Current Issue

Volume 73, Number 3

June 1998

The Commonplace Second Amendment

Eugene Volokh

The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era: State Bills of Rights contained justification clauses for many of the rights they secured. Looking at these state provisions, he suggests, can shed light on how the similarly structured Second Amendment should be interpreted. In particular, the provisions show that constitutional rights will often—and for good reason—be written in ways that are to some extent overinclusive and to some extent underinclusive with respect to their stated justifications.