The Second Amendment was written in 1790 and ratified a year later. It reads just 27 words:
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.
Today, the meaning of these 27 words are highly disputed, often misunderstood and subject to heated debates among lawyers and citizens alike.
For over 200 years, the Second Amendment led a relatively quiet life. It was well understood by the courts, and was reaffirmed several times. Its meaning was not hotly contested, challenged in courts or even frequently debated compared to the meaning of free speech, equal protection, and due process, for example. The Second Amendment was universally believed to mean that states could form armed militias, or what we now call the National Guard, to address threats to the security of the state. And the citizens who made up these militias could own their own weapons for this purpose. Only a few cases ever reached the Supreme Court over the first 200 years of its life, and all affirmed this meaning of the Second Amendment.
Then in 2008, the Supreme Court in a 5-4 ruling overturned 200 years of precedent and decided that the Second Amendment actually confers the right of individuals to own guns.
Now the Second Amendment has become one of the most emotional and misunderstood amendments in the history of our government. It has become a beacon for gun-rights advocates, many who claim they would rather die than give up their Second Amendment rights.
What happened? What did those 27 words really mean when written by the Constitutional Framers and how did that meaning change from enabling armed state militias to protect the states in 1790, to conferring an individual right for personal gun ownership in 2008?
A brief history of the Second Amendment tells a fascinating story of America and its evolution over time.
The Militias
In the Colonial time before the American Revolution, militias were formed to provide security against threats to the local communities from Indians, French forces, insurrections and more. These were military forces drawn from citizens who were full-time farmers, shopkeepers, or craftsman that were expected to serve when called into the militia. They drilled regularly and were required to own arms, although many did not since guns were expensive to acquire and often difficult to keep in working order. They were an informal collection of citizens turned temporary soldiers out of necessity and often decided whether to engage in battle by a majority vote. Today they most resemble the National Guard, except they didn’t have uniforms, had to purchase and maintain their own guns, and often voted for their officers.
Massachusetts’ militias were the first to engage the British Army at Lexington in the Revolutionary War and gave them all they could handle. But as the war dragged on, local militias proved no match for the British Army. General George Washington continually scrambled to turn a patchwork of militias and citizen soldiers into a Continental Army that could compete against the British. They didn’t win many decisive battles, but were dogged, determined and with some help from the French were able to survive a war of attrition which taxed the British, ultimately leading to their defeat.
Following the war, there was tremendous skepticism and much debate among the states about creating a standing national army. They had just rid themselves of the British Army’s long occupation. Also, a national standing army was expensive to maintain at a time when the country was broke, and increased taxation not very popular. And it could cause domestic trouble as an instrument of the federal government against the states. A common thought was, “if you gave a king an army, he would find a war to fight.” Some of these concerns were confirmed following the war when the Continental Army was disbanded and armed former soldiers marched on Philadelphia demanding their back pay and pensions. Washington himself averted a potential military takeover of the government from former soldiers at a meeting in Newburgh, NY in 1783.
As the Constitution was being drafted, there was much debate and discussion of a standing army versus a collection of militias to handle national security. Ultimately, it was decided that there would be no standing army, but a military composed of local militias that would be “on call” on an as needed basis by Congress and commanded by the president for a maximum of 2 years.
The security of the new country would rest on local militias who would be called up to form an army when needed. And the militias would also act as a potential defense against the threat of an overpowering federal military, should one be required. This decision led directly to the Second Amendment.
The Bill of Rights
Following the Constitutional Convention in 1787, the initial draft of the Constitution was distributed to the states for discussion and ratification. The response was less than enthusiastic. Most of the states felt the new Constitution levied too much power to the federal government at the expense of the states. One of the concerns not addressed in the initial draft was the state’s ability to form and arm a militia to address their needs for security. At this time there were no police or other traditional law enforcement in the states. Some groups were formed to address specific threats such as runaway slaves or unruly immigrants, but the militia was considered essential to public security of the states. And it needed to be armed to be effective.
A few states ratified the Constitution as is, but others ratified it while also suggesting changes or amendments, including that it incorporate a “Bill of Rights” that protected some essential rights from intervention by the federal government. After debate and discussion in the new House of Representatives and the new Senate, Congress agreed to a Bill of Rights that included 10 constitutional amendments including freedom of speech, right to assemble, freedom of religion and the press, right to trial by jury, freedom from unreasonable searches and seizures and more.
