Supreme Court Review 2017/2018 TERM



The Text of 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, shall not be infringed.

The Origins of the Second Amendment

Much of the controversy over the Second Amendment’s meaning has centered on the relationship between its prefatory clause ("A well regulated Militia, being necessary to the security of a free State") and its operative clause ("the right of the people to keep and bear Arms, shall not be infringed"). This linguistic structure – which prefaces the provision of the right with the purpose of the clause – is unique among federal constitutional provisions. The question is whether the intent of the Second Amendment was limited to protecting the right of the States to maintain a well-regulated militia, or whether the intent stretched more broadly to protect the individual citizen’s right to keep and bear arms.

Most plausibly, the intent of the drafters of the Second Amendment was to protect the individual’s right to bear arms. At the time the Second Amendment was written, it was common for individual-rights provisions of state constitutions to include a prefatory statement of purpose. The common-law rule inherited from England dictated that the effect of a preamble was only to clarify, and not to restrict the effect of, the operative part of the law.

Furthermore, the Founding Fathers were heavily influenced by English republican views on the relationship between arms and democracy. This theory, espoused by Blackstone and other seventeenth- and eighteenth-century English political theorists, held the citizen’s ability to bear arms and use them to defend his rights to be a crucial component of political independence. An armed population was vital to protect against both foreign threats and the threat of a standing army, which could become an instrument of governmental tyranny. The Federalists, who supported a strong centralized government, and the Antifederalists, who preferred local autonomy, agreed on the importance of the individual right to bear arms. The lack of recorded debate over the Second Amendment underscores this point; what little there is relates to the idea that no religiously scrupulous person should be compelled to bear arms, but never questions that those who desire arms should be allowed to have them.

The relationship of the individual right to bear arms to the right of self-rule was discussed in conjunction with Article 1, Section 8 of the Constitution, which empowers Congress to raise a standing army. Many were concerned that this provision provided no check on standing armies during times of peace. The militia, controlled by the several States, was seen as one important way to counter the threat of a standing army to the liberty of the people.

The Antifederalists lobbied for a Bill of Rights to be included in the Constitution. When the Constitution was submitted to the states for ratification, Antifederalist pamphlets entitled Letters from the Federal Farmer to the Republican, most likely authored by Henry Lee, argued that to preserve liberty, the whole body of the people – not just Congress’s standing army or even a select militia – should possess and know how to use firearms. Another Antifederalist, George Mason, similarly argued that the most effective way to enslave a people is to disarm them. Finally, Patrick Henry expressed dissatisfaction that the Constitution did not on its face prevent the federal government from disarming the American people. In light of these views, the Bill of Rights that the Antifederalists lobbied to add to the Constitution contained the Second Amendment.

The Federalists, too, agreed that governmental tyranny was a primary evil to avoid. James Madison and Alexander Hamilton, prominent Federalists, argued that the citizenry must be allowed to bear arms. Hamilton noted that if the people’s representatives betrayed them, the right to bear arms would enable them to defend their political rights. Although the Federalists and Antifederalists disagreed on the necessity of including a Bill of Rights in the Constitution in the first place, it is clear that they agreed on the importance of the right to keep and bear arms.

When the states ratified the Constitution, several specified that they were ratifying the Constitution with the understanding that the right to keep and bear arms would be protected. New Hampshire, for example, stated that the convention recommended several alterations to the Constitution, including the statement that “Congress shall never disarm any citizen unless such as are or have been in Actual Rebellion.” No evidence from any state Convention suggested that any delegates thought the proposed Constitution would permit the government to disarm the public.

It is clear that the Federalists and Antifederalists alike placed a premium on the right of the individual to bear arms, as opposed to merely the power of states to maintain militias. Both groups distrusted state governments – indeed, they distrusted any government. The founders recognized that governmental tyranny could occur at any level, state or federal. State constitutions of the era also reflect this preference for individual rights; for example, the constitutions of Massachusetts, North Carolina, and Pennsylvania contained an explicit right to bear arms. As Justice Scalia’s opinion in District of Columbia v. Heller noted, nine state constitutional provisions written in the 18th or early 19th century enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.” These protections refer to more than just carrying a weapon in an organized military unit.

James Madison’s original proposal for what eventually became the Bill of Rights contained the following amendment, to be inserted into the actual text of the Constitution:

[T]hat 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 conscientious objector shall be compelled to render military service in person.

