The Second Amendment is at the center of the guns rights debate following the February 14th school shooting in Parkland, Florida. Typical culprits blamed for the United States’ gun violence problem range from mental health to the prevalence of American guns. However, in the United States, the gun rights debate almost always circles back to the Second Amendment.
What many Americans don’t know, however, is that their interpretation of the Second Amendment is, historically speaking, quite radical.
The Second Amendment reads: “A well regulated militia being necessary to the security of a free state, the right of the people to bear arms shall not be infringed.”
The Second Amendment was somewhat of a cast-aside amendment, not unlike the amendment that prevented Americans from having to quarter soldiers in their homes. Originally, the courts affirmed that the Second Amendment simply gave state militias the right to bear arms. The individual rights interpretation of the Second Amendment, i.e. the idea that the Second Amendment granted citizens the right to bear arms, was traditionally a radical viewpoint. It was even once cast aside by conservative Chief Justice Warren Burger as “a fraud.”
In fact, the Second Amendment has only been frequently used to defend the rights of guns owners since the 1967 Mulford Act, a California State law which prohibited the carrying of loaded guns in public places.
The Mulford Act was a response to the Black Panther Police Patrols. Tired of being harassed by the Oakland police, Black Panther party leaders had started “policing the police,” armed with loaded guns and law books, ready to inform those arrested of their constitutional rights. Black Panther Party founder Huey Newton, in law school at the time, had become familiar with the individual rights interpretation of the Second Amendment. He argued that the Second Amendment gave him the right to carry a loaded weapon in public spaces. Newton and the other Black Panthers ultimately tested this right with an armed march on the California State Capitol in order to defend their Second Amendment Rights against the passage of the Mulford Act in 1967.
The law, however, passed and sparked a slew of other gun control acts across the country. Eventually, a conservative arm of the National Rifle Association (which, prior to the 1970s, had mostly been focused on marksmanship and gun safety) became fixated on the new gun control laws. When this conservative branch took over the NRA’s agenda in 1977, the group began promoting an individual rights interpretation of the Second Amendment.
In the 1980s, many Republican politicians (including Ronald Reagan and Orrin Hatch) began speaking out against gun control, providing a mainstream political platform to the individual rights interpretation of the Second Amendment. And, thus, the modern gun control debate was born.
In a nutshell, a black power organization pushed a radical interpretation of the Second Amendment into popular political consciousness when white politicians enacted gun control laws against them that ultimately inspired political backlash within the NRA. Pretty simple, right?
Not at all.
The events of the 1960s and 70s changed the conversation surrounding gun control. The individual rights interpretation of the Second Amendment eventually became the conventional interpretation of the amendment.
However, even though many agreed with this modern interpretation of the Second Amendment, the United States still found itself in a bind. See, the Second Amendment is part of the Bill of Rights, and the Bill of Rights doesn’t grant rights to the people. Rather, it prevents the federal government from invading the rights of the people.
Originally, the First Amendment didn’t actually guarantee your right to free speech – states could still pass laws restricting many forms of speech until 1925. What the First Amendment granted citizens, technically, was a pledge that the federal government wouldn’t pass laws restricting freedom of speech.
Several landmark Supreme Court cases throughout the 20th century incorporated the Bill of Rights to the states – that is, the Supreme Court ruled that certain amendments within the Bill of Rights applied to state laws. By 2000, states could no longer pass laws restricting freedom of speech or warranting unreasonable searches and seizures.
So…what does this mean for gun control?
The Second Amendment was officially incorporated in McDonald v. Chicago, a case that challenged Chicago’s handgun ban, in 2010. This meant that for the first time, the individual rights interpretation of the Second Amendment – that is, taking the clause “the right of the people to bear arms shall not be infringed” to mean that the Constitution guarantees individuals the right to own a gun – can overrule certain state gun control laws. Technically, states had the ability to make laws regarding gun control without considering the Second Amendment until its official incorporation in 2010.
Ultimately, the narrative of the Second Amendment and its rise to prominence in modern American political discourse is an important one. But when you argue that the founding fathers wanted to preserve the right of the people to bear arms, that statement is marred by the traditional legal usage of the amendment itself. Additionally, there is evidence to suggest that the founding fathers were set on sustaining an available militia when they drafted the Second Amendment — not on preserving the rights of individuals.
.If you are satisfied with the fact that the Second Amendment has only been a formal state legality for eight years, that’s fine. After all, gay marriage was only legalized in 2015, and free speech didn’t come under Constitutional question until the 1920s. However, in the modern discussion of gun control, it’s simply erroneous to act as if the United States has always upheld the right to bear arms as a founding tenet of democracy. It’s also erroneous to act as though the Second Amendment has a long history of protecting gun rights in this country – I mean, unless you want to act as though eight years is a very long time. When you “uphold the Second Amendment,” you are only upholding the 2010 Supreme Court decision in McDonald v. Chicago.
The discussion on gun rights in this country has been an important one, yes. And this discussion has often involved the Second Amendment. Our modern gun control debate needs to acknowledge the recency of the Second Amendment as law. Our political understanding depends on it.
Much of the information for this article was reported in a More Perfect podcast episode entitled “The Gun Show.” To listen to this podcast episode, click here.