Second Amendment:

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.

Historical surveys of the Second Amendment often trace its roots, at least in part, through the English Bill of Rights of 1689,1 which declared that subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law.2 That provision grew out of friction over the English Crown’s efforts to use loyal militias to control and disarm dissidents and enhance the Crown’s standing army, among other things, prior to the Glorious Revolution that supplanted King James II in favor of William and Mary.3

The early American experience with militias and military authority would inform what would become the Second Amendment as well. In Founding-era America, citizen militias drawn from the local community existed to provide for the common defense, and standing armies of professional soldiers were viewed by some with suspicion.4 The Declaration of Independence listed as greivances against King George III that he had affected to render the Military independent of and superior to the Civil power and had kept among us, in times of peace, Standing Armies without the Consent of our legislatures.5 Following the Revolutionary War, several states codified constitutional arms-bearing rights in contexts that echoed these concerns—for instance, Article XIII of the Pennsylvania Declaration of Rights of 1776 read:

That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.6

Similarly, as another example, Massachusetts’s Declaration of Rights from 1780 provided:

The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.7

Mistrust of standing armies, like the one employed by the English Crown to control the colonies, and anti-Federalist concerns with centralized military power colored the debate surrounding ratification of the federal Constitution and the need for a Bill of Rights.8 Provisions in the Constitution gave Congress power to establish and fund an Army,9 as well as authority to organize, arm, discipline, and call forth the militia in certain circumstances (while reserving to the states authority over appointment of militia officers and training).10 The motivation for these provisions appears to have been recognition of the danger of relying on inadequately trained soldiers as the primary means of providing for the common defense.11 However, despite structural limitations such as a two-year limit on Army appropriations and certain militia reservations to the states, fears remained during the ratification debates that these provisions of the Constitution gave too much power to the federal government and were dangerous to liberty.12

In the Federalist, James Madison argued that the State governments, with the people on their side, would be more than adequate to counterbalance a federally controlled regular army, even one fully equal to the resources of the country.13 In Madison’s view, the advantage of being armed, together with the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.14 Nevertheless, several states considered or proposed to the First Congress constitutional amendments that would explicitly protect arms-bearing rights, in various formulations.15

Tasked with digesting the many proposals for amendments made by the various state ratification conventions and stewarding them through the First Federal Congress,16 James Madison produced an initial draft of the Second Amendment as follows:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.17

The committee of the House of Representatives that considered Madison’s formulation altered the order of the clauses such that the militia clause now came first, with a new specification of the militia as composed of the body of the people, and made several other wording and punctuation changes.18

Debate in the House largely centered on the proposed Amendment’s religious-objector clause, with Elbridge Gerry, for instance, arguing that the clause would give the people in power the ability to declare who are those religiously scrupulous, and prevent them from bearing arms.19 Gerry proposed that the provision be confined to persons belonging to a religious sect scrupulous of bearing arms, but his proposed addition was not accepted.20 Other proposals not accepted included striking out the entire clause, making it subject to paying an equivalent, which Roger Sherman found problematic given religious objectors would be equally scrupulous of getting substitutes or paying an equivalent,21 and adding after a well regulated militia the phrase trained to arms, which Elbridge Gerry believed would make clear that it was the duty of the Government to provide the referenced security of a free State.22

As resolved by the House of Representatives on August 24, 1789, the version of the Second Amendment sent to the Senate remained similar to the version initially drafted by James Madison, with one of the largest changes being the re-ordering of the first two clauses.23 The provision at that time read:

A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.24

The Amendment would take what would become its final form in the Senate, where the religious-objector clause was finally removed and several other phrases were modified.25 For instance, the phrase referencing the militia as composed of the body of the People was struck, and the descriptor of the militia as the best security of a free State was modified to necessary to the security of a free State.26 Several other changes were proposed and rejected, including adding limitations on a standing army in time of peace and adding next to the words bear arms the phrase for the common defence.27 The final language of the Second Amendment was agreed to and transmitted to the states in late September of 1789.28

Legislation against Gun Control

Both Congress chambers and all 50 states have formulated laws to expand firearm access. Approximately 986 pieces of this legislation were introduced in the first half of 2023. New York, Illinois, and Oklahoma proposed the most bills seeking to increase firearm access, while Tennessee, Arkansas, and Montana passed the most legislation in this category. 

Table 1: Most active states in the proposal and passage of bills expanding firearm access (Jan-Jun 2023)

Many of these bills are well-known. They demonstrate efforts to advance the right to carry in public by reducing training, registration, and permitting requirements. Here are some notable legislation to expand gun access in America in 2023.

Permitless Carry

Permitless carry is also referred to as constitutional carry. Alabama effected this law on January 1, 2023. It allows anyone 19 years and over who is lawfully entitled to own a firearm to carry a concealed one in public without a permit. The 2022 law that developed a database of individuals banned from owning guns significantly aided the passage of this law. Even so, residents of Alabama are still banned from carrying a firearm in areas stipulated under state and federal laws, like jails, courthouses, and facilities hosting athletic events. Private property owners are also legally allowed to prohibit concealed weapons within their compounds. Any gun owner who fails to comply could face trespass charges. 

