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Modern Interpretations of the Second Amendment



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Modern Interpretations of the Second Amendment

For the Constitution's first century, there was no question that the Second Amendment prohibited federal interference with the individual right to bear arms. During this period the Supreme Court did not view any articles of the Bill of Rights, the Second Amendment included, as applicable to the states. Accordingly, the Second Amendment, like the First Amendment and all the others, was construed by the Supreme Court to place no limits on state interference with individual rights. (Some state courts, however, treated the Second Amendment as binding on the states.)[111]


In 1906 the Kansas Supreme Court announced in dicta that the Second Amendment did not guarantee an individual right to bear arms but only guarded official state militias against federal interference. Over the following decades, the collectivist state militia theory was accepted by many in the intellectual community but never by the American population as a whole. Today, 89 percent of Americans believe that as citizens they have a right to own a gun, and 87 percent believe the Constitution guarantees them a right to keep and bear arms.[112] Recently, the collectivist theory has begun to lose its standing even in the intellectual community. In the past two decades, scholarship of the individual rights view has dominated the law reviews, especially the major ones. Indeed, only one article published in a top-50 law review argues that individual citizens are not protected by the Second Amendment.[113] The Senate Subcommittee on the Constitution investigated the historical evidence and concluded that the individual rights interpretation was unques- tionably the intent of the authors of the Second Amendment, and was intended by the authors of the Fourteenth Amendment to be applied against the states.[114] Stephen Halbrook's That Every Man Be Armed, the first book to deal in depth with the historical background of the Second Amendment, also endorses the individual rights interpretation.
Sometimes writers in popular magazines claim that the Supreme Court has endorsed the collective theory. They are wrong. Twice in the l9th century, the Court heard cases involving state or private interference with gun use. Both times the Court took the now-discredited view that the Bill of Rights did not restrict state governments and therefore the Second Amendment offered no protection from state firearms laws.[115]
The collective theory was not even invented until the early 20th century; neither of the Court's l9th-century cases endorsed it.
The next (and last) time the Court ruled on the Second Amendment was 1939. In United States v. Miller the Court held that since there was no evidence before that Court that sawed-off shotguns are militia-type, militarily useful weapons, the Court could not conclude that sawed-off shotguns were protected by the Second Amendment. As for the meaning of "a well-regulated Militia," the Court noted that to the authors of the Second Amendment, "The Militia comprised all males physically capable of acting in concert for the common defense. . . . Ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."[116]
Since the 1930s the Court has not had much to say about the Second Amendment. It denied a petition to review the Morton Grove case, in which a suburb's handgun ban was upheld. (The lower court had gotten its result by stating that the intent of the Framers of the Second Amendment was "irrelevant" to the amendment's meaning.)[117] As the Supreme Court has stated, though, a denial of review has no precedential effect.[118] Had the Court wanted the Morton Grove case to apply nationally, the Court could have issued a summary affirmance. More indicative of the modern Court's view of the Second Amendment is Justice Powell's opinion for the Court in Moore v. East Cleveland, where he listed "the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures" as part of the "full scope of liberty" guaranteed by the Constitution.[119]



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