With the two recent Supreme Court decisions on the right to possess firearms, and the current national concern and dialogue about gun violence in the United States, I hereby offer a tour through American perspectives and understandings of the source, nature and meaning of “the right to keep and bear arms” as immortalized in the 2nd Amendment to the US Constitution.
Those whose opposition to gun control laws is based on the language of the 2nd Amendment, often point to the English Common Law tradition as the basis of the individual right to own and use firearms, both for sustenance (hunting) and self-defense. Some, including those who are aligned with the National Rifle Associations’ post-1975 shift toward an inviolable right of self-preservation (the NRA used to support gun control), also insist that a primary reason for the “right to keep and bear arms” is to defend against government tyranny – “enemies foreign and domestic”.
Neither of those arguments for an unrestricted right to possess personal firearms hold up under scrutiny of historical analysis, even though the early states-rights and anti-federalist movements promulgated them at the founding of our nation, just as their ideological descendants – the far right – propagate them today as if they comprised a consensus of the Founders and Framers who, in fact, deliberately rejected such individualistic emphasis in favor of a collectivist one.
A More Perfect Union
A Letter of Transmittal from George Washington, addressed to the President of Congress and signed on September 17, 1787, accompanied and introduced the Constitution for ratification and stated succinctly and definitively what the Constitutional Convention had in mind. The second paragraph read:
“It is obviously impracticable in the Federal Government of these States to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty to preserve the rest [emphasis added]. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be preserved [emphasis added]; and, on the present occasion, this difficulty was increased by a difference among the several States as to their situation, extent, habits, and particular interests.”
The very purpose of dissolving the Articles of Confederation and substituting a Constitution to create a stronger central government was to balance civic duty with individual liberty and to balance state sovereignty with federal power to assure “domestic tranquility” or public order.
As will become apparent below, a major impetus for creating a constitutional republic was the recent farmer’s rebellion of 1786-87 called Shay’s Rebellion and the inability of the central government to defend against it due to the absence of a federal militia (George Washington’s concern about this brought him out of retirement to champion a stronger national government with a well-regulated militia).
Further, and contrary to the myth that the 2nd Amendment was intended to give commoners the means to revolt against their own government, the first use of the new well-regulated militia, under Congressional control and the authority of the President, was to suppress the second citizen’s insurrection – the Whiskey Rebellion.
The Whiskey Insurrection was a tax protest based in the western United States beginning in 1791, during the presidency of George Washington, following the imposition of the first federal excise tax intended to help states pay off their Revolutionary War debts. Though westerners correctly viewed the tax as prejudicial to their small-scale distilleries and as a form of taxation without local representation (which many had recently fought against), President Washington led a group of 13,000 militiamen to suppress this insurrection (as Article 1 of the Constitution allows) and the rebels disbanded.
The function of a strong Union was to put the public interest on at least equal footing with individual rights and liberties – a concept that seems to escape the understanding of those today who continue to resist the very notion of civic duty and collective responsibility, championed by Thomas Jefferson, who called it Civic Republicanism – the practice of placing the common good above our individual self-interest.
As legal scholar Michael Waldman notes in his 2014 book The 2nd Amendment: A Biography, there is not a single word about an individual right to a gun for self-defense in the notes from the Constitutional Convention, nor with scattered exceptions in the records of the ratification debates in the states, nor on the floor of the US House of Representatives as it marked up the Second Amendment for approval.
In fact, the 1792 Militia Act, which required all military-age white males to obtain their own muskets and equipment (and often used by individual rights advocates to “prove” that the 2nd Amendment was intended to protect individual gun ownership), was passed by the Second Congress specifically in response to the 1791 Whiskey Rebellion and was intended to make militia participation a universal civic duty that transcended individual rights or liberties.
