You Can Build a Wall or Deport Them, But You Can’t Take Away Their Guns: An Analysis of Why Non-U.S. Citizens are “The People” Under the Second Amendment
About: This article is published in FIU Law Review.The article was published on 2016-01-01 and is currently open access. It has received 3 citations till now.
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TL;DR: In 2010, the United States Supreme Court will hear oral arguments for McDonald v. City of Chicago to determine whether the Second Amendment is incorporated through the Fourteenth Amendment and applies directly to the states as discussed by the authors.
Abstract: In early 2010, the United States Supreme Court will hear oral arguments for McDonald v. City of Chicago to determine whether the Second Amendment is incorporated through the Fourteenth Amendment and applies directly to the states. Coming less than two years after the Court’s landmark decision in District of Columbia v. Heller, the issues affecting the Fourteenth Amendment are two-fold. First, the Court will determine whether the Second Amendment is incorporated through the Fourteenth Amendment’s Due Process Clause. Second, the Court will determine if the Second Amendment applies to the states through the Fourteenth Amendment’s Privileges and Immunities Clause. While the “privileges and immunities” issue will receive the overwhelming attention of the legal community, what will seemingly be ignored is the history of the Anglo-American tradition of “having arms,” for its history may prove crucial as to whether the Second Amendment is incorporated through either the Fourteenth Amendment’s Due Process or Privileges and Immunities Clauses.
4 citations
TL;DR: In this article, the authors predict the Second Amendment framework that the Heller majority has in mind or will embrace, using the text of the Heller decision and the constitutional jurisprudence of the majority.
Abstract: In District of Columbia v. Heller, the Supreme Court squarely confronted the meaning of the Second Amendment and held that it protected an individual right to keep and bear a firearm for lawful purposes, such as self-defense in the home. Simultaneously, however, the Heller Court refused to set a framework for reviewing Second Amendment claims, leaving the issue open for another day. This issue is crucial: since Heller, lower federal courts have been deluged by Second Amendment claims based on the case, yet such courts have very little guidance as to how to review such claims. This Comment argues that courts have more guidance than they may believe. Using the text of Heller and the constitutional jurisprudence of the Heller majority, this Comment predicts the Second Amendment framework that the Heller majority has in mind or will embrace. Specifically, it articulates a two-pronged test: whether the challenged regulation (1) falls within the scope of the right protected by the Second Amendment, and (2) satisfies a deferential form of strict scrutiny.This Comment received the 2010 Morgan Prize for most outstanding student note submitted to the Vanderbilt Law Review.
4 citations
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TL;DR: In 2010, the United States Supreme Court will hear oral arguments for McDonald v. City of Chicago to determine whether the Second Amendment is incorporated through the Fourteenth Amendment and applies directly to the states as discussed by the authors.
Abstract: In early 2010, the United States Supreme Court will hear oral arguments for McDonald v. City of Chicago to determine whether the Second Amendment is incorporated through the Fourteenth Amendment and applies directly to the states. Coming less than two years after the Court’s landmark decision in District of Columbia v. Heller, the issues affecting the Fourteenth Amendment are two-fold. First, the Court will determine whether the Second Amendment is incorporated through the Fourteenth Amendment’s Due Process Clause. Second, the Court will determine if the Second Amendment applies to the states through the Fourteenth Amendment’s Privileges and Immunities Clause. While the “privileges and immunities” issue will receive the overwhelming attention of the legal community, what will seemingly be ignored is the history of the Anglo-American tradition of “having arms,” for its history may prove crucial as to whether the Second Amendment is incorporated through either the Fourteenth Amendment’s Due Process or Privileges and Immunities Clauses.
4 citations
TL;DR: In this article, the authors predict the Second Amendment framework that the Heller majority has in mind or will embrace, using the text of the Heller decision and the constitutional jurisprudence of the majority.
Abstract: In District of Columbia v. Heller, the Supreme Court squarely confronted the meaning of the Second Amendment and held that it protected an individual right to keep and bear a firearm for lawful purposes, such as self-defense in the home. Simultaneously, however, the Heller Court refused to set a framework for reviewing Second Amendment claims, leaving the issue open for another day. This issue is crucial: since Heller, lower federal courts have been deluged by Second Amendment claims based on the case, yet such courts have very little guidance as to how to review such claims. This Comment argues that courts have more guidance than they may believe. Using the text of Heller and the constitutional jurisprudence of the Heller majority, this Comment predicts the Second Amendment framework that the Heller majority has in mind or will embrace. Specifically, it articulates a two-pronged test: whether the challenged regulation (1) falls within the scope of the right protected by the Second Amendment, and (2) satisfies a deferential form of strict scrutiny.This Comment received the 2010 Morgan Prize for most outstanding student note submitted to the Vanderbilt Law Review.
4 citations