Second Amendment to the United States Constitution Totally Explained

Everything about Second Amendment To The United States Constitution totally explained

The Kentucky High Court stated in Bliss, "But it shouldn't be forgotten, that it isn't only a part of the right that's secured by the constitution; it's the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it's equally forbidden by the constitution." As mentioned in this quotation "as it existed at the adoption of the constitution" was the pre-existing right in force when Kentucky's First Constitution was drawn in 1799.
   The case prompted outrage in the Kentucky House, all the while recognizing that Section 23 of the Second Constitution of Kentucky (1799), which stated "That the right of the citizens to bear arms in defence of themselves and the State shan't be questioned." did guarantee individuals the right to bear arms.
   The result was that the law of the Commonwealth of Kentucky was eventually over-turned by constitutional amendment with Section 26 in Kentucky's Third Constitution (1850) banning the future carrying of concealed weapons, while still asserting that the bearing of arms in defense of themselves and the state was an individual and collective right in the Commonwealth of Kentucky. This recognition, has remained to the present day in the Commonwealth of Kentucky's Fourth Constitution enacted in 1891, in Section 1, Article 7, that guarantees "The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons." As noted in the Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in the 1980’s, vol. 10, no. 1, 1982, p. 155, "The first state court decision resulting from the "right to bear arms" issue was Bliss v. Commonwealth. The court held that "the right of citizens to bear arms in defense of themselves and the State must be preserved entire, . . ." "This holding was unique because it stated that the right to bear arms is absolute and unqualified."
   The importance of Bliss is also seen from the defense subsequently given against a murder charge in Kentucky against Mattews Ward, who in 1852 pulled out a concealed pistol and fatally wounded his brother's teacher over an accusation regarding eating chestnuts in class. Ward's defense team consisted of eighteen lawyers, including U.S. Senator John Crittenden, former Governor of Kentucky, and former attorney general of the United States. The defense successfully defended Ward in 1854 through an assertion that “a man has a right to carry arms; I'm aware of nothing in the laws of God or man, prohibiting it. The Constitution of Kentucky and our Bill of Rights guarantee it. The Legislature once passed an act forbidding it, but it was decided unconstitutional, and overruled by our highest tribunal, the Court of Appeals.” As noted by Cornell, “Ward's lawyers took advantage of the doctrine advanced in Bliss and wrapped their client's action under the banner of a constitutional right to bear arms. Ward was acquitted.”
   In contrast, in State v. Buzzard (1842, Ark), the Arkansas high court adopted a militia-based, political right, reading of the right to bear arms under state law, and upheld the 21st section of the second article of the Arkansas Constitution that declared, "that the free white men of this State shall have a right to keep and bear arms for their common defense", while rejecting a challenge to a statute prohibiting the carrying of concealed weapons. Buzzard had carried a concealed weapon and stood "indicted by virtue of the authority of the 13th section of an act of the Legislature prohibiting any person wearing a pistol, dirk, large knife or sword-cane concealed as a weapon, unless upon a journey, under the penalties of fine and imprisonment." The Arkansas high court further declared "That the words "a well regulated militia being necessary for the security of a free State", and the words "common defense" clearly show the true intent and meaning of these Constitutions [for example,Ark. and U.S.] and prove that it's a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then the people, neither individually nor collectively, have the right to keep and bear arms." Joel Prentiss Bishop’s influential Commentaries on the Law of Statutory Crimes (1873) took Buzzard's militia-based interpretation, a view that Bishop characterized as the “Arkansas doctrine", as the orthodox view of the right to bear arms in American law.
   Modern gun rights advocates have disputed this history, claiming that the individual right was the orthodox view of the right to bear arms under state law in the 19th century, citing the previously-mentioned Bliss v. Commonwealth, and even State v. Buzzard, which recognized the right of an individual to carry a weapon concealed, when upon a journey, in an affirmative defense. Similarly, political scientist Earl Kruschke has categorized both Bliss and Buzzard as being “cases illustrating the individual view.” Since 1873, some legal and constitutional historians have sided with Bishop and not the individual rights model. Other legal and constitutional historians have sided with the individual rights model.
   In 1905, the Kansas Supreme Court in Salina v. Blaksley made the first collective right judicial interpretation. The Kansas high court declared: "That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal Constitution, which says: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shan't be infringed.""
   A modern formulation of the debate over the Second Amendment as an individual/collective rights dichotomy “was the emergence of the collective rights reading of Cruikshank" that became better known when it was employed in “a short but influential article” in the Harvard Law Review article in 1915 by the Chief Justice of the Maine Supreme Court, Lucilius A. Emery. He noted that "the right guaranteed isn't so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against the common enemy, foreign or domestic."

