by Mark R. Killenbeck, Wylie H. Davis Distinguished Professor, University of Arkansas
* May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.” The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald. How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.
One of my teaching mantras is “simplicity is bad, complexity is good.” Students want me to make things simple. I resist, telling them that in a black-letter-rule, one-two-three world, there would be no need for their services. The Supreme Court’s current take on the Second Amendment should accordingly be a source of great comfort, a perfect example of complexity given a text replete with “prefatory” and “operative” clauses that, taken together, mean that it is about more than a “well-regulated militia.” Rather, as Justice Antonin Scalia informed us in District of Columbia v. Heller, the amendment is simply one expression of an “ancient [individual] right” that embraces both the militias of which it speaks and “self-defense and hunting.” It is also, per McDonald v. City of Chicago, “fundamental to our scheme of ordered liberty,” such that we cannot possibly envision a “civilized system” that does “not accord th[is] particular protection.”
It was not always so. Rather, when the unanimous holding in United States v. Miller provided the analytic matrix, the “obvious purpose” of an amendment that spoke solely of militias was to “render possible the effectiveness of such forces.” Read together with the militia clauses in Article I, section 8, it facilitated occasional and effective recourse to state militias that could be “called forth” and “employed in the Service of the United States.” That right was, pace Heller, individual, tied to the availability of armed and trained individuals who were “citizens primarily, soldiers [only] on occasion.” But, at least as a matter of protection from the federal government, the goal was not to secure the “right to keep and bear arms for [all] lawful purposes, most notably for self-defense within the home.”