Federalism and the Constitutional Right to Keep and Bear Arms

Until recently, the federal courts agreed that the Second Amendment protects the interest of states in maintaining their own militias. In United States v. Emerson, the U.S. Court of Appeals for the Fifth Circuit rejected this consensus, and held that the Constitution protects a right of private indi...

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Bibliographic Details
Published in:Publius 2003-06, Vol.33 (3), p.63-82
Main Author: Lund, Nelson
Format: Article
Language:English
Subjects:
Analysis
Bill of Rights
Civil Rights
Constitution
Constitutional Amendments
Constitutional rights
Emergency protective orders
Federal circuit courts
Federalism
Firearm laws & regulations
Firearms
Freedom
Government
Gun Control
Gun laws
Laws, regulations and rules
Militias
Political science
Right to bear arms
Rights
Second Amendment
State
State government
U.S.A
United States Supreme Court
Weapons
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Summary:Until recently, the federal courts agreed that the Second Amendment protects the interest of states in maintaining their own militias. In United States v. Emerson, the U.S. Court of Appeals for the Fifth Circuit rejected this consensus, and held that the Constitution protects a right of private individuals to keep and bear arms. The fifth circuit's position is more plausible than the consensus view, and the arguments for treating the Second Amendment as a kind of federalism device are weak. A different set of federalism issues is raised by the prospect that the Supreme Court might adopt the fifth circuit's position, and then take the next step of applying the Second Amendment to the states through the Fourteenth Amendment. Finally, Emerson shows how certain technical legal doctrines that protect the dignity of he states can operate to strengthen the federal government's ability to undermine protections afforded by the Second Amendment.
ISSN:0048-5950
1747-7107
DOI:10.1093/oxfordjournals.pubjof.a005003