Introductory Remarks to the Fordham Urban Law Journal's Volume XXXIX Symposium: Gun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia V. Heller and McDonald V. Chicago: Fordham Law School-March 9, 2012
Fischman, Harris, Fordham Urban Law Journal
Introduction I. The Text of the Second Amendment II. Supreme Court Decisions Analyzing the Second Amendment III. The Supreme Court's Decision in District of Columbia v. Heller IV. The Supreme Court's Decision in McDonald v. City of Chicago V. Issues Being Litigated Post-Heller and Post-McDonald Conclusion
Thank you, Dean Martin, and thank you to the members of the Fordham Urban Law Journal for putting together this event and giving me the opportunity to speak to you all today.
What I would like to do in the time I have is to try and provide a bit of background for some of the debate on the Second Amendment that you will hear later today. To that end, I am going to try to summarize how the Supreme Court has interpreted the Second Amendment, most importantly focusing on the 2008 and 2010 decisions in District of Columbia v. Helle (1) and McDonald v. City of Chicago. (2) Please know that I speak today not on behalf of the Department of Justice or the United States Attorney's Office, and any opinions or beliefs that I express are my own and not necessarily those of the Department.
I. THE TEXT OF THE SECOND AMENDMENT
A natural place to start is with the text of the amendment itself. The Second Amendment reads: "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." (3) The amendment contains two parts: the prefatory language, "A well regulated Militia, being necessary to the security of a flee State," and the operative part, "the right of the people to keep and bear Arms, shall not be infringed." How to interpret the relationship between the prefatory language and the operative language is the cornerstone of the debate in the Supreme Court's 2008 decision in District of Columbia v. Heller. (4) Does the operative language, "the right of the people to keep and bear arms, shall not be infringed," only apply when arms are kept or carried in connection with a military purpose? Or does the prefatory language concerning the necessity of a militia merely provide the backdrop against which the Founders felt it necessary to codify an individual right of "the people" to keep and bear arms--whether or not the use of arms is related to military use?
The Supreme Court did not address this issue of linguistics and the Founders' intent until the Heller decision in 2008. Commentators on both sides of this issue have argued that the Court's silence on this topic suggests that one way or the other, before Heller there really was no serious debate about the meaning of the Second Amendment. Depending on your viewpoint, the Court in Heller, in finding that the Second Amendment protects an individual's right to bear arms in non-military conduct, either affirmed a well-accepted principle or, on the other hand, expanded the scope of the right under the Second Amendment, despite the plain language concerning the militia, to create a constitutionally protected individual right to bear arms when such a constitutional right had never existed before nor was intended to exist by the Founders.
II. SUPREME COURT DECISIONS ANALYZING THE SECOND AMENDMENT
Interestingly, before Heller and McDonald, the Second Amendment rarely was a source of much interest for the Supreme Court. Indeed, prior to the 2008 Heller decision, the meaning and scope of the Second Amendment seems only to have been the focus of three Supreme Court decisions. (5) I will discuss each of those briefly.
First, in 1876, the Supreme Court in United States v. Cruikshank, (6) a few years after passage of the Fourteenth Amendment, addressed whether the Second Amendment applies by its own force to anyone other than the Federal Government. (7) The Court concluded that the Second Amendment means no more than that the right to keep and bear arms shall not be infringed by Congress, and that states were free to protect or restrict that right under their police powers. …