A Joint Reading of the Second Amendment and Militia Clause for an Analytical Framework of Firearms Laws

Author

Nathan L. HolmFollow

Date of Award

8-1-2024

Degree Name

Doctor of Philosophy

Department

Political Science

First Advisor

Bricker, Benjamin

Second Advisor

Comparato, Scott

Third Advisor

Mocsary, George

Abstract

The Second Amendment is a particularly challenging constitutional provision to judge as to what it protects and what it does not. I propose that the Militia Clause, the object of the prefatory clause of the Second Amendment, provides insight as to the minimum scope of the right, as opposed to maximum scope cautioned against by the Court in Heller. Combining a joint reading of the Second Amendment and Militia Clause with current precedent through Bruen, I construct a five-stage process for evaluating firearms laws consistent with history, text, and tradition, as mandated by Bruen. This process is illustrated by comparing and contrasting eighteen types of firearms laws from twelve states, three per census region, and a test of the five-stage process on a select law from each set of three states, comparing the current precedent with the five-stage approach (Militia-Clause-Added, MCA) for potential variation in conclusion if select laws were subjected to judicial review. A truly historical evaluation is foregone in favor of further defining what history is governing, the five-stage evaluative method providing a formula to input relevant factors including appropriate history, and providing structure to the evaluation of firearms laws and regulations in lieu of the informal scrutiny standards outmoded by Bruen.