The topic of gun control is a hotly debated one, and with gun violence increasingly in the news, it’s not hard to understand why. America has a gun violence problem that is unique to the country, and despite incessant reminders that this sort of violence just doesn’t happen other countries, legislators can’t seem to figure out a way out of it. Central to this debate and to the issue of legislation is the Second Amendment, which protects the right to bear arms. But understanding why the Second Amendment matters so much goes beyond just knowing what it says. In this article we’ll explain how different people interpret the second amendment, and how those different modes of interpretation affect the rights of gun owners today.
The full Second Amendment to the U.S. Constitution 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.” It was ratified on Dec. 17, 1791. It is part of the Bill of Rights, the name of the first ten amendments added to the United States constitution.
The history and impetus behind the 2nd Amendment primarily flow from the British colonial experience. In 17th century England, there were efforts by British monarchs to disarm citizens by force. These efforts resulted in the English Bill of Rights of 1689, which explicitly forbade the British monarch the right to disarm citizens and noted that the ability of individuals to arm themselves for self-defense or to repel a foreign invader was sacrosanct.
Such colonial history – and efforts by the British to repress the rising Continental Army of the former Colonies – led the framers of the American Constitution to include the 2nd Amendment to incorporate the idea of guaranteed individual gun ownership in the United States Constitution. Many state constitutions at the time had explicit protections that guaranteed individuals the right to bear arms. The text used in the 2nd amendment was taken directly from many state constitutions.
However, the wording of the 2nd Amendment has resulted in extensive debate on the issue. Gun control proponents have focused on the first four words to the amendment: “A well-regulated militia.” One interpretation of this section of the amendment is that the 2nd Amendment protects the ability of states to arm themselves and create state militias or, today’s equivalent, the National Guard. The argument here is that framers of the Constitution were trying to protect the rights of states to create their armed forces in the face of a potentially overbearing and dictatorial central government power. As is seen many times throughout the Constitution, the document’s framers were deeply concerned with the centralization of governmental power, fearing that such centralization could lead to the creation of a government that could easily override the rights of individuals.
Individuals who take a more conservative approach to the interpretation of the document believe the that framers wanted to protect the individual rights of people to own arms. As noted by advocates on this issue, like the Second Amendment Foundation, many other amendments in the bill of rights explicitly protect individual rights. Thus, it would be logical for the 2nd Amendment to have the same applications.
The supreme authority to interpret the meaning of the United States Constitution rests with the United States Supreme Court. It is the Court that interprets the Constitution and applies it to cases. The Supreme Court’s ability to interpret the Constitution is called judicial review, and it has existed in the United States since the decision of Marbury vs. Madison (1803).
Depending on a variety of factors — including the make-up of the Supreme Court, the circumstances of the case, and the previous history of rulings — the United States Supreme Court may invoke one or several modes of constitutional interpretation. These include:
Before the 20th century, the 2nd Amendment rarely saw any direct litigation. The issue became more heavily litigated after more deadly firearms became available for purchase by the public, resulting in some states enacting more stringent gun control laws. These laws came in a few different forms, such as laws governing what weapons could be sold, where weapons could be carried, and circumstances individuals had to meet to qualify for gun ownership.
United States vs. Miller was one of the first major Supreme Court second amendment cases. That case saw the litigation of the 1934 National Fire Arms act, which stated that the transportation and use of some weapons — like a double-barrelled shotgun — was illegal. Two men, Jack Miller and Frank Layton, were arrested and charged with a violation of the act. They sued, challenging the constitutionality of the NFA.
In a unanimous Court decision, the Court ruled that the purpose of the 2nd Amendment was for the establishment and protection of state militias, not individual rights. As such, the 1934 National Firearms Act was legal, and the arrest of Miller and Layton was constitutional.
It was not until District of Columbia vs. Heller (2008) that the Supreme Court ruled that the rights inherent in the 2nd amendment did apply to the individual. That case saw the challenging of Washington, Court’s stringent gun control laws. At the time, Washington had gun control provisions that:
Dick Heller was a police officer who was denied the right to register his handgun. He subsequently sued. In a 5-4 decision agreed to by the conservative wing of the court, multiple pieces of Washington’s laws were found to violate the Second Amendment. These include:
In the decision, the Court explicitly held — for the first time — that the 2nd Amendment protected individual rights to own firearms. The court applied an original meaning interpretation to the 2nd Amendment and found that it applied to the “rights of individuals to bear arms,” not just the right of state militias to exist.
However, while the ruling did strike down attempts from Washington, D.C. to implement more stringent gun control measures, it also explicitly maintained other widely accepted measures. In his opinion on the case, Justice Antonin Scalia said, “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever, and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogs. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Such a statement intentionally left intact widely used gun control measures, finding them to be compatible with the 2nd Amendment’s guarantee of individual rights.
Flowing from that case came to a more conservative interpretation of the 2nd Amendment by the United States Supreme Court. The case in question was New York State Rifle & Pistol Association vs. Bruen (2021). That case dealt with the ability of an individual to carry a firearm outside of their home. At the time, New York held that an individual had to apply for a permit that showed a “special need” to receive a license to carry outside of their home. The case was filed after Robert Nash and Brandon Koch were denied such a permit.
In a 6-3 decision, the court found that New York’s concealed carry restrictions explicitly violated both the Fourteenth and Second amendments to the constitution. It noted that blanket restrictions on the right to carry a gun were too broad, although it did leave room for restrictions to be enacted in more “sensitive” places.
As one would imagine, given the case results, the Court used a textualist and original meaning approach in interpreting the second amendment and balancing the impact of the law against constitutional requirements. Concurring opinions, like those of Justice Roberts, left some room for pragmatism, noting that some more “objective” gun restriction measures may meet constitutional challenges. However, the impact of the decision was largely seen to be a victory of conservative approaches to the U.S. constitution.
Given the Court’s ideological makeup and recent history, it seems clear that the court is set to use original meaning and textualist approaches in interpreting the 2nd amendment. This will make it difficult for more stringent gun control measures to stand up to the Court’s scrutiny.
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