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Hastings Law Journal

Abstract

This Note begins by offering a new prospective to the ongoing debate about the nature of the right protected by the Second Amendment, and concludes by proposing two possible tests and applying them to two provisions of the California Penal Code, striking one and upholding the other, demonstrating that a judicially-enforced Second Amendment would not be "fatal in fact" to all gun control legislation. The Author also critiques the Court's current incorporation doctrine, namely the Court's failure to identify when the "fundamental right" inquiry is to be made, the Court's interchangeable use of "American scheme of liberty" and "Anglo-American scheme of justice," and the Court's status quo inquiry when interpreting an anti-majoritarian document.

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