Defeasible Second Amendment Rights: Conceptualizing Gun Laws That Dispossess Prohibited Persons

83 Law & Contemporary Problems 53 (2020)

Duke Law School Public Law & Legal Theory Series No. 2020-55

19 Pages Posted: 28 Aug 2020 Last revised: 13 Jan 2021

See all articles by Jacob D. Charles

Jacob D. Charles

Pepperdine University - Rick J. Caruso School of Law

Date Written: July 22, 2020

Abstract

This Article analyzes the debate over laws prohibiting firearm possession for categories of people, discussing the theoretical foundations for the competing views and the levers the law has to relieve over-broad categorization. Part II describes the traditional two-part coverage-protection framework in Second Amendment litigation and questions whether classes of people should be treated differently than classes of arms or activities. Part III argues that people-based prohibitions should generally, although not exclusively, be considered protection issues. It describes the theoretical and practical reasons for assuming that the Second Amendment provides broad coverage to many classes of people and explains how presumptions and burdens of proof help guide the protection inquiry. Finally, Part IV explores the different approaches circuit courts have taken when analyzing people-based prohibitions and argues in favor of the Sixth Circuit’s approach. In the end, though most people come within the scope of the Second Amendment, triggering conduct or circumstances (for example, certain types of criminal convictions or mental illness adjudications) can make individual’s rights defeasible.

Suggested Citation

Charles, Jacob D., Defeasible Second Amendment Rights: Conceptualizing Gun Laws That Dispossess Prohibited Persons (July 22, 2020). 83 Law & Contemporary Problems 53 (2020), Duke Law School Public Law & Legal Theory Series No. 2020-55, Available at SSRN: https://ssrn.com/abstract=3657657

Jacob D. Charles (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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