- [Kim] Hi, this is Kim from Khan Academy.
And today I'm learning about the Second Amendment
of the US Constitution,
which states that 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.
To learn more about the Second Amendment,
I talked to two experts.
Alan Gura is a lawyer who successfully argued
two landmark Second Amendment cases
before the Supreme Court.
Adam Winkler is a professor at UCLA Law
and the author of Gunfight:
The Battle over the Right to Bear Arms in America.
So, Professor Winkler,
why did the Framers include an amendment
on the right to keep and bear arms?
- [Adam] Well, really, there's been some debate
over what the meaning of the right to keep and bear arms is.
But the most common view,
and the view supported by the United States Supreme Court,
is that the Second Amendment protects individual liberty,
in particular the right to keep and bear arms
for self-defense.
Back in the Founding Era,
the Framers were concerned about self-defense
in terms of armed state militias
made up of common citizens
who would prevent federal overreach.
So the federal government wouldn't be able to run
over the liberties of the people
because of these armed state militias.
And so the Second Amendment was in part
about protecting those armed state militias.
Indeed, the fear behind all of the Bill of Rights
was that the Constitution
gave the new federal government too much power
and the federal government would use that power
to inhibit liberty.
And so that was the self-defense of the Founding Era.
- [Alan] When we look at the text,
the first thing that people should focus on
is the phrase 'the right of the people,'
and in particular the word 'the' before right,
I think that might be, actually,
the most important word in the amendment.
Because what it tells us is that the right of the people,
which is the subject of this amendment,
is a pre-existing right.
And the fact that this was a pre-existing right
tells us that the Framers thought
that there was something that was out there
in their legal system
that they were preserving against violation,
and in fact that is the case.
In English law,
since well before the Revolution,
it had been settled and determined
that people had an individual right
to have arms for self-protection.
And this right was understood
to enable people to protect themselves
both against criminal private violence
as well as the right of people to protect themselves
against some culture upon their liberties
by a tyrant or by a misguided king.
This was a right that the Framers
were well-acquainted with in English law
and they were very perturbed that the British,
during the time of the Revolution,
were violating this right.
There were various instances
of the British disarming Americans
obviously in an attempt to keep the colonists from revolting
and an attempt to prevent them from resisting the king.
The Battle of Lexington and Concord, of course,
which started the Revolution,
was nothing but a British march
upon the armories in those towns
in an attempt to suppress the right to arms.
And so what you saw was,
when the time came for a Bill of Rights,
you saw five out of seven states proposed a Bill of Rights,
and the only provisions common
in all the demands for a Bill of Rights
were the right to religious freedom and the right to arms.
Now, the Framers were not necessarily concerned
about the modern gun control which is in controversy today.
- [Adam] Today we have a different kind of self-defense
we generally think about with the Second Amendment.
And that's about individuals defending themselves
against criminals.
That's a very personal kind of liberty,
defending yourself against someone
trying to take away your life, your health, your property,
the life of your loved ones.
And one thing that we need to remember
is that this kind of change
in the meaning of a constitutional amendment over time
is very common among our constitutional rights
as we take the underlying principles
that are embodied in the text
and we apply them to modern circumstances.
- [Kim] What about in this early period
with the Articles of Confederation,
did state constitutions also protect the right to bear arms?
- [Alan] Yes, there were state constitutions
that protected the right to bear arms,
most notably the Pennsylvania Constitution.
Article 13 of the Pennsylvania Constitution provided,
quote, that the people have a right to bear arms
for the defense of themselves and the state.
In Vermont's Constitution the following year,
chapter one, article 15 copied that language.
And you would see other late 18th century,
early 19th century constitutions
keep this language or some version of it.
And what you would notice is
that this language of course talks
about the two dimensions of the right to bear arms.
That people have a right to bear arms
for the defense of themselves,
that can only be interpreted as self-defense.
And also for the defense of the state,
that is they can use those arms that they individually have
and gather together and work to defend the society
from some force that's attacking them.
- [Kim] This is really fascinating.
