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Who should the state punish? Why? Should punishment be proportional? This article surveys, in the context of these fundamental criminal-law 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 aggression.

Yet courts, unwilling to allow disfavored groups the means of self-defense, 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 U.S. 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 District of Columbia v. Heller declared 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 mandate.

This 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 malum prohibitum possessory offenses that often provide greater penalties than heinous malum in se offenses. This legislative overreach and judicial underenforcement has been enabled by the systematic demonization of both gun 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.

GW Paper Series

GWU Law School Public Law Research Paper No. 2017-10; GWU Legal Studies Research Paper No. 2017-10

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