How the Second Amendment Works


The Second Amendment In the 1800s
Duels, like this one between Alexander Hamilton and Aaron Burr, prompted the first gun control laws in the 1800s. Hulton Archive/Getty Images

The Second Amendment's inclusion of the preface about a well-regulated militia has led some to argue that its authors were mostly concerned about preserving militias as a check upon federal power. But others counter that the nation's founders also believed in an individual right to own a firearm. They point, for example, to Patrick Henry's statement in Virginia's constitutional debates that "The great object is, that every man be armed" [source: NRA-ILA].

But for much of the nation's history, that didn't matter, because guns were mostly thought of as an issue for the states. In the early 1800s, states tried to curb the custom of fighting duels and prevent squabbles among citizens from erupting into bloodshed by passing some of the first gun control laws. Those laws usually restricted pistols and knives, weapons that — unlike a musket — were easily concealed under a person's clothing.

Some citizens challenged those laws in court as being in violation of their rights, but in most cases, they lost. An 1840 court ruling in Alabama, for example, upheld the state's right to determine where and how citizens could carry guns, and noted that even though the state constitution also contained a right to bear arms, it was not a right "to bear arms upon all occasions and in all places" [source: Jancer].

In the 1842 case State v. Buzzard, the defendant was charged with carrying a concealed weapon, which was against Arkansas state law and he said the law infringed on this Second Amendment rights. The Arkansas Supreme Court ruled that both the Second Amendment and the state's constitution, which guaranteed white men the right to bear arms "for their common defense," really only applied to militias, and the "well regulated" clause meant that this right could be restricted for the common good [source: Pruden]. That ruling helped spread something called the collective rights theory, which we'll explain later.

After the Civil War, the Second Amendment took on a new significance. In the South, where African-Americans who were supposed to be equal under the Fourteenth Amendment now faced the threat of violence from whites, Republicans in Congress passed the Civil Rights Act of 1866 partly with the intention of assuring blacks the right to possess guns to protect themselves. Some scholars have argued that moment was when the right to bear arms started to evolve from militia membership into an individual right to self-defense, though that question wouldn't be settled by the Supreme Court for nearly another 150 years [source: Waldman].

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