(Professor/Instructor)
The Second Amendment and its interpretation have stirred considerable debates in American legal circles. At the center of the legal “storm” is the correct understanding of the scope of the amendment in guaranteeing the right of the people to “bear arms.” One side of the political aisle on the issue believes that the clause “the right of the people to bear arms” engenders a unique constitutional liberty for American citizens. In the premise of the “individual right” postulate, the fundamental law of the United States bars lawmaking bodies from banning people to possess firearms.
On the other side of the aisle, there is the “collective rights theory,” there are analysts that point to the introductory language of the Second, particularly the clause “well-regulated militia” to argue that the intention of the Framers was to bar Congress from giving away a state’s right to defend itself by way of intervening legislation. In this context, the theory argues that the Constitution does not accord a right for citizens to possess firearms and that legislative bodies, either local, state, or Federal, lawmaking entities have the mandate to regulate gun ownership sans the implication of a right that was accorded in the Constitution (Cornell University Law School 1).
The “proper” interpretation of the Second Amendment in the context of the “possession” debate is dependent on the party asked to define it. If one were to ask groups such as the National Rifle Association, these will maintain their position that the Second Amendment does ensure the right of the person not only to possess guns, but also be able to possess a wide array of firearms as well. Gun control activists state that the provision is to only allow the states to organize and operate militia forces. For seven decades, the US Supreme Court avoided tackling the issue in the wake of the vaguely worded decision in U.S. v. Miller (1939). However, the High Court ultimately set the parameters to the issue in its resolution of the 2008 case of District of Columbia v. Heller (University of Missouri-Kansas City 1).
Preceding Heller, the court system had not yet categorically stated what right the Second Amendment safeguarded. However, with the 2008 Heller decision, the High Bench had now set the bar in that the Second Amendment does protect the right of the individual to possession outside of service in the militia forces, and to be able to use a gun for self-defense within one’s residence. In addition, the High Court deemed that the prohibition encompassed not only the agencies of the Federal government, but also to state and municipal governments as well.
In the reasoning of the Court, the introductory provision declared the objective of the amendment; however, the clause did not encumber or restrict or widen the operative provision of the amendment. Furthermore, the history of the introductory clause conformed to the High Court’s own comprehension of the Second, as the introductory provision originated from the Anti-Federalists position that the national government would confiscate all firearms to enfeeble citizen militia forces, allowing for a politicized army or a favored militia force to take control. Lastly, the Court differentiated Heller from Miller; in the latter, the Court affirmed a law that mandates registering “sawed-off shotguns” under the National Firearms Act. The Court mentioned that Miller limited the type of firearms that were cited under the ambit of the Second Amendment (Find Law 1).
Works Cited
Cornell University Law School-Legal Information Institute. “Second Amendment.” <http://www.law.cornell.edu/wex/second_amendment
Find Law. “Second Amendment-U.S. Constitution.” <http://constitution.findlaw.com/amendment2.html
