“A well regulated militia, being necessary for the security of a free state, the right of a people to keep and bear arms shall not be infringed.”

For many years the 2nd Amendment to the Constitution did not have much impact on American life. After its adoption in 1789 it was generally viewed as meaning only what the two clauses taken together appear to say and nothing more. The right to bear arms was viewed simply as giving the states the ability to maintain a militia to defend themselves against any overly aggressive national government.

Legal scholars never opined that it had anything to do with giving individuals the right to carry guns until 1960. That year for the first time a law review article proposed that the amendment pertained to individuals as well, but that view had very little support for a long time. Then in 1981 a subcommittee of the Senate Judiciary Committee chaired by Orrin Hatch stated in a report to Congress that the amendment should be viewed more broadly than previously. The report suggested that individuals also are given a right to keep and carry arms which is protected by the 2nd Amendment. Over subsequent years, those expanded views were strongly championed in the public by the NRA.

In 1975 a Gallup poll for the first time reflected support for the view that the Amendment pertained to individuals as well as to organizations. By 2008 that support had grown to 73 percent; a majority at that point believed the 2nd  Amendment guaranteed the right of Americans to own guns outside of militia organizations.

In that same year, the Supreme Court was once again asked to decide whether the Second Amendment protected an individual’s right to own firearms. The case of District of Columbia v. Heller was brought by the NRA that year. It was the first consideration of the issue since the court’s decision in United States v. Miller in 1939. That year the Court had held that the 2nd Amendment had no bearing on individual rights of firearms possession, but only applied to groups such as local militia organizations. This time, however, in an opinion authored by Justice Antonin Scalia, the court held that the individual right of self-defense is “the central concept” of the amendment. And two years later the court made clear that the right was also applicable to the states, in the case of McDonald v. Chicago. There it stated that “the right to possess a handgun in the home for the purpose of self-defense“ is a central purpose of the 2nd  Amendment.

Justice Scalia’s opinion in United States v. Heller was joined by Chief Justice John Roberts and associate justices Anthony Kennedy, Clarence Thomas, and Samuel Alito. It is worth noting that all five of those justices were nominated by presidents who were at that time members of the NRA. The case also includes two strong dissents authored by justices John Paul Stevens and Steven Breyer, joined in by Justices David Souter and Ruth Bader Ginsberg. I believe none of those four had any ties to the NRA.

It came as a surprise to me to learn through my research that the application of the 2nd Amendment has only very recently been applied to individuals. I also noted that this interpretation by the Supreme Court came about only after public opinion was seen as supporting that, public opinion carefully developed by the NRA.

If efforts were taken in the future and were successful in changing public opinion on the matter, the court could find public support for abandoning its current broad interpretation of the amendment. Might not that change in the law reduce the current American love affair with guns and gun ownership? I believe that in turn could lead to a reduction in the frequency of mass killings.

— Special to the Press Herald


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