Law Commons^™

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Lyman Trumbull: Author Of The Thirteenth Amendment, Author Of The Civil Rights Act, And The First Second Amendment Lawyer, David B. Kopel

David B Kopel

Illinois Senator Lyman Trumbull is not well-known today, but he is one of the "Founding Sons" who transformed the nation and the Constitution before, during, and after the Civil War. He wrote the Thirteenth Amendment, the first Freedmen's Bureau Bill, and the Civil Rights Act. He sponsored the first federal statutes which actually freed slaves. As Chair of the Senate Judiciary Committee and later as a civil rights attorney, he did more to protect Second Amendment rights--including taking a test case to the U.S. Supreme Court (Presser v. Illinois)--than did any other lawyer or legislator in the century after Jefferson …

Definitions, Religion, And Free Exercise Guarantees, Mark Strasser

Mark Strasser

The First Amendment to the United States Constitution protects the free exercise of religion. Non-religious practices do not receive those same protections, which makes the ability to distinguish between religious and non-religious practices important. Regrettably, members of the Court have been unable to agree about how to distinguish the religious from the non-religious—sometimes, the implicit criteria focus on the sincerity of the beliefs, sometimes the strength of the beliefs or the role that they play in an individual’s life, and sometimes the kind of beliefs. In short, the Court has virtually guaranteed an incoherent jurisprudence by sending contradictory signals with …

The History Of Firearm Magazines And Magazine Prohibitions, David B. Kopel

David B Kopel

In recent years, the prohibition of firearms magazines has become an important topic of law and policy debate. This Article details the history of magazines and of magazine prohibition.

Because ten rounds is an oft-proposed figure for magazine bans, Part I of the Article provides the story of such magazines from the earliest sixteenth century onward. Although some people think that multi-shot guns did not appear until Samuel Colt invented the revolver in the 1830s, multi-shot guns predate Col. Colt by over two centuries.

Especially because the Supreme Court’s decision in District of Columbia v. Heller considers whether arms are …

Understanding The Second Amendment, Corey A. Ciocchetti

Corey A Ciocchetti

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” These might be the most awkwardly assembled twentyseven words in American political history. Much like reading James Joyce’s FINNEGANS WAKE or William Faulkner’s THE SOUND AND THE FURY, the Second Amendment takes repeated review to grasp even basic understanding.1 Though few teachers would accept such garbled prose from students, early Americas accepted this so-called sentence as part of our Bill of Rights -- the most important protections granted to states and individuals from …

The Great American Gun Violence Lottery, Erin Ryan

Erin Ryan

Reflecting on the one-year anniversary of the Sandy Hook elementary school shooting, this very short essay compares the experience of gun violence in America to the dystopian game of chance in Shirley Jackson’s classic American short story, “The Lottery.” With references to the role of Constitutional law, media consumption, and cultural change, it urges an available, common-sense middle ground on gun policy. The essay was first published by the American Constitution Society (Dec. 17, 2013) and later appeared in the Huffington Post (Dec. 20, 2013).

The Second Amendment: A Reasonable Interpretation In The 21st Century, Kaleb D. Wingate

Kaleb D Wingate

The interpretation of the Second Amendment has been the subject of increased litigation throughout the last several years. Challenges to the Second Amendment and related legislation tend to create polarized responses from various political organizations. These responses, commonly in the form of votes in our legislative branch, impede the progress of reasonable measures to reduce instances of violence across the country. Addressing gun violence in our country must be a goal which exceeds the interest of any political affiliate or lobby. This article suggests reasonable measures our government can take to address the growing problems with gun violence in the …

Guns, Violence, And Schools: Policies To Prevent And Respond To School Shootings, Mark A. Velez

Mark A. Velez

The United States continues to deal with school shootings. The most recent massacre occurred in 2012 at the Sandy Hook Elementary School in Newtown, Connecticut. Several strategies have been used to try and prevent such tragedies from happening. These strategies have included tough gun laws, gun-free school zones, and updating school policies and infrastructure. However, despite these, and other, strategies, school shootings continue to occur. Unfortunately, when a school shooting occurs, school personnel and children are left helpless until the police arrive or the shooter decides to end the rampage. During this time many lives may be lost. Therefore, it …

Guns, Violence, And School Shootings: A Policy Change To Arm Some Teachers And School Personnel, Mark A. Velez

Mark A. Velez

The United States continues to deal with school shootings. The most recent massacre occurred in 2012 at the Sandy Hook Elementary School in Newtown, Connecticut. Several strategies have been used to try and prevent such tragedies from happening. These strategies have included tough gun laws, gun-free school zones, and updating school policies and infrastructure. However, despite these, and other, strategies, school shootings continue to occur. Unfortunately, when a school shooting occurs, school personnel and children are left helpless until the police arrive or the shooter decides to end the rampage. During this time many lives may be lost. Therefore, it …

