What Are Second Amendment Rights?
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 current debate over the right to bear arms and gun control centers on 27 words that became the Second Amendment added to the Constitution in 1791. The extent to which government, both state and federal, can impose restrictions on handgun possession continues to spark political and emotional debate 226 years after the amendment was ratified by the states and nine years after a landmark decision by the U.S. Supreme Court.
Background and historical perspective
Debate in Philadelphia at the Constitutional Convention in 1787 focused on the different views of government held by the federalists and antifederalists. The federalists, including James Madison and Alexander Hamilton, favored a strong central government. The antifederalists, such as Patrick Henry and George Mason, believed a powerful government had the potential to bring back the tyranny they fought against under British rule.
The Bill of Rights, the first 10 amendments to the Constitution, was favored by the antifederalists. They saw it as a way to limit the power of the federal government. The Second Amendment ensured citizens of the fledgling nation would be armed and prepared to protect themselves against threats to their new-found liberty.
Debate over the meaning of those 27 words
Use of the phrase "a well-regulated militia" fueled the argument that the Constitution restricted the right to bear arms to members of organized military units, such as the National Guard. This side of the argument believes state and federal lawmakers have the power to ban gun ownership without violating the Constitution.
On the other side of the debate are those supporting an individual's right to own a firearm. They point to "the right of the people to keep and bear arms, shall not be infringed" as supporting the rights of all citizens to own and possess firearms without restrictions placed upon them by government rules and regulations.
Waiting for the Supreme Court
Most differences of opinion regarding the Constitution usually end up in the Supreme Court, but the Court had very little to say about the Second Amendment until 1939 when it decided a federal law prohibiting possession of a sawed-off shotgun was not unconstitutional. It said the type of weapon involved in the case had no relationship to preserving a "well regulated militia."
It was not until 2008 in District of Columbia v. Heller that the Supreme Court revisited gun control laws. The decision put to rest the militia argument and affirmed the right of individuals to possess firearms without regard to service in an organized militia. However, the decision made it clear that the right to bear arms was not absolute. State and local governments retained the power to enforce laws restricting the following:
- Concealed weapons
- Possession by felons and mentally ill
- Possession in schools and government buildings
- Commercial sales of firearms
The decision has not ended the debate over guns. Instead, it has shifted it from the right of individuals to bear arms to how far government may go in regulating it without violating the Second Amendment.