Citation

Federle KH. Iowa Law Rev. 2004; 89(2): 609-669.

Copyright

(Copyright © 2004, College of Law, State University of Iowa)

DOI

unavailable

PMID

unavailable

Abstract

Strategies to reduce gun violence among juveniles generally call for greater regulation of the design, manufacture, and registration of firearms, and legislative bans on the possession of certain types of weapons. But because of considerable uncertainty about the meaning of the Second Amendment and the constraints it may place on state action, Congress has been reluctant to enact any significant gun control legislation. Despite the various claims of individual and collective right theorists and scholars, we do not know what the Second Amendment means. The text of the Second Amendment itself is remarkably unenlightening, while textual interpretation ultimately proves unpersuasive because of the absence of any definitive historical understanding of the meaning of the Second Amendment or the intent of the Framers. While there is considerable debate about what the Supreme Court has said on the subject, no definitive Supreme Court case exists concerning the meaning and scope of the Second Amendment. However, a nonoriginalist interpretive framework suggests that the Second Amendment guarantees an individual right, not because the Framers thought so or the text says so, but because our evolving Constitution can recognize the long tradition of lawful gun ownership in this country. It is that nonoriginalist commitment to tolerance and liberty which may not only provide the Second Amendment with content but illustrates that nonoriginalism may serve interests across the political spectrum.