The 2A is Not as Comprehensive as Some Would Like

But it has a clear principle


In my quest to learn more of the American legal system (I would like to move to the USA and practice law there some day), I decided it would be worthwhile to gain some understanding of the US Constitution. Due to my very active role in South African firearm rights, I decided to start with the famous District of Columbia v Heller case as considered by the Supreme Court of the United States (SCOTUS), and ruled 5-4 with Justice Scalia delivering the judgement. The case was an eye opener, and I encourage anyone vaguely interested in civil rights to read it. For one, it made me very aware of the fairly convoluted form of the Second Amendment when compared with the First Amendment. Second, it rammed home the very real issue (and extent) of “judicial activism.”

For reference from hereon, the Second Amendment reads as follows:

“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.”

SCOTUS rephrased it in more modern English to read:

“Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

Heller was first and foremost the validity and relativity of a form of interpretation to apply to US constitutional interpretation, and the issue at hand which was the scope of the Second Amendment (“2A”) came second, because the form of interpretation would be so decisive in how it was understood. The prevailing method was “originalism,” which means returning to the original intent of the provision as envisaged by the very drafters of it, and this means going to original draft versions thereof, consulting dictionaries of the time, and even other legislation or letters of other states and drafters. Language changes much over time, and the original meaning must be found, or the same law will mean different things at different times, rendering the rule of law and the purpose of laws useless. It is true that the legislature can reword the provision in question for clarity, but try that with the 2A between Republicans, Democrats, and Libertarians. Even in Heller the court ruled 5-4!

The majority judgement in Heller does point out something useful to pro-2A individuals: due to a decision of an earlier case before SCOTUS, federal courts did not entertain disputes about the 2A for the majority of US history, as it was considered reserved for the courts of the states. Heller is a departure from this and delivers significant clarity on the issue. This is not unusual; it took 150 years after the First Amendment was enacted for the very first case on speech freedom to come before SCOTUS, and there are other examples. It is also an example of Justice Stevens’ judicial activism as he states that the 2A before SCOTUS is uncontroversial and settled convincingly over numerous cases, when in fact it was barely ever considered by SCOTUS for much of US history.

Justice Stevens delivered the most notable dissenting judgement in how different it was from Justice Scalia’s, to the point that Scalia called Stevens’ interpretation “absurd.” Stevens’ judgement was a clear case of judicial activism in wanting the 2A to read something that it did not, going so far as to be literally absurd, and a legal principle (at least in South African law) is that a provision must always be read so as to avoid an absurdity (I fail to see why US jurisprudence would not also follow this legal principle). He presented no evidence to support his interpretation. His recent utterances in May 2019 make it clear: he does not like the 2A principle, thinks it irrelevant, and that it must be repealed. Justice Breyers dissented, but his dissent rested largely on irrelevant laws in what are now irrelevant scenarios and circumstances. It must be noted that when I refer to Scalia, it also encompasses Justices Thomas, Roberts, Kennedy, and Alito, who agreed with and joined Scalia’s judgement. Justice Ginsburg joined Stevens’ and Breyers’ dissents.

Scalia’s interpretation considered the original meaning of the words at the time of drafting in 1791, the deriving of the intention of the 2A from looking at letters and the recent history that could give a clue as to what the drafters had in mind, and contrasting this between the technical and idiomatic meaning of the time and present day. Having done this, Scalia considered whether the outcome of each interpretation led to an absurdity or not, both at the time of drafting and today. An example of an absurdity would be (as was submitted in the dissenting judgements) “the 2A gives soldiers a right to keep and bear arms (“arms” being a synonym for weapons) in times of war, and not civilians in times of peace;” soldiers do not need a right to carry weapons in war, because it is implied and part and parcel of a war! It is submitted that Scalia took the right approach.

It is noted that no right is absolute in the US Bill of Rights, even speech, and that, therefore, the 2A can of course be limited. Heller did not touch on the justification for limitations, but the state should not willy-nilly create arbitrarily baseless and pointless limitations. Scalia noted that established justifiable limitations on the 2A included measures designed to prevent convicted felons or mentally unstable individuals from owning firearms. Scalia seems to have added that bans on carrying into a federal building or school are also justified, but does not elaborate on them and it is submitted that these justifications can be proven as unjustifiable on evidence of the goals of such provisions not ever being met.

The 2A is meant to serve the purposes of militia. With relevance of the 2A to militias, Scalia noted that militias are comprised of citizens (as opposed to a standing army), and that citizens needed their own personal firearms in order to assemble a militia, or even be vaguely proficient in their use which would be necessary for the purposes of a militia. Ergo, civilian firearm ownership is guaranteed in order to make this reality possible. The judgement as a whole brings the constitutionality of the US military in its current form (one huge and hegemonic entity) into question, but that is another topic altogether. Scalia further notes that any responsible firearm owner would only use their firearms in a safe and lawful manner; to do otherwise would be criminal, which might require lawful use of a firearm to neutralize such a criminal act.

