The acid test of right-to-bear-arms theories

[Volokh, Eugene]

        I'm not sure there's much more to say on this thread beyond what has
already been said.  I find Prof. Johnson's view that the whole Bill of
Rights was originally meant as mostly a nullity to be quite unpersuasive,
for reasons I've mentioned before.  The claim that the state Bills of Rights
were not originally meant to be judicially enforceable is interesting in the
abstract, but it tells us little about the substantive meaning of the right
to keep and bear arms (or of all the other rights secured in those Bills).

        The claim that the right is individual but limited to the right "to
own guns for the purpose of serving in a state militia" has also been
discussed before -- the real question is whether one sees "militia" here in
the anachronistic sense of "a small select body, such as the National Guard,
appointed by the government" or in the broader sense of "the armed
citizenry" (cf., e.g., the Militia Act of 1792, or for that matter the
currently effective Militia Act).  If the claim is the former, then it
strikes me as quite implausible:  Why would a state Bill of Rights -- which
is intended to constrain the state government -- secure people's right to
own guns for the sole purpose of serving in a body whose membership may be
unilaterally defined by the state government?  What sort of right is that,
which may be unilaterally rendered meaningless by the very body that it
seeks to constrain?

        So let me just return to the concrete question that I posed in a
recent post, one that I hope can provide an acid test for theories about
state rights to bear arms:

                        Assume that a state bill of rights provision states,
right alongside the free speech provisions, the jury trial provisions, and
the like:  "[T]he people have a right to bear arms for the defence of
themselves and the state."

                        The state legislature enacts a law saying "No person
may possess arms, except a person employed by the state as a member of the
military or the police force."

                        Under the challenged theory (whether it's a theory
about judicially enforceable rules or just rules that the legislature ought
to respect, and whether it's a theory denominated an "individual right"
theory, a "states' right" theory, or what have you), is this law
constitutional?



        Eugene

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