The Second Amendment | National Constitution Center | Khan Academy

Hi, this is Kim from Khan Academy, and today I'm learning about the Second Amendment to the US Constitution, which states that 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. To learn more about the Second Amendment, I talked to two experts.

Alan Gura is a lawyer who successfully argued two landmark Second Amendment cases before the Supreme Court. Adam Winkler is a professor at UCLA Law and the author of "Gunfight: The Battle over the Right to Bear Arms in America."

So, Professor Winkler, why did the framers include an amendment on the right to keep and bear arms?

Well, really, there's been some debate over what the meaning of the right to keep and bear arms is, but the most common view—and the view supported by the United States Supreme Court—is that the Second Amendment protects individual liberty, in particular the right to keep and bear arms for self-defense. Back in the founding era, the framers were concerned about self-defense in terms of armed state militias made up of common citizens who would prevent federal overreach.

The federal government wouldn't be able to run roughshod over the liberties of the people because of these armed state militias. The Second Amendment was in part about protecting those armed state militias. Indeed, the fear behind all of the Bill of Rights was that the Constitution gave the new federal government too much power, and the federal government would use that power to inhibit liberty.

When we look at the text, the first thing that people should focus on is the phrase "the right of the people," and in particular the words up before "right." I think that might be actually the most important word in the amendment because what it tells us is that the right of the people, which is the subject of this amendment, is a pre-existing right.

The fact that this was a pre-existing right tells us that the framers thought that there was something out there in their legal system that they were preserving against violation. In fact, that is the case in English law: since well before the Revolution, it had been settled and determined that people had an individual right to have arms for self-protection. This right was understood to enable people to protect themselves both against criminal private violence and as well as the right of people to protect themselves against encroachments upon their liberties by a tyrant or by a misguided king.

This was a right that the framers were well-acquainted with in English law, and they were very perturbed that the British, during the time of the Revolution, were violating this right. There were various instances of the British disarming Americans, obviously in an attempt to keep the colonists from revolting and to prevent them from resisting the king.

The Battle of Lexington and Concord, of course, which started the Revolution, was nothing but a British march upon the armories in those towns in an attempt to suppress the rights of arms. So, what you saw was when the time came for a Bill of Rights, five out of seven states proposed a bill of rights. The only provisions common in all the demands for a Bill of Rights were the right to religious freedom and the right to arms.

Now, the framers were not necessarily concerned about the sort of modern gun control which is in controversy today. Today we have a different kind of self-defense that we generally think about with the Second Amendment, and that's about individuals defending themselves against criminals. It's a very personal kind of liberty—defending yourself against someone trying to take away your life, your health, your property, or the life of your loved ones.

One thing that I think to remember is that this kind of change in the meaning of a constitutional amendment over time is very common among our constitutional rights, as we take the underlying principles that are embodied in the text and we apply them to modern circumstances.

What about in this early period with the Articles of Confederation? Did state constitutions also protect the right to bear arms?

Yes, there were state constitutions that protected the right to bear arms. Most notably, the Pennsylvania Constitution, Article 13 of the Pennsylvania Constitution, provided, quote, "that the people have a right to bear arms for the defense of themselves and the state." Vermont's Constitution, the following year, Chapter 1, Article 15, copied that language. You would see other late 18th-century, early 19th-century constitutions keep this language or some version of it.

What you would notice is that this language, of course, talks about the two dimensions of the right to bear arms: the people have a right to bear arms for the defense of themselves—that can only be interpreted as self-defense—and also for the defense of the state. That is, they can use those arms that they individually have and gather together to work to defend the society from some force that's attacking them.

This is really fascinating. So, my background is in US history, and I know that one of the reasons that the framers decided that they needed a constitution that would change the form of the US government from what it had been under the Articles of Confederation was Shay's Rebellion, when a group of armed farmers from Western Massachusetts marched on Springfield. They had kind of taken their military past as a militia in the Revolutionary War and then turned that against the new US government instead of the British government.

Did the framers have any reservations about trying to protect militias in light of Shay's Rebellion?

The founders did have concerns about armed militias, as exemplified by Shay's Rebellion. They were worried about self-proclaimed militia groups—basically armed uprisings in disguise—that claimed the mantle of a militia but were really just troublemakers who were taking up arms. That was kind of how Shay's Rebellion was thought of at the time.

That's why, when we think about the Second Amendment, we should focus on that language the framers were sure to include, which is that the militias must be well-regulated. The Second Amendment itself says, "a well-regulated militia, being necessary for the security of a free State, the right of the people to keep and bear arms shall not be infringed." They understood that there was a militia of common citizens who took up arms to help defend the state and nation, but they recognized that the militia must be well-regulated—disciplined, orderly, subject to appropriate command.

It wasn't a right for any self-proclaimed group of radicals to get together and grab their guns. It was instead a right to have an orderly state militia, which was an important source of national defense at the time of the founding era.

So, I see that the Second Amendment and the Third Amendment, which bans the government from quartering soldiers in people's houses, both reflect fears about standing armies and also the dangers of having very strong government military power. But today we have a very strong government military power and a standing army. So, to what extent are those concerns still relevant today?

Those concerns are still relevant today. We're very blessed in America that we have a long tradition of civilian control over the military, and in our culture, the military has not been used to suppress the people—that's our experience. But it has been the experience, sadly, in many other places, including today.

What the Second Amendment reflects is the notion that the government should not have a monopoly on force. There has to be some means that people might still retain the ability to act to defend themselves, whether that's against a private individual, felon, miscreant, or whether it's against something more nefarious. Our understanding of what's necessary for national defense is very different than it was in the founding era, because our society is so much different.

