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Arms and the mandate

12 March 2018

Efforts to water down gun control in the United States have relied on a shift in how a majority of Supreme Court justices view two thorny constitutional issues


The genie out of the bottle: Otis McDonald, plaintiff in the landmark McDonald v Chicago anti–gun control case, outside the Supreme Court in 2010. Haraz N. Ghanbari/AP Photo

The genie out of the bottle: Otis McDonald, plaintiff in the landmark McDonald v Chicago anti–gun control case, outside the Supreme Court in 2010. Haraz N. Ghanbari/AP Photo

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.
— Second Amendment to the US Constitution

Arma virumque cano (“Of arms and the man I sing”)
— The opening words of Virgil’s Aeneid

Until ten years ago, the practical effects of the American Constitution’s Second Amendment mandate — those well-known words quoted above — were tempered by two prophylactic factors. One was the inference drawn from the words “well regulated Militia,” which were understood to limit the operation of the provision to ensuring that it was possible for a militia to be assembled. The other was that the Amendment was thought to limit only the regulatory powers of the federal government: the states were free to restrict the ownership or use of firearms as much or as little as they liked.

But a Supreme Court decision in 2008 stripped away the protective connection with a militia, and a second decision, in 2010, held that the Second Amendment limits the power of state legislatures as well. In two strokes, the legal meaning of the words was changed fundamentally, by a court split along party-political lines.

In earlier years, the political affiliation of Supreme Court judges was by no means a reliable predictor of their judicial voting behaviour. But the appointment of Justice Samuel Alito in 2006 seemed to entrench what is now a predictable pattern in politically sensitive cases: four Republican judges on one side, four Democrats on the other, and Anthony Kennedy, a Republican of an earlier generation, sometimes switching sides but more often voting with his fellow Republicans to produce a 5–4 result. And so it was in both of the gun-control cases.


The modern history of the Second Amendment begins ninety years ago, with the St Valentine’s Day Massacre of 1929 and the attempted assassination of president Franklin D. Roosevelt in 1933. Congress’s response, the National Firearms Act of 1934, imposed extensive restrictions on the ownership and use of firearms, including a registration requirement. When the legislation was challenged in United States v Miller (1939), it was upheld by a unanimous Supreme Court.

The court agreed that the “prefatory clause” of the Second Amendment (“A well regulated Militia being necessary to the security of a free State…”) should be read as explaining the purpose of the “operative clause” (“the right of the people to keep and bear Arms shall not be infringed”), and the latter should therefore protect only what was necessary to achieve the former. Finding no evidence that “at this time” the possession of a double-barrelled shotgun could have any “reasonable relationship to the preservation or efficiency of a well regulated militia,” the court held that “the right to keep and bear such an instrument” was not protected by the Second Amendment.

The court emphasised the link between the “prefatory clause” and the legislative powers of Congress under Article 1, Section 8 of the Constitution, which include the power “To provide for calling forth the Militia to execute the laws of the Union, suppress Insurrections and repeal Invasions” and “To provide for organizing, arming, and disciplining, the Militia” (with training and the appointment of officers left to the states “according to the discipline prescribed by Congress”).

This reading of the framers’ intentions made sense, the court emphasised, because “[t]he sentiment of the time strongly disfavored standing armies; [and] the common view was that adequate defense… could be secured” through a militia consisting mainly of “civilians.” The prevalence of such a sentiment was said to reflect a long history going back to the forming of the first militia of this kind (as recorded in Blackstone’s Commentaries on the Laws of England) by Alfred the Great some eleven centuries earlier.

The court illustrated the extent of the dependence on the militia in the early American colonies with examples from Virginia, Massachusetts and New York in the 1780s. A New York statute in 1786, for example, required that all men between the ages of sixteen and forty-five should be enrolled in their local “beat,” and added:

That every Citizen so enrolled… shall, within three Months thereafter, provide himself, at his own Expense, with a good Musket or Firelock, a sufficient Bayonet and Belt, [and] a Pouch with a Box therein to contain not less than Twenty-four Cartridges suited to the Bore of his Musket or Firelock…

With little further legal analysis, the court concluded that ensuring “the effectiveness of such forces” was the “obvious purpose” of the Second Amendment, which “must be interpreted and applied with that end in view.”


