Current State of the Second Amendment

Designed to ensure the people of the United States would always have the ability to resist tyranny, courts held the Second Amendment was an individual right applied only to the federal government and the states weren’t bound by the Bill of Rights. Through the years, the Supreme Court would rule that certain constitutional amendments were applied to the states, known as incorporation. The Second Amendment was left out of this for many years, but the federal government stayed out of the Second Amendment’s way.

In 1934, the government passed the National Firearms Act (NFA) of 1934, one of the the first national gun control laws, ostensibly to rein in gangland shootings from the 1920s bootleg wars. Prior to this, one could buy machine guns over the counter. 

Taxed, Not Banned

The NFA created a registry for machine guns, suppressors, and short-barreled rifles and shotguns, requiring a payment of a $200 tax (more than $3,800 adjusted for inflation) to register them. Congress didn’t ban these firearms because they knew it would run afoul of the Second Amendment, so they decided to tax their ownership instead.

U.S. v. Miller (1939) was the first case to directly address the Second Amendment. The Supreme Court held that it was an individual right, and that short-barreled shotguns were not in common use by the militia (which wasn’t true). 

The Second Amendment is an Individual Right

So, according to the court, the Second Amendment held that those arms that were part of militia use were the type specifically protected by the Second Amendment, which was an individual right…from a federal perspective. The Court hadn’t reviewed or decided a case that would incorporate the Second Amendment against the states, until District of Columbia v. Heller (2008), which definitively established it as an individual right, and McDonald v. Chicago (2010), which held states were also required to follow the Second Amendment.

But the forces that would eliminate our right to keep and bear arms are still hard at work. Here is the current state of the Second Amendment at the federal and state (Arizona & Virginia) levels.

National Status of Concealed Carry

Since 1994, the number of states who have moved to ‘shall-issue’ CCW permits is staggering. There are currently 30 “Shall Issue” states and 11 “Constitutional Carry” states. If you factor in reciprocity among many states, CCW permit holders can carry in most of the country. Several obvious exceptions exist, but this is a huge advance in fewer than 25 years.

National Level Legislation

There are currently more than 160 bills across the two houses that have the word “guns” in them. With a split House and Senate, plus a Republican president, the chances of the most onerous bills passing are slim. However, the president is not as committed to gun rights as many pro-gun people would like him to have (remember, he favored banning ‘bump stocks’, and the BATFE changed their stance on them afterward) and was in favor of a federal ‘red flag’ law, he’s better than the alternative.

The Congressional Research Service authored a document, Federal Firearms Laws: Overview and Selected Legal Issues for the 116th Congress (March 2019), that covers a lot of the national gun laws and considerations about laws that have been, or might be considered, at the federal level.

And federal attempts to regulate your Second Amendment rights aren’t restricted to guns. In August 2019, Senator Charles Schumer (D-NY) announced he would introduce legislation to ban civilian ownership of body armor. While there hasn’t been any evidence of that, the House of Representatives lists a bill that would ban civilian ownership and possession of ‘enhanced’ body armor. Introduced by Representative Grace Meng (D-NY), H.R.4568 would outlaw civilian ownership, possession, or purchase of armor that meets or exceeds the NIJ “Type III” standard, which includes all ballistic plates and hard armor.

State Level Legislation

While the federal government has instituted a wide array of gun control measures, it’s the states that implement most of the gun control measures. In the following examples, we look at two examples, Arizona and Virginia, that have recently felt the sting of attempted (Arizona) and passed (Virginia) gun-control schemes.

Arizona

In 2020, our state legislature still held a slim Republican majority in both the house and senate after the 2018 elections. We have a very strong pro-gun lobbying organization, the Arizona Citizens Defense Leage (www.azcdl.org). In addition to lobbying, they also have a bill tracking system where you can see the status of various pro- and anti-gun bills at the state legislature.

This current (2020 legislature) saw the introduction of many anti-gun bills by Democrats enboldened by an increased number of seats as a result of the 2018 state elections.

Arizona currently has some of the most permissive gun laws in the country, as well as some of the better CCW reciprocity coverage, too. The US Concealed Carry websites allows you to plug in your own state and see what reciprocity coverage your permit allows in different states.

Virginia

The Old Dominion learned recently that elections have consequences, where the state legislature has introduced a number of anti-gun bills that have widespread support of both houses and the governor. The NRA’s Institute for Legislative Affairs (ILA) has a write up for the latest on the bills currently under consideration at the writing of this post. 

It looks as if the legislature passed seven anti-gun bills that will go to the governor. In addition, the Democrats in the Virginia legislature voted down a pay raise for county sheriffs departments that supported the Second Amendment sanctuary movement.

What does it all mean?

While the Second Amendment movement has experienced a lot of success over the past decade, we cannot rest on our laurels. Anti-gun forces know it’s difficult to pass national anti-gun laws, though they still try. The real anti-gun efforts are being introduced at the state level, where it’s easier to pass anti-Second Amendment laws. But that’s also where pro-gun laws are more easily passed, at least in states with favorable legislatures and government.

After the Continental Congress, Ben Franklin was asked what kind of government our founders had created, “A Republic, if you can keep it.” As much as we might desire to not have to continually fight to keep a right guaranteed in our Constitution, we must be eternally vigilant if we’re going to maintain our Republic.