Gun Control Was the Rule in Colonial & Early America
In 1619, more than a century and a half before the American Revolution, the Virginia House of Burgesses passed a law making the transfer of guns to Native Americans punishable by death. Other laws across the colonies criminalized selling or giving firearms to slaves, indentured servants, Catholics, vagrants and those who refused to swear a loyalty oath to revolutionary forces. Guns could be confiscated or kept in central locations for the defense of the community. And in the late 1700s and early 1800s, states such as New Hampshire and Rhode Island conducted door-to-door arms censuses, acts which today would cause many gun-rights advocates to rise up in revolt and threaten armed retaliation but which were then considered both routine and necessary.
A statute adopted at the Massachusetts 1713-14 legislative session complained, “Whereas by the indiscreet firing of guns laden with shot and ball within the town and harbour of Boston, the lives and limbs of many persons have been lost, and others have been in great danger, as well as other damage has been sustained”, the firing of any “gun or pistol” in Boston (“the islands thereto belonging excepted”) was prohibited.
Ten of the thirteen colonies impressed (temporarily confiscated) privately owned firearms for the war effort against England. Impressed guns were eventually returned to their owners, but the seizure itself might leave the owner without a firearm to defend against attack. To the Founding Fathers, leaving an individual without a gun to defend himself was immaterial in light of the public need for that firearm. Guns were privately owned, but they were also considered assets to be used if necessary for the public good, even if it undermined individual rights.
Following the Revolution, Virginia passed a law requiring all demobilized soldiers to turn their weapons in to the state, and they were hardly the only state with armories for storing and safeguarding militia weapons.
We also harbor, largely due to Hollywood influence, a mythic image of the “Wild West” as a gun-slingin’ lawless region. The reality, however, was that on the western frontier in the 19th century, to stave off violence, new towns and cities enacted laws to bar the carrying of guns. “In fact, the typical western town had stricter gun laws than many 21st-century states.” – Robert J. Spitzer, distinguished service professor and chairman of the political science department at the State University of New York College at Cortland, and author of four books on gun policy, including The Politics of Gun Control.
The most common gun law of late 1800s America was a ban on concealed firearms. According to gun rights historian Clayton Cramer, concealed carry prohibitions were among the earliest types of gun control laws adopted in the years following the Revolution. The first such law was adopted in Kentucky and Louisiana in 1813, Indiana banned concealed carry in 1820, Tennessee and Virginia in 1838, Alabama in 1839, and Ohio in 1859.
In Kentucky, when a state court struck down their concealed carry ban in 1822, the state constitution was quickly amended to provide explicitly that the individual right to bear arms was “subject to the power of the general assembly to enact laws to prevent persons from carrying concealed weapons”.
Though most of the laws regulated concealed carry, several states with constitutional protections for gun rights – including Texas, Florida, and Oklahoma – restricted or banned open carry, too. Only Idaho’s ban on open carry was ruled unconstitutional in 1902.
Bans on concealed carry spread to the frontier. In 1887, Montana banned the concealed carry of any “deadly weapon” within city limits, including pistols, daggers, slingshots and brass knuckles. Violators received six months in jail or a hefty fine. In 1890, Oklahoma passed an even broader law that applied throughout the territory, and made it unlawful for all except law enforcement personnel “to carry concealed or on or about his person, saddle, saddle bags, any pistol, revolver, bowie knife, dirk, dagger, slung-shot, sword cane, spear, metal knuckles, or any other kind of knife or instrument manufactured or sold for the purpose of defense”.
This kind of gun control was sufficiently widespread that the Washington State Supreme Court could write in 1907, “Nearly all states have enacted laws prohibiting the carrying of concealed weapons”.
Common Law Origins
Sir William Blackstone (1723 – 1780) the author of Commentaries on the Laws of England, which became the standard text of Common Law in both England and the colonies, wrote at a time when there were no police or forces of law enforcement about the right to have arms being auxiliary to the “natural right of resistance and self-preservation”, but conceded that the right was subject to their suitability and allowance by law:
“The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”
The entire Enlightenment political philosophy was based on the abandonment of the laws of nature for the laws of society, which required a surrender of such parts of natural law as were either incompatible with a peaceful and ordered society or unnecessary because civil law served the same function. There was a distinction, therefore, between “natural rights” in a state of nature, and “inalienable rights” that even society could not restrain except to protect and preserve social order. Thus, even “life, liberty and property” (or “the pursuit of happiness”, as Jefferson emended Locke’s words), can be constrained or even revoked if social order demands it. Because “your freedom ends where my nose begins” is a commonly-understood maxim of the limits of liberty in society, social order requires a balancing of individual rights with collective rights, and no rights can be completely unrestricted without returning to what Enlightenment scholars understood as the state of anarchic nature.
