2nd Amendment Overview PDF

The Second Amendment Second Amendment Overview  Key Questions for Class Why did the Founding generation enshrine the Second Amendment in the Bill of Rights? What was the Founding-era vision of the Second Amendment, an...

The Second Amendment Second Amendment Overview  Key Questions for Class Why did the Founding generation enshrine the Second Amendment in the Bill of Rights? What was the Founding-era vision of the Second Amendment, and how did America’s “Second Founding”—and the ratification of the Fourteenth Second Amendment after the Civil War—shape the Second Amendment Amendment’s meaning? Overview How has the Supreme Court interpreted the Second Amendment over time? Today, when can the government limit the individual right to possess guns and other firearms —and when can’t it? What are areas of constitutional debate over the Second Amendment today? The Second Amendment A well regulated Militia, being necessary to the security of a free Second State, the right of the people to keep and Amendment Overview bear Arms, shall not be infringed. The Second Amendment – Prefatory Clause A well regulated Militia, being necessary to the security of a free Second State, the right of the people to keep and Amendment Overview bear Arms, shall not be infringed. The Second Amendment – Operative Clause A well regulated Militia, being necessary to the security of a free Second State, the right of the people to keep and bear Amendment Overview Arms, shall not be infringed.  Core constitutional debates over the Second Amendment’s meaning: Does the Second Amendment protect a right to keep and bear arms only when reasonably connected with militia service? Second Amendment Or Overview Does the Second Amendment also protect a freestanding right to keep and bear arms?  Big Question When can the government limit the individual right to possess Second guns and other firearms—and Amendment Overview when can’t it? THE BRITISH ARMY IN THE COLONIES Second Amendment Overview STANDING ARMY Second Amendment Overview CITIZEN MILITIA THE QUARTERING ACTS Second Amendment Overview  The Third Amendment No Soldier shall, in time of peace be quartered in any house, Second Amendment without the of the Owner, nor in Overview time of war, but in a manner to be prescribed by law. Excerpts from The Declaration of Independence “kept among us, in times of Peace, Standing Armies without Second Amendment the Consent of our legislatures” Overview “affected to render the Military independent of and superior to the Civil power.” Excerpt from English Bill of Rights “raising or keeping a standing army within the kingdom in time Second Amendment of peace, unless it be with Overview consent of Parliament, is against law.”  Founding Vision The Second Amendment grew out of the popular belief in Founding- era America that standing armies Second Amendment posed a danger to liberty, and that Overview the better way to defend the nation while preserving freedom was the militia, composed of all able-bodied men of fighting age in the community. Excerpt from English Bill of Rights “subjects which are Protestants may have arms for their defence Second Amendment suitable to their conditions and as Overview allowed by law” THE CONSTITUTIONAL CONVENTION Second Amendment Overview THE CONSTITUTION Article I, Section 8 Second Congress shall have power… Amendment To provide for calling forth the Militia to Overview execute the Laws of the Union, suppress Insurrections and repel Invasions; THE CONSTITUTION Article I, Section 8 Congress shall have power… To provide for organizing, arming, and Second disciplining, the Militia, and for governing Amendment such Part of them as may be employed in Overview the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; THE CONSTITUTION Article I, Section 8 Second Congress shall have power… Amendment To raise and support Armies, but no Overview Appropriation of Money to that Use shall be for a longer Term than two Years; THE CONSTITUTION Article I, Section 8 Second Congress shall have power… Amendment To provide and maintain a Navy; Overview  DEBATES OVER STANDING ARMIES In the debates over the Original Constitution, the Federalists (supporting the new Constitution) and the Anti-Federalists (opposing it) battled over the threat of standing armies and the scope of the national government’s power over national security and citizen militias. Second Amendment Overview With the new Constitution, the national government is given broad authority to establish a peacetime standing army and to regulate the militia. The Constitution’s massive shift of power from the states to the national government in this context was a major objection to the new Constitution for the emerging Anti-Federalists. RATIFICATION DEBATES In The Federalist Papers, both Hamilton and Madison addressed the issue of standing armies and the Second militia. The central idea Amendment behind Alexander Hamilton’s Overview arguments was that the Constitution was necessary for national security reasons and thus standing armies were sometimes needed to secure the liberties of the people.  