Second Amendment Plumbing After McDonald Exploring the Contradiction in the Second Amendment

22 Pages Posted: 9 Nov 2010 Last revised: 4 Jun 2011

Lawrence Rosenthal

Chapman University, The Dale E. Fowler School of Law

Joyce Lee Malcolm

George Mason School of Law

Date Written: November 7, 2010

Abstract

These essays were written for a debate with Professor Joyce Lee Malcolm appearing in the Northwestern University Law Review concerning the standard of scrutiny to be applied to gun control laws in the wake of the Supreme Court's decision in McDonald v. City of Chicago. The opening essay argues that the text of the Second Amendment, the history of gun-control regulation, and the approach taken by the Supreme Court in McDonald and District of Columbia v. Heller argue for some form of intermediate scrutiny capable of coming to grips with the fact that the populace capable of bearing arms, that is, the "militia" in originalist parlance, may require far more comprehensive regulation in contemporary urban American than was necessary in the framing era. The reply essay responds to Professor Malcolm's praise for Justice Thomas's opinion in McDonald and her advocacy of strict scrutiny. It argues that the historical record is far more complicated than acknowledged by Justice Thomas, and that strict scrutiny cannot be reconciled with key aspects of the Heller opinion, and overlooks critical differences between the framing era and today's urban crime.

Keywords: Second Amendment, Right to Bear Arms, District of Columbia v. Heller, Fourteenth Amendment

Suggested Citation

Rosenthal, Lawrence and Malcolm, Joyce Lee, Second Amendment Plumbing After McDonald Exploring the Contradiction in the Second Amendment (November 7, 2010). Northwestern University Law Review, Vol. 85, No. 1, 2011; Chapman University Law Research Paper No. 10-33. Available at SSRN: https://ssrn.com/abstract=1704722

Lawrence Rosenthal (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

Joyce Lee Malcolm

George Mason School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-9150 (Phone)

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