Abstract

http://ssrn.com/abstract=2684848
 


 



The First Century of Right to Arms Litigation


David B. Kopel


Independence Institute; Denver University - Sturm College of Law

August 10, 2016

Georgetown Journal of Law & Public Policy, Forthcoming
U Denver Legal Studies Research Paper No. 15-58

Abstract:     
This Article examines state court cases involving the right to arms, during the first century following ratification of the Amendment in 1791. This is not the first article to survey some of those cases. This Article includes additional cases, and details the procedural postures and facts, not only the holdings. The Article closely examines how the Supreme Court integrated the nineteenth century arms cases into Heller and McDonald to shape modern Second Amendment law.

Part I briefly explains two English cases which greatly influenced American legal understandings. Semayne’s Case is the foundation of “castle doctrine” — the right to home security which includes the right of armed self-defense in the home. Sir John Knight’s Case fortified the tradition of the right to bear arms, providing that the person must bear arms in a non-terrifying manner.

Part II examines American antebellum cases; these are the cases to which Heller looked for guidance on the meaning of the Second Amendment.

Part III looks at cases from Reconstruction and the early years of Jim Crow, through 1891. As with the antebellum cases, the large majority of post-war cases are from the Southeast, which during the nineteenth century was the region most ardent for gun control. The heart of gun control country was Tennessee and Arkansas; courts there resisted some infringements of the right to arms, but eventually gave up. Heller and McDonald did not look to the Jim Crow cases as constructive precedents on the Second Amendment.

Number of Pages in PDF File: 62

Keywords: Second Amendment, original meaning, nineteenth century, Supreme Court, Heller, English history

JEL Classification: K14, K42, K41


Open PDF in Browser Download This Paper

Date posted: November 4, 2015 ; Last revised: August 11, 2016

Suggested Citation

Kopel, David B., The First Century of Right to Arms Litigation (August 10, 2016). Georgetown Journal of Law & Public Policy, Forthcoming; U Denver Legal Studies Research Paper No. 15-58. Available at SSRN: http://ssrn.com/abstract=2684848

Contact Information

David B. Kopel (Contact Author)
Independence Institute ( email )
727 East 16th Ave
Denver, CO 80203
United States
303-279-6536 (Phone)
303-279-4176 (Fax)
HOME PAGE: http://www.davekopel.org
Denver University - Sturm College of Law
2255 E. Evans Avenue
Denver, CO 80208
United States
HOME PAGE: http://www.davekopel.org

Feedback to SSRN


Paper statistics
Abstract Views: 1,464
Downloads: 204
Download Rank: 111,860

© 2016 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollobot1 in 2.469 seconds