New Criminal Law, Vol. 13, p. 449, 2010
36 Pages Posted: 16 Oct 2010
Date Written: 2010
This article reflects on District of Columbia v. Heller and proposes a new footing and limit to the right to bear arms: a person’s inalienable right to self defense. Self-defense is a natural right embedded in personhood and is antecedent to the social contract that sets up a state. This right consequently remains with the person following the establishment of the state and allows her to use proportional force necessary for resisting aggression. The right to bear arms derives from the constitutional right to self-defense, which merits protection under both the Ninth and Fourteenth Amendments. This instrumental nexus calls for a dynamic determination of the scope of the right to bear arms under the Second Amendment, along Heller’s lines. The scope of the right to bear arms should be defined by an ordinary citizen’s necessity to use arms in defending herself proportionally against criminals. This criterion will allow courts to deliver both predictable and balanced decisions that align with originalism.
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