RATIFICATION DEBATES For Hamilton, the American Revolution showed that we shouldn’t Second Amendment rely on state-organized Overview militia for national defense. ALEXANDER HAMILTON  RATIFICATION DEBATES James Madison tried to chart a middle course between Hamilton and the Anti-Federalists. Madison agreed that standing Second armies were an essential Amendment Overview part of modern states and necessary to security. However, he added that what afforded Americans protection against foreign JAMES threats was not only a MADISON standing army, but the militia as well. Both were  RATIFICATION DEBATES Madison’s Main Point: The Anti-Federalist concerns about a national Second army overpowering the Amendment American people are Overview probably overblown. The American people are almost impossible to subdue. American militias were big, and the JAMES American people were MADISON armed.  RATIFICATION DEBATES At the same time, Anti- Federalist “Brutus” wrote many times about the anti- republican character of Second standing armies. For Brutus, Amendment the power of Congress to Overview raise and support armies at its pleasure in times of peace and war and to control the militia evinced a tendency BRUTUS toward consolidation of (THOUGHT TO BE NEW government and YORK’S ROBERT YATES) “destruction of liberty.”  RATIFICATION DEBATES The Second Amendment responds to the Anti-Federalist fears that Congress might use its power to “organize, arm, Second and discipline” the militia as an excuse Amendment to disarm the American people. Overview The Second Amendment prevents this.  Second Amendment Overview THE CIVIL WAR  THE CIVIL WAR AND RECONSTRUCTION Framing Question: How did the Civil War, Reconstruction, and the Second Founding transform debates over Second Amendment the Second Amendment and the right to keep Overview and bear arms? And specifically, why were gun rights so important to African Americans in the South following the Civil War?  THE BLACK CODES After the Civil War, white Southerners passed new laws—the Black Codes—which discriminated against African Americans and tried to impose the conditions of slavery on Second them again. As part of this move, these Black Amendment Codes tried to take away their arms. Overview  RESPONSE TO THE BLACK CODES “The black man has never had the right either to keep or bear Second arms; and the Amendment Overview legislatures of the states will still have the power to forbid it.” FREDERICK DOUGLASS  RESPONSE TO THE BLACK CODES “We, the people of the State of South Carolina, in Convention assembled,... ask that, inasmuch as the Constitution of the United States explicitly declares that the right to keep Second and bear arms shall not be infringed... that Amendment the late efforts of the Legislature of this state Overview to pass an act to deprive us of arms be forbidden, as a plain violation of the Constitution.” -Convention of African Americans in South Carolina  CIVIL RIGHTS ACT OF 1866 The Reconstruction Congress built new protections for African American gun rights into landmark laws like the Civil Second Rights Act of 1866. Amendment Overview Senator Lyman Trumbull specifically targeted a Mississippi law banning African Americans “from having fire-arms.” LYMAN TRUMBULL  FREEDMAN’S BUREAU ACT “laws... concerning personal liberty, personal security, and the acquisition, Second enjoyment, and disposition of estate, real Amendment and personal, including the constitutional Overview right to bear arms, shall be secured to and enjoyed by all citizens.”;  FREEDMAN’S BUREAU ACT “If the cabin door of the freedman is broken open and the intruder enters for purposes as vile as Second were known to slavery, Amendment then should a well-leaded Overview musket be in the hand of the occupant.... Every man... should have the right to bear arms for the defense of himself and his SAMUEL family and his POMEROY homestead.” “[A] Winchester rifle should have a place of honor in every black home…When the white man…knows he runs as great a risk of biting Second Amendment the dust every time his Overview African-American victim does, he will have a greater respect forIDA B. WELLS African-American life.” THE 14TH AMENDMENT (1868) The 14th Amendment was ratified in 1868. In the ensuing decades, the Supreme Court would decide cases that limited its reach— including in the context of gun Second rights. Amendment Overview For instance, take United States v. Cruikshank (1876). This case arose out of one of the largest—if not the largest—incidents of white violence against African Americans during Reconstruction, the Colfax Massacre in April 1873.  CRUIKSHANK V. UNITED STATES (1876) Facts of the Case: This case arose out of one of the largest—if not the largest—incidents of white violence against African Americans during Reconstruction, the Colfax Massacre in April 1873. The incident takes place in Louisiana. Second Amendment Both parties claimed victory after the election of 1872. Overview Two Governors and two state legislatures claiming legitimacy. The two sides tried to take control of the Colfax Courthouse. The Republicans (including the local African American militia) succeeded in occupying it—reinforced by armed supporters. The militia began arming and drilling—with many African Americans armed with the rifles they had carried as Union soldiers.  