The Right to Keep and Bear Arms in the Roberts Court

American Federalism and Public Policy, Christopher P. Banks, ed., chap. 2 (2018)

George Mason Legal Studies Research Paper No. LS 17-16

22 Pages Posted: 20 Sep 2017 Last revised: 5 Apr 2018

See all articles by Nelson Lund

Nelson Lund

George Mason University School of Law

Date Written: September 18, 2017

Abstract

Like everything else in the Bill of Rights, the Second Amendment originally restrained only the new federal government. This left the states free to regulate weapons as they saw fit, just as they were free to regulate such matters as speech and religion. The Supreme Court did not invalidate a federal statute under the Second Amendment until 2008, and it was only in 2010 that a regulation adopted pursuant to state law was struck down. These two decisions — District of Columbia v. Heller and McDonald v. City of Chicago — prompted a stream of litigation that may eventually put significant constraints on legislative efforts to regulate the possession and use of weapons. As this is written in July 2017, however, it seems more likely that the Court’s decisions will prove to have very limited practical effects. It is worth recalling the Rehnquist Court’s Commerce Clause decision in United States v. Lopez, which set off celebrations and lamentations about a federalism revolution that has yet to come about. Similarly, the Roberts Court has so far shown only that the Second Amendment does not leave governments with absolutely limitless regulatory power.

This contribution to American Federalism and Public Policy (edited by Christopher P. Banks) begins with a brief sketch of the legal and historical background that set the stage for Heller and McDonald. After a description of those cases, the chapter surveys the application of the decisions by the lower courts. The chapter concludes with an analysis of the Supreme Court’s response to the case law developed by the lower courts.

Keywords: Bill of Rights, Constitutional law, District of Columbia v. Heller, firearms, McDonald v. City of Chicago, militia, right to arms, Second Amendment, U.S. Supreme Court

JEL Classification: K10, K30

Suggested Citation

Lund, Nelson Robert, The Right to Keep and Bear Arms in the Roberts Court (September 18, 2017). American Federalism and Public Policy, Christopher P. Banks, ed., chap. 2 (2018); George Mason Legal Studies Research Paper No. LS 17-16. Available at SSRN: https://ssrn.com/abstract=3038923

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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