Many detractors of the right to keep and bear arms have tried repeatedly over the years to make the claim that the Second Amendment refers only to a right held by a state-run militia, not individuals. This interpretation holds that the federal government can regulate, restrict, and even outright prohibit certain types of guns and ammunition.
Putting aside all historical evidence to the contrary, what other ramifications would this view have for the rest of the Constitution?
A paper titled “The Second Amendment and States’ Rights: A Thought Experiment” attempts to answer this question. It was written by Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee Glenn Harlan Reynolds and Don B. Kates, a retired American lawyer and research fellow with The Independent Institute in Oakland, Calif. Kates is also the author of Firearms and Violence: Issues of Public Policy.
For the “thought experiment,” they differentiate between individual right to keep and bear arms and the “states’ rights” bent, in which the Second Amendment only applies to militias.
Reynolds and Kates immediately pose the question at hand (emphasis added):
“If the Second Amendment grants rights to states, rather than individuals, what exactly are those rights, and what are the consequences for the Constitution and other aspects of state and federal relations?”
For the individual rights view of the Second Amendment, the question is easy to answer, but for the states’ rights interpretation “must mean–if it is to mean anything at all—-that a federal action that invades a state’s protected interests can be challenged in court, and that it can be struck down where it is not justified by highly compelling circumstances,” they write. “This, of course, leaves open two important questions. The first question is what state interests, exactly, are protected by a “states’ rights” interpretation of the Second Amendment. The second question is what are the consequences of recognizing such rights today.”
What makes the states’ rights idea of the Second Amendment difficult to implement, they write, is that too often its defenders have failed to provide a logically and constitutionally consistent defense of their interpretation.
“In trying to determine the purposes of a state right under the Second Amendment, the obvious place to look first is in the writings of those who champion such an interpretation,” they write. “Unfortunately, they provide little help. The states’ right interpretation appears to be employed against the individual right interpretation in much the same fashion as a chain of garlic against a vampire, pulled out and brandished at need but then hastily tossed back into the cellar lest its odor offend.”
One gun control activist claims the Second Amendment was designed to allow people to bear arms, but only as part of a state militia.
“Thus,” they write, “it seems fair to say, the scope of any rights enjoyed by the states under the Second Amendment would be determined by the goal of preserving an independent military force not under direct federal control.”
“The consequences of such a right,” they conclude, “are likely to be rather radical.”
Although the Second Amendment, under this interpretation, would mean no individual right to keep and bear arms, it would create a right on the part of the states.
“By necessity it works a pro tanto repeal of certain limitations on state military power found in the Constitution proper, renders the National Guard unconstitutional, at least as currently constituted, and creates a power on the part of state legislatures to nullify federal gun-control laws, if such laws are inconsistent with that state’s scheme for organizing its militia,” they write.
Reynolds and Kates correctly highlight the Founders’ fear of a standing army, something which complements the individual rights interpretation of the Second Amendment. In fact, this view allows the citizens themselves to decide what tyrannical form of government, state or federal, needs to be resisted. While the states’ rights view fits with the former, as to the latter it leaves individuals with no means of recourse if either the state fails to intervene of if the state itself is the source of tyranny, unless the federal government stepped in.
“If the Second Amendment was designed to create an independent state counterweight to federal military power, then it must at the very least protect those aspects of state military forces that are independent and that serve as counterweights to federal power,” Reynolds and Kates write.
This presents inescapable contradictions, such as three pre-amendment provisions of Article I.
Article I, section 8, clause 15 grants to Congress the power:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.
Article I, section 8, clause 16 grants Congress the power:
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
Thirdly, there is Article I, section 10, clause 3, which provides that:
No State shall, without the Consent of the Congress, … keep Troops, or Ships of War in time of Peace …
“What is wrong with these provisions?” Reynolds and Kates ask. “In the states’ right formulation…they were not sufficient in themselves to address concerns that state military forces might be under too much federal control–otherwise the Second Amendment would not have been needed. Indeed, these provisions helped give rise to precisely the kind of fears that the states’ right interpretation claims the Second Amendment was intended to address.”
The other issue is that “they are in many ways inconsistent with the states’ rights theory’s stated purpose of the Second Amendment.”
