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Journal ArticleDOI

The Second Amendment and the Personal Right to Arms

01 Apr 1994-Duke Law Journal (Duke University School of Law)-Vol. 43, Iss: 6, pp 1236-1255
TL;DR: Perhaps no provision in the Constitution causes one to stumble quite so much on a first reading, or second, or third reading, as the short provision of the Second Amendment of the Bill of Rights.
Abstract: Perhaps no provision in the Constitution causes one to stumble quite so much on a first reading, or second, or third reading, as the short provision in the Second Amendment of the Bill of Rights. No doubt this stumbling occurs because, despite the brevity of this amendment, as one reads, there is an apparent non sequitur-or disconnection of a sort-in midsentence. The amendment opens with a recitation about a need for "[a] well regulated Militia."' But having stipulated to the need for "[a] well regulated Militia," the amendment then declares that the right secured by the amendment-the described right that is to be free of "infringement"-is not (or not just) the right of a state, or of the United States, to provide a well regulated militia. Rather, it is "the right of the people to keep and bear Arms."

Summary (1 min read)

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial .... 6

  • And so, too, the Seventh Amendment provides:.
  • That each of these rights-that all of these rights-are examples of personal rights protected by the Bill of Rights seems perfectly clear.
  • And, were it not for the opening clause in the Second Amendment, though there would still be much to thrash out, it is.

10. The most one can divine from the Supreme Court's scanty decisions ("scanty" is

  • Used advisedly-essentially there are only two) is that such right to keep and bear arms as may be secured by this amendment may extend to such "Arms" as would be serviceable within a militia but not otherwise (so a "sawed-orr shotgun may not qualify, though presumably-by this test-heavy duty automatic rifles assuredly would).
  • In further response to the suggestion that the Second Amendment is a mere States' rights clause in analogy with the Tenth Amendment (by, e.g . Keith A. Ehrman & Dennis A. Henigan.

47. The Second Amendment was originally the fourth amendment of twelve approved

  • By the requisite two-thirds of both houses of Congress in 1789 and at once submitted for ratification by the state legislatures.
  • Because only six states approved either the first or second of these twelve amendments during the ensuing two years (1789-1791), however.
  • So. what was originally proposed as the third amendment became the First Amendment and what was originally proposed as the fourth amendment became the Second Amendment in turn.
  • ("These amendments demanded security against the apprehended encroachments of the general government-not against those of th~ local governments.").

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e Second Amendment and the Personal Right to
Arms
William W. Van Alstyne
William & Mary Law School
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ESSAY
THE SECOND AMENDMENT
AND
THE PERSONAL RIGHT TO ARMS
WILLIAM
VAN
ALSTYNEt
INTRODUCTION
Perhaps no provision in the Constitution causes one to stum-
ble quite
so
much on a first reading, or second, or third reading,
as
the short provision in the Second Amendment of the Bill of
Rights. No doubt this stumbling occurs because, despite the brevi-
ty of this amendment,
as
one reads, there
is
an apparent non se-
quitur-or
disconnection of a
sort-in
midsentence. The amend-
ment opens with a recitation about a need for
"[a]
well
regulated
Militia."
1
But having stipulated to the need for "[a] well regulated
Militia," the amendment then declares that the right secured by
the
amendment-the
described right that
is
to be free of "infringe-
ment"-is
not (or not just) the right of a state, or of the United
States, to provide a well regulated militia. Rather, it
is
"the right
of the people to keep and bear
Arms."
A
well
regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall uot be infriuged.
2
t William
R.
and Thomas L. Perkins Professor of Law, Duke University School of
Law.
1.
The subject
is
that of
"A
well
regulated
Militia"-a
militia the amendment de-
clares to be "necessary to the security of a free State."
U.S.
CONST.
amend. II. But
it
is
hard to say on first reading whether the reference
is
to
a well-regulated national militia
or, instead, to a well-regulated
state militia (i.e., a militia in each state). Perhaps, however.
the reference
is
to both at
once-a
militia
in
each state. originally constituted under each
state's authority, but subject to congressional authority
to
arm,
to
organize, and
to
make
provision to
call
into national service,
as
a national militia. The possibility that this
may
be
so
tends to send one looking for other provisions
in
the Constitution that
may
help
to
clear this matter
away.
And a short search readily turns
up
several such provisions:
Article I, section 8, clauses
15
and
16,
and Article II, section
2,
clause
1.
See infra note
16.
2.
U.S.
CONST.
amend. II.
1236

