- [Kim] Hi, this is Kim, from Khan Academy,
and today I'm learning about the Second Amendment
to the U.S. 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."
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 roughshod over the liberties of the people
because of these armed state militias.
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.
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 encroachment 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 in 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, and the 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 propose 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 sort of 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.
It'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 I think 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 "That the people have a right to bear arms
for the defense of themselves and the state."
And 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.
The 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.
My background is in U.S. 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 U.S. 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 kinda taken their military past
as a militia, in the Revolutionary War,
and then turned that against the new U.S. 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 mantle of a militia,
but were really just troublemakers 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, right?
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.
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 been our experience,
but it has been the experience, sadly,
in many other places, including through today.
Now, 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, felon, 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 peoples' homes
the way the founders did.
But nonetheless, I think the Second and Third Amendment
both have principles embodied in that 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 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?
- [Adam] The first one was a case called
"United States versus 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
was no individual right to arms,
it would have been a much simpler opinion,
they would have 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 possess,
that shows that there was some right there, at issue.
Much more helpful, of course, is the case
that I argued in the Supreme Court,
D.C. versus Heller, which was a coherent, detailed
fully briefed and exhaustively opined matter
which struck down various Washington, D.C. 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 can have a long gun, a rifle or a shotgun,
in your home in D.C., but you could never render that
operational, for use as 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 versus 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 apply 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 perjury of 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-odd 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' concern 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 U.S. 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 U.S. government and politics.