Antebellum and Reconstruction

With Abolition and the Civil War, the question of the rights of freed slaves to carry arms and to belong to militia came to the attention of the Federal courts.
In Dred Scott v. Sandford, The modern gun control politics involves fundamental Second Amendment questions such as:

What is meant by "well regulated", relative to "Militia"?
Who or what does the Amendment mean by "Militia"?
Who does the Amendment mean by "the People"?
What does "keep and bear arms" mean?
What does "shall not be infringed" mean?

"Well-regulated"

Regarding one interpretation of "well-regulated", during oral arguments in District of Columbia v. Heller, No. 07-290, on March 18, 2008, in regards to Mr. Dellinger speaking of a “well-regulated militia”, a question arose from the bench:

"Militia"

All able bodied men, 17 to 45 of age, are ultimately eligible to be called up into military service and belong to the class known as the Reserve Militia, also known as the unorganized militia. Able bodied men who are not eligible for inclusion in the unorganized militia pool are those aliens not having declared their intent to become citizens of the United States (10 USC 311) and former regular component veterans of the armed forces who have reached the age of 64 (32 USC 313). All female citizens who are members of National Guard units are also included in the unorganized militia pool (10 USC 311).
Other persons who are exempt from call to duty (10 USC 312) and are not therefore in the unorganized militia pool include:
The 1993 Brady Handgun Violence Prevention Act initially provided a five-day waiting period for handgun purchases, which expired on November 30, 1998. It was replaced by a mandatory, computerized criminal background checking system to be conducted prior to any firearm purchase from a federally-licensed firearms dealer.

Judicial branch

ť

The question of the U.S. Supreme Court rulings, or lack thereof, on the meaning of the Second Amendment has left supporters on all sides of the debate open to interpret the actions of the court as they see fit. Until recently, United States federal courts generally interpreted the Second Amendment to protect a "collective right" to keep and bear arms. Two recent exceptions to this trend have occurred in federal circuit courts: The 2001 Fifth Circuit court ruling United States v. Emerson and the 2007 D.C. Circuit court ruling Parker v. District of Columbia, both of which ruled that the Second Amendment protected an "individual right" to keep and bear arms. Presently, nine of the United States Courts of Appeals have supported a collective rights model, while two United States Courts of Appeals have supported an individual rights model, and the Second Circuit court hasn't addressed the question. It should be noted that a ruling of a United States Court of Appeals applies only to the states (and other jurisdictions) that are within the "circuit" in which that ruling was made.

Current judicial precedents

At present, with certain exceptions and disputes, the courts generally find it acceptable under the Second Amendment for federal, state, and local jurisdictions to vary widely between jurisdictions and permit court decisions to be rendered according to local law. The Federal District courts have not ruled uniformly and the Supreme Court hasn't yet ruled uniformly.
Although the courts permit laws and regulations to vary locally, some jurisdictions don't have these laws. For example, most jurisdictions don't require handgun owner identification cards, nor do they require the presentation of any identification to buy ammunition. Some local jurisdictions in the United States have more restrictive laws, such as Washington, D.C.'s Firearms Control Regulations Act, enacted in 1976, that bans residents from owning handguns, and that requires permitted firearms be disassembled and locked with a trigger lock. On March 9, 2007, the D.C. Circuit Court of Appeals ruled this Washington, D.C. handgun ban unconstitutional in Parker v. District of Columbia.

