The civic republican political philosophy of the Founding era stressed the need for individuals to sacrifice some measure of their liberty for the common good. As one writer in an eighteenth century newspaper observed, "If, indeed, government were really strengthened by such surrender" of rights, and "if the body of the people were made more secure, or more happy by the means, we ought to make the sacrifice." Moreover, "if the good of his country should require it; and every individual in the community ought to strip himself of some convenience for the sake of the public good."

The original language of the assembly clause of what became the First Amendment embodied this civic republican ideal. The right of assembly was originally understood in civic terms. The emphasis is not on individual rights, but rather the rights of citizens acting together for a common public purpose. Individuals acting in isolation do not assemble; nor do individuals acting in isolation bear arms. In this sense, assembly and bearing arms were closer to jury service, than freedom of religion or speech. Both activities were originally understood to be closely tied to a distinctive republican conception of constitutionalism.

It is also worth noting that the original provision on arms bearing had an exemption for those who opposed bearing arms on religious grounds. The inclusion of this language indicates that the original Second Amendment had nothing to do with an individual right to use guns for private purposes. The state cannot force you to hunt or defend yourself; you can only be "scrupulous" about bearing arms in some military context. Indeed, the entire discussion of the right to bear arms in Congress at that time focused on militia-related activity. Indeed, recent scholarship has demonstrated that the Congress during the Founding era used the term "bear arms" to refer exclusively to military matters. {Dorf in the Chicago-Kent link listed above}

The idea of bearing arms in the Second Amendment was not part of a libertarian anti-government ideology, but rather it was an essential part of what the Founders called "well regulated liberty." This was the world of the Minutemen, not the Michigan militia. As historian David Hackett Fischer notes, the Minuteman ethos was one in which collective rights and individual responsibility predominated. Our world has become quite the opposite: one in which individual rights and collective responsibilities predominate. This shift in values and approach makes it especially hard to make sense of the Second Amendment in contemporary America.

The Second Amendment fits neither the modern individual nor collective rights models, making it hard to interpret. The best way to describe the original conception of this right would be to think of it as a civic right. It was a distinctive fusion of a right and civic obligation. In contrast to genuinely individual rights, such as freedom of speech, the state could force you to bear arms. It was for this reason that the first state constitutions also provided religious exemptions for Quakers and other religious groups opposed to bearing arms.

The important question before the Supreme Court is how to translate the Second Amendment in modern terms that remains faithful to the nuances of the original text, without turning it into a nullity or anachronism. The Court's task is neither enviable nor easy.

Guns and American Exceptionalism

The American gun debate looks puzzling to the rest of the world. Indeed, guns may be the one area where American politics is truly exceptional. There is simply nothing like America's gun culture in any other part of the western world. America has more guns, higher levels of gun violence, and is the only western constitution where anyone would compare the right to have firearms with freedom of speech and not be considered daft or politically marginal.

Although guns appear to have become as American as apple pie, the rancor of America's debate over firearms policy is wholly out of proportion to the actual level of gun regulation in America. Reading gun rights web sites or listening to the Republican candidates for President talk, you would think that America was on the verge of some type of mass gun confiscation. Whatever you might think about gun control – put that notion out of your mind. With over two hundred millions guns in America there is no plausible scenario to turn America into a gun free zone, even if such a goal was politically possible or desirable from a public policy perspective. Indeed, America has the weakest gun regulatory regime in the industrialized west (and the highest levels of gun violence—although the cause and effect relationship between these two facts is almost as hotly debated as the Second Amendment issue.)

The District of Columbia's gun control law is a notable exception to this rule. It is one of the few gun control regulations in the U.S. similar in scope to those found in almost every other industrial democracy in the world. The District of Columbia is at the center of American political life so its gun laws have tremendous symbolic importance to both gun control and gun rights advocates. In this way, the symbolism of Heller may ultimately outweigh its potential impact on gun control in America. Whatever happens in Heller, some types of restrictions on gun ownership are likely to survive constitutional scrutiny. Similarly, whatever happens in Heller, gun rights advocates and gun control supporters are likely to continue their struggles with renewed vigor.

The great loser in the American gun debate is the American people. Neither side in the modern debate over the Second Amendment has developed either a solid constitutional theory or a corresponding public policy agenda that speaks to the two inescapable realities about modern America: guns are deeply woven into the fabric of modern American society and America has an intolerably high level of gun violence. Until public debate addresses these two inter-related problems we will make little progress on the gun issue.

