HW 3/10

The Front and Back Ends of Domestic Violence Murder: An Exploration of the Avenues for Change and an Introduction of the Domestic Violence-Murder Doctrine
Citation metadata

(1.) Britny’s Law, 2017 N.C. Sess. Laws 94 (codified as amended at N.C. GEN. STAT. [section] 14-17 (2018)); Family Still Pushing for Stricter Domestic Violence Punishments as ‘Britny’s Law’ Takes Effect, WRAL-TV (Nov. 30, 2017), http://www.wral.com/ family-still-pushing-for-stricter-domestic-violencepunishments-as-britny-s-law-takes-effect/17152551/ [https://perma.cc/ZPZ6-893T].

(2.) Stephen Puryear, BRITNY’S LAW: NC Senate Bill 600–Make Domestic Violence Homicide a First Degree Offense, Change.org, https://www.change.org/p/ north-carolina-state-senate-britny-s-lawnc-senate-bill-600-make-domestic-violence-homicide-a-first-degree-offense [https://perma.cc/8X9KAAU2] (petition to the North Carolina legislature).

(3.) See N.C. GEN. STAT. [section] 14-17(b) (2017), amended by Britny’s Law, 2017 N.C. Sess. Laws 94; N.C. SENTENCING & POLICY ADVISORY COMM’N, STRUCTURED SENTENCING: TRAINING AND REFERENCE MANUAL 4 (2014), https://www.nccourts.gov/assets/documents/publications/sstrainingmanual_14.pdf.

(4.) See Angelica Alvarez, Fuquay-Varina Domestic Violence Murder Spawns Push for ‘Britny’s Law,’ ABC 11 (Apr. 8, 2017), http://abcll.com/news/domestic-violence-murder-spawns-push-for-britnys-law/1846757/ [https://perma.cc/K4ZY-EGFW].

(5.) See id.

(6.) 2017 N.C. Sess. Laws 94.

(7.) Craig Jarvis, Domestic Violence History Is Now Grounds for First-Degree Murder Charges, NEWS & OBSERVER (July 11, 2017, 6:19 PM), http://www.newsobserver.com/news/politics-government/statepolitics/article 160743064.html [https://perma.ee/4BYG-WV4U]

(8.) See id.

(9.) Though intimate partner violence is a significant problem for both men and women, this Note focuses mainly on male abusers who eventually kill their female intimate partners. This focus is appropriate because research suggests that female murder victims are six times more likely to have been killed by an intimate partner than males. ALEXIA COOPER & ERICA L. SMITH, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, HOMICIDE TRENDS IN THE UNITED STATES, 1980-2008: ANNUAL RATES FOR 2009 AND 2010, at 10 (2011), https://www.bjs.gov/content/pub/pdf/htus8008.pdf. Where available, this Note provides corresponding statistics for male victims in footnotes.

(10.) See 730 III. Comp. Stat. 5/5-4.5-15(a), 5/5-4.5-30(d), 5/5-5-3(c)(2) (2018) (failing to list second-degree murder as an offense that disqualifies the convicted from probation).

(11.) N.C. GEN. STAT. [section] 14-17(al) (2018). Related crimes include the violation of a domestic violence protective order, communicating a threat, stalking, cyberstalking, and domestic criminal trespass. Id.

(12.) Domestic Violence Fight Gets Boost from Britny’s Law, 53 THE BUTNER CREEDMOOR 44, at 3B (Aug. 10, 2017), http://granvilleonline.com/wp-content/uploads/2018/01/08102017.pdf.

(13.) See Mark Belcher, Orchard Park Woman Victim of Murder-Suicide, WIVB-TV (Mar. 30, 2016, 10:03 AM), http://wivb.com/2016/03/30/boyfriend-girlfriend-murder-suicide-under-investigation-byorchard-park-pd/ [https://perma.ee/ T6K9-9HX4],

(14.) See id.; Tim Fenster, Taking Aim at Guns and Domestic Violence, NIAGARA GAZETTE (Jan. 7, 2018), http://www.niagara-gazette.com/news/local_news/taking-aim-at-guns-and-domestic-violence/article_ cde98b14-e3d5-5341-963e-cdb42da6c094.html [https://perma.cc/B27A-QUT5].

(15.) See Fenster, supra note 14.

(16.) See id.

(17.) Andrew Cuomo (@NYGovCuomo), TWITTER (Dec. 13, 2017, 10:56 AM), https://twitter.com/NYGovCuomo/status/940973594468904960 [https://perma.cc/4CET-VQ5R].

(18.) This term will be used interchangeably with “intimate partner homicides” throughout this Note.

(19.) See, e.g., BERNICE ROBERTS KENNEDY, DOMESTIC VIOLENCE: A.K.A. INTIMATE PARTNER VIOLENCE (IPV) 48 (2007) (“Domestic violence is the least reported sexual crime in the United States and it is the single greatest cause of injury to women.”); PATRICIA TJADEN & NANCY THOENNES, U.S. DEP’T OF JUSTICE, EXTENT, NATURE, AND CONSEQUENCES OF INTIMATE PARTNER VIOLENCE 55 (2000); Kara Beth Stein, Chapter 857 Prioritizes Domestic Violence Victim Safety, 38 MCGEORGE L. REV. 175, 175 (2007) (“[D]omestic violence ‘is believed to be the most common yet least reported crime in our nation.'”); see also Rob Gilhooly, Domestic Violence: ‘Abuse Was All I Knew,’ JAPAN TIMES (May 7, 2016), https://www. japantimes.co.jp/life/2016/05/07/lifestyle/domestic-violence-abuse-knew/#.W4_qDZNKh0s [https://perma. cc/A4G5-GMV6] (“[D]omestic violence remains the violent crime least reported to police, even though it accounts for around one-fifth of all violent crimes.”); Jane Martinson, Report Reveals ‘Extensive’ Violence Against Women in EU, THE GUARDIAN (Mar. 4, 2014,7:02 PM), https://www.theguardian.com/world/2014/ mar/05/violence-against-women-eu [https://perma.cc/YP2J-NGCA] (“Violence against women is one of the least reported crimes. Only 14% of women reported their most serious incident of partner violence to the police….”).

(20.) Emiko Petrosky et al., Racial and Ethnic Differences in Homicides of Adult Women and the Role of Intimate Partner Violence-United States, 2003-2014, 66 MORBIDITY & MORTALITY WKLY. REP. 741 (2017), https://www.cdc.gov/mmwr/volumes/66/wr/pdfs/mm6628.pdf.

(21.) See Camila Domonoske, CDC: Half of AH Female Homicide Victims Are Killed by Intimate Partners, NPR (July 21, 2017, 2:22 PM), https://www.npr.org/sections/thetwo-way/2017/07/21/ 538518569/cdc-half-of-all-female-murder-victims-are-killed-by-intimate-partners [https://perma.cc/ 8FEU-WSWR].

