When I was in law school, the Second Amendment was something of a second-class citizen among the guarantees in the Bill of Rights. The Supreme Court had not touched the issue in many decades, and dicta accrued in various intermediate court decisions denied the existence of an individual right, despite the Second Amendment’s plain meaning.
Outsider scholars deserve some credit for reversing this state of affairs. Don Kates wrote an influential law review article on the meaning of the Second Amendment in 1983 after a number of cities banned handguns. Professor Sanford Levinson and activist Alan Gottlieb also made substantial contributions to the war of ideas.
In short, over several decades, a variety of scholars worked slowly and methodically to rediscover the original meaning of the Second Amendment. In parallel, legislative changes at the state level made “shall issue” concealed carry nearly ubiquitous, starting with Florida’s change to its laws in 1987. That effort culminated this week in the Supreme Court striking down one of the last remaining laws that de facto prohibited concealed carry in New York State Rifle and Pistol Association v. Bruen.
The Court’s opinion, authored by Justice Clarence Thomas, is a good one, clearly and rigorously reasoned. It does away with the backdoor attempt concocted by appellate courts since the 2008 Heller decision to revive gun control laws under the rubric of balancing tests and “intermediate scrutiny.” The opinion, coupled with Justice Samuel Alito’s concurrence, also disposes of some of the more facile arguments against permitting concealed carry, like suicides or street crime, which happen even with restrictive laws in place.
A Moving Target?
Like the 2008 Heller opinion, the latest opinion looks to the types of laws in place at the time of the founding to illuminate the scope of gun rights. This is a useful approach, little different from courts’ approaches to other parts of the Constitution, such as the comparison of modern causes of action to those available at common law to determine when a jury is required under the Seventh Amendment.
The Court also intimates, as it did in Heller, that protection may vary with how widely used a weapon is, as certain restrictions on exotic weapons existed at the time of the founding. This is a bit more problematic. After all, what is widely owned interacts with the historical body of laws, constitutional or otherwise.
By way of example, almost no one owns machine guns today, because their numbers are capped by a ban on new registrations imposed in 1986. On the other hand, semi-automatic weapons, such as the AR-15, have become even more popular in recent years than they were in the 1990s, as gun owners have shifted from mostly rural hunters to urban and suburban enthusiasts interested in recreation, competition, and self-defense.
While not as highly regulated as machine guns, such firearms are comparatively less common in places like California and New York, which restrict semi-automatic rifles. Looking too much at how popular or unpopular a weapon is may solidify what is merely a temporary and accidental set of preferences.
Parity Between the People and the Government
The Court would have grounded the right on a studier foundation if it emphasized the Second Amendment’s public and political functions. Considerations of purpose abound in First Amendment free speech jurisprudence, where cases emphasize the need for an informed citizenry, artistic and cultural expression, and concerns for chilling effect.
Rather than being hoary surplusage, the Second Amendment’s preamble provides some guidance as to the purpose and scope of the amendment. While the right to keep and bear arms is a “right of the people,” the right exists, at a bare minimum, to guarantee the strength and efficacy of the militia, which itself guarantees “the security of a free state.”
It is noteworthy that one of the first federal firearms laws, the Militia Act of 1792 actually mandated members of the militia—defined as all men between the ages of 18 and 45—maintain a musket, bayonet, and other suitable equipment. What would that look like today: mandatory ownership of an AR-15 and a certain number of magazines?
While some critics suggest the efficacy of the militia is completely fanciful in the age of aircraft carriers and atomic bombs, judging by recent combat in Afghanistan and Ukraine, a large and well-armed militia is not an outdated part of national security. A militia with small arms could do useful work today on our porous southern border. Similarly, such an organization would have been of great use during the riots of 2020.
The recent opinion does concede “individual self-defense is ‘the central component’ of the Second Amendment right,” but the individual self-defense component is inherently narrower and would permit only a narrower class of weapons than the broader purpose of defense of the community from enemies “foreign and domestic” envisioned by the Second Amendment.
While tools useful for self-defense and the defense of the community overlap, the recent revolutionary origins of the United States surely were on the founders’ minds when they drafted the Second Amendment. Critics have invoked the militia language of the Second Amendment to argue that “it is only for the National Guard” or is merely a “collective right” or some other nonsense. But they never say exactly what the Second Amendment would prohibit under that interpretation.
Even though the Court downplayed the Second Amendment’s militia purpose in New York State Rifle and Pistol and in its earlier Heller decision, the militia purpose was addressed implicitly in the 1939 decision interpreting the National Firearms Act, Miller v. United States. Miller challenged his prosecution for possession of a sawed-off shotgun. The Court remanded the case, because “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ 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.”
In other words, the Court recognized an individual right, the contours of which would depend on the militia purpose for which the right was protected in the Constitution. Solidifying this principle would fully dispose of the current fad for “assault weapon bans.”
A Cautious Optimism
Technology changes, but the basic principles and dynamics of societies do not. The government and its standing armies presented risks in 1791, just as they do today. Crime and danger existed in 1791 and also do today. Some people misused their freedom in 1791, and some will undoubtedly do so today. Constitutional rights exist to limit the state and its actions, even when those limits are not cost-free. This is as true of the Fourth and Fifth Amendments as it is of the Second.
The Founders were, above all, realists. We must be realistic, too. We are a different and more degraded people than we were in 1791. And we have allowed a great deal of government overreach to accrue—the military-industrial complex, the administrative state and its army of inspectors, as well as “entangling alliances”—with little regard for the Constitution’s limits. As this degradation has proceeded, there have been relatively few limits on the right to keep and bear arms.
Arms without honor or an understanding of ordered liberty would not vouchsafe freedom, but anarchy. Similarly, arms without community, without organization, and without some other authority to appeal to, likely would do little to balance or deter a run-amok government. Indeed, they might encourage it, as they give the people a false sense of their own security. Patriotic Americans should be armed, but it takes more than being armed to actually accomplish something useful. We must also arm our minds and our character.
That said, the great vigor with which the leftist ruling class wants to remove arms from law-abiding Americans suggests the possibility of “watering the tree of liberty” still fills would-be tyrants with a certain amount of fear. And this is a good thing.
The most salient part of the recent opinion is its ultimate conclusion: the Second Amendment is no longer the red-headed stepchild of the Bill of Rights, and the earlier Heller decision was not a fluke. Rather, the Second Amendment, like the entire Bill of Rights, imposes a meaningful limit on government action, because our rights, including the right to bear arms, did not end at some indeterminate period in the past, nor today at the threshold of our homes, but extend to protect us from government overreach in the more dangerous public environs of contemporary life.