Second Amendment

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Second Amendment

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.

Ratification Facts


Submitted by Congress to the states on September 25, 1789.


Ratified by the required three-fourths of states (eleven of fourteen) on December 15, 1791. Declared to be part of the Constitution on December 15, 1791.

Ratifying states:

Ratifying states: New Jersey, November 20, 1789; Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; New Hampshire, January 25, 1790; Delaware, January 28, 1790; New York, February 24, 1790; Pennsylvania, March 10, 1790; Rhode Island, June 7, 1790; Vermont, November 3, 1791; Virginia, December 15, 1791 (amendment adopted).

The Second Amendment contains two distinct phrases. It states that “the right of the people to keep and bear Arms shall not be infringed (limited).”

This statement has caused people to wonder if the right to bear arms is an individual or group right. The amendment seems to suggest that an individual has the right to own and carry weapons. But it also connects the right to bear arms to the civic necessity of keeping a “well-regulated militia.” This point seems to suggest that the right of “the people” is actually the “collective right” of people to protect their communities with an armed local military force.

Whether the right to bear arms is an individual right or a collective right is one complication in this amendment. Another point of complication concerns the identity of that person or agency, whom specifically the Second Amendment prohibits from infringing on that right. In other words, the amendment says the right to bear arms cannot be limited, but it does not specify who is to be held back from the intent to limit that right.

Those who believe the right to bear arms is a “collective” right argue that the Constitution gives control of the militia to the states; therefore, the government of each state must have some power to regulate the purchase, possession, and use of firearms. According to this argument, the Second Amendment limits the federal government, not the states, from passing strict gun control laws. However, supporters of gun control also argue that because the Second Amendment only protects the “collective right” to maintain a militia, the federal government may regulate individual ownership of guns without violating the amendment.

Opponents of gun control laws, or government interference with a person’s ability to own guns, argue that the Second Amendment firmly establishes that the right to bear arms belongs to individual citizens and should not be infringed in any way by the federal government. They also argue that the Second Amendment should be applied equally to federal and state governments, in the same way other parts of the Bill of Rights are.

The prevalence of violent crime in the United States has sparked repeated public cries for stronger federal gun control laws. But such laws face equally vocal opposition from those who believe passionately in the individual’s right to defend one’s self and family. Historically, of course, Americans have a long tradition of gun ownership, dating back to the first settlements by British people in North America.

Congress has passed only a few laws limiting private gun ownership and as a result, only a handful of Second Amendment-related cases have come before the U.S. Supreme Court.

Origins of the Second Amendment

Private gun ownership has been a part of American culture since Great Britain sent settlers to North America in the early 1600s. It was British policy not only to allow its colonists to keep firearms but also to encourage them to do so, in order to protect themselves in anticipated conflicts with Native Americans, French forces, or during slave revolts. In fact, most colonies passed laws requiring male citizens to keep arms and to serve in the local militia. As a result, militias staffed and controlled by colonists provided the bulk of the colonies’ defenses for decades.

However, during the French and Indian War (1754–63), which pitted Britain against France and its Native American allies in North America, Great Britain sent its own soldiers to fight alongside colonial militias. The combined forces defeated France and established Britain as the dominant power in the northeast regions of North America.

British troops in the colonies

When the war ended, Parliament decided to keep many of its soldiers in the colonies. The stated purpose of the peacetime army was to protector the colonies against hostile Native Americans. Many colonists, however, believed the colonies could protect themselves. Furthermore, they feared the British troops were being kept in the colonies to keep the colonists in line. When Parliament passed the Quartering Act of 1765, which required the colonies to take responsibility for housing the British troops (see chapter three), many colonists were outraged over being forced to pay for the upkeep of an army they did not want.

Laws such as the Quartering Act and the Townsend Act (1767), which placed a tariff, or tax, on goods shipped into the colonies, caused a great deal of unrest. Colonists were particularly upset because Parliament was passing laws that directly affected the colonies, even though the colonies were not allowed to elect representatives to Parliament. “No taxation without representation,” became a popular cry in the colonies as tension over British policies grew.

On March 5, 1770, British soldiers who had been sent to keep order fired into an angry, but unarmed, crowd of colonists in the city of Boston, killing five men. Public outcry over the incident, which became known as the Boston Massacre, led to even greater anti-British sentiment in the colonies.

