The rise of the Second Amendment as a serious obstacle to U.S. gun control legislation is astonishingly recent.
Its rise is a tribute less to the vision of the Founding Fathers than to the skill, money and power of the contemporary gun-rights movement, which has not only exerted disproportionate influence on Congress, but also helped transform the landscape of constitutional argument. We should be able to have a serious national discussion uninhibited by wild and unsupportable claims about the meaning of the Constitution. [...]
A year before, Burger went even further. On “MacNeil/Lehrer NewsHour,” Burger said the Second Amendment “has been the subject of one of the greatest pieces of fraud — I repeat the word ‘fraud’ — on the American public by special interest groups that I have ever seen in my lifetime.” Burger wasn’t in the habit of taking stands on controversial constitutional questions on national television. In using the word “fraud,” Burger meant to describe what he saw as a clear consensus about the meaning of the Constitution.
To understand what Burger was thinking, consider the words of the Second Amendment: “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.” Fair- minded readers have to acknowledge that the text is ambiguous. Sure, it could fairly be read to support an individual right to have guns. But in light of the preamble, with its reference to a well-regulated militia, it could also be read not to confer an individual right, but to protect federalism, by ensuring that the new national government wouldn’t interfere with citizen militias at the state level.
A lot of historians believe, with Chief Justice Burger, that some version of the latter interpretation is the right one. Until remarkably recently, almost all federal judges have agreed. It is striking that before its 2008 decision in District of Columbia v. Heller, the Supreme Court had never held that the Second Amendment protects an individual right to have guns.