Interpreting the Second Amendment (Part 1)

T

he meaning of the second amendment (“2A”) continues to be the subject of much heated debate. 217 years after the 2A was ratified, the Supreme Court of the United States (“SCOTUS” or “the court”) finally settled whether the 2A protects an “individual right” to keep and bear arms for self-defense.

Over the course of a few posts, I will summarize how the SCOTUS reached its decision in the D.C. v. Heller case in 2008 and other important 2A cases. In the process, readers should have a better understanding of important 2A precedent and interpretations. This first 2A post will focus on the Heller court’s analysis of the 2A and limitations on the 2A.

District of Columbia v. Heller (“Heller“)

In the Heller case, the court settled a long-standing question of whether the right to “keep and bear arms” was an individual right that was unconnected to service in a militia. The court held that (1) the 2A protects an individual right to possess a firearm unconnected with service in the militia, and (2) to use that Arm for traditional purposes, such as self-defense within the home.

The issues raised in the Heller case arose from a D.C. law that effectively banned the possession of handguns by non-law enforcement personnel, and required lawfully owned firearms to be kept unloaded, disassembled, or locked when not located at a business place or being used for lawful recreational activities. The D.C. law was held unconstitutional. 

Distinction between Prefatory Clauses and Operative Clauses

The SCOTUS began its 2A interpretation by distinguishing the prefatory and operative clauses in the amendment. 

A prefatory clause was defined as an introduction or a beginning. Effectively, a prefatory clause announces a purpose that does not limit or expand the scope of the operative clause. 

Here, the purpose (aka prefatory clause) of the 2A is that “A well regulated Militia, being necessary to the security of a free State.” Accordingly, the court opined that the 2A could also be written as, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

Operative Clause

The SCOTUS’ interpretation of the operative clause was broken down into four parts: (A) Understanding what is meant by “the right of the people”; (B) Understanding what is meant by “the people”; (C) What Arms are protected by the 2A?; and (D) Understanding what is meant by “keep and bear arms.”

A. “The Right of the People”

The court recognized that “the right of the people” is used three times in the Constitution and Bill of Rights. In all three occasions, “the right of the people” unmistakably refers to individual rights.

  1. 1A – “the right of the people peaceably to assemble”
  2. 2A – “the right of the people to keep and bear arms”
  3. 4A – “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…”

B. “The People”

Next, the court noted that the phrase “the people,” on its own, is used six times in the Constitution and Bill of Rights. In none of those instances does it pertain to a “right” belonging to “the people.” However, in each of those six instances, “the people” unambiguously refers to all members of the national community. Lastly, in colonial times, “the militia” consisted of a subgroup of “the people” whom were able bodied and within a certain age range.

As such, the SCOTUS began with a strong presumption that the 2A right is exercised individually and belongs to all Americans.

C. What “Arms” are Protected?

SCOTUS noted that the term “Arms” has not changed in meaning since the time of the Constitution. In 1773, the term “Arms was defined as “weapons of offence, or armour of defence.” Therefore, the term “Arms” included not only weapons designed for military purposes but also those not employed in a military capacity.

Furthermore, the court made clear that it is frivolous to argue that the 2A only protects Arms in existence in the 18th century. Historically, courts have never interpreted constitutional rights in that manner. For instance, the 1A protects modern forms of communication. The 4A applies to modern forms of search. In line with those analogies, the 2A applies to modern forms of “bearable arms,” even those not in existence at the time of our country’s founding.

D. “Keep and Bear Arms”

The phrase to “keep and bear Arms” was naturally separated: to keep arms and to bear arms. The court defined the phrase “keep arms” as to have weapons or to own weapons.

At the time of the founding, to “bear” meant to “carry.” When the term “bear” was used with “arms,” the meaning referred to carrying arms for a particular purpose. For example, in 1998, the SCOTUS analyzed the meaning of “carries a firearm” in the Muscarello v. United States case. In that case, Justice Ginsburg wrote that “a most familiar meaning is, as the [2A] … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing … for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.'”

The court in Heller agreed with Justice Ginsburg’s interpretation in that it accurately captured the meaning of “bear arms.” The SCOTUS also added that it in no way implies participation in a structured military organization. Thus, “bear arms” unambiguously refers to the carrying of weapons outside of an organized militia.

E. Interpretation of the 2A’s Operative Clause

In short, the court determined that the operative clause of the 2A guarantees an individual right to possess and carry weapons in case of confrontation. Importantly, the court acknowledged that the text of the 2A implicitly recognizes that “the right of the people to keep and bear arms” was a pre-existing right and the 2A merely declared that it “shall not be infringed.” Historically, the 2A right had been secured in the colonies since 1689. Since then, it was understood to be an individual right protecting against both public and private violence.

Relationship b/w the Prefatory and Operative Clauses

The SCOTUS concluded that the purpose of the 2A was to prevent the elimination of the militia. To support this conclusion, the court combed through history before and during our country’s founding.

This history demonstrated that tyrants had successfully eliminated militias, consisting of all able-bodied men, not by banning militias but by simply taking away the individual right to bear arms. Thus, the reason the 2A was codified was because of the threat that the new Federal Government would destroy the citizen’s militia by taking away their arms.

Interestingly, the court noted that four states had adopted, in their state constitutions, an individual right to bear arms unconnected to militia service between the time of the declaration of independence and the ratification of the Bill of Rights. Moreover, between 1789 and 1820, nine states had adopted 2A equivalents that referred to the right of the people to “bear arms in defence of themselves and the State.”

Limitations on the 2A

The SCOTUS did recognize that like most rights, the 2A is not unlimited. The court did not ignore that there did exist a record of limitations on the 2A. These included:

  • prohibitions on the possession of firearms by felons and the mentally ill;
  • laws forbidding the carrying of firearms in sensitive places such as schools and government buildings; or
  • laws imposing conditions and qualifications on the commercial sale of arms.

An important limitation identified by the court, and explained in the United States v. Miller case, was that the 2A protected the sorts of weapons that were “in common use at the time.” This interpretation was supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

With regards to “in common use at the time” and “dangerous and unusual weapons,” the court noted that at the time of the 2A’s ratification, the militia consisted of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. Similarly, to be as effective today as militias were in the 18th century, “the people” would be required to bring with them sophisticated arms that may appear to be unusual to the society at large. Thus, the court’s interpretation of the 2A right does not change based on modern developments.

Individual Right to Keep and Bear Arms Unconnected to Service in a Militia

In summary, the SCOTUS in Heller held that the 2A protects an “individual right” to possess a firearm unconnected with service in a militia. However, the 2A right is not unlimited. The extent of such limitations has yet to be defined by the SCOTUS.

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