(22.) See EVE S. BUZAWA ET AL., RESPONDING TO DOMESTIC VIOLENCE: THE INTEGRATION OF CRIMINAL JUSTICE AND HUMAN SERVICES 27 (4th ed. 2012) (“[I]t is well known that domestic violence crimes tend as a group to be among the crimes least reported to the police.”).

(23.) See TJADEN & THOENNES, supra note 19, at 55.

(24.) See VIOLENCE POLICY CTR., WHEN MEN MURDER WOMEN: AN ANALYSIS OF 2015 HOMICIDE DATA 3 (2017), http://www.vpc.org/studies/wmmw2017.pdf (finding that 928 females were murdered by an intimate acquaintance in 2015). This figure is likely an underestimate of the number of homicides connected to domestic violence, as it includes husbands, ex-husbands, and boyfriends, but does not include ex-boyfriends. See id. at 5.

(25.) INST, FOR WOMEN’S POLICY RESEARCH, THE ECONOMIC COST OF INTIMATE PARTNER VIOLENCE, SEXUAL ASSAULT, AND STALKING 4 (2017), https://iwpr.org/wp-content/uploads/2017/08/B367_Economic-Impacts-of-IPV-08.14.17.pdf.

(26.) SEE NICK BREUL & MIKE KEITH, U.S. DEP’T OF JUSTICE, OFFICE OF CMTY. ORIENTED POLICING SERVS., DEADLY CALLS AND FATAL ENCOUNTERS: ANALYSIS OF U.S. LAW ENFORCEMENT LINE OF DUTY DEATHS WHEN OFFICERS RESPONDED TO DISPATCHED CALLS FOR SERVICE AND CONDUCTED ENFORCEMENT (2010-2014), at 15 (2016), http://www.nleomf.org/assets/pdfs/officer-safety/Primary_Research_Final_ll0_updated_8_31_16.pdf.

(27.) INST, FOR WOMEN’S POLICY RESEARCH, supra note 25, at 2.

(28.) See Jacquelyn C. Campbell et al., Assessing Risk Factors for Intimate Partner Homicide, 250 NAT’L. INST. JUST. J. 14, 18 (2003) (“In 70 to 80 percent of intimate partner homicides … the man physically abused the woman before the murder.”).

(29.) For examples of these behaviors, see NAT’L CTR. ON DOMESTIC & SEXUAL VIOLENCE, POWER AND CONTROL WHEEL (1984), http://www.ncdsv.org/images/PowerControlwheelNOSHADING.pdf.

(30.) See Laura Dugan et al., Explaining the Decline in Intimate Partner Homicide: The Effects of Changing Domesticity, Women’s Status, and Domestic Violence Resources, 3 HOMICIDE STUD. 187, 189 (1999).

(31.) See, e.g., Lisa Rapaport, Gun Laws Targeting Domestic Abusers Tied to Fewer Homicides, REUTERS (Sept. 18, 2017, 5:40 PM), https://www.reuters.com/article/us-health-guns-domesticviolence/ gun-laws-targeting-domestic-abusers-tied-to-fewer-homicides-idUSKCN 1BT2N9 [https://perma.cc/RK4E-F5RC].

(32.) See Guyora Binder, Making the Best of Felony Murder, 91 B.U. L. Rev. 403, 533 (2011); see also infra Section III.C.

(33.) Lautenberg Amendment, 18 U.S.C. [section] 922(g)(9) (2012); see also U.S. DEP’T OF JUSTICE, CRIMINAL RESOURCE MANUAL [section] 1117, https://www.justice.gov/usam/criminal-resource-manual-1117-restrictionspossession-firearms-individuals-convicted [https://perma.cc/2DRL-LLRL] (entitled “Restrictions on the Possession of Firearms by Individuals Convicted of a Misdemeanor Crime of Domestic Violence”). Representative Anthony Brown introduced legislation in 2017 that would modify the federal criminal code to prohibit the possession of firearms by individuals subject to temporary restraining orders. See H.R. 2670, 115th Cong. (1st Sess. 2017). The bill has yet to make it past the introductory stage. See H.R. 2670-Protecting Domestic Violence and Stalking Victims Act, CONGRESS.GOV, https://www.congress.gov/bill/ 115th-congress/house-bill/2670 [https://perma.cc/P5XL-NG8J] (last visited Nov. 5, 2018).

(34.) See U.S. DEP’T OF JUSTICE, supra note 33.

(35.) See EVERYTOWN FOR GUN SAFETY, GUNS AND VIOLENCE AGAINST WOMEN: AMERICA’S UNIQUELY LETHAL DOMESTIC VIOLENCE PROBLEM 3 (2014), https://everytownresearch.org/documents/ 2015/04/guns-and-violence-against-women.pdf.

(36.) Domestic Violence Gun Homicide Prevention Act of 2014, S. 2676, 113th Cong. (2014).

(37.) See S. 2676–Domestic Violence Gun Homicide Prevention Act of 2014, CONGRESS.GOV, https:// http://www.congress.gov/bill/113th-congress/senate-bill/2676?q=%7B%22search%22%3A%5B%22s2676% 22%5D%7D&r=3 [https://perma.cc/76ZH-2KUK].

(38.) See, e.g., Morgan Brinlee, What is the Boyfriend Loophole? Domestic Abusers Aren’t Totally Barred from Buying Guns, BUSTLE (Mar. 3, 2018), https://www.bustle.com/p/what-is-the-boyfriend-loopholedomestic-abusers-arent-totally-barred-from-buying-guns-8392775 [https://perma.cc/229S-DY56]; see also 18 U.S.C. [section] 922(g)(9) (2012) (nicknamed the “Boyfriend Loophole Law”).

(39.) 18 U.S.C. [section] 922(g)(9) (2012).

(40.) See id. [section] 921(a)(33)(A)(ii) (defining “misdemeanor crime of domestic violence” as a crime “committed by a current or former spouse, … a person with whom the victim shares a child in common, … [or] a person who is cohabiting with or has cohabited with the victim …”); Brinlee, supra note 38 (describing the effects of the gap in federal law).

(41.) 18 U.S.C. [section]921(a)(32) (2006).

(42.) Id. [section] 922(d)(8) (2017).

(43.) See H.R. 3130, 114th Cong. (2015).

(44.) See H.R. 3130–Zero Tolerance for Domestic Abusers Act, CONGRESS.GOV, https://www. congress.gov/bill/114th-congress/house-bill/3130 [https://perma.cc/76SK-MFEY].

