Richard Epstein's latest foray into Second Amendment interpretation was published January 31st in the Hoover Institution Journal's Defining Ideas series. He had previously praised Justice Stevens' Heller dissent as "one of his ablest opinions" in an October 17, 2011 Defining Ideas article. The new article, entitled The Libertarian Gun Fallacy, argues that the Heller and McDonald cases were wrongly decided by the Supreme Court because the Second Amendment is not a protection for individual rights, but rather is a federalism provision intended to protect the states. Prof. Epstein bases his interpretation on the "well regulated militia" clause of the amendment. He supports his view by analyzing every provision in the Constitution containing a reference to the militia except the Fifth Amendment.
My response to this article is posted at Defining Ideas. In it, I note that Epstein tore the Second Amendment out of its actual American bill of rights related historical context. This approach makes it impossible to determine what its language was intended to mean. A much better understanding of American bill of rights related history solves this problem. American history indicates that both Second Amendment clauses were intended as individual rights protections because both were based on prior restrictions on state governments found in state bills of rights. The Second Amendment's predecessor language was not understood as protecting state governments. A link was provided to my latest article, The American Revolutionary Era Origin of the Second Amendment's Clauses, which examines and documents relevant American bill of rights history.
Wednesday, February 1, 2012
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