Second Amendment Right to Bear Arms

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.

Rarely is the Second Amendment discussed in Constitutional Law textbooks, and other than for a slew of Internet resources (see below), many people simply ignore it or shy away from the intense ideological debates. In this lecture, we cover both Second Amendment jurisprudence and Gun Control controversies.

There are no known rights binding on the states as part of this Amendment. The Second Amendment has NOT been incorporated into the Fourteenth Amendment. This means two things: the right of the people to keep and bear arms is not a fundamental personal right; and state and local governments are free to devise any sort of gun law they choose. Currently there are over 20,000 existing gun laws throughout the U.S., many of which are unenforceable because of the sheer numbers involved. Estimates are that less than 5% of the population obey their local gun laws, and there's a lot of guns out there, over 220 million in civilian hands. Given that the U.S. population is only 260 million, if each person were given a gun, that's 85% of the population that is armed. But of course, it's typical to own more than one gun, so the more conservative estimate is 50 million people, which amounts to about 20% of the population being, well, heavily armed.

How many guns a person owns is their business. From one point of view, it's better if every home in America is protected by at least one good shotgun. From another point of view, it's better all the guns were kept in an arsenal or armory where citizens could get to them. We are more familiar with the latter concept because that's what the military does. What we are NOT familiar with is what the civilian militia should do.

The Second Amendment contains two clauses, the Militia Clause (A well regulated Militia being necessary to the security of a free State) and the Right to Arms Clause (the right of the people to keep and bear Arms shall not be infringed). It's customary in Constitutional Law to point out that the second clause is controlled by the first clause. This is expressed technically by saying that "the independent clause is prefaced by a dependent phrase supportive of a structuralist interpretation." You may have to go back to the lecture on constitutional interpretation to review what structuralism is, but as a reminder, it has to do with seeing the Constitution as a living document, a guide to social order, a vision or mission statement. Structuralist interpretation always looks for the good for the whole system of society, so security of a free state is more important than the right of the people. The syntax involves what some people call "reconstructed logic" (making sense out of what doesn't make sense) in that a dependent or subordinate clause is more important than an independent or main clause. Scholars such as Kates (1983) and Levinson (1989) have referred to this interpretation in Constitutional Law as a "national embarrassment."

At the time when it was ratified in 1791, the Second Amendment was intended to have at least two security purposes other than a well-regulated militia: (1) a practical purpose, to protect people from thieves, bandits, Native Americans, and slave uprisings (the Jeffersonian position); and (2) a political purpose, to remind the rest of the world that the United States is well-armed (Hamilton and Madison's position in Federalist Paper #46). Cottrol and Diamond (1991) have recently suggested the idea that it was "White Man's Law", intended to prevent slave insurrections. Madison's original proposal read something like this:

The right of the people to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of baring arms shall be compelled to render military service in person.

For some unknown reason, Congress reversed the two main clauses and eliminated the religious exemption clause. It's debatable, but Congress may have been expressing a need to regulate the state militias, just as other parts of the Constitution prohibit the states from having standing armies. That's the controversy with the interpretation taken by the Supreme Court in its most noteworthy case on this issue - U.S. v. Miller (1939). A thorough understanding requires a discussion of what exactly a "militia" is.

A BRIEF HISTORY OF THE MILITIA

The American militia movement goes back to 1687. The charter of every American colony included the authority to create militia units separate and distinguishable from troops, and all American colonies passed militia laws under the authority granted by their charters. All white able-bodied free males were required by law to belong to a militia by the statutory law of their colony. Whether or not they actually served in militia units is another question since the laws were enforced laxly and some colonies allowed religious exemptions. The requirement for service could be met by joining either the colony's official militia or joining (if they would have you) a volunteer militia unit. In some colonies, they were supervised by a shadow government that the colonials had set up which would eventually become the Patriot or Revolutionary government. The Minute Men from Massachusetts became the model other states followed, and the Minute Men were the first to fire the shots "heard round the world" at Lexington when the British marched on Concord.

Patriot militias offered a ready source of manpower, supplementing the Continental Army. These state organizations had extensive codes which regulated who could be in the militia, how, when and where militia members would train, who would officer the militia, what the punishment for transgressions would be, how the militia could be called up, etc. In some states officers were elected; in others, they were appointed by the state. An entire state was usually organized into geographical divisions which corresponded with a military division. Divisions were geographically subdivided into brigades, regiments, and companies. In Southern states, regiments often corresponded with counties, and militia captains had additional civil responsibilities, such as handling elections or appointing slave patrols.

The 1792 Uniform Militia Act, which was the act that Congress passed to organize, arm, and discipline the militia, specified that militiamen purchase and maintain their own weapons. This resulted in a militia system with very little central control or support. There were no penalties placed on states that refused to maintain their militias as required by the 1792 Act. Therefore, the states let their official militia units all but die out. The federal government intervened several times to call out and reform the militia, especially in 1805, 1807, 1812, 1814-1815, 1817, 1826, and 1840, but what was left was filled with drunkenness and gambling, among other vices. Most states officially abolished compulsory militia duty during the 1840s, but left the volunteer units alone which would eventually, a long time later, evolve into the National Guard.

