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Date: Nov. 2019
From: Notre Dame Law Review(Vol. 95, Issue 1)
Publisher: University of Notre Dame Law School
Document Type: Article
Length: 7,061 words
Lexile Measure: 1910L

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Good evening. It is a great honor and a high privilege to be delivering the Clynes Lecture and to be a part of the University of Notre Dame's London Law at 50 Speaker Series. I want specially to thank Professor Michael Addo, the director of this wonderful Law Centre, for his extraordinary hospitality to Maura and me, and to thank Dean Nell Newton and Pro fessor A.J. Bellia--I am proud to say a former law clerk of mine--for extending the invitation to speak here tonight. (1)



One provision of the U.S. Constitution has been much in the news lately: the Second Amendment, which protects the right to keep and to bear arms. Due to several recent tragic school shootings, most recently in Parkland, Florida, a debate has been raging in the United States about the proper regulation of firearms. Proposals abound for wider background checks, registration and permitting requirements, and limitations on the types of weapons that can be privately owned or sold. Meanwhile, courts across the country have been routinely asked in the past several years to evaluate whether existing legal restrictions are consistent with the constitutional right. The tension between the Constitution and the budding restrictionist Zeitgeist has even led one distinguished jurist--retired Supreme Court Justice John Paul Stevens--to urge just three weeks ago, in the pages of the New York Times, that gun control proponents "should demand a repeal of the Second Amendment." (2) The call to amend the American Constitution was sufficiently significant that it received considerable news coverage from major outlets throughout the United Kingdom. (3)

It is definitively not my intention today to wade into such debates about the wisdom of the Second Amendment or to deal with pending or recent court interpretations. Rather, I want to explore how it came to be and what role British history had in its genesis. For Americans like myself, such history helps us to understand the meaning of our own Constitution. For the Britons here, it is a powerful example of how your own constitutional principles (4) shaped the legal landscape of far-flung countries once within the British Empire. And for those simply interested in law as a discipline, irrespective of geography, I hope this lecture serves as a useful case study of how distant history can help contemporary lawyers interpret the meaning of a legal text adopted over 225 years ago.


As I have suggested, the precise contours of the Second Amendment right are unsettled, and many cases seeking to define it either are before my court now or are likely to come before it and other federal courts. So, everything I say should be taken simply as a description of history by an American judge, not as an opinion on, or prediction of, the future evolution of American law in this area. The only definitive legal conclusions I will offer are those already settled by the Supreme Court of the United States.


Before getting into the history, one might ask:...

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Gale Document Number: GALE|A611932806