Citation

Santee J. J. Firearms Public Policy 1989; 2(1): 69-99.

Copyright

(Copyright © 1989, Second Amendment Foundation)

DOI

unavailable

PMID

unavailable

Abstract

In recent years, there has appeared mounting sentiment for governmental regulation of the purchase, sale, possession, ownership and use of firearms. This rising clamor has been precipitated and fueled again and again by assassinations and attempted assassinations of national and local leaders, by seemingly uncontrollable increases in the rate of crime, particularly crime of violence, and by attacks by terrorists and other extremist groups. A frequent comment made in the national debate by opponents of gun control legislation is that governmental regulation of the types envisioned would infringe upon the individual's "right to keep and bear arms," which is said to be protected by the Second Amendment to the Federal Constitution.

The number of judicial decisions interpreting the right to bear arms has been relatively small. However, those few decisions which have been rendered, as well as the interpretations suggested by the commentators, have unanimously stressed the importance of the historical development of the Second Amendment and the purposes behind its enactment as keys to its meaning. These historical considerations have led the courts and commentators to conclude that the sole purpose of the Second Amendment was to ensure the right of the states to maintain militias in a state of preparedness so as to provide protection against the possibility of an oppressive national government and to avoid the need for standing armies. They have determined that the amendment was not meant to protect an individual right to own and possess firearms except as such ownership and possession relates to the preservation of the state militias. Finally, it is now clear that the Second Amendment operates solely as a restriction on the federal government and that state firearm regulations are therefore restricted only by similar state constitutional provisions. This note will evaluate the conclusions which have been reached pertaining to the scope and meaning of the Second Amendment, as well as examine various state constitutional provisions which affect the right to keep and bear arms.