My understanding of the second amendment has gone through several phases.
In my first phase it made no sense at all to me.
Then I heard about Miller vs USA in which the Supremes of the day said
“In the absence of any evidence tending to show that possession or use of a ’shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”
and subsequent opinions that quoted Miller like Renqhuist’s in 1972
“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia - civilians primarily, soldiers on occasion.” Id., at 178-179. Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia.”
My second interpretation was, then, that it is an archaic time capsule from a forgotten age. An age when a bunch of guys with muskets could hold off a professional army for long enough to rouse up a force to evict them. That age has passed, I thought.
But that was around the time that my son was learning about founding fathers and the constitution and the birth of this country and such in school and I wanted to learn about those things too. I learned that in a lengthy list of individual rights, the second amendment was the only one that explicitly called out the needs of the States (I’ll come to the 10th in a moment). I also learned that the people who wrote that document were afraid of a strong central government and wanted to distribute the power between the state govermnents and the federal government. The 10th makes that point clear stating
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Eureka, I thought, those people were geniuses. My new understanding was that the second amendment was a states’ right. State governments could regulate their militias, but the federal government had no business doing so. The federal government could not regulate arms, but state governments could. If Montana wanted lots of guns for their well-regulated militias, but California preferred to live in the modern era…fine!… T2A allows for that. If people from California drove up to Montana to get their guns, we’d throw the Intersate Commerce clause at them.
I had a brief moment of doubt when I learned that the 14th made the Bill of Rights apply to State goverments as well as the federal government. But I soon got over that because, clearly, 2nd was a State’s right so the 14th didn’t apply.
My interpretation of State’s rights is unwelcome in certain circles. Some of my liberal buddies think the civil rights advances of the 50s and 60s would never have happened without federal intervention. For my part, I expect that would have taken longer to come but they would have come eventually.
I also agree with the standard conservative - intentionalist - view of the constitution. We do best to interpret it as the authors intended it to be interpreted. It’s not a living document and should not be interpreted as one. Once you start seeing emanations and penumbras you are a short trot away from allowing animals to sleep in beds with sheets.
In today’s NY Times, Stanley Fish claims that all the decision in the second amendment went 5-4, all of the opinions were based on an intentionalist reading of the amendment. The majority opinion, written by Scalia, said that the words
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.
were very clear as long as you ignore the first thirteen. If you skip over the first clause, as Scalia did, you’ll note that the right to own a gun is unrelated to militias. If you skip the second clause too, the amendment clearly says that the government (originally the feds, but since the 14th, the states) is not allowed to pass any law restricting the right to bear arms.
As Fish says,
For Scalia, that meaning is that Americans have “an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
Meanwhile, the minority opinion, written by Stevens, claims
the Second Amendment “was adopted to protect the right of the people of each of the several states to maintain a well-regulated militia,” and he finds no “evidence supporting the view that the amendment was intended to limit the power of Congress to regulate the civilian uses of weapons.”
So, both opinions are intentionalist. They both claim that they are interpreting the literal words and intentions of the authors but one side claims that when the founders said ‘well-regulated militia” they meant “well-regulated militia” but the other side claims that they meant “unconnected with service in a militia”.
Rather than intentionalism, the idea that the words can mean whatever we want them to mean seems closer to deconstructionism. If they can mean anything. They mean precisely nothing.
Scalia adds more support to the idea that words can mean anything at all when he says that the term arms
was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.
and that the adjective “well-regulated”
implies nothing more than the imposition of proper discipline and training.
which make me want to count his legs. I’ll confess that I did not read the whole opinion so I must’ve missed the bit where he said that US vs Miller was not relevant.