1994]
THE SECOND
AMENDMENT
RIGHT
TO
ARMS
1237
The postulation of a "right of the people to keep and bear
Arms" would make sense standing alone, however, even if it nec-
essarily left some questions still to be settled.
3
It
would make
sense in just the same unforced way we understand even upon a
first reading of the neighboring clause in the Bill of Rights, which
uses the exact same phrase in describing something
as
"the
right
of the
people" that "shall not be violated" (or "infringed"). Just
as
the Second Amendment declares that "the right of the people
to keep and bear Arms[] shall not be
infringed," so, too, the
Fourth Amendment declares:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated
....
4
Here, in the familiar setting of the Fourth Amendment, we
are not at all confused in our take on the meaning of the amend-
ment; it secures to each of us personally (as well
as
to all of
us
collectively) a certain
right-even
if we are also uncertain of its
scope.
5
Nor are we confused in turning to other clauses.
For
ex-
ample, the Sixth Amendment provides:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial
....
6
And so, too, the Seventh Amendment provides:
In Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be pre-
served
....
7
That each of these
rights-that
all of these
rights-are
examples of
personal rights protected by the Bill of Rights seems perfectly
clear. And, were it not for the opening clause in the Second
Amendment, though there would still be much to thrash out, it
is
3.
For example, one might
well
still be uncertain of the breadth of the right to
keep and bear arms (e.g., just what kinds of
"Arms"?).
4.
U.S.
CONST.
amend. IV.
5.
For example, does the protection of "houses" and "effects" from unreasonable
searches and seizures extend to trash one may have put outside
in
a garbage can?
May
it matter whether one has put the can itself outside one's garage or farther out, beside
the street?
See California
v.
Greenwood,
486
U.S. 35,
37
(1988).
6.
U.S.
CaNST.
amend. VI.
7.
/d. amend. VII.

1238
DUKE
LAW
JOURNAL (Vol. 43:1236
altogether likely the Second Amendment would be taken in the
~
same
way.
To be sure,
as
we
have already once noted, were the Second
Amendment taken in just this
way,
the scope of the right that
is
protected (namely, the right to keep and bear arms) would still
remain to be defined.
8
But by itself, that sort of definitional deter-
mination would be of no unusual difficulty.
For
so much
is
true
with respect to every right secured from government infringement,
whether it be each person's freedom of speech (that freedom
is
not unbounded, either)
or
any other right specifically protected
from infringement elsewhere in the Bill of Rights.
9
And
in ad-
dressing this type of (merely general) problem, neither has the
Supreme Court nor have other courts found it intractable and
certainly none of these other clauses have been disparaged, much
less have they been ignored. To the contrary, with respect to each,
8.
For example, with respect to the kind of "Arms" one
may
have. Perhaps these
include all arms as
may
be useful (though not exclusively so)
as
an incident of service
in
a militia-and indeed, this would make sense of the introductory portion of the
amendment as
well.
See United States
v.
Miller, 307 U.S. 174, 178 (1939).
9.
So, for example, though the Sixth Amendment provides a right to a "speedy"
and "public" trial whenever one
is
accused of a (federal) crime, the amendment does not
declare just
how "speedy" the trial must be (i.e., exactly
how
soon following indictment
the trial must be held) nor
how "public" either (e.g., must it be televised to the world,
or
is
an open courtroom, albeit with very limited seating, quite enough?). And the
Fourth Amendment does not say there can be
no searches and seizures-rather, only no
"unreasonable" searches and seizures. Yet there
is
a very substantial body of
highly
developed case
law
that has given this genuine meaning and effect.
Likewise, when the
Sixth and Seventh Amendments speak of the right to trial
by
"jury," then (even
as
is
true of the Second Amendment
in
its reference to "Arms"?),
though each of these amendments
is
silent as to what a jury means (a "jury" of how
many people? a
"jury" selected
in
what manner and
by
whom?), the provision means to
be-and
tends to
be-given
some real, some substantial, and some constitutionally signifi·
cant
effect. The point
is,
of course, that though there are questions of this sort with
respect to
every right furnished
by
the
Bill
of Rights, the expectation remains
high
that
the right thus furnished
will
neither be ignored-treated as though
it
were not a right
at
all-nor
so cynically misdefined
or
"qualified"
in
its ultimate description
as
to be reduced
to an empty shell. It
is
only
in
the case of the Second Amendment that this
is
approxi·
mately the current state of the
law.
Indeed,
it
is
only with respect to the Second
Amendment that the current state of the
law
is
roughly the same
as
was
the state of the
law
with respect to the First Amendment's guarantees of freedom of speech and of the
press as recently as
1904. As a restraint on the federal government, the First Amend·
ment
was
deemed to be a restriction merely
on
certain kinds of prior restraint and hard·
ly
at
all
on what could be forbidden under threat of criminal sanction.
See,
e.g.,
Patterson
v.
Colorado, 205
U.S.
454, 462 (1907). As to the states, the amendment
was
not known
as
necessarily furnishing any restraint at all. See id.

