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Copyright 2020 Dan Cofran

The Second Amendment may top the list for controversy about the Constitution in recent years. Is its protection limited to hunting rifles, shotguns and single action revolvers?  Or does the Second Amendment protect semi-automatic and military-style assault rifles and handguns? How about large capacity ammunition magazines and “bump” stocks? What about tumble-on-impact ammo, silencers and concealed carry?

Nutshell

The Supreme Court changed a two-hundred-year-old understanding about the Second Amendment and guns just over ten years ago in District of Columbia v. Heller (2008). The Court held that District of Columbia ordinances banning hand guns violated the Second Amendment’s right to keep and bear arms for self -defense in the home.

The Court’s 5-4 decision changed an understanding held since the 1790s. The long standing view limited Second Amendment protection to a collective right of the states, for example, to maintain state militias. But the Court in Heller for the first time extended the Amendment’s protection to a limited individual right to possess firearms unrelated to militia use. In this case, the Court extended Second Amendment protection to self defense in the home by law-abiding citizens if using weapons in common use at the time, in this case handguns.

The Court cautioned that Second Amendment rights are not unlimited.  The Court indicated it had no problem barring certain weapons like“dangerous and unusual weapons” as well as ammunition like hollow-point bullets.  It also had no problem with limiting guns in public places like school grounds.  The Court was fine with barring possession by non-law abiding people like ex-felons and domestic abusers. 

But the Court’s approval did not go beyond self-defense in the home with handguns. It left other types of gun regulation up to federal trial and appellate courts to work out, including what standards to use for deciding the constitutionality of other gun restrictions.  The trial and appellate courts have been busy since then.

The Constitution

The starting place for analysis is the Constitution.  The Second Amendment states:

“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.”

Ever since the Second Amendment was ratified over 200 years ago in 1791, federal courts viewed it as limited to a collective right of the states to maintain militias to counter possible federal military action against the states.  It was not viewed as protecting any individual right to keep and bear firearms.

When the nation was formed under the Constitution, states were extremely suspicious of federal interference with local affairs.  In particular, many states feared a standing federal army.  Accordingly, the Second Amendment was passed to assure the states they could keep their militias. It was viewed solely as a “hands off” limit on what the federal government could do.  It did not limit what the states could do to allow or limit individuals’ rights to own and possess fire arms.

The Statutes

The Constitution for the most part establishes basic principles, not specifics.  It’s like a skeletal framework of basic rules, then fleshed out by statutes passed by the Congress.  Because the Second Amendment was viewed as protecting the states’ rights to regulate firearms, there were no federal firearms statutes for almost 150 years.   Individual ownership and possession was left to the states to regulate.

Depression Gun Violence Prompts Federal Action

That changed as gun violence increased during the Depression in the 1930s.  Congress passed the National Firearms Act in 1934 following the 1929 St. Valentine’s Day massacre near Lincoln Park in Chicago.  In addition, an attempted assassination of Franklin D. Roosevelt in Miami 17 days before his inauguration in 1933 played a part. 

The Act’s restrictions were limited to extensive regulation of interstate importers, manufacturers and dealers of sawed-off shotguns, machine guns, silencers and the like.  Federal action was based on Congress’ right to regulate interstate commerce under the Constitution’s Commerce Clause, Art. II, Sec. 8, cl. 3.  The Act carefully did not address individuals’ rights to possess firearms. That was seen as a states’ rights matter.

The Supreme Court upheld the Depression era laws.  In United States v. Miller (1939), the Supreme Court upheld an indictment for interstate transportation of a double-barreled, sawed-off shotgun prohibited by the 1934 Act.  The Court followed the collective states’ rights view with no individual right under the Second Amendment.

Federal Action Continues into the 1990s

Many more federal laws were passed over the next sixty years stretching into the 1990s, all based on interstate commerce.  These laws regulated the importing, manufacturing and selling of firearms in interstate commerce, not simple in-state ownership or possession.  For example,registrations to sell fire arms were required. Sales to felons were prohibited.  Interstate trade of handguns was barred.  Minimum ages were set for purchasing.  Explosive devices were banned.  Waiting periods were established.  Gun-free school zones were authorized.  More laws banned undetectable guns.  It became illegal to convert single and double-action firearms to semi-automatics. Child safety locks and secure gun storage laws were passed.  Sales to people convicted of domestic violence were banned.  Sales to people subject to restraining orders were barred.  Notably, a controversial ten-year assault weapons ban was passed in 1994 (on a 52-48 vote in the Senate), but it was not renewed after it expired in 2004.

