Robert Leider (George Mason University – Antonin Scalia Law School) has posted The Individual Right To Bear Arms For Common Defense on SSRN. Here is the abstract:
The fundamental Second Amendment debate has reached a stalemate. On the one side are those who believe that the Second Amendment secures an individual right to keep and bear arms for self-defense against crime. On the other are those who consider the right to bear arms to be a collective right to maintain a militia. But there is a third theory of the right to bear arms—a theory that was once generally agreed upon but has largely been forgotten: the right to bear arms is an individual right for common defense.
This Article defines this theory and explains the role of an individual right to bear arms in the Constitution’s military structure. The Constitution allowed for dual land forces, a professional standing army and an amateur militia. The Second Amendment responded to concerns about the dangers of professionalizing the land forces by preserving the ability of citizens to act as amateur soldiers. Contrary to the dominant academic narrative, the Second Amendment did not primarily address military federalism. Finally, this Article defends why the individual right for common defense theory is sounder than either collective-right theories or the individual-right theories that have emerged in federal courts after Heller, which are focused exclusively on individual self-defense against crime.
Reposting this paper that was presented on Saturday at the Originalism Works in Progress Conference. Highly recommended. Download it while it's hot!