The United States Supreme Court and Gun Control
The Second Amendment reads:
A militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
Rather than leaving it to the courts to interpret the Second Amendment the Constitution could be amended, either to repeal the Second Amendment, or to spell out whatever might be considered appropriate restrictions. Like the Australian Constitution, the American Constitution contains within its terms the method by which this is to be done. Thus, Article V says:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Given the power of the gun lobby and the fact that too many Americans seem wedded to guns and gun ownership, there seems little likelihood that gun control can be effected by an amendment to the Constitution. Amending the American Constitution would seem to be as difficult as amending the Australian Constitution, given the requirements to be satisfied.
In 2008 the United States Supreme Court delivered a seminal opinion on the interpretation of the Second Amendment in the case of District of Columbia v Heller.  (Heller) (Decisions of the US Supreme Court are called ‘opinions’.) The District of Columbia banned handgun possession by making it a crime to carry an unregistered firearm and prohibited the registration of handguns. Further, no person could carry an unlicensed handgun, but the police chief was authorized to issue 1 year licences. The law also required residents to keep lawfully owned firearms unloaded and dis-asssembled or bound by a trigger lock or similar device. Mr. Heller, a special policeman (employed to protect a Federal Government building), applied to register a handgun he wished to keep at home, but was refused. He filed suit seeking, on Second Amendment grounds, to enjoin the City from enforcing the ban on handgun registration; the licensing requirement insofar as it prohibited carrying an unlicensed firearm in the home; and the trigger-lock requirement insofar as it prohibited the use of functional firearms in the home. The court of first instance dismissed the suit, but on appeal this was reversed , the appeal court holding that the Second Amendment protected an individual’s right to possess firearms; and that the City’s total ban on handguns, as well as its requirement that firearms in the home be kept non-functional, even when necessary for self-defence, violated that right.
The United States Supreme Court, by a five-four majority, upheld the constitutional challenge. Each of the majority and the minority was highly critical of the reasoning of the other. Justice Scalia delivered the opinion of the Court. (Chief Justice Roberts and Justices Kennedy, Thomas and Alito joined in that opinion.) Justice Scalia observed:
The two sides in this case have set out very different interpretations of the Amendment. Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. … The Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. 
It is worth noting at this point that Justices of the United States Supreme Court are appointed for life. Justice Scalia died on 13 February 2016 aged 79 and, somewhat ironically, it was reported that he died whilst on a hunting trip.
The majority opined that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning;’  and the ‘[n]ormal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.’ 
It is suspected that if persons in the street were asked what the words of the Second Amendment meant, divorced from any preconceptions and bias, most would say they thought it permitted citizens to have the right to own firearms for the purpose of service in the militia for the protection of the state. This would seem to be a natural reading of the words. (As the discussion in the opinions shows, ‘state’ means the individual states in the union.)
There is nothing in the Second Amendment which expressly refers to the right of the people to keep and bear arms for the purpose of self defence. How then did the majority conclude that its core purpose was to enable the public to own weapons for personal self- defence, and this was a fundamental right?
The majority noted that the Second Amendment contained a prefatory clause-‘a militia, being necessary to the security of a free state’; and an operative clause-‘the right of the people to keep and bear arms, shall not be infringed’
The majority considered that the phrase ‘to bear arms’ implicitly connoted the carrying of arms for the purposes of offensive or defensive action, unconnected with ‘participation in a structured military organization.’  This, they said, following a review of founding era sources, was the meaning the phrase also had in the eighteenth century. They drew further purported support for their view from eighteen and early nineteen century state constitution analogues of the Second Amendment, yet the examples they cites expressly provide for the right to bear arms ‘in defense of themselves and the state.’ As observed there is no express right to bear arms for the purpose of self defence in the Second Amendment, unlike the state examples cited by the majority.
The majority also said the phrase ‘to bear arms’ had an idiomatic meaning-‘to serve as a soldier, do military service, fight.’  It bore this meaning, so it was said, only when it was followed by the preposition ‘against,’ and the object of the action was specified. The Second Amendment does not seek to qualify the right by the addition of the preposition ‘against’, and the absence of such a qualification means the majority believes the phrase does not have an idiomatic meaning.
A further reason why the Second Amendment does not relate only to bearing arms for service in a militia is, according to the majority, to be found in the meaning of ‘people.’ After a consideration of the word in other provisions of the Constitution it concluded that it had a wider import then a militia, which it said comprised a subset of the population. Therefore,
‘ people’ as used in the Second Amendment, comprehended a set of persons beyond those eligible to serve in a militia.