2nd Amendment: The Right To Keep & Bear Arms -- Teaching D.C. V. Heller, Corey A. Ciocchetti

Corey A Ciocchetti

The D.C. v. Heller case is an incredible vehicle to teach about the United States Constitution. The case revolves around the Second Amendment right to keep and bear arms and shines a spotlight on Originalism as a theory of Constitutional interpretation. These slides show how the case evolved from the District Court to the Supreme Court. They also teach the facts of the case and the different opinions on both sides of the debate. In the end, readers will learn a great deal about the Second Amendment and its application to federal and state/local gun control laws as well as …

A Fighting Chance For Outlaws: Strict Scrutiny Of North Carolina's Felony Firearms Act, Matthew Jordan Cochran

Matthew Jordan Cochran

This comment presents a substantive due process challenge to North Carolina's Felony Firearms Act (codified at N.C. Gen. Stat. § 14‑415.1), which, as modified in 2004, criminalizes owning a firearm—even in your own home—if you've ever been convicted of a felony. The discussion is very comprehensive.

I begin with an assumption (which by now appears supported by Second Amendment jurisprudence and post-Heller commentary) that individuals have a fundamental right of self-defense, and proceed to demonstrate that the Act deprives persons of that right without being narrowly tailored toward furthering any compelling state interest. For example, the statute does not …

The Right To Arms In The Living Constitution, David B. Kopel

David B Kopel

This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.

"Living constitutionalism" should be distinguished from "dead constitutionalism." Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect …

State Court Standards Of Review For The Right To Keep And Bear Arms, David B. Kopel, Clayton Cramer

David B Kopel

Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means. Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms). Even when formally applying "reasonableness," many courts have used reasonableness as a …

The Keystone Of The Second Amendment: Quakers, The Pennsylvania Constitution, And The Questionable Scholarship Of Nathan Kozuskanich, David B. Kopel, Clayton Cramer

David B Kopel

Historian Nathan Kozuskanich claims that the Second Amendment-like the arms provision of the 1776 Pennsylvania Constitution-is only a guarantee of a right of individuals to participate in the militia, in defense of the polity. Kozuskanich’s claim about the Second Amendment is based on two articles he wrote about the original public meaning of the right to arms in Pennsylvania, including the 1776 and 1790 Pennsylvania constitutional arms guarantees.

Part I of this Article provides a straightforward legal history of the right to arms provisions in the 1776 Pennsylvania Constitution and of the 1790 Pennsylvania Constitution. We examine Kozuskanich’s claims about …

Heller’S Constitutional Dialogue: How The Supreme Court’S Choice Of Language In District Of Columbia V. Heller Is Instructive For Anticipating Future Interpretations Of The Second Amendment., Jason E. Niehaus

Jason E Niehaus

This article was an analysis of the language used by the Supreme Court in its decision in District of Columbia v. Heller to predict (ultimately correctly) the Court's later ruling regarding the Incorporation of the Second Amendment.

Unraveling Judicial Restraint: Guns, Abortion, And The Faux Conservatism Of J. Harvie Wilkinson, Iii, Nelson Lund, David B. Kopel

David B Kopel

Writing in the Virginia Law Review, a distinguished federal judge maintains that true conservatives are required to substitute principles of judicial restraint for an inquiry into the original meaning of the Constitution. Accordingly, argues J. Harvie Wilkinson, III, the Supreme Court's Second Amendment decision in District of Columbia v. Heller is an activist decision just like Roe v. Wade: "[B]oth cases found judicially enforceable substantive rights only ambiguously rooted in the Constitution's text." In this response, we challenge his critique.

Part I shows that Judge Wilkinson's analogy between Roe and Heller is untenable. The right of the people to keep …

The Natural Right Of Self-Defense: Heller's Lesson For The World, David B. Kopel

David B Kopel

The U.S. Supreme Court's decision in District of Columbia v. Heller constitutionalized the right of self-defense, and described self-defense as a natural, inherent right. Analysis of natural law in Heller shows why Justice Stevens' dissent is clearly incorrect, and illuminates a crucial weakness in Justice Breyer's dissent. The constitutional recognition of the natural law right of self-defense has important implications for American law, and for foreign and international law.

Tench Coxe And The Right To Keep And Bear Arms, 1787-1823, David B. Kopel

David B Kopel

Tench Coxe, a member of the second rank of this nation's Founders and a leading proponent of the Constitution and the Bill of Rights, wrote prolifically about the right to keep and bear arms. In this Article, the authors trace Coxe's story, from his early writings in support of the Constitution, through his years of public service, to his political writings in opposition to the presidential campaigns of John Adams and John Quincy Adams. The authors note that Coxe described the Second Amendment as guaranteeing an individual right, and believed that an individual right to bear arms was necessary for …