Interpretation of the United States Constitution became the primary duty of the Supreme Court of the United States (SCOTUS) via judicial review as established in Marbury v. Madison in 1803 (Legal Information Institute, 2010). Those who support recontextualization argue that the Constitution should be considered a living, breathing document that must change as social norms and ideology develop through the passage of time, as lectured by Supreme Court Justice Thurgood Marshall in his 1987 bicentennial speech (Marshall, 2016). On the other hand, originalists support a strict adherence to the Constitution’s original written intention (Forte, n.d.). Both viewpoints have been used to challenge or affirm an individual’s right to possess personal firearms as pertaining to the Second Amendment’s assertion that “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” (U.S. Const. amend. II). Originalists also diverge in their opinions, arguing different definitions of the word militia and the term ‘bear arms.’ The two most recent cases heard by SCOTUS aligned with an originalist perspective when interpreting the Second Amendment (SA) that affirmed an individual’s right to gun ownership. Examining the historical records of the original authors of the Constitution and the Bill of Rights, the Supreme Court’s later interpretations and subsequent rulings were more closely based on original intent, though they upheld many restrictions that were contradictory to their majority opinion.
Most proponents of recontextualization when interpreting the SA argue that the Founding Fathers never envisaged the changes in weaponry that would occur as time progresses (Ingraham, 2016). For instance, the 4th U.S. Circuit Court of Appeals recently upheld a Maryland ban on assault weapons, stating, “Put simply, we have no power to extend Second Amendment protections to weapons of war” (The Associated Press, 2017). In United States v. Miller, SCOTUS made a similar argument when they proclaimed,
“The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon” (Legal Information Institute, 1939).
In this argument, SCOTUS does not deny the right of an individual to possess a firearm, but interprets the SA to regulate weaponry to that used by the military, clearly under the impression that a sawed-off shotgun would not be used by a “well regulated militia.” However, this hinges on the definition of militia and the interpretation that it would be equivalent to a government-run military force with arguably superior arms. Additionally, it contradicts later bans and regulations on weaponry that would be used by the military. For instance, the language of the legislation and the parameters that were used in the Federal Assault Weapons Ban, which denied the manufacture and use of semi-automatic weapons by civilians, though they are widely used by the military (Plumer, 2012). This demonstrates the perils of recontextualization when contradictory legal decisions are constructed based on the changing definitions of terms within the SA and Constitution and attempting to argue that the Founders did not have the foresight to imagine the technological advancement of arms and the evolving social norms of the country.
The second prominent viewpoint when interpreting the SA is that of originalism, which contends that the words should maintain their meaning as originally written. This has led to a divergence of understanding as well, with one side arguing that the SA refers to the rights of a collective militia to bear arms, while the opposing viewpoint reasons that it is an individual right. Nathan Kozuskanich, in his article Originalism in a Digital Age, focused on the term ‘bear arms’ and its contextual meaning to conclude that the SA only guarantees a collective right to bear arms (Kozuskanich, 2009). In District of Columbia v. Heller, Justice Scalia argued that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning” (Legal Information Institute, 2008). Kozuskanich does not refute this point but challenges the common definition of ‘bear arms,’ stating “Scalia's originalism is deeply flawed and unsubstantiated by the documentary record, and the evidence to refute him is just a few clicks of the mouse away” (2008, p. 586). To bolster his position Kozuskanich examined historical documents contained in digital archives via keyword search, such as the term ‘bear arms.’ He states that out of 210 documents he examined that used the phrase outside of the Bill of Rights, the term was tied to a military context in 202 of them (2008, p. 587). While thorough and covering quite a large body of documents, his research, however, is selective, as it primarily searched newspapers. He fails to address any documentation written by the authors of the SA itself or the controversy surrounding the creation of the Constitution and the Bill of Rights. The SA authors’ sentiments regarding the amendment should take precedence when attempting to discover the meaning of its original intent, which will be addressed later in this discourse.
