Controversy, Confusion Mark Second Amendment Courts Have Limited Its Scope, But Haven’t Settled Arguments

“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.” - U.S. Constitution, Amendment II.

It’s in the Bill of Rights and at the heart of America’s anguish over guns, but law professors ignore it, legal casebooks omit it, and Supreme Court justices dodge it.

For decades, the American Bar Association, the American Civil Liberties Union, gun-control advocates, federal judges and most scholars have regarded the one-sentence, badly written Second Amendment as a constitutional relic. It provides no individual right to bear arms, but merely protects state militias - today’s National Guard - from being disarmed by the national government, they say.

But to the National Rifle Association, its millions of members, and to government-hating extremists armed with weapons and conspiracy theories, the Second Amendment is as revered as biblical text. It guarantees, they say, that a citizen may possess a gun to defend against crime or tyranny, although the NRA avoids making the argument in court.

Surprisingly in recent years, the NRA’s view has gained scholarly attention - and some respectability.

No less a legal figure than Prof. William Van Alstyne of Duke University, a respected scholar who confesses his own neglect of the Second Amendment during 30 years of teaching constitutional law, concludes that the NRA’s basic claim is “extremely strong” and ought not to be dismissed lightly. Drawing on English history and the writings of James Madison and early constitutional analysts, Van Alstyne concludes that the Second Amendment developed out of a fear of a national standing army. It was intended, he said, to protect the right of ordinary citizens who made up the state militias.

Even so, no individual right is absolute. Van Alstyne, a former Air Force sharpshooter who owns a semiautomatic rifle, warned that the Second Amendment “doesn’t mean there can’t be any regulation of firearms or that you can own a howitzer or carry a gun into a courtroom or a classroom.”

Federal judges have rejected the notion that Americans are constitutionally entitled to own a gun and, while the Supreme Court hasn’t addressed the issue in 56 years, two retired justices reject the NRA’s view.

The Second Amendment never was intended to “guarantee every person the constitutional right to have a ‘Saturday night special’ or a machine gun without any regulation whatsoever,” former Chief Justice Warren E. Burger declared in a 1991 interview. He called the NRA’s view “a fraud on the American public.”

Remarked former Justice Lewis F. Powell Jr. in a 1988 speech: “It is not easy to understand why the Second Amendment .th.th. should be viewed as creating a right to own and carry a weapon (the handgun) that contributes so directly to the shocking number of murders in our society.”

The fundamental legal question about the Second Amendment is whether it confers an individual or a collective right.

Is the “right of the people to keep and bear arms” a personal right of each citizen - or is it merely a right reserved to people in the “well-regulated” National Guard?

Court rulings overwhelmingly support the latter view.

In its only 20th century ruling on the meaning of the Second Amendment, the Supreme Court upheld federal regulation of sawed-off shotguns on grounds that such firearms have no “reasonable relationship to the preservation or efficiency of a well-regulated militia.”

The eight-page ruling, issued in 1939 in the case of U.S. vs. Miller, found no evidence “that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”