"The People" in the Second Amendment

The phrase "the right of the people" appears in the Second Amendment and several other parts of the Bill of Rights. The Supreme Court has interpreted this term to refer to individual citizens, not collective entities.

Constitutional Text

The Second Amendment 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."

The placement and meaning of "the people" has been central to Second Amendment interpretation.

Supreme Court Interpretation

DC v. Heller (2008)

Justice Scalia's majority opinion provided the definitive modern interpretation:

"The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia... 'the people' refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." DC v. Heller, 554 U.S. 570, 580 (2008)

The Court emphasized consistency across the Constitution:

"The unamended Constitution and the Bill of Rights use the phrase 'right of the people' two other times... The First Amendment's Assembly-and-Petition Clause... The Fourth Amendment's Search-and-Seizure Clause... All three of these instances unambiguously refer to individual rights, not 'collective' rights, or rights that may be exercised only through participation in some corporate body." DC v. Heller, 554 U.S. at 579

US v. Verdugo-Urquidez (1990)

The Court previously defined "the people" in Fourth Amendment context:

"'[T]he people' protected by the Fourth Amendment, and by the First and Second Amendments... refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country." United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)

Historical Understanding

Founding Era Usage

In 18th-century usage, "the people" generally referred to the citizenry as individuals:

  • State Constitutions: Many state constitutions used "the people" to describe individual rights
  • Political Writings: Federalist and Anti-Federalist papers used the term for citizens generally
  • Legal Treatises: Blackstone and other authorities referred to individual subjects/citizens

Contrasting Terms

The Founders distinguished between different collective terms:

Term Typical Usage Example
"The people" Individual citizens collectively Bill of Rights protections
"The militia" Organized military force Article I militia clauses
"The states" State governments Tenth Amendment
"The United States" Federal government Treaty power

Usage in Other Amendments

Consistent Pattern

The phrase "the people" appears throughout the Bill of Rights:

  • First Amendment: "the right of the people peaceably to assemble"
  • Second Amendment: "the right of the people to keep and bear Arms"
  • Fourth Amendment: "The right of the people to be secure"
  • Ninth Amendment: "retained by the people"
  • Tenth Amendment: "reserved to the States respectively, or to the people"

Key Point: In every instance, "the people" refers to individuals, not government entities or collective bodies.

Scope of Coverage

Who Is Included

Modern interpretation includes:

  • U.S. citizens (by birth or naturalization)
  • Lawful permanent residents
  • Those with "substantial connections" to the United States
  • Law-abiding individuals generally

Permissible Restrictions

The Supreme Court recognizes that not all individuals have full Second Amendment rights:

"The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the carrying of firearms by felons and the mentally ill." DC v. Heller, 554 U.S. at 626

See Prohibited Persons for detailed categories.

Historical Exclusions

Original Understanding

At the founding, "the people" had a narrower meaning:

  • Generally limited to white male property owners
  • Excluded enslaved persons
  • Often excluded women from political rights
  • Varied by state regarding property requirements

Constitutional Evolution

The scope has expanded through amendments:

  • 14th Amendment (1868): Extended citizenship and equal protection
  • 15th Amendment (1870): Prohibited racial discrimination in voting
  • 19th Amendment (1920): Women's suffrage
  • 26th Amendment (1971): Lowered voting age to 18

These expansions affect understanding of who constitutes "the people" for all constitutional purposes.

Modern Application

Individual vs. Collective Rights

The Supreme Court definitively rejected the "collective rights" interpretation:

"For decades, the Court had understood the Second Amendment to protect only a collective right to keep and bear arms... Heller rejected that understanding." McDonald v. Chicago, 561 U.S. 742, 749 (2010)

Current Debates

Ongoing questions include:

  • Non-citizens: Extent of rights for various immigration statuses
  • Age restrictions: When individuals join "the people" for Second Amendment purposes
  • Mental health: Defining disqualifying conditions
  • Criminal history: Which offenses justify exclusion

Equal Protection Considerations

Modern interpretation must comply with equal protection principles:

  • No racial discrimination
  • No religious tests
  • Gender equality
  • Due process before rights restrictions

Key Takeaways

  • "The people" refers to individuals, not collective entities or state governments
  • The term is used consistently throughout the Bill of Rights
  • Modern interpretation includes all law-abiding citizens and many non-citizens
  • Some categories of people can be restricted (felons, mentally ill)
  • The scope has expanded since the founding through constitutional amendments