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Originally published as 82 Mich. For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S.
Among those which this Article will not cover in any depth are: 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.
The individual right view is endorsed by only a minority of legal scholars,  but accepted by a majority of the general populace who, though supporting the idea of controlling guns, increasingly oppose their prohibition, believing that law-abiding citizens may properly have them for self-defense.
While the New York Times editorializes that "[t]he urban handgun offers no benefits,"  its publisher is among the few privileged to possess a New York City permit to carry one at all times. By concentrating attention on the state's right position, the gun-owner organizations have been able to avoid the details of their own individual right position, which seems inconsistent with the kinds of gun controls the organizations have themselves endorsed.
Why not of artillery, flame-throwers, machine guns, and so on, to the prohibition of which gun-owner groups have readily acceded? The evidence to be examined must include: This Article will then consider the amendment's subsequent judicial interpretation, and the question of its incorporation against the states, before returning to constitutional limitations on the right to keep and bear arms.
The Original Understanding of the Second Amendment The two opposing camps naturally rely on different interpretations of the origins of the second amendment. Proponents of the exclusively state's right view  see the amendment as responding to p.
Those clauses give Congress the power to call out the militia and "to provide for organizing, arming and disciplining" it. According to the state's right interpretation, the amendment was motivated by fear that Congress might order the states' organized militias disarmed, thereby leaving the states powerless against federal tyranny.
Thus, this view sees the amendment as a response to concerns that time and the course of American history have rendered anachronistic. During the Revolution, and the subsequent period of the Articles of Confederation, the states loomed larger than the federal government and jealously guarded their prerogatives against it.
While the Constitution itself heralded a decisive though limited repudiation of those attitudes, they remained strong enough to assure two precatory admonitions a place in the Bill of Rights. These became the second and tenth amendments. The purpose of the second amendment was simply to place the states' organized military forces beyond the federal government's power to disarm, guaranteeing that the states would always have sufficient force at their command to nullify federal impositions on their rights and to resist by arms if necessary.
Though the federal government could not be denied authority to maintain a small army, the basic military defense of the country would rest in the states' reserved power to maintain their own organized military forces.
These could be joined together to resist foreign invasion in time of need. Thus, the philosophy underlying the second amendment not only guaranteed the states' right to keep armed forces, but obviated any need for a massive federal military which might defeat them if they found it necessary to revolt.
Though it yet lingers in the Constitution, it does not for it was never p. Rather, it guarantees an exclusive right of the states, which only the states have standing to invoke. This they need not do today when any value the amendment might presently have for them is satisfied by their federally-provided National Guard structure.
Advocates of the individual right position, on the other hand, rely on the fact that the natural reading of the amendment's phrase "right of the people" is that it creates not a state right, but one which individuals can assert.Fourth Periodic Report of the United States of America to the United Nations Committee on Human Rights Concerning the International Covenant on Civil and Political Rights.
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