Public Safety and the Right to Bear Arms

Public Safety and the Right to Bear Arms.

Robert J. Cottrol and Raymond T. Diamond
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.
(Second Amendment, U.S. Constitution)

On the morning of Thursday, June 26th 2008, the United States Supreme Court did
something it had not done in nearly seventy years. The high tribunal rendered a decision in a
case involving the Second Amendment, the constitutional provision protecting the right of the
people to keep and bear arms. The case, District of Columbia v. Heller came after decades of
controversy concerning the meaning of the amendment. Was it meant to protect a private right
to have arms for a range of lawful purposes including personal self-defense? Or was the
provision simply meant to ensure that the militia would have arms for the common defense?

The Supreme Court in the anxiously awaited decision in Heller decided by narrow 5 to 4
majority that the Second Amendment was meant to safeguard the right of individuals to have
arms not only for citizen participation in a militia of the whole, but also for personal self-defense
especially self-defense in the home. In doing so the high court declared the District of
Columbia’s ban on the ownership of handguns to be unconstitutional. The decision in Heller
would be followed two years later on June 28th 2010 by a decision in the case of McDonald v.
City of Chicago.

That decision invalidated a similar ban in the Windy City by an equally narrow
margin. By doing so the Court in effect declared that the Second Amendment acted as a
limitation not only on the federal government, of which the District of Columbia is a part, but on
state governments as well. The two decisions handed down more than 200 years after the
adoption of the Bill of Rights would usher in a new era of Second Amendment jurisprudence and
debate.

That new era of jurisprudence and debate continues to reflect the decades of often fierce
controversy over the very meaning of the Second Amendment that had preceded Heller. That
debate in turn was part of the larger national quarrel over gun control, and whether or not the
framers intended to limit the ability of government to prohibit or severely restrict private
ownership of firearms. The debate has been fueled, in part, by the fear generated by this nation’s
high crime rate, including an average of 10,000 homicides committed annually with firearms
including a small but nonetheless unnerving number of mass shootings.

The debate has also been fueled by the existence of broad public support for firearms ownership for self-defense and the fact firearms ownership is common in early twenty-first century America. Survey and social science estimates indicate that there are some 300 million firearms in private hands in the United States with and that between one third and one half of the nation’s homes contain guns.

Two interpretations, broadly speaking, of the Second Amendment had developed in the
debate.
Some commentators stressed the amendment’s militia clause arguing either that the
constitutional provision was only meant to ensure that state militias would be safeguarded
against potential federal encroachment or that the individual’s right to keep and bear arms was
meant to be protected only within the context of a highly regulated, regularly drilling state
militia.
Adherents of both variants of what might be called the collective rights view argue that
the Second Amendment poses little in the way of an impediment to strict, even prohibitory gun
control given the fact that most Americans in modern times are not regularly engaged in the
business of militia training.
Supporters of the individual rights view have stressed the amendment’s second clause,
arguing that the framers intended a militia of the whole, or at least a militia consisting of the
entire able-bodied white-male population.
For them this militia of the whole was expected to perform its duties with privately owned weapons. Advocates of this view have also urged that the militia clause should be read as an amplifying rather than a qualifying clause; that is, while maintaining a “well-regulated militia” was a major reason for including the Second Amendment in the Bill of Rights, it should not be viewed as the sole or limiting purpose.

The framers also had other reasons for proposing the amendment, including protecting the right of individual self defense.
The right to keep and bear arms became controversial in the late twentieth century, and yet for much of the nation’s history constitutional commentators extolled the right as a fundamental cornerstone of liberty that could not be denied free people. This widespread agreement occurred in part because of the frontier conditions that existed in many parts of the country from the colonial period through much of the nineteenth century. The role of privately owned arms in achieving American independence, particularly in the early years of the Revolution, helped build this consensus. The often violent and lawless nature of American society also contributed to the widespread view that the right to possess arms for self-defense was fundamental.

But the Second Amendment and the right to keep and bear arms cannot be understood
solely through an examination of American history.
Like other sections of the Bill of Rights, the Second Amendment was an attempt to secure what was believed to be a previously existing right.
The framers of the Bill of Rights did not believe they were creating new rights.
Instead, they were attempting to prevent the newly formed federal government from encroaching on
rights already considered part of the Anglo-American constitutional heritage.

To understand what the framers’ intended the Second Amendment to accomplish, it is
necessary to examine their world and their view of the right to bear arms as one of the traditional
“rights of Englishmen.” The English settlers who populated North America in the seventeenth
century were heirs to a tradition over five centuries old governing both the right and the duty to
be armed. At English law the idea of an armed citizenry responsible for the security of the
community had long coexisted, perhaps somewhat uneasily, with regulation of the ownership of
arms, particularly along class lines. The Assize of Arms of 1181 required the arming of all free
men. Lacking both professional police forces and a standing army, English law and custom
dictated that the citizenry as a whole, privately equipped, assist in both law enforcement and
military defense. By law all men ages 16 through 60 were liable to be summoned into the
sheriff’s posse comitatus. All persons were expected to participate in the hot pursuit of criminal
suspects, the “hue and cry,” supplying their own arms for the occasion. There were legal
penalties for failure to participate. The maintenance of law and order was a community affair, a
duty of all citizens.

And all able-bodied men were considered part of the militia and were required, at least
theoretically, to be prepared to assist in military defense. The law required citizens to possess
arms. Towns and villages were required to provide target ranges in order to maintain the martial
proficiency of the yeomanry. Despite this, the English discovered that the militia of the whole
maintained a rather indifferent proficiency and motivation. By the sixteenth century the practice
was to rely on select bodies of men intensively trained for militia duty rather than on the armed
population at large.

Although English law recognized a duty and a right to be armed, both were highly
circumscribed by English class structure. The law regarded the common people as participants in
community defense, but it also regarded them as a dangerous class, useful perhaps in defending
shire and realm but also capable of mischief with their weapons, mischief toward each other,
their betters, and their betters’ game. Restrictions on the type of arms deemed suitable for
common people had also long been part of English law and custom. Game laws had long been
one tool used to limit the arms of the common people. The fourteenth-century Statute of
Northampton restricted the ability of people to carry arms in public places. A sixteenth-century
statute designed as a crime control measure prohibited the carrying of handguns and crossbows
by those with incomes of less than 100 pounds a year. After the English Reformation, Catholics
were also often subject to being disarmed as potential subversives.

