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. United States Constitution, Amendment Two.
Everything Wrong with the Second Amendment
No, the Second Amendment is not here because I hate guns and am some gun-grabber. The Second Amendment is here because it is not clear enough for our modern tongue, and unlike almost the entirety of the rest of the Constitution and Bill of Rights, allows for too much argument to take place on its plain meaning. While most Constitutional arguments arise out of what is enumerated and whether a government act fits within that right, the Second Amendment leaves much for debate. This is only confounded by the clarity that is the Third Amendment immediately after: No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
The Second Amendment was largely ignored by the Supreme Court until the National Firearms Act in 1934, as limitations on firearms were the function of the police power of states and the jumbled mess that was state equivalent Second Amendment rights made for difficult parsing out of what should be considered the minimum right to possessing a firearm. Because the early Congress met in secret and was only required to record what was debated and any votes that were taken, it is difficult, if not impossible, to surmise what they intended when the Second Amendment as we know it was sent to the states for ratification. All we have is the result.
What we do know is that the American Revolution had been initiated because English soldiers were marching to Concord to seize a weapons cache that had been gathered there by citizens of Massachusetts with rebellious tendencies; the Minutemen met them at Lexington and the rest is history. Colonists had a fear after the Revolution that Congress would restrict arms to only a military which it could control, allowing the federal government to wield a strong stick against the states and their citizens. Federalists argued that the Second Amendment was not needed because it was commonly known that the government could not confiscate firearms and the enumerated right to do so was not included in the Constitution. Federalist 46 talks about the advantage Americans have in being greatly armed, unlike the nations of Europe and the rest of the world. In this advantage, no federal army of only tens of thousands would be able to disarm and prevent the right to bear arms of one million Americans. As we have seen in both experience and through this series, those enumerated rights have been stretched greatly.
When the states ratified the Constitution, many of them sent recommendations for the proposed Bill of Rights. Among the most important of these recommendations was the restriction on ability of the federal government to disarm or seize the weapons of citizens. Pennsylvania wanted to create the right to bear arms for the protection of the individual and state, only disarming those who had committed crimes or a were a threat to public safety but wanted to create the absolute right to bear arms on private land to hunt. Massachusetts wanted to prevent the federal government from limiting the rights of peaceable citizens to keep their own arms. New Hampshire did not want to disarm citizens unless they had been in actual rebellion. New York and North Carolina wanted to keep the right to bear arms to defend the state. Rhode Island included a right to bear arms in its ratification statement.
Nevertheless, this lack of clarity in the adoption of the Second Amendment resulted in the 1886 Supreme Court case Presser v. Illinois, 116 U.S. 252, where the high Court upheld an Illinois law outlawing the carrying of firearms without being a member of the authorized Illinois militia. The Court waved off the notions that both the Second Amendment was an individual right and that militias included those which were not state sanctioned. This created a connection of the right to bear arms to serving in the military or militia that the Second Amendment arguably has been unable to shake to this day.
This “military” connection to the Second Amendment is seen again in United States v. Miller, 307 U.S. 174 (1939). In Miller, the defendant was arrested for transporting a sawed-off shotgun between Oklahoma and Arkansas and not having the shotgun registered as required under the National Firearms Act of 1934 because its barrel was under eighteen inches of length. Miller argued that the NFA was improper use of the police power by the federal government, which the U.S. district court had agreed, but the Supreme Court disagreed, noting it was “merely” a tax on the purchase of certain items. Miller also argued that the short-barreled shotgun was a military weapon, and he had a right to it without the tight restrictions set by the NFA. The Court again disagreed, holding that a sawed-off shotgun was not a weapon that would serve any military purpose. In making this ruling, the Court completely disregarded the fact that short-barreled shotguns were used extensively during World War I in the tight, close quarters trench warfare that had ruled the battlefields of Europe during the 1910s. It is likely that the Court was attempting to create a solid foot for the NFA to stand on and allowing short-barreled shotguns to be struck from the list of restricted firearms only opened the door for the machine-gun to be struck from the same list. The Supreme Court also likely did not want to appear pro-criminal, as the NFA had in part been adopted to fight the widespread mob use of the Thompson sub-machine gun during Prohibition.
