Explore The NRA Universe Of Websites

APPEARS IN News

High Court Tackles Gun Control: Is Second Amendment Renaissance (Finally) Possible?

Friday, December 20, 2019

High Court Tackles Gun Control: Is Second Amendment Renaissance (Finally) Possible?

This December, the U.S. Supreme Court will for the first time since 2010 hear argument on whether a gun control law violates the Second Amendment. Its decision could determine whether the right to keep and bear arms will finally be accorded the respect and dignity of other Constitutional rights or whether it will remain, as Justice Clarence Thomas once lamented, a “constitutional orphan.”

The case is New York Rifle & Pistol Association v. City of New York.

To understand why this NRA-backed case is so important, it’s helpful to revisit the Second Amendment’s text, history, and tradition.

Americans have owned firearms from the Colonies’ earliest days.

The Founders never questioned whether U.S. residents would own guns – they already did – but whether the individual ownership of arms was so fundamental to the scheme of government they were creating as to be enshrined in the Constitution.

The Second Amendment affirmatively answered the question, stating: “A well regulated Militia, being necessary to the security of a Free State, the right of the people to keep and bear Arms, shall not be infringed.”

Having recently gained their independence from a distant monarchy that sought to subjugate them through military occupation and disarmament, American patriots had little appetite for an overbearing central government backed by an unopposable standing army. King George’s attempts to seize the Colonials’ arms helped spark the Revolution; their own guns aided in his defeat.

The Second Amendment’s function in America’s constitutional order was therefore to ensure that the U.S. government could not deprive individual citizens of their arms to prevent states from raising militias. As the Federal Farmer wrote in 1788: “[T]o preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.”

And so the right to keep and bear arms—already encoded in America’s DNA—became enshrined in our Bill of Rights.

For most of American history, there was no need to argue about the Second Amendment’s meaning. The Bill of Rights was historically considered to restrain only the federal government, not the states. And the United States government left what little gun control there was almost entirely to the states until well into the 20th Century.

Gun prohibition in the states, meanwhile, was restrained by versions of the right to keep and bear arms in most state constitutions.

The eventual rise of gun control in America coincided with some shameful aspects of the nation’s history.

For example: Reactionary Democrats in the South sought to impose gun control in the form of so-called “Black Codes,” which effectively restricted the gun rights of minorities. As if freed slaves didn’t deserve the rights and freedoms enjoyed by other free people—and the politicians lording over them—these laws explicitly prohibited black residents from possessing firearms. Even the licensing laws that didn’t expressly discriminate against minorities were enforced discriminatorily to suppress freedmen’s ownership of guns. By trying to stifle gun ownership among the people they wished to dominate, these political tyrants revealed the people’s right to keep and bear arms as the key to their oppression.

Post-war amendments to the U.S. Constitution, including the 14th Amendment’s Privileges or Immunities Clause, were meant to prevent these abuses by giving federal courts jurisdiction to hear cases in which state action violated the civil rights of American citizens, including freedmen. But in 1873, the U.S. Supreme Court in the Slaughterhouse Cases effectively nullified use of the Privileges or Immunities Clause for this purpose.  

Discriminatory tendencies also prompted gun control in the 20th Century. In the North, firearm restrictions were a reaction to increasing urbanization and immigration.

Proponent’s of New York’s 1911 Sullivan Act, which required a locally-issued license to possess and carry a concealable firearm, openly promoted the law as a way to keep firearms out of the hands of Italian immigrants.

One such supporter, the New York Times, praised what was supposedly the first conviction under the law, that of Italian immigrant Marino Rossi, who claimed he possessed his revolver for self-defense. After Rossi was sentenced to one year in Sing Sing Prison, a Sept. 29, 1911 New York Times article commended the “Judge’s warning to the Italian community” as “timely and exemplary.”

New York, notably, was not one of the states with a right to arms in its own constitution.

Knee-jerk efforts to curtail Americans’ behavior continued. When the 18th Amendment was passed in 1919 to ban intoxicating liquors, Americans watched a parochial “Prohibition” effort devolve into organized crime, violence, etc. When politicians suggest that “banning” firearms or magazines would cure the problem of violent crime, remind them that it didn’t work when it was attempted with unprotected commodities that didn’t entail a Constitutional freedom.

