The Peaceful Second Amendment Revolution

How the right was restored from its nadir half a century ago

This speech was delivered during Wyoming Law Week at the University of Wyoming College of Law, October 13, 2026.

Ladies and gentlemen, cowboys and cowgirls, good evening.

The title of my presentation, "The Peaceful Second Amendment Revolution," is about a revolution in the original meaning of that word: a return to the original starting point, as when the earth completes a revolution around the sun.

The American Revolution began in that conservative sense. The Americans wanted the British to respect all their pre-existing rights, including the written right to arms from the 1689 English Bill of Rights.

Law Week is an appropriate time to reflect on the rule of law and the revolutionary role of lawyers, then and now.

Writing in 1789, after victory in the American Revolution, physician David Ramsay explained one reason for the Revolution: "The study of law was common and fashion­able." David Ramsay, 1 A History of the American Revolution 29 (Lester H. Cohen ed., Liberty Fund, 1990) (1789). According to Ramsay:

"No order of men has, in all ages, been more favourable to liberty, than lawyers. When they are not won over to the service of government, they are formidable adversaries to it. Professionally taught the rights of human nature, they keenly and quickly perceive every attack made upon them. While others judge of bad principles by the actual grievances they occasion, lawyers discover them at a distance, and trace future mischiefs from gilded innovations."

‍Ramsay pointed out that half of the First Continental Congress, in 1774, were lawyers.

"Bred in the habits of public speaking, they made a distinguished figure in the meetings of the people, and were particularly able to explain to them the tendency of the late acts of parlia­ment. Exerting their abilities and influence in the cause of their country, they were rewarded with its confidence."

We ought always feel gratitude to those lawyers, and other Americans, who defended and advanced natural rights during the American Revolution. Tonight is the story of how one of the rights which those lawyers and others had guaranteed in our Constitution was nearly obliterated during the last third of the twentieth century. And how the peaceful revolution that has restored the Second Amendment was the cooperative work of millions of Americans, especially lawyers, and among them, especially legal scholars.

Although the story does involve the recovery of the original meaning of Second Amendment, the story is also about living constitutionalism; the most important reason the right to keep and bear arms survived against the attempts to destroy it was that the right lives and thrives in the hearts and minds of the American people.

The U.S. Supreme Court decisions of District of Columbia v. Heller in 2008 and McDonald v. Chicago in 2010 were the opposite of cutting edge. Those decisions were lagging indicators. They were the long-term consequence of elections, of a generation of historical scholarship, and of the refusal of millions of ordinary people to accept that a right they had always exercised and cherished could be defined out of existence by unreasoned pronouncements.

During the nineteenth century, virtually all commentators and courts treated the right to keep and bear arms as a broad individual right, including for people not in the militia.

The most influential legal treatise of the early republic, St. George Tucker's American edition of Blackstone, described the Amendment as securing the rights of self-defense and resistance to tyranny.

Next came William Rawle's 1825 A View of the Constitution of the United States of America, which said that if either Congress or a state government, in "blind pursuit of inor­dinate power" should "attempt" "to disarm the people," "this amendment may be appealed to as a restraint on both."

The great Supreme Court Justice and prolific legal scholar Joseph Story wrote in 1840 that

"The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and it will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."

The preeminent constitutional writer of the latter 19th century was Michigan Supreme Court Chief Justice and Michigan Law School Dean Thomas Cooley. In 1880 he explained that "The right is general." "[I]f the right were limited to those enrolled," in the militia, "the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check."

Congress agreed. When the former slave states attempted to keep the freedmen in de facto servitude by enacting Black Codes that forbade the freedmen to possess arms, or required them to obtain a license, the Reconstruction Congress in 1866 overrode President Andrew Johnson's veto and passed the Second Freedmen's Bureau Bill, guaranteeing the "consti­tutional right to bear arms" as among the "immunities and rights" of Americans. The Civil Rights Act and the Fourteenth Amendment were passed with a similar and oft-expressed intent.

The theory that the right to arms was actually not a right made its first substantial appearance in a 1905 Kansas Supreme Court decision, Salina v. Blaksley. The case involved a municipal ordinance against carrying a firearm while intoxicated; the ordinance was easy to uphold based on precedents from other states. But the Kansas court aimed to use the case to destroy the right. Section 4 of the 1859 Kansas Bill of Rights declared "that the people have the right to bear arms for their defense and security." Yet the Kansas court claimed that this provision, in the state constitution Bill of Rights, merely affirmed the inherent power to state government to conduct military activities. The Kansas court also claimed that the federal Second Amendment had the same, empty meaning.

