What the Courts Really Say About the Second Amendment

The Second Amendment is surrounded by an unusual amount of fog for a plainly written clause of a constitution. While some of this is attributable to an apparent contradiction in its language--a tension between "Militia" and "people"-- much more of the confusion is attributable to hype created by both sides in the gun dispute. The gun control people don't want the word "people" to mean anything and the gun rights people don't want the word "militia" to mean anything:

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 gun rights people believe that "Militia" doesn't actually mean anything, because it refers only to the whole body of the people, thereby giving every citizen the right to bear arms. The gun control people, by contrast, believe that nothing in the Second Amendment gives any individual the right to own a gun. At most, it gives the states the inalienable right to form state militias--effectively it protects the National Guard. (Amusingly, some pro-gunners thing the words "well-regulated" only means that the militiamen are able to shoot straight, not that they are subject to any government discipline.)

The best indication of what any law, including a Constitutional provision, means, is what the courts say it means. Our federal courts, including the Supreme Court, have spoken plainly and unanimously on the meaning of the Second Amendment. It is astonishing that no-one knows this. Even most books on either side of the issue fail to cover court decisions. The legal meaning of the Second Amendment tends to get lost in the hype. The pro-gun forces especially would like to ignore that there is any contemporary jurisprudence on the topic. Most NRA members probably don't know that the organization always bases its litigation on constitutional grounds such as overbreadth and vagueness--it never argues that a gun control law offends the Second Amendment, because it knows that, under the present state of the law, it would lose.

Before I tell you what the courts have said, lets dispose of another issue. Pro-gun tracts exhaustively examine-- sometimes for hundreds of pages--statements made by figures such as Thomas Jefferson, James Madison, George Washington, Tom Paine, etc. Assuming for the sake of argument that the Founders solidly believed in an individual right to bear arms against an oppressive government--it may be so--why does constitutional analysis not stop at the Founders' intentions?

The answer is quite simple: this is not the way American law works. Though there are conservative thinkers, including some law professors, who think original intent is the only thing that counts, they are a tiny minority in a crowd of lawyers, politicians, judges and citizens who think that the Constitution is a living document. Legal philosopher Ronald Dworkin put it best: the Constitution is a story being written collectively by each generation of judges. Each judge has a responsibility to respect the characters and plot left her by her predecessors, but brings the story up to date in terms of plot and character development. This is how we interpret the First, Fifth and Fourteenth Amendments; freedom of speech, as in the recent CDA decision, is constantly being extended to media of which the Founders never dreamed; why wouldn't we adapt the Second Amendment to changing circumstances the same way?

In the case of Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), decided last April 5th, the plaintiff had been denied a concealed carry license by various city and county authorities in California. He sued on the grounds that the denials were an infringement of his Second Amendment rights.

The federal appeals court confirmed that Hickman had no standing to bring the lawsuit. In brief, the concept of "standing" deals with whether the party bringing a suit has a real grievance of a nature that the law can recognize. The question in Hickman's case, as stated by the appeals court, was "whether the Second Amendment confers upon individual citizens standing to enforce the right to keep and bear arms." The court concluded that Hickman could show no legal injury, and dismissed his case.

The court said: "Because the Second Amendment guarantees the right of the states to maintain armed militia, the states alone stand in the position to show legal injury when this right is infringed."

Hickman had argued that "individuals have a right to complain about the manner in which a state arms its citizens." The court failed "to see the logic in this argument":

The Second Amendment creates a right, not a duty. It does not oblige the states to keep armed militia, or to arm their citizens generally, although some states do preserve, nominally at least, a broad individual right to bear arms as a foundation for their state militia....Even in states which profess to maintain a citizen militia, an individual may not rely on this fact to manipulate the Constitution's legal injury requirement by arguing that a particular weapon of his admits some military use, or that he himself is a member of the armed citizenry from which the state draws its militia....Because the right to keep an armed militia is a right held by the states alone, Hickman has failed to show "injury" as required by constitutional standing doctrine.

The appeals court was not making new law; it merely followed United States v. Miller, 307 U.S. 174 (1939), the Supreme Court's definitive statement on the Second Amendment. Miller was indicted for carrying a sawed-off shotgun across state lines, and argued that the Second Amendment gave him the right to possess such a weapon. The Court held that "[i]n the absence of any evidence tending to show that the possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." The Hickman court, citing this language, noted that "it is only in furtherance of state security that 'the right to keep and bear arms' is finally proclaimed."

In a very significant footnote, the Hickman court also noted that "the Second Amendment is not incorporated against the states." What this means is that Second Amendment rights are not among the federal rights that were extended to the states by the Fourteenth Amendment. Prior to passage of the Fourteenth Amendment, states were not legally bound by anything in the bill of rights. Therefore, behavior that would be illegal, for example, under the First or Fifth Amendments if engaged in by the federal government was legal if carried out by state governments. The court is saying that the Fourteenth Amendment granted citizens no right to complain of Second Amendment violations by state governments.

Pro-gun forces certainly believe that 20th century Second Amendment jurisprudence is dead wrong, just as I believe that court decisions upholding the constitutionality of the Communications Act of 1934 are dead wrong. What we are both saying is that the courts, in a given instance, wrote the wrong story. We are entitled to our opinions. The perniciousness of the pro-gun forces, particularly the NRA, is not that they disagree with the courts, but that they lie to their members and to the public about what the law says. The success of the NRA and similar organizations in their disinformation campaign is evident in the fact that so many otherwise reasonable citizens believe that the Second Amendment, despite its reference to the militia, guarantees an individual right to keep and bear arms. No-one knows that the highest federal courts in the land have consistently held that the Second Amendment is only a right held by the states against the federal government.