Late 20th century commentary Second Amendment to the United States Constitution

assortment of 20th century handguns

in latter half of 20th century, there considerable debate on whether second amendment protected individual right or collective right. debate centered on whether prefatory clause ( regulated militia being necessary security of free state ) declared amendment’s purpose or merely announced purpose introduce operative clause ( right of people keep , bear arms shall not infringed ). scholars advanced 3 competing theoretical models how prefatory clause should interpreted.

the first, known states rights or collective right model, held second amendment not apply individuals; rather, recognizes right of each state arm militia. under approach, citizens have no right keep or bear arms, states have collective right have national guard . advocates of collective rights models argued second amendment written prevent federal government disarming state militias, rather secure individual right possess firearms. prior 2001, every circuit court decision interpreted second amendment endorsed collective right model. however, beginning fifth circuit s opinion united states v. emerson in 2001, circuit courts recognized second amendment protects individual right bear arms.

the second, known sophisticated collective right model , held second amendment recognizes limited individual right. however, individual right exercised actively participating members of functioning, organized state militia. scholars have argued sophisticated collective rights model is, in fact, functional equivalent of collective rights model. other commentators have observed prior emerson, 5 circuit courts endorsed sophisticated collective right model .

the third, known standard model , held second amendment recognized personal right of individuals keep , bear arms. supporters of model argued although first clause may describe general purpose amendment, second clause controlling , therefore amendment confers individual right of people keep , bear arms . additionally, scholars favored model argued absence of founding-era militias mentioned in amendment s preamble not render dead letter because preamble philosophical declaration safeguarding militias , 1 of multiple civic purposes amendment enacted .

under both of collective right models, opening phrase considered essential pre-condition main clause. these interpretations held grammar structure common during era , grammar dictated second amendment protected collective right firearms extent necessary militia duty. however, under standard model, opening phrase believed prefatory or amplifying operative clause. opening phrase meant non-exclusive example – 1 of many reasons amendment. interpretation consistent position second amendment protects modified individual right.

the question of collective right versus individual right progressively resolved in favor of individual rights model, beginning fifth circuit ruling in united states v. emerson (2001), along supreme court s rulings in district of columbia v. heller (2008), , mcdonald v. chicago (2010). in heller, supreme court resolved remaining circuit splits ruling second amendment protects individual right. although second amendment constitutional amendment prefatory clause, such linguistic constructions used elsewhere in late eighteenth century.