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The Right Not to Keep or Bear Arms

54 Pages Posted: 21 Oct 2011 Last revised: 21 Dec 2014

Joseph Blocher

Duke University School of Law

Date Written: January 1, 2012

Abstract

Sometimes a constitutional right to do a particular thing is accompanied by a right not to do that thing. The First Amendment, for example, guarantees both the right to speak and the right not to speak. This Article asks whether the Second Amendment should likewise be read to encompass both the right to keep or bear arms for self-defense and the inverse right to protect oneself by avoiding them, and what practical implications, if any, the latter right would have. The Article concludes - albeit with some important qualifications - that a right not to keep or bear arms is implied by what the Supreme Court has called the “core” and “central component” of the Second Amendment: self-defense, especially in the home. Recognizing such a right might call into question the constitutionality of the growing number of “antigun control” laws that make it difficult or illegal for private individuals to avoid having guns in their actual or constructive possession.

Keywords: Second Amendment, First Amendment, Heller v. District of Columbia

Suggested Citation

Blocher, Joseph, The Right Not to Keep or Bear Arms (January 1, 2012). Stanford Law Review, Vol. 64, pg.1, 2012. Available at SSRN: https://ssrn.com/abstract=1946885

Joseph Blocher (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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