A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
-- Second Amendment
Saul Cornell provides a good service in furthering the understanding of the Second Amendment in his book A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America. The subtitle is something of a misnomer, since the book’s focus is not really on gun control per se. In fact, the overall thesis basically is that a "well regulated Militia” always involved some "gun control." Likewise, the book does honestly drop off around the Civil War, though it does a decent job going through the relevant developments after the Reconstruction and the handing down of U.S. v. Cruikshank. But, overall, it is well worth reading, especially for the discussions of the Founding Era … reasonable length and approach for the average reader as well.*
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
-- UNITED STATES v. MILLER
Cornell’s overall argument is that an accurate originalist reading, as well as one that probably is the best "living Constitution" approach, to the amendment is more nuanced than the usual talking points. It is generally argued that the Second Amendment means one of two things, an individual rights or collective/state right’s (powers) model. The alternative is more of a mixture, which might be called a "civil" or "republican" model.
There is some flexibility here: one focus of the book, a quite useful one at that, is that constitutional concepts are not cut and dried. Such is the case here: though there was a general agreement early on that the Second Amendment is concerned with the "common defense” (not hunting or personal defense, matters largely left to the common law), some did not even accept that, while the exact nature of the "militia” and such was much disputed. And, understanding changed over time.
Cornell’s overall model focuses on a "well regulated militia,” a people’s army that is dubious of a standing army (likely to lead to misguided wars and such, they said) that is concerned about the "common defense.” Not hunting or personal defense per se, both secured elsewhere, and generally open to more restrictions. As Miller, which was concerned with taxation not possession or sale per se, noted: "The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia - civilians primarily, soldiers on occasion.” This was an era with no organized police forces, which only furthered the importance of entrusting this duty to the populace at large.
It is open to much regulation, since liberty without regulation is license (cf. "ordered liberty” expressed in Palko v. Connecticut). Furthermore, the "militia” itself requires regulation to work. A bunch of armed people without some control was considered a mob. Now, there was a minority view that local communities, or majorities thereof, might have the right to collectively arm themselves against governmental injustice. Note that even here individuals in their singular capacity would not control things. Generally speaking, however, the idea was that a "free state” would control things. And, the militia was regulated, even home inspection of weaponry. This included training and muster. Finally, "keep and bear” itself reaffirms this.** Cf. the use of "carry” in Dred Scott v. Sanford, pointing to a more personal "privilege and immunity” of citizenship, the personal and militia use of arms discussed separately.
[Conscientious objector status also factors in here. There was no mandate that one own weapons for personal defense, especially if it violated one’s conscience. But, refusal to protect the community for this reason was a much trickier situation, especially being an issue in Quaker Pennsylvania. A clause to specifically recognize a conscientious objector exception was not included in the Second Amendment for various reasons, but it did partially underline personal and militia use of arms was treated differently.]
But, such regulation is not an "anything goes” deal: it has to be concerned with the "preservation or efficiency” of the militia – like the jury and voting booth, the way for the average citizen to serve his/her part in securing the nation, and not just as a "don't forget we are armed" moral check. All are both civil obligations and personal rights. In the Founding Era, this was serious business. There was a serious thread of thought that state militias, yes controlled by states as collective entities but still, could decide to challenge federal power when it crossed the line. This was the age when jury nullification was still generally accepted practice – if juries can decide to reject law handed down by judges, could militiamen do the same? The Civil War ended the acceptance of this philosophy as such, but leaving state police to locals surely remained important, as shown by the controversies of Reconstruction. And, even a police force that is separate from the community at large lead to many difficulties over the years.
This is where the collective rights view basically loses its way. The "modern” case directly discussing the Second Amendment was concerned with federal taxation of firearms, others dealing with felons and regulation of commerce/requiring state support of federal programs. But, a 19th Century case back in the day when the Bill of Rights in general were not applied to the states, Presser v. Illinois, noted that states could still not disarm citizens or otherwise interfere with the militia to the degree it interfered with the federal government’s needs. Miller goes as far to argue that the Second Amendment is in place to better promote the federal government’s needs, Congress having the power to call up the militia in various situations. But, states themselves need the militia too, and a "personal" right to take part should apply there as well. And, this includes private threats to the "preservation or efficiency" thereof.
