Second Amendment Commons^™

You Kill Me: Why I Don’T Want To Live Around People With Guns, Brandt Goldstein

Other Publications

No abstract provided.

Speaking Truth To Firepower: How The First Amendment Destabilizes The Second, Gregory P. Magarian

Scholarship@WashULaw

When the Supreme Court in District of Columbia v. Heller declared that the Second Amendment protects an individual right to keep and bear arms, it set atop the federal judicial agenda the critical task of elaborating the new right’s scope, limits, and content. Following Heller, commentators routinely draw upon the First Amendment’s protections for expressive freedom to support their proposals for Second Amendment doctrine. In this article, Professor Magarian advocates a very different role for the First Amendment in explicating the Second, and he contends that our best understanding of First Amendment theory and doctrine severely diminishes the Second Amendment’s …

The Hidden Second Amendment Framework Within "District Of Columbia V. Heller", Andrew R. Gould

Vanderbilt Law Review

The Second Amendment has always been shrouded in constitutional mystery. For most of our history, this mystery has centered on whether the Second Amendment protects an individual or collective right to keep and bear arms. The Supreme Court had not addressed the issue in any meaningful fashion, and lower courts continuously struggled with it, leading legal commentators to produce countless books, articles, and symposia on the topic.

The Court resolved this central Second Amendment question in June 2008 when it decided District of Columbia v. Heller. In Heller, the Court squarely confronted the meaning of the Second Amendment and held …

This Right Is Not Allowed By Governments That Are Afraid Of The People: The Public Meaning Of The Second Amendment When The Fourteenth Amendment Was Ratified , Clayton E. Cramer, Nicholas J. Johnson, George A. Moscary

Faculty Scholarship

The lingering question following the U.S. Supreme Court's decision in District of Columbia v. Heller is whether the Court will employ the Fourteenth Amendment to incorporate the newly confirmed right to keep and bear arms as a limitation on states. The answer will hinge substantially on the Court's assessment of the intent and purpose of the Fourteenth Amendment with regard to the right to keep and bear arms. Discerning such intent requires detailed evaluation of the context within which the amendment emerged and the understanding of the right to keep and bear arms at the time. This Essay pursues in …

Brief Of Professors Of Law As Amici Curiae In Support Of Appellants And Reversal, Nordyke V. King, No. 07-15763 (9th Cir. Oct. 14, 2008)., Richard L. Aynes, Michael K. Curtis, Michael A. Lawrence, William W. Van Alstyne

Con Law Center Amicus Briefs

This Amicus brief summarizes the historic case for applying the Bill of Rights guarantees, including the right to bear arms in the Second Amendment, to state and local governments. History supports application by way of the Privileges or Immunities Clause of the Fourteenth Amendment. Amici do not address gun control generally, the validity of the local government act involved in this case, or the scrutiny that should be applied to gun regulation.

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. …

Imagining Gun Control In America: Understanding The Remainder Problem Article And Essay, Nicholas J. Johnson

Faculty Scholarship

Gun control in the United States generally has meant some type of supply regulation. Supply restrictions ranging from one-gun-a-month schemes to flat gun bans cannot work without a willingness and ability to reduce total inventory to levels approaching zero ("the supply-side ideal"). This is an impossible feat in a country that already has 300 million guns tightly held by people who think they are uniquely important tools. The average defiance ratio in places that have attempted gun confiscation and registration is 2.6 illegal guns for every legal one. In many countries defiance is far higher. None of those countries has …

A Constitutional Conundrum Of Second Amendment Commas, William W. Van Alstyne

Faculty Publications

Prompted by the court’s decision in Parker v. District of Columbia, this series of correspondence discusses the effect possible forms of punctuation may have on the Second Amendment. The article makes comments on the important grammars during the founding and also two possible writings of the Second Amendment that contain different sets of punctuation.

Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead

Journal Articles

Volokh’s project stands or falls with the claim that the entitlement he proposes is of constitutional dimension. If there is no fundamental right to medical self-defense, the individual must, for better or worse, yield to the regulation of this domain in the name of the values agreed to by the political branches of government. Indeed, the government routinely restricts the instrumentalities of self-help (including self-defense) in the name of avoiding what it takes to be more significant harms. This same rationale accounts for current governmental limitations on access to unapproved drugs and the current ban on organ sales. The FDA …

On Gun Registration, The Nra, Adolf Hitler, And Nazi Gun Laws: Exploding The Gun Culture Wars (A Call To Historians), Bernard Harcourt

Faculty Scholarship

Say the words "gun registration" to many Americans – especially pro-gun Americans, including the 3.5 million-plus members of the National Rifle Association ("NRA") – and you are likely to hear about Adolf Hitler, Nazi gun laws, gun confiscation, and the Holocaust. More specifically, you are likely to hear that one of the first things that Hitler did when he seized power was to impose strict gun registration requirements that enabled him to identify gun owners and then to confiscate all guns, effectively disarming his opponents and paving the way for the genocide of the Jewish population. "German firearm laws and …

Inter-American System, Diego Rodriguez-Pinzon

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Constitutional Tales Of Violence: Populists, Outgroups, And The Multicultural Landscape Of The Second Amendment, David C. Williams

Articles by Maurer Faculty

Traditionally, populists have claimed the Second Amendment as their particular cultural property; by contrast, outgroups and elites have found the Amendment somewhat culturally alien. Recently, some outgroup members have argued that their groups ought to embrace the Amendment because the right to keep and bear arms can be a valuable way of resisting populist oppression. This Article explores this changing multicultural landscape of the Second Amendment It recognizes that in particular instances and in the short term, outgroups might need to arm themselves against hate violence. It argues, however, that only a consensus culture on the use of violence will …

The Unitary Second Amendment, David C. Williams

Articles by Maurer Faculty

No abstract provided.

Plenary Power And Constitutional Outcasts: Federal Power, Critical Race Theory, And The Second, Ninth, And Tenth Amendments , Nicholas J. Johnson

Faculty Scholarship

Rights and power in modern American constitutionalism are conceptually interdependent: "We have no way of thinking about constitutional rights independent of what powers it would be prudent or desirable for government to have." In an era where substantive boundaries on federal power seem ephemeral, this suggests that what we call rights may be primarily fair weather or illusory barriers to the exercise of power.From a majoritarian perspective, the shifting boundary between rights and powers, and the capacity of power to consume rights, may be unproblematic and even attractive. If the exercise of plenary power reflects majority will, then this exercise …

Handgun Article, Lewis F. Powell Jr.

Powell Writings

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 …

"The Right To Bear Arms": Two Views, Lee Fisher, David C. Tryon

Law Faculty Articles and Essays

The authors provide varying opinions on the Second Amendment.

Civic Republicanism And The Citizen Militia: The Terrifying Second Amendment, David C. Williams

Articles by Maurer Faculty

No abstract provided.

Morality Or Sittlichkeit: Toward A Post-Hegelian Solution, Jean L. Cohen

Cardozo Law Review

No abstract provided.