How the Right Was Recovered 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, farmers and ranchers, good evening.
The title of my talk, “The Peaceful Second Amendment Revolution,” refers to a transformation in the original sense of that word: a return to the starting point, much like the Earth tracing a steady path around the sun.
The American Revolution began with that cautious spirit. The colonists wanted the British to honor all of their established rights, including the written right to keep and bear arms from the 1689 English Bill of Rights.
Law Week is a fitting moment to contemplate the rule of law and the transformative impact lawyers have played, both then and now.
Writing in 1789, after victory in the American Revolution, physician David Ramsay described 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 noted 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 be grateful 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 those lawyers and others guaranteed in our Constitution was nearly erased during the last third of the twentieth century. And how the peaceful revolution that restored the Second Amendment was the product of the cooperation of millions of Americans, especially lawyers, and among them, particularly legal scholars.
Although the tale centers on recovering the original meaning of the Second Amendment, it is also a story about living constitutionalism; the most decisive reason the right to keep and bear arms survived attempts to extinguish it was that the right continued to live 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 not heralds of a new frontier. They were late-arriving indicators. They reflected the long arc of elections, a generation of historical scholarship, and the refusal of millions of ordinary individuals to accept that a right they had always exercised and valued could be erased by ill-considered pronouncements.
Throughout the nineteenth century, nearly all commentators and courts treated the right to keep and bear arms as a broad individual right, including for people not part of any militia.
The most influential treatise of the early republic era, St. George Tucker’s American edition of Blackstone, described the Amendment as guaranteeing 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 held 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 eminent Supreme Court Justice and prolific constitutional 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 leading constitutional writer of the late nineteenth century was Michigan Supreme Court Chief Justice and Michigan Law School Dean Thomas Cooley. In 1880 he stated 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 sought to keep freedpeople in de facto servitude by enacting Black Codes that barred them from possessing arms or required them to obtain licenses, the Reconstruction Congress in 1866 overrode President Andrew Johnson’s veto and enacted 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 followed with a similar, oft-expressed purpose.
The theory that the right to bear arms was not a real right first appeared in a substantial way 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. Yet the Kansas court aimed to use the case to undermine the right. Section 4 of the 1859 Kansas Bill of Rights stated “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 acknowledged the inherent power of the state to conduct military activities. The court also claimed that the federal Second Amendment carried the same empty meaning.
The Kansas court could not cite a single authority for its radical propositions. For instance, a Massachusetts case had held 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.
Because the U.S. Supreme Court had misread the Fourteenth Amendment in The Slaughter-House Cases and U.S. v. Cruikshank in the 1870s, the Second Amendment, like much of the Bill of Rights, was not regarded as applicable to the States during the late 19th and early 20th centuries. State courts varied in how strictly they enforced their state constitutional right to arms.
In 1934, Congress enacted the first major federal gun-control measure, the National Firearms Act, which imposed a heavy $200 tax and registration for a specific subset of arms, including machine guns and short-barreled shotguns. The Supreme Court, in U.S. v. Miller, held that the short-barreled shotgun owned by a bootlegger had not been shown to be the sort of weapon useful to a militia, and thus upheld the Act on that narrow ground. Notably, the Court treated Miller’s weapon with interest and did not mention that Miller, while bootlegging, was not actively serving in the Arkansas militia.
The Court’s decision aligned with the most restrictive line of state-constitutional cases from the nineteenth century, all from the Confederacy: the individual citizen had a right to arms, but only for the types of arms used in “civilized warfare.” Thus, rifles, swords, or large handguns, but not pocket pistols.
The First Circuit, in the 1942 Cases v. United States, stated it would not extend Miller beyond its particular holding about the short-barreled shotgun. According to Cases, extending the Miller rule would protect far too many weapons.
In the 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 claimed that the Supreme Court had said so in Miller.
But Congress did not share that view. Just before the United States entered World War II, Congress passed the Property Requisition Act, enabling the executive branch to seize property essential for national defense with full compensation. Except for firearms. The federal government could not seize or register firearms possessed “by any individual for his personal protection or sport.” It could not “impair or infringe in any manner the right of any individual to keep and bear arms.” The committee report explained that protections for the right to arms 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 attitudes shifted dramatically starting in the late 1960s. By then, the original public meaning of much of the Bill of Rights and the Fourteenth Amendment had long faded from memory. Many original source documents were inaccessible to federal or state court libraries. For example, David Young’s 1997 book The Origin of Second Amendment would gather hundreds of original documents about the right to arms from 1787 to 1792; as of the 1960s or 1970s, most of these records existed only in archives, awaiting rediscovery and publication in modern anthologies—but that had not yet happened.
