Abstract
Since the Supreme Court confirmed that the Second Amendment protects “the individual right to possess and carry weapons” in District of Columbia v. Heller, 554 U.S. 570 (2008), lower courts have been grappling with whether there is also a right to train with those weapons. Courts have considered whether training is a protected activity, whether it is a “core” right, and whether its protection is limited to gaining the minimum competency needed for self-defense.
The federal circuit courts are divided over these questions. The Seventh Circuit struck down a ban on shooting ranges within the city of Chicago because training restrictions are “close[] to implicating the core of the Second Amendment right.” After Chicago revised its ban to allow shooting ranges in 2.2 percent of the city, the Seventh Circuit invalidated that regulation as well, along with a provision barring anyone under 18 from entering a shooting range. The Third Circuit, holding that a ban on center-fire rifle training likely violates the Second Amendment, stated that a training restriction burdens the Amendment’s core if it “has the effect of depriving” people of the “skills commonly used for lawful purposes like self-defense in their homes,” but suggested that such restrictions are rare. The Second Circuit held that a law prohibiting New York City residents from taking handguns outside of the city—which contained only 7 total ranges for its 8 million residents—for training or shooting competitions “does not approach the core area of protection.” After the Supreme Court granted certiorari, however, the City of New York opted to amend its law and moot the case rather than defend it before a less agreeable court.
No court yet has explored the legal history of the right to train, nor has any article. This article presents the first in-depth historical exploration of the right. It reveals that America’s Founders viewed the right to train as a pillar of the Second Amendment: it supports every aspect of the right, including self-defense, community defense, militia rights, and the prevention of tyranny. Moreover, the activity of training itself was cherished by the Founders. This history reveals that training is central to the right and deserving of robust Second Amendment protection.
Part I of this article looks at English history. It explores the millennium leading up to America’s founding in which England—through the hue and cry, posse comitatus, and militia—relied on an armed and trained populace for domestic tranquility and national security.
Part II analyzes the colonial era, in which arms proficiency was necessary for food, sport, and survival. Accurate shooting was required for everything from procuring meat to conquest to self-defense and community defense. Further, because there was such an emphasis on marksmanship, shooting matches became a popular diversion. As a result of the colonists’ habitual use of firearms, they became the most skillful shooters in the world.
During the Revolutionary War, discussed in Part III, the Americans’ lifelong familiarity with arms provided them with a tremendous advantage over the British. Their superior marksmanship inspired confidence among the Patriots, terrified the British, and greatly contributed to their success on the battlefield. It is reasonable to suggest that the Americans would not have won their independence had the typical colonist not been accustomed to using arms all his life.
The lessons of the Revolutionary War were fresh in the minds of the Founders when they ratified the Constitution and the Bill of Rights. Part IV delves into the debates during the ratification processes and finds that while the Federalists and Antifederalists disagreed over the need for a declaration of rights, everyone agreed that an armed and trained populace was necessary to prevent tyranny. Indeed, the Second Amendment’s text expressly highlights the relationship between a trained society and a free state.
Part V reviews the restrictions on the right to train that existed in the colonial and founding eras. The few laws that restricted recreational shooting were either wartime measures enacted to conserve gunpowder or limitations on shooting in sensitive times and places. These laws were not intended to limit training, and some included exceptions to allow it.
Part VI analyzes modern cases. While courts generally recognize that there must be some sort of right to train, no court has explored the historical support for the right or the challenged restrictions.
This article concludes by emphasizing that training is a pillar of the right to keep and bear arms because it is required to develop the skills necessary to effectively exercise the other protected rights, such as self-defense, hunting, and militia service. Given the historical foundation of the right to train, courts should ensure that it is robustly protected by the Second Amendment, as the Founders intended.
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