Academic journal article
By Hardy, David T.
The William and Mary Bill of Rights Journal , Vol. 15, No. 4
A WELL-REGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGIN OF GUN CONTROL IN AMERICA By Saul Cornell.[dagger] New York: Oxford University Press, 2006. Pp.277. $30.00
"Every thing of a controvertible nature," James Madison noted regarding his proposed Bill of Rights, "was studiously avoided."1 We may wonder what he would think of the 217 years of controversy that followed.
For most provisions of the Bill of Rights, the controversies have focused upon their boundaries and limitations. What is an "unreasonable search," a "compelled" self-incrimination, an "establishment" of religion? In the case of the Second Amendment2 the dispute is far more fundamental, going to the very question of whether it has any meaningful existence. Here, the conflict has been one between variants of two viewpoints:
(1) the "individual rights" view,3 which has two variants:
(a) The "standard model," which sees the Second Amendment as guaranteeing a personal right on par with other Bill of Rights protections;
(b) What I have termed the "hybrid" view, which sees it as guaranteeing an individual right but limited to private bearing of arms suited for military or militia use;4 and
(2) the "collective rights" view which likewise has two variants:
(a) The traditional "collective rights" approach, which sees the amendment as protecting only a state interest in an organized militia, i.e., National Guard units;5 and
(b) What the Fifth Circuit has termed the "sophisticated" collective rights approach, which sees it as protecting individual activity but only if directly linked to organized militia missions.6
As the first view treats the Second Amendment as a meaningful restriction on legislative action, while the second treats it as fundamentally meaningless,7 the conflict is absolute.
The history of the understanding of the American right to arms has followed an unusual course in which the advantage swayed back and forth between the two schools of thought. At its outset, the existence of an individual right was taken for granted by courts,8 commentators,9 and the general public10 throughout the eighteenth and nineteenth centuries. The collective rights view was first enunciated, by a state court, in 1905.11 1 In 1939, the United States Supreme Court declined to accept that approach in United States v. Miller;12 soon thereafter, however, two Circuits read Miller either as endorsing the collective rights approach13 or as setting only a threshold test that permitted them to go farther and accept such an approach.14 Most of the remaining circuits followed,15 and this reading of Miller became a matter of "received wisdom" to the point in which some decisions suggest the authors had not bothered to read Miller before interpreting it.16
Even as late as the early 1960s, Supreme Court justices and an article selected by the American Bar Foundation as the winner of its constitutional law essay competition were willing to acknowledge the essentially individual nature of the right protected by the Second Amendment, but that changed by the end of the 1960s. . . .
It is fair to say that by the 1970s the collective or states' rights theory had won the day with most jurists and legal and lay commentators who opined on the issue. . . . Throughout the 1970s and 1980s, expressed opinion on the part of the elite bar, the bench, and the legal academy was firmly on the side of those who denied the existence of an individual right to arms.17
The tide was, however, changing once again. When first I published on the subject in 1 974, 18 there were but a few scholarly treatments in print and none of any particular depth.19 Over the next decade, scholarship in the field expanded, largely as a result of the efforts of Stephen Halbrook, the late David Caplan, and Joyce Malcolm.20 In 1983, Don Kates published a lengthy breakthrough article in the Michigan Law Review.21 Thereafter, scholarly treatment of the individual rights approach grew exponentially. …