Beginning in the mid-1960s, surging crime rates and race riots across the country unsettled the public. In 1963, President Kennedy was assassinated by a communist using a mail-order rifle; in April 1968, Martin Luther King Jr. was killed by a racist using a rifle; and in June 1968, Senator Robert F. Kennedy was assassinated by an anti-Jewish immigrant using an inexpensive imported handgun.
Connecticut Senator Thomas Dodd chaired the Senate Subcommittee on Juvenile Delinquency and, in the early 1960s, had criticized violence on television and in cinema. Yet under pressure from Hollywood and advertisers, Dodd pivoted to guns, and in 1968, after the Kennedy assassination, he managed to push through the Gun Control Act of 1968. As amended, it remains the principal federal gun-control statute.
The Act banned mail-order gun sales, restricted the import of inexpensive pistols, and imposed numerous other controls. But it did not achieve the broader goals of national licensing or nationwide registration that some advocates had proposed.
Most notably from the federal courts’ perspective, the Act expanded the categories of persons barred by federal law from possessing firearms or ammunition, and it broadened prosecutorial resources for such offenses.
Soon, federal courts heard many cases from convicted felons whose public defenders argued that prohibiting a felon from possessing a firearm violated the Second Amendment.
In 1973, the Office of Legal Counsel under President Nixon—the president who personally opposed all private gun ownership—issued a formal opinion that there is no personal constitutional right under the Second Amendment to own or use a gun.
The federal judges named by Presidents Johnson and Nixon tended to be hostile to gun ownership. Rather than upholding bans on felons’ possession, many federal courts denied that there was an individual Second Amendment right. Instead, they described the right as a “collective” right that no individual could exercise. This echoed the notion of “collective property” found in some communist regimes, where property is said to belong to all the people but in practice is controlled by the government.
At times, the right was described as a “States’ right,” though the articulations rarely explained what that right entailed or why the Constitution’s authors—who repeatedly spoke of the “State” or “States”—had seemingly forgotten when drafting the Second Amendment and had written “the People” instead of “the States.”
Judicial opinions tended to be terse and dismissive, frequently littered with citations to post-1968 federal cases that traced back to Tot or Cases. Such opinions avoided articulating what the Second Amendment really meant, instead asserting ipse dixit that there was no individual right. The apex of this line of argument appeared in a 1975 American Bar Association report stating, “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).
Thus, according to the ABA, the Second Amendment was essentially a linguistic cousin to the Beatles’ song “I am the Walrus,” a string of nonsensical lines used to poke fun at those who overanalyze the issue.
“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 emerged in the District of Columbia with aims to ban handguns, eventually broadening to long guns. The National Coalition to Ban Handguns would later be known as the Coalition to Stop Gun Violence. The other, the National Council to Control Handguns, underwent several name changes and is today Brady.
The leader of Brady explained to The New Yorker in 1976 the strategy: “The first problem is to slow the growing production and sale of handguns in this country. The second problem is to achieve handgun registration.” The long-term aim, he said, was to render possession of all handguns and all handgun ammunition illegal, with exceptions only for the government and a few licensed collectors.
Shortly after Congress granted the District of Columbia home rule, the District Council in 1975 moved to ban handguns and prohibited residents from keeping any loaded and assembled firearm inside the home for self-defense.
In 1976, Massachusetts placed a measure on the ballot to confiscate handguns. Early polls favored the proposal, but it was defeated 69% to 31%, including in Boston. Although the Boston police chief supported the ban, law enforcement officials across the state, including police unions and chiefs, opposed it. They warned the ban would disarm law-abiding citizens rather than criminals, including off-duty officers.
After the landslide defeat, a League of Women Voters official who had vigorously supported the ban remarked, “I think many voters believed this was about taking guns away from criminals. That’s not the real aim.”
