Arguably, one of the most talked about amendments and overall policy legislation pieces of modern-day politics. Now, more than ever, the testing and judgement of the Right to Bear Arms has placed the American people at opposing ends. As the amendment is written, “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” (United States Const., amendment II), the interpretation of the amendment has been sporadic throughout history. The term ‘militia’ has been understood in vastly different manners, yet the Supreme Court has only given a legitimate stance on this issue in recent years. It is important to not only look at the history behind the Second amendment, but it is also essential to examine what precedents and future outcomes can arise with weaponry and technology advancements, and where and how government regulations come into play.
In United States history, there have been very minimal cases brought to the Supreme Court regarding the Second Amendment. Therefore, the few decisions made how been made surrounding the culture of the U.S. at the time of the case. And, as it is known, with a new Supreme Court comes different interpretations, goals, and motives for a decision. The increased jurisdiction and power of the Supreme Court has played a factor and most likely will play more of a factor in the future context of the amendment as a whole and its effects of present and prospective society.
In regard to the history of this amendment, the first real Supreme Court case was with the case of United States v. Cruikshank. This was during the Louisiana election in 1872, and, at the time, the Republican and Democratic political parties became hostile towards one another. On Easter Sunday, what became known as the Colfax Massacre took place. A group of black Republicans were shot by democrats that belonged to a militia, and the perpetrators were charged with violating the 1870 Enforcement Act, meant to decrease KKK terrorism.
The Supreme Court had a plethora of factors to consider when they heard this case. When it came down to it, the Court only really looked at the applications of the Second Amendment and what their verdict would be based on their interpretation. When the decision was made, the Court sided with the defendants, using the Right to Assemble and Right to Bear Arms as their reasoning. The Court stated that these amendments, along with the fourteenth, were put in place to restrict the federal government from infringing upon the rights of the people, and that it did not apply directly to individuals or the states (Federal Justice Center). Rights were then granted to the people and not on a national level. This narrow interpretation emphasized the pro-gun rights attitudes of many Americans, especially pre-World Wars era, where weapon technology drastically expanded.
Ten years after the decision of Cruikshank came the case of Presser v Illinois. A group of German workers of the Socialist Labor party. Groups of men formed small armies in and near Chicago to prepare for any upcoming violent issues with opposing parties or groups. Herman Presser was amongst the men of these armies and argued that they were being deprived of not only their right to assemble – in this case, a military-like coalition – but also the right to bear arms as the Constitution allows.
The Supreme Court used the ruling in United States v. Cruikshank to uphold Presser’s claims. The diction of the First and Second amendments, once again, was read as not giving rights to the federal government; instead, the sovereignty remains in the individual, as this is considered to be a crucial right that cannot be taken from the American people. Justice Woods gave the opinion of the court, in which he wrote that the ruling followed precedence, as well as did not apply to the National government in the First, Second, or Fourteenth Amendment, just like the case of Cruikshank (Oxford Reference).
Another case regarding the magnitude of the Second Amendment would not come about until 1939 with the case of United States v. Miller. What marks this case as odd, however, is that the defendant and his counsel were not seen before the Court. Because Jack Miller had already appeared in court to testify against his original gang of bank robbers, the judge ruled in favor of the Second amendment so that it would be appealed to the Supreme Court. He was not forced to be seen in front of the Court again, as he would have been set free and would have been in danger, since he cooperated with the government against the robbers. However, the plaintiff argued that the National Firearms Act of 1934 was an act to tax and, thus, not an infringement upon anyone’s Second Amendment rights (Legal Information Institute).
The plaintiff continued by arguing that the gun used was in fact not one that was used for militia purposes. The final decision was that, “The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well-regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.” And, because of lack of opposition, the Court had no real choice but to side with the plaintiff in this case.
The pivotal aspect of United States v. Miller is that this was the first time the Supreme Court had given jurisdiction to the federal government in concerns to gun regulation of any sort. In the cases of Cruikshank and Presser, the Courts prohibited the federal government from having a hand in play. This New Deal phenomenon of expanding national government interest is relevant and present in this case. With the attitudes of the executive branch drastically shifting, the political attitudes and opinions of the courts at this time, especially, also shifted, as did the power that the Courts hold as a whole.
What we obtain from this is that government regulation of guns is more popular of a belief than it used to be. It seems that this interpretation is that if a weapon is not deemed as being of militia use, as opposed to firearms, it is not a protected right under the Constitution. The Courts did not outline whether the states had the individual right to control gun regulation on their own and out of national government jurisdiction. This issue does not truly come up until 2010, in the momentous case of District of Columbia v. Heller.
