Chapman University Dale E. Fowler School of Law Professor Lawrence Rosenthal’s article “The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control” was published in late October 2015 in the Washington University Law Review (Volume 92, Number 5).
From the abstract:
Second Amendment jurisprudence was revolutionized by the Supreme Court’s 2008 decision in District of Columbia v. Heller. Relying on what it characterized as the “original meaning” of the Second Amendment, the Court recognized for the first time an individual right to keep and bear arms, and invalidated an ordinance that prohibited the possession of handguns, at least as applied to individuals who wished to keep them at home for purposes of lawful self-defense.
This article takes Heller’s conclusions about the original meaning of the Second Amendment as given, and assesses whether they have produced – or even are capable of producing – an authentically originalist Second Amendment jurisprudence. It assesses as well the implications of Heller for gun control. Some six years after the Court announced a new era in Second Amendment jurisprudence in Heller, the outlines of a new Second Amendment jurisprudence – one that contemplates surprisingly robust regulatory authority and in which originalism plays a surprisingly limited role – are starting to come clear. The discussion that follows seeks to explicate and defend this emerging jurisprudence in terms of the relationship between the Second Amendment’s preamble and its operative clause. It explores as well the constitutional case for a quite robust regime of gun control.
After graduating from Harvard Law School, where he won the Fay Diploma and was an editor of the Harvard Law Review, Professor Lawrence Rosenthal clerked for Judge Prentice Marshall of the United States District Court for the Northern District of Illinois and Justice John Paul Stevens of the United States Supreme Court. Professor Rosenthal entered the practice of law as an Assistant United States Attorney for the Northern District of Illinois, specializing in organized crime and public corruption prosecutions. He subsequently joined the City of Chicago’s Department of Law, where he was Deputy Corporation Counsel for Counseling, Appeals and Legal Policy. In that capacity, he argued three cases in the United States Supreme Court, and supervised a large volume of complex litigation as well as legislative policy matters. Professor Rosenthal joined the Fowler School of Law faculty in the fall of 2005. Other scholarly writings include “The Scope of Regulatory Authority under the Second Amendment,” in Reducing Gun Violence in America: Informing Policy With Evidence and Analysis 225 (Daniel W. Webster & Jon S. Vernick eds., 2013 (with Adam Winkler); “Originalism in Practice,” in the Indiana Law Journal (2012); “McDonald v. Chicago: Which Standard of Scrutiny Should Apply to Gun-Control Laws?,” in the Northwestern University Law Review (2011); and “Second Amendment Plumbing after Heller: Of Standards of Scrutiny, Incorporation, Well-Regulated Militias and Criminal Street Gangs,” in Urban Lawyer (2009).