The Evolution of the 2nd Amendment from 240 years of Settled Law to Today’s Political and Constitutional Turmoil
Attorney Ken Bernhard from Cohen and Wolf, PC will discuss the 2nd Amendment and how it has evolved over 240 years of American history, particularly how politics and the composition of the Supreme Court have altered its scope and meaning.
KenBernhard, Yale Class of 1966 and NYU Law Class of 1969, spent 23 years as a Army Jag Officer, during which time he was a litigator and a Professor of Law teaching American Constitutional and Criminal Law at the West Point Military Academy. He is today a partner at the law firm of Cohen and Wolf. Ken is also a senior attorney with the Center of International Legal Studies located in Salzburg, Austria and has taught Constitutional Law at different law schools from Latvia to Mongolia. For 20 years, he was the Town Attorney for three Fairfield County towns and represented Westport in Connecticut’s House of Representatives. In addition, Ken is the Chairman of the Fidelco Guide Dog Foundation and has served on the boards of numerous, local not-for-profit organizations. He is married to Alice Mulligan and lives in Westport.
Speaker Summary
Attorney Ken Bernhard provided an historical perspective on the 2nd Amendment with a view towards: understanding the original intent of the writers of The Constitution; how the amendment does or does not relate to an individual’s right to bear arms; the long-standing view of the Supreme Court as it pertains to the right to limit gun ownership and use; and, his view as to what led up to the changes in The Court’s decision to relax the limitations on gun ownership and use. Ultimately, his perspective is that what was intended to be a right controlled by the states had been turned into a constitutionally protected right based on decisions rendered by a more politically motivated and influenced court, with the funding and power of the NRA being the largest factor in this change.
Much of his discussion focused on the wording and meaning around the reference to “the right to bear arms” tied to state Militias at the time of the writing of The Constitution versus an individual’s right to bear arms. He provided some historical background and context that made it seem clear that the intent was related to supporting state Militias in the absence of a Federal army/Militia for protection. Ken then discussed 3 Supreme Court cases that, over the next 230 years, consistently reinforced that the 2nd Amendment gave the states the right to regulate guns. And, that it did not constitutionally guarantee the individual’s rights to bear arms.
He discussed key elements that led to a change in the thinking by The Court: civil unrest and assassinations in the ‘60’s, and the emergence of the NRA and it’s deep-pocketed support for gun ownership rights in the ‘90’s. This led to 3 landmark cases that “rewrote” the amendment, ignoring the focus on the Militia and focusing instead on “the right to bear arms”. The first case allowed gun ownership to protect your home and possessions and subsequent cases took the rights outside the home into public spaces.
Despite strong public sentiment for some degree of gun control, Ken’s perspective is that these cases have fundamentally changed gun ownership to now be a constitutional right that supersedes state gun control laws which have been, and likely will be, under constant legal attack by gun rights activists and organizations. In the end, it appears anything short of an unlikely Constitutional Amendment that either redefines national gun rights or returns the control to the states will change this.
A spirited debate and discussion followed, and, in closing, Ken made it clear that he does not oppose gun ownership, just that it has become a federal/constitutional right versus leaving the control with the states as he believes was the intent of the writers of The Constitution.