Scribble Scrabble, the Second Amendment, and Historical Guideposts: A Short Reply to Lawrence Rosenthal and Joyce Lee Malcolm

Abstract

The following is a reprint of the Northwestern University Law Review Colloquy Essay published in 2011, with minor text, citation, and footnote revisions. The original abstract is below:

In a recent article Professors Lawrence Rosenthal and Joyce Lee Malcolm provided an intriguing debate over the standard of scrutiny that should be applied to restrictions on the Second Amendment in the wake of McDonald v. City of Chicago. This article sets forth to illuminate two aspects of that debate. The first is Professor Rosenthal’s concern on the constitutionality of open-carry or conceal-carry prohibitions. He inaccurately claims that the Founders left insufficient historical evidence to support such prohibitions, thus this article addresses those concerns through the use of “historical guideposts.” The second aspect this article sets forth to address is Rosenthal and Malcolm’s characterization of the Second Amendment’s “well-regulated militia” language, for it highlights a historical and legal error that continues to pollute contemporary Second Amendment jurisprudence. This error being a “well-regulated militia” does not merely equate to “well-trained,” nor is it a vehicle to analyze gun control regulations in the constraints of the opinion in District of Columbia v. Heller.

Keywords: Second Amendment, Well-Regulated Militia, bear arms, gun control, public good, originalism, legal history