What Does the Second Amendment Really Do?

Posted: August 9, 2011 in Uncategorized

What does the Second Amendment Really Do? 

Commonly, as I travel around, I will hear people cite the Second Amendment to support all sorts of arguments. Some will argue it gives them the right to carry a firearm without a permit, some will argue it gives them the right to own any firearm without incumbarence, and some argue it gives them the right to use a firearm to protect their property. But what does the Second Amendment really guarantee? If we are to make sound arguments, that carry with them the power of persuasion, then we must first understand the scope of the argument itself.

I should preface this by stating that I am as much of a Second Amendment advocate as anyone I’ve ever met. What I’m not, however, is fanatical. “Fanatical” is defined as being possessed with or motivated by excessive, irrational zeal. Too often Second Amendment advocates, although wielding only the best intentions, will make irrational arguments citing the Second Amendment. What has resulted is a loss of the Amendment’s validity to the general public and a general misunderstanding of what it really guarantees.

I (as well as most Second Amendment academics) believe in a “Standard Model” approach to interpreting the constitution. The standard model looks at the text of the Second Amendment and its historical underpinnings. Below I will attempt to answer some of the most common Second Amendment questions.

Does the Second Amendment protect an individual right? 

Yes. Thanks to two recent Supreme Court decisions (DC v. Heller, McDonald v. Chicago) we now know that the Second Amendment is not only an individual right, but also a fundamental right (more on this later). But even without those two benchmark cases common sense tells us the Second Amendment was written for the individual citizen, and not the collective government body as many argue. As Don B. Kates, Jr., aptly puts it:

“To deny that the right protected is one enforceable by individuals the following set of propositions must be accepted: (1) when the first Congress drafted the Bill of Rights it used “right of the people” in the first amendment to denote a right of individuals (assembly); (2) then, some sixteen words later, it used the same phrase in the second amendment to denote a right belonging exclusively to the states; (3) but then, forty-six words later, the fourth amendment’s “right of the people” had reverted to its normal individual right meaning; (4) “right of the people” was again used in the natural sense in the ninth amendment; and (5) finally, in the tenth amendment the first Congress specifically distinguished “the states” from “the people,” although it had failed to do so in the second amendment.”

The Second Amendment protects a fundamental right, what does a “fundamental right” mean?

Fundamental rights are those derived from natural or fundamental law. They are things that are so intertwined with ordered liberty that society could not function properly without their protection. As a result they require the highest level of scrutiny available (strict scrutiny) and are very rarely allowed to be infringed upon. Fundamental rights include the right to vote, right to travel, right to have (or not have) children, and now the right to possess a functioning firearm inside your home (more on this later).  These fundamental rights are guaranteed against the Federal government by various provisions of the Bill of Rights, but are all guaranteed against state encroachment by the 14th Amendment. In other words, if a city or state would like to prohibit your ability to have a firearm inside your home then it would be treated as if they attempted to prohibit your ability to have children, vote, or travel. In short, it is very difficult for municipalities to justify infringing on fundamental rights, though they can limit their scope. For example, a state can’t prohibit you from voting, although they may require very unobtrusive prerequisites like registering to vote. They can’t stop you from procreating with your spouse, but they can limit the places where you can do it (i.e. can’t do it in public or the workplace, trust me!).

What is the “fundamental right” the Second Amendment guarantees?

What does it really protect? This is probably the least understood part of the Second Amendment. The text seems to protect two distinct actions,  the keeping and bearing of Arms. Simply translated, to keep is to have (or possess) firearms, to bear is to carry firearms. In its simplest form, the Second Amendment only currently protects the right to keep (or have) arms within a home. As of today, the Second Amendment has not been extended to protect the right to carry a firearm outside of your home. The fundamental right currently protected by the Second Amendment is the right to keep (or have) a functioning firearm in your home for self defense. The right to carry (or bear) a firearm outside of your home is either protected by your state’s constitution or allowed statutorily under certain circumstances (excluding only Illinois), but is NOT currently protected by the Second Amendment. Of course, we are all hoping that the Supreme Court does the right thing and applies the fundamental right not only to “keeping” firearms in a home but also to “bearing” them outside of the home, however they are yet to do so. Of note is the fact that the NRA has filed suit in Illinois on this precise subject, we will keep you up to date on how it progresses.

