THE SECOND AMENDMENT: HISTORICAL ISSUES
The Right to Bear Arms (2021)
This is the first scholarly study of the history of the right to bear and carry arms outside of the home, a right held dear by Americans before, during, and after the Founding period; it rebuts attempts by anti-gun advocates to rewrite history and “cancel” the Founding generation’s lived experiences bearing firearms. The U.S. Supreme Court has recognized the individual right to keep and bear arms, but courts in states that have extreme gun control restrictions apply tests that often balance the right away. This book demonstrates that the right peaceably to carry firearms is a fundamental right recognized by the text of the Second Amendment and is part of our American history and tradition…
The Founders’ Second Amendment (2008)
Do Americans have a constitutional right to bear arms? Or is this power vested solely in government? Recent years have seen a sea change in scholarship on the Second Amendment. Beginning in the 1960s, a revisionist view emerged that individuals had a “right” to bear arms only in militia service – a limited, collective right. But in the late 1980s a handful of scholars began producing an altogether persuasive analysis that changed thinking on the matter, so that today, even in canonical textbooks, bearing arms is acknowledged as an individual right…
That Every Man Be Armed: The Evolution of a Constitutional Right (1984, Updated in 2013)
This book, published by the University of New Mexico Press in 1984 and now republished in an updated version, is the most comprehensive work ever written on the right to keep and bear arms, which is guaranteed by the Second Amendment to the U.S. Constitution…
Securing Civil Rights: Freedmen, the Fourteenth Amendment, and “The Constitutional Right to Bear Arms,” 1866-1876 (1998, 2010)
While surrounded by the Axis powers in World War II, Switzerland remained democratic and, unlike most of Europe, never succumbed to the siren songs and threats of the Nazi goliath. This book tells the story with emphasis on two voices rarely heard. One voice is that of scores of Swiss who lived in those dark years, told through oral history. They mobilized to defend the country, labored on the farms, and helped refugees…
A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees (1989)
The right to keep and bear arms was considered a fundamental, individual right in the original 14 states (the 13 colonies and Vermont) from the pre-Revolutionary period through the ratification of the Second Amendment to the U.S. Constitution in 1791. A Right to Bear Arms is the first book to document the deprivation of this right as a cause of the American Revolution and to trace the protection accorded to this right by the framers of the first State constitutions, which inspired the Second Amendment…
Scholarly Articles and Book Chapters
| Title | Date |
|---|---|
| “Bill of Rights Redivivus: Amendment II,” 17 The Champion (Natl. Assn. Criminal Def. Lawyers) 14-20 (Jan./Feb. 1993). | 1993 |
| “Congress Interprets the Second Amendment: Declarations by a Co-Equal Branch on the Individual Right to Keep and Bear Arms,” 62 Tennessee Law Review 597-641 (Spring 1995). | 1995 |
| “The Court Did Not Err,” in Issues on Trial: Gun Control (Greenhaven Press 2007), 203. | 2007 |
| “‘A Crime to Possess a Firearm’: Does the Second Amendment Apply in New York?” 14 Government, Law & Policy Journal 51-56 (Summer 2012). | 2012 |
| “Encroachments of the Crown on the Liberty of the Subject: Pre-Revolutionary Origins of the Second Amendment,” 15 University of Dayton Law Review, 91-124 (Fall 1989). | 1989 |
| “Faux Histoire of the Right to Bear Arms: Young v. Hawaii (9th Cir. 2021),” Independent Institute (July 13, 2021). | 2021 |
| “Firearm Sound Moderators: Issues of Criminalization & the 2nd Amendment,” 46:1 Cumberland Law Review 33 (2016). | 2016 |
