From AR-15s to Stun Guns: A Look at the Evolution of the Second Amendment

Examining the history of Supreme Court rulings.

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Understanding the Second Amendment to the U.S. Constitution is a challenging task. However, by studying the evolution of its interpretation through the courts over the centuries, we can make sense of where it stands today and where it could go in the future.

I hope that by learning about the history of the Second Amendment, we can reduce gun deaths, mass shootings, and deaths by suicide without infringing on the constitutional rights of Americans.

I am not a lawyer, politician, lobbyist, or protester. Instead, I aim to understand historical facts and make logical observations.

Constitutional Language

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.

As with much of the Constitution, the Second Amendment leaves much room for interpretation, which is where the courts come in. Let’s briefly examine some of the federal and Supreme Court rulings related to the Second Amendment.

United States v. Cruikshank

The first Supreme Court case dealing directly with the Second Amendment was in 1875, United States v. Cruikshank, 92 U.S. 542.

During reconstruction, the Federal Government prosecuted white members of the Ku Klux Klan who had participated in the Colfax Massacre, a violent attack on blacks in Louisiana following a controversial gubernatorial election. Three men were convicted, but later their charges were overturned. The federal government appealed, leaving the case in the hands of the Supreme Court.

The Supreme Court ruled in favor of the defendants, agreeing with the lower court that the Federal Government did not have the authority to prosecute individuals for violating the rights of other citizens under the Fourteenth Amendment.

• The Court also ruled that the Second Amendment protected the right to bear arms from acts of Congress and the Federal Government, but there was no such protection from state governments.

The ruling was disappointing from a protection of civil rights point of view, as southern states did not prioritize protecting their black citizens. Instead, the ruling contributed to discrimination and made it easier for states to enact Jim Crow laws.

Presser v. Illinois

The next Supreme Court case where the Second Amendment was a topic under consideration was in 1886, Presser v. Illinois, 116 U.S. 252.

Herman Presser organized and publically paraded with an armed group in Chicago. As a result, he was arrested and appealed because his Fourteenth and Second Amendment rights had been infringed.

The Supreme Court ruled in favor of the state of Illinois and against Presser.

• The Court ruled that the Second Amendment only protected citizens bearing arms for lawful purposes, such as hunting and self-defense. It did not grant citizens the right to organize private military groups.
• The Court also noted that the Second Amendment did not apply to the states but only to the Federal Government.

The ruling set a critical precedent that the right to keep and bear arms is not unlimited, and states have the authority to regulate firearms. Also, it limited private, non-state-run militias.

United States v. Miller

It was not until 1939 that the Supreme Court heard the next case related to the Second Amendment, United States v. Miller, 307 U.S. 174.

The case examined the National Firearms Act of 1934 and considered whether it violated the Second Amendment.

Jack Miller and Frank Layton were arrested for transporting an unregistered sawed-off, 12-gauge, double-barrel shotgun across state lines. In addition, Miller and Layton had not paid the $200 tax for transferring their firearms across state lines. The case was heard in Arkansas, and the judge dismissed the case because part of the National Firearms Act of 1934 violated the Second Amendment. The Federal Government appealed to the Supreme Court.

The Supreme Court overturned the decision in favor of the Federal Government.

• The Court ruled that only firearms with reasonable effectiveness in a well regulated militia can be used. Therefore, all weapons in all forms are not protected under the Second Amendment.

This ruling benefited both sides of the gun rights debate. On the one hand, it opened the door for the Federal Government to regulate some aspects of firearms. But on the other hand, it allowed citizens to possess weapons that are common in a police force or militia.

There wasn’t very much case law directly surrounding the Second Amendment before 2008. Only a handful of other cases mentioned the Second Amendment throughout the years, but they did not directly make rulings that give us insight into interpreting it.

Decisions in the 2000s

For the five more recent cases, I’ll focus on the impact of the Supreme Court’s ruling on the Second Amendment as opposed to the historical context.

• District of Columbia v. Heller, 554 U.S. 570 (2008) The 5–4 Supreme Court decision ruled that D.C.’s handgun ban violated the Second Amendment. The Court ruled that using firearms for self-defense in the home was a protected right. Further, citizens had the right to carry weapons in lawful situations, but not all situations.
• McDonald v. City of Chicago, 561 U.S. 742 (2010) The 5–4 Supreme Court decision ruled that Chicago had essentially banned handguns, and the Heller ruling applied. Using the due process clause of the Fourteenth Amendment as a basis, the Court ruled that states and cities could not infringe on a citizen’s Second Amendment right in traditional circumstances such as self-defense within the home.
• Caetano v. Massachusetts, 577 U.S. 411 (2016) The 9–0 Supreme Court decision ruled that Jamie Caetano was not guilty of a crime for carrying a stun gun for self-defense. The Court confirmed that common-use weapons were protected by the Second Amendment, even non-lethal ones like stun guns.
• New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022), The 6–3 Supreme Court decision ruled that individuals could not be subject to burdensome laws to carry a concealed weapon. Specifically, the Court ruled that laws requiring a gun owner to show a special need over the general community to carry a concealed weapon violate the Second Amendment. The ruling said laws of that nature were too burdensome.

Other:

• New York State Rifle & Pistol Association, Inc. v. City of New York, 590 U.S. ___(2020) This was ruled per curiam (moot) because New York City changed its laws to allow citizens to transport their guns to and from reasonable locations such as second homes, and gun ranges. Three justices led by Alito dissented, seeing it as a missed opportunity to reinforce the Heller and McDonald decisions.
• Bump stocks are currently being challenged in many state courts, and the decisions regarding their constitutionality have been ruled both ways. What is being argued is more related to whether or not bump stocks make a weapon automatic rather than if the Federal Government has the right to impose such a restriction. Bump stocks could be the next Second Amendment issue that makes its way to the Supreme Court.

Supreme Court, The Roberts Court 2022Photo byWikimedia Commons

Current Restrictions (Federal & State)

The lists below highlight the areas that are regulated federally and within states. State laws vary widely, and most of the state restrictions below only apply to certain states. Many of the “reasonable restrictions” below could come under further scrutiny if relevant cases make it to the Supreme Court.

Reasonable federal restrictions for now:

• Gun-free zones, age restrictions to purchases, background checks, and bans on bump stocks, silencers, and fully automatic firearms.

Reasonable state restrictions for now (no repeats):

• Permits to purchase, own, carry or concealed carry, waiting periods for gun purchases, limits on purchases per period (ex. per month), limits on magazine sizes, storage requirements, gun registrations, state-issued ID cards to purchase, and red-flag laws (temporary confiscation if the owner is deemed dangerous to themselves or others)

Both the federal and state governments can tax guns through excise and sales tax. In addition, laws exist to disallow the activities and formation of private militias.

States and cities currently hold much more power than the Federal Government regarding regulating firearms. However, any requirements need to be reasonable and not infringe on traditional uses, including self-defense within the home and hunting.

Conclusion

While the Supreme Court has been weighing in more on interpreting the Second Amendment in recent years, there still needs to be many more rulings before there is clarity on the meaning of the Second Amendment.

Second Amendment: 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.

Every state has different laws surrounding the Second Amendment, and knowing the laws where you live is essential. Whether you like the rights granted by the Second Amendment or not, your best bet to make changes is to lobby your local and state officials.

If recent Supreme Court cases tell us anything about guns, they are here to stay. So to combat rising gun deaths, mass shootings, and deaths by suicide, citizens, along with the government at all levels, should look at areas beyond the Second Amendment to reduce the numbers.

What do you think should be done to address these issues?