22.01.2018 in Law
The Constitution of the United States


The main function of the second amendment of the constitution of the United States is to protect the right of people to keep and bear arms. It is clear that the early settlers of America saw the rights to arms and or the state militias as essentially for one or more of the following functions; 

  • Repelling invasion
  • Discouraging a dictatorial government
  • Holding back insurrection
  • Engaging in reinforcement of the law
  • Smoothening a natural self-defensive natural right
  • Making it possible for people to organize a militia system for the better of the nation

These are the importance of the Second Amendment of the constitution to the American people since they are able to defend themselves as well as the state in one way or the other (Carl, p89).  Though the amendment received massive opposition, it was able to pass and it gave the citizens of American their rights that were never infringed though only to the individuals who used the firearms responsibly. This is because the right of the people to keep and bear arms is part of the Bill of Rights that is consistent with the first amendment’s rights of press, speech, freedom, religion and assembly. In other words, the right to keep and bear arms is a right just like the other entitlements. The opponents of the second amendment assumed the amendment was of little essence in comparison to the first amendment but the fact that possessing the arms in defense against tyrannical, coup and self-defense makes the second amendment be of much importance than the first amendment (Rakove, p76).

The Second Amendment (Amendment II)


The Second Amendment to the constitution of the United States is the part that protects the rights of individuals to keep and bear arms in the United States Bill of Rights. In order to understand the concept clearly, it is important to be familiar with the term bill of rights. The bill of rights refers to a general name for the first ten United States Constitutional Amendments, which puts boundaries to the power of the United States federal government. The limitations are responsible for protecting the natural rights of property and liberty including the ‘freedom of speech, religion, free press, free association and free assembly as well as the right to keep and bear arms’ (Kates, p207). The second amendment was embraced and implemented on December 15, 1791 together with the other Bill of Rights.

The United States Supreme Court gave out two decisions on the second amendment in 2008 and 2010.  The first decision was on the district of Colombia v. Heller, which took place in 2008. The court concluded that the second amendment has the powers to protect the right of a person to own a firearm, though not linked to Militia’s service and to the arm for lawful functions as per the traditions of the US like self-defense within the home as well as hunting. Moreover, the court itemized many outstanding exclusions and restrictions on ownership of firearms that it found being consistent with the Second Amendment (Gary, p6). The second decision that was McDonald v. Chicago took place in 2010 where the court concluded that the Amendment II puts boundaries to the same measure that limits the federal government.

The Essence of the second Amendment: the right of the People to keep and bear Arms should be obeyed

There is no doubt that without the second amendment, all the other amendments are worthless. This is because this amendment issues the citizens of the United States the right to keep and bear arms; it cannot, shall not neither will it be violated upon. The best definition for ‘To violate upon’ (Patrick, p208) is the attempt to put boarders to the right of:

  • Moral or legal right to do- or desist from doing something;
  • Moral or legal right to acquire- or desist from acquiring- an action, recognition or thing in civil society.  In the second amendment, the right is the entitlement to the action(s) of possessing and bearing a thing referred to as arms by the citizens.

This means that the citizens of the United States who may form a militia in times of needs have unchallengeable entitlement to keep and bear arms without worry that such entitlement may be violated or taken off from them. The citizens need to be fully armed in greater or equal proportion than any active threat be it foreign or domestic and be trained to apply such armament in order to be an effective militia which is an essential part of free community. Moreover, the obeyed entitlement of the people to possess and bear arms is the most influential prevention to tyranny (Rakove, p76). This same thing happened in the kingdom of Europe because the English law regarded the right to have arms as a natural right, which was legal defensible right to life. This means that the people of United States have the unstoppable and unchallengeable entitlement to prosecution or persecution. Restricting these people’s right to acquire arms, any arms, violates their right to keep and bear arms which in turn disarms the militia and such an action is against the constitution by any means.

