reply to post by Feltrick
Some court rulings on the 2nd ammendment clarifying exactly what the right to bare arms means in terms of the citizenry protecting itself, and
property and not simply in the form of an "organized militia"
2nd Amendment Annotations
Prior to the Supreme Court's 2008 decision in District of Columbia v. Heller,1 the courts had yet to definitively state what right the Second
Amendment protected. The opposing theories, perhaps oversimplified, were (1) an "individual rights" approach, whereby the Amendment protected
individuals' rights to firearm ownership, possession, and transportation; and (2) a "states' rights" approach, under which the Amendment only
protected the right to keep and bear arms in connection with organized state militia units.2 Moreover, it was generally believed that the Amendment
was only a bar to federal action, not to state or municipal restraints.3
However, the Supreme Court has now definitively held that the Second Amendment protects an individual's right to possess a firearm unconnected with
service in a militia, and to use that weapon for traditionally lawful purposes, such as self-defense within the home. Moreover, this right applies not
just to the federal government, but to states and municipalities as well.
In Heller, the Court held that (1) the District of Columbia's total ban on handgun possession in the home amounted to a prohibition on an entire
class of "arms" that Americans overwhelmingly chose for the lawful purpose of self-defense, and thus violated the Second Amendment; and (2) the
District's requirement that any lawful firearm in the home be disassembled or bound by a trigger lock also violated the Second Amendment, because the
law made it impossible for citizens to use arms for the core lawful purpose of self-defense.
The Court reasoned that the Amendment's prefatory clause, i.e., "[a] well regulated
Militia, being necessary to the security of a free State," announced the Amendment's purpose, but did not limit or expand the scope of the operative
clause, i.e., "the
right of the people to keep and bear Arms, shall not be infringed." Moreover, the prefatory clause's history comported with the Court's
interpretation, because the prefatory clause stemmed from the Anti-Federalists' concern that the federal government would disarm the people in order
to disable the citizens' militia, enabling a politicized standing army or a select militia to rule.
Further, the Court distinguished United States v.Miller,4 in which the Court upheld a statute requiring registration under the National Firearms Act
of sawed-off shotguns, on the ground that Miller limited the type of weapon to which the Second Amendment right applied to those in common use for
In McDonald v. Chicago,5 the Court struck down laws enacted by Chicago and the village of Oak Park effectively banning handgun possession by almost
all private citizens, holding that the Fourteenth Amendment incorporated the Second Amendment right, recognized in Heller, to keep and bear arms for
the purpose of self-defense.
The Court reasoned that this right is fundamental to the nation's scheme of ordered liberty, given that self-defense was a basic right recognized by
many legal systems from ancient times to the present, and Heller held that individual self-defense was "the central component" of the Second
Amendment right. Moreover, a survey of the contemporaneous history also demonstrated clearly that the Fourteenth Amendment's Framers and ratifiers
counted the right to keep and bear arms among those fundamental rights necessary to the Nation's system of ordered liberty.