The need for community security had produced a traditional duty to be armed at English
law, but it took the religious and political turmoil of seventeenth-century England to transform
that duty into a notion of a political or constitutional right. Attempts by Stuart Kings Charles II
and James II to disarm large portions of the population, particularly Protestants and suspected
political opponents, met with popular resistance and helped implant into English and later
American constitutional sensibilities the belief that the right to possess arms was of fundamental
political importance. These efforts led to the adoption of the seventh provision of the English Bill
of Rights in 1689:
That the subjects which are Protestants may have arms for their defence suitable to their
conditions and as allowed by law.”

By the eighteenth century, the right to possess arms, both for personal protection and as a
counterbalance against state power, had come to be viewed as one of the fundamental rights of
Englishmen on both sides of the Atlantic. Sir William Blackstone, whose Commentaries on the
Laws of England greatly influenced American legal thought both before the Revolution and well
into the nineteenth century, listed the right to possess arms as one of the five auxiliary rights of
English subjects without which their primary rights could not be maintained:
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having
arms for their defense, suitable to their condition and degree and such as are allowed by law. Which is
also declared by the same statute … and is indeed a public allowance, under due restrictions, of the
natural right of resistance and self-preservation, when the sanctions of society and laws are found
insufficient to restrain the violence of oppression.

If some five centuries of English experience had transformed the duty to be armed for the
common defense into a right to be armed, in part, to resist potential political oppression, a similar
evolution in thought had occurred in the American colonies between the earliest seventeenth century
settlements and the American Revolution. Early English settlement in North America
had a quasi-military character, an obvious response to harsh frontier conditions. Governors of
settlements often held the title of militia captain, reflecting both the civil and military nature of
their office. In order to provide for the defense of often isolated colonies, special effort was made
to insure that white men, capable of bearing arms, were brought into the colonies.
Far from the security of Britain and often facing hostile European powers at their borders,
colonial governments viewed the arming of able-bodied white men and the requirement for
militia service as essential to a colony’s survival. The right and duty to be armed broadened in
colonial America.

If English law qualified the right to own arms by religion and class, those considerations
were significantly less important in the often insecure colonies. While the English upper classes
sought to restrict the ownership of arms on the part of the lower classes in part as a means of
helping to enforce game laws, there were significantly fewer restrictions on hunting in North
America with its small population and abundant game. And if by the seventeenth century the
concept of the militia of the whole had become largely theoretical in England, in America it was
the chief instrument of colonial defense. From the beginning, conditions in colonial America
created a very different attitude toward arms and the people.

Race provided another reason for the renewed emphasis on the right and duty to be armed
in America. Britain’s American colonies were home to three often antagonistic races — red,
white, and black. For the settlers of British North America, an armed and universally deputized
white population was necessary not only to ward off dangers from the armies of other European
powers but also to ward off attacks from the indigenous Indian population that feared the
encroachment of English settlers on their lands. And an armed white population was essential to
maintain social control over blacks and Indians who toiled unwillingly as slaves and servants in
English settlements. This helped broaden the right to bear arms for whites. The need for white
men to act not only in the traditional militia and posse capacities but also to keep order over the
slave population helped lessen class, religious, and ethnic distinctions among whites in colonial
America. That need also helped extend the right to bear arms to classes traditionally viewed with
suspicion in England, including indentured servants.

The colonial experience helped strengthen the appreciation of early Americans for the
merits of an armed citizenry. That appreciation was of course further strengthened by the
experience of the American Revolution. The Revolution began with acts of rebellion by armed
citizens. And if sober historical analysis reveals that it was actually American and French
regulars who ultimately defeated the British and established American independence, the image
of the privately equipped rag-tag militia successfully challenging the British Empire earned a
firm place in American thought and helped influence American political philosophy. For the
generation that authored the Constitution, it reinforced the lessons their English ancestors had
learned in the seventeenth century. It revitalized Whiggish notions that standing armies were
dangerous to liberty. It helped transform the idea that the people should be armed and security provided by a militia of the people from a matter of military necessity into a political notion, one that would find its way into the new Constitution.

This view that an armed population contributed to political liberty as well as community
security found its way into the debates over the Constitution and is key to understanding the
Second Amendment. Like other provisions of the Constitution, the clause that gave Congress the
power to provide for organizing, arming, and disciplining the militia excited fears among those
who believed that the proposed Constitution could be used to destroy both state power and
individual rights. It is interesting, in light of the current debate over the meaning of the Second
Amendment, that both Federalists and Anti-Federalists assumed that the militia would be one
that enrolled almost the entire white-male population between the ages of 16 and 60 and that
militia members would supply their own arms.

But many feared that the militia clause could be used both to do away with the state’s
control over the militia and to disarm the population. Some expressed fear that Congress would
use its power to establish a select militia. Many viewed a select militia with as much
apprehension as they did a standing army. The English experience of the seventeenth century had
shown that a select militia could be used to disarm the population-at-large. Among others,
Richard Henry Lee of Virginia expressed the fear that a select militia might serve this end.6
In their efforts to answer critics of the Constitution, Alexander Hamilton and James
Madison addressed the charges of those critics who argued that the new Constitution could
destroy both the independence of the militia and deny arms to the population. Hamilton’s
responses are particularly interesting because he wrote as someone who was openly skeptical
concerning the military value of the militia of the whole.
The former Revolutionary War artillery officer conceded that the militia had fought bravely during the Revolution, but he argued it proved no match when pitted against regular troops.

Hamilton urged the creation of a select militia that would be more amenable to military training and discipline than the population as a whole. Despite this he conceded that the population as a whole should be armed.
But if Hamilton gave only grudging support to the concept of the militia of the whole, Madison, author of the Second Amendment, was a much more vigorous defender of the concept.
In The Federalist, Number 46, he left little doubt that he saw the armed population as a potential
counterweight to tyranny:
[L]et a regular army, fully equal to the resources of the country, be formed; and let it be
entirely at the devotion of the federal government: still it would not be going too far to say
that the State governments with the people on their side would be able to repel the danger.
The highest number to which according to the best computation, a standing army can be
carried in any country does not exceed one hundredth part of the whole number of souls; or
one twenty-fifth part of the number able to bear arms.

