IS THE RIGHT TO KEEP AND BEAR ARMS CONDITIONED ON A MILITIA?

Randy E. Barnett

Boston University School of Law Working Paper 03-12

Abstract

Those who dismiss the contemporary relevance of the Second Amendment have shifted their historical argument. They once strongly contended that, unlike the rest of the Bill of Rights, the Second Amendment originally protected a "collective" right of states to maintain their militias. In the face of historical evidence that the Second Amendment protected an individual right, they now with equal confidence contend that, while the Amendment does indeed protect an individual right, its exercise is conditioned on the existence of and participation in a state militia. In this article, I respond the latest presentation of this theory by H. Richard Uviller and William G. Merkel in their book, The Militia, and the Right to Arms, or How the Second Amendment Fell Silent (Duke, 2002), by showing how they overlook crucial evidence of original meaning to reach their conclusions. In particular, I address the now-popular claim that "bear arms" was exclusively a military term. I discuss their claim that the structure of the text dictates that the "right to keep and bear arms" is conditioned on and qualified by the preface affirming the importance of a "well-regulated militia." I explain how they ignore evidence that the "privileges or immunities of citizens of the United States" protected from state infringement by the Fourteenth Amendment included a strictly individual right to keep and bear arms. I note that, despite their numerous unsupported assertions to the contrary, every contemporary Second Amendment scholar thinks that the right to bear arms is no more absolute and immune from regulation than, for example, the rights protected by the First Amendment. Finally, I show that—even if the right to arms was conditioned on the continued existence of the militia—the militia continues to exist as a matter of positive law and it went into action as recently as September 11, 2001.


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Randy E. Barnett Contact Information

rrbarnett@gmail.com

previously at Boston University, now at

Carmack Waterhouse Professor of Legal Theory Georgetown University Law Center
600 New Jersey Ave. NW
Washington, DC 20001


Presentation and Publication Information:

William and Mary Bill of Rights Journal, Vol. 12, Issue 2, December 2003

SSRN Location:

http://www.ssrn.com/abstract=420981


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