The Second Coming of the Second Amendment

By Wendy Kaminer

“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.”1939 ruling


These are among the most disputed words in the U.S. Constitution. People who support gun control, or prohibition, generally argue that the Second Amendment conditions the right to bear arms on service in a state militia, merely establishing a “collective” right.  They focus on the prefatory phrase:  “A well-regulated militia being necessary to the preservation of a free state…” Opponents of gun control, or prohibition, argue that the Second Amendment, like other provisions in the Bill of Rights, guarantees an individual right – the right to bear arms independent of service in a militia.  They argue that the prefatory reference to state militias offers a reason for securing the right to bear arms, not a condition for exercising it.   (I’ve addressed this debate at some length here and here.


The Supreme Court has never clearly ruled on this collective vs. individual rights debate, but it may soon get the chance.  (The Court’s previous ruling, on the Second Amendment, U.S. v Miller, is about as open to interpretation as the Amendment itself.)  On March 9th the U.S. Court of Appeals for the District of Columbia issued a ruling long sought by libertarians and other advocates of individual gun rights, and long feared by advocates of stringent gun control.  With one dissent, a three judge panel ruled that the Second Amendment does indeed confer an individual right to keep and bear arms, striking down the District of Columbia’s virtual ban on gun ownership, which extended even to guns kept in the home for self-defense.

 Writing for the majority, Judge Laurence Silberman reviewed the scholarly debate about the Founder’s intent and the meaning of the Second Amendment today. As Judge Silberman observed, if the right to bear arms was intentionally conditioned on militia service, if its sole purpose was insuring the survival of state militias as checks on federal power, then it is essentially “dead letter” today -- as opponents of gun rights like to believe. 


Indeed, for many years the Second Amendment was an effective anachronism; it may have been the favorite constitutional provision of right-leaning scholars and NRA members, but it was generally slighted by legal scholars and the courts, as well as most liberal civil libertarians.  The ACLU has long treated the Second Amendment as an irrelevancy, siding with proponents of strict gun control who insist that the Constitution establishes only a collective right to bear arms in a state militia.  (ACLU policy provides, in part, that “the individual’s right to bear arms applies only to the preservation or efficiency of a well-regulated militia.  Except for lawful police and military purposes, the weapons by individuals are not constitutionally protected.”)


This “collective rights” position lost some legitimacy in recent years, however, even among liberals.  In 1989, University of Texas law professor Sanford Levinson revitalized the gun rights debate with an influential law review article “The Embarrassing Second Amendment.”  Levinson, a liberal, “card-carrying” ACLU member, challenged the orthodox liberal view of the Second Amendment as a guarantee of effectively defunct, collective rights.  This was not “a wholly implausible reading,” Levinson observed; but “one might ask why the Framers did not simply say something like ‘Congress shall have no power to prohibit state-organized and directed militias.’” 


The most compelling argument in favor of individual gun rights is contextual:  The Bill of Rights protects individuals from abuses of government power, framing some freedoms as fundamental and inviolate: the right to assemble, the right to speak, the right to keep law enforcement from invading your home without a warrant, and fair trials rights, (among others) are all conferred upon individuals.  Or so the ACLU would argue – except when the right to own a gun is at issue.  Years ago I was unable to persuade the ACLU of Massachusetts merely to establish a committee to consider the nature of Second Amendment rights.


The opposition of liberal civil libertarians to individual gun rights may reflect some ideological inconsistency, but it’s not hard to understand culturally or politically.  Liberals tend to treat gun rights the way social issue conservatives treat the right to read pornography.   They tend not to empathize with the visceral sense of gun owners that the right to bear arms is an essential component of individual autonomy.  Instead, they regard gun rights as insuperable obstacles to gun control.


That is an arguably faulty assumption, reflecting the stereotypical view of gun owners as phallo-centric maniacs irrevocably opposed to gun regulations.  Some advocates of gun rights argue that acknowledging a basic, individual right to bear arms would actually ease opposition to measured gun control – which many gun owners now regard (not unreasonably) as incremental steps toward prohibition.   Given the sorry history of efforts to prohibit conduct in which millions of Americans indulge, advocates of regulating guns might consider the recognition of Second Amendment rights by the Court of Appeals less a setback than an opportunity.


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