University of Southern California

"McDonald Does Dallas": How Obscenity Laws on Hard-Core Pornography Can End the Nation's Gun Debate

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Note by John Korevec
From Volume 88, Number 1 (September, 2014)

88 S. Cal. L. Rev. 165

The Sandy Hook shooting marks December 14, 2012 as a tragic day in American history. Unfortunately, Newtown, Connecticut is not alone when it comes to such suffering. Between December 14, 2012 and February 12, 2014, there have been an astonishing twenty-eight lives lost over the course of forty-four school shootings. In 2011 alone, almost half a million people were victims of “crime[s] committed with a firearm.” The problem of gun violence has been recognized as so severe that some have even analogized gun violence to an “epidemic.”

On November 21, 2013, less than one year after Sandy Hook, a seventy-year-old woman found herself in the midst of a home invasion. Initially in the pursuit of prescription drugs, two men, wearing camouflage and ski masks, entered the woman’s home. When she ran to the bedroom for her gun, one of the men followed and “threw the woman to the bed and got on top of her.” Then, the woman “pointed the gun at him and said ‘I’ll blow your head off.’” The two intruders ran for the door, and the woman was treated for only minor injuries.

The dialogue on guns in the United States tends to fall toward one of two extremes—“everyday, guns kill good people” or “everyday, guns kill bad people.” The debate becomes a battle of values between two groups with two very different, yet very passionately held worldviews. Even legal scholarship cannot immunize itself from devolving into normative discussions founded on what the law should be, rather than providing analysis of what the law actually is. Unfortunately, a more targeted discussion arising directly out of Second Amendment jurisprudence is particularly difficult, as the U.S. Supreme Court has provided very limited guidance on the types of gun regulations that can pass constitutional muster.

Since the Supreme Court decided District of Columbia v. Heller and McDonald v. City of Chicago, over seven hundred civil and criminal matters containing Second Amendment issues have arisen.Without adequate guidance, lower courts have attempted to craft their own tests, often using analytical methodologies that go directly against the instructions of the Supreme Court. This Note employs a system of “constitutional borrowing” to craft a workable test for jurists, legislators, and advocates that complies with the limitations of the Heller and McDonald decisions, while still providing enough legislative flexibility to deal with the many unique gun issues throughout the United States.

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