. "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
bear arms.26 Proponents of this model rely on several arguments in support of an individual right interpretation, including the history27 and the text of the amendment (the operative clause grants the right, while the prefatory clause is simply “an observation, or perhaps a cautionary note”28). In addition, individual right supporters note that the amendment’s text guarantees the right to “the people,” not to the states.29 This phrase, it is argued, has a unique meaning in the Constitution, as discussed in a recent opinion by the Supreme Court:
“The people” seems to have been a term of art employed in select parts of the Constitution…. The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” … While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community.30
Giving “the people” different meanings in different contexts within the Constitution, proponents argue, would be inconsistent. These arguments lead many commentators to conclude that the Second Amendment guarantees an individual right to private ownership of firearms.
Academic Support of the Individual Right Interpretation
Support for the individual right view of the Second Amendment is relatively new to academic literature, but in recent decades this interpretation has become widely embraced in the scholarship. One commentator has suggested that the collective rights model was the uncontroversial interpretation of the Second Amendment for well over a century; then, between 1970 and 1989, the balance began to tip: 25 law review articles supporting the collective rights model were published, while 27 articles supporting the individual
See, e.g., Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793; Nelson Lund, The Past and Future of the Individual’s Right to Arms, 31 Ga. L. Rev. 1 (1996); William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L. J. 1236, (1994); Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L. J. 637 (1989).
For example, the history is said to suggest that the militia envisioned by the Framers was a “militia of the whole, or at least one consisting of the entire able-bodied male population … equipped with their own arms.” Cottrol & Diamond, The Fifth Auxiliary Right, 104 Yale L. J. at 1001.
Id. at 1002.
United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (citations omitted).