The Second Amendment Myth & Meaning
The Second Amendment to the United States Constitution
“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 NRA’s Second Amendment Myth
Our nation suffers from an epidemic of gun violence. Guns take the lives of 105 Americans every day — 15 of them are children and teenagers. In the four years between 1988 and 1991, more Americans were murdered with firearms than were killed in battle during the eight years of the Vietnam War. Sensible national gun control laws are urgently needed to stem this violence.
Time and time again, the National Rifle Association and other opponents of rational restrictions on guns charge that gun control laws violate the Second Amendment to our Constitution. According to the NRA, the Second Amendment’s guarantee of a “right to keep and bear arms” is as broad and fundamental as the First Amendment freedoms of speech, assembly and the press. The NRA has even argued that citizens have a constitutional right to own machine guns and military-style assault weapons!
The NRA’s constitutional theory is a calculated distortion of the text, history and judicial interpretation of the Second Amendment. In the words of former U.S. Supreme Court Chief Justice Warren Burger, the NRA has perpetrated a “fraud on the American public.”
Contrary to the gun lobby’s propaganda, the Second Amendment guarantees the people the right to be armed only in connection with service in a “well regulated Militia.” Courts consistently have ruled that there is no constitutional right to own a gun for private purposes unrelated to the organized state militia.
It is time for the debate over gun violence to focus on the real issues, free from the NRA’s constitutional mythology.
The Text of the Second Amendment
The gun lobby’s distortion of the Second Amendment begins with its words. How many times have you heard an opponent of gun control cite the “right to keep and bear arms” without mentioning the introductory phrase “A well regulated Militia, being necessary to the security of a free state. . .”? In fact, some years ago, when the NRA placed the words of the Second Amendment near the front door of its national headquarters in Washington, D.C., it omitted that phrase entirely!
The NRA’s convenient editing is not surprising; the omitted phrase is the key to understanding that the Second Amendment guarantees only a limited right that is not violated by laws affecting the private ownership of firearms.
The “obvious purpose” of the Second Amendment
was “to assure the continuation and render possible the
effectiveness” of state militia forces.
“It must be interpreted and applied with that end in view.”
United States Supreme Court in U.S. v. Miller, 307 U.S. 174 (1939)
The Original Intent
The concept of a “well regulated Militia” is somewhat foreign to 20th century America, but it is central to the meaning of the Second Amendment.
At the time the U.S. Constitution was adopted, each of the states had its own “militia” — a military force comprised of ordinary citizens serving as part-time soldiers. Most of the adult male population was required by state law to enlist in the militia. The militia was “well regulated” in the sense that its members were subject to various legal requirements. They were, for example, required to report for training several days a year, to supply their own equipment for militia use, including guns and horses, and sometimes to engage in military exercises away from home.
The purpose of the militia was expressed in the Second Amendment — to assure “the security of a free State” — against threats from without (e.g. invasions) and threats from within (e.g. rebellions, riots, etc.).
The “militia” was not, as some gun control opponents have claimed, simply another word for the armed citizenry. It was an organized military force, “well regulated” by the state governments. Noah Webster’s Dictionary of 1828 defines “militia” as: “…the able bodied men organized into companies, regiments and brigades, with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations.”
When the Constitution was sent to the states for ratification in 1787, the continued viability of the state militia was a central issue. The new Constitution established a permanent army composed of professional soldiers and controlled by the federal government. The “Anti-Federalists,” who sought changes in the newly proposed Constitution, were fearful of the federal standing army authorized by the Constitution. The use of troops by George III as an instrument of oppression was still fresh in their memories.
The Anti-Federalists saw the state militia as an effective counterpoint to the power of the standing army but they were concerned that the federal government had excessive power over the militia. They argued that the Constitution left the arming of the state militia exclusively to the federal government. During the Virginia ratification debates, Patrick Henry asked: “When this power is given to Congress without limits or boundary, how will your militia be armed?”
