Abstract

http://ssrn.com/abstract=2266181
 


 



How to Stop Worrying and Learn to Love the Second Amendment: A Reply to Professor Magarian


Glenn Harlan Reynolds


University of Tennessee College of Law

Brannon P. Denning


Samford University - Cumberland School of Law

May 16, 2013

Texas Law Review, Vol. 91, p. 89, 2013
University of Tennessee Legal Studies Research Paper No. 213

Abstract:     
In response to Gregory Magarian's Speaking Truth to Firepower: How the First Amendment Destabilizes the Second, 91 Texas Law Review 49, 53-72 (2012), we argue first that the strict dichotomy he posits between an individual right to keep and bear arms aimed at deterring (and furnishing the means for ultimately opposing) governmental tyranny and a right securing the means for private self-defense is a false one. Further, we argue that, to the extent there is any tension between the First and Second Amendments, Heller and McDonald eased that tension by locating individual self-defense at the core of the right. Such “modernization” of the right is preferable to Magarian’s (implicit) conclusion that the Second Amendment should have no (or little) judicially enforceable content at all.

Part II briefly summarizes Professor Magarian’s argument. In Part III, we then take issue with his conclusion that the only interpretation consistent with the Amendment’s text and history is that it was intended “to prevent a tyrannical government from disarming the people as a way to forestall popular insurrection” and that any other reading elides the Amendment’s “preamble.” In Part IV, we argue that Heller and McDonald’s placement of individual self-defense at the core of the right to keep and bear arms can be read as a product of judicial review’s “modernizing mission” — to borrow (and expand somewhat) a theory offered by David Strauss. The Court’s efforts, we argue, dissolve any ostensible tension between the rights guaranteed by the First and Second Amendments and should ease Professor Magarian’s anxieties about the suitability of an individual right to private arms ownership in a liberal democracy.

Number of Pages in PDF File: 14

Accepted Paper Series


Download This Paper

Date posted: May 17, 2013 ; Last revised: June 17, 2013

Suggested Citation

Reynolds, Glenn Harlan and Denning, Brannon P., How to Stop Worrying and Learn to Love the Second Amendment: A Reply to Professor Magarian (May 16, 2013). Texas Law Review, Vol. 91, p. 89, 2013; University of Tennessee Legal Studies Research Paper No. 213. Available at SSRN: http://ssrn.com/abstract=2266181

Contact Information

Glenn Harlan Reynolds (Contact Author)
University of Tennessee College of Law ( email )
1505 West Cumberland Avenue
Knoxville, TN 37996-1810
United States
865-974-6744 (Phone)
Brannon P. Denning
Samford University - Cumberland School of Law ( email )
800 Lakeshore Dr.
Birmingham, AL 35229
United States
205-726-2413 (Phone)
205-726-4060 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 12,759
Downloads: 2,674
Download Rank: 2,079

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 0.375 seconds