The Distortion of the 2nd Amendment
How conservative Justices changed over 200 years of history with just two rulings.
Second Amendment champions will say that the US Constitution enshrines a fundamental right to bear arms and that this is precisely what the Founding Fathers intended.
And yet, 217 years after the passing of the Bill of Rights, this is not how the amendment was interpreted. Up until 15 years ago, it applied only to militias, and until 13 years ago, it applied only to the federal government, not state laws.
An agenda-driven conservative Supreme Court changed all that with two decisions, leading to what we see today.
So far in 2023, there have been:
Over 480 mass shootings
2 mass shootings every day
Over 28,000 Americans have died from guns
204 children have been killed, and almost 1000 teenagers
An additional 25,000 people have been injured
And the year is still far from over.
This is in stark contrast to other nations like the United Kingdom, which has had one mass shooting this year (no deaths), and Australia, which has had 1 mass shooting in the last 25 years.
How did America reach this point, and how do we change this never-ending tragedy?
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.
Militia is the aspect that is ignored today, but that wasn’t the case until just 15 years ago.
One of the best ways to highlight this fact is the Supreme Court ruling of United States v Miller in 1939. The synopsis of this case is that two people were trying to overturn their indictments for having sawed off shotguns when there was a federal law restricting those weapons. The Supreme Court upheld the indictments and ruled that:
“In 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.”
The ruling was determined by how it applied to a well-regulated militia, not the individual's freedom to own a gun.
Another aspect of the Second Amendment was that it applied only to the federal government, meaning that states were allowed to enforce stricter gun laws than the federal government.
When the 14th Amendment was passed to restore full American citizenship and rights to slaves, there was one part of the 14th Amendment which stated:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
Some suggested this meant that the Bill of Rights, including Freedom of Speech and the Second Amendment, now applied to States in addition to the Federal Government. However, the Supreme Court didn’t see it that way. They felt that each right should be reviewed independently on a case-by-case basis to determine what applied.
The 14th Amendment was adopted in 1868. Two Supreme Court cases, United States v Cruikshank in 1876 and Presser v Illinois in 1886, ruled that states were allowed to restrict weapon ownership, meaning that the Second Amendment still only applied to the federal government.
What we have at this point is the entire history of the United States determining that the Second Amendment was directly tied to militias, not individuals and that it applied only to federal law, not state law, even with the passage of the 14th Amendment.
The first potential change to this view came in 1999 with the case United States v Emerson in the US Court of Appeals for the 5th Circuit.
The short of the case is that a man was indicted for possessing a gun while having a restraining order against him, which was against the law.
His argument was that this law violated his constitutional rights due to the Second Amendment. A judge agreed, which caused the case to go to the appeals court. The appeals judge ruled that, yes, the Second Amendment granted individuals the right to bear arms, but that the right could also be subject to “limited, narrowly tailored specific exceptions that were reasonable.”
The law prohibiting possession of a firearm while under a restraining order was upheld, but a new scope had been suggested for the Second Amendment.
The Supreme Court addressed this new interpretation in 2008 in the case of District of Columbia v Heller.
Since 1976, DC had banned handguns but allowed people to have long-barrel guns, meaning shotguns and rifles. Heller and five others challenged this law. Since none of them claimed to be part of any militia, the Federal court struck down their challenge, citing the Miller ruling mentioned previously. Also cited was the fact that other federal courts had declined to follow the reasoning from the Emerson case.
So, the plaintiffs brought their case to the DC Court of Appeals, which agreed with them and struck down the handgun ban. This, in turn, caused DC to appeal the case to the Supreme Court.
This was a major moment in gun rights which had people from both sides submitting amicus briefs to the Supreme Court arguing for or against gun ownership.
The interpretation of the Second Amendment was fundamentally changed in a 5/4 split, with the conservative Justices, led by Antonin Scalia, siding with the plaintiffs.
Scalia chose a different interpretation from the vast majority of courts in regards to the Miller case and viewed it as meaning that the 2nd amendment did grant an individual the right to bear arms but that it didn’t protect weapons not typically possessed by law-abiding citizens for lawful purposes, hence why the sawed-off shotgun wasn’t a protected right but a handgun was.
Scalia wrote that:
“like most rights, the right secured by the second amendment is not unlimited.” and that “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms”
He also covered prohibitions on carrying “dangerous and unusual weapons” and the allowance of “laws regulating the storage of firearms to prevent accidents.”
However, since D.C. is a federal district, this case still only applied to federal law. At the time of that ruling, the Second Amendment didn’t apply to state laws.
That brings us to the 2010 case of McDonald v City of Chicago. In this case, people were fighting laws in Illinois that banned handguns, similar to the DC case. At the district and appeals court levels, the courts upheld the handgun ban, citing the Cruikshank and Presser rulings.
The case was then brought to the Supreme Court. Once again, the same conservative Justices from the Heller case sided with the plaintiffs in a 5/4 ruling. Justice Samuel Alito wrote up the decision this time.
His decision was based on the fact that Cruikshank and Presser were decided before the modern selective incorporation approach to cases with the 14th Amendment.
The determination to be made here was whether the Second Amendment is deeply rooted in this nation’s history and tradition. In the end, they decided it was, and now the Second Amendment applies to states as well as the federal government.
These decisions highlight why Supreme Court Justice appointments are so hard fought in Washington. Splits along ideological lines show that cases aren’t as straightforward as interpreting the laws. Bias plays a significant role in decision-making, and those decisions can massively impact American life for everyone.
Despite these rulings significantly limiting firearm restrictions, there is still a lot that can be done to save innocent lives while respecting the current legal interpretation of the 2nd Amendment.
Solutions to reduce gun violence:
Require all states to use NICS in the same way and require NICS to be used for individual firearm sales/transfers and sales at gun shows.
Anyone who gives or sells a gun to another individual without going through background checks is equally culpable for any crimes committed with the firearm and will be sentenced as such.
Permit required to own a firearm.
Firearms safety course required to get a gun which is conducted by local law enforcement.
Firearms are required to be stored safely.
Limit magazine size.
Ban elements of weapons that make them killing machines: bump stocks, pistol grips, certain firearm classifications
All of this is constitutionally legal, and most of these elements have already been enacted by states such as Massachusetts, which has the lowest gun death rate in the nation.
The 2nd Amendment has been twisted into a different meaning than was originally intended. But it is time to work beyond the rhetoric and enact practical solutions to save lives. It is time to realize that life is more important than guns.