Why Protect Private Arms Possession? Nine Theories of the Second Amendment

William & Mary Law School Research Paper No. 08-07

Notre Dame Law Review, Vol. 84, pp. 131-189, 2008

61 Pages Posted: 25 Feb 2008 Last revised: 23 Jan 2009

Michael S Green

William & Mary Law School

Abstract

In District of Columbia v. Heller, 128 S. Ct. 2783 (2008), the Supreme Court held that the Second Amendment protects an individual right to bear arms. And it struck down two gun control laws on the ground that they violated this individual right. But Justice Scalia's opinion fails to identify the interest in private arms possession that the Second Amendment protects. It is not enough to assert, as Scalia does, that the right to bear arms is tied to the right of self-defense. For that fails to identify the interest that the right of self-defense itself protects, as well as the connection between arms possession and this interest in self-defense.

Clarity about the Second Amendment's purpose is essential to any principled reasoning about its scope. In this article, I identify nine possible interests (including, but not limited to, interests in self-defense) that the Second Amendment might protect, as a foundation for intellectually responsible reasoning about this constitutional right.

Keywords: Second Amendment, John Locke, social contract, state of nature

Suggested Citation

Green, Michael S, Why Protect Private Arms Possession? Nine Theories of the Second Amendment. Notre Dame Law Review, Vol. 84, pp. 131-189, 2008; Notre Dame Law Review, Vol. 84, pp. 131-189, 2008. Available at SSRN: https://ssrn.com/abstract=1095339 or http://dx.doi.org/10.2139/ssrn.1095339

Michael S Green (Contact Author)

William & Mary Law School ( email )

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P.O. Box 8795
Williamsburg, VA 23187-8795
United States
(757) 221-7746 (Phone)

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