This proportion would not yield, in the United States an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen among themselves, fighting for their common liberties and united and conducted by governments
possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.
Those who are best acquainted with the late successful resistance of this country against the British arms will be most inclined to deny the possibility of it.

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.

This desire to maintain a universal militia and an armed population played a critical part in the
adoption of the Second Amendment. The amendment, like other provisions of the Bill of Rights, was
designed to prevent the newly created federal government from encroaching on rights already enjoyed by
the people. It is important to remember that firearms ownership, for self-defense and hunting, was
widespread with few restrictions, at least for the white population. It is also significant that the universally accepted view of the militia, at the time, was that militiamen would supply their own arms.

One year after the ratification of the Bill of Rights Congress passed legislation reaffirming the notion of a privately equipped militia of the whole. The act, titled “An Act more effectually to provide for the National
Defense by establishing a Uniform Militia throughout the United States,” called for the enrollment of
every free, able-bodied white-male citizen between the ages of 18 and 45 into the militia. The act required
every militia member to provide himself with a musket or firelock, a bayonet, and ammunition.

The decades between the adoption of the Second Amendment and the Civil War brought little
opportunity for judicial interpretation of the constitutional provision. While a number of jurisdictions had
laws prohibiting the carrying of concealed weapons, there were few restrictions concerning the ownership
or the open carrying of arms in antebellum America. Most laws restricting the possession of firearms
were to be found in the slave states of the antebellum South. These laws generally prohibited the
possession of firearms on the part of slaves and free blacks. Outside of the slave states the right to have
arms was generally not impaired, not even for free Negroes. There was no federal legislation restricting
firearms ownership, and since Barron v. Baltimore (1833) held that the Bill of Rights only limited
the power of the federal government, there was no occasion before the Civil War for the federal courts to examine the issue.

If in the antebellum era there was an absence of federal court decisions on the Second Amendment, there was nonetheless widespread agreement concerning the scope and meaning of the provision among antebellum commentators and in the limited number of state court decisions that examined the issue. Noted jurist and legal commentator St.

George Tucker contrasted the Second Amendment’s robust guarantee of a right to keep and bear arms with the more restrictive English guarantee, noting that class restrictions and game laws had not limited the American right in the way that the English right had been limited. Supreme Court Justice Joseph Story also regarded the right as fundamental:
The right of the citizens to keep, and bear arms has been justly considered, as the palladium of the
liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power
of rulers; and will generally, even if they are successful in the first instance, enable the people to resist,
and triumph over them.

If leading antebellum commentators saw the right as central to a free people, federal
courts were largely silent on the subject. The only discussion in the Supreme Court on the
subject before the Civil War came m Justice Taney’s opinion in Dred Scott v. Sandford (1857).
Taney indicated that African Americans, slave or free, could be denied the right to possess arms
just as they could be denied freedom of speech, assembly, and travel.
Despite the silence of the federal courts on the subject, state courts began developing a Joseph Story, Commentaries on the Constitution of the United States jurisprudence of the right to keep and bear arms, interpreting relevant provisions of state constitutions.

These cases attempted to balance the right to bear arms against competing interests
in public safety. Generally state courts upheld prohibitions against carrying concealed weapons.
Some state courts limited the right to carry arms to those weapons that were deemed suitable for
use in “civilized warfare,” in an attempt to prohibit the carrying of weapons that were thought to
be used exclusively for criminal purposes. Most of these cases involved restrictions on carrying
concealed firearms. In one antebellum case the Georgia Supreme Court decided that the Second
Amendment applied to that state.

It would take the turmoil of the Civil War and Reconstruction to bring the Second
Amendment before the Supreme Court. The end of the Civil War brought about a new conflict
over the status of former slaves and the power of the states. The defeated white South sought to
preserve as much of the antebellum Southern social order as could survive Northern victory and
national law. Southern states were not prepared to accord to the newly emancipated black
population the general liberties enjoyed by white citizens. Indeed, former slaves did not even
have the rights that Northern states had long given their free Negro populations.
In 1865 and 1866 Southern states passed a series of statutes known as the black codes.
These statutes were designed, in part, to ensure that traditional Southern labor arrangements
would be preserved. They often required blacks to sign labor contracts that bound black
agricultural workers to their employers for a year. Blacks were forbidden from serving on juries
and could not testify or act as parties against whites.
Vagrancy laws were used to force blacks into labor contracts and to limit freedom of movement.
And as further indication that the former slaves had not yet joined the ranks of free citizens, Southern states passed legislation prohibiting blacks from carrying firearms without licenses, a requirement to which whites were not subjected.

A Mississippi statute provides a typical example of restrictions of this kind:
Be it enacted,… that no freedman, free Negro or mulatto, not in the military service of the
United States government, and not licensed so to do by the board of police of his or her
county, shall keep or carry firearms of any kind, or any ammunition, dirk or bowie knife, and
on conviction thereof in the county court shall be punished by fine, not exceeding ten dollars,
and pay the cost of such proceedings and all such arms or ammunition shall be forfeited to the
informer; and it shall be the duty of every civil or military officer to arrest any such freedman,
free Negro or mulatto found with any such arms or ammunition, and shall cause him or her to
be committed to trial in default of bail.

Such measures caused strong concerns among Northern Republicans. Many charged that
the South was trying to reinstate slavery and deny former slaves those rights long considered
essential to a free people. The news that the freedmen were being deprived of the right to keep
and bear arms was of particular concern to champions of Negro citizenship. For them the right of
the black population to possess weapons went beyond symbolic importance. It was important
both as a means of maintaining the recently reunited union and as a means of insuring against the
virtual re-enslavement of those formerly in bondage. Faced with a hostile South determined to
preserve the antebellum social order, Northern Republicans were particularly alarmed at
provisions that preserved the right to keep and bear arms for former Confederates while
disarming blacks, the one group in the South with clear unionist sympathies. This helped
convince many Northern Republicans to seek national enforcement for the Bill of Rights. This
effort would play a major role in the adoption of the Fourteenth Amendment.

The debates over the Fourteenth Amendment and the civil rights legislation of the
Reconstruction era indicate the intention of many members of Congress to protect the right to
keep and bear arms and other provisions of the Bill of Rights against state infringement.
Representative Jonathan Bingham of Ohio, who authored the Fourteenth Amendment’s
privileges or immunities clause, and other Republican supporters of the Fourteenth Amendment
expressed the view that the clause applied the Bill of Rights to the states. The Southern efforts to
disarm the freedmen and to deny other basic rights to former slaves played an important role in
convincing the 39th Congress that traditional notions concerning federalism and individual rights
needed to change.

