The Dog That Didn't Bark is Rewriting the Second Amendment
New York University Law Review Online, forthcoming 2024
4 Pages Posted: 21 Mar 2024
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
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