THE PAST AND FUTURE OF THE INDIVIDUAL'S RIGHT TO ARMS

[Copyright © 1996 Georgia Law Review. Originally published as 31 Ga. L. Rev. 1-76 (1996). Permission for WWW use at this site generously granted by Georgia Law Review (www.lawsch.uga.edu/~galawrev/) and the author. For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from Georgia Law Review Association, University of Georgia School of Law, Athens, GA 30602-6012.]

THE PAST AND FUTURE OF THE
INDIVIDUAL'S RIGHT TO ARMS

The Second Amendment to the United States Constitution is among the most well drafted provisions of the Bill of Rights. It is also one of the most misunderstood. After almost two centuries during which it provoked virtually no controversy or serious commentary, the Second Amendment has become one of the most emotionally evocative elements of the entire written Constitution. An extensive and growing academic literature has arisen, but that literature has been preoccupied with an unnecessarily confusing debate over a question that is unambiguously answered by the (p.2)constitutional text. And scholars have almost entirely ignored important and thorny questions that are left unanswered by that text. These shortcomings in the academic literature are not merely of academic interest. The Supreme Court has developed no meaningful jurisprudence of the Second Amendment, but will almost certainly have to do so eventually. When that process begins, the Court will need the assistance of commentary that answers the easy questions correctly while clarifying the genuinely difficult issues that remain.

The easy questions have to do with whether the Second Amendment protects an individual right to arms or a kind of "collective" right of state governments to maintain organized military forces. The serious literature on the subject is virtually unanimous in concluding that the Constitution establishes an individual right. That literature, however, has focused excessively on legislative history and the general intellectual climate of the late eighteenth century, without sufficient attention to the constitutional text itself. The textual arguments, which are presented in their complete form for the first time in this Article, deal mainly with the relation between the prefatory allusion to a "well regulated militia" and the operative guarantee of the people's right to keep and bear arms. There is no conflict or tension between these elements of the Second Amendment. One important feature of a well regulated militia is that it is not overly regulated or inappropriately regulated. The operative language simply forbids one form of inappropriate regulation: disarming the people from whom the militia must necessarily be drawn. The textual arguments in favor of the individual right interpretation are strongly confirmed by the Constitution's legislative history. When read properly, however, the legislative history's main function is to show that the Second Amendment's prefatory language was perfectly adapted to a purpose having nothing to do with limiting or qualifying the grammatically inescapable language establishing an individual right to keep and bear arms.

Answering the easy questions about the nature of the right to keep and bear arms, however, does not take one very far in analyzing concrete questions about the constitutionality of actual gun control laws. The most serious difficulties, which were not anticipated by the Framers of the Second Amendment, have arisen (p.3)largely from two subsequent developments. First, technological progress has created weapons that are far more powerful than anything the Framers could have dreamed of. Second, the Supreme Court has developed an approach to the Bill of Rights, especially through its doctrine of Fourteenth Amendment incorporation, that limits the usefulness of appeals to the original meaning of the Second Amendment.

Here again, the existing academic literature falls short. Discussions of incorporation involving the Second Amendment, for example, have focused almost exclusively on the intentions of those who framed and ratified the Fourteenth Amendment. This "intentionalist" approach to incorporation, however, has been firmly rejected by the Supreme Court, which has adopted a very different method for deciding which provisions of the Bill of Rights shall be applied against the states. This article is the first to apply the Court's stated principles to the question--a question that the Court itself has not yet answered--whether the Second Amendment should be applied to the states through Fourteenth Amendment due process.

An even more difficult set of issues has been created by technological and political developments since the eighteenth century. Technological advances have created a sharp distinction between military weapons and the less lethal weaponry customarily kept by civilians for self-defense. This change, along with the firmly established practice of maintaining large peacetime standing armies, has created the need for legal distinctions that the Framers had no cause to consider. For them, there was no difference between military and civilian small arms. Nor was there any sharp line between the Second Amendment's two purposes: deterring tyranny and safeguarding the individual's means of defense against criminals. Today, the second purpose has assumed much greater practical importance relative to the first, and it is inconceivable that the courts would prohibit the government from restricting civilian access to standard military weapons. Any useful analytical framework must offer the courts a way to make principled distinctions among different kinds of weapons and among the different purposes they can serve.

In deciding which weapons are protected by the Second Amendment, and what restrictions the government may place on the (p.4)possession and use of those weapons, the courts will find virtually no direct guidance in the text or history of the Constitution. This article proposes that these issues be resolved by applying doctrines drawn from the jurisprudence of the First Amendment. I illustrate this approach with three timely examples: the recent federal statute banning certain "assault weapons"; the District of Columbia's very severe restriction on the private possession of handguns; and the common restrictions on carrying weapons in public.

Before turning to the Second Amendment itself, however, it will be helpful to examine briefly the British experience with a constitutional right to arms. That experience began before our own, and it has taken a very different course. The contrasting evolution of these two rights from their common origin will help show why, although some Second Amendment questions are easy, the difficult questions are ultimately more important.

I. The Natural and English History of Gun Control

Incidents like these are not mere isolated instances of hypocrisy. The fear of violent death, a passion so deep that Hobbes could plausibly take it as the underlying motive for the creation of civil society itself, nags at us all with two messages: arm yourself or those you control and disarm those whom you do not control. People who control governments therefore always have a motive to deprive their opponents and potential opponents of access to weapons. Opposition to the government may take many forms, such as refusing to obey the laws against murder, rape, and robbery; or adhering to an officially disfavored religion; or attempting to wrest political power away from those who currently possess it. This, in turn, suggests that "gun control" laws at any particular time and place, and the patterns of obedience to those laws, will largely be a function of the calculations that individuals in and out of government make about the relative threats to their own lives posed by the current regime and by their fellow citizens. Everyone will have a motive to induce the government to disarm those who pose a threat to his own life. Some factions in each society will be more successful than others in using the government for this purpose. And no one will be able to obtain complete and permanent assurance that the government will protect him from a violent death or refrain from inflicting such a death upon him.

a. english origins

The history of the English right to arms, which has recently been summarized with great lucidity by Joyce Lee Malcolm,[8] very much (p.7)reflects the simple Hobbesian calculus sketched above.[9] The story begins in the Middle Ages, when the weakness of the Crown made popular participation in peacekeeping an almost inevitable part of English life. When the Crown's authority increased significantly during the sixteenth and seventeenth centuries, what we now think of as the "militia tradition" was already rather well developed. This tradition--in which citizen-soldiers are mustered as needs be to defend the community against violent threats from enemies within or without--developed for the most prosaic and least principled reason imaginable: it was cheap. The Crown lacked the financial resources to maintain a permanent army or police force, and participation in the militia was simply a kind of tax on those who were required to serve.[10]

This arrangement was not calculated to make anyone very happy. Like taxpayers everywhere, those who were obliged to spend their own money on arms, and their own time in training, resented the imposition. Much evasion of the tax necessarily occurred, along with political maneuvers aimed at shifting the incidence of the tax onto someone else.[11] On the other side, the Crown could not have been satisfied with such a makeshift instrument of policy. Although the King had the authority to call out the militia and to specify their objectives, he could not always rely on the independent local aristocrats to interpret and execute his orders faithfully. Similarly, the King and gentry could not always rely on militiamen to put down disturbances because those men were sometimes sympathetic to those they were supposed to suppress. The militia, moreover, was not available for foreign operations, so regular armies had to be raised on an ad hoc basis for wars in Europe.(p.8)

Despite the disadvantages on all sides, however, this was all the kings could afford for a long time. The stability of the arrangement finally broke down during the reign of Charles I, when the Crown and Parliament began to contend with each other for control of the militia. The subsequent civil war, during which the English experienced life with a professional army in their midst, left the population with both a dread of military rule and an abundance of weapons in their own hands. Upon his restoration in 1660, therefore, Charles II was faced with a delicate problem as he undertook the task of trying to recover control of the sword. In pursuit of this goal, he instituted two major innovations. First, he began using the militia to disarm his political opponents; second, he created a separate military organization consisting of volunteers loyal to him, which was independent of the ordinary militia.[12] The scheme was apparently successful in allowing Charles to assert meaningful control over the population, but it only succeeded through the connivance of the royalist gentry, who also connived to ensure that it was not too successful. By repeatedly refusing to provide the Crown with the funds needed for a real army, Parliament kept the King in a state of dependence that was undoubtedly meant to assure that he would only use the sword against enemies that he and they had in common.

During this period, the underlying political struggle resulted in two especially significant pieces of legislation. First, the Militia Act of 1662 authorized militia officers to disarm English subjects at their discretion.[13] Second, the Game Act of 1671 for the first time in English history made the possession of guns by the vast majority of the population illegal. While there is apparently no documentary proof of the intent behind this second legal innovation, it was probably meant to allow the gentry to disarm their tenants and neighbors whenever such disarmament might seem necessary or (p.9)desirable.[14] Although the Game Act of 1671 was apparently never enforced by the gentry, both this statute and the Militia Act of 1662 remained on the books during the tumultuous years leading up to the Glorious Revolution.

When James II succeeded Charles in 1685, he inherited a militia that had been purged of the Crown's opponents, along with a separate and substantial military force.[15] James's ambitions, however, were greater than those of Charles. James was a Catholic, and he was determined to convert England to his own religion. It was widely believed at the time, moreover, that he meant to create an absolute monarchy like that of Louis XIV and to impose his religion through a standing army.[16] Whatever the exact extent of James's true ambitions, he certainly took steps that were consistent with his contemporaries' worst fears, beginning with the disarmament of the Protestant militia in Ireland. Two serious rebellions in England subsequently gave him the occasion for demanding and receiving from Parliament substantial new revenues for military purposes. He then used these funds to double the size of an army that was already large by historical standards.[17] He also attempted to divert resources from the militia to his own army and sought to bring the militia under Catholic domination.[18] Finally, James frequently used his forces to disarm those considered suspicious. In what may have been the most extreme example of this policy, the King seized upon the Game Act of 1671 to order a general disarmament in the northern and western counties.[19] Although this order was probably not carried out, it showed what the King might do if the militia were dominated by Catholics or if the Crown's own army grew strong enough.

