Second Amendment

---

By Adam Winkler, a professor at UCLA School of Law.

---

I’ll never forget the scene outside the Supreme Court building the day of oral argument in District of Columbia v. Heller. Scores of reporters and camera crews were there to cover the hundreds of protestors who turned First Street into a lively theatre of debate over the meaning of the Second Amendment. A man with a bullhorn boomed, “More guns!” In response, gun rights supporters in the crowd hollered, “Less crime!” “More guns!” “Less crime!” A group of gun control proponents whispered among themselves and the next time the man with the bullhorn chanted “More guns” they yelled, “More crime!” As in the gun debate more generally, however, the gun controllers were easily drowned out by the more numerous and vocal gun rights advocates. 

Although the language of the Second Amendment has confused generations of lawyers, the protestors in front of the famous marble steps of the Supreme Court knew exactly what it meant. To gun rights supporters, the amendment clearly guaranteed individuals the right to own guns and placed strict limits on gun control. To proponents of gun control, the amendment merely provided for state militias and had little relevance for ordinary gun laws. Although the two sides reached very different conclusions, they shared a common view of the right to bear arms. Both sides believed an individual right to have guns was fundamentally incompatible with gun control. We must choose one or the other.

Gunfight: The Battle over the Right to Bear Arms in America shows that, contrary to the extremists on both sides, we’ve always had both a right to bear arms and gun control. The founding fathers who wrote the Second Amendment had gun laws that the modern gun lobby would never accept. Not only did they prohibit free blacks and slaves from owning guns to promote public safety, they also restricted the gun rights of political dissenters. They required ordinary citizens to buy military style firearms — an early version of an “individual mandate”—and ordered them to appear for mandatory “musters” where their guns would be inspected and registered on public rolls. To them, the Second Amendment was not a libertarian license. We the people were the militia, but that militia was required to be “well regulated.”

Following a recent ACS panel discussion on the future of gun control regulation in the wake of landmark Supreme Court cases regarding Second Amendment rights, UCLA School of Law Professor Adam Winkler told ACSblog that those high court cases provided little guidance to lower federal courts on handling constitutional challenges to gun laws.

Winkler, co-author of a recent ACS Issue Brief called "The Standardless Second Amendment," said that the vast majority of lower federal courts have upheld gun control regulation, but on divergent standards. Winkler said the lower federal courts are "generally confused about how to address the constitutional question" in cases involving gun control laws. As long as the lower court cases remain unsettled on what standard to apply to Second Amendment challenges to gun control laws, the more likely the Supreme Court will have to weigh in again on the matter.

Winkler also noted his forthcoming book, Gunfight: The Battle Over the Right to Bear Arms in America. "The story of America's so-called gun culture is that we've always tried to balance gun rights with reasonable efforts to protect public safety by regulating the most dangerous people or the most dangerous guns," Winkler said of the book, which is set to be published next year. Winkler's interview is below and the entire panel discussion is available here. You can also download it as a podcast here.