(45.) See Melanie Sevcenko, ‘Boyfriend Loophole’: Backlash After Oregon Joins 23 States in Curbing Guns, THE GUARDIAN (Mar. 21, 2018, 9:17 AM), https://www.theguardian.com/us-news/2018/mar/21/ oregon-boyfriend-loophole-bans-convicted-domestic-abusers-from-buying-guns [https://perma.cc/U8LMPH34], Fourteen of these laws have been enacted within the past four years. See ARKADI GERNEY & CHELSEA PARSONS, CTR. FOR AM. PROGRESS, WOMEN UNDER THE GUN: HOW GUN VIOLENCE AFFECTS WOMEN AND 4 POLICY SOLUTIONS TO BETTER PROTECT THEM 16 (2014), https://cdn.americanprogress. org/wp-content/uploads/2014/06/GunsDomesticViolence2.pdf (stating that only 10 states had extended the ban on gun possession by domestic abusers to dating relationships at the time of the report).

(46.) Letter from April M. Zeoili, Assistant Professor, Mich. State Univ. Sch. of Criminal Justice, to Senators Patrick J. Leahy and Charles Grassley (Jan. 28, 2013), https://www.judiciary.senate.gov/imo/media/doc/013013RecordSub-Leahy.pdf.

(47.) See COOPER & SMITH, supra note 9, at 10; EVERYTOWN FOR GUN SAFETY, supra note 35.

(48.) See EVERYTOWN FOR GUN SAFETY, supra note 35.

(49.) Memorandum from Tom Jensen, Dir. of Pub. Policy Polling, to Interested Parties (July 22, 2015), https:// cdn.americanprogressaction.org/wp-content/uploads/2015/07/Domcstic ViolenceMemo7.22J5-Final.pdf.

(50.) See, e.g., VA. CODE ANN. [section] 18.2-32 (2017).

(51.) See, e.g., MASS. GEN. LAWS ch. 265, [section] 1 (2018).

(52.) This Note is primarily concerned with domestic violence murders in which there was little to no question that the defendant “willfully” killed the victim. Section III.A therefore focuses on the remaining three elements which are generally the most difficult to prove in domestic violence murder cases.

(53.) Premeditated, BLACK’S LAW DICTIONARY (10th ed. 2014).

(54.) See 1794 Pa. Laws 599; Frank Brenner, The Impulsive Murder and the Degree Device, 22 FORDHAM L. REV. 274, 274 (1953). In fact, the Pennsylvania Act of 1794 classified first degree murder in much the same way most criminal jurisdictions do today–establishing the “wilful, deliberate, and premeditated killing” requirement as well as a barebones felony-murder rule. 1794 Pa. Laws 600.

(55.) See Edwin R. Keedy, History of the Pennsylvania Statute Creating Degrees of Murder, 97 U. PA. L. REV. 759, 763, 767 (1949) (crimes such as counterfeiting, larceny, and buggery were punishable by death).

(56.) See Brenner, supra note 54, at 275.

(57.) See 1794 Pa. Laws 599-600.

(58.) Id.

(59.) 58 Pa. 9, 16 (1868) (emphasis added).

(60.) Id.

(61.) See Keedy, supra note 55, at 773-77 (discussing the evolution of case law regarding the meaning of the words “deliberate” and “premeditated”).

(62.) See Jonathan Simon, How Should We Punish Murder?, 94 MARQ. L. REV. 1241, 1243, 1262-66 (2011).

(63.) See, e.g., Petty v. State, 89 S.W. 465, 466 (Ark. 1905); Commonwealth v. Jones, 50 A.2d 317, 319 (Pa. 1947) (“‘[T]he main distinction of murder in the first from that of the second degree’ lies in the specific intent to take life required for the former” (quoting Commonwealth v. Iacobino, 178 A. 823, 825 (Pa. 1935))); English v. State, 30 S.W. 233,235 (Tex. Crim. App. 1895).

(64.) See, e.g., Macias v. State. 283 P. 711, 718 (Ariz. 1929); People v. Thomas, 156 P.2d 7, 14 (Cal. 1945); State v. Koho, 423 P.2d 1004, 1006 (Idaho 1967) (“It is only necessary that the act of killing be preceded by a concurrence of will, deliberation and premeditation … no matter how rapidly they may be followed by the act of killing.”).

(65.) See, e.g., Hays v. State, 599 So. 2d 1230, 1238 (Ala. Crim. App. 1992) (quoting Caldwell v. State, 84 So. 272, 276 (Ala. 1919)).

(66.) See, e.g., Brown v. State, 410 A.2d 17, 22 (Md. Ct. Spec. App. 1979) (“The use of [willful, deliberate, and premeditated] seems to us to serve no purpose other than to shroud the intention in an aura of redundancy so as to convey the seriousness of the matter”); Windham v. State, 602 So. 2d 798, 801 (Miss. 1992) (“It has long been the case law of this state that malice aforethought, premeditated design, and deliberate design all mean the same thing.”); Nika v. State, 198 P.3d 839, 847 (Nev. 2008) (“‘[W]illful,’ ‘deliberate,’ and ‘premeditated’ need not be separately defined, but rather those terms constitute[] a single phrase”).

(67.) See, e.g., Thomas, 156 P.2d at 18 (“It is obvious that the phrases ‘malicious intent’ and ‘malice aforethought’ are not synonymous with ‘willful, deliberate, and premeditated’ intent.” (citing People v. Holt, 153 P.2d 21 (Cal. 1944))); Hern v. State, 635 P.2d 278, 280 (Nev. 1981) (“Malice is not synonymous with either deliberation or premeditation. To view it otherwise would be to obliterate the distinction between the two degrees of murder.”); State v. Bush, 942 S.W.2d 489, 501 (Tenn. 1997).

(68.) See People v. Anderson, 447 P.2d 942, 948 (Cal. 1968) (citing People v. Caldwell, 279 P.2d 539, 542 (Cal. 1955)); see also Moore v. State, 174 P.2d 282, 289 (Ariz. 1946) (finding that deliberate means an action “carried on coolly and steadily, esp. according to a preconceived design”).

(69.) See, e.g., People v. Cole, 95 P.3d 811, 848 (Cal. 2004).

(70.) State v. Snowden, 313 P.2d 706,709 (Idaho 1957) (quoting 40 C.J.S. Homicide [section] 25 (1944)).

(71.) State v. Booker, 53 P.3d 635, 638 (Ariz. Ct. App. 2002) (quoting STATE BAR OF ARIZ., REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL) 11.051 (2d ed. Supp. 2000)).