The overthrow of James II provoked the subsequent adoption of the Declaration of Rights by the Convention Parliament and its prompt acceptance as the Bill of Rights by William and Mary.[20] The evolution of the arms and militia articles of this document can (p.10)be traced through three principal drafts. The earliest of these drafts complained of the existing legislation relating to the militia and denounced the keeping of standing armies during peacetime as illegal. It also demanded the restoration of arms that had been seized from Protestants, on the ground that "the Subjects, which are Protestants, should provide and keep Arms for their common Defence ...."[21] The next draft sought to eliminate complaints that would require curative legislation and to present only statements of the ancient rights of Englishmen. This draft, however, also recharacterized the right to arms: rather than stating that Protestant subjects "should" provide and keep arms, which accurately reflected the original concept of militia service as a duty, the new draft said that Protestant subjects "may provide and keep Arms, for their common Defence."[22] In the final draft, this evolution away from the language of duties continued: the phrase "may provide and keep Arms for their common Defence," with its connotations of the individual's duty to provide himself with military equipment in order to serve the King in defending the community, was altered to read "may have Arms for their Defence."[23] With the removal of the references to "providing" arms and to the "common" defense, the final draft was substantially less evocative of the old concept of militia service as a tax.

Along with the transformation of the traditional duty into a right, however, came two corollary restrictions: one categorical and one based in legislative discretion. As introduced into the English Constitution, article 6 of the Bill of Rights states:

The religious restriction, which had been included even in the first draft of the Declaration, suggests that this was not thought to be an unalienable right belonging to all mankind--or even to all (p.11)Englishmen--as a natural right of birth. It was, on the contrary, an outgrowth of specific fears that the Crown might seek to impose Catholicism in England. And, in a final confirmation of the Hobbesian logic that seems to have driven the entire history of arms control in England up to this point, Parliament promptly passed a bill "for the better securing the Government by disarming Papists and reputed Papists."[25]

The new right to arms, moreover, seems in a sense to have inured more to the benefit of Parliament than of the individual English subject. The phrases "suitable to their Conditions" and "as allowed by Law" make it clear that the newly created constitutional right of individuals was one that might vary according to the social class to which one belonged and was one that Parliament could circumscribe without any specified restraint. This is not a right that yet bears a close resemblance to the sort of individual rights associated with the natural rights tradition or with the American Bill of Rights.[26]

As so often happens when political compromises are frozen into law, Article 6 of the Bill of Rights eventually became invested with (p.12)a purpose that was apparently absent at its creation. By the mid-eighteenth century, English law really had absorbed a popular right of Protestants to keep arms. This right, which was respected by Parliament and the courts even in the face of disturbing episodes of civil unrest, was treated as an ancient right of Englishmen.[27] This was evidently an illusion, as no such legal right had been articulated before 1689. More importantly, however, the eighteenth century saw the transformation of the political compromise set out in the Bill of Rights into a corollary of the natural right of self-preservation and a necessary deterrent against political oppression. This would have been the natural result of efforts to explain why the supposedly ancient right to arms had existed time out of mind.

Although the course of this transformative process has apparently not been studied in detail,[28] the best evidence of its outcome lies in Blackstone's inclusion of the right to arms in the English constitution, along with his statement that the right is rooted in "the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."[29] Blackstone made no distinction between the "violence of oppression" that may result from government's (p.13)failure to control common criminals and the oppression that government itself may undertake. He emphasized, moreover, that the right to arms was among the five indispensable auxiliary rights "which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property."[30] With Blackstone, the theory of natural rights had fully replaced the real driving forces of 1689 as the accepted explanation for the Englishman's right to arms.

Although a coherent theory supporting the right to arms had been developed and may well have achieved a consensus by the time Blackstone wrote his treatise,[31] the scope of the right was not nearly so well defined. The language of the Bill of Rights, which proclaims a right only to such arms as "are suitable to their Conditions and as allowed by Law," was echoed in Blackstone's statement which characterized the constitutional right as a "public allowance, under due restrictions" of the natural right of self-preservation.[32] Thus, the scope of Parliament's authority to regulate the possession of arms was not precisely or closely confined. It appears that no more precise definition developed because the need for one did not arise. One might reasonably assume that English Protestants were entitled to keep those arms necessary to carrying out the purposes of the right, which included detering oppressive government and assuring that the people would have the tools needed to resist the imposition of tyranny. In the eighteenth century, these political purposes would have been served by the same kinds of weapons that people wanted to possess for other legitimate purposes involving the natural right of self-preservation, (p.14)such as defending oneself and one's family against robbers.

This, in brief, is the right and the theory with which the Framers of the Second Amendment were familiar. Many of them may well have believed that both the right to arms and its individualistic theory had been accepted in England long before 1689. If Professor Malcolm's historical research is reliable, which I have little reason to doubt it is, they were wrong.[33] But, so what? They may well have been misinformed about many aspects of English life and history that might have a bearing on one or another provision of the American Constitution. If anything about English history matters in interpreting the Second Amendment, it is the fact--a fact made virtually indubitable by all that was said about it by those who were responsible for its adoption--that Americans accepted the basic theory set out by Blackstone: that a free citizen's right to arms is founded in the natural right of self-preservation and that an armed populace is an extremely important safeguard against tyranny. If one knew only two things--what Blackstone said and that Blackstone was considered the authoritative expositor of the English constitution--one would know virtually all the English law that is helpful in interpreting the Second Amendment.[34](p.15)

Actually, it is not so clear how necessary even this much English history is in understanding the Second Amendment.[35] James Madison's notes indicate that he consciously departed from the English Bill of Rights when he was drafting the Second Amendment because he believed the English guarantee was inadequate.[36] When he made his initial proposal for a bill of rights to the House of Representatives, Madison said: "In the declaration of rights which [England] has established, the truth is, they have gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite."[37] Thus, the whole idea of the American Bill of Rights was to confine the federal legislature within bounds unknown to Parliament.

Whatever the exact scope of the English right to arms may have been, and whatever its historical foundations were, the Americans who framed the Second Amendment did not set out to replicate it on these shores. The relevance of Blackstone may therefore lie more in his prominence as an expositor of the implications of the natural right of self-defense than in his role as an authority on English law.[38](p.16)

b. the passing away of the english constitutional right

Comparing the British and American rights is useful today primarily because of the divergent paths they took in the twentieth century, rather than because of their common origins in the seventeenth century. In England, the right to arms for self-defense has effectively been abolished.[39] The Blackstonian theories that underlay it have been discarded, and what is now the privilege of owning firearms has been ever more drastically circumscribed. In the United States, however, the Second Amendment remains in the Constitution, gun ownership is widespread and subject to much less regulation than in England, and the old Blackstonian theories are passionately advanced by a numerous and often articulate portion of the population.

How big is this difference, and what difference does it make? The abolition of the constitutional right to arms in England was caused by ordinary political forces much like those that had led to its creation in 1689. The British government became extremely concerned about the possibility of violent civil unrest after World War I, and feared that this might even lead to a Bolshevik revolution. Perhaps assisted by a general moral revulsion brought on by the brutality of the trench warfare in Europe (and an apprehension about the brutalizing effects this experience may have had on the returning soldiers), Parliament enacted legislation forbidding the possession of guns without a license from the police, who were directed to turn down any applicant who was "for any reason unfitted to be trusted with firearms."[40] Although the licenses were granted liberally at first, the police gradually became more grudging in the exercise of their discretion. It is now very (p.17)difficult for ordinary citizens to own rifles and pistols.[41]

Why did the English people acquiesce, without any serious resistance, in the abolition of their traditional right to arms? Even if one assumes, as Professor Malcolm suggests, that Parliament's action in 1920 was a spasmodic response to the threat of Bolshevism, the people's actual access to firearms at first remained largely intact because the police did not withhold the legally required licenses. Only after several decades of gradually more (p.18)aggressive application of official discretion to deny licenses (and the enactment of some additional statutory controls) has the English right to procure the tools of self-defense largely withered away.[42] No one suggests either that the atrophy of what was once thought to be among the most important securities for liberty was resisted by any important segment of public opinion, or that any significant portion of the public now sees any good reason to recover its ancient right.

In 1689, the great object of loathing and fear was the standing army. In the circumstances of those times, an armed populace could serve as a source of manpower for a citizen militia that could deal with legitimate emergencies, thus depriving the Crown of an excuse for keeping large standing armies. An armed populace could also provide a reasonably credible deterrent against a monarch who might be tempted to launch an attack against English liberties or such English institutions as the Protestant religion. A century later, when Americans adopted the Second Amendment, the ability of the citizen militia to obviate the need for a standing army was much more dubious.[43] By the end of World War I, when the English lost their constitutional right to arms as a formal matter, military technique and technology had advanced even further. Had Great Britain sought to rely on the old militia system, her government's ability to protect the population from foreign threats would have been much reduced. England chose not to attempt such a course, and that choice was not obviously foolhardy. Indeed, in retrospect, the events of the 1930s suggest that the greatest threat to English liberties arose from that nation's failure to maintain an adequate military establishment, which is precisely the opposite of the conclusion that one might draw from looking at seventeenth century history alone.(p.19)

The decision to keep up an army, however, necessarily caused the popular right to arms to recede in significance, for a populace equipped with the customary small arms of the time necessarily became a much less credible deterrent to misuse of the government's military establishment than it would have been in 1689, or even in the constitutional heyday of the English right to arms during the eighteenth and nineteenth centuries. It is, I think, an undeniable fact that the right to keep arms simply cannot provide as significant a contribution to the maintenance of political liberty in the twentieth century as it could when military technology and technique were more primitive. Although its remaining significance may justify its retention, developments in the real world have caused the significance of this device to decline, both in absolute terms and in comparison with other safeguards against tyranny.

