(Visit the NRA-ILA Second Amendment Center at:http://www.nraila.org/Issues/secondAmendment.aspx http://www.nraila.org
The Second Amendment
On June 26, the Supreme Court ruled in District of Columbia v. Heller that the Second 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"— protects a purely individual right, as do the First, Fourth and Ninth Amendments. "Nowhere else in the Constitution does a 'right' attributed to 'the people' refer to anything other than an individual right," the court said. "The term ['the people'] unambiguously refers to all members of the political community."
The court's 5-4 majority rejected the notion pushed by D.C. officials and gun control supporters in Heller —taken from the Kansas Supreme Court's decision in Salina v. Blaksley (1905)—that the amendment protects only a privilege to possess arms when serving in a militia. All nine justices rejected gun control supporters' alternate and mutually exclusive idea—invented by the U.S. Court of Appeals for the 3rd Circuit in U.S. v. Tot (1942)—that the amendment protects only a state power (a so-called "collective right") to maintain a militia.
Citing a previous decision by the court, recognizing that the right to arms is individually-held, the court noted, "As we said in United States v. Cruikshank (1876), '[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed.'"
The court also declared that the Second Amendment protects "the individual right to possess and carry weapons in case of confrontation," including "all instruments that constitute bearable arms." It said that people have the right to keep and bear handguns (the type of arm at issue in Heller), because "[T]he inherent right of self-defense has been central to the Second Amendment right. . . .Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home 'the most preferred firearm in the nation to 'keep' and use for protection of one's home and family,' would fail constitutional muster."
As demonstrated by the vast majority of research on the subject, the court's ruling is consistent with the Second Amendment's history and text, the statements and writings of the amendment's author, James Madison, and other statesmen of the founding period, and the writings of respected legal authorities of the 19th century. Constitutional scholar Stephen Halbrook has noted that there is no evidence that anyone associated with drafting, debating and ratifying the amendment considered it to protect anything other than an entirely individual right.
Madison, who introduced the Bill of Rights in Congress, said that the amendments "relate first to private rights." In The Federalist #46, he wrote that the federal government would not be able to tyrannize the people, "with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by [state] governments possessing their affections and confidence." In The Federalist #29, Alexander Hamilton wrote, "if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens."
Supreme Court Justice Joseph Story, in his Commentaries on the Constitution (1833), still regarded as the standard treatise on the subject, wrote, "the right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic."
In U.S. v. Miller (1939), the most recent of the important Second Amendment-related Supreme Court cases prior to Heller, the court recognized, as it did in U.S. v. Cruikshank (noted above), that the right to arms is individually-held and not dependent upon militia service. Had the court believed the amendment protected only a militiaman's privilege or a state power, it would have rejected the case on the grounds that the defendants were neither actively-serving militiamen or states. As the Heller court noted, the Miller court never questioned the defendants' standing. It questioned only whether a short-barreled shotgun had "a reasonable relationship to the preservation or efficiency of a well regulated militia," which it described as private citizens "bearing arms supplied by themselves and of the kind in common use at the time."
As indicated in the Heller decision, the Supreme Court has always recognized that the Second Amendment protects, and was intended by the Framers to protect, a purely individual right of individuals to keep and bear arms useful for defense, hunting, training and all other legitimate purposes.
(From the NRA-ILA: http://www.nraila.org/Issues/FactSheets/Read.aspx?ID=177
Firearms Fact Card, 2008
The Right to Keep and Bear Arms
The Second Amendment says:
"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."
The right to arms derives from the right of self-defense, and therefore is an individual right. Thomas Jefferson said, "No free man shall be debarred the use of arms." Patrick Henry said, "The great object is that every man be armed." Richard Henry Lee said, "To preserve liberty it is essential that the whole body of people always possess arms." Thomas Paine said, "[A]rms . . . discourage and keep the invader and the plunderer in awe."
James Madison, who introduced the Bill of Rights in the House of Representatives, said its amendments "relate first to private rights." Sen. William Grayson said the amendments "altogether respected personal liberty." Tench Coxe said the Second Amendment protected the people's "right to keep and bear their private arms."
The Supreme Court recognized the right to arms as an individual right in U.S. v. Cruikshank (1876), Presser v. Illinois (1886), U.S. v. Miller (1939) and U.S. v. Verdugo-Urquidez (1990). In Cruikshank, the Court said the right existed before the Constitution.
Constitutional scholar Stephen P. Halbrook has found no historical evidence that the amendment was intended to protect a "collective right" of states to arm militias, or a "sophisticated collective right" to use arms only when serving in a militia. Richard Henry Lee said the militia are "the people themselves." George Mason said the "the whole people" are the militia. In U.S. v. Miller, the Supreme Court described the militia as "civilians, primarily, soldiers on occasion . . . a body of citizens. . . . bearing arms supplied by themselves."
The National Guard is subject to absolute federal control (Perpich v. Dept. of Defense, (1990)). When federalized, it is not part of the militia. At other times, it is the "organized militia." At all times, the "unorganized militia" consists of other able-bodied males of age and certain other citizens.
In U.S. v. Emerson (2001), the U.S. Court of Appeals for the Fifth Circuit said the Second Amendment protects an individual right to arms, with "limited, narrowly tailored specific exceptions . . . not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country."
