Ep. 89 – The Second Amendment

We’ve wrapped up our episodes on the First Amendment, and you know what that means – on to the second! People often argue about the Second Amendment – but do they know what it really says? In this episode, we’re joined by Second Amendment and firearms policy expert Stephen Gutowski from The Reload to give us the real scoop.

Episode Transcript

(00:00):
Now this is the FCB podcast Network. They're greed us all Germany and they
thought so America. Welcome back tothe Growing Patriot podcast American History for Kids.

(00:31):
I'm your host, Amelia Hamilton.We just wrapped up the First Amendment,
so now it's time to dive intothe second and see what that's all
about. The Second Amendment says awell regulated militia, being necessary to the
security of a free state, theright of the people to keep and bear
arms shall not be infringed. Nowwe're going to be joined by a Second

(00:54):
Amendment expert to tell us just whatthat means. But first some questions.
Hi, my name is Zach Benson. I live in Arizona. I enjoy

(01:15):
the outdoors and engineering. The secondone is the right to bear arms shall
not be infringed. If that's thecase, why are there limits on what
firearms were allowed to own as citizens? And now some more questions. Hi,

(01:38):
my name is a Staer. Ilive in South Carolina. I'm named
after the singer Spooner. I playbaseball, and I have some questions about
the Second Amendment. I was wonderingwhy our founders thought it was so so
important in the Bill of rights.Is it still important today? Does it

(02:00):
have any restrictions today? Did womenhave guns? The slaves have guns?
Did it have any restriction back then? Why did they call it arms?

(02:22):
My name is Stephen Gatowski. I'mthe founder and editor of the Reload dot
Com, which is a news publicationthat focuses on FIMS policy and politics.
I'm also a Scene End contributor whereI talked about the same topics on TV.
And I'm also a certified farms instructorso and and an avid shooter and

(02:43):
somebody who likes to do competitive shootingand build my own guns. And I'm
very very much interested in in therecreational aspects of shooting. And I carry
a gun as well. I havea concealed carry permit here in Virginia where
I live, as well as inPennsylvania where I'm from. So yes,

(03:04):
I'm very very closely associated with firearmsand and everything about them. So yeah,
what it came time to do mysecond Amendment episode, I knew exactly
who I wanted to talk to.So I'm so glad you're joining us today.
Yeah. Absolutely, I really appreciateyou reaching out and I think it'll
be a lot of fun yeah,all right, So let's start with the

(03:27):
beginning. Why did our founders thinkit was important to have a right to
bear arms in the Bill of Rights? The founders, if you know,
remember your US history here, hadjust gone through a revolution where they threw
off their old government to the Kingof England because they felt he was pressing

(03:51):
them and take stripping them of theirGod given rights, and they used arms
to throw off that tyrannical government andform a new one. And so part
of the vision for the new countrywas that it would have robust rights protections

(04:11):
so that the government that they werecreating could never become tyrannical in the way
that the one they had just revoltedagainst was. And so part of that
was writing the Bill of Rights.When they went to create the constitution,
you know, there's a few yearsinto the new country. The old system

(04:31):
they were using, the initial system, the Articles of Confederation, weren't working,
and so they created a new systemcalled the Constitution. And one of
the concerns that some of the foundershad with that new constitution is that it
gave too much power to the government, to the federal government. And so
one of the compromises that was madeat that point was to write the Bill

(04:54):
of Rights to give these guarantees ofindividual rights to the people so that the
government couldn't do certain things. Andthey wanted this to be written down and
enshrined in as part of the Constitutionas the first ten amendments to the Constitution.
And so that's where the Second Amendmentcomes in as something that they've viewed

(05:18):
as necessary to a free state.Right. They talked about in the Second
Amendment to a well regulated militia beingnecessary to the security of a free state,
that the rights of the people tokeep him about bare arms should not
be infringed. So they they viewed, of course, the right of individuals

(05:44):
of the people to continue to havearms as a core function of protecting the
freedom of people in the country inthe same way that it had done that
during the revolutionary period. Yeah,you talked a little bit about the language
in it, and I would loveto know a little bit more about what

(06:08):
we talked about a well regulated militiaand the term infringed. So what is
well regulated mean? What's militia meanin this context? Yeah, that's a
great question, right, Well,what is the militia of what is well
regulated mean, how does this connectwith the right of the people to keep
him bear arms? Right, there'ssort of this. The Second Amendment is
a little bit unique in this waythat they have what the Supreme Court has

