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The Police Power and the Authority to Regulate Firearms in Early America

Summary: The scope of gun regulation under the original understanding of the police power has not drawn much attention from courts thus far but should figure in any future originalist account of the Second Amendment.

  • Saul Cornell Saul Cornell
Published: June 29, 2021

This essay is part of the series Protests, Insur­rec­tion, and the Second Amend­ment

ABSTRACT: A proper under­stand­ing of the found­ing era concept of police is essen­tial to the future of Second Amend­ment juris­pru­dence. District of Columbia v. Heller never addresses the police power and its cent­ral­ity to early Amer­ican rights theory or ante­bel­lum juris­pru­dence. The omis­sion is strik­ing because Heller does devote consid­er­able atten­tion to ante­bel­lum south­ern cases address­ing the issue of public carry, and this body of law was strongly influ­enced by police power juris­pru­dence. A genu­inely histor­ical treat­ment of found­ing era rights theory — includ­ing the right to keep and bear arms — provides scant support for Heller’s dismissal of the right of the people to regu­late their internal police in the case of fire­arms. Nor does the ante­bel­lum south­ern case law that Heller high­lights as the key to unlock­ing the mean­ing of the Second Amend­ment support such a claim. Recon­struc­tion did not change these basic facts. If one applies Heller’s professed origin­al­ist meth­od­o­logy neut­rally, and Justice Scalia is correct that rights are entrenched with the scope that they had when consti­tu­tion­al­ized, then the right of the people to regu­late their own police, includ­ing fire­arms, must be treated with the same origin­al­ist rever­ence. Judges, includ­ing origin­al­ist judges, must recog­nize the awesome power of the people: includ­ing the right to regu­late arms.

The Police Power and the Au… by The Bren­nan Center for Justice