Taking arms against the army

Conflict between the colonies and Parliament continued, and a new wave of tariffs prompted the colonies to create the First Continental Congress in June 1774. Delegates to the assembly passed a point-by-point condemnation of Parliament’s actions in the colonies and called on the colonies to arm themselves in defense against the British Army. In fact, the colonies continued to maintain militias, despite the presence of British troops, and the American population remained heavily armed. It was a British decision to disarm the Americans, however, that led to the first shots of the American Revolutionary War (1775–83), in which the American colonies won their independence from Great Britain.

On April 18, 1775, British troops were sent to disarm a militia force just outside Boston. The British soldiers met seventy of the Massachusetts Patriots (as the local militiamen called themselves) in the town of Lexington. During an argument between the two groups a shot was fired, leading to the first exchange of firepower in the American Revolutionary War.

In the wake of the battle, British General Thomas Gage, (1721–1787), who was stationed in Boston, took more steps to disarm the colonists in the area. Gage promised he would allow people who turned in their firearms to leave the city safely. After the skirmishes with British soldiers, many Bostonians were afraid of staying in the city and quickly accepted the general’s offer. Once they turned in their arms, however, Gage refused to allow them to leave. Soon after, word spread that the British intended to disarm all Americans and make it a crime for any colonist to bear arms.

The threat of disarmament by British forces (who had already proved themselves capable of violence against the colonists) helped spark all-out war between Great Britain and the colonies. To better wage war with the British, the colonies eventually established the Continental Army, under the leadership of General George Washington (1732–1799), who later became the first president of the United States. Well-armed colonists, fighting in militias and in the new Continental Army, ultimately defeated the larger, more experienced British forces in 1781 (see Introduction).

A Constitutional Right to Bear Arms

Initially the newly independent states formed a loose union under the Articles of Confederation (1781). Under the terms of this agreement, the state governments gave up very little of their power to the new federal (or national) government. In 1787, delegates from twelve of the thirteen states crafted a new constitution that granted the federal government considerably more power than it had under the Articles of Confederation.

The new constitution divided the national government into three distinct parts: the executive branch, led by a president; the judicial branch, led by the Supreme Court (see below), and Congress (the legislative or law-making body of government). Under the proposed constitution, the new Congress would have the power to impose taxes, regulate interstate trade, declare war, and raise an army. In addition, Congress could call on the state militias to aid in the defense of the nation.

Before the new constitution could go into effect, however, it had to be ratified (agreed to) by three-fourths of the states. Many people worried that the new government would be too powerful. It was eventually agreed that after the new constitution was ratified, Congress would add a number of amendments (corrections or additions) to it, detailing the rights of the states and the people.

The memory of the British government’s attempt to disarm the militia was still strong among the colonists. The Constitution (which was ratified in 1788) gave states the power to maintain militias, but many of those who opposed it wanted an amendment that specifically gave states the power to maintain a militia and citizens the right to bear arms.

During the first term of Congress (1789–91), Virginia statesman James Madison (1751–1836), who later became the fourth president of the United States, wrote a number of proposals for amendments to the Constitution. These included a proposal for what became the Second Amendment. Borrowing from various state constitutions, Madison’s proposal stated, in part: “A well-regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed.”

The Senate removed a clause that gave people the right to avoid militia service on religious grounds (see chapter one). It also replaced the words “being the best security” with “being necessary to the security” and removed the phrase “composed of the body of the people.” The final version was sent to the states for ratification on September 25, 1789, and was officially adopted, as one of the first ten amendments, or Bill of Rights, on December 15, 1791.

A Question of Rights

During the American Revolution, colonies began rewriting their charters to form state constitutions. Many of these constitutions specifically ensured the right to keep and bear arms. The Virginia Declaration of Rights, written in 1776, declared: “A well-regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence (sic) of a free State.” The same year, Pennsylvania’s constitution proclaimed: “The people have a right to bear arms for the defense of themselves and the state.” In 1780, the Massachusetts Declaration of Rights stated that “The people have a right to keep and bear arms for the common defense.”

The Pennsylvania constitution specifically mentions the people’s right to bear arms to defend themselves, but the Virginia and Massachusetts declarations only mention the need for a “common” or statewide defense. Although members of Congress certainly would have been aware of Pennsylvania’s constitution, the Second Amendment only mentions the defense of the state in its guarantee of the right to bear arms. This distinction seems to suggest that the Second Amendment was only intended to protect the right to bear arms to the extent that it was necessary for the upkeep of state militias.

