Original Context. Under the first government of the United States (US), the Articles of Confederation, states were required to maintain their own “well-regulated and disciplined militia, sufficiently armed and accoutered” with “a proper quantity of arms, ammunition and camp equipage.” The national government was extremely limited in foreign and military affairs under the Articles. It could requisition the use of state militias for the common defense of the country but state legislatures were guaranteed the right to refuse such a request. Without a supermajority vote of 9 of 13 states, it could not declare war, raise an army, or appoint a commander of that army. Very simply, states completely controlled the nation’s foreign and military affairs.
Problems quickly appeared that presented the need for a strong national government in foreign and military affairs. The US struggled to win actual control over the territory granted to it in the Treaty of Paris. The British were not cooperating in terms of troop withdrawals and the turning over of certain forts to our soldiers. Most of these forts were along the St. Lawrence River and the Great Lakes. These served as a threat to the colonists, especially because they were located in an area where Native Americans could be “stirred up” causing further difficulties. There was also problem with Spain who had been a co-belligerent in the war. Through the Treaty of Paris, Spain had been granted control of Florida and the Gulf Coast region east of New Orleans. In addition to having disputes over the border with Georgia, the Spanish decided to close off the lower part of the Mississippi River to American commerce. This was a formidable threat to the settlers west of the Appalachian Mountains, since they depended upon the Mississippi River to get their goods and produce to New Orleans where it could be shipped to the eastern US and European markets. These settlers were furious that the national government was unable to win concessions from the Spanish on this matter. These western settlers came to support a stronger national government in foreign and military affairs.
These issues played a major role in the move to do away with the Articles of Confederation and write a new Constitution by 1786 and 1787 that would increase the power and authority of the national government. The new Constitution gave all foreign affairs and military power to the national government, including the ability to declare war and to create a standing army and navy. It could call state militias into service without consulting the states. State legislatures had no say in the matter. Among many of the Founders, especially the anti-federalists, the fears of a national standing army could not be completely dismissed. In Federalist #46, James Madison discusses the need for a state militia to keep a federal army in check. It was Madison who penned the 2nd Amendment to the Constitution. In June of 1789 amendments were proposed to the Constitution, one of which became the 2nd Amendment.
The original version of the 2nd Amendment that was debated and initially passed by the House of Representatives stated,
A well-regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.
The final version of the 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.
In the debate over the ratification of the amendment, not a single word was spoken about an individual’s right to a firearm outside the context of a militia during its passage by the US Congress. The entire focus of the discussion of the amendment was on state militias. The evidence during state legislature debates over the 2nd Amendment reinforces that its purpose was to protect the collective rights of the people to bear arms through their state militias. To put it simply, the 2nd Amendment was intended to reassure states that they could not only retain militias but also that the federal government could not disarm them. It should also be noted that the phrase “bear arms” as used at this time and throughout much of US history referred to military activities. As the Tennessee Supreme Court stated in 1840, “A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane.”
Supreme Court Interpretation. It is important to note that it is the US Supreme Court that decides what the Constitution actually says and means. Throughout most of the history of the United States, the 2nd Amendment was seldom litigated. States and local governments routinely decided who could carry guns and what type of guns. Localities often banned the carrying of guns in public. These actions were not seen as controversial and rarely, if ever, required a court decision. When it was, the US Supreme Court interpreted the 2nd Amendment to focus on militias, rather than an individual’s right to bear arms. From 1875 to 1939, the Supreme Court ruled four times that the 2nd Amendment does not protect an individual’s right to bear arms outside the context of a militia. In US v. Miller (1939), the Court reaffirmed the standard interpretation of the 2nd amendment as limiting restrictions placed upon a militia. It stated “[i]n the absence of any evidence tending to show that possession or use of a [sawed-off] shotgun . . . has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” This historical interpretation by the Supreme Court lasted until 2008.
