Ten Truths About the Second Amendment

By Eric Segall

On Tuesday, the Ninth Circuit Court of Appeals invalidated Hawaii's requirement that people receive a license before openly carrying a gun in public. This aggressive act of judicial review might be reviewed by the Supreme Court, especially if Brett Kavanaugh is confirmed as a Justice. The Supreme Court has not reviewed a Second Amendment case since 2010, but as I argued here, it is likely the Court will return to this area of law in the near future now that Justice Kennedy has retired. Here are ten truths about the Second Amendment.

1.    The Second Amendment provides that "A well regulated militia, being necessary to the security of a free state, the right of that people to keep and bear arms shall not be infringed."

2. From the beginning of this country's history, the states and Federal government have regulated the possession, sale, and transfer of guns. For example, even in the late 18th century, big cities like New York and Boston regulated the sale and safe keeping of gun powder including limits on how much gunpowder any one person could purchase. Prior to the civil war, a number of states prohibited concealing firearms in public. There can be no dispute that guns have been regulated consistently since this country was founded.

3. Despite the abundance of gun laws since the beginning of the Republic, the Supreme Court did not hold that the Second Amendment protects an individual right to own guns until 2008 in the decision District of Columbia v. Heller.

4.  Former Republican Chief Justice Warren Burger once said that the idea that the Second Amendment protects an individual right to own guns is "one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups, that I've ever seen in my lifetime."

5.  For much of the 20th century, the National Rifle Association supported laws relating to gun safety. In fact, its leadership even lobbied for and supported gun regulations. In 1939, the president of the NRA testified in front of Congress that he did not believe "in the general practice of carrying weapons." It wasn't until the 1970's that the NRA opposed virtually all regulations of guns.

6. In its entire history, the United States Supreme Court has only struck down two laws on the basis of the Second Amendment, and both were complete prohibitions on the possession of handguns.

7. In the Court's opinion in 2008 striking down the District of Columbia's ban on handguns, Justice Scalia and four other conservative Justices held that the Second Amendment protects the right to possess guns "in common use." Not only is this reading inconsistent with the Militia language in the Second Amendment's text, but it is contradicted by the clear history of the Amendment. As historian Saul Cornell, among many others has observed, at the time of the founding all able bodied men had to serve in the militia and bring military, not hunting, weapons to their service. The Second Amendment was exclusively concerned with this obligation and had nothing to do with self-defense in the home or hunting.

8. All constitutional rights, including the right to free speech, are limited and must be balanced against important state interests. Perjury and bribery involve pure speech but can be punished by the government because of important state concerns. Even if the Second Amendment created a personal right to own guns, that right would have to be balanced against state interests in public safety. This explains why in Heller itself, the conservative majority said that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or 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."

9. Soon after Heller was decided, Judge Harvey Wilkinson, a Ronald Reagan appointed Judge on the United States Court of Appeals for the Fourth Circuit wrote the following  about the problems Heller would produce: "Courts across the country will face detailed questions about firearms regulations and will provide varied and often inconsistent answers. Circuit splits and open questions will persist for our lifetimes. And for what purpose? What justifies the judiciary asserting its primacy in yet another new arena? Surely not its greater expertise. Surely not, as in apportionment, a dysfunctional political process....  Accordingly, the Court should honor the structure of our constitution, stay out of the thicket, and leave the highly motivated contestants in this field to press their agendas in the political process where the issue properly belongs and where for centuries it has remained." 

10. In a dissent in Heller II v. District of Columbia, Judge Kavanaugh wrote that Americans have a constitutional right to buy and possess semi-automatic rifles because such weapons are in "common use" and have not, according to Kavanaugh,  been traditionally regulated. President Trump's nominee to the Supreme Court believes that Americans have a constitutional right to possess semi-automatic rifles even though the founding fathers could not possibly have conceived of such dangerous weapons that could jeopardize the public safety. Such a leap is not justified by text, history or precedent.