Former Prosecutor. Powerful Defense Advocate. Certified in the Area of Criminal Law

The Second Amendment. What does it Say? What does It Mean? How is it Enforced?

The Second Amendment to the United States Constitution 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 understand the 2nd Amendment, it is necessary to first put it into context within the larger United States Constitution. The 2nd Amendment is part of the "Bill or Rights." The Bill of Rights is made up of the first 10 amendments that were written into the United States Constitution before it was ratified.

The first question that a student of the United States Constitution should ask is: "Why was it necessary to build Amendments into a Constitution that wasn't ratified yet? Why didn't the writers simply change the body of the Constitution itself rather than pass "Amendments" to a Constitution they hadn't agreed to yet?

To understand why this happened, it is necessary to understand that the United States Constitution was designed to create a government of limited clearly stated powers. This was a major break from the form of government that any of the men involved had experienced. European governments of the day were largely National Monarchies that had unlimited power to do act as they saw fit on any issue they saw fit. The American government was designed to be radically different.

The way in which the United States was originally designed to operate was that General Power (not limited to clearly stated areas) was to reside only in the individual state governments. The Federal Government, on the other hand, would only be able to make or enforce laws on a limited number of areas laid out in Articles 1-4 of the United States Constitution. The writers of the United States Constitution created a weak National Government by design because they had learned to fear concentrated power (power like that of the European Monarchies that they had come to the New World to get away from, and then had to fight in a bloody Revolutionary War).

The first draft of the United States Constitution did not have Amendments. The Bill of Rights was not there. The reason it was not there, was that the authors of that first draft reasoned that because the Federal Government could only do what the United States Federal Constitution explicitly said it could, that there was no reason to try to list all of the things that the Federal Government couldn't do. The writers lost this argument, however. And so, in Amendment form, a "Bill of Rights" was written into the United States Constitution specifying the things that the Federal Government absolutely could not do.

The reason that all of this is important to know is that it informs us on the way in which we should interpret the Bill of Rights, which is extremely broadly. The writers of the United States Constitution wanted to place clear and powerful restrictions on the United States Federal Government. When they wrote, "the people" they meant everyone. When they wrote "arms" they meant all weapons, existing or to come. When they wrote "shall not" they bloody well meant SHALL NOT. We'll discuss this more in depth below. First, there is another issue, and that is the issue of state governments.

When the United States Constitution was written it was not meant to apply to state governments at all. This all changed with the passage of the Fourteenth Amendment. A full discussion of the Fourteenth Amendment is beyond the scope of this writing. Suffice it to say that the Fourteenth Amendment made much of the Bill of Rights, including the Second Amendment, applicable to all of the United States State Governments as well as the United States Federal Government.


There have been various attempts by various people to limit the broad intention of the Second Amendment. They are all wrong.

    1. The argument that the Second Amendment only gives power to the State Governments to raise National Guard Units.

It has been argued by some that the first part of the Second Amendment where it states that "A well-regulated Militia" is "necessary for a free state" should be understood to mean that the right to bear arms is not given to "the people" but to "the states" and only in order to form "A well-regulated Militia."

This is a misunderstanding of the words used. The "Militia" as it was understood by the writers of the United States Constitution is not synonymous with our modern "National Guard." To begin with the "National Guard" is... "National." It can be called into Federal Military Service. The clearly stated purpose of the Second Amendment was to give the states the power to resist the federal government.

The "Militia," properly understood was a State Army. "But Greg", you may say, "California doesn't have an army!" That is correct. It may be more correct, though, to say that California has no "standing" army. By "standing army" we mean a fighting force that exists in both war and peace time that does not dissolve at the end of a conflict. A standing army is a relatively new idea, historically speaking. Most nations had no standing army until the last few hundred years. Historically, when a nation was threatened (or wished to threaten someone else) they would form an army out of their people and march. When the threat was over the army would dissolve. People have imagined that the famed Greek and Roman Armies represented permanent professional fighting forces, but that was not the case.[1] Armies were formed from the people when they were needed, and those people went back to their regular jobs when the need for them was over. As a matter of national pride, EVERYONE (at least all men) learned to fight, and those who were able to bought weapons and armor in preparation for being called into service.

The "Militia" then, properly understood, meant the fighting force of regular citizens that could be called up to defend their homes. The "Militia" is the "People" mobilized to fight.

    2. The argument that the Second Amendment is limited because it calls for "regulation" within its own wording.

We have dispensed with the wrong-headed idea that the "Militia" and the "State" are the same thing. We must then consider the further argument that laws, which clearly infringe on the right of the people to keep and bear arms, are permissible because the Second Amendment calls for a "Well Regulated" Militia.

There are two answers to this mistaken line of thinking, each of which is sufficient to destroy it in total.

• First, the text of the Second Amendment needs to be read in total. We should afford the writers of the United States Constitution the basic respect to assume that they meant what they said (using the definitions of words as they existed at the time). What they said is "the right" of the "the People" "to keep and bear arms" "shall not" "be infringed." This is not wording that is subject to debate. The opening clause justifying the policy clause is not a restriction on the policy clause.

• "Well Regulated" as understood by people at the time of the writing of the United States Constitution did not mean subject to limiting rules. At that time, well-regulated meant what "good working" or "highly functional" means today. In the context of the militia "well regulated" meant the ability to effectively wage war. In the context of the Second Amendment, which discussed armaments, "well regulated" clearly meant "well armed."

    3. The argument that the only firearms covered by the Second Amendment are the single shot muskets available to the writers of the United States Constitution.

