The Supreme Court and the Second Amendment

by ALAIN L. SANDERS

About the only thing that can be said with certainty about the right to keep and bear arms is that the extent of that right is uncertain. For one thing, the wording of the Second Amendment is ambiguous. For another, the U.S. Supreme Court has handed down very few decisions in cases involving the Second Amendment. This has allowed politics to overtake most discussions of the Amendment, clouding popular understanding of what it may actually mean. Here is a brief survey of the few but major legal guideposts:

That there is a right to bear arms is undeniable, but that there is a context for its exercise is also undeniable. The wording of the Amendment makes the two propositions clear:

"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."

The right to bear arms is explicitly stated in the Second Amendment, but it is stated in the context of a well-regulated militia and the security of a free state. Whether that context is a limitation on the right, or an explanation of why the right exists, is a subject of much scholarly debate. Moreover, whatever the right may be, there is also debate as to whether the right is a right of the people or a right of the states.

The only modern U.S. Supreme Court case directly addressing the reach of the Second Amendment has held that the militia phrase operates as a limitation on the right. The decision, United States v. Miller, was handed down unanimously in 1939. In the ruling, the Justices upheld a National Firearms Act provision requiring the registration of sawed-off shotguns. Conservative Justice James McReynolds wrote for the Court: (Click here for text)

The last sentence is critical. It plainly indicates that the Second Amendment right "must be interpreted and applied with that end in view"--that is, the continuation and effectiveness of militia forces. How far any limits to that "end in view" are to operate, however, is left vague in the Miller decision. And subsequent Supreme Courts have not had occasion to provide any definitive clarification. The point to be noted, though, is that when faced with a direct question on the reach of the Second Amendment, the Court specifically decided that the right to bear arms is not absolute, is qualified by the responsibilities of maintaining militias, and may be regulated by Congress.

Another important factor in the small arms-control debate is federalism. Like all the other Bill of Rights Amendments, the Second Amendment was originally added to the Constitution to limit the power of the federal government only. Both the 1876 decision of United States v. Cruikshank and the 1886 decision of Presser v. Illinois recognized this and explicitly stated the Second Amendment limits the power of the federal government only. The basic liberties of the Bill of Rights did not become applicable to the states until after the adoption of the Fourteenth Amendment. Among other things, the Fourteenth Amendment prohibited the states from depriving "any person of life, liberty, or property, without due process of law." Through a tortuous, decades-long process, the Court eventually adopted the view that certain fundamental liberties in the Bill of Rights could be incorporated through the due process clause and turned into limits against the power of the states also. In separate decisions, the right of free speech, the right to freely exercise one's religion, the right to be free from unreasonable searches and seizures, and so on, were made applicable to the states by the Justices. The Second Amendment right to bear arms, however, has never been incorporated by the Court into the Fourteenth Amendment. The result is that today the Second Amendment, whatever it may mean, operates to restrict only the power of the federal government. The states remain unfettered by the Amendment's limitations. They remain essentially free to regulate arms and the right to bear them as they choose, in the absence of strictures in their own state constitutions and laws.

These then are the general legal parameters that presently define the right to bear arms. They establish that the Second Amendment, like all the other Amendments that constitute the Bill of Rights, is not absolute. The vague legal boundaries set down thus far answer some questions but they also leave many more open. None of the questions, however, carry the kind of easy answers that so many ardent gun rights and gun control activists so confidently assert.