By David Hardy

Donald Kates, is former prof. of law, Washington University (and former law clerk to William Kunstler, in case there's any doubt about his politics). His article, "Handgun Prohibition and the Original Meaning of the Second Amendment," was an initiator of the scholarly trend on the second amendment, and appeared at 82 Michigan Law Review 204 (1983):

"The founders stated what they meant by 'the militia' on various occasions. Invariably they defined it in some phrase like 'the whole body of the people,' while their references to the organized-unit-type of militia, which they called 'a select militia,' were strongly pejorative."

"In short, one purpose of the founders having been to guarantee the arms of the militia, they accomplished that purpose by guaranteeing the arms of individuals who made up that militia. In this context, it would never have occurred to the founders to differentiate between the arms of the two groups. The personally owned arms of the individual *were* the arms of the militia. Thus the amendment's wording, so opaque to us, made perfect sense to the founders: believing that a militia (composed of the whole people possessed of their privately owned arms) was necessary for the protection of a free state, they guaranteed the people's right to possess those arms. At the very least, the founder's understanding of 'militia' casts doubt upon an interpretation that would guarantee only the state's right to arm organized units."

"The second amendment's literal language creates another, even more embarassing problem for the exclusively states' rights interpretation. To accept such requires the assumption that the framers ill-advisedly used the phrase "right of the people" to describe what was being guaranteed when they actually meant 'the right of the states.' ... The phrase 'the people' appears in four other provisions of the Bill of Rights, always denoting rights pertaining to individuals. To justify an exclusively states' rights view, the following set of propositions must be accepted: (1) when the first congress drafted the bill of rights, it used 'right of the people' in the first amendment to denote a right of individuals (to assemble); (2) then, some 16 words later, it used the same phrase in the second amendment todenote a right belonging exclusively to the states; (3) but then, 46 words later, the fourth amendment's "right of the people" reverted to its normal individual right meaning; (4) "right of the people" was again used in its natural sense in the ninth amendment; (5) finally, in the tenth amendment, Congress specifically distinguished between 'the states' and 'the people,' although it had been unable to draw this distinction in the second amendment. Any one of these textual incongruities demanded by an exclusively states' rights position dooms it. Cumulatively, they present a truly grotesque reading of the Bill of Rights."