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The Second Amendment

The Second Amendment protects individual liberty, particularly the right to bear arms for self-defense. It was designed to prevent federal overreach and maintain a balance of power. Supreme Court cases like "United States vs. Miller" and "D.C. vs Heller" have shaped its interpretation. Despite changes over time, the principle remains relevant today.

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  • male robot hal style avatar for user KEVIN
    It seems that the commentators ignored, for the most part, the very first portion of the amendment, "A well regulated..." Why aren't these two unambiguous descriptors given more importantance in the national discussion about gun control?
    (8 votes)
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    • duskpin tree style avatar for user John Moser
      Federalist 29 advocates the State Militias wherein the States will appoint officers and so forth. Hamilton suggested the Militia would meet at least twice-yearly.

      There's a whole lot going on that comes down to the Militia being a State-regulated entity with people registered into it, and not just the State banging on everyone's doors and telling them they've suddenly been drafted.
      (11 votes)
  • aqualine ultimate style avatar for user Stran1939
    Do AR15 bans violate the 2nd Amendment considering they are in common use for lawful purposes? If yes, why can some states ban AR15s if the 2nd Amendment applies equally to states?
    (5 votes)
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  • blobby green style avatar for user mattn7x77
    the well-regulated part of the second amendment meant in working condition, also the well-regulated militia is separate from the right of the people to keep and bear arms, arms meaning all weaponry.
    (5 votes)
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  • stelly yellow style avatar for user Marsala Vouriotis
    Why don't constitutional rights automatically apply to the state and local governments? or Why didn't they until after McDonald v. Chicago?
    (4 votes)
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  • female robot amelia style avatar for user galbraithc26
    Why has this amendment, more than any other, been such a hot topic for political debate?
    (2 votes)
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    • leaf green style avatar for user Juris Doctorate in Waiting

      Thank you for your question. The answer to this is that the individual right to bear arms as we currently understand it was created by the Supreme Court in the 2008 case DC v. Heller. Until around the late 1980s, the idea that individuals had an almost absolute right to bear firearms was not something that lawyers seriously believed. Why? Because it is literally not what the text of the Second Amendment says.

      Why then did the Court reach the conclusion that it did? There was a lot of societal pressure: the birth of modern textualism, the Federalist Society's rise to prominence, and lobbying by powerful interest groups such as the NRA.

      It had long been settled law that this did not create an absolute right to gun ownership. The Second Amendment says "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." It is unambiguously referring to the rights granted to citizens insofar as those rights supported the maintenance of a well-regulated militia, not for hunting or self-defense or whatever else. Despite claiming that the Court was adhering to textualist principles, the Supreme Court in Heller decided that the first two clauses were surplusage in violation of a very important textualist canon called the Rule Against Surplusage.

      It is important to remember that Judges are political actors just like anyone else. There is no objective way to interpret the law. Despite some judges saying that they are textualists or formalists or functionalists or structuralists, every single one of them will abandon these principles if it does not serve their immediate goals. All of this is to say that at the end of the day, Judges usually vote in line with their political preferences in difficult cases. Law is an art, not a science and anyone who says otherwise is attempting to insulate themselves from critique by claiming an objectivity that doesn't exist.
      (2 votes)

