CONSTITUTIONAL INTERPRETATIONS

The United States Supreme Court will soon decide whether the Second Amendment’s “Right to Keep and Bear Arms” includes a gun owner’s right to carry his gun onto private property that is “open to the public,” when the property owner has not given his express permission for anyone to carry a gun there. SeeWolford v. Lopez, (Sup.Ct. no. 24-1046) (cert. to 116 F.4th 959 (9th Cir. 2024)). An older Supreme Court case, N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) implies, but does not hold, that a licensed gun owner does have a “right” to carry his gun almost anywhere the “public” can go, even when the property owner has not publicly or privately agreed to allow guns on his premises. However, a literal reading of the Second Amendment precludes that understanding.    

The Second Amendment to the United States Constitution reads, in its entirety, as follows:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

U.S. Const., Amendment II.

For most of its history, the “right … to keep and bear Arms” language of that Amendment was thought by many to apply only to members, or to potential members of the “Militia.” At the time of the Second Amendment’s adoption in 1791, the word “militia” was generally understood to mean “a military force raised from the civilian population of a country or region, esp. to supplement a regular army in an emergency, frequently as distinguished from mercenaries or professional soldiers.” See “Militia, N., Sense II.3.a.” Oxford English Dictionary, Oxford UP, December 2025, (date of online publication only) https://doi.org/10.1093/OED/7139457524.

Other provisions in Article I, Section 8 of the Constitution reinforced that understanding:

The Congress shall have Power . . . To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; . . .To make Rules for the Government and Regulation of the land and naval Forces; . . . To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; . . .To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress . . . .

U.S. Const., Article I, Section 8.

Those provisions, together with the Second Amendment, basically prohibited the federal government from establishing a professional, standing “Army” for more than two years at a time, and gave the United States Congress authority to govern, “organize,” “call forth,” “arm” and “discipline” the citizen soldiers described therein as the “Militia.” Approximately seventy years later, the Fourteenth Amendment to the Constitution extended the Constitution’s “Bill of Rights,” including the Second Amendment, to state governments.

All of this took place in the well-known legal and historical context of the writing and the adoption of the Second Amendment. In 1689, the British Parliament enacted, with the King and Queen’s approval, the English “Bill of Rights.” One clause in that “Bill of Rights provided “That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law . . . .”  Thus,  the longstanding English right to “have arms” was always subject to legislative regulation by the Parliament (i.e., “as allowed by law”). Nevertheless, Britain followed a policy of liberal allowance until April 19, 1775. On that date,  regular British troops, operating under the command of a professional British general with lifetime tenure, marched out of Boston, Massachusetts toward the villages of  Lexington and Concord, to confiscate a cache of muskets held by the Massachusetts militia, all of whom were British “subjects.” An armed battle ensued, and several of the “subjects” living in the two villages died. The American Revolutionary War began on that day and that War eventually led to the adoption of the American Bill of Rights, including the Second Amendment, in 1791. See U.S. Const., Amendments One through Ten.     

Sadly, the Supreme Court ignored the Second Amendment’s history tied directly to the Battle of Lexington and Concord when it decided the case of N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). In that Case, the Court held, by a 6-3 vote, that the Second Amendment’s “central” purpose had been to protect the right of American citizens to carry and use handguns in public for their personal self-defense. See 597 U.S. at page 29. In doing so, the Court reaffirmed a prior ruling that no relationship with the “militia” was necessary to enjoy the “right to keep and bear arms.” See Dist. Of Columbia v. Heller, 554 U.S. 570 (2008).

Ignoring the historical genesis of the American Bill of Rights was not the Court’s only error in The Bruen Case. The Court also failed to offer any interpretation of the key verb “infringe” in the Second Amendment. In the of the Second Amendment’s time, to “infringe” a “right” meant to “to transgress” the “right,” i.e., to cross some legal boundary surrounding that right. See “Infringe, V. (1), Sense 2.” Oxford English Dictionary, Oxford UP, September 2025 (date of online publication) https://doi.org/10.1093/OED/5295206971.   The Second Amendment itself identifies only one such boundary, i.e. the necessity of preserving the “Militia.” Like its predecessor in the English Bill of Rights, the Second Amendment leaves other boundaries up to the “law” enacted by legislative authorities, who, subject to the “consent of the governed,” are free to enact them, or to not enact them as the legislators and their constituents see fit.   

Absolutely nothing in the text of the Second Amendment, in the Constitutional context of that Amendment, or in the context of the history of that Amendment, justifies the Bruen Case’s holding that the Second Amendment protects a “right” of personal “self-defense” with firearms from legislative regulation. To be sure, the Amendment does protect the right of American citizens to “keep” weapons they have lawfully acquired, even if for their potential but unlikely use in the “militia.” But the Amendment clearly does not mandate the maintenance of a permanent gun-slinging society everywhere in the United States, like the towns pictured in many old-time Western movies. And the Second Amendment certainly does not authorize trespassing on private property, not even by lawful gun holders trying to mingle in with the “public.” The gun control case now on appeal (in the word’s non-technical sense) to the Supreme Court says so, and that case should be affirmed by the Supreme Court. The Bruen Case should be overruled if necessary to align with both the literal and the historical sense of the Second Amendment.    

/s/ Dan D. Rhea