Refresher Course: What does the Second Amendment actually say?

Gun Rights

Every other Tuesday, Civics 101 hosts, Hannah McCarthy and Nick Capodice, join NHPR’s All Things Considered host Julia Furukawa to talk about how our democratic institutions actually work.

The Second Amendment has been reinterpreted throughout U.S history. Nick joins Julia this week to talk about what the Second Amendment meant when it was ratified and how it’s changed over time.

You can listen to Civics 101 here, or wherever you get your podcasts.

Transcript

‘The right to bear arms’ — that’s what most people know when we think of the Second Amendment. But what does the Second Amendment say in its entirety? 

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All right, I’ll give you the exact words. It is as thus, ‘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.’

Let’s break it down. What’s a militia and why is it in the Second Amendment?

The militia was like our first army, basically. After the Revolutionary War was over, the Continental Army was disbanded and militias were how we defended ourselves. So if you were a white man between the ages of 18 and 45, you were obliged to keep and bear arms. And bearing arms meant being in the militia. You had to have a government approved rifle, you had to have a canteen, you had to have all the trappings of war, Julia. You had to be prepared at a moment’s notice to drop everything in your personal life and go muster, go serve in the militia. You were subject to frequent inspections of your rifle and all your stuff by government officials. They were always checking to make sure that you were ready

How did the Second Amendment turn from gun rights pertaining to service in a militia to what we know today, an individual’s right to own a gun?

Yes, there is a lot of debate about the framers’ intents when it comes to the Second Amendment. But if we’re talking modern history, the last 100 years or so, the Second Amendment was not tied in any way to individuals owning a gun until the 1980s. To set the stage, let me tell you about a Supreme Court decision in the 1930s. It’s called US v. Miller, by the way. There’s a guy who illegally owned sawed off shotguns, and he was arrested and he said, ‘Hey, this is unconstitutional because of my Second Amendment rights.’ And the Supreme Court unanimously said, ‘Hey, buddy, unless you’re in a militia, this is not relevant.’

But here’s when the big change happened. It happened when the NRA—which hitherto had been a relatively small organization created in the wake of the Civil War to help the militia shoot better—had what’s called the Revolt at Cincinnati. In 1977, hardliner pro-gun members took over the organization in Cincinnati. They became a political pro-gun ownership organization.

And if you watch documentaries about the NRA from like the 1970s, you’re not going to hear once, a reference to the Second Amendment. There was a campaign to tie the Second Amendment to gun ownership, and that was in the 1980s. There’s one quote that I’ve got to get out here, Julia. It’s from former Chief Justice Warren Burger. And he said, and I quote, ‘The gun lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American people by special interest groups that I have seen in my lifetime.’

Strong words…

Strong words from a former chief justice. He didn’t mince around.

Where are we now when it comes to the courts and the Second Amendment?

The big modern Second Amendment case was District of Columbia v. Heller from 2008. That Supreme Court decision tied gun ownership to the Second Amendment. The justices talked a lot about history in their opinion. They looked at interpretations of weapon ownership going back to the 1700s. But on the other side, the justices focused on the ownership part and not the staggering amount of regulation that existed in those times. So, yes, there is a place for examinations of history when it comes to gun ownership.

But as a recent guest on a show for another episode, Morgan Marietta, told me, examining this requires every American to make a decision about whether they think the Constitution is a living document or a legal doctrine. Does it change with us, with our times? And that’s something you just got to choose for yourself.

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