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Journal ArticleDOI

True Threats, Self-Defense, and the Second Amendment.

01 Dec 2020-Journal of Law Medicine & Ethics (SAGE PublicationsSage CA: Los Angeles, CA)-Vol. 48, pp 112-118

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TL;DR: This inquiry is urgent at a time when the Supreme Court's new conservative majority may expand restrictions on gun laws beyond the right to keep arms for self-defense in the home first recognized in District of Columbia v Heller.
Abstract: Courts reviewing gun laws that burden Second Amendment rights ask how effectively the laws serve public safety - yet typically discuss public safety narrowly, without considering the many dimensions of that interest gun laws serve. "Public safety" is a social good: it includes the public's interest in physical safety as a good in itself, and as a foundation for community and for the exercise of constitutional liberties. Gun laws protect bodies from bullets - and Americans' freedom and confidence to participate in every domain of our shared life, whether to attend school, to shop, to listen to a concert, to gather for prayer, or to assemble in peaceable debate. Courts must enforce the Second Amendment in ways that respect the public health and constitutional reasons a democracy seeks to protect public safety. Lawyers and citizen advocates can help, by creating a richer record of their reasons in seeking to enact laws regulating guns.This inquiry is urgent at a time when the Supreme Court's new conservative majority may expand restrictions on gun laws beyond the right to keep arms for self-defense in the home first recognized in District of Columbia v. Heller in 2008.

3 citations

Journal ArticleDOI

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TL;DR: The origins and spread of the Second Amendment Sanctuary movement are assessed in this paper, where localities pass ordinances or resolutions that declare their jurisdiction's view that proposed or enacted state (or federal) gun safety laws are unconstitutional and therefore, local officials will not implement or enforce them.
Abstract: This article assesses the origins and spread of the Second Amendment sanctuary movement in which localities pass ordinances or resolutions that declare their jurisdiction's view that proposed or enacted state (or federal) gun safety laws are unconstitutional and therefore, local officials will not implement or enforce them. While it is important to assess Second Amendment sanctuaries from a legal perspective, it is equally as important to understand them in the context of a broader protest movement against any efforts to strengthen gun laws. As the gun violence prevention movement has gained strength across the United States, particularly at the state level, gun rights enthusiasts have turned to Second Amendment sanctuaries in order to create a counter narrative to the increasing political power of gun safety. By passing these ordinances or resolutions, local officials legitimize and fuel Second Amendment absolutism which poses real risks to public safety and democracy.

2 citations


References
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224 citations

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TL;DR: The authors published an article by Professors Gary Kleck and Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 J. CRIM. & CRIMINOLOGY 150 (1995).
Abstract: Editor's note: In Fall 1995, the Journal published an article by Professors Gary Kleck and Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 J. CRIM. & CRIMINOLOGY 150 (1995). As part of its Policy and Perspectives section, the Journal now publishes the views of Professor David Hemenway on the Kleck-Gertz paper, a reply by Professors Kleck and Gertz, and the views of Professor Tom Smith on both the Hemenway and Kleck-Gertz papers. As always, the views expressed here are those of the authors.

69 citations

Journal ArticleDOI

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TL;DR: Guns are used to threaten and intimidate far more often than they are used in self defense, and most self reported self defense gun uses may well be illegal and against the interests of society.
Abstract: Objectives—To determine the relative incidence of gun victimization versus self defense gun use by civilians in the United States, and the circumstances and probable legality of the self defense uses. Methods—National random digit dial telephone surveys of the adult population were conducted in 1996 and 1999. The Harvard surveys appear unique among private surveys in two respects: asking (1) open ended questions about defensive gun use incidents and (2) detailed questions about both gun victimization and self defense gun use. Five criminal court judges were asked to assess whether the self reported defensive gun uses were likely to have been legal. Results—Even after excluding many reported firearm victimizations, far more survey respondents report having been threatened or intimidated with a gun than having used a gun to protect themselves. A majority of the reported self defense gun uses were rated as probably illegal by a majority of judges. This was so even under the assumption that the respondent had a permit to own and carry the gun, and that the respondent had described the event honestly. Conclusions—Guns are used to threaten and intimidate far more often than they are used in self defense. Most self reported self defense gun uses may well be illegal and against the interests of society.