The Kansas court could not cite a single authority for its radical propositions. For example, a Massachusetts case had said that the state constitution right to arms is not violated by requiring a permit for large armed parades. The Kansas court pretended that the Massachusetts court had declared that there is no right to arms.

Based on how the U.S. Supreme Court had misinterpreted the Fourteenth Amendment in The Slaughterhouse Cases and U.S. v. Cruikshank in the 1870s, the Second Amendment, like most of the rest of the Bill of Rights, was not considered applicable to the States in the latter 19th and 20th centuries. State courts varied in how strictly they enforced their state constitution right to arms.

In 1934, Congress passed the first major federal gun control law, the National Firearms Act, which required a hefty $200 tax and registration for a small subset of arms, including machine guns and short-barreled shotguns. The Supreme Court said in U.S. v. Miller that the short-barreled shotgun owned by a bootlegger had not been shown to be the sort of arm useful to a militia, and it upheld the National Firearms Act on that narrow ground. Notably, the Court was very interested in Miller's weapon, and did not even mention that Miller while bootlegging was not actively serving in the Arkansas militia.

The Supreme Court's decision was consistent with the most restrictive line of state constitution cases from the 19th century, all of which came from States of the Confederacy: every individual citizen had the right to arms, but only for the types of arms used in "civilized warfare." For example, rifles, swords, or large handguns, but not pocket pistols.

The First Circuit, in the 1942 Cases v. United States, said it would not follow Miller any further than Miller's particular holding about the short-barreled shotgun. According to Cases, the Miller rule, if generalized, would protect far too many weapons.

That same year, the Third Circuit in U.S. v. Tot asserted that the Second Amendment "was not adopted with individual rights in mind," and further asserted that the Supreme Court had said so in Miller.

Congress did not think so. Shortly before U.S. entry in World War II, the U.S. Congress passed the Property Requisition Act, to allow the executive branch to seize, with full compensation, property needed for the national defense. Except for firearms. The federal government could not seize or register firearms possessed "by any individual for his personal protection or sport." The government could not "impair or infringe in any manner the right of any individual to keep and bear arms." The committee report explained that right to arms protections were "[i]n view of the fact that certain totalitarian and dictatorial nations are now engaged in the willful and wholesale destruction of personal rights and liberties."

But things changed drastically starting in the late 1960s. First, by then the original public meaning of much of the Bill of Rights and of the Fourteenth Amendment had been long forgotten. Many original source documents were not available in any practical sense to federal or state court libraries. For example, David Young' 1997 book The Origin of Second Amendment would compile hundreds of original documents about the right to arms from 1787 to 1792; as of the 1960s or 1970s, most of these documents existed in archives, and were waiting to be rediscovered by scholars and published in modern anthologies. But not yet.

Beginning in the mid-1960s, surging violent crime rates and race riots all over America terrified the public. In 1963, President Kennedy was assassinated by a communist using a mail-order rifle; then in April 1968 Martin Luther King was assassinated by a racist using a rifle; and then in June Senator Robert F. Kennedy was assassinated by an anti-Jewish Jordanian immigrant using a cheap imported handgun.

Connecticut Senator Thomas Dodd was Chairman of the Senate Subcommittee on Juvenile Delinquency and in the early 1960s he had been criticizing violence on television and cinema. But under pressure from Hollywood and from advertisers, Dodd had shifted his focus to guns, and in 1968, after the second Kennedy assassination, he was able to pass the Gun Control Act of 1968. As amended, it is still the major federal gun control law.

The Act banned mail-order gun sales, outlawed the import of inexpensive pistols, and imposed many other controls. But it did not fulfill the objectives of President Lyndon Johnson and other advocates for national gun licensing or national gun registration.

Most notably, from the viewpoint of the federal courts, the Act greatly expanded the categories of persons who were forbidden by federal law to possess a firearm or ammunition. Prosecutorial resources for such crimes were also greatly augmented.

Soon, the federal courts were hearing many cases from convicted felons, whose desperate public defenders were arguing that prohibiting a convicted violent felon from possessing a firearm violated the Second Amendment.

