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Who Has the Right To Bear Arms?The fight over the Second Amendment, explained.

By Dahlia Lithwick
Posted Wednesday, Nov. 21, 2007, at 10:54 AM ET

The Supreme Court announced Tuesday that it would consider whether the Constitution gives individuals the right to bear arms. Dahlia Lithwick explained the arguments on both sides of this question in a 2001 "Explainer," reprinted below. In the intervening time a lot has changed, including the DoJ's stance on the question.

In a recent letter to the NRA, Attorney General John Ashcroft claimed that the Second Amendment guarantees an individual the right to be armed. This conflicts with the Justice Department's official legal position, which holds that Second Amendment rights are limited to the collective rights of states to regulate their own militias.

What rights are there to own a gun under the federal Constitution?

The Second Amendment provides that "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The issue turns on whether that right to bear arms represents an "individual" or "collective" right. The NRA (and Ashcroft) advocate an affirmative individual right, akin to First Amendment free speech protections, granting us the right to have guns to hunt, protect ourselves, and hold government storm troopers at bay. Gun control activists and the Justice Department (save, apparently, for Ashcroft) hold that the right as it is codified in the Second Amendment only protects the states' authority to maintain formal, organized militias. Because the Second Amendment only concerns federal efforts to regulate firearms, state gun control efforts do not implicate the Second Amendment, and most gun laws are promulgated at the state level.

State law and state constitutions may change, but the progress of Second Amendment jurisprudence is glacial. As a matter of pure legal precedent, the Justice Department likely has the winning argument in this debate simply because the last time the U.S. Supreme Court ruled on this point was in 1939. In United States v. Miller, the court held that the Second Amendment right to keep and bear arms is not applicable in the absence of a reasonable relationship to the "well regulated militia" provision of the Second Amendment. The court stated that:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

The Supreme Court has turned down every opportunity to accept a new case and clarify the question of whether Miller established a definitive test requiring some connection between guns and state militias or whether it was announcing a one-time-only rule about Jack Miller and his shotgun. Still, the lower courts have followed the first view, and, in the wake of Miller, virtually every lower court has accepted the state militia/collective rights test as a settled point of law. While a fascinating normative debate over whether or not the right should be an individual one rages in the academy, in think tanks, and around the candy machines at NRA headquarters, the Second Amendment issue is not a close call in the courthouse. Eminent legal scholars, including Sanford Levinson and historians such as Emory's Michael Bellesiles, have done some staggering scholarly work on the subject of the original intent of the Framers and the prevalence of guns at the time of the founding of the country. [Updated May 8, 2002: Bellesiles' methodology has recently come under fire by constitutional scholars.] None of it has induced the Supreme Court to step into the fray.

The modern Supreme Court has invalidated federal gun laws, most recently in United States v. Lopez, but not on Second Amendment grounds. Nothing about the decision in Lopez reinforces an individual's right to bear arms; it merely curbs congressional attempts to regulate guns, which is by no means the same thing.

Why do opinion surveys show that most American citizens believe in the individual rights position? Some legal scholars call this widespread public conviction a "hoax" and "false consciousness." Some contend that the NRA has done a spectacular job of spinning an individual right out of law review articles, John Wayne movies, and effective propaganda. Others argue that the personal right to a gun is nevertheless a right whose time has come and that it's just a matter of the courts catching up to public opinion.

Next question?

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Dahlia Lithwick is a Slate senior editor.
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