The right to bear arms, it was said by the majority, was not a creature of the Second
Amendment, but rather was a pre -existing right codified by it. The ‘right’ was said to have had its genesis in the English Bill of Rights Act 1689. This Act was a milestone in English constitutional law. It was enacted upon the succession of William and Mary to the English throne in place of the late Stuart King, James II. The preamble recites that,
by the Assistance of diverse evill Councellors Judges and Ministers imployed by him [he] did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome [b]y Assumeing and Exerciseing a Power of Dispensing with and Suspending of Lawes and the Execution of Lawes without Consent of Parlyament.
Amongst the complaints made against the Stuart King, expressed in the preamble to the Bill of Rights Act 1689, was that he caused ‘severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law.’ Consequently, one of the provisions of the Act of 1689 declared ‘[t]hat the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.’ 
This Act confirmed the supremacy of the English Parliament, and declared the rights and liberties of the subjects, provided of course that they were Protestants. Importantly, it also settled the succession to the Crown.
The majority observed that,
what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. 
Having concluded on the basis of both text and history that the Second Amendment conferred an individual right to keep and bear arms for self defence and not just for purposes of a militia, the majority addressed how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century. It did this under the following headings:
1. Post ratification commentary
2. Pre-civil war case law (that is before April 1861)
3. Post-civil war legislation (that is after April 1865)
4. Post-civil war commentators
At the end of the day, however, it is for the Court to decide what the Second Amendment means. Looking at the historical foundations of the amendments as well as how earlier scholars and learned commentators viewed it may assist current judges in coming to a conclusion as to the proper construction of it. The Court may well agree with what learned commentators have said, and approve and adopt their reasoning, but the simple fact that particular commentators considered the Constitution to have a particular meaning cannot of itself determine the issue. Moreover, as Justice Stevens observed in his dissenting opinion in the case of McDonald v Chicago,
the Framers enabled the Constitution to ‘endure for ages to come.’ … they ‘wisely spoke in general language and left to succeeding generations the task of applying that language to the unceasingly changing environment in which they would live.’ 
In other words the Constitution should be a ‘living instrument’ capable of finding application in, and adapting to a modern world. This is not, it would seem, the view of Justice Scalia. His approach to interpreting the Constitution is illustrated by a speech he gave at a conference in January of 2002. He said:
As it is, however, the Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted. 
In other words Justice Scalia’s construction is determined by what he considers a reasonable person living at the time of the adoption of the Constitution and its Amendments would take the ordinary meaning of their text to be. It is for this reason that he places great store on historical writings and commentary.
None of the pre-civil war case law referred to in the majority’s opinion involved decisions by the United States Supreme Court so any views expressed as to the meaning of the Second Amendment cannot bind the US Supreme Court.
After the civil war the constitutional rights of the newly freed slaves assumed prominence, and some of the states enacted legislation denying them the right to bear arms for any purpose. Because of this there was discussion at that time centred on whether such restrictions were constitutional, and ‘[i]t was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense ’  , so said the majority. Again the comment is made that the United States Supreme Court should not abnegate its responsibility to construe the Constitution to the opinion of others, even if ‘the others’ are members of Congress.
Justice Scalia cited what was said by that ‘most famous … judge and professor, Thomas Cooley’  in his 1868 Treatise on Constitutional Limitations. What he said in the passages cited by Justice Scalia was:
Among the other defences to personal liberty should be mentioned the right of the people to keep and bear arms … The alternative to a standing army is ‘a well-regulated militia,’ but this cannot exist unless the people are trained to bearing arms. How far it is in the power of the legislature to regulate this right, we shall not undertake to say, as happily there has been very little occasion to discuss that subject by the courts.
It might be supposed from the phraseology of this provision [the Second Amendment] that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well- regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order. 
There is nothing in these comments, it is suggested, that supports the notion that the right to bear arms is other than connected with having a well- regulated militia. There is nothing in these comments, it is suggested, that sustains an argument that the right to bear arms is a personal right for the purpose of self defence. True it is that the comments suggest that a militia does not have to be in existence, and an individual a member of it, before the right to bear arms exists. It recognizes, however, that if an occasion arises necessitating a militia then there must be persons available familiar with firearms to form an effective militia. This can be accomplished by permitting the appropriate persons (the people from whom the militia must be taken) the right to bear arms and to become experienced in their use pending a possible need for a militia. Cooley’s views would seem to give rise to an obvious limitation, namely, that the right to bear arms is restricted to persons eligible to serve in a militia.
The majority said that ‘[a]ll other post-Civil War 19th-century sources we have found concurred with Cooley’. 
