What Is The Second Amendment And How Is It Defined

The Second Amendment is an amendment of the US Constitution that establishes the constitutional rights of US citizens to own and use weapons, including firearms.

Federal law takes away someone’s right to own a firearm if they are convicted of a felony, which can be restored if the conviction is expunged or set aside. There can also be gun ownership prohibitions for misdemeanors depending on the offense.

What does the Second Amendment say?

The Second Amendment, as it is written on the Bill of Rights passed by Congress, is as follows:

“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.”

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Why was the Second Amendment so important?

The original intent of the Second Amendment was a part of maintaining the balance of power between state and federal government. 

The ability of private citizens to form organized, armed militias was deemed necessary not just to discourage the development of a tyrannical federal government that superseded state power, but also to fight and overthrow such a government should it rise to power. 

Armed militias were seen as a vital defense against tyranny due to their role in overthrowing the colonial rule of the British Empire. Providing constitutional protections to such militias was important because British colonial rulers had selectively banned and disarmed militias with Patriot associations.

In this context, the word “Militia” does not apply solely to organizations, however, and can also describe the individual or a group of individuals. Accordingly, the Second Amendment is also understood to protect the right of the individual to keep and use weapons for lawful purposes such as self-defense.

Second Amendment Court Cases

District of Columbia v. Heller

District of Columbia v. Heller (2008) is an important case for establishing how the Second Amendment is interpreted in modern American law.

At the time of the case, the District of Columbia had made it illegal to carry an unregistered firearm, while also prohibiting the registration of handguns. To lawfully own a handgun, people would need to obtain a one-year handgun license from the Chief of Police. Additionally, District of Columbia Code also required that all registered handguns must be kept unloaded and disassembled, or bound by a trigger lock or similar mechanism. Only handguns kept at a place of business were exempt from this requirement, which meant that they must be kept unloaded and disassembled at all times while in the owner’s home.

As a result of these provisions, the District of Columbia was sued by special police officer Dick Anthony Heller. Heller sued the District of Columbia after being denied a one-year license to keep a handgun at home for self-defense, despite being authorized to carry a handgun while on duty. He argued that these provisions violated his Second Amendment right to keep a functional firearm in his home without a license, and sought an injunction against the enforcement of these rules. 

This complaint was dismissed initially by the district court. However, the US Court of Appeals for the District of Columbia Circuit reversed that decision and stated that the Second Amendment protects the right of citizens to keep firearms in the home for the purpose of self-defense. Firearms kept in a nonfunctional state were not fit for the purpose of self-defense, and so the District of Columbia Code’s provision that handguns must be kept unloaded and disassembled therefore violated that right.

The Court of Appeals based its ruling on several factors:

Firstly, it reminds us that the “well-regulated Militia” referred to in the Second Amendment should not be understood to mean an organization licensed or sponsored by the government. Such a requirement would be counter to the purpose of the Second Amendment as a safeguard against tyranny. 

Instead, it upheld interpreting each Amendment in the simple meaning it would have had for readers at the time it was written. In the case of the Second Amendment, the meaning that would have been obvious to contemporary readers is that the Second Amendment guarantees the right of an individual to own and carry weapons as a defense in the event of confrontation. 

As handguns are a class of weapon widely used for self-defense purposes, and because the home is an area that needs to be protected in a confrontation, banning such firearms and preventing them from being kept in a functional state were both found to be in violation of the Second Amendment.

Although this was the majority opinion, 4 of the 9 Justices dissented, arguing that the Second Amendment does not curtail the government’s ability to regulate nonmilitary use and ownership of weapons.

McDonald v. City of Chicago (2010)

After the Court of Appeals ruling in District of Columbia v. Heller, Otis McDonald and several others filed a suit in Chicago to challenge gun bans put in place in 1982 that required registration to possess a firearm, and banned the registration of handguns. The suit argued that the ban violated the right of individuals to own and carry weapons, which the Supreme Court had found to be protected by the Second Amendment in the District of Columbia v. Heller case. 

The suit raised the question of whether the Second Amendment is applicable at a state level or solely federal. Plaintiffs in the case argued that the Second Amendment applied to state law through the Fourteenth Amendment due process and privileges or immunities clauses. Respectively, these clauses prohibit states from denying life, liberty, or property without due legal process, and prohibit states from abridging the privileges and immunities of US citizens.

The suit was dismissed by the district court, and the US Court of Appeals affirmed the district court’s decision before the Supreme Court agreed to reexamine the case, and reversed the decision.

The majority in the Supreme Court argued that the Second Amendment is incorporated in state law through the due process clause of the Fourth Amendment. It stated that the individual right to own and use firearms for legal purposes, especially self-defense, is integral to the American system of liberty and justice, and so must be incorporated to the states. This decision was based on the standards required for incorporation that were established in Duncan v. Louisiana (1968), namely that the due process clause of the Fourteenth Amendment applies to all rights that are fundamental and central to the American conception of justice.

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Second Amendment Rights

• Firearm Use For Lawful Purposes

The Second Amendment protects the right of individuals to use firearms for lawful purposes. Lawful uses of a firearm include self-defense and militia participation, as well as for practice, sport, and recreation. The Second Amendment does allow for state regulation of the ownership and use of firearms that does not infringe on the right to own and use firearms for lawful purposes.

• Lawful Firearm Ownership

The Second Amendment protects individuals’ rights to own firearms for use in lawful purposes such as self-defense. This means that classes of weapon that are commonly used for lawful purposes cannot be banned, and individuals have the right to maintain their firearms in a functional and effective state for those purposes, as per the District of Columbia v. Heller case. As a result, individuals cannot be required by state law to keep their firearms in a manner that would be ineffective for common self-defense scenarios.

* This guest post is brought to you by our friend Douglas Parker *

Douglas Parker handles content management and communications for Manshoory Law Group, APC. He has always had a special interest in the sphere of Law and Human Rights. Dedicating a lot of his free time to understanding the small details and specifics of these fields, Douglas enjoys exploring and analyzing them in his articles. His main goal is to make this sometimes complicated information available and transparent for everyone.