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The Second Amendment to the United States Constitution

When thoughts turn to the issue of the right to carry a handgun or any firearm for the purpose of self-defense, many people think of the language of the Second Amendment to the United States Constitution. The Second Amendment provides:

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.

This short and simple statement has provided the cornerstone for those who seek to protect and preserve the right of the citizens of this country to own, carry and use handguns and other firearms for all purposes intended by the Founders. For many individuals, the language of the Second Amendment is clear and simple. Like all of the provisions of the Bill of Rights, it exists to protect an individual right.

However, the language of the Second Amendment also has provided much of the ammunition for the those who would argue that the Second Amendment does not protect an individual right. They assert that the Second Amendment exists only to protect a state’s right to have a militia. The arguments under these gun grabbers’ collective or states’ rights arguments cannot survive honest constitutional scrutiny. People have rights. States have only delegated powers. Once again, there is no shortage of printed materials on this part of the firearms debate.

On November 2, 2001, the Fifth Circuit Court of Appeals (a federal appeals court) released one of the best researched and reasoned opinions on the history, scope, and meaning of the Second Amendment. In its decision in U.S. v. Emerson, 5th Cir. App. No. 99-10331, the Fifth Circuit rejected all of the "state’s rights" and "collective rights" arguments which have been advanced by gun grabbers. The Emerson court concluded that the Second Amendment was intended to and does exist to protect an individual right to keep and bear arms. Everyone interested in the Second Amendment should read the Fifth Circuit’s decision in Emerson. Until you have a chance to do so, here are some statements by the Court which are significant:

We conclude that Miller does not support the government's collective rights or sophisticated collective rights approach to the Second Amendment. Indeed, to the extent that Miller sheds light on the matter it cuts against the government's position. Nor does the government cite any other authority binding on this panel which mandates acceptance of its position in this respect. However, we do not proceed on the assumption that Miller actually accepted an individual rights, as opposed to a collective or sophisticated collective rights, interpretation of the Second Amendment. Thus, Miller itself does not resolve that issue. We turn, therefore, to an analysis of history and wording of the Second Amendment for guidance. In undertaking this analysis, we are mindful that almost all of our sister circuits have rejected any individual rights view of the Second Amendment. However, it respectfully appears to us that all or almost all of these opinions seem to have done so either on the erroneous assumption that Miller resolved that issue or without sufficient articulated examination of the history and text of the Second Amendment.

In the foregoing statement, the Fifth Circuit comments on the United States Supreme Court decision in U.S. v. Miller, which has been often misconstrued by gun grabbers as establishing a "collective right" under the Second Amendment rather than an individual right. Another significant aspect of the Fifth Circuit’s comment is that it recognizes that other federal appellate courts, which it refers to as its "sister circuits," have rejected the "individual rights" construction of the Second Amendment but the Fifth Circuit notes that its sister circuits often did so by misconstruing the Miller decision or otherwise without giving a careful historical analysis to this portion of the Bill of Rights.

The Fifth Circuit then examined the contextual meaning of the word "the people" as contained in the Second Amendment. In doing so, it concluded:

For the sophisticated collective rights model to be viable, the word "people" must be read as the words "members of a select militia". The individual rights model, of course, does not require that any special or unique meaning be attributed to the word "people." It gives the same meaning to the words "the people" as used in the Second Amendment phrase "the right of the people" as when used in the exact same phrase in the contemporaneously submitted and ratified First and Fourth Amendments.

There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words "the people" have a different connotation within the Second Amendment than when employed elsewhere in the Constitution. In fact, the text of the Constitution, as a whole, strongly suggests that the words "the people" have precisely the same meaning within the Second Amendment as without. And, as used throughout the Constitution, "the people" have "rights" and "powers," but federal and state governments only have "powers" or "authority", never "rights." Moreover, the Constitution's text likewise recognizes not only the difference between the "militia" and "the people" but also between the "militia" which has not been "call[ed] forth" and "the militia, when in actual service."

* * *

It appears clear that "the people," as used in the Constitution, including the Second Amendment, refers to individual Americans.

In the eyes of the Fifth Circuit, the phrase "the people" meant individual Americans not "states," "governments" or government organized "militias." The Fifth Circuit could find no rational basis for the claim by gun grabbers that the term "the people" means anything other than individual Americans.

In summarizing its research and findings on the issue, the Fifth Circuit wrote:

Given the political dynamic of the day, the wording of the Second Amendment is exactly what would have been expected. The Federalists had no qualms with recognizing the individual right of all Americans to keep and bear arms. In fact, as we have documented, one of the Federalists' favorite 1787-88 talking points on the standing army and federal power over the militia issues was to remind the Anti-Federalists that the American people were armed and hence could not possibly be placed in danger by a federal standing army or federal control over the militia. The Second Amendment's preamble represents a successful attempt, by the Federalists, to further pacify moderate Anti-Federalists without actually conceding any additional ground, i.e. without limiting the power of the federal government to maintain a standing army or increasing the power of the states over the militia.

This is not to say that the Second Amendment's preamble was not appropriate or is in any way marginal or lacking in true significance. Quite the contrary. Absent a citizenry generally keeping and bearing their own private arms, a militia as it was then thought of could not meaningfully exist. As pointed out by Thomas Cooley, the right of individual Americans to keep, carry, and acquaint themselves with firearms does indeed promote a well-regulated militia by fostering the development of a pool of firearms-familiar citizens that could be called upon to serve in the militia. While standing armies are not mentioned in the preamble, history shows that the reason a well-regulated militia was declared necessary to the security of a free state was because such a militia would greatly reduce the need for a standing army. Thus, the Second Amendment dealt directly with one of the Anti-Federalists' concerns and indirectly addressed the other two. While the hard-core Anti-Federalists recognized that the Second Amendment did not assure a well-regulated militia or curtail the federal government's power to maintain a large standing army, they did not control either branch of Congress (or the presidency) and had to be content with the right of individuals to keep and bear arms.

Finally, the many newspaper articles and personal letters cited indicate that, at the time, Americans viewed the Second Amendment as applying to individuals. This is confirmed by the First Congress's rejection of amendments that would have directly and explicitly addressed the Anti-Federalists' standing army and power over the militia concerns.

We have found no historical evidence that the Second Amendment was intended to convey militia power to the states, limit the federal government's power to maintain a standing army, or applies only to members of a select militia while on active duty. All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans.

We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training.

We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller.

While the Fifth Circuit’s opinion in Emerson is not binding in Tennessee because Tennessee falls within the jurisdiction of the Sixth Circuit, the Fifth Circuit’s decision remains one of the most detailed and well reasoned opinions on the meaning of the Second Amendment. Ultimately, the United States Supreme Court will address this issue and, in the opinion of most constitutional authorities, will follow an individual rights interpretation of the Second Amendment.

A historical analysis of the passage of the Fourteenth Amendment establishes that the Second Amendment establishes a threshold protection on the individual right to keep and bear arms which the individual states may not impair. Thus, to whatever extent the Second Amendment guarantees the right of individuals to keep and bear arms, the individual states and local governments may not enact laws or legislation that infringes the scope of the federal protection. Of course, this does not mean that these governments will not enact or seek to enforce unconstitutional laws – they do that on a regular basis.


HLO is a strong supporter of the Second Amendment and the rights protected in the Tennessee Constitution.

If you are a member of the National Rifle Association (NRA) or the Tennessee Firearms Association (TFA) you may be qualified to receive a discount on certain legal services with us. Please feel free to ask about our commitment to protecting all of our Constitutional rights.



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Last Update: 07/13/2010