Post by woodyz on Aug 22, 2016 7:44:08 GMT -7
ARMED CITIZENS, CITIZEN ARMIES:
TOWARD A JURISPRUDENCE OF THE SECOND AMENDMENT
David T. Hardy[*]
Few political issues have been as hotly debated as firearm regulation, and yet few constitutional guarantees have been treated with as much judicial indifference as the Second Amendment's recognition of a "right of the people to keep and bear arms." The sole Supreme Court decision construing the right dates from forty years ago,[1] and the principal ruling on its applicability to the States is a century old.[2] In the absence of authoritative judicial interpretation, Second Amendment controversies tend to be inspired by actual or potential activities of the legislative branch. The recent dearth of such activities--until the enactment this year of a major reform of federal firearms laws[3] --has led to a similar dearth of legal commentary.[4] (p.560)But recently, under the combined impact of original historical research,[5] a study of federal archives by the Senate Subcommittee on the Constitution,[6] and a judicial challenge to a local handgun ban,[7] the Second Amendment has returned to its status as the most controversial unsettled area of the Bill of Rights.
The Second Amendment to the Constitution of the United States provides: "A well-regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."[8] The controversy over the meaning and ramifications of this one-sentence declaration involves a clash between two and perhaps three schools of thought. One school, which may be considered the "individual rights" approach, holds that the Second Amendment recognizes a right protecting individual citizens in the peaceful ownership of private firearms for their private purposes.[9] The second approach, broadly described as a "collective rights" approach, argues that the right embodied in the Second Amendment runs only in favor of state governments and seeks to protect their maintenance of formal, organized militia units (p.561)such as the National Guard.[10] In addition, there appears to be a hybrid interpretation, which argues that the right protected is indeed one of individual citizens, but applies only to the ownership and use of firearms suitable for militia or military purposes.[11]
This Article will demonstrate that in light of the historical evidence, documentation of the intent of the drafters of the Second Amendment and their contemporaries, and the need to maintain a consistent standard of constitutional interpretation, the individual rights approach is the only approach that has any validity. It will then formulate a proposed test intended to accommodate the purposes of the Framers to developments in weapons technology that have produced infantry weapons qualitatively more deadly than existed when the Bill of Rights was drafted.
[Copyright © 1986 Harvard Journal of Law & Public Policy. Originally published as 9 Harv. J. L. & Pub. Pol'y 559-638 (1986). Permission for WWW use at this site generously granted by Harvard University Journal of Law & Public Policy (www.law.harvard.edu/Students/life/stud_orgs/sp/sp3.html#jlpp) and the author. For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571.]
And there is a lot more on this here:
www.guncite.com/journals/hardcit.html
TOWARD A JURISPRUDENCE OF THE SECOND AMENDMENT
David T. Hardy[*]
Few political issues have been as hotly debated as firearm regulation, and yet few constitutional guarantees have been treated with as much judicial indifference as the Second Amendment's recognition of a "right of the people to keep and bear arms." The sole Supreme Court decision construing the right dates from forty years ago,[1] and the principal ruling on its applicability to the States is a century old.[2] In the absence of authoritative judicial interpretation, Second Amendment controversies tend to be inspired by actual or potential activities of the legislative branch. The recent dearth of such activities--until the enactment this year of a major reform of federal firearms laws[3] --has led to a similar dearth of legal commentary.[4] (p.560)But recently, under the combined impact of original historical research,[5] a study of federal archives by the Senate Subcommittee on the Constitution,[6] and a judicial challenge to a local handgun ban,[7] the Second Amendment has returned to its status as the most controversial unsettled area of the Bill of Rights.
The Second Amendment to the Constitution of the United States provides: "A well-regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."[8] The controversy over the meaning and ramifications of this one-sentence declaration involves a clash between two and perhaps three schools of thought. One school, which may be considered the "individual rights" approach, holds that the Second Amendment recognizes a right protecting individual citizens in the peaceful ownership of private firearms for their private purposes.[9] The second approach, broadly described as a "collective rights" approach, argues that the right embodied in the Second Amendment runs only in favor of state governments and seeks to protect their maintenance of formal, organized militia units (p.561)such as the National Guard.[10] In addition, there appears to be a hybrid interpretation, which argues that the right protected is indeed one of individual citizens, but applies only to the ownership and use of firearms suitable for militia or military purposes.[11]
This Article will demonstrate that in light of the historical evidence, documentation of the intent of the drafters of the Second Amendment and their contemporaries, and the need to maintain a consistent standard of constitutional interpretation, the individual rights approach is the only approach that has any validity. It will then formulate a proposed test intended to accommodate the purposes of the Framers to developments in weapons technology that have produced infantry weapons qualitatively more deadly than existed when the Bill of Rights was drafted.
[Copyright © 1986 Harvard Journal of Law & Public Policy. Originally published as 9 Harv. J. L. & Pub. Pol'y 559-638 (1986). Permission for WWW use at this site generously granted by Harvard University Journal of Law & Public Policy (www.law.harvard.edu/Students/life/stud_orgs/sp/sp3.html#jlpp) and the author. For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571.]
And there is a lot more on this here:
www.guncite.com/journals/hardcit.html
