(Editor’s note: The following is a video, with its corresponding transcript, from Prager University. It features Eugene Volokh, Professor of Law at UCLA. Through a cogent historical analysis, Prof. Volokh breaks down why the Second Amendment protects an individual’s right to keep and bear arms today just as it did back when the founders and framers ratified the Constitution. Enjoy!)
Does an American citizen have a Constitutional right to own a gun?
Here’s what the Second Amendment says: “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.”
Now, it once seemed to me like that language only protected state militias and not individuals. Indeed, this is the view held by the four dissenting Supreme Court justices in the 2008 case of District of Columbia versus Heller, a landmark case dealing with gun ownership.
But the more research I did, the more I came to realize that my initial view was mistaken and that the Founders were, in fact, securing an individual right. The five justices who voted to affirm the right to own a gun in DC versus Heller had, indeed, made the correct decision.
Let’s look at the amendment one more time.
“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.”
We first need to focus on the phrase “the right of the people.” Note that the people are the only ones whose right is secured here, not the militia or a state government. This phrase “the right of the people” comes up a few times in the Constitution. For example, the First Amendment refers to “The right of the people peaceably to assemble, and to petition the Government.” And the Fourth Amendment secures “The right of the people to be secure…against unreasonable searches and seizures.”
Why, then, if the authors of the Constitution felt so strongly about “the right of the people” to own guns, did they include language about “a well-regulated militia”?
These opening words of the amendment might be called a “justification clause.” Such clauses are used to help explain why a right is being secured. But it’s the operative clause that explains what right is being secured. In this case, the right of the people to keep and bear arms.
And what was the word ‘militia’ understood to mean at the time?
Well, the Militia Act of 1792 defined “militia” to mean all white males 18 to 45. Today, of course, “militia” would include women and people of all races, but it was clearly not a reference to a small, National Guard-type group.
And what about the part of the amendment that says a militia is necessary “to the security of a free State”? What, the opponents of personal gun ownership ask, does a personal right of gun ownership have to do with that?
Again, historical context is key. In the 1790s, the phrase “free State” wasn’t used to mean an individual state like New York or Rhode Island. Rather, it meant what we’d call today a “free country”—a nation free of despotism. A “free State” is what the Framers wanted America to be. They saw an armed citizenry as, in part, a hedge against tyranny. Citizens who own weapons can protect themselves, prevent tyrants from seizing power, and protect the nation from foreign enemies.
This does not mean, though, that this right is unlimited. Free speech, for example, has long been subject to some narrow and reasonable regulations. But severe restrictions on owning a gun, like severe restrictions on free speech, would violate the Second Amendment as the Founders understood it.
Maybe you think this understanding of the Second Amendment is outdated today, that the Constitution needs to change as public attitudes change. The Founders included a provision for doing just that: if the public attitude really has changed, the Constitution can be amended to reflect that change. But, ironically, even if we focus on current public attitudes, the case for individual gun ownership is as strong as ever. Polls consistently show that over two-thirds of Americans believe that the Second Amendment secures the right of citizens to own a gun. And Congress and state governments have repeatedly reaffirmed this view, including in recent decades.
So, does the Second Amendment secure an individual right to bear arms?
It did when it was written. It has throughout American history. And it does today.
I’m Eugene Volokh, Professor of Law at UCLA, for Prager University.
The ONLY “RIGHT” that means ANYTHING IN THIS WHOLE ENTIRE ARGUMENT is our “RIGHT” to SELF-DEFENSE and to the DEFENSE of our FAMILIES and LOVED ones AND the WEAKER AMONG US!!!! THAT’S THE ONLY “RIGHT” IN QUESTION!!!! You EITHER AGREE THAT WE HAVE THAT RIGHT OR YOU ARGUE THAT WE DON’T. YOU THINK I DON’T FUCK YOU, I THINK I DO!!! YOU WANT ME TO GIVE UP MY PROTECTION, I SAY AGAIN, FUCK YOU, YOU AIN’T GETTIN IT!!! THE ARGUMENT AGAINST OWNERSHIPOF GUNS IS SO NAIVE AND IGNORANT AS TO BE LAUGHABLE. THERE IS NO ARGUMENT. THIS IS PROVEN TIME AND TIME AGAIN BY ALL OF THE GUN-GRABBERS WHO, THE MINUTE SOMETHING HAPPENS TO THEM OR A FAMILY MEMBER, RUNS TO THE LOCAL GUN SHOP TO GET THEM A GUN!!!! OUR FOUNDING FATHERS KNEW THIS AND PROVIDED FOR US IN THE 2ND AMENDMENT. YOU DON’T LIKE IT GET THE FUCK OUT OF HERE. GO TO ENGLAND WHERE THERE ARE GOOD CITIZENS IN JAIL BECAUSE THEY THOUGHT THEY HAD A RIGHT TO SELF-DEFENSE!!!
