A new and improved version of my review essay, “Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?” has been accepted by the Texas Law Review. Although it won’t appear in print until December (at the earliest), you can read a pre-edited version now by downloading the file from the SSRN. Here is the abstract:
Those who deny that the original meaning of the Second Amendment protected an individual right to keep and bear arms on a par with the rights of freedom of speech, press and assembly no longer claim that the amendment refers only to a collective right of states to maintain their militias. Instead, they now claim that the right, although belonging to individuals, was conditioned on service in an organized militia. With the demise of organized militias, they contend, the right lost any relevance to constitutional adjudication. In this essay, I evaluate the case made for this historical claim by Richard Uviller and William Merkel in their book, The Militia and the Right to Arms, or, How the Second Amendment Fell Silent. I also evaluate their denial that the original meaning of Fourteenth Amendment protected an individual right to arms unconditioned on militia service. I find both claims inconsistent with the available evidence of original meaning and also, perhaps surprisingly, with existing federal law.
Download it here. (If you read an earlier version of this paper, this one is much expanded and improved, with additional analysis and evidence.)
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