A Lawyer's Guide to the Second Amendment

Steven H. Gunn* 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. -U.S. CONST. amend. II. I. INTRODUCTION Few subjects in American jurisprudence have produced as much work by legal scholars, so little of which is of use to practicing attorneys, as the Second Amendment to the U.S. Constitution. The author learned first-hand of the volume of scholarly works on the Second Amendment when he spent an entire Saturday reading law review articles devoted to the subject only to find when the lights were turned out that he had perused less than a third of the articles written on the subject since 1980. And yet, as a practical matter, the author has never had a case in which the Second Amendment was remotely relevant and is personally acquainted with only one attorney in the State of Utah who has ever had such a case. The few attorneys who will ever see a Second Amendment case will likely fall into one of the following categories: criminal attorneys in cases where the possession of a firearm is prohibited1 or acts as a penalty enhancer; government attorneys whose "clients" seek guidance in the drafting of gun control legislation or ordinances;2 attorneys whose clients sell or import firearms;3 and attorneys representing gun rights groups whose clients wish to participate in cases testing the validity of gun control statutes and ordinances.4 This Article is intended as a brief overview for practitioners embarking on their maiden voyage aboard the U.S.S. Second Amendment. Part II of the Article outlines the debate over the individual right and collective right interpretations of the Second Amendment. Part III discusses the landmark case of United States v. Miller. Part IV examines the future of Miller in light of recent Supreme Court cases. It also considers the Fourteenth Amendment as it relates to the Second Amendment and the probable analysis the Supreme Court would use if it were in fact to adopt an individual rights interpretation of the Second Amendment. The Article's message can be summed up by the advice that any attorney whose client seeks invalidation of a statute on Second Amendment grounds, should be careful to avoid a contingent fee arrangement. Legal academics can pontificate endlessly, but for nearly a century the courts have shown no signs of altering a very limited Second Amendment jurisprudence. II. THE INDIVIDUAL VS. COLLECTIVE RIGHT CONTROVERSY The amount of articles and treatises dealing with the Second Amendment is testimony to the fact that its meaning is subject to disagreement. The Amendment is not a model of clarity. It is unclear what relationship the first clause-"a well regulated Militia being necessary to the security of a free State"5-has to the second clause-"the right of the people to keep and bear Arms, shall not be infringed."6 Indeed, the words within the clauses are also ambiguous: What do the expressions "well regulated," "Militia," "free State," and "keep and bear Arms" mean? Virtually every law review article written on the Second Amendment devotes considerable space to discussion of one or more of these expressions.7 In general, there are two major, mutually exclusive views of the Second Amendment: (1) that it guarantees an individual right to bear arms; and (2) that it protects the states from interference with their militias by the federal government (the collective right argument). Manning the barricades in the individual right camp are a majority of the contributors to Second Amendment literature, while the collective right forces consist of all judges who have written Second Amendment opinions in the last sixty years8 and a minority of the authors of books and articles on the subject.9 Given the large number of authors and publications that have dealt with the Second Amendment, it is not possible to summarize in a few sentences the shades of meaning and understanding that each author brings to the subject. …