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The Positive Second Amendment
Rights, Regulation, and the Future of Heller

$29.99 (G)

Part of Cambridge Studies on Civil Rights and Civil Liberties

  • Date Published: September 2018
  • availability: Available
  • format: Paperback
  • isbn: 9781316611289

$ 29.99 (G)

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About the Authors
  • The Second Amendment is among the most recognized provisions of the Constitution. It is also perhaps the most misunderstood. Common misconceptions about the amendment - what it forbids, what it permits, how it functions as law - distort the gun debate and America's constitutional culture. In The Positive Second Amendment, Blocher and Miller provide the first comprehensive post-Heller account of the history, theory, and law of the right to keep and bear arms. Their aim is not to pick sides in the gun debate, but rather to show how a positive account of the 'constitutional' Second Amendment differs from its political cousin. Understanding the right to keep and bear arms as constitutional law will challenge many deeply held beliefs. But it may also provide a better way to negotiate the seemingly intractable issues that afflict America's debate over gun rights and regulation.

    • Enriches the debate about the Second Amendment's purpose
    • Suggests a 'third way' that may provide grounds for compromise
    • Develops a constitutional framework for assessing Second Amendment claims after Heller
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    Reviews & endorsements

    'Does the Second Amendment protect a right to carry stun guns? Does it allow state lawmakers to proscribe the carrying of concealed firearms by visitors holding concealed-carry licenses from other states? In the decade since the Supreme Court found an individual constitutional right to possess firearms for personal protection in the Heller case, lower courts have been grappling with the ruling’s myriad implications. The Positive Second Amendment describes the resulting body of law. Like the Heller decision itself, that body of law does not establish an absolute right. In this engaging tour of the legal landscape, Joseph Blocher and Darrell Miller remind readers that the legal Second Amendment affords citizens considerable room to argue over the appropriate dimensions of federal, state, and local gun-control law and policy.' Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell University Law School, New York

    'Joseph Blocher and Darrell A. H. Miller’s new book makes it clear that the future of Second Amendment law requires fashioning a jurisprudence that acknowledges that robust regulation of basic rights is not an anomaly in American law it is the norm. The Positive Second Amendment charts a broad middle ground between the often shrill and ideologically driven arguments that dominate the public debate over the contentious issue of guns in America. Anyone interested in understanding the right to bear arms and in contributing to a constructive debate about how to honor the rights of gun owners and further the Second Amendment’s goal of promoting 'the security of a free state' needs to read this book carefully, and think hard about its analysis and recommendations.' Saul Cornell, Paul and Diane Guenther Chair in American History, Fordham University, New York

    'The Supreme Court delivered two opaque decisions in 2008 and 2010 recognizing the Second Amendment right to keep and bear arms. However, the decisions left open a host of practical questions about who (and what) is protected by the Amendment. Professors Blocher and Miller have written an absolutely superb book examining the issues that remain to be resolved as the Supreme Court decisions, which have now generated over 1,000 cases in state and federal courts, receive further analysis. This is a remarkably well-written and accessible book that will be indispensable not only for all academics teaching anything about 'gun rights' and 'gun control', but also, and probably more importantly, for any general reader looking for illumination about what remains one of the most divisive issues in American law and politics.' Sanford Levinson, author of An Argument Open to All: Reading the Federalist in the 21st Century

    ‘… a significant contribution to our understanding of the Second Amendment and the way we should approach understanding its impact on American public policy. This work is particularly relevant in light of the frequency that the public must grapple with the presence of guns in daily life.’ Charles F. Jacobs, Law and Politics Book Review

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    Product details

    • Date Published: September 2018
    • format: Paperback
    • isbn: 9781316611289
    • length: 212 pages
    • dimensions: 229 x 152 x 13 mm
    • weight: 0.31kg
    • availability: Available
  • Table of Contents

    Introduction: the gun debate and the Constitution
    1. Gun rights and regulation in American history
    2. Militias, private purposes, and the road to Heller
    3. Understanding Heller
    4. Heller's aftermath: 'a vast Terra Incognita'
    5. The constitutional grammar of the Second Amendment
    6. What is the Second Amendment for?
    7. Second Amendment law and the gun debate.

  • Authors

    Joseph Blocher, Duke University School of Law
    Joseph Blocher is Professor of Law at Duke University School of Law. As an associate at O'Melveny & Myers LLP, he co-authored the briefs for the District of Columbia in District of Columbia v. Heller. His Second Amendment scholarship has been published in the Yale Law Journal, Stanford Law Review, NYU Law Review, University of Chicago Law Review, and many other journals.

    Darrell A.H. Miller, Duke University School of Law
    Darrell A. H. Miller is the Melvin G. Shimm Professor of Law at Duke University School of Law. He is a graduate of Harvard Law School and Oxford University and is a former Marshall Scholar. His scholarship has been cited by the Supreme Court of the United States, the United States Courts of Appeals, the United States District Courts, and in congressional testimony and legal briefs.

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