Judicial intervention of this kind is a modern invention. The Second Amendment was ratified in 1791, but it wasn’t until fourteen years ago that the Supreme Court read into it a right to use weapons for self-defense and declared a gun control law unconstitutional. For most of American history, federal courts left gun regulation to democratic debate. Judges understood the Second Amendment to safeguard the rights of “free state[s]” to maintain “well-regulated militia[s]” and to use guns in connection with militia service—a view the Supreme Court expressed in 1939.
Until recently, prominent conservatives agreed. Robert Bork—a high priest of the conservative legal movement and a staunch originalist—explained in 1989 that the Second Amendment’s “intent was to guarantee the right of states to form militia, not for individuals to bear arms.” In 1991 Bork repeated his view that the Second Amendment protected “people’s right to bear arms in a militia. The NRA thinks that it protects their right to have Teflon-coated bullets. But that’s not the original understanding.” For more than two centuries, this view governed American law. Not a single federal case struck down a gun law on Second Amendment grounds.
That changed in 2008, when five Republican-appointed justices on the Supreme Court asserted that they had discovered the “original meaning” of the Second Amendment and used it to invalidate a law restricting handgun possession. The case, District of Columbia v. Heller, involved a challenge to a local law that barred most residents from owning handguns and required that firearms kept at home be unloaded and disassembled or bound by a trigger lock or similar device. The Court’s conservative majority held that the Constitution’s framers ratified the Second Amendment to protect an individual right to keep and bear arms for self-defense, especially in the home, where the need for defense of self, family, and property is “most acute.” This 5-4 decision changed the way most Americans read the Second Amendment. The Court brushed away the Amendment’s first clause—“a well regulated Militia, being necessary to the security of a free State”—as merely “prefatory” and instead emphasized “self-defense” as “the core lawful purpose” of the Second Amendment.
The phrase “self-defense” does not appear in the text of the Second Amendment. Neither does a reference to the “home.” The Court in Heller read these concepts into the Constitution. In doing so, it shifted responsibility for deciding the proper balance between gun rights and gun regulation from the people’s representatives to federal courts. For this reason and others, Heller was divisive, and scholars continue to question whether it was correctly decided.