Explaining Away the Obvious: The Infeasibility of Characterizing the Second Amendment as a Nonindividual Right
George A. Mocsary
Southern Illinois University at Carbondale - School of Law
Fordham Law Review, Vol. 76, No. 4, pp. 2113-2175, 2008
Although the Second Amendment of the U.S. Constitution has guaranteed the right to keep and bear arms for more than 200 years, the U.S. Supreme Court has never formally declared to whom the right belongs. Each side of the gun debate - one holding that the Amendment guarantees a right to individuals, the other that states possess the right - supports its position with ostensibly solid precedential, historical, and textual arguments. This Note approaches the issue from the opposite direction, asking how many precedential, historical, and textual obstacles each side must explain away and examining the relative strength of those explanations. Under this analysis, the individual right prevails.
Number of Pages in PDF File: 63
Keywords: second amendment, arms, gun, guns, bear arns, militia, federalism,individual right,collective right,firearm,firearms,tyranny,Federalist,Anti-Federalist,Madison,militias,weapon,incorporation,free state,well regulated,Constitution,Bill of Rights,miller,silveira,lockyer,disarm,self-defence,self-defenseAccepted Paper Series
Date posted: March 11, 2008
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