By Ben Raab
The Second Amendment to the United States Constitution states, “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.”[1] Often times, people focus on the second part of the Amendment on bearing arms, without focusing on the first part, “a well regulated militia.”[2] Understanding the relationship between the two sections is essential to understanding how guns can be regulated without subverting the Amendment. The Supreme Court has long disagreed on how the two sections relate to each other.
Heller, the infamous Supreme Court case, states, “like most rights, the right secured by the Second Amendment is not unlimited… the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”[3] Furthermore, Justice Scalia makes multiple references to weapons “typically possessed by law-abiding citizens for lawful purposes.”[4] This suggests that restrictions on certain weapons would be allowed if they were used by criminals or others who might misuse the weapon. Nevertheless, the majority in Heller states that the Second Amendment guarantees a right for private citizens to keep and bear arms. However, this is inconsistent with a previous Supreme Court case, United States v. Miller.
The purpose of the Second Amendment is to protect the right of the people to maintain a well-regulated militia.[5] The text of the Amendment does not actually limit Congress’ authority to regulate private civilian use of firearms. In Miller, the Court held that because a shotgun with a barrel of less than 18 inches has no use by a well-regulated militia, this gun must not be protected by the Second Amendment.[6] As written the Second Amendment protects the right to keep and bear arms for certain military purposes.
The Framers wanted to protect the right to use military firearms in the context of service in state militias.[7] The National Guard is the modern-day version of state militias. As a result, a possible reading of the Second Amendment is to guarantee the right to bear arms to members of the National Guard. However, in the Supreme Courts most recent Second Amendment case, it held that
However, in the Supreme Courts most recent Second Amendment case, NY State Rifle & Pistol Ass’n v. Bruen, the Court held that a firearm regulation must be consistent with the country’s historical tradition of firearm regulation.[8] It can be argued that the United States has a history of banning firearms that are unusually dangerous, such as fully automatic rifles. Despite this, today’s Supreme Court would likely not consider the dangerousness of a firearm when determining if a gun control measure is constitutional. Nevertheless, when using the approach taken in Bruen, the United States does have a history of gun control. Therefore, gun control must be constitutional.
In Heller, the Court cites another case to argue that no constitutional right is unlimited. The case cited is United States v. Sheldon. This case was decided by the Supreme Court of the Territory of Michigan. The case states that the right to bear arms “cannot be construed into the right in him who keeps a gun to destroy his neighbor. No rights are intended to be granted by the Constitution for an unlawful or unjustifiable purpose.”[9] Essentially, the Constitution does not grant rights if those rights could cause harm to another person. Therefore, if guns are going to be used for illegal purposes, then the Constitution does not guarantee a right to have those guns. This is a view that was adopted by several other courts in the early and mid-1800s.[10]
Based on precedent, it can be argued that the right to bear arms is not absolute, but rather subject to certain restrictions. The Supreme Court has been reluctant to discuss the types of restrictions that are acceptable, and whether an assault weapons ban will pass constitutional muster is unknown. Today’s Supreme Court would consider any historical reasoning for gun control when determining if a law violates the Second Amendment; and the United States does have a history of certain levels of gun control. As a result, the Second Amendment cannot be absolute, and it must allow Congress some leeway to regulate firearms.
[1]U.S. Const. amend. II.
[2]Id.
[3]District of Columbia v. Heller, 554 U.S. 570 (2008) (Scalia, J.).
[4]Id.
[5]See United States v. Miller, 307 U.S. 174 (1939).
[6]Id.
[7]Id. at 178-79.
[8]NY State Rifle & Pistol Ass’n v. Bruen, 142 S.Ct. 2111 (2022).
[9]United States v. Sheldon, 5 Blume Sup. Ct. Trans. 337, 346 (Mich. 1829)
[10]David Kopel, The First Century of Right to Arms Litigation, 14 Geo. J. of L. and Pub. Pol’y 127, 157 (2016).