In its original historical context, it was equally clear that the Second Amendment — as one of the first ten Amendments collectively known as the Bill of Rights — was intended to operate only at the federal level. The congressional debates in 1789 made it clear that the Amendments were meant to satisfy the concerns of the “Anti-Federalists,” and particularly their demand for a Bill of Rights. They were therefore intended only to limit the powers of the new federal government: the governmental and legislative powers of the states were in no way affected.

That view was confirmed by the Supreme Court in Barron v Baltimore (1833). The case arose because the diversion of Maryland’s Patapsco River to accommodate the development of city streets had caused parts of Chesapeake Bay to silt up so badly that a profitable wharf became unusable. John Barron, a former proprietor of the wharf, successfully sued the city council, but the Maryland Court of Appeal reversed the decision. To appeal to the Supreme Court, Barron needed to show that federal law was involved, so he claimed that the case raised an issue under the final words of the Fifth Amendment (“nor shall private property be taken for public use, without just compensation”).

The Supreme Court rejected the argument. As chief justice John Marshall explained:

These amendments demanded security against the apprehended encroachments of the General Government — not against those of the local governments… [They] contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.

That decision on the original Bill of Rights has never been disputed, but the adoption of the Fourteenth Amendment thirty-five years later appeared to extend at least some aspects of the Bill of Rights to the states.

The Fourteenth Amendment was one of three adopted after the civil war. (The most important was the Thirteenth Amendment, abolishing slavery.) Section 1 of the Fourteenth Amendment includes a number of potentially relevant provisions. Of greatest current significance is the fact that the “due process clause” already applied federally by the Fifth Amendment was repeated and applied to the states: “nor shall any state deprive any person of life, liberty, or property, without due process of law.”

The Fourteenth Amendment also provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” (“the privileges or immunities clause”). On the face of it, this might seem to extend to the states the constraints on the federal government enshrined in the first eight Amendments. But again, in the Slaughterhouse Cases (1872), the Supreme Court said no — although this time only by a 5–4 majority.

In those cases, a Louisiana law creating a monopoly of slaughterhouses in New Orleans was challenged on the ground that it “deprives a large and meritorious class of citizens — the whole of the butchers of the city — of the right to exercise their trade.” Again, the challenge relied partly on the Fifth Amendment’s prohibition of the taking of property without compensation, as supposedly applied to the states by the “privileges or immunities” clause. But the court denied that the “privileges or immunities” clause had any such effect.

Reading the three postwar Amendments together, the court concluded that their operation was governed by “one pervading purpose” — namely, “the freedom of the slave race… and the protection of the newly made freeman and citizen from [their former] oppressions.” Just as the original Bill of Rights had been read in the context of 1789, so the Fourteenth Amendment was read in the context of the aftermath of the civil war.

As to the “privileges or immunities” clause, the court emphasised that its reference was to privileges or immunities “of citizens of the United States,” thus implying a distinction (never clearly explained) between “citizenship of the United States,” and “citizenship of a state.” It followed that the protection of the Fourteenth Amendment extended only to privileges or immunities “of citizens of the United States” — and not to those held by citizens of the individual states, “whatever they may be.” And, since Congress has power to enforce the Fourteenth Amendment, it could hardly be compatible with the American conception of federalism “to fetter and degrade the State governments by subjecting them to the control of Congress.”

If that reasoning was strained and unsatisfactory, the justices’ approach in United States v Cruikshank (1876) was worse; it is one of the court’s most appalling decisions. In Louisiana in 1873, a crowd of angry white Southerners had attacked a crowd of African-American “freedmen,” dozens of whom were killed. Indictments were filed against ninety-seven of the white men responsible, but only six were prosecuted and only three were convicted — and even they were convicted (under legislation aimed at the Ku Klux Klan) on a relatively minor charge of conspiring to deprive the freedmen of their constitutional rights. The Supreme Court overturned the convictions — effectively rendering the legislation useless — by taking an extraordinarily narrow view not only of the Fourteenth Amendment, but of the First and Second Amendments as well.

The indictment had charged the men with conspiracy to prevent the exercise of rights “granted and secured… by the Constitution.” But the court held that the rights referred to in the First and Second Amendments were not “granted” by the Constitution, since they were rights that already existed. The court did say, however, that the Second Amendment “means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.”

That statement was confirmed in Presser v Illinois (1886), after 400 German workers, protesting against their employers’ use of private armies, marched through Chicago armed with rifles. They were led by Herman Presser on horseback, wielding a cavalry sword, and he was convicted of taking part in an unauthorised assembly. The conviction was upheld primarily on the ground that the power of the State of Illinois to legislate against such activities was not constrained by the Second Amendment.

