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Defining the Second Amendment, Supreme Court decisions add clarity

By Wayne McCormick, wmccormick@ktxs.com
Jennifer Kendall, jkendall@ktxs.com
Published On: Feb 18 2013 02:30:04 PM CST
Updated On: Feb 18 2013 08:30:26 PM CST
ABILENE, Texas -

The Second Amendment to the U.S. Constitution is only 27 words long, but its meaning has been debated for more than 200 years. It states, "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."

Constitutional scholars have their own beliefs about what exactly the amendment says.

Richard Rosen (pictured below) is a law professor at Texas Tech University in Lubbock, Texas, who was admitted to practice in front of the U.S. Supreme Court. "It’s unclear exactly what the framers meant here,” Rosen said. “I'm not sure that anyone has a definitive answer. If I received this from a student in a paper I'd certainly strike it out and ask them, ‘What the heck do you mean by this?’" 

In order to understand the Second Amendment it helps to break it down by looking at the individual words and each clause separately. The first few words read, “A well-regulated militia.”

What does that mean?

ROSEN "The term militia is a state-based military force composed of civilians who are mobilized in a time of national emergency, either for the defense of the state or the national government. And that’s what the founders thought of. The minutemen would be a good example of the militia,” Rosen said.

However, not everyone views the term "militia" the same. McMurry University Political Science Professor Dr. Paul Fabrizio (pictured below) has studied the U.S. Constitution extensively. He said there is still some debate about it. "You go back to the framers of the Constitution, the militia was able-bodied, male property owners that were white. And then there's this idea that came out of that that we're talking about members of the National Guard."

FABRIZIOL “So today, when we're talking about the militia, are we talking about the National Guard? Or are we talking about all able-bodied white men who have property? The court really hasn't come down and said, 'This is what it is,'" Fabrizio said.

Here’s where the Second Amendment gets even murkier: "The right of the people to keep and bear arms."

What do most constitutional scholars think that means? "The majority of the Supreme Court has held that it protects an individual’s right apart from the militia to possess arms, to keep arms at least in the home for the purpose of self defense,” Rosen said.

"The right to gun ownership people love the second part of it where it talks about the right of the people to keep and bear arms. To them that means you can't take away my right to own guns, and not only guns, but ammunition, and not only that, but any type of gun that I choose to own. So they take it literally,” Fabrizio said. 

Finally, the last four words of the amendment: "shall not be infringed."

What does "infringed" mean? Rosen said the Supreme Court thinks infringed means "you cannot prohibit people from possessing weapons, firearms, for certain purposes, and only certain types of firearms for certain purposes. Others would argue that the term infringed means the states’ ability to regulate a militia may not be impeded, may not be infringed upon."

The best way to try and understand the Second Amendment is to look at how the nation’s highest court, the U.S. Supreme Court, has ruled in cases involving guns. It wasn't really until the last decade or so that the Supreme Court began handing down some important, defining decisions on the Second Amendment.

Supreme Court 2 The two blockbusters were a 2010 decision on a case involving “McDonald v. the City of Chicago” and a 2008 ruling now called the “District of Columbia v. Heller.”

"There at issue was a District of Columbia law that essentially prohibited the possession of handguns in the home, even for self-defense," Rosen said.

The Heller decision held that the Second Amendment protects an individual’s right to possess a firearm for lawful purposes. However, Heller did not address the question of whether the Second Amendment extends beyond federal enclaves to the states. McDonald v. Chicago did.

"The city of Chicago essentially had the same type of gun regulation that the District of Columbia did. The city essentially prevented the possession of handguns," Rosen said.

McDonald determined that the right of an individual to "keep and bear arms" applies to the states. "There have been state gun control regulations since the founding of our nation. So, state regulation of firearms is not something new. It’s something that's existed since we became a nation," Rosen said. 

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.

That’s pretty much how the Second Amendment is viewed today. Of course, future court decisions may change that.

"It really comes down to a simple question: 'Are there absolute rights in the Constitution?' When the constitution says that you have, for example, freedom of speech, is that an absolute right? Can I say anything I want to? And the answer is no, there's limits on that. And so the Second Amendment is really about limits. Is in fact this right to keep and bear arms totally free, totally absolute? Or in fact is there limits on it? I think that both sides agree that there should be some reasonable limits. No one wants five-year-olds running around with guns," Fabrizio said. 

Rosen added, "The Second Amendment gives people the right to possess things that can actually kill. No other amendment is like that.” 

Click here to view a slideshow about the history of the Second Amendment.