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A New Triumph for the Right to Keep and Bear Arms (and for II’s Dave Kopel)

Posted by on Feb 14 2014 | Constitutional History, Constitutional Law, Dave Kopel, guns, Kopel Dave, Natelson Rob', Rob Natelson, Second Amendment, U.S. Constitution

A federal court of appeals has just vindicated the Second Amendment right to keep and bear arms in a big way. And II’s own Dave Kopel was largely responsible.

California denied citizens the right to carry firearms outside their homes, unless they obtained a concealed weapons permit. But to get such a permit, citizens had to demonstrate “good cause”—and fear for one’s personal safety was not sufficient to show “good cause.” The effect of the statute was to allow the local sheriff to deny the right to bear arms to all but a favored few.

On February 13, the U.S. Court of Appeals for the Ninth Circuit (the largest of the nation’s federal court of appeals districts) issued Peruta v. County of San Diego. It held that the California statute violated the Second Amendment. In doing so, the court cited one of Dave Kopel’s articles. But that citation went nowhere near showing the extent of his influence.

To clarify the historical understanding of the term “bear arms,” the Court spent much of its opinion citing and discussing obscure 19th century cases and commentaries on the right to keep and bear arms. It was Dave Kopel who first re-introduced these materials to public notice.

In 1998, Dave wrote an article called The Second Amendment in the Nineteenth Century, 1998 B.Y.U. L. Rev 1359. This was a massive compendium of cases, commentaries, and other materials. (By “massive,” I mean 188 pages, roughly three times the size of the typical law journal article.)

This article placed into the legal databases for the first time the full story of how the public viewed the Second Amendment during the century after the Constitution was ratified. By collecting and publishing this material, Dave made the collection readily accessible to later commentators, who built on his work. He also thereby made this material available to the courts.

The Court of Appeals cited Dave’s article in Peruta, but didn’t fully explain how that contribution made possible much of the later work that the court also cited. Pioneers don’t always get the credit they deserve.

This incident is only the latest example of how II, although a Colorado think tank, also advances freedom nationally and internationally.

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