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DI Caplan

Bio: DI Caplan is an academic researcher. The author has contributed to research in topics: Possession (law) & Statute. The author has an hindex of 1, co-authored 1 publications receiving 6 citations.

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TL;DR: Schubert and Schubert as mentioned in this paper were among the first to reject the exclusively collective right theory of the right of the people to keep and bear arms in the United States.
Abstract: During 1981, courts in both Oregon and Indiana re-asserted their 1980 holdings that their respective state constitutional provisions for a right of the people to bear arms guaranteed an individual right to the private citizen. More specifically, the Oregon Supreme Court in State v. Blocker re-asserted its 1980 holding in State v. Kessler invalidating an Oregon state statute banning the private possession of certain arms, such as billy clubs. The Indiana Court of Appeals in Shettle v. Shearer reaffirmed its 1980 holding in Shubert v. Debard that an applicant for a license to carry a handgun who claimed "self-defense" as a reason for the license could not constitutionally be required to demonstrate factually the "need" for the license. The Kessler and Schubert opinions both contain detailed discussions on the scope and policy of the right of the people to keep and bear arms as a private individual right. This article reviews the historical background of that right, and the consequent signaling of judicial trend rejecting the exclusively collective right theory of the right of the people to keep and bear arms. The exclusively collective right theory stands for the proposition that the "right of the people to keep and bear arms" - as expressed in the second amendment of the United States Constitution, or as specified in various ways in thirty-seven state constitutions - is strictly limited to guaranteeing a collective right of the organized militia or National Guard. However, both the Indiana and the Oregon courts rejected the exclusively collective right theory in favor of a theory that recognizes both a private individual constitutional right and a collective right. Because these decisions set forth with great clarity the underlying fundamental issues in a concrete context, a rather detailed review of the reasoning of these decisions is useful in understanding their important implications. Moreover, the Oregon court in State v. Kessler based its decision on an explicit acceptance of the English legal traditions of the right of self-defense and the right of the individual citizen to have arms for that purpose. Accordingly, this tradition will be explored first, followed by a review of the holdings of Schubert and Kessler. Finally, this article will explore the implications of these cases regarding the exclusively collective right theory of the right of the people to bear arms. Reprinted by permission of: Detroit College of Law Review 1982, Winter, Issue 4. (Revised and updated by the author.)

6 citations


Cited by
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TL;DR: Johnson as mentioned in this paper was the first to acknowledge the comments and helpful criticisms of David Caplan, Professor Robert Cottrol, Professor Raymond Diamond, Robert Dowlut and Don Kates.
Abstract: Professor of Legal Studies in Business and Taxation, Franklin and Marshall College. Of Counsel, Kirkpatrick and Lockhart. J.D. 1984, Harvard Law School, B.S.B.A. 1981, Magna Cum Laude, West Virginia University. I would like to acknowledge the comments and helpful criticisms of David Caplan, Professor Robert Cottrol, Professor Raymond Diamond, Robert Dowlut and Don Kates. All the views expressed are my own and are in no way attributable to or endorsed by the organizations with which I am affiliated. © 1992, Nicholas J. Johnson [Copyright © 1992 Nicholas J. Johnson. Originally published as 24 RUTGERS L.J. 1-81 (1992). Permission for WWW use at this site generously granted by the author. For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571.]

15 citations

Posted Content
TL;DR: The authors explores the parallels between the right of armed self-defense and the woman's right to abortion and demonstrates that the theories and principles advanced to support the abortion right intersect substantially with an individual's right of self-defence.
Abstract: In this article, Professor Nicholas J. Johnson explores the parallels between the right of armed self-defense and the woman's right to abortion. Professor Johnson demonstrates that the theories and principles advanced to support the abortion right intersect substantially with an individual's right to armed self-defense. Professor Johnson uncovers common ground between the gun and abortion rights - two rights that have come to symbolize society's deepest social and cultural divisions - divisions that prompt many to embrace the abortion right while summarily rejecting the gun right. Unreflective disparagement of the gun right, he argues, threatens the vitality of the abortion choice theories with which gun-rights arguments intersect and suggests that society's most difficult questions are settled not on principle, but by people's passions.

11 citations

Posted Content
TL;DR: In this article, historical evidence reveals a disparity between the Anglo-American origins of armed carriage laws and present-day interpretations of the Second Amendment and the historical backdrop also reveals the impact pro-gun organizations have had on the expansion of armed carriages.
Abstract: Since the late twentieth century, the Second Amendment has been increasingly promoted as the unfettered right to carry firearms in the public concourse. This expansive meaning, however, lacks historical support. Historical evidence reveals a disparity between the Anglo-American origins of armed carriage laws and present-day interpretations of the Second Amendment. The historical backdrop also reveals the impact pro-gun organizations have had on the expansion of armed carriage. Differences in state armed carriage laws, analyzed from both historical and regional perspectives, will one day require the Supreme Court to determine which version of history should dictate the meaning of the Second Amendment.

4 citations

01 May 1992
TL;DR: The authors examined the portrayal of the Second Amendment of the Constitution (the right to keep and bear arms) in U.S. government textbooks and found that not only were there numerous errors and misrepresentations of facts, but also there were many omissions of various events throughout history.
Abstract: This report examines the portrayal of the Second Amendment of the Constitution (the right to keep and bear arms) in U.S. history and U.S. government textbooks. The document contends that not only were there numerous errors and misrepresentations of facts, but also there were many omissions of various events throughout history. Further research showed that the history of the second amendment virtually was omitted from the texts. The guiding questions of the research included: (1) How accurately and comprehensively do senior high school U.S. history and U.S. government textbooks portray the Second Amendment and the circumstances of its adoption?; (2) When the Second Amendment is included, how much emphasis is given to it compared to other amendments?; and (3) How thoroughly and accurately do the textbooks portray the courts' interpretation of the Second Amendment? Content analysis was conducted for 24 senior high school U.S. history and 8 U.S. government textbooks for all events relating to the Second Amendment. fourteen areas of historical events, legislation, and judicial decisions were examined to determine the accuracy of the coverage of the topic. The study concludes that the textbooks omit important ' istorical and judicial precedents that would give students an accurate portrayal of the evolution of the Second Amendment and subsequent judicial opinions, without which the amendment seems to have sprung from an intellectual vacuum. Contains 30 references. (EH) Reproductions supplied by EDRS are the best that can be made from the original document. 1 H PAW VP4 !-[( )!, ;01(7"44kl I iiUI 1^41');0'.'A")". "11P

1 citations

Journal ArticleDOI
TL;DR: A preventive approach can be applied to resolving each of our major environmental problems, from hazardous air pollution to the solid waste crisis as mentioned in this paper, by encouraging companies to follow the lead of firms like Dupont and IBM by committing themselves to drastic reductions in toxic emissions and elimination of toxic substances from their production processes.
Abstract: way we live, work, and do business in order to prevent pollution. A preventive approach can be applied to resolving each of our major environmental problems, from hazardous air pollution to the solid waste crisis. In curbing air pollution, a preventive approach means, encouraging companies to follow the lead of firms like Dupont and IBM by committing themselves to drastic reductions in toxic emissions and elimination of toxic substances from their production processes. In resolving the garbage crisis, a preventive approach means promoting the three R's of solid waste management—recycling of as much of the waste stream as possible; reduction of unnecessary packaging and other sources of garbage; and reuse of as many products as possible, rather than using throwaway items. In these and many other areas of environmental