history of interpreting amendment #2

United States: Gun Ownership and the Supreme Court

https://www.loc.gov/law/help/second-amendment.php

On June 26, 2008, in District of Columbia v. Heller (PDF), the United States Supreme Court issued its first decision since 1939 interpreting the Second Amendment to the United States Constitution. The Court ruled that the Second Amendment to the U.S. Constitution confers an individual right to possess a firearm for traditionally lawful purposes such as self-defense. It also ruled that two District of Columbia provisions, one that banned handguns and one that required lawful firearms in the home to be disassembled or trigger-locked, violate this right.

The Second Amendment, one of the ten amendments to the Constitution comprising the Bill of Rights, states: “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.” The meaning of this sentence is not self-evident, and has given rise to much commentary but relatively few Supreme Court decisions.

In cases in the 19th Century, the Supreme Court ruled that the Second Amendment does not bar state regulation of firearms. For example, in United States v. Cruikshank, 92 U.S. 542, 553 (1875), the Court stated that the Second Amendment “has no other effect than to restrict the powers of the national government,” and in Presser v. Illinois, 116 U.S. 252, 265 (1886), the Court reiterated that the Second Amendment “is a limitation only upon the power of Congress and the National government, and not upon that of the States.” Although most of the rights in the Bill of Rights have been selectively incorporated (PDF) into the rights guaranteed by the Fourteenth Amendment and thus cannot be impaired by state governments, the Second Amendment has never been so incorporated. [UPDATE: In McDonald v. City of Chicago, 561 U.S. 742 (2010), the Supreme Court addressed this issue, ruling that Second Amendment rights are applicable to states through the Fourteenth Amendment.]

Prior to District of Columbia v. Heller, the last time the Supreme Court interpreted the Second Amendment was in United States v. Miller, 307 U.S. 174 (1939). In that case, Jack Miller and one other person were indicted for transporting an unregistered sawed-off shotgun across state lines in violation of the National Firearms Act of 1934. Miller argued, among other things, that the section of the National Firearms Act regulating the interstate transport of certain firearms violated the Second Amendment. The U.S. District Court for the Western District of Arkansas agreed with Miller. The case was appealed directly to the Supreme Court, which reversed the district court. The Supreme Court read the Second Amendment in conjunction with the Militia Clause in Article 1, Section 8 of the Constitution, and concluded that “n the absence of any evidence tending to show that possession or use of a [sawed-off] shotgun . . . 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.” 307 U.S. at 178. The Court concluded that the district court erred in holding the National Firearms Act provisions unconstitutional.

Since United States v. Miller, most federal court decisions considering the Second Amendment have interpreted it as preserving the authority of the states to maintain militias. Several of the post-Miller lower court opinions are discussed here (PDF).

The Supreme Court’s consideration of the Second Amendment this term was precipitated by the U.S. Court of Appeals for the District of Columbia Circuit’s decision in Parker v. District of Columbia (PDF), 478 F.3d 370 (D.C. App. 2007). There, the D.C. Circuit, in a 2-1 decision, ruled that three District of Columbia laws regarding private gun ownership – namely a ban on new registration of handguns, a ban on carrying a pistol without a license, and a requirement that firearms be kept unloaded and locked – violated the Second Amendment. The court held that individuals have a right under the Second Amendment to own handguns for their own personal protection and keep them in their home without placing a trigger lock on them. This is the first decision since the Supreme Court decided Miller in which a federal court overturned a law regulating firearms based on the Second Amendment.

Following the D.C. Circuit’s decision not to rehear the case, the District of Columbia Government filed a petition for certiorari for review of the decision by the Supreme Court. The documents before the Supreme Court at the petition for certiorari stage have been collected here.

On November 20, 2007, the Supreme Court granted (PDF) the petition for certiorari. The Court framed the question for which it granted review as follows: “Whether the following provisions – D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 – violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

The briefs on the merits by the District of Columbia and respondent Dick Anthony Heller, as well as amicus briefs by some 67 “friends of the court,” have been collected here.

In its June 26 decision, a 5-4 majority of the Supreme Court ruled that the Second Amendment confers an individual right to keep and bear arms, and that the D.C. provisions banning handguns and requiring firearms in the home disassembled or locked violate this right.

In the majority opinion authored by Justice Antonin Scalia, the Court first conducted a textual analysis of the operative clause, “the right of the people to keep and bear Arms, shall not be infringed.” The Court found that this language guarantees an individual right to possess and carry weapons. The Court examined historical evidence that it found consistent with its textual analysis. The Court then considered the Second Amendment’s prefatory clause, “[a] well regulated Militia, being necessary to the security of a free State,” and determined that while this clause announces a purpose for recognizing an individual right to keep and bear arms, it does not limit the operative clause. The Court found that analogous contemporaneous provisions in state constitutions, the Second Amendment’s drafting history, and post-ratification interpretations were consistent with its interpretation of the amendment. The Court asserted that its prior precedent was not inconsistent with its interpretation.

The Court stated that the right to keep and bear arms is subject to regulation, such as concealed weapons prohibitions, limits on the rights of felons and the mentally ill, laws forbidding the carrying of weapons in certain locations, laws imposing conditions on commercial sales, and prohibitions on the carrying of dangerous and unusual weapons. It stated that this was not an exhaustive list of the regulatory measures that would be presumptively permissible under the Second Amendment.

The Court found that the D.C. ban on handgun possession violated the Second Amendment right because it prohibited an entire class of arms favored for the lawful purpose of self-defense in the home. It similarly found that the requirement that lawful firearms be disassembled or bound by a trigger lock made it impossible for citizens to effectively use arms for the core lawful purpose of self-defense, and therefore violated the Second Amendment right. The Court said it was unnecessary to address the constitutionality of the D.C. licensing requirement.

Four Justices dissented, each of which signed both of two dissenting opinions. One, by Justice Stevens, examined historical evidence on the meaning of the Second Amendment to conclude that the amendment protects militia-related interests. A second dissenting opinion, by Justice Breyer, stated that even if the Second Amendment protects a separate interest in individual self-defense, the District of Columbia provisions at issue are permissible forms of regulation.