From the gun-confiscation movement’s viewpoint, the American public could not be trusted to keep firearms in their homes without eventually harming themselves.
Morton Grove, Illinois, enacted a handgun ban in 1981, and Chicago and five nearby suburbs soon followed. In response, a wave of state preemption laws emerged, with state legislatures deciding cities could not outlaw firearms when the state permitted them. Within a few years, municipal gun bans became largely a thing of the past in most states.
California tried next in 1982 with a “handgun freeze” ballot initiative. Unlike the Massachusetts measure, the California plan would have allowed current owners to retain their handguns.
The California initiative was defeated by a 63% to 37% vote. The opposition to the freeze mobilized so many voters that they helped elect a Republican governor by a narrow margin.
In 1993–94, President Clinton supported gun-control measures, and confiscation advocates pursued ballot initiatives in three Western cities in Wisconsin, a state largely without preemption. After defeats in Milwaukee, Kenosha, and Madison, Wisconsin adopted preemption and subsequently a state constitutional right to arms by a wide margin (73%).
Nationwide, Clinton pushed a sweeping anti-crime bill through Congress in 1994, which included a ten-year ban on sales and manufacture of many semiautomatic firearms and on magazines larger than ten rounds.
In November 1994, Democrats lost control of the U.S. House for the first time since 1953. Clinton remarked, “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 comparable ban.
At the state level, the 1994 elections brought a wave of reforms to state gun laws. States adopted standardized Shall Issue licensing for handgun carry permits; strengthened preemption to curb local gun controls; implemented instant checks to replace state waiting periods for handgun purchases; enacted ranges protections to prevent nuisance suits against shooting facilities; and advanced other rights-to-arms measures.
In 1999, the murders of twelve students and a teacher at Columbine High School near Denver rekindled the gun-control movement. Indeed, in many states and in Congress, the immediate aftermath of a mass shooting became the main window for antigun activists to win legislative victories. A few weeks after Columbine, Vice President Al Gore cast the deciding vote in the Senate to amend a juvenile crime bill, empowering the Bureau of Alcohol, Tobacco, Firearms and Explosives to shut down gun shows nationwide.
The 2000 presidential race promised to be the ultimate test for gun control. Similar to the election of 1800 over how the First Amendment would be interpreted, the 2000 contest would determine the fate of the Second Amendment.
In response to a citizen’s letter, Clinton’s Solicitor General Seth Waxman stated 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 conceded that the government believed it could “take guns away from the public,” and “restrict ownership of rifles, pistols and shotguns from all people.” The NRA highlighted Waxman’s words on billboards in swing states.
Clinton later wrote that the NRA had been the reason his Vice President Al Gore lost five swing states in the Southeast, and thus the election.
The Bush administration withdrew the old Nixon-era opinion. In its place arrived an Office of Legal Counsel opinion exceeding 100 pages, affirming the individual right.
Bush won re-election in 2004 by a narrow margin, contrasting his support for gun rights with Massachusetts Senator John Kerry, a fervent gun-control advocate. That election helped shape the 5–4 ruling in District of Columbia v. Heller, issued at the close of Bush’s second term in 2008. Bush had nominated John Roberts and Samuel Alito; the Democratic candidates 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.
Ballot measures at the state constitutional level represent the strongest expression the people have about what should be a right. Since 1978, 17 states have added to or strengthened state constitutional protections for the right to bear arms (as of 2026, including Arkansas). Not a single proposed amendment to reinforce this right has ever failed at the ballot box.
Starting in the 1970s, pollsters found that a broad majority of Americans believed they possessed a constitutional right to arms.
But the large majority of legal scholars and elites did not share that view beginning in the 1960s. For many, the notion that a typical American could own a firearm for self-defense was intolerable and scarcely worth considering.
Those who did dare to think about it tended to be practicing lawyers whose livelihoods did not depend on the approval of law professors. Beginning in the 1970s, Virginia attorney Stephen Halbrook helped lay the groundwork for the modern field of firearms law. His work in U.S. Supreme Court merits cases is marked by five wins and zero losses, including Printz v. United States in 1997, a landmark federalism decision, and NRA v. Oak Park, the companion to McDonald v. Chicago in 2010, which made the Second Amendment enforceable against the States through the Fourteenth Amendment.
