The Second Amendment: What The Law Is

The Second Amendment has long been the source of great controversy, and no more so than now with the rash of mass shootings, particularly at schools.  This post aims to deal with one thing and one thing only: what the law of the Second Amendment is.  This is, after all, a legal education blog, not a legal policy blog.  I will at the end of the post draw a policy conclusion from the existing law, but otherwise, it will be straight law. 

Aside from this being the reason why this blog was started, I find (a personal point of view here) that there is plenty of argument about the issue of the right to bear arms from a "the law ought to be this" point of view but much less from the "this is what the law is" perspective.  The starting point of many arguments is what should be the conclusion.  Maybe it's how I was trained as a lawyer, but I think you ought to start with where the law is, knowing full well that it is going to change.  Notice I did not say evolve: that's a qualitative judgment.  What counts as evolution depends on your positions on the public policy surrounding guns and gun ownership, but it makes precious little sense (at least to me) to argue about these issues without knowing where you are starting from.

The Second Amendment 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.

Despite all the controversy about the Second Amendment, the Annotated Constitution devotes just over 5 pages (out of 2862) to it.  (By comparison, the 14th Amendment gets 420 pages with 2279 footnotes).  The lesson from that is that it has not been the subject of much litigation or analysis by the Supreme Court. The amendment naturally breaks down into two parts, a split which is reflected in the policy debates.  As the Annotated Constitution puts it:

"To perhaps oversimplify the opposing arguments, the “states’ rights” thesis emphasized the importance of the prefatory clause, arguing that the purpose of the clause was to protect the states in their authority to maintain formal, organized militia units. The “individual rights” thesis emphasized the operative clause, so that individuals would be protected in the ownership, possession, and transportation of firearms. Whatever the Amendment meant, it was seen as a bar only to federal action, not state or private restraints."

And up until 2008, that was the state of the law.  And even the one case that did involve federal regulation, United States v. Miller, 307 U.S. 174 (1939), upheld the National Firearms Act's requirement that sawed-off shotguns (barrels less than 18 inches) be registered. The Miller Court observed that “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted with that end in view.”  307 U.S. at 178. Therefore, “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than 18 inches in length’ at this time 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.  Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”  Id.   The "states rights"/"well regulated militia" clause dominated what little analysis the Supreme Court gave to the Second Amendment.

Miller, however, did not shed a great deal of light on what could (or could not) be done by way of firearms regulation.  More importantly, in the late '80s and throughout the '90s, there was a surge in legal and historical scholarship that was on the "individual rights" side of the Second Amendment argument.  Some of the legal scholarship, in fact, came from an unlikely source, what people might consider the "liberal" side of legal academia.  You could, as they say, write a book about this, but the key thing to understand is this: if you want the Bill of Rights to apply to the states (via the 14th Amendment) it all has to apply.  And the notion of individual rights and the ability to defend oneself was appealing, for similar and different reasons, to both sides.

There was an inkling that this scholarship had reached the Supreme Court when in 1997, for reasons having nothing to do with the Second Amendment, the Court struck down the Brady Handgun Violence Protection Act and Justice Thomas wondered in a concurrence whether the under the Second Amendment the federal government could regulate gun sales.  Justice Scalia wondered the same thing in extrajudicial (not done as a judge) writings.

The answer came in District of Columbia v. Heller, 554 U.S. 570 (2008).  In Heller, the Court came squarely down on the "individual rights" side of the argument and ruled 5-4 (in a majority opinion written by Justice Scalia and joined by Justice Thomas) that a District of Columbia law that banned virtually all handguns, and required that any other type of firearm in a home be dissembled or bound by a trigger lock at all times violated the Second Amendment.  The Court rejected the argument that handguns could be banned as long as other guns (such as long-guns) were available, noting that, for a variety of reasons, handguns are the “most popular weapon chosen by Americans for self-defense in the home.  Similarly, the requirement that all firearms be rendered inoperable at all times was found to limit the “core lawful purpose of self-defense.”  The Court also rejected, after a long textual analysis of the amendment, that a connection to a militia is required.  

Because the District of Columbia is a federal enclave, the Court did not have occasion to address whether it would reconsider its prior decisions that the Second Amendment does not apply to the states. That issue was decided in McDonald v. City of Chicago, 561 U.S. 742 (2010).  Although a plurality opinion (see my last post for a discussion of plurality opinions), McDonald overturned prior precedent and found that the Second Amendment is incorporated through the Fourteenth Amendment and is thus enforceable against the states.  The Court, relying on the historical analysis in Heller, noted the English common law roots of the right to keep arms for self-defense and the importance of the right to the American colonies, the drafters of the Constitution, and the states as a bulwark against overreaching federal authority.

So after Heller and McDonald, all gun control is dead, right?  

No.  This is the policy point I promised at the beginning.  Heller/McDonald do not forbid gun control.  In fact, the Heller court "specifically stated (albeit in dicta)["dicta" is an opinion by a court on a question that is not essential to its decision/holding even though it may be directly involved] that the Second Amendment did not limit prohibitions on the possession of firearms by felons and the mentally ill, penalties for carrying firearms in schools and government buildings, or laws regulating the sales of guns. The Court also noted that there was a historical tradition of prohibiting the carrying of “dangerous and unusual weapons” that would not be affected by its decision. The Court, however, declined to establish the standard by which future gun regulations would be evaluated."  Annotated Constitution at 1374-75.

So Heller/McDonald are (1) the controlling cases on the Second Amendment; (2) they hold that yes, there is a fundamental right to bear arms, and that right applies on both the federal and state level; and (3) the statutes involved in those cases--which banned weapons entirely or effectively made them useless--were unconstitutional.  

It is true that these are landmark cases.  They breathed new life into a part of the Bill of Rights that had been dormant for almost 70 years.  And they established (more properly, held) that a constitutional right exists that, frankly, not everyone is happy about.  

But let's be clear.  They do not preclude regulation or gun control.  Heller is very clear about that.  Like any constitutional right, it is not unlimited.  I cannot perjure myself and claim First Amendment free speech protection.   No, they give no guidance on how to do it.  That will be a job for Congress and the state and local legislatures.  Heller/McDonald does not preclude action on guns.  Only they can do that.  


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