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Journal Article

Beyond the Second Amendment: An Individual Right to Arms Viewed through the Ninth Amendment

01 Jan 1992-Rutgers Law Journal-Vol. 24, pp 1
TL;DR: Johnson as mentioned in this paper was the first to acknowledge the comments and helpful criticisms of David Caplan, Professor Robert Cottrol, Professor Raymond Diamond, Robert Dowlut and Don Kates.
Abstract: Professor of Legal Studies in Business and Taxation, Franklin and Marshall College. Of Counsel, Kirkpatrick and Lockhart. J.D. 1984, Harvard Law School, B.S.B.A. 1981, Magna Cum Laude, West Virginia University. I would like to acknowledge the comments and helpful criticisms of David Caplan, Professor Robert Cottrol, Professor Raymond Diamond, Robert Dowlut and Don Kates. All the views expressed are my own and are in no way attributable to or endorsed by the organizations with which I am affiliated. © 1992, Nicholas J. Johnson [Copyright © 1992 Nicholas J. Johnson. Originally published as 24 RUTGERS L.J. 1-81 (1992). Permission for WWW use at this site generously granted by the author. For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571.]

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Citations
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Journal ArticleDOI
TL;DR: The authors rebuts charges made in Gun Crazy, an article which asserts that the near-unanimous consensus supporting the individual rights view of the Second Amendment among historians and legal scholars is the result of a sinister concerted effort by pro-gun professors and fellow travelers.
Abstract: This article first rebuts charges made in Gun Crazy, an article which asserts that the near-unanimous consensus supporting the individual rights view of the Second Amendment among historians and legal scholars is the result of a sinister concerted effort by pro-gun professors and fellow travelers. Compelling textual, structural, historical, and criminological evidence supports the new consensus. The article then examines the merits of the interpretation proffered by opponents of an individual right to keep and bear arms: the militia-centric conception of the Second Amendment. Textual, historical, and structural considerations all argue against such an interpretation. Finally, the issue that is really motivating those who reject an individual rights interpretation in favor of a militia-centric conception of the Second Amendment is identified: the allegedly adverse effect of gun ownership on public safety.

22 citations


Cites background from "Beyond the Second Amendment: An Ind..."

  • ..."[122] As for Professor Johnson, although Gun Crazy taxes him with not having cited relevant Second Amendment case law, his article instead posits a right to gun ownership under the Ninth Amendment rather than the Second,[123] as Gun Crazy acknowledges....

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  • ...Second, we present the textual, structural, historical, and criminological evidence that supports this new consensus; evidence about which most academics, even those who write about other areas of constitutional law, are largely unaware....

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  • ..."' See Gun Crazy, supra note 7, at 143 n.391 where it parenthetically dismisses Johnson for "reviewing standard originalist sources-and ignoring contrary judicial interpretation-to locate a right to bear arms in Ninth, rather than Second, Amendment."...

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  • ...Second, Gun Crazy claims that, "[t]he individual using the firearm still must be doing so in the context of service in a government-organized (not independent) militia."...

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  • ...Second, they are accused of deliberately distorting the historical evidence they cite in support of the individual right conception, indeed of borrowing their distorted evidence from gun-rights activists....

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Journal Article
TL;DR: The Manhunt: Cleverness and Luck is a seminal work in the field of criminal law that was published by Cornell Law Review, 1996, 81 CORNELL L. L..
Abstract: Professor of Law, Indiana University School of Law—Bloomington. I would like to thank Sanford Levinson and Glenn Harlan Reynolds for insightful comments, Susan Williams for peerless editing, and Wendy Schoener for enormously helpful research assistance. 1 See Evan Thomas et al., The Manhunt: Cleverness and Luck, NEWSWEEK, May 1, 1995, at 30. [Copyright © 1996 Cornell Law Review. Originally published as 81 CORNELL L. REV. 879-952 (1996). Permission for WWW use at this site generously granted by the author. For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571.]

