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Note: Loaded Questions: A Suggested Constitutional Framework for the Right to Keep and Bear Arms

By Reid Golden. Full text here.

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 vastly superior to punishment, but tends to leave the individual dependent on the questionable ability (or even responsibility) of government to protect them. Regulation 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. While 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.