2nd Amendment and Right to Bear Arms/guns control


QUESTION: not too long ago I read in an Archie comic that the 2nd amendment says only people like cops and solders are allowed to have guns. when I tried to look on the net whether this was true or not I couldn't find out if this was fact or fiction. I heard so many things on this I can't tell what is right. can you tell me is this true or not?

ANSWER: The Second Amendment to the United States 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." It says nothing about "people like cops and soldiers." Its reference to "the people" means the same thing as the other rights of "the people" protected in the Bill of Rights, such as the right of the people peaceably to assemble (First Amendment), and the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures (Fourth Amendment).

The United States Supreme Court ruled that the Second Amendment protects the rights of individuals to keep and bear arms. They rejected the argument that it only applies to prevent the government from taking guns away from a civilian military force, such as the militia. If you want to learn more, do searches for "District of Columbia vs. Heller" and "McDonald vs. Chicago" and read for yourself what the Supreme Court has ruled that the Amendment means. While some applications of its protections are still uncertain, what is perfectly clear is that the protection of the right to keep and bear arms applies to all of the people (except for those who are disqualified, like felons and the dangerously mentally ill), and not just to "people like cops and soldiers."

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QUESTION: Isn't a "well regulated militia" the same as cops and soldiers?

No. The mention of "militia" in the Second Amendment does not mean that it only applies to "cops and soldiers," or even only to the militia.

First, the word appears in what is known as a prefatory clause, and not in the operative part of the amendment. In other words, it is in an introductory phrase, not the part that actually constrains the action of Congress. To give you an example of how a prefatory clause works in another context, the First Amendment could have said (in part), "An informed electorate being necessary for a free state, freedom of the press shall not be infringed." The Founding Fathers clearly were most concerned about protecting the right to publish political news and opinion, but the First Amendment's protections apply to more than just political publications. Similarly, the Founding Fathers were concerned about protecting the right of citizens to keep and bear arms primarily for use in militia service, but they did not write the Second Amendment to limit the protections to militia service, nor did they intend to do so. Their writings make clear that self-defense was also a reason for protection of the right.

Second, at the time of ratification, the term "militia" was understood to mean most citizens at large, and not professional soldiers. In other words, the militia at that time was "the people," not the Army. This is made clear in numerous writings of the Founding Fathers, but most notably, in Alexander Hamilton's writings in The Federalist Papers.

Think about this: The Second Amendment does not say that the right of soldiers, or the right of only those in the militia, shall not be infringed. It says "the right of the people ... shall not be infringed" because it was the body of people with their privately owned guns who were available to serve in the militia. Soldiers don't have a constitutionally protected "right" to bear arms and don't have to provide their own weapons. The Army issues weapons to soldiers. So, it would make no sense for the Second Amendment to have any application to soldiers.

Third, the words "well regulated" do not mean subject to government regulation. Instead, they mean properly trained and functional. Again, we are talking about the use of the term at the time the Bill of Rights was drafted. The word "regulate" meant (and still means) to make regular, as in to regulate a clock. (For example, mechanical clocks were "regulated" to make them keep proper time.) A well regulated militia is thus a properly armed, trained, disciplined and functional group of citizens bearing arms.

If you go and read the Supreme Court's majority opinion in the Heller case, as I suggested, much of this will be explained, along with the historical context.


2nd Amendment and Right to Bear Arms

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Robert P. Firriolo


General constitutional (Second Amendment) and federal firearm law inquiries. New York State and New York City laws and regulations on firearms. Use of force in self-defense. DISCLAIMER: While this site is called AllExperts and this field is captioned "Expertise," this individual is not holding himself out as an "expert" in any legal area of practice. Some jurisdictions require certain qualifications and/or certifications in order to use the label "expert" in connection with a law practice. Participation in this online service is not intended to state or imply "expert" qualifications in any jurisdiction.


Practicing firearms law attorney, including representation of individuals, gun clubs, sportsmen's organizations, shooting ranges, and businesses. Over 20 years of grassroots activism, including involvement in campaigns and elections; writing and editing articles, letters, press-releases, policy papers, and op-ed columns; interaction with firearm regulatory agencies; former board member and current legal advisor to the board of sportsmen's and firearm civil rights organizations; pro-bono counsel on select firearms-related legal cases; debated leaders of the gun-control lobby on national television. Lecturer on lawful use of deadly physical force and crime prevention.

Attorney at law. Extensive practice, independent study and research in this field. NRA-certified firearms instructor (rifle, pistol, shotgun, home firearm safety, personal protection) and Chief Range Safety Officer.

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Martindale-Hubbell "AV" Peer-Review Rating.

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