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What is Gun Control? Direct Burdens, Incidental Burdens, and the Boundaries of the Second Amendment

TL;DR: In this paper, the Second Amendment applies to civil suits for trespass, negligence, and nuisance, and does not cover gun-neutral laws of general applicability like assault and disturbing the peace.
Abstract: Particularly in places with few recognizable gun control laws, “gun neutral” civil and criminal rules are an important but often-unnoticed basis for the legal regulation of guns. The burdens that these rules impose on the keeping and bearing of arms are at times significant, but they are also incidental, which raises hard questions about the boundaries between constitutional law, regulation, and legally enforceable private ordering. Does the Second Amendment apply to civil suits for trespass, negligence, and nuisance? Does the Amendment cover gun-neutral laws of general applicability like assault and disturbing the peace? In the course of addressing these practical questions and the broader conceptual challenges that they represent, this Article fashions analytic tools that may be useful to a wide range of constitutional problems.
Citations
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01 Jan 2018
Abstract: Perceptions of People’s Experiences Regarding Gun Violence by Charles Ndikum MA, Chicago State University, 1996 BA, University of Minnesota, 1994 Dissertation Submitted in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy Criminal Justice Walden University May 2018 Abstract Gun violence is a problem in many communities across the United States that are characterized by poverty, and lack of quality education, yet little is known about the experiences of victims of gun violence in these places. The purpose of this phenomenological study was to better understand how people who have been victims of gun violence perceive problems and solutions associated with the production, distribution, and ownership of guns. Based on the theoretical framework of Rousseau’s social contract theory, this study explored gun violence from the perspectives of 10 victims whose lives were directly or indirectly affected by gun violence to understand how victims perceive the obligations of government to the governed in terms of response to gun violence. Data from individual interviews were subjected to selective and open coding followed by a thematic analysis procedure. The key findings from this study revealed that gun violence victims were able to differentiate between the intended use of firearms and its abuse. The victims associated the abuse of firearms to deteriorating social factors. In accordance with the classic premise of the social contract theory, the victims thought that the fight against gun violence needed to be led by the affected communities. The results of this study demonstrated what appeared to be a new rendition of theory, that instead of challenging local authorities, the victims opted for a leadership-based collaborative approach to eradicate the underlying social weaknesses that lead to gun violence. The conclusions drawn from this study may provide insight into appropriate measures that can aid in social uplift among affected communities, such as modifications to existing gun control laws to promote safety and efficiency and citizen collaboration toward improved regulation.Gun violence is a problem in many communities across the United States that are characterized by poverty, and lack of quality education, yet little is known about the experiences of victims of gun violence in these places. The purpose of this phenomenological study was to better understand how people who have been victims of gun violence perceive problems and solutions associated with the production, distribution, and ownership of guns. Based on the theoretical framework of Rousseau’s social contract theory, this study explored gun violence from the perspectives of 10 victims whose lives were directly or indirectly affected by gun violence to understand how victims perceive the obligations of government to the governed in terms of response to gun violence. Data from individual interviews were subjected to selective and open coding followed by a thematic analysis procedure. The key findings from this study revealed that gun violence victims were able to differentiate between the intended use of firearms and its abuse. The victims associated the abuse of firearms to deteriorating social factors. In accordance with the classic premise of the social contract theory, the victims thought that the fight against gun violence needed to be led by the affected communities. The results of this study demonstrated what appeared to be a new rendition of theory, that instead of challenging local authorities, the victims opted for a leadership-based collaborative approach to eradicate the underlying social weaknesses that lead to gun violence. The conclusions drawn from this study may provide insight into appropriate measures that can aid in social uplift among affected communities, such as modifications to existing gun control laws to promote safety and efficiency and citizen collaboration toward improved regulation. Perceptions of People’s Experiences Regarding Gun Violence by Charles Ndikum MA, Chicago State University, 1996 BA, University of Minnesota, 1994 Dissertation Submitted in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy Criminal Justice Walden University May 2018 Dedication This dissertation is dedicated to my late dad James Manwun Ndikum and mom Philomina Bukwere Ndikum for always being there for me and having faith in my Godgiven gifts. They still have confidence every one of their kids and encourage them always to strive to do their best and leave the rest to the Lord. My late dad’s wish was to have one of his kids become a doctor. I just accomplished that for him. I am thankful to have you all as my biggest supporters. Your unending affection roused me to wrap up this study. I additionally need to commit this to my lovely wife Jacqueline Ndikum for enduring me for 22 years and my 4 kids: Terence N. Mofor, Charles E. Ndikum Jr., Ashley Ndikum and Desere Ndikum. My wife and my 4 kids are my most significant accomplishment, and with whom I am so proud. I cherish all of you with all my heart with all the support and love you have given me through this educational journey. It is also dedicated to my brothers and sisters, Victorine Mujang Tasog, Marcel Chinje Ndikum, Edith Shuri Chofor, Evelyn Lum McCurdy, Evangeline Che Ndikum and my late brother Denis Nji Ndikum. The support of the Manwun Ndikum family had given me tremendous strength and endurance when I was worn out and required a push. Much thanks to all of you for your endowments of confidence in God and love of education, it has furnished me with inspiration to satisfy my dreams. Acknowledgments I would like to thank my committee chairs, Dr. Frances Goldman, my committee member Dr. Clarence Williamson and John Walker for their guidance and support throughout this research. I would also like to thank Dr. Francis Tormen, Dr. Mathias Fobi, Dr. Muta Che, and Dr. Christopher Atang for all their advice, support, and words of wisdom. A big thank you also goes out to all my friends. I would like to personally recognize Henry Halle, Reginald McCurdy, Vivian Che, Forban Willibrod Bemah, Martial Etame, Sammy Etame, and Jacque Paul Etame, for all your support. Thank you to my academic adviser La Toya Johnson and the Social Behavioral and Public Policy Department for all their help and encouragement. Finally, thank you to my father-in-law Hon. Siegfried David Etame Massoma, Jacque Etame, Dr. Jacque Eckebil and my mother-in-law Theodora Etame for your consolation and support. Your support was a constant source of inspiration throughout this educational journey.

