The Second Amendment is under attack – and so is the Constitution.
According to the Federalist Society, oral argument in the seminal case of District of Columbia v. Heller, Supreme Court Justice Anthony Kennedy asked counsel for the government whether the Second Amendment’s second clause—“the right of the people to keep and bear arms” concerned something besides the militia.
When counsel replied that those words referred only to “a military context,” Justice Kennedy appeared to disagree by asking the further question, “It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?” This question suggested that he read the Amendment to protect individual rights. But it also implied that the right extends outside the home, where unfriendly humans and animals would be encountered.
On April 19, 1775, a group of Americans bearing their own firearms stood before a contingent of British Redcoat soldiers representing the greatest military power on Earth. These Americans did not bear arms in their living rooms or before their fireplaces but carried and bore their private firearms prominently in public—specifically, on the town common of Concord, Massachusetts.
In Ralph Waldo Emerson’s words: “Here once the embattled farmers stood / And fired the shot heard round the world.” Thus was launched the American Revolution and, before long, a new country that became the United States of America.
The Founders who drafted the Bill of Rights in 1789 recalled the British efforts to confiscate private firearms from the American colonists as well as the use of such firearms to start and help win the American Revolution. They were also well aware that the same firearms were used for protection against persons and wild animals that would do harm. They would thus enshrine in the Second Amendment the right to bear arms.
The Second Amendment guarantee that “the right of the people to . . . bear arms, shall not be infringed” protects the liberty to carry firearms outside the home for self-defense or other lawful purposes.
The right to bear arms has deep roots in America’s history and tradition. It was considered a right of Englishmen, and the American Founders extended its scope, as they did with other rights recognized in the state and federal constitutions. In the antebellum period, going armed was no offense unless it was done in a manner and with the intent to terrorize others.
State laws prohibiting the carrying of concealed weapons were upheld on the basis that open carry was lawful. Slaves were generally prohibited from having arms altogether, and in the Southern states, free persons of color were prohibited from keeping or carrying arms unless they had a license issued at the discretion of the government. After the Civil War, the Fourteenth Amendment sought to extend the right to bear arms and other fundamental rights to all Americans.
Second Amendment literally guarantees the right to “bear arms” is in litigation, mostly in the federal courts.
The U.S. Supreme Court has yet to speak directly on whether “may issue” regimes in these outlier states are constitutional, but in District of Columbia v. Heller (2008)[6] and McDonald v. Chicago (2010)[7] it had a lot to say about the meaning of the right to bear arms. The lower courts upholding carry restrictions have misapplied these precedents to state laws that limit the right to bear arms to a privileged elite. Well before those decisions, state courts decided numerous cases on the nature of the right to bear arms, most often under state bills of rights.
What could be confusing about the prohibition on “the infringement” of “the right,” not the privilege, of “the people,” not a tiny elite, to “bear arms”?
While the right was constitutionalized in state bills of rights and the Second Amendment, going armed in a manner that terrorized others was considered an offence under certain statutes and the common law. Some states restricted the carrying of concealed weapons, but open carry was recognized as a constitutional right.
The Fourteenth Amendment was proposed and ratified to protect the right to keep and bear arms from state violation, and the Civil Rights Act of 1871 provided for enforcement of the right. The courts responded with mixed results to carry bans that were enacted during Reconstruction and in the Jim Crow and Anti-Immigrant eras.
The U.S. Supreme Court’s opinions in Heller, which held that to “bear arms” means to carry them and rejected the use of interest balancing tests by courts; McDonald, which found the right protected under the Second Amendment to be fundamental and not a second-class right; and Caetano, which assumed the right to exist outside the home.
The Second Amendment unequivocally guarantees the right of “the people” to “bear arms”: “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.” This guarantees not only the right to “keep” arms, such as in one’s house, but also to “bear” arms, i.e., to carry arms without reference to a specific place. If the framers meant to protect nothing more than keeping arms in the home, there would have been no point in including a right to bear arms.
When a provision of the Bill of Rights is restricted to a house, it says so—the Third Amendment’s restrictions on quartering soldiers “in any house” do not apply to buildings that are not houses. Nothing in the Second Amendment’s text limits bearing arms to one’s house, a place where the right to “keep” arms fits more appropriately. The Fourth Amendment mentions houses, but also refers to other entities or things in protecting “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .”
The unitary phrase “the right of the people” appears in the First, Second, and Fourth Amendments. The right to assemble and petition the government for a redress of grievances, and security from unreasonable searches and seizures, are rights of the people, and may not be limited to a select few determined by government officials to have a special need.
So too, “the right of the people to . . . bear arms” extends to the populace at large and is not restricted to a subset of people favored by government to bear arms. “The people” who have “rights” reappear in the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Whatever those rights are, they extend to the people at large and may not be denied or disparaged to all except an elite chosen by government.
But “the right of the people” to assemble, bear arms, be secure from unreasonable searches, and retain unenumerated rights is not limited to a subset of the people chosen by the government to enjoy special privileges.
Despite that clear text, a number of courts engage in judicial hocus pocus, call it “intermediate scrutiny,” and hold that “the people” in fact have no “right” to bear arms.
But in the words of Justice Frankfurter, “To view a particular provision of the Bill of Rights with disfavor inevitably results in a constricted application of it. This is to disrespect the Constitution.”