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Arms, Right to Bear

Arms, Right to Bear. The Second Amendment's brief but tangled declaration that “[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” remains among the Constitution's most controversial provisions.

The modern debate centers on whether the amendment safeguards individual rights or whether it merely preserves a state's right to maintain militia forces (the “collectivist theory”). English antecedents not only allowed the possession of arms by the male citizenry, but also frequently compelled it, and many American colonies followed suit.

The amendment itself, however, arose out of Antifederalists' fears about the oppressive potential of a central government protected by a standing army. Cognizant that standing armies often aided European tyrants, and recalling the repression British regulars enforced prior to the revolution, the framers were leery of professional militaries. They were also concerned about the enormous expense of sustaining a full‐time force.

Nevertheless, influential leaders like George Washington insisted that some professional forces were required. The compromise reflected in the Constitution provides for both a full‐time national military and part‐time state‐based militias. The Second Amendment, the Supreme Court said in U.S. v. Miller (1939), was intended to “assure the continuation and render possible the effectiveness” of these militia, which were meant to counterbalance the dangers of a standing army, as well as to provide a cost‐effective supplement to the nation's defense.

According to the Supreme Court in Miller, the amendment extends only to “ordinary” militia arms. The Militia Act of 1792, for example, required the maintenance of little more than a musket and bayonet, small arms that the ordinary male citizen would have at home in the 1780s and could physically “bear.”

Eighteenth‐century warfare was organized around the massed effect of such relatively simple personal weapons. Over the next two centuries, however, the nature of warfare shifted and the strategic value of small arms declined. Today, civilians equipped with small arms hardly counterbalance the heavy weaponry of military professionals.

Twentieth‐century American laws limiting the right to bear arms are largely a response to the rise in firearm‐related crime and are usually upheld by the courts. Many follow the collectivist theory and hold that the amendment only shields state‐organized militias. Others, like the Miller decision, find that an individual's possession of a particular weapon is unrelated to a militia's “preservation or efficiency” and can therefore be controlled. Following the Supreme Court in Presser v. Illinois (1886), most courts sanction state firearms restrictions by declaring that the amendment bars only federal interference.

Despite these rulings, polls show that an overwhelming number of Americans believe the U.S. Constitution guarantees them the right to own a gun. Indeed, 80 million Americans own firearms, primarily for sporting or safety purposes. The absence of any recent Supreme Court cases addressing the Second Amendment, as well as new arguments in the 1990s that a right to bear arms might exist in the penumbra of the Ninth or Tenth Amendments, seems to assure that the nature and scope of the right to bear arms will remain contentious in the United States.
[See also Citizen‐Soldier; Militia and National Guard; Supreme Court, War, and the Military.]

Bibliography

Ellen Alderman and and Caroline Kennedy , In Our Defense: The Bill of Rights in Action, 1991.
Second Amendment Symposium Issue, Tennessee Law Review, 62 (Spring 1995).

Charles J. Dunlap, Jr.

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Right to Bear Arms

Right to Bear Arms. See Arms, Right to Bear.

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