In 1991, retired Chief Justice Warren Burger went on PBS and called the idea that the Second Amendment protects an individual’s right to own a gun a “fraud” on the American people. 

That sentiment, Professor Darrell A.H. Miller explained in a recent lecture at the Law School, reflected the prevailing judicial understanding at the time. Today, just over three decades later, the idea of the “right” to personal gun ownership is the law of the land. 

So, how did we get here? 

And what does this dramatic shift tell us about the purpose of the Second Amendment?

Those questions were at the heart of Miller’s lecture, titled, “The Aim of the Second Amendment,” which he delivered at an event celebrating his appointment to the Harry N. Wyatt Professorship. Speaking to a room packed with students, Miller traced the evolution of Second Amendment jurisprudence—from a militia-centered view to an individual-rights view—and challenged the Supreme Court's emphasis on self-defense as the amendment's central purpose.

Dean Adam Chilton introduced Miller as one of the country’s leading experts on the Second Amendment. According to a recent analysis, Miller's scholarly briefs have been cited by the US Supreme Court more frequently over the past decade than those of any other scholar in the country.

“The title of my talk deliberately uses the word ‘aim’,” Miller pointed out. “It’s not just a cheap pun—it’s to communicate the idea that the Second Amendment has both a trajectory and a purpose.”

What Does the Second Amendment Mean?

“The Second Amendment is not very long at all," Miller observed at the start of his talk. "It's a mere 27 words."

Those words declare: "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."

For much of the nation's history, Miller explained, there were two competing ways of reading the amendment. The first emphasized the militia clause and the idea that an armed militia was necessary to secure a free state. The second emphasized the right of individuals to keep and bear arms.

“The founding generation was deeply, deeply concerned about standing armies,” said Miller. “They perhaps had an optimistic view about what a citizen’s militia could do in terms of domestic security for the nation against the superpowers of the day.”

For more than two centuries, Miller explained, courts generally understood the Second Amendment primarily in relation to militia service, rather than as a broad guarantee of individual gun ownership.

He pointed to two Supreme Court cases that reflected this understanding.

The first, Presser v. Illinois, arose in 1886 out of Chicago labor politics, when a group of armed protesters marched through the streets, in defiance of an Illinois law prohibiting unauthorized military organizations. “Chicago was the hotbed of a lot of labor activism in the late 19th century,” Miller said. 

The Supreme Court upheld the law, ruling that the Second Amendment restricted only the federal government, not the states. 

The second case, United States v. Miller, came in 1939, after a man was charged with transporting a sawed-off shotgun across state lines. This was in violation of the 1934 National Firearms Act, one of the first major pieces of federal gun control legislation that came about in response to an intense rise in Prohibition era mob violence. After a federal district court judge dismissed the charges, the federal government appealed the case and won. The Court ruled that the Second Amendment did not protect possession of the weapon, absent evidence of its relationship to militia service.

That understanding remained dominant in the courts for decades, Miller explained, as reflected in Burger's 1991 comments on PBS.

From "Fraud" to Law of the Land

The shift toward recognizing an individual’s right to gun ownership was the result of a decades-long political and legal effort, Miller explained, comparing it to the movement for marriage equality. But “the gun rights advocacy got there first,” he said.

The turning point came in 2008, when the Supreme Court decided District of Columbia v. Heller.

The case involved a Washington, DC, law that prohibited residents from keeping operable handguns in their homes. A man named Dick Heller challenged the law, arguing that the Second Amendment protected his right to possess a handgun for self-defense.

In a landmark opinion written by Justice Antonin Scalia, the Court agreed. 

Scalia employed an approach known as original-public-meaning originalism, asking how the words of the Second Amendment would have been understood by the public when the amendment was adopted in 1791.

“Scalia said that the operative portion of the Second Amendment was the second half of the text, and that people in 1791 would have understood these words to mean that people have the right to have and carry weapons for confrontation,” Miller explained.

Two years later in McDonald v. City of Chicago, the Supreme Court extended that individual-rights protection against state and local governments, striking down Chicago's handgun restrictions.

“The practical effect of the Heller and McDonald cases was huge,” said Miller. “But it didn’t change the doctrine that much in the sense that it left many important questions unanswered: Who gets to possess weapons? What kind of weapons do they get to possess? Where can they carry them?”

For more than a decade, lower courts worked through those questions, generally using a two-part framework that considered whether the Second Amendment covered the conduct at issue and, if so, whether the challenged regulation appropriately served an important public interest. 

Yet, throughout that time, many theorists and dissenting judges disagreed with the approach and advocated for one based solely on history.

This all came to a head in 2022 in a case called New York State Rifle and Pistol Association v. Bruen, when the Court rejected the two-part approach in favor of a test focused on whether modern gun regulations are consistent with the nation's historical tradition of firearm regulation.

“The effects of Bruen were immediate and dramatic,” Miller explained. “After Bruen, something like 10 years of gun cases all get red flags—literally everything is up for grabs.”

For Miller, however, the significance of these developments extends beyond gun rights. The Second Amendment has also become a proving ground for the Supreme Court's approach to constitutional interpretation.

“I really believe that the Second Amendment for the Supreme Court is the test site for originalism,” he said. “The Second Amendment is unencumbered by the thicket of precedent—it is the one place where originalism has a clear path to be worked out.”

The Purpose of the Second Amendment, and Why Self-Defense Isn’t Enough

According to Miller, understanding how the Supreme Court came to recognize an individual’s right to bear arms is only part of the story.

An equally important question remains: What is that right actually for?

The Supreme Court has emphasized self-defense as the central purpose of the Second Amendment. But Miller argued that self-defense, on its own, does not adequately answer the question.

“Self-defense against what?” he said. “‘Self-defense’ has no context. Its assertion is its own justification. And that’s the problem with saying that the Second Amendment is about self-defense. It’s an encapsulation of the state of nature.”

Miller next explored three possible reasons to keep and bear arms:

The first is autonomy—the idea that individuals have a right to possess weapons as an expression of their personal independence and agency.

The second is anti-tyranny—the argument that an armed citizenry provides a safeguard against oppressive government. But that raises difficult questions, Miller noted, about what constitutes tyranny and who gets to make that determination.

The third is safety, which Miller considers the most plausible explanation. Yet even that rationale presents challenges, particularly because gun-rights advocates and gun-violence-prevention advocates often have sharply different views about what makes individuals and communities safer.

For Miller, these competing understandings illustrate why the debate over the Second Amendment cannot end with the recognition of an individual right. Courts must also grapple with what that right is intended to protect—and how its purpose should shape constitutional law.

Miller closed by comparing the state of Second Amendment jurisprudence today to the development of First Amendment law in the early 20th century, when leading legal thinkers were still working out what freedom of speech was for and what it should protect.

Today, he suggested, scholars have far more theoretical and empirical tools available to tackle similarly complex questions about the Second Amendment.

“Law is a serious business with serious consequences, but it’s law,” Miller concluded. “And that’s what constitutionalizing the right to keep and bear arms means: to transform a moral and political set of moves into a legal one. And as such, the right to keep and bear arms in the Second Amendment demands the same respect—but must submit to the same discipline of thought and reason and argument—as any other part of the legal canon.”