NCJ Number
160172
Date Published
1992
Length
8 pages
Annotation
The Second Amendment to the U.S. Constitution is controversial because it is unclear whether the framers' intent was to protect the right of individuals to own guns or the right of States to establish militias.
Abstract
The Second Amendment of the U.S. Constitution states that "A 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." This amendment is perhaps one of the worst drafted of all the Constitution's provisions. What is significant about the amendment is the inclusion of an opening clause that apparently states its purpose. A standard move of the legal analysts who wish to limit the Second Amendment's application is to focus on its "preamble" as specifying a restrictive purpose. Laurence Tribe, for example, asserts that the purpose of the amendment was initially to allow the States to keep their militias and to protect them against the possibility that the new national government would use its power to establish a powerful standing army and eliminate the State militias. This interpretation disposes of any affirmation of the right of every "individual" to keep and bear arms; the right is only a State's right. This is by no means the only interpretation possible from the words of the amendment. Interpreters must still determine what is meant by guaranteeing to "the people the right to keep and bear arms." Those who argue for a broad and absolute interpretation of the Second Amendment maintain that individual citizens have a right to arm themselves with any weapon of their choosing to protect themselves from criminals and an invasive and unlawful government. Each side in this legal debate, which has been largely neglected by legal academies, must respect the fears and social concerns of the other side in the debate. The cost of a full-scale arming of the citizenry must be debated, along with the cost of disarming the citizenry.