Madison proposed to insert this language, along with rights to freedom of the press, religion, and speech, into Article 1, Section 9, which sets forth limitations on Congress’s power over citizens, such as the prohibitions on suspending habeas corpus, ex post facto laws, and bills of attainder. This placement indicates the belief that the right to bear arms was an individual right. Contrast this with Article 1, Section 8, which preserves state militia powers.

The substance of the amendment was debated in the House and Senate, but the final language adopted did not differ much from Madison’s original. The word “country” was replaced with “state,” and the clause exempting conscientious objectors was deleted. Otherwise, the amendment was adopted by Congress and ratified much as Madison wrote it.

Federal Congressional Enactments

The American tradition of regulating firearm ownership goes back almost as far as the adoption of the Second Amendment itself. Many early state legislatures attempted to ban ownership of firearms. For instance, Georgia legislators in 1837 passed a ban on handguns that was overturned eight years later by the state’s supreme court as violating the federal Second Amendment. During Reconstruction, after the Civil War, several southern states adopted “black codes” in response to emancipation, which, among other things, forbid African-Americans from owning firearms.

Federal legislation on gun control began later. In 1927, Congress passed the Mailing of Firearms Act, or Miller Act, which prohibited sending concealed firearms through the U.S. Post Office.

The infamous Saint Valentine’s Day Massacre in 1929, in which several Chicago gang members were brutally murdered with Thompson sub-machine guns, spurred Congress to adopt the National Firearms Act of 1934. The Act was passed to regulate “gangster weapons;” it covered machine guns, short-barreled rifles, short-barreled shotguns, any other weapons other than pistols or revolvers, and silencers, as well as the catch-all category of “any other weapon . . . from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person.” The Act imposes an excise tax on the manufacture and transfer of the covered firearms and mandates their registration in a federal registry. Although the Act was an exercise of Congress’s tax authority, its underlying purpose was regulatory – it aimed to curtail firearms transactions. The $200 tax – which has not changed in amount to this day and is the equivalent of $3,400 in today’s dollars – was considered a quite severe deterrent on making and transferring weapons.

In 1938, President Roosevelt signed the Federal Firearms Act into law. Its purpose was to regulate interstate commerce in firearms and curb the possession of such weapons by criminals by imposing licensing requirements for manufacturers and interstate dealers of firearms. This legislation shows Congress’s continued interest in regulating and keeping records on the gun trade in the United States. Scholars at the time noted that the Second Amendment was not infringed by licensing regulations because the regulation of a right is not necessarily equivalent to infringing the right.

The next major federal law passed was the Gun Control Act of 1968 (“GCA”) signed by Lyndon Johnson. It broadly regulated the firearms industry and focused on interstate commerce, restricting interstate firearms transfers to licensed manufacturers, dealers, and importers. Congress introduced the GCA in response to the recent assassinations of John F. Kennedy and Malcolm X, and passed it after the assassinations of Robert F. Kennedy and Martin Luther King, Jr. The Act expanded the classes of people who are not permitted to own firearms, including mental defectives, felons, fugitives from justice, drug users, and others. It also established the Federal Firearms License system, with the effect that to buy a gun, a consumer must now generally go through a federally licensed dealer. Private sales between residents of different states, for instance, are prohibited without a licensed dealer as an intermediary. Additionally, the Act imposed serial number requirements and restrictions on imports. The GCA created what is commonly referred to as the “sporting purposes” standard for imported firearms. In order to be legally imported, firearms must be “generally recognized as particularly suitable for or readily adaptable to sporting purposes,” including hunting and target shooting. This standard excludes assault rifles and machine guns, for example AK-47s, from civilian ownership. Domestic production and sale of such weapons, however, was not prohibited by the Act.

In 1972, Congress established the Bureau of Alcohol Tobacco and Firearms (“ATF”) as a separate Bureau to control the illegal use and sale of firearms and to enforce federal firearms laws. For example, the ATF issues licenses and investigates federal offenses involving the use, manufacture, or possession of firearms.

In 1986, Congress passed three major gun laws: the Firearm Owners Protection Act, which relaxed some restrictions on gun and ammunitions sales and established mandatory penalties for use of firearms during the commission of a crime; the Law Enforcement Officers Protection Act, which banned possession of “cop killer” bullets that can penetrate bulletproof clothing; and the Armed Career Criminal Act, which increased penalties for possession of firearms by those not qualified to own them under the Gun Control Act of 1968.

