Evolution of the Second Amendment: 1939-2008

The Second Amendment has been regarded as a controversial political issue. Accordingly, legislators have often skirted the constitutionality of firearm legislation, often explaining the Amendment as referring to the National Guard as the modern militia. With the Supreme Court mostly avoiding cases directly involving the Second Amendment, legislators have been allowed to interpret the meaning of the Amendment. In fact, before District of Columbia et al. v. Heller (2008), the only case heard before the Court directly examining the Second Amendment was U.S. v. Miller (1939). While many have argued that the recent ruling in Heller (2008) is a vast departure from previous assumptions about the Second Amendment, I argue that the new ruling is merely a deeper explanation of the limits described of the Second Amendment that the Court in Miller (1939) alluded to and that Heller (2008) really does not present any new rights or even open the flood gates to groundbreaking challenges to gun control legislation beyond what was addressed in this case. Due to the approach taken by the opposing parties, the Heller (2008) ruling focused primarily on the issue of the Second Amendment being either a collective right or an individual right. I contend that the ruling of the most recent court case is not only consistent with the Miller (1939) decision, but also that it provides the first explanation of the protections afforded to citizens under the Second Amendment. Despite the historical backing provided by the Court in their ruling, there is still concern that Heller (2008) brought about a great deal of social change in favor of gun owners. I argue that the assumed disconnect between historical and constitutional findings on the Second Amendment and popular pro-gun control perspectives of recent times originates from a misunderstood reading of the history of the Second Amendment as well as the Miller (1939) ruling along with a logically inconsistent expectation of the Second Amendment to remain dead (in that the Amendment is outdated with the advent of a standing, state sponsored military) while other rights in the Bill of Rights are living and breathing (allowed to evolve over the years and encompass technological advancements in society). In order to examine these issues, this paper will first identify the context in which the Miller (1939) case was heard, including a discussion on the associated law under scrutiny, The National Firearms Act. It will also discuss the implications of the ruling. Next, the Heller (2008) ruling will be dissected. Finally, the manner in which the Heller (2008) ruling handles the previous Miller (1939) ruling will be discussed along with the implications that are presented by that treatment of Miller (2008).