Showing papers by "Nelson Lund published in 1987"

The Second Amendment, political liberty, and the right to self-preservation

Abstract: The Second Amendment to the United States Constitution has become the most embarrassing provision of the Bill of Rights. Although crime, violence, and gun control have been among the hottest topics of political controversy over the past two decades, civil libertarians have generally shown much less enthusiasm about the Second Amendment than about other provisions of the Bill of Rights. The federal courts have also been manifestly uncomfortable with the Second Amendment and, in recent times, have declined every opportunity to give it the same thorough consideration that is automatically given to by the other specific guarantees of the first eight amendments. The lower courts generally have either adopted an interpretation that is implausible on its face, inconsistent with Supreme Court precedent, and unsupported by historical evidence about the intention of the Framers, or adhered to ancient precedents that treated the Bill of Rights as being inapplicable to the states. The Supreme Court, moreover, inscrutably denies all petitions for certiorari. Despite a growing body of literature examining the original meaning of the Second Amendment and a simmering debate over the desirability and efficacy of gun control legislation, no one has attempted to develop an interpretation of the Second Amendment that fits comfortably within the Supreme Court's modern jurisprudence of individual rights. That jurisprudence can be characterized as an ongoing attempt to reconcile what is known about the original intent underlying the Bill of Rights with the desire of legislatures to respond rationally to modern problems unforeseen at the time it was drafted. Most provisions in the Bill of Rights have been interpreted so as to advance an elaborate effort by the judiciary to act as an umpire between individuals' impulses for freedom and government's concern for the maintenance of order and public safety. And yet, just when the conflict regarding the Second Amendment is perhaps at its sharpest and most poignant, the Supreme Court has remained strangely silent. Whatever one may think about the motives, character, psychology, or intelligence of those who desire to possess firearms, the principle that those individuals assert is profoundly serious. The claim to the tools needed for exercising one's lawful right to protect himself (and perhaps especially herself) from criminal violence should be given at least as respectful a hearing as the First Amendment claims of Nazis and pornographers or the Fourth Amendment claims of confessed murderers. Although the Supreme Court finds time to busy itself with case after case involving the most minute adjustments in the constitutional rules of criminal procedure and the doctrines affecting obscenity, libel, and time, place, and manner restrictions on speech, the Second Amendment is simply ignored. This Article begins with a brief review of the evidence pertaining to the Second Amendment's original meaning and the case law that has since developed. After discussing the basic principles that should govern the application of the Second Amendment under modern conditions, the Article sketches a Second Amendment jurisprudence that is broadly consistent with the Court's modern treatment of the Bill of Rights. The Article suggests that this jurisprudence would preserve the essential freedoms that concerned the Framers while leaving modern legislatures ample means to foster public safety and the general welfare.