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Journal Article


Ulrich MR. Cardozo Law Rev. 2022; 43(4): 1379-1440.


(Copyright © 2022, Cardozo School of Law)






The constitutional question then is whether a state is authorized to take proactive measures--such as limiting, but not eliminating, firearms in public--or whether they must rely on reactive criminal enforcement to address gun violence.

In District of Columbia v. Heller, the Supreme Court declared a constitutionally protected individual right to keep and bear arms. Subsequently, the scope of the right has been hotly debated, resulting in circuit splits and lingering questions about what, exactly, the right entails. Despite these splits, the Court has denied certiorari to the myriad gun cases to land on its doorstep. But the balance of the Court has shifted and, so too, has its willingness to hear these cases. Among the most pressing questions in Second Amendment jurisprudence is the constitutionality of public carry restrictions. With the Court set to rule on Second Amendment protections beyond the home, the issue demands scrutiny not simply for the outcome but for how the Justices consider the question in light of a growing gun violence epidemic. This Article argues against a rights-as-trumps approach that focuses on history, instead using a population-based perspective to shift the focus from the scope of the right and properly place the rights and liberties of the general public infto the equation. This Article uses public health law principles, such as social determinants, balancing the protection of the public with safeguarding individual rights, and empirics, to examine the true burden on self-defense in comparison to the state's ability to protect the wider community. In doing so, this analysis proposes a constitutional approach anchored in the realities of our time as opposed to competing historical research methodologies, which more appropriately respects both the individual right declared in Heller and the state's interest in protecting its citizens from a public health crisis.

Language: en


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