The second Amendment and the Right to Bear Arms

2nd 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.

United States v. Cruikshank (1876)(not important)

KKK deprives Blacks the right to assembly & bear arms (i.e., protection dependent on state police powers; right to bear arms not granted by the Constitution)

Presser v. Illinois (1886)(not important)

States may strictly regulate private military groups (i.e., 2nd Amendment is NOT incorporated)

Right to Arms (or, operative) clause:

-"...the right of the people to keep and bear Arms, shall not be infringed"- -"Bear to arms" is a military phrase -However, "people" implies individuals -How to define the word "Arms?" What Counts?

The militia (or, perforator) clause

-"A well regulated Militia, being necessary to the security of a free state..."- -At the founding, they were composed of all people -Standing armies were distrusted -- e.g., tool of oppression -"Well-regulated" might imply rules over the militia

McDonald v. Chicago (2010)

-Court's decision in Heller formally recognized a 2nd amendment right to own a handgun for self-defense -But, Heller also stopped short of incorporating the right to apply to the states and local governments -Chicago handgun law in this case was similar to D.C's law -Prohibition on possessing guns without registration; virtually impossible to obtain a license for registration -Principal issue is whether the central holding in Heller applies to state and local governments -Following the court's decision in Heller, does Chicago's gun law violate the 2nd amendment. Alternatively, may a state prohibit possession of handguns given the Second Amendment right to keep and bear arms (from Heller) -Yes -- Chicago's gun law does violate the 2nd amendment, by a 5-to-4 vote Primary reasoning: -The right to keep and bear arms is a fundamental right -Majority agreement over basic incorporation with 14th amendment, but disagreement over the specific clause of incorporation -Due Process Clause (the plurality view) vs. Privileges and Immunities Clause (Thomas's view) -The right is not unlimited & reasonable regulations can be instituted by the states -Alito's majority opinion Notes: Reaffirms Heller, 14th amendment also stated that its important and a fundamental right -Stevens dissenting opinion notes: Basically seeing the same dispute 2 years later -Breyer's dissenting opinion notes: similar points in Heller, justification to try to limit crimes using weapons

District Of Columbia v. Heller (2008)

-In 1926, D.C. passed the most restrictive gun control ordinance in the United States: -It essentially banned the private possession of handguns -- i.e. it was illegal to have an unregistered gun, and registration was prohibited without a short-term license granted by the police chief -Heller (a D.C. police officer) applied for a permit to keep a gun at home (for self-defense), but was denied -Heller then sued the city, claiming the law violated the 2nd amendment's right to bear arm -- -Does banning handguns & the carrying of a pistol with a license violate the 2nd amendment? -Yes, by a 5-to-4 vote -Primary reasoning: -In general, the Second Amendment right is presumed to be exercised individually and belongs to all Americans (with certain regulatory exceptions), however court majority presumes it to be an individual right -"Arms" were, and are, defined as weapons for use in a non-military capacity and "bear" means to keep, or to carry. The idiomatic meaning of "bear arms" in the dissent is wrong and would be grammatically "grotesque" ("Arms" doesn't have to be military weapons) -The relationship between the prefatory clause and the operative clause suggests that it is individuals who have the right to carry guns with them for defensive purposes. (places weight on operative clause) -The court majority recognized that Miller allows the government to limit the use of "dangerous and unusual weapons" Scalia's Majority reasoning notes: Placing emphasis on operative clause that defines the word people as individual people and that's the most important part. The type of weapon was discussed in Millers casse not the broad perspective. Stevens Dissenting notes: different historical perspectives of the amendment Breyer's dissent: weighing idea of how much of a problem are guns to our society, violence is a problem and the law is local in scope

United States v. Miller (1939)(Complex)

-Miller (& Layton) charged with transporting (in interstate commerce) an unregistered shotgun having a barrel of less than 18-inches in length The indictment charged him with violating the National Firearms Act of 1934 which, among other things, required gun registration for such firearms -Does the National Firearms Act violate the Second Amendment of the Constitution? -No, by a 8-0 vote -Congress can require gun registration (i.e sawed-off shotgun, in this case) if carried across state lines -No relationship to a well-regulated militia -- i.e, 2nd amendment offers no protection -James Clark McReynolds majority opinion Notes: If the second amendment prominently discusses the militia point (more important) then the man taking the gun across doesn't apply. Military centric understanding of the amendment. No individual right extended here.

Original Intent

-Protect people from many things-- i.e., state security -To give state militias the ability to defend citizens against an oppressive central authority? -Another example of preserving (some) state autonomy in the constitution

Two common Approaches to Interpreting the Second Amendment

-The "collective" approach -- a military-centric view and preserving state-order/safety -The "individual" approach -- a personal right, or liberty

Aftermath of Heller v. McDonald

-The court has erected a constitutional right to bear arms, but it is a rather limited one (Limited in the sense that no one can tell you you can't own a handgun for self defense if you are a law abiding citizen) -Handguns for self-defense possessed in your home -Some potential regulatory measures that are likely to pass constitutional muster: a.) Background checks and waiting periods b.)Prohibition felons and the mentally ill from acquiring guns c.)Registration and permit requirements d.)Prohibiting ownership of assault weapons -- e.g. automatic weapons e.)Restrictions on public possession, especially concealed carry f.)Restrictions for sensitive places -- e.g. schools and government buildings g.)Qualifications to sell commercially h.)Although, the court has yet to further define the boundaries i.)Elected officials and the political process are central to future gun regulations -- to the extent that there is sufficient will to do so

Study guide syllabus for chapter

1. Background history of the 2nd amendment -original intent 2. different views of the amendment -Preparatory v. operative -collective v individual 3.Court cases dealing with the 2nd amendment -U.S v miller -District of Columbia v. Heller -McDonald v. Chicago

United States v. Miller (1939)(overview)

National Firearms Act does not violate the Second Amendment