I INTRODUCTION Only in recent years (1) have those opposed to individual rights interpretation of Second Amendment, which one of us dubbed come forth with attempting to harmonize text, history, and structure to show that Amendment is Constitution's version of Oakland--that is no there there. Earlier theories had tended to be merely makeweight arguments whose implications were never probed in depth by their proponents. (2) A recent article by Professor David Yassky suggests that is a segment of legal academia that dissents from Standard Model and has started to generate alternatives to Standard Model. (3) In this brief essay, we critique that part of Yassky's theory dismissing United States v. Miller (4) as providing basis for an individual rights interpretation of Second Amendment. In his provocative response to Standard Model, Yassky argues that, if dramatic changes to our regime since time of Amendment's drafting are taken into account, Standard Model proves inadequate. (5) One question that Yassky addresses is why Supreme Court has continued to underenforce Amendment, treating it as a constitutional pariah, barred from associating with other 'high caste' civil liberties that [the Court] has labored to protect (6) in years since so-called Constitutional Revolution of 1937. Yassky provides this answer: The Supreme Court of late 1930s and 1940s saw [civil liberties like freedom of speech] as both ameliorating dangers of new administrative state, while also being rooted in key New Deal themes [such as Roosevelt's famous Four Freedoms]; accordingly it revitalized First Amendment. The court could not, however, envision a similar role for right to keep and bear arms. (7) This, Yassky argues, is key to understanding what he terms the failure of to enforce Amendment and accounts for its virtual repeal at all levels of federal judiciary. (8) Indicative of this failure is United States Supreme Court's only case this century squarely addressing Second Amendment, United States v. Miller. (9) Yassky, however, devotes only a few pages to Miller, a decision he defends only with observation that opinion says very little. (10) What he does say is that the Miller opinion... plainly rule[s] out what he terms the revisionists' Approach to Second Amendment. (11) Yassky's reading of Miller is mistaken. When decision is read closely and arguments available (and not available) to Court are taken into account, decision is best understood as leaving open opportunity for courts to adopt Standard Model reading of Second Amendment. What Miller plainly does not do is deny that an individual's right to keep and bear arms is protected by Second Amendment--the holding ascribed to it by most federal courts since 1939. (12) Yassky's error on this subject requires correction. At outset, we admit that we are focusing on a small part of Yassky's argument, but we think that this focus on Miller is justifiable on several grounds. First, any subsequent Supreme Court interpretation of Second Amendment will have to take Miller into account. It is Miller, after all, that lower courts have cited to maintain that Second Amendment did not create an individual right to keep and bear arms. If Yassky is correct and Standard Model or Libertarian Approach finds no support there, then that would likely end matter for courts. They would have no need to resort to Yassky's elaborate arguments that dramatic shifts in military posture, begun in nineteenth century and completed in twentieth, from state militia to a federally controlled, professional military apparatus constitute a temporally extended constitutional moment that has drained Second Amendment of enforceable content. …
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Nov 1, 2005
Stuart A Cohen 
Open Access