The Second Amendment

The Second Amendment to the United States Constitution, ratified in 1791, 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.” Conservatives read this as the constitutional guarantee of an individual right that exists prior to the state, descended from the English common-law tradition of armed self-defence and the bearing of arms by free subjects.

For most of the twentieth century the operative meaning of the text was contested. One school held that the prefatory clause about the militia limited the right to a collective entitlement of the states to maintain organised forces; the rival school held that the operative clause guarantees a right belonging to individual citizens. The conservative legal movement championed the individual-right reading, and in 2008 the United States Supreme Court adopted it.

Key Takeaways

• The Second Amendment protects an individual right to keep and bear arms, a reading the United States Supreme Court adopted in District of Columbia v. Heller (2008) and extended to the states in McDonald v. City of Chicago (2010).
• Conservatives treat the right as pre-political and inherited from English common law, not as a privilege the state grants and may withdraw.
• The decades-long dispute over whether the amendment protects an individual right or only a collective militia right was settled, as a matter of constitutional law, in favour of the individual reading.

History And Context

The textual and historical case for the individual right was built over decades by scholars working outside the constitutional-law mainstream. The historian Joyce Lee Malcolm traced the right to its English origins in To Keep and Bear Arms: The Origins of an Anglo-American Right (1994), arguing that the right of Protestant subjects to possess arms, affirmed in the English Bill of Rights of 1689, was an individual right that the American framers inherited and broadened.¹ The constitutional scholar Akhil Reed Amar, writing from a different vantage in The Bill of Rights: Creation and Reconstruction (1998), agreed that the text protects a right of individuals, while emphasising that the framing-era concern was as much about popular sovereignty and resistance to a standing army as about private self-defence.²

The Supreme Court had said little. United States v. Miller (1939) was ambiguous and was read by lower courts for decades as supporting the collective-militia interpretation. That settled assumption was overturned in District of Columbia v. Heller, 554 U.S. 570 (2008). Writing for a 5–4 majority, Justice Antonin Scalia held that “the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”³ Two years later, in McDonald v. City of Chicago, 561 U.S. 742 (2010), the Court held that this right applies against state and local governments through the Due Process Clause of the Fourteenth Amendment.

The Conservative Position

The conservative position is that the right to keep and bear arms is one of the inalienable rights recognised, rather than created, by the founding generation. On this account the amendment does not confer a right; it forbids the government from infringing one that citizens already hold. Scalia’s Heller opinion rests on this premise, reading the operative clause as the substance of the guarantee and the militia clause as announcing one purpose among several rather than as a limiting condition.

Conservatives connect the right to two further commitments. The first is the maintenance of constitutional order: an armed citizenry was understood by the framers as a structural check against tyranny, a theme Amar’s scholarship documents. The second is the priority of self-defence, treated in the natural-law tradition as the most basic of the rights a person retains against aggressors. Conservative jurists also stress that Heller expressly preserved a wide range of regulation — bans on possession by felons and the mentally ill, prohibitions on carrying in sensitive places, and conditions on commercial sale — so that recognising the right is compatible with substantial gun control.

Differing Positions

Critics of the individual-right reading argue that it misreads both text and history. On this view the prefatory militia clause is not ornamental but controlling: the right exists for the sake of a well-regulated militia, and the Heller majority severed the two clauses to reach a predetermined result. Justice John Paul Stevens, dissenting in Heller, argued that the historical record supported the militia-centred reading and that the Court had departed from precedent.

A second line of objection accepts that the amendment protects an individual right but contends that it should be read in light of present conditions rather than 1791 expectations, leaving wide latitude for legislatures to regulate firearms in response to contemporary harms. Proponents of stricter regulation argue that the practical scope Heller left open is broad enough to sustain most policy debated today, and that the disagreement is less about the existence of the right than about its limits.

References

1. Malcolm, Joyce Lee. To Keep and Bear Arms: The Origins of an Anglo-American Right. Cambridge, MA: Harvard University Press, 1994.
2. Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. New Haven: Yale University Press, 1998.
3. District of Columbia v. Heller, 554 U.S. 570, 570–571 (2008) (syllabus); McDonald v. City of Chicago, 561 U.S. 742 (2010).