A personal right to bear arms

The 2nd Amendment of the US Bill of Rights reads:

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.

While I knew that there was a (lively) debate over the interpretation of this amendment, and disagreed with the notion, I had always thought that there was some form of individual constitutional right to bear arms. This had been the line taken by every opponent to gun control I had ever heard, and seems to have invaded the public consciousness.

Yet recently I was reading this in Slate, and learned that in fact, the courts have never upheld such an individual right. Indeed, in the last case in which the issue was discussed (United States v. Miller, 1939) the court determined that

that an individual right to a gun had no “reasonable relationship to the preservation or efficiency of a well regulated militia,” and thus the Second Amendment did not confer individual rights to gun ownership. The court followed with seven decades of constitutional radio silence on the subject, either reaffirming Miller in a whisper or declining to hear new cases.

This led former Solicitor General Erwin Griswold to insist: “[T]hat the Second Amendment poses no barrier to strong gun laws is perhaps the most well-settled proposition in American Constitutional law.”

So why has this myth of individual rights been so prevalent? Polls in the US still show that three quarters of people think the constitution provides a personal right to own guns. The Slate article blames the power of the NRA.

In 1991, former Chief Justice Warren Burger even described the “individual rights” view of the Second Amendment as “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.”

Anyway, this issue is relevant because on 18th March the USSC heard arguments in the case District of Columbia v Heller which contests the constitutionality of DC’s strict ban on handgun ownership.

The Economist has this:

The city wants the court to rule that Americans have a right to bear arms only in service of a government militia. This would upend the law and drive the gun lobby bonkers. Failing that, Washington wants its ban on handguns to be accepted as reasonable. Neither verdict, however, is likely.

I am in favour of stricter gun control, and so hope that the Roberts court upholds the precedent of Miller. As the Economist predicts, however, this may be improbable.