SECOND AMENDMENT (Update)

The Second Amendment provides: "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." Like the Roman god Janus, the Second Amendment appears to have two faces, each casting its gaze in a different direction. For others, it may call up the different image of an Escher print. What one sees in the Second Amendment seems to change before one's eyes. Nor has anything the Supreme Court yet said about the Second Amendment resolved its uncertainty. After two centuries of judicial opportunity for the Court to speak, to say something reasonably definitive, virtually nothing significant has been settled or laid to rest.

The right to keep and bear arms, confirmed in the amendment, was confirmed as a general right. That is, the Second Amendment declares the right to keep and bear arms belongs to "the people," and not to some more limited class. Early authorities expressed no confusion or disagreement on this point. As the leading nineteenth-century treatise writer on the Constitution, thomas m. cooley, observed in 1880:

The [Second] [A]mendment, like most other provisions in the Constitution, has a history. It was adopted with some modification and enlargement from the English Bill of Rights of 1688. The Right is General [i.e., shared by all, rather than some particular class]. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose.

And as recently as 1994, after reviewing an even wider assortment of materials, historian Joyce Malcolm summarized her conclusions in agreement with Cooley's observations, further explaining the context and the manner in which the Second Amendment was framed:

The Second Amendment was meant to accomplish two distinct goals, each perceived as crucial to the maintenance of liberty. First, it was meant to guarantee the individual's right to have arms for self-defence and self-preservation. Such an individual right was a legacy of the English Bill of Rights. The clause concerning the militia was not intended to limit ownership of arms to militia members, or return control of the militia to the states, but rather to express the preference for a militia over a standing army.

These views, shared by a majority of scholars, also accord with the views of Justice joseph story. Indeed, in one respect, Story, who had been appointed to the Court by james madison in 1811 and published his Commentaries on the Constitution in 1833, went further in emphasizing the foundational nature of the Second Amendment, with respect to the right of the people to have personal arms beyond reach of control by government, going so far as to declare:

The right of the citizens to keep, and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist, and triumph over them.

The Second Amendment, in Story's view, was thus not a mere restatement of the desirability of a well-regulated militia, followed by an uncertain vague reference. The Second Amendment, rather, while strongly endorsing a well-regulated militia (in preference to the maintenance of a standing army), was also emphatically a restraint on the reach of government, even as Story observed was true of other clauses in the bill of rights. Nor was there any suggestion, from any source, at the time the amendment was under discussion or review, of some more strained or compromised view. It was only in subsequent decades that a vastly more restricted version of the Second Amendment came to be advanced.

In United States v. Miller (1939), in the course of upholding a federal statute forbidding interstate transportation of an unregistered short barrel ("sawed-off") shotgun, the Court construed the Second Amendment as inapplicable to the case, declaring that there was no evidence in the record that this type of arm was "any part of ordinary military equipment" that could "contribute to the common defense."

To be sure, the Court has gone no further since that time, nor did it, in Miller, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment. It did, nevertheless, thus suggest that whatever the protection provided by the Second Amendment, it may apply only to such arms as could count as "ordinary military equipment," and, since Miller, it is widely assumed that this is so. Yet, it has been argued that there is no reason why the citizen's right to keep and bear arms should necessarily encompass all arms that might today be seen as a part of "ordinary military equipment," or why, in turn, the limited usefulness of a particular arm as part of ordinary military equipment should on that account strip it of all Second Amendment protection from government forfeiture or ban. But the subject has not been critically reexamined in the courts, and this holding in Miller currently stands.

Lower federal courts, however, have since 1939 gone far beyond anything suggested by the Court in Miller. They have seized upon the Miller case to reduce the amendment's scope nearly to the vanishing point. Indeed, an opinion as recent as July, 1997 from the United States Court of Appeals for the Eleventh Circuit illustrates the near collapse. In the view of the prevailing lower court judges, the Second Amendment is solely a restraint on Congress insofar as it might seek to forbid even those (few) persons in active training and service of an active state-regulated militia, to possess such military-style arms they are authorized to have as part of that training and service, but nothing more. These courts thus very narrowly construe the Second Amendment purely as a limited states ' right amendment, claimable only by persons in active, controlled state guard or militia units, which units in fact are already under nearly complete federal control anyway, pursuant to powers vested in Congress in Article I, section 8 (clause 16 grants power to Congress to provide for "organizing, arming, and disciplining the Militia," and such "training" the states are authorized to provide, shall itself take place "according to the discipline prescribed by Congress").

The "reasoning" imputed to the Second Amendment by these courts is labored, but essentially this: That, without this amendment, Congress might have sought to justify the establishment of a permanent, large standing army, by prohibiting members of well-regulated state militias from possessing arms—albeit state militias already themselves heavily subject to national regulation and control. This is, of course, a possible "reading" of the Second Amendment, albeit a reading leaving it rather empty of substance, and giving it virtually no useful work to do. Still, it is a reading and source of real encouragement to growing numbers of citizens appalled by the high incidence of gun-related deaths in the United States. Whether it will be sustained by the Supreme Court remains to be seen.

William W. Van Alstyne
(2000)