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Later this year, the U.S. Supreme Court is expected to hear its first Second Amendment case in nearly a decade, New York State Rifle & Pistol Association, Inc., et al. v. The City of New York and the New York City Police Department-License Division. As the Court prepares to return to the Second Amendment—a part of the Constitution it has rarely reviewed — and as questions ripple across the Commonwealth of Virginia and the nation about how best to deal with gun violence, it is an opportune time to review the legislative and legal history of one of the Constitution's most enigmatic provisions.

headline1Between the end of the Revolutionary War in 1783 and the ratification of the U.S. Constitution in 1789, the states enacted a number of laws designed to ensure that they could defend themselves from another invasion. These laws established state militias, the scope of which were defined by state law.

In 1785, Virginia passed its law establishing the state militia. As recounted by the U.S. Supreme Court in its decision in U.S. v. Miller (1939), the Virginia militia law declared:

The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty….All free male persons between the ages of eighteen and fifty years…shall be inrolled or formed into companies. … There shall be a private muster of every company once in two months. … Every officer and soldier shall appear at his respective muster-field on the day appointed, by eleven o'clock in the forenoon, armed, equipped, and accoutred, as follows:…every non-commissioned officer and private with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel, with a good bayonet and iron ramrod well fitted thereto, a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket, a good knapsack and canteen, and moreover, each non-commissioned officer and private shall have at every muster one pound of good powder, and four pounds of lead, including twenty blind cartridges, and each serjeant shall have a pair of moulds fit to cast balls for their respective companies, to be purchased by the commanding officer out of the monies arising on delinquencies.

During the ratification debates over the proposed Constitution in 1787-88, some delegates to the ratifying conventions within the states worried that the new federal government would seek to strip state militias of their self-defense capabilities. (See, for example: Stephen P. Halbrook and David B. Kopel, Tench Coxe and the Right to Keep and Bear Arms, 1787-1823, 7 Wm. & Mary Bill Rts. J. 347 [1999], https://scholarship.law.wm.edu/wmborj/vol7/iss2/3.) This was among the reasons that many states indicated they would not ratify the Constitution without the promise of a bill of rights.

The Second Amendment was thus added to the original document as part of the Bill of Rights. It was originally proposed in the United States House of Representatives by James Madison on June 8, 1789. As proposed by Madison, the amendment read: "The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." [Emphasis added.]

Congress had other things to do — and members had not yet settled on the need for a bill of rights, nor had they agreed on the form amendments would take. As a result, debate on the substance of this amendment was postponed until July 21, 1789, when the proposal was referred to a select committee consisting of a member from each of the 11 states that had ratified the Constitution up to that point (neither Rhode Island nor North Carolina had yet ratified). A few weeks later, on Friday August 21, the so-called "Committee of 11" reported a revised Second Amendment proposal, along with several others, back to the House of Representatives. According to the House Journal, the amendment at that point read: "A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms."

Debate commenced, but according to the House Journal not much was said about the substantive issue of bearing arms. Instead, the debate focused on the exemption from arms-bearing for religious reasons. In the Senate, there was an attempt on September 9, 1789 to add a clause to indicate that the right of the people to keep and bear arms was for the common defense, but the Senate Journal for that day indicates that the amendment did not pass, and offers no more insights into what the members discussed.

This quick summary of the debates in Congress around Madison's proposed amendment tell us several things. First, they tell us that it was well-established at that time that state citizens not only had a right, but were often required to bear arms; next, it is clear that as proposed, the second amendment was intended to ensure that the federal government would not interfere with state regulations regarding firearms; and third, they tell us that the debates in Congress focused almost exclusively around whether the Second Amendment ought to create a federal exemption for religious objections to arms-bearing.

headline2What the legislative history of the Second Amendment doesn't tell us is what the practical implications of the amendment were. It is the Supreme Court, which has heard remarkably few Second Amendment cases over time, that has been left to sort that out.

