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'A Well Regulated Militia': The Second Amendment in Historical Perspective

31 Pages Posted: 13 Mar 2008 Last revised: 12 Aug 2009

Paul Finkelman

University of Pittsburgh, School of Law; Albany Law School - Government Law Center

Abstract

This article argues that the second amendment was initially proposed and passed in response to some antifederalist fears of a standing army. The thrust of the Amendment was to prevent the national government from disarming the state militias. Similarly, the Amendment allowed the states to arm their own militias if Congress failed to do so under its Article I, Section 8 powers. The article notes that Madison and other Federalists who wrote the Second Amendment were fully aware of demands for an amendment to protect an individual's right to own weapons, and that the framers of the Second Amendment emphatically rejected this concept. The article concludes that the Second Amendment was not meant to protect an individual right to bear arms, but also argues that political considerations make bans on long guns and hunting rifles impossible. In the concluding paragraph the article asks: "Could Congress ban hunting rifles," and concludes "it would be politically impossible and constitutionally absurd, although it would be possible and reasonable to ban hunting, and hunting rifles, in national parks." Similarly the article concluded Congress may "regulate the ownership, sale, use, and interstate transportation of firearms" under "general federal police and commerce powers, just as the states or the national government (where it has regulatory or police power) can regulate burial, marriage, or child custody. But, just as regulations of marriage or burial must be reasonable, so too would regulations of firearms."

Keywords: second amendment, firearms, right to bear arms

Suggested Citation

Finkelman, Paul, 'A Well Regulated Militia': The Second Amendment in Historical Perspective. Chicago-Kent Law Review, Vol. 76, No. 195, 2000. Available at SSRN: https://ssrn.com/abstract=1105369

Paul Finkelman (Contact Author)

University of Pittsburgh, School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States
412-648-2079 (Phone)

Albany Law School - Government Law Center ( email )

80 New Scotland Avenue
Albany, NY 12208
United States

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