The Second Amendment: Structure, History, and Constitutional Change
A fierce debate about the Second Amendment has been percolating in academia for two decades, and has now bubbled through to the courts. The question at the heart of this debate is whether the Amendment restricts the government’s ability to regulate the private possession of firearms. Since at least 1939 – when the Supreme Court decided United States v. Miller, its only decision squarely addressing the scope of the right to “keep and bear Arms” – the answer to that question has been an unqualified “no.” Courts have brushed aside Second Amendment challenges to gun control legislation, reading the Amendment to forbid only laws that interfere with states’ militias. Recently, however, that judicial orthodoxy has come under attack from a group of revisionist scholars. Rather than protecting only the states’ militia, the revisionists have argued, the Amendment “protects an individual right inherent in the concept of ordered liberty.” The revisionist position emerged in the 1980s and has won growing acceptance among constitutional scholars. The breakthrough moment came in 1989, when Sanford Levinson published his article The Embarrassing Second A mendment in the Yale Law Journal. Levinson largely accepted the revisionists’ historical account of the Second Amendment, and he suggested that the Amendment limits legislators’ ability to regulate guns to a much greater extent than judges and scholars had theretofore acknowledged.