“The Second Amendment as a Case Study in Constitutional Interpretation,” 2001 Utah L. Rev. 889 (2001)
The Rocky Mountain West is gun country in popular folklore and probably also in fact. Reliable numbers are hard to come by, but in one recent survey estimating the percentage of households with handguns, the Mountain states ranked well above the national average - and this in a nation with one of the highest per capita gun ownership rates in the world. Earlier this year, the National Rifle Association (NRA) announced that it would hold its 2007 annual convention here in Salt Lake City, in part to reward Utah's gun-friendly laws and lawmakers. I suspect that a high percentage ofUtahns could recite the Second Amendment by heart. Or at least part of the Second Amendment - and there's the rub. Many gun fans stress the Amendment's "right of the people to keep and bear Arms" language while slighting otherwords in theAmendment, such as "well regulated" and "Militia." Even the phrase "bear Arms" and the words "the people" did not quite mean the same thing to the Founders as they do to today's NRA. To understand the Second Amendment, we must widen our interpretive field of vision. For starters, we must see the Amendment as a syntactical whole, and note the distinctive grammatical linkage between its opening ode and its closing command. But even this is far too narrow a lens. We must consider the Amendment alongside its companion amendments - the First and Third in particular and the Bill of Rights more generally. For example, we must see how the Second Amendment resembles the Fifth, Sixth, and Seventh Amendments, and even the Tenth Amendment. More broadly still, we must read the Second Amendment alongside similarly worded provisions of state constitutions, and against the backdrop of earlier English charters of liberty such as the English Bill of Rights of 1689. Perhaps most important, we must confront later constitutional amendments, such as the Fourteenth and even the Nineteenth Amendment, and consider how these later texts place the earlier one in a different light.
Date of Authorship for this Version
Amar, Akhil Reed, "The Second Amendment as a Case Study in Constitutional Interpretation" (2001). Faculty Scholarship Series. Paper 855.