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The Second Amendment on Trial

The Second Amendment on Trial: Critical Essays on District of Columbia v. Heller

Saul Cornell
Nathan Kozuskanich
Copyright Date: 2013
Pages: 456
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  • Book Info
    The Second Amendment on Trial
    Book Description:

    On the final day of its 2008 term, a sharply divided U.S. Supreme Court issued a 5to4 decision striking down the District of Columbia’s stringent gun control laws as a violation of the Second Amendment. Reversing almost seventy years of settled precedent, the high court reinterpreted the meaning of the “right of the people to keep and bear arms” to affirm an individual right to own a gun in the home for purposes of selfdefense. The landmark ruling not only opened a new chapter in the contentious history of gun rights and gun control but also revealed both the strengths and problems of originalist constitutional theory and jurisprudence. This volume brings together some of the best scholarship on the Heller case, with essays by legal scholars and historians representing a range of ideological viewpoints and applying different interpretive frameworks. Following the editors’ introduction, which describes the issues involved and the arguments on each side, the essays are organized into four sections. The first includes two of the most important historical briefs filed in the case, while the second offers different views of the role of originalist theory. Section three presents opposing interpretations of the ruling and its relationship to modern constitutional doctrine. The final section explores historical research postHeller, including new findings on patterns of gun ownership in colonial and Revolutionary America. In addition to the editors, contributors include Nelson Lund, Joyce Lee Malcolm, Jack Rakove, Reva B. Siegel, Cass R. Sunstein, Kevin M. Sweeney, and J. Harvie Wilkinson III.

    eISBN: 978-1-61376-258-5
    Subjects: Law, History

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgments
    (pp. vii-x)
  4. Introduction: The D.C. Gun Case
    (pp. 1-28)
    Saul Cornell and Nathan Kozuskanich

    On the final day of its 2008 term, a sharply divided U.S. Supreme Court issued a five-to-four decision inDistrict of Columbia v. Heller.¹ The high court struck down the District of Columbia’s stringent gun control laws as a violation of the Second Amendment, reversing almost seventy years of settled precedent that linked the meaning of the “right of the people to keep and bear arms” with the preservation of a “well regulated militia.”² Reinterpreting the meaning of the amendment as securing an individual right to own a gun in the home for the purpose of self-defense, the Court opened...

  5. Section I: Historians before the Court

    • Brief of the Cato Institute and History Professor Joyce Lee Malcolm as Amici Curiae in Support of Respondent [The Right Inherited from England]
      (pp. 31-52)
      Joyce Lee Malcolm

      The Cato Institute is a public policy research foundation in Washington, D.C. Named afterCato’s Letters(published in England in the 1720s), it seeks to include in public debate traditional American principles of limited government, individual liberty, free markets, and peace. Cato therefore promotes understanding of the Constitution’s common law context.

      Professor Joyce Lee Malcolm long has been the leading authority on the historical English right to arms. Her works include two books published by Harvard University Press:Guns and Violence: The English Experience(2002) (“G&V”) andTo Keep and Bear Arms: The Origins of an Anglo-American Right(1994) (“K&B”)....

    • Brief of Amici Curiae Jack N. Rakove, Saul Cornell, David T. Konig, Lois G. Schwoerer et al. in Support of Petitioners
      (pp. 53-78)
      Jack Rakove

      Amici curiae, listed in the Appendix, are professional historians. They have all earned Ph.D. degrees in history, hold academic appointments in university departments of history, and specialize in the American Revolution, the Early Republic, American Legal History, American Constitutional History, Anglo-American Legal History, or related areas. Amici curiae have an interest in the Court having an informed understanding of the history that led to the adoption of the Second Amendment.

      The central question is whether the Second Amendment protects a private right to keep handguns and other firearms, independent of an individual’s membership in a state-regulated militia. As a problem...

