The district court rejected Heller’s claim. The argument of the District of Columbia, which the court accepted, was that the Second Amendment does not protect any individual right whatsoever. Instead, D.C. argued, it protects only a “collective right of the militia,” a fancy legal construct that means no person can ever claim that right or have it protected in court. As a practical matter, that interpretation would read the Second Amendment out of the Bill of Rights.
When the case went to the court of appeals, I became involved. As the Texas solicitor general, I drafted an amicus brief on behalf of thirteen states that defended an individual constitutional right to keep and bear arms.
Our brief laid out the historical and constitutional arguments for why the “collective right of the militia” view of the Second Amendment was profoundly misguided. Starting from the constitutional text, the operative language of the Second Amendment provides that “the right of the people to keep and bear Arms, shall not be infringed.” And that phrase, “the right of the people,” is a term of art that the Framers used repeatedly to refer to individual rights.
“The right of the people” is found in two other places in the Bill of Rights: The First Amendment protects “the right of the people peaceably to assemble,” and the Fourth Amendment protects “the right of the people to be secure… against unreasonable searches and seizures.” In both instances, there is no doubt the Framers were referring to individual rights.
What does an “individual right” mean? It means the right is yours, personally, and you can raise it in court both to challenge unconstitutional laws and as a defense to unconstitutional criminal prosecutions or civil actions. Thus, if Congress were to pass a law saying that no group of communists could meet together, and you were a communist, you could challenge that law in court. Likewise, if Congress barred groups of Nazis, or Democrats, or Republicans, or the NAACP from gathering together, and you were personally affected, you individually could challenge that law as violating your right to assemble. Or, if Congress said more generally that no group of ten or more could ever gather in public to protest, and you wished to do so, you could challenge that as well. (Notably, reasonable public-health restrictions, limited in scope and duration, have long been held permissible in times of pandemic.)
In the Fourth Amendment context, an individual right means that if the police break down your door and search your house—without a sufficient basis for doing so—you can sue them for violating your rights. If, in the process of that unconstitutional search, they encounter evidence of a crime (say, a bag of marijuana in your bedroom), and they prosecute you for that crime, you have an individual right to urge the court to exclude that evidence because it was seized in violation of your rights. And, if Congress were to pass a law purporting to give government the power to monitor your location at all times using GPS on your phone—with no probable cause to believe you’ve committed a crime—you individually could file a lawsuit challenging that law and urging a court to strike down the law.
It is a long-standing canon of interpretation, for both statutes and the Constitution, that the same words will be understood as having the same meaning if used multiple places in the same document. Therefore, if “the right of the people” referred to an individual right in the First and Fourth Amendments, then “the right of the people” should also be understood to be referring to an individual right in the Second Amendment.
Moreover, when the Constitution uses the word “right” it means, well, “right.” Put differently, what on earth is a “collective right of the militia”? Nobody knows, because it’s not meant to be anything real, other than a means of erasing the Second Amendment altogether. Before the Supreme Court, the District of Columbia argued that it served “to prevent Congress, using its powers under the Militia Clauses, from disarming state militias.” But that would be a protection of the states as governmental entities, and in the constitutional text (e.g., the Tenth Amendment), states have “powers,” not “rights.” It is individuals who have “rights” in the Bill of Rights.
But what does the Second Amendment language mean concerning “a well regulated militia”? First, the word “regulated” at the time was not understood to mean “subject to government regulation.” Rather, “regulated” in that context meant “equipped,” so that “well regulated” meant “well equipped,” i.e., having sufficient weaponry to be effective.
Second, when the Constitution uses prefatory language—explaining why a right is important—it does not constrain the operative language that follows. Thus, when the Second Amendment says “a well regulated Militia, being necessary to the security of a free State,” it is explaining one important reason why the right that follows matters. But it doesn’t restrict the substantive scope of that right. The Framers used a similar formulation in the Copyright Clause, which reads “[T]he Congress shall have the power… [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” And in Eldred v. Ashcroft (2003), the Supreme Court rightly concluded that the operative power to secure exclusive rights was not limited by the prefatory purpose to “promote the progress of science and useful arts.” Although that was an important purpose for the provision, it was not the only purpose.
Third, today, “the militia” might seem a fairly limited and esoteric concept. But, at the time of the American Founding, “the militia” was understood to mean everybody (specifically, all able-bodied adults). To be sure, when the Framers referred to “able-bodied adults,” they had a limited view of whom they were describing. They included in that category, unfortunately,
