. "Appendix C Judicial Scrutiny of Challenged Gun Control Regulations: The Implications of an Individual Right Interpretation of the Second Amendment--Scott Gast." Firearms and Violence: A Critical Review. Washington, DC: The National Academies Press, 2004.
The following HTML text is provided to enhance online
readability. Many aspects of typography translate only awkwardly to HTML.
Please use the page image
as the authoritative form to ensure accuracy.
Firearms and Violence: A Critical Review
First, the “states’ rights” or “collective rights” view of the Second Amendment argues that the amendment guarantees only the right of the states to create and maintain armed militias.22 Under this interpretation, there is no individual right of private firearm ownership, but rather a collective right of the people or the states to an armed militia. Advocates of this model focus on the amendment’s prefatory clause—“A well regulated Militia, being necessary to the security of a free State”—as limiting the right granted in the operative clause—“the right of the people to keep and bear Arms, shall not be infringed.” The framers intended, according to this theory, that states be free to maintain and arm the type of militias referenced in the fifteenth and sixteenth clauses of Article I, Section 8 of the Constitution,23 which give Congress the power to organize, arm, discipline, and call forth state militias. Outside this limited context, the amendment provides no protection.
A related (yet distinct) interpretation of the Second Amendment has been called the “sophisticated collective rights” model.24 Under this view, the right protected is an individual one, but only to the extent that the individual protected is a member of a state militia. That is, an individual has the right to keep and bear arms when the state does not itself provide the arms for its militia. Proponents of this model read the prefatory clause as qualifying the right granted by the operative clause. For many supporters of the states’ rights or the sophisticated states’ rights theories, the demise of the importance of and need for state militias in modern society has stripped the Second Amendment of any modern day relevance.25
The second general view of the Second Amendment provides that the right guaranteed by that provision is the right of an individual to keep and
See, e.g., Symposium on the Second Amendment: Fresh Looks, 76 Chi.-Kent L. Rev. 1 (2000); John Dwight Ingram & Allison Ann Ray, The Right (?) to Keep and Bear Arms, 27 N.M.L. Rev. 491 (1997); Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5 (1989).
Article I, § 8, cl. 15-16 provide: “The Congress shall have Power … To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers and the Authority of training the Militia according to the discipline prescribed by Congress.”
See, e.g., Nelson Lund, The Ends of Second Amendment Jurisprudence: Firearms Disabilities and Domestic Violence Restraining Orders, 4 Tex. Rev. L. & Pol. 157, 184-86 (1999); Robert J. Cottrol & Raymond T. Diamond, Book Review: The Fifth Auxiliary Right, 104 Yale L. J. 995, 1003-1004 (1995).
See David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale L. J. 551, 554 (1991) (“As we today have no such universal militia and assurance that contemporary arms-bearers will be virtuous, the Second Amendment itself is—for now—outdated…. The militia was a precondition for the right to arms. Without a militia, the right is meaningless.”).