  6. Section II: Heller and Originalism

    • Dead or Alive: Originalism as Popular Constitutionalism in Heller
      (pp. 81-147)
      Reva B. Siegel

      The Court’s announcement in 2008 that the Second Amendment,³ ratified in 1791, protects an individual’s right to bear arms against federal gun control regulation was long awaited by many, long feared by others. What produced this ruling and what might it reveal about the character of our constitutional order? For many, constitutional law changed because the Court interpreted the Second Amendment in accordance with the understandings of the Americans who ratified it:Heller⁴ marks the “Triumph of Originalism.”⁵ Others saw the case very differently, observing that the Court had interpreted the Second Amendment in accordance with the convictions of the...

    • The Second Amendment, Heller, and Originalist Jurisprudence
      (pp. 148-186)
      Nelson Lund

      District of Columbia v. Hellergave the Supreme Court an opportunity to apply a jurisprudence of original meaning to the Second Amendment’s manifestly puzzling text. Notwithstanding the chief justice’s decision to assign the majority opinion to Justice Scalia, the Court squandered the opportunity.

      In a narrow sense, the Constitution was vindicated inHellerbecause the Court reached an easily defensible originalist result. But the Court’s reasoning is at critical points so defective—and so transparently non-originalist in some respects—thatHellershould be seen as an embarrassment for those who joined the majority opinion. It may also be widely (though...

  7. Section III: Heller and Constitutional Doctrine

    • Of Guns, Abortions, and the Unraveling Rule of Law
      (pp. 189-254)
      J. Harvie Wilkinson III

      Conservatives across the nation are celebrating. This past term, inDistrict of Columbia v. Heller,¹ the Supreme Court held for the first time in the nation’s history that the Second Amendment protects an individual right, unrelated to military service, to keep and bear arms. I am unable to join in the jubilation.Hellerrepresents a triumph for conservative lawyers. But it also represents a failure—the Court’s failure to adhere to a conservative judicial methodology in reaching its decision. In fact,Hellerencourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and...

    • Second Amendment Minimalism: Heller as Griswold
      (pp. 255-286)
      Cass R. Sunstein

      District of Columbia v. Heller¹ is the most explicitly and self-consciously originalist opinion in the history of the Supreme Court.² Well over two hundred years since the Framing, the Court has, for essentially the first time, interpreted a constitutional provision with explicit, careful, and detailed reference to its original public meaning.³

      It would be possible, in this light, to seeHelleras a modern incarnation ofMarbury v. Madison,⁴ at least as that case is understood by some contemporary scholars,⁵ and to a considerable extent as Chief Justice John Marshall wrote it. InMarbury, the Court also spoke on behalf...

  8. Section IV: Historical Research after Heller

    • Originalism in a Digital Age: An Inquiry into the Right to Bear Arms
      (pp. 289-309)
      Nathan Kozuskanich

      The recent Washington, D.C., gun caseDistrict of Columbia v. Hellerbrought the question of the meaning of the Second Amendment before the U.S. Supreme Court for the first time in almost seventy years. At issue was whether the amendment protects an individual right to self-defense (an interpretation dubbed the Standard Model by those who adhere to it), or a collective right of arms-bearing so that states could regulate and men could participate in their own militias (the Collective Rights Model). Not surprisingly, the case touched off a firestorm of debate in editorials, scholarly articles, numerous amicus briefs, and even...

    • Firearms, Militias, and the Second Amendment
      (pp. 310-382)
      Kevin M. Sweeney

      Few images are more embedded in Americans’ historical consciousness than that of the “embattled farmers” of Lexington and Concord who grabbed their guns and gathered to repel the British regulars on April 19, 1775. In particular, Daniel Chester French’s 1875 sculpture ofThe Minute Manleaving his plow with musket firmly in hand has become iconic, literally so for the NRA. What limited military training these men had came from membership in the colonial militia, which is usually described as having included all males from sixteen to sixty. In spite of—or, as some believe, because of—their limited exposure...

  9. Appendix A: The Scholarly Landscape since Heller
    (pp. 383-400)
    Saul Cornell and Nathan Kozuskanich
  10. Appendix B: A Summary of the Major Briefs Submitted in Heller
    (pp. 401-420)
  11. Appendix C: Articles Cited in Briefs
    (pp. 421-428)
  12. Appendix D: Briefs and Articles Cited in Heller
    (pp. 429-430)
  13. Index
    (pp. 431-447)
  14. Back Matter
    (pp. 448-448)