The court again held that the Second Amendment “is a limitation only upon the power of congress and the national government, and not upon that of the state.” But it also departed from a major foundation for the Cruikshank decision by insisting that the right “to associate together as a military company… or to drill or parade with arms” does not exist “independent of law.” Such activities are “especially under the control of the government of every country.” Accordingly, “they are subject to the regulation and control of the State and Federal governments” and any relevant “rights” must depend on “specific legislation.”

That decision also lent some support to the idea that the issue was linked to the need for a militia. It recalled that the US Congress had passed an Act in 1792 “more effectually to provide for the national defense by establishing an uniform militia throughout the United States” and another Act in 1795 “to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions.” Against that background, the Presser court held that although the provisions directly in issue were valid, the validity of the legislation as a whole need not be decided. Since “all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States,” a state’s powers of gun control could not be used so extensively as to “prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security.” On the one hand this suggested that the Second Amendment might limit the powers of the States; on the other hand it assumed yet again that the only legitimate purpose of such limits would be to ensure that the federal government was able to form a citizen militia.


This brings us to the severing of the link between the “operative clause” and the “prefatory clause” of the Second Amendment in 2008.

The case of District of Columbia v Heller acquired its name relatively late in the piece, when Dick Heller took over as plaintiff after the original plaintiff dropped out. The lawyers involved had been reluctant to rely on Heller because he seemed like “a clichéd vision of the sort of person obsessed with his gun rights.” As a police officer in Washington DC, Heller carried a handgun at his usual post (ironically, at the Thurgood Marshall Judiciary Building). He wished to keep an additional handgun at home, but the District of Columbia had prohibited the registration of handguns. He argued that the prohibition violated the Second Amendment.

In a 5–4 decision, the opinion of the court was delivered by Justice Antonin Scalia. He insisted that while the prefatory words of the Second Amendment should be understood as indicating a legislative purpose, “a prefatory clause does not limit or expand the scope of the operative clause.” Thus the answer should depend on a “textual analysis” of the operative clause.

The fact that the right to bear arms is referred to as a “right of the people” has sometimes been thought to suggest a “collective right” rather than an “individual right.” But Scalia took the opposite view. Appealing to the First Amendment’s “right of the people peaceably to assemble, and to petition the Government,” and the Fourth Amendment’s “right of the people to be secure… against unreasonable searches and seizures,” he insisted that all three examples “unambiguously refer to individual rights, not ‘collective’ rights” — since the term “the people,” in all three contexts, “unambiguously refers to all members of the political community, not an unspecified subset.” It thus extended well beyond any reference to the “militia,” since “the ‘militia’ in colonial America consisted [only] of a subset of ‘the people’ — those who were male, able bodied, and within a certain age range.”

A battle over idiom: Supreme Court justice Antonin Scalia, shown here during a swearing-in ceremony on the South Lawn of the White House in June 2006. Ron Edmonds/AP Photo

He made four further points: that the term “arms” could not be confined to weapons “specifically designed for military use”; that attempts to limit the term to arms “in existence in the 18th century” were “bordering on the frivolous”; that “keep arms” was “simply a common way of referring to possessing arms, for militiamen and everyone else”; and that although “bear arms” suggests that a weapon is “carried” for the purpose of “offensive or defensive action,” this “in no way connotes participation in a structured military organization.”

Behind this textual analysis lay a battle between rival examples of eighteenth-century idiom. Scalia’s examples were not limited to the carrying of weapons in a military context; those given in the dissenting opinions (and in a written brief from “Professors of Linguistics and English as Amici Curiae”) were so limited. Scalia insisted that in these latter examples, the words “bear arms” were typically followed by the word “against,” indicating a particular adversary. The dissenting justices replied that if the framers had meant the phrase “bear arms” to include “civilian possession and use,” they could have added phrases such as “for the defense of themselves” — as indeed Declarations of Rights in Pennsylvania and Vermont had done.

The professors’ brief included 115 examples of eighteenth-century texts containing the words “bear arms,” all but five of which had a military context. But Scalia dismissed that as irrelevant. Four of the five exceptions used additional words to make it clear that a different usage was intended (for example, “bear arms… for the purpose of killing game”). Scalia dismissed the point scornfully:

A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the Mad Hatter. Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.

