Gun control

About: Gun control is a research topic. Over the lifetime, 1211 publications have been published within this topic receiving 16516 citations. The topic is also known as: firearms control & gun law.

Toward a Future, Wiser Court: A Blueprint for Overturning District of Columbia v. Heller

Abstract: Introduction I. The Power of Dissenting Opinions II. Heller A. Majority Opinion B. Justice Stevens's Dissenting Opinion III. Landmark Cases from Future, Wiser Courts A. From Racism to Equality: Plessy and Brown 1. Plessy v. Ferguson 2. Brown v. Board of Education B. From Repression to Sexual Freedom: Bowers and Lawrence 1. Bowers v. Hardwick 2. Lawrence v. Texas C. Other Illustrative Cases from Future Courts IV. Factors Leading to a Decision Being Overturned A. Retrograde Decision in Face of Strong Social Movement B. Strength and Guidance of Prior Dissent C. Composition of the Court at the Time of Decision D. The Degree of Consensus Among the Court V. Blueprint for Overturning Heller Conclusion INTRODUCTION Justice John Paul Stevens recently bantered to Time Magazine that, if he could fix one thing about the American judicial system, it would be to make all of his dissents into majority opinions. (1) Banter aside, he stressed that if he could choose only one of his dissents to turn into a majority opinion, it would be his dissent in District of Columbia v. Heller. (2) Specifically, he said that he "would change the interpretation of the Second Amendment. The Court got that quite wrong. Gun policy should be handled by legislatures and by states, not by federal judges appointed for life." (3) With that same hope, it is rumored that, during a lecture to the Harvard Club of Washington, D.C., Justice Ruth Bader Ginsburg expressed her strong desire that Justice Stevens' dissenting opinion in Heller will become the majority opinion of "a future, wiser Court." (4) Heller is still the subject of national debate and is one of the more controversial decisions from the Roberts Court. The Court issued its pivotal 5-4 ruling on June 26, 2008, (5) finding for the first time that the Second Amendment conferred an individual right to posses firearms unrelated to service in a well-regulated militia. (6) In its analysis, the Court concluded that "central" to the Second Amendment is the natural right to self-defense, and by extension, the right to possess handguns for self-defense within the home. (7) In finding so, the Court struck down a decades-old D.C. law that banned handgun possession and required that firearms in the home be stored safely. (8) Justice Stevens issued one of two dissenting opinions. (9) In his dissent, he argued passionately that the majority rendered "a dramatic upheaval in the law" and decided the case on "a strained and unpersuasive reading" of the Second Amendment. (10) He emphasized that the Second Amendment does not contain any "statement of purpose related to the right to use firearms for hunting or personal self-defense." (11) He also stressed that the Court's ruling overturned long-standing precedent announced in United States v. Miller, which held that the "obvious purpose" of the Second Amendment was to "assure the continuation and render possible the effectiveness of" the state militia. (12) The decision in Heller raised the obvious question of its potential impact on existing gun control laws and whether they will stand up to a Second Amendment challenge. (13) But few have questioned whether a "future, wiser Court" will simply reverse Heller. Our Article provides a blueprint for how Justice Ginsberg's hope may be realized. In Part I, we discuss the influence and guidance that dissenting opinions may provide to future, wiser Courts. In Part II, we analyze Heller, paying particular attention to the tensions that the conflicting majority and dissenting opinions raise. In Part III, we analyze landmark cases from future, wiser Courts that overturned stale or decidedly wrong precedent. In Part IV, we draw from these examples in order to evaluate the conditions that lead to overturning a Supreme Court case. Finally, in Part V, we apply the framework to Hellerand suggest possible ways to author its reversal. …

The (New) New Judicial Federalism: State Constitutions and the Protection of the Individual Right to Bear Arms

