Constitution 101 - Second Amendment

July 22, 4:46 PMHouston Law and Politics ExaminerDustin Sachs

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 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.”

          Second Amendment, U.S. Constitution

With the recent hearings into the nomination of Federal Appellate Court Judge Sonia Sotomayor to fill the U.S. Supreme Court seat being vacated by retiring Associate Justice David Souter, several constitutional issues are once again entering the halls of public debate. While the First and Fourth Amendments will consistently be debated, debate over the Second Amendment seems to be elevated during the nomination process. In the case of Judge Sotomayor, the debate over the Second Amendment was catalyzed by her recent decision in Maloney v. Cuomo, a decision from the Federal 2^nd Circuit Court of Appeals.

Debate over the Second Amendment has been raging since shortly after it was included in the Constitution and ratified by the states as a part of the Bill of Rights. In the 1897 case of ROBERTSON v. BALDWIN, 165 U.S. 275, the Supreme Court state that,

The law is perfectly well settled that the first 10 amendments to the constitution, commonly known as the 'Bill of Rights,' were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, … the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons.”

This dictum, or comments that are unrelated to the actual decision of the court, in the Robertson case, serves as one of the earliest clarifications of the often labeled “fundamental right” to bear arms.

It was in the case of United States v. Miller, 307 U.S. 174, that the Supreme Court opined on the history and intent of the Second Amendment.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense.  And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

In 2008, the Court ruled on a case of “first impression”. In D.C v Heller, the Court acknowledged for the first time that the right to bear arms is a right of the individual, not limited to the “well regulated militia” phrase. However, the Court did acknowledge that the right is not without reasonable limits.

What do you think? Does the Second Amendment give individuals the right to bear arms? Should there be limits?