미국 연방헌법 수정 제2조 - 무기소지권의 역사적 기원과 의미를 중심으로 -

The Second Amendment of the U.S. Constitution is one of the most overlooked parts of the American Bill of Rights. There is no consensus on even the most basic meaning of the Second Amendment which reads, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, should not be infringed." The scholarly literature is sharply divided between two opposing views. One asserts that the Second Amendment was intended to guarantee an individual right to keep and bear arms. The other holds the right was designed to maintain a well regulated militia collectively for “the security of a free state.”In order to uncover the true meaning of the Second Amendment, this article discusses the origins of the right to keep and bear arms, intellectual influences (English Common law and Republicanism) that shaped the thinking of the Founding Fathers. the events surrounding the Revolutionary War, and the ratification of the Constitution. This Article also engages in a linguistic analysis of the actual language used in the Second Amendment. Americans in the colonial period were free to possess arms under English common law. The firearms enabled settlers to guard themselves from American Indians, wild animals and foreign armies, and citizens assumed much responsibility for self-protection. During the Revolutionary War, each of the states had its own militia comprising of ordinary citizens carrying their own weapons. They fought for freedom and independence against the British government. In light of their past experience with England, the Founding Fathers feared a federal standing army as a tool of a despotic government to subvert the liberties of the people. The right to keep and bear arms was considered central to American identity. A wide range of views exists regarding the Second Amendment, but most legal scholars are coming to agree that it, as a part of the Bill of Rights, guarantees the pre-existing individual right to ‘keep and bear arms.’ This view was echoed by the Founding Fathers who saw the right to bear arms as crucial to what they believed was a prime natural right, self-defence against a tyrannical government. This view was also confirmed by the Supreme Court decision in District of Columbia v. Heller on June 26, 2008, which claimed “gun ownership is a constitutional right.”