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The Second Amendment on Trial

Critical Essays on District of Columbia v. Heller

edited by Saul A. Cornell and Nathan Kozuskanich

Publication Year: 2013

On the final day of its 2008 term, a sharply divided U.S. Supreme Court issued a 5-to-4 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 self-defense. 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 post-Heller, 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. Harvey Wilkinson III.

Published by: University of Massachusetts Press

Cover

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p. 1-1

Title Page, Copyright

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pp. 2-6

Contents

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pp. v-vi

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Acknowledgments

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pp. vii-ix

This volume was begun in 2006 as an effort on the part of the Second Amendment Research Center at the John Glenn School of Public Affairs at Ohio State University to bring together some of the best new scholarship on different aspects of the Second Amendment debate. The original structure of the volume included separate sections on history, law, and public policy, ...

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Introduction: The D.C. Gun Case

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pp. 1-28

On the final day of its 2008 term, a sharply divided U.S. Supreme Court issued a five-to-four decision in District of Columbia v. Heller.1 The high court struck down the District of Columbia?s stringent gun control laws as a vio-lation 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 ...

Section I: Historians before the Court

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Brief of the Cato Institute and History Professor Joyce Lee Malcolm as Amici Curiae in Support of Respondent [The Right Inherited from England]

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pp. 31-52

The Cato Institute is a public policy research foundation in Washington, D.C. Named after Cato?s Letters (published in England in the 1720s), it seeks to include in public debate traditional American principles of limited govern-ment, individual liberty, free markets, and peace. Cato therefore promotes Professor Joyce Lee Malcolm long has been the leading authority on the ...

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Brief of Amici Curiae Jack N. Rakove, Saul Cornell, David T. Konig, Lois G. Schwoerer et al. in Support of Petitioners

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pp. 53-77

Amici curiae, listed in the Appendix, are professional historians. They have all earned Ph.D. degrees in history, hold academic appointments in uni-versity 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 inter-...

Section II: Heller and Originalism

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Dead or Alive: Originalism as Popular Constitutionalism in Heller

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pp. 81-147

We should find the lost Second Amendment, broaden its scope and determine that it affords the right to arm a state militia and also the right of the individual [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. . . . What Texas has chosen to do is well within the range of traditional democratic ...

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The Second Amendment, Heller, and Originalist Jurisprudence

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pp. 148-185

District of Columbia v. Heller gave 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 in Heller because the ...

Section III: Heller and Constitutional Doctrine

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Of Guns, Abortions, and the Unraveling Rule of Law

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pp. 189-254

Conservatives across the nation are celebrating. This past term, in District 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. Heller represents a triumph for conservative lawyers. But it also ...

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Second Amendment Minimalism: Heller as Griswold

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pp. 255-286

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 hun-dred years since the Framing, the Court has, for essentially the first time, interpreted a constitutional provision with explicit, careful, and detailed ref-It would be possible, in this light, to see Heller as a modern incarnation of ...

Section IV: Historical Research after Heller

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Originalism in a Digital Age: An Inquiry into the Right to Bear Arms

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pp. 289-309

The recent Washington, D.C., gun case District of Columbia v. Heller brought 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 ...

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Firearms, Militias, and the Second Amendment

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pp. 310-382

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 of The Minute Man leaving his plow with musket firmly in hand has become iconic, literally so for the ...

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Appendix A: The Scholarly Landscape since Heller

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pp. 383-400

District of Columbia v. Heller has triggered an avalanche of writing since the case was decided in 2008. Activists, law review student editors, scholars, and judges have all contributed to this burgeoning literature. Almost all of the commentary on Heller has appeared in law journals. Unencumbered...

Appendix B: A Summary of the Major Briefs Submitted in Heller

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pp. 401-420

Appendix C: Articles Cited in Briefs

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pp. 421-428

Appendix D: Briefs and Articles Cited in Heller

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pp. 429-430

Index

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pp. 431-446

Back Cover

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p. 460-460


E-ISBN-13: 9781613762585
E-ISBN-10: 1613762585
Print-ISBN-13: 9781558499942
Print-ISBN-10: 1558499946

Page Count: 376
Publication Year: 2013

Research Areas

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Subject Headings

  • United States. Constitution. 2nd Amendment.
  • Washington (D.C.). -- Trials, litigation, etc.
  • Firearms -- Law and legislation -- United States.
  • Heller, Dick Anthony -- Trials, litigation, etc.
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