The outcome of D.C. v. Heller left some issues unanswered, including whether the Second Amendment restricts state regulation of firearms, and the standard for evaluating the constitutionality of other laws and regulations that impact the Second Amendment right. These issues will be the subject of future litigation. [Update: As noted above, in McDonald v. City of Chicago, 561 U.S. 742 (2010), the Supreme Court ruled that the Second Amendment right recognized in Heller applies not only to the Federal Government, but also to states and municipalities.]

As background to the Court’s decision in Heller, below is a selective bibliography listing only some of the substantial literature of books and journal articles on the Second Amendment that existed when that case was decided.

Interpreting the Second Amendment, An Introduction

http://lawsonline.com/LegalTopics/SecondAmendment/interpreting-the-second-amendment.shtm

The Second Amendment in the Bill of Rights was melded together from several proposals and simplified into twenty-seven words. This brevity is often blamed for the enigmatic meaning that has fueled the recent debate on guns, government, and individual rights. Lawyers, judges, historians, and political scientists delve repeatedly into the 18th century world of the Framers in attempts to ascertain the intended meaning of the Second Amendment.

Second Amendment ratified in 1791:
“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.” [1]

There are several opposing interpretations of the Second Amendment. For some, the amendment is strictly martial and should be seen as ensuring the continued funding and arming of state militias. Others see the militia clause as a utopian ideal that only amplifies a direct right of the individual to keep and bear arms. Other variations range from reading a right to revolution in the amendment to dismissing the amendment entirely as obsolete and outdated for the twenty-first century.

The recent Supreme Court decisions of District of Columbia v. Heller, 554 U.S. 570 (2008 – Opinion PDF) and McDonald v. Chicago, 561 U.S. 3025 (2010 – Opinion PDF) specifically addressed two of the most contentious interpretations of the Second Amendment. In District of Columbia v. Heller the individual ownership of guns for self-defense was recognized as a Second Amendment right by the Supreme Court for the first time. In 2010, McDonald v. Chicago then added that the Fourteenth Amendment incorporated the Second Amendment extending the amendment’s reach to state governments. Both of these decisions were split five to four and dissenting opinions highlighted the difference in interpretations of the Second Amendment that persist. While it is expected that these rulings will remain as precedent for some time, the history and debate about the Second Amendment continues. Indeed, if history has taught us anything it is that this amendment has not been easily or clearly defined since its ratification under the Bill of Rights.

Originalism and History

One of the difficulties in interpreting the Second Amendment is deciding which sources to use for analysis. In part, the choice in sources depends on a scholars training and background. Lawyers and judges often focus on the amendment in one of two ways: original intent or original meaning. Both methods are focused on finding the correct legal interpretation. Original intent concentrates on the word choice, word placement, and, sometimes, drafts of the amendment as it made its way through legislation. The focus on original meaning includes a broader spectrum of primary sources to elucidate the context and understanding of those writing the amendment. Popular sources include records from ratification at the state level, popular opinions from Framers such as The Federalist Papers, and private correspondence from key figures like James Madison. At times, the longer legal and legislative tradition from England may also be discussed to further clarify meaning. Historians often add even more sources using a wider range of documents from both before and after ratification in attempts to gain a picture of the overall context of the late 18th century. This broader stroke can help inform how the amendment was understood but can include interpretation beyond the intended meaning of the Framers.[2] Nonetheless, historians find viewing the amendment in this full context more informative than restricting sources to a single moment that cannot be pinpointed with certainty. The very idea that there is a singular “truth” is both limiting and unrealistic and runs the risk of fabricating a monolithic meaning instead of embracing the disparate opinions that existed even when the Bill of Rights was drafted. Everyday people often countered the ideal (and some may argue elite) expectations of the Framers. For example, our forthcoming article on popular rebellions will show that many “rebels” thought they were following the mandate of the Second Amendment. While falling outside the direct legal interpretation, these populist views are still informative and highlight the multiple interpretations of the amendment even as it was being ratified. Both approaches have created a large library of material for understanding the Second Amendment.

An example of this quote splicing:

Partial: “The great object is, that every man be armed…Every one who is able may have a gun.”

Whole: “May we not discipline and arm them [the states], as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms, &c.? Every one who is able may have a gun. But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for may years, endeavored to have the militia completely armed, it is still far from being the case.”

— Patrick Henry speaking at the 1788 Virginia debate to ratify the Constitution. The partial quote was used by Stephen Halbrook in The Right to Keep and Bear Arms.[5]
In addition to sources used, the approaches taken by lawyers and historians often differ. Lawyers examine the Second Amendment looking for an exact interpretation while historians are content discussing the “grey areas” with the prospect that not all explorations lead to a definitive resolution. These expectations often influence how these scholars use their sources. While both aim to argue a particular point of view, attorneys are trained to prove a case. This has led to accusations of cherry-picking quotes or highlighting minority opinions until they appear to speak for a majority.[3] Alternatively, historians have been accused of the same. Proving one’s thesis has even led to accusations of evidence fabrication and misuse as exemplified in the controversy around Arming America: The Origins of a National Gun Culture by Michael A. Bellesiles.[4] Additionally, primary sources are interpreted in their historical context by both lawyers and historians. However, law and legislation become active/living documents for lawyers and court decisions are used outside their direct historical context. The opinion of a court can easily stand as good law for half a century or longer. Historians are more likely to push for the reexamination of court decisions in their immediate context highlighting popular reactions to a ruling rather than focusing solely on the judicial interpretation. Neither of these approaches are incorrect and both create a rich debate. But an awareness of these differences is useful for navigating the sources and conclusions as one delves into this controversy.

