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Abstract
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The ability of a corporation to exercise constitutional protections has been rife with uncertainty and change since the conception of corporate rights came into existence. The history and rapid development of the corporation, combined with the misapplied and misunderstood "corporate personhood" theory, have resulted in an almost unintelligible hodgepodge of corporate constitutional applications. Similarly, the concept of the right to bear arms has equally been muddled and applied very differently at varying times and locations since before the establishment of the Second Amendment. This Article attempts to clarify how an al- ternative to the "corporate personhood" theory, namely the "purpose" theory is increasingly relied on by the Supreme Court to more consistently and transparently extend or restrict constitutional rights.
PURPOSE analysis provides a sound legal basis to conclude that the Second Amendment should also be applied to corporations.
In recent years, the Supreme Court has dramatically increased the rights of corporations. Simultaneously the Court has also significantly augmented the right of Americans to possess and publicly carry a vast array of firearms. However, the Court has never said whether this right is one possessed by corporations. Nevertheless, the reasoning in many cases generally deal- ing with corporate rights and gun rights, including the Court's most recent Second Amendment case, point to the answer that corporations are entitled to the right to bear arms. While there is an understandable amount of antipathy on the part of many scholars to expanding Second Amendment rights in the manner that the 2022 Supreme Court decision in New York State Rifle & Pistol Association v. Bruen did, a corporate right to bear arms does not reflect the same risks discussed in Bruen. Currently, there is a split in whether lower courts have held in favor of corporations (or other collectives) having Second Amendment rights, and this disagreement could and should eventually come before the Supreme Court.
Whether one agrees with the outcome of Bruen or not, purpose analysis, which entails judicial examination of the purpose behind particular constitutional provisions to determine their boundaries, dictates that corporations should have Second Amendment rights. Indeed, corporations' interests in these rights are rooted in and further the key purposes of the Second Amendment: self-defense, protection of third parties, and defense of property. ...
The question of what, if any, rights a corporation should possess has been debated for well over a century. One way this question has been approached is through use of the personhood theory of the corporation. This theory of the corporation has led to much confusion and derision by commentators over the last few decades. As a result, the use of the personhood theory has appropriately decreased in recent years, replaced with the use of purpose analysis.
Leveraging purpose analysis can be particularly helpful in determining what constitutional rights should be afforded to corporations, including whether they should have the right to bear arms under the Second Amendment. The purpose of the Second Amendment is self-defense or protection. A corporation is equally in need of defense and can exercise this right potentially more safely and more effectively than individuals. Therefore, corporations should be granted the right to bear arms.
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Language: en |