Prohibition was repealed in 1933, but one of its unfortunate legacies was a 1934 law, the National Firearms Act (NFA). The NFA was Congress’ most notable attempt up to then to suppress Americans’ access to firearms. It did this by imposing a $200 tax on the making and transfer of what were portrayed as the favored guns of gangsters, including machine guns and rifles or shotguns made or modified to be more concealable. All such guns also had to registered with the U.S. government.

While the NRA successfully lobbied to exclude handguns from the Act, it’s notable the NFA was meant to avoid conflict with the Second Amendment by stopping short of banning the remaining affected firearms outright.

The constitutionality of the NFA was challenged in a 1937 Supreme Court case, U.S. v. Miller. Historians acknowledge, however, the case was designed to fail. By the time his appeal reached the Supreme Court, Miller had gone into hiding to avoid the vengeance of criminal associates against whom he had testified. Neither he nor anyone else on his behalf participated in the Supreme Court proceedings.

The Supreme Court resolved the case by focusing on whether the “short barreled“ shotgun Miller was accused of transporting across state lines in violation of the NFA was the sort of “arm” protected by the Second Amendment. The court noted it had no evidence that the shotgun had a “reasonable relationship” to the “preservation or efficiency of a well regulated militia,” that it was “part of the ordinary military equipment,” or that “its use could contribute to the common defense.” Unwilling to assume the shotgun met any of these criteria, the court held the Second Amendment claim failed.

The Supreme Court then went silent on the Second Amendment for almost 70 years.

Meanwhile, gun control proponents within and without the legal establishment insisted that Miller meant the Second Amendment had nothing to do with an individual right to keep and bear arms, that it protected only the states’ ability to maintain militias or the right of active militiamen to bear arms. But the court didn’t say Miller’s Second Amendment claim failed because he himself was not a militiaman. It simply said Miller’s own firearm was not of the type the Amendment protects.

After a number of high-profile political assassinations in the 1960s—none of which was committed by a law-abiding citizen—the gun control “movement” was officially underway. In response, the NRA countered with political and legal advocacy efforts on behalf of the peoples’ right to keep and bear arms. These contests—which pitted familiar tyranny against enshrined rights—caught the awakened eye of the U.S. Supreme Court in 2008.

All that came to fruition in 2008, when the U.S. Supreme Court in District of Columbia v. Heller confirmed that the Second Amendment protects an individual right to keep and bear arms, independent of service in an organized militia. The court explained that while preserving the militia was the reason for codifying the Second Amendment, that function did not limit the scope of the right itself, which was grounded in the concept of self-defense. This further meant D.C.’s bans on handguns and operable firearms in the home were unconstitutional.

When gun control advocates forced another case to the Court two years later (McDonald v. Chicago), another NRA-backed victory followed: the Supreme Court held that the 14th Amendment also makes the individual right to keep and bear arms enforceable against state and local officials, alongside other fundamental liberties.

It is now 2019, yet anti-gun courts have continued to defy the Second Amendment, upholding the same types of gun control laws enacted when those same courts were denying the Second Amendment protected individual rights. This includes the modern manifestation of New York’s Sullivan Act.

That law, as enforced by New York City, remains so draconian that licensees are prohibited from leaving their homes with a licensed handgun without express legal or written permission, even if the firearm is unloaded and locked in a case for transport.

Until recently, that meant most licensees couldn’t leave the city at all with their handguns, including to take them to another residence, a range, or a competitive event. No problem, said the Second Circuit Court of Appeals, refusing to decide whether the Second Amendment even applies outside the home.

Yet after the Supreme Court took the case, New York officials claimed they had changed the laws to allow handgun licensees more opportunity to transport their arms. The dispute, they insisted, had been resolved.

But the Court saw through these shenanigans and rightfully denied their request to dismiss the case.

That meant the case would be heard this December by a Supreme Court that includes two justices appointed by President Trump with demonstrated tendencies to take the Second Amendment seriously.

