Document Type

Article

Publication Date

2-27-2017

Abstract

Who should the state punish Why Should punishment be proportional This article surveys in the context of these fundamental criminallaw questions the Second Amendment's constitutional history and jurisprudence A vast body of evidence shows that the framers of both the Second and Fourteenth Amendments intended to protect the individual's right to keep and carry arms for protection against both governmental and private aggressionYet courts unwilling to allow disfavored groups the means of selfdefense or fearing being blamed for criminal firearm activity have failed to enforce the right to bear arms to any meaningful extent After the Civil War the US Supreme Court read portions of the Fourteenth Amendment out of the Constitution In the twentieth century despite the Court's rejection of both the proposition that the Second Amendment right belonged only to states and the proposition that government had plenary power to limit arms possession lower courts refused to enforce any limit on governmental power over the right to keep and bear arms After iDistrict of Columbia v Heller ideclared with no lack of clarity that the Second Amendment protected an individual arms right lower courts nonetheless continue flagrantly to defy the Supreme Court's mandateThis judicial abdication has allowed the continued legislative overcriminalization of entirely peaceable citizens that the state has no reason to have on its radar The vast majority of gun laws are imalum prohibitumi possessory offenses that often provide greater penalties than heinous imalum in sei offenses This legislative overreach and judicial underenforcement has been enabled by the systematic demonization of both firearm owners and certain types of firearms This suggests that modern gun control rather than a genuine attempt to reduce crime is all too often an effort to create moral panic

First Page

17

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