Second Amendment

Document Date: October 24, 2015

Gun Control

The question whether the Second Amendment confers an individual or collective right to possess and bear arms has been the subject of much scholarly and legal debate. Some scholars view it as a statement of an individual right and others argue that the Amendment was designed only to protect a collective, or state’s right.

It is generally acknowledged, however, that at the time of the writing and ratification of the Second Amendment, there was widespread concern about the possibility that the federal government would overstep its constitutional bounds. The Bill of Rights was primarily an expression of the rights that had to be secured if democracy was to exist and if citizens’ “inalienable rights” were to be protected. The power of the states was seen as a vital safeguard against potential federal tyranny. In that sense, it is clear that a major goal of the Amendment was to secure the collective power of the states to raise and use arms, should their citizens consider it necessary.

At the same time, Americans took the individual possession of firearms for granted. Many of the legislators who wrote the Second Amendment owned guns, and undoubtedly assumed that their ownership was part of their rights to property and self-defense. Guns were routinely utilized for hunting and to ensure personal and family safety, as well as held in readiness for collective defense.

It is precisely because gun ownership was so widespread that the governmental power to regulate firearms was equally taken for granted*. The right to own and use guns was not considered absolute or viewed as free from governmental regulation since firearms are inherently dangerous instrumentalities and their use, unlike the other activities protected by the Bill of Rights, can inflict serious bodily injury or death.

Firearms are therefore subject to reasonable regulation in the interests of public safety, crime prevention, maintaining the peace, environmental protection, and public health.

Such regulation of firearms and individual gun ownership or use are appropriate, however, only when consistent with civil liberties principles such as privacy, due process, equal protection, and freedom from unlawful searches. Keeping those principles in mind, the ACLU will not oppose governmental regulation of firearms as long as such regulation is reasonably related to a legitimate governmental interest, such as protection of the public health, safety, or welfare. Deference should be given to legislative judgments limiting gun ownership or use so that state and local governments are allowed an opportunity to experiment with solutions to the complex problems involving guns.

[Adopted by the National Board, October 24, 2015]

*When the Constitution was written, “gun regulations were common…Boston made it illegal to keep a loaded gun in a home…New York, Boston, and all cities in Pennsylvania prohibited the firing of guns within city limits. States imposed curbs on gun ownership. People deemed dangerous were barred from owning weapons…Rhode Island conducted a house-to-house census – an early American form of a gun registry…the misdemeanor of affrighting, dating from medieval times, prohibited carrying a weapon in a way that menaced others.” Michael Waldman, The Second Amendment: A Biography (Simon & Schuster, 2014), 32-33. See also Saul Cornell and Nathan De Dino, “A Well Regulated Right: The Early American Origins of Gun Control,” 73 Fordham Law Review 487 (2004-2005), at 505-508 (“a variety of gun regulations were on the books when individual states adopted their arms bearing provisions and when the Second Amendment was adopted,” p. 502); Saul Cornell, A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (Oxford University Press, 2006); Adam Winkler, “Scrutinizing the Second Amendment,” 105 Michigan Law Review 683 (2006-2007).

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