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Hastings Law Journal

Abstract

Roughly a decade has passed since the Supreme Court’s decision in District of Columbia v. Heller and the battle over the basic legitimacy of the right to keep and bear arms continues. A significant segment of the academy, the Bar, and the judiciary remains skeptical about the constitutional bona fides of the individual right to arms. A primary source of that skepticism is the view pressed most forcefully by professional historians that the Second Amendment had nothing to do with individual self-defense and at best protects an “individual militia right” that has no practical application in modern America. This Article will show that the historians’ account is deeply flawed historiography and a dubious rebuttal to the individual rights view because it ignores the role of limited power in the understanding of rights under the original Constitution.

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