(3) Since the amendment guarantees an (apparently unqualified) right to "bear" as well as to "keep" arms, how can individual right proponents endorse concealed-carry proscriptions?
(4) Conversely, if all these controls are consistent with the gun-owner groups' position, how can they contend that registration and licensing requirements are not?
Advocates of the individual right position, on the other hand, rely on the fact that the natural reading of the amendment's phrase "right of the people" is that it creates not a state right, but one which individuals can assert.
This is how the identically phrased first and fourth amendments are interpreted. Furthermore, the individual right advocate may accept the state's right theory and simply assert that, even though one of the amendment's purposes may have been to protect the states' militias, another was to protect the individual right to arms.
During the Revolution, and the subsequent period of the Articles of Confederation, the states loomed larger than the federal government and jealously guarded their prerogatives against it.
While the Constitution itself heralded a decisive (though limited) repudiation of those attitudes, they remained strong enough to assure two precatory admonitions a place in the Bill of Rights. The purpose of the second amendment was simply to place the states' organized military forces beyond the federal government's power to disarm, guaranteeing that the states would always have sufficient force at their command to nullify federal impositions on their rights and to resist by arms if necessary. State's right proponents also link the amendment to the traditional Whig fear of standing armies.
Thus, the philosophy underlying the second amendment not only guaranteed the states' right to keep armed forces, but obviated any need for a massive federal military which might defeat them if they found it necessary to revolt. This state's right analysis renders the amendment little more than a holdover from an era of constitutional philosophy that received its death knell in the decision rendered at Appomattox Courthouse.
The two opposing camps naturally rely on different interpretations of the origins of the second amendment.
As we shall see, this is a particularly difficult burden to bear.
Such debate as the amendment received is sparse and inconclusive, while other legislative history strongly supports the proposition that protection of an individual right was at least one of the amendment's purposes. In general, the text of the second amendment, and of the Bill of Rights as a whole, provides a series of insuperable obstacles to an exclusively state's right interpretation.
Throughout their existence, the American colonies had endured the constant threat of sudden attack by Indians or any of Britain's Dutch, French and Spanish colonial rivals. Even if they had wanted a standing army, the colonists were unable either to afford the cost or to free up the necessary manpower.
Instead, they adopted the ancient practice that was still in vogue in England, the militia system.
Indeed, the evidence suggests it was precisely by protecting the individual that the Framers intended to protect the militia. In thus yielding to the primary strength of the opposing argument, individual right advocates define the burden that the exclusively state's right theorist must bear.