This December, the U.S. Supreme Court will for the first time since 2010 hear argument on whether a gun control law violates the Second Amendment. Its decision could determine whether the right to keep and bear arms will finally be accorded the respect and dignity of other Constitutional rights or whether it will remain, as Justice Clarence Thomas once lamented, a “constitutional orphan.”
The case is New York Rifle & Pistol Association v. City of New York.
To understand why this NRA-backed case is so important, it’s helpful to revisit the Second Amendment’s text, history, and tradition.
Americans have owned firearms from the Colonies’ earliest days.
The Founders never questioned whether U.S. residents would own guns – they already did – but whether the individual ownership of arms was so fundamental to the scheme of government they were creating as to be enshrined in the Constitution.
The Second Amendment affirmatively answered the question, stating: “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.”
Having recently gained their independence from a distant monarchy that sought to subjugate them through military occupation and disarmament, American patriots had little appetite for an overbearing central government backed by an unopposable standing army. King George’s attempts to seize the Colonials’ arms helped spark the Revolution; their own guns aided in his defeat.
The Second Amendment’s function in America’s constitutional order was therefore to ensure that the U.S. government could not deprive individual citizens of their arms to prevent states from raising militias. As the Federal Farmer wrote in 1788: “[T]o preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.”
And so the right to keep and bear arms—already encoded in America’s DNA—became enshrined in our Bill of Rights.
For most of American history, there was no need to argue about the Second Amendment’s meaning. The Bill of Rights was historically considered to restrain only the federal government, not the states. And the United States government left what little gun control there was almost entirely to the states until well into the 20th Century.
Gun prohibition in the states, meanwhile, was restrained by versions of the right to keep and bear arms in most state constitutions.
The eventual rise of gun control in America coincided with some shameful aspects of the nation’s history.
For example: Reactionary Democrats in the South sought to impose gun control in the form of so-called “Black Codes,” which effectively restricted the gun rights of minorities. As if freed slaves didn’t deserve the rights and freedoms enjoyed by other free people—and the politicians lording over them—these laws explicitly prohibited black residents from possessing firearms. Even the licensing laws that didn’t expressly discriminate against minorities were enforced discriminatorily to suppress freedmen’s ownership of guns. By trying to stifle gun ownership among the people they wished to dominate, these political tyrants revealed the people’s right to keep and bear arms as the key to their oppression.
Post-war amendments to the U.S. Constitution, including the 14th Amendment’s Privileges or Immunities Clause, were meant to prevent these abuses by giving federal courts jurisdiction to hear cases in which state action violated the civil rights of American citizens, including freedmen. But in 1873, the U.S. Supreme Court in the Slaughterhouse Cases effectively nullified use of the Privileges or Immunities Clause for this purpose.
Discriminatory tendencies also prompted gun control in the 20th Century. In the North, firearm restrictions were a reaction to increasing urbanization and immigration.
Proponent’s of New York’s 1911 Sullivan Act, which required a locally-issued license to possess and carry a concealable firearm, openly promoted the law as a way to keep firearms out of the hands of Italian immigrants.
One such supporter, the New York Times, praised what was supposedly the first conviction under the law, that of Italian immigrant Marino Rossi, who claimed he possessed his revolver for self-defense. After Rossi was sentenced to one year in Sing Sing Prison, a Sept. 29, 1911 New York Times article commended the “Judge’s warning to the Italian community” as “timely and exemplary.”
New York, notably, was not one of the states with a right to arms in its own constitution.
Knee-jerk efforts to curtail Americans’ behavior continued. When the 18th Amendment was passed in 1919 to ban intoxicating liquors, Americans watched a parochial “Prohibition” effort devolve into organized crime, violence, etc. When politicians suggest that “banning” firearms or magazines would cure the problem of violent crime, remind them that it didn’t work when it was attempted with unprotected commodities that didn’t entail a Constitutional freedom.
