Second Amendment for dummies who squander it
Constitutional amendments and the Constitution itself can only be properly understood by reading the background material that the Framers wrote explaining their thinking. The Constitution was not written in a vacuum. There was lively debate surrounding nearly every paragraph and clause it contains. A lot of these debates were written down. We are fortunate to have a series of essays called The Federalist Papers which were written by Alexander Hamilton, John Jay, and James Madison to promote ratification of the Constitution. They explain the thinking behind many of the Constitution's articles and the first 10 amendments known as the Bill of Rights.
James Madison is hailed as the “Father of the Constitution” for his pivotal role in drafting the Constitution and the Bill of Rights.
Madison explains the reasoning behind the Second Amendment in Federalist Paper No. 46. He considered the Second Amendment an effective way of reigning in the power of the federal government. His thinking was that citizens bearing arms and loyal to their states would be more than adequate to counteract a tyrannical federal government. He wrote, “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate [state] governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition [of the federal government].”
The combination of armed citizens and local government would be enough to overcome any attempt at curtailing individual liberty. Put differently, the Second Amendment was intended to guarantee the right to bear arms so that citizens could defend themselves, their families, and their communities against tyranny.
Some gun control activists try to claim that the Second Amendment is a collective right, not an individual right. They claim that Second Amendment rights are limited to arming the National Guard. They are confusing the justification clause with the rights clause of the amendment.
The 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 justification clause is: “A well regulated Militia being necessary to the security of a free State,”
The rights clause is: “the right of the people to keep and bear Arms shall not be infringed.”
According to constitutional scholar Professor Eugene Volokh of UCLA, “The justification clause does not modify, restrict, or deny the rights clause.” In other words, citizens have an individual right to bear arms regardless of whether there is a “well regulated Militia.”
Even the words, “well regulated Militia,” are misconstrued. “Militia” meant something altogether different to the Framers than the way it is used today. It does not refer to an existing entity like the National Guard. No such entity existed when the Bill of Rights was ratified. It was the Dick Act of 1903 that designated the National Guard as the “organized militia.” All other citizens were the “unorganized militia.” The National Guard is only a part of the militia, and the whole militia comprises the population at large.
Even the words, “well regulated” are misunderstood to mean a writ of authority. However, that is not the way it was used during the Colonial Period. The origin of the phrase “a well regulated militia” comes from a 1698 treatise “A Discourse of Government with Relation to Militias” by Andrew Fletcher, in which the term “well regulated” was equated with “well-behaved” or “disciplined.”
This understanding of the Second Amendment has been reaffirmed in many Supreme Court decisions. For example in United States v. Cruikshank (1876), the Supreme Court noted that the Second Amendment was a prohibition against Congress from disarming citizens.
In District of Columbia v. Heller (2008) the Supreme Court again firmly established that the Second Amendment is an individual right. In 2010 the Supreme Court extended the principles established in Heller ensuring that the Second Amendment's protections applies across the entire United States, including at the state and local levels. This means that citizens have the right to carry arms in public areas, not just within the confines of their homes or in federal areas such as Washington DC.
It is worth noting that the Supreme Court has been consistent in its Second Amendment rulings for more than 160 years.
The justification for the Second Amendment — its purpose — as intended by the Framers, is to secure the right to bear arms so that we can protect ourselves, our families and communities from government tyranny. But the right to bear arms is not limited by this justification.
