Mass shootings and a modern misunderstanding of the Second Amendment

The recent spate of mass shootings around the country can be seen as the inevitable byproduct of a longstanding debate over the purpose of the Second Amendment — fueled in no small part by the Supreme Court’s sometimes confusing (and occasionally conflicting) opinions on the subject.

For over 200 years, lower federal court judges (who spoke the same English language as the Founding Fathers) held that the Second Amendment allowed states to form militias, and arms could be acquired for that unique and limited purpose. Records of gun regulation in eight of the original thirteen states strongly suggest that private ownership and use of firearms were not countenanced.

In fact, the Founders gave the first clause of the Second Amendment careful attention, revising it several times and considering it essential to the whole. Though the sentence can be parsed in a variety of ways, it’s very hard to deny that the first clause modifies the one that follows — that the right to bear arms is dependent upon the need to empower and maintain a well-regulated militia.

The Supreme Court didn’t weigh in until 1939, when it issued its landmark decision in United States v. Miller, which is often cited by gun-control advocates to support the argument that the right to bear arms was solely intended to meet the need for state militias. As soon as such auxiliary armies became little more than supplemental forces to augment state National Guard units, the amendment came to be regarded as virtually obsolete.

That venerable understanding of the right to bear arms was shattered in 2008 with a 5-4 majority decision in District of Columbia v. Heller. There, the Court held that the Constitution protects an individual’s right to keep and bear arms, unconnected with service in a militia, for traditionally lawful purposes, such as self-defense within the home.

The majority opinion was written by the late Justice Antonin Scalia, a staunch believer that the court’s decisions should be based on a strict reading of the Constitution, or the “original intent” of the Founding Fathers. This was a 180-degree swing from Scalia’s earlier views, and surprised many legal scholars who argue that any objective study of the Founders’ thinking would indicate they understood why guns were needed and why their use should be strictly limited to “well-armed militias.” Guns were not to be owned by every male. If you had a gun, you were a member of the militia.

In any event circumstances have certainly changed since then — there are an estimated 393 million weapons currently owned by private Americans, and getting rid of them would be both practically and politically impossible.

Last fall, the court heard arguments in New York State Rifle & Pistol Association

Inc. v. Bruen, challenging one of the most restrictive gun laws in the country, sharply limiting people’s ability to carry weapons outside their homes. Pointed questioning from the justices made clear that the law could soon be declared unconstitutional, upending the way the state regulates firearms at a time when many of its cities are experiencing a crisis of gun violence. (A decision is expected this month.)

Meanwhile, in the endless war of words about gun rights, the academic community has done little but pock the discourse with vague, theoretical utterances whose scattershot scholarship can be fashioned to fit almost any favored thesis. But the blunderbuss proliferation of newly minted gun-rights advocacy perverts both the historical context and plain meaning of the Second Amendment.

Too bad law professors, generally neither grammarians nor historians, have so roiled the waters. The current justices should recognize that law professors are not always straight shooters.

Until 1989, virtually all legal academics had endorsed the view that citizens have a collective right to raise an army but no inherent individual right to carry guns. Then the Yale Law Journal published a confounding essay by Sanford Levinson of the University of Texas that appeared to advocate “insurrectionist” theory — that the Second Amendment was designed to ensure the people’s ability to confront a tyrannical government. In short order, Akhil Reed Amar of Yale and William Van Alstyne, then of Duke, published similarly ambiguous pieces, the latter suggesting that the right extends to handguns but not howitzers.

Buoyed by such high-profile support, the National Rifle Association undertook aggressively to promote still more friendly scholarship. In 1992, it funded Academics for the Second Amendment. In 1994, it launched an annual essay contest, offering $25,000 for the piece that best reflected its positions. In 2003, it gave $1 million to George Mason University School of Law to establish the Patrick Henry Professorship of Constitutional Law and the Second Amendment.

History strongly leads to the conclusion that the Framers’ intentions regarding the Second Amendment were equally clear. The Founding Fathers were concerned with communal defense. They never contemplated, nor were they likely ever to consider, the right of every citizen to purchase, possess or use whatever weapon might be on the market at the time — lockstock-and-barrel, musket or machine gun.

They were much too sensible for that.

Kenneth Lasson, an emeritus law professor at the University of Baltimore, writes widely on civil liberties and international human rights.