The Second Amendment

1. The 2A's Roots: Militia Duty, Not Personal Defense

To the Framers, even our question would make little sense.

A different world. The Second Amendment emerged from a political culture vastly different from our own, where bearing arms was primarily understood as a civic duty tied to militia service, not an individual right for personal protection. Every white man aged 16 to 60 was required to own a gun and serve in the state militia.

Militia's purpose. Militias were seen as essential for community defense against foreign invasion, domestic insurrection (including slave revolts), and as a check against a potentially tyrannical standing army. The Framers debated how much control the new federal government should have over these state forces.

Duty, not just right. While colonists expected to own guns, this expectation was intertwined with the obligation to be armed for the common defense. The idea that the Constitution would protect gun ownership solely for private self-defense, divorced from militia service, was not a central concern during the founding debates.

2. Founding Fears: Standing Armies vs. Citizen Militias

To the people of Boston, under military occupation, the British Army was not a representative of “us” but an oppressive force sent by “them.”

Legacy of distrust. The American Revolution was fueled, in part, by a deep-seated fear of standing armies, seen as instruments of tyranny used by monarchs to oppress their own people. The presence of British troops in colonial cities reinforced this fear.

Militia as alternative. Citizen militias, composed of ordinary farmers and shopkeepers, were idealized as the virtuous alternative to professional soldiers. They were seen as rooted in the community and less likely to be used for oppressive purposes.

Washington's view. George Washington, however, grew disillusioned with the unreliability and lack of discipline of state militias during the Revolutionary War. This experience, and events like Shays' Rebellion, convinced many Federalists of the need for a stronger national government with greater control over military forces, including the ability to raise a standing army and regulate militias.

3. Early America: Guns Abound, Regulations Too

In general, gun use was governed by common law, handed down from England and enforced by judicial decisions.

Widespread ownership. Guns were common in early America, used for hunting, pest control, and fulfilling the duty of militia service. The frontier, in particular, saw frequent use of firearms for protection against Native American tribes and outlaws.

Existing regulations. Despite widespread ownership, gun regulations were also common and accepted. These included:

• Laws prohibiting loaded guns in homes (Boston)
• Rules governing gunpowder storage
• Bans on firing guns within city limits
• Restrictions on gun ownership for certain groups (Catholics, African Americans, Tory sympathizers)

Common law limits. The right to self-defense was recognized under common law, but it was balanced against other concerns for public safety. Carrying weapons in a way that menaced others (affrighting) was a misdemeanor.

4. Civil War & 14th Amendment: Race, Rights, and Arms

It would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

Dred Scott's horror. The Supreme Court's infamous Dred Scott decision in 1857 listed the right "to keep and carry arms wherever they went" as one of the privileges of citizenship that would be horrifyingly granted to black people if they were recognized as citizens. This revealed that, in the antebellum South, the right to bear arms was often viewed as a white prerogative.

Reconstruction context. After the Civil War, Southern states enacted Black Codes that disarmed freed slaves, leaving them vulnerable to violence from white supremacist groups like the Ku Klux Klan. Arming black citizens for self-defense became a critical issue.

14th Amendment debates. Some framers of the Fourteenth Amendment intended it to guarantee black citizens the right to bear arms for protection, viewing it as essential for civic equality. However, the amendment's broad language and the political compromises surrounding its passage left its precise scope, including its application of the Second Amendment to the states, open to future interpretation.

5. Two Centuries of Consensus: 2A as Collective Right

For two centuries, however, the Second Amendment received little notice.

Judicial silence. For nearly two hundred years after its ratification, the Second Amendment was rarely invoked in court and received little attention from legal scholars. When courts did consider it, they overwhelmingly interpreted it as protecting the right of states to maintain militias, not an individual right to own guns for private purposes.

Supreme Court rulings. The Supreme Court addressed the Second Amendment several times before the late 20th century, consistently linking the right to militia service:

• Cruikshank (1876): Ruled the 2A only applied to the federal government, not states.
• Presser (1886): Reaffirmed the 2A applied only to the federal government and linked gun rights to militias.
• Miller (1939): Upheld a federal gun law, stating the 2A protected weapons with a "reasonable relationship to the preservation or efficiency of a well regulated militia."

Established view. This "collective rights" or "militia" view was the settled interpretation in constitutional law for generations, widely accepted by judges, lawyers, and academics.

6. The NRA's Transformation: From Marksmanship to Militancy

The NRA bills itself “the nation’s longest standing civil rights organization.” That’s not exactly how it started.

Early focus. Founded in 1871, the National Rifle Association initially focused on marksmanship training and promoting shooting sports, often cooperating with the government to improve civilian shooting skills for national defense. It did not actively oppose early federal gun control laws.

Shift in the 1960s/70s. Amid the social and political turmoil of the 1960s, including assassinations and urban unrest, the NRA began to adopt a more political stance. A pivotal moment was the "Revolt at Cincinnati" in 1977, where a faction of hardline activists seized control of the organization.

Militant ideology. The new leadership transformed the NRA into a powerful, ideological lobbying force fiercely opposed to gun control and centered on a radical interpretation of the Second Amendment as an absolute individual right. This shift aligned the NRA with the rising conservative political movement.

7. The Rise of Originalism: A New Legal Strategy

Originalism asserts that the only legitimate way to interpret a constitutional provision is to ask what the Constitution meant at the time it was enacted, in the late 1700s.

