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Judging History: How Judicial Discretion In Applying Originalist Methodology Affects The Outcome Of Post-Heller Second Amendment Cases, Mark Anthony Frassetto 2021 William & Mary Law School

Judging History: How Judicial Discretion In Applying Originalist Methodology Affects The Outcome Of Post-Heller Second Amendment Cases, Mark Anthony Frassetto

William & Mary Bill of Rights Journal

This Article aims to assess how the federal appellate courts have applied the originalist methodology in Second Amendment cases in the decade since Heller. It reviews how courts’ varying approaches to historical analysis—specifically, how courts have addressed what historical period to look to, how prevalent a historical tradition must be, and whether to address history at a high or low level of generality—can drastically affect the outcome of cases. As Justice Scalia acknowledged in McDonald, “Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to ...


Second-Class Rights And Second-Class Americans: Applying Carolene Products Footnote Four And The Court’S Enforcement Of Nationally Accepted Norms Against Local Outlier Jurisdictions In Second Amendment Enforcement Litigations, Mark W. Smith 2021 The Catholic University of America, Columbus School of Law

Second-Class Rights And Second-Class Americans: Applying Carolene Products Footnote Four And The Court’S Enforcement Of Nationally Accepted Norms Against Local Outlier Jurisdictions In Second Amendment Enforcement Litigations, Mark W. Smith

Catholic University Law Review

In the years since deciding District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), the Supreme Court has largely abandoned the role of protecting American gun owners despite the text, history, and tradition of the Second Amendment’s right to keep and bear arms. The Supreme Court has failed to use the jurisprudential tools at its disposal to ensure that the fundamental right to arms is protected as robustly as other enumerated constitutional rights. This failure is an acute one. And it is unjustifiable across a wide variety of jurisprudential methodologies, from originalism to the non-originalist ...


Guns And Their Place In The Us, Jacob Garibaldi 2021 Kutztown University

Guns And Their Place In The Us, Jacob Garibaldi

English Department: Research for Change - Wicked Problems in Our World

Creating this paper was a wicked problem due to how deep of an issue the gun debate is in the United States. In the discussion of guns, there is a side that wants to abolish them, a side that believes in the right of the second amendment, and a middle ground where we can have guns in society with added in legal measures. Surely enough, those that are in opposition to firearms are persuaded due to the acts of violence and crime committed with them. Then there are those that use them in a way of self-defense. Through this paper ...


The Odious Intellectual Company Of Authority Restricting Second Amendment Rights To The “Virtuous”, Royce de R. Barondes 2021 University of Missouri School of Law

The Odious Intellectual Company Of Authority Restricting Second Amendment Rights To The “Virtuous”, Royce De R. Barondes

Faculty Publications

To the woes of the victims of American over-criminalization, we can add deprivation of the suitable tools for self-defense during national emergency and civil unrest. Federal law disarms “unlawful users” of controlled substances (including medical marijuana), and imposes a permanent firearms ban on substantially all those with prior felony convictions. A notable exception is made for white-collar criminals with felony violations of antitrust and certain business practice statutes.

The constitutionality of these restrictions typically is founded on the view that one is tainted as “non-virtuous” for any serious criminal conviction, which includes any felony conviction. Using extensive sampling, this article ...


The Militia: A Definition And Litmus Test, Marcus Armstrong 2021 St. Mary's University

The Militia: A Definition And Litmus Test, Marcus Armstrong

St. Mary's Law Journal

The United States Supreme Court, in its decision in Perpich v. Department of Defense, ruled that members of the National Guard are “troops” as that word is used in the Constitution. In doing so, the Court negated a long-standing, but obsolete, definition of the militia. However, this move away from an obsolete definition of the militia posed considerable difficulties that the Court was unable to rectify in its Perpich decision. In this Article, the author hopes to help rectify these difficulties by proposing four necessary characteristics that define the militia: first, the militia is a military force; second, the militia ...


