Ask the judge: 2nd Amendment

Since the senseless massacre in Orlando, there has been a lot of discussion about gun control. This leads to questions regarding the Second Amendment. The purpose of this article is to look at the history behind the Second Amendment and the current debate surrounding the Second Amendment. The Second Amendment to the Constitution states: 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.

Amendment History

From the middle ages through the 17th century, every Englishman was expected to have a gun. The King of England did not have a large standing army. Thus, every man had the duty to be ready to defend England at a moment’s notice, thus the term “minutemen.” This idea carried over to colonial America.

Many of the early colonial constitutions had a provision about bearing arms to protect the state if necessary. Local groups, called “militias,” used their own guns to train and utilize in any military events. The British knew this and tried to confiscate guns during the Revolutionary War. In fact, the first battles of the Revolutionary War occurred when the British attempted to capture colony ammunition and weapons at Concord and Lexington. These are the battles of Paul Revere’s famous ride and where “the shot heard around the world” occurred.

240 years after the Declaration of Independence was signed, we sometimes forget the Second Amendment was established not only to protect against foreign enemies, but also to protect against our own government. As Thomas Jefferson wrote in the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed — That whenever any form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it…

Noah Webster supported this idea when he wrote: “Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops…raised in the United States”.

The Constitutional Convention drafted our Constitution, and then sent it to the 13 states to be ratified. Some, called anti-Federalist, led by George Mason and Patrick Henry, thought the federal government was too powerful in the Constitutional structure proposed. Others, led by George Washington and Alexander Hamilton, called Federalists, supported the Constitution as written. A compromise was needed to gain the necessary nine votes for ratification. Thus was born the Bill of Rights. The Federalists promised the First Congress would pass a Bill of Rights listing specific rights of the people. The Second Amendment is the second of these rights.

Latest Debate

Today some earnestly believe if guns were outlawed gun violence would cease. Others earnestly believe we have a right to defend themselves, not only in our own homes, but also against a foreign enemy or even a “destructive” government. This debate can further be boiled down to whether the Second Amendment is meant to allow states to have a militia or whether it was meant to allow individual self-defense. The Supreme Court answered this question in 2008 in District of Columbia v. Heller, which stated the “right to bear arms” is an individual right. The Court held total gun bans were unconstitutional, such as the ban of hand guns, but some regulation is legal. Rules regarding criminals, the mentally ill, and concealed weapons permits, for example, are allowed.

That’s where we stand today. Let the discussion, and the legislative debate, commence.

(Judge Russell Fagg has been a State District Court Judge for over 21 years, trying hundreds of jury trials, and thousands of non-jury trials. Fagg is a past president of the Montana Judges Association).