Constitution of the United States

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How would the Second Amendment give checks and balances to the federal government?

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The Second Amendment of the Constitution states,

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.

As part of the Bill of Rights, the purpose of the Second Amendment is to protect the rights of US citizens—in this case, the right to bear arms—through checks and balances. First of all, the amendment directly limits the legislature from passing laws that prevent citizens from bearing arms. But it also opens the door for the Supreme Court to check the establishment of laws that would infringe on this right.

But throughout the history of the US, various gun laws have been established at both the federal and state levels with the aim of protecting the people. When citizens believe a given gun law is taking away their Constitutional rights, they challenge the law in court. Several cases have gone all the way up to the Supreme Court, which has the authority to strike down a law.

One example is United States v. Miller, in 1939. In this decision, the Court determined that Congress was allowed to regulate a sawed-off shotgun that had moved in interstate commerce, because there was no evidence that it had a connection to “the preservation or efficiency of a well regulated militia.” In their decision, the Court expressed the view that the Second Amendment was intended by the Framers of the Constitution strictly to ensure the effectiveness of the military.

This case is part of the ongoing debate over the years about whose right to bear arms the Second Amendment really protects. The Court’s decision in this case upholds the “collective rights theory,” which maintains that Congress cannot prevent states from protecting themselves with “a well regulated militia,” but it does not protect the right of individuals to privately own guns. The opposing view, the "individual right theory," cites the Amendment's phrase "the right of the people to keep and bear Arms" as proof that Congress cannot prohibit, or overly restrict, firearm possession.

The precedent set in United States v. Miller stood until 2008. In that year, the Supreme Court exercised its authority in District of Columbia v. Heller by striking down the restrictive Washington DC gun law that had been in effect for thirty-two years. The Court declared that the Second Amendment did, in fact, establish the right of individuals to possess firearms. However, the decision did include a list of “presumptively lawful” regulations. These included banning felons and the mentally ill from possessing arms, banning the carrying of arms in schools or government buildings, and banning the carrying of concealed arms or weapons “not typically possessed by law-abiding citizens for lawful purposes.” In 2010, the Supreme Court struck down a similar law in Chicago (McDonald v. Chicago), effectively using the power of the Second Amendment to check the power of stare legislatures.

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The United States was founded with a system of checks and balances that would allow states to have power over its own population. The Bill of Rights itself was instituted into the Constitution because of the fear that a federal government would eventually trump the powers of the state. One of the best known amendments in this original Bill of Rights is the second, or the right of individuals to bear arms and the right of a state to regulate a militia.

This right would serve as the ultimate check for an issue of disputed power. A state has the right to form a militia and fight back against its own federal government should the government ever infringe upon the freedoms of the independent state. Of course, considering that any such situation would necessitate a fundamental disagreement on rights between the federal and state governments, such a situation would inevitably lead to war, as it did in the 1800s.

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There are at least two ways to interpret this question.

First, it could be asking how the Second Amendment creates checks and balances within the federal government.  In this case, it does so by giving the judicial branch the power to check the actions of the legislature in some regards.  For example, Congress passed a gun control law that affected Washington D.C.  The Supreme Court struck that law down because it violated the Second Amendment.  Thus the Second Amendment ended up causing the judicial branch to overrule the legislative branch.  This is an example of checks and balances.

Second, the question could be asking how the Second Amendment gives the federal government power to check the states.  Here, the answer is that the federal judiciary can check the actions of state legislatures by declaring laws they pass to be unconstitutional.  For example, federal courts have struck down parts of a Chicago law (city governments are, in essence, part of state governments) that placed strict restrictions on who could own a hand gun in the city.  By doing this, the federal government was using the Second Amendment to exert a check on a state government. 

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