Indeed, whether lawyer, historian, or political scientist, accusations of bias and agendas abound. A scholar’s training does influence the way they use sources or present a thesis. However, despite these differences in scholarship, there are real problems with bias when interpreting the Second Amendment. All scholars struggle with understanding the 18th century context and must be vigilant against imposing current ideals and perceptions on the past. Contemporary debates can also seep into past interpretations or influence the selection of sources towards a predetermined conclusion. Especially with the Bill of Rights, there is the danger of “rights-talk” with its “exaggerated absoluteness” that not only limits modern discourse but influences the study of the amendment to exclude any consideration of alternate or even concurrent interpretations.[6] Inflammatory and narrow labels are often used to further accentuate difference over compromise. For example, an author may set up the debate between gun-rights activists against “gun prohibitionists” which suggests an all or nothing dichotomy.[7] Finally, both gun-rights and gun-control political groups have funded research which perpetuates the idea that there are only two viewpoints available and also suggests an automatic bias in the scholar.[8] The political motivation and economic self-interest of some of these financial backers suggests both scholars and their audience should fine tune their critical thinking and analysis when researching the Second Amendment.

Despite the challenges of bias, the rich selection of sources and variety in scholarship have created several angles for interpreting the Second Amendment. In order to better evaluate the meaning of the Second Amendment it is necessary to understand perceptions of citizenship, power, and liberty in the 18th century. A review of the historical context for the Bill of Rights which follows will provide the background behind some of more common interpretations of the Second Amendment. This introduction attempts to summarize some popular ideas and should not be considered all-inclusive or absolute. The rich scholarship on the Second Amendment shows consistently that even the Founders did not agree on one interpretation.

The Second Amendment in Context

Second Amendment scholarship has highlighted several political ideals and historical experiences behind the citizen militia and the armed citizen. The works of Niccolo Machiavelli are credited for invoking a republican ideal that was expanded by later authors such as James Harrington, John Trenchard, Thomas Gordon, and Walter Moyle (to name a few).[9] These ideas were fueled by the historical experiences in England that transferred questions of sovereignty and safeguarding rights to the new colonies in America.

George Washington as Cincinnatus by Jean-Antoine HoudonEarly modern republican ideals centered on virtuous citizens who preserved a just government. Machiavelli promoted the citizen-soldier as superior to standing armies because they were loyal to their communities and thus more fierce in protecting their homes. Soldiers who sold their services to the highest bidder, were susceptible to corruption, and could be used by tyrants to oppress others. The virtuous citizen-soldier was willing to take up arms to protect the state and would return to civil occupations after a threat was defeated. Their prowess would make standing armies and their corruptible soldiers obsolete. This ideal mirrored the highly romanticized view of Republican Rome where mythical men like Cincinnatus put down the plow to engage the enemy but then humbly returned to the farm when their civic role was done.[10] Later political theorists like Harrington associated these heroes with the 17th century yeoman farmer who likewise courageously left the field when called to service. These yeomen were property owners which Harrington thought would make them independent from the coercion of landlords and employers. This independence meant they could provide the self-governing voice required of citizens in a strong state.[11]

The idealized English yeoman farmer offered a tangible example of the citizen-soldier for political theorists. Since 1181, the Assize of Arms under King Henry II required knights and freemen to arm themselves in service to their king and country.[12] These freemen not only served in the King’s wars but also protected their communities and were drafted into the sheriff’s posse comitatus as needed.[13] Over the centuries the types of arms required of militiamen changed with the technology but they were expected to only supply weapons and armor that matched their social status. This structured militia, that included a wider breadth of Englishmen, was praised by theorists like Machiavelli and Francis Bacon for keeping England secure and enabling the Crown’s victories on the continent.[14] However, by the 17th century some complained the yeomen militia shirked their duties and left their defence in the hands of tradesmen and laborers in select militias. Even after the Restoration in 1660, Charles II’s volunteer militias were better organized than the general militia.[15] James II later argued that he needed to retain the army since the general militia was not up to task.[16] However, James II’s promotion of Catholics contrary to the Test Acts, including promoting Catholic officers in the military, helped inspire the Glorious Revolution which ousted the Catholic monarch in favor of the Protestant William of Orange and Mary in 1689. Both were required to sign a Declaration of Rights by Parliament which acknowledged that James II had wrongfully kept a standing army “in time of peace” and caused “several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law.” It also declared that, “subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.”[17]

The meaning of the arms clauses in the English Declaration of Rights of 1689 is also contested when used to interpret the English legal influence on the Second Amendment. For some, the declaration did not grant any new privileges but ensured the return of control to the Protestant majority. Although the “ancient rights and liberties” included some access to arms, these were still determined by law and social status which included civic expectations and limitations.[18] Others argue the use of “their defence” instead of “their common defence” means the right to arms included self-defense separate from a specific civic duty.[19] The armed citizen could act for the greater good but also independently respond to protect his person, property, and liberty.

The armed citizen, although not necessarily exclusive from the citizen-soldier, was a free man because he recognized he was responsible for protecting his freedom. Machiavelli noted that just as states exist by arms or fortune, so it is with the citizens who are trained in arms.[20] Trenchard and Gordon, like Locke, note self-defense as a natural right that justifies the armed citizen who uses force to defend his liberty against unjust tyrants and governments.[21] Both roles work together to protect society and the state: the armed citizen protects his own which instills a love for liberty and expands his knowledge of arms and his rights which in turn ensures his response as the citizen-soldier for a just government. However, for some political theorists, both libertarian and republican, the English yeomen were too complacent to match this ideal and they instead looked to the American colonies where “an agrarian society of armed, self-sufficient husbandmen” flourished.[22]

The circumstances of colonial living impacted the expectations for armed citizens. Several 17th century statutes required adult males to keep arms for militia service similar to the laws in England.[23] But changes in England prompted laws like the Game Act of 1671 which banned guns (at least on paper) for those with less than £100 in property value. Conversely, the colonists were required to arm and efforts were made to ensure they were supplied. Even after Bacon’s Rebellion in 1676, Virginian colonists were still allowed to keep arms.[24] By 1684, the militia statute in Virginia specifically protected militiamen from the confiscation of their weapons such as arms taken in “disstresse” (payment for money owed) or impressed for service.[25] Circumstance did create different expectations of armed citizens than in England, however, access to arms was still not universal. Some colonies barred indentured servants and non-Protestants from owning firearms while race also outlawed guns to Native Americans, free African Americans, those of mixed decent, and slaves. Over the next century these statutes continued to change as colonies expanded and urban centers developed. By the time of the Seven Years’ War/French and Indian War (1754-1763) the militia were still viable but considered inadequate for the scale of the war and Britain increased the presence of the standing army.[26]

The standing army in the colonies became a focal point of tension at the same time taxes to pay for the war incited protest. The use of army soldiers to police the population escalated tensions and the Quartering Act of 1765 forced colonists to house and feed these military police in their communities. During the Liberty Riot (1768) Boston residents rallied against the British sailors acting for the port authority which lead to a munitions ban and the confiscation of some arms.[27] For many colonists, the threat of military oppression was dramatically realized in the Boston Massacre of 1770.[28] In addition to the confiscation of arms in hotbeds like Boston, efforts were also made to disarm militias or render them obsolete.[29] Colonists mustered militia companies in spite of these efforts which famously came to a breaking point with the “shot heard ’round the world” at Lexington and Concord in 1775.

