What Does the Second Amendment Mean Today?

Abstract

A growing body of scholarship argues that the Second Amendment protects a right of individuals to possess firearms, regardless of whether those individuals are organized in state militias. Proponents of the individual right view do not merely disagree with those who champion the competing view that the Second Amendment poses few if any obstacles to most forms of gun control legislation by the state or federal governments. Judged by the titles of their writings, many of the individual right scholars appear to believe that the Second Amendment has been subject to uniquely shabby treatment by the courts and, until recently, academic commentators. For example, Sanford Levinson titles an important essay The Embarrassing Second Amendment, thereby suggesting that any interpretation less robust than the one favored by the National Rifle Association ("NRA") must be the product of result-oriented scholarship. The Second Amendment, Levinson implies, protects an individual right to own guns, and that is embarrassing to liberals (like him) who favor gun control. In the same vein, Eugene Volokh titles a recent essay The Amazing Vanishing Second Amendment. Volokh argues that the interpretive moves that have been used to restrict the Second Amendment's scope are unprincipled because they would be unacceptable in other contexts. Similar claims permeate the individual right literature.

This Article argues that the Second Amendment has not been unfairly orphaned. The courts and commentators that reject the individual right scholars' claims are justified in doing so by the application of the same criteria of interpretation commonly applied to other constitutional provisions. A nonexclusive list of the relevant factors includes: doctrine, text, original understanding, structural inference, postadoption history, and normative considerations.

Champions of the individual right interpretation of the Second Amendment may believe that these criteria are wrongheaded or illegitimate in all contexts. For example, many individual right scholars appear to believe that original meaning is the sole criterion of constitutional interpretation. But if that is their premise, they cannot contend that nonoriginalist interpretation of the Second Amendment is anything like a unique mistake. Many of the foundational doctrines of our current constitutional regime do not comport with the original understanding of the Constitution or its amendments. The requirement of equal population apportionment for state legislative districts, the invalidity of de jure racial segregation, and the breadth of federal power under the Commerce Clause (even after the recent federalism decisions) are all at odds with the dominant understandings of those who adopted the relevant constitutional provisions. Original understanding is not the sole, nor even the principal, measure of a constitutional interpretation's correctness. If the individual right interpretation of the Second Amendment rests on contrary premises, its scholars must persuade us to abandon much more than gun control.

Keywords: second amendment, individual rights, originalist, nonoriginalist, constitutional interpretation