Over the next couple of weeks, I will be posting my research on the Second Amendment in several parts. Click here for part 1.
II. Interpreting the constitution
The United States Constitution has been a subject of discussion since it’s creation. Almost every court case involves some kind of debate about the meaning of the constitution. Whether it’s Plain Meaning, Mischief, or Golden rule used for interpretation, there is always an opposing inference. So how should we interpret the language in the Second Amendment?
The Second Amendment is used as an excuse to sell, buy, and trade guns without much control from the government, and people often say that the Second Amendment guarantees the right to keep arms to the same extent as the First Amendment guarantees freedom of speech. But the language used in the Second Amendment is not as definite as in the First Amendment. The Second Amendment contains a limiting expression “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” (emphasis added). In contrast, the First Amendment has no such limitations “Congress shall make no law…abridging the freedom of speech…” The difference in languages is apparent, the First Amendment has a very definite wording, guaranteeing the freedom of speech, while the Second Amendment lacks such precise language. It includes restrictions, “being necessary to the security of a free state”, “militia”, these words bring ambiguity. Thus, the Second Amendment in reality doesn’t guarantee full freedom with weapons. So then what does it really mean?
In United States v. Miller, the supreme court held that the obvious purpose of the Second Amendment was “to assure the continuation and render possible effectiveness” of the state militia, and that the Second Amendment “must be interpreted and applied with that end in view.” After this decision, both federal and state courts unanimously have held that the Second Amendment guarantees the freedom to bear arms only to persons using these weapons in service to the organized state militia. The court ruled that “in order to receive constitutional protection, a gun must have ‘a reasonable relationship to the preservation or efficiency of a well regulated militia.’”
Though associate justice of the Supreme Court , John Paul Stevens dissented to this case. He stated that the Second Amendment was adopted to protect the right of the people to keep a militia, and that there is no constitutional right for the use of arms for non military purposes, such as hunting or self defense. Stevens believes that the Second Amendment protects the right of a militia to bear arms, not the right of all citizens.
It’s a common mistake to understand militia in the Second Amendment as the current definition of it. Currently, militia is “the whole people” or general citizenry, but the original colonial militia did not include everyone. Only the able-bodied men between the ages of 18 and 45 were a part of militia. It was always a well organized, state-sponsored military force. These men also had their requirements, “by law to muster for training several days a year and to supply their own equipment for militia use, including guns and horses.” For a militia to be regulated, it has to be an organized military force subject to state governmental control. So then the Second Amendment in reality guarantees the collective rights, not an individual right to bear arms.
It’s important to understand and discuss the language, context, and history of the Constitution. These three “ingredients” create a completely different understanding when combined together. Instead of looking at the Second Amendment from a 2016 perspective, we have to look at it in the time it was written. Technology and people have changed, and the use of the Second Amendment has to change with it.
1. Second Amendment.” LII / Legal Information Institute. N.p., n.d. Web. 14 Oct. 2016.
2. DISTRICT OF COLUMBIA v. HELLER.” DISTRICT OF COLUMBIA v. HELLER. N.p., 2008. Web. 14 Oct. 2016.
3. Roleff, Tamara L. Gun Control: Opposing Viewpoints. San Diego, CA: Greenhaven, 1997. Print.
4. Course, By. “District of Columbia v Heller.” Casebriefs Comments. N.p., n.d. Web. 14 Oct. 2016.
5. Roleff, Tamara L. Gun Control: Opposing Viewpoints. San Diego, CA: Greenhaven, 1997. Print.