Jamie G. McWilliam (Harvard Law School J.D. '22) has posted A Classical Legal Interpretation of the Second Amendment (28 Tex. Rev. L. & Pol. 101 (2024)) (52 pages) on SSRN. Here is the abstract:
Modern arguments for a broad right to keep and bear arms protected by the Second Amendment usually fall under the auspices of textualism, originalism, or “history and tradition.” Meanwhile, some who advance a natural-law-focused method of interpretation, such as common good constitutionalism, may be quick to throw this right away under their view of the “common good.” This Article argues that applying a natural-law-focused interpretive framework to the Second Amendment actually requires a right that originalists could likely agree with. The Second Amendment was a determination, by the Founders, of the ius naturale principle of self-defense. This principle promotes a “common good” that is simultaneously individual—defense against immediate personal violence—and collective—defense of the nation against foreign aggressors and unjust rulers, both of whom would act against the common good. Applying this framework results in an interpretation that supports a strong right to keep and bear arms, while simultaneously justifying many of the historical limitations that have been put forward to argue against such a right.
Impressive. I'm not sure, though, why this is not originalism.
Posted at 6:15 AM