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Amendment II (the Second Amendment) of the United States Constitution, part of the Bill of Rights, states:

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.

Note to reader: At the time of the drafting of the Constitution and the Second Amendment, the rules of punctuation were loose and varied by author and were not considered as meaningful as modern useage of punctuation is today. This fact often leads to various mis-interpreations when readers try to attribute meaning to the placement of the commas in the original text of the Second Amendment.

Interpretations

Some interpreters, notably gun control advocates, interpret the "well regulated militia" clause as a qualifier that restricts the right to only those sworn members of a government-controlled armed body. On this grounds, these interpreters assert that the Second Amendment does not relate to private citizens in any manner. They see bearing arms as a privilege granted to private citizens at the discretion of government.

Other interpreters, mainly those favoring gun rights, maintain that the "militia clause" was not setting any pre-requiset for the exercise of the right to keep and bear arms at all, but rather an explanatory phrase to state the single most important reason the right must be protected, ie, to assure ability of the people to take up arms for their individual or common defence. Also, gun rights advocates poit out that in the Colonial Era "militia" specifically referred to the armed citizenry as a whole (as distinct from an "organised militia" which was a government-controlled body such as a standing army). On these grounds, these interpreters assert that the Second Amendment does protect the pre-existing individual citizens the right to keep and bear arms whether the government agrees or not.

Both sides generally agree, however, that certain unqualified people such as the certifiably insane or convicted violent felons can be prohibited from arms. The Constitutional basis for restricting individual rights, including firearms rights, begins with the ratification of the 13th Amendment, which states: "Amendment XIII Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation."

The "except as" clause allows citizens to be deprived of rights if they "have been duly convicted" of a crime. Section 2 allows the Congress to set the limits of these restrictions.

The degree of opposition to licensing of gun owners, comparable, say, to driver's licenses, varies among these interpreters.

Both gun rights advocates and gun control advocates point to the United States Supreme Court ruling from the 1939 decision U.S. v. Miller, being the only US Supreme Court accepted case which partly stood on the Second Amendment, which states in part: "In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less that 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 is use could contribute to the common defense." {...} "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

Both sides in the gun rights debate claim that the Miller ruling supports their positions.

It is important to note that nobody appeared in either the Apeals Court, nor the US Supreme Court for the accused Mr. Miller, nor to argue the side of the Second Amendment protecting the individual rights to keep and bear arms, nor even to state the fact that sawed-off shotguns were indeed in common use by not only local organised militias, but were also common issue to US Army soldiers who fought in WWI. In fact, short-barreled shotguns were normal issue for the US Army right through the Viet Nam War and various Special Forces units still use them today. The complete lack of representation for the gun rights side of these issues in court is probably due to the fact that Mr. Miller had been murdered long before the issue got through the appeals process.

Gun control advocates claim that because many localities have laws restricting private citizen's ownership of guns and that none of these laws have ever been struck down by the US Supreme Court on Second Amendment grounds (the Brady Bill was partially struck down in 1997 because of states' rights concerns). It is therefore likely that the Supreme Court does not agree with the second interpretation given above.

However, the US Supreme Court has repeatedly stated that the lack of a ruling on an issue, or the failure to grant "cert" for a case on any issue must never be interpreted as an indication of how the court sees any law or case or issue. The US Supreme Court gets asked to decide at least hundreds if not thousands of cases each year, but they only have time to deal with fewer than 100 in a good year with mostly less complex issues.

For sixty years, the US government also rejected the second interpretation. In a brief filed in 2002 by John Ashcroft's Justice Department, this position was reversed: the amendment "broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse".

The most recent federal court ruling to touch on the issue is that of the 5th Circuit Court of Appeals in 2001 in U.S. v. Emerson. The justices support the position taken by Ashcroft in their 77-page decision. Notably they state that the U.S. v. Miller judgment applied only to a narrow category of firearm not typically carried by individuals. Secondly as regards to the "right" to bear arms expressed in the Second Amendment, the justices state that "as used throughout the Constitution, 'the people' have 'rights' and 'powers,' but federal and state governments only have 'powers' or 'authority', never 'rights.'" Furthermore, "There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words 'the people' have a different connotation within the Second Amendment than when employed elsewhere in the Constitution."

See gun politics.

External Links:

• Conservative Handbook Quotes some founding fathers.