The Second Amendment
The Second Amendment in the Bill of Rights dealt specifically with the militias and the right to bear arms:
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.
When read today, a more confusing 27 words is difficult to imagine. What is a “well regulated Militia”? Why do they specify that it is “necessary to the security of a free State”? Does a “free State” mean a free America, or a free Virginia and New Jersey? Why have a preamble at all? None of any of the other Bill of Rights contain one. If “the right of the people to keep and bear Arms” means all the people can keep and bear arms, then why mention the militia and a free state at all?
Furthermore, what is meant by the “right” which shall not be “infringed”? Does this mean it can’t be regulated or limited in any way or subject to laws? All rights have limits. You have a right to free speech but it can’t libel or slander anyone or be hateful or incite a riot. You have the right to drive, but need to be of age and have a valid license and obey the rules of the road.
Finally what is meant by “keep and bear Arms”? Does that mean one can keep it and brandish it openly when needed?
We could argue endlessly about the meaning of each of these terms, but the Framers of the Constitution used an older English language and different terms than we do today. It was clear to them what it meant, they never proposed editing or clarifying it, and the judicial system ruled on it pretty consistently for over 200 years. So they seem to have understood what it meant.
Bearing Arms
The term “bear arms” has been the subject of numerous research efforts by constitutional scholars. Legal scholar David Yassky, researched the term “bear arms” in the Library of Congress database containing all official debate records between 1774 and 1821. The term “bear arms” or “bearing arms” was used 30 times in debates during that period, and all of them clearly referred to a military arming itself, not an individual.
Another legal scholar researched newspaper articles, books and pamphlets from the period and found “bear arms” referred to a military context 202 times, versus 8 times referring to a non-military context.
A search of the National Archives database on the writings of the six key founders (Washington, Madison, Hamilton, Jefferson, Adams and Franklin) shows “bear arms” used 153 times, each referring to a military context or repeating the Second Amendment and not claiming an individual’s right.
Despite high hopes of state militias protecting the new country, militias quickly proved incapable of defending the nation against attacks. In 1792, Congress passed the Uniform Militia Act, which required all white men between 18 and 45 to enroll in the militia and required them to own a gun and ammunition for it.
In 1794, when President Washington mobilized 15,000 militiamen to put down the Whiskey Rebellion against a tax of whiskey, most of the militiamen did not have guns and the government had to provide them. In the War of 1812 with Britain, 7,000 militiamen could not stop the British from invading Maryland and burning down the White House. A standing national army would soon be formed.
Clarifying the Second Amendment
In the early 1800’s, violence rose in the west and south, and states began to pass their first laws regulating guns and concealed weapons. Some argued that “a right to bear arms” meant individuals could carry weapons however they wanted for individual protection. Even at this time, just 20-30 years after the Constitution was written, people were probing and the courts were clarifying what the Second Amendment meant.
In 1820, a Kentucky state court overturned a law barring the carrying of concealed weapons. Around the same time, an Arkansas court ruled that the Second Amendment only protected militias. In 1840, the Supreme Court clarified things with a ruling saying, “the object, then, for which the right of keeping and bearing arms is secured, is for the defense of the public.” And that, “bear arms” was understood to have a military meaning, not an individual right. Individuals using guns to hunt, or carrying a concealed pistol would not be characterized as “bearing arms.”
The Supreme Court would revisit the Second Amendment again in 1876, US v. Cruikshank, regarding an ugly episode where white and black militias battled in Louisiana over the outcome of a state election. 100 black men were killed, many after they had surrendered. Two white men were also killed. Federal prosecutors charged the white men with violating the civil rights of the black men, including their right to bear arms since they took away their weapons. Three white men were convicted, and appealed. The Supreme Court overturned the convictions, ruling that the Second Amendment and the rest of the Bill of Rights only applied to Congress and the federal government. So Congress could not infringe on the right to bear arms for a well-regulated militia. And the Bill of Rights and the Second Amendment did not apply to the states, which set criminal laws. In spite of the Bill of Rights protections, the states were free to do as they wished. There was no mention in this ruling whether the Second Amendment conferred an individual right to “bear arms” or only in a military context.
Following the Civil War, firearms became more common as former soldiers and others acquired guns. Over the next 50 years as large cities emerged and the country industrialized, America became a very violent place. President Lincoln was assassinated in 1865. Two other presidents were assassinated in 1881 and 1901, and a third was shot in 1912. Gun laws were crafted to control the violence, particularly in the big cities. In 1911, New York City passed a gun law that required a license to own a gun (granted by the police department), and made it a felony to carry a concealed gun outside the home. Within 10 years, similar laws were passed in 10 other states.
