By David Hardy

Akhil Amar is Prof. of Law at Yale Law School. He's author of numerous articles and texts on constitutional law, and has a national reputation as one of the top scholars, if not "the" top scholar, on the the 14th amendment.

His groundbreaking article, "The Bill of Rights as a Constitution," was published in 110 Yale Law Journal 1131 (1990). It's considered groundbreaking in that he rejects the general approach to the Bill of Rightsthat being that it's a parcel of separate ideas, picked out and thrown together, with little in common except that they are rights. He argues to the contrary that they were carefully chosen, and that they reflect common judgments as to the nature of the individual, of his government, and of the proper relation between the two.

Like Prof. Levinson, Van Alstyne, and Reynolds, Prof. Amar completely rejects the "collective rights" view of the second amendment.That view would make the second amendment an anomaly in the Bill of Rightsa provision somehow guaranteeing a power of the states, yet placed in the midst of the guarantees of clearly individual rights.

To Amar, the second amendment reflects the judgment that physical power (like the intellectual power protected by the first amendment) is best reposed in the people. It is not primarily concerned with personal self defense, but with securing a free state, by protecting the means to revolt, should the other protections of liberty ever prove insufficient.

Relevant sections follow:

"Even if armed, unorganized citizens would face an uphill struggle when confronting a disciplined and professional standing army. In The Federalist No. 28, Alexander Hamilton described a typical nonfederal regime:

[I]f the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which [the nation] consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource . . . . [155]

In the federal system of America, however, Article I, section 8, clause 16 of the Constitution explicitly devolved upon state governments the power of "Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." In the event of central tyranny, state governments could do what colonial governments had done in 1776: organize and mobilize their Citizens into an effective fighting force capable of beating even a large standing army. Wrote Madison in The Federalist No. 46:

[T]he State governments with the people on their side would be able to repel the danger . . . [A standing army] would be opposed [by] a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence. [156]

Yet the "military check of federalism" [157] built into the original Constitution did not quiet Anti-Federalist fears. Many pointed a suspicious finger at earlier language in clause 16 empowering Congress "to provide for organizing, arming, and disciplining, the Militia." Might Congress try to use the power granted by these words, they asked darkly, to disarm the militia? [158] The Second Amendment was designed to make clear that any such congressional action was off limits.

The obvious importance of federalism to the Constitution's original allocation of military power prompts key questions about federalism's role in the Second Amendment's clarifying gloss. A good many modern scholars have read the Amendment as protecting only arms-bearing in organized "state militias," such as SWAT teams and National Guard units. [159] If this reading were accepted, the Second Amendment would be at base a right of state governments rather than Citizens. If so, the Amendment would be analogous to the establishment clause, and similarly resistant to incorporation against state governments via the Fourteenth Amendment. [160]

Though in some ways congenial to my overall thesis about the Bill of Rights, this reading doesn't quite work. The states' rights reading puts great weight on the word "militia," but this word appears only in the Amendment's subordinate clause. The ultimate right to keep and bear arms belongs to "the people," not the "states." As the language of the Tenth Amendment shows, these two are of course not identical and when the Constitution means "states," it says so. [161] Thus, as noted above, "the people" at the core of the Second Amendment are the same "people" at the heart of the Preamble and the First Amendment, namely Citizens. What's more, the "militia" as used in the Amendment, and in clause 16, had a very different meaning 200 years ago than in ordinary conversation today. Nowadays, it is quite common to speak loosely of the National Guard as "the state militia," but 200 years ago, any band of paid, semiprofessional, part-time volunteers, like today's Guard, would have been called "a select corps" or "select militia"and viewed in many quarters as little better than a standing army. [162] In 1789, when used without any qualifying adjective, "the militia" referred to all Citizens capable of bearing arms. [163] The seeming tension between the dependent and the main clauses of the Second Amendment thus evaporates on closer inspectionthe "militia" is identical to "the people" in the core sense described above. Indeed, the version of the Amendment that initially passed in the House, only to be stylistically shortened in the Senate, explicitly defined the "militia" as "composed of the body of the People." [164] This is clearly the sense in which "the militia" is used in clause 16 and throughout The Federalist Papers, [165] in keeping with standard usage [166] confirmed by contemporaneous dictionaries, legal and otherwise.

A more plausible bit of text to stress on behalf of a states' rights reading is "well regulated." [167] It might be asked, who, if not state governments, would regulate the militia and organize them into an effective fighting force capable of deterring would-be tyrants in Washington? And does not the right to "regulate" subsume the right to prohibit, as the Supreme Court has explicitly recognized in commerce clause cases such as Champion v. Ames? [168] And if so, how can a provision designed to give state governments broad regulatory power over their Citizens' arms-bearing be incorporated against states to limit that very power?

Though much stronger than the standard states' rights reading, this chain of argument has some weak links of its own. First, it appears that the adjective "well regulated" did not imply broad state authority to disarm the general militia; indeed, its use in various state constitutional antecedents of the Second Amendment suggests just the opposite. [169] Second, and connected, the notion that congressional power in clause 16 to "organiz[e]" and "disciplin[e]" the general militia logically implied congressional power to disarm the militia entirely is the very heresy the Second Amendment was designed to deny. How, then, can we use the Amendment's language to embrace the same heresy vis-a-vis state regulation? [170] What's more, in dramatic contrast to the establishment clause and the Tenth Amendment, the right to keep and bear arms was viewed by key framers of the Fourteenth Amendment as a "privilege of national citizenship" that henceforth would apply, and perhaps should always have applied, against states. [171] Senator Howard, for example, explicitly invoked "the right to keep and bear arms" in his important speech cataloguing the "personal rights" to be protected by the Fourteenth Amendment. [172] Howard and others may have been influenced by the antebellum constitutional commentator William Rawle, who had argued in his 1825 treatise that the Second Amendment as written limited both state and federal governmenta view embraced by at least one (post-Barron) state supreme court in the 1840's. [173]