The Second Amendment: Toward an Afro-Americanist Reconsideration
Georgetown Law Journal, Vol. 80, pp. 309-361, 1991
Posted: 20 Dec 2009 Last revised: 6 May 2010
Date Written: 1991
The often strident debate over the Second Amendment is like few others in American constitutional discourse and historiography. It is a constitutional debate that has taken place largely in the absence of Supreme Court opinion. It is a historical controversy where the framers' intentions have best been gleaned from indirect rather than direct evidence. It is a scholarly debate that members of the academy have been until recently somewhat reluctant to join, leaving the field to independent scholars primarily concerned with the modern gun control controversy. In short, the Second Amendment is an arena of constitutional jurisprudence that still awaits its philosopher.
The debate over the Second Amendment is ultimately part of the larger debate over gun control, a debate about the extent to which the Amendment was either meant to be or should be interpreted as limiting the ability of government to prohibit or limit private ownership of firearms. Waged in the popular press, in the halls of Congress, and increasingly in historical and legal journals, two dominant interpretations have emerged. Advocates of stricter gun controls have tended to stress the Amendment's Militia Clause, arguing that the purpose of the Amendment was to ensure that state militias would be maintained against potential federal encroachment. This argument, embodying the collective rights theory, sees the framers' primary, indeed sole, concern as one with the concentration of military power in the hands of the federal government, and the corresponding need to ensure a decentralized military establishment largely under state control.
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