Interpretation of the Second Amendment

“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. — Second Amendment to the United States Constitution.

There are some Second Amendment advocates who are conspicuously pleased with the Supreme Court’s decision in District of Columbia et al. v. Heller. In many ways, they should be. The majority opinion swept away the lingering doubt about about whether or not the right to “keep and bear” arms is an individual right, not contingent upon membership on a militia. The Court came down unequivocally on the side of the Second Amendment’s protection of an individual right.

However, the decision prevailed by the slimmest possible margin 5-4. A Court with a different composition, say one in which a potential President John Kerry had been able to choose different justices than John Roberts and Sam Alitio, or one in which a future President Barrack Obama would be able to replace one of the five in the majority, the decision would have been certainly different.

Nonetheless, the Heller case will serve as a  precedent and it will take some time for even a future, liberal and energetic Court to whittle away at this decision. One reason this precedent will be difficult to erode is the granite-hard reasoning and rigid clarity of Justice Antonin Scalia’s majority opinion.

The most frequent argument against an interpretation of an individual right to keep and bear arms is that the first or “prefatory” clauses implies that the second or “operative” clause is limited to the militia. Specifically, that the militia rather that than an individual has the right to “keep  and bear arms.”

Scalia points out that other documents written at the time for state constitutions had prefatory clauses indicating intent, but such clauses have never held to limit the rights of the operative clause. Scalia cites legal doctrine of the time to buttress this approach, “It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.” [1]

Very simply, the writers of the Second Amendment were concerned that the Federal Government might supersede and the eliminate state militia. By explicitly recognizing the “right of the people,” the Founder realized that it would be impossible for the Federal government to disarm the militia (“all males physically capable of acting in concert for the common defense”)

It is as important to note that the phrase the “right of the people” is used elsewhere in the Constitution. In each case, it refers to an individual right as in the:

  • “…right of the people to peaceably assemble…” (First Amendment) and
  • ” …right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…” (Fourth Amendment)

There are some who have tried to interpret the “arms” that people have the right to keep and bear are the “arms” in common use at the time of ratification. Under such an interpretation, modern handguns are not arms that people have the right to. Of course, such an interpretation is easily dismissed. The Constitution is not limited by the technology of the time. For example, freedom of the press reasonably includes more modern forms of telecommunication.

According to this decision, the arms included under the Second Amendment protections are arms that people use for legal and legitimate purposes, such as hunting and self-defense. This leaves some broad discretion on the part of the state to limit the use of extreme or uncommon weapons. However, in this case, the Court ruled that handguns have an important self-defense use, the right to keep and bear these arms is protected.

The salient political observation with respect to this case is to recognize those who are pleased that individuals are little freer after this decision and those who are not.

[1] J. Bishop, Commentaries on Written Laws and Their Interpretation, Section 51, p. 49 (1882)

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