Desperate anti-gunners look for shelter. "Guns as Smut: Defending the Home-Bound Second Amendment" ( http://hq.ssrn.com/Journals/RedirectClick.cfm?url=http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1364759&partid=47512&did=43158&eid=59185902 ) Columbia Law Review, Forthcoming ( http://hq.ssrn.com/Journals/RedirectClick.cfm?url=http://papers.ssrn.com/sol3/PIP_Journal.cfm?pip_jrnl=96189&partid=47512&did=43158&eid=59185902 )
DARRELL A. H. MILLER ( http://hq.ssrn.com/Journals/RedirectClick.cfm?url=http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1107305&partid=47512&did=43158&eid=59185902 ), University of Cincinnati College of Law Email: [email protected] In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees a personal, individual right to keep and bear arms. However, the Court offered little guidance to legislatures and lower courts on the scope of that right. Although the Court cautioned that the Second Amendment right is not boundless, precisely whether a person may now carry a gun in a car, sports stadium, or a children's petting zoo was left for "future evaluation." This Article offers a solution, an admittedly provocative one. Treat the right to own a firearm under the Second Amendment the same way we treat the right to own adult obscenity under the First: a robust right to possess it in the home, subject to restriction by elected government officials everywhere else. While this Article's proposal is sure to stir controversy, it is grounded in conventional constitutional analysis. The Court in Heller sent signals that the First and Second Amendments are cousins, and may be subject to similar limitations. In construing the Second Amendment, Justice Scalia argued that the right to firearms is not restricted to eighteenth century weapons, any more than the First Amendment is limited to eighteenth century forms of communication. Conversely, the majority cautioned that "the [Second Amendment] right [to keep and bear arms] [is] not unlimited, just as the First Amendment right of free speech [is] not." Just as the First Amendment has excluded from its protection certain categories of speech -- "obscenity, libel, and disclosure of state secrets" -- certain categories of "bearing arms" may be excluded from the Second Amendment as well. Moreover, this "home-bound" Second Amendment rationalizes the disparate norms that animate the Court's privacy jurisprudence. It also situates the Second Amendment within a tradition that gives constitutional weight to a spatial and conceptual distinction between the home and the public sphere. Finally, this proposal has the benefit of simplicity. The Court has already marked boundaries for an individual right to adult obscenity in the home. Those boundaries are surprisingly applicable to the individual right to bear arms, and far easier to administer. The Article progresses as follows: Part II tracks Heller's litigation history, beginning with the origin of the District's firearm regulation, the concerted effort by Second Amendment defenders to use Heller as a test case, the disposition in the trial and appellate courts, and the ultimate, albeit partial, resolution of the issues in the United States Supreme Court. Part III offers a frankly prescriptive argument that the Second Amendment right to keep and bear arms should extend no further than the front porch. Any other regulation by federal, state or local government should be presumptively constitutional. This Part explains how this rule closely mirrors the Supreme Court's existing First Amendment doctrine concerning the right to possess adult obscenity in the home. Part IV offers a multifaceted justification for this approach. First, it demonstrates how a home-bound Second Amendment fits neatly within a doctrinal framework that puts a premium on privacy and protection of the home. Second, it explores the textual and historical treatment of bearing arms in public, and concludes that the support is so hopelessly ambiguous and fractured that the only prudent approach is one of judicial deference to the political branches. Third, it demonstrates how this rule is practical, politically feasible and preferable to other approaches that courts could adopt. The article concludes with an acknowledgment of the difficulties with this approach and suggests a direction for future doctrinal development. ************************************************** Professor Joseph Olson, J.D., LL.M. o- 651-523-2142 Hamline University School of Law (MS-D2037) f- 651-523-2236 St. Paul, MN 55113-1235 c- 612-865-7956 [email protected]
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