Document Type

Article

Comments

Judge William. E. Miller Prize Paper (P. Gewirtz, B. Ackerman, R. Siegel) (best paper concerning the Bill of Rights)

Abstract

This paper develops a robust model of how nineteenth-century courts actually adjudicated the content of the right to bear arms under federal and state constitutional guarantees. My argument is that nineteenth-century courts were not “originalists” or “textualists” about the Second Amendment: they did not look to how James Madison viewed the right in 1789 or how Americans in 1791 commonly understood the Second Amendment.

Instead, I argue that most nineteenth-century courts shaped the right to bear arms around the contemporary popular understanding of the right. In other words, as the popular consensus about the appropriate scope of the right to bear arms changed over time, courts evolved their jurisprudence on the right to bear arms to reflect this popular shift. Courts only struck down weapon control laws when those laws fell too far outside the contemporary popularly accepted scope of the right.

Date of Authorship for this Version

2012

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