The following is a sample of "The Constitution Answer Man" (Peter D. Lepiscopo, Esq.), a service of OurConstitution.com which provides answers to YOUR questions about Constitutional law, the U.S. Constitution and other early documents which have provided and continue to provide the foundation for the greatest country on earth.

As the above question indicates, much controversy has arisen recently regarding the language of the Second Amendment1 and the interpretation of that amendment. Specifically, two areas of dispute exist: First, does the Second Amendment protect an individual right? Second, if so, what does that amendment protect? These issues will be addressed in turn.

1. The Second Amendment Protects An Individual Right
It is unfortunate that the principle that the Second Amendment protects an individual right is no longer "self evident." In the latter part of this Century a new thought has emerged: that the Second Amendment does not protect an individual right but rather is a right of the States. Consequently, it is necessary to first disprove this novel argument.

In his Commentaries on the Constitution of the United States,  Justice Story provides one, of many, reasons that a bill of rights is important: "It serves to guide, and enlighten public opinion, and to render it more quick to detect, and more resolute to resist, attempts to disturb private rights." Id. at §1858, Vol.III, p. 719 (emphases added).

Similarly, in a letter dated July 31, 1788, to James Madison, Thomas Jefferson conveys his thoughts concerning the need for a bill of rights to protect individual freedom: "I hope therefore a bill of rights will be formed to guard the people against the federal government, as they are already guarded against their state governments in most instances."

Regarding the Second Amendment, Justice Story referred to that amendment as "The right of the citizens to keep and bear arms" not a right of the States. In fact, Justice Story proclaimed the people's right to keep and bear arms as the "palladium of the liberties of a republic." Commentaries, supra, at §1889, Vol. III, p. 746 (emphasis added). It would be peculiar, indeed, to interpret the Bill of Rights as anything other than a document that protects individual freedoms.

The Second Amendment indicates that the "right to keep and bear arms" is a "right of the people." The phrase "right of the people" has been consistently and unequivocally interpreted by the U.S. Supreme Court to describe the citizens and their rights against government. For example, in United States v.
Verdugo-Urquidez, 494 U.S. 259 (1989), the Court concluded that the phrase "the people" is a term of art, which does not refer to rights vested in government but rather a class of persons who are part of the United States.  Specifically, the Court concluded that the phrase "the right of the people" is the same in the First, Second, Fourth, Ninth, and Tenth Amendments. Id. at 264-265.

This was the Court's position in the late Nineteenth Century, United States v. Cruikshank, 92 U.S. 542, 553 (1875), Presser v. Illinois, 116 U.S 252 (1885), Miller v. Texas, 153 U.S. 535 (1894), Robertson v. Baldwin, 165 U.S. 275 (1897); and has been affirmed most recently in Planned Parenthood v. Casey, ____U.S.____, 112 S. Ct. 2791 (1992).

Finally, this point is further confirmed by the fact that the Founders mentioned "the people" and "the States," separately in the Tenth Amendment, which distinguishes one from the other.

Based on the forgoing, it is clear from history and Supreme Court precedents that the Second Amendment protects an individual right (i.e., to keep and bear arms).

2. The Purpose of the Second Amendment
One way of divining meaning from provisions of the Constitution is to place them in juxtaposition with each other. In the case at Bar, the court must first determine what the purpose of the Second Amendment is before it can determine whether any constitutional violation has occurred (i.e., whether or not Appellants have standing).

Justice Story provides insight on the purpose of the Second Amendment by his separate discussions of Congress' power over the militia (see, Article I, Section 8, cls. 15 and 16) and the Second Amendment.

In his discussion of Congress' power over the militia, Justice Story identifies two defense purposes: (1) defense against insurrection; and (2) defense against foreign invasions. Commentaries, supra, §1196, Vol. III, p. 81.

