The Second Amendment: A Historical Perspective on the Right to Bear Arms

The occurrence of violence and the media coverage of tragic deaths as the result of gun violence has once again brought the issue of gun control to the front of the political debate. Americans on both sides of the gun control fence are passionate about their stance and although there is always a middle ground, the arguments which are made for either side leave little room for anything black and white. This is especially true of those who point to the second amendment of the United States Constitution as their license to carry weapons of their choice. Commonly quoted, often incorrectly, this debate over the meaning, intention, and application of the second amendment in the twenty-first century is sure to continue as events such as the recent mass shooting in Orlando, continue to occur.

 In comparison to Western European countries, thought to be the most similar socially and economically, the United States has the highest incidence of death from gun violence, with the rate per year in the United States being five times higher than the Portugal, which is in the highest spot on the European list (Kelto). Similarly, the United States violent gun death rate would be ranked second in Central and Eastern Europe, second in North Africa and the Middle East, and eighth in Africa (Kelto). It is due to this disparity that the debate on gun control continues. However, taking lessons in gun legislation from other countries who have been more successful at mitigating crime isn’t possible until the United States determines what exactly the Second Amendment means in the twenty-first century.

Origins of the Second Amendment

Ratified on December 15, 1791, the first ten amendments the United States Constitution are referred to as the “Bill of Rights.”  Despite being writer over two hundred years ago, many still apply directly in today’s environment. However, the debate over the application of the second amendment to the U.S. Constitution rages on centuries later, having been the subject of intense scrutiny, the focus of multiple Supreme Court cases, and inspiring consistent political debate. Stating that “a well-regulated Militia, being necessary to the security of the free State, the right of the people to keep and bear arms shall not be infringed,” the U.S. Constitution clearly mentions the bearing of arms by the people. 

The context of the statement and things as small as its punctuation have been interpreted differently by citizens through the years. Although public forums are host of heated discussions, the Supreme Court is where the real debate has played out in several high profile cases that have done little to settle the debate. In reviewing the history of these cases, a trend of lenience emerges as the years move on despite the increasing gap between the technology in weaponry and social contexts between the eighteenth century and today. The legal battle continues and despite all of the negative press that has been generated by the very visible incidents of mass violence, no agreement can be reached in regard to changing gun control laws.

U.S. v. Cruishank

Heard in 1876, U.S. v. Cruishank was the first time that the Supreme Court heard a case regarding the Second Amendment ("Second Amendment"). The case was regarding the efforts of Ku Klux Klan (KKK) members to prevent African-American individuals from possessing firearms through an effort to remove civil rights from minorities. The Supreme Court agreed to hear the case, however, the ruling was unique in that it was determined that the issue of firearms and the right to carry was not a constitutional issue at all.  The ruling indicated that the right to own firearms was actually a right which existed prior to the Constitution.  Based on the clause that stated that the right “is not a right granted by the Constitution…either is it in any manner dependent upon that instrument for its existence” (U.S. v. Cruishank). Based on this fact the issue of gun ownership was considered by the Supreme Court as an issue that was decided prior to the Constitution being implemented. This meant that the actions of the KKK members were not a constitutional violation. The resulting ruling indicated that the second amendment simply prevents Congress from infringing upon that right and therefore did not allow for the punishment of private citizens for infringing upon it. As an alternative, the Supreme Court suggested that the only option was for private citizens to look to each other to prevent violations of this intrinsic right for other private citizens.

U.S. v. Miller

In 1939 the Supreme Court had the opportunity to hear a case pertaining specifically on a state’s right to pass gun control regulations and laws.  The arguments included the 2nd, 4th, and 14th Amendments to argue that a state had no right to add gun regulations that would in any way prevent a private citizen from obtaining a particular type of weapon. The weapon of choice is known as a sawed-off shotgun. The ruling concluded that there was no empirically relevant use for a shotgun with a barrel of less than 18 inches, therefore excluding it from the protections Miller claimed under the 2nd and 14th Amendments.  The reasoning came from the Supreme Court’s interpretation of the 2nd Amendment’s requirement for Congress not to interfere with the access or ownership of firearms as part of an “organized militia” ("Annotated Constitution Prototype"). In this consideration, it was determined that weapons that would not typically be considered unacceptable or of little use in the military environment were not protect by the 2md and 14th Amendments. 

It was later decided that not only must the weapon be one that is applicable to the definitions extended as a useful or standard weapon which could be a useful addition to a militia, but that the individual right to own a firearm is not protected unless the individual demonstrated an affiliation with an organized militia.  The Supreme Court specifically noted that the 2nd Amendment’s purpose at the time of its conception was to allow private citizens to maintain weapons as a part of a larger group or movement that would protect them against their own military. This is one of the major questions surrounding the constitutional right to bear arms. How should militia be defined? Although the Supreme Court did not officially make the distinction that it is not in reference to a single individual. However, this point was not argued in relation to the case specifically and therefore was not further evaluated. This ruling paved the way for statewide regulations on firearms access and use which numerous state level governments began implementing. This was consistent until the end of the century and into the next. 

