“A fraud on the American public.” That is how former Chief Justice Warren Burger described the idea that the Second Amendment gives an unfettered individual right to a gun. In 1990, this solid conservative was expressing the widely held consensus of historians and judges across the political spectrum.
Nowadays those words seem quaint, as an individual right to a firearm is widely accepted–so much that states are passing laws to legalize carrying weapons on streets, in parks, in bars, and even in churches.
What happened? According to many observers, including Michael Waldman, President of the Brennan Center for Justice, the NRA “rewrote the Second Amendment.” How so? Let’s go back to the beginning. Here is the wording of the Second Amendment:
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.
As Mrs. Wiggins would have taught us back in high school, that one sentence statement could have been written as follows:
[Since] a well-regulated Militia [is] necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed.
Thus, “the right to keep and bear arms” was for militia purposes. Before 2008 the Supreme Court had always held that American citizens had no inherent right to bear arms. According to the highest court in the land, the Second Amendment only protected the states’ right to maintain a militia, not an individual’s right to have firearms. However, in 2008 the District of Columbia v. Heller decision, in a narrow 5-4 vote, the Supreme Court held that the right to keep and bear arms is an individual right, unconnected with service in a militia.
How did we get to this point? A very significant development was to have the most conservative court since the 1930’s. Another, perhaps more important, reason was the National Rifle Association’s (NRA) long crusade to bring its interpretation of the Second Amendment into the mainstream of American life. According to Waldman, they demonstrated that Constitutional change is the product of public argument and political maneuvering. They targeted public opinion and government officials—and they succeeded.
What do gun control advocates do now? First, realize that Heller and the later McDonald opinions ruled only that government may not ban the possession of handguns by civilians in their homes. Second, we should stop ceding the battle and follow the approach of the NRA—continue to push for constitutional principles.
Former Supreme Court Justice John Paul Stevens advocates abolishing the Second Amendment, since its original purpose is not appropriate for current day America. He was on the Court in 2008 and wrote the dissent for the four-vote minority. It rested on four main points:
- that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended
- that the “militia” preamble demands the conclusion that the Second Amendment touches on state militia service only
- that the Court has not considered gun-control laws unconstitutional
- and that many lower courts’ later “collective-right” reading of the Miller decision constitutes stare decisis [meaning that the 1939 decision was a precedent-setting ruling. This ruling held that the right to keep and bear arms exists only to guarantee the states’ right to an effective militia, and is not an inherent individual right.]
These points should help gun control advocates make the logical arguments.