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This argument, embodying the collective rights theory, sees the framers' primary, indeed sole, concern as one with the concentration of military power in the hands of the federal government, and the corresponding need to ensure a decentralized military establishment largely under state control. Opponents of stricter gun controls have tended to stress the Amendment's second clause, arguing that the framers intended a militia of the whole--or at least the entire able-bodied white male--population, expected to perform its duties with privately owned weapons. Advocates of this view also frequently urge that the Militia Clause should be read as an amplifying, rather than a qualifying, clause.
They argue that, while maintaining a "well-regulated militia" was the predominate reason for including the Second Amendment in the Bill of Rights, it should not be viewed as the sole or limiting reason.
If, instead, the federal government has plenary power to define militia membership and chooses to confine such membership to the federally controlled National Guard, does the Second Amendment become a dead letter under the collective rights theory?
If the collective rights theory raises difficult questions, the individual rights theory raises perhaps even more difficult, and perhaps more interesting ones.
It poses important questions about notions of the living Constitution, and to what extent that doctrine can be used to limit as well as extend rights.
It also poses important questions about social stratification, cultural bias, and constitutional interpretation.
If one of the motivating purposes behind the Second Amendment was to provide a popular check against potential governmental excess, then does the professionalization of national and community security make the right to keep and bear arms even more important in the modern context?
This article explores Second Amendment issues in light of the Afro-American experience, concluding that the individual rights theory comports better with the history of the right to bear arms in England and Colonial and post-Revolutionary America.
The article also suggests that Second Amendment issues need to be explored, not only with respect to how the right to keep and bear arms has affected American society as a whole, but also with an eye toward subcultures in American society who have been less able to rely on state protection.
It is a constitutional debate that has taken place largely in the absence of Supreme Court opinion. It is a historical controversy where the framers' intentions have best been gleaned from indirect rather than direct evidence. It is a scholarly debate that members of the academy have been until recently somewhat reluctant to join, leaving the field to independent scholars primarily concerned with the modern gun control controversy. In short, the Second Amendment is an arena of constitutional jurisprudence that still awaits its philosopher.
The debate over the Second Amendment is ultimately part of the larger debate over gun control, a debate about the extent to which the Amendment was either meant to be or should be interpreted as limiting the ability of government to prohibit or limit private ownership of firearms.