Download This PaperA Pragmatic Approach to the Second Amendment
24 Tex. Rev. L. & Pol. 263 (2019)
19 Pages Posted: 7 May 2020 Last revised: 17 Aug 2020
Date Written: February 12, 2020
Abstract
This Note maintains that the fundamental right of Americans to bear arms, protected by the Second and Fourteenth Amendments, should be analyzed under a pragmatic framework—a framework that (1) pays close attention to practical consequences, (2) emphasizes context, and (3) is empirical and experimental. Part I of this Note sketches the contours of pragmatism as a legal–philosophical approach. Part II argues that the best standard for adjudicating Second Amendment claims is intermediate scrutiny rather than rational basis review or strict scrutiny. Part III identifies five contextual factors—the five “W”s—that courts should carefully consider when deciding whether the government has met its burden of persuasion under intermediate scrutiny. Part IV briefly concludes this Note.
Keywords: Second Amendment, firearms, guns, pragmatism
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Austin Nelson (Contact Author)
University of Michigan Law School ( email )
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