Scalia concluded that, as a matter of textual analysis, the Second Amendmentguarantee[s] the individual right to possess and carry weapons,” and went on to argue that such an individual right had long been recognised. A prize exhibit for this purpose was, of course, the English Bill of Rights of 1689, with its declaration “[t]hat the subjects which are Protestants, may have arms for their Defence suitable to their conditions, and as allowed by Law.” Apart from the limited scope of that declaration (applying only to what was “suitable” and “allowed by Law”), the fact that it applied only to “Protestants” (presumably for their defence against Catholics) sits oddly with Scalia’s earlier insistence that the right must be for the whole of “the people” and not for a “subset.” But this did not trouble him:

To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants… But it was secured to them as individuals, according to “libertarian political principles,” not as members of a fighting force.

Moreover, he argued that what was meant by a “well regulated” militia was not an organised militia, but rather the entire pool of able-bodied men from whom such a militia could be drawn. Both in England and in the American colonies, he argued, experience had shown “that the way tyrants had eliminated [such] a militia… was not by banning the militia but simply by taking away the people’s arms.” This enabled him to say that the prefatory clause explained the guarantee of “the right to bear arms” in a way that did not limit that right.

The argument that what the Amendment guarantees is “an individual right unconnected with militia service” was supported by reference to scholarly and political writings; by cases decided prior to the civil war in state courts; and to some extent by passages in debates on the Fourteenth Amendment. Scalia denied that the Cruikshank and Presser decisions supported a narrower view, and particularly that the Miller decision had shed any light on the issue.

Instead, he read Miller as establishing only that the weapon at issue (a short-barrelled shotgun) was not “the type of weapon” entitled to Second Amendment protection. (In fact, of course, the opinion in Miller had based that conclusion on the lack of any evidence that such a weapon had any “reasonable relationship to the preservation or efficiency of a well regulated militia” or could be part of “ordinary military equipment” or “contribute to the common defense.”) In any event, he insisted that the decision in Miller was generally unsatisfactory.

Towards the end, Scalia offered a reassurance that the right to bear arms was not absolute. The court’s decision (he said) should not be understood to cast doubt on “prohibitions on the possession of firearms by felons and the mentally ill,” or on “laws forbidding the carrying of firearms in sensitive places such as schools” or restricting “the commercial sale of arms.” He also reaffirmed Miller’s finding that the Second Amendment protected only those weapons “in common use at the time” and did not extend to “dangerous and unusual weapons.” This, however, could not justify the District of Columbia’s ban on handguns:

The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose… [T]he American people have considered the handgun to be the quintessential self-defense weapon… [H]andguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

Despite these reassurances, the impact of the decision went well beyond its severing of the link to “militia.” For one thing, the “textual analysis” equating “bear” to “carry” drew attention to the latter word in a way that opened up a new range of possible claims (including demands for “open carry”).

For another thing, Scalia referred with apparent approval to a recent article by Brian Frye which has since inspired a conspiracy theory dismissing the entire Miller litigation as an elaborate sham. The alleged conspirators include the trial judge Hiram Ragon (a prominent advocate of gun control who, in holding that the National Firearms Act violated the Second Amendment, allegedly did so only to lay the foundation for a Supreme Court appeal); the defence counsel Paul Gutensohn (assigned to that role by Ragon, but offering no written or oral argument in the Supreme Court proceedings); and the defendant Jackson Miller himself (a bank robber, well known as a police informer, who was shot dead by unknown gunmen six weeks before the Supreme Court decision).

Third, Scalia noted in a footnote that whether the Second Amendment applies to the states was “a question not presented by this case.” But he added that the question depended on the “continuing validity” of United States v Cruikshank, a decision that “did not engage in the sort of Fourteenth Amendment inquiry required by our later cases” — thereby seeming to hint that the issue might be ripe for reconsideration. At the same time, the shift to a focus on handguns as the “quintessential” weapon for self-defence was a clear invitation to arguments that restrictions on the ownership of handguns were unconstitutional.

The Heller case was decided on 26 June 2008. On 27 June, seven petitions were filed, challenging restrictions on the ownership of handguns and seeking to extend the Second Amendment (as now interpreted) to the states. Two of those petitions, filed respectively by the National Rifle Association and a seventy-four-year-old retiree, Otis McDonald, were eventually consolidated as McDonald v Chicago.


The petitioners succeeded by the predictable 5–4 majority, but on this occasion the shared majority result was reached by two different approaches, divided by a disagreement over the Slaughterhouse Cases.

