A Brief History of the Second Amendment (Part 2)

In Part 1 of A Brief History of the Second Amendment, we reviewed the factors that led to the origination of the Second Amendment as part of the Bill of Rights, and some of the early legal interpretations of it through 1939. Part 2 covers the activity and rulings on the Second Amendment that bring us to the present day.

Originalism and the NRA

“Originalism” is a legal school of thought, which claims that the only way to interpret the Constitution is to ask what it meant at the time it was enacted, in the 1700’s. This was a radical departure from the standard way courts had been applying the law, which was to interpret the law’s meaning, consider precedents and apply it to today’s world. Justice Oliver Wendell Holmes summarized the conventional view; “The case before us must be considered in light of our whole experience, and not merely in that of what was said a hundred years ago.” The law was a living, breathing organism that changed as the country and social norms evolved. The term “All men are created equal” in 1789 meant all white men are created equal to the exclusion of blacks, Indians and women. Obviously, today these same words have a very different meaning. But Originalism departed from this traditional view to determine the original intent of the language, and interpreted it at the time it was written. The most significant consequence of this was a reinterpretation of the Second Amendment after more than 200 years.

At the same time, a powerful gun-rights group, the National Rifle Association (NRA), emerged as a potent political force for the expansion of gun rights. The NRA was started in 1871 as an organization for gun training and safety. By the 1980’s, the NRA had morphed into a militant organization whose mission was to be “the guardian of the traditional American right to keep and bear arms,” and referred to federal law enforcement agents as “jack-booted government thugs.” The NRA had a large and loyal membership, supported numerous conservative politicians and political action committees, and financed a shift in legal interpretations of the Second Amendment.

During the 1970’s and 1980’s, law review articles began to appear advocating that the Second Amendment actually conferred an individual right to own a gun. During this period, 27 law articles appeared taking this new view. 16 of these articles were written by lawyers employed by or representing the NRA, or other gun rights organizations. During the 1990’s, the NRA paid three lawyers over $1M for representing the NRA and writing 30 law review articles advocating this new interpretation. Retired Chief Justice Warren Burger called this effort to expand the interpretation of the Second Amendment, “One of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime.”

Initially scoffed at by traditional legal circles, this new interpretation would combine forces with the Originalist movement on a case that would dramatically change gun laws in America.

District of Columbia v. Heller

In 1976, Washington D.C. passed a law banning residents from owning handguns, automatic firearms, and high-capacity semi-automatic firearms. The law also banned individuals from keeping any other firearms at home without a trigger lock. Dick Heller was a security guard at a federal building who wanted to bring his work gun home to his high crime neighborhood. Backed financially by Robert Levy of the libertarian Cato Institute, Heller and his lawyers claimed the law violated their Second Amendment rights and with other plaintiffs sued. In 2004, the District Court dismissed the lawsuit, but the US Court of Appeals for D.C. Circuit reversed the dismissal and struck down the Washington D.C. gun ban.

In 2008, District of Columbia v. Heller reached the Supreme Court. In a 5–4 ruling, the Supreme Court struck down the city’s gun ban, reinterpreting the 27 words of the Second Amendment some 200 years after they were written to find that they actually did confer an individual right to own a gun. Never mind 200 years of precedent and prior court rulings that found to the contrary, this court simply disconnected the reference to a “well-regulated Militia, being necessary to the security of a free State” and focused on the “right of the people to bear Arms shall not be infringed.”

Using an Originalist approach, the Supreme Court had reinterpreted what the founders must have really meant 200 years ago. Justice Antonin Scalia writes, “There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.” Scalia characterized handguns as “the quintessential self-defense weapon.“ And “whatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The New Yorker commented on the ruling, “Scalia translated a right to military weapons in the 18th century to a right to handguns in the 21st.”

In a potentially contradictory statement, and in what Justice John Paul Stevens later said was necessary to build a five vote majority, the ruling concedes that “like most rights, the Second Amendment right is not unlimited, and was not a right to keep and carry any weapon whatsoever, in any manner whatsoever for whatever purpose.” So there was a constitutional right for individuals to own and carry a gun, but it could be limited. Just not the way District of Columbia was limiting it. It was Originalism run amok.

In his dissenting opinion, Justice Stevens summarized, “the Second Amendment was adopted to protect the right of the people of each of the several states to maintain a well-regulated militia…It was a response to concerns raised during ratification of the Constitution that the power of Congress to disarm state militias and create a national standing army created an intolerable threat to the sovereignty of several states. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms.” Stevens felt gun-rights were clearly a legislative issue, not a constitutional right. Years later in 2019 following his retirement, Stevens would call the Heller decision, “Unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench” and called for a Constitutional amendment overruling it.

The Heller ruling invalidated the District of Columbia’s law as unconstitutional under a reinterpreted Second Amendment. But did this also apply to the states? District of Columbia was under federal rule. Chicago now had the nation’s strictest handgun law, and it was the subject of the next major court opinion on the Second Amendment. In 2010, by the same 5–4 majority, the Supreme Court ruled in McDonald v. Chicago that the Second Amendment right for individuals to own guns also applied to the states. This essentially overruled both US v. Cruikshank and Presser v. Illinois, which claimed that it did not apply to the states, which could set their own gun laws.

The Supreme Court had now ruled in Heller and McDonald that there was an individual right to gun ownership that applied to the federal government and the states, but that this right had limits. The courts now had to decide which gun laws fell within these limits and which exceeded it. In subsequent years, most courts have looked to parallels to the First Amendment, which provides freedom of speech, but within limits. This has resulted in courts balancing the core right to own a gun for self and home protection with the rational basis of any law passed that may limit that right in the interest of public safety. Many gun laws have been upheld on these grounds, but others have been overturned as going too far to restrict that right.

