Marguerite A. Driessen*
The Second Amendment is not for everyone. For the uninitiated, like myself, a foray into its analysis is fraught with potential pitfalls. There is an intensity of feeling on all sides of the debate that screams "This is personal!" between the lines discussing statutory construction, case analysis, and original intent. Does the Second Amendment to the United States Constitution recognize a right to bear arms? If so, is that right held by each individual who enjoys the protections of the Constitution or is it held by the "people" in some collective fashion? Is that right fundamental, such that any governmental edicts affecting it in any way are immediately suspect? Or, is it merely so much esoterica in the twentieth century when we are a free people and have evolved from our rough and ready pioneer ancestors for whom weapons were as essential as food, water, and oxygen? Whatever side of the issues people fall on, their positions have been carefully forged and are deeply entrenched.
The debate, however, is largely an academic one. As a legal matter, the Second Amendment hardly resembles a controversy. Not a single case decided in this country has struck down statutes regulating the use or possession of firearms based on the Second Amendment. An early Supreme Court case set the stage,1 and all subsequent cases have obediently fallen neatly into line.2 Even recent cases in which the Supreme Court has invalidated gun-control legislation cannot be claimed as victories by those who believe the Second Amendment codifies a fundamental right because the Court did not rely on the Second Amendment to reach its conclusion. For example, in United States v. Lopez3 the Supreme Court invalidated the Gun Safe School Zone Act as beyond the scope of the Commerce Clause through which Congress had claimed the authority to promulgate the legislation. Similarly, the Supreme Court's recent evisceration of the Brady Bill was not based on the Second Amendment. Rather, it was based on notions of federalism.4
So why does the debate yet rage on and why is this yet another entry in the Second Amendment library? As a descendant of both slaves and forcefully dispossessed Native Americans, I can personally acknowledge that unanimity of legal opinion in no way guarantees its accuracy. But most importantly, whether you believe that cases addressing the Second Amendment have been decided rightly or wrongly, there is a distinct sense that they have not been decided well. The so-called settled case law raises more questions than answers.
One conclusion apparently "settled" by the courts is that the protections of the Second Amendment (whatever they may be) are not implicated unless the arms at issue or the manner in which those arms are being stored, carried, or used bear some reasonable relationship to a well-regulated militia.5 If neither the arms nor the individual have that relationship-and so far none have been found to do so-the individual has been afforded no Second Amendment protection. In essence, courts have been able to punt6 on the issue of whether there is a fundamental right to bear arms and what the scope of that right might be. Assuming such a right, arguendo, courts have handily concluded that no right is implicated under the facts of the individual case because the militia is not affected.
These "settled" holdings thereby raise an important question: What is a militia? If my right to bear arms, or at the very least my right to force a court to decide whether I have such a right, is contingent on my being in a militia, it is imperative that I know the meaning of "militia." And the courts are not saying, although when confronted they do tell us what it is not. Like obscenity, the courts have adopted an UI know it when I see it" approach.7
Unlike obscenity, however, the term militia does not defy legally cognizable (and legally enforceable) description. …