II. The Second Amendment and the National Guard

Unlike the English, Americans have a written Constitution that guarantees the right of the people to keep and bear arms. And unlike the English, Americans still have their guns. But there is little evidence to suggest that the Second Amendment has had any significant role in preserving the right to arms in our country. That may change in the future, but historical evidence about the right's origins in English history is not likely to contribute much to such a development. To see why, and to set the stage for an analysis that might have some practical effect, let us consider the main elements of the controversies that have arisen about the proper interpretation of the Second Amendment.

To an amazing degree, the literature on this subject has been consumed by a single, narrow question: whether the Second Amendment guarantees an individual right to keep and bear arms or only a collective right of state governments to maintain military establishments like our modern National Guards. As is usually the case when there has been no definitive judicial resolution of a constitutional question, the arguments can be divided into two principal categories: arguments directly from the text of the Constitution and arguments based on historical evidence about how that text was understood by those who framed and adopted it. With respect to the Second Amendment, the evidence in both (p.20)categories overwhelmingly supports the "individual right" interpretation. This is simply not a hard or a close question. Indeed, the textual argument alone is so strong that it is virtually conclusive even without any reinforcing historical evidence. Unfortunately, the wide dissemination of the states' right theory makes it necessary to go through the arguments in some detail in order to clear the way for the more difficult questions that remain.

a. the constitutional text

It is worth emphasizing at the outset that the operative language of the Second Amendment is no more ambiguous or unclear than other provisions of the Bill of Rights. It states with unmistakable clarity that "the right of the people to keep and bear Arms, shall not be infringed."[44] The phrase "the right of the people" is identical to the phrase used in the First Amendment with respect to peaceable assembly and to the phrase used in the Fourth Amendment with respect to unreasonable searches and seizures. All three amendments were framed together, and no one has ever doubted that the First and Fourth Amendments established individual (rather than governmental) rights. Nor has anyone ever explained why the Framers of these three provisions would have used the identical language in a fundamentally different sense in the Second Amendment.[45] The Bill of Rights also clearly demonstrates on its (p.21)face that its framers were not so linguistically impoverished that they needed, or were inclined, to use the word "people" to mean "state governments." The Tenth Amendment proclaims that certain powers are "reserved to the States respectively, or the people,"[46] thus clearly distinguishing between the two.[47] To believe that the word "people" in the Second Amendment refers to the state governments requires one to assume that the Framers of the text were unbelievably sloppy or whimsical in their use of language.[48] If one is going to make assumptions like that, one might just as well go all the way and assume that the Second Amendment uses the word "arms" to mean the upper limbs of the human body.

Unlike the First and Fourth Amendments, the Second Amendment includes a prefatory phrase that sets forth its purpose. It is this prefatory language that has generated--or been used to generate--the confusion that leads to the states' right theory. This confusion, however, cannot survive attention to the unambiguous meaning of the constitutional language.(p.22)

The Second Amendment reads in full: "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."[49] The meaning of the prefatory phrase, and its relation to the operative clause, is not appreciably less clear than the meaning of the operative clause itself. To see why this is true, however, it helps to know one small but crucial bit of linguistic history: the word "militia" was rarely used in the eighteenth century to refer to standing military organizations, and was apparently never so used in legal contexts. Rather, the militia was consistently contrasted with such organizations, as in Article VI of the Articles of Confederation:

The original Constitution employed the same usage, sharply distinguishing the militia from "armies," "land forces," or "troops."[51] Standing military organizations derived from the militia were customarily referred to by such terms as "select militia" and were generally considered perversions of the true militia.[52] when used alone, the term "militia" referred to the (p.23)whole class of citizens potentially subject to military duties, as it still does today in strict legal usage.[53] As the Supreme Court has recognized:

To suppose that the reference to a "militia" in the Second Amendment suggested organizations like our National Guards is simply anachronistic.[55] But even if one succumbs to such an anachronism, one still cannot derive an interpretation of the Second Amendment under which the right to arms is limited to members of the National Guard, for the Amendment simply does not say or imply that the right is so limited.[56]

The prefatory phrase articulates the ultimate purpose of the Second Amendment, namely the "security of a free state," and it names one subsidiary means to that goal, to wit a "well regulated militia." The Amendment does not say or imply that either a well regulated militia or a populace that has been protected from disarmament is all that is necessary for the security of a free state. Nor does the Amendment say or imply that a populace protected from disarmament is all that is necessary to ensure a well regulated militia. In fact, of course, the Second Amendment does not specify any regulations for the militia at all. That is certainly not (p.25)surprising, for Article I of the Constitution had already set forth a comprehensive statement allocating responsibility for regulating the militia.

How then can the operative language of the Amendment have any relation at all to the purposes set out in the prefatory phrase? Though apparently overlooked by all the courts and commentators that have interpreted the Second Amendment, the answer is completely obvious as soon as one thinks of it. A well regulated militia is, among other things, one that is not overly regulated or inappropriately regulated. The Second Amendment simply forbids one form of inappropriate regulation: disarming the people from whom the militia must necessarily be drawn.

In order to see why this is a completely obvious construction--and in fact the only reasonable construction--of the relation between the prefatory and operative clauses of the Second Amendment, it may be helpful to imagine for a moment that the Constitution contained the following provision:

This would leave the government with the power to impose all kinds of regulations on the markets: disclosure requirements, bans on insider trading, registration requirements for securities dealers, and so forth. But the one thing the government could not do would be to impose price controls on securities. The Second Amendment is strictly analogous. There are all kinds of things the federal government can do to regulate the militia, such as requiring everyone to own a military carbine or requiring everyone to undergo military training. The federal government can also go in the other direction, for it effectively has the power to abolish the militia as a meaningful alternative to the standing army.[57] In fact, the federal government has done exactly that through the National Guard system, which requires those who enlist in it to (p.26)join both their state organization and the federal standing army.[58] But the one thing the government is forbidden to do is infringe the right of the people, who are the source of the militia's members, to keep and bear arms.

Thus, the operative language of the Second Amendment unambiguously establishes an individual right to keep and bear arms, and nothing in the prefatory language of the Amendment compels or implies the notion that the operative language establishes a right belonging to the state governments.[59] But that is not the only reason for rejecting the states' right interpretation. That interpretation is also affirmatively absurd.

The states' right interpretation implies that the right to keep and bear arms applies only to those members of the militia who are organized into military units by their state governments. Apart from the fact that there is no reason to suppose that the word "militia" was used in this narrow sense by those who framed the Second Amendment, the states' right interpretation would seem to imply that the word "people" actually refers to the "militia," so that the text should read: "A well regulated militia being necessary to the security of a free State, the right of the militia to keep and bear arms shall not be infringed."[60] But why would the draftsmen have (p.27)used two different words, within the space of one short sentence, to refer to the same entity? If this bald rewriting of the text is rejected, as it obviously must be, the states' right interpretation can only be saved by interpreting "the people" to mean "The state governments." This is equally absurd, however, because governments cannot bear arms. While a government might be thought capable of keeping arms, only an individual can bear them.[61] And if this were not proof enough, the states' right interpretation's assumption that the Second Amendment protects state military organizations from federal interference is flatly inconsistent with Article I's prohibition against the states keeping troops without the consent of Congress.[62] Can anyone honestly believe that this provision of the original Constitution was repealed by the Second Amendment?(p.28)

Thus, no matter which way one turns the argument, the states' right interpretation dissolves into nonsense when one tries to square it with the constitutional language.[63] In addition to the manifest irreconcilability of the states' right interpretation with the language of the Constitution, the purpose attributed to the Second Amendment by the states' right interpretation has implications that are so radical that they simply could not have gone unnoticed or unremarked upon during the process of framing and ratifying the Amendment. That purpose, we are apparently expected to believe, was to prevent the federal government, through hostility or apathy, from eliminating the state military organizations that served as a counterweight to the power of federal standing armies.[64] But this must imply that the Second Amendment silently repealed or amended the provision of Article I of the Constitution that gives the federal government plenary authority to organize, arm, and discipline the militia, subject only to the states' rights to appoint the militia's officers and to train the militia according to the congressionally prescribed discipline.[65] This provision of Article I has allowed the federal government to virtually eliminate the state militias as independent military forces by turning them into adjuncts of the federal army through the (p.29)National Guard system.[66] This transformation, which is not forbidden by the language of either Article I or the Second Amendment, is manifestly inconsistent with the purpose attributed to the Second Amendment by the states' right theory. Thus, that theory implies that our modern National Guard system must be unconstitutional.[67] Similarly, the states' right interpretation would seem to imply that state gun regulations preempt those of the federal government. Thus, for example, if a state decided to regulate its militia by requiring or authorizing all of its adult citizens to arm themselves with fully automatic battle carbines, such legislation would have to override the current federal restrictions on such weapons. Indeed, if one truly took the purpose attributed to the Second Amendment by the states' right theory seriously, it might well follow that all federal gun control regulations are invalid because control over the private possession of arms lies exclusively in the state governments.[68](p.30)

b. legislative history

Given the strength of the textual argument, it should come as no surprise that the historical evidence concerning the understanding of the text at the time it was framed and adopted confirms that the Second Amendment was meant to establish an individual right to keep and bear arms. The threat against which the Second Amendment was primarily (though not exclusively) directed was that the federal government might use military power to oppress the people. This threat was created by the original Constitution, which put virtually no formal limit on the new government's ability to raise and maintain armies.[69] The Framers of the Constitution judged that threat tolerable because they believed the militia system was simply inadequate for the defense of the nation. Once that decision was made, the Framers had to decide how best to reduce the threats to liberty that were inevitably created by the federal government's unlimited power to maintain a standing army. The obvious solution was to maintain a strong militia, thereby taking away the federal government's excuse for keeping large armies during peacetime.

