Feb 27, 2017
What does the Second Amendment
say? Is gun ownership a right for all Americans? Or just for a
small militia? Eugene
Volokh, Professor of Law at UCLA, explains what the Founding
Fathers intended.
Does an American citizen have a Constitutional right to own a
gun?
Here’s what the Second Amendment says: “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.”
Now, it once seemed to me like that language only protected state
militias and not individuals. Indeed, this is the view held by the
four dissenting Supreme Court justices in the 2008 case of District
of Columbia versus Heller, a landmark case dealing with gun
ownership.
But the more research I did, the more I came to realize that my
initial view was mistaken and that the Founders were, in fact,
securing an individual right. The five justices who voted to affirm
the right to own a gun in DC versus Heller had, indeed, made the
correct decision.
Let’s look at the amendment one more time.
“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 first need to focus on the phrase “the right of the people.”
Note that the people are the only ones whose right is secured here,
not the militia or a state government. This phrase “the right of
the people” comes up a few times in the Constitution. For example,
the First Amendment refers to “The right of the people peaceably to
assemble, and to petition the Government.” And the Fourth Amendment
secures “The right of the people to be secure…against unreasonable
searches and seizures.”
Why, then, if the authors of the Constitution felt so strongly
about “the right of the people” to own guns, did they include
language about “a well-regulated militia”?
These opening words of the amendment might be called a
“justification clause.” Such clauses are used to help explain why a
right is being secured. But it’s the operative clause that explains
what right is being secured. In this case, the right of the people
to keep and bear arms.
And what was the word ‘militia’ understood to mean at the time?
Well, the Militia Act of 1792 defined “militia” to mean all white
males 18 to 45. Today, of course, “militia” would include women and
people of all races, but it was clearly not a reference to a small,
National Guard-type group.
And what about the part of the amendment that says a militia is
necessary “to the security of a free State”? What, the opponents of
personal gun ownership ask, does a personal right of gun ownership
have to do with that?
Again, historical context is key. In the 1790s, the phrase “free
State” wasn’t used to mean an individual state like New York or
Rhode Island. Rather, it meant what we’d call today a “free
country”—a nation free of despotism. A “free State” is what the
Framers wanted America to be. They saw an armed citizenry as, in
part, a hedge against tyranny. Citizens who own weapons can protect
themselves, prevent tyrants from seizing power, and protect the
nation from foreign enemies.
This does not mean, though, that this right is unlimited. Free
speech, for example, has long been subject to some narrow and
reasonable regulations. But severe restrictions on owning a gun,
like severe restrictions on free speech, would violate the Second
Amendment as the Founders understood it.