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Explaining Away the Obvious: The Infeasibility of Characterizing the Second Amendment as a Nonindividual Right

63 Pages Posted: 11 Mar 2008 Last revised: 10 Apr 2016

George A. Mocsary

Southern Illinois University at Carbondale - School of Law

Date Written: March 2008

Abstract

Although the Second Amendment of the U.S. Constitution has guaranteed the right to keep and bear arms for more than 200 years, the U.S. Supreme Court has never formally declared to whom the right belongs. Each side of the gun debate - one holding that the Amendment guarantees a right to individuals, the other that states possess the right - supports its position with ostensibly solid precedential, historical, and textual arguments. This Note approaches the issue from the opposite direction, asking how many precedential, historical, and textual obstacles each side must explain away and examining the relative strength of those explanations. Under this analysis, the individual right prevails.

Keywords: second amendment, arms, gun, guns, bear arns, militia, federalism,individual right,collective right,firearm,firearms,tyranny,Federalist,Anti-Federalist,Madison,militias,weapon,incorporation,free state,well regulated,Constitution,Bill of Rights,miller,silveira,lockyer,disarm,self-defence,self-defense

Suggested Citation

Mocsary, George A., Explaining Away the Obvious: The Infeasibility of Characterizing the Second Amendment as a Nonindividual Right (March 2008). 76 Fordham Law Review 2113 (2008). Available at SSRN: https://ssrn.com/abstract=1102860

George A. Mocsary (Contact Author)

Southern Illinois University at Carbondale - School of Law ( email )

1150 Douglas Drive
Carbondale, IL 62901-6804
United States

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