David Weisberg: A Unique, Stand-Alone Second Amendment Implies that both Heller and McDonald were Wrongly Decided
David E. Weisberg (Independent) has posted A Unique, Stand-Alone Second Amendment Implies that both Heller and McDonald were Wrongly Decided on SSRN. Here is the abstract:
D.C. v. Heller (2008) held that the District violated the Second Amendment by prohibiting operable handguns in the home for self-defense. McDonald v. Chicago (2010) held that, because the Second Amendment is incorporated in the Fourteenth and thus applies against the States, a similar handgun ban in Chicago also violated the Second Amendment. Both decisions are incorrect.
The Second Amendment is the only constitutional provision with a prefatory clause. The logic of Heller implies that the amendment would have exactly the same legal force if its prefatory clause were deleted and its operative language were simply appended to the First Amendment. This implication is bizarre and unacceptable; it reveals a fundamental misunderstanding of the amendment’s unique tripartite structure. “The right of the people to keep and bear arms” referred to in the Second Amendment is: (1) created by state law, (2) exercised by the people, and (3) protected from federal infringement. The right is not created by the Second Amendment itself; nor is it a natural right of self-defense.
Heller is incorrect for two reasons: (1) the Second Amendment applies only to States, not to the District, and (2) even if the amendment applied to the District, there was no District law creating a right to possess handguns which was infringed by the federal government. McDonald is incorrect because the Second Amendment cannot be “incorporated” in the Fourteenth. Of the first eight amendments, only the second is tripartite. The others are binary, declaring rights persons have against the federal government. One can coherently apply a right, which was formerly applied against only the federal government, against a state government. One cannot coherently apply a prohibition created by state law against the State that created the prohibition.