In the late 1780s, early 1790s James Madison was concerned that the US Constitution vested too much power in a central national government. Having just been through a war with one of the most centralized and powerful governments in the history of the world, Madison, and a few other rogue elites, were determined to put safeguards in check. One of those safeguards was the Madison-drafted 2nd Amendment. From the moment it was ratified in 1791 until 2008 the 2nd Amendment went largely untouched by the Supreme Court. While the 5th Amendment (due process) and the 1st Amendment (freedoms of expression and association) were routinely the subject of Supreme Court review, the 2nd Amendment wasn’t. Then in 2008 that all changed with District of Columbia v. Heller, 554 US 540 (2008). After Heller a pair of cases came out that sharpened the jurisprudence of the 2nd Amendment. Reviewing these cases can help make clear what the 2nd Amendment means for individuals and their right to carry a knife.

Heller

This was the big case, the one that set out what the Second Amendment really means. Interestingly for reasons that can only be categorized as a quirks of history, the 2nd Amendment went essentially uninterpreted by the Supreme Court for 200 years. Its odd, but not unusual. There are other parts of the Bill of Rights like this. There is essentially no case law on the 3rd Amendment, the one about quartering troops, because the situation that caused the quartering of troops no longer occurs, but the 2nd Amendment going as long without treatment from the Supreme Court is weird by comparison because people carry arms all the time.

There are a couple of myths about the Second Amendment that need to be made clear before we get to the ruling, called the holding, of Heller.

First, the majority of the Founding Fathers wanted nothing to do with an armed citizenry. This notion is 100% bullshit. Madison and his band of cantankerous elites were renegades. The Founding Fathers wrote the US Constitution, not the Bill of Rights. The Bill of Rights was a bargaining device that incentivized the 13 original states to accept the US Constitution, a quid pro quo, whereby the ruling elites, aka the Founding Fathers, gave up a bit of power for the centralized US government they were forming in exchange for the ratification of the Constitution. If the Founding Fathers wanted an armed citizenry, it would have been in the Constitution, not the Bill of Rights. We know this to be true because while most of the Constitution is about the structure of government, there are provisions about specific issues. For example, the Bill of Attainder clause, which prohibits Congress from passing laws targeting individual people, is in the Constitution, not the Bill of Rights.

Second, Antonin Scalia’s method, the entire Originalist philosophy, is, frankly, intellectual garbage of the worst kind. Scalia’s Originalist method takes the following approach to interpreting legal documents. First, they look at the plain language of the document. If using the plain language and its everyday meaning makes the principle of law clear, the analysis ends. If not they look to history. In the case of more recent legal documents like new statutes, they look to legislative history. Up to this point Originalism isn’t all that different from general legal interpretation. The problem arises in the next step. If there is no legislative history, they look to historical sources to determine how people at the time the legal document was created would have understood the words. This process is at stupid and as dishonest as any one can imagine. Scalia claims that it “binds” judges to the original meaning of the law and eliminates judicial discretion and fanciful judicial interpretations. But what it does is allow the judge to pick and choose sources so as to arrive at an interpretation of the law they way. It is a shell game where “judicial interpretation” is eliminated and replaced by “judicial selection of sources” which has the exact same effect, namely it gives the judge the power to interpret the law however they choose. If you consult a historian, a newspaper, or your own personal experience, you will see that sources disagree. So picking between two historical sources that disagree and prioritizing one over the other is just as much an act of judicial creation as the textual analysis method that serves as an alternative to Originalism. Instead of saying: “I read the law and here is what it means” the Originalist judge is saying: “I read the law, I picked the historical source I like the most, and it says this is what the law means.” Originalism is, of course, a fraud. Worse yet, those who adhere to it are smart enough to know it is a fraud.

There are alternatives. Religious, classicist, and philosophical scholars have been debating how to interpret texts for thousands of years. Originalists pretend like they have the only solution, but do so by being willfully ignorant of this rich history. Hermeneutics is nothing new, but it is completely left out of the debate when it comes to legal interpretation. Why? Because it does not serve the ends Originalist judges want.

Why is this a problem if Heller got the result we want? Because these theories of legal interpretation are trends and eventually those trends run out of steam and the cases premised on them get revisited in ways that are problematic. The abortion case, Roe v. Wade, was based on a pre-Originalist method of interpretation called textual analysis. That is out of vogue now and so when Originalists got ahold of the Roe opinion at the peak of their power they blew it up in Dobbs. Dobbs is a warning sign to everyone that cares about the law—if a case is closely wedded to a method of interpretation, it will fall once that method of interpretation is out of vogue. Heller is inextricably married to the intellectually fraudulent Originalist method of interpretation. When it is out of vogue, Heller is the case people will be coming for without question.

McDonald v. City of Chicago, 561 US 742 (2010)

McDonald isn’t so important on its own, but it is important when coupled with Heller. The reason why is an esoteric point in Constitutional Law. Some parts of the Bill of Rights, by their own terms, only apply to the federal government. The Tenth Amendment, for example says:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

There is no way to read this amendment and think that it limits the power of state governments. In fact, it says the exact opposite. So in the 1800s the question arose—which parts of the Bill of Rights apply to both state and federal governments? Put another way, which parts of the Bill of Rights should be seen as incorporating limitations on both state and federal governments? So, over a long period of time, the US Supreme Court has determined, part by part, which components of the Bill of Rights limits just the federal government or which parts limit both. As Heller created an individual right where no existed before, it wasn’t clear until McDonald, that both state and federal governments are limited by the Second Amendment’s new individual right to bear arms. After McDonald, no state could argue that the Second Amendment doesn’t apply to them. That said, as of the end of 2025, Hawaii’s Supreme Court has rejected parts of the Heller holding (see Bruen below), not on the grounds that the Second Amendment doesn’t apply to the states, but, instead, that the US Supreme Court’s analysis in Bruen is flawed.

