1791 or 1868? – Updated

In Bruen Justice Thomas stated that the plain text of the second amendment as understood at the time of its ratification along with the history and tradition shall guide our understanding of what is protected by the second amendment.

The operative clause of the second amendment is “the right of the people to keep and bear Arms, shall not be infringed.”

This is a limitation on the federal government at the time of ratification. It meant that the federal government could not infringe on our right to keep and bear arms. It did not constrain state governments from infringing as they wished.

Because of this many state Constitutions have a right to keep and bear arms in them. For example:

The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.
— Massachusetts Declaration of Rights — Article 17

Every citizen has a right to bear arms in defense of himself and the state. SEC. 16. The military shall, in all cases, and at all times, be in strict subordination to the civil power.
— Constitution of the State of Connecticut

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed.
— N.Y. Civ. Rights Law § 4

Not all states have an explicit right to keep and bear arms. Part of the reason is that in 1868 the 14th amendment was ratified.

Under the 14th amendment the US constitution and the rights enshrined within it also restrict States and other political subdivisions of the States.

The 13th amendment said that the federal government could not enslave or force involuntary servitude on anybody except as a punishment for a crime for which the person has been duly convicted.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

The 13th amendment didn’t apply to the states, cities, towns, counties or villages. It only applied to the federal government. It was only with the ratification of the 14th that the 13th applied to lower political subdivisions.

As part of that the 1st through 12th amendments were also incorporated.

The Bill of Rights, comprising the first ten amendments to the Constitution, protects certain rights belonging to individuals and states against infringement by the federal government. While some provisions of the Constitution expressly prohibit the states from taking certain actions,1 the Bill of Rights does not explicitly bind the states,2 and the Supreme Court in early cases declined to apply the Bill of Rights to the states directly.3 However, following the ratification of the Fourteenth Amendment, the Supreme Court has interpreted the Fourteenth Amendment’s Due Process Clause to impose on the states many of the Bill of Rights’ limitations, a doctrine sometimes called “incorporation” against the states through the Due Process Clause.
— Amdt14.S1.4.1 Overview of Incorporation of the Bill of Rights

So we can see that the second amendment was ratified in 1791 and incorporated in 1868 and thus can be applied to any law or regulation within the US.

But Thomas said “the plain text” of the second amendment. The text isn’t plain at all. It talks about militias and free states, surely that means the right to bear arms is related to the state or militia in some way.

In interpreting this text, we are guided by the principle 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.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal 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.

The Supreme court has answered this question. They have stated what all of the words in the second amendment mean.

First, the second amendment has a prefatory clause “A well regulated 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 Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause.

The supreme court has stated exactly what the operative clause is and has also stated that the prefatory clause doesn’t limit the operative clause.

So the question then becomes what does “The right of the People to keep and bear Arms” mean? Again the court has answered us.

The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.

The supreme court has stated clearly that the right belongs to the individual. “The right of the people” is not limited by the prefatory clause nor is it restricted to by any other qualification. It is every individual.

So what is it that the people have a right to? Something to do with arms.

The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

Here the court again explicitly states that arms are weapons of any sort. Knives, swords, rocks, clubs and of course guns are all “Arms”. It also includes defensive equipment such as armour. So the second amendment not only guarantees the people the right to firearms, it also guarantees the people the right to body armor (and any other type of armor).

The only restriction in the Heller decision is that the people be able to “take into his hands” and that is not well defined.

The court also explicitly states that “Arms” are not limited to what was available in the 18th century.

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

The court then addresses what it means to “keep arms”.

We turn to the phrases “keep arms” and “bear arms.” Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Johnson 1095. Webster defined it as “[t]o hold; to retain in one’s power or possession.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”

The court, in their opinion, explicitly states that requirements on how the people keep their arms is unconstitutional. The struck down D.C.’s restrictions requiring trigger locks and other such “safe storage” infringements.

So what about “to bear arms”? What does that mean, again the court has answered.

At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose— confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that JUSTICE GINSBURG accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.

Further the court says that to bear arms does not mean “in the military/militia”

In any event, the meaning of “bear arms” that petition ers and JUSTICE STEVENS propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

What is the government enjoined from doing:

We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.”

From this it is clear that every part of the second amendment has been analyzed and defined by the Supreme Court. The inferior courts of the United States don’t get to reinterpret what the words mean, they have been told what the words mean.

The above quotes are from the Heller opinion: DISTRICT OF COLUMBIA ET AL. v. HELLER

This opinion was followed by the McDonald opinion. The problem was that immediately after Heller the people tried to exercise their rights and were thwarted by the States refusing to issue permission slips.

