The United States Supreme Court and the Second Amendment (original) (raw)
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The Second Amendment Demands Gun Regulation
The right to keep and bear arms. The militia. The Second Amendment includes both. Yet, the relationship between the two, and why they are connected in the Second Amendment, are opaque, shrouded in an archaic, stilted sentence structure and subject to the vagaries of an original public trying to extract an original meaning. The first part of the Second Amendment seems to be a black-swan preamble that justifies the amendment's existence. The second part seems to recognize an existing right. Every argument, however, fails to connect the amendment's two parts. We should stop to consider what it means that the amendment is so incredibly difficult to understand. Either: one, we seriously misunderstand the amendment; two, the Framers were sloppy and broke a "no preamble" rule; three, the Framers were incompetent at expressing themselves; or finally, the Framers didn't have a meeting of the minds and the amendment has no real meaning. The literature has failed to consider that we might be completely wrong about the Second Amendment. Instead, the last three arguments are made, often implicitly, and the Framers are assumed to be incompetent at, and inadequate for, the task of drafting the amendment. We know, however, that the Constitution was written with great care, by people at least as smart as us, who had at least as much awareness of their place in history, as we have of ours. So let's presume that we have seriously misunderstood the amendment rather than engaging in the blood sport of arguing against the Framers' competence. "The Framers could not have anticipated...," is the phrase we use to dismiss their ideas and begin our ad hominem argument. This article argues for their ideas, their idealism, and their practicality, by making the philosophical argument. That argument asserts that basing every provision of the Constitution on a philosophical analysis of the underlying issues was critical to creating a stable document; one that would change only when we find that the original analysis was flawed. The philosophical mind of James Madison was engaged to accomplish this goal. This article clarifies the Second Amendment by asking and answering a series of important questions: 1) If the Second Amendment mentions the militia, and the Constitution mentions the militia, could those two things be related? 2) Does the Second Amendment modify the militia clauses of the Constitution? 3) If so, who wanted those clauses modified? and 4) Is there something wrong with the militia clauses of the Constitution? The answers to these questions are: 1) yes, 2) yes, 3) the Antifederalists, and 4) yes. Of the ten amendments in the Bill of Rights, nine address subjects on which the Constitution was silent. The Second Amendment is different. It reaches back into the Constitution and changes it. The Antifederalists thought the power of the federal government over the militia was despotic, tyrannical, absolute. They used the Second Amendment to fix that.
Why Protect Private Arms Possession? Nine Theories of the Second Amendment
SSRN Electronic Journal, 2008
The Second Amendment to the United States Constitution reads: "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." 1 Until recently, federal courts adopted a "collective-right" interpretation of the Amendment. 2 According to this interpretation, the Second Amendment's scope is limited by its prefatory clause: the people have a right to bear arms only insofar as it contributes to a "well regulated Militia." Furthermore, the term "Militia" refers to organized state militias, whose only modern equivalent is the National Guard. Under the collective-right interpretation, the Second Amendment protects the interests of state governments, not individuals. For this reason, only regulations of firearms that impair states' abilities to arm their militias can be unconstitutional. 3 No challenged regulation has ever come close to this threshold. 2008 Michael Steven Green. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format, at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision and copyright notice.
The Second Amendment and Gun Control
The Second Amendment and Gun Control
The second amendment case decided this term was District of Columbia v. Heller. 1 Thirty-two years ago the District of Columbia adopted a law prohibiting private possession and ownership of handguns as well as imposed strict regulations on the ownership of long guns. 2 A year ago in 2007, the United States Court of Appeals for the District of Columbia Circuit, in a two-to-one decision, declared the District of Columbia law unconstitutional for violating the Second Amendment. 3 The Supreme Court subsequently granted certiorari, and on June 26, the last day of the term, in a five-to-four decision, declared the District of Columbia law unconstitutional. 4 Not surprisingly, the Court was divided along ideological lines. Again, not surprisingly, Anthony Kennedy was in the majority.
Legal Studies Capstone Research Paper, Thesis, 2023
The United States of America faces an unprecedented gun violence crisis, as mass shootings have now averaged more than one per day. As of January 1, 2023, the U.S.A. has suffered over 200 mass shootings, surpassing the number of days since the year began. Accordingly, the central point of contention regarding this bloody epidemic of human carnage concerns the ease of access to high-powered and other types of military-grade weapons, including but not limited to assault rifles, a result of the Supreme Court of the United States ruling in the District of Columbia v. Heller case from 2008, where the Court ruled that the individual civilian right to possess firearms unconnected with militia service is guaranteed by the Second Amendment. In 2010, the Supreme Court reaffirmed the Heller ruling in the McDonald v. Chicago case by incorporating the Second Amendment through the Fourteenth Amendment’s Due Process Clause, making it fully applicable against the states and severely restricting the extent to which states could legally enact gun control legislation. Last year, in the case of New York State Rifle and Pistol Association Inc. v. Bruen (2022), the Supreme Court essentially prohibited stringent gun control legislation from being enacted, having decided that lower courts cannot consider governmental or public interests, such as enhancing security when evaluating conflicts between gun control laws and the Second Amendment. However, the Supreme Court’s consistent rulings upholding individual gun rights consist of erroneous misinterpretations of the Second Amendment. This Legal Studies Capstone primarily incorporates applied, analytical, and doctrinal legal research to thoroughly examine numerous judicial, procedural and substantive aspects relating to the U.S. Supreme Court’s interpretation and ruling that the Second Amendment guarantees the individual right to possess firearms. This paper aims to investigate the flawed nature of the Supreme Court’s pro-gun precedent. Pertinent ethical considerations concerning the exigency of implementing stricter gun control legislation throughout the United States of America will also be analyzed. The statistics presented are secondary external data.
Necessary to the Security of Free States: The Second Amendment as the Auxiliary Right of Federalism
This article contributes to the debate over the original meaning of the Second Amendment by placing two underappreciated concepts, federalism and auxiliary rights, at the center of the amendment's original meaning. It argues that 18th-century Americans viewed the right to keep and bear arms as an auxiliary right enabling the protection of more fundamental personal rights, rather than as an individual, collective, or civic right. Furthermore, the Second Amendment was ratified in response to Anti-Federalist fears that the nationalization of military power in the new Constitution would permit the federal government to oppress the people and destroy the power of the states. Given this context, this article suggests that the Second Amendment was a jurisdictional amendment that dealt with which level of government had authority to make firearms regulations rather than which regulations were acceptable. It was intended to maintain a balance of military power between the state and national governments by protecting the states' concurrent power to arm, organize, and train their citizen militias free from federal disarmament. In contrast to reigning views, which either permit or forbid gun regulation at both the federal and state levels, adopting this paradigm would prohibit all national firearms legislation but would also undermine support for incorporating the amendment against the states. Although the contemporary practicality of the American founders' solution is questionable, they produced a creative solution to the problem of divided sovereignty in federal republics that deserves to be incorporated into broader accounts of federalism.