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Journal Article


Charles PJ. Cardozo L. Rev. De Novo 2010; 2010: 18-60.


(Copyright © 2010)






In District Columbia v. Heller both the Supreme Court majority and Justice Stevens' dissent used history to determine the Second Amendment's meaning and protective scope. In the end, the Individual Right Scholars' interpretation of this history prevailed in a slim 5-4 decision, in which the Court held that armed individual self-defense was the "central component" of the Second Amendment and the District of Columbia's "prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense" to be unconstitutional.3 Despite this victory for Individual Right Scholars and supporters, the Heller decision did not bind the States. Justice Scalia's majority opinion goes to great lengths to assert that the District Courts should incorporate the Second Amendment through the Fourteenth Amendment's Due Process Clause. However, except for the Ninth Circuit's vacated judgment in Nordyke v. King, none of the other Circuit Courts have decided to incorporate the Second Amendment. Instead, these courts reiterated footnote twenty-three of the Heller opinion, which upheld the Supreme Court's late nineteenth century decisions "that the Second Amendment applies only to the Federal Government."

This brings us to the issues that will be before the Supreme Court in McDonald v. City of Chicago. The issues presented are twofold. The first is whether the Second Amendment is incorporated through the Fourteenth Amendment's Due Process Clause. In order for the petitioners to be successful in their claim they will have to show armed individual self-defense in the home is "fundamental to the American scheme of justice." In conducting this constitutional standard the Court has traditionally examined the Anglo-American tradition of the right being asserted, tracing its history to Greek and Roman times, to the Magna Charta, through the English Declaration of Rights, and to the colonies. In addition to this history, the Court also examines the frequency by which the asserted right appears in the Founding Era's State constitutions....

Language: en


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