Before, 2010, however, came the case of United States v. Emerson. Timothy Emerson was arrested for possession of a firearm while having a restraining order against him. Emerson then argued that this was a violation of his Second Amendment rights. The Supreme Court decided, though, that this was not a violation of the second amendment and that Emerson did not have the right to have a gun in this case. This is the first time we see a push away from focusing on the restrictions set by the federal government onto the issue of gun laws as they are applied to individual liberties. This 2001 case is just the leading point to the critical case of District of Columbia v. Heller.
District of Columbia v. Heller has set the foundation and has shifted the view of the Second Amendment as it is practiced in our current time. Up until this point, many were still perplexed as to what the true limits of the Second Amendment were. As we know from historically, the right to bear arms was considered a natural right in the American eye rather than one that was granted by the government. For over a century, this amendment was interpreted as a limitation on Congress; as for states, the federal government would not interfere nor regulate interstate laws regarding guns.
When we get to District of Columbia v. Heller, it has to be considered that the Supreme Court had not truly given a verdict as to what legitimate role gun rights held in our western democratic society. So, Dick Heller, a police officer in the District of Columbia, had a gun kept with him at home and on his person at all times, whether he was on the job or not, although this was not exactly permissible by law. The Firearms Control Regulation Act of 1975 came into question until the case made its way to the Supreme Court in 2010. But, what the Court decided was that all United States citizens – with obvious limits that will be late discussed – are entitled to Second Amendment privileges, as the law applies to restrict the federal government and not law-abiding citizens.
Additionally, the Miller standard was reiterated, in which common sense gun laws, such as a gun needing to be registered and licensed, main and proper use for self-defense and hunting, and proof of use in military time. Heller wanted regulations of some sort, but he advocated that the states should have dictation over that and not the federal government. But, as long as guns were accessible to an extent, that was all he really wanted.
Heller was successful in pushing forward an ideology that many Americans have believed – that the Second Amendment is a fundamental right to the people of the Free World. His case was the one that has set the foundation for states having the power to regulate gun laws as they choose.
However, as previously discussed, Heller did not believe that every single American individual should have the right to own a firearm. He was sensible in that there should be restrictions on who can and cannot obtain one. Some standards in include having to be of a certain age (18), not being a convicted felon, not having a record of domestic violence, no illegal citizens or immigrants, and more. These listed restrictions have also been stepping stones to stricter gun legislation, which is an unintended result that Heller probably did not presume. So, we ask the Constitutional question here of what restrictions, if any, are placed on the Second Amendment (at least on a federal level), as well as how much the idea of a militia plays a role in the interpretation of the Second Amendment.
With these restrictions comes a push for policy to enact laws that can force states to not sell guns to people who are not deemed to be responsible. Progressives, mostly, have pushed for stricter laws, as has the Brady Center and Brady Campaign.
There are various viewpoints that need to be evaluated in this case, as it is such a crucial case of American history. After Heller, the main character in this case, we need to evaluate the viewpoints of those who are opposed to less strict gun laws and regulations, such as the Brady Center/Brady Campaign. They are a nonprofit, pro-bono organization who, contrary to popular belief, is not anti-gun rights. Their research is targeted as a health approach, in which they are seeing the immense amount of gun deaths taking place in this country and try to combat that. To do this, they say the most effective way is to have state legislators to make policies and the courts to make decisions that will still secure the liberties of the American people but can also aim to lessen gun violence in America.
Private sales of guns are another important issue to the Brady Center and they use their research to show that past events and gun deaths have happened where the wrong people have obtained deadly weapons, such as the AR15 and AK47: deadly weapons meant for war combat. So, they believe these weapons and any semi-automatic weapon should be banned on a national level. Further, they advocate for stricter background checks and focus on the original intent of the Founding Fathers (bradycampaign.org). The Brady Center often highlights the preparatory clause of the Second Amendment, where a militia is cited. They have said that the amendment as a whole has been vastly taken out of context and has caused physical and unlawful issues for the U.S.
This helps set up what many organizations nation-wide are currently aiming to do. Following so many recent mass shootings, The Brady Campaign and Center, as well as a plethora of other progressive legislators and groups, are working tirelessly to enact legislation that has stricter regulations on who can and cannot obtain a firearm. They want to enforce these laws and restrictions so that this Constitutional right is only able to be used by those who have proven to be ‘responsible’ enough to own one. So, with the Supreme Court opening up their interpretation comes with more public outcry and more push to not necessarily reverse the Heller decision, but to ensure that the federal government finds whatever loopholes possible in ensuring that gun laws are effective and can keep people safe.
So, in answering the question of what restrictions are placed on the Second Amendment, it is only to be said that the states have jurisdiction as to how much or little the restrictions are regulated. This adds to the grey area, but restrictions, specifically, have not been analyzed on a federal level by the Courts – yet.