In 1973, the Office of Legal Counsel under President Nixon, who personally opposed all firearms ownership by citizens, wrote a formal opinion that there is no personal constitutional right under the Second Amendment to own or use a gun.

The federal judges appointed by Presidents Johnson and Nixon tended to be hostile to gun ownership. So rather than simply upholding bans on gun possession by convicted violent felons, many federal courts denied that there was an individual Second Amendment right. Instead, the right was said to a "collective" right that no individual could exercise. This is similar to "collective property" in communist dictatorships, where property supposedly belongs to all the people, but in fact only to the government.

Or the right was said to a "States' right," although nobody who said so could articulate what this right was. Or why the authors of the U.S. Constitution, who repeatedly used the word "State" or "States" to identify states' rights, had momentarily forgotten when they were writing the Second Amendment, and had written "the People" when they actually meant "the States."

The judicial opinions were typically terse and contemptuous, often consisting of string cites of post-1968 federal cases, all of which traced back to Tot or Cases. The opinions dared not quote the Supreme Court's words in Miller that in the Second Amendment's militia, "ordinarily when called for service these men were expected to appear bearing arms supplied by them­selves and of the kind in common use at the time."

The purpose of the nullificatory lower court opinions was not to describe what the Second Amendment was. Rather, the effort was to declare by ipse dixit that there was no individual right. The effort reached its zenith of absurdity in a 1975 report of the American Bar Association asserting, "It is doubtful that the founding fathers had any intent in mind with regard to [the] meaning of this amendment." Ben R. Miller, The Legal Basis for Firearms Controls, 100 Ann. Rep. A.B.A. 1050, 1052 (1975).

So according to the ABA, the Second Amendment was essentially similar to the Beatles song "I am the Walrus," for which John Lennon wrote nonsense lyrics to get even with people who overanalyzed Beatles songs.

"Elementary penguin singing Hare Krishna

Man, you should have seen them kicking Edgar Allan Poe.

I am the walrus

Goo goo g'joob."

In 1974, two national groups were formed in the District of Columbia to ban handguns, although they later expanded their objectives to include long guns. The National Coalition to Ban Handguns is now known as the Coalition to Stop Gun Violence. The other was the National Council to Control Handguns, which after several name changes is today known as Brady.

The leader of the latter group explained the strategy to The New Yorker in 1976: "The first problem is to slow down the increasing number of handguns being produced and sold in this country. The second problem is to get handguns registered." Finally, make "totally illegal" "the possession of all handguns and all handgun ammunition," except for the government and a few exceptions, such as licensed collectors.

Shortly after Congress granted the District of Columbia home rule, the District Council in 1975 took the initiative and banned handguns and forbade residents from keeping any firearm loaded and assembled for self-defense inside the home.

In 1976, Massachusetts put a handgun confiscation measure on the ballot. Although early polling was favorable, the measure lost, 69% to 31%. It even lost in Boston. Although the Boston police chief was a fervent advocate, the rest of law enforcement, including police unions and police chiefs, was almost unanimously opposed. They pointed out the ban would not affect criminals but would disarm law-abiding citizens, including off-duty police.

After the landslide defeat, an official with the League of Women Voters (which had vigorously supported the ban) said, "I think a lot of voters have that idea that this was designed to get guns away from the criminals. That's not the real purpose."

In the opinion of the gun confiscation movement, the American people are not capable of keeping firearms in their home without eventually harming themselves.

Morton Grove, Illinois, banned handguns in 1981, and during the next several years, Chicago and five more nearby suburbs followed suit. But the reaction across the rest of the country was a wave of state preemption laws. Legislatures decided that cities would not be allowed to outlaw firearms the state itself permitted. Within a few years, the possibility of municipal gun bans had been eliminated in most states.

Prohibitionists tried next in California in 1982, with a ballot initiative for a "handgun freeze." Unlike the Massachusetts measure, the California freeze would allow current owners to keep their handguns.

The California initiative was defeated by a vote of 63% to 37%. Opposition to the freeze brought so many additional voters to the polls that they even carried the Republican to a 1% victory for Governor.

In 1993-94, President Clinton was enthusiastically supporting gun control, and so the confiscation lobbies tried ballot initiatives in three left-leaning cities in Wisconsin, one of the few states without preemption. After confiscation was defeated in Milwaukee, Kenosha, and even in Madison, the backlash led to the enactment of Wisconsin preemption, and then to a state constitution right to arms adopted with 73% voter support.