During the American Revolution the rhetoric praising the militia as the answer to standing armies continued but was again tempered by the realities in the field. At the start of the war several states edited their charters and constitutions to include a Declaration of Rights that promoted the militia as the natural protector of liberty. However, the experience on the battlefield was mixed and General George Washington often found militiamen inefficient compared to the Continental soldiers.[30] Washington defended the necessity of developing an army in a letter to the Continental Congress in 1776 where he noted that, “To place any dependence upon Militia is, assuredly, resting upon a broken staff.”[31]

There was a mixed response to the realities of relying on militias and the citizen-soldier after the Revolution as well. Washington experienced firsthand the struggles of working with militiamen but agreed they could be valuable if given enough structure:

“It may be laid down as a primary position, and the basis of our system, that every Citizen who enjoys the protection of a free Government, owes not only a proportion of his property, but even of his personal services to the defence of it, and consequently that the Citizens of America (with a few legal and official exceptions) from 18 to 50 Years of Age should be borne on the Militia Rolls, provided with uniform Arms, and so far accustomed to the use of them, that the Total strength of the Country might be called forth at a Short Notice on any very interesting Emergency, for these purposes they ought to be duly organized into Commands of the same formation; (it is not of very great importance, whether the Regiments are large or small, provided a sameness prevails in the strength and composition of them and I do not know that a better establishment, than that under which the Continental Troops now are, can be adopted.”
— George Washington, Sentiments on a Peace Establishment, May 2, 1783[32]

Washington was not alone in the belief that citizens “owed” service to their country which, as outlined above, was a central characteristic of the republican citizen who served the community good over personal gain. But defining what was good for the community often differed and conflicts of interest impacted the efficiency of the militia. Shay’s Rebellion (1786-1787) pitted urban interests against rural economies and some of the militia sent to suppress the rebellion sided with the rebels’ cause instead. Both the rebels and their militia sympathizers believed their actions a just response to oppression while city and state officials bemoaned the lack of respect for the legal process and government.[33] Shay’s Rebellion was not the only event to highlight the disorganization and insubordination of local militias but it did galvanize the efforts to form a central government under a new constitution that could maintain stability for the new country.[34]

The contentious ratification of the U.S. Constitution highlighted the continued concern for establishing and arming strong militias. Central control over the state militias in Article I Section 8 of the Constitution aroused suspicion and Anti-Federalists argued that the government could dismantle or weaken the militias in favor of a standing army.[35] At the same time, the exclusion of a declaration of rights became a rallying point for Anti-Federalists who maintained that an enumeration of rights was principle to safeguard liberty under imperfect governments. The rights to arms was among the liberties listed and the Pennsylvania minority published their dissent which included:

“7. That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers.”
— Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents, December 12, 1787 [36]

Federalists argued that a declaration of rights was not necessary for the national government since these rights were already protected by state constitutions. Although not against a bill of rights, James Madison thought these “parchment barriers” could be limiting and unnecessarily threaten fundamental rights omitted from the document.[37] Additionally, the Constitution was considered unique since the people were granting power to the government and therefore did not require declarations of their rights from a government obligated to them.[38] But the insistence by Anti-Federalists on the inclusion of rights was popular and, in the end, ratification of the constitution in several states hinged on the assurances that a bill of rights would be considered by the first Congress. States forwarded their proposals for amendments which included several versions concerning the right to bear arms.

The experiences of Americans combined with the ideals expressed in political thought and the English legal heritage promoted the republican ideal of the citizen-soldier who not only protected the government when mustered but also protected freedom. The balancing and melding of all these ideas and experiences fell to the first Congress when they created the Bill of Rights.

Composing the Second Amendment

The Bill of Rights was composed and then edited down from over a hundred proposed amendments submitted to the first Congress after the contentious ratification of the U.S. Constitution.

Rights in State Constitutions

Virginia Declaration of Rights, June 12, 1776
“XIII. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.”[41]

A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts, 1780
“Art. XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.”[42]

A Declaration of the Rights of the Inhabitants of the Commonwealth or State of Pennsylvania, 1776
“XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.”[43]
As noted above, several variations of a Declaration of Rights were created by state governments before the U.S. Constitution was written. Eight states would add a Bill of Rights or Declaration of Rights to their state constitutions after the start of the Revolutionary War.[39] These declarations were well known and influential in phrasing the Second Amendment. Some, like Virginia, included an amendment which focused on the role of militia in retaining civic authority and preventing standing armies. Massachusetts stated the people had a right keep and bear arms for the “common defence” which was interpreted by some contemporaries as too vague for not explicitly protecting the personal right to bear arms for self-defense.[40] Most states followed the language stressing the militia similar to Virginia and Massachusetts. The Declaration of Rights for Pennsylvania and Vermont were two that explicitly protected the right of individuals to keep arms for their individual protection in addition to the defense of the state. Thus, even before the Bill of Rights was drafted, several versions and expectations for rights to arms were already enacted by the states.

Amendments Submitted to Congress

Five states submitted right to arms provisions to be considered by the first Congress. These states included New Hampshire, New York, North Carolina, Rhode Island*, and Virginia.[44] These state recommendations often mirrored their own state Bill of Rights except for New Hampshire which added the provision that Congress could not disarm citizens unless they were guilty of “Actual Rebellion.”[45] It is possible that Madison reviewed these suggestions but, of those listed above, only the submissions from New Hampshire, New York, and Virginia were noted in the official congressional record. Most agree that Madison closely followed the recommendations from his home state of Virginia when composing the Bill of Rights. Virginia’s recommendations included a Bill of Rights that protected:

“Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power….Nineteenth, That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.”

