When the Framers of the Constitution sent their handiwork out to the states for ratification in 1787, opponents denounced it. The new system of government, they argued, threatened to take away power from the states and the people and give it to the federal government. Many of these Anti-Federalists, as they were called, agreed to support ratification, though, in return for a promise that the new Congress would quickly add amendments protecting the people’s rights. James Madison took the lead, and the First Congress proposed twelve amendments. In 1791, ten of them, now known as the Bill of Rights, were approved. One of these, the Second Amendment, reads, “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.”
This statement is complicated for several reasons. One reason is its odd syntax. Does it mean that every person has the right to keep and bear arms? Or do only militias have that right? Then, there’s the issue of vocabulary. What is—or, was—a militia, anyway? Today, we tend to think of militias as a fighting force that is organized by the state, such as the National Guard. In the eighteenth century, militias consisted of private citizens, like yeomen farmers who gathered together to fight for a particular cause. People debate which kind of militia the Second Amendment applies to.
Like most of the rest of the Bill of Rights, this amendment was basically ignored for many decades. However, in 2008, it—along with its meaning—became the basis for a decision, District of Columbia v. Heller, by the US Supreme Court.
Dick Anthony Heller, a police officer in the District of Columbia, carried a gun at work, of course, but he was not allowed to have one at home because of a DC law. This limitation worried him because he lived in a neighborhood that he described as “a drug haven.” So, along with five other plaintiffs, he sued the District in 2003, challenging the constitutionality of the local law. The case wound its way to the Supreme Court, where in 2008 a bare majority of five justices ruled that individual citizens have a constitutional right to “keep and bear” handguns in their homes, to be used for “self-defense.” No militia necessary.
The Heller case settled this particular issue but launched debates both throughout the country and in the Court itself over how far the Second Amendment goes to guarantee gun rights. Many people, including some judges, oppose the decision because they believe the Second Amendment protects only “well-regulated militias” under the control of state governments. Others, also including some judges, agree with the decision, arguing that “the people” includes all law-abiding citizens. Therefore, the supporters of Heller say, people’s right to keep and bear a broad variety of arms “shall not be infringed” unless the government has a very good reason for doing so.
As you can see, the Supreme Court’s decision in this case is very controversial. And much of the debate revolves on whether the Amendment focuses on “militias” or on “the people.” If people have the right to wield weapons, can they own and carry all sorts of guns around with them wherever they go? If so, should the weapons be carried in plain sight or can they be hidden? The decision isn’t clear about these issues or many others.
These debates have become especially fraught and heart-wrenching after mass shootings, such as the one in May 2022, at Ross Elementary School in Uvalde, Texas. A teenager there bought an automatic rifle on his eighteenth birthday, the very first day he could legally do so in Texas, and immediately used it to kill nineteen young children and two teachers.
Many people appalled by his horrendous act focused first on his age. Federal law prohibits anyone under the age of twenty-one from buying a handgun, but the law does not address automatic rifles. Federal laws set age limits for other activities as well. You can’t purchase alcohol until you’re twenty-one, but you can vote when you’re eighteen. That’s also the age when you can join the military—and be trained to carry and use firearms of many kinds. Such inconsistencies raise multiple questions.
- Should there be a minimum age for purchasing weapons? If so, what age?
- Should there be different guidelines for different kinds of weapons?
- Should there be a requirement—at any age—to take a course on how to store and use them safely?
Regardless of age, of course, many people object to the availability of automatic weapons altogether
The Supreme Court’s decision in the Heller case emphasized the right of individuals to own weapons for self-defense in case they’re attacked by an assailant, even though the Second Amendment says nothing about that. The decision does not make it clear whether self-defense also includes the right of people to possess weapons to rise up against a tyrannical government, as the colonists did in 1776.
The US Constitution is unusual, though not unique, in including the guarantee to keep or bear arms. Mexico, Guatemala, and Haiti give citizens this right too. The United States is also unusual in the number of gun-related deaths and injuries, including mass murders, that occur every year. Some people argue that these are risks that must be accepted to uphold a valuable constitutional right. Others believe that the repercussions are simply too great, and that the Constitution should not contain a section dedicated to guns. It is highly unlikely that the Second Amendment will be repealed. Even if it were, the situation probably would not change dramatically because many state constitutions also protect gun ownership.
What is your view? Is it a fault line or a strength that the Constitution enshrines owning guns?