More specific wording would likely have limited later debate on the subject. In Bliss v. Kentucky (1822), for instance, the Kentucky Supreme Court struck down a state law that prohibited the carrying of concealed weapons by citing Kentucky’s constitutional guarantee of “the right of citizens to bear arms in defense of themselves and the state.” (Italics added.) The court considered the right to bear arms as both a collective and individual right and ruled that individuals had an unlimited right to bear arms.

The Changing Role of Local Militia

In examining the different interpretations of the Second Amendment, it is useful to consider the changing relationship between the militia and the individual citizen. At the time the Second Amendment was written, one could argue that there was very little practical difference between an individual right to bear arms and a collective right to maintain a militia. That was because members of the militia were not full-time soldiers. They were ordinary members of the community—farmers, butchers, shop keepers— called to duty in times of emergency. Furthermore, these citizens were responsible for keeping and maintaining their own weapons, which they used in the militia; they were not issued weapons. In other words, it was impossible to have a well-armed militia unless the individuals in it brought along their own weapons.

However, during the American Revolutionary War, militias made up of ordinary citizens were often under trained and undisciplined. In 1776, George Washington warned the Continental Congress that relying on the state militias to fight Great Britain was like “resting upon a broken staff.” While the presence of a well-armed citizenry played an important role in the ability of the colonies to defeat the British Army, it was the creation of the Continental Army, with full-time professional soldiers, that turned the tide of the war in the Americans’ favor. Nonetheless, after the war, Congress immediately reduced the Continental Army to eighty men. This action implied that the responsibility for the defense of the nation was, for the most part, returned to the state militias.

A nation of soldiers

Recognizing how weak the existing militia system was, Henry Knox (1750–1806), who served as U.S. secretary of war from 1785 to 1794, tried to convince Congress to take measures to create a nation of true citizen soldiers. Knox and others believed that a nation in which every citizen was ready and able to take up arms in the country’s defense would have little need for an army of full-time professional soldiers. Furthermore, supporters of a strong militia argued that people who participated in the nation’s defense as members of the militia would become more responsible citizens.

Prominent leaders from Washington to Madison and Thomas Jefferson (1743–1826) supported Knox’s ideas. Congress passed the Militia Act of 1792, which required all able-bodied men between the ages of eighteen and forty-five to participate in the militia and to provide for their own equipment at their own expense. This act would seem to support the argument that the collective right to bear arms required that individuals (at least all men between eighteen and forty-five) also have the right to bear arms.

Poorly trained militia

The War of 1812.

The Militia Act of 1792 did little to improve the quality of the militia. It contained no requirements for militia training, and the militia remained an unruly, poorly equipped force. Congress called on the state militias to defend the country from British invasion during the War of 1812 (1812–15). Almost 400,000 of the militiamen called to battle during the war refused to serve beyond the end of their required six-month terms. During the war, which ended indecisively, the American forces suffered a number of embarrassments, including the British capture of Washington, D.C. The war led to a call for better militia training, but Congress did little to change the system.

The American Civil War.

The American Civil War (1861–65) pitted the northern states (the Union) against the southern states (the Confederates) in a lengthy and bloody battle over states’ rights, federal power, and several issues connected to the institution of slavery. During the war, militia units on both sides of the conflict often left as soon as their term of service was over. At the First Battle of Bull Run (the first major battle of the Civil War, also called the First Battle of Manassas, which occurred on July 21, 1861) militiamen withdrew from the Union forces in mid-battle because their term of service had ended.

As in the Revolutionary War, it was not until men began to volunteer for duty that the quality of tactics and training improved. But again, with the end of the war, Congress quickly reduced the size of the army and returned responsibility for defending the country to state militias.

The Spanish-American War.

At the end of the nineteenth century, state militias were called on again to fight, and once again there were problems. The Spanish-American War (1898) was fought largely in Cuba, Puerto Rico, and the Philippines, and some militia units refused to go, claiming such affairs were outside the responsibility of the militia. The militia units fought beside regiments of volunteers (who were not under the authority of the states), and the United States eventually emerged victorious. But the war highlighted, again, the danger of relying on poorly trained, ill-equipped state militias for national defense.

