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‘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

40 Pages Posted: 6 Apr 2010 Last revised: 10 Apr 2016

Clayton E. Cramer

College of Western Idaho

Nicholas James Johnson

Fordham University School of Law

George A. Mocsary

Southern Illinois University at Carbondale - School of Law

Date Written: April 1, 2010

Abstract

This is the final print version of the article, cited by the United States Supreme Court in McDonald v. Chicago, 130 S. Ct. 3020, 3039 n.21, 3041 n.25, 3043 (2010). Please see the pre-publication version, which has been cited by the petitioner’s brief and an amicus brief in McDonald v. Chicago, 08-1521 (S. Ct. argued Mar. 2, 2010), here: http://ssrn.com/abstract=1491365.

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, Fourteenth Amendment, arms, bear arms, militia, federalism, individual right, collective right, firearm, tyranny, militias, weapon, incorporation, free state, well regulated, disarm, self-defense, Heller, Mcdonald, black codes, Constitution, Bill of Rights

Suggested Citation

Cramer, Clayton E. and Johnson, Nicholas James and Mocsary, George A., ‘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 (April 1, 2010). 17 George Mason Law Review 823 (2010). Available at SSRN: https://ssrn.com/abstract=1585461

Clayton E. Cramer (Contact Author)

College of Western Idaho ( email )

5500 East Opportunity Drive
Nampa, ID 83687
United States

Nicholas James Johnson

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

George A. Mocsary

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

1150 Douglas Drive
Carbondale, IL 62901-6804
United States

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