Making a Hash of the Second Amendment

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...more