Video transcript

- [Kim] Hi, this is Kim, from Khan Academy, and today I'm learning about the Second Amendment to the U.S. Constitution, which states that, "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." To learn more about the Second Amendment, I talked to two experts. Alan Gura is a lawyer who successfully argued two landmark Second Amendment cases before the Supreme Court. Adam Winkler is a professor at UCLA Law, and the author of "Gunfight: the Battle Over the Right to Bear Arms in America." Professor Winkler, why did the framers include an amendment on the right to keep and bear arms? - [Adam] Well, really, there's been some debate over what the meaning of the right to keep and bear arms is, but the most common view, and the view supported by the United States Supreme Court, is that the Second Amendment protects individual liberty, in particular, the right to keep and bear arms for self-defense. Back in the founding era, the framers were concerned about self-defense in terms of armed state militias, made up of common citizens who would prevent federal overreach. So the federal government wouldn't be able to run roughshod over the liberties of the people because of these armed state militias. So the Second Amendment was in part about protecting those armed state militias. Indeed the fear behind all of the Bill of Rights, was that the Constitution gave the new federal government too much power and the federal government would use that power to inhibit liberty. So that was the self-defense of the founding era. - [Alan] When we look at the text, the first thing that people should focus on is the phrase "the right of the people," and, in particular, the word "the" before "right," I think that might be actually the most important word in the amendment, because what it tells us, is that the right of the people, which is the subject of this amendment, is a pre-existing right. And the fact that this was a pre-existing right tells us that the framers thought that there was something that was out there, in their legal system, that they were preserving against violation, and in fact, that is the case. In English law, since well before the Revolution, it had been settled and determined that people had an individual right to have arms for self protection, and this right was understood to enable people to protect themselves both against criminal private violence as well as the right of people to protect themselves against some encroachment upon their liberties by a tyrant or by a misguided king. This was a right that the framers were well acquainted with in English law, and they were very perturbed that the British, during the time of the Revolution, were violating this right. There were various instances of the British disarming Americans, obviously in an attempt to keep the colonists from revolting, and in an attempt to prevent them from resisting the king. The Battle of Lexington and Concord, of course, which started the Revolution, was nothing but a British march upon the armories in those towns, and the attempt to suppress the right to arms. And so, what you saw was when the time came for a Bill of Rights, you saw five out of seven states propose a Bill of Rights, and the only provisions common in all the demands for a Bill of Rights, were the right to religious freedom and the right to arms. Now, the framers were not necessarily concerned about the sort of modern gun control, which is in controversy today. - [Adam] Today we have a different kind of self-defense, we generally think about with the Second Amendment, and that's about individuals defending themselves against criminals. It's a very personal kind of liberty, defending yourself against someone trying to take away your life, your health, your property, the life of your loved ones. And one thing that I think to remember is that this kind of change in the meaning of a constitutional amendment over time is very common among our constitutional rights. As we take the underlying principles that are embodied in the text, and we apply them to modern circumstances. - [Kim] What about in this early period with the Articles of Confederation. Did state constitutions also protect the right to bear arms? - [Alan] Yes, there were state constitutions that protected the right to bear arms, most notably the Pennsylvania Constitution, Article 13 of the Pennsylvania Constitution provided "That the people have a right to bear arms for the defense of themselves and the state." And Vermont's Constitution, the following year, chapter one, article 15 copied that language, and you would see other late 18th century, early 19th century constitutions keep this language, or some version of it, and what you would notice is that this language, of course, talks about the two dimensions of the right to bear arms. The people have a right to bear arms for the defense of themselves, that can only be interpreted as self-defense, and also for the defense of the state, that is, they can use those arms that they individually have and gather together and work to defend the society from some force that's attacking them. - [Kim] This is really fascinating. My background is in U.S. history, and I know that one of the reasons that the framers decided that they needed a Constitution that would change the form of the U.S. government from what it had been under the Articles of Confederation, was Shays' Rebellion, when a group of armed farmers from western Massachusetts marched on Springfield. So they had kinda taken their military past as a militia, in the Revolutionary War, and then turned that against the new U.S. government instead of the British government. Did the framers have any reservations about trying to protect militias in light of Shays' Rebellion? - [Adam] The founders did have concerns about armed militias, as exemplified by Shays' Rebellion. They were worried about self-proclaimed militias, groups of, basically armed uprisings in disguise, that claimed the mantle of a militia, but were really just troublemakers who were taking up arms. And that was kind of how Shays' Rebellion was thought of at the time. And that's why when we think about the Second Amendment, we should focus on that language that the framers were sure to include, which is that the militias must be well regulated, right? So the Second Amendment itself says "A well regulated militia being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed." And so, they understood that there was a militia, common citizens who took up arms to help defend the state and nation. But they recognized that the militia must be well regulated, disciplined, orderly, subject to appropriate command. It wasn't a right for any self-proclaimed group of radicals to get together and grab their guns, it was, instead, a right to have an orderly state militia, which was an important source of national defense at the time of the founding era. - [Kim] So, I see that the Second Amendment and the Third Amendment, which bans the government from quartering soldiers in people's houses, both reflect fears about standing armies, and also the dangers of having very strong government military power. Today we have a very strong government military power, and a standing army, so to what extent are those concerns still relevant today? - [Alan] Well those concerns are still relevant today, we're very blessed in America that we have a long tradition of civilian control over the military, and in our culture the military has not been used to suppress the people, that's not been our experience, but it has been the experience, sadly, in many other places, including through today. Now, what the Second Amendment reflects is the notion that the government should not have a monopoly on force. There has to be some means that people might still retain