Gun control is a big issue in the US and will likely stay that way for the foreseeable future. Whilst there is a gun control thread in JCC, this thread is specifically for discussion about the Second Amendment, which very much influences the legislative scope of gun reform initiatives in the US. Unlike other US Constitutional amendments, the Second Amendment has not been the subject of much judicial interpretation. In fact, it was largely uncontroversial until the US Supreme Court handed down its decision in District of Columbia v Heller in 2008. The Heller decision was significant. For the first time, the US Supreme Court interpreted the Second Amendment to protect an individual right to possess a firearm unconnected with service in a Militia, and to use that firearm for traditionally lawful purposes, such as self defence within the home. Link to the Heller decision is below: http://www.law.cornell.edu/supct/html/07-290.ZD.html How can this be? The Second Amendment reads as follows: In Heller the Supreme Court was closely divided. The majority argued that the Second Amendment should be interpreted as an “individual right” which effectively incorporated the common law right to bear arms for self defence and other lawful purposes which the US inherited from the laws of England (in particular, the interpretation of the English Bill of Rights and Blackstone’s commentaries). The minority argued that the Second Amendment was indeed an “individual” right but the scope of that right was limited to service in a Militia and there was nothing in the text of the Second Amendment or its drafting history which indicated that the right was intended to limit the regulation of private civilian use of firearms. I find myself very much in agreement with the minority. Why? Quite simply I believe the majority has ignored one of the fundamental rules of statutory interpretation - “the mischief rule”. The mischief rule simply states that in determining the meaning of a statute, attention should be given to ascertain “the mischief and defect” that the statute was intended to remedy. This effectively entails an examination of the intent of the author of the statute when it was written. Quite clearly, the ‘mischief’ which the Second Amendment was intended to address was the allocation of military power and the creation of a “national standing army”. The concern was the threat to liberty and to the sovereignty of the separate states posed by a national standing army. Clearly, any power to ‘disarm’ the state militia’s represented an intolerable risk as perceived at that time. On this basis, the Second Amendment was drafted to ensure that state militias would be preserved. More importantly, the history of the drafting of the Second Amendment by Madison shows that specific wording was proposed by various states to include a specific right to “self defence”. For example, the Pennsylvania proposal included the words “That the people have a right to bear arms for the defence of themselves and their own State…” These proposals were specifically rejected by Madison and the text of the Second Amendment was drafted to specifically exclude any mention of non-military uses of firearms. The majority instead have embarked upon a reading of the English Bill of Rights and Blackstone’s commentaries to support their position. Those authorites are at best indirect and of questionable relevance, particularly when there is so much written on the drafting of the Second Amendment where specific proposals to incorporate the right to bear arms for self defence were rejected. Accordingly, whilst there was indeed a common law right to bear arms for self defence inherited from old English law, the Second Amendment was not intended to limit the regulation or limitation of that common right by overriding legislation. Accordingly, the majority got it very wrong in the Heller decision. What do you all think? Am I wrong? If so, why?