THE BLOG
12/19/2015 06:00 pm ET Updated Dec 19, 2016

Stop Hiding Behind the Second Amendment

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The Second Amendment does not protect an individual's right to own a firearm. This narrative was developed by the National Rifle Association in the late 1970s, out of fear that further gun control laws would eliminate private ownership of firearms altogether.

For 200 years following the ratification of the Second Amendment, federal judges understood that the Second Amendment safeguarded the right to keep and bear arms when serving in a state militia. This view was widely held until the 1980s when pro-gun organizations began claiming that federal regulation of the individual use of firearms violated Americans' Second Amendment rights.

Initially, the National Rifle Association dealt more with sport than politics. "I do not believe in the general promiscuous toting of guns," said Former NRA President Karl Frederick in 1934. "I think it should be sharply restricted and only under licenses."

In response to increasing crime, a 1968 federal law prohibited interstate firearms transfers except among licensed manufacturers, dealers, and importers. The NRA became scared that more restrictions would ultimately result in government seizure of all personal guns. That's when, in 1977, the group reorganized to launch an aggressive anti-gun control movement based on a fabricated understanding of the Second Amendment. Those who invoke the Second Amendment as an absolute reason why the United States can't act like Great Britain, Australia, Japan and other countries to reduce staggering gun violence don't understand the amendment at all.

When the thirteen colonies broke away from tyrannical Great Britain to form the United States of America, the concern that this new government would become corrupt was very real. The ultimate check on a tyrannical government, the Framers of the Constitution believed, was an armed population.

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." Since militias are made up of citizens bearing arms, gun proponents argue that the right to keep and bear arms naturally extends to each citizen, who may use a firearm for traditionally lawful purposes, such as self-defense within the home.

For the first time in history, this perspective was supported in the 2008 Supreme Court case District of Columbia v. Heller. A civilian, the Court ruled, has a constitutional right to keep a handgun in his or her home for purposes of self-defense.

Nowhere in the text, however, is it stated that an individual right to keep and bear arms is preserved. More overtly, the text refers to the collection of people who would make up a militia if the federal government were to abuse its power.

For Former Supreme Court Justice John Paul Stevens, the Second Amendment defends only the right to possess and carry a firearm in connection with military activities. Individuals do not have the right to keep and bear arms or to use weapons outside the context of service in a well-regulated militia.

"Different language surely would have been used to protect nonmilitary use and possession of weapons from regulation if such an intent had played any role in the drafting of the Amendment," Stevens wrote in the dissenting opinion to the case.

What's more, the Framers' primary motivation, he clarified, was not to reinforce the already common-law right of self-defense. A common-law right is established either by previous legal cases or by custom. Thus, defendants in criminal proceedings in each state already have the right to self-defense.

When Stevens joined the Supreme Court in 1975, there was no doubt among the Court of the Second Amendment's connotation being military, rather than personal. "Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands," he observed.

Five years after his retirement in 1986, former Chief Supreme Court Justice Warren Burger, a conservative, explained that "The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires." The notion that the Second Amendment preserves an individual right to own a gun, he added, is "one of the greatest pieces of fraud... on the American public by special interest groups that I've ever seen in my lifetime."

If the Second Amendment doesn't protect an individual right to own a gun, we don't need to repeal or amend it in order to establish major gun control laws. We must remember that this tale is the NRA's doing, not the Founders of the Constitution, and that it is rooted in fear. This fear is why the NRA staunchly opposes even minor firearms regulations today. We can and should move forward in enacting exactly what the pro-gun lobby is afraid of. We can't hide behind the Second Amendment anymore.