The Washington PostDemocracy Dies in Darkness

How the Second Amendment was reinterpreted to protect individual rights

Pro-gun groups rally in Virginia in 2020. (Julia Rendleman for The Washington Post)
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To counter calls for stricter gun laws in the wake of the massacre of elementary school students in Uvalde, Tex., Republican politicians cite the Second Amendment, saying that the government cannot infringe on people’s right to protect themselves, and that this is fundamental to preserving liberty.

“[R]arely has the Second Amendment been more necessary to secure the rights of our fellow citizens,” Sen. Ted Cruz (R-Tex.) said at this year’s National Rifle Association convention, held in Houston days after the shooting.

But historians say that the notion that the amendment protects people’s right to have guns for self-defense is a relatively recent reading of the Constitution, born out of a conservative push in the 1980s and ’90s.

The text of the Second Amendment reads: “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 historical consensus is that, for most of American history, the amendment was understood to concern the use of guns in connection with militia service. The Founding Fathers were likely focused on keeping state militias from being disarmed, said Joseph Blocher, who specializes in the Second Amendment at Duke University’s law school.

“An individual’s right to use guns in self-defense is not expressly written in the Constitution,” said Reva Siegel, a law professor at Yale who has written prominent law review articles on the subject.

The interpretation that the Second Amendment extends to individuals’ rights to own guns only became mainstream in 2008, when the Supreme Court ruled in a landmark gun case, District of Columbia vs. Heller, that Americans have a constitutional right to own guns in their homes, knocking down the District’s handgun ban.

“That was the first Supreme Court decision to strike down a gun-control law in constitutional history,” Siegel said — and at the time, the court’s reading was considered broad even to a number of conservatives.

In the ruling, Justice Antonin Scalia wrote that the “militia” phrase was merely a “preface” rather than part of its integral meaning. With the exception of felons, some people deemed to have serious mental illness, “sensitive places” such as schools or courthouses, or “dangerous weapons,” the Second Amendment allows regular people to own firearms in their homes, he argued.

More liberal and moderate justices like Justice John Paul Stevens dissented, advocating for the long-standing view that the amendment concerned the use of guns in connection with militia service.

It is “striking” that professed originalists of the constitution, like Scalia, would set aside such a major phrase in the constitution — about militias — in favor of a more modern-day interpretation, Siegel wrote in her paper.

So how did we get here? She and other historians attribute it to a relatively recent political push by gun rights groups to reinterpret the Constitution. “There has been a decades-long and very successful movement to change the public perception of what the Second Amendment is for,” Blocher said.

Susan Liebell, a political science professor at Saint Joseph’s University in Philadelphia, said that in the ’80s and ’90s, conservatives began advocating for the appointment of judges and funding of scholars who would interpret the Second Amendment more broadly.

Historians and political scientists don’t fully know why the conservative culture around guns hardened. Around the Reagan era, the National Rifle Association shifted from an organization concerned with gun safety to one protecting gun rights at all costs, Liebell said.

In her paper, Siegel traces the pro-gun movement back to the Supreme Court’s Brown v. Board of Education ruling in the 1950s, which desegregated public schools.

She writes that amid the civil rights movement and a nationwide increase in crime, pro-gun supporters framed individual access to guns as part of a law-and-order movement — sometimes in highly racialized terms. In 1975, an NRA leader testified to Congress that “law abiding … gun owners” were different from “criminals.”

“The argument for gun rights divided society into two classes — citizen and criminal,” she wrote.

Any day now, the Supreme Court will rule on its first major gun rights case since Heller. Their ruling could expand the definition of the Second Amendment even further, by knocking down severe restrictions on carrying guns in public.

The Heller decision specifically carved out a right to have guns inside the home. In their next case, the court, with its strong conservative majority, will decide whether the Second Amendment includes the right to bear arms in public spaces. Their ruling could knock down a New York law requiring people to show “proper cause” when applying for a gun license, and it could affect laws in other states in a way that would dramatically expand gun rights again.

“We have moved to more and more radical interpretation of the Second Amendment,” Liebell said.

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