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The Second Amendment: Know Your Rights as a Gun Owner

The Second Amendment: Know Your Rights as a Gun Owner

  

 

The Second Amendment to the Bill of Rights was ratified on December 15, 1791. In spite of its age and importance to the foundation of the constitution, the Second Amendment continues to be a hotly debated topic in the 21st century. As a current or prospective gun owner, you should understand the Second Amendment — its meaning and history — to better assert your rights.

Early Beginnings: The Constitutional Convention

Founding Fathers of the Constitution

On May 25, 1787, the Constitutional Convention began in Philadelphia, Pennsylvania. This Convention was initially assembled to debate and revise the Articles of Confederation and Perpetual Union, following Shays’ Rebellion. However, it became apparent soon thereafter that revising the existing document was not practical. Instead, a new constitution was needed.

The delegates created the U.S. Constitution on September 17, 1787. On June 21, 1788, the U.S. Constitution was successfully ratified by nine states — the minimum number required under Article VII. These were Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, South Carolina, and New Hampshire.

There were, however, those who opposed the new constitution, fearing that the strong central government it created would grow to become tyrannical. These men were the Anti-Federalists and consisted of Revolutionary War luminaries Patrick Henry, George Mason, and Samuel Adams. Thomas Jefferson, the Minister of France, was also sympathetic to Anti-Federalist concerns regarding the new government. One of the weaknesses the Anti-Federalists perceived was the lack of a bill of rights.

Why Was the Second Amendment Created?

Revolutionary War

The Founding Fathers saw standing armies as a menace to liberty and regarded the militia as the ultimate safeguard against governmental tyranny. The word “militia” is sometimes likened to the modern National Guard; however, “militia” had a distinct meaning in 1789. Consider the following from Pennsylvania delegate Tench Coxe:

“Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American.”

As explained in United States v. Miller (1939):

“the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

The Founders also regarded self-defense as a natural right, drawing from William Blackstone’s Commentaries and other contemporaneous sources. According to Blackstone, “the fifth and last auxiliary right” of the subject is “that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law.” This right, he argued, flowed from the “natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”

Historically, the proponents of classical republicanism would argue the importance of an armed citizenry to individual liberty. Firmly grounded in English common law tradition, the colonists were also familiar with the 1689 English Bill of Rights and its right-to-arms guarantee — they drew inspiration from this declaration.

What Exactly Does the Second Amendment Say?

The Bill of Rights consists of the first ten amendments to the U.S. Constitution — there are a total of 27. The Second Amendment was ratified, along with the other nine amendments, on December 15, 1791, and reads as follows:

“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.”

Clauses & Terminology

The amendment comprises two clauses: the prefatory or justification clause and the operative or rights clause. The prefatory clause establishes the reasoning for the rights clause — it’s a statement of purpose. In Heller, the Court stated, in its majority opinion, that the prefatory clause does not “limit or expand the scope” of the rights clause. What this means is that whether the statement of purpose continues to apply, the rights clause remains valid.

The Court cited Eugene Volokh’s The Commonplace Second Amendment in arguing that the prefatory clause is not considered binding in other legislative acts from the era.

RedCoats Marching - Standing Army

The phrase “well regulated,” in 18th-century English, did not mean, as some have suggested, “regulated by statute.” Instead, it is the equivalent of “in proper working order,” like a well regulated clock. In the context of a militia, “well regulated” would be akin to “drilled and disciplined.”

“Keep and bear” and “arms,” too, have also been matters of discussion. To “keep arms” means “to possess,” “own,” or “have weapons.” To “bear arms” means to carry firearms, whether for offensive or defensive action. This phrasing does not limit the carrying of arms to the context of service in a military or organized militia, as evidenced by right-to-arms clauses in several state constitutions — e.g., “the right to bear arms in defense of themselves [privately] or the State.”

“Arms” has roughly the same definition in the 2020s as it did in the 1770s — i.e., personal weapons, from muskets and rifles to pistols and bows.

Is Owning a Gun a Right?

In District of Columbia v. Heller (2008), the United States Supreme Court held that “[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

This landmark decision struck down the District of Columbia’s longstanding handgun ban, first enacted in 1976, as unconstitutional and established an important precedent, paving the way for additional legal action. This was also the first time that the Court had explicitly embraced the individual-right interpretation of the amendment, casting aside earlier attempts at collectivizing it.

Previously, in United States v. Miller (1939), the Court had implied that the 2nd Amendment protects an individual’s right but limited this right to weapons that bore “some reasonable relationship to the preservation or efficiency of a well regulated militia.” As it was not “within judicial notice” that a sawed-off shotgun — the weapon illegally possessed and transported by the defendants — met this condition, the Court ruled that it was not protected by the amendment.

In City of Chicago vs. McDonald (2010), the U.S. Supreme Court held that the 2nd Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and, thus, applicable to the states. In Chicago, this ruling struck down the city’s ban on handguns.

Limitations & What You Can Do

Although the Court held that the 2nd Amendment protects an individual right to possess firearms, it also held that 2nd Amendment rights are not unlimited:

“It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogs.”

“The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those ‘in common use at the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”

As a result, legislators can still exercise discretion in the drafting and passage of gun-control legislation, although the scope is more limited — outright prohibition is off the table. Furthermore, the ATF’s regulations regarding prohibited persons are still in effect.

In addition, states can still tightly regulate open and concealed carry, although there are pending court cases on this front. Every citizen, consequently, must remain vigilant. Write to your senators and congressmen, demanding action when your state legislature or Congress proposes new restrictions.

Always keep yourself abreast of the latest legal developments regarding the 2nd Amendment and your rights as a gun owner. Follow up on pending court cases, and consult organizations that monitor these events. Your rights are precious and depend on your knowledge and interest to preserve them.

What is the Second Amendment and How it Affects You?

Why is the Second Amendment important? Both District of Columbia v. Heller and City of Chicago v. McDonald affirmed that the Second Amendment protects an individual’s right to keep and bear arms against prohibition by Congress and state and local legislatures. However, while governmental agencies can’t ban firearms that are “in common use” for “lawful purposes,” they continue to have legal latitude in the passage of legislative controls.

At We the People Holsters, we understand the importance of the Second Amendment to the right of individual self-defense and personal liberty, and carrying a handgun is part of exercising your Second Amendment rights.

 

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