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Gostin on the Right to Bear Arms

By Lawrence Solum

Lawrence O. Gostin (Georgetown University Law Center - O'Neill Institute for National and Global Health Law) has posted The Right to Bear Arms: A Uniquely American Entitlement (Journal of the American Medical Association, Vol. 304, No. 13, pp. 1485-86, 2010) on SSRN. Here is the abstract:

In District of Columbia v. Heller the Supreme Court held that individuals have a constitutional right to own firearms, notably to keep a loaded handgun at home for self-protection. The historic shift announced by Heller was the recognition of a personal right, rather than a collective right tied to state militias. In McDonald v. Chicago, the Supreme Court ? in a familiar 5-4 ideological split ? held that the 2nd Amendment applies not only to the federal government, but also to state and local gun control laws. In his dissent, Justice Stevens predicted that ?the consequences could prove far more destructive to our nation?s communities and constitutional structure.?

Justice Alito, writing for the Court in McDonald, found that the 2nd Amendment is ?fundamental to our system of ordered liberty,? justifying its extension to the states. Why is the right to bear arms ?fundamental,? when it appears that firearms ? designed to cause injury or death ? are antithetical to social order and public safety? Firearms cannot be intrinsic to liberty because they have a unique potential to cause serious injury and death, posing a distinctive threat to social order. Unlike other liberties, carrying firearms directly puts the gun owner, family, and community at risk. ?Your interest in bearing a firearm may diminish my interest in being and feeling safe from armed violence,? wrote Stevens. Possessing a functioning handgun at home, moreover, does not enhance the right to self-defense. A homeowner?s gun is substantially more likely to kill the gun owner or a family member (through accidental firing or suicide) than it is to harm an intruder.

Going forward, state and local legislatures must remain determined in the face of litigation threats as they craft laws that comply with McDonald while also safeguarding the populace against gun violence. If not, firearm injury and death statistics will show the cost we have paid for McDonald.

Full post as published by Legal Theory Blog on November 09, 2010 (boomark / email).