Citation

Cornell S. Law Contemp. Probl. 2017; 80(2): 11-54.

Copyright

(Copyright © 2017, Duke University, School of Law)

DOI

unavailable

PMID

unavailable

Abstract

On the final day of its 2008 term, a sharply divided United States Supreme Court issued a five to four decision in District of Columbia v. Heller. Reversing almost seventy years of settled precedent that linked the meaning of the "right of the people to keep and bear arms" with the preservation of a "well-regulated militia," Heller interpreted the Second Amendment as an individual right to possess a weapon for self-defense outside of the context of service in a well-regulated militia. Justice Scalia's majority opinion surveyed a broad range of historical materials, but it approached the past as if it were static, when in fact Anglo-American history in this period was not only dynamic, but many areas of law underwent profound transformation. Prior to Heller, there had been relatively little scholarship on the scope of this pre-existing right. Most of the legal scholarship on the Second Amendment prior to Heller simply ignored the problem of historical change entirely. Yet,during the interval between 1688 and the next century and a half, Anglo-American law underwent profound transformation, which had far reaching consequences for law, including the meaning of the right to keep and bear arms. Recognizing the importance of change over time, the essence of any truly historical account, is not simply important to correct the historical record, Heller's holding makes history central to the future of Second Amendment jurisprudence. "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment," the majority wrote "nothing in our opinion should be taken to cast doubt on longstanding prohibitions." Thus, according to Heller, establishing a legitimate historical pedigree for gun regulation has become one key to determining if a restriction is presumptively lawful under Heller's framework. This article analyzes a neglected area of Second Amendment scholarship: the role of common law restrictions on the scope of keeping and bearing arms in the period between the Glorious Revolution (1688) and the Early American Republic (1800-1835).


Although Heller posited a static pre-existing English right that had become fixed by the time of the Glorious Revolution, the half century following the Glorious Revolution witnessed a number of important changes in the way the law addressed arms. At the dawn of the eighteenth century the scope of the right to have arms and the meaning of self-defense under English law was quite narrow. Indeed, it would be more accurate to describe the right of self-defense as an exemption from prosecution, not a positive rights claim in the modern sense...

Available: https://scholarship.law.duke.edu/lcp/vol80/iss2/2

Language: en