Until 2008, the 2nd Amendment Didn't Explicitly Protect the Right to Own a Gun. What Happened?

“As a result of [Supreme Court] rulings, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were ‘well regulated,’ has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms. That anomalous result can be avoided by adding five words to the text of the Second Amendment to make ti unambiguously conform to the original intent of the draftsmen. As so amended, it would read: ‘A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms when serving in the militiashall not be infringed.’ ”

– Retired Supreme Court Justice John Paul Stevens, in an opinion column posted online April 11 by The Washington Post. It is excerpted from his new book, “Six Amendments: How and Why We Should Change the Constitution.” The article was republished in The Post on April 13.

WE CHECKED THE CONSTITUTION, AND…

There is an old saying about the Constitution that, like a lot of old sayings, is at least partly an exaggeration: “The Constitution is what the Supreme Court says it is.” However, that is very close to the truth about the Second Amendment.

From its inclusion in the Constitution in 1791 until 2008, it was not understood to give Americans a personal right to have a gun. And then it changed, in a profound way.

Prior to 2008, there was a public conversation – often, in academic writings funded by the National Rifle Association – about whether the Amendment should go beyond protecting the arming of state militias, to allow Americans to arm themselves for personal use.

The Supreme Court finally accepted that expanded view, in the 2008 decision in District of Columbia v. Heller. That ruling applied only to federal laws, or to laws enacted in the federal enclave that is the nation’s capital city. Two years later, though, in the case of McDonald v. City of Chicago, the court extended the broad new right nationwide, applying it to state and local laws, too. Both decisions divided the Justices 5 to 4, and Justice Stevens, then on the Court, dissented each time.

It is to be expected, perhaps, that a member of the court might well want, after retirement, to see the Constitution changed so that it reflected the views that the Justice had while on the court. Of course, retired judges, too, have free speech rights, and they can add importantly to public discourse if they continue to speak out.

What has happened since Stevens retired is that the court, with remarkable consistency, has refused to say anything more about what the Second Amendment means. Thus, all that can be derived from its two opinions is that the Amendment means that the personal right to have a gun exists only for self-defense, and only in the home.

The court, though, did not say that it was ruling out further expansions of the right. It left that, and has continued to leave that, to exploration by the lower courts. And lately, two federal appeals courts have broken ranks with the others, and have ruled that the Second Amendment reaches beyond the home, and guarantees a personal right to carry a gun in public, at least for self-defense, for hunting, and for target shooting.

If the normal reaction of the Supreme Court applied to this new division of opinions among lower court judges, the Justices would step in and resolve the split. It has had more than a half-dozen chances to do so, and has regularly declined to get involved. The cases keep reaching the court, though, so maybe one of them will attract enough attention among the Justices to get reviewed.

In the meantime, there is Justice Stevens’ suggestion to amend the Second Amendment. His change would totally wipe out both the Heller and McDonald decisions, and confine the right to have a gun to something like members of the National Guard, when on duty. (Worded that way, the Amendment would leave it to legislatures to broaden the right, if they wished. The Stevens version would only declare a constitutional minimum.)

The idea, though, runs up against a political reality. As failed attempts to pass new laws to limit gun rights have shown, Congress cannot muster enough votes to pass any gun control measure, however modest, even in the wake of such tragedies as the shooting massacre of grade school students in Newtown, Conn.

That would seem to put completely out of reach the requirement that a constitutional amendment be approved by a two-thirds vote in each house of Congress, and then get approval by three-fourths of the states.

There is, of course, an alternative mode of amendment under Article V, designed to stir a reluctant Congress into action. If two-thirds of the state legislatures ask for it, Congress must call a convention of the states to consider a proposed amendment. Apparently, such a convention could approve an amendment by simple majority vote, and then three-fourths of the states would be needed to ratify it.

The problem with such a convention is that there is no way to predict what it might do: rather than endorsing the Second Amendment change that Justice Stevens has proposed, it might decide to go in the opposite direction, and bar any limitation on gun rights. There would be intense political infighting over who got chosen to be a delegate to the convention, and the convention itself might well be a maverick gathering. Indeed, it might not stop with just an amendment of the Second Amendment, and move on to revise much more of the document.

What seems more likely, pragmatically, is that the American public will go on debating the issue, state legislatures will continue doing some experimenting with gun controls, and the nation as a whole will wait to see what the courts think.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.