The Dog That Didn't Bark is Rewriting the Second Amendment

New York University Law Review Online, forthcoming 2024

U of Alabama Legal Studies Research Paper No. 4765027

4 Pages Posted: 21 Mar 2024

See all articles by Fredrick E. Vars

Fredrick E. Vars

University of Alabama - School of Law

Date Written: March 19, 2024

Abstract

The Supreme Court’s Second Amendment test is based on nothing. By “nothing,” I mean the absence of something. The Court in Bruen suggested that a modern gun regulation could be constitutional only if there was an analogous historical regulation. Thus, legislative inaction defines the scope of the Second Amendment. This form of argument is often called “the dog that didn’t bark,” after a famous Sherlock Holmes story. The Court has expressly rejected this form of argument in the past. The problem is not with the form of the argument, but rather with the Court’s clumsy misapplication of it. Thankfully, the Court has a chance in the pending Rahimi case to put the dog back on the leash.

Keywords: Second Amendment, Rahimi, Bruen, Firearm, Gun, History, Sherlock Holmes

Suggested Citation

Vars, Fredrick E., The Dog That Didn't Bark is Rewriting the Second Amendment (March 19, 2024). New York University Law Review Online, forthcoming 2024, U of Alabama Legal Studies Research Paper No. 4765027, Available at SSRN: https://ssrn.com/abstract=4765027

Fredrick E. Vars (Contact Author)

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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