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Hastings Law Journal

Authors

Alan Brownstein

Abstract

The Supreme Court's opinion in Heller raises numerous questions. One of these is whether Heller requires the constitutionalization of self-defense decisions in tort and criminal law. Put simply, if the Second Amendment protects an individual's right "to keep and bear" the means to exercise self-defense, as Heller holds, can the Court avoid extending some level of constitutional protection to the act of self-defense itself? Answering this question in the affirmative leads to other issues. The justification of self-defense is grounded on an ad hoc evaluation of the reasonableness of the defendant's conduct. That analysis may be appropriate for tort or criminal law purposes, but it is arguably much more problematic as a constitutional standard.

Heller may influence tort law in other ways. Gun owners may be held to be negligent if they store a firearm in a location where a child gains access to it and injures himself or others with the weapon. However, many of the same safeguards that prevent a child from obtaining a firearm may make the weapon less available for immediate self-defense. Thus, state courts may need constitutional guidance as to how negligence lawsuits should be resolved in order to avoid the substantial burdening of a gun owner's Second Amendment rights through civil liability.

This Article also critically examines the Heller majority's use of an originalist methodology to support its conclusions, and its failure to adequately address core questions regarding the development of Second Amendment doctrine.

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