The Second Amendment & Guns

By Alan Shapiro

To the Teacher:

The long-term debate about gun ownership and competing interpretations of the Second Amendment came to a head on June 26, 2008, with a 5-4 Supreme Court ruling that a restrictive Washington D.C. gun law was unconstitutional. The first student reading below reviews some of the relevant historical and legal background for that ruling and examines interpretations of the Second Amendment; the second reading includes excerpts from the Supreme Court's majority and minority opinions as well as the reactions of the presidential candidates.

See also on the high school section of www.teachablemoment.org "Guns & the Constitution" for additional historical background.

Student Reading 1:
A sawed-off shotgun raises Second Amendment questions

The Miller case

Is it constitutional to charge citizens a $200 tax for owning a sawed-off shotgun? No, said two bootleggers, Jack Miller and Frank Layton, who received such a notice under the National Firearms Act of 1934. The two men claimed that the law violated their Second Amendment rights. It states:

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 framers of the Constitution did not explain specifically what they meant by this amendment. But at the time of its adoption, every state had a "militia." This was a part-time military force made up of ordinary white male citizens. They were "well-regulated" in the sense that they trained and participated in exercises away from their homes. The militiamen supplied their own firearms. The Brady Campaign to Prevent Gun Violence points out that most of these men were aged 18-45, which meant of course that a majority of the population was never in the militia. (www.bradycampaign.org)

The National Rifle Association writes that the revolutionary conflict with Britain "caused our forebears to address the need for the people to maintain a citizen-militia for national and state defense….An armed citizenry instead of a standing army was viewed as preventing the possibility of an arbitrary or tyrannical government." (www.nra.org)

So how are we, living more than 200 years after the adoption of the Bill of Rights in 1791, to interpret the intent of those who wrote it?

Did they mean that any law-abiding citizen had the right to own a gun?

Or did they mean that the right to gun ownership applied only to those serving in "a well-
regulated militia"?

What did they mean by "arms"? Guns only? Or any weapon? A bomb?

And did they mean that the government had no authority to pass laws that "infringed"
on "the right of the people to keep and bear arms"?

How would you answer each of these questions?

In 1939 the Supreme Court ruled in the Miller case that the people's right "to keep and bear arms" was limited to those that had a "militia" purpose. The U.S. government interpreted this decision to mean that 1) the Second Amendment protects the right of members of state militias to own firearms, but not others and 2) this gives Congress the power to regulate the possession and use of firearms by individuals.

Some effects of the Miller decision

Since 1939, cities and states have restricted gun ownership in various ways-- requiring a license, limiting sales of guns, prohibiting guns in such places as schools and government buildings, as well as barring gun ownership by criminals and the mentally ill.

Plagued by violent crime, Washington, D.C., enacted the Firearms Control Regulations Act of 1975. It prohibited city residents from carrying or even owning handguns, except those registered earlier, and automatic firearms. Registered firearms in a home had to be "unloaded, disassembled, or bound by a trigger lock," which amounted to a prohibition on using firearms for self-defense in the home.

In 2003 Dick Heller and five other D.C. residents filed suit against this law, claiming that it was unconstitutional. Five years later their case reached the Supreme Court in the first serious legal effort to overturn the 1939 Miller decision.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. How do they answer the questions in the reading? Based on what evidence or logic?

3. According to the Supreme Court ruling on the Miller case, do all Americans have the right to own a gun? Do cities and states have the right to pass gun restriction laws? Why or why not?

4. How do you suppose that the Supreme Court ruled on the Heller case? Why?

Student Reading 2:
The Supreme Court rules on handguns

The majority

"We hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."

Writing for the 5-4 majority in the Supreme Court's decision on District of Columbia v. Heller, Justice Antonin Scalia declared that the Second Amendment "surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."

According to Justice Scalia, the framers' reference to "a well-regulated militia" was meant to prevent a future federal government from confiscating the people's guns, as the British had attempted to do. The justice argued that the Second Amendment's main clause states clearly that "the people's right to keep and bear arms shall not be infringed." This "codified a pre-existing right" of individual gun ownership for private use.

He said the Miller decision meant "only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." The majority decision also upheld prohibitions on carrying concealed weapons.