Virginians also included changes to the body of the Constitution including:

“Eleventh, That each State respectively shall have the power to provide for organizing, arming and disciplining it’s own Militia, whensoever Congress shall omit or neglect to provide for the same. That the Militia shall not be subject to Martial law, except when in actual service in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties and punishments as shall be directed or inflicted by the laws of its own State.”[46]

The concepts outlined in these state declarations of rights and amendments to the Constitution all stressed the importance of the militia in a free state. A robust militia organized from “the people” prevented the permanent development of a standing army and was the surest way to protect freedom. By the time Madison submitted the proposal to Congress he had shortened several ideas into one:

Proposed by James Madison June 8, 1789 to the House of Representatives:
“The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”

House of Representatives and Senate August 24 – September 9, 1789:
“ARTICLE THE FIFTH. A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.
On September 4, the Senate agreed to amend Article 5 to read as follows: A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.
On September 9, the Senate replaced “the best” with “necessary to the.” On the same day, the Senate disagreed to a motion to insert “for the common defence” after “bear arms.” The article was renumbered as Article 4.”

Second Amendment ratified in 1791:
“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.” [47]

The mistrust of the central government was raised in the Congressional debate about this amendment on August 17, 1789. Representative Elbridge Gerry from Massachusetts objected to the inclusion of the clause protecting religious objectors because he was concerned the government would then “declare who are those religiously scrupulous,” and effectively disarm political opponents.[48] His objection was narrowly defeated by two votes in the House but this clause was later removed after the Senate debate.[49] Some suggest the effort to protect religious objectors highlights the focus of this amendment on the duty expected of every citizen. However, others retain that the concern was to ensure a more general right to arms beyond any civic duty.[50] Contemporary debates highlight the difficulty in discerning the exact meaning of these carefully phrased amendments. Indeed, the debates from 1789 show there were concerns the amendments would be misunderstood or even deliberately misconstrued. They also illustrate that agreement over the intended meaning and ideology was never absolute even as the Bill of Rights was written.

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Published September 2013

Endnotes:

1 “Bill of Rights,” The Charters of Freedom, National Archives.

2 Jack N Rakove, “The Perils of Originalism,” in What Did the Constitution Mean To Early Americans?, ed. Edward Countryman (Bedford/St. Martin’s, 1999) 148.

3 Although his analysis is considered abusive by some scholars, Wills does highlight some of the quote splicing and other inconsistencies in scholarship. Garry Wills, “To Keep and Bear Arms,” in Whose Right to Bear Arms did the Second Amendment Protect?, ed. Saul Cornell (Boston: Bedford, 2000) 66-67 and 73. After reading several books and articles I would note that this is done by both lawyers and historians but I have noted it more often with attorneys who I think are responding to their training.

4 Patricia Cohen, “Scholar Emerges From Doghouse,” The New York Times, August 3, 2010.

5 Robert J. Spitzer, The Right to Bear Arms: Rights and Liberties Under the Law (ABC-CLIO, 2001) 52.

6 Jack N Rakove, Declaring Rights: A Brief Documentary History, The Bedford Series in History and Culture (Palgrave Macmillan, 1998) 18.

7 Stephen P Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (Albuquerque: University of New Mexico Press, 1984) ix.

8 Peter Finn, “NRA Money Helped Reshape Gun Law,” Washington Post, March 13, 2013.

9 Several scholars note J.G.A. Pocock’s thesis in The Machiavellian Moment as influential for understanding the significant texts and events of the 16th to 18th centuries that solidified republican thought.

10 Carl J. Richard, Greeks and Romans Bearing Gifts: How the Ancients Inspired the Founding Fathers (Lanham, Md.: Rowman & Littlefield Publishers, 2008) 125-126.

11 Unlanded tradesmen and laborers could not be trusted since their votes could be paid for or coerced by their employers and landlords. Of course this ideal does not take into account the social expectations that also influenced yeomen farmers. Edmund S. Morgan, “The People in Arms: The Invincible Yeoman,” in Whose Right to Bear Arms did the Second Amendment Protect?, ed. Saul Cornell (Boston: Bedford, 2000) 127.

12 Roy G. Weatherup, “Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment,” in Gun Control and the Constitution, ed. Robert J. Cottrol (New York: Garland Pub., 1994) 189.

13 Those who failed to raise the “hue and cry” or did not respond when called to participate in law enforcement could be fined or imprisoned. Joyce Lee Malcolm, “The Right of the People to Keep and Bear Arms: The Common Law Tradition,” in Gun Control and the Constitution, ed. Robert J. Cottrol (New York: Garland Pub., 1994) 233.

14 Morgan, “The People in Arms,” 125-126.

15 Robert Ward in Animadversions of Warre (1639) stated, “our yeomandrie would not be so proud and base to refuse to be taught, and to thinke it a shame to serve in their own armes, and to understand the use of them; were they but sensible, that there is not the worth of the peny in a kingdome well secured without the due use of Armes.” Malcolm, “The Common Law Tradition,” 233, 236 and 240-241.

16 Weatherup, “Standing Armies and Armed Citizens,” 195.

17 “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown,” 1689, The Avalon Project of the Lillian Goldman Law Library, Yale Law School.

18 Weatherup, “Standing Armies and Armed Citizens,” 198.

19 Malcolm, “The Common Law Tradition,” 230-231.

20 Niccolò Machiavelli, The Prince, Ch.1 and Discourses, III Ch. 31, Project Gutenberg.

21 John Trenchard and Thomas Gordon, An Argument, shewing that a Standing Army is inconsistent with a Free Government, and absolutely destructive to the Constitution of the English Monarchy, 1697, The Online Library of Liberty and Chapter 3 in John Locke, Second Treatise of Government, 1690, Project Gutenberg.

