A Well-Regulated Militia: A Historical Reading of the Second Amendment

Abstract

The Second Amendment is one of the most controversial parts of the United States Constitution, and since its reinterpretation in the 2008 Supreme Court Case D.C. v. Heller, it has officially been understood to protect the individual right to own and bear arms. Even the opponents of this view, who often point to the Militia Clause to argue that the amendment is not about individual gun ownership, do not pay enough attention to the military history and language behind the Second Amendment. This paper will argue that the Second Amendment was initially written to protect the rights of service members, not civilians. If it were to be interpreted and applied according to this originalist reading, the Second Amendment would be able to invalidate laws and regulations against LGBTQ+ people in the military or restrictions on women in combat. This paper lays out a historical explanation of why the Second Amendment should be read this way and an example of how the legal reasoning springing from this reading could be used to protect the civil rights of members of the American armed forces.