(06:30):
called a prefatory clause. Might bethat's a big word, but essentially it
means that it's a justification for whythis right would be enshrined in the Constitution.
It's not a condition of that right. So you don't have to join
an official militia in order to bea part of the people who have a
right to keep him bear arms andwell regulated at the time meant and still

(06:56):
does in some circumstances today, basicallywell trained. So the militia who was
during the Revolutionary War was a keyaspect of winning that war. But one
of the key parts of the strategyfor using the militia was that they should
be well equipped with the arms thatthey needed, and they should be well

(07:19):
well trained in order to be aneffective fighting force that would supplement, you
know, a standing army, andso that was something that they put in
there. You know, the founderswere also very weary of a just the
government having an army around all thetime in that period. They had concerns

(07:45):
over how the government would would usean army that's just around. It's obviously
the culturally is different than it istoday, but that was one of the
concerns, and so they didn't Theywanted also to have this militia of people
who were active there. You know, who's the militia. Well, at
the time, um, you hadGeorge Mason, who's a pounding father from

(08:05):
Virginia explain, um, in adebate about the militia and the Virginia Constitution
that the militias is basically everyone,um, you know, the people,
any able bodied man at the time. And and so the more important thing
though is to look at who theright is reserved too. You know,

(08:28):
they say, the right isn't theright of the militia, it's the right
of the people. And you know, the people has mentioned several times throughout
the Bill of Rights, you know, whether it's the Fourth Amendment or or
the First Amendment, you know,and and every time it's been interpreted to
mean individuals, you know, peoplethat generally everyone in the United States.

(08:52):
And and so that's how the SuprintCourt has also interpreted it for the Second
Amendment. Okay, what about infringe, What shall not be infringed?
I mean, yeah, that's agreat question, right, because that's where
you get into, well, what'sacceptable as far as gun regulations go.
Then if we have the Second Amendment, it says the right to keep them

(09:13):
bear arms shall not be infringed.What's an infringement. Well, that's kind
of the big question when you're lookingat court cases or different laws that exist
and have existed even back to theFounding period. The Supreme Court has said
that, you know, there aresome regulations that are constitutional under the Second

(09:37):
Amender. There are some gun regulationsas long as they have a long standing
tradition. There's this long history thatdates back to the Founding air. The
same people who wrote the Second Amendment, if they also had gun regulations that
were common during that time, thenpresumably they were okay under the Second Amendment.

(09:58):
If the same people who wrote theSecond Amendment also had restrictions on you
know, a criminal could have firearms, then you know that's okay under the
Secondment. So the infringement is thekey thing, like what constitutes an infringement,
And that's not something that's totally settled, right, This is something that's
an ongoing fight, and not justaround the Second Amendment. Right, this

(10:20):
is something that we've been arguing aboutfor centuries, under the First Amendment,
the Fourth Amendment, the Fifth Amendment, basically all of them. There's we
have these rights, and exactly whatthat means in practice is something that we
have a whole court system to figureout. Right, Yeah, absolutely,

(10:41):
And that kind of goes along witha question that I've been asking when I
had guests on about freedom of thepress and things like that, which is
technology has changed a lot. Youknow, our founders when they said freedom
of the press, they didn't knowthat we'd be able to send a tweet
that everyone would see, or postsomething on TikTok that everyone could watch,
or like a podcast, right,exactly, a podcast. So do you

(11:01):
think that our founders, you know, if they knew the weapons that we'd
have today, would they still sayshall not be infringed? Yeah? Sure,
I mean I think that the sameprinciple applies there with modern weaponry,
modern firearms compared to you know,modern press technologies. You know, the

(11:22):
founders would probably be far more surprisedby something like the Internet than they would
buy something like a modern semi automatichandgun. Really. I mean, it's
obviously there's been a lot of advancementin technology in both areas, but your
modern rifle doesn't isn't that different fromthe muskets that they used at the time.