CRUIKSHANK V. UNITED STATES (1876) On April 13, 1873, a white mob—led by the Ku Klux Klan— stormed the courthouse. All told, a Second group of 150 white Amendment people attacked the Overview courthouse and eventually drove African Americans out of the building by setting fire to it. More COLFAX MASSACRE than 100 African Americans were shot and killed as they fled  CRUIKSHANK V. UNITED STATES (1876) The Outcome: William Cruikshank and others were prosecuted for these murders under the Enforcement Act of 1870. They were charged with infringing many constitutional rights, including Second Amendment rights, and some Second Amendment of them were convicted. Overview The Court unanimously rules that the suit was improper—throwing out the indictments against the alleged murderers.  CRUIKSHANK V. UNITED STATES (1876) Chief Justice Waite says that the national government does not have power to protect against Bill of Rights violations by Second private—as opposed to Amendment Overview government—actors. After all, the Fourteenth Amendment says “No state shall…” not “No one CHIEF JUSTICE shall…” (Lawyers call this MORRISON WAITE the “state action” requirement.)  CRUIKSHANK V. UNITED STATES (1876) “The right to bear arms is not a right granted by the Second Constitution nor does it Amendment depend on the constitution Overview for its existence and the Second Amendment only restricts the powers of the national government.” CHIEF JUSTICE MORRISON WAITE  HYPOTHETICAL Can a city effectively ban handguns within city limits? Second Amendment Overview District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010) VOTE NOW! DISTRICT OF COLUMBIA V. HELLER (2008) Facts of the Case: The challengers argued that a District Second of Columbia law Amendment effectively banning Overview handguns violated the Second Amendment. This case featured powerful originalist DICK HELLER opinions—tackling the Second Amendment’s text and the Founding-era history  DISTRICT OF COLUMBIA V. HELLER (2008) And the decision turned, in part, on the outcome of the debate over whether the Second Amendment protected a collective right (tied to militia service) or an individual right to keep and bear arms (that applied Second more generally). Amendment Overview If the collective rights side won, it would mean that governments had a great deal of discretion to regulate guns. If the individual rights side won, it would mean that the Second Amendment might place limits on a range of gun regulations that limit the rights of individuals.  DISTRICT OF COLUMBIA V. HELLER (2008) The Outcome: The Supreme Court—in a 5-4 decision—endorsed the individual rights view. For the majority, the Second Amendment grants an individual right to keep and bear arms—including personal handguns in the home— Second Amendment subject to reasonable regulation outside of the home. Overview Justice Antonin Scalia authored the majority opinion. Scalia argued that it’s clear from the Founding-era history that words like “arms” and “bear” referred to individual rights to own commonly held (so, widely owned and used) firearms.  DISTRICT OF COLUMBIA V. HELLER (2008) “Because a well regulated Militia is necessary to the Second Amendment security of a free Overview State, the right of the people to keep and bear Arms shall not be infringed.” JUSTICE ANTONIN SCALIA Excerpt from English Bill of Rights “subjects which are Protestants may have arms for their defence Second Amendment suitable to their conditions and as Overview allowed by law”  DISTRICT OF COLUMBIA V. HELLER (2008) Dissenting: The “distinctly military Virginia proposal is therefore revealing, Second Amendment since it is clear that Overview he considered and rejected formulations that would have unambiguously protected civilian uses JUSTICE JOHN of firearms.” PAUL STEVENS  MCDONALD V. CHICAGO (2010) Facts of the Case: Since D.C. is not a state and is governed by federal law, the Supreme Court in Heller was Second simply asked to apply the Second Amendment Amendment directly. By Overview challenging a similar handgun ban in Chicago, the McDonald case asked the key follow-up question: Does the 14th OTIS Amendment extend the Second MCDONALD Amendment’s key protections to state abuses? This question goes  MCDONALD V. CHICAGO (2010) The Outcome: In a divided 5-4 decision, the Supreme Court concluded that the 14th Amendment did extend the Second Amendment’s key protections to state abuses—and Second struck down the Chicago handgun ban. Amendment Overview The Court held that the right to keep and bear arms for the purpose of self-defense was “deeply rooted” in the nation’s history. And the Second Amendment was thus incorporated against the states through the 14th Amendment—meaning that the states could not infringe on that right.  SECOND AMENDMENT CASES These cases establish a core principle—The Second Amendment protects an individual right to gun possession for purposes of protecting one’s home. However, these cases also emphasize that the Second Amendment right isn’t absolute. Second Importantly, Justice Scalia’s Heller opinion acknowledged Amendment “longstanding prohibitions on the possession of Overview firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” It also limits Second Amendment rights to weapons in common use. So, the Heller Court affirmed the “historical tradition of