As a citizen of the United States, do I have the right to massacre a large group of my fellow citizens with my legally purchased AR-15?
However, over the last two decades, a number of individuals have done exactly that; the settings of each incident now existing infused with terror (consider the impact of the words Columbine High School, Pulse Nightclub, Orlando Florida, or Sandy Hook Elementary School).
One would think that enacting legislation to prevent such atrocities would be an enormously smart career move for any smart politician. Yet — although senators and representatives routinely offer “thoughts and prayers” for the victims — nothing of substance has been done to make large public settings any safer from the potential terror firearms can cause.
While the international community has trouble understanding this, citizens of America realize that — for many politicians — the words “gun control” can actually result in political suicide.
The reason? The United States is divided in its belief over the rights of individual citizens to own guns.
One side claims that this right is universal and unbreakable, while the other routinely argues that this claim is a misunderstanding of the U.S Constitution. And, surprisingly, both sides rest their arguments on an oft-quoted amendment of the US Bill of Rights — specifically, the Second Amendment.
The history of the Second Amendment is long and twisted; the Amendment itself has been subject to repeated scrutiny and elaboration, and the way in which it’s interpreted today is a relatively new way of understanding this statute written in the late 18th century.
It’s hard to understand exactly what’s at stake without a detailed look at why it was originally written, how it has been interpreted over the last two and a half centuries, and what it currently seems to imply.
Table of Contents
The Second Amendment to the U.S Constitution is surprisingly short. Its exact wording is:
“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.”
In terms of wording, this statute is one of the most confusing. It’s deceptively short, rather vague, and employs unusual grammar. Yet over the course of US history, these 26 words have become some of the most controversial ever written.
In addition, there’s nothing written specifically about gun regulation, and notice how the phrase “right to bear arms” is expressly connected to that of “a well regulated Militia.”
As historian Michael Waldman comments, “Let’s be clear: the eloquent men who wrote ‘we the people’ and the First Amendment did us no favors in the drafting of the Second Amendment. One reason it was ignored for so long is that it is so inscrutable.” [1]
The current debate about gun control versus gun rights has been more harsh and malicious than necessary, precisely because of the wording and grammatical structure of the writing — and the ways in which it’s been interpreted over the years.
As the history of the Second Amendment shows us, this very obscurity has also been used to excuse some of the darkest moments in United States history. States like Oklahoma and Pennsylvania observe Second Amendment Day as a public awareness day whose purpose is to raise awareness of and support for the fundamental right to keep and bear arms, which is codified in the Second Amendment to the United States Constitution. This amendment, along with the nine others ratified on December 15, 1791, comprise the U.S Constitution’s Bill of Rights.
After the Revolutionary War, the United States existed for a few years under a very simple government, bound by a document known as the Articles of Confederation — the first set of rules for the new country that were created in 1777 and ratified in 1781.
They are remembered all these years later, chiefly because they were the origin of the new country’s name: the United States of America. In addition to the moniker, the Articles of Confederation set out rules for the interplay between the federal and state governments.
However, so much power was given to the states that national jurisdiction was essentially meaningless. Because all federal rules needed to be approved by a supermajority, one small state could — and did — easily block treaties, legislation, and the push for one national currency.
In addition, the central bureaucracy was unable to collect taxes and thus did not have the money needed to carry out its duties. In essence, the newly-formed United States had a figurehead government at the center, but one that was unable to function.
The U.S Constitution, which was drafted in 1783, was then written for the purpose of strengthening the central government. But — since many people in early America opposed the idea of a strong central government — the writers in favor of the document found themselves taxed with a new challenge shortly after writing the U.S Constitution: ratification.
They needed two-thirds of the original thirteen states to agree to adopt the new document as the rule of the land.
Having recently broken away from what they saw as the tyranny of Great Britain, individuals were protective of their freedom and touchy about any infringement on private liberties. Moreover, each state had questions and concerns specific to its individual needs, in addition to not wanting to cede power to the federal government.
For some time, it appeared that the country would break apart rather than come to a united agreement on the powers of the central government.
In order to address these issues, the Founding Fathers wrote up a “Bill of Rights” that specified protections for individuals and for states. These first ten amendments were included with the rest of the document, which was finally ratified in 1791, and played a big role in securing the two-thirds majority needed to ratify the U.S constitution.
Most of the points in the Bill of Rights deals with individuals’ freedoms and the rights of those accused of breaking the laws, yet the Second Amendment — the second point on the Bill of Rights — deals directly with gun ownership.
So why did the Founders consider it necessary to include this in such an important document? Well, the answer is quite complicated, and it’s one that the nation is still trying to figure out.
The American Revolution started in part because of taxation issues. The colonists protested against what they perceived as unfair and oppressive treatment, while the British response was to stop the importation of firearms to the New World.
In retaliation, colonists began to smuggle guns in from the Continent (meaning Europe), stockpiling extras for a day when they would need them to fight the increasingly vindictive Crown.
As is known from history classes, tensions rose until the British sent troops to quell insurrection, only to find an unanticipated organized response. Beginning in Boston, the Revolution was the first of its kind in history — truly a “shot heard around the world.”
In addition, at the time that the U.S Constitution was written, the United States was overwhelmingly rural. The frontier, with its wild animals and Native American tribes, existed neck-to-neck with coastal settlements. Families hunted for their protein sources, and each small hamlet protected itself collectively from robbery or worse; citizens needed guns in order to survive.
