The Right To Bear Arms: Understanding The Second Amendment

The Second Amendment of the United States Constitution, which was passed by Congress on September 25, 1789, and ratified on December 15, 1791, protects the right of Americans to keep and bear arms. The amendment states that 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. This has been a topic of considerable debate, with some arguing that it grants individuals the right to possess firearms, while others claim it only restricts Congress from disarming state militias. The Supreme Court has also weighed in on this issue, with landmark cases like District of Columbia v. Heller in 2008 and McDonald v. City of Chicago in 2010, shaping the interpretation and application of the Second Amendment.

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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."

On the other hand, some scholars emphasize the prefatory language "a well-regulated Militia" to argue that the Framers intended to restrict Congress from legislating away a state's right to self-defense. This interpretation is called "the collective rights theory," and it asserts that citizens do not have an individual right to possess guns, allowing government bodies to regulate firearms without violating a constitutional right.

The historical context of the Second Amendment is important to consider. During the colonial and revolutionary periods, legal documents such as the Virginia Declaration of Rights and the Pennsylvania Constitution asserted the right of citizens to arm themselves as fundamental. After the American Revolution, there were concerns about the potential for oppressive regimes to use large armies to oppress their people. The idea of citizen militias in each state, composed of armed average citizens, was proposed as a deterrent to this threat.

Individual right theory

The Second Amendment to the United States Constitution, ratified on December 15, 1791, protects the right of Americans to keep and bear arms. The amendment 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.

The interpretation of this amendment has been a subject of debate, with some arguing for an "individual right theory" and others for a "collective rights theory". The individual right theory interprets the Second Amendment as creating an individual constitutional right to possess firearms. Proponents of this theory argue that the amendment restricts legislative bodies from prohibiting firearm possession, or at the very least, it renders prohibitory and restrictive regulation presumptively unconstitutional. This view aligns with the idea that the right to keep and bear arms is similar to the right to freedom of speech, where the Constitution expressly protects a liberty that needs to be insulated from the ordinary political process.

The individual right theory is supported by historical context, including legal documents from the colonial and revolutionary periods such as the Virginia Declaration of Rights and the Pennsylvania Constitution, which asserted the right of citizens to arm themselves as fundamental. The notion of average citizens possessing weapons also predates the Constitution, as seen in the English Bill of Rights in 1689, which allowed Protestant English citizens to "have arms for their defence".

Additionally, the individual right theory considers the purpose of the Second Amendment, which has shifted over time. Initially, it served as a bulwark against foreign invasion and federal overreach. However, in more recent times, its focus has expanded to include general safety and protection of life, liberty, and property. This shift in purpose further strengthens the argument for interpreting the Second Amendment as an individual right, as it aligns with the idea of self-defense and protection against common criminals.

While the individual right theory has gained support, it is important to note that the right to bear arms is not absolute. Courts have drawn lines to balance the interests of individuals in protecting themselves with the need to maintain an orderly society. This has resulted in regulations and restrictions on firearm ownership, such as licensing requirements, background checks, and mental health evaluations, which have been deemed constitutional by the Supreme Court.

Collective rights theory

The Second Amendment of the United States Constitution, ratified on December 15, 1791, protects the right of Americans to keep and bear arms. The amendment 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.

The Second Amendment has been the subject of considerable debate and scholarly interpretation, with the discussion centred around whether it protects an individual right or a collective right to bear arms. The "collective rights theory" or "collective-right" model is one such interpretation.

The collective rights theory asserts that the Second Amendment does not grant individuals the right to possess firearms. Instead, it recognises the right of each state to arm its militia, with citizens having no right to keep or bear arms outside of service in a government-organised and regulated militia. This theory interprets the amendment's prefatory clause ("A well-regulated militia being necessary to the security of a free State") as the sole purpose of the amendment, rather than a preamble to the operative clause ("the right of the People to keep and bear arms shall not be infringed").

Advocates of the collective rights theory argue that the Second Amendment was written to prevent the federal government from disarming state militias, ensuring the effectiveness of the military and preserving a state's right to self-defence. This interpretation held sway until the early 21st century, with every circuit court decision before 2001 endorsing the collective right model.

However, the collective rights theory has been challenged by the "individualist" or "individual right" interpretation, which gained traction in legal scholarship and litigation from the 1960s onwards. This competing view holds that the Second Amendment protects an individual right to keep and bear arms, independent of service in a militia. The debate between these two interpretations has been a significant aspect of the political and social discourse around the Second Amendment in the 20th and 21st centuries.

While the District of Columbia v. Heller case in 2008 established that the Second Amendment conferred an individual right to keep and bear arms, aspects of the collective right theory continue to shape the modern understanding of the amendment, as seen in the Presser and Miller cases. The debate between collective and individual rights remains nuanced, with ongoing discussions about the scope and limitations of the Second Amendment.

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Fourteenth Amendment

The Second Amendment, which gives Americans the right to bear arms, was ratified on December 15, 1791. The Fourteenth Amendment, on the other hand, was "in the process of adoption" by the state legislatures in 1867, according to Judge Timothy Farrar's Manual of the Constitution of the United States of America.

The Fourteenth Amendment states that a state cannot deprive any person of "life, liberty, or property, without due process of law." In McDonald v. City of Chicago (2010), the Supreme Court clarified that the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment against state and local governments. In this case, the Court, citing the intentions of the framers and ratifiers of the Fourteenth Amendment, held that the Second Amendment applies to the states through the incorporation doctrine.

The Court did not agree on which specific clause of the Fourteenth Amendment incorporates the fundamental right to keep and bear arms for the purpose of self-defense. While Justice Alito and his supporters looked to the Due Process Clause, Justice Thomas stated in his concurrence that the Privileges and Immunities Clause should justify incorporation.

In Caetano v. Massachusetts (2016), the Supreme Court reiterated its earlier rulings that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding," and that its protection is not limited only to firearms, nor "only those weapons useful in warfare."

Arguments asserting that the Fourteenth Amendment extended the right to bear arms to individuals against state governments were struck down by the Supreme Court in 1876's United States v. Cruikshank.

State-run militia

The Second Amendment to the United States Constitution, ratified on December 15, 1791, is often cited as the amendment that gives citizens the right to bear arms. The amendment was proposed by James Madison, a slaveholder and the chief drafter, and reads:

> "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 right to bear arms was tied to membership in a militia because only whites could join militias in the South. The Second Amendment was written to assure the Southern states that Congress would not undermine the slave system. The biggest function of the militia in the slave states was to police the slaves.

The notion of average citizens possessing their own weapons predates the Constitution. In the English Bill of Rights in 1689, all Protestant English citizens were allowed to "have arms for their defence [sic] suitable to their conditions and as allowed by law." This was later commented on by Sir William Blackstone in his Commentaries on the Laws of England, where he described the possession of weapons as an "auxiliary right" designed to support the core rights of self-defence and resistance to oppression.

The Second Amendment was originally only applied to the federal government, but in McDonald v. City of Chicago in 2010, the Court held that the Second Amendment applies to the states through the incorporation doctrine. This was a landmark decision that protected the right of all individual citizens to keep and bear their own weapons to defend themselves, rather than only for a state-run militia.

The Second Amendment has been the subject of considerable debate, with some interpreting it as creating an individual constitutional right to possess firearms, while others argue that the Framers intended only to restrict Congress from legislating away a state's right to self-defence. The amendment has also been interpreted as a general prohibition against capricious abuse of government power.

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