The Commonplace Second Amendment
New York University Law Review, Vol. 72, No. 3 (1998)
Posted: 17 Dec 1997
The Second Amendment, many argue, has a unique structure: A purpose or justification clause followed by an operative clause. But if one looks at contemporaneous state constitutions, the Amendment proves to be quite commonplace -- many constitutional rights are structured exactly the same way, e.g.,
"The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty . . . ." (Rhode Island Constitution)
This short (18-page) article asks what these analogous state provisions tell us about interpreting the Second Amendment in a way that takes both its clauses seriously. Part of the answer, the article suggests, is that constitutional rights will often (and for good reason) be written in ways that are to some extent overinclusive and to some extent underinclusive with respect to their stated purposes.
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