41 citations

Journal ArticleDOI

[...]

TL;DR: The Model Penal Code (MPC) as discussed by the authors is an American criminal code that was first proposed in the early 1970s and has been used extensively in the criminal code development process.
Abstract: If there can be said to be an "American criminal code," the Model Penal Code is it Nonetheless, there remains an enormous diversity among the fifty-two American penal codes, including some that have never adopted a modern code format or structure Yet, even within the minority of states without a modern code, the Model Penal Code has great influence, as courts regularly rely upon it to fashion the law that the state9s criminal code fails to provide In this essay we provide a brief introduction to this historic document, its origins, and its content

28 citations

Journal Article

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TL;DR: In this article, the authors present a test for determining when a statement is a "true threat" not deserving of First Amendment protection, based on a broad spectrum of scenarios, which is a test that too often scholars and courts rely on gut judgments rather than on a clear and predictable test.
Abstract: I. INTRODUCTION Consider the following scenarios: You are a physician at a local Planned Parenthood clinic. As part of your job you perform abortions. There have been protests outside the clinic and you have heard about the murders of several doctors around the country who were killed because they performed abortions. One day a colleague calls you and tells you that an anti-abortion group has put up a website which lists the names and home addresses of doctors who perform abortions. When you look at the website you find your name and address on the list along with strong language saying that you and the others on the list will one day be held accountable for your crimes against humanity. Some of the doctors' names have black lines through them. You recognize these names as people who have been murdered by antiabortion fanatics. Can you successfully sue the creators of the website for threatening you and causing you severe emotional distress, or is this website protected by the First Amendment? (1) Now imagine yourself a woman in college. You hear from a friend that a classmate has posted a story about you on the Internet with a newsgroup called "sex stories." You read the posting and find a gruesome and detailed story of the narrator torturing and raping you. The story culminates in a description of you being doused with kerosene and lit on fire. The posting uses your real name. You are scared and call the police. Should your classmate be convicted of threatening you? (2) You attend a rally in support of a boycott of white-owned stores whose owners will not hire African American employees. You are aware of several violent acts against blacks who have ignored the boycott including the firing of shots into the house of one boycott violator. The leader of the boycott speaks at the rally and warns boycott violators that "their necks will be broken." You had been considering returning to some of the white-owned stores but are frightened by the leader's words. Should the leader of the boycott be arrested for threatening boycott violators or is his speech protected by the First Amendment? (3) As a child you grew up watching the Lone Ranger on television. From this show you picked up the phrase "the silver bullets are coming" which signified to you that the Lone Ranger was on his way to save the day. Many years later, after an acrimonious divorce, you contact an FBI agent with newfound evidence that implicates your ex-father-in-law in an illegal bankruptcy scheme. On your voice-mail message to the FBI agent, rather than just saying you found new evidence, you use your favorite childhood phrase: "the silver bullets are coming!" Shortly after leaving this message, you are arrested for threatening a federal officer. Should you be convicted? (4) As the above situations show, there are many different contexts in which statements might be considered threatening. Many courts and scholars have focused only on one or two situations individually. The problem with not considering a broad spectrum of scenarios is that too often scholars and courts rely on gut judgments rather than on a clear and predictable test. The main purpose of this article is to create a test for determining when a statement is a "true threat" not deserving of First Amendment protection. The law surrounding threats has gained recent attention from commentators after decades of virtual anonymity and unaddressed confusion among the lower courts. The sudden interest in threats has been sparked primarily by the proliferation of widely disseminated Internet speech. (5) In particular, two high-profile cases have shined the spotlight on threats: the so-called Nuremberg File case (6) and the Jake Baker case, (7) both of which I used in the above hypotheticals. Despite this recent interest, the three major hornbooks and treatises on the First Amendment and the Constitution still do not have an index listing for true threats. …

10 citations