(72.) See, e.g., People v. Washington, 402 P.2d 130, 130 (Cal. 1965) (“The felony-murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability.”); People v. Aaron, 299 N.W.2d 304, 306 (Mich. 1980) (“The existence and scope of the felony-murder doctrine have perplexed generations of law students, commentators and jurists….”); Binder, supra note 32, at 404 n.1 (citing numerous sources); Michael J. Roman, “Once More Unto the Breach, Dear Friends, Once More”: A Call to Re-Evaluate the Felony-Murder Doctrine in Wisconsin in the Wake of State v. Oimen and State v. Rivera, 77 MARQ. L. REV. 785, 821 (1995) (“Nearly all of [the commentary on felony murder] is derogatory to the doctrine, yet felony murder remains a part of nearly every jurisdiction in the United States.”) (footnote omitted); James J. Tomkovicz, The Endurance of the Felony-Murder Rule: A Study of the Forces that Shape Our Criminal Law, 51 WASH. & LEE L. REV. 1429, 1431 n.10 (1994) (citing numerous sources).

(73.) See Aaron, 299 N.W.2d at 334 (Ryan, J., concurring in part); Nelson E. Roth & Scott E. Sundby, The Felony-Murder Rule: A Doctrine at Constitutional Crossroads, 70 CORNELL L. REV. 446, 453-54 (1985).

(74.) See GUYORA BINDER, FELONY MURDER 190,307 n.64 (Markus D. Dubber ed., 2012).

(75.) Traci Rose Francis, Availability of the Felony-Murder Rule Today: Equitable and Just or Unfair and Excessive? 53 tbl.4 (2005) (unpublished M.A. thesis, University of Central Florida), http://stars.library.ucf.edu/cgi/viewcontent.cgi?article=1443&context=etd [https://perma.cc/7GLD-4L6M]. Five of the states require the prosecution to prove a specific mens rea in order to impose the death penalty. Id.

(76.) See, e.g., People v. Anderson, 447 P.2d 942, 948 (Cal. 1968) (“[T]he legislative classification of murder into two degrees would be meaningless if ‘deliberation’ and ‘premeditation’ were construed as requiring no more reflection than may be involved in the mere formulation of a specific intent to kill”).

(77.) State v. Williams, 285 N.W.2d 248,270 (Iowa 1979).

(78.) See State v. Taylor, 287 N.W.2d 576, 578 (Iowa 1980).

(79.) See Roth & Sundby, supra note 73, at 457-58 (arguing that the justifications for the felony-murder rule are deterrence and the notion that the felon has exhibited an “evil mind”).

(80.) See State v. Martin, 573 A.2d 1359, 1368 (N.J. 1990) (“[I]f potential felons realize that they will be culpable as murderers for a death that occurs during the commission of a felony, they will be less likely to commit the felony.”). But see O.W. HOLMES, JR., THE COMMON LAW 58 (Bos., Little, Brown & Co. 1881) (“If the object of the rule is to prevent such accidents, it should make accidental killing with firearms murder, not accidental killing in the effort to steal; while, if its object is to prevent stealing, it would do better to hang one thief in every thousand by lot.”).

(81.) See, e.g., People v. Davison, 923 N.E.2d 781, 785 (111. 2010) (“The felony-murder statute is intended to limit violence caused by the commission of a forcible felony, subjecting an offender to a first degree murder charge if another person is killed during that felony.”); see also Whalen v. United States, 445 U.S. 684, 713 (1980) (Rehnquist, J., dissenting) (finding that [section] 22-2401, a D.C. felony murder statute at the time, “was intended ‘to protect human life'”).

(82.) See, e.g., David Crump & Susan Waite Crump, In Defense of the Felony Murder Doctrine, 8 HARV. J.L. & PUB. POL’Y 359 (1985) (defending deterrence as a justification for the felony-murder rule). But see, e.g., Paul H. Robinson & John M. Darley, The Role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best, 91 Geo. L.J. 949 (2003) (discussing the reasons to be skeptical of deterrence in the context of applying the felony-murder rule).

(83.) David Crump, Reconsidering the Felony Murder Rule in Light of Modern Criticisms: Doesn’t the Conclusion Depend Upon the Particular Rule at Issue?, 32 HARV. J. L. & PUB. POL’Y 1155, 1184 (2009). Crump further asserts that “the persistence of our law of negligence and strict liability … evidences a belief that accidents are deferrable to some degree.” Id.

(84.) See, e.g., Constantino Diaz-Duran, William Murphy and the Felony Murder Rule, THE DAILY BEAST (Oct. 19, 2010, 6:43 PM), https://www.thedailybeast.com/william-murphy-and-the-felony-murder-rule [https://perma.cc/3JK3-SNNS] (“Most people haven’t the slightest idea whether their state has a felony murder rule or not…. How can the rule produce some kind of deterrent effect when people don’t know what the rule is?” (quoting Professor Paul H. Robinson)).

(85.) See Guyora Binder, The Culpability of Felony Murder, 83 NOTRE DAME L. REV. 965, 984-85 (explaining that many critics of the felony-murder rule see it as imposing strict liability for accidental death during the commission of a felony).

(86.) States vary in what they consider “inherently dangerous felonies,” but most states enumerate a list of felonies that include such crimes as robbery, kidnapping, and rape, among others. See Binder, supra note 32, at 533-42. Some states include crimes that are less obviously dangerous in the context of felony murder, including “endangering the food supply,” burglary, and various drug crimes. See, e.g., KAN. STAT. ANN. [section] 21-5402(c)(1)(I), (O), (P) (2017).

(87.) Anup Malani. Does the Felony-Murder Rule Deter? Evidence from FBI Crime Data 23-24 (Dec. 3, 2007) (unpublished manuscript) (on file with The Georgetown Law Journal).

(88.) Id. at 24.

(89.) See Roth & Sundby, supra note 73, at 458 (discussing how the “evil mind” theory of felony murder developed).

(90.) Id.

(91.) See Binder, supra note 85, at 976.

(92.) Id. at 979.

(93.) 481 U.S. 137,157-58(1987).

(94.) See Aggravating Factors for Capital Punishment by State, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/aggravating-factors-capital-punishment-state [https://perma.cc/M8A8-VUZ8.

(95.) See MODEL PENAL CODE [section] 210.2(l)(b) (AM. LAW INST. 1980) (“Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.”).

(96.) See Hava Dayan, Assaultive Femicide and the American Felony-Murder Rule, 21 BERKELEY J. CRIM. L. 1, 20-21 (2016).

(97.) See Ala. Code [section] 13A-5-40(a)(19) (2018); Fla. Stat. [section] 921.141(6)(p) (2017); KY. REV. STAT. Ann. [section] 532.025(2)(a)(8) (West 2012); LA. STAT. ANN. [section] 14:30(A)(8) (2015); 42 PA. CONS. STAT. [section] 9711 (d)(18) (1999); WASH. REV. CODE [section] 10.95.020(14) (2003).

(98.) 18 U.S.C. [section][section]3591-99(2006).

