Feb 24, 2018
For most of US history, all the way through to the end of the 20th Century, the introductory phrase "a well-regulated militia" was seen by courts to constrain the clause "the right of the people to keep and bear arms." In short, that individual "right" was contingent on the need to keep a well-regulated militia, and hence it protected the States' interests in having a militia, not an individuals' right to have and carrying a gun.
Dennis Baron, in an essay from "Language and Law, 2. Guns and grammar", provides an excellent summary of how the Amendment has been interpreted throughout history, summarizing both the case law and the grammatical meanings of 18th century language, with an eye toward getting at the plain meaning of the Amendment as intended by the Founders.
The support for the idea that the Amendment was designed to protect state militias is strong. For example, Justice Stephen Rheinhardt of the Ninth Circuit Court of Appeals noted in Silveira v Lockyer that when the Bill of Rights was being shaped, most of the debate focused on the need to maintain a militia. As Justice Rheinhardt noted:
[A]lone among the 13 colonies, New Hampshire . . . recommended a proposed amendment to the Constitution explicitly establishing a personal right to possess arms: "Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion."... The New Hampshire proposal is significant not only because it was substantially different from the proposals to emerge from the various other state conventions (which in turn were quite similar to that ultimately enacted as the Second Amendment), but also because it suggests that an amendment establishing an individual right to bear arms would have been worded quite differently from the Second Amendment.
It wasn't until the 21st Century that the interpretation favoring the preeminence of State militias began to unravel in the courts, although special interests had long tried to pass off the second clause as preeminent, and the first clause as subordinate in meaning, if not meaningless.
A Reagan appointee rewrites history
In 2001, in the United States v. Emerson, in which Timothy Emmerson challenged a restraining order which barred him from purchasing a firearm, Judge William Garwood - a conservative appointed by Ronald Reagan -- of the Fifth Circuit Court of Appeals included a lengthy digression on the Second Amendment in his majority opinion stating that even though Emerson shouldn't be allowed to have a gun, the amendment did protect an individual's right to own one. Garwood's Second Amendment digression was not binding--in his concurrence in Emerson, Judge Robert Parker discounted Garwood's rant as "84 pages of dicta" and criticized Garwood for grandstanding. Thus, there was nothing precedential about Garwood's digression, and it was irrelevant to the Court's decision. Nevertheless, the language was picked up by then-Attorney General John Ashcroft in a memo which sought to reverse the government's long-held position that the Second Amendment protections applied primarily to State militias, not individuals.
In 2008 the Supreme Court officially endorsed the notion that the clause addressing an individual's right was the defining clause, when Antonia Scalia, writing the majority opinion for District of Columbia v Heller, maintained that the introductory clause merely announced a purpose, and imposed no constraint on "the right of the people to keep and bear arms." Kennedy, Thomas, Alito, and Roberts joined Scalia in overturning some 200 years of jurisprudence. Talk about activist judges!
Linguists dismissed Scalia's interpretation as nonsense, and legal scholars pointed out that the opinion Scalia wrote was the opposite of what an Originalist - which Scalia claimed to be - would conclude.
Corporatism and partisanship as jurisprudence
The radical shift in the interpretation of the Second Amendment by so-called conservative judges reveals how their decisions don't flow from a conservative jurisprudence grounded in judicial restraint, a belief in a textual interpretation of the Constitution, respect for precedents, and deference to democratically-elected branches of government, but rather from a desire to act in the interests of corporations and partisan conservative politics.
Since the Civil War, there has been a slow, intermittent drift toward giving corporations the rights of individuals, and since 2000, if you were looking for a consistent jurisprudence, you'd be more likely to find it in the consistency in which the Court acted on behalf of corporations, vested interests, and partisan politics than you would in conservative interpretation and application of the original intent of the Constitution.
One could start with Bush v. Gore, in which conservatives used a radical interpretation (one that was essentially liberal) of the equal protection clause of the Fourteenth Amendment to hand the election to Bush, and then sought to isolate its effect by saying it was a one-time-only decision, not meant to be precedential. It stands as one of the most hypocritical and blatantly partisan decisions in the history of the Supreme Court.
The Roberts Court has doubled down on partisanship and corporatism; they are the Rosetta Stone for those seeking to understand the basis of the Court's otherwise random approach to applying principle to law.
DC v Heller: radical judicial intervention masquerading as conservative jurisprudence
The Court's decision in the Heller case gives Bush v Gore a run for the money in the annals of hypocrisy and partisanship. In dismissing the first clause as meaningless, Scalia and his cronies completely disregarded precedential cases such as Miller v the United States (1939) in which the Supreme Court said:
"In the absence of any evidence tending to show that possession or use of a [sawed-off] shotgun...has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."
In another landmark case, Hickman v Block (1996), which addressed Hickman's contention that the state had violated his Second Amendment rights when they refused to grant him a concealed carry license, a federal appeals court - basing their decision on a plain reading of the Amendment and the precedent established by Miller v the United States said:
Because the Second Amendment guarantees the right of the states to maintain armed militia, the states alone stand in the position to show legal injury when this right is infringed.
In short, the Court had long held that under the Second Amendment only the States could claim injury and seek relief, not individuals.
In his opinion for the majority on Heller, Scalia cavalierly dismissed linguistic common sense, an all but binding set of legal precedents, and his own his jurisprudence of "originalism." And the 5-4 opinion, with the rest of the conservative Justices' embrace of the decision, ushered in a new view of the Second Amendment that was radically different than the interpretation that had dominated for some 200 years, and it was a far less defensible one. But it did serve the interests of the NRA, gun manufacturers, and partisan right-wing politics which had been using fear and divisiveness to divide and conquer people so they could destroy the notion of the commonweal and the government's role in assuring it - a legal precept rooted in the Enlightenment principles that formed the underpinning our system of government since the 18th Century.
So if you're looking for who gave you your "right to bear arms," it wasn't the Founders - it came from a radical set of partisan corporatists who are more interested in scaring you so you'll buy more guns, then use the resulting profits to buy more politicians who will give tax cuts to the uber wealthy while taking away your benefits. Their engine is fear; their fuel is greed, their product the perversion of politics that is passed off as modern conservatism.
We're optimists who believe in the power of informed and engaged citizens to ignite and enact change to make the world a better place.
We're hundreds of thousands strong, but every single supporter counts.
Your contribution supports this new media model—free, independent, and dedicated to uncovering the truth. Stand with us in the fight for social justice, human rights, and equality. As a people-powered nonprofit news outlet, we cover the issues the corporate media never will. Join with us today!
Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.
We've had enough. The 1% own and operate the corporate media. They are doing everything they can to defend the status quo, squash dissent and protect the wealthy and the powerful. The Common Dreams media model is different. We cover the news that matters to the 99%. Our mission? To inform. To inspire. To ignite change for the common good. How? Nonprofit. Independent. Reader-supported. Free to read. Free to republish. Free to share. With no advertising. No paywalls. No selling of your data. Thousands of small donations fund our newsroom and allow us to continue publishing. Can you chip in? We can't do it without you. Thank you.