IS THE RIGHT TO KEEP AND BEAR ARMS CONDITIONED ON A MILITIA?
Randy E. Barnett
Boston University School of Law Working Paper 03-12
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 thateven
if the right to arms was conditioned on the continued existence of the
militiathe militia continues to exist as a matter of positive law
and it went into action as recently as September 11, 2001.
Size: 256 KB
Est. download time @ 28.8K: 9 seconds
Adobe Acrobat Reader v3.01 or greater is required
to view this paper.
To obtain a free copy, click the button below
Randy E. Barnett Contact Information
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
here to close this window.