The only way for the states’ rights view of the Second Amendment to survive, they conclude, is that it would limit “the authority of Congress to regulate the arming, discipline, or training of the state militia…as an independent force that citizens correctly would identify as belonging to their state government, rather than as a federal institution.”
“Accordingly, any regime providing for systems of arming, training, or disciplining state forces that is inconsistent with such a purpose would be unconstitutional,” Reynolds and Kates write. “For example, a rule that state militias could be armed only from federally-controlled armories, or trained only with ‘dummy’ or nonlethal weapons, or that they must be overseen by federal political officers to ensure loyalty to the United States, would violate the independence of state military forces and thus the Second Amendment.”
The opposing interpretations also have to be placed within the context of the political debate in which the Second Amendment, along with the other nine, were added to the Constitution.
“The Antifederalists had opposed ratification of the Constitution on two very different kinds of grounds,” they write. “One involved deep suspicion about specific provisions, particularly those allowing a standing army and providing for federal supervision of the militia. Entirely independent of those specifics, the Antifederalists, and many other Americans, were critical of the failure to append to the Constitution a charter of basic human rights that the federal government could not infringe under any circumstances.”
The individual right view sees the Second Amendment, and the Bill of Rights in general, as a response to the second issue, according to Reynolds and Kates. The states’ right view, on the other hand, ultimately leads to the logical conclusion that the Second Amendment was a de facto repeal of certain sections of the original Constitution, a claim which proponents have no evidence or proof to substantiate.
Reynolds and Kates then pose a followup question: “If, as states’ right advocates would have it, the Second Amendment creates a right of the states to possess a measure of independent military power, what are the consequences of applying that right in the present day?”
For example, the states rights view of the Second Amendment could theoretically allow private individuals who are members of a state militia to own automatic rifles and other weaponry currently prohibited by federal laws – laws which would have to be declared unconstitutional under this view, according to Reynolds and Kates.
“Thus, most federal firearms laws would not be applicable to citizens covered by state militia laws–though no doubt the federal government would retain the power to outlaw weapons obviously unsuited for militia use such as derringers, wallet-guns, umbrella-guns, and sawed-off shotguns.”
“One might attempt to avoid this consequence by arguing that the only militia covered by the Second Amendment is the National Guard,” they write further, “but, as demonstrated below, the consequences of that approach are also rather radical.
Except that the National Guard is neither independent nor merely confined to the authority of the states. Guardsmen are members of both their respective State Guard and the federal armed forces. They are armed, paid, and trained by the federal government, which also has the authority to call them up at any given time.
Most tellingly, guardsmen must give an oath of allegiance to the federal government as well as to their state.
“This de facto federal control makes it difficult to argue that the National Guard is capable of carrying out the militia’s role, central to the states’ right interpretation, of serving as a counterweight to the power of the federal standing army,” they write.
Only two possibilities allow the states’ rights view to survive scrutiny. One is that the National Guard is not militia under the Second Amendment or that the National Guard is that militia, is unconstitutional in its current form.
“The existing case law suggests the former answer,” they write, referring to Perpich v. Department of Defense.*
“States clearly do not serve the ends of the Second Amendment by maintaining a National Guard,” they declare. “Rather, they serve the ends (however admirable) of the national government.”
The individual right view, they conclude, “requires precisely what advocates of the states’ right approach wish to deny: an individual right to keep and bear arms. But criticism of a constitutional provision on the basis that it grants people rights that one does not like–though an approach also possessed of a long, if not distinguished, history–is not very persuasive.”
If gun control advocates wish to change this, they write, the solution is to amend the Constitution through Article V and not “through specious interpretive schemes.”
As to whether or not the Second Amendment protects the right of states or individuals, the answer can be found merely by reading the text itself (emphasis added).
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.”
*Interestingly, Reynolds and Kates conclude that the states’ rights view would also imply that the state governments act as “interposed between the federal government and their citizens,” something they believe was settled by the Civil War. It would also require that Brown v. Board of Education, indeed Supreme Court jurisprudence going back to McCulloch v. Maryland, be reconsidered. While we obviously reject the states’ rights view of the Second Amendment, we nevertheless believe the constitutionality of numerous cases by the Supreme Court itself, including their modern interpretation, be reconsidered, along with the mainstream attitude toward the Civil War’s effect on state sovereignty.