Recent Legislative and Judicial Issues
• BATFE Firearm Traces--"Gun control" supporters mischaracterize traces relative to gun bans, gun purchase limits, dealer restrictions and lawsuits against the gun industry. The Congressional Research Service warns that traces do not show how often specific types of guns are used in crimes, because traced guns are not representative of guns used to commit crimes, most guns used in violent crimes are not traced, and most traced guns have not been used in violent crimes.
• Firearm Trace Disclosure--NRA-supported federal legislation limits tracing information to law enforcement agencies conducting investigations. "Gun control" supporters want to misuse the information to sue the gun industry.
• Bureau of Alcohol, Tobacco, Firearms and Explosives--NRA supports legislation to prevent BATFE from revoking firearms dealers' licenses for insignificant technical violations.
• D.C.'s Gun Bans--NRA supports repeal of D.C.'s ban on handguns, carrying firearms at home without a permit, and having guns in operable condition at home (which prevents their use for home protection). The Supreme Court will render a decision about the bans in 2008, in District of Columbia v. Heller.
• Castle Doctrine – Thirty-three states have laws protecting the right of self-defense, by removing a person's "duty to retreat" from anyplace he has a legal right to be. Of these, 20 prohibit criminals and their families from suing people who injure the criminals in self-defense.
• "Assault Weapons"--NRA opposes renewal of the Clinton Gun Ban, as well as expanded legislation that would ban all semi-automatic shotguns, detachable-magazine semi-automatic rifles, and pump-action rifles and shotguns.
• Employees' Right to Transport Guns--NRA-supported laws in seven states prohibit employers from firing workers who leave guns locked in personal vehicles on company property.
• Gun Show Legislation--NRA opposes requiring registration of people who attend gun shows, and requiring background checks on private sales of guns unrelated to shows. Such legislation is aimed at prohibiting private gun sales altogether, as in California. All gun sales by dealers already go through the national instant background check.
• Registration and Licensing--Studies by the Library of Congress and the Centers for Disease Control and Prevention have shown these laws do not reduce crime. The Supreme Court has ruled that requiring felons to register guns violates the Fifth Amendment protection against self-incrimination. These laws have made it possible to enforce gun confiscation laws in foreign countries and in some U.S. states.
• "Smart" Guns--NRA opposes requiring guns to have expensive, unreliable features, such as grips that read your fingerprints before the gun will fire.
• "Ballistic Fingerprinting"--NRA opposes requiring that markings on bullets and cartridge cases fired from new handguns be entered into a database, which amounts to gun registration. In 2008, the National Academy of Sciences concluded that a national database of such markings was unworkable and should not be established. Maryland's State Police Forensics Sciences Division has recommended that the state's expensive, inefficient system be scrapped. California's Attorney General said that it was not technologically possible to enter all new guns in a database and provide useful information for investigators.
• "Microstamping" and "Encoded Ammunition"--NRA opposes requiring cartridge cases to be marked with serial numbers by the ammunition factory or by the gun, and registered to purchasers. It amounts to gun owner registration. Criminals could beat the system by using stolen guns and ammunition, disfiguring or switching barrels or other parts, reloading ammunition with fired brass, or by using guns that don't eject cartridge cases automatically.
• Mandatory Storage--NRA opposes requiring gun owners to install gun locks on all guns at home, which would prevent the use of guns for self-defense and be enforceable only by police home inspections.
• Right-to-Carry--The federal and 44 state constitutions, and the laws of every state recognize the right to use guns for defensive purposes. The 40 RTC states have 26% lower violent crime rates, on average. Carry permit holders are more law-abiding than the rest of the public. Guns are used for self-defense three to five times more often than for crimes. National crime surveys show that people who use guns to defend against violent crime are less likely to be injured than all other victims. A study for the Department of Justice found that 40% of felons do not commit crimes if they believe victims are armed.
"Gun Control" Doesn't Work
Studies by or for the Congress, the Department of Justice, the Congressional Research Service, the Library of Congress, the National Academy of Sciences, and the Centers for Disease Control and Prevention have found no evidence that "gun control" reduces crime, suicides or accidents in the U.S. or abroad.
More Guns, Less "Gun Control," and Less Crime
There are more guns (at least 250 million) and gun owners (70-80 million) in the U.S. than ever. During the last decade, "gun control" has been significantly reduced. Forty states have Right-to-Carry. The federal waiting period on handguns ended in 1998, in favor of the NRA-supported national instant check. Congress refused to renew the Clinton Gun Ban, allowing it to expire in 2004. All states have hunter protection laws, 47 have range protection laws, and 47 prohibit cities from imposing gun laws more restrictive than state law. Congress and 33 states have prohibited frivolous lawsuits against the firearm industry. Since 1991, total violent crime is down 38%, murder is down 42%, and robbery is down 45%.
NRA's 55,000 Certified Instructors and 12,000 Law Enforcement Instructors reach 800,000 people annually. NRA's Eddie Eagle GunSafe® Program has been used by more than 26,000 schools, law enforcement agencies, and civic groups to reach more than 21 million children since 1988. The accidental gun death rate has declined 91% since 1904.
• Privately owned firearms in the U.S.: Over 250 million, including upwards of 90 million handguns. The number rises by approximately 4 million annually. (BATFE)
• Gun owners in the U.S.: 70-80 million; 40-45 million own handguns
• American households that have firearms: Approx. 40-45%
• Hunters nationwide: 14.5 million (National Shooting Sports Foundation)
• NRA State Associations and Local Clubs: 10,000
• NRA Target Shooting Tournaments annually: 10,000
• NRA Certified Instructors and Law Enforcement Instructors: 62,000