Cataeno v. Massachusetts, 577 US 411 (2016)

After Heller, there was still an open question about whether other weapons, like knives, count as “arms.” Looking at Scalia’s historical analysis in Heller, it wasn’t exactly clear. He did reference a hunting knife in dicta in the case, but lower courts were divided. Because the method Scalia used provides very limited and very narrow answers, its not clear one way or the other, if the Second Amendment only applied to guns. In Cataeno, the US Supreme Court answered.

This was a per curiam option—which means that it was a unanimous opinion where the majority was not authored by one person, but instead it was an unsigned consensus opinion. Alito, however, wasn’t satisfied with that. He authored a concurring opinion and laid out his (but not the Court’s) logic why less lethal arms, in this case, a taser, should be covered by the right to bear arms. The case’s facts are pretty harrowing. An abuse victim was tired of living in fear of her abuser and decided to purchase a taser. She kept it in her purse and one day after work, she was stopped by police and her purse was searched. The taser was found and, at the time, Massachusetts banned tasers (they ban everything; I know, I live in Massachusetts). Her lawyer, a public defender, took the case to the Supreme Judicial Court and lost, despite Heller and McDonald. The Court reasoned, as one would anticipate given Scalia’s historical analysis, that arms only references firearms.

Alito didn’t like that apparently. He reasoned that laws that restricted less lethal arms should be struck down as well because, of course, language changes and its meaning changes. Tasers didn’t even exist in 1791, so how could they be considered in the class of items that constitutes “arms”? Tasers were so very similar to the items mentioned as arms in 1791 that it only made sense to include them. Some might cry foul here, but Scalia’s analysis specifically rejected an argument that only those weapons that existed in 1791 count as arms, so the historical method is not a straight jacket but a framework.

While not as groundbreaking as either Heller or McDonald, Cataeno is important for us knife fans.

NYSRPA v. Bruen, 597 US (2022)

Heller gave us an individual right. McDonald says it applies to the states, but we still didn’t know, until Bruen, exactly how the Second Amendment worked. Obviously laws banning the ownership of firearms were invalid, but what about laws that merely restricted access to firearms? Bruen answered that question and gave us a framework for all Second Amendment cases.

In New York residents had to show a “special need” to carry a concealed firearm. Generalized claims of self-defense were insufficient. The problem was that this essentially barred the carry of firearms in New York. While you could walk around with a gun unconcealed, it is difficult and unsafe. The question before the Court was whether this law was a sufficient limitation on the Second Amendment as to be illegal. The Court, specifically Justice Thomas, answered. His answer strongly supports Heller but makes a mess of the law in a number of ways.

In the end, Thomas found the law restricted the right to bear arms. In doing so, he held that in order for a law restricting the right to bear arms to pass muster, it must have an historical antecedent. This law, the concealed carry law, did not and therefore it was impermissible under Heller.

The problem here is twofold. First, like with Heller itself, the judicial activism issue goes from “which theory of interpretation do you like” to “which historical source do you like”. Both allow the judge to choose the meaning of the law. The problem is that in this case, historical antecedents aren’t clear. There is substantial evidence that New York did have regulations on concealed carry and Thomas simply chose to ignore those sources. When both the theory and the facts are wrong, a case is unlikely to last forever. Scalia, Alito, and Thomas have built their Second Amendment on a weak foundation and so I am concerned that in the future this obvious flaw will be exploited to take down the Second Amendment rights we now enjoy.

The other problem is this—Thomas took the Second Amendment right and elevated it above all others. Unlike in First Amendment cases or search and seizure cases, a law restricting the right to carry is presumed unconstitutional and the government can save it, if and only if, the law has an historical antecedent. No other constitutional right functions this way. No other right automatically invalidates a law and requires the state to save it. Even in cases like in search and seizure where the state has the burden of proof, there is no presumption of wrongdoing. This sort of discordant approach makes Bruen stick out like a sore thumb and again attracts unwanted attention.

In the end, our Second Amendment rights are premised on these four cases. Only McDonald seems robust from an intellectual point of view. Heller ranks next highest because while I think Scalia’s analysis is the height of intellectual dishonesty, he at least follows the approach carefully. Bruen on the other hand is probably best sorted into the genre of science fiction, as its standard seems untethered from hundreds of years of legal reasoning on constitutional rights. Cataeno is not even well written science fiction. It strikes me as “old man screaming at clouds” level legal reasoning. Given its author, Samuel Alito, and his history, this makes sense.

I am glad we have the Second Amendment rights we do, but I am sad they are premised on the work of one cult leader and two intellectual doofuses. If we don’t want them to be Dobbsed away ten years from now, we need to start thinking about more solid foundations for these arguments.

These four cases also make me mourn for what we as country have lost in the last 20 years—the US Supreme Court is a shell of its former self, an institution that everyone despises, that no one trusts, and that seems incapable of doing anything other than being political. The Court has been miserable before. There are plenty of historical antecedents for that. But this court faces existential threats to both itself and the country and I think both of those things occurring at the same time is new. They aren’t an apolitical body. They are the smallest legislature in the world run by a bunch of out of touch (or inappropriately touchy), old, weirdos.