If the events of Reconstruction persuaded the 39th Congress of the need for applying the
Bill of Rights to the states, the Supreme Court in its earliest decisions on the Fourteenth
Amendment moved to uphold the antebellum federal structure. The Supreme Court’s first
decision on a Second Amendment claim came about after the enactment of the Fourteenth
Amendment. The decision examined the extent to which the amendment protected citizens
against private actions infringing on the right to bear arms. The decision came in the case of
United States v. Cruikshank (1875). The case involved charges brought by federal officials.

The most comprehensive discussion of the incorporation issue is Michael Kent Curtis’ No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (New York, 1986). For an important discussion of the 39th Congress’s views concerning the Second Amendment , its applicability to the states through the Fourteenth Amendment and the importance of Reconstruction era civil rights legislation to an understanding of this issue, see Stephen P. Halbrook, Freedmen, the Fourteenth Amendment and the right to bear arms, 1866-1876 (Westport, Conn., 1998) against William Cruikshank and others for violating the constitutional rights of a group of black men who were attempting to vote.

The charges included claims that Cruikshank and his associates violated the right of the black men to peaceably assemble and to bear arms. The black men were carrying weapons to the polls because they feared a mob attack to prevent them from voting.
The Court in a majority opinion authored by Chief Justice Morrison R. Waite held
that the First and Second Amendments were limitations on Congress, not private individuals.
The opinion held that the federal government had no power to protect citizens against private
actions that deprived them of their constitutional rights. For protection against private criminal
action the individual was required to look to state governments.

The next case in which the Court examined the Second Amendment, Presser v. Illinois,
more directly involved the question of whether or not the Second Amendment in combination
with the Fourteenth set limits on the ability of states to limit the right to bear arms.
That case involved a challenge to an Illinois statute that prohibited individuals who were not members of
the organized militia from parading with arms. Justice William Woods’ majority opinion
interpreted the statute as not infringing on the right to keep and bear arms. Woods nonetheless
used the case to indicate that the Second Amendment did not limit state governments even in
light of the Fourteenth Amendment. Woods also indicated that because the citizenry at large
constituted a reserve militia that was a resource for the United States government, it could not be
disarmed by state governments, independent of Second Amendment considerations. Presser
would be cited as cited as precedent indicating that the Fourteenth Amendment did not apply the
Second Amendment to the states until the Court’s decision in McDonald in 2010.

The nineteenth century would come to an end with legal commentators in general
agreement that the right to keep and bear arms was an important one for a free people.
Michigan jurist Thomas M. Cooley discussed the subject in his treatise on constitutional law.
Anticipating some of the modern debate on the subject, Cooley expressed the view that the
amendment should not be seen as restricted only to members of the militia. He noted that the
purpose of the Second Amendment was to allow the people to provide a check against potential
governmental usurpation of power. Cooley went on to note that a restriction of the right to
arms to members of the militia, whose membership could be limited by the government, would
allow the government to defeat the very purpose of the amendment.

The nineteenth century would end with reasonably broad agreement among those
constitutional commentators who considered the issue that the right to have arms was an
important safeguard for the freedoms of the American people. It should be added that that
agreement was a broad agreement in principle that usually did not extend to the messy details of
what kinds of firearms regulation were and were not consistent with the principle. Because
firearms regulation was a matter of state and local law, the federal courts, adhering to the view
that the Second Amendment did not apply to the states, had little to say on the subject.
As late as 2009, the United States Court of Appeals for the Seventh Circuit ruled against Otis McDonald’s claim that Chicago’s handgun ban was unconstitutional citing Presser for the proposition that the Second Amendment did not limit the actions of state governments. See: McDonald v. City of
Chicago 567 F. 3rd 856 (2009). The Supreme Court reversed the 7th Circuit the following year.

State courts did develop a jurisprudence on the right to have arms examining state firearms
regulation in light of provisions in state constitutions protecting the right to have arms. These
cases usually provided state and local governments more leeway in regulating the carrying of
arms, particularly concealed weapons, than in restricting the ownership of arms. Thus the 1871
Tennessee case of Andrews v. State held that the right to bear arms was an incident of militia
service and subject to reasonably broad state regulation, while the right own arms was a private
right with limitations on state restriction.

The early twentieth century would bring about new efforts at firearms regulation and with it
new attitudes concerning arms and the Second Amendment. Traditional beliefs concerning the
importance of arms were frequently being tempered by the view that whole classes of people
were unfit to exercise this prerogative. In the South, state governments, freed from the federal
scrutiny that existed in the Reconstruction era, used laws regulating concealed weapons to
accomplish what had been attempted with the postwar black codes. Discriminatory enforcement
of these laws often left blacks disarmed in public places while whites remained free to carry
firearms. This state of affairs helped facilitate lynching and other forms of racial violence during
the Jim Crow era.
But the South was not the only region where social prejudice restricted the right of
disfavored minorities to possess firearms. If the white South saw armed blacks as a threat,
politicians in other regions saw a similar threat arising from large-scale Southern and Eastern
European immigration. The new immigrants, like others before them, often met hostile
receptions. They were associated with crime and anarchy and stereotyped as lazy and mentally
unfit.

Many native-born Americans feared the immigrants would bring anarchist-inspired crime
from Europe, including political assassinations and politically motivated armed robberies. These
fears led in 1911 to passage of New York’s Sullivan Law. This state statute was aimed at New
York City, a place where the large, foreign-born population was believed to be peculiarly
susceptible to crime and vice.

The Sullivan Law went far beyond typical gun control measures of the day. It prohibited the unlicensed carrying of weapons and required a permit for the ownership or purchase of pistols. Violation of the statute was a felony. The first person convicted under the statute was a member of one of the suspect classes, an Italian immigrant.

It was in this early twentieth century atmosphere that the collective rights view of the right
to bear arms first began to attract serious attention from the judiciary. In one of the earliest cases
to adopt this view Salina v. Blaksley, which involved a person convicted of carrying a revolver
while intoxicated, the Supreme Court of Kansas interpreted that state’s constitutional provision
protecting the right to bear arms as a protection that only applied to the militia and not for
individual purposes.