After Alabama, Florida, Nebraska, and Alaska have also affected their permitless carry laws. Presently, 28 US states have legislation allowing residents to carry concealed weapons without permits. 

Mississippi 2023 Legislation

Mississippi has the highest per capita rate of gun deaths. Some would use this as a case for gun control. However, the state’s legislators introduced five laws easing gun access in 2023. The legislation:

• Prevents the restriction of gun suppressors
• Allows school employees to be armed
• Allows law enforcers more flexibility in weapons possession
• Bans firearm recordkeeping

Marijuana Users’ Right to Carry 

In Minnesota, Arkansas, and Delaware, lawmakers passed laws protecting the freedom of marijuana users to acquire firearms. Minnesota’s HF 100 regulates and legalizes recreational marijuana. The legislation has provisions that disallow authorities from denying one a gun permit due to marijuana usage. The bill also restores the right to firearm access of residents whose records were deleted from marijuana-related convictions. 

North Carolina’s Removal of Permits to Purchase

At the start of 2023, 13 states required background checks for one to buy a firearm. In January 2023, North Carolina lawmakers introduced S 41 to strike down the requirement of a permit to obtain a gun. The law took effect in March. 

In addition to removing background checks, the bill allows permit holders to bring their firearms onto specific school properties at stipulated times. This part of the bill is expected to be effective from December 2023. 

Legislation for Gun Control

In 2023, New York, Illinois, and Texas introduced the majority of the bills restricting gun access, while Colorado, Maryland, and Washington passed the most firearm control laws. Below are some significant gun control legislation introduced at the state and federal levels in 2023. 

Final Rule on Stabilizing Braces

Photo by Tima Miroshnichenko

ATF Final Rule 2021R-08F became effective in January 2023. The bill revised the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) rules on firearms fired from a shooter’s shoulder. It clarifies that when individuals, dealers, and manufacturers attach stabilizing braces to pistols, they convert them into short-barreled rifles. These weapons have barrels shorter than 16 inches and are subject to different regulations from those of pistols. The different laws are because short-barreled rifles are as easy to conceal as pistols yet have superior destructive capacity to handguns. 

The stabilizing brace has been used in several mass shootings. This rule is meant to make it difficult for ill-willed citizens to circumvent legal loopholes and convert their handguns into more powerful rifles that could harm innocent Americans. 

It is important to note that the legislation does not include accessories objectively created for use as stabilizing braces by persons with disabilities. Such braces are made to conform to a shooter’s arms and not for use as gunstocks. Users of the restricted stabilizing brace had until May 31, 2023, to register their guns as short-barrelled rifles tax-free. Those who have not done so can still comply with the rule by:

• Removing the short barrel and attaching a rifle with a barrel length of at least 16 inches
• Permanently removing, disposing, or deforming the stabilizing brace such that it’s not re-attachable
• Surrendering the firearm to ATF officials

Assault Weapons Ban

Photo by STNGR LLC on Unsplash

Assault weapons have been used in about 25% of US mass shootings. These rifles are semi-automatic and made for military use and more efficient killing. Accordingly, shootings involving them often have more casualties than those involving non-assault rifles. Their unique lethalness stems from their great muzzle velocity and rapid-fire rate. When a shooter using an assault rifle pulls its trigger, it fires a bullet and automatically loads a new one. This allows them to fire many rounds within a short period. If the shooter has military-grade tactical gear, stopping him becomes even more difficult. That’s why states like New York have created laws restricting the sale and use of bulletproof vests above grade three to residents unless they belong to an eligible profession. 

AR-15s are the most widely used assault weapons in the US. AR magazines hold up to 30 rounds of ammunition, and the guns are semi-automatic. That allows a shooter to fire for long without stopping to reload. 

Acknowledging this danger, the Federal government has taken steps to ban assault weapons. In January 2023, the California senator introduced S25 to Congress. The bill intends to impose a federal ban on assault rifles and has the backing of President Joe Biden. S25 is presently under review by the Judiciary Committee.

As of October 2023, 10 states have active assault rifle bans. In April 2023, Governor Inslee of Washington assented to HB 1240, effectively restricting the use of 61 assault weapons. Other states with similar restrictions are California, Connecticut, Delaware, Hawaii, Maryland, New Jersey, Massachusetts, New York, and Illinois. 

Other Restrictive Legislation

In addition to banning assault rifles and specific gun accessories, states have other laws to regulate residents’ access to guns.  For instance, Colorado introduced HB 1219, which requires a buyer to wait three days after purchasing a gun to receive it. This waiting period allows the dealer to initiate a background check on the buyer and get approval from the ATF to dispatch the weapon. Dealers who break this law are liable to a fine of between $500 and $5,000. 

Washington has HB 1143, which requires gun buyers to be trained on proper handling, usage, transportation, and storage of their rifles. The training under this law also includes:

• Peaceful de-escalation strategies
• Risk awareness related to children and other individuals with suicidal tendencies accessing guns
• Explanation of the laws of self-defense