However, because gunpowder was flammable and guns expensive, firearms for each village were kept in a centralized location. This, as well as the legacy of the Revolutionary War, was the state of affairs that led the Founding Fathers to associate gun ownership with the idea of a well regulated militia — where armies were federal affairs, militias protected local settlements.
The document that we now know as the United States Constitution was written during the U.S Constitutional Convention of 1787. Its chief purpose was to grant enough strength to the federal government to be able to function, but its writers were then faced with the challenge of convincing each state to buy into the idea.
James Madison, the chief writer of the U.S Constitution, witnessed the difficulty of getting the Constitution ratified. So, he was inspired to set up the Bill of Rights as a way to balance the power of the central government with that of individual states.
This addition paved the way for ratification, and the country was able to move forward.
Reading through the entire Bill of Rights gives us an interesting vantage point on the difficulties of establishing a pluralistic country. The “four freedoms” stated in the First Amendment affirmed the prerogative of citizens to pray, speak, and assemble as they chose, and to “petition the federal government for a redress of grievances.” [2]
These of course have become cherished United States ideals, and a corollary to the ideas expressed in the Declaration of Independence. The original “shot heard around the world” was the conception of a united citizenry choosing its own government — this was then followed by the almost unthought-of idea that those citizens could then choose their style of living and interacting with that government, without fear of retribution.
After specifying these individual freedoms, the Bill of Rights then turned to protections afforded to citizens from the government itself.
The Second Amendment spoke to the ability of individuals to form wel regulated militias. The Third prevented the federal government from moving soldiers into private houses without the consent of the owners. The Fourth Amendment defined “unreasonable search and seizure,” and prohibited it. The Fifth, Sixth, and Seventh Amendments protected against self-incrimination and stated the right to trial by “a jury of one’s peers.”
These were, again, unique, as they specified the limitations of central power in a way that no other country ever had.
Following the list of protections, the Bill of Rights closed with two amendments meant to protect the power of individual states — the Ninth Amendment states that these listed rights are not intended to supplant other rights and so not enumerated.
The Tenth Amendment makes the claim that:
“the powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.”
[3]
These last two ideas point to an important issue in United States politics: the balance of power between state and national governments. The Bill of Rights as a whole became a symbol of the American experiment; combined, the ten statutes have achieved a sacred status and are deemed untouchable.
Taken in context with the other rights listed, the Second Amendment can be understood as the establishment of a fundamental belief that the political body may arm itself without fear of search, seizure of weapons, or personal arrest that neglects the due process of law.
In other words — citizens did not need to fear a repeat of the abuse they had endured at the hands of the British.
The individual right interpretation of the Second Amendment first arose in Bliss v. Commonwealth (1822), which evaluated the individual right to bear arms in defense of themselves and the state. The right to bear arms in defense of themselves and the state was interpreted as an individual right, for the case of a concealed sword cane. This case has been described as about “a statute prohibiting the carrying of concealed weapons [that] was violative of the Second Amendment”.
Also during the Jacksonian Era, the first collective right (or group right) interpretation of the Second Amendment arose. In State v. Buzzard (1842), 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. The two early state court cases, Bliss and Buzzard, set the fundamental dichotomy in interpreting the Second Amendment, i.e., whether it secured an individual right versus a collective right.
Because of the rural nature of the country and the need to hunt for food, firearms were not in and of themselves thought of as an extension of personal freedoms, but rather as necessities of daily living. The Amendment was written to guarantee against government tyranny, not to prohibit the regulation of firearms.
As the years went by, the United States began to grow. It had always been a pluralistic country, but expansion exacerbated the clash of cultures created by the differences between new citizens coming into the country.
Originally settled by Puritans, Quakers, freethinkers, and non-Christians — as well as members of the Church of England (which soon became known in the United States as the Episcopalian Church) — the population also grew to include enslaved peoples of African descent, Native Americans trying to affirm their right to exist, and a continuing stream of immigrants bringing still more differences to the table.
How does one organize a country with a plethora of differing customs? How does a country balance the need for a strong central government with the differences present in each state?
In the first half of the 19th century, these questions were subsumed into a few overriding concerns. Chief among these were Western Expansion and the question of slavery. As the United States rocked its way towards the Civil War, the Second Amendment — and all other rights — sat quietly amidst the larger questions of who was protected under the U.S Constitution.
In other words, who was considered a citizen, and why?
For the better part of the first 100 years of America’s life, the Second Amendment — or, as we know it, the “individual right to bear arms” — had little impact on American political life.
However, in the 1860s, everything changed. The nation plunged into civil war, ushering in a new era.
Interestingly, however, the laws created to secure the individual rights of newly freed slaves set the stage for a unique interpretation of the Second Amendment that has helped shape the debate we continue to have today.
On April 9, 1865, Generals Ulysses S. Grant and Robert E. Lee met at the Appomattox Court House, in the state of Virginia, to draft out a resolution that would bring an end to the Civil War.
As a result of the Southern surrender, the United States was one country once again, and the 1863 Emancipation Proclamation — which freed slaves in rebellious states during the war — was enshrined into law with the passage of the Thirteenth Amendment in 1864.
With this hurdle overcome, President Lincoln was determined to welcome the Confederacy back in a way that was neither harsh nor disciplinary.