So, my background is in US history,
and I know that one of the reasons
that the Framers decided that they needed a Constitution
that would change the form of the US government
from what it had been under the Articles of Confederation
was Shays' Rebellion,
when a group of armed farmers from Western Massachusetts
marched on Springfield.
So they had taken their military past
as a militia in the Revolutionary War
and then turned that against the new US government
instead of the British government.
Did the Framers have any reservations
about trying to protect militias
in light of Shays' Rebellion?
- [Adam] The Founders did have concerns
about armed militias,
as exemplified by Shays' Rebellion.
They were worried about self-proclaimed militias,
groups of basically armed uprisings in disguise
that claimed the mantel of a militia
but were really just trouble-makers who were taking up arms.
And that was kind of how Shays' Rebellion
was thought of at the time.
And that's why when we think about the Second Amendment,
we should focus on that language
that the Framers were sure to include,
which is that the militias must be well-regulated.
So the Second Amendment itself says
a well-regulated militia being necessary
for the security of a free state,
the right of the people to keep and bear arms
shall not be infringed.
And so they understood that there was a militia,
common citizens who took up arms
to help defend the state and nation.
But they recognized that the militia must be well-regulated,
disciplined, orderly, subject to appropriate command.
It wasn't a right for any self-proclaimed group of radicals
to get together and grab their guns.
It was instead a right to have an orderly state militia
which was an important source of national defense
at the time of the Founding Era.
- [Kim] So, I see that the Second Amendment
and the Third Amendment,
which bans the government from quartering soldiers
in people's houses,
both reflect fears about standing armies
and also the dangers of having
very strong government military power.
But today we have a very strong government military power
and a standing army.
So to what extent are those concerns still relevant today?
- [Alan] Well, those concerns are still relevant today.
We're very blessed in America
that we have a long tradition of civilian control
over the military,
and, in our culture,
the military has not been used to suppress the people.
That's not our experience.
But it has been the experience sadly in many other places
including through today.
And what the Second Amendment reflects is the notion
that the government should not have a monopoly on force,
there has to be some means
that people might still retain the ability to act
to defend themselves,
whether that's against a private individual,
a felon, a miscreant,
or whether it's against something more nefarious.
- [Adam] Our understanding
of what's necessary for national defense
is very different than it was in the Founding Era
because our society is so much different.
We don't have militias of ordinary citizens
the way we once did back in the Founding Era.
And we don't have troops occupying people's homes
the way the Founders did.
But nonetheless I think the Second and Third Amendment
both have principles embodied in their text
that remain relevant for today
and should not be thought of as dead letters
just because the particular concerns that gave rise to them
no longer remain our concerns,
because the principles they embody
are more important and more enduring.
- [Alan] We have been blessed
with peaceful transitions of power,
with a vibrant democracy.
Perhaps at least some aspect of our happy experience
relative to those of our friends and ancestors in Europe
is that we do have a culture
that includes the widespread of private arms.
And that may have a beneficial effect
in making sure that everybody plays by the rules
and observes normal political conventions and norms.
- [Kim] So, what are some of the major Supreme Court cases
that have shaped our understanding of the Second Amendment?
- [Alan] The first one was a case called
United States v. Miller
that arose in the 1930s.
In Miller you had a situation
where an individual was a gangster
and he was caught with a sawed-off shotgun,
which at the time and still now
does require a special tax stamp
that Mr. Miller did not have,
and he argued that the Second Amendment
secured his right to this weapon.
The government took the case to the Supreme Court,
and at the conclusion of the somewhat confused opinion,
the Supreme Court remanded the case back
to the District Court
for a determination as to whether or not
the sawed-off shotgun was an arm of the type
whose possession is protected by the Second Amendment.
Subsequently, Mr. Miller was murdered,
so perhaps he needed a gun of some kind after all,
but we never got the answer to that question.
So I would read that case, as other people do, and say,
look, obviously the Supreme Court thought
there was some individual right to arms.
If the Court had held
that there is no individual right to arms,
it would have been a much simpler opinion,
they would've just said so
and that would've been the end of the matter.
But instead, because more evidence was needed
relating to whether or not this was an arm of the type
that Mr. Miller could posses,
that shows that there was some right therein issue.
