Second Amendment: Not Constitutional Dysfunction, But Necessary Safeguard

When Jim Fleming asked me to participate in this Symposium, and more specifically to be part of the Second Amendment panel, I must confess that I was a bit puzzled. There are many parts of our political and constitutional system that are arguably dysfunctional, meaning that our late-eighteenth century Constitution prevents the achievement of policy results that are desirable in our early-twenty-first century present. I do not see, however, the Second Amendment as one of those constitutional features. As a result, this Essay challenges two assumptions: first, that the Second Amendment historically has provided much of a barrier to a desirable policy result, radical gun control or perhaps more accurately gun prohibition; and second, that such a result is indeed desirable.For the first proposition, it is fair to say that until the 2008 case of District of Columbia v. Heller1 and its 2010 companion McDonald v. City of Chicago,2 the federal courts had been essentially absent from the business of looking at the Second Amendment and seriously asking what protection it provides, as well as what limitations it places on individuals' rights to have arms. This was not, as some have erroneously insisted, because there was some universal agreement that the Amendment, which speaks of a well-regulated militia and the right of the people to keep and bear arms, applied only to militias and not to individuals in their private capacities. Before Heller, the Supreme Court had recognized the individual nature of the right to arms on those rare occasions when it had referenced this right or the right to have arms generally - including Chief Justice Taney's discussion of the rights of citizens and the implications of citizenship in Dred Scott; Chief Justice Waite's examination of the distinctions between federal restrictions and state and private action in Cruikshank; Justice Wood's refusal to apply the Second Amendment to state action in Presser v. Illinois; and Justice McReynolds's opinion in United States v. Miller, which is best read as recognizing an individual's right to have arms while also reaffirming the by-then long recognized principle that some arms are within the ambit of constitutional protection and others are not.3 The individual nature of the right was a largely unquestioned principle in the Court's jurisprudence. Indeed as late as 1961 in Justice John Marshal Harlan II's dissent in Poe v. Ullman, it was considered rather unremarkable.4Still the Second Amendment would not receive definitive recognition, including a recognition that it provided real limitations on firearms regulation, until Heller, some 217 years after its initial adoption. This lack of judicial engagement occurred for two reasons. The first reason is the intellectually haphazard way the Court has gone about the business of incorporation or applying the Bill of Rights to the states through the Fourteenth Amendment. There is strong evidence that the drafters and ratifiers of the Fourteenth Amendment intended and understood that, by the passage of the Fourteenth Amendment, they were forever altering the old federalism in which the federal Constitution had little or nothing to say concerning the rights of the citizen in the face of state power.5 The post-Fourteenth Amendment Court early on rejected the new constitutional order and in many ways, McDonald being but the latest example,6 has spent nearly a century and a half trying to revive the constitutional goal that Jonathan Bingham and Jacob Howard7 tried to advance in 1866.8 In any event, much of the jurisprudence denying Second Amendment claims alleging infringement of the right to keep and bear arms, was rooted in the view that the Reconstruction Amendment did not protect the citizen from state restrictions on the use of firearms.9 As most restrictions historically, and indeed in the present, come from state legislatures and not Congress, that limitation was of critical importance.And there was, of course, another reason that the courts became increasingly unwilling to apply the Second Amendment and seriously examine the extent to which it posed limitations on firearms regulations. …