Let it be clear that a militia is very different from the regular army. This is because the militia is created from private citizens or people who are armed with private weapons, obtained with private funds and not limited by the bureaucracy of the government, funding or uniformity. This also makes the role of a militia very distinct from the role of the regular army whereby it is able to serve a complementary role to the regular army and it can as well oppose it. In the American sense, the term militia refers to the participation of one, several people arranged to give out defensive services, or paramilitary service or the individuals linked to such activity (Patrick, p208). Nevertheless, the term militia can have other several meanings:

  • The whole population of able and bodied male of a civil society, state or town, which can be identified to arms in opposition to an invading enemy, to implement the law or to respond to a tragedy.
  • Defense action and those engaged in it, when it is defense of the property, public and its territory as well as laws.
  • A personal, non-government force, not specifically supported directly or authorized by its government
  • A bureaucrat reserve army, made up of citizen soldiers, also referred to as National Guard, an Army Reserve or State Defense Forces.

In all the four definitions, the ordinary theme is a militia who is different from the common or regular army. It can operate to enhance the regular military or it can operate against it as it is in the second amendment of the US. For example, ‘the militia can serve to oppose and or resist a military coup where the army intends to overthrow the government’ (Gary, p6).  In some cases, the militia can operate against the enemy who may be the domestic political government opponents like the strikers; in some situations, it may be interpreted essentially to mobilize militia in the periods of political turbulence whereby the constitutional entitlements are violated or suspended and a government becomes cruel and dictatorial. In several cases, the function of a militia is seen to be controversial and this is why legal restrictions may be laid down on mobilization or implementation of militia.

Therefore, it is clear that the second amendment of the United States constitution was very essential part of the Bill of Rights where the people are able to keep and bear arms mainly for useful purposes like self-defense and playing the militia role where they can be for or against the regular military depending on the task. This is because sometimes the military has negative missions like carrying out a coup and this is the best time for the militia to be against the regular army (Kates, p243). However, when the military performs a defensive task for the nation, the militia can come in and supplement the military hence proving its importance.

The core issue to the whole concept of militia as applied by the American establishers of the second amendment of the constitution was that the militia should be appropriately regulated meaning that it was to be well organized and well trained though not essentially by the government. Therefore, the term militia would only be used to the individuals who behave in a law-enforcing mode, a responsible manner and who might work to manipulate an armed, unruly mob. There is no doubt that the second amendment unmistakably protects the right of the citizens to keep and bear arms. The same phrase, “the right of the people” (Carl, p89) is used in the first and fourth amendment’s where it clearly refers to the rights of the people. Note that all the three amendments were structured at the same period along with the amendment ten, which gives a clear implication of the difference between the people and the states. This means that the state has its rights and powers in the constitution but they should as well respect and never infringe the rights of the people in owing and possessing the arms for private use. Therefore, it is clear that the framers of the amendment specifically decided to protect the right of persons and not the rights of the states. This is because most of the time the state tends to violates the rights of the people especially the leaders who take advantage of their positions and authority to infringe the rights of the people. However, the second amendment rights to keep and bear arms are well protected and appropriately considered thus, the people posses the arms and has all the rights to form a militia and support or oppose the military.  

If there was any, need for the right theory for the state it would have originated from the prefatory phrase “a well controlled militia, being essential to the Free State’s security….” (Patrick, p210). This is from the second amendment. The phrase cannot alternate or interfere with the true meaning of the operative clause of the amendment, which suggests that the people have the right to keep and bear arms and it shall not be infringed. It is truly clear that the constitution entails that it keeps the right of the people to keep and bear arms since a well-controlled militia is essentially for the security of a free state. However, it is true that the agencies of the government for example, the congress or the courts believe that this right promotes a well-controlled militia. If this was the second amendment’s meaning, it would have issued a well controlled militia being compulsory for the free state’s security, “the right of the militia to keep and bear arms shall not be violated” (Kates, p256).  Nevertheless, the constitution does not have such a statement and to make it different, the second amendment clearly differentiates “the people” from the “militia”. Note that the framers were highly familiar with such differences in statements and terms, that is why they clearly gave the distinction and stressed on the right of people to keep and bear arms.

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