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Health & Fitness

What Does the Second Amendment Protect?

The Second Amendment to the Constitution of the United States was adopted in 1791 and states, in full:

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.

These 27 words are poorly understood by many people on both sides of the debate regarding the effect of the Second Amendment. Fortunately, in 2008 the United States Supreme Court considered the Second Amendment and clarified some of the disputed issues in a decision called District of Columbia v. Heller (“Heller”).

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In Heller, the Supreme Court broke the Second Amendment into two parts, the prefatory clause (“A well regulated Militia, being necessary to the security of a free State”) and the operative clause (“the right of the people to keep and bear Arms, shall not be infringed”). The Court stated that the prefatory clause established the purpose behind the Amendment. In other words, why the United States adopted the Second Amendment. As the Court recognized, the purpose of the Second Amendment is obvious – to protect the security of the free United States. The Court noted that the security of a free state refers to outside invasion as well as tyranny from within.

Although the Court recognized the purpose of the Amendment, it noted that the prefatory clause does not grammatically limit the effect of the operative clause. The Court explained that this is not unusual, because the “remedy often extends beyond the particular act or mischief” which prompted the law. Accordingly, the effect of the Second Amendment is almost entirely determined by the operative clause.

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The operative clause begins by noting that the right (to keep and bear arms) belongs to the people. The phrase “the people” is used several times in the Constitution in connection with rights and is always interpreted as referring to individual rights. Therefore, the rights protected by the Second Amendment are the rights of individuals and not the rights of states or of militias. Although the phrase “the people” refers to individuals, the Court noted that long-standing prohibitions on possession by the mentally ill and by felons were valid.

The Court then explored the meaning of the term “Arms” as it was understood in 1781. The Court concluded that the term “Arms” refers “to all instruments that constitute bearable arms[.]” The Court further noted that just as the First Amendment's protection of free speech extends to the Internet (which didn't exist at the founding), so to does the Second Amendment protect bearable arms that were not in existence at the founding. In other words, the Second Amendment is not limited to muskets, swords, and chain mail. However, the Court did state that the Amendment did not extend to all bearable arms, but only to arms in common use at the time a law is challenged.

Finally, the Court considered the phrase “to keep and bear” and concluded that this phrase refers to two separate rights. The right to keep, or own, arms and the right to bear, or carry, arms. Furthermore, the Court found that the phrase to bear arms was used prior to 1781 to the right to carry weapon's for a person's defense in case of confrontation.

Putting all the elements together, the Court held that the Second Amendment's text “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” The Court noted that this meaning was fully consistent with the right to keep and bear arms that existed before the Constitution was adopted. In other words, the right to keep and bear arms existed before the Constitution and the Second Amendment protects a pre-existing right.

Having interpreted the Second Amendment, the Court resolved the very narrow issue disputed in Heller, and held that the District of Columbia's laws prohibiting the possession of handguns in a person's house and requiring that all firearms present in a home be rendered non-functional were unconstitutional. While many issues have not been resolved by the Supreme Court, the Heller decision resolves several issues, including: (1) the Second Amendment does not protect the right to keep or bear heavy weapons (e.g., missiles, tanks, nuclear devices); (2) the Second Amendment protects the right of individuals who are not members of a militia to keep and bear arms; (3) the Second Amendment applies to modern arms that are in common usage; and (4) states can prohibit mentally ill people and felons from owning firearms.


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