The convoluted nature of the 2A is reinforced when SCOTUS considered similar provisions in the state constitutions of Pennsylvania and Vermont, which very clearly enshrined a right for individuals to keep and bear arms in private capacity for private (self-defense) and public (militia) purposes. North Carolina seemingly limits its provision to militia, but Scalia thought this peculiar when the state constitution makes extensive reference to militia application elsewhere it is clearly intended. Massachusetts also seems to have a militia application, but the state’s own Supreme Court said it has an individual reference. Scalia noted that generally, 19th century courts and commentators pursued a very individualistic application. On this basis, to read the 2A otherwise would make it a very odd outlier around the time it was enacted; state constitutions applied to individuals, therefore, it follows the federal Constitution also did. Furthermore, virtually all interpreters in the century after the 2A’s enactment understood the 2A exactly as the majority judgement in Heller did.

The court considered United States v Cruikshank, in which SCOTUS held (in 1876) that the 2A was only a limit on the federal government to not restrict, and that states were free to restrict as they wished. The judgment is not criticized in Heller except to say that Cruikshank merely supported individual application since it did not address the 2A in a militia at all. Presser v Illinois merely stated that armed groups that then paraded around urban areas could not do so unless authorized by a law, but the formation of such groups was not unlawful. Stevens used Presser for his argument detracting from the 2A, totally ignoring the fact that the portion on which he relied dealt with the Fourteenth Amendment and not the Second.

United States v Miller is the most notable precedent, in which SCOTUS ruled that a firearm for which there is no clear relationship of usefulness to that of a militia, does not gain the protection of the 2A. It is true that a short-barreled shotgun has almost no use generally speaking in formal war purposes, but the reasonableness of such a restriction is arbitrary, and Miller did not explain the nature of the right, which leaves it open to clarification should the court entertain such a case. The respondents did not even file a brief or appear at the case in Miller, only the government did! Miller also noted that the carrying of weapons without lawful cause is always a crime. Stevens rests his case upon the reasoning in Miller, stating that Miller discussed the history and origins of the 2A and that they support his interpretation. In the words of Scalia: “Not a word (not a word) about the history of the Second Amendment.” I added no emphasis to that quote; Scalia actually said and wrote that.

Miller did raise a question for Scalia to consider: what weapons does Miller permit? Machine guns were not challenged in Miller, therefore Miller could not address that issue. The purpose of courts is to consider the issue before them, and they will seldom even widen the issue just a little bit. In fact, Heller noted that since automatic firearms are used in militaries, the National Firearms Act might be unconstitutional by virtue of Miller, but argued that it might conversely not protect machine guns. If you (as the reader) want to challenge the machine gun ban of the National Firearms Act, feel free to create a constitutional issue for the sake of liberty. Disclaimer: you might not be successful and end up in a federal jail, so I suggest asking the court directly. In Heller itself, the issue of licensing a firearm was not addressed, and the court did not rule on it. If you feel emboldened by this, feel free to get caught without a license (yet be sane and not convicted of a crime) and challenge the constitutionality of licenses that do, or do not, lapse. Or just ask the court directly.

Heller makes specific reference to the relevance of the 2A when huge, organized standing armies of the latest technology exist: this fact does not matter and is totally irrelevant, because the interpretation reached in Heller does not turn on reality. The interpretation of Heller turns on what the US Constitution is interpreted to say. In layman’s speak: if this fact bothers anyone so much, the legislature can amend the Constitution.

Finally, Scalia addresses the issue at the core of Heller: the District of Columbia ban on handguns and draconian restrictions on their storage so as to make them useless if needed in a hurry. The District of Columbia, in Scalia’s words, banned an entire class of firearm commonly used by swathes of the population, and by its application even to the home, did not meet the “keep” part of “keep and bear arms.” As Scalia wrote: “Any law that renders a firearm useless for the purpose of defense, would be unconstitutional,” and the banning of one class of firearms cannot be justified while permitting other classes. The court preceding SCOTUS (the District of Columbia District Court of Appeals), ruled that a law is unconstitutional to forbid the use of a firearm in a defensive situation, with which Scalia upheld.

Ultimately, Heller recognized and confirmed that the 2A protects an individual right and not a collective right. That is not to say the 2A exists for the individual per se, but for its reference to militias to be valid, it must pertain to the individual. “Shall not be infringed” clearly has its limits, and if a court deems non-specified restrictions (such as restrictions against felons or mentally insane) as valid, it is the job of the legislature to amend the provision to encompass what the court excluded if it is unhappy. Such action by SCOTUS, I believe, serves a purpose: it takes an amendment for seemingly obvious reasons off the table. If it were to make it onto the table for debate, it opens a can of worms not easily closed, in which the right has the possibility of being more radically amended than a court ever would, if not totally repealed. SCOTUS has limited the 2A so that Congress does not need to. I will write a follow-up article discussing the recent decision by SCOTUS to refuse to hear Kettler and the constitutionality of restrictions on suppressors and accessories, in which I believe at this preliminary stage, based on Heller, the decision to not hear was the right decision.


Please enter your comment!
Please enter your name here