(11:45):
It certainly has significantly advanced, butit's not something where you know,
the very basic technology remains similar.It's it's far far improved, of course.
But yeah, but yeah, thisis something that the Supreme Court has
also weighed in and actually unanimously theyruled in a case called Satano back in

(12:05):
twenty sixteen that you know, theSecond Amendment protects modern arms as well.
There's no, it's not just armsthat were in common use during the founding
US. It's also modern firearms.Is the principle remains the same, and
it still applies to new technology today. Sure, because a lot of those

(12:26):
founders, you know, the weaponsthat they had were the peak of technology
then and they were okay with everyone. I mean they had cannons and warships
too. Yeah, some of thestuff they had is far more potentially devastating
and are powerful. Exactly. Yeah, we did average civilians today. We
did an episode when we started talkingabout the revolution with Ashley Hill Lebinsky,

(12:50):
who is I'm sure you know hera firearms historian. Yes, and we
talked a lot about about what wasavailable at the time, and it was
some pretty some pretty impressive stuff.Yeah, I mean always so it's advanced.
You know, not to discount thelast two hundred years of firearms technology,
but I'm just saying the Internet isfar more stark change from the peduncle

(13:11):
of the day than moving from youknow, a puckle gun to an I
R fifteen. So, you know, it's it's not that technology hasn't changed,
It certainly has. It's just thatthe principles haven't changed, you know,
they've remained the same. That waskind of the point of a written
constitution, right, is that youwrite these things down so that the principle

(13:33):
can remain in effect for generations tocome. And of course this the founders
also gave us a way to changethe constitution, you know, to keep
up with changes in technology or changesin culture, changes in time. You
know, we have a method toamend the constitution. Right that that that

(13:56):
was their solution. You know,they knew things weren't going to always be
the same um and that modern problemsmight require different approach. And so therefore
they gave us a way to changeconcerts. Then we've done that for the
better many times. Right, Likeyou know you asked about, um,
you know, who's the militia rightwell, at the time and the fact

(14:16):
during the founding Obviously the country ismade up of people, and people are
flawed and and there were some verysignificant falls that were in place during our
founding air. Right, the slaverywomen didn't have rights, so the militia
wouldn't have included African Americans or orwomen and them, and that's something that

(14:37):
we've changed in the constitution over timeto ensure that the rights of minorities and
women are protected the same way therights of white men are. Yeah,
so um, you know, alongwith with that, you know, Lysander
asked if slaves and women could haveguns at the time, and as you
said, they couldn't. But that'sdefinitely something that's that's changed, and you

(15:00):
helped with equality. Yeah, theirrights were severely restricted or completely destroyed at
the at the founding period and forup until the Civil War, right,
and for women up until uh,you know, the nineteenth Amendment. The
suffer, the suffragets, the womenwho fought for the right to vote and
to you know, to be uminvested with those same rights that everyone else

(15:24):
has. And so at the foundingera, we didn't have those protections and
it was a great wrong right inAmerican history and something that Americans had to
fight to change, both you know, minorities themselves and others who were allied
with them, and it I mean, and it took a Civil War unfortunately,

(15:46):
to to get rid of slavery andto change the Constitution to um outlaw
that practice and to give people theirfull rights. That's what the fourteenth Amendment
was about, right, And soyeah, at the time, minorities and
women didn't have the same rights aseveryone else, and that's a black mark

(16:08):
right on our history. But againit's something that we changed and today they
do absolutely. So speaking of restrictions, I want to get into a little
bit about what some of the restrictionsare today. I know you mentioned having
a concealed carry permit, and somestates you have to get a special permit
if you want to carry a gun. In some states say what's called constitutional

(16:30):
carry, where the Constitution says youcan, so you can. So what
are some of the restrictions that havebeen placed sure. I mean, there's
quite a lot of restrictions on fireownership in the United States, not not
as much as in many other countries, but certainly you have restrictions on who
can own guns. We have federallaws and state laws that govern that.

(16:52):
So somebody who's, for instance,been convicted of a felony, if they've
served more than one year in jail, they can't own guns for the rest
of their lives. Somebody who's beeninvoluntarily committed as a you know, a
threat to themselves or others, ajudge has ordered that they be put into
a mental institution, that person can'town guns for the rest of their lives.

