The Constitution, Bill of Rights, and Firearms Ownership in America

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In 1776, America`s Founders came together in Philadelphia to draw up a "Declaration of Independence," ending political ties to Great Britain. Written by Thomas Jefferson, it is the fundamental statement of people`s rights and what government is and from what source it derives its powers:

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.

The Founders were declaring that we are all equal, and that we are defined by rights that we are born with, not given to us by government. Among those rights is the right to pursue happiness--to live our lives as we think best, as long as we respect the right of all other individuals to do the same. The Founders also declared that governments are created by people to secure their rights. Whatever powers government has are not "just" unless they come from us, the people.

Eleven years later, after the war for independence had been won, our Founders assembled once again to draw up a plan for governing the new nation. That plan would be ratified two years later as the Constitution of the United States of America.

To understand the true meaning of the Second Amendment, it is important to understand the men who wrote and ratified it, and the issues they faced in creating the Constitution. During the debate over the ratification of the Constitution, there was significant concern that a strong federal government would trample on the individual rights of citizens--as had happened under British rule. To protect the basic rights of Americans--rights which each person possesses and that are guaranteed, but not granted, by any government--the framers added the first ten amendments to the Constitution as a package. Those amendments have come to be known as the Bill of Rights. They represent the fundamental freedoms that are at the heart of our society, including freedom of speech, freedom of religion and the right of the people to keep and bear arms.

The History of Our Rights

The British people did not have a written constitution as we have in the United States. However, they did have a tradition of protecting individual rights from government. Those rights were set forth in a number of documents, including the Magna Carta and the English Declaration of Rights. The Founders who wrote the Bill of Rights drew many of their ideas from the traditions of English "common law," which is the body of legal tradition and court decisions that acted as an unwritten constitution and as a balance to the power of English kings. The Founders believed in the basic rights of men as described in written legal documents and in unwritten legal traditions. One of these was the right of the common people to bear arms, which was specifically recognized in the English Declaration of Rights of 1689.

However, the Founders also recognized that without a blueprint for what powers government could exercise, the rights of the people would always be subject to being violated. The Constitution, and particularly the Bill of Rights, was created to specifically describe the powers of government and the rights of individuals government was not allowed to infringe.

1. Does the Second Amendment Describe An Individual Right?

Some people claim that there is no individual right to own firearms. However, anyone familiar with the principles upon which this country was founded will recognize this claim`s most glaring flaw: in America, rights--by definition--belong to individuals.

The Founding Fathers created the Bill of Rights to protect the rights of individuals. The freedoms of religion, speech, association, and the rest all refer to individual liberties. The Second Amendment right to keep and bear arms is no different. When the first Congress penned the Second Amendment in 1789, it took the wording, with some style changes, from a list of rights introduced by James Madison of Virginia. Congressman Madison had promised the Virginia ratifying convention that he would sponsor a Bill of Rights if the Constitution were ratified. The amendments he wrote would not change anything in the original Constitution. Madison repeatedly insisted that nothing in the original Constitution empowered the federal government to infringe on the rights of the people, specifically including the right of individuals to have guns.

In constructing the Bill of Rights, Madison followed the recommendations of the state ratifying conventions. Though they ratified the Constitution, several of those conventions had recommended adding provisions about specific rights. Five conventions recommended adding a right to arms; by comparison, only three conventions mentioned free speech.

Members of Congress had no doubt as to the amendment`s meaning. They and their contemporaries were firearm owners, hunters and in some cases gun collectors (George Washington and Thomas Jefferson exchanged letters about their collections). They had just finished winning their freedoms with gun in hand, and would, in their next session, pass legislation requiring most male citizens to buy and own at least one firearm and 30 rounds of ammunition.

The only reason there is a controversy about the Second Amendment is that on this subject many highly vocal and influential 21st Century Americans reject what seemed elementary common sense--and basic principle--to our Founding Fathers. The words of the founders make clear they believed the individual right to own firearms was very important:

Thomas Jefferson said, "No free man shall be debarred the use of arms."

Patrick Henry said, "The great object is, that every man be armed."

Richard Henry Lee wrote that, "to preserve liberty it is essential that the whole body of people always possess arms."

Thomas Paine noted, "[A]rms . . . discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property."

Samuel Adams warned that: "The said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms."

The Constitution and Bill of Rights repeatedly refer to the "rights" of the people and to the "powers" of government. The Supreme Court has recognized that the phrase "the people," which is used in numerous parts of the Constitution, including the