On March 5, 1865, he stated in his Second Inaugural Address:
“With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.”
[4]
Lincoln wanted to reconcile the nation, not punish the South. And his plan for Reconstruction was built in such a way so that it would do just that — “reconstruct” the South’s way of life, a large part of which involved providing guarantees for the individual rights and liberties of Black Americans.
This led to the eventual passage of the Fourteenth Amendment, and this addressed a number of issues in its five sections. Some of the most important clauses detailed restrictions on the ability of former rebels to hold office, as well as the powers of Congress to enforce the amendment.
However, the most famous is section one, which famously includes the following language:
“No state shall make or enforce any law which shall abridge the privileges or immunities of the United States; nor shall any state deprive any person of life, liberty, or property without due process of the law; nor deny to any person within its jurisdiction equal protection of the laws.”
[5]
The passage of this amendment led to a rapid growth and progress in the levels of Black political participation — but this was short-lived. Lincoln did not live to ensure his plan, nor witness the passage of the Fourteenth Amendment, as six days after Lee’s surrender, on April 15, 1865, the president was murdered.
A stunned country — confronted with its first political assassination — turned vicious.
Reconstruction became a time for many Northerners to make money off the broken South, and to force it to live according to their victorious convictions.
The South, which eventually wormed its way free of Northern oversight, sought to reestablish its old way of life — one in which Blacks were relegated to the trenches of the social order — and worked hard to fight this interference from the North, which it eventually accomplished through the Compromise of 1877.
From there, an issue that had been at the heart of American political conflict since the nation’s inception was given new fuel: the debate over the power of the states in relation to the federal government.
During the time of the Civil War and the Reconstruction after it, the Second Amendment was not under the spotlight that shines on it today.
The Fourteenth Amendment was seen as an extension of the original ideals of the Bill of Rights, providing protection to newly enfranchised ex-slaves. It included specific provisos that overtly stated that the liberties afforded by the U.S Constitution and the Bill of Rights now protected African Americans and all other people living in the United States.
This means the Fourteenth Amendment was the first of its kind to explicitly guarantee rights to all people, not just a select group of people considered citizens. Naturally, this placed limits on a state’s ability to govern itself — which happened to be a critically important issue to a section of the country vitally consumed with the idea of “state’s rights.”
The South bitterly resisted what it saw as an infringement on its right to govern itself through the work of individual states. A violent backlash ensued, causing the organization of groups such as the Ku Klux Klan, which promoted themselves as militias protected under the Second Amendment, but were, in reality, more akin to terrorist associations based on their actions — burning crosses and midnight lynchings were just two ways of demonstrating power. The chief point of the Klan was to asset White dominance and enforce the continued domination of former slave owners over former slaves.
With the focus of the federal government turning away from the ideals of Reconstruction, life in the South gradually returned to the Antebellum mores.
By the end of the 1860s, the abolition of slavery really only meant the establishment of a nominally free Black community. But these communities were economically, educationally, and politically underprivileged — sure, citizens had been afforded the right to vote, but what good was that when they were prevented from doing so by their lack of personal property, ability to read the ballot, or knowledge of governmental functions?
This, then, was the state of affairs in the United States after the Civil War. When the Supreme Court first considered the Second Amendment, it did not do so because of concerns over gun rights. Instead, it deliberated over a case that focused on Fourteenth Amendment rights, specifically looking at African-American safety.
The Second Amendment attracted serious judicial attention with the Reconstruction era case of United States v. Cruikshank (1876) which ruled that the Privileges or Immunities Clause of the Fourteenth Amendment did not cause the Bill of Rights, including the Second Amendment, to limit the powers of the State governments, stating that the Second Amendment “has no other effect than to restrict the powers of the national government.”
On Easter Sunday, 1873 — ironically two years after the formation of the National Rifle Association (whose importance will soon become apparent to this tale) — a White militia made up of members of two White Supremacists groups, the Knights of the White Camellia and the Ku Klux Klan, murdered over one hundred and fifty African-Africans in the town of Colfax, Louisiana [6].
In response to what has become known as the “Colfax Massacre,” three White men were convicted.
Since it occurred in the wake of the 1872 state elections in Louisiana, and was motivated by its result (as it was one of the first elections that saw widespread Black voting, something unthinkable in the South), federal authorities interpreted the actions of these individuals as a violation of the 1870 Enforcement Act — a law that gave the federal government the right to enforce the Fifteenth Amendment, guaranteeing citizens the individual right to vote regardless of “race, color, or previous condition of servitude.”
Prosecution thus proceeded accordingly.
Two trials took place in 1874, and in the second, three men were convicted although the charges were immediately dismissed by the presiding judge. The federal government then took the issue to the Supreme Court in a case known as United States vs. Cruikshank.
In it, the Supreme Court ruled that the 1870 Enforcement Act only applied to states and not individuals, and that the federal government did not have jurisdiction over individuals’ attempts to infringe the rights of other individuals.
Instead, those who felt their individual rights had been limited by others would have to appeal to states and municipalities for protection and not the federal government.
The Supreme Court extended this interpretation to both the First and Second Amendment, essentially saying that both represented inherent rights granted to people and that their existence in the U.S Constitution was solely to prevent the federal government from limiting them. The exact text from the ruling in regards to the Second Amendment reads:
“The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.”
