Necessary to the Security of Free States: The Second Amendment as the Auxiliary Right of Federalism

Abstract

This article contributes to the debate over the original meaning of the Second Amendment by placing two underappreciated concepts, federalism and auxiliary rights, at the center of the amendment’s original meaning. It argues that 18th-century Americans viewed the right to keep and bear arms as an auxiliary right enabling the protection of more fundamental personal rights, rather than as an individual, collective, or civic right. Furthermore, the Second Amendment was ratified in response to Anti-Federalist fears that the nationalization of military power in the new Constitution would permit the federal government to oppress the people and destroy the power of the states. Given this context, this article suggests that the Second Amendment was a jurisdictional amendment that dealt with which level of government had authority to make firearms regulations rather than which regulations were acceptable. It was intended to maintain a balance of military power between the state and national governments by protecting the states’ concurrent power to arm, organize, and train their citizen militias free from federal disarmament. In contrast to reigning views, which either permit or forbid gun regulation at both the federal and state levels, adopting this paradigm would prohibit all national firearms legislation but would also undermine support for incorporating the amendment against the states. Although the contemporary practicality of the American founders’ solution is questionable, they produced a creative solution to the problem of divided sovereignty in federal republics that deserves to be incorporated into broader accounts of federalism.