District of Columbia v. Heller

In 2008 the Supreme Court decided to readdress the issues decided in U.S. v. Miller. Driven by increasingly strict state gun control regulations, Heller brought the case in response to Washington, D.C.’s ban on handguns despite the fact that the law had stood for over thirty-two years within the city. The Supreme Court not only ruled on the issue, but within their response was a detailed history of the 2nd Amendment and its translations over the course of the past centuries. They focused on the tradition of the 2nd Amendment as it was most likely intended to be relevant at the time of the Constitutional Congress and Convention. In doing this, the Supreme Court ruled that the 2nd Amendment did in fact apply to the right of private citizens to own firearms individually.  This rendered the handgun ban unconstitutional. In response to how the case differed from U.S. v. Miller, the explanation focused on the fact that a sawed off shotgun had no legal purpose and that no law-abiding citizen could possibly need such a weapon for legal purposes. They also noted that it would not be unconstitutional to prevent criminals and the mentally ill from possessing weapons. This ruling changed the face of the 2nd Amendment completely and for the first time decided that the right to bear arms was granted specifically by the Constitution, a contrast to the rulings over the previous hundred years.  

McDonald v. City of Chicago

Attempting to challenge the City of Chicago’s handgun ban, which eliminated the ability for a vast majority of private residents from carrying a handgun of any kind. Once again pointing to the 2nd Amendment, the Supreme Court applied the same logic that they had in U.S. v. Miller, however in this case they attempted to find the support for their decision within the 14th Amendment, however a split decision on where exactly this clarification was located was issued as Judge Alito cited the Due Process Clause, with Justice Thomas adding the Privileges and Immunities Clause as secondary possibility. This case shed some further light on the opinion of the court in regard to the interpretation of the 2nd Amendment, but also muddied the waters in regard to its relation to the 14th Amendment. 

Gun Control Debate 

It has been over five years since the last decision was made by the Supreme Court in regard to the interpretation of the 2nd and 14th Amendments and the ability of private citizens to argue the right to bear arms. The discussion over the definition and wording of the 2nd Amendment has continued through both academic and political debate. This debate has only increased as the continued occurrence of mass shootings continues to dominate the nightly news. There have been several high profile school shootings which has amassed deaths in the dozens.  There have been terrorist acts which have rocked cities, not just in the United States, but worldwide. The accusatory finger is pointed by gun-control supporters, while the defensive pro-firearms group points to alternative measures for decreasing these incidents. 

The firearms and ammunition industry directly employs 132.584 people nationwide, indirectly demands 65,180 employees, while creating and additional 90,222 through various channels (("Firearms And Ammunition Industry Economic Impact Report 2014 | NSSF").  The industry generates nearly $50 billion a year in economic impact through revenue, taxes, and wages. Although modifying gun control does not necessarily mean a total loss of this revenue it does jeopardize jobs which is something obviously negative for those in the industry. Additionally, based on the current state of unemployment, new jobs would be scarce and losing viable jobs would not help.

The reality of the situation is that this debate is no longer driven in whole by a political and educational need to understand the 2nd Amendment, but instead by lobbyists and organizations, such as the National Rifle Association, who have a long history of combatting any kind of gun regulation. The reach does not just go through special interest groups, but also extends to the economic factors entangled with the firearms and ammunition industry.  The impact of gun control on the financial well-being of numerous individuals is something to also be considered.  In the end, as Time columnist Andrea Sachs noted, “The Second Amendment is like a Rorschach test. Observers tend to examine it and discover whatever they already believe about gun control” (Weeks). Based on the continuous change of the Supreme Court’s decisions and the wavering of the political landscape on the issue it would seem that Sachs is right about the 2nd Amendment being impossible to tie down.

Works Cited

"Annotated Constitution Prototype". Cornell Law. N.p., 2016. Web. 15 July 2016. https://www.law.cornell.edu/anncon/html/amdt2_user.html

"Firearms And Ammunition Industry Economic Impact Report 2014 | NSSF". National Shooting Sports Foundation. N.p., 2016. Web. 15 July 2016. http://www.nssf.org/impact/

Kelto, Anders. "The U.S. Is A World Leader In Gun Deaths". National Public Radio. N.p., 2015. Web. 1 July 2016. http://www.npr.org/sections/goatsandsoda/2015/12/07/458815891/the-u-s-is-a-world-leader-in-gun-deaths

Parkin, Simon et al. "So You Think You Know The Second Amendment? - The New Yorker". The New Yorker. N.p., 2012. Web. 15 July 2016. http://www.newyorker.com/news/daily-comment/so-you-think-you-know-the-second-amendment

"Second Amendment". LII / Legal Information Institute. N.p., 2016. Web. 15 July 2016. https://www.law.cornell.edu/wex/second_amendment

"Second Amendment | Law Library Of Congress". Library of Congress. N.p., 2016. Web. 15 July 2016. https://www.loc.gov/law/help/second-amendment.php

U.S. V. Cruishank. Vol 92. 1875. Print.

Weeks, Linton. "The Second Amendment: 27 Words, Endless Interpretations". National Public Radio. N.p., 2013. Web. 15 July 2016. http://www.npr.org/2013/01/07/168834462/the-2nd-amendment-27-words-endless-interpretations