The Second Amendment guarantees: "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."
This guarantees a citizen's right to keep and bear arms for personal defense. The revolutionary experience caused our forebears to address a second concern -- the ability of Americans to maintain a citizen militia. The Founding Fathers trusted an armed citizenry as the best safeguard against the possibility of a tyrannical government.
James Madison, author of the Second Amendment, wrote that Americans had "the advantage of being armed," that was lacking in other nations, where "the governments are afraid to trust the people with arms." Patrick Henry proclaimed the "great object is that every man be armed. . . . Everyone who is able may have a gun." The Second Amendment was then, as it is today, about freedom and the means to protect it.
In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court refused to take judicial notice that a short-barreled shotgun was useful for militia purposes. Nowhere did the court hold that an individual does not have a right to keep and bear arms. In United States v. Gomez, 81 F.3d 846, 850 n. 7 (9th Cir. 1996), Judge Kozinski opined that "The Second Amendment embodies the right to defend oneself and one’s home against physical attack." In United States v. Hutzell, 217 F.3d 966, 969 (8th Cir. 2000), the court held that "... an individual's right to bear arms is constitutionally protected, see United States v. Miller ...." In United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), the court examined United States v. Miller and held: "We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it protects the right of individuals ... to privately possess and bear their own firearms ...."
The U. S. Supreme Court has recently recognized the Second Amendment as an important individual right. Planned Parenthood v. Casey, 505 U.S. 833 (1992); United States v. Verdugo-Urquidez, 494 U.S. 259 (1991).
On December 17, 2004, the U.S. Department of Justice published an exhaustive Second Amendment memorandum. It concludes without reservation that "the Second Amendment secures a personal right of individuals, not a collective right that may only be invoked by a State or a quasi-collective right restricted to those persons who serve in organized militia units." http://www.usdoj.gov/olc/2004opinions.htm
The Founding Fathers distrusted a government that wouldn't trust its people. To fulfill the promise of the Declaration of Independence, the authors of the U.S. Constitution and its Bill of Rights made it clear that individual rights were paramount. The Bill of Rights, wrote Madison, was "calculated to secure the personal rights of the people."
Some claim that banning only certain firearms does not constitute an infringement of Second Amendment rights. That measured ploy is not new. George Mason exposed it at Virginia's constitutional convention in 1788: "[W]hen the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man . . . to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually."
Our founders risked their lives to create a free nation, and they guaranteed freedom as the birthright of American citizens through the Bill of Rights. The Second Amendment remains the first right among equals, because it is the one we turn to when all else fails.
