Second Amendment Commons^™

Retail Rebellion And The Second Amendment, Darrell A. H. Miller

Faculty Scholarship

When, if ever, is there a Second Amendment right to kill a cop? This piece seeks to answer that question. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment codifies a natural right to keep and bear arms for self-defense. That right to self-defense extends to both private and public threats, including self-defense against agents of a tyrannical government. Moreover, the right is individual. Individuals -- not just communities -- have the right to protect themselves from public violence. Individuals -- not just militias -- have the right to defend themselves against tyranny. In McDonald …

Administering The Second Amendment: Law, Politics, And Taxonomy , Nicholas J. Johnson

Faculty Scholarship

This article anticipates the post-McDonald landscape by assessing the right to arms in the context of several state regulations and the arguments that might be employed as challenges to them unfold. So far, the core test for determining the scope of the individual right to arms is the common use standard articulated in District of Columbia v. Heller. Measured against that, standard firearm regulations fit into three categories. The first category contains laws that are easily administered under the common use standard. The second category – and the primary focus of this article – consists of laws that can be …

St. George Tucker's Lecture Notes, The Second Amendment, And Originalist Methodology: A Critical Comment, Saul Cornell

NULR Online

No abstract provided.

Guns As Smut: Defending The Home-Bound Second Amendment, Darrell A. H. Miller

Faculty Scholarship

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees a personal, individual right to keep and bear arms. But the Court left lower courts and legislatures adrift on the fundamental question of scope. While the Court stated in dicta that some regulation may survive constitutional scrutiny, it left the precise contours of the right, and even the method by which to determine those contours, for 'future evaluation."

This Article offers a provocative proposal for tackling the issue of Second Amendment scope, one tucked in many dresser drawers across the nation: Treat the Second Amendment …

The Peculiar Story Of United States V. Miller, Brian L. Frye

Law Faculty Scholarly Articles

On April 18, 1938, the Arkansas and Oklahoma state police stopped Jack Miller and Frank Layton, two washed-up Oklahoma bank robbers. Miller and Layton had an unregistered sawed-off shotgun, so the police arrested them for violating the National Firearms Act (“NFA”). Surprisingly, the district court dismissed the charges, holding the NFA violates the Second Amendment. The Supreme Court reversed in United States v. Miller, holding the Second Amendment does not guarantee the right to keep and bear a sawed-off shotgun as a matter of law.

Seventy years later, Miller remains the only Supreme Court opinion construing the Second Amendment. …

Heller And Insurrectionism, Carl Bogus

Law Faculty Scholarship

No abstract provided.

The Inconvenient Militia Clause Of The Second Amendment: Why The Supreme Court Declines To Resolve The Debate Over The Rights To Bear Arms, Robert M. Hardaway, Elizabeth Gormley, Bryan Taylor

Sturm College of Law: Faculty Scholarship

There are sound public policy reasons why gun ownership by law abiding citizens in a free society should be protected. Good public policy, however, cannot be formulated as long as there remain fundamental misconceptions about the meaning and history of the Second Amendment of the U.S. Constitution and the law interpreting it. In August of 1994, an exasperated American Bar Association, finding itself unable to match the Gun Lobby's publicity campaigns, pleaded for help from the legal profession to educate the American public about the meaning of the Second Amendment and the intent of the Constitutional Framers. Specifically, the ABA …

Taking Aim At An American Myth, Paul Finkelman

Michigan Law Review

Every American had a musket hanging over his fireplace at night, and by his side during the day. Like Cincinnatus, time and again Americans dropped their plows to shoulder their arms, to fight the Indians, the French, the Indians, the British, the Indians, the Mexicans, the Indians yet again, and then, from 1861 to 1865, each other. American men were comfortable with guns; they needed them and wanted them. They felt at home in woods, in search of food, or in defense of their homesteads. It is a story as old as our first pulp novels and earliest movies. It …

The Second Amendment: Structure, History, And Constitutional Change, David Yassky

Michigan Law Review

A fierce debate about the Second Amendment has been percolating in academia for two decades, and has now bubbled through to the courts. The question at the heart of this debate is whether the Amendment restricts the government's ability to regulate the private possession of firearms. Since at least 1939 - when the Supreme Court decided United States v. Miller, its only decision squarely addressing the scope of the right to "keep and bear Arms" - the answer to that question has been an unqualified "no." Courts have brushed aside Second Amendment challenges to gun control legislation, reading the Amendment …

Too Much (Legislation) Is Never Enough: Utilizing A Court's Equity Power To Enjoin Lawful Firearm Sales, 32 J. Marshall L. Rev. 1225 (1999), Edward G. Renner

UIC Law Review

No abstract provided.

The Minutemen, The National Guard And The Private Militia Movement: Will The Real Militia Please Stand Up, 28 J. Marshall L. Rev. 959 (1995), Chuck Dougherty

UIC Law Review

No abstract provided.

Beyond The Second Amendment: An Individual Right To Arms Viewed Through The Ninth Amendment , Nicholas J. Johnson

Faculty Scholarship

Traditionally, the debate over the individual right to possess firearms has focused on the origins and meaning of the Second Amendment. Some constitutional scholars have dismissed the idea that the Second Amendment protects an individual right to arms. They argue that it only prevents the federal government from disarming states. Other scholars, focusing on the language of the amendment and its historical context, conclude that it does indeed establish an individual right to firearms. This article examines whether, even absent the Second Amendment, the Constitution restrains government from taking away what may be individuals' best tools of self-defense. The foothold …