Nationally, President Clinton worked tirelessly on gun control, passing a major anti-crime bill September 1994 that included a 10-year ban on the sale or manufacture of many semiautomatic firearms and on standard magazines over 10 rounds.

In November 1994, Democrats lost control of the U.S. House for the first time since 1953. President Clinton said, "The NRA is the reason the Republicans control the House." A Conversation with President Clinton, Cleveland Plain Dealer, Jan. 14, 1995, at 11B. Clinton also blamed the NRA for the 1993 defeat of New Jersey Governor James Florio, who had signed a similar ban.

At the state level, the 1994 elections led to tremendous changes in state gun laws. State after state enacted standardized, objective Shall Issue licensing for handgun carry permits; new or enhanced preemption laws to eliminate local gun control; instant checks to replace state-level waiting periods for handgun purchases; range protection bills to prevent noise nuisance suits against shooting ranges; and other right to arms measures.

In 1999, the murders of 12 students and one teacher at Columbine High School south of Denver reinvigorated the gun control movement. Indeed, in many states and in Congress, the immediate aftermath of a mass shooting is the only opportunity for antigun activists to win legislative victories. A few weeks after Columbine, Vice President Al Gore cast the tie-breaking vote in the U.S. Senate for an amendment to a juvenile crime bill that would have given the Bureau of Alcohol, Tobacco, Firearms and Explosives the administrative power to shut down any or all gun shows in the United States.

The 2000 presidential election promised to be the great showdown on gun control. Like the election of 1800 for the First Amendment (when the Sedition Act was being used to silence Republican opposition to the Federalists), the 2000 election would decide the fate of the Second Amendment.

In response to a letter from a concerned citizen, Clinton's Solicitor General Seth Waxman articulated the DOJ's position that "the Second Amendment does not extend an individual right to keep and bear arms." Quoting the citizen's letter, Waxman concurred that the government believes that it "could 'take guns away from the public,' and 'restrict ownership of rifles, pistols and shotguns from all people.'" The NRA put Waxman's "take guns" quote on billboards in swing states.

President Clinton later wrote that the NRA had been the reason that his Vice-President Al Gore lost five swing states in the Southeast, and hence the election.

The Justice Department under President George W. Bush withdrew the old Nixon administration opinion. In its place came an Office of Legal Counsel opinion over 100 pages, affirming the individual right.

Bush won re-election by a close margin in 2004, contrasting his support of gun rights with Massachusetts Senator John Kerry, an ardent gun control advocate. That election would made the difference in the 5-4 decision in District of Columbia v. Heller, decided at the end of President Bush's second term in 2008. President Bush had nominated John Roberts and Samuel Alito; whereas the Democratic shortlist included former Solicitors General Seth Waxman and Walter Dellinger and D.C. Circuit Judges David Tatel and Merrick Garland, all of whom defended handgun bans.

 

State Constitution ballot measures are the highest possible means by which the people can express their views on what ought to be a right. Since 1978, 17 states by vote of the people have added or strengthened state constitution right-to-arms provisions. (In 2026, Arkansas.) Not a single proposed amendment to fortify the right has ever been defeated at the ballot box.

Starting in the 1970s, pollsters began asking Americans if they believed they had a constitutional right to arms, and large majorities always said yes.

But not the large majority of the scholarly and legal elites, starting in the 1960s. To many of them, the notion that an ordinary American had a right to own a firearm and use it for self-defense was unbearable. The idea could not even be considered.

Those who did dare consider it tended to be practicing lawyers, whose professional livelihood did not depend on the approval of law professors. Starting in the 1970s, Virginia attorney Stephen Halbrook did more than anyone else to found the field of firearms law. His career record in U.S. Supreme Court merits cases is five wins and zero loses, including Printz v. United States in 1997, one of the most important modern federalism decisions, and NRA v. Oak Park, the companion case to McDonald v. Chicago in 2010, making he Second Amendment enforceable against the States via the Fourteenth Amendment.

Author of the Thomson West treatise on Firearms Law, Halbrook has been a prolific author of law journal articles and books, especially on the history of the right to arms.

He has taken full advantage of the fact that, because every law school has at least one law review, law has many more scholarly journals than do most other disciplines, so there is much more room for publication of articles that do not conform to the conventional wisdom of the moment.