1994]
THE
SECOND
AMENDMENT
RIGHT
TO
ARMS
1239
a strong, supportive case law has developed in the courts, albeit
case law that has developed gradually, over quite a long time.
In startling contrast, during this same time, however, the
Sec-
ond Amendment has generated almost no useful body
of
law.
Indeed, it
is
substantially accurate to say that the useful case
law
of the Second Amendment, even in 1994,
is
mostly just missing in
action. In its place, what we have
is
roughly of the same scanty
and utterly underdeveloped
nature
10
as
was
characteristic of the
equally scanty and equally underdeveloped case
law
(such as it
then was) of the First Amenament in
1904,
as
of which date there
was
still to issue from the Supreme Court a single decision estab-
lishing the First Amendment
as
an amendment of any genuine
importance at all.
11
In short, what was true of the First Amend-
ment
as
of 1904 remains true of the Second Amendment even
now.
The reason for this failure of useful modem case law, more-
over,
is
not that there has been no occasion to develop such law.
So much
is
true only
of
the Third AmendmentY In contrast, it
is
10.
The most one can divine from the Supreme Court's scanty decisions ("scanty"
is
used advisedly-essentially there are only two)
is
that such right to keep and bear arms
as
may be secured
by
this amendment may extend to such "Arms" as would be service-
able within a militia but not otherwise (so a "sawed-orr• shotgun
may
not qualify, though
presumably-by
this
test-heavy
duty automatic rifles assuredly would). See United States
v.
Miller,
307
U.S.
174,
178
(1939);
see
also
Lewis
v.
United States,
445
U.S. 55,
65
n.8
(1980)
(noting that legislative restrictions on the right of felons to possess firearms
do
not violate any constitutionally protected liberty); Robertson
v.
Baldwin,
165
U.S.
275,
282
(1897)
(referring to "the right of the people to keep and bear Arms" as personal
right). These casual cases aside
("casual," because in Miller, for example, there
was
not
even an appearance entered
by
the defendant-appellant
in
the Supreme Court), there are
a
few
19th-century decisions denying any relevance of the Second Amendment to the
states; but these decisions,
which
have never been revisited
by
the Supreme Court, mere·
ly
mimicked others of the same era
in
holding that
noJie
of the rights or freedoms enu-
merated
in
the
Bill
of Rights were made applicable
by
the Fourteenth Amendment to
the states.
See,
e.g., Presser
v.
Illinois,
116
U.S.
252,
265
(1886)
(citing United States
v.
Cruikshank,
92
U.S.
542,
553
(1875)). The shaky foundation of these cases ("shaky" be-
cause the effect
was
to eviscerate the Fourteenth Amendment itself) has long since been
recognized-and long since repudiated
by
the Court
in
general. Notwithstanding, the
lower courts continue ritually to rely upon them, and the
Supreme Court quite as reg-
ularly declines to find any suitable for review.
See,
e.g., Quilici
v.
Village
·of
Morton
Grove,
695
F.2d
261,
269-70 (7th Cir. 1982) (holding that municipal handgun restrictions
were constitutional),
cen. denied,
464
U.S.
863
(1983).
And
why
does one suppose that
this
is
so?
11.
See supra note
9.
12.
Troops have not generally been quartered
in
private homes "in time of
peace
...
without the consent of the Owner," nor even "in time of war," U.S.
CONST.
amend.
lii.
for a very long time, and no Third Amendment case
has-
ever been decided

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