'This Right is Not Allowed by Governments that are Afraid of the People': The Public Meaning of the Second Amendment When the Fourteenth Amendment was Ratified

Abstract

This prepublication version of the article has been cited by the petitioner’s brief and an amicus brief in McDonald v. Chicago, 08-1521 (S. Ct. argued Mar. 2, 2010). Please see the final publication version here: http://ssrn.com/abstract=1585461.

If the Fourteenth Amendment is found to incorporate the Second Amendment against the states, what meaning of the Second Amendment does it include? This paper examines judicial and popular understandings of the Second Amendment in the period between ratification of the Bill of Rights and the Fourteenth Amendment.

Keywords: Second Amendment, gun, guns, Fourteenth Amendment, arms, bear arms, militia, federalism, individual right, collective right, firearm, firearms, tyranny, militias, weapon, incorporation,free state,well regulated,disarm,self-defence,self-defense,heller,mcdonald,black codes,Constitution,Bill of Rights