To Keep and Bear Arms
“In late-eighteenth-century parlance, bearing arms was a term of art with an obvious military and legal connotation. … As a review of the Library of Congress’s data base of congressional proceedings in the revolutionary and early national periods reveals, the thirty uses of ‘bear arms’ and ‘bearing arms’ in bills, statutes, and debates of the Continental, Confederation, and United States’ Congresses between 1774 and 1821 invariably occur in a context exclusively focused on the army or the militia.” – H. Richard Uviller & William G. Merkel (2003), The Militia and the Right to Arms, Or, How the second Amendment Fell Silent
The term to “bear arms” comes from the Latin “arma ferre“, which means to carry military weapons into battle. To “keep arms” meant to stock them in armories. And “the people” referred to the collective population, not to individuals. The Framers clearly understood the use of these terms.
An Individual or a Collective Right?
2nd Amendment: “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.”
John Jay (President of the Continental Congress, signer of the Treaty of Paris which ended the Revolutionary War, author of five of The Federalist Papers, and first Chief Justice of the United States) wrote in a legal opinion in 1793: “A preamble cannot annul enacting clauses; but when it evinces the intention of the legislature and the design of the act, it enables us, in cases of two constructions, to adopt the one most consonant to their intention and design.”
That the original wording of Madison’s Second Amendment allowed “any person religiously scrupulous of bearing arms” to avoid military service, demonstrates plainly not only the military purpose of the amendment but the acceptance of a right not to bear arms as an essential balance against the obligation to bear arms.
Uviller and Merkel hold that the right to bear arms was not reserved to the state, but rather was an individual and personal right for arms, but only to the extent needed to maintain a well regulated militia to support the state. They also hold that a militia recognizable to the framers of the Constitution has ceased to exist in the United States, resulting from deliberate Congressional legislation and also societal neglect; nonetheless, “Technically, all males aged seventeen to forty-five are members of the unorganized militia, but that status has no practical legal significance.”
“From the text as well as a fair understanding of the contemporary ethic regarding arms and liberty, it seems to us overwhelmingly evident that the principal purpose of the Amendment was to secure a personal, individual entitlement to the possession and use of arms. We cannot, however, (as the individual rights contingent generally does) disregard entirely the first part of the text proclaiming a well regulated militia necessary to the security of a free state.”
“…we understand the Second Amendment as though it read: ‘Inasmuch as and so long as a well regulated Militia shall be necessary to the security of a free state and so long as privately held arms shall be essential to the maintenance thereof, the right of the people to keep and bear arms shall not be infringed’ …to us, the language of the Amendment cannot support a right to personal weaponry independent of the social value of a regulated organization of armed citizens.”
“The amendment thus guarantees a right to arms only within the context of a militia, not an individual right to arms for self-defense or hunting.” – David H. Williams (2003), The Mythic Meanings of the Second Amendment: Taming Political Violence In a Constitutional Republic
In deciding against the carrying of concealed weapons in public, an early Arkansas Supreme Court ruling helped clarify this as well.
“The terms ‘common defense’ in ordinary language, means national defense. The reason for keeping and bearing arms given in the [Constitution] is clearly explanatory and furnishes the true interpretation of the claim in question. The militia constitutes the shield and defense for the security of a free State; and to maintain that freedom unimpaired, arms and the right to use them for that purpose are solely guaranteed. The personal rights of the citizens are secured to him through the instrumentality and agency of the constitution and laws of the country; and to them he must appeal for the protection of his private rights and the redress of his private injuries…” – The State v. Buzzard (1842)
In that decision, the Arkansas high court adopted a militia-based, political-right reading of the right to bear arms under state law, and upheld the 21st section of the second article of the Arkansas Constitution that declared, “that the free white men of this State shall have a right to keep and bear arms for their common defense”, while rejecting the necessity of carrying concealed weapons for self-protection since the laws, courts and agents of the state offer sufficient protection and recourse as properly determined by the legislators.
