How the right to bear arms evolved into an expansive guarantee
“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.”
For much of the nation’s history, the Second Amendment was a neglected part of the Constitution, an obscure clause of little interest to jurists and scholars. It did make one notable appearance in United States v. Cruikshank (1876), a case involving the horrendous Colfax, Louisiana, massacre of 1873, when an armed white militia murdered scores of African American freedmen in the bitter aftermath of the recent gubernatorial election. Here the U.S. Supreme Court held that the Second Amendment applied only to the national government, and that the question of whether the citizens of the states were entitled “to keep and bear arms” was solely under the jurisdiction of state governments.
Its other noteworthy appearance came six decades later, in U.S. v. Miller (1939). This case involved two gangsters who were prosecuted for carrying a sawed-off shotgun across state lines, in violation of the National Firearms Act of 1934. The defendants argued that the Act violated their Second Amendment right, but the Supreme Court unanimously held that because the weapon in question had no “reasonable relation to the preservation or efficiency of a well-regulated militia,” its private ownership was not protected.
Throughout this period, state and local governments adopted numerous laws, ordinances and regulations relating to the ownership and use of firearms. They were acting under the general authority of the “police power,” which long enabled governments to act broadly in defense of public health and safety. This can be regarded as one of the reserved powers of the states protected by the Tenth Amendment, which was adopted at the same time as the Second Amendment. No one then would have thought that these two articles of the Bill of Rights conflicted with each other.
It was not until the 1980s that a rival interpretation of the Second Amendment began to appear, propagated primarily by student-edited law reviews, but also prompted by the National Rifle Association. This new perspective advanced an “individualist” explanation of the original purpose and import of the Second Amendment. The Amendment clearly was concerned with the status of an institutional militia that was organized by state governments but that the new Constitution subjected to congressional oversight and control. But the new individualist interpretation emphasized another function. Not only should the militia be “well regulated,” this view held, but the people themselves, the citizenry, should also be well armed. Of course, the kind of militia the revolutionary generation had known no longer existed. The real purpose undergirding this new interpretation was to constitutionalize a personal right of self-defense. This concern became more compelling as ordinary Americans grew increasingly obsessed with violent crime, which would grow throughout the 1980s and early 1990s.
Repeated often enough in the law reviews, this new interpretation gained a modicum of respect in the legal academy. Two prominent constitutional scholars on the left, Sanford Levinson and Laurence Tribe, took the individualist approach seriously.
But the true purpose of these individualist-school writings was not to gain scholarly credit. It was rather to lay a foundation for litigation that would overturn the long-prevailing view of the Second Amendment.
No one in the late 1780s ever referred to the need to constitutionalize a personal right of self-defense.
The culmination of this campaign came with the Supreme Court’s landmark decision in District of Columbia v. Heller, which was handed down in the summer of 2008. Justice Antonin Scalia wrote the majority opinion, which was cosigned by Chief Justice John Roberts and Associate Justices Anthony Kennedy, Samuel Alito and Clarence Thomas. Justice John Stevens wrote the main dissent, which was joined by Ruth Bader Ginsburg, David Souter and Stephen Breyer.
As it happens, I was the main author of the amicus curiae Historians’ Brief that was filed in support of the traditional position holding that the sole concern of the Second Amendment was with the militia. Ordinarily, it lies beyond the competence of historians to decide — as lawyers often do — whether a case was rightly or wrongly decided. Most cases involve a variety of legal arguments that historians cannot ably assess. But D.C. v. Heller was distinctive in one critical respect. It was and still remains the one Supreme Court opinion that depended most heavily on originalist jurisprudence, which assumes that the meaning of the constitutional text was fixed at the moment of its adoption. That means that the debate about the Second Amendment is essentially historical in nature, relying on the primary sources that historians use. Once one examines those sources and reconstructs the context within which they were composed, the majority opinion in D.C. v. Heller becomes a joke — but one with tragic consequences.
The Syllabus of the opinion notes that the “drafting history” of the Second Amendment, “while of dubious interpretive worth,” did provide several statements that “unequivocally referred to an individual right to bear arms.” This statement is deeply flawed on two points. First, far from being “of dubious interpretive worth,” the sources conclusively establish that the sole subject under debate was the militia. The specific controversy was whether Congress, acting under the powers assigned to it in Article I, Section 8, of the Constitution, would use its legal authority to create a “select militia” that could be more intensively trained than the traditional “citizens militia” that theoretically consisted of all free adult males. In his opinion, Scalia assumed what he had to prove: that because the militia would retain its traditional form, of course citizens must possess the right “to keep and bear arms.”
The second problem is that the few historical references that did allude to an individual right never reached the issue that drives contemporary Second Amendment jurisprudence. No one in the late 1780s ever referred to the need to constitutionalize a personal right of self-defense, any more than they would have thought it important to constitutionalize the right to own property or to marry or to travel by horse or carriage or even canoe. There were ample rules and remedies available in common law for matters of self-defense. Nor in all likelihood would they have wished to modify the capacity of government to regulate the ownership and use of firearms as they became exponentially more lethal than they were in the 18th century.
A vague appeal to “history and tradition” is an inherently nebulous method — and a poor foundation for judicial practice and democratic principle.
But the first rule of litigating at the Supreme Court asks you whether you can count to five, the number of justices who form a majority. The swing vote in Heller belonged to Justice Kennedy. Most commentators believe that he made the decision more moderate than it otherwise might have been. The only constitutional right to bear arms that Heller asserted was restricted to protection within one’s home.
Because Heller concerned only the District of Columbia, its initial use applied solely to Washington. Extending it to the states, however, proved simple. Two years later, in McDonald v. Illinois, the Second Amendment was incorporated against all the states. But this left open the question of what kinds of regulations were still permissible, something that had to be litigated out, state by state and regulation and regulation. Gun rights advocates became increasingly ambitious in their claims. If self-defense now defined the modern purpose of the amendment, why should its exercise be limited to domestic surroundings? Moreover, what level of judicial scrutiny was needed to assess the validity of particular regulations?
The crucial break with the post-Heller framework came in 2022, in New York State Rifle & Pistol Association v. Bruen. The suit challenged a statute requiring anyone wishing to carry a firearm outside the home to provide a “proper cause” for doing so. In the opinion written by Justice Thomas, the Court rejected the means-and-ends testing that courts had been applying in assessing specific regulations. The majority instead agreed that henceforth acceptable regulations of firearms had to be either faithful to the “history and tradition” of prior regulations or at least “analogous” to them.
This interpretive shift has created far more problems than it has solved, in terms both of judicial practice and democratic principle. A vague appeal to “history and tradition” is an inherently nebulous method. Federal judges around the country have complained about the difficult task the Court has assigned them and the lack of a fixed standard to determine which analogies work, which fail. Lawyers are trained to reason by analogy — as historians are not — but analogies can be drawn either narrowly or broadly. Does the absence of an apt analogy between some present practice and a historical antecedent make a modern regulation invalid? Or does it simply mean that prior regulation was unnecessary because firearms then never posed the problems we face now?
The more fundamental problem, though, is a matter of constitutional theory writ large. The whole premise of justifying modern action by invoking history and tradition makes no sense in a democracy. Nothing in the Constitution instructs us to reason this way. The living principle of democracy is to make the actions of our elected representatives responsive to our current opinion, not the uncertain desires of our predecessors. And there is no area of law where the irrelevance of past practice is more apparent than the contentious realm of firearms regulation.