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Interpreting the Constitution: The 2nd Amendment

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"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."

How should the 2nd amendment be interpreted?

  • Interpret based on present day circumstances
    • Violence in society, new technology
    • Tradition of guns for defense & sport
  • Interpret based on original Intent of the founders

Militias

  • Then composed of all the people, not always a part of the regular government
  • Standing armies distrusted, often used for oppression
  • Well-regulated militia--the term implies rules, not everyone doing their own thing

Bear arms

  • A military phrase
  • Note that 2nd amendment is right next to the 3rd which deals with quartering of soldiers
  • People--the term implies individuals

2nd Amendment and the Supreme Court--U.S. vs. Miller (1939)

  • National Firearms Act prohibited carrying sawed-off shotgun across state lines
  • Miller convicted
  • Contended Act unconstitutional based on 2nd Amendment
  • Gun control advocates view the opinion as supporting their position:
    • Court said: “the obvious purpose of the 2nd Amendment is to (support) state militias”
  • Gun rights advocates can interpret the opinion as supporting their views:
    • Court said: “No evidence that a sawed-off shotgun is necessary for militias.”
  • The courts have provided little guidance as to how the 2nd Amendment should be interpreted
  • The issue is political, with the NRA having had great influence
Copyright 2008, by the Contributing Authors. Cite/attribute Resource . factpetersen. (2007, October 19). Interpreting the Constitution: The 2nd Amendment. Retrieved January 08, 2011, from Free Online Course Materials — USU OpenCourseWare Web site: http://ocw.usu.edu/university-studies/u-s-institutions/interpreting-the-constitution-the-2nd-amendment.html. This work is licensed under a Creative Commons License Creative Commons License