Prior to 2008, legal scholars who examined the Second Amendment fell roughly into two camps: those who believed “the right of the people to . . . bear arms” only covered state militias, and those who believed it extended to individual citizens.
After District of Columbia v. Heller conclusively established that the “Second Amendment conferred an individual right to keep and bear arms," discussion of the collective right to bear arms largely receded from public discussion and most litigation surrounding the Second Amendment shifted to define the outer edges of the individual right. But the pre-Heller showdown between these competing viewpoints did not fully encompass or address the nuances of federal precedent. Although the credits may have rolled on the collective versus individual right discussion in the public forum, it left much undiscussed in defining the scope of the Second Amendment.
This Note argues that the dichotomous split in opinion over the Second Amendment pre-Heller led both camps of scholars to overlook particularly important aspects of the collective right that survived Heller in federal precedent through two cases: Presser v. People of the State of Illinois and United States v. Miller. Because Presser and Miller are binding precedent, their holdings still offer insight into our modern understanding of the Second Amendment. Taken together, Presser and Miller clearly and expressly limit the federal government’s ability to regulate firearms when state governments can show a reasonable relationship for militia purposes. These cases essentially give individuals and states a justification to challenge federal assault weapons bans and other regulations, so long as the parties can present a reasonable relationship to a militia function. They also suggest limitations on the reach and extent of the modern individual right by reinforcing traditional areas of state firearm regulation. Although Presser and Miller do not sit neatly within the bounds of the pre-Heller arguments, these cases represent surviving aspects of the collective right framework that have relevant, modern, and practical uses in shaping our use of the Second Amendment.
This abstract has been adapted from the author's introduction.