The Second Amendment: Obstacle or
Catalyst to Sensible Gun Legislation?

By James M. Maloney. April 2018

For almost my entire adult life before I reached the age of 50 (in 2008), I lamented that the United States Supreme Court had never given any substantive interpretation to the Second Amendment, which became a part of our Constitution in 1791. The Court would not even take a case to answer that most fundamental question: does the Second Amendment provide for an individual right or for a “collective” one? (The Amendment’s opening phrase, “[a] well-regulated militia,” seems to have allowed reasonable minds to differ for 217 years on that point.)

It was precisely because the Second Amendment had NOT been interpreted, I reasoned as a young adult, that sensible gun legislation was so difficult to enact in the United States. One side of the debate felt that the Second Amendment conveyed an inviolable right to individuals, while the other side believed that, at most, it allowed the states to arm their own national guards. There was no room for compromise, and, most importantly, no assurance to law-abiding “pro-gunners” that they would be protected against eventual total disarmament by the “anti-gunners.”

In June 2008, the Supreme Court decided District of Columbia v. Heller, and in a 5-to-4 majority opinion, written by the late Justice Antonin Scalia, held that the Second Amendment guarantees an individual right rather than a collective one. At last, I thought, we are on a path toward sensible legislation that can strike a reasonable balance between the exercise of the right to keep and bear arms and the recalcitrant plague of gun violence in America. But nearly ten years have gone by since then, and we seem no closer.

Part of the problem comes from the fact that the Supreme Court moves slowly, and that, as a result, there is still no well-developed jurisprudence of the Second Amendment. .......

An attorney's opinion with observations regarding the Second Amendment and interpretations thereof with effects on legislation. There are those, many of course, who consider any attempts to legislate even 'sensible' limits on the 2A as being simply infringing on rights - as always a contentious issue but one which currently is very much front and center.

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