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Abstract
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The cacophonous and charged public debate over gun policy reflects a nation deeply divided about the appropriate balance between gun rights and gun
regulation. The Second Amendment often dominates that debate--as both a symbol and a right enforceable in the courts. On April 8, 2016, scholars from diverse disciplinary backgrounds met at New York University School of Law to present new scholarship, a second generation of research, about this important
constitutional provision. This issue is the product of that dialogue. Of course, a second generation implies that there was a first generation. The first generation of scholarship ended in 2008, when the Supreme Court issued the most important Second Amendment decision in the Court's history--District of Columbia v.Heller. Thatfirstgenerationfocusedonasinglequestion:Doesthe Second Amendment protect an individual right to keep and bear arms for self- defense, or a collective right connected to the maintenance of a well-regulated militia? This question garnered relatively little attention before the early twentieth century. Before then, federal gun control, as we understand it today, did not exist, and Second Amendment issues rarely arose. As Judge Thomas Cooley wrote in 1868: "How far it is in the power of the legislature to regulate [the Second Amendment] right, we shall not undertake to say, as happily there has been very little occasion to discuss that subject by the courts." To be sure, many states and localities regulated weapons and some of these regulations were challenged on state constitutional law grounds. But generally these laws did not generate sustained Second Amendment analysis in light of the understanding, set forth most famously in Barron v. Baltimore, that the Bill of Rights limited only the federal government.
By the early 1900s, however, urbanization, crime, and the increased lethality of concealable weapons prompted calls for reform. State and local governments were the first to heed the calls, passing broad restrictions on the possession and carrying of handguns, but federal regulation was on the horizon. The opportunity to address the meaning of the Second Amendment right had arrived.
Legal commentators in the first half of the twentieth century came to a fairly uniform conclusion: the Second Amendment protected a collective, not individual right. Thus, the Second Amendment would not prevent the federal government from passing laws targeting the possession and use of guns in crime. A 1915 essay by Maine Supreme Court Justice Lucilius A. Emery in the Harvard Law Review summarized the basis for this position, noting that "the right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against the common enemy, foreign or domestic...
Available: https://scholarship.law.duke.edu/lcp/vol80/iss2/1
Language: en |