In his first annual message to Congress, on December 3, 1901, President Theodore Roosevelt (1858–1919), who had fought in the Spanish-American War, said: “Our militia law is obsolete and worthless. The organization and armament of the National Guard of the several States … should be made identical with those provided for the regular forces.” Based on his personal experience, Roosevelt saw the need to change the law and train and arm a national force.[MM1]

Agreeing with President Roosevelt, Secretary of War Elihu Root (1845–1937), told Congress in 1902: “It is really absurd that a nation which maintains but a small Regular Army and depends upon unprofessional citizen soldiery for its defense should run along as we have done for over one hundred and ten years under a militia law which never worked satisfactorily in the beginning, and which was perfectly obsolete before any man now fit for military duty was born. The result is that we have practically no militia system.” Root understood that in order for the nation as a whole to enter into conflict with other nations, a standing well-trained army needed to be provided for by law.

Nationalizing the guard

Between 1901 and 1903, Congress enacted three laws, sometimes referred to jointly as the Dick Act (named after U.S. senator Charles Dick of Ohio), which had the effect of turning the army into a modern fighting force. These laws included the 1903 Militia Act, which required the National Guard to conform to the organization of the regular army and required Congress to pay for the Guard’s equipment. Furthermore, the militia was to be trained by officers of the army. These new statutes marked the end of militias made up of armed ordinary citizens as set up by the Militia Act of 1792. With the federal government taking primary responsibility for arming and training the state military forces, it was no longer clear that a state’s ability to maintain a strong militia depends on the right of individuals to keep and bear arms.

Some argue that these changes erase any argument for banning federal regulation of the right to bear arms. Others assert that the Second Amendment was designed specifically to protect the states from federal interference; therefore, the federal government should never be allowed to interfere with the states’ ability to establish the right to bear arms within their borders. Other opponents of gun control argue that the Second Amendment was designed to protect an individual’s right to bear arms regardless of the state’s needs.

Sawed-off Shotguns, Tommy Guns, and the Supreme Court

In the case of United States v. Miller (1939), the Supreme Court considered all of these arguments. The ruling in Miller touched on the government’s ability to regulate firearms; the historical evolution of the concept of militia as it pertains to and limits the individual rights guaranteed by the Second Amendment; and the individual right to bear arms embodied in the Second Amendment.

The Constitution of the United States establishes the Supreme Court as the nation’s highest court. This Court is responsible for the final interpretation of U.S. laws (including amendments to the Constitution). Originally consisting of six justices (judges), the Supreme Court was expanded to include nine justices in 1869. In deciding cases, justices may write individual opinions (explaining the legal reasoning behind the justice’s vote) or sign another justice’s opinion. The Court’s final ruling in a case is based on a simple vote of all nine justices.

The first federal gun control act

Violent crime and the growing influence of organized crime in the 1920s and 1930s prompted Congress to pass the National Firearms Act of 1934 in an effort to strengthen law enforcement’s powers. The act was the federal government’s first statute to regulate the sale and use of firearms. The law set an enormous tax on automatic weapons (such as machine guns or “tommy guns”) and sawed-off shotguns that were transported across state borders and also required that the weapons be registered. Until this time, regulation of firearms was left solely to state and local authorities. Congress believed that the commerce clause of the Constitution (art. 1, sec. 8, cl. 3), gave it the power to regulate interstate transportation of weapons. The commerce clause states that Congress has the power “to regulate Commerce with foreign nations, among the several States, and with the Indian Tribes.”

The defendants in United States v. Miller were Jack Miller and Frank Layton. The two men were indicted in Arkansas for violation of the National Firearms Act of 1934 because they had transported an unregistered sawed-off shotgun from Oklahoma to Arkansas. The defendants challenged the National Firearms Act, arguing in part that the law violated their Second Amendment right to bear arms.

The U.S. Supreme Court unanimously upheld the constitutionality of the National Firearms Act of 1934. With regard to the Second Amendment, the Court ruled that the amendment applied only to the actions of the federal government. According to the decision, nothing in the Second Amendment prevents state and local governments from passing gun control laws. The Court went on to state that the Second Amendment guarantees were written into the Bill of Rights with the “obvious purpose to assure the continuation and render possible the effectiveness of the militias.”

