The Second Amendment and Guns, Part I
© 2020 Dan Cofran | Reading Time: 8 minutes
Few debates have been more spirited in the last twenty years than those about the Second Amendment. Is it limited to hunting rifles, shot guns and single action revolvers? Or does it extend to semi-automatic and military style assault rifles, large capacity ammunition magazines, “bump” stocks, silencers and conceal carry?
Looking for Part II? Click Here.
The Supreme Court changed a long-standing judicial position about the Second Amendment and guns ten years ago in District of Columbia v. Heller (2008). The Court held that a series of District of Columbia ordinances banning hand guns as a practical matter violated the Second Amendment.
The Court’s 5-4 decision reversed the position in place since the 1790s that limited Second Amendment protection to a collective right of the states, for example, to maintain state militias. The Court extended the Amendments’ protection to an individual right to possess firearms unrelated to militia use, at least to the extent necessary for -defense in the home by law-abiding citizens using weapons in common use at the time, in this case handguns.
The Court held that Second Amendment rights were not unlimited. The Court indicated had no problem barring certain weapons, e.g., “dangerous and unusual weapons;” ammunition, e.g., hollow point bullets; places, e.g., school grounds; and persons, e.g., ex-felons, domestic abusers, etc. But the Court did not go beyond self-defense in the home with handguns and left other types of gun regulation up to federal trial and appellate courts to work out, including what standards to use for deciding the constitutionality of other gun restrictions. The trial and appellate court have been busy since then.
The starting place for analysis is the Constitution. The Second Amendment states:
“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.”
Ever since the Second Amendment was ratified over 200 years ago in 1791, federal courts viewed it as limited to a collective right of the states to maintain militias to counter possible federal military action against the states. It was not viewed as protecting an individual right to keep and bear firearms.
At the time of the Revolution and eventual formation of the nation under the Constitution, states were extremely suspicious of federal interference with local affairs in the event they bound together as a nation, even to the point of fearing a standing federal army. Accordingly, the Second Amendment was passed to assure the states they could keep their militias. It was viewed solely as a “hands off” limit on what the federal government could do. It did not limit it what the states could do.
The Constitution for the most part establishes principles, not specifics. Those are left to statutes passed by the Congress. Because the Second Amendment was viewed as protecting the states’ rights to regulate firearms, there were no federal firearms statutes for almost 150 years.
That changed as gun violence increased during the Depression. Congress passed the National Firearms Act in 1934 following the 1929 St. Valentine’s Day massacre near Lincoln Park in Chicago and an attempted assassination of Franklin D. Roosevelt in Miami 17 days before his inauguration in 1933. The Acts’ restrictions were limited to extensive regulation of interstate importers, manufacturers and dealers of sawed off shotguns, machine guns, silencers and the like. Federal action was based on Congress’ right to regulate interstate commerce under the Commerce Clause, Art. II, Sec. 8, cl. 3. The Act carefully did not address individuals’ rights to possess firearms. That was seen as a states’ rights matter.
The Supreme Court upheld the Depression era laws. In United States v. Miller (1939), the Supreme Court upheld an indictment for interstate transportation of a double-barreled, sawed-off shotgun prohibited by the 1934 act, hewing to the collective states’ right view and no individual right view under the Second Amendment.
Additional federal laws were passed over the next sixty years stretching into the 1990s, all based on interstate commerce. These laws regulated the importing, manufacturing and selling of firearms. For example, registrations to sell were required, sales to felons were prohibited, interstate trade of handguns was prohibited, minimum ages were set for purchasing, explosive devices were banned, waiting periods were established, gun-free school zones were authorized, undetectable guns were banned, conversion of single and double action firearms to semi-automatics was banned, a ten-year assault weapons ban was passed, child safety locks and secure gun storage were required, sales to persons convicted of domestic violence were banned and no sales to persons subject to restraining orders were allowed.
Things begin to change in the 1990s. As late as 1996, a federal appeals court referred to the Second Amendment as a collective right held solely by the states, not as in individual right. But hints of change started to surface. The Supreme Court invalidated several “Brady Law” hand gun limitations. Justice Clarence Thomas in a concurring Supreme Court opinion stated the Second Amendment creates “a personal right to keep and bear arms.”
Popular sentiment for individual gun rights increased. The National Rifle Association lobbied for individual gun rights and less federal and state government regulation. Famous celebrities joined the debate, one upping the ante by declaring that he would give up his gun only when “you pry it from my cold, dead hands.”
Congress’ temperature started to change in the early 2000s. Congress passed laws trimming the types of national data base information federal agencies could used to enforce federal gun laws. One act shielded gun manufacturers from liability for crimes committed with their products unless there was proof of actual knowledge that a purchaser intended to use the gun to commit a crime.
Local communities alarmed by an increasing use of handguns in violent crimes began passing ordinances banning or limiting the possession of hand guns. By the mid-2000s, the stage was set to take the Second Amendment to the Supreme Court, the first time before the Supreme Court since 1939.
District of Columbia v. Heller
The District of Columbia, a federal enclave and not a state, passed a series of ordinances making it next to impossible as a practical matter to own and possess a hand gun. For example, the ordinances barred registration of hand guns (otherwise required by federal law), required that handguns when not in use be unloaded and trigger-locked or stored in a locked box and prohibited both open and conceal carry. The federal trial court below followed the long-standing precedent that the Second Amendment was limited to a collective right of states to maintain militias. The federal appeals court, however, reversed, declaring that the Second Amendment also protected an individual’s right to own and possess firearms, teeing up the question for the Supreme Court.
The Supreme Court closely examined the text of the Second Amendment and the Constitution for meaning, as well as the use of firearms and militias at the time of the Second Amendment’s ratification. The court confirmed the Amendment’s meaning as a collective right for states to maintain militias, but also held that this was not sole reason for the Amendment and did not limit its meaning.
The Court emphasized use of the phrase “the right of the people” in the second clause of the Second Amendment as having special meaning in the Bill of Rights, seen as a “right” of “all Americans” as individuals. In addition, the Court noted that when citizens were summoned from their farms and shops to serve in a militia, they brought their own arms, otherwise used for the long recognized individual rights of hunting and self-defense.
The Court strongly indicated its holding was based on “the core lawful purpose of self-defense” and that it would not affect other matters like barring possession of firearms by felons or mentally ill persons, prohibiting firearms in schools and public buildings and outlawing possession of “dangerous and unusual weapons.” According to the Court, the Second Amendment was “not unlimited.”
The Supreme Court in Heller ruled on federal, not state, gun restrictions. The District of Columbia is not a state; it is a federal enclave. Two years later the Supreme Court in McDonald v. City of Chicago applied the Second Amendment to state and local gun laws under the 14th Amendment which applies federal due process and equal protection rights to the states. The post-Civil War 14th Amendment, ratified in 1868, extended civil rights protection to the South as part of Reconstruction. Among other things, the Court noted the importance of self-defense in the home for African Americans facing hostile crowds after freed from slavery.
The Court, however, has never announced rules for judging the constitutionality of gun laws other than hand guns for self defense as in Heller. Instead it left that up to the collective consideration of the federal trial and appeals courts in future cases. Rules developed by the federal trial and appeals courts are covered in Part II of this article, as well an update on a new case now pending before the Supreme Court
For more plain English articles about the Constitution, visit my website at www.dancofran.com and click the “Constitutional Law Articles” tab on the home page.
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