David T. Hardy


This article explores the origins of the two competing theories of the Second Amendment -- the "individual rights" approach which carried the majority in Heller and McDonald, and the variants of a "collective right" theory which was previously dominant in the lower courts, and one variant of which was endorsed by the Heller dissents. Careful analysis of states' bills of rights of the Framing period suggests that two guarantees were desired, by different political factions. Framers closely adhering to the Classical Republican point of view favored protection for the militia as a system; those favoring the emerging Jeffersonian point of view favored guarantees of individual rights to arms. The Second Amendment has two clauses because it has two purposes. ...This article will examine the history of the two competing theories in terms of the Framing period, the developments in American law prior to the Civil War, and the understandings of courts, commentators, and Congress following that War. We will then review developments of the Twentieth Century, including the origins of collective right interpretation over that period.