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U.S. Supreme Court on the 2nd Amendment: an individual right to bear arms

By Lewis P. Reece, Shareholder--In 2008, after 200-plus years, the U.S. Supreme Court finally interpreted the meaning of the Second Amendment to the Constitution, and specifically analyzed the words and phrases used within it.   Thankfully, the Court—at least the majority of the justices—focused upon the intent of the people who ratified the Constitution in interpreting the Second Amendment.  The Majority made a genuine effort to discern the meaning of the Second Amendment by considering how the people who ratified it understood its meaning.  Speaking of the Second Amendment, the Majority said: “In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.”  District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008), citing United States v. Sprague, 282 U.S. 716, 731 (1931).

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.”  The debate has been long over the wording of the Amendment and the meaning of its introductory phrase.  Advocates for gun control argue that guns are available to the individual only if they are part of a militia sanctioned by the state, or, that the introductory clause referencing the militia dictates the meaning of the operating clause granting the individual the right to bear arms.  However, the Majority sided with gun rights proponents by ruling that the introductory or prefatory clause does not limit the meaning and effect of the operative clause of the Second Amendment.  Rather, it merely “announces a purpose.”  Id. 128 S. Ct. at 2789.   The Constitution itself is an example of that principle.  The Preamble to the Constitution does not limit the meaning of the Constitution itself.  The Court said:

“It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.” J. Bishop, Commentaries on Written Laws and Their Interpretation, § 51, p.49 (1882) (quoting Rex v. Marks, 3 East, 157, 165 (K.B. 1802)).  Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.


Id. at 2789, 2790.

The Majority went on to find that the right to bear arms is an individual right unrelated to service in any militia.  They painstakingly went through the history surrounding adoption of the Constitution, other state constitutions in existence that had protections similar to the Second Amendment, and definitions and treatises contemporary to the time and determined that the people who ratified the Constitution and Second Amendment understood that the right to bear arms was an individual right, not contingent upon service in the militia. That’s the way the people who ratified the Constitution understood the Amendment.  That’s the meaning of the Amendment today.   Wisely the Majority said:

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution.  The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54-55, and n. 26.  But the enshrinement of constitutional rights necessarily takes certain policy choices off the table.  These include the absolute prohibition of handguns held and used for self-defense in the home.  Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and were gun violence is a serious problem.  That is perhaps debatable, but what is not debatable is that it is not for this Court to pronounce the Second Amendment extinct.


Id. at 2822.  Thus, the Majority fulfilled their role as justices, not substituting their judgment for the understanding of the people who put the Second Amendment into effect and ratified the Constitution.

The full syllabus and opinion in the case of District of Columbia v. Heller can be downloaded in .pdf format from the official U.S. Supreme Court website here.

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