The Second Amendment

December 09, 1991

For a constitutional provision that is really a period piece, th Second Amendment generates a great deal of heated contemporary debate. Here is the amendment in its entirety: "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." We say it is a period piece because it was clearly written to deal with a situation that has ceased to exist. That situation was the need to provide for the national defense without having to maintain a large standing army, which the members of the First Congress and their constituents regarded as European and monarchal.

Despite the arguments so often (and often so effectively) advanced by opponents of gun control legislation and regulation, this amendment was never intended and has never been definitively interpreted to mean that individuals have a constitutional right in this area. The Second is the only amendment in the Bill of Rights that guarantees a collective rather than an individual right.

"Militia" as it was defined in 1791 meant "body of troops, soldiers collectively." States' "militias" were the loose equivalent of the national guard of modern times, except that individuals had to provide their own weapons. Rifles and equipment in state

armories today are the arms the amendment protects. Even if one rejects this interpretation, the Second Amendment still does not preclude government efforts to control or limit private arsenals of any size. As former Chief Justice Warren Burger has pointed out, "it is clear that the Framers [of the Constitution and Bill of Rights] contemplated that the use of arms could be 'well regulated.' "

Legislatures have enacted laws infringing on the right to beaarms, and federal and state courts (liberal judges and conservative judges alike) have consistently interpreted the Second Amendment to allow such laws. There are laws requiring registration of certain firearms, laws requiring a license to possess some firearms, laws imposing punitive taxes on some weapons, laws forbidding citizens to bear concealed and even concealable firearms and laws forbidding or strictly limiting citizens from parading or drilling with firearms. All without abridging the Second Amendment.

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