The seminal case for the Second Amendment came almost seventy years later in District of Columbia v. Heller, 554 U.S. 570 (2008). Heller challenged a D.C. law that required him to go to the chief of police every year to get a get a permit to carry a handgun in his private capacity despite being a police officer authorized to carry at a judiciary building. His request for the license was denied. In a 5-4 decision, the majority opinion written by Justice Scalia reaffirmed the Second Amendment as an individual right, vested in the common law right of self-defense that had existed for centuries, something that the Court’s opinion in Dred Scott itself noted. See 60 U.S. 393. In doing so, Scalia used his originalism to parse out the meaning of the Second Amendment as it was ratified in 1791. This parsing affirmed the connection of the military to the arms which citizens could have. However, some argue that Scalia did not go far enough in this analysis, as the majority ruled that arms included those which were commonly available at the time but did not go so far as to include any arms that the military may have, whether that be Kentucky long-rifle in the 1770s or tanks, UAVs, and nuclear missiles today. Some believe that this was intentional by Scalia. Being a majority of only five to four, losing either Justice Kennedy or Chief Justice Roberts to write their own opinion or join with the liberal justices meant that there would only be a plurality opinion or that the liberals would write the majority opinion, which could have had devastating consequences.
This individual right to bear arms was extended to the states through the selective incorporation found in the 14th Amendment in 2010 in McDonald v. City of Chicago, 561 U.S. 742. In another 5-4 decision, Justice Alito wrote that the Second Amendment was a right that the drafters of the 14th Amendment would have found so central to the individual rights of Americans that they would have extended it to the states. Among the most prescient of the arguments in support of this conclusion was the great need for the former slaves to defend themselves in the segregated South against the KKK as it was on its dreadful rise. The dissent disagreed with this notion, arguing that the right to self-defense and bear arms was a secondary right to public safety and that other ‘civilized’ nations do not recognize such a right to bear arms. Obviously, the right to self-defense is not a secondary right, as protecting life is the first aim of government and liberty and the pursuit of happiness are impossible without life. Also, letting other ‘civilized’ nations determine what is an important right is irrelevant. Jury trials are not a right in other nations such as Germany. Many European legal systems also do not recognize the right to be presumed innocent until proved guilty until the last few decades. Both are core American rights despite other ‘civilized’ nations disagreeing.
In the recent June 2022 decision N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, the Supreme Court took up the issue of what limits states (and cities) may place upon those that wish to carry firearms in public. States such as New York, Maryland, and Hawaii allowed carrying if a carry permit was granted to the licensee. These restrictions, however, required that the individual requesting the permit show a cause for needing the permit in public. This resulted in individuals who had been granted a permit several years earlier, shortly after they had been assaulted on their way home from work, be denied because they now had no proof of such a need.
In the 6-3 opinion by Justice Thomas, the Court went on one of the most thorough historical evaluations of legal precedent I have ever seen. In total, the majority opinion amounted to forty-five pages in length. Thomas began back in 1328 with the Statute of Northampton which did not allow the wearing of armor unless certain exceptions were met until carry laws during the time period shortly before the ratification of the Second Amendment, such as a 1786 Virginia statute that restricted the carrying of weapons when its purpose was to “terror…. the country.” Id. at 2144. In this analysis, Thomas points out numerous times that these carry laws only were meant to prevent the carrying of weapons when it was to “terrorize the people.” Id. at 2143. He then examined state actions such as North Carolina which allowed the carrying of weapons if it was not for a “wicked purpose.” Id. at 2145 (internal citations omitted). One development in these carry laws were surety carry laws. These laws allowed an individual to claim that a person carrying a weapon was doing so to harm them. The weapon carrier would then have to place a small deposit down to continue carrying their weapon in public if they could not show a special need to carry. Id. at 2148. These statutes were a precursor to modern concealed carry license systems, allowing a person to carry if they pay for the license and finish any other requirements. However, it was different from the New York scheme at issue in Bruen because it first required that the individual carrying the weapon be accused of attempting to breach the peace. They then would only be forced to post a relatively small bond. Id. at 2149. The surety law was only to prevent them from breaching the peace, not from being able to carry a weapon at all. The Court continues with other examples, such as a Wyoming Territory law that prevented the carrying of weapons to “injure fellow-man.” Id. at 2155. The Court also found other restrictive laws that were either repealed shortly after or were declared unconstitutional after they were passed.
The Court of course carved out special exceptions. This includes the intent for carrying, the method of doing so (no constitutional right to concealed carry), or in certain places such as schools or court houses. Id. at 2156. In summation, Bruen tells us that Americans do not need to have a special reason to have permission from the government to carry firearms. Instead, it is only with certain exceptions where the government may restrict individuals from carrying them.
Notably, one obvious missing piece of legal reasoning behind the application of the Second Amendment is perhaps the most obvious one: to take down and replace a tyrannical government. The explanation behind this is simple: No government would advocate that its citizens need to be able to take it down through force. During the late Roman Empire, even when a usurping general made a rightful claim to take down one of the emperors and was successful, the remaining emperors could not sit idly by and let them do so because it would make them look weak and only entice another noteworthy individual to try and take them down. In the same way, the Court does not want to admit that the citizens should be armed to take the federal government down, because it would create legal precedent that the citizens could do so.
Come and Take It.