Many of these gun laws were challenged in court. In 1886, the Supreme Court heard Presser v. Illinois, which involved an armed private militia facing off against a newly created state National Guard. The private militia argued for their right to bear arms and be regarded as a militia under the Second Amendment. But the court ruled that the state was within its rights to choose which militia would represent the state’s interests. It also reaffirmed that the Second Amendment did not apply to states, but also that states could not pass laws that would “prohibit people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.” So states could pass gun laws, but not interfere with the federal military need.
In 1894, in Miller v. Texas, a defendant claimed that the state’s law prohibiting the carrying of weapons interfered with his Second Amendment right. The Supreme Court disagreed, ruling, ”We have examined the record in vain, however, to find where the defendant was denied any of these provisions.”
Prohibition and new high capacity, rapid-fire machine guns developed during World War I sparked a new wave of violence in the 1920’s and early 1930’s. Criminal gangs battled for control of illegal liquor sales, and then moved into robbing banks. New President Franklin Roosevelt ended prohibition and passed the National Firearms Act of 1934, which imposed a heavy tax on the most popular criminal guns, required that machine guns and sawed-off shotguns be registered, and prohibited their transfer across state lines. In 1938, the administration tried to expand the law to all guns, but gun owners and the NRA protested. The final bill banned interstate trafficking in guns without a license.
That law was challenged and upheld by the Supreme Court in United States v. Miller in 1939, a landmark decision examining and clarifying the Second Amendment’s intent in detail for the first time since it was written. A unanimous ruling upheld the National Firearms Act, stating that without evidence that a sawed-off shotgun “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.” The ruling continued, “With 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 and applied with that end in view.” The Miller decision identified the Second Amendment’s origination to the need to arm militias due to lack of a standing army, and its test for which weapons could be banned was based on their military usefulness in the current world, not that of 1789.
Up to this point, the Supreme Court had directly considered the Second Amendment four times, and had never found an individual right to gun ownership in its 27 words. The Second Amendment was well understood by most and not debated nearly as much as the right to free speech, due process or equal protection clauses. But that was about to change. A new school of constitutional interpretation was emerging that would soon find meanings in the Second Amendment that had somehow stayed hidden for over 200 years.
Originalism and the NRA
“Originalism” is a legal school of thought, which claims that the only way to interpret the Constitution is to ask what it meant at the time it was enacted, in the 1700’s. This was a radical departure from the standard way courts had been applying the law, which was to interpret the law’s meaning, consider precedents and apply it to today’s world. Justice Oliver Wendell Holmes summarized the conventional view; “The case before us must be considered in light of our whole experience, and not merely in that of what was said a hundred years ago.” The law was a living, breathing organism that changed as the country and social norms evolved. The term “All men are created equal” in 1789 meant all white men are created equal to the exclusion of blacks, Indians and women. Obviously, today these same words have a very different meaning. But Originalism departed from this traditional view to determine the original intent of the language, and interpreted it at the time it was written. The most significant consequence of this was a reinterpretation of the Second Amendment after more than 200 years.
At the same time, a powerful gun-rights group, the National Rifle Association (NRA), emerged as a potent political force for the expansion of gun rights. The NRA was started in 1871 as an organization for gun training and safety. By the 1980’s, the NRA had morphed into a militant organization whose mission was to be “the guardian of the traditional American right to keep and bear arms,” and referred to federal law enforcement agents as “jack-booted government thugs.” The NRA had a large and loyal membership, supported numerous conservative politicians and political action committees, and financed a shift in legal interpretations of the Second Amendment.
During the 1970’s and 1980’s, law review articles began to appear advocating that the Second Amendment actually conferred an individual right to own a gun. During this period, 27 law articles appeared taking this new view. 16 of these articles were written by lawyers employed by or representing the NRA, or other gun rights organizations. During the 1990’s, the NRA paid three lawyers over $1M for representing the NRA and writing 30 law review articles advocating this new interpretation. Retired Chief Justice Warren Burger called this effort to expand the interpretation of the Second Amendment, “One of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime.”
Initially scoffed at by traditional legal circles, this new interpretation would combine forces with the Originalist movement on a case that would dramatically change gun laws in America.
