What was the "standard" interpretation of the Second Amendment prior to Heller v. District of Columbia?

by waldrop02

One of the things I've seen during the discussion of President Obama's nominee for the Supreme Court is his stance on guns. My understanding is that the ruling of the Heller case was what created the modern interpretation that gun ownership is an individual right, not requisite upon being a member of a militia. What was the prevailing judicial precedent on the Second Amendment prior to this ruling? If you have any information on how laypeople viewed it as well, I'd also be interested in hearing in that.

FatherRusty

I'm not qualified or knowledgeable enough to talk about how laypeople viewed Second Amendment issues long ago, but I can tell you a bit about prior case law. My educated guess though is that, given the relative lack of early constitutional challenges to state bans on gun ownership, there were 1) not a lot of states feeling it necessary to ban firearms; and 2) not particularly strong feelings about the issue from the public. That said, the court history is pretty interesting and I'll discuss some early state gun control laws below.

A very early case supporting the Heller-esque interpretation of the Second Amendment was Bliss v. Commonwealth of Kentucky (1822). In that case, a state court found that Kentucky's attempt to prevent open-carry of firearms was prohibited by the Second Amendment. Similar rulings took place in state courts in Georgia, Tennessee and other southern states before the Civil War. However, these cases are difficult to compare to today for two reasons. First of all, the laws didn't exist for the same purpose. A lot of the motives behind those laws at the time was to keep guns out of the hands of black people, freed or enslaved, and to stop them from organizing. So, with that massive backdrop not existing anymore, its tough to compare the early state cases to today.

Federally, anything before the 14th Amendment in 1868 makes modern comparison difficult legally. This is due to the doctrine of incorporation, which, in simple terms, finds that some constitutional rights are fundamental and must be applied against the states as well as the federal government. It's very important to keep in mind that the Constitution was originally written to stop abuse of power by Congress, not by the states. For example, the First Amendment prohibits Congress from establishing a religion, not a state legislature. However, the Establishment Clause was not officially incorporated against the states until the Supreme Court's decision in Everson v. Board of Education (1947). The Second Amendment was not actually incorporated against the states until McDonald v. Chicago (2010), an Alito opinion which essentially applied Heller against the states (which was unclear because DC law is made by Congress, not state government).

However, there were some cases pre-incorporation (which didn't really take off in popularly until the early 20th century) which might shed some light on earlier legal views of the Second Amendment. The most anti-Heller opinion was definitely United States v. Cruikshank (1875), in which the Supreme Court stated specifically that the Second Amendment applied only against the federal government, leaving the states to do as they pleased with firearm regulation. Again, however, that case was grounded in racial issues as the parties seeking to brandish weapons was a chapter of the KKK.

A more pro-Heller opinion came in Presser v. Illinois (1886), in which the Supreme Court held, more or less, that anyone who can use a firearm for the benefit of the United States (someone who can join the militia and use the firearm for that purpose) should be able to own one. That established the Second Amendment as an individual right, but again, the Court noted that that right was only protected from abuse by Congress, not the states.

I don't have time to go into more depth on the 20th Century case law, but it isn't particularly helpful in determining the "individual right" or not issue. What I will say is that, from having read much of the case law, Scalia was neither completely out of bounds nor entirely in-line with his textual/originalist nature in the Heller opinion. It's simply unclear on how early courts would have ruled given today's motivations for gun restriction and the new types of guns which politicians seek to restrict.

Hope this answer sheds some light on what you were looking for. However, if you want the best historical explanation of the case law, you should read the Heller opinion. It's very long (64 pages by the Scalia), but Scalia is an excellent writer and he does explain prior rulings such as Cruikshank and Presser and explains quite well (even if you disagree with him) why history supports a finding of an individual Second Amendment right.