#2A

This essay concerns the Second Amendment to the U.S. Constitution, not mass shootings and not gun violence (for which, please see 2016  and 2015).

Here is the Second Amendment, in all her 27 words of naked splendor:

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.

That is the whole thing.

My first observation is that “pro-gun” purists tend to ignore the first 13 words, which lay out the original reason that Congress shall not trample individual gun rights, because the security of a free state needs a well-regulated militia (rather than a standing army).

My second observation is what constitutes a “militia”?  In today’s terms, it would be each state’s National Guard; in those days, it was colonists formally banding together to resist British rule and perhaps Indian “aggression.”

Many or most pro-gun purists seem to think that they know the meaning of these 27 words, the Second Amendment.  But guess what!  Defining the “meaning” of the Second Amendment is the job of the Supreme Court (in their most recent decisions).  Neither you – dear reader – nor I, get to interpret the meaning of the Second Amendment (or any other part of the U.S. Constitution).

What follows is a quick study of how SCOTUS (the Supreme Court of the United States) has “interpreted” the Second Amendment, over time.

• In the 19th Century (United States v. Cruikshank, 92 U.S. 542 (1875) and Presser v. Illinois, 116 U.S. 252 (1886)), the Supreme Court ruled that the Second Amendment does not bar state regulation of firearms.

• In United States v. Miller, 307 U.S. 174 (1939), 9-0, only weapons that have a reasonable relationship to the effectiveness of a well-regulated militia under the Second Amendment are free from government regulation.    Justia    Oyez

• Shelly Parker, et al. v. District of Columbia, 478 F3d 370, D.C. Cir. 2007, held that individuals have a right under the Second Amendment to own handguns for their own personal protection and keep them in their home without placing a trigger lock on them.  This is the first decision since the Supreme Court decided Miller in which a federal court overturned a law regulating firearms based on the Second Amendment.

• In District of Columbia v. Heller, 554 U.S. 570 (2008), 5-4, SCOTUS affirmed Parker: private citizens have the right under the Second Amendment to possess an ordinary type of weapon and use it for lawful, historically established situations such as self-defense in a home, even when there is no relationship to a local militia.    Justia    Oyez
  

  The Court (also) stated that the right to keep and bear arms is subject to regulation, such as concealed weapons prohibitions, limits on the rights of felons and the mentally ill, laws forbidding the carrying of weapons in certain locations, laws imposing conditions on commercial sales, and prohibitions on the carrying of dangerous and unusual weapons. It stated that this was not an exhaustive list of the regulatory measures that would be presumptively permissible under the Second Amendment.

• In McDonald v. Chicago, 561 U.S. 742 (2010), 5-4, the Due Process Clause of the Fourteenth Amendment extends the Second Amendment’s right to keep and bear arms to the states, at least for traditional, lawful purposes such as self-defense.    Justia    Oyez

• In Caetano v. Massachusetts, 577 U.S. ___ (2016), 9-0, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.”  The court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment,” that stun guns are “dangerous per se at common law and unusual,” and that “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.”  The U.S. Supreme Court, per curiam, vacated, reiterating that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” and that it has rejected the proposition “that only those weapons useful in warfare are protected.”    Justia    Oyez

• In 2018, the Trump DOJ banned bump stocks, devices that can be used to make semi-automatic weapons fire as fully automatic weapons.  SCOTUS refused to weigh in on an appeal.

• In New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022), 6-3, the Roberts Court decided that state regulation was all but improper, that bearing arms in public for self-defense or any other reason or non-reason was Constitutionally proper, damn SCOTUS rulings prior to 2017.    Justia   Oyez

Here are my main “takeaways” from this brief study.

1. My study began with a web-page from the Library of Congress, which they have taken down.  Here is an excellent summary of SCOTUS firearms cases.
2. You might ask with real justification, “Are there no other SCOTUS decisions involving the Second Amendment?”  Do a Google (or Bing or Yahoo!) search for “Supreme Court decisions involving the Second Amendment.”  I was as surprised as you are.
3. For everyone (but Constitutional lawyers) who wants to research Supreme Court cases, I recommend the two sites that I have referenced for each of these cases, Oyez.org and Justia.com.
4. Each of my summary statements were lifted (borrowed, stolen, plagiarized) from their Justia.com page.
5. Notice that Heller and McDonald, the two most important cases separating Second Amendment rights from a well-regulated militia, were 5-4 decisions.
6. Note also that Heller specifically advances self-defense within the home as its expansion of the meaning of the Second Amendment.
7. McDonald re-asserts that Second Amendment rights apply to states too, not just the federal government.
8. Caetano opened the way for unusual firearms to have Second Amendment protection; but it ruled, 9-0, on a “stun gun,” not on any lethal weapons of mass destruction.
9. SCOTUS has not ruled on any of the regulatory issues that politicians like to play with.  Registration, background checks, gun show sales, semi-automatic and automatic firearms, suitcase-size nukes.  The only reason that federal and state firearms regulations have not been challenged before SCOTUS is the certainty that a comprehensive anti-regulation position would not prevail, even with a 6-3 conservative Court.
10. While I was putting my finishing touches on this piece, THIS (The Second Amendment Remedy) found its way into my Inbox.  Matthew Cooke is a flame-throwing liberal, but that does not mean he has his “facts” wrong.  In any event, it’s an interesting – and entertaining – piece, and it is worth a viewing.
11. I seem to have been plain WRONG re: item 9 immediately above; SCOTUS has come dangerously close to removing all firearms regulation, national or state-wide, common sense be damned.