In one of its first cases involving a second amendment issue, U.S. v. Cruikshank (1876), the Supreme Court ruled that individual citizens could not be charged with violating another person's second amendment rights, because the second amendment "is one of the amendments that has no other effect than to restrict the powers of the national government…" A decade later, in Presser v. Illinois (1886), the Supreme Court upheld state restrictions on bearing arms while marching in military formation outside of a legally-recognized state or federal militia, noting that states could prohibit people from parading with weapons without violating the Second Amendment, because the second amendment was a limit on federal infringement of the right to keep and bear arms. This was consistent with the legislative history of the Amendment, but also reflects the fact that the Constitution itself had not yet been incorporated to apply to the states.

In Robertson v. Baldwin (1897), the Supreme Court took up the question of whether prohibitions on concealed weapons were constitutional, and determined that they were. According to the Court, a person's right to keep and bear arms was not abridged simply because he or she were prohibited from carrying a concealed weapon.

These early cases demonstrate that at the turn of the 20th Century, the judicial consensus was that the Second Amendment was a limitation on the federal government, not on the states (or individuals). And, the Supreme Court was clear that states could pass reasonable regulations or even bans on guns or gun-related activity, without abridging the second amendment guarantees.

The most significant case of the 20th century was U.S. v. Miller, which the Court decided in 1939. In this case, two men convicted of transporting a so-called sawed-off shotgun across state lines appealed their convictions on the grounds that the federal law prohibiting such transport was unconstitutional under the second amendment. The Supreme Court disagreed, writing: "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' 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."

U.S. v. Miller's conclusion that the Second Amendment only guaranteed an individual right to bear arms for the purpose of maintaining a well-regulated militia stood until 2008, when the Supreme Court decided a Second Amendment case for the first time in nearly 70 years. That case, District of Columbia v. Heller, overturned D.C.'s total ban on handguns and upheld the District of Columbia Circuit Court's conclusion that "the Second Amendment protects an individual right to possess firearms and that [DC's] total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right." Because this case arose out of the District of Columbia, it applied only to DC and other federal jurisdictions. In 2010, in the case of McDonald v. City of Chicago—a case that was filed on the same day that the Court handed down the Heller decision—the Court extended the individual right to bear arms to all citizens by striking down state- and city-level bans on firearms.

headline3The Court has not heard another Second Amendment case since 2010's McDonald decision. In late Spring 2019, however, the Court signaled its intention to hear the New York State Rifle and Pistol Association case during the October 2019 term. This case, which challenges a New York City ordinance prohibiting people with so-called "premises" license to own a gun in their home from transporting that gun outside of city limits, even to places like a second home or to a gun range. In essence, the Supreme Court is being asked to acknowledge that not only is there an individual right to keep arms, but also to acknowledge that there is an individual right to bear arms.

Interestingly, the case is now moot; following the Court's decision to agree to hear the case, both New York City and New York state changed their firearms laws to allow an individual who is legally permitted to own a gun to transport that gun anywhere that he or she is legally permitted to possess it. Under the Supreme Court's own rules relating to hearing cases, there is an argument to be made that the Court should now refuse to hear this case, since the parties bringing the case have now achieved the result they were looking for via state and local legislative processes. Indeed, the Court will consider that argument at its October 1, 2019 conference; it may decide to rescind its decision to hear the case then. If it does not do so, the case is scheduled for oral argument on December 2, 2019.

headline4Embedded in its 2008 Heller decision was a signal from the Supreme Court to policymakers that changes to gun laws need to come via legislative solutions, not judicial ones. The Court clarified that


nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those 'in common use at the time.' We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'
The Court ultimately concluded in Heller that "[t]he Constitution [provides] a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table."

As the Virginia General Assembly's 2019 abbreviated special session on gun violence indicates, there does not seem to be significant appetite among legislators at least in Virginia — but likely not in too many other places either — to tackle the thorny issues alluded to by the Court more than a decade ago. And with little in either the legislative history of the Second Amendment or in the Supreme Court's jurisprudence to offer a definitive conclusion about what the Amendment means, or what it protects, it is likely that this is an area of the law that will continue to be a challenge for legislators and judges alike.

Lauren C. Bell is Dean of Academic Affairs and Professor of Political Science at Randolph Macon College.
Editor's Note: Some of the spellings in this piece reflect the original spelling of the words at the time the documents were written.