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Dead Wrong on Gun Rights

Justice Antonin Scalia, an originalist, wrote the Heller decision overturning two centuries of consensus on the Second Amendment.
Justice Antonin Scalia, an originalist, wrote the Heller decision overturning two centuries of consensus on the Second Amendment.
Photo by Alex Wong/Getty Images

"I am sorry you lost your child. I myself have a son and daughter and the one thing I never want to go through, is what you are going through now. But: As harsh as this sounds — your dead kids don’t trump my Constitutional rights.”— Samuel Wurzelbacher, better known as Joe the Plumber, to the families of the victims in the shooting rampage near the University of California, Santa Barbara.

Crass, cold, and unfeeling, certainly. Also, wrong as a matter of constitutional law and individual rights.

Yes, I know the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment guarantees an individual’s right to own a gun. But that decision came only in 2008, and what one court decrees a subsequent one can change. Previous Supreme Court decisions have been overturned, most notably Plessy v. Ferguson, which held separate but equal constitutional, only to be overruled a half century later in Brown v. Board of Education.

History matters, and it matters greatly in any discussion of the Second Amendment, which is a compact twenty-seven words: “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.”

The amendment, part of the Bill of Rights which James Madison drafted to counter anti-Federalist opposition to the proposed new Constitution for the United States, was meant to allay fears the new government might establish a “standing army” of professional soldiers, replacing the thirteen state militias. English tradition long feared standing armies, and the American colonists, inheritors of that tradition, were outraged by Parliament’s passage of the Quartering Act requiring them to house and provision British troops. Colonial hostility to the stationing of regular army soldiers erupted in the Boston Massacre in 1770.

Madison gave voice to this legacy at the Constitutional Convention in 1787. "The means of defence against foreign danger,” he said, “have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.”

All the arguments for the Second Amendment stressed the obligation of citizens to serve in militias for defense of the state. In the debate in the First Congress over the Second Amendment no member mentioned a private right to have a gun for self-defense, hunting, or any other reason other than participating in a militia. Indeed, the original version passed by the House included a conscientious objector provision, which read “no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.” The Second Amendment was viewed by the Founding Fathers as protecting a collective right for the common defense.

Which was how it was viewed for the next two centuries, even though militias disappeared, only to be replaced by a professional army. Through much of the nation’s history, the courts mostly avoided ruling on the Second Amendment. A notable exception came in 1939 when the Supreme Court upheld the first national gun law limiting an individual right to own a machine gun because such weapons were not needed for a “well regulated Militia.”

In 1977, a coup at the National Rifle Association empowered gun rights’ fanatics who have succeeded in convincing many Americans, including a majority of the Supreme Court, that the final clause of the Second Amendment, “shall not be infringed,” refers to an individual right “to keep and bear Arms” instead of a collective right for common defense.

“A fraud on the American public” was Chief Justice Warren Burger’s description of the NRA’s interpretation of the Second Amendment. A conservative appointed to the court by Richard Nixon, Burger expressed the long-held consensus of historians and judges that the amendment did not give an individual an unlimited right to own a gun.

That was the consensus among jurists until 2008, when Justice Antonin Scalia wrote the Heller decision, ruling that “the Second Amendment conferred an individual right to keep and bear arms.” Justice Scalia is the court’s leading “originalist,” which he suggests means the Constitution has a static meaning that can be discerned though examining what the Founders intended when drafting the Constitution. “It is essential to originalism,” Scalia says, “to know the original meaning of constitutional provisions.”

Perhaps the good justice failed to do his homework, for any originalist interpretation of the Second Amendment ties “the right of the people to keep and bear Arms” to a “well regulated Militia.”

Clearly, that’s what the framers originally meant.

Posted May 30, 2014