21 citations


Cites background from "What is Gun Control? Direct Burdens..."

  • ...However, some gun activists claimed that this runs counter to the Second Amendment’s protection for owning firearms (Blocher & Miller, 2016; Rosenthal, 2015; Stroebe, 2015), which is why the constitutionality debate arose....

    [...]

Journal ArticleDOI
Ian Ayres1
TL;DR: In this article, both partial and probabilistic bidding schemes were proposed to foster voluntary subpopulation participation in a range of public good applications (including sexual assault reporting and civil disobedience), and results from a series of randomized surveys of Internet respondents assessing the potential support for such subgroup “social contracting.
Abstract: Would you volunteer to pay a carbon tax if 99% of other Americans also volunteered to pay such a tax? Instead of traditional referenda, it is possible to structure plebiscites which would only bind a subset of the population (e.g., to be subject to a carbon tax) if that subset’s individually chosen conditions for participation are met. While provision-point mechanisms with exogenously set provision points have garnered billions of dollars in private contributions, a broader class of “social contracting” mechanisms exist that allow individuals to bid on their preferred provision points. This article shows how both partial and probabilistic bidding schemes might foster voluntary subpopulation participation in a range of public good applications (including sexual assault reporting and civil disobedience), and reports results from a series of randomized surveys of Internet respondents assessing the potential support for such subgroup “social contracting.” The respondent bids would, for example, support an equilibrium in which approximately 25% of the public would voluntarily commit to pay an additional 10% tax on electricity.

