• What does the Second Amendment say about guns?

    Date: 03.07.11 | by Judge Tom.

    Here is the exact language of the Second Amendment word for word:

    “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.” (1791)

    The first ten amendments to the U. S. Constitution are known as the Bill of Rights. You’ve read about the First Amendment (freedom of speech, religion, etc.) on this site many times.

    But what do you know about the Second Amendment? Passed in 1791, it has been the subject of debate for over 200 years. The argument has been over it’s exact meaning: whether it applies to just militias or to individuals.

    War and Peace

    Photo by Jayel Aheram

    In 2008, the U. S. Supreme Court ruled on the issue. In District of Columbia v. Heller,* the court struck down a handgun ban in Washington, D. C. Stating that the Second Amendment applies to both militias and individuals, the ruling established one’s right to keep a handgun at home for self-defense.

    Then in 2010, the Court ruled that Chicago’s ban on handguns violated the Second Amendment.** This decision applied the Heller ruling to the states. (Heller only applied to Washington, D.C.).

    This doesn’t mean that there are no limits on gun sales or who may possess a weapon. Justice Antonin Scalia commented in Heller that some restrictions might pass Second Amendment muster, including “the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

    Federal Gun Laws

    Under Federal law, there is no waiting period for gun purchases. Although background checks are in place, they don’t apply to all purchases at gun shows. Under the Brady Act, licensed firearms dealers are required to check the buyer’s background with the FBI’s National Instant Criminal Background Check System (NICS) before transferring any firearm. Non-licensees aren’t required to conduct the NICS check and make up a percent of sales at gun shows. Some states have stricter laws than what the federal laws require. A few states, for example, always require a background check and a waiting period for the purchase of certain firearms. Most states follow the federal guidelines.

    For more about gun laws and a helpful U.S. map, see:

    Upfront Magazine 2/21/2011

    *District of Columbia v. Heller,  554 U.S. 570, 128 S.Ct.2783 (2008)

    **McDonald v. Chicago, 130 S.Ct. 3020 (2010)

    Judge Tom

    This post was written by Judge Tom. Judge Tom is the founder and moderator of AsktheJudge.info. He is a retired juvenile judge and spent 23 years on the bench. He has written several books for lawyers and judges as well as teens and parents including the recently published 'Teen Cyberbullying Investigated' (Free Spirit Publishing). When he's not answering teens' questions, Judge Tom can be found hiking, traveling and reading.

    Leave a Reply

    Your email address will not be published. Required fields are marked *

    You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>


    16 Comments subscribe to these comments.

    • Bruce V
      Tue, 08 Mar 2011 at 11:06

      You are TOTALLY INCORRECT when you write:”Although background checks are in place, they don’t apply to purchases at gun shows.”

      The ONLY transactions that do not require a background check are those that take place between individuals involved in a PRIVATE SALE. MOST vendors at gun shows are licensed dealers; licensed dealers are REQUIRED to preform a federal “instant background check” be they at their place of business or at a gun show.
      Dear Bruce: Thanks for your comment. We have clarified our post and note that up to 25% of sales at gun shows are transactions by unlicensed sellers. The loophole sought to be closed regards the nonlicensees who are allowed to sell at gun shows without having to first complete background checks.

    • Tory II
      Tue, 08 Mar 2011 at 01:50

      What does “A well regulated militia being neccessary to the security of a free state,…” mean ??

      If you the reader needs someone to tell you what that means then you are stupid.

      It means a well regulated militia is neccessary to the security of a free state. Duh. It is NOT a law either. The 2nd amendment is a law. It’s a law that prohibits govt from regulating weapons.

      The first clause of the amendment is the preamble (the militia clause). The last clause is the law (“the right of the people to keep and bear arms shall not be infringed”).

      So why the militia clause ? Why did the Framers bother to include the militia clause ? The answer to that is as simple as the law portion of the amendment: “,…the right of the people to keep and bear arms shall not be infringed.”
      Dear Tory: Thank you for your comments.

    • HerbM
      Thu, 10 Mar 2011 at 05:00

      While it is technically accurate, is misleading to say that “don’t apply to all purchases at gun shows” — this is a common of propaganda used by gun control advocates (or those who have been mislead by them.)

      More accurate and more informative is the following: Gun dealers must conduct background checks (whether at a gun show or elsewhere), while ordinary citizens are forbidden the use of the background check system.

