In 2008, the Supreme Court ruled in “D.C. vs. Heller” that the 2nd amendment “protects an individual right to possess firearms”. It was the first time the court had found an individual right to guns. Scalia wrote the opinion, and the usual cast of characters on the right were involved in the case, including a Cato fellow.
Justice John Paul Stevens is now retired from the Supreme Court, but he was on the court in 2008 and wrote the dissent. It is worth going back back and reading the dissent, since it which is an authoritative and accessible commentary on the 2nd amendment. As a reminder, the entire text of the 2nd amendment is:
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.
Scalia’s opinion has been held out as an example of “originalism”, a judicial theory that views the original meaning should guide interpretation. Yet, as Stevens’ dissent explains, the court’s majority opinion is in fact far removed from the original meaning of the 2nd amendment.
In his dissent, Stevens writes:
The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. 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. — www.law.cornell.edu/...
After a decades-long campaign by the pro-massacre NRA and associated right-wing lobbying organizations, the Supreme Court did find for such an individual right. That is an illustration of how a concerted political campaign can sway the Supreme Court, an institution that is inclined to reflect public opinion, rather than shape it. Similarly, the Warren court’s major decisions on Civil Rights were a response to an earlier, progressive moment.
The lesson we should take away from this is that the fight is winnable. If we can capture the energy palpable on the left and create a political moment, the supreme court will respond. On gun control and other issues.
Stevens’ dissent focuses on interpreting three phrases in the amendment:
- the preamble, qualifier about “a well regulated militia”
- “the right of the people”
- “keep and bear arms”
He also discusses the legislative context in which the 2nd amendment was written. In particular, several alternate versions that explicitly protected an individual right to “self-defense”. None of these were adopted, despite the example of states where an explicit individual right to own and use firearms was on the books. Stevens is quite persuasive when he says the 2nd amendment was always meant to be read in a military context and formed part of the framer’s discussion around the risks of a standing army. The amendment was meant to ensure the federal government could not disarm militias or prevent certain people from serving in them.
The parallels between the Second Amendment and these state declarations, and the Second Amendment ’s omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time. Article XIII of Pennsylvania’s 1776 Declaration of Rights announced that “the people have a right to bear arms for the defence of themselves and the state,” 1 Schwartz 266 (emphasis added); §43 of the Declaration assured that “the inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed,” id., at 274. And Article XV of the 1777 Vermont Declaration of Rights guaranteed “[t]hat the people have a right to bear arms for the defence of themselves and the State.” Id., at 324 (emphasis added). The contrast between those two declarations and the Second Amendment reinforces the clear statement of purpose announced in the Amendment’s preamble. It confirms that the Framers’ single-minded focus in crafting the constitutional guarantee “to keep and bear arms” was on military uses of firearms, which they viewed in the context of service in state militias. — www.law.cornell.edu/...
Given the history of armed militias in slave-holding states, this military context was not without its own pitfalls. Today’s national guard is far removed from the slave patrols of the 19th century.
Scalia’s opinion claimed that the phrase “right of the people” naturally meant an individual right, since that is how it was used in the 1st and 4th amendment. Here’s Stevens:
The centerpiece of the Court’s textual argument is its insistence that the words “the people” as used in the Second Amendment must have the same meaning, and protect the same class of individuals, as when they are used in the First and Fourth Amendments. According to the Court, in all three provisions—as well as the Constitution’s preamble, section 2 of Article I, and the Tenth Amendment —“the term unambiguously refers to all members of the political community, not an unspecified subset.” Ante, at 6. But the Court itself reads the Second Amendment to protect a “subset” significantly narrower than the class of persons protected by the First and Fourth Amendments; when it finally drills down on the substantive meaning of the Second Amendment, the Court limits the protected class to “law-abiding, responsible citizens,” ante, at 63. But the class of persons protected by the First and Fourth Amendments is not so limited; for even felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions. The Court offers no way to harmonize its conflicting pronouncements.
The Court also overlooks the significance of the way the Framers used the phrase “the people” in these constitutional provisions. In the First Amendment , no words define the class of individuals entitled to speak, to publish, or to worship; in that Amendment it is only the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of “the people.” These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert. — www.law.cornell.edu/...
Scalia also launched into a lengthy exposition on how the specific term “bear arms” was meant to apply to dudes who kept handguns by their bedside tables because they felt like it. Here’s Stevens outlining why Scalia’s reading is wrong:
The term “bear arms” is a familiar idiom; when used unadorned by any additional words, its meaning is “to serve as a soldier, do military service, fight.” 1 Oxford English Dictionary 634 (2d ed. 1989). It is derived from the Latin arma ferre, which, translated literally, means “to bear [ferre] war equipment [arma].” Brief for Professors of Linguistics and English as Amici Curiae 19. One 18th-century dictionary defined “arms” as “weapons of offence, or armour of defence,” 1 S. Johnson, A Dictionary of theEnglish Language(1755), and another contemporaneous source explained that “[b]y arms, we understand those instruments of offence generally made use of in war; such as firearms, swords, & c. By weapons, we more particularly mean instruments of other kinds (exclusive of fire-arms), made use of as offensive, on special occasions.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language37 (1794).8 Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves,” as was done in the Pennsylvania and Vermont Declarations of Rights. The unmodified use of “bear arms,” by contrast, refers most naturally to a military purpose, as evidenced by its use in literally dozens of contemporary texts.9The absence of any reference to civilian uses of weapons tailors the text of the Amendment to the purpose identified in its preamble.10 But when discussing these words, the Court simply ignores the preamble. [...]
Madison’s decision to model the Second Amendment on the distinctly military Virginia proposal is therefore revealing, since it is clear that he considered and rejected formulations that would have unambiguously protected civilian uses of firearms. When Madison prepared his first draft, and when that draft was debated and modified, it is reasonable to assume that all participants in the drafting process were fully aware of the other formulations that would have protected civilian use and possession of weapons and that their choice to craft the Amendment as they did represented a rejection of those alternative formulations.
Madison’s initial inclusion of an exemption for conscientious objectors sheds revelatory light on the purpose of the Amendment. It confirms an intent to describe a duty as well as a right, and it unequivocally identifies the military character of both. The objections voiced to the conscientious-objector clause only confirm the central meaning of the text. — www.law.cornell.edu/...
If you haven’t recently, it’s worth reading both opinions since the case was so consequential.
Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations. Today judicial craftsmen have confidently asserted that a policy choice that denies a “law-abiding, responsible citize[n]” the right to keep and use weapons in the home for self-defense is “off the table.” Ante, at 64. Given the presumption that most citizens are law abiding, and the reality that the need to defend oneself may suddenly arise in a host of locations outside the home, I fear that the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table.39
— www.law.cornell.edu/...
— @subirgrewal