WASHINGTON — A New York Times investigative piece built around the premise that the "right to kill is growing" in the United States drew sharp rebukes from legal scholars and gun-rights advocates this week for mischaracterizing what the Second Amendment actually says — and for inverting the history of who has been trying to rewrite it.
The article's author is Mike McIntire, a three-time Pulitzer Prize winner at the Times. His piece argues that the Constitution "says nothing explicitly about an individual right to have a gun for everyday self-defense" and frames the individual-right interpretation as the invention of the modern gun lobby.
The text of the Second Amendment reads: "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." Constitutional scholars across the political spectrum have long divided that sentence into two parts: a prefatory clause announcing a purpose, and an operative clause that creates the right itself. The operative clause uses the phrase "the right of the people" — the same construction used in the First and Fourth Amendments, both of which courts have consistently held protect individual, not collective, rights.
Justice Antonin Scalia addressed this directly in District of Columbia v. Heller, the landmark 2008 Supreme Court decision. Scalia wrote that the prefatory clause announces a purpose but does not restrict or limit the individual right set out in the operative clause. The 5-4 Heller ruling held explicitly that the Second Amendment protects an individual's right to own firearms independent of service in a militia — and that right predates the Constitution itself.
Critics of McIntire's framing argue he has the debate precisely reversed. The individual right to bear arms was not a legal novelty invented by advocacy groups in the 20th century — it was treated as self-evident for most of American history. Colonial Americans owned firearms widely, and neither the Continental Congress nor George Washington's government moved to disarm citizens after the war ended at Yorktown.
The historical record from the founding generation is substantial. John Adams, in his 1770 courtroom defense of British Capt. Thomas Preston — one of the soldiers involved in the Boston Massacre — argued before a colonial jury that all men held an inherent right to defend themselves. "Here every private person is authorized to arm himself, and on the strength of this authority," Adams said, "I do not deny the inhabitants had a right to arm themselves at that time, for their defense, not for offence." Adams grounded that position in British common law, calling self-defense "the primary canon in the law of nature."
James Madison, the principal drafter of the Bill of Rights, was initially reluctant to enumerate rights at all — not because he doubted their existence, but because he feared writing them down would inadvertently narrow their scope. His concern was the opposite of what McIntire describes: Madison worried that listing specific freedoms would imply those were the only ones that existed, not that the right to bear arms was something later generations invented.
The Times feature's critics argue that the "collective right" interpretation — the view that the Second Amendment protects only organized state militias, not individuals — is itself the modern legal innovation. That reading gained traction in certain lower federal courts during the latter half of the 20th century before the Supreme Court rejected it in Heller and again in McDonald v. City of Chicago in 2010, which extended Heller's holding to state and local governments through the Fourteenth Amendment.
McIntire's article did not address Heller by framing its holding as wrong — it effectively wrote around the ruling by suggesting the individual right was a lobbying creation rather than a constitutional one settled by the nation's highest court. That approach drew criticism from gun-rights commentators as historical revisionism that ignores not just the Supreme Court's rulings but the unbroken tradition of individual firearms ownership stretching from colonial days through the 19th century and into the 20th.
The NRA has separately argued in public statements that the Second Amendment protects the right to carry firearms while exercising other constitutional rights, including the right to protest. "The Second Amendment protects Americans' right to bear arms while protesting — a right the federal government must not infringe upon," the organization said in a statement addressing a recent Minneapolis incident involving a concealed-carry holder approached by federal agents.
The broader legal debate McIntire's piece enters is not academic. Courts are still working through the standard the Supreme Court set in New York State Rifle & Pistol Association v. Bruen in 2022, which held that gun regulations must be consistent with the nation's historical tradition of firearm regulation — a test that has struck down several state-level restrictions since. Framing the individual right as a recent invention sits in direct tension with the historical analysis Bruen requires judges to apply.
McIntire has not publicly responded to the specific textual criticisms raised this week.
