In my Utopia, the gun laws will be simple: no guns at all except (a) ordinary rifles for hunters of game and (b) usual weapons of the military, the police, and specially authorized persons. Period. What stands in the way of that as law in the United States? An array: the gun manufacturers, their trade associations, gun aficionados, reluctant congressmen, the Second Amendment, and, finally, the Supreme Court decision in District of Columbia v. Heller, 554 U.S. 570 (2008).
Consider the simple text of the Second Amendment. In its entirety, it provides, “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.” We no longer speak of militias, but men of the 18th century like Adam Smith (1776) did: he explained that the state may “oblige either all the citizens of military age, or a certain number of them, to join in some measure of the trade of a soldier to whatever other trade or profession they may happen to carry on.” In short, the militia was a part-time soldiery.
The prefatory clause of the Amendment tells us what the ensuing text, the operative clause, is about: a militia is necessary; to assure its viability, the people have the right “to keep and bear arms.” As the militia comprised part-time soldiers who would live at home, ready to be called up, they were permitted to “keep” their arms at home. The intimately connected “and bear arms,” in light of the declared purpose of the prefatory clause, narrows the possible uses of “bear”—the Oxford English Dictionary offers a dozen—to its military purpose. That is, given the prefatory clause, “bear” cannot simply mean, loosely, to “carry freely.”
Moreover, as Justice Olive Wendell Holmes interpreted constitutional text, “we must consider what this country has become in deciding what the [Tenth] Amendment has reserved,” Missouri v. Holland (1920). The country, sadly, has become a land of shooting cowboys, and the Second Amendment can now be read to “reserve” the meaning of “bear” to its military implication. The paradigm of the Amendment is a rifle closeted at home, ready to be grasped by a hastily called-up citizen-soldier. Indeed, the year after ratification of the Amendment, Congress made perfect use of it: the Militia Act of 1792 authorized state enrollment of citizens to respond to an Indian menace in the Northwest Territory.
Enter the Supreme Court. In 2008, in a 64-page opinion by Justice Antonin Scalia (joined by four of his colleagues), claims of Dick Heller of the District of Columbia were resolved in his favor. Heller wanted to keep a handgun at home. The district refused permission, under a registration law that prohibited licenses for handguns. Heller sued, invoking the Amendment. The high court affirmed summary judgment for him. Later, it applied the ruling to the states in McDonald v. Chicago, 561 U.S. 3025 (2010).
The court held that the prefatory clause was not a limitation on the operative clause, citing ancient texts on statutory construction. That misconceived originalism killed the district’s defense: because the preface did not infuse the operative clause, Heller could simply “keep” his handgun at home whether or not he would “keep” it for a military purpose. Indeed, to “bear” arms did not mean military carriage only, for, on occasion, it had been used in a non-military sense. The court’s conclusion: the Amendment guarantees the individual right to possess and carry weapons “in case of confrontation.” That invites ordinary folks to pack “heat,” handguns and more, an interpretation that is the Eleventh Commandment to the National Rifle Association. Four justices disagreed.
Fortunately, the court added dicta favorable to a degree of gun control. The Second Amendment did not guarantee “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The majority opinion, Scalia explained, does not cast doubt on prohibitions on the “possession of firearms by felons and the mentally ill, or…in sensitive places such as schools and government buildings, or…the commercial sale of arms [or]…carrying dangerous and unusual weapons.” That makes room for regulation at the margins but leaves untouched the central issue of gun violence, like the appalling shootings at Sandy Hook Elementary School. These still echo throughout the country.
The strong public reaction may yield a modified analysis of the Second Amendment by the court, encouraging the national government to enact responsive legislation. Mr. Dooley, the creation of Finley Peter Dunne who wrote, “Mr. Dooley in Peace and War,” maintained that the court follows the election returns. If that’s true, a sea change in public sentiment may have the same effect.
Joseph D. Becker is a name partner in Becker, Glynn, Muffly, Chassin & Hosinski.