Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The pistols had hardly cooled after the murder of 32 innocents at Virginia Polytechnic Institute and State University in April when the old debate broke out: Does the Second Amendment prohibit government interference with the right of individuals to keep weapons for hunting and self-defense? The Second Amendment provides 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.” While the National Rifle Association, and its opponents, are equally certain that the amendment protects � and does not protect � hunters, it is fatuous to hold a dogmatic view. As constitutional text goes, the Second Amendment may take the prize as the most incoherent provision of the document. The introductory clause does indicate that the purpose of the amendment was to maintain militias (i.e., military bodies of some sort). That was strongly implied by the U.S. Supreme Court in U.S. v. Miller, 307 U.S. 174 (1939), and is the opinion held by most federal courts of appeals. Alas, that is only the beginning of wisdom. If we are bound by an originalist interpretation, “Militia” means what it did to the founders: almost all able-bodied white men who were, like Cincinnatus, farmers ready to serve. That capacious view of the soldiery implied that limiting weapons to a semi-professional class of part-timers was unfeasible. As the amendment states, however, it is the maintenance of “well regulated” militias that is the purpose of the provision. There is room even here to regulate militias, however defined, to ensure licensing of responsible persons only. Support for a modern reading But a modern reading of “Militia” can be justified. As Justice Oliver Wendell Holmes said about the interpretation of the 10th Amendment, we should not consider “merely . . . what was said a hundred years ago . . . [but] what this country has become.” Missouri v. Holland, 252 U.S. 416 (1928). Since the adoption of the Second Amendment more than 200 years ago, the country has changed: The “Militia” has become the National Guard, and the country has become violent with gun-slingers. If the militia may now be seen as a small class of trustworthy Guardsmen, they alone would enjoy the protection of the Second Amendment. That would greatly reduce the risk of another Virginia Tech. The second clause of the text supports a restrictive reading: It speaks of the right to “keep and bear arms.” There can be little doubt that, in the context of talk of militias, to “bear arms” is (and was) a military activity, not a hunter with his rifle slung over his shoulder. A wise state court said almost 175 years ago, “a man in pursuit of deer, elk, and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms.” A ymette v. State, 21 Tenn. 154, 161 (1840). While “to keep” arms is a looser concept, it is conjoined with “bear,” a narrower, determinative word: Minute Men would “keep” their muskets at home, at hand if called to arms. A vexing problem remains. Recall that the first 10 amendments were adopted en bloc, permitting the inference that terms used in the Second Amendment have the same meaning as the same terms used in the others. Rights are granted to “the people” in the first, second, fourth, ninth, and 10th amendments. They imply that all the people, and each of them, possess the granted rights. It seems to follow that the right to bear arms belongs to each and every one of us. But the transformation of the “Militia” into the National Guard supports a contrary interpretation, as does the social change in the incidence of gunnery. The Second Amendment now seems to mean that the right to bear arms is confined to a small group of part-time, semi-professional soldiers. The gun lobby thinks otherwise. Perhaps the only point on which there is general agreement � as the 2d U.S. Circuit Court of Appeals typically held in Bach v. Pataki, 408 F.3d 75, 84-85 (2d Cir. 2005) � is that the amendment restrains only the federal government. Unless some other provision of the U.S. Constitution applies � like the “Privileges and Immunities” clause, perhaps � the states, within the limits of their constitutions, are unfettered, and may do what is necessary to protect us. The question of political will remains. Joseph D. Becker is of counsel to New York-based Becker, Glynn, Melamed & Muffly, and was a founding partner of the firm.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.