A Short Legal History of the Second Amendment and Gun Control in America

With the recent shooting at Parkland High School and retired Supreme Court Justice John Paul Stevens advocating the repeal of the Second Amendment, I thought as I always do that having some history on the matter would be helpful! Here’s a timeline of the history of gun law in the United States, and the amount of actual case history for such a controversial issue is shockingly shallow, with the first case directly addressing the amendment occurring 87 years after the ratification of the Constitution.

1689 – The Bill of Rights of England is adopted, with many of its provisions sounding terribly familiar. One of them is, “Protestants may have arms for their defense suitable to their conditions and as allowed by law” (English Bill of Rights). The Second Amendment would partly be adopted on the basis of this English right.

1789 – The Constitution is ratified. The precise text of the Second Amendment: “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” (US Const., amend. II). The meaning of these words continue to be debated back and forth, particularly over the definition of a militia and whether the right applies to just people in the militia, or to anyone who is capable of being in the militia.

1857 – In the infamous Dred Scott vs. Sandford, the Supreme Court’s majority decision noted that if blacks were to be regarded as citizens “It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right…to keep and carry arms wherever they went” (Dred Scott v. Sandford). This implies that it was commonly understood that the rights of individuals were protected to keep and bear arms.

1876 – The first major case regarding the Second Amendment is United States v. Cruikshank, which holds that “The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government” (United States v. Cruikshank). If this decision is a correct reading of the Second Amendment, it would mean that the McDonald decision of 2010 is incorrect. It should also be noted that this decision was following in the ideological footsteps of the Slaughter-House Cases (1873), which eviscerated the 14th Amendment’s privileges and immunities clause and is frequently regarded as among the worst Supreme Court decisions among legal scholars (Schwartz, 1997).

1934 – Congress passes and President Franklin D. Roosevelt signs into law the National Firearms Act, which imposed a prohibitive tax on sawed-off shotguns and machine guns. These were not regarded as weapons used by common, law-abiding citizens for their defense.

1939 – The aforementioned law is challenged in United States v. Miller, but the Supreme Court upholds it unanimously, finding that only weapons that had application for military combat could be protected under the Second Amendment.

1968 – Reacting to the JFK, MLK, and RFK assassinations, Congress passes the Gun Control Act. This law banned mail orders of rifles and shotguns as well as prohibited most felons and certain other prohibited people like the mentally incompetent from purchasing guns.

1986 – After numerous complaints from the NRA and holders of federal firearms licenses over the allegedly overbearing enforcement of regulations under the Gun Control Act of 1968, Congress responds by passing the Firearm Owners Protection Act, which rolls back some of the provisions of the 1968 law. Particularly important was the provision that ATF inspections can only occur once a year, except in cases in which the subject has had multiple record-keeping violations on an inspection, in which a follow-up is permitted. The bill also notably includes a provision known as the Hughes Amendment, which bans civilian ownership of fully automatic weapons manufactured after 1986. Weapons manufactured before were registered, with its owners paying high fees for ownership permits.

1994 – Support builds up for a new gun control law, the Brady Bill, under the belief that had John Hinckley Jr. been subjected to background checks, he would not have been able to obtain the gun he used in his assassination attempt on President Ronald Reagan and the paralyzing of Press Secretary James Brady. The Brady Bill also contained a 10-year ban on “assault weapons”, or semiautomatic rifles.

1997 – The Supreme Court strikes down certain provisions of the Brady Bill on Tenth Amendment grounds in Printz v. United States, but finds the overall statute constitutional. The case has no great implications for the meaning of the Second Amendment.

2004 – Congress allows the assault weapons ban to expire.

2008 – In District of Columbia v. Heller, the Supreme Court holds that the protection of individual firearm ownership can apply outside of the militia context. This is a 5-4 decision.

2010 – In McDonald v. Chicago, also a 5-4 decision, partially overrules Cruikshank, using the Incorporation Doctrine on the Second Amendment. Also notably, the plaintiffs in this case called for the court to overturn the Slaughter-House Cases, permitting the application of the Fourteenth Amendment for all amendments on the states, meaning guarantees for other rights on a state level would become more absolute.

References

Brady Handgun Violence Prevention Act, 107 Stat. 1536 (1993).

District of Columbia v. Heller, 554 U.S. 570 (2008).

Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

English Bill of Rights. Yale University.

Retrieved from http://avalon.law.yale.edu/17th_century/england.asp

Firearm Owners Protection Act, 100 Stat. 449 (1986).

Gun Control Act of 1968, 82 Stat. 1213-2 (1968).

McDonald v. Chicago, 561 U.S. 742 (2010).

National Firearms Act, 48 Stat. 1236 (1934).

Printz v. United States, 521 U.S. 898 (1997).

Schwartz, B. (1997). A book of legal lists: The best and worst in American law, with 150 court and judge trivia questions. New York, NY: Oxford University Press.

US Const., amend. II.

United States v. Cruikshank, 92 U.S. 542 (1876).

United States v. Miller, 307 U.S. 174 (1939).

 

 

 

 

 

 

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