The Second Amendment: A Brief History

March 25, 2021

By Anand Vasu

The 9th Circuit Court of Appeals ruled on March 24 that states could restrict the open carry of guns.

Justice Jay Bybee wrote in the majority opinion that: “There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment.” 

He also wrote: “Our review of more than 700 years of English and American legal history reveals a strong theme: government has the power to regulate arms in the public square.”

Over the years, the Second Amendment has undergone several iterations. While the U.S. Bill of Rights came into being in 1791, the Second Amendment came into existence as a precursor to what exists today, in the late 16th century when Queen Elizabeth I instituted a national militia in which all citizens were required by law to defend the realm. 

While the role of a militia may have undergone changes over the years, the broad consensus is that the framers of the U.S. constitution had in mind the right to “keep and bear” arms when the Second Amendment was drafted.

This is included in the Articles of Confederation in 1871, and was noted in the Constitutional Convention that took place in 1787. 

The right to keep and bear arms was the tenet upon which a well-regulated militia would be based, and this was deemed essential to bring and maintain constitutional balance.

More recently, in 2006, in District of Columbia v Heller, the Supreme Court issued its first decision on the Second Amendment since 1939. The court ruled then that the Constitution conferred on an individual the right to possess a firearm for traditionally lawful purposes such as self-defense. 

In 1939 the Supreme Court had ruled in the case of United States v Miller. In that instance, Jack Miller was indicted for carrying a sawed off shotgun across state lines in violation of the National Firearms Act of 1934.

While the District Court for the Western District of Arkansas agreed with Miller’s argument that the National Firearms Act violated his Second Amendment right, this was reversed at the Supreme Court.

In 2007, in Parker v District of Columbia, the Supreme Court was once again called upon to interpret the Second Amendment, after a decision by the U.S. Court of Appeals for the District of Columbia ruling over private gun ownership.

This ruling banned the new registration of handguns, banned carrying a pistol without a license, and required that these were kept unloaded and locked.

The Supreme Court ruled that this violated an individual’s Second Amendment rights, and upheld the right to own handguns for personal protection, and also the right of an individual to keep them in their home without placing a trigger lock on them.

The majority opinion, authored by Justice Antonin Scalia, held that the right to keep and bear arms was the operative clause of the Second Amendment and that the existence of a well regulated militia, while announcing a purpose, did not limit the operative clause.

Additionally in 2010, in McDonald v City of Chicago, the Supreme Court ruled that the rights protected in the judgment of District of Columbia v Heller applied not only to the Federal Government but also to states and municipalities.

This came after Otis McDonald and three others sued the sued the City of Chicago challenging Chicago’s handgun ban. 

Read our feature piece on the 9th Circuit ruling here.