By David Hardy

Prof. Glenn Harlan Reynolds is Professor of law, Univ. of Tennessee. He holds his Juris Doctorate from Yale, and is generally considered a rising light in the field of American constitutional law.

In his article "A Critical Guide to the Second Amendment," 62 Tenn. Law Review at 492-93 (1995), he solidly espouses the individual rights view of the second amendment.

Prof. Reynolds begins by noting that the scope of the second amendment is not nearly so disputed as that of many amendments. There are enormous disagreements about the scope of freedom of speech (protection of pornography, etc, public funding of art offensive to religion, etc.), and even more about the scope of 9th amendment or unenumerated rights (abortion, sexual practices, etc.). The second amendment dispute basically breaks down into two choices--collective vs. individual right.

He opens by discussing the individual rights theory--in light of its widespread acceptance among scholars, he labels this the "standard model" of the second amendment. He notes that, until the last decade or so, the second amendment was not seriously debated by constitutional law academics, but since Prof. Levinson's article, the debate has flourished, and virtually all in support of individual rights approaches.

He reviews the history of an individual right to arms, and comments that we all accept that the framers sought to divide power, as checks and balances, between the branches of the federal govenrnment, and between the fed. and state governments. "But under the Standard Model, it is fair to say that the Framers divided power yet another way, by ensuring that the citizeny possessed sufficient military power to offset that of the Federal government. Such a division makes sense in light of such constitutional language as the Preamble's statement that the authority of the government comes from the people, and the similar statement in the tenth amendment. If the federal and state governments are merely servants of the people, it is logical that the people would be reluctant to surrender a monopoly on military power to their servants, for fear the servants might someday become the master. This was certainly the view of commentators throughout the nineteenth century [citing Justice Joseph Story's comment that the right to keep and bear arms was the "palladium of the liberties of the republic" and Joseph Story's description of the right as "The right of the people to bear arms in their own defense *and* to form and drill military organizations in defense of the state," which would (in Story's words) protect "self government against usurpation," state or federal].

He then discusses the militia concept. He notes that Henigan, an employee of an antigun group, asserts that the framers could not have meant to embody a right of revolution. Reynolds responds that they clearly did. A state constitution expressly guaranteeing such a right was praised by Jefferson as the "least imperfect and most republican of the state constitutions." He joins with Prof. Van Alstyne in pointing out that the second amendment states the militia is not to guarantee the "security of the state" but rather "the security of a FREE state." "The purpose of the second amendment is to ensure an armed citizenry, from which can be drawn the type of militia that is necessary to the survival of a free state." He demonstrates that the "well-regulated" militia meant one that was well-trained and equipped, not one that was well regulated in the sense of being subject to numerous government prohibitions.

"One commonplace assertion of newspaper editorials and otherw who discuss the second amendment in the popular press is that the National Guard is the "miltia" protected by that amendment. This is clearly wrong. As mentioned above, the 'militia' referred to in the second amendment was to be composed of the entire populace, for only such a body could serve as a check on the government. Indeed, both English and American history had led Americans to be very suspicious of 'select' militias."

He adds that the National Guard has a dual status--members of both the state guard and the national armed forces, taking oaths of loyalty to both, subject to being called out by the President, and subject to federal martial law when so called out. They thus cannot fulfil the purpose of the "militia" mentioned in the second amendment.

He then discusses the collective rights approach, and rejects it. "The most obvious flaw of this theory is the failure of its own proponents to take it seriously." This theory would require them--IF they were to really accept it, to maintain that the second amendment guarantees a right of STATES to rebel against the federal government, and to assume that the second amendment were meant to restrict Congressional powers, given in the original constitution, over state military groups:

"If states possess a constitutional right, as against the federal government, to maintain militias, then the second amendment works a pro tanto repeal of many of the restrictions on state military power contained in Article I, sec. 10 of the Constitution.... The Congressional power to supervise the arming and training of the militia, contained in Article I, sec. 10, clause 16 would have to be viewed as modified by the second amendment if we are to give the states' rights interpretation meaning."

