In my previous post, I suggested that it’s long past time for a feminist analysis of the right to keep and bear arms. Drawing on my forthcoming article, “Guns, Race, and Sex,” this part follows the Court’s lead in Heller v. McDonald by examining the ratification history of the Second Amendment.
In Heller, the Court split the provision’s text into two parts. The majority decided that the second (“operative”) clause, supported by the first (“prefatory”) clause, equaled an individual right to possess and carry weapons for self-defense purposes–not limited to militia service. But closer examination of the Amendment’s terms and the context surrounding its ratification suggests structural purposes extending the individual use of firearms.
Based on their experience dealing with a distant and detached sovereign, among other things, the framers were deeply troubled by the prospect of a standing army. To them, professional soldiers would be loyal to and help empower central government. At the same time, they recognized the need for national security. As a result, the Second Amendment reference to the militia reflects a compromise among the framers to provide for defense, but doing so in a way that would not jeopardize state sovereignty. Put differently, it’s another check on federal power. Framers believed that the state’s citizens—local men—would be the best guarantors of peace. Those men were “the people” the Amendment references, which further suggests that this phrase has structural significance.