What is Gun Control? Direct Burdens, Incidental Burdens, and the Boundaries of the Second Amendment

61 Pages Posted: 30 Apr 2016

See all articles by Joseph Blocher

Joseph Blocher

Duke University School of Law

Darrell A. H. Miller

Duke University School of Law

Date Written: 2016

Abstract

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

Suggested Citation

Blocher, Joseph and Miller, Darrell A. H., What is Gun Control? Direct Burdens, Incidental Burdens, and the Boundaries of the Second Amendment (2016). 83 University of Chicago Law Review 295 ; Duke Law School Public Law & Legal Theory Series No. 2016-27. Available at SSRN: https://ssrn.com/abstract=2772592

Joseph Blocher

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Darrell A. H. Miller (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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