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Hastings College of Law




The two landmark gun rights cases, District of Columbia v. Heller and McDonald v. City of Chicago, came down in 2008 and 2010, respectively. In the decade that has followed, two things have become abundantly clear. First, these cases provide little clarity about the nature and scope of Second Amendment rights, resulting in chaos and circuit splits in the lower courts. Second, growing empirical evidence has revealed that, in the background of the debate on individual constitutional rights, a serious gun violence epidemic is intensifying around the country. In one corner, gun rights advocates worry that increased firearm regulation will relegate the Second Amendment to a “second-class” right. In the other, gun control advocates are desperate for a solution to address this growing public health crisis. The role of history in addressing a modern problem intensifies the tension. But historically grounded solutions to this contemporary challenge exist in public health law. However, public health law precedent remains perplexingly unexplored by the courts. This Article considers a public health approach to prevention in the context of public health law jurisprudence and Second Amendment rights. It does so by making use of a well-established framework that allows courts to engage in a balanced analysis that accounts for the state’s interest in protecting public health and safety while still guarding individual rights. This novel approach bridges the gap between the empirical public health data and constitutional theory, offering clarity for the uncertainty currently plaguing academics, policymakers, and courts.

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