How could the Constitution ensure the maintenance of a strong militia? If control over the militia were left in the states, the resulting lack of uniformity in training and equipment would ensure that it could never be a really effective fighting force. But if control of the militia were lodged in the federal government, the trained militia could become little more than an instrument of federal policy, hardly distinguishable from a standing federal army. This, of course, is exactly what our modern National Guard has become. Or the militia could be allowed by the federal government to fall into desuetude, deprived of training and discipline, so that it would be unable to act effectively when it was most needed for the defense of liberty. This is precisely what has in fact happened to the portion of the modern militia that is outside the National (p.31)Guard system. The Constitution comes down firmly in favor of federal control, for it leaves with the states only the appointment of militia officers and the responsibility for training the militia according to federal rules.[70] This decision was deliberately taken by the Convention in the hope that the federal government's ability to maintain an effective militia system would take away the excuse for large peacetime armies.[71] But it must have been clear to Madison and the others who favored this approach that it was based rather more on hope than on legally effective constraints.

The fact is that there was no way out of the conundrum that the Convention faced. Requiring the federal government to rely exclusively on the militia for the defense of the nation would have imperiled the national security because militia units could not be expected to provide a match for regular troops. But allowing the federal government the necessary discretion to maintain an effective force for the defense of the nation inexorably created the risk that this force would be used to oppress the citizens and attack their liberties. The Second Amendment is primarily an attempt to ameliorate the unhappy consequences of this insoluble dilemma. If it was impossible to prevent the federal government from substituting a standing army for the militia, or from transforming the militia into something very like a standing army, it was at least possible to prevent the federal government from disarming the populace from which the militia is drawn. An armed populace--even if it could not serve to deter tyranny as effectively as a legal prohibition against federal standing armies--would still constitute a highly significant obstacle to the most serious kinds of governmental oppression.[72](p.32)

All of the historical evidence about the intent of those responsible for the adoption of the Second Amendment is consistent with this account.[73] The animating purpose of the provision was to establish a bulwark against political oppression by the federal government, and the means chosen was a prohibition against the federal (p.33)government's disarming individual citizens.[74] There is nothing surprising about this, for the Americans had recent experience with conditions that required near universal arming of the citizenry, even beyond those citizens who were subject to militia duty.[75] Ideally, an armed populace should be organized into a well regulated militia, and the prefatory clause of the Second Amendment reflects this hope.[76] The Second Amendment, however, was (p.34)intended to ensure that even if the government neglected or perverted the militia, it could not go even further in eliminating obstacles to tyranny by disarming the people from whom the militia must be drawn.

A skeptical reader--even one who feels compelled to acknowledge that the prefatory language of the Second Amendment does not alter or qualify its prohibition against infringing the individual's right to keep and bear arms--is entitled to object that there is still something a little mysterious and troubling about that prefatory language. This uneasiness is justified, for the argument I have provided does not yet offer an intellectually satisfying account of the Amendment read as a whole. It is quite fair to ask why Madison's initial draft of a bill of rights would have included a prefatory statement of purpose only in the provision dealing with the right to arms, and why that distinctive feature would have been preserved through successive drafts and included in the final version that was proposed by Congress to the states.[77](p.35)

Fortunately, there is a fully satisfying explanation, which emerges from the political situation that Madison faced when he set about drafting his bill of rights. Among those demanding a bill of rights, there were two somewhat different camps. On one side were those with relatively liberal views, like Thomas Jefferson and Samuel Adams, who focused on the importance of protecting individual citizens from being disarmed.[78] The liberal view was easy to satisfy since there was apparently no one at all who advocated allowing such a power to the federal government, and this utterly noncontroversial sentiment is reflected in the operative clause of the Second Amendment. A somewhat greater challenge was presented by the more traditional republicans, like George Mason and Richard Henry Lee, whose principal concern was to ensure that the federal government not undermine the militia by causing it to decay.[79] The insoluble conundrum that the Convention faced when it drafted the Militia Clauses ensured that this group could not be fully satisfied without endangering the new government's ability to protect the national security. The prefatory language of the Second Amendment conveys a rhetorical respect for the views of this second group, but without giving legal effect to their preference for a militia over standing armies. And lest there be any doubt about the fact--a fact unambiguously reflected in the constitutional language--that the more liberal, individual-right position was to be fully satisfied, the Senate rejected a proposal to qualify the individual right by adding the words "for the common defense" to the Second Amendment.[80](p.36)

This political analysis is illuminated and confirmed by specific events that occurred at the Constitutional Convention.[81] Near the end of the Convention, several delegates expressed qualms about the distribution of military power among the state and federal governments. George Mason proposed that the clause giving the federal government authority to provide for organizing, arming, and disciplining the militia be prefaced with the following words: "And that the liberties of the people may be better secured against the danger of standing armies in time of peace...."[82] James Madison himself spoke in favor of this proposal, arguing that the proposed addition would not actually restrict the new government's authority over the militia, but would constitute a healthy expression of disapproval for the keeping of armies.[83] The only recorded objection, which was voiced initially by Gouveneur Morris, was that this language set "a dishonorable mark of distinction on the military class of Citizen."[84] Whether because of this objection or some other, Mason's motion failed. When one reads the Second Amendment with this history in mind, it is immediately apparent that Madison neatly succeeded in accomplishing what he had seen as the virtue of Mason's suggestion at the Convention, while avoiding the problem that Gouveneur Morris had pointed out. Professor Malcolm puts it well: "A strong statement of preference for a militia must have seemed more tactful than an expression of distrust of the army."[85]

This history makes it plain how the Second Amendment's operative language both contributed to the likelihood of the federal government's maintaining the kind of militia that the Framers (p.37)thought best and provided an outer limit to the federal government's ability to regulate the militia in ways the Framers thought worst. To see how perfectly well-adapted the language of the Second Amendment is to this aim, imagine that the original Constitution did not include the Patent and Copyright Clause.[86] Then imagine that the following constitutional amendment was adopted:

It would be perfectly clear from this text that its draftsmen hoped to promote the production of intellectual goods by encouraging trade in such goods. It would be equally clear that the means chosen to reach this goal was the constitutional protection of specified property rights in intellectual goods. Now suppose that Congress subsequently used its powers under the Commerce Clause[87] to erect substantial barriers to foreign and interstate trade in intellectual property. Under these circumstances, the draftsmen's hopes would not be fully realized. But this fact would in no way prevent the operative language of the amendment from making some contribution to preventing inappropriate commercial regulations. Nor would it prevent the operative language from making a significant contribution to the progress of the arts and sciences. Still less would the congressionally created trade barriers provide any reason for "interpreting" the amendment to protect only a collective or states' right to freedom from federal elimination of intrastate commerce in intellectual property. Least of all, perhaps, would either the congressionally created trade barriers or any expressions of a preference for free trade by the framers of the (p.38)amendment, or both together, provide a reason for denying that the operative language of the amendment protects individual property rights.

As William Van Alstyne has observed: "Perhaps no provision in the Constitution causes [the modern reader] to stumble quite so much on a first reading, or second, or third reading, as the short provision in the Second Amendment...."[88] The clumsiness of the modern reader, however, can be cured if one simply uses standard interpretive tools and avoids imposing anachronistic prejudices on the text.[89] The historical evidence about the original understanding of the Second Amendment merely confirms what the text says, and helps us to understand more completely why the text says what it says.

Although the contribution made by the historical evidence should not be overstated, it is significant that the evidence is completely consistent with the individual-right language in the Amendment itself. Indeed, it appears that every known piece of evidence confirms that the Second Amendment was intended to do exactly what its plain words say it does: secure an individual right to keep and bear arms.[90] So far as I know, advocates of the states' right (p.39)theory have never produced one single shred of evidence that anyone involved with the Second Amendment's adoption said that it established a right belonging to the state governments. Surely, this failure to produce any historical support is simply fatal to a theory that requires turning the constitutional text itself on its head.

c. the supreme court and the legislative history

Given the overpowering strength of the arguments in favor of the individual-right interpretation, it should come as no surprise that the Supreme Court has never rejected it. In fact, the Court implicitly accepted it in the opinion that comes closest to addressing the issue. Until the twentieth century, the federal government did not regulate firearms, the Bill of Rights had not yet been applied to the states, and the Court only occasionally mentioned the Second Amendment.[91] During Prohibition, however, certain weapons came to be associated with gangsters. Congress responded with the National Firearms Act of 1934, which required the registration of specified firearms such as short-barreled shotguns and machine guns. In United States v. Miller,[92] the Supreme Court reviewed a federal trial court's dismissal of an indictment against two individuals charged with transporting an unregistered short-barreled shotgun across state lines. This case represents the (p.40)Supreme Court's only attempt to interpret the Second Amendment.[93]

The Supreme Court rejected the trial court's conclusion that the prohibition on transporting an unregistered shotgun across state lines violated the Second Amendment. Reasoning that the "obvious purpose" of the Amendment was to "assure the continuation and render possible the effectiveness" of the militia, the Court noted that the defendants had not proved that a short-barreled shotgun "at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia ...."[94] The Court's notion of a "well regulated militia" becomes apparent in the next sentence, which reads: "Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."[95]

Although the Supreme Court's decision is based, as we shall see, on an untenable assumption about the purpose of the Second Amendment, it does clearly acknowledge that Second Amendment rights belong to individuals, not state governments. Had the Court accepted the states' right theory, it would have simply asked whether the defendants were members of the National Guard or otherwise authorized by a state militia law to possess a shotgun with a short barrel. The fact that the Court decided the case by reference to the nature of the weapon involved, without even raising a question about the defendants' military status under state law, implies that the Second Amendment establishes an individual right that can be asserted without reliance on state militia statutes.[96](p.41)

This does not necessarily mean that the Court will never accept the intellectually untenable "states' right" or "National Guard" interpretation. Even if the Supreme Court reaffirms the obvious truth that the Second Amendment guarantees an individual rather than a states' right, however, the Court could still interpret the right so narrowly as to leave it with little practical significance. To see why, we must now turn to the much more difficult questions that remain unanswered once one acknowledges that the Second Amendment establishes an individual right to keep and bear arms.

