The Intended Scope of the Second Amendment of the Bill of Rights

Abstract: This paper addresses the much debated Second Amendment to the US Constitution. The Second Amendment reads: ”A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed”. With a combination of a originalist approach a textualist approach, this work aims at answering what was the intended scope of the Second Amendment. Was it meant to protect the right of citzens to have arms for the collective purpose of serving the militia, or was it also intended to protect the individual right to own arms for self-defense? In the late 1780s, a debate over the ratification of the new Constitution took place. One of the discussed issues was allocation of military powers. With the new Constitution, the federal government would be given power to call forth militias, to organize, arm, and disciplin them. This created a fear among the people of the United States that the state militias might be ordered disarmed. As the state militias served as a security against standing armies and tyranny, they were considered necessary to the security of a free state. Antifederalists, opponents of the Constitution, demanded a Bill of Rights be added to the Constitutions which would include a security against disarmament. The Second Amendment has rarely been considered by the Supreme Court and only two cases exists in which the Court has directly questioned the scope of the Amendment. In United States v. Miller (1939), the Court found that the obvious purpose of the Second Amendment was to assure the continuation and effectiveness of the militia and that the Amendment must be applied with this in mind. Though the case has been used to support different views of the scope of the Amendment, the Court dismissed the defendants’ claim that the law at issue was unconstitutional because there was no connection to militia service. Though the precedential value of Miller is debatable, I believe the opinion of the Court was that there must be a militia connection for a person to invoke their right to arms. However, this is not what the Court found in District of Columbia v. Heller (2008). The Court in Heller found that the Second Amendment protects an individual right to keep handguns for the purpose of self-defense. A wide range of people has engaged in the debate over the Second Amendment and in this paper, interpretations by 3 important scholars of the 19th century are presented. The two most prominent interpretative theories which have emerged in the 20th century are also discussed - The Individual Right Theory and the Collective Right Theory. According to the Collective Rights Theory, the significance of the prefatory clause is to announce the only purpose of the Second Amendment. This purpose was to ensure that state militias would remain and that the people were granted the right to keep and bear arms to participate in a well regulated militia and, thus, the Second Amendment only protects this collective right. Those in support of the Individual Right Theory, however, interpret the Second Amendment as a codification of the pre-existing right to arms for self-defense and that the scope of the Amendment is not limited by the prefatory clause. I find that the Second Amendment was adopted only to secure that the federal government would not encroach on the people’s right to keep and bear arms for serving the militia. The Amendment must be read with its two phrases as a whole, and the fact that this was the only purpose stated in the prefatory clause must be considered. Had the framers intended to constitutionally protect the right to arms for self-defense, they could have included it in the Amendment’s preamble together the militia purpose.