“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.”
With these 27 words, the Bill of Rights secures gun rights for millions of Americans—at least in theory. In practice, the text of the Second Amendment has been subject to legal, political, and cultural controversies, and Americans’ gun rights are not always respected.
Fortunately, key court cases in recent years like McDonald v. Chicago in 2010 have reaffirmed the Second Amendment’s protections to gun owners.
These court decisions aren’t just lucky breaks for the Second Amendment community; they are the culmination of decades of hard work by groups performing legal and historical research and bringing the right questions before the courts through strategic litigation.
In episode 65 of Giving Ventures, we hear from two highly accomplished organizations in the gun rights space: Second Amendment Foundation and the FPC Action Foundation.
Litigating with Strategy
Half a century ago when the Second Amendment Foundation was formed, its ambitious goal was to bring a case all the way to the Supreme Court and earn a favorable decision for gun owners—a goal it achieved with the McDonald v. Chicago case in 2010. That case clarified the Second Amendment applies to state governments as well as the federal. How did SAF achieve that historic victory?
Adam Kraut, executive director of the Second Amendment Foundation, explains the strategy: “We have strategic litigation, and that’s where we sit down and we look at how case law throughout the country currently stands and how we want to shape it, where we want to go next, and the next really the viable pathways to get there.”
Another pathway for SAF is what the group calls “opportunistic litigation.” In these cases, Second Amendment Foundation lawyers identify an individual whose case turns on an important legal question for which there is a broader public benefit to bringing a lawsuit.
In either case, SAF uses its team of attorneys to achieve precedents like the McDonald case that help to keep all Americans’ rights secure.
Natural Right to Bear Arms
Spinning out of the 501(c)(4) Firearms Policy Coalition, the FPC Action Foundation, a 501(c)(3) understands the importance of natural-rights philosophy and early American history to Second Amendment litigation.
As FPC Action President Cody Wisniewski points out, the Supreme Court’s test for interpreting the Second Amendment is text as informed by history. “You can’t apply that test if you don’t have that history,” Cody says.
To provide the historical context necessary to rightly interpret the Constitution, FPC Action performs and commissions the kind of rigorous research litigators and jurists can cite.
Of course, part of the historical context of the Bill of Rights is the philosophy of natural rights that animated the American Founding. Its fitting that FPC Action places natural rights at the center of its mission. Here’s how Cody summarizes the natural rights argument for Second Amendment protections:
“We have the right to defend ourselves, to possess the means that you need to defend yourself. And unless in the Constitution, the Bill of Rights, or subsequent, we gave the government power to regulate something, then the government is without that power. We hold those rights.”
To hear more about the great work Second Amendment Foundation and FPC Action Foundation, are doing to defend Americans’ gun rights, including details of the important Supreme Court case each is involved with, check out the full interviews. You can listen to the entire episode with the player above or wherever you get your podcasts.
