1. See John Levin, The Right to Bear
Arms: The Development of the American
Experience, 48 CHI.-KEN T L. REV. 148,
153 (1971) (to “bear arms” means “to
serve in the armed forces of the state”);
Garry Wills, To Keep and Bear Arms, N. Y.
REV. BOOKS, Sept. 21, 1995, at 62 (the
Second Amendment’s “bearing arms”
phrase only has meaning in the militia
context given that “one does not bear
arms against a rabbit.”).
3. Under President George W. Bush and then-Attorney General John
Ashcroft, the Justice Department had the Office of Legal Counsel change
positions to adopt the individual rights theory. MARK V. TUSHNET, OUT OF
RANGE: WHY THE CONSTITUTION CAN’ T END THE OVER GUNS 1 (2007). On the
politics of gun prosecution see, e.g., Margaret E. Sprunger, D.C. as a
Breeding Ground for the Next Second Amendment Test Case: The Conflict
Within the U.S. Attorney’s Office, 53 CATH. U. L. REV. 577 (2004).
5. Even the National Rifle Association (NRA) argues that the right to bear arms
is absolute only for “law abiding citizens.” See Brief for the National Rifle
Association and the NRA Civil Rights Defense Fund as Amici Curiae Supporting
Respondent, District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (No. 07-290)
(the Supreme Court’s recent case regarding the Second Amendment) available
The non-profit NRA dedicates itself to protecting its Second Amendment
vision as well as marksmanship, firearm safety, hunting and self-defense.
William Conant Church (also a founder of the New York Metropolitan Museum
of Art) and George Wood Wingate started the NRA as the American Rifle Association in 1871. The NRA may be the single most
powerful non-profit organization in the U. S. and claims “nearly 5 million members.” NRA-ILA: Who We Are, And What We Do,
http://www.nraila.org/About/ (last visited Jan. 12, 2015).
NRA President Charlton Heston accepting a presentation rifle in 2000 at the NRA convention, exclaiming that Presidential candi-
date Al Gore could only take it “from my cold, dead hands!” This statement was actually part of an NRA slogan and had no
relation to Heston’s famous line from PLANE T OF THE APES (20th Century
Fox 1968), “Get your hands off
me, you damn dirty ape.”
2. The AK- 47 was an icon of the Cold
War. AK- 47 for “Kalashnikov’s automatic
rifle model of year 1947” is named for its
inventor Mikhail Kalashnikov. He began
design work in 1944 and the Soviet
Armed Forces officially accepted the rifle
in 1949. All Warsaw Pact nations use it,
as does the People’s Republic of China.
The weapon also became a symbol of
not only the Cold War but revolutions
throughout the world. Its durability and
ease of use made it the most popular
assault rifle of all time with more AK-type
rifles produced than all others combined.
Literally, a child can use it.
A modern AK- 47
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
—The Second Amendment
On the one hand are the gun controlists, armed with
violence statistics, who say it is all about “a well regulated militia.” They ignore, or at the least find inconvenient, the part that says “the right of the People to
keep and bear arms shall not be infringed.” 1 So every
kid doesn’t get to take an AK- 47 to school for show-and-shoot day! 2
On the other hand are the “individual rightists” who
say it’s all about “the right of the People to keep and
bear arms” and “that militia stuff is just what we call
our gun club!” 3 Gun rights groups have long wished
that the Framers had used different language to make
their right more explicit. If courts would just give the
Second Amendment its “original intent,” they argue,
their right would be secure. 4
But gun rights advocates do not usually take the
If it says that the right “shall not be infringed” then,
for example, no federal or state statute should punish
the crime of being a felon in possession of a firearm. 5
The Congress shall have
power… To provide for calling
forth the Militia to execute the
Laws of the Union, suppress
Insurrections and repel
Invasions; To provide for organizing, arming, and disciplining,
the Militia, and for governing
such Part of them as may be
employed in the Service of the
United States, reserving to the
States respectively, the
Appointment of the Officers, and
the Authority of training the
Militia according to the discipline prescribed by Congress;
CONST. art. I, § 8, cl. 15–16.
The President shall be
Commander in Chief of the Army
and Navy of the United States,
and of the Militia of the several
States, when called into the
actual Service of the United
U.S. CONST. art II, § 2, cl. 1.
An original AK- 47
4. And so would their homes, they argue, and everything else!
Nobody really wants