the ability to act, to defend themselves, whether that's against a private individual, felon, miscreant, or whether it's against something more nefarious. - [Adam] Our understanding of what's necessary for national defense is very different than it was in the founding era, because our society is so much different. We don't have militias of ordinary citizens the way we once did, back in the founding era, and we don't have troops occupying peoples' homes the way the founders did. But nonetheless, I think the Second and Third Amendment both have principles embodied in that text that remain relevant for today, and should not be thought of as dead letters just because the particular concerns that gave rise to them no longer remain our concerns. Because the principles they embody are more important and more enduring. - [Alan] We have been blessed with peaceful transitions of power, with a vibrant democracy, perhaps, at least some aspect of our happy experience, relative to those of our friends and ancestors in Europe, is that we do have a culture that includes the widespread private arms. And that may have a beneficial effect in making sure that everybody plays by the rules and observes normal political conventions and norms. - [Kim] So what are some of the major Supreme Court cases that have shaped our understanding of the Second Amendment? - [Adam] The first one was a case called "United States versus Miller," that arose in the 1930s. In Miller, you had a situation where an individual was a gangster and he was caught with a sawed off shotgun, which at the time, and still now, does require a special tax stamp that Mr. Miller did not have, and he argued that the Second Amendment secured his right to this weapon. The government took the case to the Supreme Court, and at the conclusion of the somewhat confused opinion, the Supreme Court remanded the case back to the district court for a determination as to whether or not the sawed off shotgun was an arm of the type whose possession is protected by the Second Amendment. Subsequently, Mr. Miller was murdered, so perhaps he needed a gun of some kind, after all, but we never got the answer to that question. So I would read that case, as other people do, and say "Look, obviously the Supreme Court thought there was some individual right to arms." If the court had held that there was no individual right to arms, it would have been a much simpler opinion, they would have just said so and that would've been the end of the matter. But instead, because more evidence was needed relating to whether or not this was an arm of the type that Mr. Miller could possess, that shows that there was some right there, at issue. Much more helpful, of course, is the case that I argued in the Supreme Court, D.C. versus Heller, which was a coherent, detailed fully briefed and exhaustively opined matter which struck down various Washington, D.C. gun control laws. The main laws at issue in Heller were a District of Columbia law that banned the possession of all handguns by people, effectively. And also, a law that prohibited people from having operative firearms in their home. You can have a long gun, a rifle or a shotgun, in your home in D.C., but you could never render that operational, for use as self defense inside your home. Oddly enough, you could use it in self defense in a place of business, just not at your home. - [Adam] The most important case on the Second Amendment is District of Columbia against Heller, where the court held, for the very first time, that the Second Amendment protects an individual right to bear arms and struck down a gun control law. That was a very important case, a landmark ruling, that has led to many, many, many court cases challenging the constitutionality of a wide number of gun control laws. The Supreme Court has not again stepped into the Second Amendment, with one exception, the court in a case called "McDonald versus City of Chicago" held that the Second Amendment applied equally to the federal government and to the state and local governments. One thing to remember about our constitutional rights is that they don't automatically apply to the state and local governments. But the McDonald case held that the Second Amendment, and the principles of the Second Amendment nonetheless apply to the states, as well. And that's pretty common as well, over the course of the 20th century the Supreme Court has held that nearly all of the provisions of the Bill of Rights apply equally to the state and local governments. - [Kim] How about limits on the Second Amendment? I mean, I couldn't own a tank, right? What sort of limits may the government place on the right to keep and bear arms? - [Alan] Well, the Second Amendment, like other rights, has some limitations. The first limitations are, of course, as with all rights, given to us by the scope of the actual rights. There are many things that simply aren't included in a particular right. The right of free speech, for example, guarantees you the right to speak in some ways, but perjury of speech, terroristic threats or speech, extortion is a form of speech, none of those are traditionally protected. And likewise, there are going to be some arms that are going to fall outside of Second Amendment protection. The Heller case tells us how to go about discovering those limits. The Amendment, we are told, presupposes that people will have arms that people would expect to find in common use for traditional, lawful purposes. And so, while a handgun or a rifle is a type of arm that people would keep for self defense, for hunting, for sport; a tank or a bazooka is usually not something that you would wish to access for some traditional, recognized, lawful activity, right? I mean, very few people would use a tank to defend themselves against a mugger on the street, right? - [Adam] I mean, as a matter of practicality, even if we didn't have a Second Amendment, there's no possible way we're going to disarm the entire civilian population. So, the guns are here to stay. The question is how can we exist with civilian armament and good and effective gun control? And I think that history and tradition can provide some of those answers. In the same way that we try to understand what does the text of the Constitution mean, and what are the principles that that text embodies, we look to history and tradition, how have Americans lived under that Constitution, over these 200-odd years. We should also look to that history and tradition in seeing the limits of those constitutional rights. And one thing I think is very clear from the history and tradition of gun rights and gun regulation is that there's ample room to regulate firearms. The founding fathers had gun control laws, we had gun control laws in the wild west, even though that was the heart of America's gun culture, we've had gun control laws all through American history, and they're part of the story of the Second Amendment, as much as the six-shooter and the right to bear arms. - [Kim] So we've learned that the framers' concern over protecting the right to bear arms originated in the experiences of the American Revolution, in which militias played a central role in winning independence for the United States. But a lot has changed since the Revolution. The U.S. military has grown, and arms have gotten a lot more powerful. Alan Gura suggests that the lack of a government monopoly on force is a key component of the peaceful transitions of power that characterize American democracy. Adam Winkler, however, argues that there's always been some form of gun control in the United States, even in the wild west. To learn more about the Second Amendment, visit the National Constitution Center's interactive Constitution and Khan Academy's resources on U.S. government and politics.