Author

In The Commonplace Second Amendment, Professor Eugene Volokh argues that in interpreting the Second Amendment we should give primacy to the operative clause over the purpose clause: While the latter may refer to a “well-regulated militia,” the former baldly proclaims, “the right of the people [not the militia] to keep and bear arms shall not be infringed.”‘ As a result, we should read the provision to guarantee a right of all private individuals to arms. Despite my considerable admiration for Professor Volokh’s article, I wish to disagree on two points. First, even if we accord primacy to the operative clause, that clause itself implicitly refers to a semi-collective entity—the “Body of the People”—rather than to private individuals. Second, while I agree with Professor Volokh that we should not read the purpose clause to “trump” the operative language, we also should not read the operative language to depart from the purpose clause. Instead, the best interpretive strategy is to read the two clauses together to produce a single consistent meaning, with neither clause taking primacy. We should, in other words, read the amendment as a unitary provision.