The Faces of the Second Amendment Outside the Home, Take Three: Critiquing the Circuit Courts Use of History-in-Law

Abstract

This article seeks to critique the circuit courts’ varying history-in-law approaches, as well as to provide advice on the proper role that history-in-law plays when examining the scope of the Second Amendment outside the home. This article sets forth to accomplish this task in three parts. Part I argues why history-in-law is appropriate when adjudicating Second Amendment decisions outside the home. Part II examines the benefits and burdens of utilizing history-in-law as a method of constitutional interpretation, while breaking down the alternative approaches employed by circuit courts when adjudicating Second Amendment decisions outside the home. Lastly, Part III offers practical advice on the use of history-in-law moving forward.

Keywords: Second Amendment, history-in-law, keep arms, bear arms, District of Columbia v. Heller, McDonald v. City of Chicago,New York State Rifle & Pistol Association, Inc. v. City of New York, New York, outside the home, carry arms