Back in 1872, the Slaughterhouse opinion, focusing primarily on the “privileges or immunities” clause of the Fourteenth Amendment, had not considered it necessary to decide what was included in the “privileges or immunities of citizens of the United States”; it was sufficient that they did not include the claims of the butchers in New Orleans.

Now, in McDonald v Chicago, Justice Clarence Thomas chose to focus on that aspect of the Slaughterhouse Cases. Revisiting the “privileges or immunities” clause, but reading it now more broadly, he held that the “privileges or immunities” made binding on the states by the Fourteenth Amendment included the “right to keep and bear arms.” Accordingly, he would simply have overruled the Slaughterhouse Cases.

The other four members of the majority rejected that approach. In an opinion written by Justice Alito, they stressed that although “many scholars dispute” the Slaughterhouse view of the “privileges or immunities” clause, there is no consensus on what should be put in its place. Accordingly, there was “no need to reconsider that interpretation here.” Instead, they held that the Fourteenth Amendment, through its use of the word “liberty” in the “due process” clause, had “incorporated” the Second Amendment (thereby applying it to the states).

Despite its focus on “privileges or immunities,” the Slaughterhouse opinion had touched fleetingly on the possibility that the “due process” clause might apply to the states at least in its protection of “property” (no state shall “deprive any person of… property, without due process of law”), but did not pursue the question because that expression clearly did not apply to the claims of the New Orleans butchers.

To that extent, the Slaughterhouse opinion acknowledged that because the “due process” clause in the Fourteenth Amendment declares specifically that no state shall “deprive any person of… property, without due process of law,” it might possibly be thought to apply to the states the “property” aspect of the Fifth Amendment. That suggestion, focused on the word “property,” went nowhere; but by the 1890s similar questions had emerged about the word “liberty.”

From 1950 onwards, the practical effect of the Fourteenth Amendment was steadily enlarged by two related developments. First, both in the “due process” clause of the Fifth Amendment (as a limit on federal powers) and in the similar clause of the Fourteenth Amendment (as a limit on the powers of the states), the word “liberty” was read as including rights and freedoms not otherwise mentioned in the Constitution at all (for example, the right to privacy). Second, the word “liberty” in the Fourteenth Amendment was read to include selected examples of the rights and freedoms spelled out in the first eight Amendments, so that those rights or freedoms, already stated as limits on federal power, would by “incorporation” become applicable as limits on state power as well.

In Adamson v California (1947), Justice Hugo Black advanced a theory of “total” incorporation under which the Fourteenth Amendment applied the entire Bill of Rights to the states. That theory never won majority support. But a theory of “selective” incorporation was already well under way. By 1963 all of the protections in the First Amendment had been incorporated; by 1969 most of the protections in the Fourth to Eighth Amendments had been incorporated as well. Only the Second and Third Amendments remained untouched; and the Third Amendment (about the quartering of soldiers in private homes) has never been considered in any Supreme Court case.

In Adamson v California, Justice Felix Frankfurter rejected “total” incorporation but accepted the “selective” version. He suggested that the “selection” depended on whether the right or freedom in question was necessary to the “protection of ultimate decency in a civilized society,” as measured by “those canons of decency and fairness which express the notions of justice of English-speaking peoples.” Earlier, in Palko v Connecticut (1937), Justice Benjamin Cardozo had spoken of the “very essence of a scheme of ordered liberty,” but had also quoted from earlier cases appealing to “principle[s] of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental” (Snyder v Massachusetts, 1934) and “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions” (Hebert v Louisiana, 1926).

Now, in McDonald v Chicago, the respondents argued that, to justify “incorporation,” a right must be “an indispensable attribute of any ‘civilized’ legal system.” Given that “there are civilized countries that ban or strictly regulate the private possession of handguns,” they argued that “the right to keep and bear arms” must fail that test. Alito disposed of the argument by relying on Duncan v Louisiana (1968). In that case, he said:

The Court made it clear that the governing standard is not whether any “civilized system [can] be imagined that would not accord the particular protection”… Instead, the Court inquired whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice.

In other words, it was enough that “the right to keep and bear arms” was embedded in the American understanding of “liberty.”

