Understanding the Second Amendment

About a year ago, we posted an article about U.S. Senator Kay Bailey Hutchison (R-TX). Hutchison led the charge in the U.S. Congress to get members of both houses to support the Second Amendment. She, and 54 other Senators, along with 250 U. S. Representatives and Vice President Dick Cheney signed on to one of the many amici filed in support of the Heller position in the landmark D.C. vs. Heller case.

I recently happened to look at the amicus prepared on behalf of Hutchison and the Members of Congress by Constitutional Expert and Attorney Stephen P. Halbrook. Halbrook’s amicus recalls that the Congress has a long history of protecting the right of the people to keep and bear arms. Like the rest of the Bill of Rights, the Second Amendment was proposed to the States by the Congress in 1789. On several occasions, in different epochs of American history, the Congress enacted statutory texts which explicitly declared its understanding of the Second Amendment as guaranteeing fundamental, individual rights.

The Second Amendment text is as follows:

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.

That’s good – the Founders boiled it down to specific, unambiguous language. In it, there are five key nouns – ‘militia,’ ‘state,’ ‘right,’ ‘people‘ and ‘arms.’ There are two key verbs – ‘keep‘ and ‘bear.’ Keep these keywords in mind as you continue to read.

The phrase “the right of the people” also appears in the First Amendment – “Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The Fourth Amendment guarantees: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”

Opponents of Second Amendment rights want you to think that this identical wording means something different in the First and Fourth Amendments. You can’t have it one way with freedom of dissent and freedom from search and seizure, and a completely different meaning when it comes to the ‘right of the people‘ to keep and bear arms.

The constitutional text distinguishes between “the people,” “the militia,” and the “States.” The Second Amendment refers to “a well regulated militia,” but the right to keep and bear arms is guaranteed to “the people.”

That’s quite clear: militia does not equal people. The ability of the militia to provide security on behalf of the state depends on the right of the people to own and bear arms. The ability of individuals to provide for their own security, likewise, depends on this right.

The Second Amendment refers to the right to “keep” arms (such as at home) as well as to “bear” arms (meaning to carry them). Protected arms include commonly-kept firearms that one can keep and carry for lawful purposes, such as ordinary rifles, handguns, and shotguns, and not crew-served or heavy weapons.

Despite laws to the contrary, every law-abiding citizen who has reached majority should have the right to own and carry his/her gun at all times.

And now, the meaning of “state” . . .

The Amendment declares a well regulated militia to be necessary to the security of a “free State,” which means a free country, and is not restricted to a State government.

Halbrook, in the Congressional Amicus for Heller, decomposes the language of the Second Amendment into its component parts to reveal the true meaning of the Founders. If you read the Complete Brief (PDF) prepared by Halbrook, you can discover some of the history about how the Second Amendment evolved into its present form.

Don’t forget to check out Stephen Halbrook’s Second Amendment Book Bomb.