The Second Amendment Over Time

In his book “The Second Amendment: A Biography,” Michael Waldman reminds us of some history that may come as a surprise in today’s political climate: until 2008, Federal courts did not interpret the Constitution to protect the rights of individual citizens to own and carry firearms. Instead, for more than 200 years after the adoption of the Constitution, they left individual state and local governments free to regulate the ownership and possession of firearms as they saw fit.

The courts generally saw two limitations on the rights protected by the Second Amendment, writes former Supreme Court Justice John Paul Stevens. First, they found that the Second Amendment guaranteed a collective right to keep and bear arms for military purposes, not for all purposes. In United States v. Miller, decided in 1939, the Supreme Court unanimously upheld the right of Congress to “prohibit possession of a sawed-off shotgun, because that sort of weapon had no reasonable relationship to the preservation and efficiency of a ‘well-regulated militia.'”

Second, writes Justice Stevens, the right to keep and bear arms was protected against regulation by the federal government, but not against regulation by state and local governments. The Second Amendment, like much of the Bill of Rights, was intended to limit the power of the federal government, a major concern of some opponents of the new Constitution because they believed it shifted too much authority away from the states. Among their concerns, says Waldman, was that the new federal government “would establish a ‘standing army’ of professional soldiers and would disarm the thirteen state militias.”

As State militias gradually dissolved over time, Waldman says, individual states and municipalities passed laws regulating everything from carrying guns to storing gunpowder. Federal courts routinely upheld these regulations until a major Supreme Court decision in 2008. In United States v. Heller, the plaintiff challenged the constitutionality of a stringent Washington D.C. ban on handguns. The Court found that the Second Amendment established not just a collective right for citizens to possess firearms, but an individual right. It also sidestepped the Miller case by saying that there is no legitimate need for law-abiding citizens to carry sawed-off shotguns.

The Court did not address how Second Amendment limits on Federal power could apply to State or local governments. It answered that question in a subsequent case, McDonald v. City of Chicago, decided in 2010. Again the Court invalidated a local ban on handguns, but in this case, it claimed that the power of the City of Chicago to ban ownership of handguns was limited by the due process clause of the Fourteenth Amendment. In other words, Second Amendment limits on federal power were “incorporated” into the rights guaranteed by the Fourteenth Amendment, and therefore apply not only to the Federal government, but to state and local governments as well.

That our political rhetoric around gun ownership is so far away from two centuries of legal precedent is due to the hard work of the National Rifle Association. Originally founded to promote firearm safety, marksmanship, and recreational shooting, the NRA now runs advertisements attacking the media and responds to mass shootings with calls for armed guards in all of our school buildings. This kind of rhetoric will not make our schools and out public places any safer. If we want to craft an approach to safe gun ownership that works, an examination of the original intent of the Second Amendment is a good place to start.

Published: July 16, 2017

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