22 Robert E. Shalhope, “The Armed Citizen in the Early Republic,” in Whose Right to Bear Arms did the Second Amendment Protect?, ed. Saul Cornell (Boston: Bedford, 2000) 34.

23 Find a summary of these statutes in Clayton Cramer’s “Colonial Firearm Regulation,” Journal on Firearms and Public Policy, Second Amendment Foundation, 16 (2004) 2-6.

24 But colonists were not allowed to assemble armed in groups of five or more unless officially mustered. Halbrook, That Every Man Be Armed, 57.

25 “An act for the better supply of the country with armes and ammunition,” III, The Statutes at Large (VA), ed. William Waller Hening (Philadelphia, 1823) 13-14.

26 Weatherup, “Standing Armies and Armed Citizens,” 199.

27 Sailors were attempting to act on the port officials’ order to seize John Hancock’s ship Liberty that was the center for a smuggling/taxation dispute. Saul Cornell, A Well-regulated Militia: The Founding Fathers and the Origins of Gun Control in America (Oxford; New York: Oxford University Press, 2006) 10-14.

28 Lawrence Delbert Cress, “A Well-Regulated Militia: The Origins and Meaning of the Second Amendment,” in Whose Right to Bear Arms did the Second Amendment Protect?, ed. Saul Cornell (Boston: Bedford, 2000) 53.

29 Halbrook, That Every Man Be Armed, 74.

30 Morgan, “The People in Arms,” 132-133.

31 Quoted in Weatherup, “Standing Armies and Armed Citizens,” 203.

32 George Washington, “Sentiments on a Peace Establishment,” May 2, 1783, The Writings of George Washington from the Original Manuscript Sources, 1745–1799, ed. John C. Fitzpatrick (Washington, D.C.: Government Printing Office, 1931), The Founders’ Constitution, The University of Chicago Press.

33 Cornell, A Well-regulated Militia, 31-34.

34 Our future article on Right to Insurrection will discuss these rebellions more closely.

35 For example see the comments by George Mason during the ratification debates in Virginia on June 14, 1788. Constitution Society.

36 The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents, December 12, 1787, Constitution Society.

37 James Madison, “James Madison to Thomas Jefferson, October 17, 1788,” Letter, The Writings of James Madison, ed. Gaillard Hunt, The Library of Congress, American Memory.

38 Gordon S. Wood, “The American Science of Politics,” in What Did the Constitution Mean To Early Americans?, ed. Edward Countryman (Bedford/St. Martin’s, 1999) 97.

39 Rakove, Declaring Rights, 36.

40 Saul Cornell found that during the ratification of the state constitution communities like Williamsburg raised objections that the declaration did not explicitly protect the “privilege to keep Arms in our houses for Our Own Defense.” Cornell, A Well-regulated Militia, 25.

41 “Virginia Declaration of Rights,” Wikisource.

42 “Constitution of the Commonwealth of Massachusetts,” Wikisource.

43 “A Declaration of the Rights of the Inhabitants of the Commonwealth or State of Pennsylvania,” Wikisource.

44 Rhode Island did not ratify the Constitution until 1790 so their recommendation was not specifically part of Madison’s Bill of Rights in 1789. Kates notes several other popular amendments, such as the freedom of speech were proposed less often. Don B. Kates, Jr., “Handgun Prohibition and the Original Meaning of the Second Amendment,” in Gun Control and the Constitution: Sources and Explorations on the Second Amendment, ed. Robert J. Cottrol (New York: Garland Pub., 1994) 84.

45 “Ratification of the Constitution by the State of New Hampshire,” June 21, 1788, The Avalon Project of the Lillian Goldman Law Library, Yale Law School.

46 “Ratification of the Constitution by the State of Virginia,” June 26, 1788, The Avalon Project of the Lillian Goldman Law Library, Yale Law School.

47 Robert J. Spitzer, Gun Control: A Documentary and Reference Guide (Greenwood Publishing Group, 2009) 36-37.

48 “The Congressional Register (August 17, 1789),” ConSource.org.

49 Unfortunately the Senate’s debates were not recorded so we cannot be certain if the clause was removed for Gerry’s reasons but the narrow margin of defeat suggests he was not alone in his concerns.

50 For examples, see the discussion on Gerry’s statements in Cornell, A Well-regulated Militia, 61-62 and Halbrook, That Every Man Be Armed, 77-79.

51 Seen in Madison’s remarks during the Virginian ratification convention. Weatherup, “Standing Armies and Armed Citizens,” 215-216.

52 “The minuteman ideal was far less individualistic than most gun rights people assume, and far more martial in spirit than most gun control advocates realize.” Cornell, A Well-regulated Militia, 2.

53 Secretary of War Henry Knox proposed that citizenship should be withheld until one served in the militia, but this was unpopular. Don Higginbotham, “The Federalized Militia Debate: A Neglected Aspect of Second Amendment Scholarship,” in Whose Right to Bear Arms did the Second Amendment Protect?, ed. Saul Cornell (Boston: Bedford, 2000) 109.

54 George Washington would have welcomed a select militia that was kept separate from the standing army but more efficient than the general militia. Ibid. 101-102 and 109-110. Most Anti-Federalists, like the authors of the Letters from a Federalist Farmer, did not like the idea.

55 The republican rhetoric tying armed citizens with free citizens has already been noted. The longevity of this ideal can also be seen in the rhetoric of abolitionists who embraced the idea of arming slaves so they could obtain the natural state of freedom. Additionally, during Reconstruction several Republican legislators believed keeping black Americans armed was the only way to ensure their continued freedom. Cornell, A Well-regulated Militia,154 and Halbrook, That Every Man Be Armed, 100 and 153.

56 Excerpts from Beccaria’s work was translated by Thomas Jefferson and sometimes falsely attributed to him because it supports several other comments by Jefferson for gun ownership. Cesare Beccaria, “On False Ideas of Utility,” Of Crimes and Punishments, 1764, Constitution Society.

57 Early exclusions of citizenship could be based on economic class, religion, and race. The debate over the Fourteenth Amendment shows how racism largely influenced the limitation of citizenship. Spitzer, The Right to Bear Arms, 17-19 and Halbrook, That Every Man Be Armed, 108-115.