In 1911 Maine Chief Justice Lucillius A. Emery authored an essay “The Constitutional Right to Keep and Bear Arms” in the Harvard Law Review urging that the right to bear or carry arms should be viewed as a right limited to militia service. He also noted that legislatures could not prohibit the keeping or ownership of arms, echoing the distinction made by the Tennessee Court in Andrews.
These developments affected relatively few Americans at the beginning of the twentieth
century. The nation was still largely rural. Firearms ownership for both self-defense and
hunting were fairly commonplace. And statutes regulating firearms ownership were relatively
rare and unobtrusive. For most citizens access to firearms was largely unimpaired and there was
not too much occasion for either the courts or constitutional commentators to say much
concerning the Second Amendment.

This situation would change after the First World War. Prohibition brought about the rise
of organized gangs engaged in the sale of bootlegged alcohol. Territorial rivalries among the
gangs led to open warfare on the streets of the nation’s major cities. That warfare was made even
more terrifying by the introduction of a terrifying new weapon, the Thompson submachine gun.
A fully automatic weapon, developed too late for use in World War I, the “Tommy Gun” was
one of the first submachine guns in widespread use. Used by violent criminals in their wars on
each other, the Thompson also claimed the lives of a fair number of members of the general
public as well.

The end of the twenties and the end of prohibition did not bring a halt to notorious misuse
of automatic weapons. The rise in the 1930s of such desperadoes as John Dillinger, “Pretty Boy”
Floyd, “Ma” Barker, George “Machine Gun” Kelly, and Clyde Barrow and Bonnie Parker
became a part of American folklore. The exploits of such criminals were made more vivid and
terrifying by the then new medium of talking motion pictures. Thus, the horrors of criminal
misuse of automatic weapons were forcibly brought home to the public.
These events caused the Roosevelt administration to propose the first federal gun control
legislation. The National Firearms Act of 1934 required registration, police permission, and a
prohibitive tax for firearms that were deemed gangster weapons, including automatic weapons,
sawed-off shotguns, and silencers. It is interesting in light of the current debate that the
Roosevelt administration deemed the act a revenue measure, conceding that an outright ban on
such weapons would probably be beyond Congress’ powers.

The 1934 act gave rise to the Supreme Court’s last decision before Heller on the Second
Amendment, United States v. Miller. It was a curious case. Both sides of the Second Amendment
debate have claimed that the decision authored by Justice James C. McReynolds supports their
views. Interestingly, the Court only heard arguments by the government. The federal government
appealed a decision by a federal district court invalidating the National Firearms Act of 1934 in a
case involving the unlicensed transportation of an unregistered sawed-off shotgun. The Court
focused on the weapon in question:
In the absence of any evidence tending to show that the possession of a [sawed-off shotgun] 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.
Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment
or that its use could contribute to the common defense.

Advocates of the collective rights view have emphasized the Miller Court’s focus on the
militia, claiming that it was an indication that the Court saw the Second Amendment as only
being concerned with the preservation of state militias. But the Miller Court’s discussion of the
militia indicates that the Court saw a clear relationship between the individual right and the
maintenance of the militia:
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly
enough that the Militia comprises all males physically capable of acting in concert for the common
defense. “A body of citizens enrolled for military discipline.” And further, that ordinarily when called for
service these men were expected to appear bearing arms supplied by themselves and of the kind in
common use at the time.

Probably the most accurate way to view what the Court did in Miller is to see it as an updating of
the nineteenth-century civilized warfare doctrine. McReynolds’s decision relied on the antebellum
Tennessee case Avmette v. State, which had allowed the state to restrict the carrying of those types of
weapons which were frequently used by criminals and not suitable for the common defense.

The Supreme Court in Miller remanded the case to the lower courts to determine whether or not a sawed-off shotgun was a weapon appropriate for militia use. That determination was never made.
Although Miller was the Court’s most comprehensive exploration of the Second Amendment
before Heller, it had little effect on either firearms regulation or the general public’s view concerning the
right to keep and bear arms. For nearly three decades after Miller little existed in the way of federal
firearms regulation. The Federal Firearms Act of 1938 added a prohibition against individuals with felony
convictions possessing firearms. But that prohibition affected a relatively small percentage of the
population.

State and local legislation existed, but with few exceptions such as the New York Sullivan
Law, these were usually traditional regulations governing the manner of carrying weapons, not outright
prohibitions. Some states banned the sale, but not the possession of pistols. These restrictions were easily
circumvented by purchasing handguns from mail order catalogs. There were few serious attempt to
mount constitutional challenges to these restrictions. The Second Amendment was thus bypassed in the
postwar Supreme Court’s process of applying most of the provisions of the Bill of Rights to the states
although Justice Hugo Black, who had participated in the Miller decision was an advocate of the view that
the Fourteenth Amendment made all of the Bill of Rights applicable to the states.

It would take the turmoil of the 1960s and the tragedy of three assassinations to bring about the birth
of the modern gun control movement and create the still ongoing debate over the meaning of the Second
Amendment. The assassination of President John F. Kennedy in 1963 brought calls for stricter national
controls over the sale of firearms. Urban riots and the assassinations of civil rights leader Martin Luther
King and Senator Robert F. Kennedy helped lead to the passage of the Gun Control Act of 1968, the first
federal legislation that seriously affected the purchasing of firearms for large numbers of Americans.

This legislation limited the purchase of firearms through the mails and also restricted the importation of
surplus military rifles. The act also prohibited the purchase of firearms by those with felony convictions,
even though the legislation provided no means of checking a purchaser’s record. Some of the
provisions of the 1968 act would later be modified by legislation passed in 1986.

The 1968 act proved to be something of a watershed. Since then a national debate over gun
control and a subsidiary debate over the meaning of the Second Amendment have become
perennial features in American politics. The rise of a highly visible national gun control
movement since the sixties during has been something new in American political life. Some
adherents of this new political movement have advocated relatively moderate measures. These
have included screening measures designed to prevent individuals with suspect backgrounds,
criminal records or histories of mental instability from purchasing firearms. Such measures are
essentially extensions of firearms regulations that have long existed in many states, attempts to
limit firearms use by undesirable persons. These kinds of regulations have long existed even in
states with state constitutional protection for the right to bear arms and courts willing to enforce
such guarantees. The more modest measures pose little threat to the general public’s right to
possess firearms.

