“Rights Versus Duties, History Department Lawyering, and the Incoherence of Justice Stevens’s Heller Dissent” by Nicholas J. Johnson

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September 3rd, 2013

The individual right to keep and bear arms is settled law for now.  In District of Columbia v. Heller, the Supreme Court reconciled the two clauses of the Second Amendment, reasoning that the amendment protects an individual right of the people from whom the militia is to be drawn.  This comports with the centuries-old understanding of the militia as the body of the people, who when called for duty are expected to appear bearing arms provided by themselves, in common use at the time.  As for the boundaries on the right to arms, the Court took an approach common for understanding the Bill of Rights–that the right to arms predated the Bill of Rights.  So the stated purpose for the codification (facilitating the militia) did not define the boundaries of the pre-existing right.  The Court discerned the American right to arms for self-defense rooted significantly in the rights of Englishmen and the 1689 English Bill of Rights.  This approach reflects the “standard model” of Second Amendment scholarship.