The founding fathers vigorously debated the necessity of a nation being able
to defend itself from invading forces or from threats within. Today, a growing number of voices is calling for changes to local and national gun laws as gun violence increases. The debate about the meaning of the Second Amendment and the degree to which government may limit guns has become especially heated in the last few decades. Should an amendment created in 1791 still guide an industrialized and modernized nation’s gun policy in the 21″ century?

Founding Principles and Bearing Arms

At the 1787 Philadelphia Convention, the debate about weapons was generally related to a standing army. In light of the recent Shays’ Rebellion, several attendees were inclined to enable Congress to maintain a regular armed force, a paid, professionally trained military. Others clung to the idea of states keeping regular militias that the federal government could call into service. The latter would require an extra step in times of need but would provide an additional check on a potential runaway central government if the army was going to be used for heinous purposes.

Constitutional Convention

The debates show us how far the Revolution and its aftermath had reversed traditional thinking. Previously, most statesmen of the day assumed that militias, locally controlled, would be less prone to corruption and abuse. By 1787, though, the men of the convention insisted an effective government required a national army, but, as historian Michael Waldman explains in The Second Amendment: A Biography, “there is no evidence- from James Madison’s notes or those of any other participant- that the delegates in the Constitutional Convention had the slightest inkling that private gun ownership was viewed at risk and required inclusion in a bill of rights. It simply did not come up.

In the States

Several state constitutions had a bill of rights. Four of the thirteen states protected the right to bear arms as part of a militia force. Only one, Pennsylvania, protected the right to bear arms as individual self-defense.

Gun regulations were common. As historian Saul Cornell has described, various states and localities maintained laws that, among other things, designated the official location for gun and powder storage, barred firing guns within city limits, and prevented people deemed dangerous from gun ownership. In Maryland, Catholics were barred from having guns. Most states banned African Americans, free or slave, from joining militias or owning weapons. And Rhode Island created a gun registry in supporting the militia.

Much gun law came via common law court rulings. Gun ownership was common and protected. The legal argument for using a gun in self-defense was well established, but courts would eventually weigh the right to own a gun against actions and regulations meant to protect others.

A National Standard

As the ratification debate moved toward adding a bill of rights, George Mason and Virginias other critics of the proposed Constitution drafted suggested amendments to send to the Congress. Their seventeenth suggestion read in part, “That the people have a right to keep and bear arms; that a well-regulated militia composed of the body of the people trained to arms is the proper, natural and safe defense of a free state? This, along with suggestions from multiple states, grew into the Second Amendment.

The Second Amendment and Gun Policy

Supreme Court interpretations of the Second Amendment, like those of the First Amendment, represent a commitment to individual liberties. The amendment states, “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.” The precise meaning is difficult to ascertain in today’s world, which is likely why the Second Amendment has been controversial. Was the amendment written to protect the state’s right to maintain a militia or the citizen’s unfettered right to own a firearm? Gun-control advocates might point out these state militias were “well regulated” and thus subject to state requirements such as training, occasional military exercises, and limitations on the type of gun possessed. The concern at the time was about the federal government imposing its will on or overthrowing a state government with a standing federal army. The original concern was not with the general citizenry’s right to gun ownership. Today’s gun advocates, however, supported by recent Supreme Court decisions, argue that the amendment guarantees the personal right to own and bear arms because each citizen’s right to own a firearm guaranteed the state’s ability to have a militia. Similarly, gun rights proponents argue that the “right of the people” clause means the same as it does with other parts of the Bill of Rights.

National and State Laws

Recall that the Bill of Rights was originally created to limit the federal government. States made their own gun-related laws for years and still do today. A handful of national gun laws exist based on the commerce clause.

However, as you will read in the McDonald case, states must follow the Second Amendment because of selective incorporation.

Gun laws, such as defining where people can carry, fall within the police powers of the state. Not until 1934, in an era of bootleggers and gangsters, did Congress pass a national statute about possession of guns.

The National Firearms Act required registration of certain weapons, imposed a tax on the sale and manufacture of certain guns, and restricted the sale and ownership of high-risk weapons such as sawed-off shotguns and automatic machine guns. The law was challenged not long after Congress passed the bill and it was upheld by the Supreme Court.

Increased urban crime, protest, and assassinations in the 1960s influenced the passage of the Gun Control Act of 1968. Along with other anti-crime bills that year, the act sought safer streets. It ended mail-order sales of all firearms and ammunition and banned the sale of guns to felons, fugitives, illegal drug users, people with mental illness, and those dishonorably discharged from the military. In reality, the law’s effect was to punish those who owned a gun or used it illegally more than to prevent the purchase or possession of guns.

The Brady Bill

The gun debate came to the forefront again after a mentally disturbed John Hinckley shot President Ronald Reagan in 1981. Reagan survived as did his press secretary James Brady, but Brady suffered a paralyzing head wound. His wife helped organize a coalition to prevent handgun violence.

They pushed for legislation that became the Brady Handgun Violence Prevention Act in 1993. This law established a five-day waiting period for handgun purchases to allow for a background check. The wait also serves as a potential cooling-off period for anyone buying a gun from immediate impulse, anger, or revenge. The law expired in 1998, but a similar policy that established the National Instant Criminal Background Check System has gone into effect.

The Brady Campaign to Prevent Gun Violence reported that the initial Brady law prevented the sale of guns to more than two million people.

The law, however, has several loopholes. Private gun collectors can avoid the background check when purchasing firearms at private gun shows, and some guns can be purchased via the Internet without a background check.

Federal law and 28 states still allow juveniles to purchase long guns (rifles and shotguns) from unlicensed dealers, and the national check system has an insufficient database of non-felon criminals, domestic violence offenders, and mental health patients.

Meanwhile, states have increasingly passed laws favorable to the possession of a gun. The powerful National Rifle Association (NRA) and Republican-controlled legislatures have worked to pass a number of state laws to enable citizens to carry guns, some concealed, some openly. The NRA has also fought in the courts against laws restricting gun ownership.

The Road to Heller

In 2008 the Supreme Court issued its first Second Amendment decision in decades. The case arose out of a Washington, DC, security guard’s desire to travel home with his revolver. Since 1976, a District of Columbia local ordinance barred individuals from keeping a loaded handgun at home without a trigger lock. Security guard Dick Heller and libertarian lawyers filed suit, claiming the ordinance violated his Second Amendment right.

In this case, District of Columbia v. Heller (2008), countless interest groups filed friend of the court briefs. Most members of Congress took positions on the issue. The U.S. solicitor general filed a brief that suggested the Court not reach too far in preventing regulation, as reasonable limits on guns should remain lawful.

Amid the oral arguments in the courtroom, little was said about current gun law across the country, the toll of gun violence, or any precedents. Justice Stephen Breyer did cite some statistics on annual deaths and injuries caused by pistols. “Would it be unreasonable for a city with a high crime rate to ban handguns?” he asked Heller’s lawyer.

For the first time the Court ruled, in a five-to-four decision, that the Second Amendment recognizes an individual’s right to own a gun unrelated to militia service. In the Court’s opinion, Justice Antonin Scalia wrote of the amendment and its history, that it “conferred an individual right to keep and bear arms.

Of course, the right was not unlimited, just as the First Amendment’s right to speech is not” unlimited.

The Heller decision is unique in that it struck down an overreaching law put forth by the District of Columbia, the seat of the federal capital. This was not a state law, and thus it would not directly impact or alter similar bans and limitations in state law or local ordinances beyond DC. That would come with the McDonald decision.