It was in the sphere of public opinion that the interpretation of the 2nd Amendment began to change in the mid to late 1970s. In the late 1950s the National Rifle Association (NRA) opened a new headquarters with a statement of purpose on its façade which stated that it was to promote firearms safety education, marksmanship training, and shooting for recreation. The 1972 Republican Platform supported gun control. Following an article in Guns and Ammo in 1975 written by Ronald Reagan in which he stated that the 2nd Amendment left little room for gun control, the NRA endorsed Reagan for President in 1976. He was the first person to ever be endorsed by the NRA. When libertarians and conservatives, led by Ronald Reagan, gained control of the Republican Party by the late 70s, the NRA had already experienced a “revolt” by libertarian activists against its leadership in Cincinnati at its annual meeting in 1977. A new leadership was elected which supported the Citizens Committee for the Right to Keep and Bear Arms and the 2nd Amendment Foundation. The new leadership shifted the NRA’s focus to the 2nd Amendment and the revisionist interpretation which focused on an individual’s right to bear arms outside the context of a militia. Recruiting academics, journalists, politicians and others to argue in favor of this interpretation and increasing its membership, the NRA became one of the most powerful interest groups in American history. The façade of its headquarters in Fairfax, Virginia today reads “…the right of the people to keep and bear arms, shall not be infringed,” purposely leaving out the clause that references the militia. Public opinion changed dramatically such that by 2008, 73 percent of Americans believed in the revisionist interpretation of the 2nd Amendment that it guaranteed an individual’s right to bear arms outside the context of a militia. In 1959, 60 percent of Americans favored banning handguns. This fell to 41 percent in 1975 to 24 percent by 2012.
The NRA's efforts in shaping public opinion was successful, along with the growing influence of the Federalist Society in shaping the views of the Supreme Court. In District of Columbia v Heller (2008) the Supreme Court was charged with answering the following question “Whether the following provisions – District of Columbia Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 – violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes.” In an historic 5 to 4 decision, the Court, for the very first time, ruled that the 2nd Amendment applied to the rights of individuals who were not affiliated with a state-regulated militia. Justice Antonin Scalia, writing for the majority, stated that the 2nd Amendment confers an individual right to possess a handgun for traditionally lawful purposes such as self-defense. It ruled that two District of Columbia provisions, one that banned handguns and one that required lawful firearms in the home to be disassembled or trigger-locked, violate this right.
It is important to note the majority decision did not view that an individual had an unlimited right to bear arms. Justice Scalia stated that reasonable and lawful restrictions could be allowed such as prohibiting the carrying of concealed weapons, prohibiting the possession of firearms by felons or the mentally disabled, the conditions and qualifications of the commercial sale of firearms, and the prohibition of the carrying of arms in sensitive places such as schools and government buildings. But, he offered no method of determining what a reasonable and lawful restriction was. The minority decision, written by Justice Stevens, cited the long history of the interpretation of the amendment and argued that the amendment only refers to the collective right of the people acting through their state-regulated militia. Justice Brennan also wrote a dissenting opinion in which he argued that even if the 2nd amendment applied to individual citizens not associated with a militia, the rights of the individual must be balanced with the rights of the community to safety and security. He believed the DC restrictions on the possession of a handgun were reasonable given the amount of crime and gun violence in the DC area. It was Brennan, in the minority, who introduced a balancing test. Thus, today, the question is where America draws the line on restricting access to and the possession of firearms by individuals. It seems to me there is plenty of room to compromise and balance an individual’s right with the rights of the greater community to protect against gun violence as suggested by Justice Brennan.
Another question involving the 2nd amendment is whether or not it is applicable to actions of state governments via its incorporation into the due process clause of the 14th Amendment. Two early cases (US v Cruikshank 1875 and Presser v Illinois 1886) affirmed that the 2nd amendment only restricted the actions of the national government not state governments. It was not until McDonald v City of Chicago (2010) that the Court made the 2nd Amendment applicable to the actions of the state governments via the due process clause of the 14th Amendment.
For more information, see 2nd amendment experts Garrett Epps of the University of Baltimore Law School and Michael Waldman, author of The Second Amendment: A Biography, of the Brennan Center at New York University.
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