{"id":30898,"date":"2022-07-21T08:46:39","date_gmt":"2022-07-21T13:46:39","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/constitution\/amendment2.html"},"modified":"2022-07-21T08:46:39","modified_gmt":"2022-07-21T13:46:39","slug":"amendment2","status":"publish","type":"constitution","link":"https:\/\/constitution.findlaw.com\/amendment2.html","title":{"rendered":"The Second Amendment Right to Bear Arms"},"content":{"rendered":"\n
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The Second Amendment Right to Keep and Bear Arms<\/h1>\n
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\n By Samuel Strom, J.D.<\/a> | Legally reviewed by Edward Maggio, Esq.<\/a>\n | Last reviewed\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n

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The Second Amendment prevents the government from infringing on one’s right to keep and bear arms. The Amendment has led to intense debates about whether the right applies to everyone or just those involved with a state militia and what types of gun control regulations the government may impose.<\/p>\n\n <\/div>\n\n

The Second Amendment comprises just a single sentence that allows for considerable interpretation. Enacted in 1789 alongside nine other amendments collectively known as the Bill of Rights, it prohibits the government from infringing upon a "well-regulated Militia."<\/p>\r\n

The Second Amendment is a contentious topic. Some people believe it provides people with an absolute right to own weapons. Others argue that its text limits the right to bear arms to purposes related to serving in a state militia.<\/p>\r\n

The Supreme Court issued very few groundbreaking opinions on the topic until 2008. Then, it found that the Second Amendment does, in fact, protect an individual’s right to bear arms.<\/p>\r\n

Subsequent developments have answered the limits of government regulation regarding gun ownership. However, other questions, such as precisely who can possess guns, remain unanswered. <\/p>\r\n

This article answers frequently asked questions about the Second Amendment. It also provides historical background and discusses how the Supreme Court has interpreted it.<\/p>\r\n

What the Second Amendment Says<\/b><\/h2>\r\n

The Second Amendment to the U.S. Constitution<\/a> states:<\/p>\r\n

"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."<\/i><\/p>\r\n

Frequently Asked Questions<\/b><\/h2>\r\n

What was the original intent of the Second Amendment?<\/b><\/h3>\r\n

Some historians argue that the primary reason for the Second Amendment was to prevent the need for the United States to have a professional standing army. Alexander Hamilton argued this point in the Federalist Papers<\/a>.<\/p>\r\n

Others say the fear of a standing army<\/a> is the reason for the Second Amendment protections. That is, they say the citizens’ right to bear arms served as a necessary check in case of a tyrannical government.<\/p>\r\n

However, scholars seem to agree that concerns over military power and state militias have largely fallen by the wayside<\/a>. Today, preserving gun rights and firearm possession is more important for the purposes of self-defense. It also allows for recreational gun use, such as hunting and target shooting.<\/p>\r\n

This article explores these ideas in the "History of the Second Amendment" section below.<\/p>\r\n

What does the "right to bear arms" really mean?<\/b><\/h3>\r\n

In District of Columbia v. Heller<\/i><\/a> (2008), the Supreme Court analyzed the meaning of "keep and bear arms."<\/p>\r\n

Justice Antonin Scalia<\/a>, writing for the majority, began by looking at the meaning of "arms" in the 1700s. He noted that a 1773 dictionary defined them as "weapons of offence, or armour of defence." A 1771 legal dictionary defined them as "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another."<\/p>\r\n

Justice Scalia wrote that "arms" refers to "weapons that were not specifically designed for military use and were not employed in a military capacity."<\/p>\r\n

In the Court’s opinion, the Second Amendment extends to "all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."<\/p>\r\n

Regarding the phrase "keep arms," the Court analyzed examples from the founding era that mentioned the phrase. Justice Scalia concluded that the right to "keep arms" is an individual right unrelated to militia service. In other words, it refers to possessing arms for everyone, not just militia members.<\/p>\r\n

The Court then analyzed the term "bear." The Court wrote that, in the 1700s, "bear" meant "carry." However, when one combines "bear" with "arms," the meaning changes to one indicating a right to carry arms "for a particular purpose \u2014 confrontation."<\/p>\r\n

The Court also noted that nine state constitutions at the time provided rights to their citizens to "bear arms in defense of themselves and the state," or "bear arms in defense of himself and the state."<\/p>\r\n

In summary, the right to bear arms generally refers to a person’s right to possess weapons. A person does not need to join a militia to receive the Second Amendment’s guarantees to keep and bear arms. Instead, it guarantees that people have a right to "possess and carry weapons in case of confrontation."<\/p>\r\n

History of the Second Amendment<\/b><\/h2>\r\n

The Second Amendment has roots in English history. Scholars and Supreme Court Justices have opined on the right to keep and bear arms, noting how English subjects and the American colonists understood it to be a fundamental right.<\/p>\r\n

This section describes the historical background of the Second Amendment. It first discusses the history of the individual right to bear arms against a tyrannical government. Then, it discusses how the Second Amendment codified what the citizens believed was a preexisting right.<\/p>\r\n

Weapon Possession as a Fundamental Right<\/b><\/h3>\r\n

As far back as the 1600s, English kings took advantage of and suppressed their subjects by disarming them. Although uprisings against the kings guaranteed them some rights to keep and bear arms, American colonists also had a healthy fear of a monarchy disarming them.<\/p>\r\n

In the late 1600s, King James II suppressed political opposition from Protestants by using "select militias" to disarm them. They revolted and ultimately displaced him in 1688.<\/p>\r\n

James II’s successors, William and Mary, assured their subjects that they would never disarm them. In 1689, they codified this assurance as the English Bill of Rights<\/a>. In doing so, Englishmen had a fundamental right to firearm possession, preexisting the American Revolution by over 100 years.<\/p>\r\n

English law scholars also recognized the individual right to possess weapons. William Blackstone<\/a>, the preeminent authority on English law, wrote that the right to arms provision of the Bill of Rights was a fundamental right of all Englishmen.<\/p>\r\n

In District of Columbia v. Heller<\/i><\/a> <\/i>(2008), Justice Scalia wrote that Blackstone’s descriptions of the right as a "natural right of resistance and self-preservation" tied the right to individual possession instead of service in a militia or the military. He wrote further that Englishmen understood the right as a way to protect against "both public and private violence."<\/p>\r\n

In the 1760s and 1770s, King George III tried the same strategy James II had tried a century earlier by disarming rebellious American colonists<\/a>. The American colonists argued the English Bill of Rights prevented King George III from doing so. The colonists understood that their "right to self-preservation" permitted them to "repe[l] force by force" when society would not or could not.<\/p>\r\n

Militias and Securing a Free State<\/b><\/h3>\r\n

The Second Amendment is unique because it is the only amendment in the Bill of Rights that includes a mission statement. The amendment aims to ensure the efficiency of a well-regulated militia because it is "necessary to the security of a free State." It does so by ensuring the government does not infringe on the people’s rights to keep and bear arms.<\/p>\r\n

In United States v. Verdugo-Urquidez<\/i><\/a> (1990), the Supreme Court referred to "the people" as "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." <\/p>\r\n

United States v. Miller<\/i><\/a> <\/i>(1939) defined a militia as "all males physically capable of acting in concert for the common defense."<\/p>\r\n

As Justice Scalia pointed out in Heller<\/i>, a militia is, therefore, a "subset of ‘the people.’" This, he argued, creates a strong presumption that the Second Amendment right is an individual one that belongs to all Americans rather than a right only for those who serve in a militia.<\/p>\r\n

He also noted the following justifications for the importance of a militia with regard to national security:<\/p>\r\n