But since the 1960s, others have argued for more radical measures.
Their view has been that state and local government and more importantly the federal government can and should outlaw the general public’s right to possess whole categories of firearms that had previously been owned by large numbers of law-abiding citizens.
Many in the gun control movement argued that ownership of guns for self-defense or as part of a universal citizens’ militia was dangerous and atavistic.
They claimed that the only legitimate reason for civilian firearms ownership was
for sporting purposes, usually hunting, and that even that ownership should be permitted only
under stringent licensing.
Efforts were made to ban firearms that did not meet this “sporting purposes” definition. In the 1970s and 1980s gun control advocates urged the banning of handguns, particularly cheap ones popularly known popularly as “Saturday Night Specials.”
The prohibitions on handgun ownership in Washington and Chicago that gave rise to the Heller
and McDonald litigation were two of the rare successes of the handgun prohibition movement. In
the 1990s many gun control supporters advocated bans on “assault weapons,” a term employed
without great precision to include semiautomatic rifles with military features such as bayonet
lugs and pistol grips, or virtually all semiautomatic rifles, depending on the user’s definition. The
gun control movement scored some success with its campaign against assault weapons. A
handful of states enacted bans on some semi-automatic firearms. Congress enacted a ten year
prohibition on the sale of semiautomatic rifles with military style features in 1994. Congress
refused to renew the ban in 2004.

This advocacy of wholesale restrictions on firearms ownership helped bring about the
modern debate over the meaning of the Second Amendment. Much of the effort to reinterpret
the Second Amendment as a collective right has been an attempt to justify proposed firearms
restrictions that at earlier periods in American history would have been regarded as
unconstitutional. Since the 1960s a vigorous polemical debate over whether the amendment
should be seen as a broad individual right or as a right limited to a highly controlled militia
context has been waged in the nation’s editorial pages and broadcast media.
Despite the passion with which the public debate had been waged, the Supreme Court
managed to keep a curious silence on the issue during the latter decades of the twentieth century.
For decades the Court basically ducked the issue. In the seventies, eighties and nineties, the
lower federal courts upheld gun control legislation either by citing Miller for the proposition that
the Second Amendment only protected the right to bear arms in a militia context when
addressing federal legislation or Presser for the proposition that the amendment did not apply to
the states. The Supreme Court declined to grant certiorari in these cases.

If the Court had an institutional reluctant to directly address the issue of the Second
Amendment and its applicability to the gun control issue, in dicta it was, curiously enough,
willing to acknowledge the right to bear arms in cases extraneous to the gun control issue.
Starting with Justice Harlan’s dissent in the 1961 case Poe v. Ullman, involving a Connecticut
anti-contraception statute, the right to bear arms was often noted in privacy cases:
“The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or
limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty’ is not a series of isolated points priced out in terms of the taking of property; the
freedom of speech, press and religion; the right to keep and bear arms.

Statements by other justices, sometimes in dicta, at other times in statements given to the
press gave heart to supporters of either the individual or collective rights viewpoints, but the
Court would end the twentieth century maintaining its institutional silence on the subject.
If the Supreme Court was reluctant to address the controversy, other important legal actors
were making pronouncements on the Second Amendment and the right to arms more generally.
Before the Court’s decision in Heller, some forty-four of the fifty states had right to keep and
bear arms provisions in their constitutions. If the federal jurisprudence on the right was
somewhat thin, state courts had developed a fairly robust jurisprudence on the subject, ranging
from a fairly restrictive to fairly expansive views of the right. Congress had also played a role in
Second Amendment interpretation. In 1982 the Senate Judiciary Committee’s Subcommittee on
the Constitution issued a report supporting the individual rights view of the amendment. Four
years later Congress passed the Firearms Owners Protection Act protecting the right of interstate
travel with firearms. The statute was prefaced with Congressional findings declaring that the
Second Amendment was an individual right.

The 1980s would see the rise of the academic debate over the Second Amendment. At first
it was a debate that mainly engaged independent scholars not affiliated with universities and
usually connected to groups supporting or opposing stricter gun controls. Because the subject
inherently involves a debate over original intentions or understandings, historians tended to enter
the debate somewhat sooner than scholars in the legal academy. Something of a milestone in the
history of the debate came in 1989 with the publication of Sanford Levinson’s “The
Embarrassing Second Amendment,” in the Yale Law Journal. For the first time since gun
control had become a national issue in the 1960s, a major constitutional scholar in a leading law
journal was arguing that the Second Amendment deserved a serious examination and that the
individual rights view was likely the more accurate one. Levinson’s article spurred other
scholars in law, history and political science to take up the issue with such leading scholars as
Akhil Amar, Saul Cornell, Leonard Levy, Jack Rakove, Paul Finkelman, Laurence Tribe,
William Van Alstyne and Gary Wills, among many others.

The new scholarship undoubtedly played a part in reawakening interest on the part of the
judiciary in the Second Amendment. Supreme Court Justice Clarence Thomas indicated a
favorable disposition toward the individual rights reading of the amendment in the 1997 case
United States v. Printz. Justice Scalia, who would later write the majority opinion in Heller,
expressed support for the individual rights view in scholarly commentary.

A major breakthrough for individual rights advocates came in 2001 with the Fifth Circuit case United States v. Emerson. In Emerson, which involved a Second Amendment challenge to the federal
prosecution of an individual who possessed a firearm in violation of a restraining order, the Fifth
Circuit Court of Appeals held that the Second Amendment was an individual right but that a
restraining order prohibiting possession of firearms on the part of an individual suspected of
domestic violence was reasonable regulation. A 2002 decision by the Ninth Circuit Court of
Appeals in Silveira v. Lockyer upheld California’s ban on assault weapons holding that the
Second Amendment was a collective right The decision seemed written in part to rebut the Fifth
Circuit’s opinion in Emerson.

National politics would also play a role in issues of Second Amendment interpretation. The
very close election of George W. Bush in 2000 brought to national office an administration that
had enjoyed the support of the National Rifle Association whose support may have tipped the
electoral balance in a number of states. One result of this was a new attitude in the Justice
Department more supportive of the individual rights view than had been the case in recent
decades.