19 citations

Journal Article
TL;DR: In this article, a brief explication of the meaning of the Second Amendment is given and the manner in which the debate over this Amendment has been depicted in recent news accounts and proceeds to the two chief emergent critiques of Second Amendment analysis: the individualist view and the so-called right of revolution.
Abstract: This Article proceeds, first, with a brief explication of the meaning of the Second Amendment. It then examines the manner in which the debate over this Amendment has been depicted in recent news accounts and proceeds to the two chief emergent critiques of Second Amendment analysis: the individualist view and the so-called right of revolution. Following that, four collateral claims arising from and connected with the individualist and revolutionist perspectives are examined in light of an assessment of the provenance of Second Amendment writings in law journals, as is the reputed role of the Fourteenth Amendment. Finally, three explanations are offered for the emergence of this new body of writing on the Second Amendment.

18 citations

Journal Article
TL;DR: The authors concluded that there is no tenable textual or historical argument against a broad individual right view of the Second Amendment, and they also pointed out that such arguments are not tenable in practice.
Abstract: Research conducted through the 1980s has led legal scholars and historians to conclude, sometimes reluctantly, but with virtual unanimity, that there is no tenable textual or historical argument against a broad individual right view of the Second Amendment. Language: en

16 citations

References
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Journal Article

258 citations


"Beyond the Second Amendment: An Ind..." refers background in this paper

  • ...19 Second, there plainly are numerous simple acts of individual autononiy that we undertake daily which are not explicitly protected by the Bill of Rights....

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  • ...In modern jurisprudence, it seems much of our activity is constitutionally protected only after being forced into the box of speech or expression, or shoehorned into one of the other explicit guarantees of the Bill of Rights....

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  • ...[Vol. 24:1 BEYOND THE SECOND AMENDMENT answer can begin with the suggestion by positivists that the sum total of individual rights lies in the language of selected parts of the Bill of Rights....

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  • ...Norman Redlich, Are There "Certain Rights... Retained By the People"?...

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  • ...BEYOND THE SECOND AMENDMENT "clearly influenced ... the architects of the Bill of Rights."...

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Journal ArticleDOI
TL;DR: In this paper, the authors present a model to explain legal handgum demand that emphasizes the level of collective security as a key factor, and find that low confidence in collective security contributes to both the need for and the resistance to gun control policies.
Abstract: One controversial element in the debate on firearms policy is whether crime and civil disorders contribute significantly to the private demand for firearms. In this paper we present a model to explain legal handgum demand that emphasizes the level of collective security as a key factor. Time-series data on legal gun demand in Detroit from 1951 to 1977 are consistent with a model in which individuals respond to three determinants of collective security: high violent crime rates, civil disordes, and police strength. The analysis suggests that low confidence in collective security contributes to both the need for and the resistance to gun control policies.

112 citations


"Beyond the Second Amendment: An Ind..." refers background in this paper

  • ...[133] Acknowledging the premise that our constitutional structure is grounded in the distrust of government, we might expect citizens to exhibit a continuing interest in acquiring instruments of self-protection....

