General public debate about the Second Amendment has focused almost exclusively on the regulation of firearms. After Heller and McDonald, the scope of the Second Amendment’s protection has been hotly contested. One area of the Second Amendment that has been less discussed is the decisional rules that would govern non-firearms and levels of protection based on location. This Comment proposes two Second Amendment Constitutional decisional rules. Broadly, this Comment suggests that the “common use” test for “arms” should be modified for the development of new arms, such as non-lethal weapons, that are subject to the Second Amendment. The proposed “common use for the self-defense purpose” test attempts to add more precision by tying the weapon to the individual right to self-defense. Second, this Comment argues that a decisional rule that adjusts for location and arm type will comport with the objectives of the Second Amendment, i.e., self-defense, and provide an additional means for self-defense outside the home. This argument is supported by Court precedent and practical objectives that increase the ability of individuals to defend themselves outside the home and simultaneously attempt to decrease the lethality of these confrontations.
Second Amendment Decision Rules, Non-Lethal Weapons, and Self-Defense,
97 Marq. L. Rev. 853
Available at: http://scholarship.law.marquette.edu/mulr/vol97/iss3/8