From Militias to Free License: The Modern Misconception of the Second Amendment

By   JOSEPH KIM ‘26  and FORREST  ZENG ‘26

Gun rights opponents and proponents in the last few decades have believed in a dangerous misconception of the Second Amendment—namely, that the Second Amendment was intended to be an absolute license for all citizens to own firearms of any degree of power. Ironically, advocates of expanding gun rights often cite legal Originalism to justify their stances. Legal Originalism, the practice of answering constitutional questions through purely the original intentions of the Framers without modern recourse, has found no perfect implementation in any court in the United States of America. The Originalist misinterpretation of the Second Amendment is no exception.

The Second Amendment states: “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.”

In short, the Framers saw the right to bear arms as essential to maintaining freedom. Importantly, in the form of militias. James Madison believed that civilians should be armed to defend against a tyrannical government. The right of citizens to bear arms, as it was understood by the Framers, was similar to the right of citizens to assemble freely—arms were to be used in militias to fight against tyrannical governments. Anti-Federalists, who feared that consolidating federal power could cause a second American Revolution, viewed the Second Amendment as a necessary defense against federal overreach.

One common debate lies around the ambiguous phrase “well-regulated militia.” The Framers generally viewed standing armies, like those we have today, with distaste. Alexander Hamilton understood civilian militias to be a possible substitute for a professional army. Local militias embodied revolutionary individualism against an oppressive government. However, the widespread idea of familial self-defense blurs the term “militia.” George Mason, a Virginia delegate to the Constitutional Convention, wrote, “I ask who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day.” Mason was uncertain about the future of militias in American society, a concern that, in hindsight, is well-grounded. An exact reproduction of the Framers’ intentions would have all gun owners use arms only in organized local militias, with rigorous military training, licensing, and background checks—an interpretation that would seem strange today. Would a police force constitute a militia? How about the National Guard? How about individuals in their homes? How about private vigilantes?

The modern interpretation of the Second Amendment is also rooted in the ambiguity of the phrase “to keep and bear arms.” Different interpretations of what constitutes “keeping” and “bearing” arms drive today’s political reasoning regarding gun control. The states reserve the right to determine what manner of bearing arms and what kind of arms are acceptable. 

Since the creation of the Second Amendment, guns’ efficiency has dramatically increased with the improvement of military technology. Urban gun violence is an abominable current-day problem that the Framers of the Constitution could have in no way foreseen. On the other hand, civilians have found a greater need to protect themselves and their families, especially in densely populated urban areas, leading to a natural need to readjust interpretation to fit current needs.

The Framers were instead only concerned with deterring tyranny. They left no record of considering the rights of citizens to use militia-grade firearms recreationally or in household self-defense—the most cited reasons for owning a firearm today, according to the National Library of Medicine. Perhaps the Framers had opinions about individual self-defense or recreational use—but those thoughts paled in comparison to the looming threat of tyrannical governments, foreign and domestic. 

In fact, the contemporary interpretation of the Second Amendment used to be much more closely aligned with this militia-based interpretation. Prior to the conservative movement of the 1970s, the Supreme Court and judiciaries all across the nation followed a similar belief—that weapons were to be owned, used, distributed, and licensed solely within the extent of militias like the National Guard. In the 1970s, though, as American conservatism in the legislative branch surged, a new, more libertarian interpretation of the Second Amendment began to take hold.

In 2008, the Supreme Court ruled in the landmark District of Columbia vs. Heller case that the Second Amendment protection of the right to keep and bear arms applied to any lawful individuals, though state laws could enact certain regulations. The majority opinion was written by Justice Antonin Scalia, the most outspoken legal Originalist on the court. In his opinion, he argued that the “correct” interpretation of the Second Amendment provided free license for anyone to own weapons for any purpose, even if it was outside militia-based activities. Justice Scalia called his opinion “the most complete originalist opinion that I have ever written.”

To dismiss Justice Scalia’s opinion as biased fodder would be immature, and our job is not to do that. Nevertheless, Scalia drew on cherry-picked historical examples, ignored hundreds of years of precedent regarding the interpretation of militia, and failed to apply true holistic and complete Originalism to his “most complete originalist opinion.”

We do not want to put our thumbs on the scale about whether gun freedoms should be expanded or not. But if you want to use legal Originalism to bolster an argument against freedom or for freedom, do it correctly. And really, the Constitution is being reinterpreted constantly. The Second Amendment is no exception to that. The Framers of the Constitution could not have possibly understood the stakes of the reinterpretations today.

The role of firearms in today’s American society is much different than it was two and a half centuries ago, and our legal interpretation is subject to change. The path gun control policy takes will determine not the “correctness” of our interpretation of the Second Amendment but the way in which it develops.