In the 1990s, Congress passed the Crime Control Act of 1990, banning the manufacturing and importing of semiautomatic assault weapons in the U.S. and establishing “gun-free school zones,” and the Brady Handgun Violence Protection Act of 1993, which created a national background check system to prevent firearms sales to prohibited persons as defined by the Gun Control Act of 1968. In 1997, the Supreme Court held in Printz v. United States that the Brady Act’s provision requiring local law enforcement officers to conduct federal background checks was an unconstitutional violation of federalism because the Federal Government may not compel the States to enact or administer a federal regulatory program. The decision ultimately had little impact because most local law enforcement officers were happy to comply with the background check requirements, and the federal government immediately began compiling a federal background check database.

In 1994, Congress passed the Federal Assault Weapons Ban, making it illegal to own or transfer many semiautomatic weapons. The act applied to semiautomatic weapons which had been improved to add certain features, two or more of which would convert them to assault weapons that were banned under the Act. Such features include the addition of a pistol grip, folding or telescoping stock, flash suppressor, and other components common to assault weapons. The ban only applied to guns manufactured after the enactment of the ban and was set to expire in 10 years, which it did in 2004. Although several attempts were made to renew the ban, they all failed.

In 2005, the Protection of Lawful Commerce in Arms Act was passed, which prevented the gun industry from being held legally responsible if a crime was committed with its weapons. Finally, in 2010, the federal government lifted restrictions on guns in national parks.

Supreme Court Jurisprudence

Despite the many examples of gun control legislation, the Supreme Court has only addressed the Second Amendment on a handful of occasions.

Cases decided prior to incorporation of the Bill of Rights to the States via the Fourteenth Amendment

One of the earliest cases to mention the Second Amendment, though not addressing it squarely, was Dred Scott v. Sandford. The case, which ruled that blacks were not protected by the Bill of Rights, considered the rights blacks would possess under the Bill of Rights if they were included, stating:

It would give to persons of the negro race . . . the right . . . to keep and carry arms wherever they went.

Dred Scott was, of course, subsequently invalidated by the passage of the Fourteenth Amendment. The first case to interpret the Second Amendment, although only in passing, was United States v. Cruikshank (1875), in which the Court declined to expand federal jurisdiction under the Fourteenth Amendment to prohibit the actions of private individuals. The case involved the indictment of an armed white Louisiana mob that had attacked and killed over a hundred blacks during a divisive gubernatorial election. The three white ringleaders were brought to trial and convicted under the federal Enforcement Act of 1870, which made it a crime to interfere with any citizen’s constitutional rights. On appeal, the Supreme Court found that the ringleaders’ indictments were faulty; under its reading of the Fourteenth Amendment, citizens were protected only from state action, not from the actions of other citizens. The Court held that the Louisiana state system and not the federal system must punish the ringleaders. In so ruling, the Court made note of other provisions in the constitution that work to limit government action but not private action. With regard to the Second Amendment the Court instructed:

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.

According to the Cruikshank Court, the Second Amendment prohibited only the federal government from infringing the right to bear arms, and so did nothing to prohibit states and localities from doing so.

In Presser v. Illinois (1886), the Court considered the case of Herman Presser, a member of a citizen militia group of armed ethnic German workers associated with the Socialist Labor Party in Chicago. Presser was indicted under an Illinois law that made it a crime to belong to an unauthorized militia separate from the regular organized volunteer militia of the state. Presser claimed that the law forbidding him from drilling or parading violated his Second Amendment rights. The Court reaffirmed the holding of Cruikshank that the Bill of Rights – including the Second Amendment – is a limitation only upon the federal government, and not the states. Therefore, the Second Amendment did not protect Presser against the Illinois state law. However, the Court also stated that the states may not disarm the populace: “[T]he States cannot . . . prohibit the people from keeping and bearing arms.” Although the particular gun control law in question was upheld, the Court made it clear that the states may not go so far in their regulation as to prevent citizens from owning firearms.

