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The contemporary political and constitutional debate over gun rights and regulations has its roots in the 1960s. The end of the decade in particular—marked by high-profile political assassinations and a dramatic increase in crime—generated new state and federal gun regulations as well as pushback against those laws. The 1970s saw both the creation of Handgun Control Inc. (later the Brady Campaign to Prevent Gun Violence) and the transformation of the National Rifle Association from a marksmanship organization to a rights-oriented advocacy group. Debates over gun regulations became geographically and culturally polarized and then politically polarized, with the Republican party, in particular, adopting support for a robust Second Amendment as part of their national platform. Democrats, though championing gun control laws in the 1990s, backed off support for stringent national gun regulations following their close defeat in the 2000 election. The skew of the Electoral College and the Senate towards rural areas made gun regulation a less appealing political stance for the national party.

Gun regulation and gun rights became increasingly salient in the legal realm as well, as scholars parsed the text of the Amendment’s two clauses, their relationship to one another, legislative debates over the Second Amendment during the First Congress, and other sources of evidence. While different scholars or lawyers categorized these arguments in different ways, two basic models of interpreting the Amendment emerged.

The first camp contained advocates of the collective rights or federalism model. Under this view, the Second Amendment was a guarantee to the states that Congress could not disarm its citizen militias. The second camp advocated an individual rights model, under which the Amendment (again to protect militias from national interference) had created an individual right to firearms.

The difference between the policy outcomes the two models produced was considerable. Under the collective rights standard, the Second Amendment did not grant individuals legal standing to challenge state or federal gun laws; instead, it limited federal interference with state law. Under the individual rights model, by contrast, individuals had a liberty interest in owning firearms that could serve as the basis for challenging gun regulations in federal court. Moreover, an individual rights model implied the incorporation of the Second Amendment against the states, meaning the right could limit state as well as federal gun regulation.

Both models had considerable political and legal support. In the early 2000s, two circuit panels authored contrasting interpretations of the Second Amendment, with a Fifth Circuit panel arguing on behalf of the individual rights model, and a Ninth Circuit panel adopting the collective rights framework.

Chronologically, the first case was United States v. Emerson (2001), the Fifth Circuit case that adopted the individual rights model of the Second Amendment. Emerson addressed an interaction between state and federal law that raised questions about gun rights. Emerson’s wife filed for divorce as well as some protective orders against her husband for making threats against her. Federal law banned individuals under such orders from possessing firearms; Emerson violated the law by purchasing a gun after the restraining order was issued. Emerson moved to dismiss the charges, arguing the federal law in question violated his Second Amendment rights because there had been no individualized determination that his rights should be revoked.

Given the confusing wording of the Second Amendment and that Miller was an unclear precedent, the appeals panel in Emerson relied heavily on history to ascertain the nature of its protections. The panel found that the Second Amendment did guarantee an individual right to own firearms, though it also held that the restraining order was justified in Emerson’s case, as he had faced sufficient due process and was found to be a threat to his wife.

The majority’s arguments for the individual rights model were familiar to its advocates (and similar to what the majority in Heller would use a few years later):

1. “Militia” referred to all (male, at the time) individuals who might keep weapons, not a professionally trained group engaged in active military service.
2. The reference to “the people,” as opposed to “the states,” supported the contention that the Second Amendment was an individual right, not a federalism guarantee.
3. “Bear arms” was not limited to active military service, but instead applied to any citizen who might carry weapons in their defense or the defense of their community.
4. The individual rights model created a pool of citizen weapons-holders, who could then be called on to defend their communities. This was particularly true in an era with a distrust of standing (federal) armies, which were feared as threats to liberty.

A year later, a Ninth Circuit panel flatly disagreed with Emerson in Silveira v. Lockyer (2002), endorsing the collective rights model of the Second Amendment in a challenge to California’s regulations banning some types of semi-automatic firearms. This panel examined more or less the same types of historical and textual evidence as the Emerson court but came to the opposite conclusion. Their arguments, which were representative of the collective rights position (and also noted the unhelpfulness of Miller as precedent), included the following:

1. “Militia”, as used by the Founding generation, referred to a state-created and organized military force, which would protect the state from enemies internal and external (including a federal government gone rogue). The state thus had the power to set rules for that militia, including regulating who could bear arms.
2. The federal government, under Article I, can “call forth” state militias, which also supports the contention that they would be formal state institutions.
3. The inclusion of “well-regulated” further supports this argument, with militia being a cohesive fighting force, not an untrained group of armed individuals.
4. Individuals could “keep and bear Arms,” not simply own or possess them. That term refers to a military function.
5. The first version of the Second Amendment proposed by Madison contained exemptions for religious pacifists. This exemption (omitted from future versions) made more sense if the militia was an organized, armed force run by the state, from which religious individuals might object to compulsory service.
6. The Anti-federalists were primarily concerned not with protecting individual gun ownership but with the Federal government’s ability to hamstring state militias through bad-faith regulation of firearms.

As with Emerson, a full consideration of historical sources in Lockyer is too detailed to allow a useful summary here. Since the Heller case at the Supreme Court would largely echo the arguments in these two cases (with the majority mirroring Emerson and the dissent Lockyer), we reserve judicial consideration of these historical arguments for that opinion in the next chapter.