District of Columbia v. Heller
In 1976, Washington D.C. passed a law banning residents from owning handguns, automatic firearms, and high-capacity semi-automatic firearms. The law also banned individuals from keeping any other firearms at home without a trigger lock. Dick Heller was a security guard at a federal building who wanted to bring his work gun home to his high crime neighborhood. Backed financially by Robert Levy of the libertarian Cato Institute, Heller and his lawyers claimed the law violated their Second Amendment rights and with other plaintiffs sued. In 2004, the District Court dismissed the lawsuit, but the US Court of Appeals for D.C. Circuit reversed the dismissal and struck down the Washington D.C. gun ban.
In 2008, District of Columbia v. Heller reached the Supreme Court. In a 5-4 ruling, the Supreme Court struck down the city’s gun ban, reinterpreting the 27 words of the Second Amendment some 200 years after they were written to find that they actually did confer an individual right to own a gun. Never mind 200 years of precedent and prior court rulings that found to the contrary, this court simply disconnected the reference to a “well-regulated Militia, being necessary to the security of a free State” and focused on the “right of the people to bear Arms shall not be infringed.”
Using an Originalist approach, the Supreme Court had reinterpreted what the founders must have really meant 200 years ago. Justice Antonin Scalia writes, “There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.” Scalia characterized handguns as “the quintessential self-defense weapon.“ And “whatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The New Yorker commented on the ruling, “Scalia translated a right to military weapons in the 18th century to a right to handguns in the 21st.”
In a potentially contradictory statement, and in what Justice John Paul Stevens later said was necessary to build a five vote majority, the ruling concedes that “like most rights, the Second Amendment right is not unlimited, and was not a right to keep and carry any weapon whatsoever, in any manner whatsoever for whatever purpose.” So there was a constitutional right for individuals to own and carry a gun, but it could be limited. Just not the way District of Columbia was limiting it. It was Originalism run amok.
In his dissenting opinion, Justice Stevens summarized, “the Second Amendment was adopted to protect the right of the people of each of the several states to maintain a well-regulated militia…It was a response to concerns raised during ratification of the Constitution that the power of Congress to disarm state militias and create a national standing army created an intolerable threat to the sovereignty of several states. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms.” Stevens felt gun-rights were clearly a legislative issue, not a constitutional right. Years later in 2019 following his retirement, Stevens would call the Heller decision, "Unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench" and called for a Constitutional amendment overruling it.
The Heller ruling invalidated the District of Columbia’s law as unconstitutional under a reinterpreted Second Amendment. But did this also apply to the states? District of Columbia was under federal rule. Chicago now had the nation’s strictest handgun law, and it was the subject of the next major court opinion on the Second Amendment. In 2010, by the same 5-4 majority, the Supreme Court ruled in McDonald v. Chicago that the Second Amendment right for individuals to own guns also applied to the states. This essentially overruled both US v. Cruikshank and Presser v. Illinois, which claimed that it did not apply to the states, which could set their own gun laws.
The Supreme Court had now ruled in Heller and McDonald that there was an individual right to gun ownership that applied to the federal government and the states, but that this right had limits. The courts now had to decide which gun laws fell within these limits and which exceeded it. In subsequent years, most courts have looked to parallels to the First Amendment, which provides freedom of speech, but within limits. This has resulted in courts balancing the core right to own a gun for self and home protection with the rational basis of any law passed that may limit that right in the interest of public safety. Many gun laws have been upheld on these grounds, but others have been overturned as going too far to restrict that right.
Times Have Changed
Today, the meaning of those 27 words written 230 years ago is still hotly debated. Is the Constitutional Framer’s original 1790 meaning correct or is the Supreme Court’s 2008 Heller reinterpretation correct? We believe that is the wrong question. The right question, the one we should all be asking ourselves, is what kind of country do we want to live in now?
Fundamentally, what a group of savvy and well-intentioned men thought about gun ownership 230 years ago is not terribly relevant to the world we live in today. The world has changed. Guns have changed. The use of militias and standing armies has changed. And our society has changed.
In 1790, there was no difference between military weapons and those kept by civilians for self-defense and hunting. The “military” weapons of the time were muskets, which had to be hand-loaded for each individual shot. A skilled soldier might get off 2-3 fairly inaccurate musket shots per minute. Today’s guns are far more powerful and lethal. The shooter in Las Vegas in 2017 fired over 1000 shots in ten minutes from multiple semi-automatic weapons, killing 60 and wounding over 400 people. Today, powerful weapons designed for military use such as semi-automatic weapons and assault rifles have no place in the hands of civilians who will never be called into military service, in spite of what the Second Amendment intended.
