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