'Arms for Their Defence?': An Historical, Legal, and Textual Analysis of the English Right to Have Arms and Whether the Second Amendment should Be Incorporated in McDonald v. City of Chicago
110 Pages Posted: 12 Feb 2010
Date Written: December 1, 2009
In early 2010, the United States Supreme Court will hear oral arguments for McDonald v. City of Chicago to determine whether the Second Amendment is incorporated through the Fourteenth Amendment and applies directly to the states. Coming less than two years after the Court’s landmark decision in District of Columbia v. Heller, the issues affecting the Fourteenth Amendment are two-fold. First, the Court will determine whether the Second Amendment is incorporated through the Fourteenth Amendment’s Due Process Clause. Second, the Court will determine if the Second Amendment applies to the states through the Fourteenth Amendment’s Privileges and Immunities Clause. While the “privileges and immunities” issue will receive the overwhelming attention of the legal community, what will seemingly be ignored is the history of the Anglo-American tradition of “having arms,” for its history may prove crucial as to whether the Second Amendment is incorporated through either the Fourteenth Amendment’s Due Process or Privileges and Immunities Clauses.
Keywords: Second Amendment, Arms for Their Defence, English history, incorporation
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