Halbrook is the author of the Thomson West treatise on Firearms Law, and has written extensively on the history of the right to keep and bear arms.
He leveraged the fact that each law school hosts at least one law review, giving legal scholarship space to publish numerous articles that challenged prevailing orthodoxies.
Next to Halbrook, the most influential figure in the long-term restoration of the Second Amendment was the late Don Kates. As a Yale Law Student, Kates participated in the 1964 Freedom Summer to assist rural Black Mississippians in registering to vote. In late June, three civil rights workers were murdered.
Kates adopted the long-standing practice of Black and White civil rights workers who lived in the South full-time: carrying firearms for protection against the Ku Klux Klan and other violent white supremacists, sometimes with tacit support from local law enforcement. After graduating, Kates joined California Rural Legal Assistance and was soon named poverty lawyer of the year by the National Legal Aid and Defender Association.
Kates began focusing on firearms law and became a prolific scholar. In 1983, the Michigan Law Review—where I was a student cite-checker—published Kates’ article “Handgun Prohibition and the Original Meaning of the Second Amendment.”
The Kates piece in the Michigan Law Review was the first article about the Second Amendment to appear in a top-tier law review since the early twentieth century. Professor William Van Alstyne, a renowned constitutional law scholar who was then quite liberal, later recalled that this modest Kates—who wasn’t a law professor—had convinced many leading constitutional law professors that the Second Amendment truly protected an individual right.
But hardly anyone dared publish that idea. That explains why Sanford Levinson, another prominent yet liberal constitutional scholar, titled his 1989 Yale Law Journal essay “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.”
Encouraged by Levinson’s nod to legitimacy and permission, many law scholars began exploring the little-known legal history of the Second Amendment. The vast majority concluded that the Second Amendment protects a normal individual right. Others agreed the right was meant to be individual, but argued that it no longer existed because conditions had changed—for example, that Americans today are no longer virtuous and united as they were in 1791.
In addition to Halbrook and Kates, numerous other lawyers and professors contributed, including Arizona attorney David Hardy since 1974.
Federal courts tend to move slowly. It took until 2001 for a modern federal appellate panel, the Fifth Circuit in United States v. Emerson, to hold that the Second Amendment is an individual right.
The next circuit to recognize this view was the D.C. Circuit in 2007, whose decision striking down the D.C. handgun ban would be affirmed by the Supreme Court in the following year’s Heller.
By the time Heller was being briefed in December 2007, even the gun-ban advocates had abandoned the “collective right” theory that had once dominated elite circles. Only one amicus brief in support of the D.C. ban argued at any length for the collective-right theory, and it came from Janet Reno, President Clinton’s former Attorney General, and a few other former officials.
The Supreme Court in Heller ruled unanimously that the Second Amendment protects an individual right. Justice Stevens’ dissent rejected the collective-right view. He described the Second Amendment as a narrow individual right that could be exercised only by those upholding a state’s militia interest. That particular theory had been proposed in 1989 by gun-control attorney Dennis Henigan, who, after studying the issue deeply enough, realized that denying an individual Second Amendment right could not stand.
The challenge for Henigan and other supporters of the DC handgun ban was that the text speaks of “the right of the People,” not “the right only of people actively serving in the militia.” Since the 1990s, scholars have referred to the ordinary public’s individual right as “the standard model.” The standard model is called standard because it has functioned as the prevailing approach during the first century of the Amendment’s history.
The standard model never rules out some gun control. In constitutional litigation over the Second Amendment or other rights protected by the Bill of Rights, the history shows that civil-rights advocates and their opponents alike win some cases and lose others.
Today’s reality mirrors that pattern: just as in the Early Republic, debates continue about what constitutes an infringement of the right. Many gun-control measures go unchallenged, and when legal challenges arise, the government often prevails. Yet the Second Amendment is now recognized as a meaningful, enforceable constitutional right that protects a natural liberty.
In the United States, the Rule of Law entails the government obeying the Constitution; the protection of free speech, including academic speech; open elections; and the pivotal role that liberty-minded lawyers play in public life. Taken together, these strands enabled the remarkable restoration of a fundamental right from a nadir half a century ago. The peaceful revival of the right to keep and bear arms happened through the Rule of Law. This week, let us honor the Rule of Law by embodying its ideals in our daily actions.
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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.