(99.) MODEL PENAL CODE [section] 210.2(1)(b) (AM. LAW INST. 1980).

(100.) See, e.g., People v. Hansen, 885 P.2d 1022, 1028 (Cal. 1994) (quoting People v. Ireland, 450 P.2d 580, 590 (Cal. 1969)); People v. Garcia, 74 Cal. Rptr. 3d 912, 919 (Cal. Ct. App. 2008) (quoting Ireland, 450 P.2d at 590).

(101.) See Ireland, 450 P.2d at 590.

(102.) Hansen, 885 P.2d at 1028.

(103.) See Dayan, supra note 96, at 23-24 (explaining how courts employ the “merger doctrine,” which she refers to as “the principle of merger”); Binder, supra note 32, at 525-49 (describing development of the “merger doctrine”).

(104.) Dayan, supra note 96, at 22-25.

(105.) See, e.g., Binder, supra note 32, at 527-30 (referencing cases in which elements of assault were found to be “ingredients” of first-degree murder); Dayan, supra note 96, at 13 (stating that merger excludes “mainly the offense of assault” which is considered to be “already included within the legal elements” of homicide).

(106.) See Binder, supra note 32, at 533 (citing various state laws). Professor Binder also adds reference to twelve states which define predicate felonies categorically, but he refers to them as a “substantial minority.” Id.

(107.) Id. at 526.

(108.) Id.

(109.) See. e.g., People v. Pelt, 800 N.E.2d 1193, 1197 (111. 2003); Johnson v. State, 4 S.W.3d 254, 257-58 (Tex. Crim. App. 1999).

(110.) See, e.g., LEIGH GOODMARK, A TROUBLED MARRIAGE: DOMESTIC VIOLENCE AND THE LEGAL SYSTEM 36-40 (2012) (explaining the nature of “coercive control theory” in social science research). See generally EVAN STARK, COERCIVE CONTROL: THE ENTRAPMENT OF WOMEN IN PERSONAL LIFE (2007) (introducing the concept of “coercive control” and discussing its relationship to intimidation, isolation, control, and domestic violence).

(111.) N.C. GEN. STAT. [section] 14-17(al) (2017).

(112.) Sandstrom v. Montana, 442 U.S. 510, 520 (1979) (quoting In re Winship, 397 U.S. 358, 364 (1970)).

(113.) Francis v. Franklin, 471 U.S. 307, 313-14 (1985) (citing Patterson v. New York, 432 U.S. 197, 215(1977)).

(114.) Id. at 314-15 (emphasis added).

(115.) Charles R. Nesson, Reasonable Doubt and Permissive Inferences: The Value of Complexity, 92 HARV. L. REV. 1187, 1187 n.1 (1979).

(116.) See NEIL C. BLOND, BLOND’S LAW GUIDES: EVIDENCE 70 (Joel Wm. Friedman ed., Aspen Publishers, 4th ed. 2007) (2005).

(117.) See, e.g., Pattison v. State, 54 N.E.3d 361,366 (Ind. 2016).

(118.) See id.

(119.) See Francis, 471 U.S. at 318.

(120.) See, e.g., Cty. Court of Ulster Cty. v. Allen, 442 U.S. 140, 161 (1979); United States v. Warren, 25 F.3d 890,898 (9th Cir. 1994).

(121.) See, e.g., Francis, 471 U.S. at 314-15; Clinkscales v. Stevenson, No. 6:11-1160-TMC-KFM, 2012 WL 1030345, at *9-10 (D.S.C. Jan. 27, 2012); Hereford v. State, 342 P.3d 1201, 1205 (Wyo. 2015).

(122.) See, e.g., Jones v. State, 753 So. 2d 1174, 1188-89 (Ala. Crim. App. 1999); Hereford, 342 P.3d at 1208-09; see also Gray v. Delbiaso, No. 14-4902, 2017 WL 2834361, at *7 (E.D. Pa. June 30, 2017) (upholding presumption of malice based on use of deadly weapon on a “vital part” of the body). But see Krucheck v. State, 671 P.2d 1222, 1225 (Wyo. 1983) (holding that a permissive presumption instruction violated the Fourteenth Amendment because the instruction did not inform the jury that it could refuse to use the presumption).

(123.) TJADEN & THOENNES, supra note 19, at v. Even fewer of these crimes perpetrated against males were reported to the police. Id.

(124.) Id.

(125.) Id. at 52.

(126.) See, e.g., Mike Gallagher, Violence Cases Rarely Go to Trial, ALBUQUERQUE J. (May 1, 2005), https:// http://www.abqjournal.com/news/metro/344905metro05-01-05.htm [https://perma.cc/AE5M-5YLN]; Claire Lowe, Why 80 Percent of New Jersey’s Domestic Violence Cases Are Dismissed, PRESS OF ATLANTIC CITY (Apr. 11, 2017), http://www.pressofatlanticcity.com/breaking-the-cycle/why-percent-of-new-jersey-s-domestic-violence -cases-are/article_d9878dce-e162-5f98-8d6a-95eee8cb8884.html [https://perma.cc/5LWW-TVS7].

(127.) See TJADEN & THOENNES, supra note 19, at 51 (based on data provided in Exhibit 18).

(128.) Beverly Balos, Domestic Violence Matters: The Case for Appointed Counsel in Protective Order Proceedings, 15 TEMP. POL. & C.R. L. REV. 557,564 (2006).

(129.) See id. at 52 (based on data provided in Exhibit 19).

(130.) The #MeToo movement began in October 2017, when actress Alyssa Milano popularized the phrase that had long been used by social activist Tarana Burke to publicize the prevalence of misogyny and sexual assault in America. Sandra E. Garcia, The Woman Who Created #MeToo Long Before Hashtags, N.Y. TIMES (Oct. 20, 2017), https://www-nytimes-com.proxy.libraries.uc.edu/2017/10/20/us/me-too-movementtarana-burke.html [https://nyti.ms/2zocwiU]. Several articles published in the months following the #MeToo movement highlighted women who have used the hashtag to publicize their own experiences with domestic violence. See, e.g., Rachel Leah, Is #MeToo Moving Into Domestic Violence?, Salon (Dec. 8, 2017, 5:12 PM),’ https://www.salon.com/2017/12/08/lucy-mcintosh-mark-houston-metoodomestic-violence/ [https://perma.cc/4C9N-UGK5].

(131.) See supra note 97.

(132.) Zant v. Stephens, 462 U.S. 862, 877 (1983).

(133.) See, e.g., State v. Booker, 53 P.3d 635, 639 (Ariz. Ct. App. 2002).