58 Local rebellions were often viewed by others as too individual and not for the common good. Thomas Jefferson’s letter to William Stephen Smith November 13, 1787 quoted in Weatherup, “Standing Armies and Armed Citizens,” 205.

59 Washington mustered the militia against the Whiskey Rebellion (1791-1794) and John Adams did the same for Fries’s Rebellion (1799-1800).

Sources and Further Reading

“An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown,” 1689, The Avalon Project of the Lillian Goldman Law Library, Yale Law School. http://avalon.law.yale.edu/
17th_century/ england.asp.

Beccaria, Cesare. Of Crimes and Punishments. 1764. Constitution Society. http://www.constitution.org/cb/crim_pun40.htm.

“Bill of Rights,” The Charters of Freedom, National Archives. http://www.archives.gov/exhibits/charters/.

Cohen, Patricia. “Scholar Emerges From Doghouse.” The New York Times. August 3, 2010. http://www.nytimes.com/2010/08/04/books/
04bellisles.html.

Cornell, Saul. A Well-regulated Militia: The Founding Fathers and the Origins of Gun Control in America. New York: Oxford University Press, 2006.

—–, ed. Whose Right to Bear Arms did the Second Amendment Protect? Boston: Bedford, 2000.

Cottrol, Robert J., ed. Gun Control and the Constitution: Sources and Explorations on the Second Amendment. New York: Garland Pub., 1994.

Countryman, Edward, ed. What Did the Constitution Mean To Early Americans? Bedford/St. Martin’s, 1999.

Cramer, Clayton E. “Colonial Firearm Regulation.” Journal on Firearms and Public Policy. Second Amendment Foundation 16 (2004): 1-23. http://www.saf.org/journal/16/
colonialfirearmregulation.pdf.

Elliot, Jonathan, ed. The Debates in the Several State Conventions on the Adoption of the Federal Constitution. III Philadelphia: Washington, Taylor & Maury, 1836. Constitution Society. http://www.constitution.org/rc/rat_va_12.htm.

Finn, Peter. “NRA Money Helped Reshape Gun Law.” Washington Post. March 13, 2013. http://articles.washingtonpost.com/2013-03-13/world/37681218_1_second-amendment-
gun-law-don-kates.

Halbrook, Stephen P. That Every Man Be Armed: The Evolution of a Constitutional Right. Albuquerque: University of New Mexico Press, 1984.

Locke, John. Second Treatise of Government. 1690. Project Gutenberg. http://www.gutenberg.org/ebooks/7370.

Machiavelli, Niccolò The Prince, Ch.1 and Discourses, III Ch. 31, Project Gutenberg, http://www.gutenberg.org/ebooks/author/563.

Madison, James. “James Madison to Thomas Jefferson.” October 17, 1788. Letter. The Writings of James Madison. Edited by Gaillard Hunt. The Library of Congress, American Memory. http://memory.loc.gov/.

Rakove, Jack. Declaring Rights: A Brief Documentary History. Boston: Bedford Books, 1998.

“Ratification of the Constitution by the State of New Hampshire,” June 21, 1788, The Avalon Project of the Lillian Goldman Law Library, Yale Law School. http://avalon.law.yale.edu/18th_century/
ratnh.asp.

“Ratification of the Constitution by the State of Virginia.” June 26, 1788. The Avalon Project of the Lillian Goldman Law Library. Yale Law School. http://avalon.law.yale.edu/18th_century/
ratva.asp.

Richard, Carl J. Greeks and Romans Bearing Gifts: How the Ancients Inspired the Founding Fathers. Lanham, Md.: Rowman & Littlefield Publishers, 2008.

Spitzer, Robert J. Gun Control: A Documentary and Reference Guide. Greenwood Publishing Group, 2009.

—–. The Right to Bear Arms: Rights and Liberties Under the Law. ABC-CLIO, 2001.

Trenchard, John and Thomas Gordon. An Argument, shewing that a Standing Army is inconsistent with a Free Government, and absolutely destructive to the Constitution of the English Monarchy. 1697. The Online Library of Liberty. http://oll.libertyfund.org/title/2315/220983.

Washington, George. “Sentiments on a Peace Establishment.” May 2, 1783. The Writings of George Washington from the Original Manuscript Sources, 1745–1799, Edited by John C. Fitzpatrick. Washington, D.C.: Government Printing Office, 1931. The Founders’ Constitution. The University of Chicago Press. http://press-pubs.uchicago.edu/founders/documents/
a1_8_12s6.html.

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Table of Contents

Second Amendment Interpretations

As is illustrated in the lamentably brief summary above, the context surrounding the Second Amendment is not simple. There are several events, ideas, and expectations that influence actions taken in the past. Unraveling all the puzzle pieces can be engaging, frustrating and galling. The expectations and ideology of the Founders varied greatly, which is exemplified in the debates surrounding the ratification of the Constitution and the disparate opinions expressed about how to respond to challenges that arose in the early years of the new nation. The same could be said for the modern interpretations of the Second Amendment. Scholarship is rich with sources that offer several interpretations around several aspects of the amendment. At the very heart of these competing interpretations are three main arguments – that the Second Amendment protects an individual right, a collective right, or a civic right.

Supreme Court lets stand law banning some semi-automatic assault weapons

http://www.cnn.com/2016/06/20/politics/supreme-court-declines-consideration-of-law-banning-some-semi-automatic-assault-weapons/index.html

The Supreme Court declined Monday to take up a constitutional challenge to a Connecticut gun law passed in the aftermath of the Sandy Hook Elementary School shooting.

The law bans certain semi-automatic assault weapons and large capacity magazines.
Although the decision comes days after the Orlando shooting, that event probably didn’t move the justices either way. In recent years the Court has declined to take up a major Second Amendment case. In 2008, 5-4 Supreme Court held in District of Columbia v Heller that the Second Amendment protects an individual’s right to bear arms, and except for a follow up decision two years later, the court has not weighed in again.
Since then, a raging debate has developed between gun rights supporters who say that lower courts are not heeding supreme court precedent and gun control activists who say they are pushing for what they consider reasonable restrictions.

