9 Pages Posted: 4 May 2013 Last revised: 29 Sep 2013
Date Written: May 2, 2013
In this Journal’s symposium edition Gun Control and the Second Amendment, Nicholas J. Johnson argues the Standard Model Second Amendment is the correct interpretation in both law and history. In particular, Johnson chastizes any historically based militia interpretation as “nonsense” because it conflates rights with duties. And frustrated with different militia focused interpretations of the Second Amendment, he queries: “How many tries are allowed before the enterprise loses credibility?” To those historians that have waded through the evidentiary record, the irony of Johnson’s view that scholarship should not improve and evolve in response to new research and on-going scholarly debate will not go unnoticed. Johnnson shares with other supporters of the self-styled Standard Model a preference for ideology over evidence. The Standard Model “right to shoot, to train, or to gather for shooting practice or other activity with their individual arms that approximates or facilitates the militia duty” is not the Founders’ right, but closer in spirit to Daniel Shays, not James Madison.
Keywords: Second Amendment, militia rights, originalism, legal history, legal theory, well regulated militia, bear arms
Suggested Citation: Suggested Citation
Charles, Patrick J., The Second Amendment and Militia Rights: Distinguishing Standard Model Legal Theory from the Historical Record (May 2, 2013). 40 Fordham Urban Law Journal City Square 1. Available at SSRN: https://ssrn.com/abstract=2259757