The Second Amendment reads: “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.” These words have generated considerable controversy as part of the broader debate over gun control. Proponents of stricter controls generally contend that the amendment was meant to protect the collective right of states to maintain militia units. Their opponents respond that the amendment was intended to protect an individual right, noting that in the eighteenth century the militia was composed of the entire free white male population, who were expected to muster bearing their own arms.
This lively debate notwithstanding, the Supreme Court has only considered Second Amendment claims in a handful of cases. One reason is that for much of American history there were few regulations concerning firearms ownership. The settlers of colonial America were heirs to the English tradition of distrust of standing armies and professional police forces as dangerous to individual liberty. The English tradition of relying on the armed yeomanry both to enforce laws and protect the realm from external enemies was reinforced in the colonial era. The need to defend settlements against Native Americans (p. 892) and the armies of other European powers led to the deputization of the entire white population. Colonial statutes required all white men, with few exceptions, to both keep arms and bear them in militia formations. The American Revolution strengthened the traditional suspicion of standing armies and reinforced the view that militias composed of armed citizenry were the best way to guarantee both security and liberty.
Like the rest of the *Bill of Rights, the Second Amendment was an attempt to answer the objections of anti-Federalists who charged that the new Constitution would be used to deprive the people of rights traditionally considered among the rights of Englishmen. Statements by the amendment’s principal author, James *Madison, indicate that he saw the amendment as protecting the arms of the population at large.
The antebellum era brought no Second Amendment cases before the Supreme Court. The few firearms regulations that existed were primarily statutes in the slave states prohibiting African-Americans from possessing firearms. Some antebellum state statutes prohibited the carrying of concealed weapons, but those laws were not the subject of Supreme Court scrutiny. The Court’s holding in *Barron v. Baltimore (1833) that the Bill of Rights only limited federal action effectively precluded Supreme Court review of state restrictions. Although the Court did not rule on the amendment before the *Civil War, statements by Justice Joseph *Story and Chief Justice Roger *Taney expressed the then-prevailing view. Story in his Commentaries on the Constitution of the United States (1833) offered the opinion that the right to keep and bear arms provided a “strong moral check against the usurpation and arbitrary power of rulers” (pp. 746–747). Taney in Dred *Scott v. Sandford (1857) listed the right to own and carry arms as one of the rights of citizenship.
The aftermath of the Civil War brought a new dimension to the history of the amendment. The Black Codes, enacted in Southern states immediately after the war, limited the civil rights of the newly freed slaves, including the right to own firearms. These codes helped spur the passage of the *Fourteenth Amendment. A number of the framers expressed the view that the new amendment would require the states to honor the Bill of Rights, including the Second Amendment.
Despite this, the Court continued to adhere to the holding in Barron. The two principal postbellum cases involving Second Amendment claims, United States v. *Cruikshank (1876) and *Presser v. Illinois (1886), tell us at least as much about the Court’s early reaction to the Fourteenth Amendment as they do about the Second. In Cruikshank, the Court, in an opinion authored by Justice Joseph P. *Bradley, held that the Second and Fourteenth Amendments did not give Congress the authority to legislate against private interference with the right to bear arms. The Court in Presser declared that the Second Amendment only protected individuals from federal not state infringement.
The Court thus entered the twentieth century adhering to the view that the Second Amendment only limited federal power. That view, coupled with the virtual absence of federal firearms regulation, left the Court with little to say on the topic. That changed with the violence generated during Prohibition. Responding to the increase in organized crime in the 1920s and 1930s, Congress passed the National Firearms Act of 1934. The act, which provided for taxation and registration of automatic weapons and sawed-off shotguns, generated the principal Second Amendment case, United States v. Miller (1939). The unanimous opinion, authored by Justice James C. *McReynolds, noted that the Second Amendment did not protect the right of citizens to own firearms that were not ordinary militia weapons. As the defendant in Miller had been charged with possession of an unregistered sawed-off shotgun, the Court noted that it had no evidence that such a weapon constituted ordinary militia equipment.
Since Miller, the Supreme Court has not directly addressed the issue. *Lower federal courts have upheld firearms regulations against Second Amendment claims, sometimes applying the collective rights theory, at other times on the grounds that the amendment does not apply to the states. The Court has not reviewed these decisions. In the 1970s and 1980s a number of justices expressed support for the collective rights view in out-of-court statements or in dicta. More recently, Chief Justice William *Rehnquist, and Justices Antonin *Scalia and Clarence *Thomas, also in dicta or in out-of-court statements, appear to have endorsed individual rights readings of the amendment. The right to possess arms has also been listed among the rights of American people in some privacy cases. None of these statements can be viewed as definitive evidence of the Court’s position on the issue.
Despite the Court’s institutional reticence, a vigorous debate rages in other forums. Since the 1980s the amendment has been the subject of a growing body of literature in law and history journals. This debate has influenced jurists in some lower federal courts. In United States v. Emerson (2001), the Fifth Circuit recognized the Second Amendment as an individual right while sustaining a federal statute restricting firearms possession in cases involving domestic violence. In 2002 Attorney General John Ashcroft stated his view that the amendment protected an (p. 893) individual right while leaving broad room for firearms regulation.
It is not clear how much longer the Court can maintain its silence. Although overall restrictions on firearms ownership remain relatively slight, there are a number of fairly restrictive jurisdictions. The battle over gun control has also become a perennial feature of American political life. Widespread firearms ownership coupled with strong demands for stricter gun controls ensures that the debate over the Second Amendment will remain lively; it is a debate that the Supreme Court will ultimately be forced to enter.
R. J. Cottrol and R. T. Diamond, “The Second Amendment: Toward an Afro-Americanist Reconsideration,” Georgetown Law Journal 80 (1991): 309–361. D. B. Kates, Jr., “Handgun Prohibition and the Original Meaning of the Second Amendment,” Michigan Law Review 82 (1983): 204–273. S. L. Levinson, “The Embarrassing Second Amendment,” Yale Law Journal 99 (1989): 637–659. J. L. Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (1994).
Robert J. Cottrol