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Full-Text Articles in Constitutional Law
Mcdonald V. Chicago, Self-Defense, The Right To Bear Arms, And The Future, Richard L. Aynes
Mcdonald V. Chicago, Self-Defense, The Right To Bear Arms, And The Future, Richard L. Aynes
ConLawNOW
In this article, Professor Richard L. Aynes, who was cited for his research by the majority in McDonald, delivers his critique on the opinion, the concurrence, and the dissent. Professor Aynes provides an in-depth analysis of Justice Thomas’ concurrence, which asserts the proper vehicle for incorporation to be the Fourteenth Amendment’s Privileges and Immunities Clause, as opposed to the traditional method employed by the court – the Due Process Clause. With contemporary legal scholarship in agreement with Justice Thomas, Professor Aynes asserts that just as the Privileges and Immunities Clause commanded the support of a ratifying nation, “it will …
The Second Amendment Standard Of Review After Mcdonald: "Historical Guideposts" And The Missing Arguments In Mcdonald V. City Of Chicago, Patrick J. Charles
The Second Amendment Standard Of Review After Mcdonald: "Historical Guideposts" And The Missing Arguments In Mcdonald V. City Of Chicago, Patrick J. Charles
ConLawNOW
In this article, Patrick Charles addresses the first step in analyzing Second Amendment challenges – whether the challenged conduct was “publicly accepted” or “publicly understood” as within the scope of the Second Amendment, circa 1791. This article also analyzes two premises on which the McDonald plurality based its decision, ultimately concluding that those premises are inaccurate. In his opinion, Justice Alito asserted that State constitutions at the time of the founding generally protected an individual right to keep and bear arms. However, an in-depth examination of all State constitutional provisions suggests otherwise. Secondly, John Bingham’s understanding of what the Fourteenth …
Originalism And Its Tools: A Few Caveats, David T. Hardy
Originalism And Its Tools: A Few Caveats, David T. Hardy
ConLawNOW
In District of Columbia v. Heller, the United States Supreme Court adopted original public understanding as an interpretative tool. While this approach has the virtue of establishing meaning independent of a court’s personal values and preferences, this article explores some hazards which courts should try to avoid. First, one must resist the temptation to see historians as invariably objective; some are apt to push a personal agenda, or get a reputation as a “debunker,” at the cost of distorting, overlooking, or even inventing the historical record. Historical studies of this type have misled the Ninth Circuit, and a dissent …