Eight years ago, I got into an argument with a nonlawyer acquaintance about the Second Amendment. The Amendment, this person fervently announced, clearly protects an individual right. Not so, I argued to him, thinking him to be something of a blowhard and even a bit of a kook.
Three years ago, I discovered, to my surprise and mild chagrin, that this supposed kook was entirely right. In preparing to teach a law school seminar on firearms regulation (one of the only about half a dozen such classes that I know of at U.S. law schools), I found that the historical evidence -- much of which I set forth verbatim in the Appendix -- overwhelmingly points to one and only one conclusion: The Second Amendment does indeed secure an individual right to keep and bear arms.
The Second Amendment, like the First, Fourth, and Ninth Amendments, refers to a "right of the people," not a right of the states or a right of the National Guard. The First Amendment guarantees the people's right to assemble; the Fourth Amendment protects the people's right to be free from unreasonable searches and seizures; the Ninth Amendment refers to the people's unenumerated rights. These rights are clearly individual -- they protect "the right of the people" by protecting the right of each person. This strongly suggests that the similarly-worded Second Amendment likewise secures an individual right. (See http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC3 for text of the relevant original sources.)
What about the seemingly odd two-clause construction, which some commentators have called "unusual," "special," and "nearly unique"? It turns out that there's nothing odd about it at all. During the Framing Era, dozens of individual rights provisions in state constitutions were structured the same way, providing a justification clause explaining the right, and then an operative clause securing the right. The 1842 Rhode Island Constitution's Free Press Clause, for instance, reads
The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments of any subject, being responsible for the abuse of that liberty . . . .
Just as with the Second Amendment, the second clause secures a right, while the first justifies it to the public. (See http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC4)
And the two clauses of the Amendment are entirely consistent. The second clause guarantees a "right of the people," which is the right of each individual. The first clause explains that this right helps further a "well-regulated militia," a legal term of art that means "the body of the people capable of bearing arms" (here I quote from the New York Ratifying Convention's proposal that eventually became the Second Amendment) -- the entire armed citizenry, not some small National Guard- type unit.
The current Militia Act, enacted in 1956 and derived from the original 1792 Militia Act, defines the "militia" as including all able-bodied male citizens from 17 to 45; given the Court's sex equality jurisprudence, I feel comfortable saying that every able-bodied citizen from age 17 to 45, male or female, is a member of the militia. This is quite consistent with the second clause's securing an individual right to every person. (See http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC2 and http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC32)
Contemporaneous evidence from the late 1700s and 1800s unanimously supports the individual rights reading of the text. It's widely agreed that the Second Amendment right to keep and bear arms was an expanded version of a similar right in the 1688 English Bill of Rights. England, of course, didn't have states, so the English right couldn't have been a states' right; Sir William Blackstone, whose 1765 Commentaries were tremendously influential in Revolutionary Era America, described the right as a "right of the subject," an obviously individual rights characterization. (See http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC6)
Many early state Bills of Rights also protected the right to keep and bear arms; since these rights were protections *against* state governments, they surely must have protected individuals, not the states themselves. And many of the constitutions made this quite explicit. The 1790 Pennsylvania and the 1792 Kentucky Constitutions described the right as "the right of the citizens"; the 1796 Tennessee Constitution spoke of "the right of the freemen"; the 1817 Mississippi, 1818 Connecticut, 1819 Maine, and 1819 Alabama Constitution specifically referred to the right of "every citizen."
The 1776 Pennsylvania, 1777 Vermont, 1802 Ohio, 1816 Indiana, and 1820 Missouri Constitutions spoke of "the people['s] right to bear arms for the defence of themselves," referring to the people individually ("themselves") rather than collectively ("itself"). Throughout the 1800s, these unambiguously individual rights were seen as directly analogous to the Second Amendment. (See http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC1)
The same goes for all the notable constitutional commentators of the 1800s. St. George Tucker (1803) treated the Second Amendment right as equivalent to Blackstone's "right of the subject"; William Rawle (1829) did likewise. Justice Joseph Story (1833 and 1840) called it a "right of the citizens." Thomas Cooley (1880 and 1898) took exactly the same individual right view; so did the 1866 Freedmen's Bureau Act, which specifically secured to "all the citizens" "the constitutional right to bear arms" as part of their "personal liberty." A recent exhaustive study reveals that there was exactly *one* statement in the 1800s cases or commentaries supporting the collective rights view, a concurring opinion in an 1842 Arkansas state court case. (See http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC7 and following.)
