Analyzing fifty of the most significant Second Amendment cases across the federal circuit courts to assess how the federal appellate courts have applied the originalist methodology in Second Amendment cases in the decade since Heller.
Suggesting that young adults (persons aged 18-to-20) have Second Amendment rights based on a survey of state militia laws during the Colonial and Founding periods along with Nineteenth and early Twentieth Century laws and cases relating to young adult gun rights.
Contending that the individual-rights view versus collective-rights view debate has tainted the Second Amendment’s interpretation. Finding instead that the Amendment serves a dual purpose of 1) protecting an individual right and 2) creating a collective obligation to serve in a state or federal militia if called upon by the government.
Concluding that the original meaning of the Second Amendment includes the right to bear arms for the purpose of hunting game.
Arguing that the Second Amendment was an auxiliary right influenced by Anti-Federalist concern that a strong centralized military posed a risk of the federal government oppressing the states. Claiming the Amendment should be read jurisdictionally to disallow national firearms legislation, but not state regulation.
Cataloguing deficiencies in the scholarship and history behind the individual rights view of the Second Amendment divorced from militia-use.
Arguing based on the history of the Statute of Northampton, including its adoption in Nineteenth Century America, that the Second Amendment does not protect a right to carry dangerous weapons in public concourse.
Documenting the competing “individual right” and “militia-uses-only” theories of the Second Amendment and noting that the individual rights view was accepted for most of history, while the militia-uses-only view only rose to prominence beginning in the 1940’s.
Using the 1792 National Militia Act, which established a method for coordinating and arming a federal militia, to interpret the Second Amendment as protecting a disciplined and efficient militia subject to governmental restraint rather than empowering randomly assembled mobs of “the people.”
Advancing the individual-rights view by arguing that the Heller dissenting justices’ aversion to the individual-rights view was based upon their misinformed understanding of pre-ratification and post-ratification evidence, including the 1689 English Declaration of Rights, early state constitutions, legislation and legislative history, and legal commentary.
Examining scholarly commentary, laws, and popular speeches in the period leading up the Civil War, the Civil War itself, and the Reconstruction era, to determine the original public meaning of the Second Amendment during the passage of the Fourteenth Amendment. Concluding that across the political spectrum, during the mid-nineteenth century, the right to bear arms was a distinctively individual right.
Challenging the Supreme Court’s interpretation in District of Columbia v. Heller of “may have arms,” contained in a provision of the English Declaration of Rights which was a precursor to the Second Amendment. Arguing that, instead of an individual right to armed self-defense, this provision was a legal allowance granting citizens a limited right to rebel against tyrannical government.
Criticizing the Heller decision in that while it reached an easily defensible originalist results, it used defective and non-originalist reasoning.
Weighing the historical and textual evidence for the individual-rights and collective-rights views of the Second Amendment and determining that the individual-rights view prevails.
Arguing that, at the time the Second Amendment was drafted, “bear arms” was popularly used in the military context rather than in the context of private carrying purposes, such as self-defense.
Arguing that, according to its original meaning, the Privileges or Immunities Clause of the 14th Amendment incorporated the Second Amendment and applied it to the states.
Refuting the claim that the Second Amendment individual right to bear arms is conditioned on service in an organized militia.
Using founding era gun laws as well as an examination of the Pennsylvania Declaration of Rights and Constitution to argue that the right protected by the Second Amendment was neither a private right nor a collective right of the states, but a civic right exercised as a collective by the civilian population.
Defending the consensus among legal scholars and historians developed during the 1980s that the Second Amendment protects an individual right to bear arms, as there are no defensible arguments to suggest it only protects a collective, militia-centric right.
Arguing that the Second Amendment was originally drafted to deal with the allocation of military power and to protect state-based militias as playing a crucial role in safeguarding liberty, but after the Reconstruction Amendments, the meaning of the Second Amendment has changed.
Using the Massachusetts Constitution, the Virginia Bill of Rights, and adoption of the Second Amendment to argue that the founding era’s conception of the Second Amendment was in accordance with Locke and Blackstone, guaranteeing only a collective right of the people to a united force of the community.
Assessing post-ratification evidence, starting with evidence from the early 19th century, to conclude that there is consensus that the Second Amendment protects an individual right, upon which the federal government may not intrude, to bear arms against tyranny.
Proposing the theory of refined incorporation which contends that, as applied against the states through the Privileges or Immunities Clause of the Fourteenth Amendment, the words “the right . . . to keep and bear arms” take on an individual-rights character divorced from association with a “well-regulated militia.”
Arguing that the Second Amendment is closely linked to the First Amendment’s freedoms of petition and assembly, serving as a safeguard to popular sovereignty and the popular right to defend against an oppressive federal government.