Until now, the revisionists have based their argument entirely on claims about the intentions of those who framed and ratified the Second Amendment. Revisionists have heretofore conceded that the courts have rejected their approach; indeed, the basic structure of the revisionist argument has been: The Founders intended an individual right to firearm possession; the courts (abetted by the academy) have all but nullified the Amendment by treating it as a mere safeguard for militia; the courts should recognize their error and strike down gun control laws.
With his latest contribution, David Kopel seeks to open a second front in the conflict over the Second Amendment by arguing that the Supreme Court has in fact been quite sympathetic to the individual rights approach advocated by the revisionists. To this end, he has collected all 35 of the Supreme Court cases mentioning the Second Amendment or the “right to keep and bear arms.”
Reviewing these cases is certainly instructive, but I do not agree with Professor Kopel about their meaning - at least not with the strong version of his argument. Kopel's main claim is that it is “well-settled” that the Second Amendment confers “an individual right.” Supreme Court case law simply cannot support that claim. Rather, the few well-known cases, chiefly Miller, that deal with the Second Amendment at some length tell us that the Second Amendment is not an “individual right” (as Professor Kopel is using that term), and the rest of the cases canvassed by Professor Kopel tell us nothing at all about the Second Amendment.
I will suggest some of those implications below, but first I want to explain my disagreement with Professor Kopel. I dispute his conclusion about the case law for two reasons. First, his presentation of the question to be addressed - does the Second Amendment confer an “individual” right or a “collective” right? - is confused. Second, I challenge his treatment of the individual cases mentioning the Second Amendment.
David Yassky, The Sound of Silence: The Supreme Court and the Second Amendment - A Response to Professor Kopel, 18 St. Louis U. Pub. L. Rev. 189 (1999), http://digitalcommons.pace.edu/lawfaculty/932/.