What Cruikshank Really Means for the Second Amendment
By Jamie G. McWilliam
Publication Date
2024
Abstract
The Supreme Court’s first analysis of the Second Amendment spanned all of one paragraph. But United States v. Cruikshank’s laconic examination of the right to bear arms is more important than its brevity would suggest. Its natural right conception of the Second Amendment undergirds Heller and its progeny, yet key points of its reasoning have been glossed over in the ensuing centuries. Cruikshank tells us that the Second Amendment secures the pre-existing right to bear arms for “lawful purposes.” Because this right is defined not by the Constitution but by natural legal principles, the purposes for which it can be lawfully exercised must also be determined by these principles. Under the classical natural law, there are a number of such lawful purposes—personal self-defense, resisting tyranny, and hunting, among others. By re-examining Cruikshank’s reasoning, this paper argues that placing the right to bear arms in light of its own lawful purposes may provide the solutions to modern issues such as weapon bans, carry restrictions, and the disarmament of felons and other “dangerous” individuals.
Recommended Citation
Jamie G. McWilliam, What Cruikshank Really Means for the Second Amendment, 2024 U. Ill. L. Rev. Online 20 (2024).