Abstract: Introduction I. A Fine Mess: The Post-Heller/McDonald World A. What Is the Scope of the Second Amendment Post-Heller? B. Uncertainty Regarding the Scope of the Second Amendment Is Disappointing Whether One Is Pro-Gun Rights or Pro-Gun Control C. Heller and McDonald Have Left Open Many More Questions Than They Have Answered 1. What Is the Proper Standard of Review for Gun Control Laws? 2. Which Laws, if Any, Limiting Gun Rights Are Constitutional? II. Can State Constitutions Offer Better Clarity About Gun Rights? A. State Constitutions and the Right to Keep and Bear Arms B. What Would a Particularly Pro-Gun Rights State Constitutional Provision Look Like? C. Potential Sources of Federal Law that Could Counteract State Constitutional Provisions D. Current Federal Laws that Would Limit the Ability for a State to Grant Broad Gun Rights Through Its State Constitution E. If a State Did Amend Its Constitution, What Deference Would Other States Have to Pay to Constitutional Provisions of Sister States on, E.g., Carry Laws? Conclusion INTRODUCTION Although the Supreme Court's decisions in District of Columbia v. Heller (1) and McDonald v. City of Chicago (2) were hailed as watershed moments for the gun rights movement as they resolved two major uncertainties, these cases also created scores of additional important questions regarding the scope of the protections that the Second Amendment affords. No one currently has any firm idea about who the Second Amendment protects, what the Second Amendment protects, where those protections exist, and--to the extent that they do exist--why they exist. Without question, we are at the very beginning of Second Amendment jurisprudence; the precise rights guaranteed by the Second Amendment will be debated, litigated, appealed, interpreted, redebated, re-litigated and re-appealed for the next generation. There likely will be important Supreme Court opinions written on the Second Amendment by Justices who currently are still in high school, choosing prom dresses, or learning how to drive. In the face of this uncertainty, an old idea, formerly championed by quite a different side of the political spectrum, may be of some use to the pro gun lobby in its desire to expand--or at least define the scope of--gun rights. A consequence of Heller's holding that the right to bear arms is an individual as opposed to a collective right is that state constitutions can at least theoretically confer greater protections of individual gun rights than the federal Constitution--though state constitutions cannot go below the guarantees afforded by the Second Amendment. (3) The idea that the federal Constitution creates a floor but not a ceiling for individual rights was called "the new judicial federalism" when it took root in the mid-twentieth century. (4) This Article, which is based on my portion of the panel discussion at the Fordham Urban Law Journal Symposium on Gun Control and the Second Amendment on March 9, 2012, begins with an overview of the post-Heller/McDonald world, arguing that there is no consensus on what rights the Second Amendment confers and analyzing the possible scopes of the Second Amendment. The second part of this Article examines the new judicial federalism to see if there is any potential for state constitutions to define, in a more substantial way, which rights are conferred by state constitutional gun rights provisions; and examines how, in the face of the Supremacy Clause, a state could confer greater individual gun rights than the federal Constitution. I. A FINE MESS: THE POST-HELLER/MCDONALD WORLD Although the Supreme Court's ruling in Heller has been analyzed ad nauseam in the popular press, in law review articles, and by the lower courts, (5) there are a few key points that bear repeating. …

Arrested! How Gun-Control Issues Have Placed a Halt on Juvenile Justice Reform

Abstract: \"The fact is, guns have converted school-yard fights into school-yard murder.\" \"I do not believe that gun control laws work. In fact, I believe gun control laws can actually have a negative effect.\

Heterodoxy in Conflict Resolution Case Study of Fire Arms in Pakistan

Abstract: "The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." Thomas JeffersonIntroductionSmall arms are one of the gravest problems for Pakistan with a steady rise in graph since the Russian Invasion of Afghanistan. Under Regan Doctrine(Phillips, 1986), almost all factions of Afghan resistance to Soviets aggression were armed in order to make the war costly, effective and seek quicker results. Influx of AK 47 (Kalashnikov) in Pakistan has not only challenged the cultural values of the nation but shaken human security to the core. The problem got further compounded by lost weapons containers transiting for NATO and US through Pakistan(Rana, 2011).Certain traditional connexions are also associated to possession of weapons in certain parts of Pakistan. Nation owns estimated 20 million small arms out of which almost 7 million are licensed(Khan, 2013). Under the Supreme Court orders Sindh Government launched a whopping Rupees 100 Million anti-illegal weapons campaign and in one month were successful in confiscating only 18 weapons(Khan, 2013). A 2011 Suo Motu notice by Supreme Court of Pakistan pointed out 180,956 licenses of nonprohibited bore issued by the Government of Sindh whereas 46,114 licenses of prohibited bore and 1,202,470 licenses of non-prohibited bore issued by the Ministry of Interior, Government of Pakistan(Choudhry, 2011). From 2008 to 2013, total of 342 Members of National Assembly (MNAs) received 69,473 Prohibited Bore licences - almost 203 weapons per law abiding legislator(Sadiq, 2013). The gravity of the problem yearns for heterodoxy in policy formulation. This paper aspires to explore the options available in Pakistan so that the state grip on issue of weapons is tightened and practically germane.Theory of Societal ChangeCurrent law and order situation in Pakistan can be attributed to societal trauma witnessed by the nation in past almost four decades. Multiple factors have left lasting imprint on cultural and traditional values and brought about changes that were unexpected and undesirable such as Kalashnikov Culture. Excessive display and ownership of small arms by few and others desiring to do same has literally created classes of "have" and "have-nots". This deprivation gap between the two is increasing due to easy access, political affiliations as well as exposure to previously hard to acquire technologies and instruments of conflict. Pakistani society has witnessed more than its fair share of disturbance, lawlessness and terrorism not to mention over flow of weapons.Paris Roland in his book At Wars End has argued, that any process of transformation of a society which has just emerged out of civil war into a liberal market economy and well reformed democracy will be extremely tumultuous and institutional capacity needs to be built before such reforms can be ordained(Paris, 2004) It is necessary to develop democratic social institutions before aspiring for lasting peace in societies which have just emerged out of a trauma. The democratic process can only be sustained if it is ready to harness existential conflict energy and transform it into positive vigor for lasting peace.The fragility and sensitivity of the issue of gun control in Pakistan needs to be reflected in the light of aforementioned theoretical aspects of societal vicissitudes. As proposed by the Theory of Social Change, institution building and long term planning is the most plausible solution for Pakistan. With second consecutive democratically elected government in place, emphasis in Pakistan needs to be shifted towards institutional capacity building and inclusive policy formulation. Like any other society emerging out of prolonged trauma, Pakistan merits deliberate efforts on part of government to institutionalize new reforms over a long period of time or else it will risk to further destabilize the society and increase violence. …

