Those who deny that the original meaning of the Second Amendment protected an individual right to keep and bear arms on a par with the rights of freedom of speech, press and assembly no longer claim that the amendment refers only to a collective right of states to maintain their militias. Instead, they now claim that the right, although belonging to individuals, was conditioned on service in an organized militia. With the demise of organized militias, they contend, the right lost any relevance to constitutional adjudication. In this essay, the author evaluates the case made for this historical claim by Richard Uviller and William Merkel in their book, The Militia and the Right to Arms, or, How the Second Amendment Fell Silent. He also evaluates their denial that the original meaning of Fourteenth Amendment protected an individual right to arms unconditioned on militia service. The author finds both claims inconsistent with the available evidence of original meaning and also, perhaps surprisingly, with existing federal law.
83 Tex. L. Rev. 237-277 (2004) (reviewing H. Richard Uviller & William G. Merkel, THE MILITIA AND THE RIGHT TO ARMS, OR, HOW THE SECOND AMENDMENT FELL SILENT (2002))
Scholarly Commons Citation
Barnett, Randy E., "Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?" (2004). Georgetown Law Faculty Publications and Other Works. Paper 849.