The Second Amendment in Context: The Case of the Vanishing Predicate

198 Pages Posted: 30 Jan 2007  

William G. Merkel

Charleston School of Law

H. Richard Uviller

Columbia University - Columbia Law School

Abstract

Analyzes Supreme Court case law of Second Amendment. Traces the historical foundations of the Second Amendment in 17th and 18th century Anglo-American political thought, stressing the anti-standing-army trope in republican discourse. Explores the role of army and militia ideology in the American Revolution, and examines the drafting history of the Second Amendment. Explains that the militia of the framers - perhaps always more an ideal than an operating reality - disappeared in the early decades of the nineteenth century, and argues that the constitutionally described right to arms is largely without meaning absent the universal, compulsory privately armed state sponsored militia on which it was premised. Engages theories of constitutional construction and interpretation, and debates the interpretations of the right to arms developed by Akhil Amar, Carl Bogus, Sanford Levinson, and William Van Alstyne.

Keywords: Supreme Court, Second Amendment, militia, American Revolution, James Madison, Bill of Rights, Militia Act, constitutional interpretation, original meaning, classical republicanism, United States Army, National Guard, Akhil Amar, Carl Bogus, Sanford Levinson, William Van Alstyne

Suggested Citation

Merkel, William G. and Uviller, H. Richard, The Second Amendment in Context: The Case of the Vanishing Predicate. Chicago-Kent Law Review, Vol. 76, No. 1, pp. 403-600, 2000. Available at SSRN: https://ssrn.com/abstract=960155

William G. Merkel (Contact Author)

Charleston School of Law ( email )

Charleston, SC 29402
United States

H. Richard Uviller (deceased)

Columbia University - Columbia Law School

N/A

Paper statistics

Downloads
205
Rank
121,016
Abstract Views
1,375