I changed & updated this today [6-20] because there was a new development (last entry)

==

SYNOPSIS SO FAR

IE THE ABSTRACTED SHORT VERSION OF ALL THE INFO ABOVE

There are several opposing interpretations of the Second Amendment. For some, the amendment is strictly martial and should be seen as ensuring the continued funding and arming of state militias. Others see the militia clause as a utopian ideal that only amplifies a direct right of the individual to keep and bear arms. Other variations range from reading a right to revolution in the amendment to dismissing the amendment entirely as obsolete and outdated for the twenty-first century.

In cases in the 19th Century, the Supreme Court ruled that the Second Amendment does not bar state regulation of firearms. For example, in United States v. Cruikshank, 92 U.S. 542, 553 (1875), the Court stated that the Second Amendment “has no other effect than to restrict the powers of the national government,” and in Presser v. Illinois, 116 U.S. 252, 265 (1886), the Court reiterated that the Second Amendment “is a limitation only upon the power of Congress and the National government, and not upon that of the States.”

Frontier towns — places like Tombstone, Deadwood, and Dodge — actually had the most restrictive gun control laws in the nation. In fact, many of those same cities have far less burdensome gun control today then they did back in the 1800s. Guns were obviously widespread on the frontier. Out in the untamed wilderness, you needed a gun to be safe from bandits, natives, and wildlife. In the cities and towns of the West, however, the law often prohibited people from toting their guns around. A visitor arriving in Wichita, Kansas in 1873, the heart of the Wild West era, would have seen signs declaring, “Leave Your Revolvers At Police Headquarters, and Get a Check.” A check? That’s right. When you entered a frontier town, you were legally required to leave your guns at the stables on the outskirts of town or drop them off with the sheriff, who would give you a token in exchange. You checked your guns then like you’d check your overcoat today at a Boston restaurant in winter.

the Supreme Court interpreted the Second Amendment was in United States v. Miller, 307 U.S. 174 (1939). In that case, Jack Miller and one other person were indicted for transporting an unregistered sawed-off shotgun across state lines in violation of the National Firearms Act of 1934. Miller argued, among other things, that the section of the National Firearms Act regulating the interstate transport of certain firearms violated the Second Amendment. The U.S. District Court for the Western District of Arkansas agreed with Miller. The case was appealed directly to the Supreme Court, which reversed the district court. The Supreme Court read the Second Amendment in conjunction with the Militia Clause in Article 1, Section 8 of the Constitution, and concluded that “n the absence of any evidence tending to show that possession or use of a [sawed-off] shotgun . . . 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.”

What changed was the NRA. In 1991, former Chief Justice Warren Burger said that the idea that the Second Amendment recognizes an individual right to gun ownership was “a fraud” on the public. That was the consensus, that was the conventional wisdom.

The NRA has been around for a long time. It used to be an organization that focused on hunters and on training. In 1977, at the NRA’s annual meeting, activists pushed out the leadership and installed new leaders who were very intense, very dogmatic, and very focused on the Second Amendment as their cause. It was called the “Revolt at Cincinnati.” From there, the NRA and its allies waged a 30-year legal campaign to change the way the courts and the country saw the Second Amendment.

On June 26, 2008, in District of Columbia v. Heller (PDF), the United States Supreme Court issued its first decision since 1939 interpreting the Second Amendment to the United States Constitution. The Court ruled that the Second Amendment to the U.S. Constitution confers an individual right to possess a firearm for traditionally lawful purposes such as self-defense. It also ruled that two District of Columbia provisions, one that banned handguns and one that required lawful firearms in the home to be disassembled or trigger-locked, violate this right.

since Heller, there have been dozens of cases in lower courts. Heller said: Yes, there is an individual right, but it can be limited. And the extent of the limits wasn’t really clear. Well, dozens of judges have ruled since then, and overwhelmingly, they have upheld district gun laws. They’ve said, “Yes, there’s an individual right, but society, too, has a right to protect itself.”

In the majority opinion authored by Justice Antonin Scalia…the Court stated that the right to keep and bear arms is subject to regulation, such as concealed weapons prohibitions, limits on the rights of felons and the mentally ill, laws forbidding the carrying of weapons in certain locations, laws imposing conditions on commercial sales, and prohibitions on the carrying of dangerous and unusual weapons. It stated that this was not an exhaustive list of the regulatory measures that would be presumptively permissible under the Second Amendment.

So the government cannot ban handguns, but it can ban other weapons—like, say, an assault rifle—or so it appears. The full meaning of the court’s Heller opinion is still up for grabs. But it is clear that the scope of the Second Amendment will be determined as much by politics as by the law. The courts will respond to public pressure—as they did by moving to the right on gun control in the last thirty years. And if legislators, responding to their constituents, sense a mandate for new restrictions on guns, the courts will find a way to uphold them. The battle over gun control is not just one of individual votes in Congress, but of a continuing clash of ideas, backed by political power. In other words, the law of the Second Amendment is not settled

The Supreme Court declined Monday [6-20]to take up a constitutional challenge to a Connecticut gun law passed in the aftermath of the Sandy Hook Elementary School shooting. The law bans certain semi-automatic assault weapons and large capacity magazines. Although the decision comes days after the Orlando shooting, that event probably didn’t move the justices either way. In recent years the Court has declined to take up a major Second Amendment case. In 2008, 5-4 Supreme Court held in District of Columbia v Heller that the Second Amendment protects an individual’s right to bear arms, and except for a follow up decision two years later, the court has not weighed in again. Since then, a raging debate has developed between gun rights supporters who say that lower courts are not heeding supreme court precedent and gun control activists who say they are pushing for what they consider reasonable restrictions.

NewMexicoRam wrote:

So, to me, the argument comes down to Constitutional interpretation, not it’s history.

Oh I agree. This is entirely a battle of interpretations. That’s sort of what I was stressing. I think the history demonstrates that, which is why I posted the history.

In fact I think what “strict originalism” means is also open to interpretation.

For example, one argument is that the 2nd amendment originally covered only weapons in relation to state militias. You may not agree but that is one argument out there.