I am sorry the immature jackasses have driven you to such fury. I’m sure you are a reasonable person. You sentiments are spot on with this matter. Keep the faith my friend!
It’s gratifying to see how many Constitutional Lawyers can be found anywhere “Second Amendment rights” are discussed. But they must find it frustrating that there are only 9 jobs for them that have any practical effect, and only one of those is not currently filled.
Excellent article; concise and well written. I will suggesting that all my friends read it. Though you did include this I though it was worth emphasizing: One of the definitions of Militia is, “All able-bodied citizens considered by law eligible for military service.”
I beg to differ with the professor on one point. He states that, “Free speech, for example, has long been subject to some narrow and reasonable regulations.”. There is no regulation of free speech that corresponds to any gun control law.
Libel and slander laws, truth in advertising laws, and the often cited, “You can’t yell FIRE in a crowded theater”, do not place restrictions on your right to free speech. They allow and define punishments for those who abuse their right to free speech.
One does not have to submit for government approval everything that they print or publish, nor do we have to wear gags in theaters. Anyone may exercise their right to free speech, unabated, until the extent of their use of that right causes harm to others. Only then do they face consequences.
The Second Amendment equivalent to the “restrictions” on free speech would be laws against armed robbery, brandishing, threatening someone with a firearm, or murder. There are no restrictions on free speech that equate to background checks, waiting periods, registration, bans on certain firearms, magazine capacity limits, paying a special tax to be able to purchase certain items, etc., etc.
And the “Security of a free State [Country]” relied upon a “well-regulated Militia” specifically because Congress could raise monies for a maximum of only two years to pay for *temporary* armies required by the exigencies of the moment.
Given the context of the FF, the primary enemies of liberty were a despotic king AND the “standing army” that was his enforcement arm. Our Constitution accordingly did not authorize any such standing army: armies were authorized and paid for by Congress only as needed for a period not exceeding two years. The USA, therefore, was fundamentally reliant upon a well-prepared militia as the first line of defense in case of sudden enemy invasion.
The “security of a free country,” in other words, depended primarily upon militia for its security, NOT upon a standing army that free states (countries) could not and would not maintain. Such armies were a de facto threat to liberty.
Standing armies were every king’s routine method of strong-arming his subjects into obedience in Europe, so the USA was not going to have one. A well-prepared militia was the backbone of national defense, therefore the citizens’ right to “keep and bear arms” suited for military use “shall not be infringed.”
Note that the Constitution does NOT prohibit citizens from owning cannon, which were the only option other than small arms at the time. The thought process there *probably* was to allow each “of the several States” to regulate ownership of cannon, although I’m just guessing here. We need a Constitutional scholar to dig up the constitutions and militia regulations of the 13 original states to see whether ownership of “heavy weapons” was typically regulated by “the several states,” or whether they allowed, or specifically authorized, or perhaps restricted private citizens from owning cannon. The Federal government as established in the Constitution clearly was not specifically authorized to regulate or limit such ownership.
I mostly agree except for the part about no rights being absolute. With freedom and liberty comes responsibility. It may or may not be prudent for someone to yell fire in a public place, but in my opinion, the people are responsible for verifying the conditions before panicking. Also, if our rights come from our creator then what right does the government have to restrict them in anyway. By definition, these rights are “absolute”. If they weren’t the Founders would not have believed it so important to later add the Bill of Rights. I don’t recall maybe someone can educate me, but where in the first amendment or anywhere in the 2nd or the rest of the bill of rights is the modifier allowing the government the discretion to determine which of these rights are NOT absolute? I don’t remember seeing a “…,BUT to government can restrict at any time.” Following any of these natural rights. Just where exactly is it listed that the people have the right to free of speech, free press, free religion, freedom to assemble and the freedom to petition their government for a redress of grievances “BUT” the government can determine which of these they can limit to some extent at any time…”. Or, where does it say in the 2nd that the government has the right to determine which firearms are too scary for the people to own? In fact it says the opposite in the strongest of all legal parlance when it says “…Shall NOT be infringed”. I’m pretty sure that clear. That says, Me. Federal Gov’t. you have ZERO discretion over the people in this area. I simply don’t get the arguments even on the right that no right is absolute. There is no evidence that the founders believed anything other than the absoluteness of natural rights.
