In this article, Patrick Charles addresses the first step in analyzing Second Amendment challenges – whether the challenged conduct was “publicly accepted” or “publicly understood” as within the scope of the Second Amendment, circa 1791. This article also analyzes two premises on which the McDonald plurality based its decision, ultimately concluding that those premises are inaccurate. In his opinion, Justice Alito asserted that State constitutions at the time of the founding generally protected an individual right to keep and bear arms. However, an in-depth examination of all State constitutional provisions suggests otherwise. Secondly, John Bingham’s understanding of what the Fourteenth Amendment would do is at odds with the decision reached in McDonald.
Charles, Patrick J.
"The Second Amendment Standard of Review After McDonald: "Historical Guideposts" and the Missing Arguments in McDonald v. City of Chicago,"
ConLawNOW: Vol. 2
, Article 2.
Available at: https://ideaexchange.uakron.edu/conlawnow/vol2/iss1/2