Citation

Lund N. Georgia Law Rev. 1996; 31: 76.

Copyright

(Copyright © 1996, Georgia Law Review Association and University of Georgia School of Law)

DOI

unavailable

PMID

unavailable

Abstract

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 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.