(17:15):
You know that somebody who's been convictedof misdemeanor domestic violence, so it's
a lower level crime than a famony, but because it's domestic bonus related,
Yeah, we've the federal government prohibitspeople from owning guns over those sorts of
crimes that they've been convicted of.You know. Of course, there's a

(17:37):
lot of regulations on how you cansell firearms. If you sell guns as
a business, you have to geta federal license to do that, and
you have to conduct, for instance, background checks on people who buy guns
from you. So if you gointo a gun store, that person is
going to have a license from thefederal government to operate. They're going to
do a background check on you thatgoes through the FBI's background checks database to

(18:03):
see if you have any of therecords of those sorts of things that I
just mentioned that would make you prohibitedfrom possessing guns. And then you know
there's record keeping requirements and things alongthose nature. Yet carrying a gun is
another another area where there's significantly morerestrictions. For instance, many states,

(18:26):
although most states, as you mentioned, don't require a permit anymore to carry
firearms so long as you can legallyhave the firearm. So you know,
somebody who is a convicted felon,for instance, they can't legally carry a
gun because they can't legally even possessa gun. Yeah, and so,

(18:48):
but even places that have permit listscarry have required they have different areas where
you can't take a gun courthouses orschools or you know, voting owning places,
things of that nature. Some somestates have a lot more of them.
Right, I think people generally callthese gun free zones. Right,
you can't take you can't carry agun on private property where it's posted that

(19:11):
guns aren't allowed. Um, that'susually illegal. And you know, so
there there's age restrictions. For instance, there's a federal law that restricts handgun
sales to anyone under twenty one,So even if you're an adult and you're
over eighteen, you can't buy ahandgun from a licensed dealer. Although that

(19:33):
a lot of these are being challengedin courts. There's still a lot of
debate over these restrictions, but theyexist. There's there's restrictions on how guns
can come into the country for saleor whether they can be exported for sale.
You know, there's a lot somestates have bands on the sale of

(19:55):
certain kinds of guns, like aR fifteen there's or so called assault weapons.
And some states have bands on magazinesthat hold more than ten or fifteen
rounds. You know, there's there'sa lot of variety out there in terms
of you know, and so youhave the federal laws and then of course
you have the state laws, andthose can be much more, much more

(20:18):
restrictive, but also just wildly differentdepending on the state you're in. Yeah,
so, so has it ever inAmerican history? It seems like it's
probably never been harder to buy agun with all the all the laws.
Yeah, I mean that's kind oftrue, right, I mean, um,
you know, not that it's ifyou have no criminal background or not

(20:38):
nothing in your record that would keepyou from buying a gun. And in
most states it's not that difficult todo. You know, you go to
a store and you you the system. The background check system is designed so
that it's supposed to be instant.That's in the name, right, the
National Instant Criminal Background Check System iswhat it's called, or KNICKS. But
you know, so you can youcan buy a gun relatively quickly in most

(21:00):
states, so long as you passthat background check. But yeah, you're
you're right. Um, for instance, you can't buy a gun and have
it shipped to your house like youwould if you bought something off Amazon,
right, there's no Amazon Prime forguns. You have to if you buy
a gun online, you have tohave it shipped to a local gun dealer
and then go pick it up fromthem and do the background check there.

(21:23):
Um, you know, private salesor are generally not allowed across state lines
for for handguns at the very least, And you know, so unlike if
you wanted to sell your TV tosomebody in your neighboring state, you could
do that. You can't do thatwith a handgun. Um and not.

(21:45):
You know, these are and I'mjust listening the regulations. Whether people like
them or dislike them is another question. But yeah, um, yeah,
you know you used to be ableto there's restrictions on fully automatic guns machine
guns. Right, you can't buynew machine guns anymore. You used to
be able to. You used tobe able to buy machine guns through the

(22:06):
mail and have it delivered to yourdoor with no background check. That's yeah.
You know you go back not evennecessarily that far, like the the
nineteen thirties, and you could dothat, um, but you can't do
that today. And and you knownot to say that. That's These are
all super controversial regulations. A lotof them have broad support, but that

(22:26):
but you're right, your great grandparentsgeneration would have had far fewer restrictions on
how they can buy guns and whatkind of guns they can buy than the
current generation does. So what arewhat are some other things that people might
might misunderstand about the Second Amendment thatwe can clear up? Yeah? I

(22:47):
mean I think there's uh, there'sthere's a lot of confusion over um that
militia clause, right, there's alot of debate and confusion over it.
There's a lot of you know,this has really been settled law in the
federal courts by the Supreme Courts sincetwo thousand and eight, that the Second

(23:08):
Amendment applies to individuals, not toyou know, and it's not some sort
of collective right that means nothing forindividuals. It doesn't apply to people who
are in the National Guard or somethingthat you hear that occasionally that sort of
the national Guard is like the militia, which is not really true comparison anyway.

