Monday, September 5, 2016

Kamp on the English Legacy for the Second Amendment

Allen R. Kamp, John Marshall Law School, has posted The English Legacy of the Second Amendment — History and Myth:
According to the majority opinion of Justice Scalia in District of Columbia v. Heller, pre-Second Amendment adoption English history informs the Amendment’s meaning. The majority opinion discusses the historical background after analyzing the language of the Amendment: “Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.”

My paper investigates the actual historical practice in England regarding gun rights before the adoption of the Second Amendment. It focuses on four topics involving rights to bear arms in England of that era: the Declaration of Rights, the writings of Blackstone, the Game Laws, and the Militia.?

The paper concludes that although Heller purports to be based on pre-second Amendment historical practice, its description of that practice is more mythical than real.