The US Supreme Court, nearly a century later, offered a similar ruling in United States v. Miller (1939):
“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”
A Bulwark Against Tyranny
Even more than simple self-defense, the most ardent proponents of unrestricted gun ownership insist that the ultimate purpose of an armed citizenry, and the reason for the 2nd Amendment, is to create a bulwark against governmental over-reach and, if necessary, the ability to resist governmental tyranny, much as had the Revolutionary militias during the founding of our nation.
The statement: “The Second Amendment was intended to protect the right of Americans to rise up against a tyrannical government” is a canard repeated with disturbing frequency. The Constitution, in Article I, allows armed citizens in militias to “suppress Insurrections”, not cause them. The Constitution defines treason as “levying War” against the government in Article III, and the states can ask the federal government for assistance “against domestic Violence” under Article IV. Our system provides peaceful means for citizens to air grievances and change policy, from the ballot box to the jury box to the right to peaceably assemble. But as constitutional scholar Roscoe Pound noted, a “legal right of the citizen to wage war on the government is something that cannot be admitted” because it would “defeat the whole Bill of Rights” – including the Second Amendment.
– Robert J. Spitzer, distinguished service professor and chairman of the political science department at the State University of New York College at Cortland
What Did the Founders and Framers Think?
The following is excerpted from The Second Amendment in Historical Perspective by Paul Finkelman, President William McKinley Distinguished Professor of Law and Public Policy and Senior Fellow in the Government Law Center at Albany Law School in Albany, NY.
The failure of the national government under the Articles of Confederation prompted the call for a convention to revise the Articles.
While American leaders were contemplating calling a convention to revise the Articles, violent resistance to traditional law enforcement – most notably Shays’ Rebellion in Massachusetts – underscored the sense of crisis that many Americans felt. Farmers led by Captain Daniel Shays marched on local courthouses in western Massachusetts, shutting down the courts and intimidating judges and others. Eventually militia companies from eastern Massachusetts dispersed Shays and his followers.
The delegates to the Philadelphia Convention met with this event fresh in their memories and with the knowledge that the government under the Articles of Confederation would probably be helpless in a similar situation.
The delegates produced a document that strengthened the national government and provided a framework for a viable national defense. Opponents of the new form of government – Antifederalists who feared a strong national government – proposed numerous amendments in the state conventions called to ratify the Constitution. The Antifederalists also expressed their fears of the new Constitution in an enormous amount of public commentary.
[Anti-federalists, while perhaps strongest in Virginia, were also significant elements of the populations of New York, New Hampshire, Massachusetts, Rhode Island, Pennsylvania, Maryland, North Carolina and South Carolina – all told, as many as 200 amendments to the Constitution were proposed by those trying to weaken it.]
The bulk of the proposed amendments were designed to remake the Constitution by severely limiting the power of the national government. If the Antifederalists had succeeded, the United States would have reverted to a decentralized collection of sovereign states with a weak national congress, an almost invisible federal judiciary, and a powerless military with virtually no standing army.
Antifederalists like Patrick Henry proposed a wholesale remaking of the system of government. The fact that the majority of Antifederalist proposals were structural, rather than libertarian, underscores the fact that the most prominent Antifederalists were only marginally interested in a bill of rights. Indeed, among the hard-core Antifederalists it is clear that the argument about a bill of rights was, for the most part, a stalking horse for their larger goal – to undermine the strength of the new central government.