Public Attitudes Begin to Change

Things began to change in the 1990s.  As late as 1996, a federal appeals court continued to refer to the Second Amendment as a collective right held solely by the states, not as an individual right.  But hints of change started to surface.  The Supreme Court invalidated several “Brady Law” handgun limitations. Justice Clarence Thomas in a concurring Supreme Court opinion tipped his hand and stated the Second Amendment creates “a personal right to keep and bear arms.”

Popular sentiment for individual gun rights increased.  The National Rifle Association lobbied for individual gun rights and less federal and state government regulation. Famous celebrities joined the debate, one upping the ante by declaring that he would give up his gun only when “you pry it from my cold, dead hands.”

Congress’ temperature started to change in the early 2000s.  Congress passed laws trimming the types of national data base information federal agencies could use to enforce federal gun laws.  One act shielded gun manufacturers from liability for crimes committed with their products unless there was proof of actual knowledge that a purchaser intended to use the gun to commit a crime.

On the other side of the coin, local communities alarmed by an increasing use of handguns in violent crimes began passing ordinances banning or limiting the possession of handguns.  By the mid-2000s, the stage was set to take the Second Amendment to the Supreme Court, the first time before the Supreme Court since 1939.

District of Columbia v. Heller

The District of Columbia, a federal enclave and not a state, passed a series of ordinances making it next to impossible as a practical matter to own and possess a handgun. For example, the ordinances banned possession of unregistered fire arms and at the same time barred the registration of hand guns (otherwise required by federal law). Other ordinances required that handguns when not in use be unloaded and trigger-locked or stored in a locked box. Another ordinance prohibited both open and concealed carry. 

The federal trial court dismissed the case.  It applied the long-standing precedent that the Second Amendment was limited to a collective right of states to maintain militias and that it provided no individual right to own or possess a gun. That was up to the states.  The federal appeals court, however, reversed, declaring that the Second Amendment also protected an individual’s right to own and possess firearms.  This teed up the question for the Supreme Court.

The Supreme Court closely examined the text of the Second Amendment and the Constitution for meaning.  It also studied the use of firearms and militias at the time of the Second Amendment’s ratification.  The court confirmed the Amendment’s meaning as a collective right for states to maintain militias.  But the Court also held that this was not sole reason for the Amendment and did not limit its meaning.

The Court’s Reasoning

The Court emphasized use of the phrase “the right of the people” in the second clause of the Second Amendment.  The Court saw this as having special meaning in the Bill of Rights.  It was viewed as a “right” of “all Americans” as individuals.  In addition, the Court noted that when citizens were summoned from their farms and shops to serve in a militia, they brought their own arms, otherwise used for the long recognized individual traditions of hunting and self-defense.

The Court strongly indicated its holding was limited, based on “the core lawful purpose of self-defense.” The Court emphasized that its holding would not affect other matters like barring the possession of firearms by felons or mentally ill persons.  In addition, it would not invalidate laws prohibiting firearms in public buildings like schools or measures outlawing the possession of “dangerous and unusual weapons.” According to the Court, the Second Amendment was “not unlimited.”

The Supreme Court in Heller ruled on federal, not state, gun restrictions.  The District of Columbia is not a state; it is a federal enclave.  Two years later, the Supreme Court in McDonald v. City of Chicago applied the Second Amendment to state and local gun laws under the 14^th Amendment clauses for due process and equal protection.  The post-Civil War 14^th Amendment, ratified in 1868, extended civil rights protection to the South as part of Reconstruction. Among other things, the Court noted the importance of self-defense in the home for African Americans facing hostile crowds after freed from slavery.  Since Reconstruction, courts have applied the 14th Amendment due process and equal protection rights to the states in many areas of the law, not just the Second Amendment. 

Where the Court Falls Short

The Court, however, has never announced clear rules for how to judge the constitutionality of gun laws, other than handguns for self defense as in Heller. Instead, it left that up to federal trial and appeals courts in future cases.  Rules developed by the federal trial and appeals courts are covered in “The Second Amendment & Guns 201 – After Heller” here.

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© 2020 – 2021, Dan Cofran. All rights reserved.