The Right To Keep And Bear Arms In The States: Ambiguity, False Modesty, And (Maybe) Another Win For Originalism 

This article appeared in the Harvard Journal of Law and Public Policy, Volume 33, Issue 1 - Winter 2010 (pdf available here)

by Clark M. Neily III*

District of Columbia v. Heller¹ was an easy case to get right. First, there was the text of the Second Amendment, which  plainly states that “the right of the people to keep and bear Arms, shall not be infringed.”² Second, there was history, much of it created by citizen-soldiers who had just won their independence—and knew they would have to keep fighting for it—with guns. Next were the reams of academic scholarship from across the ideological spectrum that had come to establish the individual rights interpretation as the “standard model” of the Second Amendment.³ Finally, there was the sheer unpersuasiveness of the arguments on the other side, which Judge Alex Kozinksi once described as having “the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it.”⁴