What The Second Amendment Really Says

Is There A Constitutional Right To Own A Gun?
*According to the National Rifle Association (NRA) and other opponents of rational firearms control measures, the Second Amendment guarantees the absolute right of every American to privately possess firearms without restriction. Although this interpretation is accepted as fact by many Americans, it has absolutely no basis in law. To the contrary, nearly 100 years of uncontradicted legal precedent make clear that the Second Amendment only protects the right to keep and bear arms in connection with service to an organized state militia.

In support of its interpretation, the gun lobby focuses exclusively on the words of the second half of the Second Amendment - "the right of the people to keep and bear arms shall not be infringed" - omitting all reference to the first phrase - "A well regulated Militia, being necessary to the security of a free State" - even though that language clearly links the right to bear arms to a "well regulated Militia". Based on this distortion of the constitutional text, the gun lobby insists that the Second Amendment is a barrier to virtually all proposed firearms regulations.

The gun lobby has led many Americans to believe that rational gun control regulations are unconstitutional, significantly undermining efforts at the federal and state level to address the national epidemic of gun violence. However, the Second Amendment is not a barrier to laws regulating the private use, sale or ownership of firearms, whether enacted by federal, state or local governments.

Historical Context
When analyzing the Second Amendment, it is useful to understand the historical context in which it was written. Prior to the adoption of the U.S. Constitution, each of the states operated independently under the Articles of Confederation. Each state had its own "militia" composed of ordinary citizens serving as part-time soldiers to protect against external threats and internal insurrection. Individuals serving in the militia were required to supply their own equipment, including horses and guns, for militia use.

The U.S. Constitution, as originally drafted, established a permanent army of professional soldiers controlled by the federal government. When the Constitution was sent to the states for ratification in 1787, the continued existence of the state-run militia was in question. Many colonial leaders, With the memory of British tyranny fresh in their minds, mistrusted centralization of power. Although they saw the continuation of the state militia as an effective counterpoint to the power of the standing army, these leaders were concerned that the federal government had excessive control over the militia.

In The Federalist #46, James Madison, the principal author of the Bill of Rights, defines the militia as a military force "conducted by {state} governments". This state-run militia, he argued, would counterbalance the power of the federal army. Thus, the Second Amendment was written to ensure that every state would have the ability to maintain its own militia. It was not, as the gun lobby argues, intended to establish an unlimited, private right of gun ownership or possession. If the drafters of the Bill of Rights had intended to guarantee such an individual right, they could (and would) have done so.

What the Second Amendment does is define limitations of the federal government's right to restrict--as opposed to a state's right to maintain--a "well regulated militia". Its purpose is to give the states responsibility and guarantee their right to train, maintain and to "keep and bear arms" for militias composed of state residents available to be called upon should there be a threat to security.

The modern militia was officially created by the National Guard Act of 1902, in which all state militias were formalized under the authority of the National Guard. Gun rights advocates argue that since the militia included most able-bodied men, the militia is now everyone. However, because laws regulating firearms do not interfere with the modern militia, no gun control law has ever been overturned by the federal courts on Second Amendment grounds.

Judicial Interpretation
Legal history demonstrates that the Second Amendment is not a barrier to reasonable gun control laws. Six Supreme Court and forty lower court decisions have reaffirmed that there is no right of an individual to own a gun, and that it is a collective right of the militia, not the individual. The Supreme Court rarely speaks in this area and when it does, it begins with the idea that the Second Amendment protects a state's right to keep arms for the militia. Historically, the legal and judicial view has been that the Second Amendment only guarantees a state's right to be armed, with no explicit reference to the individual.

Major Legal Decisions On Gun Laws
U.S. v. Cruikshank-1876, The right to bear arms "is not a right granted by the Constitution" or by the Second Amendment, which the Supreme Court says restricts the power of Congress--but not the states--to regulate firearms.

U.S. v. Miller-1939, A defining U.S. Supreme Court case. Miller stated that restrictions on a sawed-off shot gun violated a person's Second Amendment rights. The U.S. Supreme Court considered a Second Amendment challenge to the prosecution of two individuals who transported a sawed-off shotgun in violation of the National Firearms Act. The court held that the "obvious purpose" of the amendment was "to assure the continuation and render possible the effectiveness" of the state militia, and that it "must be interpreted and applied with that end in view." Because there was no evidence that possession or use of a sawed-off shotgun had any "reasonable relationship to the preservation or efficiency of a well regulated militia," the court found that the Second Amendment had not been violated. Subsequent cases have held that the modern equivalent of the "militia" is the National Guard. Miller has never been undermined.

Eckert v. City of Philadelphia-1973, 6th Circuit Court, "it must be remembered that the right to keep and bear arms is not a right given by the U.S. Constitution."

Lewis v. U.S.-1980, states that the Second Amendment guarantees no right to keep and bear a firearm that does not have some reasonable relation to preservation or efficiency of a well regulated militia.

Quilici V. Village of Morton Grove-1982, In a nationally-watched case, a town in Illinois banned handguns. The 7th Circuit Court of Appeals ruled that the Second Amendment restricts federal authority in this area, not that of state and local governments, "We conclude that the right to keep and bear handguns is not guaranteed by the Second Amendment" and "The right is for the militia, not the right to keep handguns". The U.S. Supreme Court declined to hear an appeal in Quilici.

U.S. v. Hale - 1992, The Eighth Circuit read Miller (above) as protecting only those weapons which are actively being used by a militia member for a legitimate, militia-related purpose. A weapon is not constitutionally protected simply because it is "susceptible to military use". Indeed, as observed by the court, it would be difficult to find a lethal weapon which does not have a "potential military use". Instead, a plaintiff must prove that "his or her possession of the weapon was reasonably related to a well regulated militia". Membership in an unorganized militia, or a private, nongovernmental military organization, is not enough to satisfy the "reasonable relationship" test.

The Legal And Legislative Future For Gun Control
Eleven U.S. Circuit Courts of Appeals have analyzed the Second Amendment with this narrow view. Additionally, while the courts have chosen to apply many other provisions of the Bill of Rights to the states through the Fourteenth Amendment, they have explicitly declined to do so with the Second Amendment. The Court is not going to expand any individual rights, so any personal right to bear arms would have to be balanced against the needs of the community. Therefore, the Second Amendment is not an obstacle to rational gun control laws, it does not preclude federal, state or local regulation of the sale, use or ownership of guns for private purposes.

For the NRA, firearms equal freedom, and they want to change the subject from death, injury and statistics. There is a good chance, however, that the cost of violence is winning more converts than the "constitutional right" to "keep and bear arms"--especially when that right, as it affects gun ownership, is illusory.

This article is a brief synopsis, plus edited excerpts, from an analysis of the Second Amendment prepared by the Legal Community Against Violence which was organized after the July 1, 1993 massacre at 101 California Street in San Francisco. This organization, a Community Fund of the San Francisco Foundation, may be reached at (415) 433-3550, fax (415) 433-3557. 

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