[7]
However, the Fourteenth Amendment seems to contradict this notion by saying that the states cannot limit the rights of any citizen that are afforded by the U.S Constitution.
But in United States vs. Cruikshank, the Supreme Court circumvents this idea by stating that these rights were not explicitly granted by the document but rather protected against infringement by the federal government [8].
This is an incredibly narrow interpretation of the U.S Constitution — one that essentially says the states can more or less do as they please when it comes to the individual rights of people.
It gave individual states the power to choose whether or not to prosecute events such as the Colfax Massacre, opening the door for legally-sanctioned segregation as well as even more violent intimidation of newly-freed Blacks trying to integrate into American society.
This decision — as many Supreme Court decisions are — was politically motivated, and it had a dramatic impact on US history, particularly in terms of race relations.
As for the Second Amendment, this case is historic because it marked the first instance in the history of the United States in which the Supreme Court offered a direct opinion about the right to bear arms.
That opinion — that it only served to protect citizens against overreach from the national government; that the states were free to address it and other rights written in the U.S Constitution as they pleased — would pave the way for state and local gun laws and would shape the debate about this issue in the 20th century.
The Second Amendment received a second review a few years later, when Presser vs. Illinois was heard by the Supreme Court in 1886.
A year or so earlier, the state of Illinois had ratified a law restricting public parades where participants carried firearms; Dave Koppel of the Independence Institute notes that:
“One prong of the governmental effort to suppress organized labor was a ban on armed parades in public; Illinois was one of the states that enacted such a ban, making it a crime for ‘bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law…’ ”
[9]
The plaintiff — a man by the name of Herman Presser — had marched in a parade carrying a firearm; the Chicago court noted that he “did unlawfully belong to, and did parade and drill, with arms… without having a license from the Governor, and not being a part of, or belonging to, ‘the regular organized volunteer militia’ of the State of Illinois.” [10]
Presser appealed the conviction, claiming that the Second Amendment afforded him the right to act as he had. The Supreme Court disagreed; in affirming Presser’s conviction and fine, it noted that the Second Amendment protected state militias attempting to defend against federal encroachment and that the states had the power to regulate this right as they saw fit, a decision in line with the opinion given in United States vs. Cruikshank.
In both cases, the Supreme Court argued that the Second Amendment was written as a balance between federal and state power rather than as a protection of individual rights, which effectively made gun control perfectly legal at the state level.
These cases were not directed at gun ownership per se, but on the uses of guns by organized groups.
At this point in history, during the late 1880s, today’s typical argument that the “right to bear arms” is more an issue of individual firearm ownership was more than a century away from entering the public sphere.
Since the late 19th century, with three key cases from the pre-incorporation era, the U.S. Supreme Court consistently ruled that the Second Amendment (and the Bill of Rights) restricted only Congress, and not the States, in the regulation of guns. After Presser vs. Illinois, the Second Amendment departed from public debate for nearly 50 years, but it came back with a bang in the 1930s when the Eighteenth Amendment ratified Prohibition — a movement that would prove to be a failed attempt at regulating alcohol consumption.
Despite the new law, people kept drinking — but their thirst was supplied by smugglers, leading to the rapid growth of criminal organizations.
To combat these, President Roosevelt signed the National Firearms Act into law in 1934. This law, the first of its kind, taxed firearm sales and required registration of the purchase of fully automatic firearms and other guns favored by bootleggers.
Four years later, the federal government passed the “Federal Firearms Act” — the first law to specify a group of people ineligible to buy firearms, such as those previously convicted of a felony. It also mandated licensing for prospective gun owners, as well as record-keeping firearm merchants [11].
In 1939, bank robbers Frank Layton and Jack Miller were arrested for carrying a shotgun across state lines. The gun in question was a “sawed-off double barrel 12-gauge shotgun” [12], which violated the terms of the National Firearms Act.
Convicted of this crime, Layton and Miller appealed on the grounds that they were protected by the Second Amendment. The Supreme Court ruled in United States vs Miller that the NFA was constitutional, and that the right that the Second Amendment said “shall not be infringed” applied to arms conceivably used by a member of a well regulated militia.
A sawed-off shotgun, the judges reasoned, did not fit this criteria. In addition, they interpreted the Amendment as a protection for militias rather than for individual citizens [13].
This ruling is quite a bit different from those of the 19th century, in that it specifies a more exact interpretation of the Second Amendment. It clarified that the Second Amendment was reserved for the right of people to keep a “well regulated Militia.”
(Note that this ruling is, again, representative of the time in which it was made — amidst a depression, organized crime ran rampant and the country needed to focus on the safety of its citizens. Such a ruling fit well with the ideologies of the early 20th century, but anyone familiar with current gun control debates will recognize how differently it characterizes the Second Amendment.)
The country continued on with little attention on gun control until 1963. Then, the assasination of John F. Kennedy re-focused the nation’s awareness of the dangers presented by unregulated, widespread gun ownership.
In 1968, president Lyndon B. Johnson was instrumental in passing a new law, the “Gun Control Act.” This piece of legislation repealed the Federal Firearms Act, updating the provisions for importation of guns and for ownership requirements [14].
In the hundred years since its creation, the National Rifle Association had focused mainly on marksmanship and competition at gun ranges. However, the passing of the Federal Firearms Act alarmed members, and the group instigated a Political Action committee that focused on finding politicians who would support what they saw as the rights of gun owners [15].
Twelve years later, the attempted assassination of President Ronald Reagan in 1980 led to the eventual passing of the “Brady Handgun Violence Prevention Act” — a law that established a mandatory waiting period between a person’s application to buy a gun and the time in which that person took possession of said firearm.
During this waiting period, authorities would conduct a background check on the prospective buyer. Specific criteria — including a person’s mental health history — was then used to determine whether or not the prospective buyer could, in essence, be trusted with a handgun.
“The Brady Bill” — named after a member of Reagan’s cabinet wounded during the assassination attempt — was first introduced into Congress in 1987; however, the bill was delayed for years by ongoing discussion of the constitutionality of this form of gun control. Finally, in 1993, under the Clinton administration, it was signed into law [16].
However, a contrasting piece of legislation — “The Firearms Owners Protection Act” — had been enacted in 1986. This permitted two people to meet in person for the purpose of interstate gun sales, and also permitted gun sales at gun shows. But it also made automatic firearm sales illegal, and enacted mandatory prison terms and sentences for those with multiple robbery or burglary convictions who then illegally shipped guns across state or international lines [17].
The year 1994 saw the country moving further in the direction of gun control, with the passage of an assault weapons ban. “The Violent Crime Control and Law Enforcement Act” was signed in by president Bill Clinton and was hotly debated, but even so was the law of the land for a decade.
In what can easily be seen as a form of retaliation, the National Rifle Association then flexed its growing political power. In 1997, it attempted to derail the Brady Bill by supporting yet another challenge placed before the Supreme Court.
The decision in Printz vs. United States — written by Antonin Scalia — recognized a difference between federal and local legalities. Although most of the Brady Bill was untouched, the Supreme Court maintained that federal officials could not mandate the actions of local lawmen, specifically in regulating background checks. The pendulum was beginning to swing back [18].
In 2001, in United States v. Emerson, the Fifth Circuit became the first federal appeals court to recognize an individual’s right to own guns according to the Second Amendment. While there were no major laws or court cases specifically targeting gun control in the early years of the 2000s, legislation was enacted to protect gun sellers and retailers from prosecution in the event of a lawsuit. In addition, the assault weapons ban — which expired in 2004 — was not renewed.
Over the past 30 to 40 years, various gun control laws have been put in place across the United States, with stronger laws tending to appear in more left-leaning states. While many of these laws have been challenged, quite a few have remained, bringing wide discrepancies between state laws. Conservative states have rallied around the idea of gun ownership as a personal right, while liberal-leaning states have focused on the safety of its citizens.
But it’s important to realize that these are generalizations, and that many Americans personally prefer a more nuanced look at the complexities related to gun control — though, public discussion has remained largely simplified.
Perhaps due to this, there has been little in terms of national gun regulation, specifically in the name of the Second Amendment.
In the 21st century, small divisions between conservative and liberal politicians have grown into large divides. In 2016, Congressman Thomas Massie formed the Second Amendment Caucus, also known as the House Second Amendment Caucus, a congressional caucus consisting of conservative and libertarian Republican members of the United States House of Representatives who support Second Amendment rights. Also, changes in the makeup of Supreme Court judges — who are appointed by the President and confirmed by Congress — have shown a drift towards more conservative, right-wing views.
With it, views of the Second Amendment have also shifted.
In 2005, John G. Roberts was sworn in as the Chief Justice of the Supreme Court, following the death of his predecessor, William Rehnquist. Nominated by President George W. Bush, his appointment was quickly followed by the addition of Samuel Alito to the group.
The new makeup of the Supreme Court tipped towards conservatism, and the decisions on cases began to reflect that bias. This was most evident in the Supreme Court’s view of the Second Amendment. In 2007, in Parker v. District of Columbia, the D.C. Circuit became the first federal appeals court to strike down a gun control law on Second Amendment grounds.
Prior to District of Columbia v. Heller, in the absence of a clear court ruling, there was a debate about whether or not the Second Amendment included an individual right. Gun rights advocates argued that the Second Amendment protects an individual right to own guns. They stated that the phrase “the people” in that amendment applies to individuals rather than an organized collective and that the phrase “the people” means the same thing in the 1st, 2nd, 4th, 9th, and 10th Amendments.
In 2008, a retired policeman by the name of Dick Heller applied to register a handgun that he intended to keep fully loaded inside his house. He was denied a permit on the grounds of a local ordinance which required these firearms to be stored unloaded or locked against firing. Heller sued the District of Columbia, citing the Second Amendment.
The Supreme Court heard the case, and decided that Heller’s rights had indeed been violated. Heller vs. DC has thus become known as a bellwether marking a change in the Supreme Court’s view of the Second Amendment.
In writing the majority opening, Justice Antonin Scalia maintained that the Second Amendment should be understood grammatically as two different points.
The first was to determine a purpose for bearing arms — in other words, well regulated militias, or an armed citizenry in Scalia’s thoughts, is necessary for a free state. Scalia further stated that the second purpose of the Amendment was to establish an individual citizen’s right to arm himself, and argued that the amendment’s purpose was underscored by state laws re-affirming this fundamental right [19]. After the Heller decision there was an increased amount of attention on whether or not the Second Amendment applies to the states.
Encouraged by the ruling in Heller vs. DC, a group of Chicago inhabitants decided to challenge that city’s ban on handgun possession.
In June 2010, a Chicago law that banned handguns was struck down. The ruling stated that “The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States.” Here, Justice Samuel Alito, in writing the majority opinion, claimed that the purpose of the Second Amendment — originally protecting against the federal government — now protected individuals against infringement of states on individuals “by incorporation under the Fourteenth Amendment’s Due Process Clause.” [20]
The Heller ruling endorsed the so-called “individual-right” theory of the Second Amendment’s meaning and rejected a rival interpretation, the “collective-right” theory, according to which the amendment protects a collective right of states to maintain well-regulated militias or an individual right to keep and bear arms in connection with service in a well regulated militia.
In other words, a person’s right to equal protection under the law mandates that individuals cannot be prevented from owning guns by local ordinance.
These two cases marked a turning point for interpretations of the Second Amendment — where previously the Supreme Court held that the statute protected states from federal overreach, it now was considered to apply to individuals as well.
Two years later, the Supreme Court took this a step further, arguing in McDonald vs. Chicago that the Fourteenth Amendment supports the extension of the Second Amendment to individual citizens.
Justice Samuel Alito writes: “… in the late 19th century, the Court began to hold that the due process clause prohibits the states from infringing Bill of Rights protections…” [21]. Using the Heller case as precedent, he then argued that “it thus concluded that citizens must be permitted to use handguns for the core lawful purpose of self-defense.”
With these words, the Supreme Court cemented the idea that states cannot enact laws that interfere with an individual’s right to bear arms, ushering in an entirely new debate about the Second Amendment.
Do guns kill people, or do people bearing guns kill people? This is the crux of the current gun control debate, which has divided the United States.
While there are arguments on both sides, the contentiousness of this issue rests on whether or not one connects gun rights with public safety and self-defense.
A January 2013 Rasmussen Reports poll indicated that 65 percent of Americans believe the purpose of the Second Amendment is to “ensure that people are able to protect themselves from tyranny.
A Gallup poll in October 2013 showed that 60 percent of American gun owners mention “personal safety/protection” as a reason for owning them, and 5 percent mention a “Second Amendment right,” among other reasons.
On the one hand, there are those who contend that the easy availability of guns affects the rights afforded to us by the Declaration of Independence: life, liberty, and the pursuit of happiness. In other words, gun control is necessary to ensure that people are not killed in mass shootings.
But on the other hand, the view is that gun rights are a vital part of the American ideal, and that their repeal will not necessarily make life any safer.
The Founding Fathers wrote in an era where firearms were relatively simple, made from a single piece of metal, not terribly accurate in terms of marksmanship, and slow to load — technological improvements such as interchangeable parts were not available in the United States until around 1800. The Industrial Revolution further ensured easier gun manufacturing, specifically by creating grooved barrels (called “rifling”) that improved accuracy.
In the ensuing years, further improvements in gun-making have resulted in firearms that are precise, easy to use, and much more lethal than their Revolutionary War Counterparts.
On top of this, another technology that has radically changed is ammunition.
In 1789, muskets used gunpowder, which had to be packed into the barrel by hand. Reloading took time, and firearms were prone to jamming. This, combined with the relative inaccuracy of musket shot, meant that war, hunting, and personal defense were all relatively convoluted affairs.
Over a century passed before the invention of bullets, in 1882. Further changes streamlined both the composition and size of ammunition, and — in tandem with the rise of automatic firearms — these advances in weaponry have made it much easier for a single gun to fire many rounds in a much shorter period of time.
These are some important facts to take into consideration, when looking at the entire debate.
Beyond the changes in technology that have made guns much more dangerous, the world has become much more conditioned to this specific type of violence.
Remember: the Founding Fathers did not have a concept of political assasination. The first executive to die in office was William Henry Harrison, who essentially succumbed to complications from a fever in 1841. He was followed eight years later by Zachary Taylor, who also died of an illness.
Abraham Lincoln was the first President to be assassinated in 1865, and he was followed by James Garfield in 1881, William McKinley in 1901, and John F. Kennedy in 1963. Attempts were made on the lives of Gerald Ford and Ronald Reagan, but increased security and bodyguards prevented actual deaths.
Today, no president would dream of public appearances without a pantheon of Secret Service agents and other safety measures. But, unfortunately, the public at large does not have access to these kinds of protections.
At the same time, public awareness of the effects of gun violence has increased exponentially with advances in media.
Television brought the Vietnam War into the living rooms of United States citizens, energizing protestors. Mass publicity over the assassination of public figures such as John Lennon in 1980 have led to the problem of “copycat” killers. Of course, the development of the internet has meant that news can be delivered almost as soon as something happens.
Rapid dissemination of stories and accounts means that we have unprecedented awareness of dangers that have always been present. Technology has made firearms more dangerous, violence in pursuit of political agendas has become part of United States history, and mass media has made this violence better known — at times, even giving the gun-wielding anarchist an aura of glamor.
To Americans raised on the idea of the Wild West, guns have always had a strange allure; the changes in civilization have only further entrenched this conflation of “freedom” with “gun ownership.’”
In the last decade, the democratization of media has changed our ideas of journalism, and not necessarily for the better. What used to be debated by college educated White men is now considered by anyone who can afford a cell phone.
We no longer get our knowledge from a few centralized sources — instead, it comes from a variety of writers and websites. Some of these are nakedly partisan, while others slant and distort the facts to support a variety of positions.
When Pontius Pilate, the man who judged Jesus Christ, asked, “What is truth?” he ironically anticipated an overriding problem in 21st century life. Pilate used situational ethics to condemn Jesus to the cross; today, partisan politics similarly argues over issues such as “fake news,” “government overreach,” and the “war on Christmas.”
Because of these issues, freedom as defined by the Second Amendment has come to directly impact — and in many cases impede — the freedoms defined by the First. In particular, freedom of religion and assembly have been negatively impacted by the ease of gun purchase by individuals with questionable motives or psychiatric backgrounds.
However, freedom of the press means that voters are assaulted with a plethora of opinions on gun control — and again, while some of these are factual, others lean heavily in one direction or another, oftentimes without overt disclosure of bias. This in turn means that voting decisions are often made on the basis of sound bites rather than a deep understanding of the complexity of the issue.
All of this then feeds into several troubling questions.
For one, how does the Fourteenth Amendment — which protects due process laws for all citizens — affect our understanding of the Second Amendment? The move to separate them in United States vs. Cruikshank was based on the politics of the time, which held that the federal government’s interest in protecting the rights of African-Americans could not be used to “school” state governments.
In the present day, there is concern that justices with avowed leanings towards gun rights will use similar logic to decimate firearm regulations. In essence, the Court must decide which right takes precedence — one’s right to “equal protection under the law” or the right “of the people to keep and bear arms.”
From its very beginning, the United States has been characterized by its focus on economics. Unlike the various countries from which new citizens emigrated, the collection of states known as “America” has always maintained the right of individuals to change their financial status.
In keeping with the idea that “any man can grow up to become president,” the social position most espoused in this country states that personal ingenuity is all that’s required for someone to improve their material condition. Whether one wants to be the first in the family to graduate from college, or to merely “make bank,” the United States has always seen itself as a country where economic activity is protected.
In keeping with this, gun manufacturing has become a multi-million dollar industry. The Pew Research Center estimates almost three hundred billion guns are currently owned by those living in the United States. In addition to this, over a quarter of a million jobs are to be found within the gun industry.
Hunting clubs, marksmanship ranges, and personal protection are all reasons cited for gun ownership, and there are as many different ways to buy guns as there are reasons to own them [22].
It follows, then, that part of the resistance to gun restrictions comes from its potential impact on the economy. Will taking semi-automatic rifles off the shelves hurt personal revenue? Will the requirement of waiting periods hurt the potential earnings of gun shows? By restricting the purchase and use of the latest sexy weapon, is the United States government also limiting the financial freedoms enjoyed by entrepreneurs?
It would seem that many businesses answer this question with a resounding “yes,” thus consequently supporting political action that will keep them selling guns, ammunition, and related objects.
A final question that raises its ugly head has to do with the National Rifle Association, originally started to teach marksmanship but of late a mouthpiece for those who believe that there should be no gun regulation whatsoever.
In an editorial written in late 2019, NRA President Wayne LaPierre commented that, “When I see an NRA hat across the room, I smile because I know that person is a boldly proud American. I know that person is for individual freedom… other nations, even when they’ve gotten their hands on real freedom, have lost key parts of their natural rights because they didn’t have an NRA.” [23]
Later on in the article, he goes even further, “…a strong NRA protects a cornerstone of American liberty…” Here, LaPierre argues that gun rights are paramount — that, without the unconstrained freedom to bear arms, citizens cannot claim to be American.
In a second editorial, published several months later, LaPierre overtly claims that opposing views on gun control are essentially against the U.S Constitution:
“…the Left’s ability to get some judge, or a circuit of them, to rewrite the law to their liking, is being aggressively pushed back. As the media pushes this narrative, they never admit that this desire is actually anti-democratic, as it is usurping the role of democratically elected officials; instead, they pretend that the judges they agree with politically are only interpreting the law or U.S. Constitution.”
(24)
To be sure, all Americans have the rights to freedom of speech and freedom of the press as granted to them by the First Amendment. But LaPierre’s approach here first supposes that all gun control activists are part of some political “left” and then goes on to call the work of federal judges “anti-democratic.” Other national groups like the Second Amendment Foundation (SAF), Jews for the Preservation of Firearms Ownership (JPFO), and the Second Amendment Sisters (SAS), often take stronger stances than the NRA and criticize its history of support for some firearms legislation, such as GCA (The Gun Control Act of 1968) .
How is this allowing for a fair and balanced debate? This is an ad hominem argument, where an attack on the politics of particular parties is used to turn attention away from the actions and reasons behind them.
As you read this, there are several Second Amendment cases waiting for a hearing. The Supreme Court can decide to deny such a process, meaning that the decision made by the previous court stands; if it does decide to hear the case, there will be a justice writing the majority opinion, one writing the minority opinion, and perhaps justices writing concurrences to explain where they stand on the issue.
In 2019, the court exercised the first option, leaving a previous ruling intact. In this case, the plaintiffs were convicted of buying and selling an unregistered gun suppressor — a device that muffles the sound of the weapon being fired — which is illegal under the 1934 National Firearms Act.
The two men in question asked the Supreme Court to hear the case, arguing that the Second Amendment protects the right to purchase gun accessories without registration — the Supreme Court disagreed with this line of reasoning. As this occurred soon after a mass shooting in Virginia Beach, where four people were killed, it appears that the Supreme Court does favor some level of gun regulation, however minimal. [25].
This may change, however. The Supreme Court is due to hear New York State Rifle and Pistol Association vs. State of New York in 2020.
This case involves New York laws, which divide gun registration into “carry” and “premises” licenses. People holding the latter may keep a firearm in the home or at the office, but may not bring it to another location.
Gun owners are challenging this, claiming that the restriction infringes on their freedom to bear arms [26]. As of April 2020, Coronavirus measures are currently delaying the hearing, but the eventual decision is expected to be shared by the end of the summer, just before the year’s election.
This is the first Second Amendment case to be argued in front of new Justices Neil Gorsuch and Brett Kavanaugh, who are known to lean overtly conservative.
But it can pretty much be counted upon that, whatever outcome, it’s sure to provoke argument and outrage.
The 18th Amendment — which brought Prohibition to the United States — was repealed by the 21st Amendment in 1933, ending thirteen years of alcoholic excess and the rampages of individualized and organized crime.
Half a century later, people trying to legalize the use of marijuana embraced the catchphrase “Prohibition didn’t work.” It remains to be seen if the coming years will produce a similar line of reasoning to overturn the Second Amendment. However, given the need for a two-thirds majority amidst the current wide divide on this issue — and the Second Amendment’s sacred status as part of the Bill of Rights — it is doubtful something like this will happen.
In 2017, the unincorporated town of Paradise, Nevada, hosted the Route 91 Harvest Music Festival. A man from nearby Mesquite used an automatic rifle to fire off over one thousand rounds.
Secure in a hotel room at the Mandalay Bay Resort, this man (who shall remain nameless and otherwise unremarked upon here) was able to massacre almost fifty people, wounding some five hundred more, all within the space of ten minutes.
Are gun rights so important, so central to the view of being a free American, that the Second Amendment is thought to cover even situations like this?
Clearly, the role of guns in our lives has changed since the right to own them was enshrined in the U.S Constitution, so perhaps the time has arrived to change the way the nation’s laws address them.
At the moment, there is no answer to this question.
It remains to be seen how the Courts, the media, and the public will choose to act in the coming months and years.
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Justice Amy Coney Barrett Second Amendment dilemma In some 225 years neither law professors, academic scholars, teachers, students, lawyers or congressional legislators after much debate have not been able to satisfactorily explain or demonstrate the Framers intended purpose of Second Amendment of the Constitution. I had taken up that challenge allowing Supreme Court Justice Amy Coney Barrett’s dilemma to understand the true intent of the Second Amendment. I will relate further by demonstration, the intent of the Framers, my understanding using the associated wording to explain. The Second Amendment 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.” Militia, a body of citizens organized for military service. If, as some may argue, the Second Amendment’s “militia” meaning is that every person has a right to keep and bear arms, the only way to describe ones right as a private individual is not as a “militia” but as a “person.” (The individual personality of a human being: self) The 4th Amendment reminds us, “The right of the people to be secure in their persons….” The Article of Confederation lists eleven (11) references to“person/s.” The Constitution lists “person” or “persons” 49 times to explicitly describe, clarify and mandate a constitutional legal standing as to a “person” his or her constitutional duty and rights, what he or she can do or not do. It’s not enough to just say “person/s” is mentioned in the United States Constitution 49 times, but to see it for yourself (forgo listing), and the realization was for the concern envisioned by the Framers that every person be secure in these rights explicitly spelled out, referenced and understood how these rights were to be applied to that “person.” Whereas, in the Second Amendment any reference to “person” is not to be found. Was there a reason? Which leaves the obvious question, why did the Framers use the noun “person/s” as liberally as they did throughout the Constitution 49 times and not apply this understanding to explicitly convey the same legal standard in defining an individual “persons” right to bear arms as a person? Justice Amy Coney Barrett dissent in Barr v Kanter (2019) Second Amendment argument acquiesced to 42 references to “person/s, of which 13 characterize either a gun or firearm. Her Second Amendment, “textualism” approach having zero reference to “person/s. Justice Barrett’s view only recognizes “person/s” in Barr, as well in her many other 7th circuit rulings. It is her refusal to acknowledge, recognize or connect the U.S. Constitution benchmark legislative interpretive precept language of “person/s,” mandated in our Constitution 49 times, to the Second Amendment.
Leaving Supreme Court Justice Barrett’s judgment in question. In the entire U.S. Constitution “militia” is mentioned 5 times. In these references there is no mention of “person” or “persons.” One reference to “people” in the Second Amendment. People, meaning not a person but persons in describing militia. Now comes the word “shall” mentioned in the Constitution 100 times. SHALL; ought to, must .. And interestingly, the word “shall” appears in the Second Amendment. “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, and shall not be infringed.” “[S]hall not be infringed.” Adding another word “infringed” to clarify any misunderstanding as to the intent of the Second Amendment. Infringe. To encroach upon in a way that violates law or the rights of another; The condition “Infringe” has put a stop as to any counter thoughts regarding the Second Amendment, as you shall not infringe or encroach on beliefs other to what is evident as to the subject “Militia.” Finally, clarifying “..the right of the people to keep and bear arms…
People. Human beings making up a group or assembly or linked by common interest. In closing, I am not against guns, everybody has them. I’m against using the Second Amendment illogically as a crutch. If it makes those feel better so be it. Just what it deserves, use it with a wink. William Heino Sr. Reply