The States argued that Heller “…that Heller had explicitly refrained from opining on whether the Second Amendment applied to the States…”

This is where the Fourteenth Amendment comes into play for the first time. In McDonald the court said: Yes! The second amendment applies to the states as well as all other political subdivisions!

Two years ago, in District of Columbia v. Heller, 554 U. S. ___, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a District of Columbia law that banned the possession of handguns in the home. Chicago (hereinafter City) and the village of Oak Park, a Chicago suburb, have laws effectively banning handgun possession by almost all private citizens. After Heller, petitioners filed this federal suit against the City, which was consolidated with two related actions, alleging that the City’s handgun ban has left them vulnerable to criminals. They sought a declaration that the ban and several related City ordinances violate the Second and Fourteenth Amendments. Rejecting petitioners’ argument that the ordinances are unconstitutional, the court noted that the Seventh Circuit previously had upheld the constitutionality of a handgun ban, that Heller had explicitly refrained from opining on whether the Second Amendment applied to the States, and that the court had a duty to follow established Circuit precedent. The Seventh Circuit affirmed, relying on three 19th-century cases—United States v. Cruikshank, 92 U. S. 542, Presser v. Illinois, 116 U. S. 252, and Miller v. Texas, 153 U. S. 535— which were decided in the wake of this Court’s interpretation of the Fourteenth Amendment’s Privileges or Immunities Clause in the Slaughter-House Cases, 16 Wall. 36.
— CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

The court has defined what the words mean, has said that it applies to the Federal, State and Local governments. Because of this the infringers moved to a different tactic. They finally acknowledged that the second amendment was an individual right and that their gun control laws were infringements but they claimed that because Heller allowed for some restrictions on the right, that the courts needed to find a balance between the right of the people and the needs of the governementgovernment.

This was often labeled “means-end”. The idea being that the larger the infringement the more tightly tailored the law had to be to the asserted government need. If it was a “small infringement”, say limiting the number of firearms a person could buy in a given period of time, the solution the government asserted could be broad. On the other hand if the infringement was greater, say limiting your right to have a gun within your home, then the solution the government asserted needed to be tightly tailored.

The problem with this was that any court that wanted a law to pass muster need only pick the right place on that scale to get the result the government wanted. They would define stringent laws such as a magazine ban or an assault weapon ban as being a small infringement so the government’s broad brush was allowed. If on the other hand the infringement encroached on the “core second amendment right” the courts would agree with the government’s assertion that the law was tightly tailored.

The actual argument in NYSR&PA v. Bruen isn’t really all that important. What was important was the court’s opinion.

Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context. Heller’s methodology centered on constitutional text and history. It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny. Pp. 9–15.
— NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Here the court states clearly that means-end is not acceptable. Only “…which demands a test rooted in the Second Amendment’s text as informed by history.”

This is the where the weasels start weaseling over words. What history? If you want history how about the century from 1911 when New York passed the Sullivan Act? That’s history. How about all of the gun control laws passed post 1865? That’s over 150 years of history.

Thomas addressed that.

…To do so, respondents appeal to a variety of historical sources from the late 1200s to the early 1900s. But when it comes to interpreting the Constitution, not all history is created equal. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Heller, 554 U. S., at 634–635. The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates or post-dates either time may not illuminate the scope of the right. With these principles in mind, the Court concludes that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement. Pp. 24–62.
— Bruen

Here is where we run into the problem. The court’s opinion says “The Second Amendment was adopted in 1791; the Fourteenth in 1868.” This puts both dates at the same level. Thomas then says that historical evidence that long predates or post-dates either time are not useful in finding analogise gun control laws.

We want the date of importance to be 1791 when the people voted and decided on ratifying the second amendment. They knew what it meant at that moment in time. We know have a damn good idea what it meant. We also know what gun control laws existed at that time. Almost none.

But in 19681868, just past the end of the Civil War, there were a lot of gun control laws being passed. These laws were almost always designed to be either a part of the “Black Code”, “Jim Crow”, or retaliation on the men that fought with the Confederacy.

There is clear indications that the adoption of the Fourteenth Amendment was not about reinterpreting the bill of rights but instead on imposing the limits on the States.

Gun grabbers are desperate to get the courts to pull in laws from the late 1800s and early 1900s to allow them to infringe on the 2nd.

Finally, the court has stated that the second amendment does not grant the people any rights.

As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed ….”
— D.C. v Heller

UPDATE: Corrected 1968 to 1868, removed space from block quote, removed word.