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This Essay was delivered at the Boston University School of Law Symposium titled “America’s Political Dysfunction: Constitutional Connections, Causes, and Cures.” The Essay challenges the assumption that the Second Amendment historically has provided a barrier to a desirable policy result: radical gun control or gun prohibition. It also challenges the assumption that such a policy is indeed desirable. The Essay traces the history of judicial engagement with the Second Amendment, including the Supreme Court’s most recent pronouncement recognizing the right to bear arms as an individual right in Heller and McDonald, and lower federal courts’ subsequent application of this right. It concludes that the principle that there is a need for the means of self-defense, that it should not be taken away, and that it is dangerous to force a people to rely solely on the state for protection, remains sound policy, and not an example of constitutional dysfunction.

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GWU Law School Public Law Research Paper No. 2014-11; GWU Legal Studies Research Paper No. 2014-11

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