Militias are no longer the primary means to ensure the security of a state, or defend the nation upon an attack. Since 1815, a standing national army, so feared during the post-revolutionary period, has become the primary means to provide security to the nation. Local police departments began to emerge in the mid 1800’s in large cities such as New York, Boston, Philadelphia, and Chicago to handle local law enforcement. Militias or what is now the National Guard are essentially a last resort, called up for state or local emergencies, and civil disturbances. Their purpose in 1790 as the primary means of local and national security, and for providing state security against an overpowering federal government is not terribly relevant today.
Perhaps most of all, our society has changed dramatically since those 27 words were written. In 1800, only 3% of the 5 million Americans lived in an urban setting. Today, the US Census Bureau estimates that 80% of 330 million Americans currently live in an urban area. Large cities have sprung up with millions of residents that live in very close quarters, which may require certain laws and regulations to keep the peace and ensure public safety. Due to high levels of gun violence in large cities, elected law-makers in New York, Washington D.C., Chicago and other cities passed strict gun laws to curb gun violence in the interest of public safety.
A Perspective on the Future
How would our Constitutional Framers weigh the safety of the people in a densely populated city against the right for individuals to own firearms? At this point who cares? Times have dramatically changed. And the Framers were smart enough to know that the Constitution could not be a static document, but had to change and evolve as the needs of the country changed and evolved. They created the Amendment process as the vehicle to make necessary changes.
Justice Stevens suggested adding five words to the Second Amendment to clarify its purpose: “…the right of the people to keep and bear Arms when serving in the Militia, shall not be infringed.” And then presumably leave it up to the legislative branch to determine the appropriate gun laws for each state and community. That would be a sensible approach.
Unfortunately, America has not adopted a sensible approach to gun laws, and this has resulted in the widespread acquisition of guns of all kinds. There are currently more guns in America than there are people. America has just 4% of the world’s population, yet possesses almost half (46%) of the world’s guns. As a result, America has the highest level of gun violence by far, compared to similar countries. Almost 40,000 Americans are killed by gun violence every year. This rate of gun death is 11 times higher than 28 other similar countries combined, according to a recent study. America’s gun homicide rate is 25 times higher, and the gun homicide rate of non-whites is 72 times higher than other comparable countries. It is ironic that the Second Amendment was written in part to ensure that militias could arm themselves to secure public safety. Instead it has contributed to the highest gun violence in the world compared to similar countries.
It is doubtful this is what our founding fathers envisioned for America’s future, but it is not up to them anymore. It is up to us to define the kind of country we want to live in. We must determine the path forward by looking through the lens of the present, not the past. And, as our founding fathers did, look to what works in other countries as a guide to what can work in America.
Rather than focus on 27 words written over 200 years ago, we should focus on creating a safe and sane country today, and envision the kind of country we want our children and grandchildren to live in in the future. We should adopt laws and perhaps a Constitutional Amendment if necessary to set guidelines for gun use that can ensure a safe America, free from gun violence for the next 200 years.
Free From Gun Violence was founded with the mission to help build a better future by reducing gun violence in America. We will broaden the awareness of gun violence, analyze and expose the issues behind it, and advocate all means to reduce it to make our country safer. Join us and help to build a country free from gun violence.
Sources:
The Second Amendment: A Biography. Michael Waldman
Almost a Miracle. The American Victory in the War of Independence. John Ferling.
Constitute:https://www.constituteproject.org/
Federal Judicial Center
Bureau of Alcohol, Tobacco, Firearms and Explosives
https://www.atf.gov/rules-and-regulations/national-firearms-act
The Atlantic, The Supreme Court’s Worst Decision of My Tenure
https://www.theatlantic.com/ideas/archive/2019/05/john-paul-stevens-court-failed-gun-control/587272/
New York Times: ‘It’s a Long Story’: Justice John Paul Stevens, 98, Is Publishing a Memoir
https://www.nytimes.com/2018/11/26/us/politics/john-paul-stevens-memoir.html
Violent death rates in the US compared to those of the other high-income countries, 2015/2019. Erin Grinshteyn, David Hemenway
https://repository.usfca.edu/cgi/viewcontent.cgi?article=1147&context=nursing_fac