In light of recent mass shootings both at home and abroad, there is a renewed debate about the 2nd Amendment. What does it really mean? Is it outdated? Should we get rid of it completely?

I must preface this blog by stating that I am a firm supporter of the 2nd Amendment. However, I am not opposed to reasonable restrictions that do not unduly burden the individual. More on that later…

For now, let’s begin with the historical context of the 2nd Amendment. Some might ask, “Why is its historical context important, since we live in a very different time from when it was written?” Good question, to which there is a good answer: Precedence is a cornerstone of our judicial system, which has the Constitutional power of interpreting our laws. The historical context of a law or decision regarding its interpretation is paramount to future interpretations of the law, especially when considering whether to change or abolish it.

At the founding of the United States of America, the framers of the Constitution held a deep fear of standing armies. In their lifetimes, they had seen governments use standing armies to oppress their peoples. Naturally, they were hesitant to raise their own standing army and looked for ways to keep said army in check. They employed several methods within the Constitution of keeping check on the fledgling nation’s army, such as the following:

• Only Congress had the power “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years” (Constitution of the United States, Article I, Section 8)
• “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States” (Constitution of the United States, Article I, Section 2)
• “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.” (Constitution of the United States, Amendment II)

The Founding Fathers believed that, with the House of Representatives subject to reelection every two years, with their appropriation of money to the Army lasting no longer than two years, and with the civilian populace bearing their own arms, there would be sufficient check on a standing Army to prevent its misuse by the Government.

This forms the fundamental argument supporting the 2nd Amendment: The right of the people to bear arms against a potentially tyrannical government. The idea of the people having to defend themselves against their own government was not an abstract idea to the Founding Fathers; they had recently fought a lengthy war against an oppressive government and gained their independence.

The Founding Fathers chose specific wording in the 2nd Amendment, from which we can gain a further understanding of their intent. Let’s take a look at two phrases contained within it that form the basis for much of the discussion today: “A well regulated militia…” and “the right of the people…” It is vital to any intelligent discussion on the validity of the 2nd Amendment to understand what right the Constitution’s framers believed they were securing and for whom.

The militias of the time were comprised of every able-bodied male bringing his own arms to duty. While many believe that the National Guard today is the equivalent to the militias of the past, the National Guard is actually much closer to the standing armies of that day. Leading up to the Revolutionary War, there were hundreds of small militias, each controlled locally, often by just a small town. Training for these militias was often scant, on average about four days per year. And, as already stated, its membership was automatically every able-bodied adult male. There simply isn’t an equivalent to the militias of 200 years ago in today’s society.

Since militias no longer exist, and the 2nd Amendment clearly states its purpose is for a militia, then the 2nd Amendment no longer applies, right? Wrong. The second phrase I want to examine is key to this.

The Supreme Court has consistently ruled that the term “the people” used throughout the Constitution refers to the individuals residing in the country (US v. Verdugo-Urquidez and DC v. Heller) and that it does NOT refer to a governmental body or organization. Because of this, and particularly from the ruling in DC v. Heller, we know that the Supreme Court interprets the 2nd Amendment to be a right belonging to the individual, and not something conferred solely onto an organized body such as a militia. In the majority opinion, Justice Scalia writes, “The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.” (emphasis added).

The Founding Fathers intended that the right to bear arms belonged to the individual, not to a government-organized group, and the Supreme Court has recently upheld this view. The Founding Fathers also wished the civilian populace to have the capability of defending itself against an oppressive government. Is this still the case today? Surely our government could never oppress its people.

Again, history will guide us…Several years prior to the start of the Revolutionary War, Britain began a series of gun control actions against the American colonies. What started as a relatively reasonable and benign law (requiring a permit to import guns and gunpowder into the colonies) eventually led to the forceful disarmament of the colonists by British soldiers. It is important to note that, while simply requiring a permit does not unduly burden a prospective gun owner, the fact that the British government chose to issue no permits during his time effectively turned this “reasonable” law into an outright firearms ban. More recently, prior to and during World War II, our government entered the homes of tens of thousands of Japanese-Americans, confiscating their personal property (to include their firearms) and relocating them to internment camps.

Tens of thousands of law-abiding citizens were deprived of liberty, property, and due process by Executive Order. The fact that something like this has happened within the lifetime of Americans still with us today should give us pause. Regardless of how unlikely we believe it to be, it is possible that the government could oppress its people again. It is against this unlikely event that the Founding Fathers wrote into the highest law of the land the right to bear arms.