”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.”
Those words, written as the Second Amendment to the United States Constitution, have been woven into the nation’s identity and governance since ratified in 1791, when muskets and long rifles were common weapons – and through modern times, when AR-15s can be used to fire dozens of bullets in a minute.
James Madison, then a member of the U.S. House of Representatives, introduced the proposal that became the Second Amendment in the Bill of Rights.
A militia, at the time, could be used to help defend the nation if needed. But Madison was also aware that some citizens had concerns about the newly created government with its standing army.
“Americans need not fear the federal government because they enjoy the advantage of being armed, which you possess over the people of almost every other nation,” wrote Madison, who would become the republic’s fourth president.
Founding fathers debated what the language should be.
The text went through multiple drafts, beginning with Madison’s original version as published in the Gazette of the United-States on June 13, 1789.
“The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be obliged to render military service in person,” Madison wrote.
Discussions about the meaning of the Second Amendment still take place today, with opinions often varying based on politics, geographic environment, current events, legal cases and personal perceptions of firearms.
“I think that’s par for the course with the United States Constitution,” Joseph Blocher, co-director of the Duke Center for Firearms Law, said. “We are, all these years later, still having fundamental disagreements about what rights are protected by due process. Look what’s happening with the right to abortion in the Supreme Court (of the United States) right now. We have still-deep disagreements about what kinds of things constitute speech protected by the First Amendment. Look at all the disagreements about campaign finance, for example. I think that part’s kind of normal.”
For some, the words “shall not be infringed” mean no laws can be passed that limit a person’s ability to own firearms or ammunition. Others see “a well regulated Militia” as permitting gun control and the right to own a firearm being connected to a military purpose.
Randy Gibson, the former executive director of the Texas State Rifle Association, said the issue is “one of those fluid things for a lot of gun owners, honestly.”
“There are some that are very hardcore,” Gibson said. “And there are others in the country that are willing to give and take a little bit. But, overall for gun owners, the vast majority of gun owners really have the attitude of if you’re not a criminal and you’re an honest, law-abiding citizen, then it doesn’t matter what you have because you’re going to keep the law, you’re not going to do anything wrong.”
Gibson, a National Rifle Association Golden Eagle – a designation reserved for 1% of the organization’s elite Second Amendment scholars, described the importance of the law by saying, “the Second protects the rest, meaning that the Second Amendment is the one that protects all the other amendments.”
David Bernstein, executive director of George Mason University’s Liberty & Law Center at the Antonin Scalia Law School, described the Second Amendment as open to interpretation.
“It’s anachronistic in that sense that it protects a right,” Bernstein said. “The concern was that the framers didn’t want the federal government to be able to disarm the states and the state militias. The militia, though, was sort of considered to be like every adult male citizen.
“So how you interpret that in the modern time when there aren’t militias anymore – that’s not the concern – I think is ambiguous.”
‘Any lawful firearm’
Until 2008, the Supreme Court never addressed in depth what the “militia” aspect meant to the Second Amendment or if private gun ownership was allowed.
Then came District of Columbia v. Heller.
Dick Heller, a special police officer in D.C., challenged the district’s federal Firearms Control Regulations Act of 1975 that banned residents from owning handguns, prohibited possession of unregistered firearms, and required that weapons be unloaded, disassembled or bound by a trigger lock when in a residence.
The court, in a 5-4 decision, ruled: “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense,” in a majority opinion written by Justice Antonin Scalia.
“Heller changed the constitutional law to fit with the views of the vast majority of Americans,” said Blocher, who as a young attorney, helped represent the district in the landmark case. “Heller did so by citing a lot of historical material, so it’s an originalist opinion, meaning it’s premised on the idea that this is what the framers, or the founding generation, understood themselves to be doing in 1791.
“Now Justice (John Paul) Stevens writes a dissenting opinion, also from an originalist viewpoint, pointing at the same materials as the majority, and says, ‘No, the militia-based view is correct.’ People still dispute the history here.”
