The History of the 2nd Amendment: A Collective or Individual Right? - Part 1

A three-part series analyzing and refuting historical evidence produced by gun rights activist Kostas Moros on the right to "bear arms"

By: Dru Stevenson

In a post on Twitter on June 26, 2023, lawyer and gun rights activist Kostas Moros claimed:

“The 19th century evidence about the 2A being an individual right is, simply, completely decisive of the question. If any ‘historian’ claims 2A does not protect an individual right, they are either ignorant, or they are hacks. They don't know better than literally every commentator of note in the 19th century, no matter their fancy credentials. Early on, I got a few criticisms that the sources I found were cherry picking. With each addition, that retort just looks more and more silly. There are a hell of a lot of cherries in this basket.”

Needless to say, we do not live in the 1800s anymore.

Nevertheless, Moros proceeds to list or present numerous sources from the 1800’s, mostly legal treatises and speeches by politicians that I will list and analyze in the second part of this series.

---

For context, the fact is that most professional historians disagree with Mr. Moros — historians with PhDs, tenured faculty positions in university history departments, who have published books with university presses (like Jack Rakove, Paul Finkelman, Saul Cornell, Nathan Kozuskanich, Lawrence Delbert Cress, Noah Schusterman, and Carol Anderson), as well as scholarly history writers like Patrick Charles, Michael Dorf, and Michael Waldman.

Further, Moros simply ignores Founding-era sources that do not fit with his views.

For example, we have transcripts of the House debates in the First Congress about the text of the Second Amendment. The drafters themselves spent two days debating about the wording and never once mentioned an individual or personal right to own guns.

The entire discussion was about mandatory militia service and whether to include an exemption for conscientious objectors, such as Quakers and other religious pacifists. No one in Congress voiced concerns about laws restricting certain individuals from owning a gun, restrictions on types of weapons available for sale, or limits on where citizens could carry their weapons.

Flash forward about 200-plus years, and legally Moros’ citations wouldn’t stand up in a current court.

In New York State Rifle & Pistol Association, Inc. v. Bruen (2022), the Supreme Court said that laws from the last quarter of the nineteenth century are not relevant for determining the meaning and scope of the Second Amendment, and therefore rejected sources supporting New York’s gun law from that period. Many of Moros’ sources are from this same period that the Supreme Court has deemed irrelevant.

The majority opinion in Bruen expressly left open the question of whether Reconstruction-era sources (1866-1875) should carry any persuasive weight with the Courts (it appears the conservative Justices themselves disagree on this point), though it seemed to give preference to pre-Civil War legal sources. The Supreme Court itself would not rely on many of the sources Attorney Moros cites.

Then, in District of Columbia v. Heller (2008), the Supreme Court held that the Second Amendment includes an individual right to “keep and bear arms,” not just a collective or militia right. Several prominent historians who specialize in the Founding Era had filed amicus briefs arguing to the contrary, which the Court disregarded. Moros and others can continue to argue about whether this is historically accurate, but for the foreseeable future, the point is legally moot, because the Supreme Court took a position on this question in 2008 that is binding on all other courts in the United States.

It seems strange for Moros to declare so confidently that the Second Amendment protected an individual right (versus a collective right or militia service) when the Congressional records themselves indicate that this was not on anyone’s minds when they were adopting the Second Amendment in the first place.

The opening volley in the Congressional debates (by Elbridge Gerry) went on at length about the purpose of the Amendment, framing it in terms of state militias versus a permanent standing army of the federal government. No one else in Congress disagreed with this or interjected that there were other reasons for the Amendment, like protecting an individual’s right to arm himself for personal self-defense. No one mentioned personal self-defense at all. (See Dru Stevenson, Revisiting the Original Congressional Debates about the Second Amendment, 2023.)

The dissenting opinion by Justice Stevens in District of Columbia v. Heller cites numerous sources from the Founding era that indicate the Second Amendment covered a collective right (the citizen militia) rather than an individual right – all of which Moros ignores.

The drafters chose their words carefully.  As Margie Burns demonstrates in her recent book, Common Sense in the Second Amendment, the word “infringe” in the Amendment was a technical legal term at the time. The other Amendments in the Bill of Rights use other words for violations of civil liberties, such as “abridge.” Abridge meant curtailing or shortening something, and could happen by degrees. For example, it made sense to say something was “slightly abridged,” or to talk about a “minor abridgment.” Thus, the Amendments that use this word (as in the context of Free Speech) prohibited even incremental or moderate restraints on speech.

“Infringe,” by contrast, was a more drastic term, meaning to negate or completely nullify, to “break” something. Thus, when the Second Amendment says the right to keep and bear arms “shall not be infringed,” it referred only to completely disarming the populace or a complete ban on weapons. It did not prohibit moderate restrictions on the type of arms, individuals who were eligible for owning weapons, or where and how weapons could be used.

Consider this statement by a Louisiana court in David v Jonti in 1839: “The rights which constitutions secure to individuals are always limited by corresponding duties, and the penalties, imposed by the laws for the violation of the duty, are not an infringement of the right.” Courts in the early Republic did not consider specific regulations about guns to be an “infringement” of someone’s Constitutional rights. 

---

In Part 2, Stevenson goes into an in-depth examination of Kostas Moros’ sources to analyze and challenge whether they actually provide supporting evidence for the individual rights theory of the 2nd Amendment.

---

Dru Stevenson is Wayne Fischer Research Professor, Professor of Law at South Texas College of Law.

Image by Wynn Pointaux from Pixabay.