What types of weapons are protected by the Second Amendment? 

In short, those which are in common use by the military at the current time. Does that include howitzers or nuclear warheads? No. As mentioned above the Second Amendment protects two actions, keeping and bearing arms. If you can’t bear it (carry it) then it is likely not protected by the Second Amendment. As super geneous Glenn Reynolds explained: “Textually, the language ‘keep and bear arms’ is interpreted as limiting the arms protected to those that an individual can “bear”–that is, carry. This fact, together with the fact that the right is seen as one pertaining to individuals, leaves out large crew-served weapons such as howitzers, machine guns, nuclear missiles, and so on. Presumably individuals (if wealthy and eccentric enough) could “keep” such weapons, but they could not “bear” them. Because one purpose of the right is to allow individuals to form up into militia units at a moment’s notice, the kinds of weapons protected are those in general military use, or those that, though designed for civilians, are substantially equivalent to those military weapons.” (Glenn Reynolds, A Critical Guide to the Second Amendment).

But does the gun need to have a “Sporting Purpose” like Bill Clinton said? NO! Bill Clinton may be a pro with the Saxaphone, but he is far from a constitutional scholar. As a matter of fact, firearms with a major sporting purpose (like shotguns) are arguably not nearly as protected by the Second Amendment as those with little to no sporting purpose (like “assault rifles”). “The much-vilified ‘assault rifle’ would be protected…not in spite of its military character, but because of it…Recreation and sport, to the extent they are protected at all, are covered only penumbrally; the Second Amendment is not about sport or recreation.” (Id.). 

Does the Second Amendment guarantee the right for everyone to “Keep and Bear Arms”? 

No, it never has. A common argument proffered by many is that the Second Amendment guarantees the right for everyone to own and carry a firearm. I hear this a lot, but have found no historical backing for it. On the contrary, the right to keep and bear arms was historically extended only to the “virtuous citizen”. One implication of this emphasis on the virtuous citizen is that the right to arms does not preclude laws disarming the unvirtuous (i.e. criminals) or those who, like children or the mentally unbalanced, are deemed incapable. “Furthermore, licensing laws, background checks, and waiting periods–so long as all are reasonable and not simply covert efforts at restricting the availability of guns to those who qualify–do not violate the right… After all, the “well regulated militia” of which every citizen was presumed a part included the necessity of showing up occasionally in person to prove that one possessed the necessary weapons and knew how to use them. If that could be required, then it is hard to argue that citizens cannot be required to fill out a form or two.” (Id.). Given that training and qualification was a historical requisite for the exercise of the Second Amendment it is likely that the Supreme Court will incorporate similar requirements when and if they rule on the subject.

Having said that, nothing I said above limits the ability for a state to extend the right to keep and bear arms more broadly than what the Second Amendment may provide. The Second Amendment provides the floor protection (as do the rest of the Bill of Rights), the states are allowed to establish the ceiling (that’s why you’ll always find me in Idaho or Utah!!). The Supreme Court is yet to rule as to what the right to “Bear Arms” really means, and it may be years until they do. Regardless of whether they rule that the right to bear arms includes the right for the average citizen to carry a concealed firearm or not, we can rest assured that there are 44 different state constitutions (excluding California, Iowa, Maryland, Minnesota, New Jersey, New York) that guarantee such a right. It is with the state constitutions that we currently find the greatest guarantee for the right to carry a concealed firearm.

As always, stay safe, be prepared, and let us know if we can help with either of those objectives. 

(Taken from the Legal Heat July Newsletter, http://www.mylegalheat.com)


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