What is Gun Control? Direct Burdens, Incidental Burdens, and the Boundaries of the Second Amendment
61 Pages Posted: 30 Apr 2016
Date Written: 2016
Particularly in places with few recognizable gun control laws, “gun neutral” civil and criminal rules are an important but often-unnoticed basis for the legal regulation of guns. The burdens that these rules impose on the keeping and bearing of arms are at times significant, but they are also incidental, which raises hard questions about the boundaries between constitutional law, regulation, and legally enforceable private ordering. Does the Second Amendment apply to civil suits for trespass, negligence, and nuisance? Does the Amendment cover gun-neutral laws of general applicability like assault and disturbing the peace? In the course of addressing these practical questions and the broader conceptual challenges that they represent, this Article fashions analytic tools that may be useful to a wide range of constitutional problems.
Keywords: Second Amendment, firearms, First Amendment, marketplace, constitutional law, constitution, gun control, guns, Heller, McDonald, free speech, self defense
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