Second Amendment to the United States Constitution
The Second Amendment to the United States Constitution, part of the Bill of Rights, prevents the federal government from infringing on the right to bear firearms. Only the federal government is inhibited by the Amendment; the provision has not been "incorporated," or extended to the states, by the Supreme Court.
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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.
Collective and individual rights
It is unclear exactly what the Second Amendment protects, as judicial decisions on the matter are scarce. Some argue a "collectivist model," whereby the "well regulated militia" clause is regarded as a qualifier that restricts the right to only those sworn members of a government-controlled armed body. On these grounds, these interpreters assert that the Second Amendment does not relate to private citizens in any manner. They claim that the Second Amendment was only intended to protect the power of the states to maintain state militia against the interference of the federal government. They regard firearm ownership as a privilege granted to private citizens at the discretion of government.
Others, argue for the "individual rights model". They maintain that the "militia" clause does not set any prerequisite to the exercise of the right to keep and bear arms at all; rather it is a phrase justifying the protection of the right. Gun rights advocates also point out that in the Colonial Era "militia" specifically referred to the armed citizenry as a whole (as distinct from an "organized militia" which was a government-controlled body such as a standing army). On these grounds, these interpreters assert that the Second Amendment protects the pre-existing individual citizens right to keep and bear arms, whether the government agrees or not. In addition, gun rights advocates state that even if the Second Amendment actually had only applied to government-controlled armed bodies, that still does not eliminate a pre-existing natural right of the people to keep and bear arms for self-defense or other proper purposes. The individual rights model is bolstered by observing that the phrase "...the right of the people" also appears in the First Amendment, protecting "... the right of the people to peaceably assemble...". Since the First Amendment protects individual rights, it would seem the same words in the Second Amendment might mean the same thing.
Both gun rights advocates and gun control advocates point to United States v. Miller (1939), being the only Supreme Court accepted case which partly stood on the Second Amendment, which states in part: "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less that eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that is use could contribute to the common defense... 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. 'A body of citizens enrolled for military discipline.' 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."
Both sides in the gun rights debate claim that the Miller ruling supports their positions. The gun control advocates tend to focus on "we cannot say that the Second Amendment guarantees the right", "ordinary military equipment" and "contribute to the common defense." From these phrases they claim that a person must be a sworn member of a government-controlled armed body and must only be in possession of a government-approved type of firearm for the Second Amendment to apply at all.
Gun rights advocates assert that since Miller was certainly not a member of any "government-controlled armed body", then (by the assertions of the gun control advocates) the Court's decision would have had no reason to mention anything further than his lack of militia membership to reject his claims of protection by the Second Amendment. Further, gun rights advocates argue that the Court did not say that this type of firearm was not protected, but simply that no evidence had been presented in the official record ("not within judicial notice") to show that "such an instrument" could potentially be of use towards a well regulated millitia, which was what the court was asking for by saying: "In the absence of any evidence tending to show...some reasonable relationship to the preservation or efficiency of a well regulated militia." The Court did not state that the owner of such a firearm needed to actually be in a "well regulated militia" for the Second Amendment to protect his right to own such a firearm, merely that the firearm could be of some use towards "the preservation or efficiency" of such a militia for the Second Amendment to apply.
It is important to note that nobody appeared in either the Appeals Court, nor the Supreme Court for the accused, Miller, nor to argue the side of the Second Amendment protecting the individual rights to keep and bear arms, nor even to state the fact that sawed-off shotguns were indeed in common use by not only organised militias, but were also common issue to US Army soldiers who fought in World War I. In fact, short-barreled shotguns were normal issue for the US Army right through the Vietnam War and various Special Forces units still use them today. The complete lack of representation for the gun rights side of these issues in Court is probably due to Miller's murder, which had occurred long before the issue got through the appeals process.
For sixty years, the executive branch of the US government also rejected the individual rights interpretation. This changed in 2002; a brief filed by John Ashcroft's Justice Department states: the amendment "broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse".
The most recent federal court ruling to touch on the issue is that of the 5th Circuit Court of Appeals in 2001 in United States Constitution
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| align="center" style="font-size: 90%" | History of the Constitution
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| align="center" style="font-size: 90%" | Interpretation of the Constitution
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| align="center" style="font-size: 90%" | Specific clauses in the Constitution
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