New York City has a very tough, one-of-a-kind handgun law. Handgun owners have to keep their guns at home; they can only transport them out of the home unloaded and in special containers, and they’re not allowed to leave the city with their handguns at all. The Supreme Court has just agreed to hear a case challenging this law as being unconstitutional, a violation of three things: the interstate commerce clause (contained in Article I, Section 8), the right to travel from state to state (contained in Article IV, which is about the obligations of states to each other–and city governments are subdivisions of state governments, constitutionally speaking), and, most significantly for the precedents the Court may set with this case, the Second Amendment, which guarantees “the right to keep and bear arms.”
The original context of the Second Amendment needs to be remembered. It was part of the Bill of Rights that Congress passed and the states ratified early on in the George Washington presidency when the Constitution and the republic that it created were still brand new. At the time, these first ten amendments were all about reassuring the states that the federal government was not going to get too powerful. Freedom of speech, freedom of religion, freedom of the press, freedom from unwarranted searches and excessive bails were all rights that the federal government was promising not to violate. Only in the 20th century, after the ratification of the Fourteenth Amendment in 1868, did the federal courts start treating the provisions of the Bill of Rights as rules that the federal government could enforce against the states. This is important: no aspect of civil liberties or civil rights in the United States can ever be adequately studied or understood without a strong comprehension of federalism, the power dynamic between national power and state power.
Now, where does the Second Amendment fit in? First, let’s get its precise, unabridged words.
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.
Exactly what did the authors of this amendment mean by it when they wrote it? There actually isn’t much record of that, or of how it was talked about in the state legislatures when it went around for ratification along with the other amendments. However, one principle that is fairly well understood is that at the time it was passed, the national army was not considered big enough to provide for national defense without the help of state-level militias, which were composed of private individuals, most of whom were farmers. And, while it isn’t true that passage of the amendment was all about protecting slavery, it is certainly true that slaveholders in the South relied on guns to deter enslaved persons from fleeing, and there was always a force of armed whites on horseback–who were not slaveholders themselves (most southern whites weren’t)–serving as the “slave patrols.”
Today, there are two ways of interpreting the Second Amendment:
- That it prohibits the federal government from stopping states from forming armed militias to provide for the common defense beyond the capabilities of the national, professionalized army.
- That it prohibits the federal government, and now (thanks to the Fourteenth Amendment) any state or local government, from restricting private gun ownership at all–including bans on private ownership of high-caliber military weapons.
The issue is fiercely partisan. When there is a mass shooting, Democrats consistently call for stricter gun laws. Republicans, meanwhile, mostly aligned with the National Rifle Association (NRA), fight tooth-and-nail against any gun restrictions, claiming that any such restriction violates the Second Amendment, and also claiming that any gun restriction is a step toward a total ban on any private ownership of any gun. The NRA uses such slogans as “If guns are outlawed, only outlaws will have guns” and “Guns don’t kill people; people kill people.”
The fact that the Republican appointees on the Supreme Court outnumber the Democratic appointees by 5 to 4 does not automatically mean that there will be a pro-NRA outcome. It was, after all, Bush appointee John Roberts who cast the deciding vote in favor of Obamacare back in 2012. However, the Republican appointee who was most likely to vote with the liberals was Anthony Kennedy, and he has just retired and been replaced by the more conservative Brett Kavanaugh. Again, this doesn’t mean anything definitive, but it’s very possible that the ruling may go beyond New York’s law and make it a lot harder for states to restrict gun ownership.
New York Times article, January 22, 2019
Documents of the case on SCOTUS Blog