5 citations

Posted Content
TL;DR: The state action principle is a reasonable implementation of the basic distinction between public and private decision makers, and it is consistent with a plausible and persuasive, understanding of the particular constitutional rules that the critics maintain the state-action principle arbitrarily limits as mentioned in this paper.
Abstract: The article is an entry in a long-standing debate concerning the soundness of the state action principle in American constitutional law. According to that principle, exercises of private rights by private people are not subject to the constitutional rules that apply to the government, even though those private decisions are supported by the government's coercive power. For many decades, some scholars have argued that the principle is irrational and also inconsistent with the purpose of some of the constitutional norms that it limits, such as the First Amendment. The article defends the principle from its critics, a group that includes a number of important contemporary constitutional theorists. We maintain that the state action principle is a reasonable implementation of the Constitution's basic distinction between public and private decision makers, and that it is consistent with a plausible and we think persuasive, understanding of the particular constitutional rules that the critics maintain the state action principle arbitrarily limits.

4 citations

Journal Article
TL;DR: Waldman and DeBrabander as mentioned in this paper argue that the principal actor in America’s gun policy drama is not the Second Amendment or even guns, but what people fear.
Abstract: The principal actor in America’s gun policy drama isn’t the Second Amendment or even guns—it’s fear. In Michael Waldman’s brisk The Second Amendment: A Biography, the main character doesn’t appear until the end of the third act. “What matters,” Waldman tells us, “is what people fear.”1 In Firmin DeBrabander’s more academic, Do Guns Make Us Free? Democracy and the Armed Society, the star takes center stage from the outset. Chapter one is titled “The Culture of Fear.”2 But in both books, it was fear—what we fear, who we fear, and what we do with fear—that I lingered over, long after I read the last line. Waldman is president of the Brennan Center for Justice and a recurrent guest on cable news shows. His book is a breakneck tour of over two hundred years of constitutional law and politics, written in a beach-reading patter, and sprinkled with winking asides to his lay audience. (Popular politicians in the 1700s are ones you’d want to “‘drink a cider’ with.”3) His goal is to explain how a coalition of conservative think tanks, gun rights groups, Justice Department ideologues, and small government populists turned a poorly worded, historically and politically contested constitutional provision into an individual right. The champion in this narrative is the late Justice Antonin Scalia, the weapon is a method called “originalism,” and the prize is the Supreme Court’s decision in District of Columbia v. Heller.4 The politico-legal alchemy that transformed an individual right to keep and bear arms from a “fraud,” in the words of the late Chief Justice Warren Burger,5 into the

1 citations

References
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Journal ArticleDOI

356 citations

Journal Article
Reva B. Siegel1
TL;DR: Heller's decision in 2008 was viewed as the "triumph of originalism" as mentioned in this paper, and was viewed by many as the beginning of the "culture war" over the right to keep and bear arms.
Abstract: We should find the lost Second Amendment, broaden its scope and determine that it affords the right to arm a state militia and also the right of the individual to keep and bear arms. --Robert Sprecher, ABA prize winner, 1965 (1) [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. ... What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. --Justice Scalia, Lawrence v. Texas, 2003 (2) The Court's announcement in 2008 that the Second Amendment, (3) ratified in 1791, protects an individual's right to bear arms against federal gun control regulation was long awaited by many, long feared by others. What produced this ruling and what might it reveal about the character of our constitutional order? For many, constitutional law changed because the Court interpreted the Second Amendment in accordance with the understandings of the Americans who ratified it: Heller (4) marks the "Triumph of Originalism." (5) Others saw the case very differently, observing that the Court had interpreted the Second Amendment in accordance with the convictions of the twentieth-century gun-rights movement and so had demonstrated the ascendancy of the living Constitution. (6) The two accounts of the decision stand in some tension. One views Heller's authority as emanating from the deliberations of eighteenth-century Americans, while the other views the constitutional debates of twentieth-century Americans as decisive. What kind of authority did the Court exercise when it struck down the District of Columbia's handgun ban as violating the Second Amendment? On the originalism view, the Court is merely enforcing the judgments of eighteenth-century Americans, who, in an epochal act of constitutional lawmaking, ratified a Bill of Rights that forbids handgun bans such as the District of Columbia's. On the popular constitutionalism view, the Court itself is deciding whether handgun bans are consistent with the best understanding of our constitutional tradition; the determination is made in the present and responds to the beliefs and values of living Americans who identify with the commitments and traditions of their forbears. In the first case, the Court stands above the fray, disinterested, merely executing the commands of Americans long deceased. In the second case, the Court is normatively engaged in matters about which living Americans passionately disagree, enforcing its own convictions about the best understanding of a living constitutional tradition to which Heller contributes. On this account, Heller, through its originalism, participates in what Justice Scalia refers to in his Lawrence dissent as "the culture war." (7) Relating these two competing accounts of the opinion, this Comment shows how Heller's originalism enforces understandings of the Second Amendment that were forged in the late twentieth century through popular constitutionalism. It situates originalism's claim to ground judicial decisionmaking outside of politics in the constitutional politics of the late twentieth century, and demonstrates how Heller respects claims and compromises forged in social movement conflict over the right to bear arms in the decades after Brown v. Board of Education. (8) The Comment offers this reading of the opinion in two steps. Part I begins by examining the temporal locus of authority in the Heller opinion itself. In Heller, the dissenters insist the Second Amendment is concerned primarily with militia and military matters, whereas the majority reads the amendment as codifying an individual right of self-defense that enables citizens to protect themselves, their families, and their homes against crime. …