Josh Fleitman, CeaseFirePA’s western Pennsylvania manager, said Heller was a “radical departure from centuries of legal precedent and the consensus of legal thought” and a “dangerous reinterpretation that has led to the weakening of gun laws across the country.”
The majority of justices also determined that “like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.”
Justices continued: “The Court’s opinion should not 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.”
Blocher said he thinks both sides of Heller are “really important.”
“Sometimes people focus just on the first part and they leave out the second part and treat it like it’s some sort of immovable obstacle to gun regulation,” he said. “And it’s really not. And the courts haven’t treated it that way.”
Groups, such as the Giffords Law Center, look at the second part of the opinion as providing the capacity for governments to regulate guns.
“The Second Amendment was never interpreted to confer an individual right until 2008, the Scalia decision in Heller,” said Esther Sanchez-Gomez, a senior litigation attorney for the Giffords Law Center, a group that advocates for gun control measures. “As an organization, we read Heller to give governments – the federal, state, local governments – a lot of space to regulate for public safety.
“In that decision, Scalia made clear in Heller that there are a lot of spaces where guns should not exist and that the government has the power to regulate firearms, but that individuals have a limited and regulable right to have firearms in their homes for self-defense. He specifically mentions handguns, as a home defense weapon.”
Political power, actions
The discussion about private ownership compared to firearm use for a militia is “kind of done and dusted after Heller,” in Blocher’s opinion.
“That’s not the main area where things are being hashed out now,” Blocher said. “The main questions now are (about) we have this individual personal right, what kinds of regulations are consistent with that right? That’s the more immediate interesting conversation.”
Both the Supreme Court and Congress have recently weighed in on the issue.
Last month, in New York State Rifle & Pistol Association Inc. v. Bruen, the court ruled that citizens have a right to carry firearms outside of their homes.
New York law required applicants to have “proper cause” for wanting a concealed carry license. The state’s courts interpreted that to mean an individual had to show a special need for a permit, more than just generally wanting to protect themselves or their property.
The court, by a 6-3 ruling, held that “New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense,” in a majority opinion written by Justice Clarence Thomas.
Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented.
Later, the U.S. Senate (by a 65-33 vote) and U.S. House of Representatives (234-193) passed the $13 billion Bipartisan Safer Communities Act, legislation proposed following several recent mass shootings, including when an 18-year-old male killed 19 children and two teachers in a Uvalde, Texas elementary school, and 10 people were shot to death in a Buffalo, New York grocery store.
President Joe Biden, a Democrat, signed the bill into law on June 25.
• expands background checks for buyers under the age of 21
• closes the so-called “boyfriend loophole” by including people convicted of domestic violence against a person in a dating relationship on the list of individuals prohibited from purchasing a gun
• requires a person who repeatedly buys and sells guns “to predominantly earn a profit” to register as a Federal Firearm Licensee
• provides $750 million for states to create crisis intervention programs, such as red flag laws
• takes steps to curb illegal firearms trafficking
• increases children and family mental health services.
Fredrick Vars, a law professor at the University of Alabama and co-author of the book “Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights,” analyzed the role politics and geography can play in creating gun laws.
“Every (state) gets two senators, even though they may not have very many people and they are in some of these states that are overwhelmingly conservative,” Vars said. “Their senators – effectively even a minority of senators – have veto power over gun regulation. So to that extent, I think over-00p0-representation of the South and kind of the Mountain West in the Senate is absolutely fundamental to why it takes a generation before we get federal legislation.”
“Rather than limiting law-abiding Americans’ Second Amendment rights, I support addressing the root causes of gun violence, securing our schools, and enforcing the laws we already have on the books that keep guns out of the hands of criminals and those who wish to do harm,” said U.S. Rep. Guy Reschenthaler, a Pennsylvania Republican, whose 14th District consists of rural and small-town communities in the commonwealth’s southwest corner.
Reschenthaler said he believes the law “impedes our Second Amendment rights and the due process guaranteed by the Constitution.”
