The Second Amendment: A Dialogue

This article responds to an article in the National Rifle Association’s magazine by Professor Stephen Halbrook, whose book on the second amendment reviles certain conclusions of Don Kates’ article, Handgun Prohibition and the Original Meaning of the Second Amendment as “Orwellian Newspeak.” Respecting both the historical evidence cited in Professor Halbrook’s article and the importance of his previous work in this area, this article summarizes Mr. Kates’ revised views as to the kinds of gun controls which the second amendment allows and offers some discussion about the two fundamentally competing views of the second amendment: individual rights v. state’s rights. The article again articulates Mr. Kates’ position that the second amendment guarantees individuals the right to possess firearms for self-defense against crime, oppression, and attack by foreign foes. Mr. Kates reasserts that the second amendment does not foreclose reasonable gun controls. The article also reasserts Mr. Kates’ findings that the rights articulated in the second amendment extend to the “virtuous citizen.” The kinds of arms guaranteed within the amendment may exclude “dangerous or unusual” arms. Further, the Founders did not distinguish between personal defense and common defense. The same kind of weaponry was utilized by citizens for all types of defense. Finally, colonial and subsequent militia law required virtually every male of military age to appear periodically with his arms for inspection, so Mr. Kates asserts that basic gun registration and licensing are not per se repugnant to the second amendment, so long as the purpose is not to restrict the availability of firearms to the virtuous citizenry and so long as these restrictions do not unduly burden that access.