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Academic: Legal Theory Blog
Cottrol on the Right to Bear Arms
By Lawrence Solum
Robert J. Cottrol (George Washington University Law School) has posted Public Safety and the Right to Bear Arms (Bill of Rights in Modern America, 2008) on SSRN. Here is an excerpt (no abstract posted):
Briefly stated, the debate over the Second Amendment is part of the larger debate over gun control, and as such it focuses on whether or not the framers intended to limit the ability of government to prohibit or severely restrict private ownership of firearms. It is a debate fueled, in part, by the fear generated by this nation?s high crime rate, including an average of 10,000 homicides committed annually with firearms. The debate is also fueled by the existence of broad public support for firearms ownership for self-defense and the fact that roughly half the homes in the country have firearms.
Two interpretations, broadly speaking, of the amendment have emerged from the debate. Some students of the Second Amendment stress the amendment?s militia clause arguing either that the constitutional provision was only meant to insure that state militias would be maintained against potential federal encroachment or that the individual?s right to keep and bear arms was meant to be protected only within the context of a highly regulated, regularly drilling state militia. Adherents of both variants of what might be called the collective rights view argue that the Second Amendment poses little in the way of an impediment to strict, even prohibitory gun control given the fact that most Americans at the start of the twenty-first century are not regularly engaged in the business of militia training.
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