On the other side of the debate is the National Rifle Association, who, especially in recent years, has been under massive scrutiny for their views on gun rights in America. The NRA cites a few main points to justify the decision in the Heller case. Here, we have to ask the Constitutional question of what and who exactly does the Second Amendment give specific liberties to?
The first main argument the NRA uses is the right to bear and keep arms. The phrase of “the people” in the Bill of Rights equates with “individual freedom,” as it has been clearly interpreted. The specific language used here has led to a narrow interpretation of this amendment.
Additionally, they argue that if the connection of rights to “the people” is upheld in the First Amendment, it is not just to not apply that say precedence to the Second Amendment as well. If the intent of the Founding Fathers, as the NRA perceives, was to give states the jurisdiction to organize militias, then the same rights should be upheld in terms of individuals bearing arms. So, rather than strict ownership regulations, they feel the same considerations should be given to individuals’ gun rights as it does to militias. This would lead the amendment in two parts. The prefatory clause is that “a well-regulated Militia, being necessary to the security of a free State” (US Const., amend. II), acts as the beginning of the two clauses within the Second Amendment that is not always relevant or requited. This, as the NRA interprets, would mean the second clause would read as, “the right of the people to keep and bear Arms, shall not be infringed” (US Const., amend. II).
What we see from the NRA is a shift overtime in terms of values. At one point in time, specifically around the 1980’s, the NRA was for gun regulations. As we have seen the gun debate become more and more polarized over time, their views have shifted towards extensively less restrictions on gun ownership. What we have to analyze, though, is that the NRA is not a government organization; they are a private entity that works for their constituents. So, as we look closely at the disparities between opinions on this issue, it is important to also consider what role these figures, specially the NRA, play in legislation. For the future, there can be a multitude of consequences if the NRA is having an active hand in enacting policy, especially on the national level. While the Constitution does not guarantee the rights of private companies to make policy, this does not mean that the path to where they have more of an influence is not paved, especially as or if the support for the NRA drastically increases.
Lastly, we need to examine the side of the United States. The United States, specifically in the case of District of Columbia v. Heller, also had similar views to the NRA in terms of interpretation. In the United States’ brief, they state that there has already been a plethora of laws put in place regarding the sales, regulations, etc. of firearms between state lines and within (Rose). So, for firearms, especially, that are perceived to be of great dangerous (ex: machine-guns and similar weapons), there is already substantial prohibitions on the private selling of these. Government interest is still at play and is considered, although there has to be a balance in terms of ensuring liberty to the people as well. In addition, they do highlight that there are already restrictions put in place that limit who can and cannot possess a firearm, as well as say that the government ultimately does have jurisdiction when it comes to regulating sales. These are just the forefront arguments that are brought forth.
Along with the arguments mentioned, the United States further agrees with the NRA and other viewpoints that the right to bear arms is an individual liberty, as well as believe that there is an individual need for personal ownership of guns. In addition, specifically regarding the use of militias, the U.S. recognizes that, at the time that the Founding Fathers created the Bill of Rights, a militia was more of a necessary right than it is of today’s time, so the interpretation of such should act accordingly. This helps clear up the question about what the Founding Fathers intended regarding the implications and applications of the right to bear arms altogether. The United States has a strong opinion that the Second Amendment has been and was always meant to uphold the individual liberties of the American people, even with the language of the amendment seeming ambiguous. Regarding the question brought up as to whether militias are still of main focus when it comes to the Second Amendment, the United States, as well as other groups mentioned, have decided that it probably is not relevant to the amendment as a whole anymore.
Also, it is important to note that, when all was said and done, the Supreme Court ultimately focused on precedence of previous similar cases in history, although there have not been many (Rose). In regard to any of the cases mentioned before – U.S. v. Cruikshank, Presser v. Illinois, U.S. v. Miller, etc. – the outcome has always led to the Second Amendment upholding the right to bear arms for the American people.
With this ruling, the Supreme Court did not necessarily challenge the interpretations of arms but rather took an activist stance regarding language that this amendment is a protected right that must be enforced within the understandings that precedence has set forth. This push away from how the Second Amendment was once understood — that this interpretation is simply a restriction on the national government to protect the people and their natural rights – sets a different precedence for the Supreme Court going forward, which can and most likely will hold important policy legislation in the coming future.
Even with a debate as polarized as the one on gun rights in America, it is fair to say that the interpretation of the Second Amendment has consistently guaranteed the right to bear arms for individuals. While restrictions need to be set in place, the amendment as a whole is more of a limit on the federal government than anything. But, since there has been more of a push recently for stricter gun regulations and laws, it seems as though politics will play a larger role in policy making than precedence might. Ultimately, the interpretations of future lawmakers and court justices are going to be the larger deciding factor in which consequences are truly going to be at play for the future of the United States.