Title: Gun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller and McDonald v. Chicago
Abstract: Introduction I. The Text of Second Amendment II. Supreme Court Decisions Analyzing Second Amendment III. The Supreme Court's Decision in District of Columbia v. Heller IV. The Supreme Court's Decision in McDonald v. City of Chicago V. Issues Being Litigated Post-Heller and Post-McDonald Conclusion INTRODUCTION Thank you, Dean Martin, and thank you to members of Fordham Urban Law Journal for putting together this event and giving me opportunity to speak to you all today. What I would like to do in time I have is to try and provide a bit of background for some of debate on Second Amendment that you will hear later today. To that end, I am going to try to summarize how Supreme Court has interpreted Second Amendment, most importantly focusing on 2008 and 2010 decisions in District of Columbia v. Helle (1) and McDonald v. City of Chicago. (2) Please know that I speak today not on behalf of Department of Justice or United States Attorney's Office, and any opinions or beliefs that I express are my own and not necessarily those of Department. I. THE TEXT OF THE SECOND AMENDMENT natural place to start is with text of amendment itself. The Second Amendment reads: A well regulated Militia, being necessary to security of a free right of to keep and bear Arms, shall not be infringed. (3) The amendment contains two parts: prefatory language, A well regulated Militia, being necessary to security of a flee State, and operative part, the right of to keep and bear Arms, shall not be infringed. How to interpret relationship between prefatory language and operative language is cornerstone of debate in Supreme Court's 2008 decision in District of Columbia v. Heller. (4) Does operative language, the right of to keep and bear arms, shall not be infringed, only apply when arms are kept or carried in connection with a military purpose? Or does prefatory language concerning necessity of a militia merely provide backdrop against which Founders felt it necessary to codify an individual right of the people to keep and bear arms--whether or not use of arms is related to military use? The Supreme Court did not address this issue of linguistics and Founders' intent until Heller decision in 2008. Commentators on both sides of this issue have argued that Court's silence on this topic suggests that one way or other, before Heller there really was no serious debate about meaning of Second Amendment. Depending on your viewpoint, Court in Heller, in finding that Second Amendment protects an individual's right to bear arms in non-military conduct, either affirmed a well-accepted principle or, on other hand, expanded scope of right under Second Amendment, despite plain language concerning militia, to create a constitutionally protected individual right to bear arms when such a constitutional right had never existed before nor was intended to exist by Founders. II. SUPREME COURT DECISIONS ANALYZING THE SECOND AMENDMENT Interestingly, before Heller and McDonald, Second Amendment rarely was a source of much interest for Supreme Court. Indeed, prior to 2008 Heller decision, meaning and scope of Second Amendment seems only to have been focus of three Supreme Court decisions. (5) I will discuss each of those briefly. First, in 1876, Supreme Court in United States v. Cruikshank, (6) a few years after passage of Fourteenth Amendment, addressed whether Second Amendment applies by its own force to anyone other than Federal Government. (7) The Court concluded that Second Amendment means no more than that right to keep and bear arms shall not be infringed by Congress, and that states were free to protect or restrict that right under their police powers. …
Publication Year: 2012
Publication Date: 2012-10-01
Language: en
Type: article
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Cited By Count: 1
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