Why does the second amendment exist

While states in the Founding era regulated guns—blacks were often prohibited from possessing firearms and militia weapons were frequently registered on government rolls—gun laws today are more extensive and controversial. Another important legal development was the adoption of the Fourteenth Amendment. The Second Amendment originally applied only to the federal government, leaving the states to regulate weapons as they saw fit.

Although there is substantial evidence that the Privileges or Immunities Clause of the Fourteenth Amendment was meant to protect the right of individuals to keep and bear arms from infringement by the states, the Supreme Court rejected this interpretation in United States v. Cruikshank Until recently, the judiciary treated the Second Amendment almost as a dead letter. In District of Columbia v.

A 5—4 majority ruled that the language and history of the Second Amendment showed that it protects a private right of individuals to have arms for their own defense, not a right of the states to maintain a militia. The dissenters disagreed. Two years later, in McDonald v. City of Chicago , the Court struck down a similar handgun ban at the state level, again by a 5—4 vote. Justice Thomas rejected those precedents in favor of reliance on the Privileges or Immunities Clause, but all five members of the majority concluded that the Fourteenth Amendment protects against state infringement of the same individual right that is protected from federal infringement by the Second Amendment.

Notwithstanding the lengthy opinions in Heller and McDonald , they technically ruled only that government may not ban the possession of handguns by civilians in their homes. Gun control is as much a part of the Second Amendment as the right to keep and bear arms. As the Supreme Court correctly noted in District of Columbia v. Heller , the militia of the founding era was the body of ordinary citizens capable of taking up arms to defend the nation.

While the Founders sought to protect the citizenry from being disarmed entirely, they did not wish to prevent government from adopting reasonable regulations of guns and gun owners.

Although Americans today often think that gun control is a modern invention, the Founding era had laws regulating the armed citizenry. There were laws designed to ensure an effective militia, such as laws requiring armed citizens to appear at mandatory musters where their guns would be inspected. Governments also compiled registries of civilian-owned guns appropriate for militia service, sometimes conducting door-to-door surveys.

The Founders had broad bans on gun possession by people deemed untrustworthy, including slaves and loyalists. The Founders even had laws requiring people to have guns appropriate for militia service. The wide range of Founding-era laws suggests that the Founders understood gun rights quite differently from many people today. The right to keep and bear arms was not a libertarian license for anyone to have any kind of ordinary firearm, anywhere they wanted.

Nor did the Second Amendment protect a right to revolt against a tyrannical government. The Second Amendment was about ensuring public safety, and nothing in its language was thought to prevent what would be seen today as quite burdensome forms of regulation.

The Founding-era laws indicate why the First Amendment is not a good analogy to the Second. While there have always been laws restricting perjury and fraud by the spoken word, such speech was not thought to be part of the freedom of speech. The principle that reasonable regulations are consistent with the Second Amendment has been affirmed throughout American history. For years, this was the settled law of the land—until Heller.

Heller , however, rejected the principle of reasonableness only in name, not in practice. The decision insisted that many types of gun control laws are presumptively lawful, including bans on possession of firearms by felons and the mentally ill, bans on concealed carry, bans on dangerous and unusual weapons, restrictions on guns in sensitive places like schools and government buildings, and commercial sale restrictions.

Nearly all gun control laws today fit within these exceptions. In the years since Heller , the federal courts have upheld the overwhelming majority of gun control laws challenged under the Second Amendment. Bans on assault weapons have been consistently upheld, as have restrictions on gun magazines that hold more than a minimum number of rounds of ammunition. Bans on guns in national parks, post offices, bars, and college campuses also survived.

These decisions make clear that lawmakers have wide leeway to restrict guns to promote public safety so long as the basic right of law-abiding people to have a gun for self-defense is preserved. Perhaps the biggest open question after Heller is whether the Second Amendment protects a right to carry guns in public. While every state allows public carry, some states restrict that right to people who can show a special reason to have a gun on the street. To the extent these laws give local law enforcement unfettered discretion over who can carry, they are problematic.

At the same time, however, many constitutional rights are far more limited in public than in the home. Parades can be required to have a permit, the police have broader powers to search pedestrians and motorists than private homes, and sexual intimacy in public places can be completely prohibited. The Supreme Court may yet decide that more stringent limits on gun control are required under the Second Amendment.

Such a decision, however, would be contrary to the text, history, and tradition of the right to keep and bear arms. The right to keep and bear arms is a lot like the right to freedom of speech. In each case, the Constitution expressly protects a liberty that needs to be insulated from the ordinary political process. Neither right, however, is absolute. The First Amendment, for example, has never protected perjury, fraud, or countless other crimes that are committed through the use of speech.

Similarly, no reasonable person could believe that violent criminals should have unrestricted access to guns, or that any individual should possess a nuclear weapon. Inevitably, courts must draw lines, allowing government to carry out its duty to preserve an orderly society, without unduly infringing the legitimate interests of individuals in expressing their thoughts and protecting themselves from criminal violence. 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. In the U. Supreme Court considered the matter in United States v. The Court adopted a collective rights approach in this case, determining that Congress could regulate a sawed-off shotgun that had moved in interstate commerce under the National Firearms Act of because the evidence did not suggest that the shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated milita.

This precedent stood for nearly 70 years when in the U. Supreme Court revisited the issue in the case of District of Columbia v. Heller The plaintiff in Heller challenged the constitutionality of the Washington D. Many considered the statute the most stringent in the nation.

In a decision, the Court, meticulously detailing the history and tradition of the Second Amendment at the time of the Constitutional Convention, proclaimed that the Second Amendment established an individual right for U. The majority carved out Miller as an exception to the general rule that Americans may possess firearms, claiming that law-abiding citizens cannot use sawed-off shotguns for any law-abiding purpose. Similarly, the Court in its dicta found regulations of similar weaponry that cannot be used for law-abiding purposes as laws that would not implicate the Second Amendment.

Further, the Court suggested that the United States Constitution would not disallow regulations prohibiting criminals and the mentally ill from firearm possession.

Thus, the Supreme Court has revitalized the Second Amendment. City of Chicago The plaintiff in McDonald challenged the constitutionally of the Chicago handgun ban, which prohibited handgun possession by almost all private citizens. In a decisions, the Court, citing the intentions of the framers and ratifiers of the Fourteenth Amendment, held that the Second Amendment applies to the states through the incorporation doctrine.

However, the Court did not have a majority on which clause of the Fourteenth Amendment incorporates the fundamental right to keep and bear arms for the purpose of self-defense.