The Constitutional Orphan: An Abandoned Right

The Second Amendment of the Bill of Rights ambiguously states that: “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.” Notice that unlike the rest of the original amendments, the Second Amendment is unique in its linguistic structure. As brief as it is, it consists of two distinguishable components: a more specific preamble followed by a less precise operative clause. The preamble, comprising the statement’s first half, is somewhat less controversial in the sense that virtually everyone agrees that militia organizations such as the National Guard ought to be armed. Therefore, when scholars disagree about the meaning of the Second Amendment, it is typically because they differ in their interpretation of the operative clause. After all, the operative clause, or the second half of this text, is notoriously vague. Just who are “the people” in this context? Does this refer only to those citizens who happen to also serve the millia or the local police force? Or alternatively, is this diction meant to apply to the ordinary citizen? And furthermore, what does it mean to “bear” arms? Was this deliberate verb choice meant to exclude certain weapons? Rather than directly weighing in on this unresolved debate and attempting to fill in the blank spaces left open by the Framers, the Supreme Court has kicked the interpretation of this particular amendment down the road -- outside of a handful of rulings.

Presser v. Illinois (1886) was one of these exceptional instances in the Court’s 232-year history. On this momentous occasion, it sustained an Illinois state statute prohibiting parading with arms by groups other than the organized militia. Herman Presser, the appellant, who had been convicted of leading armed members of a fraternal organization in a parade, challenged this statute on the grounds that it violated the Second and Fourteenth Amendments. The Court's majority opinion, written by Justice William B. Woods, rejected Presser's claims. It held that the Second Amendment's guarantee of the right to keep and bear arms only applied to federal legislation. This ruling exemplifies the Court’s early rejection of the view that the Fourteenth Amendment incorporates the Second Amendment and therefore applies it to the states. Justice Woods’ opinion also noted that the Illinois statute did not technically interfere with the more general right to keep and bear arms, and that state governments could not entirely disarm their populations because this would foreseeably interfere with the federal government's ability to raise a militia from the population at large. Despite this concession, the opinion stressed that the Second Amendment only limited regulatory action by the federal government, not by the states. 

In this decision, the Court also reaffirmed its holding in United States v. Cruikshank (1876). 

Fifty-three years later, in United States v. Miller (1939), the Court upheld a federal law that regulated the interstate transport of sawed-off shotguns. The Court reasoned that since this type of weapon was not necessary for the preservation or efficiency of a well-regulated militia, the Second Amendment did not protect the right to own it. Therefore, via upholding the National Firearms Act (NFA) of 1934, the Court established the ground-laying precedent that the Second Amendment did not summarily protect the right to possess any variety of weapons whatsoever.

In other words, by rendering this decision, the Court significantly narrowed the range of permissible civilian weapons by defining and qualifying “arm” in this unprecedented fashion. 

Fast-forwarding, the Court acted most uncharacteristically just over a decade ago when it agreed to hear the now-famous case of District of Columbia v. Heller (2008). In this landmark case, the Court considered whether the Second Amendment protected an individual’s right to possess weapons for distinctly private, rather than collective purposes (as has been previously discussed). Justice Antonin Scalia ultimately delivered the opinion for the 5-4 majority, holding that: “it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.” In order to ground this determination, he invoked the aforementioned United States v. Cruikshank (1876), which held that: “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.” Aside from this main assertion, he stressed that the preamble of the Second Amendment that references a “militia” ought to be interpreted as a mere prefatory clause that does not limit the operative clause. Moreover, the late justice made a point of imploring that the term “militia” not be confined to those serving in the military, because at the time, the term referred to all able-bodied men who were capable of being called to such service. 

Going even further, Justice Scalia passionately warned that to read the Amendment as limiting the right to bear arms only to those in a governed military force would create exactly the sort of state-sponsored force against which the Amendment was originally meant to protect (weaponless and hence defenseless) people from. He went on to clarify in his scathing opinion that: “Nowhere else in the Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an individual right.” For these reasons, Justice Scalia ultimately deduced that: “There seems... no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.” Then, to further contextualize his position on the matter, Justice Scalia forthrightly recognized that there ought to remain limits to this right, just as the freedom of speech is not unlimited, nor should it be. By transparently acknowledging such pre-identified legislated limits, Justice Scalia showed deference to the “longstanding prohibitions on the possession of firearms by felons and the mentally ill, in addition to laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, as well as laws imposing conditions and qualifications on the commercial sale of arms.” Writing for the majority, Justice Scalia unequivocally concluded on page 64 of his opinion that: “what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”

Two years after this revolutionary holding, the Court extended the scope of this newly-recognized individual right in McDonald v. City of Chicago (2010) when it reversed a lower decision and finally established that the Fourteenth Amendment makes the Second Amendment applicable to the states via incorporation. With Justice Samuel Alito writing for the 5-4 majority, the Court asserted that rights that are "fundamental to the Nation's scheme of ordered liberty" or that are "deeply rooted in this Nation's history and tradition" ought to be appropriately applied to the states via the Due Process Clause of the Fourteenth Amendment. Recalling Heller, the Court affirmed that the right to keep and bear arms for the limited purpose of domestic self-defense was one such "fundamental" and "deeply rooted" individual right. 