Reva B. Siegal, in her article Dead or alive: originalism as popular constitutionalism in Heller, examines both sides of the originalist debate in District of Columbia v. Heller (2009). Like Kozuskanich, the dissenters argued that “the Second Amendment protects only ‘a right to use and possess arms in conjunction with service in a well-regulated militia’” (Siegal, 2009, p. 196). A main component of their debate is that Madison included a conscientious objector clause in the original draft which read, “but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person” (Siegal, 2009, p. 197). The majority argued that drafts cannot be used to discover original intent, which seems shortsighted (Siegal, 2009, p. 197).
Siegel also thoroughly examines the majority opinion of Heller and its contradictory nature. First, the majority supported the notion of the two clauses of the SA being separate—the phrase “a well regulated Militia, being necessary to the security of a free State” was prefatory while the phrase “the right of the people to keep and bear Arms, shall not be infringed” is the operative clause, which is the basis for an individual’s rights within the SA (Siegal, 2009). They argued that the prefatory clause emphasized the SA’s republican “guarantee against government tyranny,” while the operative clause related to the individual’s rights (Siegal, 2009, p. 240). Moreover, the majority stated that most prohibitive gun laws would remain constitutional and conceded that this defies the purpose of the prefatory clause, with their decision only upholding the operative clause (Siegal, 2009). While the opinion of the Heller case is a boon for the originalist perspective, the decision fails to uphold all aspects of the SA’s original intent.
To come to an accurate conclusion about the SA’s original intent, historical records by its authors, which are pertinent to the SA’s content, must be scrutinized. The debate over the SA began before it was introduced into American law within the Bill of Rights. It was over these rights’ exclusion in the U.S. Constitution that one of its primary sponsors, George Mason, refused to sign with the rest of the delegates ("George Mason's Objections to the Constitution," n.d.). Examining Mason’s Master Draft of the Bill of Rights, the clause regarding bearing arms is clearer in its meaning:
That the People have a Right to keep and to bear Arms; that a well regulated Militia, composed of the Body of the People, trained to arms, is the proper, natural, and safe Defence of a free State; that Standing Armies in Time of Peace are dangerous to Liberty, and therefore ought to be avoided as far as the Circumstances and Protection of the Community will admit; and that in all Cases, the military should be under strict Subordination to, and governed by the Civil Power (Pittman, 1955).
Separating each clause with semicolons, versus the more ambiguous comma in the final document, presents each clause as a separate statement and idea. Furthermore, the right that the dissenters in Heller argued confirmed that the term ‘bear arms’ was linked with military service—the clause about conscientious objection—is not contained in this passage but further in the document, plainly not connecting an individual’s right to bear arms solely with military service (Pittman, 1955).
In addition to the Master Draft of the Bill of Rights, correspondence between the authors and additional written and oral accounts provides further understanding of their intentions. The main concept behind the ‘militia’ was that all men capable of bearing arms in the country should be armed and ready to defend the country either against foreign invaders or a tyrannical government. Furthermore, they establish that the militia should not be defined as a standing army—rather it is defense against a standing army. For instance, Tench Coxe of Pennsylvania stated, “As the military forces which must occasionally be raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article (of amendment) in their right to keep and bear their private arms” (Straub, Gehl, Pifer, Thomas, & Writer, 2014). Noah Webster of Pennsylvania stated, “The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States” Straub et. al., 2014). These examples—a few among many—provide confirmation that the Founders did not view the militia as an organized military force but rather individual citizens of the United States, who not only could arm themselves but should arm themselves.
