"Loaded Questions: A Suggested Constitutional Framework for the Right
to Keep and Bear Arms" (
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2066941 )
Minnesota Law Review, Vol. 96, p. 101, 2012 (
http://papers.ssrn.com/sol3/PIP_Journal.cfm?pip_jrnl=163283 )
REID GOLDEN (
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1848723 ),
Minnesota Law Review
Email: [email protected]
Recent developments in the interpretation of the Second Amendment left
unanswered questions regarding the scope of the constitutional guarantee
of armed self-defense. Most importantly, neither District of Columbia v.
Heller nor McDonald v. City of Chicago set a firm standard for
determining the constitutionality of gun-control laws. This
determination is of critical importance because — perhaps more directly
than any other fundamental right — the Second Amendment implicates
philosophical questions of societal versus individual safety. Strong
constitutional protections for the Second Amendment tend to prioritize
the right of responsible citizens to rely on themselves, rather than the
government, for their own protection and tend to force the government to
address the problem of gun violence through punishment rather than
prevention. Deference to the power of the State to regulate firearms
allows government more latitude to prevent violence, which is certainly
superior to punishment, but tends to leave the individual dependent on
the questionable ability (or even responsibility) of government to
protect them. Regulation, almost by definition, often has the
unfortunate tendency to disproportionately impact those unlikely to
commit a crime of violence with a firearm. This Note proposes that gun
regulations that create a substantial likelihood that individuals will
be unable to defend themselves when faced with serious, imminent danger
should be subjected to strict scrutiny. On the other hand, gun
regulations that tend to improve societal safety without significantly
obstructing an individual’s ability to defend him or herself should be
given more judicial latitude in the form of intermediate scrutiny.
****************************************************************************************************************
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]
http://law.hamline.edu/constitutional_law/joseph_olson.html
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