A Brief History of the 2nd Amendment
Bill of Rights: 2nd Amendment, adopted December 15, 1791:
“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.”
Why do Americans need guns?
The 2nd Amendment was drafted during a period of time when our forefathers had just got done fighting tyranny, against an oppressing entity. Naturally, as a young nation we were only taking precaution in case it happened again. So it could be argued that our forefathers needed to bear arms because if not, they would have been very vulnerable to anyone who could have invaded again. However, since the the dawn of independence for America, it’s citizens have never been in harms way to the degree they had been since the Revolutionary War. As our nation grew and became more sophisticated, we entrusted our security and protection into the hands of several layers of governing bodies, from local law enforcement to our nation's military. So why continue the need to bear arms?
James Madison said, “A standing army would be opposed by a militia.” He argued that state militias “would be able to repel the danger” of a federal army. “It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.” He confidently contrasted the federal government of the United States to the European kingdoms, which he contemptuously described as “afraid to trust the people with arms.” He assured his fellow citizens that they need never fear their government because “besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition”.
Samuel Adams said about the Constitution, “be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.”
The 2nd Amendment says, “the right of the people to keep and bear arms.” These words have often come under scrutiny in our history but it hasn’t been until recently that this scrutiny has become a real threat to law-abiding Americans.
Even before the Bill of Rights, post-Revolutionary War Federalists were in favor of disbanding state militias, stating that there's no need for state militias and armed citizens if they raised a federal army. Listed below are a few of the cases in history that have tremendously impacted the 2nd Amendment.
In United States vs. Cruikshank (1876): The Supreme Court of the U.S. ruled that “The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon the instrument for its existence” and limited to the scope of the 2nd Amendment’s protections to the federal government. This was a huge hit to our citizens at the time, meaning:
- The Supreme Court ruled against any individual right to bear arms
- The ruling meant the 2nd Amendment served only to protect the states against the federal government.
- Additionally, the 2nd Amendment only guaranteed states’ rights to maintain militias.
- State governments could regulate guns however they saw fit.
It wasn’t until United States vs Miller (1939), when the Supreme Court once again ruled over a case that would introduce the idea of the first set of gun control laws in the United States. Preceding, in 1934, Congress passed the National Firearms Act (NFA) due to a crack down on organized crime like Al Capone’s men who were famous for machine guns and sawed-off shotguns. In 1938, Jack Miller and Frank Layton were arrested for carrying an unregistered sawed-off shotgun. Miller and Layton were arrested for carrying a gun that did not bear a stamp certifying that the tax had been paid. The case made its way to the Supreme Court when a lower court accepted the defendants’ argument that the NFA violated their Second Amendment right to keep and bear arms. Ultimately the Supreme Court ruled:
- The independent gun rights had to be connected to the citizens’ “common obligation” to serve in militias or similar government-organized military bodies, not individual rights for self-defense.
- The 2nd Amendment only protected weapons commonly used in military service, not all weapons.
- On a positive note, they acknowledged individual rights (for the first time), that when the militias were formed, they were formed of free men who were required to provide their own weapons.
In conclusion to United States vs. Miller, this case opened the door to a more individualistic reading of the 2nd Amendment but only with weapons recognized for militia service. For the next 70 years, this case rippled through the nation in every town and shaped the 2nd Amendment denoting the individual’s right to own and bear arms. Of course, this wasn’t a blanket statement and federal government gave state governments a lot of authority to create and uphold their own gun laws.
These state gun laws bring us to our next case, District of Columbia v. Heller (2008). The District of Columbia (D.C.) made it illegal to carry an unregistered firearm while also prohibiting the registration of handguns. Officer Dick Anthony Heller was a D.C. police officer who applied for a one-year license for a handgun he wanted to keep at home but his application was denied. He sued the District of Columbia.
The district court dismissed the complaint but the U.S. Court of Appeals for D.C. reversed the decision and upheld that the 2nd Amendment protects the right to keep firearms in the home for the purpose of self-defense, and that D.C.’s requirement to keep guns in the house nonfunctional, violates the 2nd Amendment.