In his discussion on the Second Amendment, Justice Story identifies three defense purposes as the basis of that amendment: (1) defense against insurrection; (2) defense against foreign invasion; and (3) defense against "domestic usurpations of power by rulers."  Commentaries, supra, §1890, Vol. III, p. 746. It is clear that from the third purpose it is reasonable to conclude that one important purpose of the Second Amendment is to enable the people to protect themselves against the federal government.

The distinction drawn by Justice Story is manifest: Article I, on the one hand, vests power in Congress to regulate the militia under its control; the Second Amendment, on the other hand, protects and insures the people's right to defend themselves against the federal government.

This principle is supported by the predominating suspicion that the Founders had regarding governmental abuse of power.  After all, the Founders' minds were fresh with memories of the Boston Massacre and of British Soldiers marching to Lexington to confiscate Massachusetts' black powder, along with other commercial and military injuries inflicted by King George and Parliament.

It is also important to note that Article I, section 8, provides that Congress shall have the power to "raise and support armies;" and Article I, section 10, prohibits States from keeping troops without Congress' consent. These provisions, coupled with the Supremacy Clause (Article VI), clearly placed the power to establish a standing army exclusively within the federal government.

In the Eighteenth Century, the term "standing army" was understood by the Founders and defined by dictionaries in use at the time to mean: An army of professional soldiers kept permanently on foot.  Conversely, the term "militia" had a different meaning, and the Founders understood this distinction: "A nonprofessional citizen army, which is not assembled on a permanent basis."

It was a generally accepted view of the Founders' that standing armies were the bane of  liberty. For example, in a letter dated April 21, 1778, sent from Valley Forge to John Banister, George Washington indicates that "standing armies are dangerous to a state."  Similarly, during the debates in the Constitutional Convention, on August 23, 1787, James Madison explains: "[T]he greatest danger to liberty is from large standing armies..."

This general opinion was expressed in more specific terms in Brutus IX:  "That standing armies are dangerous to the liberties of a people was proved in my last number -- If it was necessary, the truth of the position might be confirmed by the history of almost every nation in the world.  A cloud of the most illustrious patriots of every age and country, where freedom has been enjoyed, might be adduced as witnesses in support of the sentiment. But I presume it would be useless, to enter into a laboured argument, to prove to the people of America, a position, which has so long and so generally been received by them as a kind of axiom."

Finally, in a letter dated July 31, 1788, to James Madison, Thomas Jefferson indicated that it would be prudent to "abolish standing armies in time of peace..." Jefferson's Writings, supra, p. 46.

The point is: the Founders believed not in government (other than it being a necessary evil) but in individuals. Consequently, the Founders adopted the Second Amendment to protect the people from being disarmed by the federal government. Justice Story confirms this as one of its purposes: "One of the ordinary modes by which tyrants accomplish their purpose without resistance is, by disarming the people and making it an offense to keep arms."

If Congress makes certain guns illegal to possess, transfer, or manufacture then what can restrain Congress from declaring all guns illegal to possess, transfer, or manufacture?  This is precisely why gun owners are so cautious about submitting to government control of any type of weapon.

The Founders were well aware that any move by the government to disarm the people would not be attempted in one piece of legislation or presidential edict, but rather through a slow, methodical approach. This is why the Founders used the phrase "shall not be infringed" in the Second Amendment. The term "infringed," as it relates to rights, was understood by the Founders to mean: "to encroach on or upon." That is to say, to invade gradually. This is precisely what Congress did in Title XI of the Crime Bill by making some but not all firearms illegal to possess, transfer, or manufacture. This exercise of congressional power is specifically prohibited by the Second Amendment.

Although small in numbers, Supreme Court decisions are consistent: the Second Amendment is a restraint on the power of the federal government. In United States v. Cruikshank, 92 U.S. 588 (1876), and again in Presser v. Illinois, 116 U.S. 615 (1886), the Court held the Second Amendment to be a restraint on the federal government's ability to infringe upon the right to keep and bear arms.

The foregoing clearly demonstrates that the Second Amendment protects an individual right to keep and bear arms.

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