In Miller v. Texas (1894), the Court once again refused to apply the Second Amendment to prohibit state action. Franklin Miller was a white man living with a black woman in Texas, where Dallas police arrested him on possibly racially-motivated grounds. Unhappy with this brush with the law, Miller threatened the police and purchased a Colt .45 revolver in addition to his .38 caliber Smith & Wesson. Miller possessed this weapon in public in violation of a Texas law prohibiting the carrying of weapons and authorizing the arrest without a warrant of any individual in violation of the law. Eventually, Miller ended up in a gunfight with the police and was convicted and sentenced to death for shooting and killing a police officer with an unlicensed handgun. Miller argued that his conviction should be overturned because his Second Amendment rights were violated and that the Bill of Rights should be applied to state law. In refusing to incorporate the Second Amendment to the states via the Fourteenth Amendment’s Due Process Clause, the Court made clear that it did so on a procedural basis: “A privilege or immunity under the Constitution of the United States cannot be set up here . . . when suggested for the first time in a petition for rehearing after judgment.” That is, Miller had waited too long to raise the issue in the case.

While the Court over the next hundred years would incorporate many of the rights in the bill of rights against infringing state action via the Fourteenth Amendment’s Due Process Clause, which is specifically directed to state action, the Court would not directly decide the question of whether the second amendment right to bear arms applied against the states until 2010. The 2010 decision resolved uncertainties remaining after the 2008 landmark second amendment case of District of Columbia v. Heller.

District of Columbia v. Heller

For the first time in seven decades, the Court considered the meaning of the Second Amendment and its relationship to gun control laws. The District of Columbia had passed legislation, the Firearms Control Regulations Act of 1975, barring the registration of handguns, requiring pistol owners to have licenses, and mandating that any legal firearms must be kept unloaded and disassembled or trigger-locked in the home. A group of private gun owners, including Dick Heller, a licensed special police officer for the District of Columbia who had been denied a handgun permit, brought suit claiming that the District’s laws violated their Second Amendment rights.

The Court of Appeals for the D.C. Circuit had held that the challenged laws were unconstitutional because the Second Amendment “protects an individual right to keep and bear arms . . . premised on the private use of arms for activities such as hunting and self-defense.” The Court found that the Second Amendment was not limited to militia service, “nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.” Since handguns are “arms,” the Court held that the District’s ban on handguns was unconstitutional, although the right to own them may be subject to reasonable restrictions.

The Court also struck down the requirement to keep all firearms unloaded and disassembled. The Court said that the requirement amounted to a complete ban on functional firearms and the provision “amounts to a complete prohibition on the lawful use of handguns for self-defense.”

The Supreme Court affirmed 5-4, holding that the Second Amendment protects an individual right to possess a firearm unconnected with militia service and protects the right to use such arms for traditionally lawful purposes such as self-defense within the home. The majority found that the District’s requirement to keep firearms in the home inoperable at all times was unconstitutional because it made it impossible to use them for the core lawful purpose of self-defense. Heller must therefore be granted a license to possess a handgun inside his home.

The majority, in an opinion by Justice Scalia, examined the text of the Second Amendment and found that it codified a “right of the people,” language which is used in other individual-rights contexts, such as the preamble (“We the people”) and the Tenth Amendment (powers not given to the federal government are reserved to “the people”). Other constitutional provisions do not use “right of the people” to refer to anything other than an individual right. Justice Scalia consulted contemporary dictionaries from the drafting era to interpret “keep and bear arms” as having the ordinary meaning of to “have weapons.” In support of this reasoning, he cited nine state constitutional provisions written during the eighteenth and early nineteenth centuries, which enshrined the right to “bear arms” that clearly referred to individuals’ rights. Although Justice Scalia acknowledged that “bear arms” was frequently used in the military context, he insisted it was not therefore expressly limited to that context. In his interpretation of the Second Amendment, Justice Scalia relied heavily on the historical context in which it arose, citing Blackstone and English theorists’ conceptions of self-preservation.

Consistent with English and American precedent, the majority held that the prefatory clause did not limit the scope of the operative clause. That is, the Second Amendment did not limit the operation of the “right to bear arms” to the “militia.” Justice Scalia referred to analogous state constitutional provisions, some of which protected the right to bear arms without any reference to the militia at all, in arguing that the Second Amendment merely codified a preexisting right of the people even though it announced a purpose in connection therewith.

