Federalism and the Constitutional Right to Keep and Bear Arms

Nelson Lund

Publius: The Journal of Federalism, 2003, vol. 33, issue 3, 63-82

Abstract: Until recently, the federal courts agreed that the Second Amendment protects the interest of states in maintaining their own militias. In United States v. Emerson, the U.S. Court of Appeals for the Fifth Circuit rejected this consensus, and held that the Constitution protects a right of private individuals to keep and bear arms. The fifth circuit's position is more plausible than the consensus view, and the arguments for treating the Second Amendment as a kind of federalism device are weak. A different set of federalism issues is raised by the prospect that the Supreme Court might adopt the fifth circuit's position, and then take the next step of applying the Second Amendment to the states through the Fourteenth Amendment. Finally, Emerson shows how certain technical legal doctrines that protect the dignity of he states can operate to strengthen the federal government's ability to undermine protections afforded by the Second Amendment. Copyright 2003, Oxford University Press.

Date: 2003
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