59 citations

Journal ArticleDOI
TL;DR: In the absence of more information from the Court, the authors identify plausible legal arguments for the next few rounds of litigation and assess the stakes for social welfare, and conclude that some of the most salient legal arguments after Heller have little or no likely consequence for public welfare based on available data.
Abstract: What will happen after Heller? We know that the Supreme Court will no longer tolerate comprehensive federal prohibitions on home handgun possession by some class of trustworthy homeowners for the purpose of, and perhaps only at the time of, self-defense. But the judiciary could push further, if nothing else by incorporating Heller's holding into the Fourteenth Amendment and enforcing it against states and municipalities. In fact, the majority opinion offered little guidance for future cases. It presented neither a purely originalist method of constitutional interpretation nor a constraining doctrinal framework for evaluating other regulation - even while it gratuitously suggested that much existing gun control is acceptable. In the absence of more information from the Court, we identify plausible legal arguments for the next few rounds of litigation and assess the stakes for social welfare. We conclude that some of the most salient legal arguments after Heller have little or no likely consequence for social welfare based on available data. For example, the looming fight over local handgun bans - an issue on which we present original empirical data - seems largely inconsequential. The same can be said for a right to carry a firearm in public with a permit. On the other hand, less prominent legal arguments could be quite threatening. Taxation and regulation targeted especially at firearms might be presumptively disfavored by judges in the future, along the lines of free speech doctrine. This could have serious consequences. In addition, Second Amendment doctrine might generally dampen enthusiasm for innovative regulatory responses to the problem of gun violence. The threat of litigation may inhibit policy experimentation ranging from micro-stamping on shell casings, to pre-market review of gun design, to so-called personalized firearms, and beyond.

