Academic

Klukowski on Incorporating the Second Amendment

By Lawrence Solum

Kenneth A. Klukowski has posted Citizen Gun Rights: Incorporating the Second Amendment Through the Privileges or Immunities Clause on SSRN.  Here is the abstract:

After District of Columbia v. Heller, the next question the Supreme Court must address regarding the right to keep and bear arms is whether the Second Amendment is incorporated to the states through the Fourteenth Amendment. The Court should incorporate the Second Amendment through the Privileges or Immunities Clause instead of the Due Process Clause. Current due process jurisprudence would create significant legal and public policy difficulties if the Second Amendment were incorporated through the Due Process Clause. The Court should therefore obviate those problems by incorporating through the Privileges or Immunities Clause. Contrary to common misconceptions, the Second Amendment could be incorporated through Privileges or Immunities without overruling the Slaughter-House Cases, because the right to keep and bear arms is a right inhering to federal citizenship.

For my take, see District of Columbia v. Heller and Originalism.

Full post as published by Legal Theory Blog on November 26, 2008 (boomark / email).