"One might try to avoid this problem by simply declaring that the National Guard is the 'militia' that the states have a right to maintain, but this argument has two problems. First, for reasons set out above, is it obviously not true. After all, an institution that is to serve as a counterweight to the federal standing army can hardly fulfill that function if it is as thoroughly dominated by the federal government as is the present National Guard. Whatever the Guard is, it is not a 'state army.' Rather, it is a federally funded and controlled force with a (very) thin facade of state control. The Supreme Court so reasoned in Perpich [where] the Court concluded that Congress' powers to raise armies and make war, rather than its militia powers, were implicated. ....."

"Moreover, the states' right theory is based on a discredited (and always unsound) notion of relationships within our federal system. Under the classical view of the constitution, authority is delegated by the people to two kinds of governments, state and federal. State government are not creatures of the federal government, nor the federal government the creature of the states. But there is another view, in which state governments represent the real governments of the people. The federal government exists as a somewhat mistrusted agent of the states, with the states retaining their power to protect their people (and themselves) ... This seems to be the view embodied in the states' rights interpretation, in which 'state armies' as set against the federal government....If applied across the board, this would have rather dramatic consequences.... Unless we are to be entirely incoherent, we would have to seriously consider rethinking constitutional history all the way back to Brown, and indeed to McCulloch v. Maryland."

"These are rather important issues, but they have not been raised, much less addressed, by the proponents of the state's rights theory. It is no accident that most of those writers are not academics, but politicians and issue-oriented activists. If I may mix my academic metaphors, the state's rights theory may be analogized to 'creation science,' a mismash of unconnected observations and non sequiturs intended to compete with the theory of evolution. .... Similarly, the state's rights interpretation of the Second Amendment, which pays little attention to text, history, or structural sense, is not really constitutional law. It is simply a slogan."

Finally, he reviews the court decisions. Cruikshank of course held the first and second amendments weren't incorporated and applicable to the states, since they were natural rights that existed before the constitution, and hence not rights "granted" by that document. He notes two big problems with the decision. First, following its reasoning requires us to conclude that the first amendment is also inapplicable to the states. Second, the claim that a right predating the constitution is unenforcable as against the states requires us to reject Griswold (which struck down state laws against contraceptives as an invasion of a "right of privacy" protected by the 9th amendment among others) and hence Roe v. Wade (applying Griswold to strike down abortion laws.). Griswold clearly stated that the right to privacy was "older than the bill of rights." The same flaws are apparent in the laterm cases of Presser and Miller v. Texas.

Finally he turns to US v. Miller. Prof. Reynolds notes it answers few questions, but still poses some important lessons. There, the Supreme Court remanded for factfinding on whether the gun in question was suitable for militia use. Reynolds notes "Miller cannot plausibly be read to support the state rights' position: if the second amendment protected only a right of states to have militias, not enforcable by individuals--as states' rights theorist claim--then factfinding would not have been necessary. Instead, the court would have had to ask only one question: "Is Mr. Miller a state?"

Reynolds notes that Miller cited the state case of Aymette for authority. Aymette suggested that the arms which citizens were protected in keeping and bearing were those "usually employed in civilized warfare, and which constitute the ordinary military equipment"--by possessing these, citizens were "prepared in the best manner possible to repel any encroachments upon their rights by those in authority." Moreover, the later case of Andrews v. State, which relied upon Aymette, made it very clear that the right was an individual one. Andrews suggested that "bearing" arms might be viewed as a political right, but "keeping" them is "a private individual right, guaranteed to the citizen, not the soldier." The Andrews court concluded that the individual had a constitutional right to buy arms, keep and repair them, and to purchase ammunition suitable for them. "And for this purpose, a man would have the right to carry them to and from his home, and no one can claim that the legislature would have a right to punish him...." Andrews went on to clarify that the right to "keep" also involves the right to "use," so long as it was not for a criminal purpose or invasion of rights of others.