The Second Amendment to the American Constitution states, “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.[i]”
The scope of this provision-whether this provision protects the individual’s right to own firearms or whether it deals only with the collective right of the people to arm and maintain a militia is strongly debated.[ii]
The Second Amendment was adopted on December 15, 1791, along with the rest of the Bill of Rights. The American Bar Association has noted that there is more disagreement and less understanding about this right than of any other current issue regarding the Constitution.
The meaning of the term “regulated” as appearing in the Second Amendment has been interpreted to mean “disciplined” or “trained”.
The words of the Second Amendment have generated considerable controversy as part of the broader debate over gun control. Those favoring stricter controls generally contend that the amendment was meant to protect the collective right of states to maintain militia units. Others however respond that the amendment was intended to protect only an individual right. Notwithstanding this debate, the Supreme Court has only considered Second Amendment claims in a handful of cases.
The Supreme Court, in a landmark decision, in District of Columbia v. Heller[iii], ruled that “[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home” and “that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”
The two principal cases involving Second Amendment claims, United States v. Cruikshank[iv] and Presser v. Illinois[v], reveal the Court’s early reaction to the Fourteenth Amendment as they do about the Second. In United States v. Cruikshank, the Court observed that though the Second Amendment declares that the right to keep and bear arms shall not be infringed; it means no more than that it shall not be infringed by Congress. The Court in Presser declared that the Second Amendment only protected individuals from federal not state infringement.
Therefore at the beginning of the twentieth century, the Court adhered to the view that the Second Amendment only limited federal power. That view, coupled with the virtual absence of federal firearms regulation, left the Court with little to say on the topic. With the violence generated during Prohibition, this view of the courts underwent a drastic change. Due to the increase in organized crime in the 1920s and 1930s, Congress passed the National Firearms Act of 1934 which provided for taxation and registration of automatic weapons and sawed off shotguns.
Despite the Court’s institutional reticence, a vigorous debate rages in other forums. Since the 1980s the amendment has been the subject of a growing body of literature in law and history journals. This debate has influenced jurists in some lower federal courts. In United States v. Emerson[vi], the Fifth Circuit recognized the Second Amendment as an individual right while sustaining a federal statute restricting firearms possession in cases involving domestic violence.
[iii] 128 S. Ct. 2783 (U.S. 2008)
[iv] 92 U.S. 542 (U.S. 1876)
[v] 116 U.S. 252 (U.S. 1886)
[vi] 270 F.3d 203 (5th Cir. Tex. 2001)