In conclusion, there are differing opinions on how to interpret the SA and more broadly, the U.S. Constitution. While those who favor recontextualization argue that the Constitution should change with the changing social views of the country, the prevailing opinion is that it should be interpreted using originalism. SCOTUS used originalist concepts in District of Columbia v. Heller to determine that an individual’s right to possess arms is guaranteed by the SA, though they did not strictly adhere to original intent by deeming many gun control laws Constitutional, lending toward a selective interpretation. Examining the original Master Draft of the Bill of Rights, along with statements made by the Founding Fathers responsible for creating and ratifying the Bill of Rights, demonstrates that the original intent upheld an individual’s right to bear arms, with no restrictions placed upon them. Additionally, the people had an obligation to arm themselves to the extent necessary to defend themselves against a foreign invader or a tyrannical government—a right that has been largely curtailed with current gun-control measures. While SCOTUS has reaffirmed that the SA is an individual right, they have failed to uphold many aspects of its original intent, which would then be considered un-Constitutional. Rather than using faulty interpretation to legislate from the bench and decide that most gun laws are Constitutional, the matter of applying new laws to restrict gun ownership should be returned to the United States Congress, with any changes being made as an amendment to the Constitution.
References
The Associated Press. (2017, February 22). Assault Weapons Not Protected by Second Amendment, Federal Appeals Court Rules. Retrieved April 16, 2017, from http://www.nbcnews.com/news/us-news/assault-weapons-not-protected-second-amendment-federal-appeals-court-rules-n724106
Forte, D. (n.d.). The Heritage Guide to The Constitution. Retrieved April 14, 2017, from http://www.heritage.org/constitution/#!/introessays/3/the-originalist-perspective
George Mason's objections to the Constitution. (n.d.). Retrieved April 22, 2017, from http://gunstonhall.org/library/archives/manuscripts/objections.html
Ingraham, C. (2016, June 13). Analysis | What. Retrieved April 18, 2017, from https://www.washingtonpost.com/news/wonk/wp/2016/06/13/the-men-who-wrote-the-2nd-amendment-would-never-recognize-an-ar-15/?utm_term=.f28e753dc9e1
Kozuskanich, N. (2009). Originalism in a Digital Age: An Inquiry into the Right to Bear Arms. Journal of the Early Republic, 29(4), 585-606. doi:10.1353/jer.0.0107
Legal Information Institute. (1939, March 31). United States v. Miller. Retrieved April 16, 2017, from https://www.law.cornell.edu/supremecourt/text/307/174
Legal Information Institute. (2008, June 26). District of Columbia v. Heller. Retrieved April 20, 2017, from https://www.law.cornell.edu/supremecourt/text/07-290
Legal Information Institute. (2010, August 19). Marbury v. Madison (1803). Retrieved April 14, 2017, from https://www.law.cornell.edu/wex/marbury_v._madison_1803
Loyd, G. (1788, June 16). Elliot’s Debates: Volume 3. Retrieved April 23, 2017, from http://teachingamericanhistory.org/ratification/elliot/vol3/june16/
Marshall, T. (2016, May 03). The Bicentennial Speech. Retrieved April 14, 2017, from http://thurgoodmarshall.com/the-bicentennial-speech/
Pittman, R. C. (1955). Our Bill of Rights: How It came to be [Excerpt]. Retrieved April 22, 2017, from http://www.constitution.org/gmason/amd_gmas.htm
Plumer, B. (2012, December 17). Everything you need to know about the assault weapons ban, in one post. Retrieved April 20, 2017, from https://www.washingtonpost.com/news/wonk/wp/2012/12/17/everything-you-need-to-know-about-banning-assault-weapons-in-one-post/?utm_term=.156bf40883b3
Siegel, R. B. (2008). Dead or alive: Originalism as popular constitutionalism in Heller. Harvard Law Review, 122(1), 191-245. Retrieved April 20, 2017, from https://harvardlawreview.org/2008/11/dead-or-alive-originalism-as-popular-constitutionalism-in-heller/
Straub, S., Gehl, R., Pifer, R., Thomas, B., & Writer, T. (2014, November 15). Famous Quotes From The Founding Fathers On Our Right To Bear Arms. Retrieved April 23, 2017, from http://thefederalistpapers.org/second-amendment-2/famous-quotes-from-the-founding-fathers-on-our-right-to-bear-arms
