Twenty-four hours before the Supreme Court eliminated the constitutional right to an abortion on Friday, it significantly expanded gun rights with its decision in New York State Rifle & Pistol Association, Inc. v. Bruen. In the Thursday ruling, the same six conservative justices who struck down Roe v. Wade voided an 111-year-old New York law that required applicants for a concealed carry permit to demonstrate that they had a special, specific need for self-defense.
This in turn will require other states with significant gun regulations — California, Maryland, Massachusetts, New Jersey, and Hawaii — to change their laws. Other restrictions on guns will likely fall to lawsuits.
President Joe Biden then released a milquetoast statement: “I am deeply disappointed by the Supreme Court’s ruling … the Second Amendment is not absolute.” New York Gov. Kathy Hochul said, “I’m sorry this dark day has come — that we’re supposed to go back to what was in place since 1788 when the Constitution of the United States America was ratified. And I would like to point out to the Supreme Court justices that the only weapons at that time were muskets.”
These responses should drive anyone concerned about America’s horrifying gun violence berserk with frustration — because they concede nearly the entire argument to the right before they begin. It is not the case that the Second Amendment was intended to grant individuals the right to carry arms, and thus present-day supporters of gun control now have to figure a way around that. On the contrary: The Second Amendment was never meant to have anything to do with individual gun rights. (It’s also distressing that Hochul, who graduated from law school, does not seem to know that while the U.S. Constitution was ratified in 1788, the Bill of Rights wasn’t until 1791.)
The Second Amendment was never meant to have anything to do with individual gun rights.
The right argument for politicians to make on this issue — what’s both factually accurate and politically important — is that of Warren Burger. Burger was a Republican who was appointed chief justice of the Supreme Court by President Richard Nixon in 1969 and served for 17 years until 1986. In retirement in 1991, Burger said that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.”
“The very language of the Second Amendment,” wrote Burger, “refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires. … The Framers clearly intended to secure the right to bear arms essentially for military purposes.”
Understanding this requires some knowledge of U.S. history, but not that much.
The 13 original U.S. states were first bound together by the Articles of Confederation, which were ratified in 1781 just as the American Revolution effectively ended. But the system didn’t work well, with the central government so weak that the “united” part of the United States was largely a joke.
An effort began, led by James Madison, to create a new governing structure. This eventually became the Constitution, which was drafted in Philadelphia in 1787. But then it had to be ratified by the states.
This was by no means a sure thing. One key point of contention between the Federalists who supported the Constitution and the Anti-Federalists who opposed it were concerns over a standing army. “Standing armies are dangerous to the liberties of a people,” the Anti-Federalists stated. “The truth of the position might be confirmed by the history of almost every nation in the world.” And the Constitution gave the prospective new federal Congress the power “to raise and support Armies.”
Madison did not claim this was not an issue. However, he argued in Federalist No. 46:
The State governments, with the people on their side, would be able to repel the danger … citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.
Madison then pointed to the success of the American Revolution itself as proof of the effectiveness of militias against a regular army.
To assuage the concerns of those on the fence about the Constitution, Federalists in various states proposed that its ratification be linked to the adoption of amendments limiting the power of the federal government. This was crucial: As the National Archives explains it, “The Constitution might never have been ratified if the framers hadn’t promised to add a Bill of Rights.”
This was the context for the writing of the Second Amendment. The Bill of Rights was partially based on the 1776 Virginia Declaration of Rights. As the Library of Congress says, the Virginia Declaration was “uniquely influential” and “used by James Madison in drawing up the Bill of Rights.” Section XIII of the Declaration read:
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.
The final language of the Second Amendment was, of course, “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.”
A straightforward interpretation of this history was generally observed for a long time. In a key 1939 Supreme Court case, United States v. Miller, two men had traveled across state lines with an unregistered shotgun with a shortened barrel in violation of the National Firearms Act of 1934. A lower court held that part of the Act was an unconstitutional violation of the Second Amendment. In refuting this, the court declared that the “obvious purpose” of the Second Amendment was “to assure the continuation and render possible the effectiveness of [state militia] forces. … It must be interpreted and applied with that end in view.”
In the legal world more generally, no law review article from 1888 (when they were first indexed) through 1959 ever concluded the Second Amendment guaranteed an individual right to a gun.
It’s only recently that the Supreme Court has veered toward its current view. In a key 2008 case, the court held that the meaning of “a well regulated Militia” was “all able-bodied men.” Hence it was unconstitutional for the government to prevent an individual from possessing a weapon even if it was “unconnected with militia service.”
This perspective clearly requires bizarre mental gymnastics and a resolute commitment to ignoring basic historical facts. But that’s the bread and butter of the current Supreme Court. To get a sense of where they fall on the political spectrum, it’s useful to compare their perspective to that of Jay Bybee, a judge on the 9th U.S. Circuit Court of Appeals. In a recent decision, Bybee wrote, “Our review of more than 700 years of English and American legal history reveals a strong theme: government has the power to regulate arms in the public square. … Indeed, we can find no general right to carry arms into the public square for self-defense.” Bybee is best known for signing off on the George W. Bush administration’s memos authorizing torture.
Meanwhile, away from the Supreme Court’s dense opinions, the case for eliminating limits on gun rights is simpler. On the wall of the lobby at the National Rifle Association’s headquarters in Virginia, you will read the stirring words “… the right of the people to keep and bear arms, shall not be infringed.” I.e., the inconvenient beginning of the Second Amendment has been edited out.
So Warren Burger was certainly right to say in 1991 that “the American people should have a firm understanding of the true origin and purpose of the Second Amendment.” But the unfortunate fact is that they definitely do not. The conservative faction of the Supreme Court likes it that way, and even top Democrats don’t seem inclined to explain it to anyone.