Since this landmark ruling, the Court has steadily refused to hear any Second Amendment related challenges. As a consequence of this refusal, lower courts continue to escalate this constitutional controversy by sustaining a myriad of conflicting firearm statutes -- many of which patently contradict the aforementioned holdings of McDonald and Heller. Justice Clarence Thomas acknowledged this disappointing trend and articulated his outrage when he issued a 14-page dissenting opinion in response to the Court’s refusal to grant writ of certiorari to the appellants of Peruta v. California (2017), in which he expressed that: “The right to keep and bear arms is apparently this court’s ‘constitutional orphan.’ And the lower courts seem to have gotten the message,” In this scolding dissent, Justice Thomas goes on to brashly declare that: “If a lower court treated another right so cavalierly, I have little doubt this court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this court.” Near the end of his opinion, he passionately and unequivocally asserts that: “The Constitution does not rank certain rights above others, and I do not think this Court should impose such a hierarchy by selectively enforcing its preferred rights.” Justice Thomas goes on to conclude and make the larger point that: “[the Court’s passivity] is inexcusable, especially given how much less developed [our legal system’s] jurisprudence is with respect to the Second Amendment as compared to the First and Fourth Amendments.” 

Given the reality that the Second Amendment’s meaning has yet to be comprehensively deciphered and that there is still no clear or consistent legal standard for its evaluation, it is difficult to disagree with Justice Thomas on this front. As things sit today, circuit courts across the country continue to uphold arbitrary bans and restrictions, and they tend to employ lower levels of judicial scrutiny (such as rational basis review), which enable them to balance public safety interests. Despite what may well be good-faithed motivation fueling this interest balancing procedure, the once-recognized individual right to bear arms seems to erode with each successive lower court ruling. In this sense, the Second Amendment appears to be not only orphaned but also under attack. Disagreeing with this characterization, Justice Stevens starkly argued against the principle of incorporating or applying all Bill of Rights provisions to the states when he contended: “When a federal court insists that state and local authorities follow its dictates on a matter not critical to personal liberty or procedural justice, the latter may be prevented from engaging in the kind of beneficent ‘experimentation in things social and economic’ that ultimately redounds to the benefit of all Americans.” Stevens’s advocacy for judicial restraint when it comes to this particular political matter can only be understood as to complement the practice of federalism: under which localities such as states are able to pass their own gun laws. This way, rather than administering from top down via judicial activism, the Court’s inaction enables states to experiment with a variety of policies. This ought to make you wonder whether the Court’s deliberate silence on this polarizing issue is really such a bad thing?

Either way, I speculate that this disagreement between Justice Thomas and Justice Stevens runs much deeper than it may ostensibly appear. In other words, it seems to me that they are disagreeing less so about whether the Second Amendment should apply to the states and more so about the proper role of the Court with respect to our constitutional republic. After all, there are two groups. On one side, there are citizens who believe it is the Court’s righteous duty to resolve these constitutional conundrums and to preserve/define constitutional rights. Considering the many gray areas that have been identified, including but not limited to whether the Second Amendment protects the right to carry a handgun outside the home for self-defense -- there is undoubtedly an especially strong impetus to view the Court’s role this ‘active’ way. On the other hand, there are those who implore that the Court refrain from “being influenced by the political winds.” Under this popular view, the only legitimate role of the Court is to ‘passively’ leave contentious issues, such as assault weapons bans, trigger locks, and the right to publicly carry unconcealed guns, up to individual states to decide via localized legislation. It is debatable whether these two views are contradictory, but it is clear that scholarly opinion is starkly divided. 

And so the question remains: will the ‘constitutional orphan’ remain inferior to and estranged from the rest of the Bill of Rights as it continues to be neglected by the Court? Or alternatively, will the ‘political winds’ eventually whirl chaotically enough for this orphaned right to finally catch the attention of Chief Justice Roberts? Only time can tell. But in the meantime, we ought to carefully reflect upon and flesh out the proper role of the Supreme Court, especially as it concerns preserving individual rights -- before this lack of consensus regarding the Court’s functional role as ‘guardian’ foments constitutional crises pertaining to the separation of powers.

Tom Bickel is a junior concentrating in Political Science and Philosophy at Brown University. He serves as a staff writer for the BULR Blog, and can be reached at thomas_bickel@brown.edu.