What Will the Court Do?

It is impossible to say how the Supreme Court will decide the case of District of Columbia v Heller. It seems most likely the court will be divided and some coalition among the moderates will try to stake out a middle ground between the orthodox gun rights and gun control positions.

Much will depend on what Justice Anthony Kennedy thinks about the Second Amendment. At least one former Kennedy clerk speculates that the Justice is likely to find that the Second Amendment protects a limited individual right subject to very robust levels of regulation. Under this theory, the DC gun control law might pass constitutional muster. Alternatively, the High Court may accept that the Second Amendment only protects weapons owned in connection with a government controlled militia. If that happens the DC gun law should survive intact.

Another possibility, but less likely, is that the DC law might be constitutional under the Second Amendment, but the Court might still choose to find some other way of protecting the interests of gun owners in the District of Columbia (The Court might turn to the un-enumerated rights protected by the 9th or the ideals of liberty articulated in the 14th Amendments). Whatever the Supreme Court decides, it seems likely that neither side in this issue is likely to get all that it wants from the Court. The debate will continue on, with its lobbyists and vested interests on both sides cranking up fund raising letters before the ink on the opinion is dry.

UPDATE (November 7 2008)

Historians and Heller: The Second Amendment Comes Back from Court
Nathan Kozuskanich

In its June, 2008 decision in the Heller case, the Supreme Court interpreted the meaning of the Second Amendment to the U.S. Constitution for the first time since 1939.  The Court ruled that it "protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."

The ruling came as little surprise to court-watchers, given the conservative leaning of the court under Chief Justice and Bush-appointee John Roberts, and it validates what a majority of modern Americans already believe about the Second Amendment. 

The Court's majority opinion, however, insists that it does not reflect modern attitudes.  Rather, it makes assertions about "text and history," and offers an interpretation of the Founders' original intent in writing the Amendment. 

The Court's claim to rely on "history", not current opinions, to come to its decision has frustrated many professional historians, who believe that in doing so the Court has misread the historical sources and context.  Whatever its impact on future court rulings, laws, and public policy, then, the Court's use of history to justify its decision means that the historical debate over the Second Amendment is far from over. 

The Court's interpretation of the original meaning of the Second Amendment relies on a recent trend of linguistic analysis called "plain meaning originalism," a method of analysis that considers the "normal and ordinary" use of words and phrases instead of "secret or technical meanings."

Crucial to its understanding of the amendment is an analysis of the phrase "bear arms."  Basing its interpretation on contemporary dictionaries (a perhaps odd choice given that the first American dictionary was published almost forty years later) the Court maintains that "'bear' meant to 'carry.'"

As such, the Second Amendment was never meant to protect an exclusive military right.  Although the Court acknowledges that "bear arms" did idiomatically mean "to serve as a solider," that meaning was only unequivocal when "followed by the preposition 'against,'" such as in the Declaration of Independence's complaint that King George III forced captured Americans to "bear arms against their country."

To make these claims the Court dismisses two very important historical sources: the press and Congressional records.  A survey of the term "bear arms" in newspapers, pamphlets, and Congressional records from 1776-1791 reveals that over 98% of the usages referred to military action. Irrelevant, says the Court, arguing that it was "unremarkable" that bear arms was "often used in [a military] context." Likewise, since Congress only had occasion to debate issues like the federal militia, its use of "bear arms" is also unremarkable. 

To an historian, ignoring the language of the very legislative body that drafted and passed the Second Amendment makes little sense.  Surely interpreting the language of the Bill of Rights hinges on which meanings were idiomatic and which were idiosyncratic. 

Moreover, although the Court claims to be interested in the normal meaning of words, it has ignored the American press, a source that far better explains the common usage and understanding of words than dictionaries.  William Blackstone, the most respected jurist of the Founding Era, would agree: "Words are generally to be understood in their usual and most known signification, not so much regarding the propriety of grammar, as their general and popular use."  The pages of the press also reveal a perennial concern for the militia and ensuring that men would fulfill their duty to bear arms for the common defense.

The Heller decision is the result of years of poorly researched legal scholarship that has little appreciation for context and historical method.  Justifying its analysis by citing these articles, the Court has read the past to suit its own ideological ends.  Rather than appreciate change over time—the very essence of historical understanding—the Court advocates a static view of history centered around an unchanging right to bear arms.  While such an approach may be suitable in legal circles, historians demand more rigorous standards when dealing with the questions of the past.