The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms

Abstract

Few issues in American public life have become as contentious as guns. It is almost impossible to discuss guns or gun policy without addressing the equally vexing question of what the Second Amendment means. Does the amendment protect the right of individuals to own guns, or is it a historical artifact of eighteenth-century American' fears of standing armies and veneration of a well-regulated militia composed of the sturdy yeomanry? Until quite recently this issue was about as settled as any in American constitutional law. Federal courts uniformly embraced the collective rights view of the amendment and dismissed the individual rights argument. Over the last two decades many legal scholars have embraced the individual rights view of the amendment and persuaded one federal court and John Ashcroft's Justice Department to adopt their interpretation. According to this new view the Second Amendment protects an expansive individual right similar in nature to freedom of the press. Some supporters of this view proclaimed their view the new “standard model” of the Second Amendment and declared the collective rights view of the amendment dead. The publication of Carl T. Bogus's important edited collection, The Second Amendment in Law and History, demonstrates convincingly that the reports of the collective rights death have been greatly exaggerated.