CHAPTER 10

The Right to Keep and Bear Arms

§10.1 INTRODUCTION AND OVERVIEW

The text of the Second Amendment provides, “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.” In interpreting this text, the critical question is whether the language establishes the general right of an individual “to keep and bear Arms” for private, non-militia uses or, instead, creates only a particularized right, limited in scope to the needs of a well-regulated militia. Until recently, the Supreme Court endorsed the latter, narrower view. Thus, in the leading case of United States v. Miller, 307 U.S. 174 (1939), the defendants were indicted for shipping a sawed-off shotgun in interstate commerce in violation of the National Firearms Act. They argued, among other things, that the indictment infringed their Second Amendment right to bear arms. The Court disagreed, explaining that the “obvious purpose” of the Second Amendment was “to assure the continuation and render possible the effectiveness of [militia] forces” trained by the states and subject to regulation by the federal government. Id. at 178. In other words, the right to bear arms was a means of advancing the interest of the several states in self-preservation through the maintenance of a militia of armed citizens. Id. at 179. In the Court’s view, the highly individualized claim of the Miller defendants did not fall within that intended scope:

In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

Id. at 178. The fair import of the Miller decision was that the right to keep and bear arms was tied to the collective preservation of the community and not in any manner to an individual’s independent interest in the possession or ownership of a firearm.

The practical result of Miller was that the Second Amendment provided little or no protection for an individual’s right to bear arms. In addition, since the Court had previously held that the Fourteenth Amendment did not incorporate the Second Amendment, state laws regulating gun ownership were completely immune from Second Amendment challenges. See §1.3. Essentially, from an individual rights perspective, during the nineteenth and twentieth centuries, the Second Amendment was of little pragmatic consequence.

The Miller Court’s interpretation of the Second Amendment, however, was not without controversy. During the latter half of the twentieth century, gun-rights advocates argued that the Second Amendment should be more broadly construed as encompassing an independent right of the individual to keep and bear arms, without regard to any state interest in maintaining a militia. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Court reconsidered Miller and adopted this more encompassing view. In this chapter, we examine the Heller decision and some of its potential consequences. Keep in mind, however, that the right to keep and bear arms post-Heller is a new and developing area of jurisprudence that necessarily remains somewhat of a moving target.