Justice Scalia also noted that, much like the First Amendment – which has been applied to modern forms of speech, such as the Internet – and the Fourth Amendment – which has been applied to modern search tools, such as GPS technology – the Second Amendment is not limited to only those arms in existence at the time of the founding. Thus the prefatory clause of the Second Amendment announced a purpose, but did not limit or expand the scope of the operative clause.

The Court held, however, that the Second Amendment is not an unlimited right, although it declined to define its outer limits. Justice Scalia wrote: “since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.” The majority cited the problem of handgun violence and noted that the “Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns,” but that the “enshrinement of constitutional rights necessarily takes certain policy choices off the table,” including absolute prohibition of handguns in the home.

Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, dissented. He argued that the Second Amendment should be limited by the preamble and apply to militia service only, and that lower courts’ decisions which interpreted Miller as requiring a “collective-right” reading of the Second Amendment should bind the Supreme Court as stare decisis. Justice Breyer dissented separately, analogizing the District’s laws to early municipal fire codes that forbade the storage of gunpowder and argued for a constrained reading of the Second Amendment on public safety grounds, writing: “[T]here simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.” Breyer also resisted the majority’s “common use” distinction for determining which weapons are protected by the Second Amendment:

But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machine-gun . . . There is no basis for believing that the Framers intended such circular reasoning.

Most recently, the Supreme Court in McDonald v. Chicago (2010) considered a Chicago ban on handguns and held, 5-4, that the Second Amendment does, in fact, constrain the states via the Fourteenth Amendment’s Due Process Clause. Otis McDonald, a Chicago resident, was an experienced hunter who legally owned shotguns, but wanted to purchase a handgun to defend his home from robberies, as his home and garage had been broken into five times. However, Chicago required all firearms to be registered, yet also refused all handgun registrations pursuant to a 1983 handgun ban. Therefore, McDonald was prevented from legally obtaining a handgun. He and three other plaintiffs challenged the Chicago laws as a violation of the Second Amendment. In 1897, the Supreme Court had held in Chicago, Burlington & Quincy Railroad v. City of Chicago that the Takings Clause of the Fifth Amendment was binding on the states via the Due Process Clause of the Fourteenth Amendment. This was the first Supreme Court case to incorporate an amendment of the Bill of Rights to a state government; subsequently, the Supreme Court has, in other cases, incorporated most of the other provisions of the Bill of Rights to the states. McDonald incorporated the Second Amendment in this manner, making the right to keep and bear arms for the purpose of self-defense applicable to the states as well as the federal government. In light of the Court’s holding in Heller that the right to self-defense was a “fundamental” and “deeply rooted” right, the Court reasoned that the Second Amendment applied to the states.

The State of Gun Control Today

The most recent significant federal court ruling on gun regulation is the Seventh Circuit’s  decision on December 11, 2012 in Moore v. Madigan, in which Judge Richard Posner wrote for a 2-1 majority holding that the Second Amendment applies outside the home and invalidating an Illinois law that amounted to a flat ban on carrying guns in public. Judge Posner wrote, “Both Heller and McDonald do say that ‘the need for defense of self . . . is most acute in the home’ . . . but that doesn’t mean it’s not acute outside the home.” He stressed that both Heller and McDonald invoked the broader “individual right to possess and carry weapons in case of confrontation,” and confrontation could not reasonably be read to mean only confrontation within one’s home. As Judge Posner illustrated, “a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower.”

Among the questions left open by Heller and McDonald is what standard of judicial review applies to scrutiny of gun regulations. Judge Posner, in Moore, suggests that the State could not win the case by merely showing a rational basis for the law. In another Illinois case, United States v. Skoien, the Seventh Circuit had applied intermediate scrutiny in upholding a federal gun ban for convicted domestic violence misdemeanants. In this case, Judge Posner said, the government would need to make a stronger showing than in Skoien, because Illinois’ carry ban applied to all persons, not just a class of misdemeanants who present a higher-than-average risk of misusing a firearm.

Until the Supreme Court next takes up the issue of gun regulation, the lower courts will continue to grapple with the unsettled issues left open by the Supreme Court’s decisions in Heller and McDonald. It is clear, however, from the Supreme Court’s gun control jurisprudence thus far that while banning certain types of weapons is unconstitutional, regulations of firearms are likely permissible as long as they do not burden the right so much as to be the functional equivalent of a ban.