These commentators also make clear exactly what purpose the right was thought to serve: Blackstone, Tucker, Story, and Cooley unanimously agree that private firearms ownership was meant as a deterrent to government tyranny. In the words of Justice Story,
The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
A chilling thought, perhaps, and one that may not be in keeping with the temper of our times -- but the Framers thought that leaving governments (state or federal) with a monopoly on armed power was even a more chilling prospect. Though the Second Amendment grants no right to revolt with impunity against tyranny (no constitution can do that), it does secure private ownership of firearms as a deterrent to such tyranny; this is the unanimous judgment of all the early sources. /*/ (See http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC8 and http://www.law.ucla.edu/faculty/volokh/beararms/FEDERALI.HTM#FED46)
The U.S. Supreme Court has said little about the Second Amendment, but it has certainly not said that the Amendment secures only a collective right.
Throughout the Court's history, the Justices have mentioned the Second Amendment, usually in passing, in 27 opinions. In 22 of these 27, the Justices quoted or paraphrased only "the right of the people to keep and bear arms" language, without even mentioning the Militia Clause. (See http://www.law.ucla.edu/faculty/volokh/beararms/testimon.ssi#TOC.VI.D)
One of the remaining five cases -- and the only extended 20th-century discussion of the right -- is United States v. Miller (1939), which held that the right extended only to weapons that were rationally related to the preservation of the militia. But the Court emphatically did not hold that the right belonged only to the state or the National Guard. Rather, it reaffirmed that the "militia" referred to the entire armed citizenry, and considered on the merits a lawsuit that was brought by an individual (Miller), not by a state. (See http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC11)
The only Supreme Court case that leans in the collective rights direction is Lewis v. United States (1980), which summarily rejected an ex-felon's claim of a right to possess a firearm, in passing citing some lower court cases that took a collective rights view. But Lewis could equally well be explained as concluding only that *ex-felons* don't have a right to keep and bear arms (something that's also been held in the many states whose constitutions unambiguously guarantee an individual right to keep and bear arms). (See http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC27)
In any event, if one relies on passing mentions, Casey v. Planned Parenthood (1992) (quoting Justice Harlan) in passing described liberty as including "[freedom from] the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on" -- a description that treats the right to keep and bear arms as an individual right on par with the other individual rights. (See http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC29)
Despite all the above evidence, the federal courts of appeal have unanimously subscribed to the states' right approach, though there are a few recent hints to the contrary in some opinions. If the historical or textual evidence were in equipoise, and if the cases dealt carefully with the evidence and explained why the pro-states'-right evidence was more persuasive than the pro-individual-right evidence, then perhaps we might defer to these courts' views.
But when the lower courts' decisions are contrary to the unanimous weight of the evidence, and do not really confront this evidence but rely almost entirely on bald assertions or on citations to other lower court decisions, it seems to me that we must respectfully say that the lower courts are mistaken.
While the evidence that the right is an individual right is extremely strong, the precise scope of the right is a matter of considerable debate. This of course is true of all individual rights: Everyone agrees that the First Amendment, the Fourth Amendment, and other provisions secure individual rights, but reasonable minds differ on exactly what speech the First Amendment protects and exactly what searches the Fourth Amendment prohibits.
Thus, recognizing that the Second Amendment secures an individual right tells us little about most moderate gun controls, for instance background checks, waiting periods, or modest restrictions on the kinds of brands that may be marketed. I don't know how these laws should be treated; I suspect that many would be upheld, like many modest speech restrictions are upheld despite the existence of the First Amendment.
But our concern about these problems can't blind us to the clear verdict of the constitutional text and the constitutional history: The Framers of the Bill of Rights (and of the Fourteenth Amendment) saw the right to keep and bear arms as an individual right, entitled to the same sort of dignity and protection as the freedom of speech, the privacy of the home, the right to trial by jury, and our other constitutionally secured protections.
As the Court said when defending another often unpopular right -- the privilege against self- incrimination --
If it be thought that [a right] is outmoded in the conditions of this modern age, then the thing to do is to take it out of the Constitution [by constitutional amendment], not to whittle it down by the subtle encroachments of judicial opinion.
Constitutional rights may be respected, repealed, or modified; but they must never be ignored.
/*/ All the text above is part of the written testimony, except for the last paragraph of Part 2, which was added for this mailing. At the hearing, the material in this paragraph was substantially covered by the witnesses and by some of the Senators on the panel. The footnotes from the testimony are omitted in this version, but can be found at http://www.law.ucla.edu/faculty/volokh/beararms/testimon.ssi
Eugene Volokh is your loyal editor; you can find links to his Second Amendment-related articles at http://www.law.ucla.edu/faculty/volokh/index.htm#GUNCONTROL As you might have gathered, he has collected a large set of original sources on the Second Amendment, mostly at http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm
For the opposite view of the Second Amendment, see Handgun Control, Inc.'s Web site, especially http://www.handguncontrol.org/legalaction/C2/c2rtarms.htm
For a library of law review articles related to the Second Amendment, see http://www.2ndlawlib.org/
CENTER-RIGHT is edited by Eugene Volokh, who teaches constitutional law and copyright law at UCLA Law School (http://www.law.ucla.edu/faculty/volokh), and organized with the help of Terry Wynn and the Federalist Society.
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