Eugene Volokh on the Second Amendment

[Aloha_Shooter]

Good background material -- research already done for you by a highly respected law professor.

He has already compiled an exhaustive list of sources and citations: http://www2.law.ucla.edu/volokh/2amteach/sources.htm

His testimony to Congress on Sept 23, 1998: http://www2.law.ucla.edu/volokh/beararms/testimon.htm

Eight years ago, I got into an argument with a nonlawyer acquaintance about the Second Amendment. The Amendment, this person fervently announced, clearly protects an individual right. Not so, I argued to him, thinking him to be something of a blowhard and even a bit of a kook.
Three years ago, I discovered, to my surprise and mild chagrin, that this supposed kook was entirely right. In preparing to teach a law school seminar on firearms regulation (one of the only about half a dozen such classes that I know of at U.S. law schools), I found that the historical evidence -- much of which I set forth verbatim in the Appendix -- overwhelmingly points to one and only one conclusion: The Second Amendment does indeed secure an individual right to keep and bear arms.

Talking points (he gives citations to back them up):

1. The Text of the Amendment Refers to an Individual Right
2. Contemporaneous Constitutions and Commentaries Unanimously Treat the Right as an Individual Right
3. The U.S. Supreme Court Cases Do Not Treat the Right as a Collective Right
4. The Precise Scope of the Right Is a Matter of Considerable Debate

He clarifies or amplies on #4 with

While the evidence that the right is an individual right is extremely strong, the precise scope of the right is a matter of considerable debate. This of course is true of all individual rights: Everyone agrees that the First Amendment, the Fourth Amendment, and other provisions secure individual rights, but reasonable minds differ on exactly what speech the First Amendment protects and exactly what searches the Fourth Amendment prohibits.

Thus, recognizing that the Second Amendment secures an individual right tells us little about most moderate gun controls, for instance background checks, waiting periods, or modest restrictions on the kinds of brands that may be marketed. I don't know how these laws should be treated; I suspect that many would be upheld, like many modest speech restrictions are upheld despite the existence of the First Amendment.

But our concern about these problems can't blind us to the clear verdict of the constitutional text and the constitutional history: The Framers of the Bill of Rights (and of the Fourteenth Amendment saw the right to keep and bear arms as an individual right, entitled to the same sort of dignity and protection as the freedom of speech, the privacy of the home, the right to trial by jury, and our other constitutionally secured protections.
As the Court said when defending another often unpopular right -- the privilege against self-incrimination --

If it be thought that [a right] is outmoded in the conditions of this modern age, then the thing to do is to take it out of the Constitution [by constitutional amendment], not to whittle it down by the subtle encroachments of judicial opinion.

Constitutional rights may be respected, repealed, or modified; but they must never be ignored.

[asmo]

Easily one the best blogs on the Inter-tubes. I read it daily (if your into law crap its awesome): http://www.volokh.com/

[Clint45]

"Thus, recognizing that the Second Amendment secures an individual right tells us little about most moderate gun controls, for instance background checks, waiting periods, or modest restrictions on the kinds of brands that may be marketed. I don't know how these laws should be treated; I suspect that many would be upheld, like many modest speech restrictions are upheld despite the existence of the First Amendment."

I do not feel that criminal prosecution for simple ownership of something that was recently legal would qualify as a "modest restriction" . . . nor would criminalizing the act of loaning someone a gun or storing a gun at a relative's home for over 72 hours. And in places like NY or IL where a first offense would be deemed a felony with mandatory minimum sentencing, I feel that would be completely unreasonable.

[cstone]

Constitutional rights may be respected, repealed, or modified; but they must never be ignored.

This line is signature worthy for anyone who may be looking for one.