Sturm College of Law
Gun legislation, Gun lobby, Militia clause, Second amendment
There are sound public policy reasons why gun ownership by law abiding citizens in a free society should be protected. Good public policy, however, cannot be formulated as long as there remain fundamental misconceptions about the meaning and history of the Second Amendment of the U.S. Constitution and the law interpreting it. In August of 1994, an exasperated American Bar Association, finding itself unable to match the Gun Lobby's publicity campaigns, pleaded for help from the legal profession to educate the American public about the meaning of the Second Amendment and the intent of the Constitutional Framers. Specifically, the ABA sought help in clarifying the fact that the United States Supreme Court and lower federal courts have consistently, uniformly held that the Second Amendment to the United States Constitution is related to a "well regulated militia and that there are no federal constitutional decisions which preclude the regulation of firearms in private hands ..." Even the American Civil Liberties Union, not an organization known to suffer perceived constitutional violations lightly, has tried valiantly, though largely in vain, to educate the American public that the Second Amendment is a collective rather than an individual right. The exasperation of the American Bar Association is understandable, and this article is a humble response to its plea.
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Robert Hardaway, Elizabeth Gormley & Bryan Taylor, The Inconvenient Militia Clause of the Second Amendment: Why the Supreme Court Declines to Resolve the Debate over the Rights to Bear Arms, 16 St. John's J. Legal Comment. 41 (2002).