Marcus Armstrong has posted The Militia II: Armed Self-Defense, the Second Amendment, and the Citizen (56 St. Mary’s Law Journal __ (forthcoming)) on SSRN. Here is the abstract:
The United States Supreme Court’s decision in Heller was in error. The Court continued this error through Bruen. Though the Court decided correctly that individuals have a constitutional and inalienable right to armed self-defense inside (and now outside) the home, the Court incorrectly described the right as the Second Amendment’s core area of protection. On the contrary, the individual right to armed self-defense exists independent of the Second Amendment, and the Second Amendment’s core area of protection is the individual right to own privately and keep weapons suitable for militia service. Federal courts have approached both the individual right to armed self-defense and the Second Amendment incorrectly. This has led to a confused Second Amendment jurisprudence. Federal courts should move away from viewing the Second Amendment as a codification of the individual right to self-defense. They should recognize an unenumerated “original right”—the individual right to armed self-defense, and they should recognize the Second Amendment’s protection of an individual right to keep weapons suitable for militia service. Doing so will clear up the confusion and contradiction that defines current Second Amendment, self-defense, and militia jurisprudence.