Prohibition was repealed in 1933, but one of its unfortunate legacies was a 1934 law, the National Firearms Act (NFA). The NFA was Congress’ most notable attempt up to then to suppress Americans’ access to firearms. It did this by imposing a $200 tax on the making and transfer of what were portrayed as the favored guns of gangsters, including machine guns and rifles or shotguns made or modified to be more concealable. All such guns also had to registered with the U.S. government.
While the NRA successfully lobbied to exclude handguns from the Act, it’s notable the NFA was meant to avoid conflict with the Second Amendment by stopping short of banning the remaining affected firearms outright.
The constitutionality of the NFA was challenged in a 1937 Supreme Court case, U.S. v. Miller. Historians acknowledge, however, the case was designed to fail. By the time his appeal reached the Supreme Court, Miller had gone into hiding to avoid the vengeance of criminal associates against whom he had testified. Neither he nor anyone else on his behalf participated in the Supreme Court proceedings.
The Supreme Court resolved the case by focusing on whether the “short barreled“ shotgun Miller was accused of transporting across state lines in violation of the NFA was the sort of “arm” protected by the Second Amendment. The court noted it had no evidence that the shotgun had a “reasonable relationship” to the “preservation or efficiency of a well regulated militia,” that it was “part of the ordinary military equipment,” or that “its use could contribute to the common defense.” Unwilling to assume the shotgun met any of these criteria, the court held the Second Amendment claim failed.
The Supreme Court then went silent on the Second Amendment for almost 70 years.
Meanwhile, gun control proponents within and without the legal establishment insisted that Miller meant the Second Amendment had nothing to do with an individual right to keep and bear arms, that it protected only the states’ ability to maintain militias or the right of active militiamen to bear arms. But the court didn’t say Miller’s Second Amendment claim failed because he himself was not a militiaman. It simply said Miller’s own firearm was not of the type the Amendment protects.
After a number of high-profile political assassinations in the 1960s—none of which was committed by a law-abiding citizen—the gun control “movement” was officially underway. In response, the NRA countered with political and legal advocacy efforts on behalf of the peoples’ right to keep and bear arms. These contests—which pitted familiar tyranny against enshrined rights—caught the awakened eye of the U.S. Supreme Court in 2008.
All that came to fruition in 2008, when the U.S. Supreme Court in District of Columbia v. Heller confirmed that the Second Amendment protects an individual right to keep and bear arms, independent of service in an organized militia. The court explained that while preserving the militia was the reason for codifying the Second Amendment, that function did not limit the scope of the right itself, which was grounded in the concept of self-defense. This further meant D.C.’s bans on handguns and operable firearms in the home were unconstitutional.
When gun control advocates forced another case to the Court two years later (McDonald v. Chicago), another NRA-backed victory followed: the Supreme Court held that the 14th Amendment also makes the individual right to keep and bear arms enforceable against state and local officials, alongside other fundamental liberties.
It is now 2019, yet anti-gun courts have continued to defy the Second Amendment, upholding the same types of gun control laws enacted when those same courts were denying the Second Amendment protected individual rights. This includes the modern manifestation of New York’s Sullivan Act.
That law, as enforced by New York City, remains so draconian that licensees are prohibited from leaving their homes with a licensed handgun without express legal or written permission, even if the firearm is unloaded and locked in a case for transport.
Until recently, that meant most licensees couldn’t leave the city at all with their handguns, including to take them to another residence, a range, or a competitive event. No problem, said the Second Circuit Court of Appeals, refusing to decide whether the Second Amendment even applies outside the home.
Yet after the Supreme Court took the case, New York officials claimed they had changed the laws to allow handgun licensees more opportunity to transport their arms. The dispute, they insisted, had been resolved.
But the Court saw through these shenanigans and rightfully denied their request to dismiss the case.
That meant the case would be heard this December by a Supreme Court that includes two justices appointed by President Trump with demonstrated tendencies to take the Second Amendment seriously.
Time will tell, but that could also mean the Supreme Court will finally affirm the right to exercise a revived Second Amendment beyond the home … maybe even in New York City.