Under Fire: Evaluating As-Applied Challenges To Disarming The Involuntarily Committed, Zachary S. Halpern 2021 Boston College Law School

Under Fire: Evaluating As-Applied Challenges To Disarming The Involuntarily Committed, Zachary S. Halpern

Boston College Law Review

18 U.S.C. § 922(g)(4) prohibits previously committed persons from purchasing or possessing firearms. On March 11, 2020, in Mai v. United States, the U.S. Court of Appeals for the Ninth Circuit assumed, without deciding, that § 922(g)(4) burdens the Second Amendment rights of individuals no longer living with mental illness. It then agreed with the Sixth Circuit Court of Appeals—the lone other circuit to reach the question—in holding that intermediate scrutiny applies. Unlike the Sixth Circuit, however, the Ninth Circuit concluded that the provision survives intermediate scrutiny. The Third Circuit also considered an ...


Enlightenment Thinker Cesare Beccaria And His Influence On The Founders: Understanding The Meaning And Purpose Of The Second Amendment’S Right To Keep And Bear Arms, Mark W. Smith 2021 Pepperdine University

Enlightenment Thinker Cesare Beccaria And His Influence On The Founders: Understanding The Meaning And Purpose Of The Second Amendment’S Right To Keep And Bear Arms, Mark W. Smith

Pepperdine Law Review

Often hailed as the father of modern criminology, the writings of the prominent eighteenth-century Italian thinker Cesare Beccaria were deeply influential on the American Founders’ views of criminal law and theory. Courts, lawyers, and legal observers recently have begun to appreciate Beccaria’s influence, including on such timely topics as the pardon power, the theory of criminal sentencing, and the moral implications of the death penalty. But another topic Beccaria wrote about with great influence has been largely neglected: the individual right to keep and bear arms. This article seeks to correct this gap in the current scholarship surrounding Beccaria ...


Second Amendment Background Principles And Heller's Sensitive Places, Adam B. Sopko 2021 William & Mary Law School

Second Amendment Background Principles And Heller's Sensitive Places, Adam B. Sopko

William & Mary Bill of Rights Journal

Judges and commentators have widely acknowledge that history enjoys a privileged status in Second Amendment cases, but its precise role is undertheorized and rarely controls case outcomes. In particular, courts have been unable to decide "sensitive places" cases-- challenges to location-based gun laws-- in a manner that adheres to Supreme Court precedent because existing Second Amendment doctrine lacks a test for sensitive places cases that uses history and tradition in a principled way. This Article proposes a solution to address that problem.

An untapped source of guidance is the Court's takings jurisprudence. Interpreting their respective constitutional provisions, Justice Scalia ...


Locked, Loaded, And Registered: The Feasibility And Constitutionality Of A Federal Firearms Registration System, Dylan J. McDonough 2021 Candidate for Juris Doctor, Notre Dame Law School, Class of 2021

Locked, Loaded, And Registered: The Feasibility And Constitutionality Of A Federal Firearms Registration System, Dylan J. Mcdonough

Notre Dame Law Review

This Note is organized as follows. Part I outlines the evolving history of federal firearm legislation and its relevance to registration. Part I also presents promising state-level (or equivalent) systems of gun registration that may inform a like federal policy. Part II establishes the Supreme Court’s Second Amendment jurisprudence and its potential application to federal firearms registration. Part III then details a lower court’s application of Supreme Court precedent to existing firearm registration laws. Finally, this Note concludes by articulating how Congress can and why it must institute a federal firearms registration system.


The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum 2021 WIlliam S. Boyd School of Law, UNLV

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole ...


