This post is coming in after my self-imposed week-to-week deadline, and for anyone who was looking for it, I apologize. I’ve been traveling, and this dropped on my list of priorities.
I figured since gun violence is back in the news in the wake of the Thousand Oaks shooting, it might be productive to engage this issue.
The public at large generally seems to view the Second Amendment in one of two ways: As an antiquated protection for another time; or as an absolute right grounded in an individual’s right to self defense, and a check on the potential tyranny of a government gone wild. There are, of course, as in most things, a spectrum of beliefs on gun regulation, but for the sake of this discussion it’s useful to lump all of those beliefs into these two categories.
The text of 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.” U.S. Const. amend. II. Much ado is oft made over the intent of the Framers with respect to the amendment. That analysis is interesting, enlightening, and useful in this discussion, but it also often tortured and misused. There is a doctrine of law called the plain meaning rule, it is one of three rules of statutory construction adopted in American legal theory from the old English common law to prevent courts from taking sides in political issues. The plain meaning rule requires a reader to do just what its name suggests: read the statute by applying the ordinary meaning of the language in the statute. If, after applying the ordinary meaning of the words in the statute, the statute’s meaning is plain, then no further analysis is required and additional information should not be considered.
Read as it stands, and applying basic principles of constitutional law, the Amendment prevents the federal government from passing legislation restricting the keeping and bearing of arms because the militia is necessary to protect the State. For over a hundred years there was no serious debate over what the Second Amendment meant, or how it should be applied: the Amendment protected citizens from restrictions imposed by the federal government, but the states regulated firearms in the manner they saw fit. United States v. Cruikshank, 92 U.S. 542, 551 (1876). See also Presser v. Illinois, 116 U.S. 252, 264-65 (1886); Miller v. Texas, 153 U.S. 535, 538-39 (1894) (holding that the Second Amendment restricted the power of the federal government, but not the states, from infringing on the right of the individual to keep and bear arms). Note that the opinions cited above were written after the ratification of the Fourteenth Amendment, and that the Second Amendment was not incorporated.
It might be useful here to sum all that up: Until 1939 the Second Amendment placed a restriction on the powers of the federal government to infringe on the individual right to keep and bear arms. States were free to do with firearms what they wished.
In 1934 Congress passed the National Firearms Act, which prohibited possession of short-barreled shotguns and rifles, machine guns, and silencers. 26 U.S.C. § 5841. In 1939, the Supreme Court heard the appeal of Jack Miller, who had been convicted of possessing a sawed-off shotgun in violation of federal law, on the grounds that the National Firearms Act unconstitutionally infringed on his individual right to keep and bear arms. United states v. Miller, 307 U.S. 174 (1939). The Miller opinion held that, because the weapon in question did not have “some reasonable relationship to the preservation or efficiency of a well regulated militia” the Second Amendment did not apply. Id. At the moment that opinion was published the meaning of the Amendment changed, from “the federal government shall not infringe on the right of the individual to keep and bear arms,” to “the federal government shall not infringe on the right of the individual to keep and bear arms that have a reasonable relationship to the preservation or efficiency of a well regulated militia.” The opinion went further. In what is considered dicta in the wake of Heller and McDonald, the Miller opinion engaged in an originalist analysis of the Second Amendment, and found that the Amendment existed solely to support the calling of the militia in aid of the national defense. Id. I won’t reproduce that analysis here, I will suggest that it is compelling, particularly because it finds support in Article I, section 8 of the Constitution, and because there was a very strong sentiment against maintaining a standing army at the time the Amendment was written.
So there’s your background. Up until 2008 when Heller was written, the Second Amendment was basically moot. The U.S. maintains a standing army that provides for the national defense, and even has a federally-sanctioned state militia program through the National Guard. Gone were the days when the People would be called to rise up and assemble to defy foreign invaders or put down insurrections. That is not to say that the debate over the right to individually keep and bear arms was dead. Each state had its own regulatory framework for the individual right to keep and bear arms, but those frameworks varied widely, and the question of whether and how much the federal government could restrict gun ownership because the states had domain was very much alive.
In 2008, the Supreme Court published District of Columbia v. Heller, which held that Washington D.C.’s handgun ban unconstitutionally violated an individual’s right to keep and bear arms. 554 U.S. 570 (2008). Heller found that an individual had a right to keep and bear arms unconnected to militia service, dispensing with Miller and reviving the legal debate over federal gun rights. Id. In 2010, the Court published McDonald v. City of Chicago, which incorporated the Second Amendment, creating for the first time an individual protection for gun ownership against the states. 561 U.S. 742 (2010).
So here we are, and now, if you continue reading, you get to learn my opinion. On a personal level, I support responsible individual gun ownership. I believe people should be able to equip themselves for self defense, to hunt, and that there’s nothing wrong with sport shooting. But I don’t think the Framers intended to enshrine the right to keep guns to protect oneself in the Constitution. I think Miller essentially had it right: The Framers hated the idea of a standing army, believing it to be a threat to democracy, and they believed the militia was the solution. To that end, they authored and ratified an Amendment to the Constitution that was intended to promote the militia and limit the federal government’s ability to interfere with it. That view, I think, best provides a holistic understanding of Congress’ powers to raise and equip the militia, of how the President may deploy it, and of the prohibition on infringements related to individual firearm ownership. As the U.S. moved away from the militia model (a migration that started in the 1780’s) the question of gun ownership began its slide from a national security question to one of individual preference. Today, the notion of the Congress calling on citizens to show up to repel a foreign invader armed with their personal firearms is ludicrous.
The Heller opinion reads a right into the Second Amendment that simply isn’t there, and that no amount of tortured historical analysis can reasonably create. It is infuriating to me that Antonin Scalia could claim to be an originalist and author an opinion that dispenses with bedrock principles of legal analysis to create a federal right where none had existed. His analysis in Heller rests on translating the word “militia” into the words “the People” as if the Framers weren’t perfectly capable of writing those words if that’s what they meant, and as if the words mean the same thing when they have obviously distinct connotations. Heller, 554 U.S. 570. Scalia routinely argued that if a strict originalist and textual reading of a statute did not say something, then it could not do that thing. In an interview with California Lawyer, Scalia argued that the court had erred by applying the Fourteenth Amendment to sexual discrimination and sexual orientation, arguing that if Congress wanted to protect women or homosexuals from discrimination it should pass legislation to accomplish that goal. California Lawyer, January 2011, http://legacy.callawyer.com/2011/01/antonin-scalia/. The same standard ought to have applied to the Second Amendment: if Congress intended to protect individual firearm ownership for the purpose of self defense, it should pass legislation to that end.
OK, so what does all of that mean in the wake of Thousand Oaks? Can the government restrict access to firearms, or certain types of firearms, in the public interest? The answer, for now, is yes. While Heller found an individual right to keep and bear arms for self defense, the identified right stopped at handguns. Heller, at 570. The door is wide open for states to pass legislation barring the ownership of certain firearms and ammunition. In fact, the State of Maryland successfully defended a ban in Kolbe v. Hogan when the 4th Circuit ruled that the Second Amendment does not protect ownership of semi-automatic rifles. The Supreme Court subsequently denied certiorari, allowing the ban to stand. That fight, I think, is far from over. The Court’s latest additions have shifted its ideological spectrum firmly to the right. A more conservative Court may deign to hear a challenge to assault weapons ban and overturn the 4th Circuit’s decision, expanding federal protections for individual gun ownership.
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