Times Have Changed

Today, the meaning of those 27 words written 230 years ago is still hotly debated. Is the Constitutional Framer’s original 1790 meaning correct or is the Supreme Court’s 2008 Heller reinterpretation correct? We believe that is the wrong question. The right question, the one we should all be asking ourselves, is what kind of country do we want to live in now?

Fundamentally, what a group of savvy and well-intentioned men thought about gun ownership 230 years ago is not terribly relevant to the world we live in today. The world has changed. Guns have changed. The use of militias and standing armies has changed. And our society has changed.

In 1790, there was no difference between military weapons and those kept by civilians for self-defense and hunting. The “military” weapons of the time were muskets, which had to be hand-loaded for each individual shot. A skilled soldier might get off 2–3 fairly inaccurate musket shots per minute. Today’s guns are far more powerful and lethal. The shooter in Las Vegas in 2017 fired over 1000 shots in ten minutes from multiple semi-automatic weapons, killing 60 and wounding over 400 people. Today, powerful weapons designed for military use such as semi-automatic weapons and assault rifles have no place in the hands of civilians who will never be called into military service, in spite of what the Second Amendment intended.

Militias are no longer the primary means to ensure the security of a state, or defend the nation upon an attack. Since 1815, a standing national army, so feared during the post-revolutionary period, has become the primary means to provide security to the nation. Local police departments began to emerge in the mid 1800’s in large cities such as New York, Boston, Philadelphia, and Chicago to handle local law enforcement. Militias or what is now the National Guard are essentially a last resort, called up for state or local emergencies, and civil disturbances. Their purpose in 1790 as the primary means of local and national security, and for providing state security against an overpowering federal government is not terribly relevant today.

Perhaps most of all, our society has changed dramatically since those 27 words were written. In 1800, only 3% of the 5 million Americans lived in an urban setting. Today, the US Census Bureau estimates that 80% of 330 million Americans currently live in an urban area. Large cities have sprung up with millions of residents that live in very close quarters, which may require certain laws and regulations to keep the peace and ensure public safety. Due to high levels of gun violence in large cities, elected law-makers in New York, Washington D.C., Chicago and other cities passed strict gun laws to curb gun violence in the interest of public safety.

A Perspective on the Future

How would our Constitutional Framers weigh the safety of the people in a densely populated city against the right for individuals to own firearms? At this point who cares? Times have dramatically changed. And the Framers were smart enough to know that the Constitution could not be a static document, but had to change and evolve as the needs of the country changed and evolved. They created the Amendment process as the vehicle to make necessary changes.

Justice Stevens suggested adding five words to the Second Amendment to clarify its purpose: “…the right of the people to keep and bear Arms when serving in the Militia, shall not be infringed.” And then presumably leave it up to the legislative branch to determine the appropriate gun laws for each state and community. That would be a sensible approach.

Unfortunately, America has not adopted a sensible approach to gun laws, and this has resulted in the widespread acquisition of guns of all kinds. There are currently more guns in America than there are people. America has just 4% of the world’s population, yet possesses almost half (46%) of the world’s guns. As a result, America has the highest level of gun violence by far, compared to similar countries. Almost 40,000 Americans are killed by gun violence every year. This rate of gun death is 11 times higher than 28 other similar countries combined, according to a recent study. America’s gun homicide rate is 25 times higher, and the gun homicide rate of non-whites is 72 times higher than other comparable countries. It is ironic that the Second Amendment was written in part to ensure that militias could arm themselves to secure public safety. Instead it has contributed to the highest gun violence in the world compared to similar countries.

It is doubtful this is what our founding fathers envisioned for America’s future, but it is not up to them anymore. It is up to us to define the kind of country we want to live in. We must determine the path forward by looking through the lens of the present, not the past. And, as our founding fathers did, look to what works in other countries as a guide to what can work in America.

Rather than focus on 27 words written over 200 years ago, we should focus on creating a safe and sane country today, and envision the kind of country we want our children and grandchildren to live in in the future. We should adopt laws and perhaps a Constitutional Amendment if necessary to set guidelines for gun use that can ensure a safe America, free from gun violence for the next 200 years.

Free From Gun Violence was founded with the mission to help build a better future by reducing gun violence in America. We will broaden the awareness of gun violence, analyze and expose the issues behind it, and advocate all means to reduce it to make our country safer. Join us and help to build a country free from gun violence.

Sources:

The Second Amendment: A Biography. Michael Waldman

Almost a Miracle: The American Victory in the War of Independence. John Ferling

Constitute: https://www.constituteproject.org/

American Enlightenment Project: https://americanenlightenmentproject.org/articles/

Federal Judicial Center: https://www.fjc.gov/

Bureau of Alcohol, Tobacco, Firearms and Explosives: https://www.atf.gov/rules-and-regulations/national-firearms-act

The Atlantic, The Supreme Court’s Worst Decision of My Tenure: https://www.theatlantic.com/ideas/archive/2019/05/john-paul-stevens-court-failed-gun-control/587272/

US Census Bureau: https://www.census.gov/programs-surveys/geography/guidance/geo-areas/urban-rural/ua-facts.html

New York Times: ‘It’s a Long Story’: Justice John Paul Stevens, 98, Is Publishing a Memoir: https://www.nytimes.com/2018/11/26/us/politics/john-paul-stevens-memoir.html

Violent death rates in the US compared to those of the other high-income countries, 2015/2019. Erin Grinshteyn, David Hemenway: https://repository.usfca.edu/cgi/viewcontent.cgi?article=1147&context=nursing_fac