Justice Antonin Scalia led the 5-4 decision:
‘The Court held that the first clause of the Second Amendment that references a “militia” is a prefatory clause that does not limit the operative clause of the Amendment. Additionally, the term “militia” should not be confined to those serving in the military, because at the time the term referred to all able-bodied men who were capable of being called to such service. To read the Amendment as limiting the right to bear arms only to those in a governed military force would be to create exactly the type of state-sponsored force against which the Amendment was meant to protect people. Because the text of the Amendment should be read in the manner that gives greatest effect to the plain meaning it would have had at the time it was written, the operative clause should be read to “guarantee an individual right to possess and carry weapons in case of confrontation.” This reading is also in line with legal writing of the time and subsequent scholarship. Therefore, banning handguns, an entire class of arms that is commonly used for protection purposes, and prohibiting firearms from being kept functional in the home, the area traditionally in need of protection, violates the Second Amendment.’
In McDonald v. City of Chicago (2010), following the decision in the Heller case, several citizens of the city of Chicago filed lawsuits challenging the city-wide gun ban. The district court dismissed the suits and the U.S. Court of Appeals Seventh Circuit affirmed the decision. However, the Supreme Court reversed the Seventh Circuit, stating that the 14th Amendment makes the 2nd Amendment applicable to the states. This was a landmark decision from the Supreme Court incorporating the 2nd Amendment, against the states by the Due Process Clause of the 14th Amendment. Even until today, this is an on-going battle in the city of Chicago.
Lastly, in 2016 The Supreme Court of the United States heard the case of Caetano v. Massachusetts. Jaime Caetano filed several restraining orders against her abusive boyfriend, however she ended up being hospitalized after an altercation with him. She received a stun gun from her friend and again found herself in another altercation, but this time she was able to defend herself. When the police arrived, they arrested Caetano for possession of a stun gun. The police stated that stun guns are not protected under the 2nd Amendment and Caetano’s case went before the Supreme Judicial Court of Massachusetts. The court affirmed Caetano’s conviction. Caetano filed an appeal with the Supreme Court of the United States and had her conviction overruled by a unanimous decision by all eight Justices.
This case was historic, based on the ruling of the Supreme Court which stated, “the 2nd 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 “the 2nd Amendment right is fully applicable to the States.” Even more astonishing are the opinions written by Justice Samuel Alito in the ruling.
Justice Alito wrote:
“The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense” and “if the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming people than about keeping them safe."
This was the first time the Supreme Court shed light on how the 2nd Amendment should be interpreted in modern times. Even thought the term, “bearable arms” may seem like a broad one, and one that could be scrutinized, it does not take away from the fact that this term, in a way, almost gave the 2nd Amendment a whole new meaning.
Our forefathers were great men and were wise in how they wrote the Constitution and the Bill of Rights. Down to the punctuation, they chose the perfect wording to be able to afford and maintain the rights of American citizens throughout time. They could not predict a future that would challenge their words, but they knew that if their words were genuinely written for the common good of all free men, that those words would always prevail.
As I stated before, the test of time and certain events have certainly challenged our Constitution and Bill of Rights but at the end of the day, it was the like-mindedness of people just like our Forefathers who stood in small numbers to protect and uphold the rights of millions. It was their courage and perseverance that made it possible for the rest of us to maintain those rights.
During these times, more than ever before, we the people need to stand together and let our voices be heard. We will not let the negative and illegal actions of a few dictate the rulings of states laws over millions. However, if we do not come together and unite our voice then it will be as though we surrendered our rights. If you sit by and do nothing but complain, it will be as if you concurred with the rulings of these state courts.
Whether or not the states want to disarm Americans, we must never let them forget that the 2nd Amendment is not a privilege, but a God-given Constitutional right. If not, then the anti-gun rhetoric will gain momentum and questions like, ‘why do Americans still need to bear arms’ and statements like, ‘this weapon should not be protected by the 2nd Amendment, will become the norm. And before you know it, you will be wondering how could have we let this happen.
If these rights were designed to be easily changed then our Forefathers would have named it the Bill of Conditional Rights or the Bill of Circumstantial Rights. However, they wrote the Bill of Rights and I, for one will always do my part to protect the 2nd Amendment and protect the rights that generations of our people before us worked so hard to maintain. Yes, these rights “shall not be infringed”.
Written by Kawa Mawlayee
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