Beautifully said!
Thanks for making these videos, they clearly and concisely state things in a manner that I can use, in helping friends to understand why my views are what they are.
It’s quite tiring to continue to see people representing the 2nd Amendment as merely a “gun” right
I defy you to show me where the 2nd says “guns”. It is actually representing a full right to own military weapons. The Founders had cannons, rockets, mortars, hand grenades and more
Wake up, people, we have been hoodwinked and our natural liberties have been infringed
Absolutely right on Capn!
Great work, Professor! Each word in the Second Amendment has been dissected, evaluated, re-evaluated, debated, defined, redefined and scrutinized until each of us have ample opportunity to craft an opinion we can live with, or protest against. But, your presentation hits the ball out of the park! Everyone has to take the writing of the Constitution in the context of the time in which it was written, and it’s intent for all future generations to prevent the mistakes of the past!
But, does anyone remember the Third Amendment?
“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
I truly believe that we have to look beyond the Second, to the Original Ten (Big 10). They work in concert with each other, each having specific value in and of itself, and feeds the others.
Within the context of the Big 10, each should have equal value, in my opinion. And, if you incorporate the language from 2 AND 3 into one big paragraph, and look back to the origins and spirit of their crafting, the Founding Fathers (FFs) did not wish to be oppressed, ever again!
It is my opinion that the FFs, if they were alive today, and aware of modern warfare technologies, would look at us crossways and ask a collective question – “Um, how will the citizen defend his home against troops, foreign or domestic, at time of war or peace from entering upon and remaining upon their land without Congressional authorization?”
And, the easy answer is quite simple. Whatever they have, we should have as well. No standing Army of any country in our world today uses sticks, bats or butter knives. So, give us the ability, maybe even by a permit process, where a law abiding citizen can keep and bear equal weaponry, by jumping over reasonable hurdles.
Yes, we should be able to own handguns, shotguns, rifles, 66M LAWS, Howitzers, Battleships, F18A Hornets, any any other “tools” a military has in their arsenal, up to and including ICBMs if the citizen can ensure he’s got a good plan to keep his Peacekeeper in good working order and proper protections for the half life and disposal of his unused payload, as per BATFABCDEFG guidelines.
And, maybe a neighborhood of Peacekeeper owners on our west coast can all chip in (like an association fee?) and operate a private command center that tracks what Kimmy from Korea is up to, and if their homesteads are threatened, they have the means to reasonably respond to the threat.
Is this an over-the-top position? Ha! Heck no. Its an inalienable right from the Big 10! Actually, from a combination of numbers 2, 3, 9 and a sprinkling of 10.
But, I’m curious to hear the Professor’s take on the spirit of the writing of the 3rd Amendment and his opinion on how it feeds or doesn’t feed the 2nd. . .
If you build any structure that you wish to stand the test of time, you use a cornerstone to build upon. Hate to be the bearer of bad news, but, if you start with a cornerstone of Jell-O, that changes shape every so often, your building will fall down. I’m no builder, but, I’m no dummy, either. I want MY structure to have a corner STONE!
So, I ask that you join me in asking people what their position is on the THIRD Amendment and how it is usable and practical in today’s world, and in concert with the Second. And, have your camera ready, because you’re going to get a caricature of the RCA dog staring at the Gramophone. What a great photo to post on your social media site as a response to THEIR post about their strong and unwavering opinion on 2A.
Fasten your seatbelts, and please keep your hands and feet inside the car at all times. Welcome to Great America, enjoy your ride!
HOO RAY…..This is what was intended…..Even a militia could become rogue and threaten the “state.”
