Supreme Court

The Second Amendment: Two Things You Should Know

What does it say?

“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.”

 

What does it mean?

Like almost anything related to the Constitution, the meaning of the Second Amendment is fiercely debated. There are two dominant interpretations.

  1. Individual Right Theory:

Proponents of this interpretation allege that “the right of the people to keep and bear Arms” unequivocally grants individuals the right to possess firearms. Hence, the government cannot “infringe” on – or heavily regulate – this constitutional right.

  1. Collective Right Theory:

Meanwhile, some scholars argue that the beginning of the text – “A well regulated Militia” – indicates that this amendment was meant to protect the local and state governments from the federal government. Under this interpretation, the federal government is not allowed to infringe on the right of states to have their own arms and militias. Hence, the Second Amendment does not speak of an individuals’ right to own arms. States are the ones who have a right, and it’s a collective right to regulate their own militias.

 

Which interpretation is the correct one?

In 2008, the Supreme Court decided – in the case District of Columbia v. Heller – that the Second Amendment guarantees an individual right to carry and possess weapons. This decision was a close one (5-4); the Justices were very much divided on the matter. This is to say that not even the Supreme Court Justices could agree on what the Second Amendment really means.

Before this case, however, the official position of the Department of Justice endorsed the collective right theory. Looking back at history, one can realize that one of the Founding Fathers biggest fears was oppression from a strong, big, central government. Hence, it is not foolish to claim that the Second Amendment was, in fact, created to protect the local governments – the people, collectively – from a potentially tyrannical federal government.

Furthermore, before Heller, the Supreme Court had decided in United States v. Miller (1939) that the Second Amendment provided for a collective right to bear arms. The Court said that if a specific weapon does not have “some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” The main focus was on the right of having a “militia.”

This issue is far from settled. It seems that, depending on which side of the gun control debate one stands, one is more inclined to support one theory over the other.

 

What do you think?

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