Wednesday, May 31, 2017


by Tom Lineaweaver

This is a controversial topic to be sure. But what does it mean?

The Second Amendment of the United States Constitution 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." On the one hand, some believe that the Amendment's phrase "the right of the people to keep and bear Arms" creates an individual constitutional right for citizens of the United States. Under this "individual right theory," the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional. On the other hand, some scholars point to the prefatory language "a well regulated Militia" to argue that the Framers intended only to restrict Congress from legislating away a state's right to self-defense. Scholars have come to call this theory "the collective rights theory." A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right.

The right to keep and bear arms (often referred to as the right to bear arms) is the people's right to possess armaments (arms) for their own defense, as described in the philosophical and political writings of Aristotle, Cicero, John Locke, Machiavelli, the English Whigs and others.

When I did a Goggle search of "right to bear arms," there were about 9,000,000 results of the search. Nope, I didn't read them all.

It is a common perception that the "arms" in the Second Amendment means "guns." But does it?


The Second Amendment and the Right to Bear Arms

Congress ratified the Second Amendment to the U.S. Constitution in 1791, granting Americans the right to bear arms. Interpreting the Second Amendment in modern times can be confusing. Legislatures are still trying to sort it out. The U.S. Supreme Court has interpreted it to mean that most Americans have a constitutional right to defend themselves and their property, with force if necessary.

The Second Amendment Is Twofold

Confusion regarding the Second Amendment comes from the fact that it addresses two separate issues in a single sentence. It begins with the words, "a well-regulated militia." Some individuals and legislators take this to mean that only the militia can bear arms to defend the country and its citizens. Militia does not include just the armed forces. It includes law enforcement officers as well.

The Amendment Protects Individual Rights

The Second Amendment also addresses the rights of private citizens in the same sentence. It includes the words, "the right of the people to bear arms." Therefore, the U.S. Supreme Court ruled in 2008 and 2010 that the reference to militia is just an explanation of why Congress ratified the amendment - because the country has the right to defend itself. The U.S. Supreme Court stated that the militia reference doesn't limit arms to only law enforcement and the military. Most Americans have a constitutional right to own guns for the purpose of self-defense or certain legal activities, such as hunting or target practice.

Additional Legislation Sets Restrictions

Several federal acts restrict the right to bear arms. The Second Amendment doesn't apply to everyone, and some firearms are exempt. For example, convicted felons lose their Second Amendment rights. Individuals who are certifiably mentally ill cannot bear arms. The amendment doesn't apply to weapons that go beyond what an average person would need for self-defense, such as machine guns. Federal laws also address how firearms may be sold, particularly through the mail and across state lines. Citizens don't have the right to carry a gun into government facilities or schools.

State Laws Also Address Gun Control

The Bill of Rights grants state and local governments the freedom to set their own laws without interference from the federal government. However, this doesn't mean states can override citizens' constitutional rights. For example, the right to bear arms allows you to use a gun to go hunting, but that doesn't mean you can hunt anytime and anywhere you like. You have to abide by your state's laws regarding hunting seasons and approved hunting areas. You must also follow your state's gun control laws. State laws include waiting periods and other requirements before you can legally purchase a gun, as well as firearm registration requirements.

A Civil Rights Lawyer Can Help

The law surrounding a U.S. citizen's right to bear arms is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact a civil rights lawyer.


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