I would further suggest anyone attempting to explain or understand the second amendment should do two things: look closely at the wording; “the RIGHT of the people shall not be infringed.” In our Declaration of Independence our founders state that rights come from the Creator, not MAN. Further, the second amendment clearly states that “THE right,” referring to a right that already exists, shall not be infringed. It does not GRANT us the right keep and bear arms, it very simply guarantees that AN EXISTING RIGHT shall NOT be TOUCHED by the government. This right EXISTS outside of the government’s control. Secondly, I highly suggest you go and research the words and intentions of our forefathers OUTSIDE of legal documents, which can be misinterpreted. There is ZERO doubt as to what our founders meant in the second amendment if you read what history has recorded. These men CLEARLY intended for EVERY man to own guns and enough ammo to use to defend themselves, their families, their property and their country. The founders clearly intended, even openly stated, that every man should have sufficient arms and ammo to overthrow a government gone rogue. As a matter of fact, it was every man’s obligation and responsibility to do so. Here are just a few pertinent quotes:
-“A free people ought not only be armed and disciplined but they should have sufficient arms and ammunition to maintain a status of independence from ANY who mght abuse them, which would include their own government.”
-George Washington
-“When any nation mistrusts it’s citizens with guns, it is sending a clear message, it no longer trusts its citizens because such a government has evil plans.”
-George Washington
-“We should not forget that the spark which ignited the American Revolution was caused by the British attempt to confiscate the firearms of the colonists.”
-Patrick Henry
-When government takes away citizen’s right to bear arms it becomes citizen’s duty to take away government’s right to govern.”
-George Washington
“What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms.”
-Thomas Jefferson to James Madison
-“To preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them.”
‘Richard Henry Lee
American Statesman, 1788
“The great object is that every man be armed.” and “Everyone who is able may have a gun.”
-Patrick Henry, American Patriot
“Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?”
-Patrick Henry, American Patriot
“Those who hammer their guns into plowshares will plow for those who do not.”
-Thomas Jefferson
Third President of the United States
“The constitutions of most of our States assert that all power is inherent in the people; that … it is their right and duty to be at all times armed; … ”
-Thomas Jefferson
Letter to Justice John Cartwright, June 5, 1824.
“The best we can help for concerning the people at large is that they be properly armed.”
-Alexander Hamilton
The Federalist Papers at 184-8
The Founding Fathers on Maintaining Freedom
“The greatest danger to American freedom is a government that ignores the Constitution.”
-Thomas Jefferson
How can ANYONE, from the most ordinary citizen to the highest official in our land read those words and misinterpret them?
In your research did you find any language in the militia act that would put our responsibility of owning military issue weapons? Part of a missing puzzle would appear to be that of a large standing army not being necessary since the militia was to be “regulated” by congress and ready to be call into service if needed. This helps to divide powers between State and Federal government. ” A free State” in this phrase I believe State is capitalized and doing so would indicate that the sovereign States that created the constitution wanted protections against a growing power of a Federal government.
“Regulated” as it is used in the time of the writing of the 2nd Amendment refers to being “well trained.” Trained in military drill. In the old world rifle sights are still “regulated” as opposed to the modern “zero’d” or “sighted in.”
Regulated, as in controlled by government regulation and restriction was a foreign concept to the framers. That is what they were trying to escape from.
“The Right of The People” Look at the Bill of Rights – Amendments – 1,2,4 All 3 have the “The Right of The People” in them.
Do they all have different meanings? So if 2 amendment is for the ” Militia” then doesn’t that mean Amendment #1 Freedom of Speech is for the militia ??? 4th Amendment – “unreasonable searches and seizures” for the militia only.
It looks like The Right of The People is just that, FOR THE PEOPLE…..
Excellent. All of the Bill of Rights are to protect us from our own government. The founders of our country had just finished a very difficult and bloody war with their own English government. Largely with private volunteer armed citizens. Of course they wanted to protect an armed citizenry.
One was remember the Bill of Rights is not a grant from government. It is an enumeration of Rights that are intrinsic to humanity.
It is only those people who strive to oppress the Peoples Rights; that fight against this. Oppression is clearly Tyranny from Government and Treasonous from others.
Well said, Sir! An indeed cogent and easy to comprehend explanation. This should satisfy the whining grumblers who shout and raise signs complaining that free people should possess the means to ensure that freedom. Unfortunately, I don’t live in the United States, I live in a British Commonwealth country where the right to armed self-defense has been removed by legislation, because we have no overarching Constitution to protect what should be our rights. I still avail myself of all the firepower within my legal and financial reach, and I am mostly content with the situation. But to see such wonderful hardware for sale in the USA which is forever beyond my reach is truly heartbreaking. You don’t know how lucky you are.
Exceptionally well articulated piece. It is encouraging that someone in academia, and at UCLA of all places, truly understands the purpose of the Second Amendment and is trying to enlighten others. This is the perfect article to share with our friends on both sides of the discussion.