The Truth About 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."

The Second Amendment is perhaps the most misunderstood of all provisions of the U.S. Constitution. Criminal defendants and the gun lobby have repeatedly claimed that reasonable gun laws must be struck down as a violation of Second Amendment rights. Yet the U.S. Supreme Court and an overwhelming majority of federal appellate courts have held that the Second Amendment protects only a right to keep and bear arms in furtherance of a well-regulated militia.

Since our country was founded, there have been laws regulating the purchase, possession, and carrying of firearms. In the two hundred years that followed ratification of the Second Amendment, no gun law had ever been struck down based on the Second Amendment. In colonial times, for example, some states restricted gun ownership to those swearing an oath of allegiance to the state while others restricted the possession of gunpowder.¹ In the 1800's, states strictly regulated gun sales and possession, with many enacting legislation broadly prohibiting the carrying of concealed firearms.² Courts uniformly upheld these laws against Second Amendment challenges.³

In 1939, the U.S. Supreme Court decided the pivotal case of United States v. Miller, rejecting any individual right to possess firearms for purposes unrelated to the "well regulated Militia" of the States. The Court held that the "obvious purpose" of the Second Amendment was "to assure the continuation and render possible the effectiveness of" state militias, and the Second Amendment "must be interpreted and applied with that end in view."⁴ Following that ruling, the federal appeals courts overwhelmingly rejected challenges to gun laws.⁵

Criminal defendants and the gun lobby continued their search for activist judges who would overturn gun laws and ignore binding Supreme Court precedent. In October 2001, two judges in the Fifth Circuit Court of Appeals case of United States v. Emerson suggested, in what the third judge on the panel described as non-binding dicta, that the Constitution guarantees the right of an individual to possess firearms for purposes unrelated to militia service. The court nonetheless upheld a federal law prohibiting domestic violence abusers from possessing firearms and reinstated the defendant's indictment for violating that law. The Supreme Court denied review.

In March 2007, more than two hundred years after the Second Amendment was ratified and with the federal courts unanimously rejecting every challenge ever brought to gun laws based on the Second Amendment, the D.C. Circuit Court of Appeals issued its ruling in Parker v. District of Columbia. In that 2-1 ruling, two judges struck down a District of Columbia law restricting handgun possession that had been on the books for more than 30 years. In doing so, the activist judges wrongly ruled based on their personal view rather the binding precedent of the Supreme Court and our Nation's long history of upholding gun regulations. On November 20, 2007, the U.S. Supreme Court accepted review of this anomolous ruling.  A decision is expected by the end of June 2008.

• Click here for cases discussing the Second Amendment, including a discussion of Emerson and Parker.

The myth that the Second Amendment provides a right to own guns separate from a well-regulated militia has been fostered, in large part, by a campaign of misinformation supported by those opposed to common sense gun laws. As former Chief Justice Warren Burger said, "[The Second Amendment] has been the subject of one of the greatest pieces of fraud, repeat the word 'fraud,' on the American public by special interest groups that I have ever seen in my lifetime."

The Legal Action Project of the Brady Center to Prevent Gun Violence has dedicated itself to dispelling the myth surrounding the Second Amendment. Through on-going articles on the issue, public education campaigns, and support of gun laws as amicus curiae, or "friends of the court," we work to educate the public on the true meaning of the Second Amendment.

• Click here to read articles on the Second Amendment written by LAP attorneys.
• Click here to an address entitled The Second Amendment: Then and Now, by Legal Action Project Director Dennis Henigan, delivered at James Madison University on March 14, 2002.
• Click here to read the Brady Center's challenge to former Attorney General John Ashcroft, charging him with ethics violations undercutting the U.S. position in Second Amendment cases.
• Click here to review briefs filed in the Second Amendment case United States v. Emerson in support of the true meaning of the Second Amendment.
• Click here to read transcripts from a Second Amendment symposium featuring renowned historians and experts on the Second Amendment.

References

1. Saul Cornell, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham Law Review 487, 506-516 (Nov. 2004).
2. Id.
3. See, e.g., English v. State, 35 Tex. 473 (Tex. 1871) (Texas Supreme Court upheld restriction on the carrying of concealed pistols and other weapons, because the Second Amendment's "right to 'bear' arms refers merely to the military way of using them," and so "[t]here is no abridgement of the personal rights, such as may be regarded as inherent and inalienable to man, nor do we think [the defendant's] political rights are in the least infringed by any part of this law"); City of Salina v. Blaksley, 83 P. 619, 620 (Kan. 1905) (Kansas Supreme Court upheld prohibition on the carrying of a pistol while intoxicated, stating that the Second Amendment "applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law").
4. United States v. Miller, 307 U.S. 174, 178 (1939).
5. See Silveira v. Lockyer, 312 F.3d 1052, 1066 ("The amendment protects the people's right to maintain an effective state militia, and does not establish an individual right to own or possess firearms for personal or other use."); Gillespie v. City of Indianapolis, 185 F.3d 693, 711 (7th Cir. 1999) ("Because Gillespie has no reasonable prospect of being able to demonstrate . . . a nexus between the firearms disability imposed by the statute and the operation of state militias, [the district court judge] was right to dismiss his Second Amendment claim."); United States v. Wright, 117 F.3d 1265, 1273 (11th Cir. 1997) ("[T]he Miller Court understood the Second Amendment to protect only the possession or use of weapons that is reasonably related to a militia actively maintained and trained by the states."); United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996) ("[T]he Miller Court assigned no special importance to the character of the weapon itself, but instead demanded a reasonable relationship between its 'possession or use' and militia-related activity."(quoting Miller, 307 U.S. at 178)); Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995) ("The courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms which must bear a 'reasonable relationship to the preservation or efficiency of a well-regulated militia.'" (quoting Miller, 307 U.S. at 178)); United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992) ("Whether the 'right to bear arms' for militia purposes is 'individual' or 'collective' in nature is irrelevant where, as here, the individual's possession of arms is not related to the preservation or efficiency of a militia."); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977) ("The purpose of the second amendment as stated by the Supreme Court in United States v. Miller . . . was to preserve the effectiveness and assure the continuation of the state militia."); United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976) ("[T]he Second Amendment right 'to keep and bear Arms' applies only to the right of the State to maintain a militia and not to the individual's right to bear arms…." (internal quotation omitted)); Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942) ("[T]here is no evidence that the appellant was or ever had been a member of any military organization or that his use of the weapon under the circumstances disclosed was in preparation for a military career.").