(134.) See, e.g., Kimberly D. Bailey, Lost in Translation: Domestic Violence, “The Personal is Political,” and the Criminal Justice System, 100 J. CRIM. L. & CRIMINOLOGY 1255, 1276-93 (2010); Franklin E. Zimring, Toward a Jurisprudence of Family Violence, 11 Crime & just. 547, 564 (1989). But see Carol E. Jordan, Intimate Partner Violence and the Justice System: An Examination of the Interface, 19 J. Interpersonal Violence 1412, 1427 (2004) (“There is good news … in that it appears that arrest and civil protective orders are often associated with reduced experience with subsequent violence.”).

(135.) Violence Against Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1902.

(136.) SHANNAN CATALANO ET AL., U.S. DEP’T OF JUSTICE, FEMALE VICTIMS OF VIOLENCE 2 (2009). The rates of violence against males also decreased by roughly the same margin–fifty-four percent between 1993 and 2008. Id.

(137.) Id. at 3.

(138.) Office of the Press Sec’y, FACT SHEET: Standing Up for Women’s Civil Rights, 20 Years After VAWA, White House (Sept. 9, 2014), https://obamawhitehouse.archives.gov/the-press-office/2014/09/ 09/fact-sheet-standing-women-s-civil-rights-20-years-after-vawa [https://perma.cc/NH6N-VX4A].

(139.) See April M. Zeoli & Daniel W. Webster, Effects of Domestic Violence Policies, Alcohol Taxes and Police Staffing Levels on Intimate Partner Homicide in Large US Cities, 16 INJ. PREVENTION 90, 92 (2010).

(140.) See supra note 36.

(141.) See Deborah Epstein & Lisa A. Goodman, Discounting Credibility: Doubting the Testimony and Dismissing the Experiences of Domestic Violence Survivors and Other Women, 167 U. Penn L. Rev (forthcoming 2019) (“It is hardly surprising that a major reason survivors cite for withholding cooperation from prosecutors is fear of future harm”); Louise Ellison, Prosecuting Domestic Violence Without Victim Participation, 65 MOD. L. REV. 834, 839 (2002) (“A significant number of domestic violence victims no doubt withdraw for fear of retaliatory violence….”).

(142.) See Carol E. Jordan, Intimate Partner Violence and the Justice System: An Examination of the Interface, 19 J. INTERPERSONAL VIOLENCE 1412, 1413 (2004) (citing multiple sources finding that women are often threatened by their partners for seeking protective orders); see also Christopher t. Benitez et al., Do Protection Orders Protect?, 38 J. Am. Psychiatry L. 376, 385 (2010) (citing study in which twenty percent of protection orders resulted in an escalation in violence and abusive behavior).

(143.) See Alvarez, supra note 4.

This article starts off by stating that most mass shooters have some type of connection to domestic violence. this can be that they are the victim or that they are the guilty. It then goes on to talk about how domestic violence doesn’t always lead to mass shootings but almost awlays leads to some bigger crime. The majority of this article talks about laws that are passed that are meant to help prevent these shootings without takings peoples rights away. the main approach is to do better background checks and not allow people that have had a past of domestic violence the opportunity to carry a firearm. this prevents mass shootings but protects the second amendment.

the counter to this argument would be to just ban guns all together or to not do anything at all. The article is a good one for the paper that i’m writing because it is very unbiased and takes a very similar point of view to this topic that i have. it also has credited many very reliable sources that help the article look better.

I think this article is perfect for this paper because it is reliable and unbiased. there are two major counters to this argument. i find this article to be in the middle. the two counters would be the two extreams from both sides. you have one side that says just take all the guns. you also have the other side that says do nothing to the law

Pulling the trigger: evaluating criminal gun laws in a post-Heller world

(1.) I use the common form “Virginia Tech” for brevity and clarity when referring to Virginia Polytechnic Institute and State University.

(2.) VA. TECH REVIEW PANEL, MASS SHOOTINGS AT VIRGINIA TECH APRIL 16, 2007: REPORT OF THE VIRGINIA TECH REVIEW PANEL 1 (2007) [hereinafter VA. TECH REPORT].

(3.) Id. at app. L.

(4.) See, e.g., Kimball Payne, Taking Shots” at Gun Laws, DAILY PRESS (Newport, Va.), Jan. 2, 2008 (noting a bill to close the “gun show loophole” was proposed in the Virginia legislature less than a year after the shooting based on a recommendation in the VA. TECH REPORT).

(5.) See, e.g., David Sherfinski, Gun Issue Factions Rally to Make Their Point in Richmond, WASH. TIMES, Jan. 16, 2012, at A16 (noting numerous attempts to allow gulls on Virginia college campuses since the shootings); Jim Galloway, Ga. Tech Crime Sparks NRA-backed Push .[or Campus Guns, ATLANTA J.-CONST. (Jan. 14, 2012), http://blogs.ajc.com/political-insider-jim-galloway/2012/01/14/ga-tech-crime-sparks-nra-backed-push-forcampus- guns/(noting a bill to allow guns on college campuses in Georgia was defeated after the shooting but has since been reintroduced multiple times).

(6.) See, e.g., Steve Goldstein, Despite Tragedy, Congress Cautious About Gun Laws, PHIL. INQUIRER, Apr. 22, 2007, at A19 (quoting several Congressmen and Senators supporting greater enforcement of existing laws and proposing the tying of mental-health screening data to permit authorizations).

(7.) See id. (noting many Republican lawmakers did not favor new legislation because of concerns that gun laws infringed upon citizens’ constitutional rights).

(8.) District of Columbia v. Heller, 554 U.S. 570, 592 (2008) (“Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.” (emphasis added)). Two years later, the Court held the Second Amendment applicable to the states in McDonald v. City of Chicago, 130 S. Ct. 3020, 3026 (2010).

(9.) See, e.g., Moore v. Madigan, 842 F. Supp. 2d 1092, 1101 (C.D. Ill. 2012) (denying Second Amendment challenge to unlawful-use-of-weapon charges); United States v. Rush, 635 F. Supp. 2d 1301, 1302 (M.D. Ala. 2009) (denying Second Amendment challenge to indictment for possessing a firearm in furtherance of a drug crime); United States v. Jones, 673 F. Supp. 2d 1347, 1349 (N.D. Ga. 2009) (denying Second Amendment challenge to felon-in-possession charge); United States v. Miller, 604 F. Supp. 2d 1162, 1164 (W.D. Tenn. 2009) (upholding a felon-in-possession conviction against a Second Amendment challenge). All of the Second Amendment challenges in the foregoing cases are based on the Heller decision. The foregoing is a tiny sampling of the cases being decided by federal district courts.

(10.) United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011).

(11.) See, e.g., Heller, 554 U.S. at 634 (responding to criticisms leveled by Justice Breyer in his dissent that the Court failed to establish, inter alia, a level of scrutiny for evaluating Second Amendment restrictions).

