For nearly two centuries following its adoption, the Second Amendment was largely ignored and even referred to as a “dead amendment.” Virtually all legal scholarship considered the right protected by the amendment to be a collective right written into the Constitution to protect local militias from a powerful federal standing army. However, beginning in the late 1970s a surge of libertarian scholarship began to emerge promoting the Second Amendment as a safeguard for an individual right to bear arms without any connection to military service. Promoted by the National Rifle Association and libertarian theorists, the individual-right theory began to gain popularity among legal scholars and historians, and in 2008 it was adopted by the Supreme Court of the United States in District of Columbia v. Heller. Following Heller, lower courts have primarily read Justice Antonin Scalia’s decision narrowly, upholding challenged gun control laws. One area of legislation, the restriction of concealed-carry rights, has served as the exception to this rule, as libertarian judges have successfully struck down such laws. The battle over the meaning of the Second Amendment between traditional conservative and libertarian judges and scholars illustrates a growing divide in the conservative legal movement. Questioning the traditional conservative reliance on judicial restraint, libertarians have slowly challenged conservative legal convention, aimed at limiting the scope of the American regulatory state. This thesis analyzes the conflict between traditional conservatives and libertarians, assesses the rise of the libertarian constitutionalism and its impact on Second Amendment litigation, and evaluates the future of the libertarian legal movement.
Sierzega, Anthony M., "Resurrecting the "Dead" Second Amendment: How the Libertarian Legal Movement Has Shaped Gun Control Litigation" (2015). Politics Honors Papers. 2.