The Second Amendment: What Is It?

The Second Amendment: What Is It?

Firearms Restriction Advocate: How many more children must die before reasonable gun restrictions are put in to place?

Firearms Advocate: Denying our fundamental, constitutional right to own firearms will not decrease the murder rate. This is a mental-health problem not a gun-ownership problem.

Firearms Restrictions Advocate: The Second Amendment may give you a right to own a handgun but it does not give you a right to purchase assault weapons.

Firearms Advocate: What is an “assault weapon?” Any weapon ─ including knives ─ can be used to “assault” and commit crimes. If you take away my right to own a weapon for protection, I guarantee that criminals will continue to own such weapons.

These hyperbolized comments continue to frame the discussion of what the Second Amendment means. Second Amendment interpretation is infused not only with Constitutional arguments but also with sociological, psychological and even economic arguments.  One’s view and interpretation of the Second Amendment tends to be shaped by all these human conditions and issues.

What, then, are the 27 words of the Second Amendment:

“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.”

The development of Constitutional analysis and interpretation of the Second Amendment is in its infancy.[1]

Background

The Constitution of 1787 – which was ratified by the states over the next three years ─ did not include a “right to bear arms” or any of the Bill of Rights protections (the first ten amendments are collectively referred to as the “Bill of Rights”). During the 1787 Constitutional Convention, it was proposed to include in the Constitution a Bill of Rights which “would give great quiet to the people”.[2] This was unanimously rejected by the state delegations which argued that by delineating with specificity certain rights, this would, by implication, confirm the lack of any other rights reserved to the people.[3]

After the Convention, it turns out, the lack of a Bill of Rights emerged as an impediment to ratification by many of the States. James Madison (it is generally assumed) then shouldered the task of writing a Bill of Rights to attach as Amendments to the Constitution in the hope it would facilitate ratification of the Constitution by the states.[4]

Madison’s draft of the Second Amendment was re-worded by the House and Senate but the substance remained the same. The focus was on the right of a population of citizens to “keep and bear arms”.

What Does It Mean?

The seminal Supreme Court case is District of Columbia v. Heller (2008).[5] It was a five to four decision with Justice Scalia writing for the majority striking down a District of Columbia Law restricting residents from owning handguns.[6] Scalia begins the opinion by drawing a dichotomy between the two positions: For the District of Columbia, the right to possess and carry a firearm must be in connection with militia service. Respondent’s position was that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia.

Justice Scalia parses phrases of the Second Amendment distinguishing between what he calls the “operative clause” (“. . .  the right of the people to keep and bear arms . . . . “) and the “prefatory clause” (“A well regulated militia, being necessary to the security of a free state . . . . “) and concludes this Second Amendment right is a right of the People and is “exercised individually and belongs to all Americans.”  In other words, the right to “keep and bear arms” is not inextricably intertwined with militia service.

The majority opinion does recognize that this Second Amendment “right was not unlimited.”  This conclusion gives rise to the question: which weapons are protected by the Second Amendment?  Justice Scalia answers this question by stating, “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short barreled shotguns.”  This leaves open the door for state and federal restrictions on types of weapons, barrel lengths, magazine capacities, etc.   The constitutionality of these restrictions will be tested in future Supreme Court cases.

Justice Stephens’ dissent implies Justice Scalia engages in disingenuous sophistry.  Justice Scalia’s gymnastic attempt to get around the “well regulated militia” clause by relegating it to a “preface” dilutes the meaning of the clause thereby making it easier to ignore.

Notably, Justice Scalia discusses at some length historical references to tyrannical governments controlling the population and suppressing political opponents by simply “taking away the people’s arms.”  At the time James Madison drafted the Second Amendment, the political philosophy of John Locke held sway with many of the founders of the Constitution.  More specifically, John Locke espoused the political philosophy that all citizens retain a supreme power of saving themselves from tyrannical legislators, “whenever they shall be so foolish or so wicked as to lay and carry on designs against [the Citizenry’s] liberties . . . . “.[7] Furthermore, Locke allowed the possibility of the Citizens’ legitimate resistance against their government, or revolution.

Justice Scalia writes that during the states ratification debates, there was a sincere “fear that the federal government would disarm the people in order to impose rule through a standing army.”  The implication here, is that following Locke’s philosophy, should the citizens of the United States deem their government tyrannical, those citizens have a legal, constitutional and perhaps a moral right to overthrow it which would probably require the use of privately-held firearms.  The question is left: by whose standards is the government considered “tyrannical?”

Given the five to four  decision and the fact the Supreme Court had for decades held the Second Amendment allowed states to pass reasonable firearm restriction laws, and the rather ambiguous verbiage of the Second Amendment itself, it is not difficult to infer a politicization of the decision.  This further exacerbates the tension between firearm restriction advocates and firearm advocates.

Does the Second Amendment Stand for Something Other Than the Right to Own Firearms?

The Second Amendment has become a metaphor for the rather nebulous and subjective concept of freedom. People have an almost Pavlovian response to the words, “Second Amendment”. Owning firearms represents something.  It has come to represent the freedom to choose.  The freedom to participate in a society over which we, as citizens, should have control.  Take away those freedoms and our political system, democracy, and society is no longer buttressed by these theories of individual participation and control. Rather, without such freedom (some would argue the illusion of such freedom), we, as United States Citizens, are reduced to nothing more than inconsequential passive participants who are manipulated by a government over which we have no control

On the other hand, the Second Amendment for firearm restriction proponents represents the tyranny of the minority over the majority whereby a minority of individuals represented by a large organization (The National Rifle Association) overrules the will of the majority to restrict gun ownership. Firearms advocates vehemently question this cause-and-effect relationship, which creates an intellectual flashpoint for firearms restriction advocates.

The Second Amendment has taken on a life of its own and represents to both sides something more than it is.  The debate has taken on philosophical meaning beyond the 27 words of the Amendment itself.  Perhaps Nietzsche was correct when he stated his provocative aphorism: “there are no facts, only interpretations.”

[1] Albeit, the first Supreme Court Second Amendment case was decided in 1876 holding the right to keep and bear arms was an “unincorporated” right, and only Congress was barred from restricting the Second Amendment, not the States.  United States v. Cruikshank, 92 U.S. 542.

[2] Proposed by George Mason a Delegate from Virginia.

[3] Historian Richard Beeman of the National Constitution Center proposed a more pragmatic reason for the Delegates’ rejection of the proposed bill of rights during the 1787 convention: They had spent four arduous months of contentious debate in a hot, stuffy room and were anxious to avoid anything that would prolong the convention.  They wanted to go home.

[4] Madison drafted 19 Amendments which were proposed to Congress in 1789.  The House of Representatives narrowed those to 17 and the Senate whittled them down to 12 all of which were sent to the States for ratification.  The States did not ratify the first two ─ hence 10 Amendments.

[5] District of Columbia v. Heller, 545 U.S. 570 (2008).  The holding was made applicable to the states in McDonald v. City of Chicago 561 U.S. 742 (2010).

[6] The District of Columbia Firearm Control Regulation also required all firearms to be kept “unloaded and disassembled or bound by a trigger lock.”

[7] Locke, John; The First Treatise, Sec. 149.

Leave a comment

  • Anthony Hannon July 25, 2018, 2:59 pm

    Very thoughtful paper, Tim. I learned a lot. I especially liked: Nietzsche was correct when he stated his provocative aphorism: “there are no facts, only interpretations.” Well done! Tony Hannon

    Reply