The majority then turned its attention to whether any earlier United States Supreme Court decisions precluded it from reaching the conclusion it had as to the meaning of the Second Amendment. It considered and discussed these cases, and held that these did not require it to find other than as it did. (The majority noted that the case before the Court was in fact the ‘first in-depth examination of the Second Amendment’  by it.)
The discussion in the first case it considered was United States v Cruickshank 92 U.S. 542 (Cruickshank). Here the Court vacated the convictions of members of a white mob for depriving blacks  of their right to keep and bear arms, and held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. It was held in Cruickshank that the States were free to restrict or protect the Second Amendment right under their police powers, because the right was simply one that could not be infringed by Congress. Citizens must look to their state’s police powers for protection against violation of their Second Amendment rights. Justice Scalia noted that the State government had in fact disbanded the local militia the year before the mob attack. This, he thought, meant it made little sense if the discussion in Cruickshank referred only to a right to bear arms in the local militia. This would appear to be a subjective inference drawn by Justice Scalia. Moreover, Cruickshank did not, so said Justice Scalia, discuss the Second Amendment at any great length.
The second case discussed, (Presser v Illinois 116 U.S. 252 (1886 ) (Presser), held that the Second Amendment was not violated by a law that forbade bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law. According to Justice Scalia Presser said nothing about the Second Amendment’s meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations . 
The third and last case the majority discussed was the 1939 decision in United States v Miller 307 U.S. 174 (1939) (Miller), a decision upon which the majority said the minority placed ‘overwhelming reliance’.  The judgment in this case denied a Second Amendment challenge to two men’s federal convictions for transporting an unregistered shotgun with a short barrel in interstate commerce, in violation of the National Firearms Act. The majority held that ‘Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.’ 
The rationale for this view was what the US Supreme Court said in Miller as noted by Justice Scalia, namely,
In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] 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. 
The majority considered what types of weapons Miller permitted. It read ‘ Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.’  It went on to say:
It may be objected that if weapons that are most useful in military service–M-16 rifles and the like–may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right , 
The majority said that the right to bear arms was not an unlimited one, and nothing
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. 
The majority also recognized another limitation, namely, what it said was the historical tradition of prohibiting the carrying of dangerous and unusual weapons. 
In the result the majority held that a ban on the possession of handguns in the home as well as the disabling of other guns preventing their immediate availability for self defence violated the Second Amendment and was therefore invalid.
The majority recognized the problem posed by guns but did not accept that the Court was part of the solution for it said:
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia 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. These include the absolute prohibition of handguns held and used for self- defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct. 
The ‘variety of tools’ referred to are what the majority said were the ‘longstanding prohibitions on the possession of fire arms’ identified above, these being prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, laws imposing conditions and qualifications on the commercial sale of arms and a prohibition on the carrying of dangerous and unusual weapons.
Justice Stevens delivered a dissenting opinion in which Justices Souter, Ginsberg and Breyer concurred. Justice Breyer also delivered some comments of his own. (Justice Souter retired in 2009; and Justice Stevens retired in 2010.)
Justice Stevens said:
Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939), provide a clear answer to that question. The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution. 
Justice Stevens considered that the preamble to the Second Amendment identified its object and governed the meaning of the remainder of the text. The preamble, he said:-
Â· identifies the preservation of the militia as the Second Amendment’s purpose;
Â· explains that a militia is necessary to the security of a free state; and
Â· recognizes that a militia must be ‘well regulated’.
He said the Court:
tries to denigrate the importance of this clause of the Amendment by beginning its analysis with the Amendment’s operative provision and returning to the preamble merely ‘to ensure that [the Court’s] reading of the operative clause is consistent with the announced purpose’. 
Justice Stevens considered the right of the people ‘ [a]s used in the Second Amendment,
… [does] not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia’.  He noted that the Court construed the phrase ‘to keep and bear arms’ as meaning a right ‘to possess and carry weapons in case of confrontation,’  an interpretation which ‘[n]o party or amicus urged’. 
His Honour , like Justice Scalia, noted that ‘ to bear arms’ had an idiomatic meaning, namely, ‘ to serve as a soldier, do military service , fight,’  ‘ unless the addition of a qualifying phrase signals that a different meaning is intended. ‘ 
Justice Stevens discussed the various States ratification conventions leading up to the finalization of the Constitution. He noted the fear of the states that a federal standing army was a threat to liberty and to the sovereignty of the states. It seems clear enough from his discussion that it was this fear that informed the formulation of the Second Amendment — consequently Congress did not retain the power to disarm State militias by reason of that amendment.