Time will tell, but that could also mean the Supreme Court will finally affirm the right to exercise a revived Second Amendment beyond the home … maybe even in New York City.

IN THIS ARTICLE
Supreme Court
TRENDING NOW
Anti-gun Lawmakers Attempt to Ban Essential Second Amendment Arms

News  

Monday, May 5, 2025

Anti-gun Lawmakers Attempt to Ban Essential Second Amendment Arms

On April 30, Sen. Adam Schiff (D-Calif.) introduced the so-called “Assault Weapons Ban of 2025.” Picking up where his predecessor Dianne Feinstein left off, Schiff’s legislation would ban commonly-owned semi-automatic firearms, such as the AR-15.

Canada’s Gun Confiscation: Still Grasping for Solutions?

News  

Tuesday, May 13, 2025

Canada’s Gun Confiscation: Still Grasping for Solutions?

Last year, we wrote about how several previous enforcement schemes for Canada’s Liberal government’s 2020 gun ban and confiscation appeared to have fizzled out. 

House Committee on Ways and Means Advances Legislation Involving Suppressors

News  

Wednesday, May 14, 2025

House Committee on Ways and Means Advances Legislation Involving Suppressors

Early this morning, The House Committee on Ways & Means, led by Chairman Jason Smith (R-MO-08) finished a markup of their section of the Reconciliation Bill. Included in this legislation was a provision which would ...

Bite This: “Scientists” Uncover Link Between “Gun Violence” and Oral Hygiene

News  

Tuesday, May 13, 2025

Bite This: “Scientists” Uncover Link Between “Gun Violence” and Oral Hygiene

Some of us remember our days as kids, when the adults in our lives would tell us before bedtime, “Brush your teeth, and say your prayers.”

Rocky Times for Gun Owners in the Rocky Mountain State

News  

Tuesday, May 13, 2025

Rocky Times for Gun Owners in the Rocky Mountain State

As the Colorado legislative session closes, its 2025 edition will long be remembered and lamented as a historic assault on the Second Amendment.

Trump Administration Revives Federal Firearm Rights Restoration Provision

News  

Friday, March 21, 2025

Trump Administration Revives Federal Firearm Rights Restoration Provision

On March 20, the U.S. Department of Justice (DOJ) published an interim final rule entitled, Withdrawing the Attorney General’s Delegation of Authority. That bland title belies the historic nature of the measure, which is aimed at reviving ...

Rhode Island: Semi-Auto Ban Being Pushed in Both Chambers

Thursday, May 15, 2025

Rhode Island: Semi-Auto Ban Being Pushed in Both Chambers

On Wednesday, May 14th, the Senate Judiciary Committee held a lengthy hearing on S.359, a sweeping semi-auto ban falsely dubbed an “assault weapons ban.” If passed, this legislation would ban scores of commonly owned rifles, ...

Arizona: Governor Hobbs Vetoes Three Pro-Gun Bills Passed by Legislature

Friday, May 16, 2025

Arizona: Governor Hobbs Vetoes Three Pro-Gun Bills Passed by Legislature

Despite strong support from the Arizona Legislature, Governor Katie Hobbs has vetoed Senate Bills 1014, 1020, and 1143, each of which sought to protect and enhance the rights of law-abiding gun owners in the Grand Canyon ...

NRA Takes Fight to Defend the Constitutional Rights of Young Adults to the U.S. Supreme Court

News  

Second Amendment  

Friday, May 16, 2025

NRA Takes Fight to Defend the Constitutional Rights of Young Adults to the U.S. Supreme Court

Today, the National Rifle Association of America (NRA) filed a Petition for Certiorari in NRA v. Glass, asking the U.S. Supreme Court to hear its challenge to Florida’s prohibition on firearm purchases by adults under ...

Texas: House Passes Legislation Prohibiting Gun Buybacks!

Wednesday, May 14, 2025

Texas: House Passes Legislation Prohibiting Gun Buybacks!

Yesterday, the Texas House passed House Bill 3053, legislation that prohibits local governments from organizing or participating in gun buyback programs. The bill now heads to the Texas Senate for consideration. Please use the Take ...

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.