Scalia added: "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of guns."

The dissenters

Writing for the four dissenters, Justice John Paul Stevens argued that "today's law-changing decision," and not the Second Amendment, gave an individual the right to own a gun and created "a dramatic upheaval in the law."

Justice Stevens said that the Second Amendment was notable for its "omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense." At the time the amendment was adopted, "Declarations of Rights" in Pennsylvania and Vermont provided specific protection for such rights.

The majority's overturning of the Miller decision, the justice wrote, was not only "simply wrong," but also demonstrated a lack of "respect for the well-settled views of all of our predecessors on the court, and for the rule of law itself."

The justice also said that the majority decision itself restricted the Second Amendment's supposed "pre-existing right" of the people "to keep and bear arms" to "law-abiding, responsible citizens."

The presidential candidates

Both presidential candidates hailed the majority's decision. Senator John McCain called it "a landmark victory for Second Amendment freedom in the United States" that "ended forever the specious argument that the Second Amendment did not confer an individual right to keep and bear arms." He also criticized his rival's hometown: "Today's ruling makes it clear that other municipalities like Chicago that have banned handguns have infringed on the constitutional rights of Americans."

Senator Barack Obama said the decision would "provide much-needed guidance to local jurisdictions across the country. He praised it also for holding that the right to gun ownership is "not absolute and subject to reasonable regulations enacted by local communities to keep their streets safe. I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures."

City and state gun laws

Because the Heller case involved the District of Columbia, a federal and not a state area, it affected immediately only D.C. residents. The Supreme Court did not say whether the Second Amendment protections apply to state and city laws. But four Chicago residents immediately filed suit against that city's restrictive gun laws. Other big cities with such laws include New York, Philadelphia and Detroit. (New York Times, 6/27/08)

Quiz

Listed below are 8 possible actions a Washington, D.C., resident might take. Before each statement, write L (legal) if you think the court ruling makes the action legal, IL if you think it illegal or write DN if you don't know.

1. Buying a registered pistol

2. Receiving an unregistered pistol from a friend

3. Bringing a concealed pistol into a hospital

4. Bringing a pistol into a hospital

5. Keeping a loaded pistol openly on a table next to your bed

6. Hiding a loaded pistol in a drawer in a cabinet next to your bed

7. Keeping a disassembled pistol on the mantel of your living room

8. Buying a machine gun

For discussion

1. What answers to students give to the quiz questions? How do they defend their answers with evidence and/or logic?

2. What questions do students have about the reading? How might they be answered?

3. Consider the majority decision. What do you think is meant by "codified a pre-existing right"? What evidence is there for such a right in revolutionary times? Against it?

4. What restrictions on gun ownership and "arms" does the majority decision support?

5. Consider the dissenting decision. Why do you suppose that it cites revolutionary era rights declarations in Pennsylvania and Virginia? Does the majority decision represent a lack of "respect…for the rule of law itself"? Why or why not?

6. Does the Heller ruling represent "a dramatic upheaval in the law"? Why or why not?

7. Why do the dissenters point to majority opinion Second Amendment restrictions?

8. What Second Amendment rights do Senators McCain and Obama agree on? How might they disagree? Why?

1. How do you interpret the Second Amendment? Address specifically a) the connection between "a well-regulated militia" and "the right of the people to keep and bear arms"; b) the meanings you give to "people" and "arms" and why.

2. Does your interpretation of the Second Amendment allow for any restrictions on gun ownership? If so, what and why? If not, why not?

3. What is your opinion of the Heller ruling? What are your reasons?

For inquiry

Each of the following subjects might be investigated by individuals or small groups. In each case, before beginning, have students frame one or more questions for their inquiry to be approved by the teacher. For suggestions about helping students to write good questions, see on the high school section of www.teachablemoment.org "Thinking is Questioning."

1. Gun violence in the United States
2. Results of D.C. firearms law in reducing gun crime
3. Nature of gun laws in other cities-e.g., New York, Philadelphia, Chicago, Detroit
4. National Rifle Association
5. The Brady Campaign to Prevent Gun Violence
6. Gun regulations in other countries
7. Gun violence in the U.S. compared with that in other countries

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email author Alan Shapiro at: ashapiro7@comcast.net.

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