      So, the cry to “close the [fictitious] gun show loophole” is really a call FORBIDDING CITIZEN TO CITIZEN sales.

      The Brady/NICS background check for firearm purchases (performed by dealers)is not even enforced ON CRIMINALS.

      Less than 100 criminals are prosecuted each year for Brady/NICS violations — and the vast majority of these are because the authorities needed to arrest or prosecute a criminal but can’t make the real charge stick, or as a “predicate felony” for a conspiracy or RICO charge.
      http://www.usdoj.gov/oig/reports/ATF/e0406/final.pdf
      Dear Herb: Thanks for your comment.

    • William Heino Sr.
      Fri, 18 Jan 2013 at 09:24

      Second Amendment. What I understand, the NRA does not understand.
      =
      If, as some may argue, that the Second Amendment’s “militia” meaning, is that every person has a right to keep and bear arms. The only way to describe one’s right as a private individual, is not as a “militia” but as a “person” (“The individual personality of a human being: self.”). “Person” or “persons“” is mentioned in the Constitution 49 times, to explicitly describe, clarify and mandate a Constitutional legal standing as to a “person”, his or her Constitutional rights. Whereas in the Second Amendment, reference to “person” is not to be found. Was there are reason?. The obvious question arises, why did the Framers use the noun “person/s” as liberally as they did throughout the Constitution 49 times and not apply this understanding to explicitly convey same legal standard in defining an individual’s right to bear arms as a “person”?
      Merriam Webster “militia”, “a body of citizens organized for military service : a whole body of able-bodied male citizens declared by law as being subject to call to military service.
      =

      Article 2, Section 2 “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual Service of the United States;…”
      =

      In the whole of the U.S. Constitution, “militia” is mentioned 5 times. In these references there is no mention of person or persons. One reference to “people“ in the Second Amendment. People, meaning not a person but persons, in describing a “militia”. “People” is mentioned a total 9 times.
      =

      It’s not enough to just say that “person(s)” is mentioned in the United States Constitution 49 times. But to see it for yourself, and the realization was for the concern envisioned by the Framers that every “person” be secure in these rights explicitly spelled out, referenced and understood how these rights were to be applied to that “person”.

      “..No Person shall be a Representative..”
      “..whole Number of free Persons,..”
      “..three fifths of all other Persons…”
      “..No person shall be a Senator…”
      “..And no Person shall be convicted…”
      “..no Person holding any Office…”
      “..Names of the Persons voting for…”
      “…of such Persons as any of the States…”
      “…not exceeding ten dollars for each Person…”
      “…And no Person holding any…”
      “…or Person holding an Office of Trust o…“
      “…and vote by Ballot for two persons,…”
      “…List of all the Persons voted for,…”
      “…The Person having the greatest Number of Votes…”
      “…and if no Person have a Majority,…”
      “…the Person having the greatest Number…”
      “…No person except a natural born Citizen,…”
      “…Any Person be eligible to that ….”
      “…No Person shall be convicted of …”
      “…except during the Life of the Person attainted….”.
      “…A Person charged in any State…”
      “…No Person held to Service…”
      “…The right of the people to be secure in their persons,…”
      “…and the persons or things to be seized….”
      “..No person shall be held to answer…”
      “..nor shall any person be subject for the same offense….”
      “…they shall name in their ballots the person voted for as President,…”
      “…the person voted for as Vice-President,…”
      “…all persons voted for as President,….”
      “…all persons voted for as Vice-President…”
      “…The person having the greatest Number of votes for President, …”
      “…and if no person have such majority,…”
      “..the persons having the highest numbers …”
      “… The person having the greatest number of votes…”
      “..and if no person have a majority,…”
      “…But no person constitutionally ineligible…”
      “…All persons born or naturalized …”
      “…nor shall any State deprive any person of life, liberty, or property,…”
      “…nor deny to any person within …”
      “…number of persons in each State,….”
      “…No person shall be a Senator or …”
      “..and such person shall act accordingly….”
      “…of the death of any of the persons from…”
      “…death of any of the persons from…”
      “…No person shall be elected to the office…”
      “…and no person who has held the office of President,…”
      “..to which some other person was elected…”
      “…shall not apply to any person holding the office…”
      “..prevent any person who may be holding…”
      =

