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NCJRS Abstract

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NCJ Number: 93520 Find in a Library
Title: Handgun Prohibition and the Original Meaning of the Second Amendment
Journal: Michigan Law Review  Volume:82  Issue:2  Dated:(November 1983)  Pages:204-273
Author(s): D B Kates
Date Published: 1983
Page Count: 70
Format: Article
Language: English
Country: United States of America
Annotation: This article first delineates the controversy between the individual right and the exclusively State's right views of the second amendment, considers the amendment's subsequent judicial interpretation, and analyzes the constitutional limitations on the right to keep and bear arms.
Abstract: Debate on the interpretation of the second amendment has been sharply polarized between those who claim that it guarantees nothing to individuals, protects only the State's right to maintain organized military units, and thus poses no obstacle to gun control (the 'exclusively State's right' view), and those who claim that the amendment guarantees some sort of individual right to arms (the 'individual right' view). Historical analysis indicates that the Founders intended the second amendment to guarantee a person the right to possess certain kinds of weapons in the home under certain kinds of circumstances. The precise details and parameters of that guarantee remain unclear. In part, this is because neither Federal, State, nor local governments have generally moved beyond gun control to the extreme of confiscation. In even larger part, the delay in defining its paramaters is attributable to the diversion and monopolization of legal analysis by the false dichotomy between the exclusively State's right and the unrestricted individual right interpretations. In fact, the arms of the State's militias were and are the personally owned arms of the general citizenry, so that the amendment's dual intention to protect both was achieved by guaranteeing the citizenry a right to possess arms individually. Finally, rational, effectual gun control strategies can be reconciled with the constitutional scheme. A total of 290 footnotes are provided.
Index Term(s): Constitutional Rights/Civil Liberties; Gun Control
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