Conservative backlash. Starting in the 1970s, a conservative legal movement emerged, seeking to counter the perceived judicial activism of the Warren and Burger Courts. They sought a new theory of constitutional interpretation.

Originalism's appeal. Attorney General Edwin Meese popularized "original intent" in the 1980s, arguing judges should be bound by the Framers' understanding. This evolved into "original public meaning," focusing on how the words were understood at the time of ratification. This approach promised objective, non-political interpretation and tapped into reverence for the Founders.

Academic campaign. Pro-gun activists and sympathetic legal scholars launched a concerted academic campaign, publishing numerous law review articles arguing for an individual rights interpretation based on originalism. This "law office history" often selectively cited historical sources to fit the desired legal argument.

8. Heller: The Court Declares an Individual Right

For the first time, the Court ruled that the Second Amendment recognizes an individual right to own a gun unrelated to militia service.

Targeting D.C. law. Gun rights advocates, backed by a new legal strategy and shifting public opinion, targeted Washington, D.C.'s strict handgun ban. They sought a case that would force the Supreme Court to revisit its Second Amendment interpretation.

The Heller decision. In 2008, in a landmark 5-4 decision authored by Justice Scalia, the Supreme Court in District of Columbia v. Heller struck down the D.C. law. The Court declared that the Second Amendment protects an individual's right to keep and bear arms for self-defense, particularly in the home, independent of militia service.

Overturning precedent. This ruling overturned nearly 70 years of precedent established in United States v. Miller and the long-standing consensus that the Second Amendment was primarily a collective or militia right.

9. Heller's Method: Text, History, and Contradiction

Scalia simply lops off the first half of the amendment, just as in the bowdlerized quote in the NRA headquarters lobby.

Textual focus. Justice Scalia's majority opinion in Heller purported to rely on "original public meaning" and textual analysis. However, critics argued it selectively interpreted the text, particularly by downplaying the significance of the amendment's prefatory clause about the "well regulated militia."

Debated history. The opinion engaged in a lengthy historical analysis, but historians widely criticized it as "law office history," cherry-picking sources and misinterpreting the historical context of the founding era debates, which focused heavily on militias and fear of standing armies.

Pragmatic limits. Despite its originalist claims, the Heller opinion included a list of permissible gun regulations (e.g., banning possession by felons, carrying in sensitive places, regulating commercial sales) that were not clearly derived from the historical record. This suggested a pragmatic balancing act, not pure originalism.

10. McDonald: Applying the Right to the States

Now that the Supreme Court had spoken, hundreds of judges, thousands of litigants, and communities and jurisdictions around the country would have to sort out what it meant.

The next step. Following Heller, the crucial question was whether the newly recognized individual right applied to state and local governments, as most gun laws are enacted at that level. The Supreme Court's earlier ruling in Cruikshank had said the Second Amendment did not apply to the states.

Incorporation. In McDonald v. City of Chicago (2010), the Court, again in a 5-4 decision, ruled that the Second Amendment individual right is "incorporated" through the Fourteenth Amendment's Due Process Clause and thus applies to the states. This meant state and local gun laws could now be challenged under the Second Amendment.

Impact on laws. McDonald invalidated Chicago's handgun ban, similar to how Heller struck down D.C.'s law. The decision opened the door for legal challenges to a wide range of state and local gun regulations across the country.

11. Post-Heller Courts: Upholding Most Gun Laws (So Far)

In the first two years after Heller, federal courts considered the constitutionality of gun laws in two hundred cases. Gun laws were upheld in all but two.

Lower court challenges. Following Heller and McDonald, gun rights advocates filed numerous lawsuits challenging various state and local gun control measures, including bans on certain types of weapons, restrictions on carrying guns in public, and regulations on gun sales.

Applying scrutiny. Lower courts have largely adopted a two-part test: first, does the law burden a right protected by the Second Amendment (primarily self-defense in the home with common weapons)? Second, apply a level of judicial scrutiny (often "intermediate scrutiny") to determine if the law is justified by a sufficient government interest.

Regulations upheld. Using this framework, courts have, for the most part, upheld a wide array of gun regulations, including:

• Bans on gun possession by felons and the mentally ill
• Prohibitions on carrying guns in sensitive places (schools, government buildings)
• Laws requiring permits and training for concealed carry
• Regulations on the commercial sale of firearms

12. The Culture War: 2A Fundamentalism vs. Public Safety

Increasingly, it is clear that the gun issue is not one of evidence-based public safety policy, but of culture.

Deepening divide. The debate over guns has become increasingly polarized, reflecting deep cultural divides often linked to region, political ideology, and differing perceptions of risk (fear of crime vs. fear of government/predators). Gun ownership is concentrated among a shrinking, largely white, male, conservative demographic.

Constitutional rhetoric. The Supreme Court's recognition of an individual right in Heller has injected constitutional fundamentalism into the political debate, elevating gun rights to a near-sacred status and making evidence-based policy discussions more difficult. The NRA and its allies frame gun ownership as essential for liberty and protection against perceived threats.

Policy challenges. This polarization hinders efforts to enact new gun safety measures, even those with broad public support like expanded background checks. It also complicates efforts to study gun violence and implement innovative regulatory or policing strategies, as these are often met with constitutional challenges rooted in the Heller decision.

Last updated: May 31, 2025