2nd Amendment Reality Check

The gun. No other mechanical device has such hallowed status in politics. It is an article of faith that gun ownership is a right sanctified by the Founding Fathers.

"I believe the Second Amendment is America's first freedom among that entire magnificent Bill of Rights," declared Charlton Heston, president of the National Rifle Association.

Time out!

There is one rather important group that has never said the Second Amendment protects the right to own a gun: the U.S. Supreme Court.

In fact, the Supreme Court is so convinced that there is no such right, the Court hasn't heard a Second Amendment case since 1939, reports CBS News Correspondent Eric Engberg. Back then, when the justices looked at the framers' words, it ruled repeatedly that it was militias - National Guards - that have a right to arms. Individuals do not.

The Supreme Court has not heard a Second Amendment case since 1939.

"The Supreme Court has never outlawed a criminal prosecution or a gun control regulation because of the Second Amendment," said Professor Carl Bogus of the Roger Williams School Of Law.

In 1981, a federal appeals court declared flatly that "A possession of hand guns by individuals is not part of the right to keep and bear arms." The Supreme Court could have overturned that decision, but it did not.

That does not mean the issue is closed. A debate still simmers among scholars about what the framers intended, and there is always a chance of a future reversal in the courts.

"My view of the Second Amendment is that the framers intended to protect an individual right to keep and bear arms," said historian Robert Cottrol of George Washington University Law School. "Courts can get it wrong. Courts can be hostile to certain rights. Judges are human."




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Our view of gun laws is shaped by our view of the gun in early America. We cherish the image of the colonialist with his musket ready to feed and defend his family and fend off tyranny. It is a romantic image that bears little resemblance to historical fact.

A tour of the Smithsonian Institution's arms collection, guided by resident expert Harry Hunter, illustrates the real history. Guns were scarce when the Second Amendment was drafted. They were hand-made and expensive. Hunting was reserved for the rich and for professional hunters.

During colonial times, private gun ownership was rare.

Records from the time show just how few guns there were. A census by Massachusetts in 1789 found less than six percent of the people owned a gun. In 1810 the first U.S. census found 4.3 percent of the public had a firearm.

Those guns that did exist were strictly regulated before and after the Second Amendment was passed by all 13 states.

Among those barred from owning a gun were slaves, free blacks, property-less whites, Catholics and other non-Protestants.

"There wasn't a notion of a right to own guns in the way we think of rights today," Bogus said.

History molds today's debates about guns -- a history filtered by myth as much as fact.

Reported by Eric Engberg.
  • CBSNews.com staff CBSNews.com staff

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