Commentary—Reynolds on Second Amendment Penumbras

Commentary

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I believe in the right of self-defence of the weak against the strong, and I do not propose to allow any man to maltreat me at his pleasure, as long as there are any weapons of defence to be had by which I can equalize my strength with his.—Mr. MacVeagh, Debates of the Convention to Amend the Constitution of Pennsylvania.

Second Amendment Penumbras: Some Preliminary Observations

Glenn Harlan Reynolds.
University of Tennessee College of Law.

August 14, 2011

Abstract:

With the Second Amendment now a working part of the Bill Of Rights in the wake of the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. Chicago, this brief Essay examines the likely extent of penumbral rights under the Second Amendment, as well as the possible effect on unenumerated rights of an enforceable right to arms.

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The essay offers a brief quote from Andrews v. State, 50 Tenn. 141, 153 (3 Heisk. 165, 178-79) (1871):

The right to keep arms, necessarily involves the right to purchase them, to keep them in a state of efficiency for use, and to purchase and provide ammunition suitable for such arms, and to keep them in repair. And clearly for this purpose, a man would have the right to carry them to and from his home, and no one could claim that the Legislature had the right to punish him or it, without violating this clause of the Constitution.

But further than this, it must be held, that the right to keep arms involves necessarily the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted, limited by the duties of a good citizen in times of peace; that in such a case he shall not use them for violation of the rights of others, or the paramount rights of the community of which he makes a part.

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Download entire essay (16 page PDF file, 141K) from the Social Science Research Network: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1909617.

A tip o’ the hat to Of Arms and the Law.