Why right to bear arms

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. In Heller, the U. Applying the right to the states, McDonald found the right to be fundamental, not second class.

Yet the circuits are split, with some applying the clear text and others playing a limbo game to see how low the standard can go. Heller, No. Heller, U. City of Chicago, U. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel Invasions. United States, U. The answer is armed individual self-defense outside the home deserves only minimalist protection or categorical exclusion.

County of San Diego, F. Knight, Comb. No evidence suggests that he was acquitted because he had governmental immunity. Peruta, F. Meade, 19 L. Times Repts. Smith, 2 Ir. Director Of Public Prosecutions, 2 Cr. On the Assize of Arms of , see Stephen P.

Dewhurst, 1 State Trials, New Series , XIII ; Vt. XVII Davis L. See also Stephen Halbrook, St. Boyd ed. Peterson ed. Acts , ch. Blanding, 20 Mass. Laws , , ch. State, 13 Tenn. Reports 5 Yerg. Huntley, 25 N. Commonwealth, 12 Ky. Mitchell, 3 Blackf. Reid, 1 Ala. State, 1 Ga. Chandler, 5 La. Ann , See also State v. Jumel, 13 La. Commonwealth, 2 Va. Savannah, 4 Ga. State, 1 Gill , Md. Allmond, 7 Del. Newsom, 27 N. Lane, 30 N. Harris, 51 N. Sanford, 60 U. Optional Login Have an account?

Sign in Email. Forgot password? Proceed as Guest Continue. Part 1. Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. English Origins A. The Founding and Early Republic A. Restrictions on the Manner of Carrying Arms Did Not Prohibit the Peaceable, Open Carry of Firearms in Public It was not an offense at common law or in the statutes of any state at the Founding peaceably to bear arms openly or concealed.

African Americans: Prohibitions and Licensing Requirements From colonial times until slavery was abolished, slaves were prohibited from keeping and bearing arms in most circumstances or altogether.

III c. Laws , Related Links Peruta v. Patrick J. Carl T. 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. While Justice Alito and his supporters looked to the Due Process Clause, Justice Thomas in his concurrence stated that the Privileges and Immunities Clause should justify incorporation.

However, several questions still remain unanswered, such as whether regulations less stringent than the D. As a general note, when analyzing statutes and ordinances , courts use three levels of scrutiny, depending on the issue at hand:. More recently, the Supreme Court reinforced its Heller ruling in its Caetano v. Massachusetts decision.