This is where U.S. v. Cruikshank come in. The case was a seminal case in promoting the principle that the Fourteenth Amendments applied to state action alone as well as only to that action that threatened particular rights – not rights in general that were left to state common law. This by the way was where personal use of weaponry was found – there surely was some right of self-protection, especially in the home, but it was not the focus of the Second Amendment. Some state constitutional provisions did eventually recognize some "individual" right and even the federal provision did not blatantly speak of "common defense" as some state versions did. And, personal defense to the degree it stops public crimes overlaps as well. Still, keeping guns out of urban streets, banning dangerous weaponry like bowie knives, and so forth was not generally deemed a threat to militia rights.
If we want to point to a constitutional source of personal gun ownership, therefore, the Second Amendment seems a somewhat dubious foundation. The Fourteenth Amendment very well might be a good source, self defense surely a "privilege and immunity" of citizenship, one with special concern when the home is involved. We can see a clear Fourth Amendment flavor there as well. Likewise, to the degree protection is needed to uphold equal protection, certain groups also have a special need to be so concerned. Obviously, arming freemen was a special concern when the amendment was ratified. The Ninth Amendment also factors in here. The Bill of Rights generally is not applied to the states, but even if the Second Amendment joins the party (as it should), other means are best used by many gun proponents.
Back to U.S. v. Cruikshank (1876). The case arose when a very divisive election, particularly a problem in the Reconstruction South, led to violence particularly horrible even by the standards of the era. The Supreme Court held that federal civil rights laws could not be used to prosecute when used against private actors threatening private exercise of assembly and bearing arms. Now, even if the state was involved, an earlier case severely restricted the rights secured against state action via the Fourteenth Amendment. An additional wrinkle was involved here: the local sheriff was involved in organizing and arming the forces attacked here. In other words, they were not just acting in their private capacity. Fine enough the Supremes said … let the state prosecutors worry about it.
The particular "right of the people” at stake here was traditional militia service, not just simple private defense. And, to the degree we focus on the Second Amendment, this right/obligation should still hold true. When we think of "militias” these days we either think of National Guard troops (voluntary) or right wing wackos. The latter pervert the meaning of the term, though they might argue that they reflect traditional views on the rights of even local communities to band together against tyranny. The former provide a somewhat weak reflection of the original concern especially as they become seen as auxiliaries to the regular military. Like jury service, the militia provides a role for all to serve their communities. The fact that voting and jury service are regulated and such does not mean they no longer are important rights as well. And, all three are truly needed now more than ever.
Finally, and I spoke of this point in the past as well, the conclusion of the book notes that "militia” service can be promoted in various degrees. As an aside, it makes the useful point that creative things such as an insurance approach can promote a "well regulated” militia while also respecting individual privacy to boot (though clearly in need of safeguards, health insurance and such underline that sensitive things are dealt with such without excessive governmental involvement) . This could be tied to training and such, just as car insurance takes such things into consideration. But also, some requirement of militia duty in promotion of overall societal security can be seen as a type of national service requirement. This is where the blending approach comes in. Both sides have a role. The individual has a duty, but so does the state, like the federal government that protected freemen bearing arms in security of their communities.
Ordered liberty requires rights and regulation. The Second Amendment, which is not concerned with weapons but a certain area of their use, highlights this well.
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* These days, I really don’t have the wherewithal to read long books, especially since I like keeping up with online stuff. [There are plenty of political books out there covering recent events, but my philosophy is that they are a bit redundant given my online reading.] Thus, it helps when a book is less than three hundred pages, especially given that I read the footnotes.
** Robertson v. Baldwin (1897) provides a good citation of the idea that we cannot just take constitutional provisions literally:
In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press ( article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons;
Of course, this very cite notes the principle can be taken too far – "blasphemous or indecent articles” and so forth. All the same, constitutional terms are something of terms of art. Thus, quite absolutist sounding amendments like the Second very well can involve regulation. Surely, when the word itself is part of the very point of the security put in place!