III. The Changing Role of the Second Amendment

a. subsequent technological developments

The first, and perhaps most obvious, set of questions that remain concerns the type of arms that citizens have a right to keep and bear under the Second Amendment. Does it, for example, cover every device that could be useful in defending oneself against those who might threaten one's life, including the government? If so, those who can afford to purchase nuclear weapons, tanks, artillery, and other modern instruments of armed combat must be allowed to exercise their liberty. One might answer this reductio ad absurdum by arguing that the Framers of the Second Amendment did not mean to include heavy ordnance (or other military devices (p.42)that an individual citizen could not "bear") within the meaning of the term "arms" as used in the Second Amendment.[97] Assuming the validity of this argument, a wide array of very potent destructive devices would seem to remain within the constitutional ambit: fully automatic carbines (i.e. "assault rifles"), hand-held antiaircraft weapons (like the Stinger missiles that proved so important for the Afghans' resistance to the Soviets), portable rocket launchers like those used by infantry against tanks, land mines, flamethrowers, mortars, and maybe even some chemical and biological weapons.

The experience of the Framers--who lived before the invention of small devices with such enormous destructive power--did not require them to make fine distinctions, or any distinctions at all, about the kinds of portable weapons that would be suitable for civilians to keep in their possession. It is a little more surprising that the Miller Court, writing in 1939, could have been so insensitive to this change of circumstances. Even at that time, however, the bolt-action rifles and semi-automatic pistols customarily carried by the infantry were scarcely distinguishable from the arms commonly used by civilians for recreational hunting and self-defense.[98] Miller clearly indicates that weapons must have a military application in order to come within the protection of the Second Amendment, and it strongly suggests that such application is sufficient to bring them within the guarantee: "Certainly it is not within judicial notice that this weapon [a short barreled shotgun] is any part of the ordinary military equipment or that its use could contribute to the common defense."[99] What more (p.43)obviously has a military application than the standard tools of the modern infantryman, such as battle carbines capable of fully automatic fire, mortars, and grenades?[100]

Miller's undefended assumption about the purpose of the Second Amendment is incorrect. Analytically, there are three possible ways that the right of individual citizens to keep and bear arms could contribute to the "security of a free state": by creating a ready source of armed men for military service; by curbing the tyrannical impulses of government; and by reducing the threat of criminal violence. The Miller Court apparently assumed--without any analysis of the constitutional text or any indication that the matter had been given the slightest thought--that the first of these three alternatives is the sole purpose of the constitutional right to arms.[101] In fact, however, this is the one alternative that cannot (p.44)be the purpose of the Second Amendment. Article I of the original Constitution already provided authority for Congress to take whatever steps it thought necessary to ensure that there would be an armed body of men ready for military service at any time. Under this authority, Congress could require all potential recruits to arm themselves with standard military weapons at their own expense and to undergo military training to ensure that they would be ready to serve.[102] Thus, the Second Amendment adds absolutely nothing to Congress's pre-existing authority to ensure the "preservation and efficiency" of the militia. Nor, as we have seen, can the Second Amendment be interpreted to subtract from Congress's pre-existing authority by shifting some of it to the state governments. Thus, the Miller Court was wrong to assume that the purpose of the Second Amendment is to prepare citizens to serve in the government's armies.

I predict without reservation that the Supreme Court will not follow Miller's logic. I make this prediction not solely or even primarily because Miller's assumption about the purpose of the Second Amendment is demonstrably wrong, but rather because the consequences of Miller's logic will be highly unappealing to the Justices as a policy matter. The Supreme Court is simply not going to tell the federal government that it is powerless to interfere with the citizenry's access to all the weapons (or even most of them) that modern soldiers customarily carry into baffle. The Court's refusal to do this will be quite reasonable, just as the reason of the thing would prohibit limitations of the Second Amendment's protection to the black powder muskets and pistols that the Framers were thinking about in the eighteenth century. Technological progress has raised new questions that the Court will not be able to answer by looking only at the Constitution's text and history. If a meaningful Second Amendment right is ever recognized by the Court, it will have to be based on a theory that is consistent with the Constitution's text and history, but that also yields answers to questions about which the text and history are silent or ambiguous.(p.45)

The need for such a theory is illustrated by the unsuccessful efforts that two leading Second Amendment commentators have made to derive a rule of decision from the Constitution itself. Don B. Kates, Jr. has argued that the Second Amendment covers only those arms that are "suitable" to all of the self-defense functions that citizens would have exercised in the eighteenth century (individual self-defense, military operations, and law enforcement), thus excluding "specialized military weaponry" as well as guns that are not "standard police or military weapons."[103] This proposed rule, which is not dictated by the language or history of the Second Amendment, seems to imply that the only guns protected by the Second Amendment today are the kind of pistols issued to most soldiers and police officers. Mr. Kates's rule, moreover, would apparently cause the constitutional right to arms to evaporate completely if the government decreed (for technical or political reasons) that the police and military would henceforth use only specialized military and police weaponry. This cannot be. The proposed test, moreover, is analytically imprecise because most guns can be used for all three purposes (and in that sense are "suitable" for each) even though the degree of a particular weapon's suitability may vary from one context to another.[104]

A somewhat different rule has been suggested by Stephen P. Halbrook, who contends that "dangerous and unusual" weapons (such as grenades, bombs, and bazookas) are not covered by the Second Amendment, apparently because they tend to wreak indiscriminate destruction on the innocent and the guilty alike.[105] This argument seems to assume that no citizen would ever be (p.46)attacked by someone who was protected by armor. The argument also seems to assume that aggressors are always surrounded by innocent people who would be endangered by the use of devices like grenades or bazookas. Both assumptions would likely prove false in the very circumstances that most immediately concerned the Framers of the Second Amendment: attempts at political oppression by the government. The distinction between "dangerous and unusual" weapons and those that are "safe and common," moreover, is quite fuzzy.[106] Any firearm can endanger innocent people if used carelessly or if used in inappropriate circumstances. Even if we hope that occasions for the responsible use of grenades and bazookas will be rare or nonexistent, as we surely do, those occasions may be among the most significant in serving the purpose that was foremost in the minds of those who gave us the Second Amendment.

Whatever one thinks of the legal rules proposed by Messrs. Kates and Halbrook as a policy matter, neither of them can be derived from the language or history of the Second Amendment. Nor, to be sure, does the Constitution itself offer us an alternative bright-line rule. If and when the Supreme Court begins facing the difficult question that Kates and Halbrook are addressing, it will have to look beyond the text and history of the Constitution.

b. fourteenth amendment incorporation

Questions like those just raised about the scope of the Second Amendment are made especially pressing by the issue of its application to state gun control laws. The Second Amendment, like the other guarantees of individual liberty in the Bill of Rights, at first acted only as a restriction on the federal government.[107] (p.47)There was little need for the Framers to be concerned about the details of the inevitable tradeoffs between individual freedom and public safety because the Constitution left the states free to balance those competing goals in whatever ways they thought fit. Every state was left free by the federal Bill of Rights to establish an official religion, to require a government license in order to publish a newspaper, to abolish the right of trial by jury, to take private property without just compensation, and to deprive citizens of life, liberty, or property without due process of law. Similarly, the states were left free to regulate the private possession of weapons in whatever way seemed appropriate to them. The Framers could therefore have reasonably expected that new issues, like those raised by technological developments in weaponry, could and would be addressed by the state governments as they arose. So long as the states were left with their virtually unbounded regulatory powers, moreover, there would be little danger to public order arising from strict (i.e., faithful) interpretations of the Constitution's efforts to disable the central government. If something really needed to be done to prevent disorders arising from an excess of liberty, and if the Bill of Rights forbade Washington to do it, the states could take care of the problem.[108]

That state of affairs has now been drastically altered. When the Supreme Court began invoking the Due Process Clause of the Fourteenth Amendment to apply provisions of the Bill of Rights against state governments, it was compelled to begin deciding a wide range of questions that had not arisen earlier, and that might never have arisen but for this process of "incorporation." Even after the enormous transfer of responsibility to the central government beginning in the 1930s, it is still the states that engage in most of the regulatory actions that tend to generate hard questions (p.48)under the Bill of Rights. The effect has been profound: when the Supreme Court interprets a provision of the Bill of Rights in a way that leads to a dangerous curtailment of government power, there is no longer a safety valve in the system, for the Court's decision disables the states as well as the federal government. The direct result is that the Court has increasingly, and almost necessarily, begun to act more like a legislative body than like a court of law interpreting the written commands of the sovereign. Because its decisions about the limits of government power apply to the federal and state governments alike, the Court now engages in an endless process of adjusting and readjusting the permissible bounds of liberty in a variety of sensitive contexts.

When engaged in this process, which takes place under the aegis of substantive due process as well as under the Bill of Rights, the Court has sometimes offered openly political judgments in support of its decisions, along with considerable sensitivity to public opinion.[109] More commonly, the Court has engaged in a manifestly policy-driven balancing of costs and benefits that has often become rather detached from either the text or history of the constitutional provision that is invoked to justify the results.[110] If the Court comes to be dominated by judges committed to a more (p.49)restrained judicial role than those who have taken the lead during the past few decades, these phenomena may diminish somewhat. Unless Fourteenth Amendment incorporation is discarded, however, and the Bill of Rights again taken only as a set of restraints on the federal government, the underlying task of balancing individual liberty against public safety will continue to be performed by the Court, though perhaps a little less flamboyantly. And no provision of the Bill of Rights more obviously requires a balancing of these interests than the Second Amendment.

Before the Court faces the necessity of undertaking this balancing process, however, it will have to decide that the Second Amendment does apply to the states. In the years since the incorporation process began, the Supreme Court has refused, without explanation, to address the issue of Second Amendment incorporation.[111] In this respect, the Second Amendment is unique.[112] It would not be hard to read a certain hostility or contempt for the Second Amendment into the Court's neglect, but that interpretation is not absolutely compelled by the Court's behavior.[113] As a legal matter, the incorporation issue remains (p.50)completely open, and the Court has said nothing that would prevent its giving that issue the same serious attention it has bestowed on other provisions of the Bill of Rights.

