CONSTITUTIONAL INTERPRETATIONS

The State of Connecticut and Cook County, Illinois have enacted laws that basically ban the private possession of semi-automatic rifles capable of firing multiple rounds without rearming or reloading. The United States Supreme Court has now agreed to decide whether those laws violate the Second Amendment to the United States Constitution.[1]

The Second Amendment provides 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.

The Amendment is part of the Constitution’s Bill of Rights, and is modeled after the English Bill of Rights enacted by Great Britain’s Parliament in 1689. The relevant “right” in the English Bill of Rights reads as follows:

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law; . . . .

The “allowed by law” phrase that qualifies the British “right” allows Britain’s lawmaking body, the Parliament, to change the law regarding the possession of “arms” at that body’s discretion, subject only to its members getting voted out of office if enough of their constituents object. The word “infringed” in the Second Amendment does the same work. To “infringe” a “right” means, both at the time the Second Amendment was adopted and at the present time, “[t]o commit a breach or infraction of a … right ….”[2] The Constitution’s original provisions give the Congress plenary power to provide for the “organizing, arming, and disciplining , the Militia . . . .”[3] The “Militia” consists of the body of citizens who are subject to compulsory military service at the call of their “State.”[4]  When a lawmaking body, such as the Congress, changes the law, even when the law is called a “right,” the amendment is not a breach or an infraction of that law or “right,” it is simply an amendment. If the people do not like the amendment, they can retract it by voting the representatives who voted for it out-of-office. When the writers of the American Bill of Rights wanted to restrict the power of Congress, or of state legislatures, to change the “rights” identified therein, they said so in specific language. See U.S. Const., Amendment I, “Congress shall make no law . . . .” They did not say anything like that in the Second Amendment.

Judging from both the language of the Second Amendment, and the widely known historical event that most likely gave it birth,[5] the intended purpose of the Second Amendment was simply to forbid  confiscations of legally acquired weapons from the citizens of the United States. Laws that fall short of outright confiscation, and that do not otherwise impair the effectiveness of the Constitutionally created citizen militias, do not contradict or oppose the stated purpose of the Second Amendment in any way. Although the factual consequences of Connecticut’s and Cook County’s prohibitions of semi-automatic rifles have yet to be determined by the Supreme Court, it seems highly doubtful that those prohibitions impair militia readiness in any way. If that doubt holds up, the prohibitions of semi-automatic rifles in Connecticut and Cook County, Illinois, are not “repugnant” to the Second Amendment, or to anything else in the United States Constitution. The Supreme Court should therefore uphold the prohibitory gun laws of those jurisdictions.

The foregoing column invokes and applies the broad rules of Constitutional interpretation discussed in the “about this site” sidebar to this page. As stated therein, the current Justices of the United States Supreme Court do not seem to follow those rules in their decision-making on Constitutional Law. Accordingly, this column must not be read as any kind of prediction as to how the cases now before the Supreme Court will come out.

/s/ Dan D. Rhea

[1]  See Grant v. Higgins, Sup. Ct. No. 25-566; and Viramontes v. Cook County, Illinois, Sup. Ct. No. 25-238.

[2]See“Infringe,V.(1),Sense2.”OxfordEnglishDictionary,OxfordUP,June2026https://doi.org/10.1093/OED/529520697.

[3] U.S. Const., Article I, Section 8.

[4] Ibid., see also “Militia, N., Sense II.4.” Oxford English Dictionary, Oxford UP, June 2026, https://doi.org/10.1093/OED/2738833615.

[5] On April 19, 1775, the British Army raided the villages of Lexington and Concord, Massachusetts, in an effort to confiscate a cache of muskets the Massachusetts militia had been keeping there. This set off the war that ultimately resulted in American independence from Britain, which in turn led to the creation of a new American Constitution, including a new Bill of Rights.