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The Second Amendment : Interpretations (last updated May 1, 2002) The Second Amendment reads 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." So, what does that mean? That question was thought by some to be long-settled in favor of a collective-right model that did not allow for individual rights to bear weapons, but has become hotly debated in recent years by historians, judges, and advocates. In 1999, a federal district judge in Texas overturned a gun-possession conviction on the grounds that the particular law violated the defendant's Second Amendment rights by stripping him of such rights too easily; an appellate court later ruled that individuals did have Second Amendment rights which were subject to some regulation. In 2001, Attorney General John Ashcroft reportedly came out strongly in favor of an individual-rights interpretation of the Second Amendment. The Supreme Court has only decided one case directly involving the Second Amendment, and that case, Miller v. United States (1939), is open to interpretation. The case involves Jack Miller, who was charged with moving a sawed-off shotgun in violation of the National Firearms Act of 1934. A lower court dismissed the charge, accepting Miller's argument that the Act violated the Second Amendment. The Supreme Court reversed unanimously and reinstated the charge, though Miller was long gone by that point. Two paragraphs of the Supreme Court opinion are crucial. "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." The next paragraph of the opinion begins by quoting constitutional language authorizing Congress to regulate state-trained militias, which the Supreme Court later calls a "body of citizens enrolled for military discipline," in contrast to a standing army. As stated in the Constitution, the purpose of such militias is to "execute the Laws of the Union, suppress the Insurrections and repel Invasions" (for the actual constitutional text on militias, go here). "With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view," the Supreme Court concludes. The first quoted paragraph is ambiguous in that it does not spell out whose right is guaranteed; it leaves open the possibility of an individual right to firearms, as long as whoever or whatever does have a right can show that the weapon has some relationship to a militia. Reading this paragraph alone, perhaps the decision would have come out differently had Miller stayed to fight the case and had presented evidence as to how a shotgun could be useful for a militia. However, the second quoted paragraph and its strong emphasis on organized militias has led many courts and legal scholars to the conclusion that the Second Amendment can only be read within the context of a "well regulated" militia, leaving only a collective right to firearms. This collective-rights model holds that only states have Second Amendment rights which the federal government cannot infringe. The Ninth Circuit Court of Appeals (covering Illinois and other Midwestern states) followed a collective-right reading of Miller in its 1982 opinion upholding the village of Morton Grove's handgun ban. There, the court said that "because the second amendment is not applicable to Morton Grove and possession of handguns by individuals is not part of the right to keep and bear arms, Ordinance No. 81-11 does not violate the second amendment" (Quilici v. Morton Grove, 1982). Other courts have followed this reasoning. Others, however, have argued that the Supreme Court's ruling was incorrect or simply dicta (non-binding language) and should be overturned entirely. Advocates of this view have pointed to Supreme Court cases which do mention the right to bear guns, though focusing on other issues. For example, the Supreme Court noted in the Dred Scott case (1856) that if blacks were citizens, then they would have all the rights of citizens, which would include the right to "keep and carry arms wherever they went." Individual-right proponents have gained ground in recent years. Most notably, District Judge Sam Cummings (N.D. Texas) ruled in early 1999 that there was an individual right to handguns, and that a federal law criminalizing the possession of a handgun by someone subject to a divorce-related court order involving threat or force violated that right (the defendant, Timothy Emerson, had told his wife that he would kill the man with whom she had been having an affair, and though no actual evidence of a threat was presented, a restraining order was granted as a precaution). "Under this statute, a person can lose his Second Amendment rights not because he has committed some wrong in the past, or because a judge finds he may commit some crime in the future, but merely because he is in a divorce proceeding. Although he may not be a criminal at all, he is stripped of his right to bear arms as much as a convicted felon. Second Amendment rights should not be so easily abridged," Cummings wrote. Upholding Cummings' ruling in part but remanding the case for further action, the United States Court of Appeals for the Fifth Circuit (covering Texas, Louisiana, and Mississippi) recognized some individual rights under the Second Amendment but still declared that such rights were subject to some regulations. There may be laws that would violate such rights, the court said in October 2001, but the law under which Emerson was convicted, a law that protects someone from being threatened by a gun, does not. In addition, Attorney General John Ashcroft has written that he believes the Constitution guarantees an individual right to keep and bear firearms. "While some have argued that the Second Amendment guarantees only a 'collective right' of the states to maintain militias, I believe the amendment's plain meaning and original intent prove otherwise," he wrote in a May 2001 letter to the chief lobbyist for the National Rifle Association, as reported in the New York Times. Sources: Supreme Court cases are available on-line via Findlaw.com. Judge Cummings' opinion in United States v. Emerson is on-line here, and the Fifth Circuit's opinion on appeal is on-line here. Fox Butterfield, Ashcroft supports broad view of gun rights, New York Times, May 24, 2001. Sanford Levinson, The Embarrassing Second Amendment, Yale Law Journal, Volume 99, page 637 (1989). Randy E. Barnett and Don B. Kates, Under Fire: The New Consensus of the Second Amendment, Emory Law Journal, Volume 45, page 1139 (Fall 1996).  Federal laws regulating gun possession (last updated July 2001) There are many federal and state laws regulating gun possession, manufacture, and sales. The federal system is codified in Title 18, Part I, Chapter 44, Section 922. Several federal provisions apply specifically to gun possession. The relevant ones are 922(g) regulating those who cannot possess a gun, 922(x)(2) prohibiting juveniles from possessing handguns, 922(p) regulating certain kinds of guns that are illegal per se, and 922(s) establishing background checks and waiting periods before one can buy a gun. Under 18 U.S.C. Section 922(g), it is illegal for you to possess any firearm or ammunition if you
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