57 citations

01 Jan 2018
Abstract: Perceptions of People’s Experiences Regarding Gun Violence by Charles Ndikum MA, Chicago State University, 1996 BA, University of Minnesota, 1994 Dissertation Submitted in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy Criminal Justice Walden University May 2018 Abstract Gun violence is a problem in many communities across the United States that are characterized by poverty, and lack of quality education, yet little is known about the experiences of victims of gun violence in these places. The purpose of this phenomenological study was to better understand how people who have been victims of gun violence perceive problems and solutions associated with the production, distribution, and ownership of guns. Based on the theoretical framework of Rousseau’s social contract theory, this study explored gun violence from the perspectives of 10 victims whose lives were directly or indirectly affected by gun violence to understand how victims perceive the obligations of government to the governed in terms of response to gun violence. Data from individual interviews were subjected to selective and open coding followed by a thematic analysis procedure. The key findings from this study revealed that gun violence victims were able to differentiate between the intended use of firearms and its abuse. The victims associated the abuse of firearms to deteriorating social factors. In accordance with the classic premise of the social contract theory, the victims thought that the fight against gun violence needed to be led by the affected communities. The results of this study demonstrated what appeared to be a new rendition of theory, that instead of challenging local authorities, the victims opted for a leadership-based collaborative approach to eradicate the underlying social weaknesses that lead to gun violence. The conclusions drawn from this study may provide insight into appropriate measures that can aid in social uplift among affected communities, such as modifications to existing gun control laws to promote safety and efficiency and citizen collaboration toward improved regulation.Gun violence is a problem in many communities across the United States that are characterized by poverty, and lack of quality education, yet little is known about the experiences of victims of gun violence in these places. The purpose of this phenomenological study was to better understand how people who have been victims of gun violence perceive problems and solutions associated with the production, distribution, and ownership of guns. Based on the theoretical framework of Rousseau’s social contract theory, this study explored gun violence from the perspectives of 10 victims whose lives were directly or indirectly affected by gun violence to understand how victims perceive the obligations of government to the governed in terms of response to gun violence. Data from individual interviews were subjected to selective and open coding followed by a thematic analysis procedure. The key findings from this study revealed that gun violence victims were able to differentiate between the intended use of firearms and its abuse. The victims associated the abuse of firearms to deteriorating social factors. In accordance with the classic premise of the social contract theory, the victims thought that the fight against gun violence needed to be led by the affected communities. The results of this study demonstrated what appeared to be a new rendition of theory, that instead of challenging local authorities, the victims opted for a leadership-based collaborative approach to eradicate the underlying social weaknesses that lead to gun violence. The conclusions drawn from this study may provide insight into appropriate measures that can aid in social uplift among affected communities, such as modifications to existing gun control laws to promote safety and efficiency and citizen collaboration toward improved regulation. Perceptions of People’s Experiences Regarding Gun Violence by Charles Ndikum MA, Chicago State University, 1996 BA, University of Minnesota, 1994 Dissertation Submitted in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy Criminal Justice Walden University May 2018 Dedication This dissertation is dedicated to my late dad James Manwun Ndikum and mom Philomina Bukwere Ndikum for always being there for me and having faith in my Godgiven gifts. They still have confidence every one of their kids and encourage them always to strive to do their best and leave the rest to the Lord. My late dad’s wish was to have one of his kids become a doctor. I just accomplished that for him. I am thankful to have you all as my biggest supporters. Your unending affection roused me to wrap up this study. I additionally need to commit this to my lovely wife Jacqueline Ndikum for enduring me for 22 years and my 4 kids: Terence N. Mofor, Charles E. Ndikum Jr., Ashley Ndikum and Desere Ndikum. My wife and my 4 kids are my most significant accomplishment, and with whom I am so proud. I cherish all of you with all my heart with all the support and love you have given me through this educational journey. It is also dedicated to my brothers and sisters, Victorine Mujang Tasog, Marcel Chinje Ndikum, Edith Shuri Chofor, Evelyn Lum McCurdy, Evangeline Che Ndikum and my late brother Denis Nji Ndikum. The support of the Manwun Ndikum family had given me tremendous strength and endurance when I was worn out and required a push. Much thanks to all of you for your endowments of confidence in God and love of education, it has furnished me with inspiration to satisfy my dreams. Acknowledgments I would like to thank my committee chairs, Dr. Frances Goldman, my committee member Dr. Clarence Williamson and John Walker for their guidance and support throughout this research. I would also like to thank Dr. Francis Tormen, Dr. Mathias Fobi, Dr. Muta Che, and Dr. Christopher Atang for all their advice, support, and words of wisdom. A big thank you also goes out to all my friends. I would like to personally recognize Henry Halle, Reginald McCurdy, Vivian Che, Forban Willibrod Bemah, Martial Etame, Sammy Etame, and Jacque Paul Etame, for all your support. Thank you to my academic adviser La Toya Johnson and the Social Behavioral and Public Policy Department for all their help and encouragement. Finally, thank you to my father-in-law Hon. Siegfried David Etame Massoma, Jacque Etame, Dr. Jacque Eckebil and my mother-in-law Theodora Etame for your consolation and support. Your support was a constant source of inspiration throughout this educational journey.

21 citations

Book ChapterDOI
11 Mar 2014

17 citations

Trending Questions (1)
Amercan civil religon and gunlaws

The provided paper does not discuss American civil religion or gun laws.