We all heard about the Second Amendment, but what do we really know about it?
The tl;dr Info Dump
What Is This?
The Second Amendment is one of the ten additional points (aka The Bill of Rights) that the creators of the Constitution added to their original document so that Anti-Federalists would vote the US Constitution into law.
Why Is This Important?
The Second Amendment is the statute that gun rights advocates in the US point to when arguing (a) why private citizens should be able to have guns and (b) why those rights to have guns shouldn’t be limited with government intervention (aka gun control laws).
Ok. Deep Breath Before we all decide to dive head first into the chaotic hellscape that is the US gun debate, we should all agree on two central points.
Point 1: The Second Amendment is, for all intents and purposes, in the US Constitution and is protected as such. (Of course, that doesn’t mean the Second Amendment can’t be changed with another amendment. And before you say that would be “Un-American”, remember that the 18th Amendment originally made prohibition legal, then was later reversed in 21st Amendment. So if you all like drinking, which I’m assuming we all do, there is nothing “Un-American” about that idea.)
Point 2: Just because a right is in the US Constitution, doesn’t mean there’s a blanketed protection on all forms of that right. A perfect example of this is with the First Amendment. Just because the right to free speech is protected under the Constitution, doesn’t mean you’re protected in making threatening remarks to people or screaming “FIRE!” in a crowded movie theater, causing a panic.
Now that we’re all hopefully on the same page, let’s talk about the Second Amendment.
If I were to take a guess on what your first exposure to discussions regarding the Second Amendment were, it would either be (a) you cramming for a final in your high school civics class, that you only recently opened the book for or (b) through a cable news shouting match between two White people with nice hair. I you’re anything like me, the first time you heard about the Second Amendment was most likely in scenario (a), but all you can remember of anyone talking about it is in scenario (b). Which is unfortunate, because how cable news frames the Second Amendment is sometimes (alright, most times) inaccurate. Take how Newt Gingrich talked about the Second Amendment on Fox News.
Gingrich’s “reason why we have the Second Amendment”, came after he heard Sen. Chris Murphy – a Democrat from Connecticut – railing against Congress for not passing stricter gun legislation. In response, Gingrich framed his argument using the Second Amendment as the backbone. Here’s the video:
Now, here is again what Gingrich said on Fox News, however this time I penciled in a few much needed clarifications in the name of fact checking:
“Well look, I think what he doesn’t tell you, which nobody on the left doesn’t want to tell you, is that we have a Second Amendment to protect the right to bear arms. ^Actually…“the left” (ie liberals) bring up the Second Amendment quite often, but in terms of how conservatives misinterpret it. That Second Amendment was written by the Founding Fathers, ^Actually…the Second Amendment was most likely written by Anti-Federalists, who by their very name, didn’t trust the federal government. because they understood that the Lexington and Concord farmers who stood up to the British Army, [if] they wouldn’t of had any weapons, would have been massacred and we would still be colonists to the British King. ^Actually…“Rowe’s Revolution” – which is the only thing he could be talking about here – ended with a compromise between the British soldiers and colonists, with the colonists having to exchange their firearms for permits to pass in and out of Boston. If anything, the colonists giving up their guns protected them from it becoming a “massacre.” So they deliberately wrote into our Constitution, your right to bear arms. ^Actually…by having the Second Amendment be, by its very nature, an amendment, meant that it was added after the original language of the Constitution had already been written. Not for deer hunting, not for skeet shooting, but as a political right to enable you, to preserve liberty.” ^Actually… if by “liberty” he means protect you from government intrusion by having a gun, then no, that was decided not to be the interpretation by the Supreme Court.
As you can see, on cable news, the Second Amendment has always been talked about as Constitutional dogma. Based on statements like Gingrich’s, you would think the actual text of the Second Amendment would just be written as “GUNZ4ALL” scribbled 100 times over. But like most things in politics, it’s a little more complicated than that.
The Second Amendment in the US Constitution is only 27 words long. Yup, that’s it. Hell, it might as well be a run-on sentence:
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.
