“To Keep and Bear Arms" : Heller and the public understanding of arms rights.


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During the first two centuries of American jurisprudence, numerous constitutional doctrines were established, yet the Second Amendment doctrine was almost entirely ignored. In District of Columbia v. Heller, Justice Antonin Scalia became the first to recognize that “the Right to Keep and Bear Arms” included personal use. From this corner-stone case, a burgeoning Second Amendment doctrine entered the national debate. However, this discourse, relying heavily on textualist principles, often neglected critical historical evidence. This dearth of appropriate historical evidence has produced incomplete decisions that undermine the textualist approach and the coherent Second Amendment doctrine. Borrowing elements from intellectual history’s contextualist tradition, this thesis proposes legal and communicative content as a means of resolving the imperfect textual understanding of the Second Amendment. Relying on Lawrence Solum’s theory of intellectual history as constitutional interpretation and the concept of public understanding, this thesis offers a path to a more complete Second Amendment doctrine.



Textualism. Second Amendment. Intellectual history. Scalia.