By David Hardy

William Van Alstyne, Perkins Professor of Law, Duke University, is author of numerous constitutional treatises and articles; he's generally recognized as one of the top four or five con law scholars in the country, and recently was chosen by one of the emerging former USSR republics to assist in drafting their constitution. In short, a man with first-rate qualifications.

In his article "The Second Amendment and the Personal Right to Arms," 43 Duke L.J. 1236, 1243 (1994), Van Alstyne comes out solidly in favor of an individual rights interpretation of the second amendment.

He begins with a note that second amendment court decisions stand about where first amendment decisions stood at the turn of the century, in a arrested, embyonic stage, with courts reluctant to seriously consider the constitutional command. "To trust to this arrested development of the second amendmentand of the fourteenth amendmentin 1994, in short, is as though one were inclined so to trust the arrested development of the first amendment in 1904. ... In the case of the first amendment, we know quite well that such a jurisprudence only became possible rather late, in the 1920's (but, one may add, better late then never). In the case of the second amendment, in an elementary sense, that jurisprudence is even now not possible until something more in the case law of the second amendment begins finally to fall into place. That 'something more,' I think, requires one to consider what one might be more willing to think about in the following waythat *perhaps the NRA is not wrong, after all, in its general second amendment stance* a stance we turn here briefly to review."

Van Alstyne begins with a note that the individual rights view has considerable merit. He outlines this: 1. Reference to the well regulated militia "is in the first as well as in the last instance a reference to the ordinary citizenry." 2. "The very assumption of the clause moreover is that ordinary citizens may themselves possess arms, for it is from these ordinary citizens who as citizens have a right to keep and bear arms (as the second clause provides) that such well regulated militia as a state may provide for, is itself to be drawn." 3. "Indeed, it is more than an assumption, however, precisely because the "right of the people to keep and bear arms" is itself stipulated in the second clause. It is *this* right that is expressly identified as *the* right that is not to be ("shall not be") infringed."

He proceeds then to note that the amendment does not say the militia is necessary to the security of the statebut rather necessary to the security of a *free* state. He notes that other national constitutions make reference to the security of the state, but not to a right to arms. "And why do they not do so? Because, in contrast with the premises of constitutional government in this country, they reflect the belief that recognition of any such right in "the people" might pose a threat to the security of "the state."" He explores British legal history, citing Blackstone's (See St. George Tucker for more on Blackstone's) treatment of the right to arms as an "auxillary right"that is, a right supporting the right of self defense, and notes that since American courts have universally held that the government has no enforcable legal duty to protect the citizen, it is hard to square civilian disarmament with any notion of auxillary rights to self defensethat is, unless we are willing to accept that the government has no duty to defend us, yet may ensure that we cannot defend ourselves as well, in which event we are simply asserting that there is no right to defend an individual, period. He notes that the second amendment marked a rejection of the "security state," where collective security is all-important and individual security unimportant. The second amendment marked precisely the opposite approach.

"Were the Second Amendment a mere federalism ('State's rights') provision, as it is not, it would assuredly appear in a place appropriate to that purpose (i.e., not in the same list with First through Eighth Amendments, but nearby the Tenth Amendment) and it would doubtless reflect the same federalism style as the Tenth.... Instead, it is cast in terms that track the provisions of the neighboring personal rights guarantees of the Bill of Rights...."

".... Nor is there any basis to try to read the second amendment as though it said anything like the following: 'Congress may forbid the people to keep and bear arms if, notwithstanding that the restrictions it may enact are inconsistent with the right of the people to keep and bear arms, they are not inconsistent with the right of each state to maintain some kind of militia as it may deem necessary to its security as a free state.' Rather, the second amendment adheres to the guarantee of the right of the people to keep and bear arms as the predicate for the other provision to which it speaks, i.e., the provision respecting the militia .... Specifically, it speaks to an ultimate reliance on the common citizen who has a right to keep and bear arms, rather than to some other politically separated, defined, and detached armed cadre, as essential to a free state. In relating these two propositions within one amendment, moreover, it does not disparage, much less subordinate, 'the right of the people to keep and bear arms.' To the contrary, it embraces that right and indeed erects the very scaffolding of a free state upon *that* guarantee. It derives its definition of a well regulated militia in just this way for a 'free state': the militia to be well-regulated is a militia to be drawn from just such people (i.e., people with a right to keep and bear arms)."