This paper intends to analyze the philosophical and legal frameworks; as well as the historical background, behind the writing of the second amendment of the American constitution. It draws on several sources, varying from Niccollo Machiavelli’s Discourses and The Art of War to John Locke’s Two Treatises on Civil Government and James Harrington’s pamphlet “The Commonwealth of Oceana”. In addition, this paper explores the legal texts that shaped the wording of the amendment –the English Common Law and the Federalist Papers- as well some key historical events –The Boston Massacre of 1770 as well as the slavery issue. It concludes by giving the two distinct perspectives regarding the application of the Second Amendment and its validity.
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This article contributes to the debate over the original meaning of the Second Amendment by placing two underappreciated concepts, federalism and auxiliary rights, at the center of the amendment's original meaning. It argues that 18th-century Americans viewed the right to keep and bear arms as an auxiliary right enabling the protection of more fundamental personal rights, rather than as an individual, collective, or civic right. Furthermore, the Second Amendment was ratified in response to Anti-Federalist fears that the nationalization of military power in the new Constitution would permit the federal government to oppress the people and destroy the power of the states. Given this context, this article suggests that the Second Amendment was a jurisdictional amendment that dealt with which level of government had authority to make firearms regulations rather than which regulations were acceptable. It was intended to maintain a balance of military power between the state and national governments by protecting the states' concurrent power to arm, organize, and train their citizen militias free from federal disarmament. In contrast to reigning views, which either permit or forbid gun regulation at both the federal and state levels, adopting this paradigm would prohibit all national firearms legislation but would also undermine support for incorporating the amendment against the states. Although the contemporary practicality of the American founders' solution is questionable, they produced a creative solution to the problem of divided sovereignty in federal republics that deserves to be incorporated into broader accounts of federalism.
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Chicago Kent Law Review
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Rivista Internazionale di Filosofia del Diritto
Il testo intende indagare le radici filosofiche del Secondo Emendamento statunitense, mostrando come il diritto di portare armi provenga direttamente dal diritto naturale e da una visione sussidiaria del potere politico. Esso rompe fondamentalmente con la costruzione moderna del politico che vede nello Stato un potere sovrano. The text intends to investigate the philosophical roots of the U.S. Second Amendment, showing that the right to bear arms directly originates from the natural law and a subsidiary vision of the political power. It basically violets with the modern building of politics that thinks at the State like a sovereign power.
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SSRN Electronic Journal
