What does the second amendment mean?

I see a lot of assertions, from both pro-gun and pro-gun control positions, about what the second amendment means. Many pro-gun authors take the position that “Shall not be infringed means shall not be infringed”, as though that actually means anything. Those in favor of gun control generally try to cite the militia clause and argue that the second amendment only protects the right of states to have National Guard forces. And there are lots of positions in between, most of them historically and legally inaccurate.

I’ve read a fair amount of legal scholarship on the topic, and all of the relevant Supreme Court opinions, so I want to lay out my understanding. Inevitably, I’ll be wrong in places, but at least it will be an informed sort of error, and I’m open to debate.

What did the second amendment mean to James Madison and his contemporaries, when he wrote and they ratified the amendment? It did not mean that people had a federally-guaranteed right to keep and bear arms anywhere in the United States, regardless of state or local law.

When the Bill of Rights was ratified, it did not impose any restrictions on state or local governments. The Bill was demanded by anti-Federalists because they feared the power of an overbearing central government, and wanted assurance that it could not do certain things. There was a great deal of debate over the wisdom of this approach vs the “enumerated powers” approach Madison wrote into the body of the Constitution. Madison preferred to have a Constitution that specified what the federal government could do, implying it was not allowed to do anything else. The anti-Federalists worried that it would creep into the undefined areas. The Federalists argued that an explicit list of things it could not do would constitute permission to creep into the undefined areas. Both were right, I think.

In any case, Madison and the Federalists lost that argument and, as part of a political compromise to get the Constitution ratified, Madison agreed to propose a Bill of Rights, and the Federalists agreed to support its ratification. Madison’s original 12 amendments were winnowed to 10, with some revisions, and ratified as the Bill of Rights. The 2nd and the 3rd were together intended to ensure that states could retain the right of self-defense against the federal government, and the 2nd also served to provide the basis for national defense.

That’s it. Any broader reading of the original 2nd to imply any sort of guarantee of that state and local government couldn’t revoke is historically and legally inaccurate. Note that in 1789 there were townships that banned carrying of weapons in town, and both Federalists and anti-Federalists were just fine with that. That was a local decision, made democratically, and they trusted state and local governments.

Then came the Civil War and the 14th amendment. Primarily authored by Representative John Bingham from Ohio, the 14th amendment effectively rewrote large chunks of the Constitution and the Bill of Rights. It gave the federal government an affirmative duty to defend the rights of individuals against state and local encroachment. It was primarily targeted at making the federal government enforce the 13th amendment’s ban on slavery, but it was written with sweeping language that implies that the federal government must defend all individual rights, very much including those enumerated in the Bill of Rights.

Why did Bingham, et al, want the 14th to apply to all rights, not just the ban on involuntary servitude? Precisely because of a long history of abuse of individual rights in the slave-holding South, all enacted to protect and support the institution of slavery. The first laws banning the concealment of weapons were passed by southern states, specifically to prevent free blacks from being able to defend themselves. (Whites could carry openly and if they felt the need to conceal — which was considered cowardly — they could usually count on a friendly jury.) For another example, there were laws making it illegal to preach that blacks were children of God, equal to whites in His eyes. Such a law would be blatantly unconstitutional today, both as an infringement of free speech and as an infringement of freedom of religion. But before the 14th the Supreme Court had specifically found that the Bill of Rights did not restrict states (Barron v Baltimore, 1833).

Exactly how the 14th changed the Bill of Rights, though, was left up in the air for half a century, and its impact on the 2nd for well over a century. In 1925 the Supreme Court declared that the federal government had to protect free speech (Gitlow v New York). But in the 1940s Justice Hugo Black began championing the doctrine of “selective incorporation”, meaning that the Supreme Court would decide which bits of the Bill of Rights were “incorporated into the 14th against the states”, meaning which bits the federal government had to enforce. In the 40s and 50s, the Court made a series of rulings selectively incorporating parts of the Bill of Rights into the 14th. Notably, they decided that “procedural” elements of the Bill didn’t get incorporated so, for example, states are not required to use grand juries for all “infamous” crimes, and most don’t. But although the grand jury clause of the fifth amendment doesn’t apply to the states, the double jeopardy, self-incrimination, due process and takings clauses all do.

Before addressing the second amendment directly, we should take a slight detour and talk about what anything in the Bill of Rights means. All of the amendments are short and written in very broad and non-specific language. What does it mean to say that free speech may not be abridged? If it meant that anyone could say or write anything at all, then we could not have copyright laws, or laws restricting sedition, obscenity, libel or death threats. Clearly, we do have such laws at both federal and state levels, and they are not considered unconstitutional. And nearly everyone considers at least some of the restrictions on speech to be good.