In 2004 the Attorney General’s Office under Attorney General John Ashcroft’s
direction issued a formal memorandum on the Second Amendment. The memorandum reflected
Ashcroft’s longstanding support for the individual rights interpretation. As might be expected,
the memorandum met with strong criticism by proponents of stricter gun control and strong
support by opponents. The Ashcroft memorandum was marked by a detailed analysis of the
history and meaning of the Second Amendment, taking into account much of the new
scholarship that had developed since the 1990s.

The debate would continue into the twenty-first century waged in academic journals and the
popular media. As the controversy grew more strident, it would make its way into the 2005
Senate confirmation hearing for future Chief Justice John Roberts. Under questioning from
Wisconsin Senator Russell Feingold, Roberts indicated that he believed that the proper
interpretation of the Second Amendment was still an open issue, one that the courts had not
resolved.
If the courts at the time still had a reticence concerning the Second Amendment, the
political branches of government had traditionally been largely sympathetic to protecting the
right to have arms. During the 1990s and continuing into the twenty-first century an increasing
number of states have passed legislation liberalizing the right of citizens to carry guns for self protection,
a reflection of both public fears of crime and the political skill of the National Rifle
Association. Over forty states have statutes permitting almost anyone legally eligible to own a
pistol to carry a concealed weapon. In 2006 Congress passed legislation prohibiting lawsuits
against firearms manufacturers for criminal misuse of firearms. The legislation contained
findings that the Second Amendment protected a right of individuals regardless of whether or not
they were members of the militia. That same year Congress also passed legislation prohibiting
public officials from disarming citizens during times of natural disaster. This measure was
enacted in part in response to actions taken by New Orleans officials during Hurricane Katrina.
During that crisis New Orleans police confiscated guns from citizens in New Orleans, sometimes
in dramatic confrontations played out on national television.

The political movement to vindicate the right to keep and bear arms had had considerable
political success, limiting national gun control legislation, passing state-wide preemption
legislation that prevented municipalities from enacting bans on various kinds of firearms,
enacting and re-enacting state constitutional right to keep and bear arms provisions. But
vindication in the form of a Supreme Court ruling proclaiming that the Second Amendment
protected the right of individuals for lawful private purposes like self-defense? That remained
elusive and for many it seemed like it might be out of reach. The National Rifle Association
and others looked for a possible case. The handgun ban in the District of Columbia seemed the
likeliest target. The District of Columbia is federal territory. The incorporation question would
not be an issue in the nation’s capital. The District of Columbia ban was draconian, no
handguns allowed, rifles and shotguns had to be disassembled so they could not be used for
home defense. The District government could not claim that this ban was consistent with a
private right to have arms for self-defense.

A suit against the District of Columbia and its handgun ban looked promising, but it was
also fraught with peril. The Courts had not been friendly to the Second Amendment in recent
decades, dicta and out of court statements by some justices notwithstanding. A case that lost
would be disastrous to supporters of the right to keep and bear arms. The NRA was reluctant to
bring the case fearing that a lost case would do far more harm than good. The suit against the
District’s statute was brought by independent attorneys Alan Gura, Robert A. Levy and Clark M.
Neilly III. The attorneys represented Richard Heller a Special Police Officer in the District of
Columbia who was authorized to carry a handgun while guarding a courthouse in the District of
Columbia, but was prohibited from having an operable handgun at home for self-defense. The
District Court for the District of Columbia dismissed the complaint on the grounds that the
Second Amendment only applied to the organized militia.

On March 2007 the U.S. Court of Appeals for the D.C. Circuit in a 2 to 1 decision reversed the District court. The higher court in an opinion written by Judge Laurence H. Silberman declared the ban unconstitutional, a violation of the Second Amendment. The full D. C. Circuit denied the District of Columbia’s petition for
an en banc hearing or hearing by the full court thus letting the panel opinion stand. The issue
could no longer be avoided. For the first time a federal court had declared that a specific piece
of gun control legislation violated the Second Amendment.

The government of the District of Columbia petitioned the Supreme Court for certiorari. It was granted in November of 2007.
The Supreme Court would hear the case and render its decision in June of 2008. The Court’s opinion, written by Justice Antonin Scalia, upheld the circuit court’s decision.
In sum, we hold that the District’s ban on handgun possession in the home violates the Second
Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the
purpose of immediate self-defense.

Justice Scalia’s opinion commanded a bare 5 to 4 majority. It was contested by dissents
from Justices Breyer and Stevens which were joined by Justices Ginsburg and Souter. But
Scalia’s opinion did become the law of the case and the law of the land. The majority opinion
in Heller left many questions unresolved. It stated that the Second Amendment’s protections
was most important for protection of home and family. But the 2008 decision only hinted at
constitutional protection for a right to carry firearms outside the home for protection. Scalia’s
opinion indicated that the link envisioned by the framers between the armed citizen and the
militia at large was still part of the Second Amendment’s purpose, but his opinion also indicated
that the government could ban automatic weapons, the weapons most likely to be put to military
purposes. The majority opinion also stated that weapons that were in common use were
constitutionally protected, but the opinion did not directly address the assault weapons
controversy even though semi-automatic rifles with military features had been in public hands in
large quantities since at least the 1950s.

For lawyers and future courts, the decision was frustrating because the Scalia opinion did not provide a methodology, a level of scrutiny, through which future courts should examine Second Amendment claims. Were allegations that Second Amendment rights were being violated to be subject to the rigors of strict scrutiny that had long been the standard when First Amendment claims were made, or were they to be subject to some lesser standard of review? The Scalia opinion was silent on the subject.
And most significantly of all, the opinion in Heller did not address whether or not the
Second Amendment applied to the states. Most gun control measures are the products of state
and local legislation. A decision that simply recognized the Second Amendment but did not say
that the amendment, in combination with the Fourteenth, provided a limitation on state
governments could leave many Americans with a major right unprotected from serious
infringement.

Application of the Second Amendment to the states would come two years later when the
Supreme Court decided the case of McDonald v. City of Chicago. The named plaintiff in the
case was Otis McDonald, a black veteran of the Korean War who lived in one of the more
dangerous neighborhoods in Chicago. He brought suit for the right to keep a pistol in his home
for protection against gang members. The elderly veteran feared retaliation because he led an
anti-drug campaign in his community. McDonald was joined by other plaintiffs from Chicago
and the nearby suburb of Oak Park which also had a prohibition on handgun ownership.35
McDonald, like Heller, produced a five to four decision.

