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Chapter 12

LEGALST 39D Chapter 12: LS39D CH12 notes


Department
Legal Studies
Course Code
LEGALST 39D
Professor
Alan Pomerantz
Chapter
12

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Legal Studies 39D
CHAPTER 12: SECOND AMENDMENT AND GUNS
DC v. Heller
Majority/ Scalia
- DC prohibits handgun possession, Heller is a police offer authorized to carry
a handgun while on duty and was refused when he applied for a registration
certificate for a handgun he wished to keep at home
- Meaning of 2nd amendment
- 2 parts (1) prefatory clause (statement of purpose) (2) operative clause
- Prefatory clarifies but does not limit or expand the scope of the operative
need to ensure reading of the operative is consistent with purpose
- (1) Operative clause
o right of the people, in nd, 1st, 4th and 9th amendment all individual
rights and not collective rights presumption that 2nd amendment is
exercised individually and belonds to all Americans
o Keep and bear arms – applied to weapons not specifically designed
for military use
o Just as the st Amendmnet protects modern forms of
communications, and the 4th applies to modern forms of search, the
2nd extends to all instruments that constitute bearable arms
o Keep arms = have weapons, bear = carry
o Bear arms not refer only to carrying weapon in organized military
unit
o Guarantee individual right (pre-existing right) to possess and carry
weapons in case of confrontation
- Based on text and history, 2nd conferred individual right to keep and bear
arms, BUT limited right not read the 2nd amendment to protect right to
carry arms for ANY sort of conformation
- (2) Prefatory clause
o Well regulated militia / militia: all males physically capable of acting
in concert for the common defense at founding, not just state
regulated militia
ORGANIZE a militia, a body already in existence, consistent
with the ordinary definition of the militia as all able bodied
men
Well regulated implies imposition of proper discipline and
training
o Security of free state = security of a free polity, not security of each
of the several states
- (3) Relationship between prefatory and operative
o Fits with individual right to keep and bear arms
o Right helped secure the ideal of a citizen militia, which might be
necessary to oppose an oppressive military force if the constitutional
order broke down
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