      Excerpts in reading Emerson v. United States (1999), or Miller v. United States (1939), one can be struck with the many thoughts, interpretations of what the second amendment means, but more important how it came about and ended. However, even still, I am left with the thought if the Framers had treated Amendment 2 with the same obedience, and reverence to explain the 49 Constitutional references to “person”, there would be no controversy in what is perceived as a right to bear arms.
      =

      MEMORANDUM OPINION 1
      United States v Emerson
      “The American colonists exercised their right to bear arms under the English Bill of Rights. Indeed, the English government’s success in luring Englishmen to America was due in part to pledges that the immigrants and their children would continue to possess “all the rights of natural subjects, as if born and abiding in England.”
      =
      “A foundation of American political thought during the Revolutionary period was the well justified concern about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny.”
      =
      “The framers thought the personal right to bear arms to be a paramount right by which other rights could be protected. Therefore, writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included “the right to keep and bear arms” in a list of basic “human rights” which he proposed to be added to the Constitution. HALBROOK, supra at 223 n. 145 (citing James Monroe Papers, New York Public Library (Miscellaneous Papers of James Monroe)).”
      =

      307 U.S. 174 United States v. Miller
      Structural Analysis
      “Furthermore, the very inclusion of the right to keep and bear arms in the Bill of Rights shows that the framers of the Constitution considered it an individual right. “After all, the Bill of Rights is not a bill of states’ rights, but the bill of rights retained by the people.” David Harmer, Securing a Free State: Why The Second Amendment Matters, 1998 BYU L. REV. 55, 60 (1998). Of the first ten amendments to the Constitution, only the Tenth concerns itself with the rights of the states, and refers to such rights in addition to, not instead of, individual rights. Id. Thus the structure of the Second Amendment, viewed in the context of the entire Bill of Rights, evinces an intent to recognize an individual right retained by the people.”
      =

      After debating by the Framers on the proposed right to bear arms, from these few references, some credence is given to the “intent” to “to bear arms”. Analysis of structural statutory construction, “..viewed in the context of the entire Bill of Rights,..” individual citizens, a person, to “bear arms“ however proposed and debated, there is reference to “person” mentioned 49 times, is this not to be considered when looking at the context of the entire Bill Of Rights? Right to bear arms was debated and proposed, but the Second Amendment remains silent.
      =

      Jones v Smart [1785} 1 Term Rep.44,52 (per Buller, J.) “[W]e are bound to take the act of parliament, as they made it: a casus omissus can in no case be supplied by a Court of Law, for that would be to makes laws.” (Reading Law: The Interpretation of Legal Texts) Antonin Scalia/ Bryan A. Gardner .West.
      =

      What am I missing?
      Thank you for sharing your thoughts, William.

    • Tory II, Illinois
      Sun, 20 Jan 2013 at 02:46

      Every PERSON has a right to exist; if you have a right to exist (rather than be murdered and not exist), then you have a RIGHT to protect your LIFE, and if you have a right to protect your life, then you have a right to use a weapon to protect your life. Few people could adequately protect their life without the use of a weapon.

      The Framers opposed standing armies, and thus envisioned Govt formed militias as substitutes for standing armies. These militias were not exclusively the only type of militia. They knew the 2nd amendment allowed “the people” to be armed so that they could ALSO form militias to protect from tyranny and oppression.

      The Framers never viewed the people as unarmed slaves or unarmed subjects of the Govt, to be later armed as needed by the Govt. If the Framers intended for govt only militias they would have authorized this amendment:

      “…the right of militia members to keep and bear arms shall not be infringed.”

      But why would such a law be inserted into the Bill of Rights ? The Bill of Rights restricts govt power. And why would they think of a disarmed public when many of them needed guns (weapons) for hunting and protecting from Indians. Why would they think of an unarmed public ?
      Thank you for your input, Tory.

