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The peculiar origins of the second amendment defense

ARI SHAPIRO, HOST:

A case pending before the Supreme Court could profoundly impact when gun laws violate the Second Amendment. It's the latest in ongoing courtroom battles over guns, who can own them and when the government can pass laws restricting them. But for most of U.S. history, the Second Amendment was actually one of the country's sleepier amendments. There were rarely court cases about it. It was almost never used to challenge laws. So how did the Second Amendment go from being practically overlooked to such a staple of Supreme Court controversy? Ramtin Arablouei, host of NPR's history podcast Throughline, has the story.

(SOUNDBITE OF BIRDS CHIRPING)

RAMTIN ARABLOUEI, BYLINE: It's dawn in Okemah, Okla. Two cars, a Plymouth and a Ford wind down the sleepy, dusty streets. In each car sit men with stockings and handkerchiefs over their faces, pistols and machine guns in their hands.

(SOUNDBITE OF CAR DOOR CLICKING)

ARABLOUEI: This gang is about to attempt one of the few successful double heists in American history. As the first rays of light bounce off the bank windows, the gang strikes, taking two separate banks at once. Inside, they tie and gag employees, force a bank officer to open the safe. Word of the robberies splashes across local newspapers.

UNIDENTIFIED PERSON: (Reading) Two institutions held up, bandits leaving 15 tied. Okemah's two national banks were robbed simultaneously of $19,000 Saturday. The robberies were staged with clock-like precision, and the gang fled.

ARABLOUEI: Eventually, Jack Miller, one of those robbers, gets caught crossing state borders with an unregistered sawed-off shotgun. Police arrest him for the illegal gun, and his lawyer does something pretty much unheard of for 1938. He says the law used to arrest Miller violates his Second Amendment right, 27 words in the Bill of Rights that had almost never been litigated before.

JOSEPH BLOCHER: Probably known to many, certainly etched into my brain, that says, 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.

ARABLOUEI: This is Duke law professor Joseph Blocher. He says to some people's surprise, a district judge agrees that Miller's Second Amendment rights had been violated.

BLOCHER: So the judge orders Jack Miller released.

ARABLOUEI: The government appeals that ruling all the way up to the Supreme Court. And the question they pose to the court is basically this. Is the Second Amendment about a militia's right to bear arms or an individual's?

BLOCHER: And the government wins. The unanimous opinion - pretty short, but what the court says is that Jack Miller's possession of this sawed-off shotgun had no reasonable relationship to the preservation or efficiency of a well-regulated militia.

UNIDENTIFIED PERSON: We construe the amendment as having relation to military service, and we are unable to say that a sawed-off shotgun has any relation to the militia. Supreme Court Justice James C. McReynolds.

ARABLOUEI: In its first true Second Amendment ruling, the Supreme Court seemed to suggest that the Second Amendment, in their eyes, is about a militia's right to bear arms, not an individual's, like Jack Miller. That was the Supreme Court's interpretation for nearly 70 years. As the decades passed, more guns were imported into America. New gun laws were passed, often in response to political violence. Other gun laws were stopped, often by groups like the NRA. And then in 2008, everything would change.

ROBERT LEVY: My interest was plainly to vindicate the meaning of the Second Amendment and the right secured by the Second Amendment.

ARABLOUEI: Robert Levy, a libertarian lawyer, had been on a campaign to get the Supreme Court to say that the Second Amendment applied to people's individual right to bear arms at home, not just a militia's. This is him speaking to NPR in 2008.

LEVY: This is about possessing an ordinary, garden-variety firearm for self-defense within the home.

ARABLOUEI: Levy's team set their sights on challenging a Washington, D.C., law that banned handguns. He vetted people who wanted to change the law and put together a small group, which included a man named Dick Heller, a security guard who wanted a handgun at home for self-defense. By 2008, that case had worked its way up to the Supreme Court. The case would become known as D.C. v. Heller, or, as people in legal circles like Duke Law School's Joseph Blocher call it, just Heller.

BLOCHER: Heller was the court's really first in-depth engagement with the Second Amendment. And in a 5-4 decision, the court says it is not - the right is not limited to the organized militia. It does encompass at least some right to have some weapons for self-defense, at least in the home.

ARABLOUEI: For the very first time, the court ruled the Second Amendment protects an individual's right to have a gun unconnected with service in a militia.

BLOCHER: But - and this is really, really important. Sometimes it gets overlooked. The court also says that right, like all constitutional rights, is subject to regulation. And the court actually lists a bunch of regulations which it suggests are presumptively OK.

UNIDENTIFIED PERSON: (Reading) The court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.

ARABLOUEI: Still, Heller opened the floodgates.

BLOCHER: So the court is bombarded with people asking the court to hear Second Amendment cases for a decade. There's a lot of activity happening in the lower courts, more than a thousand cases in the 10 years after Heller. And the justices are just staying out of it. Like, we're just going to let the lower courts figure this out, right?

ARABLOUEI: Then in 2022, in a case known as Bruen, the Supreme Court got involved again, this time with another interpretation of the Second Amendment. In an opinion written by Clarence Thomas, the court lays out something new.

BLOCHER: The court said that the only thing that matters when you're evaluating a modern gun law is whether it is consistent with this nation's history of weapons regulation. That's the test from now on.

ARABLOUEI: The court essentially said any gun law today must resemble a gun law from the 17- and 1800s in order to be constitutional.

BLOCHER: What most of us are hoping for is some more guidance. Like, what do you mean about, you know, that things have to be analogous to historical regulations? Are you supposed to bring in historians as experts? Like, give us more guidance. I think this is one of the things that I think is troubling for even people who would self-identify as originalists - that is, people who believe that, in a meaningful way, the meaning of the Constitution was set at the time of its ratification. Even for people who really feel strongly about that proposition, it's still tough to try to find meaningful guidance for modern gun laws in 1791.

ARABLOUEI: That's when the Bill of Rights and the Second Amendment were ratified. Currently, the Supreme Court is weighing whether the Second Amendment allows a law that restricts gun rights for people accused of domestic violence. It's a chance for them to lay out how to look back at history to evaluate when gun laws are constitutional.

(SOUNDBITE OF MUSIC)

SHAPIRO: That was Ramtin Arablouei, one of the hosts of NPR's history podcast Throughline. To learn more about the history of the Second Amendment, check out the full podcast episode wherever you get your podcasts.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Ramtin Arablouei
Ramtin Arablouei is co-host and co-producer of NPR's podcast Throughline, a show that explores history through creative, immersive storytelling designed to reintroduce history to new audiences.