How the NRA Rewrote the Second Amendment

The Founders never intended to create an unregulated individual right to a gun. Today, millions believe they did. Here’s how it happened.

"A fraud on the American public.” That’s how former Chief Justice Warren Burger described the idea that the Second Amendment gives an unfettered individual right to a gun. When he spoke these words to PBS in 1990, the rock-ribbed conservative appointed by Richard Nixon was expressing the longtime consensus of historians and judges across the political spectrum.

Twenty-five years later, Burger’s view seems as quaint as a powdered wig. Not only is an individual right to a firearm widely accepted, but increasingly states are also passing laws to legalize carrying weapons on streets, in parks, in bars—even in churches.

Many are startled to learn that the U.S. Supreme Court didn’t rule that the Second Amendment guarantees an individual’s right to own a gun until 2008, when District of Columbia v. Heller struck down the capital’s law effectively banning handguns in the home. In fact, every other time the court had ruled previously, it had ruled otherwise. Why such a head-snapping turnaround? Don’t look for answers in dusty law books or the arcane reaches of theory.

In 1939, the Supreme Court of the United States in Miller denied the claim of a defendant that certain provisions of Federal law regulating the possession of certain firearms was Unconstitutional. The reason the Court denied the claim is crucial to the current debate over Federal and State regulation of firearms, and the meaning of the Second Amendment according to the Supreme Court. [By the way, the Heller decision did not overturn or modify the decision in Miller, which therefore remains binding precedent. The two decisions are completely compatible.]

To understand the Court's decision in Miller, one must first comprehend how the Miller Court interpreted the Second Amendment:

SCOTUS:

"The Constitution, as originally adopted, granted to the Congress power
--
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
The Militia which the States were expected to maintain and train is set in contrast with Troops which they [p179] were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
Blackstone's Commentaries, Vol. 2, Ch. 13, p. 409 points out "that king Alfred first settled a national militia in this kingdom," and traces the subsequent development and use of such forces." ~ United States v. Miller (No. 696) 26 F.Supp. 1002, reversed. [Decided: May 15, 1939]

If that's how the Court interpreted the Second Amendment, then why did it deny the defendant's claim that the Federal laws regulating firearms at the time were Unconstitutional?

The reason was clearly not, as has often been falsely claimed, that the Miller Court concluded that the Second Amendment did not grant an individual right to keep and bear arms.

Instead, the Court explained its reason this way:

"In the absence of any evidence tending to show that 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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158."

In other words, no evidence had been entered into the official record of the case proving that the weapon possessed by the defendant (a shotgun with a a barrel length of less than 18") was "any part of the ordinary military equipment, or that its use could contribute to the common defense."

The Court interpreted the Second Amendment as protecting an individual right to keep and bear military grade firearms, and as far as it knew based on the evidence presented, a short-barreled shotgun was not "ordinary military equipment," nor was it useful for the common defense of the nation.

So the defendant lost the case solely because his firearm wasn't--in the opinion of the Court in the absence of any evidence on the subject in the official record of the case--a military grade weapon useful for "the common defense."

Therefore, per current binding Supreme Court precedent, any outright prohibitions of firearms that qualify as "ordinary military equipment" or that would be useful "for the common defense" are Unconstitutional.

“No free man shall ever be debarred the use of arms. The strongest reason for people to retain their right to keep and bear arms is as a last resort to protect themselves against tyranny in government,” Thomas Jefferson

“To preserve liberty, it is essential that the whole body of people always possess arms...” Richard Henry Lee

“A militia, when properly formed, are in fact the people themselves ... and include all men capable of bearing arms.” —Richard Henry Lee, Senator, First Congress

“Americans need not fear the federal government because they enjoy the advantage of being armed, which you possess over the people of almost every other nation.” James Madison

“…The said Constitution be never construed …to prevent the people of the United States who are peaceable citizens from keeping their own arms.” Samuel Adams

“The right of the people to keep and bear arms shall not be infringed. A well-regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.”- James Madison, in the Federalist Papers No. 46 at 243-44

“Large and permanent military establishments which are forbidden by the principles of free government, and against the necessity of which the militia were meant to be a constitutional bulwark.” - James Madison, Fourth Annual Message, November 4, 1812

“An efficient militia is authorized and contemplated by the Constitution and required by the spirit and safety of free government.”- James Madison, Eighth Annual Message, December 3, 1816

“As long as our Government is administered for the good of the people, and is regulated by their will; as long as it secures to us the rights of person and of property, liberty of conscience and of the press, it will be worth defending; and so long as it is worth defending a patriotic militia will cover it with an impenetrable aegis.” Andrew Jackson

“I ask, sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.” George Mason, during Virginia’s Convention to Ratify the Constitution (1788).

“... but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights ...” Alexander Hamilton.

“The best we can hope for concerning the people at large is that they be properly armed,” Alexander Hamilton.

“Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined.” Patrick Henry, during Virginia’s Convention to Ratify the Constitution (1788)

“(The Constitution preserves) the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms.” James Madison, The Federalist Papers

“Suppose that we let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal: still it would not be going to far to say that the State governments with the people at their side would be able to repel the danger...half a million citizens with arms in their hands.” James Madison, The Federalist Papers

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. 2nd Amendment

“To prohibit a citizen from wearing or carrying a war arm . . . is an unwarranted restriction upon the constitutional right to keep and bear arms. If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege.” Arkansas Supreme Court, 1878

Even pacifists have an opinion; “Among the many misdeeds of the British rule in India, history will look upon the act of depriving a whole nation of arms, as the blackest.” Mahatma Ghandi

“Arms are the only true badges of liberty. The possession of arms is the distinction of a free man from a slave.” Andrew Fletcher (1698)

“Firearms...are the American people’s liberty, teeth and keystone under independence...(f)rom the hour the Pilgrims landed to the present day, events, occurrences and tendencies prove that, to ensure peace, security and happiness, the rifle and pistol are equally indispensable. Every corner of this land knows firearms, and more than 99 and 99-100 percent of them by their silence indicate they are in safe and sane hands. The very atmosphere of firearms anywhere and everywhere restrains evil influence. They deserve a place of honor with all that’s good. When firearms go, all goes. We need them every hour.” George Washington, Address to the second session of the First U.S. Congress, January 7, 1790

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