(12.) See, e.g., Ivan E. Bodensteiner, Scope of the Second Amendment Right–Post-Heller Standard of Review, 41 U. TOL. L. REV. 43, 45 (2009) (arguing for a heightened rational-basis scrutiny); Jamal Greene, The Rule of Law as a Law of Standards, 99 GEO. L.J. 1289, 1298 (2011) (arguing some kind of balancing test will have to be used to evaluate gun regulations); Michael P. O’Shea, Federalism and the Implementation of the Right to Arms, 59 SYRACUSE L. REV. 201,204 (2008) (advocating strict scrutiny for national gun laws and intermediate scrutiny for state and local gun laws); Glenn H. Reynolds & Brannon R Denning, Heller’s Future in the Lower Courts, 102 NW. U. L. REV. 2035, 2039 (2008) (predicting difficulty and differences among the lower courts in the wake of Heller); Lawrence Rosenthal & Joyce Lee Malcolm, McDonald v. Chicago: Which Standard of Scrutiny Should Apply to Gun Control Laws?, 105 NW. U. L. REV. 437, 438 (2011) (offering competing views of the appropriate standard); Stephen Kiehl, Comment, In Search of a Standard: Gun Regulations After Heller and McDonald, 70 MD. L. REV. 1131, 1133 (2011) (arguing for an intermediate standard of review for gun regulations). The preceding is not an exhaustive list, but illustrative of the breadth of the debate.

(13.) One student note draws some conclusions from Heller, proposing a three-step evaluative framework “including categorical rules, a locality scheme, and burden-based/burden-neutral factors….” Jason Racine, What the Hell[er]? The Fine Print Standard of Review Under Heller, 29 N. ILL. U. L. REV. 605, 608 (2009). However, with the benefit of three years and hundreds of judicial opinions since Heller, this Note differs substantially in its interpretation.

(14.) See infra Part I.

(15.) See Heller, 554 U.S. at 628-31 (analyzing the particular law at issue in the case).

(16.) See infra Part III.

(17.) See infra Part III.

(18.) See infra Part III.

(19.) This Note will, as much as possible, avoid discussion of whether Heller was correctly decided. Instead, it will attempt to articulate a workable framework for judges because Heller is “what the law is.” See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (holding the Supreme Court is the final arbiter and interpreter of constitutional law).

(20.) See Heller, 554 U.S. 570.

(21.) See id. at 576-626 (discussing the Second Amendment’s history and protections).

(22.) For instance, the criticism of the Court’s lack of an articulated standard of review began as early as the dissent in Heller itself. See Heller, 554 U.S. at 687-91 (Breyer, J., dissenting) (criticizing the majority’s refusal to accept rational basis review and the inapplicability of strict scrutiny review while proposing an interest-balancing approach as a guide for lower court judges); see also Andrew R. Gould, The Hidden Second Amendment Framework Within District of Columbia v. Heller, 62 VAND. L. REV. 1535, 1548-49 (2009) (highlighting Justice Breyer’s criticism of the majority’s failure to explicate a standard of review).

(23.) A WestlawNext search shows the Heller decision has been cited more than 800 times since 2008. See District of Columbia v. Heller Citing References, WESTLAWNEXT, http://westlaw.com (log onto WestlawNext;

search “District of Columbia v. Heller”: then, when viewing Heller, click the “Citing References” tab; sort by “Date: Newest First”).

(24.) See Heller, 554 U.S. at 626-27 (outlining several classes of criminal and civil gun laws that survive constitutional scrutiny).

(25.) 130 S. Ct. 3020 (2010).

(26.) Compare Ezell v. City of Chi., 651 E 3d 684, 708-09 (7th Cir. 2011) (adopting a very high level of scrutiny that the court declares to be “not quite ‘strict scrutiny'”), with Peruta v. Cnty. of San Diego, 758 E Supp. 2d 1106, 1115 (S.D. Cal. 2010) (rejecting strict scrutiny in evaluating municipal gun control regulations).

(27.) Heller, 554 U.S. at 575.

(28.) See generally Robert A. Levy, Anatomy of a Lawsuit: District of Columbia v. Heller, ENGAGE, Oct. 2008, at 27 (explaining the genesis of Heller). Prior to Heller, the Second Amendment was generally interpreted to protect only a right to possess firearms in connection with militia service. ADAM WINKLER, GUNFIGHT: THE BATTLE OVER THE RIGHT TO BEAR ARMS IN AMERICA 10 (2011). But see United States v. Emerson, 270 F.3d 203, 232 (5th Cir. 2001) (holding that the Second Amendment guarantees an individual right to bear arms, in marked contrast to many of the court’s sister circuits at the time).

(29.) See Levy, supra note 28, at 29 (“Because of D.C.’s draconian regulations, we were able to pursue an ‘incremental’ Second Amendment strategy–analogous to the strategy that Thurgood Marshall and the NAACP had pursued with great success in the civil rights arena.”).

(30.) Heller, 554 U.S. at 575.

(31.) This Note, and the courts, sometimes refer to rifles, shotguns, and other similar firearms as “long guns” to differentiate them from handguns, which can be easily concealed. See United States v. Masciandaro, 638 F.3d 458, 466 (4th Cir. 2011) (differentiating between long guns and handguns).

(32.) See Heller, 554 U.S. at 628-29 (discussing the severity of the ban).

(33.) WINKLER, supra note 28, at 176.

(34.) Jeffrey M. Shaman, After Heller: What Now for the Second Amendment?, 50 SANTA CLARA L. REV. 1095, 1102-03 (2010).

(35.) Heller, 554 U.S. at 628.

(36.) See Clark Neily, District of Columbia v. Heller: The Second Amendment Is Back, Baby, 2008 CATO SUP. CT. REV. 127, 127-28 & n.2 (explaining timing of Heller and McDonald); McDonald v. City of Chi., 130 S. Ct. 3020, 3026 (2010) (extending Heller to the states).

(37.) See Levy, supra note 28, at 29. Heller was designed to challenge only the meaning of the Second Amendment; McDonald only to challenge the application of the Second Amendment to the states, Id. at 29-30.

(38.) Most of the Heller petitioners were dismissed for lack of standing in the D.C. Circuit. See Parker v. District of Columbia, 478 F.3d 370, 375-76 (2007).

(39.) See McDonald, 130 S. Ct. at 3026 (describing the McDonald plaintiffs); Heller, 554 U.S. at 574 (describing Mr. Heller).

(40.) McDonald, 130 S. Ct. at 3026.

(41.) Id. at 3027.

(42.) Admittedly, the Thomas concurrence in McDonald raises the interesting issue of whether the Court’s privileges and immunities jurisprudence should be overturned and the Court’s Slaughter-House Cases rejected. See id. at 3059 (Thomas, J., concurring) (discussing the Court’s earlier interpretation of the Privileges or Immunities Clause). While a subject of considerable scholarly debate, for the purposes of this Note, it is unnecessary to choose between the two views.

