Debate Desk
Does the Second Amendment Protect Only Militias, Not Individuals?
The Supreme Court held in Heller (2008) that the right belongs to individuals, and the amendment's text and history support that reading.
The claim
Those who read the amendment narrowly point to its opening words: "A well regulated Militia, being necessary to the security of a free State." The right to keep and bear arms, they say, was tied to service in a state militia, and with the militias replaced by the National Guard, the amendment protects no personal right to own a gun.
The answer in three points
- The operative clause says "the right of the people." The same phrase appears in the First and Fourth Amendments, where nobody doubts that it means individuals. Reading it to mean something different in the Second requires a reason the text does not give.
- The prefatory clause explains one purpose of the right; it does not limit it. The founders feared that a government with a standing army could disarm its people, so they protected the people's arms as the source from which a militia would be drawn. In the founding era the militia was the body of the people, not a select unit.
- The record of the time agrees. State declarations and commentators such as St. George Tucker described the right as personal, including for self-defense. The Supreme Court said so in District of Columbia v. Heller (2008) and applied the right against the states in McDonald v. City of Chicago (2010).
Heller did not end the debate over regulation. The Court said the right is not unlimited and listed laws that remain presumptively lawful, such as bans on carrying by felons and in sensitive places. The disagreement now concerns where the lines fall, and that is a legitimate argument for legislatures and courts. What is no longer open is the claim that a citizen has no individual right at all.
The numbers
- The Militia Act of 1792 required nearly every free able-bodied white male citizen to be enrolled in the militia and to provide his own musket or rifle, according to the text of the statute.
- District of Columbia v. Heller (2008) was decided by a 5-to-4 vote of the Supreme Court, and McDonald v. City of Chicago (2010) was likewise decided 5 to 4.
- The Second Amendment was ratified in 1791 as part of the Bill of Rights, according to the National Archives.
What they will say next
"Heller was a five-four decision." The Constitution is binding whatever the margin. Many of the most important decisions in American law came by narrow votes, and the analysis in Heller rests on text, structure and a long record of founding-era sources.
"Justice Stevens's dissent was persuasive." It was a serious dissent, and it deserves a serious answer. Its central claim is that the amendment concerns military use alone, and the reply is that the founders listed self-defense and hunting among the ordinary uses of arms and wrote "the people," not "the militia."
"Modern weapons are not what the founders knew." The First Amendment covers the internet and the Fourth covers cell phones. Rights are not limited to the technology of 1791, though Heller also said some regulation is permitted.
"The National Guard replaced the militia." The federal law that defines the militia still includes able-bodied male citizens generally, apart from the Guard, so the "unorganized militia" exists in the statute books.