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.
Note to reader: At the time of the drafting of the Constitution and the Second Amendment the rules of punctuation were loose and varied by author and were not considered as meaningful as modern usage of punctuation is today. This fact often leads to various mis-interpretations when readers try to attribute meaning to the placement of the commas in the original text of the Second Amendment.
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2 Miller Case 3 Recent History 4 See also 5 External Links: |
In spite of extensive recent discussion and much legislative
action with respect to regulation of the purchase, possession, and
transportation of firearms, as well as proposals to substantially
curtail ownership of firearms, there is no definitive resolution by the
courts of just what right the Second Amendment protects. The opposing
theories, perhaps oversimplified, are an "individual rights model" (sometimes called "the standard model"),
whereby individuals are protected in ownership, possession, and
transportation, and a "states' rights" or "collectivist model" whereby it is said the
purpose of the clause is to protect the States in their authority to
maintain formal, organized militia units. Whatever the Amendment may
mean, it is a bar only to federal action, not extending to state[1] or
private[2] restraints. The Supreme Court has given effect to the
dependent clause of the Amendment in the only case in which it has
tested a congressional enactment against the constitutional prohibition,
seeming to affirm individual protection but only in the context of the
maintenance of a militia or other such public force.
Some interpreters, notably gun control advocates, argue for what is called "the collectivist model". They interpret the "well regulated militia" clause as a qualifier that restricts the right to only those sworn members of a government-controlled armed body. On these grounds, these interpreters assert that the Second Amendment does not relate to private citizens in any manner. They claim that the Second Amendment was only intended to protect the rights of the states to maintain State militia against the interference of the federal government. They see owning firearms as a privilege granted to private citizens at the discretion of government.
Other interpreters, mainly those favoring gun rights, argue for what is known as "the individual rights model". They maintain that the "militia" clause was not setting any prerequisite for the exercise of the right to keep and bear arms at all, but rather it was an explanatory phrase to state the single most important reason the right must be protected--to assure ability of the people to take up arms for their individual or common defense. Gun rights advocates also point out that in the Colonial Era "militia" specifically referred to the armed citizenry as a whole (as distinct from an "organised militia" which was a government-controlled body such as a standing army). On these grounds, these interpreters assert that the Second Amendment does protect the pre-existing individual citizens right to keep and bear arms, whether the government agrees or not. In addition, gun rights advocates state that even if the Second Amendment actually had only applied to government-controlled armed bodies, that still does not eliminate a pre-existing natural right of the people to keep and bear arms for self-defense or other proper purposes.
[1]Presser v. Illinois, 116 U.S. 252, 265 (1886). See also
Miller v. Texas, 153 U.S. 535 (1894); Robertson v. Baldwin, 165 U.S.
275, 281-282 (1897). The non-application of the Second Amendment to the
States is good law today. Quilici v. Village of Morton Grove, 695 F. 2d
261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).
[2]United States v. Cruikshank, 92 U.S. 542 (1875).
Both sides generally agree, however, that certain unqualified people such as the certifiably insane or convicted violent felons can be prohibited from arms. The Constitutional basis for restricting individual rights, including firearms rights, begins with the ratification of the 13th Amendment, which states:
"Amendment XIII
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation."
The "except as" clause allows citizens to be deprived of rights if they "have been duly convicted" of a crime. Section 2 allows the Congress to set the limits of these restrictions.
The degree of opposition to licensing of gun owners, comparable, say, to driver's licenses, varies among these interpreters.
Both gun rights advocates and gun control advocates point to the United States Supreme Court ruling from the 1939 decision U.S. v. Miller, being the only US Supreme Court accepted case which partly stood on the Second Amendment, which states in part:
"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less that eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that is use could contribute to the common defense."
{...}
"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that 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."
Both sides in the gun rights debate claim that the Miller ruling supports their positions. The gun control advocates tend to focus on "...we cannot say that the Second Amendment guarantees the right...", "...ordinary military equipment..." and "...contribute to the common defense.". From that they claim that a person must be a sworn member of a government-controlled armed body and must only be in possession of a government-approved type of firearm for the Second Amendment to apply at all.
Gun rights advocates assert that since Mr. Miller was certainly not a member of any "government-controlled armed body", then (by the assertions of the gun control advocates) the court's decision would have had no reason to mention anything further than his lack of militia membership to reject his claims of protection by the Second Amendment. Further, gun rights advocates argue that the court did not say that this type of firearm was not protected, but simply that no evidence had been presented in the official record ("not within judicial notice") to show that "such an instrument" could potentially be of use towards a well regulated millitia, which was what the court was asking for by saying: "In the absence of any evidence tending to show...some reasonable relationship to the preservation or efficiency of a well regulated militia...". The court did not state that the owner of such a firearm needed to actually be in a "well regulated militia" for the Second Amendment to protect his right to own such a firearm, merely that the firearm could be of some use towards "the preservation or efficiency" of such a militia for the Second Amendment to apply.
It is important to note that nobody appeared in either the Appeals Court, nor the US Supreme Court for the accused, Mr. Miller, nor to argue the side of the Second Amendment protecting the individual rights to keep and bear arms, nor even to state the fact that sawed-off shotguns were indeed in common use by not only organised militias, but were also common issue to US Army soldiers who fought in WWI. In fact, short-barreled shotguns were normal issue for the US Army right through the Viet Nam War and various Special Forces units still use them today. The complete lack of representation for the gun rights side of these issues in court is probably due to the fact that Mr. Miller had been murdered long before the issue got through the appeals process.
For sixty years, the Executive Branch of the US government also rejected the second interpretation. This changed in 2002; a brief filed by John Ashcroft's Justice Department states: the amendment "broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse".
The most recent federal court ruling to touch on the issue is that of the 5th Circuit Court of Appeals in 2001 in U.S. v. Emerson. The justices support the position taken by Ashcroft in their 77-page decision. Notably they state that the U.S. v. Miller judgment applied only to a narrow category of firearm not typically carried by individuals. Secondly as regards to the "right" to bear arms expressed in the Second Amendment, the justices state that "as used throughout the Constitution, 'the people' have 'rights' and 'powers,' but federal and state governments only have 'powers' or 'authority', never 'rights.'" Furthermore, "There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words 'the people' have a different connotation within the Second Amendment than when employed elsewhere in the Constitution."
Interpretations
Collectivist Model
Individual Rights Model
Some Restrictions Permitted
Miller Case
Recent History
See also
External Links:
1st Amendment
United States Bill of Rights
United States Constitution3rd Amendment