‘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
Date Written: April 1, 2010
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
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