What Does the Second Amendment Mean Today?

Abstract:     
A growing body of scholarship argues that the Second Amendment protects a right of individuals to possess firearms, regardless of whether those individuals are organized in state militias. Proponents of the individual right view do not merely disagree with those who champion the competing view that the Second Amendment poses few if any obstacles to most forms of gun control legislation by the state or federal governments. They appear to believe that the Second Amendment has been subject to uniquely shabby treatment by the courts and, until recently, academic commentators.

This Article argues that the Second Amendment has not been unfairly orphaned. The courts and commentators that reject the individual right scholars' claims are justified in doing so by the application of the same criteria of interpretation commonly applied to other constitutional provisions, including: doctrine; text; original understanding; structural inference; post-adoption history; and normative considerations. In contrast to the individual right view, under the "collective right" interpretation, the Second Amendment protects some right of state militias against undue federal interference but no right of individuals against either federal or state regulation. This Article is sympathetic to the collective right view but acknowledges that the Second Amendment is, and has always been, somewhat puzzling. Motivated in large measure by the Founders' distrust of standing armies, even on the broadest reading, the Second Amendment does nothing to prevent the federal government from maintaining a standing army. So, too, the right of rebellion that has served as the principal normative justification for a right to possess firearms has been emphatically rejected by our constitutional history.

Working Paper Series