Antifederalist leaders like Patrick Henry and Richard Henry Lee of Virginia really wanted to defeat the Constitution and either go back to the old system or force a second convention where they could rewrite the document along the states’ rights lines that interested them. But, having failed to defeat the Constitution, they strove for crippling amendments that went to the very structure of that document. Thus, they vociferously demanded a bill of rights before the Constitution was ratified in hopes that the purported lack of libertarian protections would persuade more moderate Americans to help them defeat ratification. But, once the Constitution was ratified, they were no longer interested in a bill of rights and instead wanted a wholesale restructuring of the Constitution.
Not surprisingly, the Federalists who dominated the First Congress rejected all of these structural changes and did little to alter the power of the national government under the new Constitution. The Federalists did, however, offer a series of amendments that, for the most part, recognized existing limitations on the national government under the new Constitution.
In 1789-91, the hard-core Antifederalists suffered their final defeat, as Federalists and moderate Antifederalists accepted the Bill of Rights, and with it, the victory of the Constitution itself.
The Bill of Rights confirmed that the national government would not trample on the rights of conscience, deny people due process of law, or impose cruel and unusual punishments on convicted criminals. While some of its provisions actually created new rights – such as the right to counsel in the Sixth Amendment – most of the amendments simply confirmed what the national government could not do under the Constitution. The Second and Tenth Amendments reconfirmed existing relations between the states and the national government but did not create any new rights or structural relationships. In particular, the Second Amendment reconfirmed that even though the national Congress would have the primary responsibility for arming and organizing the state militias, the states could maintain their own militias, if Congress failed to do its job.
The Second Amendment arose out of the conflict between Federalists and Antifederalists over those portions of the Constitution that dealt with the militia and the national army. But it was ultimately tied to the larger Federalist-Antifederalist conflict over the nature of the new government itself.
Article I of the Constitution gives Congress power to “declare War” – “to raise and support Armies” – to “maintain a Navy” – to make “Rules for the Government and Regulation of the land and naval Forces” – to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” – and “to provide for organizing, arming, and disciplining, the Militia”. Furthermore, Article I declares that the states may not “keep Troops, or Ships of War in time of Peace”. Article II makes the president of the United States the “Commander in Chief of the Army and Navy” and “of the Militia of the several States, when called into the actual Service of the United States”. These provisions also contain two important limitations. Congress can appropriate money for the military only for two years, and the states retain the power to appoint all militia officers and to train the militia, provided this training complies with “the discipline prescribed by Congress”.
Taken together, these provisions contemplated two levels of military protection for the new nation: (1) a national army created and governed solely by Congress and ultimately under the authority of the president in his capacity as commander in chief, and (2) a system of state militias, essentially organized and under control of the states, but subject to regulation by Congress and to “federalization” at the command of the president.
At the end of the Pennsylvania Ratifying Convention, the Antifederalists were soundly defeated. After that state convention, they published their Reasons of Dissent. Part of this document contained a list of fourteen proposed amendments to the Constitution. Some of these proposals – those dealing with the protection of individual libertarian rights and legal due process – were later incorporated, almost word-for-word, into the Bill of Rights.
The Pennsylvania Antifederalists also proposed amendments concerning the army, the militia, the right to bear arms, and the right to hunt. These amendments addressed at least six separate issues: (1) the right of self-protection through the ownership of weapons, (2) the right to serve in the militia, (3) the right to hunt and fish, (4) the prevention of a standing army, (5) the power of Congress over the states, and (6) the power of the states to control their own armies or militias.
Madison and his colleagues in the First Congress emphatically rejected the goals and the language of the Pennsylvania Antifederalists on these issues. If Congress in 1789 had accepted these proposals of the Pennsylvania minority, then one might persuasively argue that the Constitution, as amended, guaranteed a personal and individual right of Americans to own weapons.
At the time of the drafting of the Constitution, “every state had gun control legislation on its books” [Michael A. Bellesiles, Gun Laws In Early America: The Regulation of Firearms Ownership, 1607-1794]. But an amendment along the lines of the Pennsylvania Antifederalists’ would have prevented such a law in the federal district.