The Court’s opinion was written by Justice Samuel Alito. That opinion, joined by Chief Justice Roberts, and Justices Kennedy and Scalia rooted the Second Amendment’s application to the states in the Court’s previous jurisprudence that held that most provisions of the Bill of Rights applied to the states through the
Fourteenth Amendment’s Due Process Clause. The fifth vote for application of Second
Amendment rights to the states came from Justice Clarence Thomas who wrote a concurring
opinion emphasizing the history of the Fourteenth Amendment. Thomas opined that the
amendment’s history indicated that the framers of that constitutional provision intended that the
privileges or immunities clause would be the vehicle for applying the Bill of Rights to the states.
Dissenting opinions were written by Justices Breyer and Stevens. Both dissenting opinions
were joined by Justices Ginsburg and Sotomayor.

With the decisions in Heller and McDonald, the Second Amendment would gravitate from
being the subject of academic and polemical debate to being a concern of working attorneys and
jurists. Heller and McDonald had affirmed that the right to keep and bear arms protected a right
of the individual. But the decisions gave few guidelines as to how far that right extended or
how rigorously the courts were supposed to examine restrictions on firearms ownership or use.
Like Heller, McDonald did not give a specific answer as to which types of firearms were
constitutionally protected or whether the right to bear arms protected a right to firearms outside
the home. Cases addressing these issues would start appearing in the lower federal courts and in
state courts after McDonald. For the most part the courts, post McDonald have tended to take a
narrow view of the protection afforded by the Second Amendment reflecting the hostility that the
courts exhibited toward the constitutional provision before the decision in Heller. There have
been a few exceptions. The Seventh Circuit Court of Appeals and Court of Appeals for the DC
Circuit both struck down bans on carrying firearms for protection in Illinois and the District of
Columbia on Second Amendment grounds.

Some federal courts have indicated that while the general ban on individuals with felony
convictions owning firearms is, as the Scalia opinion in Heller noted, “presumptively lawful”
that there may be individuals who are barred from owning firearms because of felony
convictions who may have valid second amendment claims for relief.

In the years between the decision in McDonald in 2010 and 2019, the Supreme Court
seemed to have returned to its pre Heller reluctance to examine Second Amendment claims. In
that period the Court declined to revisit the Second Amendment issue denying petitions for
certiorari in cases where federal circuit courts have issued opinions on assault weapons bans and
the right to carry outside the home. The Court did reiterate its holdings in Heller and McDonald
in the 2016 case of Caetano v. Massachusetts. That case involved a Massachusetts ban on
electric stun guns. The Massachusetts Supreme Judicial Court upheld the ban on the grounds
that stun guns employed a technology unknown to the framers of the Second Amendment. The
Supreme Court, in a per curiam opinion joined by all of the justices, vacated the Massachusetts
Court’s opinion and indicated that the state court was ruling inconsistent with Heller and
McDonald. The decision was as much an affirmation of the notion that lower courts have to
follow Supreme Court rulings as it was a vindication of the right to bear arms.

With a grant of certiorari on January 22, 2019, the Court signaled its willingness to return to
the Second Amendment fray. The case New York State Rifle and Pistol Association v. City of
New York involves a very restrictive pistol control measure in New York City. City residents
are required to have a permit to possess pistols in their homes. They may use that permit to
transport their handguns in a locked container to a range in New York City, but they are
forbidden to transport their pistols to ranges outside of the five boroughs or to second homes that
they may have elsewhere. The regulation was upheld by the Second Circuit Court of Appeals.

As of the writing of this chapter, the Supreme Court has not heard oral arguments on this case,
but many observers believe that the Court may use the case to clarify issues left unresolved in
Heller and McDonald including the extent to which the Second Amendment applies outside of
the home and what standards of review should apply in Second Amendment cases.
Heller and McDonald and the cases that have followed in the wake of the two decisions
should lead us to a new consideration over the Second Amendment, its meaning and how it
might be applied in the twenty-first century.

The idea that the right to keep and bear arms was meant to be tied so closely to membership and participation in a militia that the government has total power to organize or fail to organize is one that can only be sustained through a highly strained reading of the history. Like nineteenth century jurist Thomas Cooley we also believe that such a reading creates an illusory right that the government can defeat at any time simply by the way it decides to organize the militia. We would accept no such reading with any other
provision of the Bill of Rights, nor should we with the Second Amendment.

But to say that the slim majorities were right in Heller and McDonald and that the
individual rights reading of the Second Amendment is the more plausible and stronger reading
should not end the debate. There should be a debate, as Justice Stevens has intimated, as to the
appropriateness of a constitutional amendment to limit the reach of the Second Amendment as
pronounced by Heller and McDonald, and even whether the amendment should simply be
repealed.

Clearly, many advocates of strong gun control measures believe the amendment to be
an anachronism, a relic of an atavistic age of universal militias, posses, slave patrols, vigilantes
and citizens armed against each other. If so, they should make that case. It is a hard case to
make for modern America where the right to self-defense is rightly considered fundamental and
where private gun ownership is widespread. It is also a hard case to make in a nation where
some forty-four states have enacted or re-enacted right to bear arms provisions in their state
constitutions in the twentieth and twenty-first centuries.

In the final analysis, radical constitutional change such as eliminating a right long considered fundamental, should be the result of sustained debate, national consensus and constitutional amendment and not simply the result of ignoring or creatively reinterpreting key constitutional provisions.

There is however an even more interesting debate that might be had with respect to public
safety and the right to bear arms. That debate would involve examining how best to recognize
and protect the right while also allowing legislatures leeway to develop criminologically sound
measures designed to limit, in so far as possible, access to weapons on the part of career
criminals and those who are mentally unstable. Such a debate would involve recognizing that
the right to have arms has been and remains part of the American Constitutional tradition, that it
is valued by large segments of society and that the right sets real limits on governmental
regulation.

It also involves recognizing that measures designed to keep weapons out of undesirable hands are not inconsistent with this right. We have, to date, been unable to develop this kind of consensus in part because of the previous effort to render the Second Amendment meaningless, a non-existent protection for the right of the people to keep and bear arms. It is to be hoped that with Heller and McDonald and with a maturing jurisprudence that provides strong protection for the right to bear arms we can begin a meaningful dialogue on how to protect both the right to bear arms and enhance public safety.