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* In the Bill of Rights, the Second Amendment to the Constitution 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.
* Gun control proponents have argued and some federal courts have ruled that the Second Amendment does not apply to individual citizens of the United States but only to members of militias, which, they assert, are now the state National Guard units. In 2002, a federal appeals court panel ruled that “the people” only “have the right to bear arms in the service of the state.”
* Gun rights proponents have argued and some federal courts have ruled that the Second Amendment recognizes “an individual right to keep and bear arms.” In 2001, a federal appeals court panel ruled that the Second Amendment “protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms….”
* James Madison was the primary author of the Bill of Rights, is known as the “Father of the Constitution” for his central role in its formation, and was one of three authors of the Federalist Papers, a group of essays published in newspapers and books to explain and lobby for ratification of the Constitution.
* In Federalist Paper 46, James Madison addressed the concern that a standing federal army might conduct a coup to take over the nation. He argued that this was implausible because, based on the country’s population at the time, a federal standing army couldn’t field more than 25,000–30,000 men. He then wrote:
To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.
* In 1976, the Washington, D.C. City Council passed a law generally prohibiting residents from possessing handguns and requiring that all firearms in private homes be (1) kept unloaded and (2) rendered temporally inoperable via disassembly or installation of a trigger lock.
* On June 26, 2008, the U.S. Supreme Court, in a 5 to 4 ruling known as D.C. v Heller, struck down this law as unconstitutional.
* Excerpts from the majority ruling (Justice Scalia, joined by Roberts, Kennedy, Thomas, and Alito):
The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition … would fail constitutional muster.
Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional.
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
* Excerpts from a minority dissent (Justice Stevens, joined by Souter, Ginsburg, and Breyer):
[T]he words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.
As used in the Second Amendment, the words “the people” do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia.
* Excerpt from a minority dissent (Justice Breyer, joined by Stevens, Souter, and Ginsburg):
[The Framers were] unlikely then to have thought of a right to keep loaded handguns in homes to confront intruders in urban settings as central. And the subsequent development of modern urban police departments, by diminishing the need to keep loaded guns nearby in case of intruders, would have moved any such right even further away from the heart of the amendment’s more basic protective ends.
* The Bill of Rights includes two Amendments other than the Second that use the phrase “right of the people”:
Amendment 1: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Amendment 4: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
* In D.C. v Heller, the Supreme Court Justices debated the meaning of the phrase “right of the people” in the Second Amendment. Below are excerpts of this debate:
- Majority Opinion (Justice Scalia, joined by Roberts, Kennedy, Thomas, and Alito):
The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times… The Ninth Amendment uses very similar terminology…. All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.
Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.6 What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset.
- Dissenting Opinion (Justice Stevens, joined by Souter, Ginsburg, and Breyer):
The Court also overlooks the significance of the way the Framers used the phrase “the people” in these constitutional provisions. In the First Amendment, no words define the class of individuals entitled to speak, to publish, or to worship; in that Amendment it is only the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of “the people.” These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert.
As used in the Fourth Amendment, “the people” describes the class of persons protected from unreasonable searches and seizures by Government officials. It is true that the Fourth Amendment describes a right that need not be exercised in any collective sense. But that observation does not settle the meaning of the phrase “the people” when used in the Second Amendment.
- Majority Opinion (Justice Scalia, joined by Roberts, Kennedy, Thomas, and Alito):
Justice Stevens is of course correct … that the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined “assembly,” as he contends the right to bear arms is conditioned upon membership in a defined militia. And Justice Stevens is deadwrong to think that the right to petition is “primarily collective in nature.” Ibid. See McDonaldv.Smith, 472 U. S. 479, 482–484 (1985) (describing historical origins of right to petition).
* In an 1833 Supreme Court case known as Barron v Baltimore, the Court ruled that the rights of the people in the Constitution and the Bill of Rights only had to be respected by the federal government and could be infringed by state governments.
* During the aftermath of the Civil War in 1868, the United States adopted the 14th Amendment to the Constitution, which reads in part:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
* Senator Jacob Howard of Michigan served on the committee that drafted the 14th Amendment, and he introduced it on the floor of the Senate. In this speech, he stated that that the “great object” of the first section of the amendment is “to restrain the power of the States and compel them at all times to respect” the “personal rights guaranteed and secured by the first eight amendments of the Constitution” including “the right to keep and to bear arms….”
* For further history and context about the 14th Amendment, click here to listen to a Just Facts Radio segment entitled “Constricting the Bill of Rights.”
* In 1982, the city of Chicago instituted a ban on handguns. This ban barred civilians from possessing handguns except for those registered with the city government prior to enactment of the law. The law also specified that such handguns had to be re-registered every two years or owners would forfeit their right to possess them. In 1994, the law was amended to require annual re-registration.
* On June 28, 2010, the U.S. Supreme Court ruled (5 to 4) that this ban was unconstitutional.
* Excerpt from the majority ruling (Justice Alito, joined by Roberts, Scalia, Kennedy, and Thomas):
In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.
* Excerpt from a concurring opinion (Justice Thomas):
[An 1876 decision by the Supreme Court] holding that blacks could look only to state governments for protection of their right to keep and bear arms enabled private forces, often with the assistance of local governments, to subjugate the newly freed slaves and their descendants through a wave of private violence designed to drive blacks from the voting booth and force them into peonage, an effective return to slavery. Without federal enforcement of the inalienable right to keep and bear arms, these militias and mobs were tragically successful in waging a campaign of terror against the very people the Fourteenth Amendment had just made citizens.
* Excerpt from a minority dissent (Justice Breyer, joined by Ginsburg and Sotomayor):
[T]he use of arms for private self-defense does not warrant federal constitutional protection from state regulation.
* Excerpt from a minority dissent (Justice Stevens):
[T]he strength of the individual’s liberty interests and the State’s regulatory interests must always be assessed and compared.