The right to keep and bear arms is granted to U.S. citizens by the Bill of Rights in the Constitution.
The Second Amendment reads, “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.”
This seemingly straightforward statement in a modern context produces many questions.
What constitutes legal arms? Can the federal government limit what type of weapons I can own?
What does the constitution mean by “keep and bear” and by “shall not be infringed”?
Are there limits to how many firearms I can own? Can I carry my firearms on my person everywhere I go? What constitutes infringement?
Does our present context, in which the need for “a well-regulated Militia” no longer exists, have any bearing on the interpretation of this amendment?
As the Supreme Court of the United States is set to release its first significant opinion on the Second amendment in over a decade (New York State Rifle & Pistol Association v. Bruen), these questions are worth asking. What follows is a brief history of relevant SCOTUS rulings.
The first major Second Amendment challenge occurred after the Colfax Massacre.
The1872 Louisiana gubernatorial election – in which William Pitt Kellogg (Republican) faced off against John McEnery (Democrat) – was fraught with controversy.
Kellogg was considered a “carpetbagger” by the Democrats, as the state was in the throes of reconstruction. Both Kellogg and McEnery claimed victory and accused the other of attempting to steal the election.
Local tensions burned hot and erupted into violence on Easter Sunday, April 13, 1873. A heavily armed white mob captured and slaughtered between 62 and 153 armed African American men who supported Kellogg and had occupied the Grant Parish courthouse. It was the bloodiest event during the Reconstruction era.
Following the atrocities, federal prosecutors charged some of the insurgents with violating the Enforcement Act of 1870, which was designed to protect African American’s right to vote, hold office and serve on juries as required by the 14th Amendment.
The insurgents were convicted of violating the victims’ First and Second amendment rights, but SCOTUS overturned the convictions in United States v Cruikshank in 1875.
Chief Justice Morrison Waite argued that a person’s Second Amendment rights could only be infringed by the federal government and not by state governments.
He wrote: “The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens.”
This decision left African Americans at the mercy of racist groups like the Klu Klux Klan, as municipalities made it impossible for minorities to own firearms.
In 1934, Congress passed the National Firearms Act in response to the 1929 St. Valentine’s Day Massacre in Chicago where seven men were brutally gunned down. The NFA required the registration of fully automatic firearms, short-barreled rifles and shotguns.
In 1938, Jack Miller and Frank Layton were charged in Arkansas with transporting an unregistered short barrel shotgun across state lines. Miller challenged this conviction in a case that ultimately made it to the Supreme Court.
On May 15, 1939, SCOTUS ruled (in United States v Miller) in favor of the NFA, upholding the convictions and arguing that the short-barrel shotgun was not a common weapon used by the military and, therefore, would not be used if a militia was lawfully organized for the common defense.
As the Second Amendment was designed for that purpose, the states retained their right to regulate such firearms, SCOTUS ruled. This established a precedent that the right to bear arms is not limitless and that the use of certain weapons is not protected under the Second Amendment.
Our current constitutional debate about the ownership of firearms really goes back 20 years.
In 2002, Robert V. Levy of the Cato Institute began developing a Second Amendment challenge. In 2003, he financed six plaintiffs who challenged the District of Columbia’s Firearms Control Regulations Act of 1975, which prohibited the ownership of a handguns.
While the original judge dismissed the case, it was overturned on appeal and the case ultimately made its way to SCOTUS.
The justices had a mixed ruling in District of Columbia v Heller (2008). They argued that an individual has a right to own a firearm unconnected with service in a militia for lawful purposes, like self-defense within the home.
This was the first time that SCOTUS ruled on the militia connection within the Second Amendment’s right to bear arms provision, with the 5-4 decision affirming that the amendment was applicable to individuals and not only to a state’s militia.
On the other hand, the court did acknowledge that, like most rights, the Second Amendment has limitations and does not grant an individual the right to keep and carry any weapon.
In addition, the state reserves the right to regulate the sale, transfer and regulations for carrying a firearm, SCOTUS said. Courts have long upheld firearm restriction for those convicted of certain crimes and affirmed limits on where these firearms can be carried.
Finally, the handgun ban was deemed unconstitutional because handguns were the most popular option for home protection, and this would infringe upon the Second Amendment.
In McDonald v City of Chicago (2010), SCOTUS ruled that the Second Amendment is incorporated in the 14th Amendment’s “Due Process Clause,” thus applying to both state and federal regulations and restrictions.
This still leaves many questions, one of the most pertinent is: If the states have a right to set regulations for firearm sale, transfer, conceal and carry rules, and location restrictions, then what are the limits to such restrictions?
In a society plagued with gun violence, restrictions are both necessary and inevitable. Yet, it can be difficult to find an appropriate balance.
An overly strict interpretation of the Second Amendment leads to abuse of minorities and vulnerable groups, like the results of the Cruikshank ruling.
An overly permissive interpretation returns us to the “Wild West,” which we are watching nightly on the evening news.