Table Of Contents, Seattle University Law Review 2021 Seattle University School of Law

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents


The City’S Second Amendment, Dave Fagundes, Darrell A. H. Miller 2021 Duke Law School

The City’S Second Amendment, Dave Fagundes, Darrell A. H. Miller

Faculty Scholarship

Cities are increasingly common sites of contestation over the scope and meaning of the Second Amendment. Some municipalities have announced their opposition to firearm restrictions by declaring themselves Second Amendment sanctuaries. Others have sought to curtail gun violence by passing restrictive local regulations. Still others have responded to police violence by moving to demilitarize, disarm, or even disband their police forces. The burgeoning post-Heller legal literature, though, has largely overlooked the relationship between cities, collective arms bearing, and the Second Amendment. In sum, to what extent do cities themselves have a right to keep and bear arms? This Article tackles ...


Going Gunless, Dru Stevenson 2020 Brooklyn Law School

Going Gunless, Dru Stevenson

Brooklyn Law Review

Firearm policy in the United States is subject to longstanding political gridlock. Up to now, most of the legal academic literature has focused on the constitutionality of various—or any—regulations regarding firearm possession, sales, or usage. This article inverts the problem and proposes a system for voluntary registration and certification of nonowners, those who want to waive or renounce their Second Amendment rights as a matter of personal conviction. The proposed system is analogous to both the registration of conscientious objectors during wartime conscriptions, and the newer suicide prevention laws whereby individuals can add their names to a do-not-sell ...


Enough Is As Good As A Feast, Noah C. Chauvin 2020 Seattle University School of Law

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ...


Second Amendment Sanctuaries, Shawn E. Fields 2020 Northwestern Pritzker School of Law

Second Amendment Sanctuaries, Shawn E. Fields

Northwestern University Law Review

The term “sanctuary” has long expressed a sympathy for immigrants’ rights and resistance to federal immigration enforcement. Recently, the word has become associated with another divisive political topic, as local governments have begun declaring themselves “Second Amendment Sanctuaries” in defiance of statewide gun-control measures they deem unconstitutional. This gun-rights resistance movement not only flips the political script on the nature of sanctuaries, but also presents important and challenging questions about local–state power sharing, the proper scope of “subfederal commandeering,” and the role of coordinate branches in constitutional decision-making. This Article provides the first scholarly treatment of Second Amendment Sanctuaries ...


The Gun Subsidy, Christian Turner, Justin C. Van Orsdol 2020 University of Georgia School of Law

The Gun Subsidy, Christian Turner, Justin C. Van Orsdol

Buffalo Law Review

No abstract provided.


Table Of Contents, Seattle University Law Review 2020 Seattle University School of Law

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents


Corpus Linguistics And Gun Control: Why Heller Is Wrong, Kyra Babcock Woods 2020 Brigham Young University Law School

Corpus Linguistics And Gun Control: Why Heller Is Wrong, Kyra Babcock Woods

BYU Law Review

No abstract provided.


Ethical Issues With Lawyers Openly Carrying Firearms, Dru Stevenson 2020 South Texas College of Law

Ethical Issues With Lawyers Openly Carrying Firearms, Dru Stevenson

St. Mary's Journal on Legal Malpractice & Ethics

Ethical concerns arise when lawyers openly carry firearms to adversarial meetings related to representation, such as depositions and settlement negotiations. Visible firearms introduce an element of intimidation, or at least the potential for misunderstandings and escalation of conflicts. The adverse effects of openly carried firearms can impact opposing parties, opposing counsel, the lawyer’s potential clients, witnesses, and even judges and jurors encountered outside the courtroom. The ABA’s Model Rules of Professional Conduct in their current form include provisions that could be applicable, such as rules against coercion and intimidation, but there is no explicit reference to firearms. Several ...


Examining How Stricter Firearm Laws Lower Mortality Rates In The United States, Amanda Kelley 2020 University of North Georgia

Examining How Stricter Firearm Laws Lower Mortality Rates In The United States, Amanda Kelley

Honors Theses

Examining How Stricter Firearm Laws Lower Mortality Rates in the United States

A Thesis Submitted to the Faculty of the University of North Georgia In Partial Fulfillment Of the Requirements for the Degree Bachelor of Science in Criminal Justice with Forensics Concentration With Honors


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