Tom W. Bell (Chapman University, Dale E. Fowler School of Law) has posted The Counter-Militia Second Amendment (24 Wyoming L. Rev. ___ (2024) (forthcoming)) (19 pages) on SSRN. Here is the abstract:
Despite their many disagreements about how to interpret it, courts and commentators agree that the Second Amendment of the United States Constitution favors the militia. Some think that the Second Amendment protects an individual right to keep and bear arms so that citizens can better defend themselves and their country. Others think that the right pertains only to active service in a militia that has been called up and put into public service. But what if they all got it backwards? What if the Second Amendment, instead of empowering the militia, aims to check and balance it? On this counter-militia reading, the Second Amendment begins by apologizing for, "A well regulated Militia being, necessary to the security of a free State," and concludes by promising, as a remedy for the dangers of wayward militias, that "the right of the people to keep and bear Arms, shall not be infringed." Though a mirror image of the usual interpretation, that hews to a straightforward reading of the text. The counter-militia interpretation finds support in originalism, too, because it comports with the view, popular among those who ratified the Bill of Rights, that disciplined bodies of armed men cannot be trusted to respect individual liberties. It likewise agrees with the widespread belief, founded on the bitter experience of ex-slaves and inspiring ratification of the 14 th Amendment, that badly regulated militias imperil fundamental human rights. Precedent, however, says nothing about the counter-militia Second Amendment. No courts and almost no commentators have even considered this alternative to the usual interpretation, much less put it to use. Doing so might have a bracing effect of firearms law in the United States by requiring that the right to keep and bear arms reach far enough to ensure a capable defense against militias gone wrong. Application of the counter-militia Second Amendment against state governments, via incorporation, would have similar effect. Whether that would represent sage public policy or reflect contemporary public opinion goes unanswered here. This paper offers the counter-militia Second Amendment as the best interpretation of the constitutional text, not as the most familiar or comforting one.
Via Larry Solum at Legal Theory Blog, who says "Interesting and recommended."
Posted at 6:03 AM