Dana Loesch: "These are rights that were inherent to us, being American citizens, born on this soil, these are rights that we immediately come out of the womb with."
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."
PBS/Frontline: While conventional wisdom suggests that an individual’s right to bear arms is enshrined in the Second Amendment of the Constitution, it is, in fact, a relatively recent interpretation, according to New Yorker writer and legal analyst Jeffrey Toobin.
FRONTLINE spoke with Toobin, author of The Oath, about what he describes as “the conservative re-casting of the Second Amendment” and whether potential new gun control laws could conflict with it.
Describe early understandings of the Second Amendment. Was there uncertainty or ambiguity about what it meant?
The overwhelming consensus was that the Second Amendment gave state militias a right to obtain and bear arms, but it did it not give individuals any rights. … The words of the Second Amendment are ungrammatical and difficult to understand in the best of circumstances. But if you look at the history and context of the amendment, including other references to state militias in the Constitution, it suggests that the amendment only applied to state militias.
Now what makes this subject so difficult in the modern world is that state militias don’t exist anymore, so we have no familiarity with what a state militia is. But it was simply taken as a given in constitutional law that the Second Amendment did not give individuals a right to bear arms.
When and how did that understanding begin to change to reflect an individual’s right?
It really started to change with the rise of the modern conservative movement in the ’70s and ’80s. You had Ronald Reagan, Edwin Meese, who was his attorney general, Orrin Hatch (R-Utah) in the Senate, really making a very sustained argument that the courts had misunderstood the Second Amendment for hundreds of years, and the NRA was an indispensable partner in this moment. And it became the conservative conventional wisdom that the Second Amendment gave an individual the right to bear arms.
You had Orrin Hatch, when he was chairman of the judiciary subcommittee, putting forth a major report [PDF] that said all the courts were wrong about the Second Amendment. The country appears to have gotten more sympathetic to the argument that guns make people safer, not more dangerous.
The idea that the Second Amendment gives individuals a right to bear arms was advocated so forcefully, so broadly and so persuasively that Democrats gave up on fighting the issue.
In your book The Oath, you explore how even then-Sen. Barack Obama took on this individual rights understanding and walked back some of his earlier views on gun control. What does that convey?
I think Obama personally illustrates how much the individual rights view has evolved into the conventional wisdom even for Democrats. Now, I think Obama and at least some Republicans would differ about the extent of what the Second Amendment represents, but I think Obama’s embrace of the individual rights theory illustrates how pervasive that theory has become.
… The climax of this reinvention of the Second Amendment came with the [District of Columbia v.] Heller case in 2008 with the Supreme Court when it reversed decades of precedent and [gave] individuals a right to bear arms. What the court left unclear was how extensive that right was. What Heller says is that you have a right to a handgun in your home. It does not say anything about assault weapons. It does not say anything about concealed weapons.
This is political as much as legal. This is about justices who come out of the conservative movement advocating positions that they’ve advocated for a long time. And what the Second Amendment means is not determined by the Second Amendment, it’s determined by who wins presidential elections and gets to appoint their like-minded justices.