Assuming that the Court will eventually take up the issue, should the Second Amendment be applied against the states? If the Court has the slightest regard for doctrinal consistency, it will have no choice except to incorporate the Second Amendment. It is true that the approach taken in prior incorporation cases has been so vague and variable that one could not safely make any predictions one way or the other.[114] But unless the Court radically revises its stated principles, it will not be able to avoid incorporation.

To see why, consider those principles. Surprisingly, the meaning or intent of those who adopted the Fourteenth Amendment appears to be irrelevant.[115] The only provision of the Fourteenth Amendment (p.51)that might have been intended to accomplish something like incorporation is the Privileges or Immunities Clause. But the Court indicated early on that it saw in this clause only one purpose: to stop the states from discriminating against black citizens.[116] Decades later, when the Court decided to apply the First Amendment against the states, it ignored the Privileges or Immunities Clause and invoked the Due Process Clause instead.[117] This provision of the Fourteenth Amendment, of course, is utterly incapable of providing any guidance for the simple reason that it says nothing at all about the substantive provisions of the Bill of (p.52)Rights.[118] This might not have rendered the intent of the Fourteenth Amendment's Framers completely irrelevant if the Court had concluded from the legislative history that they meant to incorporate the Bill of Rights en bloc against the states. The Court, however, has never accepted this contention.[119] Rather than investigate the intentions of those who adopted the Fourteenth Amendment, the Court has asked whether particular provisions of the Bill of Rights are "fundamental" in the sense that they are entailed in a "scheme of ordered liberty."

This legal test was set forth in Palko v. Connecticut,[120] where the Court said that the test for incorporation is whether a particular immunity is "implicit in the concept of ordered liberty,"[121] meaning that the immunity must be "of the very essence of a scheme of ordered liberty."[122] As an example, the Court offered the First Amendment: freedom of thought and speech, said the Court, "is the matrix, the indispensable condition, of nearly every other form of freedom."[123](p.53)

Eventually, the Palko test came to be too constraining for a Court that wanted to forbid the states from doing a variety of things that anyone could easily see are not part of the "very essence" of ordered liberty. In Duncan v. Louisiana,[124] the Court expressly jettisoned Palko's insistence that a right be essential to ordered liberty, and replaced it with a requirement that the right be "necessary to an Anglo-American regime of ordered liberty."[125] This alteration of the standard was articulated in the realm of criminal procedure, but the Court did not suggest that some different standard would apply elsewhere. Thus, Duncan did not exactly abandon the "ordered liberty" test, but merely confirmed that the Court had broadened its view to include all those components of the Bill of Rights that had traditionally been regarded as fundamental in the peculiar context of Anglo-American civilization.

Even under the more stringent Palko test, the text of the Constitution itself demands the incorporation of the Second Amendment. The Second Amendment, unlike any other provision of the Bill of Rights, includes a prefatory phrase expressing its sense of the fundamental importance of the Amendment. Moreover, that phrase contains language whose meaning is virtually identical to that of the language in the Supreme Court's incorporation test: the Supreme Court's reference to those rights that are entailed in a "scheme of ordered liberty" is nothing but a slightly reworded version of the Second Amendment's reference to what is "necessary to the security of a free State." It is as though the Court had taken its legal test for incorporation from the Second Amendment itself, and this stunning similarity gives the right to arms a much stronger textual claim to being "fundamental" in the Court's stated sense of the term than any other provision of the Bill of Rights.[126]

The case for incorporating the Second Amendment is made even stronger by Duncan's revision of the Palko test. It might well be (p.54)possible to conceive of a scheme of ordered liberty that did not include the right to keep and bear arms, and thus to argue that the Second Amendment need not be incorporated under Palko.[127] After Duncan, however, the question is whether the history of a right in England and America demonstrates that it has a fundamental place in our scheme of ordered liberty.[128] The right to arms meets this test under any honest reading of the text. Like the right to a jury trial in criminal cases, which was at issue in Duncan itself, "[i]ts preservation and proper operation as a protection against arbitrary rule were among the major objectives of the revolutionary settlement which was expressed in the Declaration and Bill of Rights of 1689."[129] And, like the right to jury trial, the right to arms "came to America with English colonists, and received strong support from them."[130] When the Second Amendment was adopted, almost half the states with bills of rights included provisions protecting the right to arms,[131] and no state had laws infringing that right. Even today, forty-three states have constitutional provisions expressly protecting a right to (p.55)arms,[132] and no jurisdiction has attempted to ban guns completely. The right protected by the Second Amendment meets the Court's test of what is "fundamental" far more easily than other rights that have already been incorporated, some of which were never even included in the fundamental documents of the English constitution.[133] Unless we have a thimblerig for a Supreme Court, the incorporation of the Second Amendment must inevitably occur.

The right to keep and bear arms is also "fundamental" in the sense that it is worth protecting today. This is the proposition perhaps most in need of being established, for it is hard to believe that the Supreme Court will submit to even the most compelling legal arguments unless the Justices also believe that the law they are enforcing is socially salutary. It is true that the military requirements of a modern great power have made it impractical for us to substitute the militia for a standing army. It is also true that developments in the technology of small weaponry have made it much more dangerous than it once was for civilians to have access to all the weapons they would commonly be expected to use during military operations. But, as the next section of this article will show, it is not true that a citizenry armed with conventional weapons such as rifles, shotguns, and pistols is incapable of deterring governmental misconduct. It is even more emphatically not true that the Second Amendment's contribution to the underlying fundamental right of self-defense has been eliminated by technological or societal changes since the eighteenth century. On the contrary, our modern governments have proved no more able or willing to protect law-abiding citizens from criminal predators than their predecessors were. That enduring fact provides the seed from which an intellectually serious Second Amendment jurisprudence might grow.(p.56)

IV. A Future for the Second Amendment

Should the Supreme Court ever focus seriously and honestly on the Second Amendment, and on whether it should be incorporated against the states, it will need to confront the analytically undeniable fact that an armed populace does create a deterrent to government oppression, even in a world where such an unorganized militia would have no hope of defeating the government's military establishment in battle. The mere existence of a large stock of arms in private hands inevitably raises the expected costs of governmental repression, and thereby makes it less likely to occur. This insight emphatically does not depend on the assumption that the federal government must be kept militarily inferior to the unorganized militia.[134] On the contrary, it requires only a recognition of the simple fact that decisions about the use of military force are rationally determined, not by the feasibility or even the probability of ultimate success but rather by the ratio of an operation's expected benefits and expected costs (with the magnitude of the prospective costs and benefits discounted by the probability of their being incurred and attained respectively). Anyone who doubts that proposition should spend a moment trying to figure out why the United States lost the Vietnam War and why the Soviets failed to subdue Afghanistan.[135](p.57)

Anyone who thinks the anti-tyranny function of the Second Amendment is completely irrelevant today should also spend some time considering the historical experience of black Americans. At least until quite recently, one of the chief purposes of many gun control laws was to help secure the political subordination of the black population.[136] That goal was successfully achieved for a long time, but it might not have been so easy if blacks had enjoyed the same right of access to firearms that the white population conferred on itself. That, at any rate, is certainly what Chief Justice Taney thought when he wrote, in the Dred Scott case, that one of the reasons free blacks could not possibly be citizens of the United States was that such citizenship would give them "full liberty ... to keep and carry arms wherever they went."[137]

It is certainly true that the Second Amendment can no longer contribute as much as it once might have to its most obvious original purpose--diminishing the threat to liberty posed by large standing armies. But because the possibility of having to accept even minor casualties can influence the government's decisions about the use of its awesomely powerful military and paramilitary forces, an armed populace can and does continue to create some (p.58)deterrent against the threat of oppressive government. If that were all it did, however, the Supreme Court might well treat the Second Amendment as a useless relic, perhaps by concluding that the kinds of gun control laws that are popular today increase public safety more than they diminish the people's ability to deter the imposition of tyranny. And if legislatures were to continue to impose increasingly draconian restrictions on the private possession of firearms, one can easily imagine the Court acquiescing again and again in the gradual disarmament of the people, until its by-then well settled jurisprudence had completely emptied the Second Amendment of any meaning at all.

If the Supreme Court avoids this mistake, it will not be simply in response to the impressive efforts that modern scholars have made to prove that the Framers of the Second Amendment believed an armed citizenry was a good thing and meant to establish an individual right to be armed in the Constitution. Rather, the Court would have to understand why judicial enforcement of the Second Amendment is required by principles that the Court itself espouses, and especially why enforcement of this provision of the Constitution has a real contribution to make in preserving the American scheme of ordered liberty.

This understanding of the right to arms requires a kind of support that is very different from the legal arguments that dominate the academic literature. Once one accepts the initial principle established earlier in this article--that the Second Amendment protects individual rather than states' rights--two main propositions need to be established. First, that the original purpose of the Second Amendment was not confined to discouraging political oppression. Second, that its broader purpose can be served by protecting the individual right to arms even under modern conditions. When one looks at modern gun control laws in light of these principles, it becomes apparent that we should have serious doubts about many statutes that are usually thought to be constitutionally unexceptionable. If the Supreme Court acknowledges these doubts, it will be natural, and quite feasible, to develop a coherent and principled jurisprudence based on constitutional doctrines developed under other provisions of the Bill of Rights.(p.59)

a. the purposes of the second amendment include personal security

The first element of the argument supporting vigorous enforcement of the Second Amendment--that its purpose is not exhausted by its anti-tyranny function--can be established by two related kinds of evidence. First, those responsible for the adoption of the Second Amendment generally accepted the individual right of self-defense as the natural basis for the right to arms.[138] Like Blackstone, and no doubt heavily influenced by him and other natural rights theorists, the people who gave us the Second Amendment drew no fundamental distinction between an individual's right to defend himself against a robber or a marauding Indian and that same individual's right to band together with others in a state-regulated militia.[139] The inseparability of these concepts was (p.60)reflected in two early state constitutions, which provided: "That the people have a right to bear arms for the defence of themselves and the state ...."[140] The breadth of the purpose of the right to arms was also apparent in the very first proposal for a bill of rights, which came from an Anti-Federalist minority at the Pennsylvania ratifying convention. The right to arms provision in this proposal reads:

