Republicans stole the Second Amendment. Over the course of 30 years, the right waged a war on political, legal, and academic fronts to redefine that amendment, contrary to history, text, and precedent, as creating an individual right to bear arms. Of course, none of those efforts, nor their aggregate effect, would have been enough to accomplish the right’s aims without a far-right ideologue on the Supreme Court, the late Justice Antonin Scalia, to codify them.
The right’s misappropriation of the Second Amendment ranks among the most stunning legal feats in U.S. history.
In the two centuries following the adoption of the Bill of Rights, in 1791, no amendment received less attention in the courts than the Second, except the Third. As Adam Winkler, a constitutional-law scholar at U.C.L.A., demonstrates in a remarkably nuanced new book, “Gunfight: The Battle Over the Right to Bear Arms in America,” firearms have been regulated in the United States from the start. Laws banning the carrying of concealed weapons were passed in Kentucky and Louisiana in 1813, and other states soon followed: Indiana (1820), Tennessee and Virginia (1838), Alabama (1839), and Ohio (1859). Similar laws were passed in Texas, Florida, and Oklahoma. As the governor of Texas explained in 1893, the “mission of the concealed deadly weapon is murder. To check it is the duty of every self-respecting, law-abiding man.”
Although these laws were occasionally challenged, they were rarely struck down in state courts; the state’s interest in regulating the manufacture, ownership, and storage of firearms was plain enough.
Judges took regulation as not only common sense, but wholly compatible with the Second Amendment. As Jeffrey Toobin recounted for The New Yorker six years ago:
For more than a hundred years, the answer was clear, even if the words of the amendment itself were not. The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: “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 courts had found that the first part, the “militia clause,” trumped the second part, the “bear arms” clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon.
So, what spurred the departure from the well-established, longstanding understanding of the Second Amendment and the adoption of the contemporary, hopefully temporary, interpretation? Politics.
Before the nineteen-seventies, the N.R.A. had been devoted mostly to non-political issues, like gun safety. But a coup d’état at the group’s annual convention in 1977 brought a group of committed political conservatives to power—as part of the leading edge of the new, more rightward-leaning Republican Party. … The new group pushed for a novel interpretation of the Second Amendment, one that gave individuals, not just militias, the right to bear arms. It was an uphill struggle. At first, their views were widely scorned. Chief Justice Warren E. Burger, who was no liberal, mocked the individual-rights theory of the amendment as “a fraud.”
It’s worth noting that tensions remain within the NRA; its official positions are more extreme than those of its constituents. As Jill Lepore reported:
Gun owners may be more supportive of gun-safety regulations than is the leadership of the N.R.A. According to a 2009 Luntz poll, for instance, requiring mandatory background checks on all purchasers at gun shows is favored not only by eighty-five per cent of gun owners who are not members of the N.R.A. but also by sixty-nine per cent of gun owners who are.
Republicans’ long-sought victory came in 2008, in the form of District of Columbia v. Heller, a convoluted opinion penned by the late Justice Antonin Scalia that was as thoroughly, indelibly politically motivated and saturated as any the Supreme Court has issued.
Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.
If it seems bizarre that the statement concluding that a ban on gun ownership is unconstitutional hinges on the weapon’s popularity, that’s because it is.
Former Justice John Paul Stevens, who also authored a dissent, spells out how egregious a deviation Heller is.
The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939), provide a clear answer to that question.
More to the point, Stevens notes, there is no evidence of an intention to limit regulation.
Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.
Although the right had approached its latest effort to argue for an individual right to bear arms with renewed enthusiasm, its reasoning and support hadn’t changed at all.
No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons. Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses.
In understated but damning language, Stevens called out the majority’s relatively violent departure from stare decisis, the principle that a court should almost always adhere to precedent. (It’s Latin for “to stand by things decided.”)
Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself, would prevent most jurists from endorsing such a dramatic upheaval in the law.
Justice Stephen Breyer’s separate, slightly more pointed dissent goes even further than Stevens’. It appears to have made a terrific impression on Scalia, who refers to Breyer’s dissent 15 times in the majority opinion.
The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by JUSTICE STEVENS—namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern. The second independent reason is that the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are— whether they do or do not include an independent interest gun in self-defense—the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.
Two years after Heller, conservatives went back to the Supreme Court to secure the enforcement of an individual right to gun ownership against the states. In other words, they wanted to minimize the potential for both federal and state gun control regulation. In 2016, the right convinced the Court to formally declare that this new, distorted version of the Second Amendment applies equally to all “bearable” arms.
There is perhaps no more dramatic proof of how critical judicial nominations are than the arc of the Second Amendment. The stakes are illustrated all too often, in Sandy Hook and Orlando and Parkland; in the 96 people who die each day as a result of gun violence.