Invariably, when the issue of the Second Amendment arises the argument is made by someone that the writers of the United States Constitution could not possibly have foreseen the creation of modern high capacity machine guns and that the meaning of the Second Amendment should be artificially curtailed to only cover those small arms (muskets) that the writers were personally aware of.

This argument is stupid. It ignores the realities of history, the meaning of words, the imagination of writers of the United States Constitution, and the horrible consequences that would ensue for using this interpretation method on the Bill of Rights as a whole.

To begin, the Second Amendment does not refer to firearms, let alone muskets. It refers to "arms." "Arms" means the same thing today as it meant in 1776. "Arms" means weapons, and despite what some people may clearly think, the "musket" was not the only "weapon" available during the Revolutionary War. The Revolutionary War was fought with muskets, but also with cannons, rockets, and explosives.[2]

The people living at the time of the Revolutionary War were not unaware that weapons of war were subject to technological improvement. If anything they were MORE aware of that fact than any other people before the dawn of the nuclear age. The writers of the Constitution, which were educated men, knew that rifling[3] was revolutionizing small arms on the battlefield. They knew that only a short time previous that firearms had supplanted armored combat with swords and spears. They were aware that the matchlock gun had given way to the flintlock gun, (which would give way to the cap and ball in 1820, and the cartridge in the 1840s.) And did we mention they had cannons? The idea that the writers of the United States Constitution would assume that weapons would never become more deadly and that they could not imagine the killing power of modern automatic weapons is a severe insult to the intelligence of the authors of our way of life.

How would people react if we were to suggest this line of argument to the First Amendment? Yes, the First Amendment clearly states that individuals have a right to free speech, but people at the time could only speak as loud as they could yell. Maybe they could get a pamphlet printed if they had a lot of money. The modern world allows for speech to be transmitted to billions of people over the internet. The founding fathers probably couldn't have foreseen that. Should we allow laws that restrict freedom of speech because the power of speech is greater today than it was in 1776? Of course not. Or at least we should be honest with ourselves, and propose to amend the Amendment at issue to say what we think it should say in the modern age.

So what does the Second Amendment Actually say? And what does it actually mean? To put the Second Amendment into modern speech it says:

"Because we want the people to be able to defend themselves against tyrannical government, the government is not allowed to tell them what kinds of weapons they can have."

Is this a good idea?

This is a legal blog, and not a political one. The Question of whether any particular law or Constitutional Provision is wise is perhaps outside the scope of this writing, and I am hesitant to comment on what is an extremely hot debate. The question here is so simple, however, that I feel I can weigh in safely, and say OBVIOUSLY NOT. If we were to take the text of the Second Amendment seriously it would give to United States Citizens the right to own rocket propelled grenades, or fighter planes, or nuclear submarines, or even nuclear weapons themselves. That would be insane. These types of weapons are so dangerous we don't even like the idea of our allies possessing them, let alone other nations, let alone individual citizens.

What have we done?

What the government, both state and federal, have actually done for 200 years is to simply ignore the Second Amendment. Up until 1868 (when the 14th Amendment was passed) it was understood that the 2nd Amendment didn't apply to state governments and that they could do as they wished, but Federal Laws restricting arms were in place before that, and state laws remained after. Effectively the courts have ruled, over and over again, that the government, both state and Federal, has the right to regulate and even ban certain types of arms from private ownership because to deny them the power to do so would be a threat to national security. National security, the courts have reasoned, gives the government the power to act even if the clear wording of the United States Constitution says that they can't. This is an EXTREMELY unsettling line of reasoning that could be used to effectively invalidate the entire Bill of Rights under the wrong circumstances. Thankfully, the Second Amendment seems to be the only provision that has been repeatedly subjected to this diminishment[4].

Instead of respecting and enforcing the Second Amendment as it actually is written, the courts have said that the protection to keep and bear arms only applies to a continually shrinking percentage of the "arms" that are in existence. Today, all that can be safely asserted about the Second Amendment is that an individual has the right to own gun, as long as it is of an acceptable caliber, and as long as it does not fire fully automatic, and as long as it is kept in their home, and as long as they don't have mental health issues or a criminal record. Recent litigation also suggests that State Governments may need to issue concealed carry permits upon request, but that they can probably deny them if the person doesn't have a good enough reason to want to carry a gun, or if the person has any kind of criminal record, or if the person doesn't pass a psychological test, or a gun safety test, or if they can't pay the application fee.

What should we do then?

The first thing we should do is realize that our government has screwed this situation up royally by its inaction. This isn't a Democrat or Republican thing, this is a problem that has existed for at least 150 years. When humans invented things like high explosives, and tanks and aircraft mounted Gatling Guns, we should have rethought the expansive wording of the Second Amendment and amended it to not apply to those things. When humans created atomic and then nuclear weapons, it should have been obvious that we needed to exclude these "arms" from a Second Amendment that clearly applies to them, but shouldn't. Where should the line be drawn? Should all small arms be allowed (machine guns included?) Should explosives be allowed? Should there be a caliber limit? I don't know. These are difficult questions of policy. All that can be definitively said is that what we have done has created a mess.

At some point, we need to seriously think about Amending the Second Amendment to make it more reasonable, and then we need to start taking it more seriously.

[1] The Spartan Nation, within the larger "Greek Confederacy" was the exception to the rule. They kept a large standing army, and used it. The Spartans were in an almost perpetual state of war. There is probably in lesson there, but it will have to keep until another writing.

[2] Refer to the words of the Star Spangled Banner if you have any doubts.

[3] The process of putting groves into the barrel to spin the projectile and stabilize flight.

[4] Though the Equal Protection Clause was given the same Supreme Court brush off during the WWII Japanese Internment.