Law Commons^™

The True Meaning Of "Going Armed" In The Statute Of Northampton: A Response To Patrick J. Charles, Richard E. Gardiner

Cleveland State Law Review

In the debate over the meaning of the right to keep and bear arms guaranteed by the Second Amendment, some writers have argued that the prohibition in the 1328 English Statute of Northampton on "going armed" referred to carrying weapons, thus purportedly showing that regulation of carrying weapons was well known and established when the Second Amendment was adopted. For the first time, this Article reveals, through a thorough analysis of medieval royal proclamations and acts of parliament, well-regarded legal treatises, literature of the time, and English case law, that "going armed" did not refer to carrying weapons, but rather …

The Fugazi Second Amendment: Bruen's Text, History, And Tradition Problem And How To Fix It, Patrick J. Charles

Cleveland State Law Review

This Article critiques the Supreme Court’s use of text, history, and tradition in New York Rifle & Pistol Association, Inc. v. Bruen. In doing so, not only is the Supreme Court’s approach to history-in-law in Bruen called into question, but also the Article provides the courts with an historically objective and even-keeled ‘way-ahead’ for future Second Amendment cases and controversies.

The Faces Of The Second Amendment Outside The Home, Take Three: Critiquing The Circuit Courts Use Of History-In-Law, Patrick J. Charles

Cleveland State Law Review

This article seeks to critique the circuit courts’ varying history-in-law approaches, as well as to provide advice on the proper role that history-in-law plays when examining the scope of the Second Amendment outside the home. This article sets forth to accomplish this task in three parts. Part I argues why history-in-law is appropriate when adjudicating Second Amendment decisions outside the home. Part II examines the benefits and burdens of utilizing history-in-law as a method of constitutional interpretation, while breaking down the alternative approaches employed by circuit courts when adjudicating Second Amendment decisions outside the home. Lastly, Part III offers practical …

The Privileges And Immunities Of Non-Citizens, R. George Wright

Cleveland State Law Review

However paradoxically, in some practically important contexts, non-citizens of all sorts can rightly claim what amount to privileges and immunities of citizens. This follows from a careful and entirely plausible understanding of the inherently relational, inescapably social, and essentially reciprocal nature of at least some typical privileges and immunities.

This Article contends that the relationship between constitutional privileges and immunities and citizenship is more nuanced, and much more interesting, than usually recognized. Crucially, allowing some non-citizens to invoke the privileges and immunities of citizens often makes sense. The intuitive sense that non-citizens cannot logically claim the privileges or immunities of …

The Faces Of The Second Amendment Outside The Home, Take Two: How We Got Here And Why It Matters, Patrick J. Charles

Cleveland State Law Review

Since the late twentieth century, the Second Amendment has been increasingly promoted as the unfettered right to carry firearms in the public concourse. This expansive meaning, however, lacks historical support. Historical evidence reveals a disparity between the Anglo-American origins of armed carriage laws and present-day interpretations of the Second Amendment. The historical backdrop also reveals the impact pro-gun organizations have had on the expansion of armed carriage. Differences in state armed carriage laws, analyzed from both historical and regional perspectives, will one day require the Supreme Court to determine which version of history should dictate the meaning of the Second …

The Faces Of The Second Amendment Outside The Home: History Versus Ahistorical Standards Of Review, Patrick J. Charles

Cleveland State Law Review

This article disagrees that the courts need to reinvent or recast the Second Amendment outside the home to reflect its “fundamental” status as recognized in Heller and McDonald. The history of public arms regulation already provides significant guideposts for the courts to adjudicate the right to “keep and bear arms” in public. To accomplish this, it requires placing history in context and not letting mythical interpretations or historical assumptions to permeate.Thus, this article begins by decoding the public carrying of arms as the founding generation would have understood it. It provides substantiating historical evidence that counters the mythical meanings of …

The Rise And Demise Of The Collective Right Interpretation Of The Second Amendment, David T. Hardy

Cleveland State Law Review

This article explores the origins of the two competing theories of the Second Amendment -- the "individual rights" approach which carried the majority in Heller and McDonald, and the variants of a "collective right" theory which was previously dominant in the lower courts, and one variant of which was endorsed by the Heller dissents. Careful analysis of states' bills of rights of the Framing period suggests that two guarantees were desired, by different political factions. Framers closely adhering to the Classical Republican point of view favored protection for the militia as a system; those favoring the emerging Jeffersonian point of …

Arms For Their Defence - An Historical, Legal And Textual Analysis Of The English Right To Have Arms And Whether The Second Amendment Should Be Incorporated In Mcdonald V. City Of Chicago , Patrick J. Charles

Cleveland State Law Review

This Article analyzes the arguments Individual Rights Scholars have made concerning the right to have arms and their influence on Supreme Court decisions regarding gun control. The author compares these arguments with historical English gun control laws to show that there is a misunderstanding between the idea that gun ownership rights have always been protected by government.