The Second Amendment and the Living Constitution

Independence Institute Research Director (and Reason contributor) David Kopel has just posted his forthcoming law review article "The Right to Arms in the Living Constitution" to the Social Science Research Network. Kopel's gun rights scholarship is always of the highest caliber, and this paper looks to be no exception. Here's some of the abstract:

"Living constitutionalism" should be distinguished from "dead constitutionalism." Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect constitutional rights. Under a "dead constitution," judges simply impose their personal values, and nullify parts of the Constitution which they do not like.

When living constitutionalism is taken seriously, the case for the Second Amendment individual right to own and carry firearms for self-defense is very strong. In the 19th century, almost all legal commentators and courts, as well as the political branches and the public, recognized the Second Amendment as guaranteeing such a right.

In the 20th century, some elements of the legal elite asserted that the Second Amendment guaranteed no meaningful right. But this view was never accepted by the public or by the political branches. Congress repeatedly enacted laws to protect Second Amendment rights. In the states, right to arms constitutional provisions were added or strengthened, and many statutes were enacted to defend and broaden the right, especially in the last several decades. Opinion polls showed that the public always believed in the Second Amendment right.

Download the article here.