| “The Freedmen’s Bureau Act and the Conundrum over Whether the Fourteenth Amendment Incorporates the Second Amendment,” 29 Northern Kentucky Law Review, No. 4, 683-703 (2002). | 2011 |
| “The Original Understanding of the Second Amendment,” in The Bill of Rights: Original Meaning and Current Understanding, ed. E. Hickok (Charlottesville: University Press of Virginia, 1991), 117-129. Cited as authority in S tate v. Hirsch , 177 Ore. App. 441, 446, 34 P.3d 1209, 1211 (2001). | 1991 |
| “Personal Security, Personal Liberty, and ‘The Constitutional Right to Bear Arms’: Visions of the Framers of the Fourteenth Amendment,” 5 Seton Hall Constitutional Law Journal 341-434 (Spring 1995). Abridgement printed in 7 Journal on Firearms and Public Policy 135-214 (Fall 1995). Cited as authority in Peruta v. County of San Diego, 2014 WL 555862, *13 (9th Cir. 2014); Ezell v. City of Chicago, – F.3d – 561 F.3d 684, 702 n.11) (7th Cir. 2011). | 1995 |
| “Rationing Firearms Purchases and the Right to Keep Arms: Reflections on the Bills of Rights of Virginia, West Virginia, and the United States,” 96 West Virginia Law Review, No. 1, 1-83 (Fall 1993). Cited as authority in In re Dailey, 195 W. Va. 330, 342, 465 S.E.2d 601, 613 (1995). | 1995 |
| “The Right of ‘The People’ to ‘Bear Arms’: The Common Law, the Second Amendment, and the Carrying of Firearms Outside the Home” (2019). | 2019 |
| “The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment,” 26 Valparaiso University Law Review 131-207 (Fall 1991). Abridgement printed in 6 Journal on Firearms and Public Policy 69-163 (Fall 1994). Cited as authority in United States v. Emerson, 270 F.3d 203, 220 n.12 (5th Cir. 2001). | 1991 |
| “The Right of the People to Keep and Bear Arms: the Second Amendment in the U.S. Bill of Rights” [“Право народа на хранение и ношение оружия: вторая поправка билля о правах сша”], 2 Ukrainian Law Journal “Law of the USA” (2013), 240-50. | 2013 |
| “Право народа на хранение и ношение оружия: вторая поправка билля о правах сша” [“The Right of the People to Keep and Bear Arms: the Second Amendment in the U.S. Bill of Rights”], 2 Ukrainian Law Journal “Law of the USA” (2013), 240-50. | 2013 |
| “The Right to Bear Arms in the First State Bills of Rights: Pennsylvania, North Carolina, Vermont, and Massachusetts,” 10 Vermont Law Review 255-320 (1985). | 1985 |
| “The Right to Bear Arms in the Virginia Constitution and the Second Amendment: Historical Development and Precedent in Virginia and the Fourth Circuit,” 8 Liberty University Law Review 619-47 (Summer 2014). | 2014 |
| “The Right to Keep and Bear Arms Under the Second and Fourteenth Amendments,” 5 Journal on Firearms and Public Policy 7-28 (Fall 1993). | 1993 |
| “The Second Amendment as a Phenomenon of Classical Political Philosophy,” in Firearms and Violence: Issues of Regulation, ed. Don B. Kates (Cambridge, Mass.: Ballinger Pub. Co., 1984); reprinted in The Militia in 20th Century America, ed. M. Norval (Falls Church, Va. 1985), 41-65. | 1984 |
| “Second Amendment Symposium - Panelist,” 10 Seton Hall Constitutional Law Journal No. 3 815-20 (Summer 2000). | 2000 |
| “The Second Amendment Was Adopted to Protect Liberty, Not Slavery: A Reply to Professors Bogus and Anderson,” 20 Georgetown Journal of Law & Public Policy 575 (2022). | 2022 |
| “St. George Tucker’s Second Amendment: Deconstructing ‘The True Palladium of Liberty,’” 3 Tennessee Journal of Law and Policy, No. 2, 120-55 (Spring 2007). | 2007 |
| “Tench Coxe and the Right to Keep and Bear Arms, 1787-1823” (with David B. Kopel), 7 William & Mary Bill of Rights Journal Issue 2 347-99 (Feb. 1999). | 1999 |
| “To Bear Arms for Self-Defense: A ‘Right of the People’ or a Privilege of the Few? Part 1”, 21 Federalist Society Review (Mar. 23, 2020). | 2020 |
| “To Bear Arms for Self-Defense: A ‘Right of the People’ or a Privilege of the Few? Part 2”, 21 Federalist Society Review (Mar. 31, 2020). | 2020 |