As for the English Bill of Rights, Justice Stevens said:
The Court may well be correct that the English Bill of Rights protected the right of some English subjects to use some arms for personal self-defense free from restrictions by the Crown (but not Parliament). But that right–adopted in a different historical and political context and framed in markedly different language–tells us little about the meaning of the Second Amendment. 
These comments are plainly correct. The English Act was a response to the particular political circumstances existing in England at the time, and cannot be taken to have given rise to a universal mandate for all its citizens to keep and to bear arms.
Further, Justice Stevens thought that the‘ Court’s reliance on Blackstone’s Commentaries on the Laws of England [was] unpersuasive for the same reason as its reliance on the English Bill of Rights.’  , as he noted Blackstone’s reference to the right of having and using arms for self-preservation and defence referred specifically to Article VII in the English Bill of Rights. (Sir William Blackstone’s Commentaries on the Laws of England, was the leading treatise on English common law authored in the eighteenth century and still referred to with deference today in countries which adopted or inherited a common law legal system, such as the United States.)
With respect to post-enactment commentary relied upon by the Court his Honour thought it was of limited value in construing the Second Amendment as the commentators ‘ tended to collapse the Second Amendment with Article VII of the English Bill of Rights, and they appear to have been unfamiliar with the drafting history of the Second Amendment.’  He made particular reference to the work of Joseph Story, an authoritative legal luminary who was a nineteenth century United States Supreme Court justice. In 1833 he authored Commentaries on the Constitution of the United State, the leading treatise at the time on the US Constitution. The majority also referred to the work of Story in support of its opinion. It did not, however, refer to a passage cited by Justice Stevens.
The passage reads as follows:
The importance of [the Second Amendment] will scarcely be doubted by any persons who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses with which they are attended and the facile means which they afford to ambitious and unprincipled rulers to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well-regulated militia would seem so undeniable, it cannot be disguised that, among the American people, there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by the clause of our national bill of rights. 
There is simply nothing in these words that supports the idea that the Second Amendment protects the right of the people to bear arms for personal self defence.
Justice Stevens discussed Cruickshank and observed that whilst the ‘ Cruikshank Court explained that the defective indictment contained such language, [namely, that the right protected by the Second Amendment was the right to bear arms for lawful purposes] … the Court did not itself describe the right, or endorse the indictment’s description of the right’. 
Dealing with Presser he said:
Presser, therefore, both affirmed Cruikshank’s holding that the Second Amendment
posed no obstacle to regulation by state governments, and suggested that in any event nothing in the Constitution protected\the use of arms outside the context of a militia ‘authorized by law’ and organized by the State or Federal Government. 
As for Miller he said:
After reviewing many of the same sources that are discussed at greater length by the Court today, the Miller Court unanimously concluded that the Second Amendment did not apply to the possession of a firearm that did not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia.’ 
The majority cannot seriously believe that the Miller Court did not consider any relevant evidence; the majority simply does not approve of the conclusion the Miller Court reached on that evidence. Standing alone, that is insufficient reason to disregard a unanimous opinion of this Court, upon which substantial reliance has been placed by legislators and citizens for nearly 70 years. 
 554 U.S.570 (2008).
 District of Columbia v Heller 554 U.S.570, 567 (2008).
 Ibid. 570, 584.
 Ibid. 570, 586.
 Article VII.
 District of Columbia v Heller 554 U.S.570, 594 (2008).
 130 S.Ct. 3020, 3099 (2010).
 Conference organised by the University of Chicago and the Pew Research CenterâReligion and Public
Life: A Call for Reckoning : Religion and The Death Penalty, Session Three: Religion, Politics and the Death Penalty.
 District of Columbia v Heller 554 U,S, 570,616 (2008).
 Ibid. 570 , 616.
 Ibid. 570 , 616—8.
 Ibid.570, 618.
 This is the word used in the opinion.
 District of Columbia v Heller 554 U,S, 570, 620—1 (2008).
 Ibid.570, 621.
 Ibid.570, 623.
 Ibid.570,622.(emphasis in original)
 Ibid. 570,627—8
 Ibid. 570, 626—7.
 Ibid. 570, 627.
 Ibid.670, 636.
 Ibid.570, 636—7.
 Ibid, 570, 649. (emphasis in original)
 Ibid. 570, 664—5.
 Ibid. 570, 665.
 District of Columbia v Heller 554 U,S, 570 ,666—7 (2008).
 Ibid. 570, 667—8.
 Ibid. 570, 673. (emphasis in original)
 Ibid. 570, 674—5.
 Ibid. 570, 676—7.
 Ibid. 570, 679.