Harvard historian Jill Lepore has a piece attacking gun rights in the latest New Yorker, and a follow-up post on the magazine’s website. Most of it is basically what you’d expect: some numbers about gun violence, some horrifying anecdotes about people who’ve misused guns, some reporting from a gun range, some artsy writing (“a gun is a machine made to fire a missile that can bore through flesh”), and an overarching history of the gun-rights movement.
More irksome, however, is Lepore’s analysis of the Second Amendment’s meaning. By leaving out or misrepresenting key historical details, she shortchanges the idea that the Second Amendment protects an individual right.
There are three theories that have played a significant role in the debate on the Second Amendment. One holds that the Second Amendment protects an individual right to keep and bear arms. Another might be called the “limited individual right” or “civic right” theory, which holds that even though individuals have the right to bear arms, the right applies only in the context of militia service. (Some advocates of this theory compare the right to bear arms with the right to serve on a jury.) The third, the “collective right” theory, posits that “the right of the people to keep and bear arms” refers to the right of state governments to form militias.
This last idea is patently ridiculous, suggesting as it does that the Founders used the word “people” when they meant “states.” And yet this was the theory that swept through the appeals courts in the decades leading up to the 2008 Heller decision, in which the Supreme Court endorsed the individual-right theory. The source of the confusion seems to be the 1939 Supreme Court case United States v. Miller — and Lepore doesn’t help to clarify matters.
In Miller, the court ruled that because a sawed-off shotgun serves no militia purpose, the right to keep and bear one is not covered by the Second Amendment. It did not rule that the Second Amendment applies only to militia members. In fact, it noted that the “militia” mentioned in the Second Amendment comprised all able-bodied males, not only those called into military service. But Miller has often been cited as an endorsement of the collective-right view.
Lepore completely botches this history. She quotes the prosecutor’s brief from Miller, which argued that the Second Amendment was “restricted to the keeping and bearing of arms by the people collectively for their common defense and security,” and that the right “is not one which may be utilized for private purposes but only one which exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state.” She claims that the Court “agreed, unanimously.” And in her follow-up post, she implies that it was the individual-right interpretation, not the collective-right interpretation, that was invented out of whole cloth in the 20th century:
The assertion that the Second Amendment protects a person’s right to own and carry a gun for self-defense, rather than the people’s right to form militias for the common defense, first became a feature of American political and legal discourse in the wake of the Gun Control Act of 1968, and only gained prominence in the nineteen-seventies.
In fact, the notion of a constitutionally protected individual right to keep and bear arms has been “a feature of American political and legal discourse” since the Founding. I suggest readers look through these sources rounded up by constitutional scholar Eugene Volokh, but here are some of the most striking examples.
Some state-level precursors to the Second Amendment clearly protected an individual right. The constitutions of Pennsylvania and Vermont, for example, protected the people’s right to bear arms “for the defence of themselves and the state.” In several drafts of the Virginia constitution, Thomas Jefferson included a provision that “no freeman shall be debarred the use of arms.”