Promise and Perils in the Nascent Jurisprudence of the Second Amendment

16 Pages Posted: 18 Oct 2015 Last revised: 6 Nov 2016

See all articles by Nelson Lund

Nelson Lund

George Mason University School of Law

Date Written: October 16, 2015

Abstract

In Heller v. District of Columbia, the Supreme Court held that the Second Amendment protects the right of individuals to keep and bear arms for self-defense. In McDonald v. City of Chicago, the Court held that this right is also protected from infringement by the states under the Fourteenth Amendment. Thus, many important decisions about the reach of government’s regulatory authority will henceforth come from the federal courts. The scope of the Second Amendment right, however, has not yet been clarified, either by the Supreme Court or by a consensus of the lower courts.

This short symposium contribution sketches out several possible approaches to defining the scope of the right, and argues that one of them is better than the others, at least for purposes of adjudication under the Second Amendment. The essay argues that Judges Diarmuid O’Scannlain and Diane Sykes have shown — more clearly than the Supreme Court has yet done — the right way to decide cases in this nascent area of constitutional law.

Keywords: Antonin Scalia, ban, Congress, Constitution, Constitutional Convention, disarm, federalism, Founding Fathers, handguns, keep and bear arms, militia, Miller, national defense, originalism, prohibition, reasonableness, right of the people, self-defense, standing armies, Stephen Breyer, weapons

Suggested Citation

Lund, Nelson Robert, Promise and Perils in the Nascent Jurisprudence of the Second Amendment (October 16, 2015). Georgetown Journal of Law & Public Policy, V. 14, pp. 207-221, 2016; George Mason Legal Studies Research Paper No. LS 15-40. Available at SSRN: https://ssrn.com/abstract=2675323

Nelson Robert Lund (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)

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