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Hastings Constitutional Law Quarterly

Abstract

Since Heller Second Amendment litigation and scholarship has focused in large part on questions about the historical understanding of the Second Amendment. One area where this historical analysis has been especially pronounced is in litigation over the scope of the Second Amendment right outside of the home. Litigants, amici, and scholars fiercely debate the meaning of historical statutes, treatises, and cases, arguing about the scope of the right to carry arms outside of the home at the time of the Second and Fourteenth Amendments’ ratifications. Most law review articles attempt to address difficult or hotly contested legal issues. This is not one of those kinds of articles. This article will instead address the frivolous arguments made by many plaintiffs in public carry Second Amendment cases, some of which have unfortunately made their way into district and circuit court decisions. These arguments, often made in a misleading sentence or two, usually take a few paragraphs to effectively rebut, paragraphs which the state and local governments defending against challenges to gun laws generally do not have the time, necessary expertise, or word count to include in their briefing. This article aims to provide easy answers to these arguments, hopefully allowing both the courts and the parties to focus on the actual issues in the Second Amendment debate.

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