The Second Amendment was written in response to this Anti-Federalist concern. The Amendment affirms that the keeping and bearing of arms in a “well regulated Militia” of the states is a “right of the people,” not dependent on the whim of the federal government. The original intent of the Second Amendment, therefore, was to prevent the federal government from passing laws that would disarm the state militia.
The Second Amendment in the Twentieth Century
The Second Amendment has become an anachronism, largely because of drastic changes in the militia it was designed to protect. We no longer have a citizen militia in which a large portion of the population is enrolled for part-time military service and required by the government to maintain private arms for such service. As the nation grew, it became unworkable and unduly expensive for the states to impose military training and service on that many Americans.
The modern “well regulated Militia” is the National Guard — a state-organized military force of ordinary citizens serving as part-time soldiers, like the early state militia. However, unlike the early militia, the National Guard is of more limited membership and depends on government-supplied — not privately owned — arms. Whereas in 1787 federal restrictions on privately owned guns may have interfered with the “well regulated Militia,” this is not the case today. Gun control laws have no effect on the arming of today’s militia, since those laws invariably exempt the National Guard. Therefore, they raise no serious Second Amendment issue.
“The purpose of the Second Amendment is to restrain the federal government
from regulating the possession of arms where such regulation would
interfere with the preservation or efficiency of the militia.”
U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992)
The Second Amendment in the Courts
As a matter of law, the meaning of the Second Amendment has been settled since the ruling of the U.S. Supreme Court in U.S. v. Miller, 307 U.S. 174 (1939). In that case, the High Court wrote that the “obvious purpose” of the Second Amendment was “to assure the continuation and render possible the effectiveness” of the state militia. The Court added that the Amendment “must be interpreted and applied with that end in view.” Since Miller, the Supreme Court has addressed the Second Amendment in two cases. InBurton v. Sills, 394 U.S. 812 (1969), the Court dismissed the appeal of a state court ruling upholding New Jersey’s strict gun control law, finding the appeal failed to present a “substantial federal question.” And in Lewis v. United States, 445 U.S. 55 (1980), the Court upheld the federal law banning felons from possessing guns. The Court found no “constitutionally protected liberties” infringed by the federal law.
In addition, in Maryland v. United States, 381 U.S. 41 (1965) and Perpich v. Department of Defense, 496 U.S. 334 (1990), cases not involving the Second Amendment, the Supreme Court has affirmed that today’s militia is the National Guard.
Since Miller was decided, lower federal and state courts have addressed the meaning of the Second Amendment in more than thirty cases. In every case, the courts have decided that the Amendment guarantees a right to be armed only in connection with service in a “well regulated Militia.” The courts unanimously have rejected the NRA’s view that the Second Amendment is about the self-defense or sporting uses of guns. As the U.S. Court of Appeals for the Eighth Circuit wrote, the courts “have analyzed the Second Amendment purely in terms of protecting state militias, rather than individual rights.” United States v. Nelson, 859 F.2d 1318 (1988).
The Second Amendment and the Gun Control Debate
The National Rifle Association spends millions of dollars every year to foster its myth that the Second Amendment guarantees a broad, individual right to be armed that precludes virtually every restriction on private ownership of guns. The gun lobby’s efforts have had a profound influence on the gun control debate. Public opinion polls show that, although more than 60% of Americans erroneously believe that the Constitution gives them a right to be armed, only a minority of Americans believe that it should grant that right. It is time for the American people to know the truth about the Second Amendment and for the NRA’s systematic distortion of our Constitution to stop.
As Former Harvard Law School Dean Erwin Griswold put it, “to assert that the Constitution is a barrier to reasonable gun laws, in the face of the unanimous judgment of the federal courts to the contrary, exceeds the limits of principled advocacy. It is time for the NRA and its followers in Congress to stop trying to twist the Second Amendment from a reasoned (if antiquated) empowerment for a militia into a bulletproof personal right for anyone to wield deadly weaponry beyond legislative control.”