Next to Halbrook, the lawyer who did the most in the long term for the restoration of the Second Amendment was the late Don Kates. As a Yale Law Student, Kates had volunteered for the 1964 Freedom Summer, to provide support for rural Black Mississippians to register to vote. In late June, three civil rights workers were murdered.

Kates adopted the longstanding practices of the Black and White civil rights workers who lived in the South fulltime: carrying firearms for protection against the Ku Klux Klan and other violent white supremacists who were tacitly supported by local law enforcement. After graduation, Kates went to work for California Rural Legal Assistance, and was soon named poverty lawyer of the year by the National Legal Aid and Defender Association.

Kates began to specialize in firearms law, and he too became a prolific scholar. In 1983, the Michigan Law Review, including me as a student citechecker, published Kates' article "Handgun Prohibition and the Original Meaning of the Second Amendment."

The Kates article in the Michigan Law Review was the first article about the Second Amendment  that had appeared in what was then a top-5 law review since the early 20th century. Professor William Van Alstyne, who was an eminent constitutional law textbook author and very liberal, later recounted that "this pipsqueak Kates," who was not a law professor, had convinced many of the leading constitutional law professors that the Second Amendment really was an individual right.

But none dared express that idea in print. That is why Sanford Levinson, also a very eminent and very liberal constitutional law professor, titled his 1989 essay in the Yale Law Journal "The Embarrassing Second Amendment." He wrote:

"I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even 'winning,' interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation."

Reassured by Levinson's grant of respectability and permission, many law scholars began to explore the unknown-to-them legal history of the Second Amendment. The large majority found the Second Amendment to guarantee a normal individual right. Other explorers  agreed that the Second Amendment was meant to be an individual right, but argued that the right no longer existed because conditions had changed; for example, the American people today are no longer virtuous and unified, as they supposedly were in 1791.

Besides Halbrook and Kates, there were many other lawyers and professors who played a role, including Arizona attorney David Hardy since 1974.

Federal courts often move slowly. It took until 2001 for a modern federal circuit panel, the Fifth Circuit in United States v. Emerson, to hold that the Second Amendment is an individual right.

The next Circuit to come around was the D.C. Circuit in 2007, whose decision striking the D.C. handgun ban would be affirmed by the Supreme Court the next year in Heller.

By the time Heller was being briefed in December 2007, even the gun ban groups had given up on the "collective right" theory that had once been hegemonic in elite circles. Only one amicus brief in support of the D.C. ban argued for the collective right theory at length, and it came from President Clinton's former Attorney General Janet Reno and some other former officials.

The Supreme Court in Heller ruled unanimously that the Second Amendment was an individual right. Justice Stevens' dissent expressly rejected the collective right. Instead, he described the Second Amendment as a narrow individual right that could only be asserted by individuals who were upholding a state's interest in its militia. That particular theory had been invented in 1989 by gun control attorney Dennis Henigan, who had studied the issue in enough depth to realize that the negation of an individual Second Amendment right was untenable.

The problem for Henigan and other supporters of the DC handgun ban was that the text of the Second Amendment guaranteed "the right of the People," and not "the right only of people actively serving in the militia." Since the 1990s, scholars had been calling the normal individual right for the general public "the standard model." The standard model was standard because it had been the standard model throughout the first century of the Second Amendment.

The standard model never forbade all gun control. In constitutional litigation over the Second Amendment or other liberties safeguarded by the Bill of Rights, the standard result is that the civil rights advocates and opponents each win sometimes and lose sometimes.

That is where the Second Amendment is today; as in the Early Republic and thereafter, there will always be disputes about what it means for the right to be "infringed." Many gun controls are not even challenged, and when there are challenges, the government usually wins. But not always, because the Second Amendment is today recognized as a meaningful and enforceable constitutional right that safeguards  natural right.

In the United States of America, the Rule of Law includes the government obeying the Constitution; the freedom of speech, including academic speech; free elections; and the leading role of liberty-minded lawyers in public life. All of these combined the rescue a fundamental right from a nadir half a century ago. The revolutionary restoration of the right to arms was accomplished peacefully, thanks to and because of the Rule of Law. This week, let us celebrate the Rule of Law, and let each of us honor it with our conduct every day of the year.

 

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Further discussion, including citations, can be found in Kopel, The Great Gun Control War of the 20th Century--and its Lessons for Today, 39 Fordham Urban Law Journal 1257 (2012); and The Right to Arms in the Living Constitution, 2010 Cardozo Law Review de Novo 99.