Law Commons^™

The Collective Right Endures: Pre-Heller Precedent And Our Understanding Of The Modern Second Amendment, William Reach

William & Mary Bill of Rights Journal

Prior to 2008, legal scholars who examined the Second Amendment fell roughly into two camps: those who believed “the right of the people to . . . bear arms” only covered state militias, and those who believed it extended to individual citizens.

After District of Columbia v. Heller conclusively established that the “Second Amendment conferred an individual right to keep and bear arms," discussion of the collective right to bear arms largely receded from public discussion and most litigation surrounding the Second Amendment shifted to define the outer edges of the individual right. But the pre-Heller showdown between these …

Recovering The Lost General Welfare Clause, David S. Schwartz

William & Mary Law Review

The General Welfare Clause of Article I, Section 8, Clause 1 of the Constitution enumerates a power to “provide for the common defense and general welfare.” A literal interpretation of this clause (“the general welfare interpretation”) would authorize Congress to legislate for any national purpose, and therefore to address all national problems— for example, the COVID-19 pandemic—in ways that would be precluded under the prevailing understanding of limited enumerated powers. But conventional doctrine rejects the general welfare interpretation and construes the General Welfare Clause to confer the so-called “Spending Power,” a power only to spend, but not to regulate, for …