| “To Keep and Bear Their Private Arms: The Adoption of the Second Amendment, 1787-1791,” 31 Northern Kentucky Law Review 13-40 (1982), reprinted in CONG. REC., 99th Cong., 1st Sess., S9105-9111 (July 9, 1985). | 1985 |
| “Victims and Arms in Classical Legal Philosophy,” in To Be a Victim: Encounters with Crime and Injustice, eds. Diane Sank and David I. Caplan (New York: Plenum Publishers 1991), 359-370. | 1991 |
| “What the Framers Intended: A Linguistic Analysis of the Right to ‘Bear Arms,’” 49 Law and Contemporary Problems 401-412 (1986). Cited as authority in United States v. Emerson, 270 F.3d 203, 220 n.12, 227 (5th Cir. 2001); State v. Hirsch, 338 Or. 622, 658, 114 P.3d 1104, 1124 (2005); United States v. Li, 2008 WL 4610318, *3 (E.D. Wis. 2008); State v. Jorgensonn, 312 P.3d 960, 966 (Wash. 2103) (en banc). | 1986 |
Articles and Op-Eds
| Title | Date |
|---|---|
| “‘Arming America’ or Disarming Reality?” 149 American Rifleman 69 (January 2001). | 2001 |
| “The Arms of the People Should Be Taken Away,” 137 American Rifleman 26-29, 76-77 (March 1989). | 1989 |
| “Deconstructing the Second Amendment,” posted by Newsmax.com, (Nov. 3, 2000). | 2000 |
| “Does a Medieval English Statute Supersede the Second Amendment? New York Takes a Long Shot at Saving Its Firearm Carry Ban,” The Volokh Conspiracy, Oct. 12, 2021. | 2021 |
| “Don’t Know Much About History: New York’s Supreme Court Brief on the Second Amendment Is Flawed,” The Volokh Conspiracy, Oct. 11, 2021. | 2021 |
| “The Extreme Makeover of St. George Tucker,” America’s 1st Freedom 25 (Jan. 2007). | 2007 |
| “The Founders and Firearms,” The Washington Times, June 11, 2008. | 2008 |
| “The Framers Didn’t Want a National Police Force,” National Law Journal, Jan. 17, 1994, 14. | 1994 |
| “The Long March to Restore the Second Amendment in New York,” America’s 1st Freedom, Jan. 26, 2021. | 2021 |
| “Looking for Historical Analogues in All the Wrong Places,” The Volokh Conspiracy, June 6, 2023. | 2023 |
| “Looking for Historical Tradition in All the Wrong Places,” The Volokh Conspiracy, Aug. 24, 2023. | 2023 |
| “An Opening Judicial Salvo in Defense of Illinois’ New Rifle Ban,” The Volokh Conspiracy, Mar. 13, 2023. | 1996 |
| “The Right to Bear Arms Isn’t Just for Militias,” National Law Journal A22 (Oct. 9, 1995). | 1995 |
| “The Right of the People to Keep and Bear Arms,” The Message (Northborough, MA), July 1999, 5-6. | 1999 |
| “The Right to Bear Arms,” 78 SAR Magazine (Sons of the American Revolution) 14-15 (Summer 1983). | 1983 |
| “Right to Bear Arms,” 3 Violence in America: An Encyclopedia, ed. Ronald Cottesman (New York: Charles Scribner’s Sons, 1999), 48-52. | 1999 |
| “The Right to Bear Arms in Historical Context: Founding Realities Refute New York’s Arguments Supporting Its Gun Carry Ban,” The Volokh Conspiracy, Oct. 15, 2021. | 2021 |
| “2nd Amendment: A Right to Own Arms?” USA Today, Nov. 20, 1991, 11A. | 1991 |
| “The Second Amendment Had Nothing to Do with Slavery,” Fox News, June 22, 2018. | 2018 |
| “Second Amendment Sanctuaries Started in 1774,” American Thinker, December 22, 2019. | 2019 |
| “To Bear Arms for Self-Defense,” 132 American Rifleman 28-29, 67-68 (Nov. 1984). | 1984 |
| “To Keep and Bear Arms,” The Republic (Columbus, IN), May 19, 1995. | 1995 |
| “To Preserve Liberty, Not Slavery,” The Volokh Conspiracy, Apr. 11, 2023. | 2023 |
| “To Trust the People with Arms,” New Federalist Papers, No. 117 and 118, Public Research Syndicated (published in affiliated newspapers Aug. 1985). | 1985 |
| “We Must Remember Our History of Freedom,” America’s 1st Freedom, Mar. 8, 2020. | 2020 |
| “Were the Founding Fathers in Favor of Gun Ownership?,” The Washington Times, Nov. 5, 2000, B5. Spanish-language version, “¿Estaban los Padres Fundadores a Favor de la Tenencia de Armas?” | 2000 |