Yet for its surprising brevity, it sure causes a lot of debate. So to understand it better, let’s break it down into two parts:
Part 1: “A well regulated Militia, being necessary to the security of a free State,”
So some context. After the American Revolution, some were worried that the newly instilled American government would devolve into an oligarchy due to how powerful the Constitution made the federal government. To quell those fears (and to curry enough votes to ratify the Constitution into law) additional provisions were made to make sure the federal government didn’t have too much power. One of those provisions: the ability to keep “a well regulated militia” that keeps an eye on the federal government from abusing their military force. Back then, the basic idea would be to use the military for foreign conflicts and regulated local militias for emergencies within the US borders. Today, that has changed. The federal government (and its military) are looked at as the main purveyors in keeping the peace, with US citizens accepting their legitimacy on almost all issues. For example, you don’t feel the need to overthrow the US government anytime a decision, that you disagree with, is made at the federal level, right? Probably not. That’s because the idea of having a small army to keep the federal government “in check” is FUCKING. INSANE! I’m making the assumption that we’re all on the same page with that idea. Of course, I’m also making the assumption that you also don’t go into the woods for “combat training” each weekend, but end up exploding watermelons with a group of middle-aged White men in camouflage, getting drunk on Coors. (Also, real talk, if the federal government is going to get you, do you really think your gun stash and those hot military tips that you got from the back-page of a Soldier of Fortune Magazine is going to deter them??? Alright, end of rant.)
Part 2: “the right of the people to keep and bear Arms, shall not be infringed.”
To be able to have “a well regulated Militia”, it’s obvious that you would need some firepower. Guns in cases like these work well enough. Over time, while the militia language of the Second Amendment has been generally accepted as a dead provision, in contrast, the “right to bear arms” has only gained larger prominence. Though it’s important to note that it doesn’t specify what type of arms would count as to “keep and bear Arms.” This, of course, is where the gun debate originates from.
It’s important to note that there are also two Supreme Court cases that you should keep in mind when talking about the Second Amendment:
District of Columbia v. Heller (2008): The Supreme Court ruled, in a 5-4 decision, that the language (and history) of the Second Amendment protected an individual’s right to arm themselves for self-defense purposes, specifically when it comes to handguns. This is important, because their ruling made it unconstitutional for local communities to prohibit their citizens from having access to handguns.
McDonald v. City of Chicago (2010): Similar to their District of Columbia v. Heller decision, in a 5-4 ruling, the Supreme Court struck down a similar ban of handguns at the state level, once again, citing that the ban would infringe on an individual’s Second Amendment rights.
Basically, the two Supreme Court rulings are saying, under the Constitution, the government can’t limit your access to a handgun. (Obviously, there are exceptions to this, such as restricting the sale of handguns to the mentally ill or prohibiting the carrying of handguns to sensitive places like schools).
Now what those two Supreme Court cases didn’t do is blanket those protections to other types of guns. So while a handgun would be protected under the Second Amendment, other types of guns (like assault weapons) are not implicitly included under that same protection. Yet at the same time, they are not, not included under the protection of the Second Amendment either… if that makes any sense.
To be perfectly honest, the Supreme Court has been hesitant in taking cases that would solidify the interpretation of the Second Amendment. Some of that reasoning is behind the idea that the Congress should be the ones making the laws, while the Supreme Court’s job is to interpret them as Constitutional. However, this leads to many questions in regards to the Second Amendment like:
- Are assault weapons protected under the Second Amendment?
Are accessories to handguns (like silencers or bump stocks) protected?
By duct taping two shotguns together creating a Shotie™, would that be protected?
These are the questions that have become the heart of the gun debate in the US, with the Second Amendment being right in the middle of it.
“Newt Gingrich: Why we have a Second Amendment.” YouTube, Fox News Channel, 4 Oct. 2017, www.youtube.com/watch?v=JicnJz79YcY.
“Lexington and Concord.” Coming of the American Revolution: Lexington and Concord, www.masshist.org/revolution/lexington.php.
“United States of America 1789 (Rev. 1992).” Constitute, www.constituteproject.org/constitution/United_States_of_America_1992.
“The 2nd Amendment of the U.S. Constitution.” National Constitution Center – Constitutioncenter.org, constitutioncenter.org/interactive-constitution/amendments/amendment-ii.
“District of Columbia v. Heller.” Oyez, Oyez, www.oyez.org/cases/2007/07-290.