Second Amendment theory

In 1915, Maine Supreme Judicial Court Chief Justice Lucilius A. Emery wrote an article in the Harvard Law Review on the Right to Keep and Bear Arms, and argued that "The guaranty doesn't appear to have been of a common-law right" [and] "I submit that the right guaranteed isn't so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against the common enemy, foreign or domestic."
   According to 1998 research and testimony by Eugene Volokh, a UCLA law professor and a well known individual gun-rights proponent; the Supreme Court has ruled in passing in 22 out of 27 times while quoting or paraphrasing only "the right of the people to keep and bear arms" language of the Second Amendment without ever mentioning the militia clause, and this treatment has evidenced clear support of the Second Amendment as protecting an individual right and not as protecting a collective right.
   According to Volokh, the federal courts of appeal have often subscribed to the states' right approach, instead of to the individual right approach. Despite these inconsistencies among the lower courts, the Supreme Court hadn't granted certiorari to any recent case hinging on the Second Amendment prior to granting certiorari on Parker v. District of Columbia on November 20, 2007.
   The Brady Center, an advocate for gun control, has stated: "No federal court in history has overturned a gun law on Second Amendment grounds." (This recently changed with the Parker v. District decision. Because Miller was dead before his case was heard, no defense argument was made and his legal counsel failed to appear, United States v. Miller may not offer much to either side in the way of useful precedent.
   Since Miller, the Supreme Court has addressed the Second Amendment twice more, upholding New Jersey's strict gun control law in 1969 and upholding the federal law banning felons from possessing guns in 1980. Furthermore, twice — in 1965 and 1990 — the Supreme Court has held that the term "well-regulated militia" refers to the National Guard.
   The 1969 case in question was Burton v. Sills,, Sills being the attorney general for New Jersey, and Burton being the individual charged with violating New Jersey's gun control law. The essential issue at question was whether New Jersey's strict gun control law violated Burton's Second Amendment right. The appeal by Burton was dismissed "for want of a substantial federal question" by the U.S. Supreme Court, thereby letting stand the lower court decisions and leaving in place New Jersey's strict gun control laws. The key factor was that Burton could apply for a New Jersey gun permit, and hence his Second Amendment right wasn't infringed, only regulated. The New Jersey Supreme Court affirmed with Burton v. Sills, 53 N.J. 86 (1968) that:
The 1965 decision relative to the definition of militia arises in Maryland v. United States, . In this case, an airliner collided with a National Guard jet, and a need for a definition of National Guard arose. In this ruling, the U.S. Supreme Court wrote,
Clauses 15 and 16 of the Constitution are:

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; The National Guard is an example of the militia of Clauses 15 and 16. There remains an open question whether the modern National Guard was the sole version of the well-regulated militia described by the Second Amendment. Maryland v. United States does state that "The National Guard is the modern Militia". Pro-individual gun right advocates argue that an unorganized militia would be an equally "well-regulated militia". Pro-collective gun right advocates question this argument in light of the "...active, organized militias..." wording of Burton v. Sills.
Further clarification was provided in 1990, in Perpich v. Department of Defense, . In this case, the U.S. Supreme Court ruled that, "The Dick Act divided the class of able-bodied male citizens between 18 and 45 years of age into an "organized militia" to be known as the National Guard of the several states, and the remainder of which was then described as the "reserve militia", and which later statutes have termed the "unorganized militia." ... "In 1908, however, the statute was amended to provide expressly that the organized militia should be available for service 'either within or without the territory of the United States'." Hence, the National Guard isn't the same as the unorganized militia.
The primary Supreme Court cases that address Second Amendment issues are United States v. Miller (1939), United States v. Cruikshank (1875), and Presser v. Illinois (1886). The rulings for all three of these cases found that individual use of arms could be restricted. Yet, elements of these cases have been cited by supporters of both sides of the firearms debate to support their positions.

Important case law

United States v. Miller

United States v. Miller is the Supreme Court's fullest discussion of the Second Amendment. Miller is used by both sides in American gun politics as supporting their position. In Miller, the court rejected a Second Amendment challenge to a federal law prohibiting the interstate transportation of unregistered Title II weapons, ruling that
The ruling also discusses the historical meaning of "militia".

United States v. Cruikshank

With Cruikshank, the Supreme Court ruled that because "[t]he Second Amendment...has no other effect than to restrict the powers of the national government...", the federal government may not punish individuals for depriving citizens of their right to bear arms. The courts didn't recognize the doctrine of incorporation at this point in the 19th century. Though many of the federal rights delineated in the federal Bill of Rights have subsequently been incorporated by the Court as states rights, the Court hasn't done so for the Second Amendment.

Presser v. Illinois

Presser v. Illinois is one of only two 19th Century post-Civil War U.S. Supreme Court cases to address the Second Amendment, the other one being United States v. Cruikshank .
The traditional reading of Presser is that it affirms the states' rights view articulated in Cruikshank; modern supporters of the individual rights view have challenged this claim, viewing the case as affirming a right to keep and bear arms as a necessary condition to have a universal militia; the conflict between these viewpoints was argued in court in 1982 in the case of Quilici v. Village of Morton Grove.

District of Columbia v. Heller

On November 20, 2007, the United States Supreme Court announced that it would hear the case of District of Columbia v. Heller, case no. 07-290. The question the Supreme Court justices posed is whether the provisions of the D.C. statute “violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes.” On March 18 2008, the United States Supreme Court heard oral arguments in this case. A decision is expected by the end of June.

