The Power Side of the Second Amendment Question: Limited, Enumerated Powers and the Continuing Battle over the Legitimacy of the Individual Right to Arms

Authors

Nicholas J. Johnson

Abstract

Roughly a decade has passed since the Supreme Court’s decision in District of Columbia v. Heller and the battle over the basic legitimacy of the right to keep and bear arms continues. A significant segment of the academy, the Bar, and the judiciary remains skeptical about the constitutional bona fides of the individual right to arms. A primary source of that skepticism is the view pressed most forcefully by professional historians that the Second Amendment had nothing to do with individual self-defense and at best protects an “individual militia right” that has no practical application in modern America. This Article will show that the historians’ account is deeply flawed historiography and a dubious rebuttal to the individual rights view because it ignores the role of limited power in the understanding of rights under the original Constitution.

Recommended Citation

Nicholas J. Johnson, The Power Side of the Second Amendment Question: Limited, Enumerated Powers and the Continuing Battle over the Legitimacy of the Individual Right to Arms, 70 Hastings L.J. 717 (2019).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol70/iss3/4