He added: “The Second Amendment is one of (the) … rights guaranteed in the U.S. Constitution. The phrasing is precise and unequivocal in preventing the government from infringing on the right of ‘the people’ to keep and bear firearms.”
The National Rifle Association has spoken out against the Bipartisan Safer Communities Act.
“The NRA will support legislation that improves school security, promotes mental health services, and helps reduce violent crime,” according to the organization’s released statement. “However, we will oppose this gun control legislation because it falls short at every level. It does little to truly address violent crime while opening the door to unnecessary burdens on the exercise of Second Amendment freedom by law-abiding gun owners.”
Gibson pointed out that there are already thousands of gun laws on the local, state and federal levels.
“For gun owners’ mindset, No. 1 is enforce the laws that are on the books,” Gibson said. “That’s No. 1 because there are already so many laws set up that should address those things, but again they’re not enforced. That’s the first one. No. 2, it is imperative that we address the mental health issues in this country. The whole state of our society has turned so divisive and violent.”
There have been more than 340 mass shootings – defined as “a single outburst of violence in which four or more people are shot” – so far this year in the United States, according to massshootingtracker.site.
In 2020, riots and looting erupted in some major cities across the nation during protests that occurred in response to a Minneapolis police officer killing George Floyd, an unarmed Black man.
Those events highlight some of the differences in the debate over gun regulation.
This year’s two mass shootings that gained the most national attention took place in Uvalde, Texas, and Buffalo, New York.
Throughout the years, there have been similar slaughters in Las Vegas, Orlando, Virginia Tech, Sandy Hook Elementary School in Connecticut, El Paso, Parkland, Columbine, Pittsburgh and countless other locations – all using semi-automatic weapons.
Whether through cause or correlation, the number of mass shootings in the country went down during the period of the 1994-2004 federal assault weapons ban, which included AR-15s, and has increased since the law was allowed to expire, according to a recent article written by Michael Klein, a clinical assistant professor of surgery at New York University, and published by The Conversation, a nonprofit news agency.
That raises the question as to why the increase has occurred.
“It’s actually not a hard question to answer,” Fleitman said when asked what causes the large amount of mass shootings in the United States, compared to other nations. “It’s very simple. It’s the guns. Every other country in the world has people who have mental health problems. Every other country in the world has kids who play video games with violence.
“There’s one thing that makes us different. We have unfettered access to weapons of war in this country. Every other advanced country in the world does not, and they don’t see the massacres that we do, on the scale that we do.”
In a different type of gun use, Bernstein pointed to how multi-racial groups used firearms as a deterrent to looters and rioters in their neighborhoods during the 2020 unrest.
“There are people who banded together, with their weapons, and stood in front of those stores,” Bernstein said. “And those stores didn’t get thrashed, they didn’t get vandalized. In some cases, there were whole blocks, or whole areas of a neighborhood where citizens came together informally – I’m not talking like formal militias or anything, but informally – and protected their property.”
He also pointed to examples where police were told to stand down during the riots and when law enforcement officers delayed going into the school room where the Uvalde shootings were occurring.
‘State of rural America’
America’s debate over guns obviously will not end any time soon.
For many people in urban centers and increasingly other parts of the country, firearms are about violence, death and human suffering.
But, in many small towns and rural areas, such as where Gibson grew up in Oklahoma, guns are about hunting and protection from criminals or animals.
Gibson said “there are a lot of things that can be done” to address gun violence.
“But the trouble is everybody wants to blame this inanimate object,” he said. “They don’t want to look at the real problems that we have in our society. And, again, that’s something that drives gun owners crazy. Everybody feels the need, ‘Well, we have to do something. Even if it’s not going to work, we have to do something.’ And I’ve actually had people tell me that.”
Bernstein discussed the possibility of making a “more strongly established constitutional right to bear arms” – but that also contained clear regulations, regarding age requirements, criminal records, mental illness, etc.
“I think that would actually make it easier to compromise on other issues,” Bernstein said. “Because once you have that firmly established right, you don’t have to worry so much that regulation is going to be a first step toward confiscation.”