The Pennsylvania minority report became an influential Anti-Federalist document, and it appears to have reflected typical republican concerns.[142] Virtually every proposal for a bill of rights included a right to arms (which appeared with twice the frequency of demands for protecting the freedom of speech), while language praising the militia was adopted only in Virginia and two states that held conventions after Virginia.[143]

Second, the eighteenth century militia did not serve merely as a military force in the modern sense. One of the militia's functions in eighteenth century America was to serve as an informal police force in a society that did not have organized government agencies designed to apprehend criminals. More important, the armed defense of oneself and one's family against criminals was regarded as a legitimate and necessary defense of the community itself, in much the same way that private prosecutors were expected to help enforce criminal laws.[144]

The development of modern police forces has not eliminated this function. Although we seldom call out the traditional militia to keep the peace any more, this practice has in fact survived into modern times.[145] More important, the police do not and cannot (p.62)protect law-abiding citizens from criminal violence.[146] The impotence of our governments in the face of criminal violence is so obvious that it is simply preposterous to maintain that those individuals with the means and the will to arm themselves are not thereby enhancing their ability to exercise their natural right of self-defense. This thought may not occur to wealthy people who can shelter themselves in low-crime enclaves and who care not at all about their less fortunate neighbors. But no one knows it better than the police, who scrupulously preserve their own right to carry firearms on and off duty (and often after they retire as well) even (p.63)while some of them advocate disarming those whom the police cannot protect.[147]

b. enforcing the second amendment can enhance personal security

What is less obvious, but no less important, is that violent crime is not reduced by civilian disarmament laws. The founder of modern criminology, Cesare Beccaria, offered the essential insight that explains this phenomenon over two centuries ago:

Thousands of experiments with firearms restrictions in American states and localities over a long period of time have now provided a rich source of empirical evidence against which Beccaria's conclusion can be tested. When evaluated using the standard tools of quantitative social science, this evidence does not indicate that American gun control laws restricting the availability of firearms to the general population reduce violent crime.

This fact deserves the utmost emphasis, although it is not practicable to attempt a detailed summary of the empirical studies here.[149] The conclusions of these studies should not be surprising, for they can only seem counterintuitive to those who fall into the fallacy identified by Beccaria, of wishing to "take fire from men because it burns, and water because one may drown in it."[150] Firearms can be used for both illegitimate purposes and for legitimate purposes. Restrictions on civilian access to firearms cannot even claim to make any sense unless they can plausibly be expected to reduce illegitimate violence more than they reduce (p.65)legitimate acts of self-defense and law enforcement.[151] Illegitimate violence comes about in three main ways: (1) an individual procures a gun in order to use it in crime; (2) an individual procures a gun for legitimate purposes, but ends up misusing it spontaneously; and (3) a gun obtained for legitimate purposes kills or injures someone through an accident.

The problem associated with the first category is extremely unlikely to be ameliorated by firearms restrictions that apply to the general population, essentially for the reason identified by Beccaria.[152] The demand for guns by criminals is highly inelastic, while the supply is very elastic indeed. Criminals simply are going to obtain firearms so long as the cost of obtaining them does not exceed the benefits the criminal expects them to bring. How could gun control laws change this cost-benefit ratio? If the penalties for possessing firearms were raised to a very high level, many potential victims would certainly be disarmed. A significant fraction of criminals, however, would continue to arm themselves in the expectation of violent encounters with other criminals (as in the drug trade) or with the police. At the same time, we would expect to see guns used less frequently in some crimes that involve preying on civilians, such as burglary and robbery, because the potential victims would themselves be less likely to be armed. That, however, does not mean that these crimes would themselves decrease. On the contrary, substitution effects would occur. Other weapons, such as knives and clubs, would be used instead of guns (p.66)to commit the same crimes. There might, in addition, be some substitution of burglaries for robberies. Similarly, stringent gun control laws might well cause the criminals who commit crimes like robbery to be more careful to seek physically weaker victims like women and the elderly.[153] No one has ever explained why such substitution effects should count as a gain in social welfare, especially when potential victims would also be more vulnerable to those criminals who would continue to use firearms.

In theory, general restrictions on the possession of firearms by civilians could reduce the incidence of violence arising from the other two categories. Accidents, however, are a trivially small cause of firearms deaths.[154] That leaves the so-called "crimes of passion"--unplanned murders that would not occur if the perpetrator did not happen to have ready access to a firearm. The effect of gun control laws on this category of crime is extremely difficult to isolate, for a variety of reasons. First, the criminal justice system's statistical records do not distinguish systematically between planned and unplanned crimes. Second, many apparently spontaneous murders in which a gun was used, especially those resulting from domestic disputes, might have been committed with other weapons if a gun had been unavailable.[155] Third, the number of spontaneous murders prevented by gun control laws would be partially offset, or more than offset, by murders (including some spontaneous murders) that took place only because the gun control laws themselves caused the victims to be unarmed when they were attacked.

The virtual inevitability of substitution effects and offsetting effects suggest that there is no particularly good reason to expect that general restrictions on firearms would reduce the overall incidence of gun violence. In fact, the empirical evidence has not shown any such reductive effect, while it has shown that crime (p.67)victims are quite successful in using firearms to defend themselves.[156] It may be possible to devise regulations that would reduce the incidence of spontaneous murders and negligent shootings without significant negative offsetting effects, but such regulations might also be distinguished for constitutional purposes from the usual restrictions that apply indiscriminately to the general population.[157]

This does not imply that a well armed populace is a panacea for the problem of violent crime. The same merciless realities that prevent the usual forms of gun control from accomplishing their stated purposes also ensure that civilian access to firearms can continue to co-exist quite easily with a high rate of crime. It does imply, however, that the government is on very weak ground when it offers vague and speculative social welfare goals to justify depriving a complaining individual of the right to have tools that are manifestly helpful in serving that individual's interest in defending himself (and especially herself, since women are generally more physically vulnerable to violent attacks than men and much more likely to be the victims of certain violent crimes).[158]

c. constitutional problems in popular forms of gun control

The judicial obligation to enforce the Second Amendment is not contingent on someone's proving that an armed citizenry is a cure-all (p.68)for crime, any more than the obligation to enforce the First Amendment depends on its ability to eliminate lies and corruption from the public discourse. In terms suggestively reminiscent of Beccaria's critique of gun control laws, Justice Brennan eloquently explained why it is a mistake to think that freedom should be abolished merely because some people are bound to misuse it:

Someone who strongly disapproved of our raucous and often degrading marketplace of ideas could easily believe that the freedoms of speech and press protected by the Court's First Amendment jurisprudence do not have enough social utility (even "in the long view") to outweigh the excesses and abuses to which they frequently lead. The constitutional test, however, does not depend on its acceptability to people who take that position, even if they are very numerous or politically influential. As the quotation above suggests, and as hundreds of decisions over the course of many decades confirm, the courts have never demanded that First Amendment rights be held to such a standard. Instead, the Court has declared that the Constitution creates a strong presumption in favor of individual freedom, and has imposed a (p.69)heavy burden of justification on governments that impose restrictions on speech or the press.

The differences between the First and Second Amendments are obvious enough, but the similarities are more important. In both cases, the Constitution establishes a rule that protects a human activity that its Framers regarded as a natural right: thought and self-governance in the one case and self-defense in the other. In both cases, the Constitution reflects a determination that the social benefits of giving legal protection to the instruments needed for the pursuit of those goals will outweigh the inconveniences arising from their misuse. In both cases, the erection of this barrier against the state governments will necessarily involve the courts in the business of balancing the public welfare against the interests of those individuals whose liberty the government wants to restrict. In neither case, however, does the accretion of this power to the courts justify them in striking the balance differently than an honest reading of the Constitution suggests.

Supreme Court Justices, it is true, are drawn from a class of people who are among the least vulnerable to violent criminals. The reputations of individual Justices, moreover, are highly dependent on the good will of the journalists and academics who depend on the freedom of speech for their livelihoods and social ascendancy. This may make it easier for members of the Court to appreciate the value of the First Amendment than to see why the Second Amendment still matters. If they gave the matter the disinterested attention that we have a right to expect from our judicial magistrates, however, the Justices should acquire serious doubts about the constitutionality of many currently popular restrictions on firearms.[160] I will conclude with brief discussions (p.70)of three examples, not in an effort to carry out the impossible task of offering a comprehensive exposition of an undeveloped jurisprudence,[161] but to illustrate that serious legal questions need to be raised about statutes whose constitutionality is too often taken for granted.

First, consider the recently enacted ban on certain so-called "semiautomatic assault weapons." This law applies to nineteen guns specifically identified by make and model, and to any other rifle (except some that are specifically exempted) that both accepts a detachable magazine and possesses any two of the following characteristics: a folding or telescoping stock, a bayonet lug, a flash suppressor, a pistol grip, or a grenade launcher.[162]

This statute is so fundamentally irrational that it is not clear that it could survive an honest application of the rational basis test, let alone the far more stringent scrutiny that is always used to review infringements of fundamental rights other than the right to keep and bear arms.[163] The irrationality of the statute lies primarily in the fact that it restricts access to certain weapons on the basis of essentially cosmetic features, leaving functionally identical arms unaffected. There is no general principle related to public safety that one can use to distinguish two otherwise identical carbines, one of which has a pistol grip and folding stock and the other of which has a grenade launcher but none of the other four (p.71)suspect attachments. Nor can one rationally explain why a carbine that has a folding stock and a flash suppressor should become illegal when a bayonet lug is added, but should then become legally innocuous when either the folding stock or the flash suppressor is removed.

Ironically, this "assault weapon" statute is so deeply arbitrary that it cannot itself actually undermine the purposes of the Second Amendment in any appreciable way. It bans only a limited class of weapons configured with certain random accouterments, leaving essentially identical arms unrestricted and leaving citizens free to keep any of the accouterments ready to be attached to the weapon if need be.[164]

This does not imply, however, that courts should uphold the regulation. As the Supreme Court has recognized in the analogous area of the First Amendment, leaving legislatures free to engage in whimsical infringements on fundamental rights prepares the way for more serious assaults on individual liberty. Just as no court would interpret the First Amendment to allow Congress to ban the use of words that contain diphthongs, even if perfectly adequate synonyms for all such words remained available, so the courts should decline to authorize equally trivial but irrational infringements on the right to arms.

