The Second Amendment to the US Constitution states: “A well-regulated militia being necessary to a free State, the right of the people to keep and bear arms shall not be infringed.” Many people claim that these words guarantee their right to own an AR-15. They’re wrong.
The meaning of the Constitution is determined by the Supreme Court. It never overturned the federal assault weapons ban that was in effect from 1994 to 2004. The most recent Court decision on the Second Amendment, Heller v. District of Columbia (2008), concerned a DC law prohibiting the possession of handguns.
The Supreme Court’s decision about handguns featured prominently the “original understanding” of the Second Amendment, what the people who originally passed it thought it meant. Disagreements among the justices, covering 154 pages, largely concerned what Congress in 1791 intended for the relationship between a “well-regulated militia” and “the right of the people to keep and bear arms.”
Imagine someone declaring: “Helping the poor being necessary to true Christianity, we name Mr. X Christian of the year.” We assume that the justification for Mr. X getting his award is the help he has provided to the poor. Similarly, it would seem that contributing to a “well-regulated militia” is the justification for “the right of the people to keep and bear arms.”
What’s more, the militia in question would have to be state sanctioned, because private militias are illegal in all 50 states. In Nevada, for example, the home state of the Oath Keepers, state law prohibits “any body of individuals other than municipal police, university or public school cadets or companies, militia of the State or troops of the United States, to associate themselves together as a military company with arms without the consent of the Governor.”
Even on this understanding, however, private individuals may still have a right to keep and bear arms. The original understand could well have been that because an effective militia depends on citizens being prepared to defend the state on a moment’s notice, like the Minute Men, private individuals would need a right to bear arms independent of militia membership so they could join it whenever their support was necessary. This seems a plausible understanding at that time, but not so much today when effective military contributions require at least months of training.
In order to uphold the individual’s right to bear and keep arms, therefore, Justice Scalia, in his majority opinion, cites an agreement in 1688 between English Protestants and the incoming royal family headed by William and Mary. The new royal family was required to guarantee the right of individual law-abiding Protestants to keep and bear arms. Scalia claims that our founders understood this right to be granted in the Second Amendment, a right that has no necessary connection to possible participation in a militia. So Mr. Heller has a constitutional right to bear arms, and DC is violating that right with its gun restrictions.
Justice Stevens points out in his dissent, however, that in Marbury v. Madison (1803), the case that instituted judicial review of legislation, Chief Justice John Marshall wrote: “It cannot be presumed that any clause in the constitution is intended to be without effect.” This implies that reference in the Second Amendment to state militias must be important to the meaning of the Amendment, suggesting again that the right to bear arms is related to their need in state militias.
The wider context of the Amendment leads to the same conclusion, according to Stevens. The Constitution provides for a federal army and navy, as well as state militias that could be called up by the federal government when needed. Delegates to the Constitutional Convention feared the overweening power of the federal government, hence the Second Amendment’s guarantee that the federal government couldn’t disarm state militias and run roughshod over state’s rights. Thus, reference to the militia is central to the Amendment.
Finally, if James Madison, who drafted the Amendment that was eventually adopted, had wanted to guarantee to individuals the right to keep and bear arms independent of participation in a militia, he had only to copy New Hampshire’s proposal for the Amendment: “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.”
I think Stevens has the better case than Scalia, but that doesn’t really affect the cogency of the claim that the Amendment is violated whenever the government restricts gun ownership. Scalia’s majority opinion grants the right only to have a functional handgun in the home for self-defense, and explicitly grants even this right only to “law-abiding, responsible citizens….” So, if you think you have a Constitutional right to have an AR-15, you’re wrong. Those who claim constitutional rights should study the Supreme Court and the Constitution that they say they revere.
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