Now let’s look at the Second Amendment of the US Constitution. (For reference, I’ve attached a PDF copy of the US Constitution below.)
There are several versions of the text of the Second Amendment, each with capitalization or punctuation differences. Differences exist between the version passed by Congress and put on display, and the versions ratified by the states. These differences have been a focus of debate regarding the meaning of the amendment, particularly regarding the importance of what the courts have called the prefatory clause.
The final, handwritten original of the Bill of Rights as passed by Congress, with the rest of the original prepared by scribe William Lambert, is preserved in the National Archives. This is the version ratified by Delaware and used by the Supreme Court in District of Columbia v. Heller. It says:
Some other versions of the Second Amendment, ratified by other states, omitted the final comma. Others, such as Maryland’s, omitted the first comma. The ratification acts from New York, Pennsylvania, Rhode Island, and South Carolina contained only one comma, but with differences in capitalization that varied from state to state. So, which version is THE VERSION? This becomes important – read on.
For more than 200 years, the 2nd Amendment was interpreted to mean that state militias had to be maintained to protect the security of individual free states (from unnamed threats). To do that, at least in the 18th century, that required that potential militia members must be able to keep and bear arms.
In the USA, before the 19th century, no standing army existed. When the Constitution and the original 9 amendments were written, 1789-92, state militias were the only form of military, and they consisted of residents who provided their own guns.
Only much later, did a standing regular army became established, with reserve units, including state-run National Guard reserve units. State militias where the militia men provided their own weapons disappeared. But the wording of the 2nd Amendment never was changed. Nor did it seem to need changing.
There were those who claimed that the 2nd Amendment never was intended only to protect the states’ ability to raise militias. The most extreme interpretation was that no laws, of any kind, may restrict owning firearms, of any kind. But that extreme view is espoused only by a minority, represented by the National Rifle Association. Their interpretations clearly conflict with the 2nd Amendment’s words “A well regulated Militia, being necessary to the security of a free State”.
Yet, in the case of
District of Columbia v. Heller (2008), the US Supreme Court ruled, for the first time, that the right to bear arms belongs to individuals, for self-defense in the home. It ignored the words “A well regulated militia, being necessary to the security of a free State”. It also included, as
obiter dicta (A legal term meaning a non-binding interpretation of law that has no bearing on the case at hand but might be useful in future cases.), that the right to bear arms is not unlimited and does not preclude the existence of certain long-standing prohibitions such as those forbidding "the possession of firearms by felons and the mentally ill" or restrictions on "the carrying of dangerous and unusual weapons".
This ruling was extended two years later in McDonald v. City of Chicago (2010) when the US Supreme Court further ruled that state and local governments are limited to the same extent as the federal government from infringing upon this right.
Needless to say, these rulings have been highly controversial. The 2nd Amendment was never written that way, and it was never previously interpreted that way.
I want to point out that nowhere in the US Constitution do these words, “the right of the people to keep and bear Arms” appear without the following phrase coming immediately before it “A well regulated Militia, being necessary to the security of a free State”. Regardless of punctuation or capitalization, those two phrases always appear linked together. You can satisfy yourself by searching the PDF document I attached below.
Supreme Court Justice Scalia got it wrong in his written opinion! I can’t imagine what contorted reasoning he might have used to justify his interpretation that gun ownership was not linked to State Militias. Scalia liked to act as if he were a wise legal scholar, but his ruling was really a naked exercise in political power.
Since those two rulings, many states have significantly loosened their laws on gun ownership beyond what Scalia wrote. Texas has gone so far as to essentially remove all regulations on gun sales. It readily allows 18-year-olds to buy hand guns and long guns (shotguns, hunting rifles, semi-automatic military style guns, etc.) without requiring a permit. Background checks are done, but they are so perfunctory that they rarely, if ever, block a gun sale. Texas, and other states, even allow hand gun owners carry their weapons in public without permit or regulation.
This was clearly never included in the Supreme Court’s written opinions on those two cases. But this illustrates how a written ruling creates a ‘slippery slope’ that soon opens the door to unintended extensions of the original ruling. As you can see, these two rulings have created a huge problem and a huge political controversy.
