A Right to Bare Arms? Arm Bears? The 2nd Amendment (Civics Primer #2)

Pop Quiz: How many Representatives are in the House of Representatives? That was one of the stumpers in a recent Civics online survey.

The answer: 435.

Here's another question that wasn't included in that survey: How many Electors are there? Add 100 Senators to the number of Representatives and then three more votes for the District of Columbia (which has no Senators and a non-voting member of the House) and you get the answer: 538. Each state gets electors equal to their representation in Congress. To become president, you must win enough states and their Electors to reach the Magic Number of 270 (half of 538 plus one). By the way, the "Electoral College" is not mentioned in the Constitution -- only "Electors." And no, the Electoral College is definitely not a party school.

In the first post of this series, I summarized the First Amendment and its five essential guarantees -- always a source of controversy. If anything, the Second Amendment has often proven just as contentious. But most of us don't know what it actually says or means.

Americans have always liked their guns. And some Americans REALLY like their guns. Whether to hunt, protect their homes or defend themselves from a tyrannical government, many Americans believe that the government has no right to restrict their access to firearms. But those who want to minimize gun violence, Congress, and the Courts have thought otherwise. Which brings us to the Second Amendment. There is little doubt that the Founders and Framers, in a time when there was no standing army, expected men to have a gun at the ready to defend the country. But does that 18th century logic still hold in a country with a standing army, state militias and local police forces? And does the high level of American gun violence (more than 31,000 firearms fatalities in 2006, according to the CDC) mean it is time to reassess an idea that made sense more than 200 years ago?

Amendment Two: Guarantees the limited right to keep and bear arms.

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.

Among today's most passionately argued of the amendments in the Bill of Rights, the Second Amendment was intended to provide for the effectiveness of the militia, which would presumably protect the citizen against Indians, foreign powers, or the power of the federal government, at a time when there was little or no standing army. Militias also served another unique role in the slave holding states: one of their primary duties was to suppress slave revolts, of which there were hundreds throughout American History.

In a long string of decisions, the Supreme Court had consistently ruled that the Second Amendment does not bind the states, so that state and local governments are free to enact gun control laws if they desire. In the case of federal laws, since a 1939 case involving sawed-off shotguns, United States v. Miller, the courts have held that the Second Amendment only confers a collective right to keep and bear arms, which must have a "reasonable relationship to the preservation or efficiency of a well regulated militia." Since then, Congress has placed many restrictions on the manufacture, sale, transfer, and possession of weapons, and these statutes have all been upheld as constitutional.

Not everyone agrees with that interpretation, even though it stood for more than sixty years. As constitutional scholar Leonard W. Levy writes,

The Second Amendment is as vague as it is ambiguous. Some think it upholds the collective right of state militias to bear arms, while others, probably more accurate in so far as original intent is concerned, argue that it protects the right of individuals to keep arms. (Original Intent and the Framers' Constitution)

Until 2002, no administration had challenged the so-called "collective right" established by Miller in 1939. But in 2002, Attorney General John Ashcroft announced that the Justice Department would seek to challenge the collective view in favor of the individual rights view, a stance vigorously supported by the National Rifle Association. In footnotes in two filings with the Supreme Court in 2002, the government said that the Second Amendment protected the rights of individuals "to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse."

More recently, in June 2008, the Supreme Court, led by George W. Bush appointee Chief Justice John Roberts (appointed in 2005 following the death of Chief Justice William Rehnquist), went beyond the Bush Administration's arguments. In District of Columbia v. Heller, the Court struck down a 32-year-old Washington, D.C. ban on handguns as incompatible with the Second Amendment.

The majority opinion in the 5-4 decision ruled that an individual right to bear arms is supported by "the historical narrative" both before and after the Second Amendment was adopted, wrote Justice Antonin Scalia. The Constitution does not permit "the absolute prohibition of handguns held and used for self-defense in the home."

In a vigorous dissent expressing what had been the predominant view since the 1939 Miller ruling, Justice Stevens wrote that the Second Amendment:

was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature's authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

And that is where the Second Amendment stands today.

Here is a link to the District of Columbia v. Heller case, including the majority and dissenting opinions.