The Court decided that the language of the Bill of Rights was intended to offer broad guidelines rather than all-encompassing directives, and that it must be possible to carve out exceptions. But only with great care. To that end, the Supreme Court has defined different levels of scrutiny that must be applied to determine whether an exception is acceptable, and in many cases has decided which level of scrutiny must be applied to a given right. I won’t get into the standards of scrutiny, except to say that the highest level, strict scrutiny, is quite strict. It’s very hard to justify restrictions on rights that receive this level of scrutiny.

No amendment in the Bill of Rights is absolute. All of them that have been explored in detail contain exceptions, and there is no reason to assume that the second amendment is any different. Just as it’s constitutional to make it illegal for you to make credible threats to kill your neighbor, it’s constitutional to make it illegal for you to possess a nuclear weapon. And probably some other stuff.

The 2nd was in limbo for a long time. It was unclear whether the amendment was incorporated into the 14th and therefore restricted state laws, or what kinds of exceptions were allowed. In particular, the meaning of the militia clause was often debated, with one side arguing it meant there was no individual right, and the other side arguing that it didn’t limit the individual right. These arguments almost never made it to court. The one significant exception to this was US v Miller, in 1939, where the Supreme Court ruled that it was permissible for federal law to ban short-barreled shotguns on the grounds that they were not military weapons and were therefore not protected because the militia clause specified a military purpose.

(It’s worth noting that the Court was factually in error in their claim that short-barreled shotguns were not militarily useful. The Winchester 1897 shotgun variant that gained the moniker “trench broom” in WWI was short. The Germans feared it so much they lodged a diplomatic protest against it.)

It wasn’t until DC v Heller, in 2008, that the second amendment got a real hearing as to whether the militia clause meant that the second amendment didn’t protect an individual right. Proponents of gun control decry Heller as a bad decision, but unless the Court decides to reverse itself the question is unambiguously answered: The second amendment does protect an individual right to keep and bear arms. Antonin Scalia wrote the majority opinion, which found that the militia clause was a prefatory clause that motivated but did not restrict the scope of the right. In a way, this was an overturning of Miller that gun control advocates should be happy about. Application of Miller raises a strong argument that military arms like fully-automatic rifles, grenade launchers and the like are precisely what the amendment guarantees that individuals can possess. Instead, Heller says that while the amendment does protect an individual right, that right may be subject to some reasonable restrictions. It leaves the scope of those restrictions undefined, though it found DC’s restrictions unconstitutional under any level of scrutiny. Heller also does not define a standard of scrutiny for 2nd amendment questions, nor does it incorporate the 2nd into the 14th.

The incorporation was made shortly thereafter, though, in the 2010 ruling on McDonald v Chicago. That ruling also failed to define the scope or meaning of the 2nd, or the standard of scrutiny to be applied, but it did decide that Chicago’s restrictions were unconstitutional.

That’s more or less where we’re at now. There have been a number of other rulings around the country in the last eight years, some of them contradictory. The only additional Supreme Court decision was the unanimous 2016 Caetano v Massachusetts, which found that second amendment protection is not limited to 18th-century weapons (which was already stated in Heller), nor is it limited to weapons useful in warfare.

Barring a constitutional amendment to repeal the 2nd, which seems politically impossible, we’re now embarking on a long journey to determine exactly what the scope of the individual right to keep and bear arms is, analogous to the decades it took to figure out exactly what speech is protected and how much. What’s clearly in the right at this point is self and home defense, though some restrictions on who can own weapons (e.g. not felons or the mentally unstable) and where they can be possessed are probably constitutional. We haven’t had cases to test those limitations, but it seems likely that the restriction on possession by felons would pass strict scrutiny, and therefore so would the laws requiring instant background checks at the point of purchase from licensed firearms dealers — and perhaps from private individuals as well.

It also seems certain that restrictions on fully-automatic weapons, grenade launchers, tanks, military aircraft, etc., are constitutional. It seems less likely that restrictions on cosmetic characteristics of firearms, such as those contained the Assault Weapons Ban of 1994, can stand up. And it seems unlikely that restrictions on semi-automatic weapons or handguns will survive scrutiny, particularly since semi-automatic handguns are the best self-defense weapon currently available, which is why police officers carry them.

Other restrictions are more debatable. California’s restrictions on semi-automatic weapons whose magazines can be quickly replaced are in a gray area, as are restrictions on large magazines. Most likely, those restrictions will be found to be constitutional, I think, though few other states seem interested in adopting them.

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