Justice / Debunk

An Erroneous Interpretation by the United States Supreme Court of the Second Amendment

Scalia misused state constitutions in District of Columbia v. Heller: most language about individuals bearing arms was added years after the 2nd Amendment.

by Marvin L. Simner via Law & History Review on October 9, 2025

...District of Columbia v. Heller. The case involved the plaintive, Richard Heller, a police officer in Washington, D.C., who requested from the District of Columbia permission to keep a registered handgun in his home for self-defense. In a 5 to 4 ruling the Court found in favor of Heller.

Since 2008 a number of highly critical reports have appeared noting the Court’s “poor judicial craftsmanship… its revisionist rewriting of constitutional history” and its use of largely inappropriate peripheral evidence. Despite these many critiques, however, what has been overlooked thus far is the appropriateness of the historical evidence used by Scalia in support of this ruling. While on the surface, the Second Amendment refers to the bearing of arms only in the context of a “well regulated Militia,” drawing upon the wording in several of the state constitutions of the times, Scalia as an “originalist,” claimed that:

“In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: nine state constitutional provisions written in the 18^th century or the first two decades of the 19^th… enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.” It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit.

What Scalia failed to take into consideration in providing this rationale was the breakdown of the timeframe cited above. Since the period in question extended from 1776 through 1820, and encompassed 24 states, it is reasonable to ask where, throughout this nearly 45-year-long period, did these nine state constitutional provisions fall? If these provisions occurred before the Second Amendment was approved (1791), it could be that many of the states had indeed preferred the alternative wording suggested by Scalia from the very start of deliberations. On the other hand, if they occurred after the Amendment was ratified other factors may have contributed to the states’ preferred wording. In either case, as the following evidence shows, by failing to take into consideration the breakdown of this timeframe, it was clearly inappropriate as well as presumptuous for the final ruling to state that “The Court’s interpretation is confirmed by analogous arms- bearing rights in [the] state constitutions that preceded and immediately followed [the approval of] the Second Amendment.”