History, Heller, and High-Capacity Magazines: What is the Proper Standard of Review for Second Amendment Challenges?

Abstract: Introduction I. The Contours of Modern Second Amendment Jurisprudence: From Miller to Heller A. Second Amendment Jurisprudence Before 2008 B. District of Columbia v. Heller. A Novel Approach C. Heller's Limits: Presumptively Lawful Regulations and the Common Use Test D. Complications Posed by the Common Use Test II. Conflicting Views on the Proper Standard of Review and the Unique Challenges Posed by High-Capacity Magazine Legislation A. Expanding Heller to the States: McDonald v. City of Chicago B. Evolution of the Common Use Test After McDonald C. Popular Option: The Marzzarella Two-Step D. Reframing the Question: Judge Kavanaugh Dissents E. Recent Judicial Approval of the Kavanaugh Approach F. The Puzzle of High-Capacity Magazine Restrictions III. Text, History, and Tradition, Not a Two-Step Test A. The Kavanaugh Approach Permits Increased Judicial Flexibility B. The Kavanaugh Approach Creates More Predictable Results C. The Kavanaugh Approach Offers Significant Ease of Use D. The Kavanaugh Approach Is More Consistent with Supreme Court Precedent E. Applying the Kavanaugh Approach to High-Capacity Magazine Restrictions F. Applying the Marzzarella Two-Step Test to High Capacity Magazine Restrictions G. High-Capacity Magazine Restriction Hypothetical Illustrate the Superiority of the Kavanaugh Approach H. Unresolved Problems Surrounding the Kavanaugh Approach Conclusion INTRODUCTION In 1996, Daniel Chovan was convicted in California state court of a misdemeanor that did not involve a gun. (1) After inflicting corporal injury on his spouse, Cheryl Fix, he was sentenced to 120 days in jail and three years of supervised release. (2) Although Chovan did not use a firearm in committing the offense, he was banned from possessing a gun for the rest of his life under a federal statute applicable only to persons convicted of misdemeanor domestic violence crimes. (3) Chovan challenged the law as an unconstitutional infringement of his Second Amendment rights. (4) In evaluating Chovan's case, the Ninth Circuit was faced with a problem: what standard of review should apply to Chovan's constitutional claim? (5) Absent clear guidance from the Supreme Court, the Ninth Circuit was left to choose its own standard. (6) Even though the Ninth Circuit found that the federal statute substantially burdened Chovan's Second Amendment rights, it opted to grant the federal government moderate deference, and applied intermediate scrutiny. (7) After examining the regulation through this lens, the Ninth Circuit concluded that the statute was constitutional. (8) Thus, without any approval from the Supreme Court regarding its methodology, the Chovan court both independently selected a standard of review for a constitutional challenge and upheld severely burdensome legislation by virtue of its choice. Chovan is not an isolated example of constitutional confusion. In fact, it is simply the most recent example of the legal debate surrounding the proper standard of review for the Second Amendment. The proper analytical framework for statutes challenged as an unconstitutional infringement on individual Second Amendment rights after District of Columbia v. Heller has emerged as both a hotly contested and imprecise zone of jurisprudence for lower courts. (9) As an increasing number of Second Amendment cases wend through the federal system, these courts have been faced with two types of challenged gun statutes. This Note defines those two types as statutes that "prohibit" and those that "limit." "Prohibiting" statutes constitute blanket bans on certain weapons or materials, and include regulations like the District of Columbia (District) handgun ban struck down in Heller. (10) "Limiting" statutes create regulations on certain types of weapons or related activities, such as concealed carry laws or purchase restrictions. …