Much more helpful, of course,
is the case that I argued in the Supreme Court,
DC v. Heller,
which was a coherent, detailed, fully-briefed,
and exhaustively opined matter
which struck down various Washington, DC, gun control laws.
The main laws at issue in Heller
were a District of Columbia law
that banned the possession of all handguns
by people effectively,
and also a law that prohibited people
from having operative firearms in their home.
You could have a long gun or rifle or a shotgun
in your home in DC
but you could never render that operational
for use in self-defense inside your home.
Oddly enough, you could use it in self-defense
in a place of business,
just not at your home.
- [Adam] The most important case on the Second Amendment
is District of Columbia against Heller,
where the Court held for the very first time
that the Second Amendment
protects an individual right to bear arms
and struck down a gun control law.
That was a very important case,
a landmark ruling that has led
to many, many, many court cases
challenging the constitutionality
of a wide number of gun control laws.
The Supreme Court has not
again stepped into the Second Amendment,
with one exception.
The Court in a case called McDonald v. City of Chicago
held that the Second Amendment applied equally
to the federal government
and to the state and local governments.
One thing to remember about our constitutional rights
is that they don't automatically apply
to the state and local governments.
But the McDonald case held that the Second Amendment
and the principles of the Second Amendment
nonetheless applied to the states as well.
And that's pretty common as well.
Over the course of the 20th century,
the Supreme Court has held
that nearly all of the provisions of the Bill of Rights
apply equally to the state and local governments.
- [Kim] How about limits on the Second Amendment?
I mean, I couldn't own a tank, right?
What sort of limits may the government place
on the right to keep and bear arms?
- [Alan] Well, the Second Amendment, like other rights,
has some limitations.
The first limitations are, of course, as with all rights,
given to us by the scope of the actual rights.
There are many things that simply aren't included
in a particular right.
The right of free speech, for example,
guarantees you the right to speak in some ways.
But perjuries speech, terroristic threats or speech,
extortion is a form of speech,
none of those are traditionally protected.
And likewise, there are going to be some arms
that are going to fall
outside of Second Amendment protection.
The Heller case tells us
how to go about discovering those limits.
The amendment, we are told,
presupposes that people will have arms
that people would expect to find
in common use for traditional lawful purposes.
And so while a handgun or a rifle
is a type of arm that people would keep for self-defense,
for hunting, for sport,
a tank or a bazooka is usually not something
that you would wish to access
for some traditional recognized lawful activity, right?
I mean, very few people would use a tank
to defend themselves against a mugger on the street, right?
- [Adam] I mean, as a matter of practicality,
even if we didn't have a Second Amendment,
there's no possible way
we're going to disarm the entire civilian population.
So the guns are here to stay.
The question is, how can we exist with civilian armament
and good and effective gun control?
And I think that history and tradition
can provide some of those answers.
In the same way that we try to understand
what does the text of the Constitution mean
and what are the principles that that text embodies,
we look to history and tradition,
how have Americans lived under that Constitution
over these 200 years.
We should also look to that history and tradition
in seeing the limits of those constitutional rights.
And one thing I think is very clear
from the history and tradition
of gun rights and gun regulation
is that there's ample room to regulate firearms.
The Founding Fathers had gun control laws.
We had gun control laws in the Wild West,
even though that was the heart of America's gun culture.
We've had gun control laws all through American history
and they're part of the story of the Second Amendment
as much as the six shooter and the right to bear arms.
- [Kim] So, we've learned that the Framers' concerns
over protecting the right to bear arms
originated in the experiences of the American Revolution
in which militias played a central role
in winning independence for the United States.
But a lot has changed since the Revolution.
The US military has grown
and arms have gotten a lot more powerful.
Alan Gura suggests
that the lack of a government monopoly on force
is a key component of the peaceful transitions of power
that characterize American democracy.
Adam Winkler, however,
argues that there's always been
some form of gun control in the United States,
even in the Wild West.
To learn more about the Second Amendment,
visit the National Constitution Center's
Interactive Constitution
and Khan Academy's resources on US government and politics.