The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control

74 Pages Posted: 28 Mar 2014 Last revised: 5 Jan 2016

See all articles by Lawrence Rosenthal

Lawrence Rosenthal

Chapman University, The Dale E. Fowler School of Law

Date Written: October 9, 2015

Abstract

Second Amendment jurisprudence was revolutionized by the Supreme Court's 2008 decision in District of Columbia v. Heller. Relying on what it characterized as the "original meaning" of the Second Amendment, the Court recognized for the first time an individual right to keep and bear arms, and invalidated an ordinance that prohibited the possession of handguns, at least as applied to individuals who wished to keep them at home for purposes of lawful self-defense.

This article takes Heller’s conclusions about the original meaning of the Second Amendment as given, and assesses whether they have produced – or even are capable of producing – an authentically originalist Second Amendment jurisprudence. It assesses as well the implications of Heller for gun control. Some six years after the Court announced a new era in Second Amendment jurisprudence in Heller, the outlines of a new Second Amendment jurisprudence – one that contemplates surprisingly robust regulatory authority and in which originalism plays a surprisingly limited role – are starting to come clear. The discussion that follows seeks to explicate and defend this emerging jurisprudence in terms of the relationship between the Second Amendment's preamble and its operative clause. It explores as well the constitutional case for a quite robust regime of gun control.

Keywords: District of Columbia v. Heller, McDonald v. City of Chicago, Second Amendment, right to keep and bear arms, assault weapons, firearms registration, concealed carry, open carry, Peruta v. County of San Diego

Suggested Citation

Rosenthal, Lawrence, The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control (October 9, 2015). 92 Wash. U.L. Rev. 1187 (2015) ; Chapman University, Fowler Law Research Paper No. 15-05. Available at SSRN: https://ssrn.com/abstract=2414681

Lawrence Rosenthal (Contact Author)

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

One University Drive
Orange, CA 92866-1099
United States

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