Second Amendment Commons^™

District Of Columbia V. Heller And Originalism, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

On June 26, 2008, the United States Supreme Court handed down its 5-4 decision in District of Columbia v. Heller, striking a District of Columbia statute that prohibits the possession of useable handguns in the home on the ground that it violated the Second Amendment to the United States Constitution. Justice Scalia's majority opinion drew dissents from Justice Stevens and Justice Breyer. Collectively, the opinions in Heller represent the most important and extensive debate on the role of original meaning in constitutional interpretation among the members of the contemporary Supreme Court.

This article investigates the relationship between originalist constitutional …

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 …

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 …

Does Heller Protect A Right To Carry Guns Outside The Home?, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

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.

Heller's Future In The Lower Courts, Brannon P. Denning, Glenn Harlan Reynolds

NULR Online

No abstract provided.

Shot Down: The D.C. Circuit Disarms Gun Control Laws In Parker V. District Of Columbia, Allison L. Mollenhauer

Villanova Law Review (1956 - )

No abstract provided.

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. …

Incrementalism, Comprehensive Rationality, And The Future Of Gun Control, Allen Rostron

Maryland Law Review

No abstract provided.

Parker V. District Of Columbia: Putting The "I'S" In Milita, Katharine E. Kohm

University of Richmond Law Review

No abstract provided.

Heller And Insurrectionism, Carl Bogus

Law Faculty Scholarship

No abstract provided.

Supreme Court Strikes Down D.C. Handgun Ordinance: Will Chicago Follow Suit?, Danielle Luisi

Public Interest Law Reporter

No abstract provided.

Lock & Load? The 2nd Amendment Arrives On Campus, Porcher L. Taylor Iii, Beth Anne Simonds

School of Professional and Continuing Studies Faculty Publications

Thanks to the U.S. Supreme Court’s watershed decision regarding the Second Amendment in June, state lawmakers, university policymakers and campus safety personnel nationwide face a conundrum that must be answered in a prudent way. The solution will greatly impact the daily lives of everyone on campus.

Gun Control And America's Cities: Public Policy And Politics, Carl Bogus

Law Faculty Scholarship

No abstract provided.

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 …

Why Protect Private Arms Possession? Nine Theories Of The Second Amendment, Michael S. Green

Faculty Publications

No abstract provided.

The Human Right Of Self-Defense, David B. Kopel, Paul Gallant, Joanne D. Eisen

Brigham Young University Journal of Public Law

No abstract provided.

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.

Scrutinizing The Second Amendment, Adam Winkler

Michigan Law Review

One overlooked issue in the voluminous literature on the Second Amendment is what standard of review should apply to gun control if the Amendment is read to protect an individual right to bear arms. This lack of attention may be due to the assumption that strict scrutiny would necessarily apply because the right would be "fundamental" or because the right is located in the Bill of Rights. In this Article, Professor Winkler challenges that assumption and considers the arguments for a contrary conclusion: that the Second Amendment's individual right to bear arms is appropriately governed by a deferential, reasonableness review …

An International Human Right To Keep And Bear Arms, Christopher J. Schmidt

William & Mary Bill of Rights Journal

No abstract provided.

Aliens With Guns: Equal Protection, Federal Power, And The Second Amendment, Pratheepan Gulasekaram

Publications

The nexus between guns and alienage presents a window through which to assess the competing constitutional values embodied in the Equal Protection Clause, the federal foreign-affairs power, and the Second Amendment. This Article analyzes the application of equal-protection norms and the federal foreign-affairs power on federal and state statutes that restrict the ability of non-citizens to bear arms. Professor Gulasekaram argues that courts should evaluate alienage restrictions at both the state and federal level under a unified analytic framework that would attempt to reconcile both personhood norms, such as equality, and gate-keeping norms vindicated by reliance on federal-power doctrines. As …

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 …

St. George Tucker And The Second Amendment: Original Understandings And Modern Misunderstandings, Saul Cornell

William & Mary Law Review

No abstract provided.

Felons, Guns, And The Limits Of Federal Power, 39 J. Marshall L. Rev. 385 (2006), Dean A. Strang

UIC Law Review

No abstract provided.

Small V. United States: Defining "Any" As A Subset Of "Any", Lee G. Lester

University of Richmond Law Review

"It shall be unlawful for any person.., who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition ...." Although this statute, 18 U.S.C. § 922(g)(1), was enacted to keep firearms out of the hands of persons not entitled to possess them because of their criminal backgrounds, the scope of this statute has been controversial. Specifically, the federal circuits have disagreed as to whether the phrase "any court" applies to foreign courts …

Dangerous Criminals Or Dangerous Courts: Foreign Felonies As Predicate Offenses Under Section 922(G)(1) Of The Gun Control Act Of 1968, Aron J. Estaver

Vanderbilt Journal of Transnational Law

There is currently a split among U.S. Circuit Courts regarding 18 U.S.C. § 922(g)(1), a provision of the Gun Control Act of 1968 that makes it a crime for any individual "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year to possess or receive a firearm in interstate or foreign commerce or affecting interstate commerce." The U.S. Supreme Court will examine the split later this year when it hears the case of United States v. Small. The Author argues that the Supreme Court should determine that Section 922(g)(1) of the …

Elites, Identity Politics, Guns, And The Manufacture Of Legal Rights, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Inter-American System, Diego Rodriguez-Pinzon

Scholarly Articles in Law Reviews & Journals

No abstract provided.

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 …

Ifeminism, Ashlie Warnick

Michigan Law Review

Laws should be judged not by their words or intentions, but by their effects and consequences. When government enacts laws designed to benefit one group, society should judge those laws first by examining whether they have, in practice, provided a net benefit to the law's intended beneficiaries. Next, any such benefit must be weighed against the costs imposed on the rest of society. If the benefits outweigh the costs, this is a socially efficient law. Government should repeal a law when the costs it imposes outweigh its benefits. When laws do not provide a net benefit to the group they …