Indeed, Shays’ Rebellion helped convince many of the need for a new constitution with a strong national military. Thus, in drafting the Bill of Rights, James Madison and his Congressional colleagues emphatically rejected the sweeping provisions of the Pennsylvania minority and other Antifederalists relating to the military, the militia, and firearms and instead adopted a much more limited amendment, directed at only one particular issue: the preservation of the organized state militias as a military force.
The Congressmen of 1789 were not interested in protecting the rights to “killing game,” “to fowl and hunt in seasonable times,” “to fish in all navigable waters,” or even to guarantee that people should be able to “bear arms for the defense of themselves”. The fact that Madison and Congress did not propose amendments along the lines demanded by the Pennsylvania minority leads to a prima facie conclusion that they did not intend to incorporate such protections into the Bill of Rights.
[In fact, this alleged “minority” of the Pennsylvania delegation was likely just a single rabble-rouser by the name of Robert Whitehill, whose antics at the Constitutional Convention were intended to delay or prevent a vote for ratification. He made his hastily scribbled objections on the day scheduled for a final vote, as part of a failed motion to adjourn without voting.]
An Activist Supreme Court Changes the Constitution
District of Columbia v. Heller (2008) was a landmark case in which the Supreme Court of the United States held that the 2nd Amendment to the Constitution protects an individual’s right to possess a firearm for traditionally lawful purposes, such as self-defense within the home, in federal enclaves. The subsequent decision in McDonald v. Chicago (2010), extended this individual right beyond federal enclaves to the states on the basis of the 14th Amendment incorporation clause.
DC v. Heller was the first Supreme Court case in United States history to decide that the 2nd Amendment protects an individual right to keep and bear arms.
“This thin reed of gun rights has only existed since 2010. In the 2010 McDonald v. Chicago case, the activist US Supreme Court reversed 142 years of precedent to extend the meaning of the 14th Amendment to prohibit states from prohibiting guns. It did so by a 5-4 margin. In other words, the nationwide Constitutional protection for gun ownership only came into existence in 2010 (not 1791) and even then by one single vote. So much for the everlasting, inalienable right to own a gun.” – Salvatore Babones, senior lecturer in sociology and social policy at the University of Sydney in Australia and associate fellow at the Institute for Policy Studies in Washington, DC.
Ironically, some of the sharpest criticism of the Heller decision, penned by Justice Antonin Scalia, came from ardent conservative jurists and legal scholars, including federal appellate judges J. Harvie Wilkinson III and Richard Posner, two of the leading conservative legal thinkers and both appointed by Reagan.
Posner wrote that Scalia’s opinion employed “faux originalism” and that, when it came to the original meaning of the Second Amendment, Justice Steven’s dissent had the better argument. The “motivation for the Second Amendment” was only to protect state militias from being disarmed by the federal government, according to Posner. “The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property.”
Wilkinson wrote a widely-circulated article that accused the Court of undermining states’ rights and legislating from the bench, imposing the majority’s values on the text. “Heller encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.”
In November 2008, the conservative law professor Nelson Lund, one of the nation’s experts on the history and meaning of the Second Amendment and a devout originalist, gave a speech on the Heller decision at the annual convention of the Federalist Society at the Mayflower Hotel in DC. Lund had written numerous articles arguing that the founding fathers intended the Second Amendment to protect an individual right to bear arms.
But Lund said “Unfortunately, the Court’s performance is so transparently defective that it’s quite possible that this decision will become Exhibit A when people seek to discredit originalism as an interpretive method.” Scalia’s argument, Lund insisted, “is not an originalist or historical argument. If it’s any kind of an argument at all, it’s probably a disguised and incomplete form of the Breyer interest-balancing approach that Scalia disdainfully dismissed.”
Not only did the majority err in its historical inquiry, Posner said, but originalism itself was contrary to the original intent of the framers, who favored instead what he called “loose construction” of legal texts that sought to uphold the “spirit” of the law in changing circumstances rather than calcify the text’s meaning in a given era. Originalism was just an ideological gloss to a politically motivated decision. Heller is “not evidence of a disinterested historical inquiry”, wrote Posner. “It is evidence of the ability of well-staffed courts to produce snow jobs.”
