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Vail Daily column: Evolution of the Second Amendment

The Second Amendment, adopted by the states in 1791, provides in its entirety that “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.”

Oh what mischief those 27 words have fostered.

Bear in mind, at its adoption the state of the art in armaments consisted of muzzle-loaded muskets, flintlock pistols, swords and sabers. It was also in an era when the federal government was first consolidating and treated by many, if not most, with deep and abiding suspicion. As the standing army, such as it was, was reed thin, in order to both defend itself from foreign incursions, state militias were essential. They were, in fact, the spine and skeleton of our national strength. What’s more, the militias existed to defend the several states from federal tyranny should it one day come to that. There is abundant evidence that the “arms” that were permitted to be kept were those necessary to and informed by the needs of the militias.



For the first 150 years or so of our nationhood, it was undisputed that the right to bear arms belonged to “the people” by and through the militias. Sure, the citizenry made up the militias so in contemplation of arming a “well regulated militia,” citizens had the right and, in fact, the necessity to bear arms. This was, in fact, not a hotly debated issue.

Then, on Easter Sunday 1873, an armed white militia attacked a group of Republican freedmen, who had gathered at the Colfax, La., courthouse, killing as many as 280 of the former slaves. Some members of the white mob were indicted and charged under the Enforcement Act of 1870. In 1875, the case made its way to the Supreme Court of the United States and in that year in the case of United States v. Cruikshank the court ruled that “the right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government.



Another more than 60 years went by. Then in 1939, United States v. Miller came before the court. What Miller concerned was a criminal prosecution under the National Firearms Act of 1934 (NFA). Passed in response to public outcry over the St. Valentine’s Day Massacre, the NFA required certain types of firearms (including fully automatic firearms and short-barreled rifles and shotguns) to be registered with the Miscellaneous Tax Unit (later to folded into what eventually became the Bureau of Alcohol, Tobacco, Firearms and Explosives or ATF). Defendants Miller and Layton challenged the relevant section of the act as an unconstitutional violation of the Second Amendment. After winding its way to the Supreme Court, the justices upheld the Act and, in a unanimous option, ruled that the amendment “(protects arms that had a) reasonable relationship to the preservation or efficiency of a well regulated militia”.

Another nearly 75 years went by. Then in 2008, all Heller broke loose.

In 2002, Robert A. Levy, a senior fellow at the Libertarian Cato Institute, began vetting potential plaintiffs with Clark M. Neily III for a planned Second Amendment lawsuit that he would personally finance. They aimed for a group that would be diverse in terms of gender, race, economic background and age, and ultimately selected six plaintiffs from their mid-20s to early 60s, three men and three women, four white and two black. In the end, though, only one, Dick Heller, a District of Columbia police officer, made it to the Supreme Court. Although Heller carried a gun in his employment, a D.C. gun ban forbade him to have one in his home. Heller, with the Cato Institute at his back, challenged the D.C. law. The case found its way to the Supreme Court in 2008.



In District of Columbia v. Heller, the Court ruled that the Second Amendment “codified a pre-existing right” and that it “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” The Court also noted, however, that “the right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The court clarified as well that many long-standing prohibitions and restrictions on firearms possession (listed by the court) are, in fact, consistent with the Second Amendment.

In Heller, for the first time, the court explicitly agreed that there is an individual right to possess a firearm and that right is unconnected to service in the militia. The case was, however, limited in that it arose in Washington, D.C., the federal district, which was distinct from what may or may not apply in and to the states.

Only in 2010, in McDonald v. Chicago, did the court extend the holding in Heller to the states. There, the Supreme Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government. In other words, if the possession of firearms could not be prohibited (but could be limited) by the federal government, neither could their possession by prohibited (although they could be limited) by the states.

These are the cardinal cases by which interpretation of the Second Amendment has evolved. Read that last sentence again. You’ll note two key words: “Interpretation” and “evolved.”

While it is fair debate to consider whether the Second Amendment does or does not guarantee a right of the individual to bear arms, what is not fair is to stand upon the ground, in support of that right, of what are known as “orginalists” or “textualists” who hold that the Constitution is inflexible, infallible, and must be read as the Framers intended it. This is unfair on several scores.

First, the framers were simply not of one mind. To the contrary; they, in fact, disagreed about almost everything. Second, the Constitution itself invites and provides for its own evolution by way of Constitutional Amendment. Third, if we are to read the Constitution only through the eyes of the framers, then we are to return to slavery (the Constitution, after all, originally protected it), women must be disenfranchised of the vote, only the landed gentry may either vote or hold office, and so on. As Justice Alito (who no one would accuse of being a liberal voice on the court) once asked from the bench in considering the limits of free speech in a California case which involved violence in video games, “Did [James] Madison [the leading author of the Constitution] enjoy video games?” And fourth, the very existence of the Supreme Court, provided for under Article III of the U.S. Constitution, is an explicit invitation by the framers for the court to interpret and enforce the Constitution. The very reason for the court’s “being” is to “judge” and, therefore interpret, the Constitution.

Right or wrong, the Second Amendment, as so many other Constitutional provisions, has evolved and has done so, in substantial part, to reflect the changing times. Whether one is pro-gun rights or anti-, it should be recognized that even if the goal is to get into the minds of the framers, even that involves an act of sophistry, subtlety, and, ultimately, of one of interpretation.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his e-mail addresses, robbins@slblaw.com or robbins@colorado.net.


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