Second Amendment: What are Your Real Rights?

In very recent history, an individual’s right to bear arms has become a hot topic of debate. The Second Amendment is commonly quoted in order to argue the individual’s rights, but when the Second Amendment was first conceptualized this individualistic rights approach was far from the contemporary interpretation. Originally the meaning behind the highly debated phrase was interpreted to apply strictly to those involved in militia service especially after the rebellion.

Second Amendment What are Your Real Rights

What is the 2nd Amendment?
“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.” [1]
These well written and important words were largely ignored and unchallenged for a century after they became a part of the Bill of Rights. The main debate over the right to bear arms during the Constitutional Convention focused on whether the militia would be under State or Federal control. Debate over whether the federal government should limit an individual’s right to own weapons was not a topic of discussion. General gun control was already a common fact of American life for the majority of colonists [2]. Gunpowder and concealed weapons were highly regulated in all of the states. It is important to note that muskets which were generally used in militias were commonly unregulated. It is important to know what the circumstances regarding the Amendment were at the time of it’s conception.

The Debate
States largely created their own gun laws and used individualistic language in their versions of the amendment. In 1822 a man in Kentucky was convicted and fined for carrying a concealed weapon [3]. The man challenged the decision on the grounds that such punishments infringed upon his right to bear arms. The court was faced with the first debate surrounding this amendment. They focused on whether the right to bear arms was intended to apply solely in the context of service with the militia. The court decided to overturn the conviction and ruled the law against concealed weapons as unconstitutional. Eventually Kentucky’s constitution was modified to override this ruling and the debate continued. States such as Arkansas and Tennessee continued to believe in the individual right interpretation and there was no real consensus on which interpretation should stand.

The Evolution of the Amendment
In 1934 the National Firearms Act was the first major legislation enacted in order to eliminate private ownership of weapons and control guns [4]. Rather than argue the constitutionality of the law, the Second Amendment was circumvented with a tax on each gun sale. Over the next several decades gun control measures continued to dominate and the individualistic interpretation faded to the background. The Federal Firearms Act restricted the sale of guns to convicted felons and required extensive logging for all gun sales. A Sacramento criminal defense lawyer reminds the Brady Handgun Violence Protection Act requires a waiting period and background check for all sales and the Assault Weapons Ban makes all assault weapons illegal to sell [5]. All of these laws put serious restrictions on the ownership and sale of weapons but were not considered to go against the Second Amendment until much more recently.

In 2008 the U.S. Supreme Court revisited this Second Amendment debate and ruled in favor of the individual rights interpretation in the landmark case of District of Columbia V. Heller [6]. This decision was the first time the federal level courts sided with the individualistic interpretation. The ruling, however, has been strictly applied only to federal districts such as the District of Columbia. In 2010 another landmark case, McDonald v. Chicago, again sided with the individual rights approach and extended this interpretation out to the various states [7].

Since its conception the interpretation of the Second Amendment has evolved from preventing the federal government from limiting a militia’s right to bear arms, into supporting an individual’s right to own guns. What your rights really are depend on your state and where you live.