In a dissenting opinion in DC v. Heller, Justice John Paul Stevens stated that the court’s judgment was “a strained and unpersuasive reading” which overturned longstanding precedent, and that the court had “bestowed a dramatic upheaval in the law”. Joined by Justices Souter, Ginsburg, and Breyer, Justice Stevens said: “The Amendment’s text does justify a different limitation: the “right to keep and bear arms” protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves” (which was included in only one of the 13 state constitutions at the time).
The majority opinion dismissed the Court’s principal precedent concerning the interpretation of the 2nd Amendment – United States v. Miller (1939) – in which the Court, in a unanimous decision, held that the “obvious purpose” of the 2nd Amendment is to “assure the continuation and render possible the effectiveness” of the state militia, and the amendment “must be interpreted and applied with that end in view”. Following Miller, more than 200 federal and state appellate courts rejected 2nd Amendment challenges to a variety of gun laws. The Supreme Court had repeated opportunities to review these decisions prior to D.C. v. Heller and consistently declined to do so.
On June 26, 2008, the Supreme Court affirmed the Court of Appeals for the DC Circuit in Heller v. District of Columbia. The Court of Appeals had struck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional, determined that handguns are “arms” for the purposes of the 2nd Amendment, found that the District of Columbia’s Regulations Act was an unconstitutional banning, and struck down the portion of the Regulations Act that requires all firearms including rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock”. Prior to this decision, the Firearms Control Regulation Act of 1975 also restricted residents from owning handguns except for those registered prior to 1975.
But the Court also stipulated in its decision that “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…”
Since that June 2008 ruling, more than 150 different cases have been heard in lower federal courts on the constitutionality of a wide variety of gun control laws. These courts have heard lawsuits in regard to bans of firearm possession by felons, drug addicts, illegal aliens, and individuals convicted of domestic violence misdemeanors. Also, cases have been heard on the constitutionality of laws prohibiting certain types of weapons, such as machine guns, sawed-off shotguns and/or specific types of weapons attachments. In addition, courts have heard challenges to laws barring guns in post offices and near schools and laws outlawing “straw” purchases, carrying of concealed weapons, types of ammunition and possession of unregistered firearms.
The courts have upheld every one of these laws as being constitutional. The basis for the lower court rulings is the paragraph near the end of the Heller ruling that states:
“Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions on the commercial sale of arms.”
Thus, even this radical shift in the long-standing interpretation of the 2nd Amendment which was consistent with the intent of the Framers, nevertheless left the door open for reasonable restrictions and limits on the manufacture, sale, interstate transport, possession, carrying and use of firearms.
In fact, Heller filed a subsequent suit against the District of Columbia for refusing to issue a concealed weapons permit for a semi-automatic pistol and the District Court ruled against him in 2010, finding that the court “concludes that the regulatory provisions that the plaintiffs challenge permissibly regulate the exercise of the core Second Amendment right to use arms for the purpose of self-defense in the home”.
In February 2014, the same Supreme Court rejected, without comment, a pair of 2nd Amendment appeals lodged by the National Rifle Association (NRA), keeping in place laws that restrict those under 21 years old from buying or carrying a handgun.
In one of those cases, the court refused to hear a challenge to a 1968 federal law that bars federally licensed gun dealers from selling handguns to those who are under 21 (sales of shotguns or rifles are permitted to those who are 18 or older, however).
In the second case, the justices refused to hear a challenge to a Texas law that forbids those who are 18 to 20 from carrying a concealed handgun in public. Since 1871, Texas law has prohibited individuals from carrying guns in public. However, the state legislature in 1995 said those who are 21 or older may obtain a license to carry a concealed weapon, while those who are under 21 may not obtain a license.
In defense of the law, the Texas attorney general said most states have similar age limits on the public carrying of guns by those younger than 21.
The high court’s action is consistent with a series of decisions in recent years refusing to revisit the question of whether firearms can be strictly regulated, particularly outside of the home.
Robert Riversong is a blogger and a real PEACE WARRIOR helping a world struggling to be born.