Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Constitutional Law (3)
- Legal History (3)
- Law and Society (2)
- Second Amendment (2)
- Affordable Care Act (1)
-
- Civil Rights (1)
- Codes of conduct (1)
- Dead constitution (1)
- Health care (1)
- Human Rights Law (1)
- Humanitarian law (1)
- Individual mandate (1)
- International Humanitarian Law (1)
- Interstate commerce clause (1)
- Jack Balkin (1)
- Lex armorum (1)
- Living constitution (1)
- New wars (1)
- Originalism (1)
- Reasonableness (1)
- Right to keep and bear arms (1)
- Social Welfare (1)
- Standard of review (1)
- State constitutions (1)
- Strict scrutiny (1)
- Publication
Articles 1 - 4 of 4
Full-Text Articles in Legal History
La Protection Des Civils Dans Les Nouvelles Configurations Conflictuelles : Retour Au Droit Des Gens Ou Dépassement Du Droit International Humanitaire, Gregory Lewkowicz
La Protection Des Civils Dans Les Nouvelles Configurations Conflictuelles : Retour Au Droit Des Gens Ou Dépassement Du Droit International Humanitaire, Gregory Lewkowicz
Gregory Lewkowicz
In this paper, the development of alternative regulatory tools (codes of conduct, monitoring mechanisms, etc.) dealing with the protection of civilians during armed conflicts is scrutinized in the context of “new wars”. The paper analyses the connections between these alternative regulatory tools and classical international humanitarian law (IHL) instruments. The paper suggests that the profusion of alternative regulatory tools can help to disseminate classical IHL norms and to adapt them to contemporary warfare. The paper also envisages the possibility of a new “lex armorum” emerging from these new regulatory tools and challenging classical IHL.
The Right To Arms In The Living Constitution, David B. Kopel
The Right To Arms In The Living Constitution, David B. Kopel
David B Kopel
This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.
"Living constitutionalism" should be distinguished from "dead constitutionalism." Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect …
State Court Standards Of Review For The Right To Keep And Bear Arms, David B. Kopel, Clayton Cramer
State Court Standards Of Review For The Right To Keep And Bear Arms, David B. Kopel, Clayton Cramer
David B Kopel
Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means. Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms). Even when formally applying "reasonableness," many courts have used reasonableness as a …
Commerce In The Commerce Clause: A Response To Jack Balkin, David B. Kopel, Robert G. Natelson
Commerce In The Commerce Clause: A Response To Jack Balkin, David B. Kopel, Robert G. Natelson
David B Kopel
The Constitution’s original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island’s ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin’s article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution’s Commerce Clause a scope that virtually no one in the Founding Era believed it had.