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The Second Amendment | National Constitution Center | Khan Academy


– [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.

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