The Second Amendment is one of the most hotly contested sections of the United States Constitution. It is a document that has continuous political relevance to millions of Americans nearly 230 years after its original adoption. Although the amendment is one of the founding works in American jurisprudence, it is poorly understood by a large number of Americans. Many Americans do not fully understand the extent of its protections or its beginnings on the American frontier. Better understanding this relationship can help people thoughtfully debate and discuss the amendment's legacy for the 21st century.
Origins of the Second Amendment
The Second Amendment originated in the 18th century for a number of reasons. One reason was the need for settlers to protect themselves in a wide variety of ways. Frequent skirmishes with Native Americans were a constant of colonial life along the frontier. There were slave patrols to find and capture runaway slaves.
Occasionally, there were also skirmishes with foreign powers such as France and Spain. Settlements were far-flung and often days or weeks away from coastal areas where colonial officials lived. It would have taken much too long to send royal troops to deal with every problem that arose. As a result, the vast majority of colonists took these problems into their own hands.
Having a well-armed militia helped protect against these groups. The colonies could muster a militia with weapons they already had for hunting and self-protection. There was also the need to protect the colonies against potential tyranny from governments. Many of the colonies felt as though their rights had been taken away by the English throughout the 1760s and 1770s.
The English colonial officials had restricted and controlled the size and success of militias. However, the colonial militias were essential to the eventual success of the revolution. The revolution was made possible because of the thousands of militia members who aided regular soldiers at battles in Massachusetts, Virginia, and North Carolina. In some areas, the colonial militia won entire battles with their unique approaches to warfare and their superior numbers.
The amendment itself did not originate with the Constitutional Convention. The convention was mostly focused on attempting to dictate the balance between the states and the federal government. Governmental institutions, rules surrounding taxation, and checks and balances were all established. The Constitution was then sent to representatives across the states for ratification. Thousands of individuals throughout the 13 states did not support the Constitution and its supporters were fearful of the new federal government's power.
Therefore, the framers of the Constitution agreed to implement a Bill of Rights that would restrict the future ability of the federal government to repeat many of the worst violations of the earlier colonial governments. Along with freedom of speech and freedom of the press, one of the protections afforded by this Bill of Rights was the right to bear arms in a well-regulated militia.
Expansion to the Second Amendment
These rights were expanded upon slowly throughout the 19th and 20th centuries. In the 19th century, the right to bear arms in a militia was codified at the state level as well as the federal level. The Fourteenth Amendment helped ensure that both states and the federal government were unable to interfere with constitutional protections through the Bill of Rights.
There were also a number of militias raised throughout the South in the years after the Civil War. While these militias claimed a legitimate constitutional basis, they were seen as treasonous by the federal government and quashed by the Ulysses S. Grant administration. African Americans also formed their own militias in order to combat racist groups like the Red Shirts and the Ku Klux Klan.
In the 20th century, there was a sea change in the way that the Second Amendment was viewed. Militias were severely diminished as a reasonable way for citizens to protect themselves or fight significant battles. Groups of men with revolvers would have been useless against tanks, airplanes, or other implements of modern warfare. In addition, The culture of Westerns and the peak of concern about civil unrest in the 1960s helped solidify a view of the Second Amendment as protecting not just militias but also the rights of individuals to own firearms.
Activists and millions of Americans started to interpret these firearms as a right that should not be interfered with. Firearms could protect individuals from the criminals who many people believed lurked right outside their door. This shift can be seen in the changing approach to firearm legislation throughout the 20th century. Laws passed to ban automatic weapons in the 1930s and weapons ordered in the mail in the 1960s were relatively uncontroversial. But by the 1980s and 1990s, every gun control measure was being fought tooth and nail by millions of Americans through the National Rifle Association.
The Heller case
The Heller vs. District of Columbia case is perhaps the most important case in Second Amendment history. This case stemmed from a local law passed in the District of Columbia that placed heavy restrictions on gun use and ownership. The NRA helped to fund and push a lawsuit which argued that the DC regulations abridged on the constitutional right of gun ownership.
Until that point, the Court had not declared a right to gun ownership outside of the rights to form a well-regulated militia. But the 2008 Heller case changed that precedent. Justice Antonin Scalia wrote in a 504 majority opinion that the Second Amendment did allow for the right of an individual to own a gun and have it in their home for the ostensible purpose of self-defense. This decision shifted years of precedent and invalidated the DC regulation. It also meant that no states or municipalities would be able to pass total gun bans on their own.
At the same time, Scalia did not completely end the ability for the government to restrict the types of firearms that could be owned or the individuals who could own those firearms. For instance, the Heller case did not ban required background checks or the famous automatic weapons ban. The case only set rules against the most wide-ranging gun bans in the country.
Current regulations and the Second Amendment
The current situation for gun rights is one in which the pendulum is swinging back the other way from the Heller case. Many states have begun to pass restrictions on firearms including bans on high-capacity magazines and straw purchases. A number of recent news stories have highlighted the capacity of weapons with large magazines to kill dozens of people.
These news stories have fueled a wavering debate in the public about the importance and meaning of the Second Amendment. Many supporters of gun control believe that the Second Amendment does not provide blanket protection to every individual interested in owning any type of gun. They argue for restrictions in the types of weapons available. While automatic weapons have already been banned, there has been a push to ban modifiers known as bump stocks that allow semi-automatic weapons to significantly increase their rate of fire.
Such a ban has been actively proposed and will be enacted by the pro-gun president Donald Trump. This trend of restricting guns in liberal areas has been counteracted by a similar trend of increasing the prevalence of guns in conservative areas. The most common theme of conservative gun rights expansion has been a greater number of laws that allow for public carry and usage of firearms. Many concealed carry laws have been loosened.
In several states, individuals are able to carry firearms throughout a wide variety of areas. The number of places that can outright ban firearms has been reduced significantly as well. Finally, there has been a reduction in the number of barriers to using a firearm for self-defense. A wide variety of "stand your ground" laws have allowed individuals to use their firearms with only a limited chance of prosecution.
The future of gun rights is a continuous tension between the forces that have crafted the current impasse. There are a number of states around the country that are controlled by Democrats. Many of those states will pass more gun regulations. Bans on certain weapons and weapons in certain areas will become more common.
There is also a group of cases going before the Supreme Court that would once again expand the rights of individuals to carry weapons. A recent case argues that the Second Amendment protects the rights of individuals to carry weapons outside of their home as well as keeping them inside of their home. A decision supporting those rights would invalidate and confuse many of the laws against open carry or concealed carry that have proliferated in nearly every state.
The Second Amendment will continue to be a political flashpoint into the 2020 election and beyond. It is a critical part of the Republican Party's base and will continue to be for years to come. Money will continue flowing in from the NRA and gun manufacturers in order to oppose regulations and fight for gun-friendly legal cases.
- District of Columbia
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota