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Summary Article: Second Amendment from Guns in American Society: An Encyclopedia of History, Politics, Culture, and the Law

The Second Amendment to the U.S. Constitution reads: “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 amendment's meaning became a subject of political and legal controversy in the second half of the twentieth century as governments at all levels—city, state, and national—responded to rising levels of crime and violence with greater regulation of guns. These regulations led to articulation of several competing interpretations of the amendment, some favoring the rights of gun owners, others favoring the power of government to regulate guns. The controversy turned on the relation between the amendment's prefatory reference to a “well regulated Militia” and its substantive guarantee of a “right… to keep and bear Arms.”

Three Theories of the Amendment's Meaning

For most of the period between the 1960s and the early twenty-first century, two theories were prominently offered. One, usually labeled the “individual right” theory, focused on the substantive clause to support the argument that the amendment guaranteed individuals the right to own guns subject to only limited regulation. This theory drew upon experience in the founding era in several ways. According to advocates of this theory, the founding generation believed that individuals had the right to own weapons for self-protection on an unstable frontier, for hunting, and, importantly, to be in a position to resist governments that turned tyrannical. The amendment's reference to a “militia” explained one reason for guaranteeing a right to keep and bear arms, but did not limit the right to the militia setting, particularly because the founding generation understood the term “militia” to refer among other things to an “unorganized” militia consisting of all able-bodied male citizens.

An alternative theory, usually labeled the “collective right” theory, focused on the amendment's prefatory phrase. Its proponents argued that the amendment guaranteed a right to own weapons only in connection with membership in a publicly organized militia, and specifically the militias organized by the states. For them, the right to resist tyranny had been transformed once democratic governments were created. State-organized militias might be needed to resist an overreaching national government, and the amendment ensured that the national government would be unable to disarm resistance from the states. But, according to the “collective rights” view, the amendment had nothing to do with individual ownership of weapons outside the militia setting.

A third view, held by a minority of scholars but increasingly influential in the early 2000s, treated the amendment as referring to a “public” or “civic” right. Like jury duty, weapons ownership was a civic obligation for all citizens in a republican government. This theory differed from both the “individual right” and “collective right” theories by placing emphasis on the term “well-regulated.”

Most scholars in the field leaned to accepting the “collective right” interpretation as the best account of the most widespread understanding of the amendment's meaning at the time of its adoption, but substantial numbers of serious scholars argued that the “individual right” view better captured the original understanding. There is substantial support for all three views in the materials available from the founding era. Historians can be satisfied with outlining the complexity of the statements made at the time. The historical materials pose a problem for legal scholars and judges who believe that constitutional interpretation must identify the single point of view that best describes what people at the time of the amendment's adoption understood its meaning to be. Probably the most accurate statement is that many people at the time understood the amendment to protect an individual right, and many others understood it to protect a collective right or a civic duty. Originalist judges, unfortunately, need more than that.

The Supreme Court's Interpretation of the Second Amendment

Until 2008, the Supreme Court had addressed the Second Amendment's meaning in only a handful of decisions. The most important was United States v. Miller (1939), which upheld a federal statute making it illegal to carry a sawed-off shotgun across state lines. In a rather casual opinion, the court observed that if the Second Amendment protected an individual right to own weapons, it did so only with respect to weapons suitable for use in a militia.

In 2008, the Supreme Court offered its first extended discussion of the amendment's meaning in District of Columbia v. Heller. In striking down a District of Columbia ordinance prohibiting the possession of handguns in the home, the court held that the amendment protects at least the right to possess in one's home weapons suitable for self-protection, although it asserted in dictum that its opinion did not mean to question what it described as longstanding and well-accepted regulations of gun possession, such as prohibitions on the possession of weapons by people previously convicted of a felony. The court was sharply divided. The majority opinion by Justice Antonin Scalia for five justices adopted an exclusively originalist interpretive approach, and concluded that the materials from the founding era provided overwhelming support for the “individual right” view. A dissenting opinion by Justice John Paul Stevens examined the same materials and found that they provided equally unequivocal support for the “collective right” view. (Another dissenting opinion, by Justice Stephen Breyer, departed from originalism and concluded that the city's regulation was constitutionally permissible because courts should defer to legislative judgments about what gun-related policies best promoted the overall social good.)

The Heller decision dealt with a regulation that fell directly under the Second Amendment's coverage because District of Columbia ordinances are, as a formal legal matter, statutes attributable to the national government. Two years later, the Court extended its ruling by holding that the Fourteenth Amendment “incorporated” the Second Amendment and thereby made its guarantees applicable against city and state regulations (McDonald v. City of Chicago (2010)). The legal theory supporting incorporation was complex. Scholars who studied the period when the Fourteenth Amendment was adopted provided substantial evidence that its drafters and ratifiers understood that the right to keep and bear arms was protected by the Fourteenth Amendment's guarantee of “privileges or immunities” of U.S. citizens. But, several members of the court's majority—the same justices who had been the majority in Heller—found it unacceptable to rely on that clause, in part because an expansive interpretation of the clause had been rejected in 1873, and in part because its open-ended language threatened to involve the courts in extended inquiries into a wide range of regulatory statutes well beyond the gun-regulation context. They relied instead on a well-established approach to using the Fourteenth Amendment's “due process” clause to identify fundamental rights protected against state infringement, despite the fact that several of the justices in the majority had previously criticized the court's use of the due process clause to protect substantive rights rather than merely procedural ones.

Criticism of the Heller decision largely tracked scholars’ prior positions. Those who had supported the “individual right” view believed that the court's majority had handled the originalist materials well, and those who supported the other views believed that the majority had handled the materials badly. The best criticism, perhaps, is less of the justices’ performance as historians than of the demands placed on them by originalist methods, which make it difficult if not impossible to acknowledge the complexity and, more important, the ambiguity of the materials on which originalist interpreters necessarily rely.

Lower courts have struggled to understand Heller and McDonald. They have faced numerous challenges to regulations of gun possession and ownership. As of early 2011, few had been definitively resolved, but at least courts were beginning to settle on a general approach to assessing the constitutionality of such regulations. According to most of the courts that dealt with these challenges, regulations had to satisfy what they called “intermediate scrutiny.” This meant that that it was not enough that the government have some reason to think that the regulation was a good way of promoting the public good. Rather, to satisfy intermediate scrutiny, a regulation had to advance a reasonably important government policy and, probably more important, had to do a reasonably good job, though not a perfect one, of actually promoting that goal. In the coming decades, the courts will undoubtedly flesh out what this means as they uphold most and invalidate some existing regulations of gun possession and use.

See also: District of Columbia v. Heller; McDonald v. City of Chicago; Gun Control; Presser v. Illinois; Printz v. United States; United Kingdom—History of Gun Laws through 1900; United States Constitution and Gun Rights; United States v. Cruikshank; United States v. Lopez; United States v. Miller

Further Reading
  • Bogus, Carl T.The Hidden History of the Second Amendment.” U.C. Davis Law Review 31 (1998): 309-408. http://lawreview.law.ucdavis.edu/issues/Vol31/Issue2/DavisVol31No2_Bogus.pdf (accessed April 12, 2011).
  • Cornell, Saul., A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America. Oxford University Press New York, 2004.
  • Cottrol, Robert J., Gun Control and the Constitution: Sources and Explanations on the Second Amendment. Garland Publishing New York, 1994.
  • Levinson, Sanford A.The Embarrassing Second Amendment.” Yale Law Journal 99 (1989): 637-59. http://www.constitution.org/2ll/2ndschol/70embar.pdf (accessed April 12, 2011).
  • Spitzer, Robert J., The Politics of Gun Control. 5th ed. Paradigm Publishers Boulder CO, 2012.
  • Tushnet, Mark., Out of Range: Why the Constitution Can't End the Battle Over Guns. Oxford University Press New York, 2007.
  • Winkler, Adam., “Scrutinizing the Second Amendment.” Michigan Law Review 105 (2007): 683-733.
  • Volokh, Eugene., “The Commonplace Second Amendment.” New York University Law Review 73 (1998): 793-811.
  • Mark Tushnet
    Keith Rollin Eakins
    Copyright 2012 by ABC-CLIO LLC

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