The Living Constitution and the Second Amendment: Poor History, False Originalism, and a Very Confused Court

40 Pages Posted: 5 Apr 2017

See all articles by Paul Finkelman

Paul Finkelman

Gratz College; Albany Law School

Date Written: 2015


The article explores the use of history and originalism in Second Amendment jurisprudence. The article argues that in both District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010) the Court bases its conclusions on a false history that is, for the most part, a fantasy of the majority of the Court and opponents of reasonable firearms regulation. The Court majority relies on “scholars” who have often been funded by the National Rifle Association (NRA) or worked for the NRA, but hide these connections when offering their work to law reviews. While claiming to root its opinions in history, the Court is unconcerned that virtually all of the serious historical scholarship on the Founding undermines its analysis. The Court weaves a history of the Second Amendment that is based on books and articles that are accurately described as “[l]aw office history,” which is often sloppy and inaccurate in its facts, and sometimes mindless in its analysis. While the majority Justices profess to believe in a jurisprudence of original intent, the Court’s historical analysis could not get a passing grade in any serious college history course.

Keywords: 2nd Amendment, Legal History, Original Intent, Original Understanding, Firearms Regulation, Justice Antonin Scalia, Justice William Brennan, Thomas Jefferson, George Mason, James Madison, Antifederalists, Federalist Papers, State Constitutions, Declaration of Independence, Michael Waldma

Suggested Citation

Finkelman, Paul, The Living Constitution and the Second Amendment: Poor History, False Originalism, and a Very Confused Court (2015). Cardozo Law Review, Vol. 37, p. 623, 2015, U. of Pittsburgh Legal Studies Research Paper Series, Available at SSRN:

Paul Finkelman (Contact Author)

Gratz College ( email )

7605 Old York Road
Melrose Park, PA 19027
United States

Albany Law School

United States

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