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Journal ArticleDOI
TL;DR: AlVIANI et al. as mentioned in this paper proposed a restrictive permit requirement designed and administered to exclude more than 99% of the civilian population from handgun ownership, which was challenged in the United States Supreme Court.
Abstract: LL.B. 1966, Yale Law School. Member of the California, District of Columbia, Missouri and United States Supreme Court Bars. Partner, Benenson, Kates and Hardy (San Francisco office). Of counsel, O'Brien & Hallisey, San Francisco, California. Mr. Kates authored one of the petitions for certiorari in Quilici v. City of Morton Grove. — Ed. The author wishes to thank the following for their assistance: Professors William Van Alstyne (Law, Duke University Law School), Roy Wortman (History, Kenyon College), and Stephen Halbrook (Philosophy, George Mason University); Dr. Joyce Malcolm (Law Fellow, Harvard Law School), Dr. David I. Caplan, Mr. Willis Hannawalt (Pillsbury, Madison and Sutro, San Francisco), and Mr. David Hardy (Office of the Solicitor, U.S. Interior Department, Washington, D.C.). Of course, the responsibility for any errors of fact or interpretation is the author's alone. 1 Such legislation could, for example, take the form of a restrictive permit requirement designed and administered to exclude more than 99% of the civilian population from handgun ownership. On the constitutionality of restrictive permit systems, see notes 253-54 infra and accompanying text. 2 See J. ALVIANI & W. DRAKE, HANDGUN CONTROL: ISSUES AND ALTERNATIVES 48-54 (U.S. Conference of Mayors, 1975) (quoting resolutions to that effect from: The Board of Church and Society, United Methodist Church, Common Cause, National Alliance for Safer Cities, Union of America Hebrew Congregations and Unitarian Universalist Association). [Copyright © 1983 Michigan Law Review. Originally published as 82 MICH. L. REV. 204-273 (1983). For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571.]

62 citations


"Beyond the Second Amendment: An Ind..." refers background in this paper

  • ...They argue that it only prevents the federal government from disarming states.[2] Other scholars, (p....

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Journal ArticleDOI
TL;DR: The National Rifle Association (NRA) is one of the most powerful and active lobbies in Washington as mentioned in this paper, and it is the foremost guardian of the traditional American right to "keep and bear arms" and believes that every lawabiding citizen is entitled to the ownership and legal use of firearms.
Abstract: Since its ratification in 1791 the Second Amendment has remained in relative obscurity. Virtually ignored by the Supreme Court, the amendment has been termed "obsolete," "defunct," and an "unused provision" with no meaning for the twentieth century by scholars dealing with the Bill of Rights.1 And yet, many Americans consider this amendment as vital to their liberties today as did the founders nearly two hundred years ago. Their sense of urgency arises from the current debate over gun control. Disagreements over gun legislation reveal disparate perceptions of American society that rest upon, or inspire, dissimilar interpretations of the Second Amendment. Opponents of restrictive measures emphasize the free individual's rights and privileges and adamantly contend that the "right to bear arms" phrase constitutes the essence of the amendment. Their bumper stickers-modern day cockades-declare: "When guns are outlawed only outlaws will have guns," or "Hitler got his start registering guns." These simplistic ideas, symbolic of much deeper and more complex ideological beliefs, gain sustenance from a wide variety of popular sources. It is the National Rifle Association (NRA), however, that transforms this popular impulse into one of the most powerful and active lobbies in Washington. Its magazine, The American Rifleman, clearly states the issue: "The NRA, the foremost guardian of the traditional American right to 'keep and bear arms,' believes that every lawabiding citizen is entitled to the ownership and legal use of firearms. a "2 For their part, advocates of restrictive gun legislation emphasize collective rights and communal responsibilities. In order to protect society from the violence they associate with armed individuals, these people stress the "well reg-

45 citations


"Beyond the Second Amendment: An Ind..." refers background in this paper

  • ..."From Harrington, libertarians came to conceptualize civic virtue in terms of the armed freeholder: upstanding, courageous, self-reliant, individually able to repulse outlaws and oppressive officials .... ',71 Shalhope draws additional support from eighteenth century libertarians James Burgh and Richard Price.72 He enlists Burgh to emphasize that: [t]he very character of the people-the cornerstone and strength of a republican society-was related to the individual's ability and desire to arm and defend himself against threats to his person . . . ....

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  • ..."[71] Shalhope draws additional support from eighteenth century libertarians James Burgh and Richard Price.[72] He enlists Burgh to emphasize that:...

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Book
01 Jan 1971

16 citations


"Beyond the Second Amendment: An Ind..." refers background in this paper

  • ..."[216] Some measure of this sentiment has surfaced in contemporary Ninth Amendment commentary....

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  • ...[216] Clinton Rossiter, The Political Thought of the American Revolution 107 (1963) (quotation in original without citation)....

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