You don't have militias of ordinary citizens the way we once did back in the founding era, and we don't have troops occupying people's homes the way the founders did. But nonetheless, I think the Second and Third Amendments both have principles embodied in that text that remain relevant for today and should not be thought of as dead letters just because the particular concerns that gave rise to them no longer remain in our concerns.

The principles they embody are more important and more enduring. We have been blessed with peaceful transitions of power with a vibrant democracy. Perhaps at least some aspect of our happy experience relative to those of our friends and ancestors in Europe is that we do have a culture that includes the widespread private arms, and that may have a beneficial effect in making sure that everybody plays by the rules, observes normal political conventions, and absorbs the norms.

So, what are some of the major Supreme Court cases that have shaped our understanding of the Second Amendment?

The first one was a case called United States vs. Miller that arose in the 1930s. In Miller, you had a situation where an individual was a gangster, and he was caught with a sawed-off shotgun, which at the time, and still now, does require a special tax stamp that Mr. Miller did not have. He argued that the Second Amendment secured his right to this weapon.

The government took the case to the Supreme Court, and at the conclusion of the somewhat confused opinion, the Supreme Court remanded the case back to the district court for a determination as to whether or not the sawed-off shotgun was an arm of the type whose possession is protected by the Second Amendment. Subsequently, Mr. Miller was murdered, so perhaps he needed a gun of some kind after all, but we never got the answer to that question.

I would read that case, as other people do, and say look, obviously the Supreme Court thought there was some individual right to arms. If the court had held that there's no individual right to arms, that would have been a much simpler opining. They would have just said so, and that would have been the end of the matter. But instead, because more evidence was needed relating to whether or not this was an arm of the type that Mr. Miller could possess, that shows that there was some right there at issue.

Much more helpful, of course, is the case that I argued in the Supreme Court, DC vs. Heller, which was a coherent, detailed, fully briefed, and exhaustively opined matter that struck down various Washington DC gun control laws. The main laws at issue in Heller were a District of Columbia law that banned the possession of all handguns by people effectively and also a law that prohibited people from having operative firearms in their home.

You could have a long gun, a rifle, or a shotgun in your home in DC, but you could never render that operational for use in self-defense inside your home. Oddly enough, you could use it in self-defense in a place of business, just not at your home.

The most important case on the Second Amendment is District of Columbia against Heller, where the court held for the very first time that the Second Amendment protects an individual right to bear arms and struck down a gun control law. That was a very important case—a landmark ruling that has led to many, many, many court cases challenging the constitutionality of a wide number of gun control laws.

The Supreme Court has not again stepped into the Second Amendment, with one exception. The court, in a case called McDonald vs. City of Chicago, held that the Second Amendment applied equally to the federal government and to the state and local governments. One thing to remember about our constitutional rights is that they don't automatically apply to the state and local governments, but the McDonald case held that the Second Amendment and the principles of the Second Amendment nonetheless apply to the states as well.

That's pretty common as well. Over the course of the 20th century, the Supreme Court has held that nearly all of the provisions of the Bill of Rights apply equally to the state and local governments.

How about limits on the Second Amendment? I mean, I couldn't own a tank, right? What sort of limits may the government place on the right to keep and bear arms?

Well, the Second Amendment, like our other rights, has some limitations. The first limitations are, of course, as with all rights, given to us by the scope of the actual rights. There are many things that simply aren't included in a particular right.

The right of free speech, for example, guarantees you the right to speak in some ways, but perjury is speech, terroristic threats are speech, and extortion is a form of speech. None of those are traditionally protected, and likewise, there are going to be some arms that are going to fall outside of Second Amendment protection.

The Heller case tells us how to go about discovering those limits. The Amendment, we are told, presupposes that people will have arms that people would expect to find in common use for traditional lawful purposes. While a handgun or a rifle is the type of arm that people would keep for self-defense, for hunting, or for sport, a tank or a bazooka is usually not something that you would wish to access for some traditionally recognized lawful activity.

Right? I mean, very few people would use a tank to defend themselves against a mugger on the street. As a matter of practicality, even if we didn't have a Second Amendment, there's no possible way we're going to disarm the entire civilian population, so the guns are here to stay.

The question is, how can we exist with civilian armament and good and effective gun control? I think that history and tradition can provide some of those answers. In the same way that we try to understand what the text of the Constitution means and what are the principles that that text embodies, we look to history and tradition—how Americans lived under that Constitution over these 200-odd years.

We should also look to that history and tradition in seeing the limits of those institutional rights. One thing I think is very clear from the history and tradition of gun rights and gun regulation is that there's ample room to regulate firearms. The founding fathers had gun control laws.

We had gun control laws in the Wild West, even though that was the heart of America's gun culture. We've had gun control laws all through American history, and they're part of the story of the Second Amendment as much as the six-shooter and the right to bear arms.

So we've learned that the framers' concern over protecting the right to bear arms originated in the experiences of the American Revolution, in which militias played a central role in winning independence for the United States.

But a lot has changed since the Revolution. The US military has grown, and arms have gotten a lot more powerful. Alan Gura suggests that the lack of a government monopoly on force is a key component of the peaceful transitions of power that characterize American democracy.

Adam Winkler, however, argues that there has always been some form of gun control in the United States, even in the Wild West. To learn more about the Second Amendment, visit the National Constitution Center's interactive Constitution and Khan Academy's resources on US government and politics.