By the outbreak of Civil War in 1861, there were still thousands of volunteer companies around. A typical volunteer militia company would have between 30 and 60 members. Actually, there were more volunteer companies in 1861 than, say, five years earlier, because a number of states, anticipating a sectional conflict, had created a buildup of militia forces. When the Confederates fired on Fort Sumter, Congress was not in session, so the President had no way to enlarge the Yankee Army except to call out these private militias. The Confederates created an Army distinct from their militias, and allowed leading citizens in the South to be in charge of its volunteer regiments, a practice the North soon copied.

Following the Civil War, the militia movement was mostly dead, but it was resurrected in ex-Confederate states where the provisional governors had permission to constitute militia. Within a dozen years or so, there was a nationwide increase in the numbers of men who took an interest in militia service. Both official and unofficial units sprung up, drilled, and bought uniforms and arms. They saw action in the labor riots of 1877 and much of the industrial violence that followed. Development of the National Guard began and proceeded fastest in the populous, industrial states of the North - Massachusetts, Connecticut, New York, Pennsylvania, Ohio and Illinois. The Dick bill of 1903 officially marked the birth of the National Guard, and divided American males into two classes: the National Guard (organized militia) and the Reserve Militia (a 1903 term for unorganized militia). A 1916 National Defense Act and a later amendment to it in 1933 set up a poorly-funded dual enlistment system which tried to place everyone into both federal and state employment (the typical National Guard system today), but remnants of unorganized militia remained which by necessity or choice preferred to be self-supporting and/or true to original purposes.

The Supreme Court has consistently refused (denied certiorari) to hear cases involving this clause of the Second Amendment. They have expressed opinions only in a few, obtusely related cases, and prefer to express themselves by letting Appellate Court rulings stand. Scholars such as Halbrook (1986; 1993) consider much of that case law to be unconstitutional, with academic debates focusing on the meaning of words like "people", "keep and bear", and "arms." Before we discuss those debates, let's look at what few Supreme Court rulings there actually are.

At the appellate level, there are a number of interesting cases, any one of which could potentially make its way to the U.S. Supreme Court. At least that's the hope for those involved in the ideological debates - to see the Second Amendment become normal constitutional law. Individual rights proponents seem to be winning in the appellate arena, but results at this level are mixed, at best. Let's consider the following two cases:

The reader can easily see from the above that there are two (2) opposing approaches to the Second Amendment at work here. These two approaches are a debate over textual interpretation.

The individual approach is that the amendment guarantees the rights of people, otherwise the founding fathers would have said the rights of states. It is further argued that well-armed individuals can defend themselves better from crime, citing an estimated 2.5 million defensive gun usages (DGU) a year. Gun ownership is a personal freedom because you can determine your own fate, and this right is near the top of the list of fundamental freedoms.

In 1911, New York State passed the Sullivan Law, which required a police permit to possess a handgun. The National Firearms Act (NFA) of 1934 was the first federal regulation. It required every gun owner to carry a card, and imposed strict regulations on "gangster style" machineguns. Gun dealers didn't have to become licensed until 1938 when Congress passed the Federal Firearms Act (FFA), which required licensing, fingerprinting, and photographing of anyone involved in interstate commerce. The first laws therefore made it illegal for any person to possess a firearm who did not also possess a license, permit, or what would be known later as a firearms ownership id (FOID) card. Some experts say this by asserting that the first gun laws were those that disenfranchised African-Americans from obtaining permits, but in fact, a number of minority groups were discriminated against.

After the assassination of President John F. Kennedy in 1963 with a mail-order, military surplus rifle, the contemporary gun control debate began. Both the House and Senate conducted hearings on various gun control measures from 1963 to 1968. On June 5, 1968, an assassin murdered presidential candidate Robert Kennedy. The following day, Congress passed the most significant anticrime bill in history -- the Omnibus Crime Control and Safe Streets Act, which included a Title IV (ban on interstate mail orders) and a Title VII (which prohibited felons and certain other classes of persons from possessing a firearm). Also that year (1968), with the assassination of Martin Luther King, Congress passed another law to replace Title IV, and called it the Gun Control Act (GCA) of 1968.

The 1968 Gun Control Act became part of Title 18 of the U.S. Code (Criminal Code), and prohibited the selling of firearms to anyone suspected of being:

The GCA also prohibited interstate mail orders and tightly restricted intrastate mail orders. Records had to be kept of all sales, and most importantly, for law enforcement purposes, manufacturers were required to stamp their name and a serial number on all handguns. Surplus military weapons not suitable for hunting purposes were banned from importation.