A Court that takes its constitutional responsibilities seriously would also be likely to invalidate laws that affect less bizarrely defined classes of weaponry. Consider, for example, the law in Washington, D.C., where virtually all civilians are forbidden to possess any handgun that was not registered prior to September 24, 1976.[165] Because citizens are permitted to possess rifles and (p.72)shotguns, though only if they comply with onerous registration requirements[166] and only if they keep them unloaded and disassembled,[167] the infringement on the right to keep and bear arms is not absolutely complete.[168] The infringement is nonetheless substantial, for handguns have important functional advantages in self-defense, primarily arising from their concealability, portability, and maneuverability in confined spaces like those in which many city residents live. Moreover, to the extent that handguns can be and are replaced by rifles and shotguns, the likely effect of the law is to increase the number of deaths from gunfire because shoulder-fired weapons are generally much more lethal than handguns.[169] For that reason, it is unlikely that the government could present any plausible argument for concluding that the handgun ban is narrowly tailored to serve a compelling government interest.

To see how problematic the constitutionality of this law is, imagine that the D.C. Code decreed that cable television was banned from that city because the corrupting nature of television programming was contributing to the city's notoriously high rate of violent crime. This would not be an irrational statute. The government has an obvious and legitimate interest in reducing such crime, and there is research indicating that television programming (p.73)may be a contributing factor to high crime rates.[170] Indeed, the evidence to support this conclusion may be significantly stronger than any evidence suggesting that Washington's gun ban could have an ameliorative effect on the rate of violent crime.[171] It is inconceivable that any court would uphold such a ban on cable television, and it is not the least bit obvious that the Supreme Court would have any greater justification for upholding the existing gun control law.[172]

Finally, consider the restrictions that our governments commonly place on carrying weapons in public. If the courts took the right of self-defense as seriously as they should, and thought through its implications with respect to the tools needed to exercise that right when it matters, they would have to confront the fact that the Second Amendment protects both the right to keep arms and the right to bear them.[173] That does not mean that the government can put no restrictions on the people's right to carry weapons about in public, any more than the First Amendment forbids government from imposing reasonable time, place, and manner restrictions on the exercise of the freedom of speech. It does mean, however, that the government should face a heavy burden when called upon to (p.74)justify such restrictions, which often operate to deprive the people of access to weapons in just those circumstances when they are most needed.

This burden might be quite difficult to meet. An important body of evidence began to develop after the state of Florida dramatically loosened its restrictions on the carrying of concealed weapons in 1987. Although it has long been true that American jurisdictions with the most restrictive gun controls have also tended to have the highest crime rates, it has also been plausible to suppose that the restrictive laws were a result rather than a cause of the high crime rates. Like many states with high crime rates, Florida had traditionally left considerable discretion to issue concealed-carry permits in local government officials, and most urban areas issued very few permits. In 1987, the state adopted a new system, in which an applicant who passed a background check and took a training class was automatically issued a permit upon payment of a small fee. Early indications suggested that infinitesimal numbers of concealed-carry permit holders used their guns for criminal purposes, and that overall criminal violence may well have dropped because of the new law.[174] In fact, there is apparently direct evidence that Florida criminals began to target tourists specifically because they knew that tourists are less likely than residents to be armed.[175] This direct evidence tended to confirm the results of a careful study of the attitudes of imprisoned felons, who reported both considerable sensitivity to the odds of their victims being armed and numerous occasions on which they had refrained from committing a crime because of the prospect that the chosen victim might be armed.[176]

Florida's well-publicized success with liberalized carry laws encouraged nine other states to adopt similar reforms, and it has now become possible to make meaningful statistical estimates of the effect that concealed-carry laws have on crime rates. A very detailed and sophisticated new study by John R. Lott, Jr. and (p.75)David B. Mustard uses cross-sectional time-series data at the county level to confirm a strong connection between giving law-abiding citizens the right to carry a concealed weapon and a large deterrent effect on violent crime.[177] The Lott and Mustard study, which is far more successful in controlling for relevant variables than previous gun control studies, dramatically confirms Beccaria's theoretical insight[178] and refutes long-standing conventional wisdom. When the chances of encountering an armed victim go up, violent crime goes down, and this effect is particularly pronounced in urban areas with high crime rates.[179] While it may be true that high rates of violent crime provoke stricter gun control laws, those laws in turn drive the rates even higher. If the entire nation had adopted concealed carry laws like Florida's in 1992, the evidence indicates, at least 1414 murders and 4177 rapes would have been prevented.[180] In the face of such evidence, it is hard to see why courts should allow governments to rely on slogans and prejudices as a reason for stripping potential victims of their right to protect themselves from violent predators.

This is not to say, of course, that empirical social science can offer meaningful assistance with every question that will arise concerning the costs and benefits of gun control laws. If the Second Amendment were treated like the First Amendment, cases involving restrictions on the right to carry weapons in public would present the courts with some difficult questions, and they would surely make some mistakes. That, however, is simply one more way in which the Second Amendment resembles the First Amendment.(p.76)

V. Conclusion

The Second Amendment unambiguously and irrefutably establishes an individual right to keep and bear arms. This conclusion, which is dictated by the language of the Constitution, is confirmed by an abundance of historical evidence. Nor is it contradicted by anything yet discovered in the Constitution's legislative history or in the historical background that illuminates the intentions of those who adopted the Bill of Rights.

The precise scope of the Second Amendment's guarantee, however, and its proper application in a world that has changed enormously since 1791, cannot be determined solely by reference to the Constitution's text and history. Subsequent developments in the technology of weapons and in military technique have rendered the armed citizen wholly impractical as a substitute for standing armies and much less potent as a deterrent to despotism. At the same time, the increased destructive potential of small arms has raised new questions about the type of "arms" that may appropriately be left in civilian hands and about the regulations that may constitutionally be imposed on civilians' use of their weapons. These questions will assume real importance if the Supreme Court takes up the Second Amendment with the same serious attention that it has given to the First Amendment and other provisions of the Bill of Rights.

Despite all the changes that have occurred, the Second Amendment can continue to serve its fundamental purpose. That purpose is to secure the natural right of self-defense, which is no less threatened when government deprives its citizens of the tools for resisting criminal predators than it would be if the government itself turned outlaw. This simple but momentous insight is the key that opens the door for a serious Second Amendment jurisprudence, and it thus gives the constitutional scheme of ordered liberty its best hope of surviving in the crucible of litigation.

[*] Professor of Law, George Mason University School of Law; Ph.D., 1981, Harvard University; J.D., 1985, University of Chicago. For thoughtful suggestions and criticism of an earlier draft, I am very grateful to David I. Caplan, Neal Devins, Stephen G. Gilles, Don B. Kates, Jr., Michael I. Krauss, Mara S. Lund, John O. McGinnis, William W. Van Alstyne, and Eugene Volokh. Financial support was provided through the Law and Economics Center at the George Mason University School of Law, and Tony Rudy offered able research assistance. The author is responsible for all defects.

[1] MacNeil/Lehrer NewsHour, Dec. 16, 1991 available in LEXIS, Nexis Library, Arcnws File; Guns and the Law, Phoenix Gazette, Feb. 22, 1990, at A10.

[2] Kennedy Guard Arrested For Guns, Chi. Trib., Jan. 15, 1986, § 1, at 9; Elsa Walsh, Bodyguard's Gun Charges To Stand, Wash. Post, Oct. 16, 1987, at C2.

[3] Nancy Lewis, Rowan Won't Be Retried on Gun Charges: D.C. Corporation Counsel Says Jurors Were Confused in Case of Unregistered Weapon, Wash. Post, Oct. 6, 1988, at B1. After his trial on charges of violating the District of Columbia gun control law ended with a hung jury, Rowan told a news conference that he still supported enacting a federal law "that makes it extremely difficult for anyone but a law enforcement officer to have a gun." Rowan Says He Still Favors Gun Control, Boston Globe, Oct. 7, 1988, at 13.

[4] See Barry Bruce-Briggs, The Great American Gun War, 45 Pub. Interest 37, 59 (1976) (quoting Schlesinger as suspecting that "men doubtful of their own virility cling to the gun as a symbolic phallus and unconsciously fear gun control as the equivalent of castration").

[5] Arthur Schlesinger, Jr., A Visit with Fidel, Wall St. J., June 7, 1985, at 24 (This wide distribution of weapons [in Cuba] does indicate the regime's confidence in the loyalty of the Cuban people. An unpopular dictatorship would not dare run such risks.").

[6] Don B. Kates, Jr., The Battle Over Gun Control, 84 Pub. Interest 42, 44-45 (1986); Don B. Kates, Jr., Handgun Banning in Light of the Prohibition Experience, in Firearms and Violence 139, 154 n.44 (Don B. Kates, Jr. ed., 1984); Carol R Silver & Don B. Kates, Jr., Self-Defense, Handgun Ownership, and the Independence of Women in a Violent, Sexist Society, in Restricting Handguns: The Liberal Skeptics Speak Out (Don B. Kates, Jr. ed., 1979).

[7] 18 U.S.C. § 922(v)(4)(C) (1994). For an interesting discussion of some difficulties that can result from creating gun-control exemptions for various categories of police officers, see James B. Jacobs, Exceptions to a General Prohibition on Handgun Possession: Do They Swallow Up the Rule?, 49 Law & Contemp. Probs. 5 (1986), which concludes that as long as police and private police continue to rely on handguns as necessary for self-defense the majority of private citizens will remain convinced they need handguns in order to protect themselves. See also Nicholas J. Johnson, Beyond the Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment, 24 Rutgers L.J. 1,

THE PAST AND FUTURE OF THEINDIVIDUAL'S RIGHT TO ARMS