From a Duty to a Right

Abstract

This dissertation addresses the question of how the issue of gun rights is debated and resolved in American politics. While the Supreme Court’s landmark ruling in District of Columbia v. Heller (2008) has often been described as a distinct political win for gun rights advocates, it left open crucial political and regulatory questions that remain unsettled, including the constitutional permissibility of gun control measures and the proper balance between state and federal authority in establishing those parameters. This dissertation provides an account of the Second Amendment’s political development and its interpretation as a civic, state, collective, and individual right, and how shifts in interpreting the right to keep and bear arms have changed the way competing claims of gun rights and gun control are reconciled through the political process. Doing so aligns the Second Amendment with other major changes in American politics – outside of the courts – including the growing role of the federal government, the increase in polarization and the importance of cultural issues to partisan politics, and the rise of the gun rights movement as a pivotal political force. Using the lens of American political development, this dissertation is structured to identify critical junctures over time when changing interpretations of the Second Amendment transformed the politics of gun control, which include policy changes, partisan realignment, and broader patterns of federalism. Detailed historical and legal research of primary sources was conducted, including analysis of newspapers, journals, correspondence, as well as early state constitutions, records from the Constitutional Convention, briefs from state legislatures regarding gun regulation, and relevant court cases. Based on this research, the evidence is sufficiently compelling to support the collectivist reading of the Second Amendment rather than the individual rights interpretation. In other words, the Second Amendment was intended to protect the states from federal encroachment by guaranteeing their right to arm their militias – not to grant an individual right – a position that was subsequently maintained by the courts until District of Columbia v. Heller (2008) overturned decades of precedent, further complicating the already contentious issue of gun rights in American politics. Chapter One focuses on the historical and intellectual origins of the right to bear arms that influenced early state constitutions and gun regulations. Chapters Two through Four discuss the nature of arms-bearing during the Revolutionary era; the debates surrounding the drafting and ratification of the Second Amendment; and the crucial role of the state militia system to early notions of republican government. Subsequent chapters provide an account of the changing nature of the state militia system, ultimately resulting in the formation of the National Guard; early legal interpretations of the right to bear arms, including whether the Second Amendment applied to the states; and a comprehensive account of federal gun legislation. From there, Chapter Seven discusses the development of collective rights theory and the Supreme Court’s traditional position on the Second Amendment. Chapters Eight and Nine turn to the rise of the gun rights movement; the establishment of the National Rifle Organization as an influential political actor and how the Second Amendment was politicized to advance its cause; changes to federal gun legislation; and the development of individual rights theory and its influence on the partisan debate about gun control, including a literature review to account for the “New Standard Model” of Second Amendment scholarship. Chapter Ten analyzes the milestone decisions District of Columbia v. Heller (2008) and McDonald v. Chicago (2010) and also provides a detailed account of the process of incorporating the Second Amendment against the states, arguing that even though the Supreme Court established the individual right to keep and bear arms, its traditional interpretation as a states’ right must be maintained in the interest of federalism. The Conclusion further advances this assertation, contending that the intense debate about gun rights in American politics could be tempered by allowing the states greater latitude to regulate both gun control and gun rights. Under a federalized system of well-regulated liberty that emphasizes state autonomy, the states would be free to either limit or expand the right to keep and bear arms based on the demands of their constituents, which balances the politics of gun control with the constitutional protections of the Second Amendment.