What does the 2nd Amendment Entail?

“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.”

That’s it. That is the entirety of the Second Amendment. Short and sweet. But somehow it’s one of the most controversial debates out there. The amendment has been argued over multiple cases and received scrutiny under multiple interpretations. In recent years with the advent of assault rifles, new arguments for and against gun control have popped up, leading to the ultimate questions: should the amendment (all amendments?) be reviewed and revised for a contemporary setting?

United States vs. Cruikshank (1876) arose out of the Colfax Massacre where approximately 100 recently freed men were killed by white Southern Democrats. Charges were brought against the insurgents and eventually appealed to the Supreme Court. The court ruled that the second amendment was only in effect to protect states from the federal government and thus was there to maintain militias. In this line of thought, the Second Amendment did not provide individuals the right to bear arms. These militias were to be well regulated, leaving it up to the state to regulate guns in any way they saw fit.

United States vs. Miller (1938) involved transporting guns pertaining to interstate commerce. Four years prior, Congress passed the National Firearms Act , which imposed a high tax on the sale of firearms and was mainly targeted at gangsters like Al Capone. Miller was found with a gun without the stamp verifying the tax was paid. From the side of the government, they argued that the Second Amendment protected the right to bear arms in a collective capacity, and thereby did not ensure the right for individuals to bear arms. The Court ruled with the government, but did imply a new focus on the individual because, while the Amendment focused on militia rights, those in the militia were free men who typically had to provide their own weapons.

District of Columbia vs. Heller (2008) questions Washington D.C.’s codes on firearms and whether or not they violate the Second Amendment. “Provisions of the District of Columbia Code made it illegal to carry an unregistered firearm and prohibited the registration of handguns, though the chief of police could issue one-year licenses for handguns. The Code also contained provisions that required owners of lawfully registered firearms to keep them unloaded and disassembled or bound by a trigger lock or other similar device unless the firearms were located in a place of business or being used for legal recreational activities.” A police officer applied to carry a handgun when off duty, but was denied and subsequently sued on basis of the codes violating his Second Amendment rights. Th Court sided with Heller and found that the codes banning a whole family of firearms was unconstitutional. The “militia” language was identified as outdated but in line with contemporary notions of autonomy.

Even with the advancement of gun rights culminating in the opinion of District of Columbia vs. Heller, it needed to be clearly stated that, like all amendments, the Second Amendment was not unlimited: Justice Scalia, in his District of Columbia vs. Heller opinion, wrote that the Second Amendment “is not a right to keep and carry any weapon whatsoever in any manor whatsoever and for whatever purpose”. Even Justice Scalia, a traditionalist/originalist in every sense, admitted that regulations on amendments were not unconstitutional.

McDonald v. Chicago (2009) expanded D.C. v. Heller by asking the following question: Does the Second Amendment apply to the states because it is incorporated by the Fourteenth Amendment’s Privileges and Immunities or Due Process clauses and thereby made applicable to the states? By expanding D.C. v. Heller, McDonald v. Chicago works to replaced and re-rule United States v. Cruikshank. The Supreme Court ruled that through the 14th Amendment, the 2nd Amendment’s right to individual protection applies on a state level as well as a federal level. “The Court recognized in Heller that the right to self-defense was one such “fundamental” and “deeply rooted” right. The Court reasoned that because of its holding in Heller, the Second Amendment applied to the states.”

The top 3 arguments for more gun control includes:

  1. The Second Amendment is not an unlimited right to own guns (as mentioned above, featuring Justice Scalia). For more information on this decision, see here.
  2. More gun control laws would reduce gun deaths.
  3. Specifically, high-capacity magazines should be banned because they often turn murder into mass-murder.

The top 3 arguments for less gun control includes:

  1. The Second Amendment protects individual gun ownership.
  2. Gun control laws do not deter crime, gun ownership deters crime.
  3. Gun control laws infringe upon the right to self-defense and deny people a sense of safety.

Note the Number 2 argument for both more and less gun control. This is actually a very hard thing to measure. Another important thing to note is the language. It appears that those favoring more gun control look at gun-related deaths, while those favoring less gun control look at gun-related crime (this includes crimes like robberies). Gun-related violence is measured by the CDC and looks at suicides (accounting for two-thirds of gun-related deaths), homicides, and unintentional discharges. There are really too many moving parts to analyze accurately whether or not gun control increases or decreases gun-related deaths and crimes. The first step to fully seeking the truth would mean determining a set of metrics: are we looking at deaths (suicides and homicides, accidental discharges) or crime (homicides, robberies, muggings, etc.). After that, it is important to recognize that some states may have higher rates with gun control, or lower rates without gun control, but that things like poverty, lower rates of education, and rural areas capacity to get victims to hospitals on time affects these rates greatly (especially when taking into consideration the high rates of suicide). Please, for more on this topic, including detailed examples and data sets, see here.

An important though often over-looked argument is whether or not the Amendment (as well as other Bill of Rights amendments) needs to be reviewed and revised for contemporary settings. The original framework for the amendment was so that state militias could protect from the overreaching federal government, but now has come to represent the right of Americans to protect themselves- from an overreaching government, from other citizens, from foreign nationals who are deemed threat-worthy. That large cultural shift should be enough to question the legitimacy of the amendment in its current form when compared to contemporary standards in thought. Further supplementing this argument is the factual data of the time it was written to now. When the amendment was written, guns were musket ball loading guns with bayonets. It took an impatient amount of time to load and fire and single shot. Not to mention that these guns were far less accurate, even when utilized by the best shooter. Now though, this amendment is being referenced to and used for arguments concerning semiautomatic and automatic weapons where full magazines can be replaced in seconds, and are far more accurate. Opponents of gun regulation like to cite Justice Scalia in that the Second Amendment should be looked at with an originalist jurisprudence (when arguing cases using the second amendment, it should be evaluated based on when the amendment was created) and thus argue that no regulations need be put on these high-tech, new-age weapons made for killing or maiming large groups of people. But if we are to make decisions based on what the found farmers intended, then a review and revision needs to be made to the amendment (maybe all the amendments, change being necessary for technological, scientific, philosophical and moral changes in our nation) because there is no way the founding fathers could have predicted the scientific advancements that we often take for granted and which have an assumed presence in our lives.




Drake University International Relations (MENA focused), Socio-Legal studies, religious studies and Arabic graduate. This is a blog-like post to learn and share

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Darby Matt

Darby Matt

Drake University International Relations (MENA focused), Socio-Legal studies, religious studies and Arabic graduate. This is a blog-like post to learn and share

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