The point was a little disingenuous. It was true that Duncan v Louisiana had rejected any universalised version of “liberty” in favour of a culture-relative version. But what it actually asked was whether the right in question “is fundamental — whether, that is, [it] is necessary to an Anglo-American regime of ordered liberty,” as reflected “in the English and American systems.” If the respondents had argued, not that some “civilized countries” reject the American version of the right to bear arms, but that countries in the British Commonwealth do so, it might have been harder to refute.

On the other hand, in Washington v Glucksberg (1997), the expression of relativity had been more culture-specific: “incorporation” is possible only for “those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition,” and is tested “by examining our Nation’s history, legal traditions, and practices” (emphases added). In the end it was this Glucksberg test of “incorporation” that Alito’s opinion applied.

The opinion also set aside another ambivalence in the earlier cases. In Gitlow v New York (1925), one of the earliest cases to accept the “incorporation” of First Amendment rights, Justice Oliver Wendell Holmes had added a caveat: “the general principle of free speech,” as incorporated, might perhaps “be accepted with a somewhat larger latitude of interpretation” than in direct applications of the First Amendment itself. Later judges had taken a similar view. But by the time of Malloy v Hogan (1964) such reservations had been abandoned. As Alito put it in McDonald v Chicago, Malloy had

abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights”… Instead, the Court decisively held that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”

With that in mind, and applying the criterion in Duncan v Louisiana of whether a right is “fundamental to our scheme of ordered liberty,” Alito concluded that the answer had already been settled by the “central holding” in Heller that “a personal right [existed] to keep and bear arms for lawful purposes, most notably for self-defense within the home,” and that this “basic right” of individual self-defence entailed a need for handguns.

Alito suggested that during the nineteenth century, as America’s reliance on a militia “had largely faded as a popular concern,” a sense of the need for individual self-defence had taken its place. But he also relied on Heller’s account of the historical background, stretching back through Blackstone’s Commentaries to the English Bill of Rights in 1689.

Unlike Justice Scalia in Heller, Alito no longer found it necessary to mention (though Justice Thomas in his separate opinion did) that the 1689 version of a right to bear arms was confined to Protestants. Instead, in his own version of a “subset,” Alito laid particular emphasis on the efforts, immediately after the American civil war, to prevent the forcible taking of firearms from newly freed slaves, and extend to African-American freedmen the same access to guns as the white population. This, he said, may have been a significant motivation for the Fourteenth Amendment.

It was certainly an explicit goal in the Freedmen’s Bureau Act of 1866, which provided that certain rights and liberties, “including the constitutional right to bear arms,” be secured “without respect to race or color, or previous condition of slavery.” It was also explicit in speeches like that of Senator Samuel Pomeroy when the Fourteenth Amendment was debated:

Every man… should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.

In short, as Alito saw it, the petitioners’ case was unanswerable: “Unless we turn back the clock or adopt a special incorporation test applicable only to the Second Amendment, municipal respondents’ argument must be rejected.” Nevertheless, Justices Stevens, Ginsburg, Breyer and Sotomayor dissented. And in any event, however persuasive Alito’s case for incorporation of the Second Amendment might be, its provisions as understood prior to Heller would have restricted state power less cruelly, and may not have satisfied the test for incorporation at all.

Since 2010 the federal courts have heard many Second Amendment cases, with mixed results: in particular, the validity of “concealed carry” laws remains controversial. But the genie is out of the bottle. In Moore v Madigan (2012), the Court of Appeals for the Seventh Circuit held that a ban on “concealed carry” of firearms violated the Second Amendment, and in Wrenn v District of Columbia (2017) the Court of Appeals for the DC Circuit agreed. In Teixeira v County of Alameda (2016), the Court of Appeals for the Ninth Circuit ruled that the Second Amendment was infringed by a law prohibiting a gun store within 500 feet of a school.

A further step was taken in Caetano v Massachusetts (2016) when the Supreme Court held that the possession of stun guns for purposes of self-defence was protected by the Second Amendment, concluding that the issue was fully covered by the rulings in Heller that “the right to keep and bear arms” includes weapons “that were not in existence” when the Second Amendment was written, and is not confined to weapons that were “in common use” at that time or are “useful in warfare.” The issue was disposed of per curiam: that is, it was not even considered to require a fully reasoned decision. But Justice Alito (joined by Justice Thomas) delivered a concurring opinion all the same. •

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In the market for reassurance? Chinese president Xi Jinping (centre) at the annual session of the National People’s Congress at the Great Hall of the People in Beijing on Monday. Kyodo/AP

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