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04/02/2014

Lawrence Rosenthal: The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control
Michael Ramsey

Lawrence Rosenthal (Chapman University - School of Law) has posted The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control (Washington University Law Review, Forthcoming) on SSRN.  Here is the abstract:

Second Amendment jurisprudence was revolutionized by the Supreme Court's 2008 decision in District of Columbia v. Heller. Relying on what it characterized as the "original meaning" of the Second Amendment, the Court recognized for the first time an individual right to keep and bear arms, and invalidated an ordinance that prohibited the possession of handguns, at least as applied to individuals who wished to keep them at home for purposes of lawful self-defense.

This article takes Heller’s conclusions about the original meaning of the Second Amendment as given, and assesses whether they have produced – or even are capable of producing – an authentically originalist Second Amendment jurisprudence. It assesses as well the implications of Heller for gun control. Some six years after the Court announced a new era in Second Amendment jurisprudence in Heller, the outlines of a new Second Amendment jurisprudence – one that contemplates surprisingly robust regulatory authority and in which originalism plays a surprisingly limited role – are starting to come clear. The discussion that follows seeks to explicate and defend this emerging jurisprudence in terms of the relationship between the Second Amendment’s preamble and its operative clause. It explores as well the constitutional case for a quite robust regime of gun control.