Other cases of note

The case of Perpich v. Department of Defense (1990) concerned the training of the state militia, and a dispute between the state governor of Minnesota and the Department of Defense over whose authority was plenary in doing so. Article I, Section 8 of the Constitution reserves the training of the militia to the states according to the discipline prescribed by Congress, but also gives Congress the power to raise and support armies for a period not exceeding two years for a given appropriation. The National Guard was recognized as both the state militia under Article I, Section 8 of the Constitution (and the Second Amendment) as well as the reserve force of the Army at the same time. The dispute arose over whether the Guard's role as the militia excludes them from being a part of the Army as well, and gives the states the power to refuse to allow them to be called up into their role as the Army's reserve and trained outside of their home state, under the reservation of the militia's training to the states. The Court held that Article I, Section 8's additional grant of power to provide for the calling of the militia into the federal service may be combined with their power to raise and support armies all at once, and hence the National Guard has no immunity from being trained as part of the Army; the power to call up the militia isn't excluded as being separate from the army powers, and is simply an additional grant of power. This case is significant for Second Amendment case law in that it recognizes that the National Guard is one modern form of the militia under federal law.

Colonial right to possess arms under English Common Law

As British subjects, Protestant colonists had a conditional right to possess arms according to the English Declaration of Rights of 1689.

"That the subjects which are Protestants may have Arms for their Defence suitable to their Conditions, and as allowed by Law." The rights of British subjects to possess arms was recognized under English Common Law. Sir William Blackstone's Commentaries on the Laws of England, were highly influential and were used as a reference and text book for English Common Law. In his Commentaries, Blackstone described the right to arms.
The rights of the Colonists to possess arms was stated in Revolutionary era newspaper articles. Notably a Boston Journal of the Times printed in April 13, 1769.
John Adams, lead defense attorney for the British soldiers on trial for the Boston Massacre stated at the trial:
According to the Militia Act of 1792, the President as commander in chief has a right and a need to know who the militiamen are and what the militia resources are as a national resource. In the eighteenth century, the public had a claim on privately owned weapons for public purposes. This has relevance to the modern question sometimes raised, whether the Second Amendment prohibits gun registration or confiscation of private guns by the federal government. The Militia Act of 1792 required, with some exceptions, every free able-bodied white male citizen from 18 through 44 years old to enroll in the militia and provide himself with a good musket (the type of weapon in common use by the army) or firelock or a good rifle. It also required the aforesaid to hold their weapons exempted from all suits, distresses, executions, or sales for debt, or for the payment of taxes. Section 6 of the Militia Act requires the adjutant general of each state to annually report their condition to the commander in chief of the state and send a duplicate report to the President of the United States.

State ratification conventions

The Pennsylvania ratification convention was the second State Convention to ratify the U.S. Constitution and the first at which there was significant antifederalist opposition. One of the main opposition points of contention was the Constitution's omission of a Bill of Rights. The majority of the Convention wouldn't allow proposed amendments or a Bill of Rights to be appended to Pennsylvania's December 12,1787 Ratification of the Constitution. On December 18,1787 the Pennsylvania Minority Published "The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents". The Right to Bears arms was the seventh in their proposed bill of rights.
   "7. That the people have a right to bear arms for the defense of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals;"
   Many delegates to subsequent State Ratification conventions were familiar with "The Address and Reasons of the Pennsylvania Minority, The Letters from the Federal Farmer to the Republican 18, and other antifederalist writings supporting a right to bear arms.
   Five of the state ratification conventions for the U.S. Constitution made explicit requests or demands for the protection of rights to keep and bear arms. Four states also clearly defined what a well-regulated militia consists of "the body of the people trained to arms" or "the body of the people capable of bearing arms". Four states attached proposed bills of rights to their approvals of the Constitution, the fifth, North Carolina, refused to approve the Constitution and submitted a bill of unalienable rights of the people that must be protected before they'd sign. ť New Hampshire, June 21, 1788

"XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion." ť Virginia, June 27, 1788

"17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state:" The Virginia Ratification Convention Committee that produced Virginia's proposed bill of rights included James Madison, Patrick Henry, George Mason, James Monroe and John Marshall. ť New York, July 26, 1788

"That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state." ť North Carolina, August 1, 1788

"17. That the people have a right to keep and bear arms; that a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state;" North Carolina ratified the constitution on November 21, 1789, after Congress approved the Bill of Rights and submitted them to the states for ratification. ť Rhode Island, May 29, 1790

"XVII. That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state;"

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