This post is based on a paper that was presented at the 2025 Firearms Law Works-In-Progress Conference. The Conference is held each year on a home-and-away basis with the Duke University Center for Firearms Law. This post also appears on the CFL’s Second Thoughts blog.
I presented my paper “A Contrarian View of the Bil of Rights with Emphasis on the Second Amendment” at the 2025 Firearms Law Works-in-Progress Conference in Laramie, Wyoming, at the University of Wyoming College of Law. My pretensions to “scholarship” are a hobby since I have a full-time job (my paper, of course, reflects my views alone, not my employer’s). Preparing a talk for actual scholars and getting their feedback was a tremendous opportunity.
My paper starts with an account of rights as understood by the Founders. I cite authority, including the Declaration of Independence, suggesting that the Founders did not share current views that rights are absolutes or near-absolutes, enforceable by courts against legislation and executive action. Instead, they saw rights as regulable by state governments with general power, hopefully in the interest of the common good. For instance, the Founders saw keeping and bearing arms as a right possessed by anyone capable of bearing arms but also subject to legislation and prosecution for misuse as defined by state law.
This conception of rights places responsibility for defining rights with state legislatures, not judges. It envisions that states may change how they protect and regulate rights, and it suggests that the Founders would not have agreed with Bruen’s idea that rights are fixed in time in 1791. Nothing in the constitution prevented a state from changing how it regulated the keeping and bearing of arms in, say, 1841, which is when Mississippi enacted a regulatory tax on Bowie Knives. Likewise, nothing prevented a state from adopting a law like the law at issue in Bruen requiring a license to keep and bear arms in 1841.
I then move on to the adoption of the Bill of Rights as an answer to Antifederalist complaints that the new federal government had general powers, not limited powers like the Federalists promised. The Ninth Amendment was well-understood at the time to confirm that the federal government had no general power to overrule state law regarding rights not listed in the Bill of Rights unless the power was specifically enumerated in the Constitution or incidental to a power specifically enumerated.
The rights actually listed in the Bill of Rights, of course, were more strongly protected from federal interference. The Federalists generally argued that none of the enumerated powers in the constitution allowed the federal government to interfere with rights. They went along with the Bill of Rights anyway as the price to pay for ratification. The Federalists thought the price was low. For instance, it was harmless to repeat in the Bill of Rights that the federal government had no power to, say, interfere with the Freedom of the Press because (as they unconvincingly argued) nothing in the Constitution as originally enacted allowed the federal government to regulate the Freedom of the Press in the first place. Moreover, the unprecedented Ninth Amendment confirmed the federal government’s lack of general power and the Tenth Amendment confirmed the people’s right to retain rights or delegate regulation of rights to their state governments.
But, I argue, the prefatory phrase of the Second Amendment (“A well regulated Militia, being necessary to the security of a free State”) is a rare Federalist acknowledgement that the Constitution as originally enacted did allow the federal government to regulate enumerated rights—in particular, the keeping and bearing of arms. The power is located in the Militia Clause listed in Article I, section, 8, clause 16 (“The Congress shall have Power . . . To provide for organizing, arming, and disciplining, the Militia”). The power to arm the militia (which includes all free citizens capable of bearing arms) includes the power to say what kinds of arms the militia may keep and bear and what kinds they may not keep and bear. It includes the power to, for instance, require that all arms be stored in a central armory. The Second Amendment modifies Clause 16. The federal government may “well regulate” the militia, but such regulations may not include an abridgement of the militia’s right to keep and bear arms.
This is a legal argument, not a historical argument. In response to some feedback at the conference, the next draft will address whether there is any historical evidence that the Second Amendment was understood to modify Clause 16.
After 1791, states retained their power to regulate the right to keep and bear arms in the interest of their view of the greater good. But states’ power is subject to federal law that could potentially require the militia (including all free citizens capable of bearing arms) to be armed, or prevent or limit states from disarming the militia. Such a federal law would not abridge the right to keep and bear arms.
I further argue that, because the Bill of Rights protected states’ power to regulate rights, it is incoherent to think that the Fourteenth Amendment incorporates the Bill of Rights against the States. Although one can look over the crowd of the legislative history of the Fourteenth Amendment and pick out references to incorporation, the Reconstruction Supreme Court did not believe in incorporation, and I am unaware of contemporary outrage over the Court’s failure to incorporate the Bill of Rights. I believe that the correct reading of the Fourteenth Amendment is that it removes states’ power to define rights differently for blacks (among many other things, of course). So a law which requires persons of all races to have a license to keep and bear arms does not violate the Fourteenth Amendment, and there is no viable Second Amendment challenge. Bruen is wrongly decided.
One thing that did not change in 1868 was that the federal government continued to lack the power to abridge the right to keep and bear arms. I argue federal laws regulating the keeping and bearing of arms via the Taxing Power (the National Firearms Act) or the Commerce Power (the Gun Control Act) are unconstitutional since they are more general powers than the specific Milita Power of Clause 16 as modified by the Second Amendment. The general Taxing and Commerce Powers cannot override the specific Militia Power. Therefore, Rahimi is wrongly decided because 18 U.S.C. § 922(g)(8)—an exercise of Commerce Power—unconstitutionally regulates Mr. Rahimi’s right to keep and bear arms. States can regulate his right to keep and bear arms, but the federal government cannot. Moreover, the Gun-Free School Zones Act, as amended after Lopez (18 U.S.C. § 922(q)) to regulate firearms that at one time were in interstate commerce, is also unconstitutional. A federal law that regulated the keeping and bearing of cigarettes that were formerly in interstate commerce would be constitutional under current doctrine because there is no more specific prohibitions on such legislation in the Constitution.
A bumper-sticker version of my argument is “Dobbs, not Roe” There are fifty different ways to regulate keeping and bearing arms, just like there are fifty different ways to regulate abortion. Brahimi (with apologies to Josh Blackman) is leading to the same place Roe led us to—five judges illegitimately deciding which firearms laws are and are not allowed, with attending lobbying of judges, interest-group fundraising, protests, confirmation battles, litmus tests, etc. The constitutional design leaves the question of how to regulate the keeping and bearing of arms to the states. Brahimi’s concept of one single right to keep and bear arms, brooding omnipresently in the sky, manifesting avatar-like in fifty different ways, sometime incorrectly as “outliers,” is a false vision. My next draft will address the Baude-Sachs-Campbell-Leider idea of “general law” and the “general right to keep and bear arms”, which seems inconsistent with my argument.
I also received feedback at the conference that I should discuss some modern scholarship that questions the enumerated-powers premise of my paper. Conveniently, Professor Primus has just written a book on that very topic that I am reading with great interest and plan to respond to in the next draft. My first impression is that Primus’s failure to address the Ninth Amendment at all greatly weakens his argument.
In sum, I am grateful that I was invited to present my paper at the Works-in-Progress conference. I got great feedback which encourages me to keep working on and improving the paper.