Breaking Down the Second Amendment – Part Two

This post is a continuation of Breaking Down the Second Amendment – Part One.


The Second Amendment and the Inalienable Right to Self-Defense by Nelson Lund

In this article, Professor Lund provides an overview of the historic context of the Second Amendment when it was adopted in the Bill of Rights. He explores early-American distrust of standing armies and preference for militias, early interpretations of the plain wording of the second amendment, developments in gun control legislation, and case law including the landmark 2008 Supreme Court case District of Columbia v. Heller  that ruled that “the original meaning of the Second Amendment protects a private right of individuals to keep and bear arms for the purpose of self-defense.”


Is the Second Amendment Becoming Irrelevant? by Adam Winkler for the American Constitution Society

In this symposium paper for the American Constitution Society, Professor Winkler argues that recent trends in state laws have moved to become more permissive with respect to gun ownership, therefore rendering the Second Amendment less relevant. The piece seems to dismiss recent emergence of second amendment cases as fueled by political rhetoric.


The Second Amendment and the Post-Scalia Court

by Joseph Greenlee for the Federalist society

Written after the passing of Justice Antonin Scalia, founder of the Federalist Society, and author of the majority opinion in  District of Columbia v. Heller, the author contemplates whether a post-Scalie court might strike down the ruling in Heller where the Court struck down a handgun ban that applied in the home and explicitly held that the Second Amendment codified a pre-existing individual right. The piece expresses concern about misapplication of the two-part test established in Heller, “which first determines whether the challenged law burdens conduct falling within the scope of the right, and if so, then applies the appropriate form of heightened scrutiny to the challenged law.” Further, the piece expresses concern about what could happen if the Court declines to take up lower court rulings that weaken the interpretation of the second amendment.


Overview of the Second Amendment from the History Channel

Exploring both sides of gun control debate this piece lays out a sketch of how the Second Amendment was proposed by James Madison to establish the rights of states vs. the federal government and to establish that the government did not have the authority to disarm citizens.

Breaking Down the Second Amendment – Part One

Each time there is an incident involving firearms, debates rage over the Second Amendment of the United States Constitution and whether new gun laws schold be promulgated. However, many people do not know the history of the Second Amendment or how it applies.

Simply put, the Second Amendment protects the right of citizens to keep bear arms. The full text of the Second Amendment 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.” In more simple terms, this amendment protects the rights of citizens to “bear arms” or own weapons such as guns. Although there is no description of what specifically “arms” entails, our founding fathers certainly included guns within the definition of “arms.”


State constitutions also affirm this right with their own provisions.  In Maine, the state constitution goes further than the US Constitution, asserting that the right to keep and bear arms “shall never be questioned.”

In this piece we present a brief overview of recent writings on the Second Amendment to provide context for people who wish to discuss and debate its application.


Amendment II: Right to Bear Arms

Presenting a thorough yet concise examination of the Second Amendment, the authors frame the debate over the individual right established in the Second Amendment. Key passages include:

  • Implicit in the debate between Federalists and Anti-Federalists were two shared assumptions. First, that the proposed new Constitution gave the federal government almost total legal authority over the army and militia. Second, that the federal government should not have any authority at all to disarm the citizenry. They disagreed only about whether an armed populace could adequately deter federal oppression.
  • Much has changed since 1791… Civilians no longer expect to use their household weapons for militia duty, although they still keep and bear arms to defend against common criminals (as well as for hunting and other forms of recreation).
  • Two viewpoints on the Second Amendment:
    • NOT A SECOND CLASS RIGHT: THE SECOND AMENDMENT TODAY BY NELSON LUND – The right to keep and bear arms is a lot like the right to freedom of speech. In each case, the Constitution expressly protects a liberty that needs to be insulated from the ordinary political process.
    • THE REASONABLE RIGHT TO BEAR ARMS BY ADAM WINKLER Gun control is as much a part of the Second Amendment as the right to keep and bear arms. The text of the amendment, which refers to a “well regulated Militia,” suggests as much.


Check back soon for Breaking Down the Second Amendment – Part Two!