Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?

By Barnett, Randy E. | Texas Law Review, November 2004 | Go to article overview

Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?


Barnett, Randy E., Texas Law Review


Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia? THE MILITIA AND THE RIGHT TO ARMS, OR, How THE SECOND AMENDMENT FELL SILENT. By H. Richard Uviller[dagger] and William G. Merkel.[dagger][dagger] Durham: Duke University Press, 2002. Pp. xii, 340. $19.95.

Those who deny that the original meaning of the Second Amendment protected an individual right to keep and bear arms on a par with the rights of freedom of speech, press, and assembly no longer claim that the amendment refers only to a "collective right" of states to maintain their militias. Instead, they now claim that the right, although belonging to individuals, was conditioned on service in an organized militia. With the demise of organized militias, they contend, the right lost any relevance to constitutional adjudication. In this Essay, I evaluate the case made for this historical claim by Richard Ovuler and William Merke! in their book, The Militia and the Right to Arms, or, How the Second Amendment Fell Silent. I also evaluate their denial that the original meaning of the Fourteenth Amendment protected an individual right to arms unconditioned on militia service. I find both claims inconsistent with the available evidence of original meaning and also, perhaps surprisingly, with existing federal law.

Who says that even heated conflicts over constitutional meaning can never progress? Over the past ten years, the intellectual clash between those who claimed that, at the time of the founding, the "right to keep and bear arms" protected by the Second Amendment was a "collective right" of the states to preserve their militia and those who maintain instead that it originally referred to an individual right akin to the others protected in the Bill of Rights has been resolved. That the individual right view prevailed definitively is evidenced by the fact that no Second Amendment scholar, no matter how inimical to gun rights, makes the "collective right" claim any more. All now agree that the Second Amendment originally referred to the right of the individual.1

Indeed, the fact that the collective right theory was once so confidently advanced by gun control enthusiasts2 is on its way down the collective memory hole as though it had never been asserted. With its demise, the intellectual debate over the original meaning of the second Amendment has turned in a different direction. Although now conceding that the right to keep and bear arms indeed belongs to individuals rather than to states, almost without missing a beat, gun control enthusiasts now claim with equal assurance that the individual right to bear arms was somehow "conditioned" in its exercise on participation in an organized militia.

The "militia-conditioned individual right" theory represents an advance for the anti-gun-rights position. It obviates (a) the copious evidence, both direct and circumstantial, that "the right to keep and bear arms" belonged to individuals3 and (b) the lack of any direct evidence that the Second Amendment protected some sort of a never-very-well-specified power of states, while (c) allowing opponents of gun rights to maintain, as they did with the "collective right" theory, that the second Amendment is irrelevant to the constitutionality of modern gun laws. But is the theory supported by the available evidence?

The latest to make this historical claim are Richard Uviller and William Merkel. In their book, The Militia and the Right to Arma, or, How the Second Amendment Fell Silent, Uviller and Merkel reject the collective right theory and characterize the Second Amendment "right to keep and bear arms" as an individual right.4 However, they further claim that, because the right to arms may be exercised only while participating as part of an organized militia,5 its existence as a constitutional right is conditioned on the continued existence of a well-regulated militia. With the demise of the organized militia, so too has vanished the right to keep and bear arms. …

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