LEGAL EASE
by Shane Givens and Summer McWhorter

Dec. 27, 2012

Interpreting the Second Amendment


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After the deadly attack in Newton, Conn. that took the lives of 20 children and numerous adults, many people are talking about gun control and what right the Second Amendment gives us, as citizens, to purchase and carry firearms.

Whenever the term “gun control” gets used by politicians, people from all walks of life express their opinion on the subject. It looks like the country is gearing up for a national debate on gun control, so this week we will explore some of the recent decisions of the United States Supreme Court when it comes to the Second Amendment.

First, here is the text of 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.”

In the past five years, the Supreme Court has issued two landmark rulings concerning the Second Amendment. In 2008, in District of Columbia v. Heller, the Court ruled that the Second Amendment gives individuals the right to possess a firearm and to use it for lawful purposes. One example of a lawful purpose is self-defense within a person's home. In this ruling, the Court also ruled that possession of a firearm does not require service in a militia. It is important to remember that the facts of this particular case involved handguns. This could possibly leave room for a test case concerning assault type weapons.

In 2010, in McDonald v. Chicago, the Court ruled that the Second Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. This cleared up some uncertainty in the wake of the Heller decision because in Heller the District of Columbia was involved, not a state. According to the Court's ruling, the Second Amendment applies to the individual states, as well as to the federal government. This case originally resulted from a Chicago ordinance that banned handguns and regulated rifles and shotguns. Chicago had passed a citywide handgun ban in 1982. The Supreme Court found the ban to be unconstitutional and the Court's ruling spelled out that the Second Amendment applied to local and state governments, as well as to the federal government.

Popular interpretation of the Second Amendment has changed through the years. One reason that the Heller case was so important was because it established an individual's right to bear arms. Many people have argued for years that the Second Amendment gave the right to bear arms to state militias. At one time, the “militia clause” trumped the “bear arms” clause. With the Heller decision, the Constitution was found to give individuals the right to bear arms.

The debate over gun control and the true meaning of the Second Amendment is not over. Arguments will be made on all sides. The real question is whether the Supreme Court will follow the path it has taken the past five years, or reverse course. Only time will tell.  


This column is intended for general information purposes only. The answers to most legal problems rely on specific facts of a particular situation; therefore, it is very important to see a lawyer when these situations arise. Please e-mail questions for future columns to
givenslaw@tds.net.