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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:

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