(23:33):
But but you know, you hearthese sorts of things still today all
the time, the stuff about thatit just protects muskets or whatever. You
know, these things are well outsideof what is actually being argued in court
anymore, because the Supreme Court hasalready ruled on this, and certainly,
you know, the Supreme Court canchange its mind over time, but it's

(23:56):
unlikely any of that is going tochange anytime. But you still hear a
lot of that debate in you know, in the media or or just generally
online where you get a lot ofpeople talking about how the Second Amendment basically
just doesn't mean anything like that's.Yeah, this collective right argument is kind

(24:18):
of like, well, it's acollective right and the government can restrict it
in any way that it wants.So I always kind of wonder like,
well, what do you think thepoint of that amendment being in there?
Right? It just means nothing,but anyway, so you still get a
lot of that debate, even thoughyou know it's pretty well settled in the
courts at this point. Okay,so final question, why is the Second

(24:44):
Amendment still important today? You know, two hundred and fifty is years later.
Yeah, I mean, I thinkit's still matters for the same reasons
that it mattered at the founding,Like it's a bulwork, and armed people
is a bulwork against tyranny, youknow. And now that's pretty remote concept
for us today, right, We'renot necessarily worried about being invaded or about

(25:07):
the government trying to send us allto camps or something like that. It's
it's not a it's not a topof mind thing, which is good,
right, That's that's a positive thing. Although you can you do see it
elsewhere in the world. Right Ukrainebeing invaded by Russian that they rushed to
armed civilians in that scenario. Soyou can still see it in modern um

(25:29):
context around the world. But yeah, for for us today, I mean,
you know, not only is theSecond Amendment there for the purpose of
the protection of a free state,but but it also is there to help
people exercise their right to self defense. This is the other aspect of the

(25:49):
Second Amendment. That's that's key aswell. There's there's hunting too, right,
You firms have all kinds of uses, and you get hunting gets talked
about a lot um around the SecondAmendment or whatever, and you don't need
certain kinds of guns for hunting.But the second modments poor. While it
does certainly protect you using your firearmsto hunt, it is more about self

(26:11):
preservation and national preservation than it everwas about the right to hunt. And
so you know, self defense isonly as your right to self defense is
only as useful as the tools youhave to carry it out. So if
you restrict the people the right tobear arms, you're restricting the right to

(26:40):
self defense. And you know,you're limiting what people can use to to
defend themselves against potentially a bigger,stronger person that is trying to harm them
or multiple people, and so itremains an important thing, a thing for
all of them those reasons, right, it's not just one or the other.

(27:02):
Even recreation, right, you know, there's recreational shooting is probably the
most common way that people use theirfarms. Right, even even though self
defense is the main reason that alot of people buy a gun, and
the philosophical sort of view of theSecond Amendment protecting our liberties is important to

(27:22):
a lot of people. And evenhunting is a common pastime or even way
to get you know, a practicalway to get food. But most people
use their guns for recreation most ofthe time. That's that's where the best
majority of time is spent, thebest majority of rounds are discharged in recreational

(27:44):
shooting, competitive shooting, going tothe range, plinking, you know,
shooting, and your your your localrange, your backyard range if you have
one, if you have the abilityto do that safely. But there's,
um, there's a whole use offirearms. And it's not just one or
one thing here, one thing therethat makes them relevant today. It's it's

(28:07):
all of this stuff at once,absolutely all, right, well, Stephen,
thank you so much for joining ustoday. This was a great overview
of the Second Amendment and why it'sstill important. Absolutely thanks for having me

(28:29):
there. You have it all aboutthe Second Amendment, what it means to
bear arms, what it means tobe a well regulated militia, and what
it means to infringe those rights.So what do you think? You can
find us on Facebook, Instagram,and Twitter at Growing Patriots and find more
about us and the Growing Patriot booksat growing patriots dot com. Talk to
you next time. That great USsolved for Jarany and they thought so we

(29:02):
would be America land Over. Thishas been a presentation of the FCB podcast
Network, where real talk lifts.Visit us online at FCB Podcasts dot com.