By David Hardy

Nelson Lund is a former clerk to the chief justice, U.S. Supreme Court, and professor of law at George Mason University; he holds a doctorate from Harvard and a juris doctorate from Univ. of Chicago. His article, "The Past and Future of the Individual's Right to Arms" appeared in 31 Georgia Law Review 1 (1996).

He prefaces his own comments with the note that the "serious literature on the subject is virtually unanimous in concluding that the second amendment establishes an individual right." He opens with a discussion of pre-1776 Anglo-American law, and concludes that "Americans accepted the basic theory set out by Blackstone: that a free citizen's right to arms is founded in the natural right of self-preservation and that an armed populace is an extremely important safeguard against tyranny."

Even that, he notes, does not limit the American concept, since James Madison, drafter of the bill of rights, made it clear he wanted to go beyond the common law in securing them. Lund notes that the second amendment refers to a "right of the people" to keep and bear arms, the same terminology used in the first and fourth amendments to recognize clearly individual rights. Nonetheless, some contend that it is a right of the state to a militia. "To believe that the word 'people' in the second amendment refers to the state governments requires one to assume that the Framers of the text were unbelievably sloppy or whimsical in their use of language." He notes that the second amendment *does* have an introductory clause mentioning the importance of the militia. But, he points out, "the word 'militia' was rarely used in the 18th century to refer to standing military organizations, and was apparently *never* so used in legal contexts.

Rather, the militia was consistently contrasted with such organizations" [citing to Articles of Confed. art. VI, under which the states agreed not to keep up any "body of forces," but instead to keep up "a well regulated and disciplined militia," and the constitutional provisions distinguishing "militia" from "armies", "land forces," and "troops".] Prof. Lund further criticizes the "collective right" approach: the framers, who used "militia" in one part of the second amendment and "right of the people" in the other, presumably were referring to two different conceptselse they would not have used two different terms. Further, what sense can be made if one assumes states have the rights in questionwhile a state may "keep" arms, only an individual can "bear" them"bear" is a term distinctively related to individual carrying.

"Thus, no matter which way one turns the argument, the state's rights interpretation dissolves into nonsense when one tried to square it with the constitutional language." [He notes in a footnote that some have tried to escape this by arguing that, well, the second amendment isn't quite a state's right, but is an individual rightbut only one to serve in a state's organized militia. Lund notes that this argument fails because membership in the militia was always a duty, not a right. Indeed, membership in the militia is automatic, in the legal sense; you either are or are not part of the militia of the US under federal law, or of a state, under state law, there is no question of "enlistment," let alone of a "right" to enlist.]

Lund concludes with an argument (paralleling my own) that the second amendment has two clauses, not because one limits the other, but because the militia clause was meant to appease classical republican critics of the constitution, while the right to arms clause was meant to appease jeffersonian critics. Both share a thrust in that people = militia, but each has a different meaning and constituency.