The 1970s were relatively quiet except for the Explosive Control Act of 1970 and the creation of ATF in 1972. Through a memorandum of understanding, the FBI took jurisdiction of urban bombings and the ATF took care of rural bombings. The ATF also took care of criminals who did not meet the FBI's standard of organized crime, public corruption, drug trafficking, or white collar crime, and created a firearms policy known as "interdiction" which involved sting operations against dealers, a crackdown on weapons traced to gun shows, and confiscation of as many unlicensed weapons as possible under asset forfeiture laws.

A key event in 1982 was Proposition 15 in California. Voters went to the polls to decide on whether the state should freeze the number of handguns. People who already had guns could keep them, but nobody would be allowed to acquire a new handgun. The Proposition was defeated by a 63-to-37 percent margin. Also emerging in the 1980s was the Cop-Killer Bullets controversy, a federal initiative to outlaw armor-piercing ammunition, but nothing became of it.

In 1986, Congress passed the Firearm Owners' Protection Act (FOPA), also known as the McClure-Volkmer Bill. It changed the way ATF enforced CGA, and banned the purchase and sale of all fully automatic weapons and silencers. Sometimes, the right to own a submachine gun is claimed under the 9th Amendment, but the courts do not recognize this. It is currently illegal to own a fully automatic weapon, even for purposes of establishing a gun collection.

In 1993, Congress passed the Brady Law (named in honor of Jim Brady, press secretary to Ronald Reagan, who was shot during an assassination attempt). The Brady Law required a waiting period of five (5) business days and a background check in order to buy or obtain a license to carry a handgun. (Twenty-four states already had five day, or longer, waiting periods.) This waiting period was eventually to be replaced by a nationwide "instant check" for criminal records (the McCullum Amendment), but law enforcement computer technology was insufficient to get the job done during the five-year (sunset provision) deadline.

In 1994, Congress passed the Violent Crime Control and Law Enforcement Act which banned 19 different kinds of weapons, mostly semiautomatics or assault-type weapons, as well as duplicates of such guns. The act also:

One of the first places to ban guns altogether was the city of Morton Grove, Illinois. Other cities followed, but there are usually exceptions allowed. On the other hand, over 40 states have passed Gun-Free School Zone Acts, and at first, the school zone ban was attempted as a federal law, but this was declared unconstitutional. Most recent initiatives have involved bans on "assault weapons" - not easy to define - and any magazines with a capacity over ten rounds. Trigger locks have also been proposed as a national safety issue, to protect accidental death of young children. As of 2000, about fifteen states have also experimented with required safety classes as part of getting a permit for concealed-gun-carry. Colorado was about to pass a permissive carry-permit law when the Columbine High School shooting occurred. About 9% of the national population carries a concealed handgun.

PRINTED RESOURCES:
Bursor, S., Toward a Functional Framework for Interpreting the Second Amendment, 74 Texas Law Review, 1125-1151 (1996) [HTML version]
Cooper, J. (1993) The Militia and the National Guard in America Since Colonial Times. NY: Greenwood.
Cornell, S. (2000) Whose Right to Bear Arms Did the Second Amendment Protect. NY: St. Martin's.
Cottrol, R. and R. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Georgia Law Journal, 309-361 (1991) [HTML version]
Halbrook, S., What the Framers Intended: A Linguistic Analysis of the Right to Bear Arms, 49 Law and Contemporary Problems, 151-162 (1986) [HTML version]
-----------------, The Right to Keep and Bear Arms under the Second and Fourteenth Amendments: The Framers' Intent and Supreme Court Jurisprudence, 5 J. on Firearms & Pub. Policy. 7-28 (1993). [HTML version]
Hardy, D., Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 Harvard Journal of Law and Public Policy, 559-638 (1986) [HTML version]
Kates, D., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Michigan Law Review, 204-273 (1983)
-------------. (1990) Guns, Murders, and the Constitution. San Francisco: Pacific Research Institute. [HTML version]
------------- and R. Barnett, Under Fire: The New Consensus on the Second Amendment, 45 Emory Law Review, 1139-1259 (1996) [HTML version]
Levinson, S., The Embarrassing Second Amendment, 99 Yale Law Review, 637-659 (1989) [HTML version]
Malcolm, J. (1996) To Keep and Bear Arms: The Origins of an Anglo-American Right. Cambridge: Harvard Univ. Press.
Olson, J. and D. Kopel, All The Way Down the Slippery Slope: Gun Prohibition in England and Some Lessons for Civil Liberties in America, 22 Hamline Law Review, 399-465 (1999) [HTML version]
Van Alstyne, W., The Second Amendment and the Personal Right to Arms, 43 Duke Law Journal, 1236-1255 (1994) [HTML version]
Vizzard, W. (2000) Shots in the Dark: The Policy, Politics, and Symbolism of Gun Control. Lanham: Rowman and Littlefield.