The Court concluded: “In the absence of any evidence tending to show that possession of a [firearm] … has some reasonable relationship to the preservation or efficiency of 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 [the weapon in this case] is any part of the ordinary military equipment or that its use could contribute to the common defense.” In other words, the Court evaluated the purpose the weapon was to serve. In the amendment, weapons were seen to be necessary for military use and hence to be protected; in Miller, the weapon appeared to be intended for criminal use. The Court maintained that the Second Amendment protects the military use and ownership of certain weapons, distinguishing these from certain other weapons that are likely to be used in crime[MM2].

Because Miller is the only Supreme Court case that directly addresses the main issues surrounding the Second Amendment, it became the focal point of the gun control debate in the late twentieth century and early 2000s. Interestingly, both sides used Miller to argue their case.

Those who favor gun control say the court ruled definitively that the right to bear arms is not an individual right but rather a collective right held by members of the militias of the states or the National Guard.

Individual rights advocates argue that the wording of the Miller decision indicates that individuals in the states should be allowed to keep and bear arms, as long as they are like those used by the National Guard and the armed services.

Further Rulings

After Miller, the issue of gun control largely disappeared, until the 1960s. With violent crime once again on the rise, Congress began enacting a series of strict laws in 1968, using the commerce clause to control interstate sale and registration of firearms and ammunition and generally avoiding Second Amendment challenges.

Meanwhile, several lower court decisions in the 1960s and 1970s continued to uphold the states’ right to regulate firearms. The courts maintained the position that the Second Amendment in no way prevents states from restricting the sale, possession, maintenance, or ownership of firearms. These cases bolstered the argument that the guarantee of the right to bear arms was intended as a collective right, not an individual right.

In Burton v. Sills (1968), the New Jersey Supreme Court reviewed a Second Amendment challenge to a New Jersey gun control statute. The decision in the case was consistent with lower federal court and state court opinions that continually interpreted the Second Amendment right to bear arms as “framed in contemplation not of individual rights but of the maintenance of the states’ active, organized militias.”

The decision further stated that the Second Amendment “is not designed to secure personal liberties against intrusion by government but to protect one governmental unit, the state, against subjection by another unit, the Federal government.”

The Brady Bill, a federal law passed in 1994, imposes a list of requirements for handgun ownership. The bill was championed by James Brady, a White House press secretary who was crippled by a bullet during a failed attempt to assassinate President Ronald Reagan (1911–2004; served 1981–89) in 1981.

Other major legislation, including the Violent Crime Control and Law Enforcement Act of 1993, followed in the wake of several incidents in which such weapons were used against unarmed adults and children and against officers of the federal government.

For many years, no federal court struck down such federal gun control legislation as a violation of the Second Amendment. However, in March 2007, a federal appeals court ruled in Parker v. District of Columbia that District of Columbia gun control laws violated the Second Amendment. The appeals court determined that the Second Amendment protected an individual—not a collective—right. The majority [MM3]wrote: “When we look at the Bill of Rights as a whole, the setting of the Second Amendment reinforces its individual nature. The Bill of Rights was almost entirely a declaration of individual rights, and the Second Amendment’s inclusion therein strongly indicates that it, too, was intended to protect personal liberty.” This decision emphasizes the fact that the Bill of Rights, taken altogether, is intended to map out the rights of the individual in distinction to those rights of the federal government which the Constitution defines. Seen in this context, this court maintained, the Second Amendment is about individual rights.

Another important constitutional issue concerns whether federal gun laws invade the province of state sovereign (absolute) power. In other words, the question remains, does Congress even have the power to regulate guns in certain matters. In United States v. Lopez (1995), the Supreme Court ruled that Congress had gone too far in using the commerce clause to pass the Gun-Free School Zones Act of 1990. The act sought to control firearms and curtail armed violence in and around schools. Congress used its commerce clause powers to ban any individual from possessing “a firearm at a place that [he] knows … is a school zone.” The Supreme Court ruled that the act “had nothing to do with commerce or any sort of economic enterprise” and, therefore, was outside Congress’s power to enforce. Any such restrictions on guns in school zones therefore were left to the states.

What the Feds Can’t Do, the States Can

The states have always had greater power to regulate the use of arms than the federal government. That is because the Bill of Rights was originally only intended to limit the powers of the newly formed federal government. The states, meanwhile, were free to operate under the rules of their own constitutions. For instance, the governments of Connecticut and Massachusetts ran state-supported Congregational churches into the 1800s, despite the First Amendment’s ban on government-sponsored religions (see chapter one).