    • Bill
      Thu, 31 Jan 2013 at 03:22

      This amendment was written on behalf of the slave states, at the time, in order to restrict the federal government from overly restricting the slave patrols that were created by volunteer locals that were enlisted in the inspection and general enforcement of the slave population . Note that the word ‘state’ is used relative to any outside interference to restrict or limit a states right to maintain such groups. It was necessary, at the time, for the southern states to form militias in order to act as a security detail to deal with the potential of an ever present threat of slave uprisings of which were quite prevalent in the antebellum south. In the vast majority of the south the slaves out numbered the white population by a fair majority. The concern that the delegates from the south expressed was that a federal government that possessed control over any state organized militia could order it to be disbanded or altered in such a way that could compromise the security of the ruling white population. There was much debate during the framing of the constitution over this very issue, that the northern states would use the wording of the constitution and as such, the control over local organized militias, to eventually free the slaves. They in effect were correct in that this did eventually happen toward the end of the civil war when the southern states were shut out from ratifying the 13th amendment. The protection then of the right to bear arms and the formation of militias at the state level was deemed a necessary ‘right’ that the southern delegation was keen to protect. This then, together coupled with the guarantee that restricted the interference of the federal government was in effect a compromise that allowed the southern states to maintain their necessary right, at the time, to the slave patrols of which were an integral part of the security and enforcement of the southern states.
      Thank you, Bill, for your comments.

    • Gun Control Laws? | allylukehart
      Thu, 31 Jan 2013 at 04:02

      [...] Our Second Amendment states: “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.” (http://www.askthejudge.info/what-does-the-second-amendment-say-about-guns/8941/) [...]

    • Ryan
      Tue, 05 Feb 2013 at 12:02

      Mr. William Heino Sr. what you are missing is, “people” refers to the citizens of our nation as a whole. look at the first amendment (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the PEOPLE peaceably to assemble, and to petition the Government for a redress of grievances.”) Did you not notice the noun “people” used in this amendment? You also say because of Article 2, Section 2 (“The President shall be Commander in Chief of the Army and Navy of the United States, and of the MILLITA of the several States, when called into actual Service of the United States;…”) the word “militia” stated in the second amendment does not refer to the average citizen, but as just people enlisted in a military force alone. But this argument does not hold up ether. Think about it, the draft in which presidents have placed in several wars in which they have called for… (The definition of militia you found in the Merriam Webster Dictionary.)
      “A whole body of able-bodied male citizens declared by law as being subject to call to military service.” When every male turns 18 he has to sign up for selective service so in case of the need of a draft the president can call upon these men, or in other words the militia to serve their country.

    • Neb Nworb
      Tue, 12 Mar 2013 at 08:56

      And now they are trying to put all these new laws on our guns so that we cant have assault rifles or big mags this kinda takes away the point of the seccond amendment…

    • Neb Nworb
      Tue, 12 Mar 2013 at 08:58

      Come on people tell me what you think about what i said in my last comment

    • Alpha Omega
      Thu, 20 Jun 2013 at 05:36

      With all due respect, your honor. If we really were living by the Constitution and the Bill of Rights, even felons would “legally” be able to purchase and possess firearms. However, the word “felon” has a VERY broad meaning now. For instance. I was convicted and found guilty of “domestic violence” four times, accused by the SAME woman, with ZERO evidence, her word against mine. So after leaving her, I have remained offense free, but a “violent felon” on paper. So let’s be literal here. America’s Judicial system, especially Commonwealth states, make up the laws as they see fit. In my case, Irish, Alcoholic (former) tattooed. There you have it. Thank you and good day sir.
      Thank you for your comments.

    • Alicia Z
      Mon, 02 Dec 2013 at 04:00

      so you mean that guns ARE illegal, right?
      Dear Alicia: No, we aren’t saying guns are illegal. You have to look to both state and federal laws regarding gun ownership, use and possession. They vary across the country. What may be legal in one state may be prohibited in another.
      (This is information only – not legal advice).

    • rod horkey
      Fri, 13 Dec 2013 at 10:48

      its very simple we can control the ammo you dont need 1000 bullets 1 dear 1 bullet the second amendment saya nothing about the ammo

    • Tory II, Illinois
      Sat, 14 Dec 2013 at 04:43

      Yes, I know, you are all about CONTROL.

    • Tory II, Illinois
      Sat, 14 Dec 2013 at 04:47

      Ever notice how every time an antigun law (bill) is being proposed in the Congress (or Legislature), a scandalous shooting happens ? Coincidence ?

      In Chicago this would happen when the City or the State was proposing gun control. I would warn readers to hide their kids. Coincidentally, a child or teen would be shot within hours.

    • Tory II, Illinois
      Sat, 14 Dec 2013 at 04:48

      I believe all shooting rampages are deliberately instigated by police.

    Leave a Reply

    Your email address will not be published. Required fields are marked *

    You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>