regulate those.)
The Supreme Court, in 1939's U.S. v. Miller, pretty much declared that the word "arms" used in the Amendment refers only to those types of weapons used by a well-regulated militia. Ironically, the centerpiece of the case - a short-barreled shotgun - was among the types of weapons used by certain members of the French army during World War I, but the Justices were not aware because the defense did not show up for the hearing, and so no argument counter to the government's assertion was presented. The case was remanded back to the appellate court for fact finding to determine what constitutes arms under the Second Amendment, but that case was never heard. The Federal courts have never gone so far as to say that this means Federal bans on machine guns aren't constitutional, though.
With the Supreme Court never having made a final ruling on U.S. v. Miller, the previous district court ruling stands, in favor of Miller and effectively ruling the entire 1934 National Firearms Act constitutional in its finding of law but unconstitutional in its findings of fact.
The Supreme Court ruled in District of Columbia v. Heller in 2008 that handguns, as the weapons overwhelmingly chosen by Americans for their personal defense, fell under the definition of arms as articulated by history and case law, and reused this holding in 2010's McDonald v. Chicago.
- Mark Pitcavage's article on the history of the militia in America.
- Antonin Scalia from the right wing said about the limits: "Obviously the amendment does not apply to arms that cannot be hand-carried, it's the 'keep and bear,' so doesn't apply to cannons; but I suppose there are handheld rocket launchers that can bring down airplanes that will have to be decided."
- If one is opposed to guns in some circumstances on the basis of their potential harm to others, um, one is free not to harm others with the guns one does not own, of course. However, the issue of how to keep people from getting killed by bullets they don't own is left as an exercise.
- The Urban Archipelago is an essay written by Dan Savage and staff at his Seattle altpaper The Stranger. While it is an opinion piece, the vote maps from the 2004 election illustrate this point quite strongly. (The map also shows significant numbers of Democratic voters in minority-majority areas such as the Mississippi Valley and mining/industrial areas like the Appalachian mining country.)
- In the United Kingdom, for example, you commit a crime by carrying anything you consider to be a weapon you might use in self-defense.
- Except in United States v. Haynes, where the court ruled that convicted felons are constitutionally immune to registration requirements because forcing them to register their firearms would constitute forced self-incrimination.
|U.S. Constitution articles on RationalWiki|
| Preamble • Articles: 1 - 2 - 3 - 4 - 5 - 6 - 7
Interpretation: Originalism - Textualism - Responsive interpretation • Modes of review: Rational basis - Intermediate scrutiny - Strict scrutiny