2013 Theses Doctoral

The Second Amendment and the Constitutional Right to Self-Defense

Merkel, William George

This dissertation analyzes the contextual background, drafting history, text, original understanding, interpretive evolution, and contemporary judicial application of the Second Amendment to the United States Constitution. The dissertation develops the argument that as originally understood, the Second Amendment protected a right to keep and bear arms closely linked to and dependent upon service in the lawfully established militia. Two recent United States Supreme Court decisions, Heller v. District of Columbia and MacDonald v. City of Chicago, depart from this original understanding and recognize a constitutional right to weapons possession for purposes of purely private self-defense - particularly self-defense in the home. The dissertation recognizes that there are grounds for recognizing such a right, and that these include natural law, substantive due process, procedural due process, the Ninth Amendment, and emanations from particular provisions in the Bill of Rights including the Second Amendment. At the same time, the dissertation develops the case that the original public understanding mode of interpretation avowedly applied by the Supreme Court in its recent right to arms decisions relies on untenable "law office" history to justify results not dictated by the text, structure, or original understanding of the Constitution or by prior Supreme Court precedent.