In the case of Barron v. Mayor and City Council of Baltimore (1833), a citizen sued the city of Baltimore under the Fifth Amendment’s just compensation clause (see chapter five) after the city took actions that made the citizen’s business virtually worthless. The just compensation clause requires the government to pay a fair price for any private property it seizes or destroys for public use.

However, in a unanimous decision, the Supreme Court ruled that the Bill of Rights could only be applied to the federal government. The Court help: “Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated.” Furthermore, the limitations on power put on the government of the United States by its Constitution were “naturally and necessarily applicable (only) to the government” created by that Constitution—namely the federal government.

Applying the Bill of Rights to state governments

In the wake of the Civil War, many southern states enacted a series of laws intended to limit the civil rights of black Americans who had been freed from slavery during the war by the 1863 Emancipation Proclamation. Among the many restrictions put into effect by these so-called Black Codes were laws barring former slaves from owning firearms or restricting their use. Ratification of the Fourteenth Amendment in 1868 stemmed directly from such abusive laws.

The Fourteenth Amendment’s due process and equal protection clauses (see chapter fourteen) required states to protect “life, liberty, and property” with due process, that is, with fair and equal application of the law. Eventually this clause changed the way the Supreme Court applied the Bill of Rights. The Court primarily has used the due process clause to apply different parts of the Bill of Rights to state and local governments, as well as to the federal government.

However, the Second Amendment is one of three amendments in the Bill of Rights (together with the Third and Seventh) that the Supreme Court has never applied to the states by “incorporating” it with the requirements of the Fourteenth Amendment.

In Presser v. Illinois (1886), the Supreme Court upheld an Illinois law that prohibited any group other than the regular organized volunteer militia of the state to drill or parade with arms. The Court unanimously held that the Second Amendment applied only to acts of the federal government and did not prevent the state from restricting association in a paramilitary organization or regulating or prohibiting drilling or parading with arms.

In Quilici v. Village of Morton Grove (1982), a U.S. appeals court decision let stand a local ordinance passed by the village of Morton Grove, Illinois, which banned the possession of handguns in the home. Handgun owners in the village were required to turn in their guns to the local police department and store guns for recreational use at gun clubs and gun ranges. In refusing to strike down the law, the appeals court ruled that the Second Amendment does not apply to state and local governments. By refusing to hear the case itself, the Supreme Court also refused to apply the Second Amendment to the states.

Those who argue that individuals have a natural right to bear arms for self-defense argue that the Supreme Court should incorporate the Second Amendment in its application of the Fourteenth Amendment just as it has incorporated other Bill of Rights amendments. But as of 2007, state governments may regulate an individual’s ability to keep and bear arms within the state’s boundaries, and most states regulate gun ownership in some capacity.

New forms of militia

The term militia has taken on new meanings since the 1980s. Heavily armed private military groups, not associated with state or federal government, have claimed Second Amendment rights as militiamen under the militia clause of the amendment. However, the courts have not accepted this claim, and the ruling in Presser v. Illinois (1886), which emphatically gave states the power to regulate such groups, was not as of 2007 reversed by any subsequent Supreme Court decisions.

The Battle Continues

A general review of the court cases dealing with the Second Amendment suggests that the courts are divided on whether the Second Amendment protects a collective or individual right. The 5th U.S. Circuit Court of Appeals determined in United States v. Emerson (2001) that the Second Amendment protects an individual right, while other federal appeals courts—such as the 9th Circuit in Nordyke v. King (2003) have reasoned that the amendment protects only a collective right. Perhaps the U.S. Supreme Court will settle this division between the lower courts, but as of 2007 it had not.

Furthermore, the Supreme Court has routinely ruled that the states have the power to regulate arms without regard to the Second Amendment. The Second Amendment has never been incorporated under the Fourteenth Amendment. Although there have been several attempts to pass gun control laws at the federal level, most laws regulating the right to bear arms exist at the state level.

The judicial and legislative history has clearly shown that both the federal and state governments have the right to regulate firearms and may prohibit some categories of arms altogether, such as automatic assault weapons, machine guns, and sawed-off shotguns. However, historical tradition of private gun ownership in the United States has led to the creation of powerful gun-rights groups that actively oppose national gun control. In view of the few Supreme Court cases that address the Second Amendment directly, it is likely that the battle over gun control will continue to take place primarily at the state level.



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