(43.) Id. at 3026.

(44.) See id. Because McDonald did not purport to alter Heller’s holding, but merely to extend the Second Amendment right and restriction to the states, the remainder of this Note primarily addresses Heller alone.

(45.) District of Columbia v. Heller, 554 U.S. 570, 626-27 n.26 (2008) (declaring the list in the text of the opinion to be “presumptively lawful”).

(46.) Id.

(47.) Id. at 626-27 (setting forth the list of “presumptively lawful” measures often referred to in this Note and by the courts as Heller’s “laundry list.”).

(48.) Id. at 627 (citing United States v. Miller, 307 U.S. 174, 179 (1939)). United States v. Miller held that the Second Amendment does not protect the right to possess a sawed-off shotgun because it was not “any part of the ordinary military equipment [n]or … could [it] contribute to the common defense.” 307 U.S. at 178. The Heller majority concluded this means guns “not typically possessed by law-abiding citizens for lawful purposes” are not subject to Second Amendment protections. Heller, 554 U.S. at 625.

(49.) See, e.g., Hamblen v. United States, 591 F.3d 471, 473-74 (6th Cir. 2009) (citing Heller and Miller to uphold conviction of defendant for possession of unregistered machine gun); United States v. Fincher, 538 F.3d 868, 873-74 (8th Cir. 2008) (relying on Heller and Miller to uphold the defendant’s conviction for unlawfully possessing a machine gun and a sawed-off shotgun); People v. James, 94 Cal. Rptr. 3d 576, 584-85 (Cal. Ct. App. 2009) (relying on Heller and Miller to uphold defendant’s conviction for possession of an assault rifle and .50 caliber BMG rifle).

(50.) See, e.g., Rosenthal & Malcolm, supra note 12, at 438-39.

(51.) Heller, 554 U.S. at 634.

(52.) Rational basis is an extremely deferential standard of review where the court decides if there is a “conceivable set of facts that could provide a rational basis” for the law. F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993).

(53.) See Heller, 554 U.S. at 628 n.27 (“Justice Breyer correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws…. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the fight to keep and bear arms.” (internal citations omitted)); id. at 634-35 (rejecting Breyer’s interest-balancing approach and stating “[w]e know of no other enumerated right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach”).

(54.) Under the traditional view of strict scrutiny review, a law which burdens fundamental constitutional rights is generally presumed to be unconstitutional unless the government can show the law serves a “compelling” government interest and is narrowly tailored to achieve its objective. See Adam Winkler, Fatal in Theory and Strict in Fact.” An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 VAND. L. REV. 793, 800-01 (2006) (explaining the evolution and application of strict scrutiny review).

(55.) Because laws evaluated under strict scrutiny are generally presumptively unconstitutional, the identification of several broad categories of “presumptively lawful” measures implicitly rejects strict scrutiny in all Second Amendment cases. See id. (discussing presumptive invalidity of laws under strict scrutiny review); Brannon P. Denning, The New Doctrinalism in Constitutional Scholarship and District of Columbia v. Heller, 75 TENN. L. REV. 789, 799 (2008) (noting that the Court in Heller supported a version of strict scrutiny which was tempered only by several substantial carve-outs for presumptively lawful measures).

(56.) Heller, 544 U.S. at 635.

(57.) Intermediate scrutiny is a form of First Amendment scrutiny applicable to content-neutral speech regulations. Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 662 (1994) (citing United States v. O’Brien, 391 U.S. 367, 377 (1968)). To survive intermediate scrutiny, a law must further a substantial government interest, be unrelated to the suppression of free expression, and have incidental restrictions that are no greater than are essential to the furtherance of that interest, Id. The standard is sometimes referred to as the “tight fit” test because the validity of the law is dependent on how narrowly tailored the law is to the government’s interest. See id. Intermediate scrutiny requires a type of balancing test to determine whether the government’s interest sufficiently outweighs the incidental burdens on the right affected by the law. See City of L.A. v. Alameda Books, Inc., 535 U.S. 425, 440-41 (2002) (holding municipal regulations are subject to intermediate scrutiny and such laws are typically passed after a legislature engages in an appropriate decision making process that balances competing interests).

(58.) See supra notes 52-55 and accompanying text (discussing the Court’s foreclosure of traditional methods such as rational basis and interest-balancing).

(59.) See infra Part II.

(60.) See Heller, 554 U.S. at 626-27 (setting forth the list often referred to as Heller’s “laundry list”).

(61.) This includes: bans on felons in possession of firearms, 18 U.S.C. [section] 922(g)(1) (2006): sales regulations, id. at [section] 922(d); and bans on firearm possession by the mentally ill, id. at [section] 922(g)(4).

(62.) Heller, 554 U.S. at 627 n.26.

(63.) [section] 922(g)(9).

(64.) See People v. Coleman, 948 N.E.2d 795,804-05 (Ilk App. Ct. 2011) (upholding conviction under a state’s habitually-armed-criminal statute, quoting Heller’s support for “prohibitions on the possession of firearms by felons”).

(65.) See People v. Jason K., 116 Cal. Rptr. 3d 443, 450, 453 (Cal. Ct. App. 2010) (upholding confiscation of firearm from person who was involuntarily committed to a psychiatric hospital under state law requiring such confiscation for five years following a hearing where state proved by a preponderance of the evidence that the person would “not be likely to use firearms in a safe and lawful manner” and citing Heller’s support for laws prohibiting possession by the mentally ill as authority).

(66.) See DiGiancinto v. Rector & Visitors of George Mason Univ., 704 S.E.2d 365, 369-70 (Va. 2011) (citing Heller, 554 U.S. at 625-28) (upholding regulation prohibiting the possession of firearms on a university campus by relying on Heller to hold that schools are “sensitive places” where regulations are presumptively lawful).

(67.) See United States v. Dorosan, 350 F. App’x 874, 875-76 (5th Cir. 2009) (per curiam) (upholding defendant’s criminal conviction for carrying a loaded handgun in the parking lot of a United States Postal Service facility); see also Heller, 554 U.S. at 626-27 (excepting government buildings).

(68.) Mont. Shooting Sports Ass’n v. Holder, No. CV-09-147, 2010 WL 3926029, at *21 (D. Mont. Aug. 31, 2010) (recommending dismissal of a motion for declaratory judgment holding firearms manufacturers in Montana may manufacture and sell firearms without complying with federal firearms laws pursuant to the Montana Firearms Freedom Act, noting regulation of the commercial sale of arms was part of the presumptively lawful regulations cited in Heller).

(69.) Most challenges to criminal gun possession statutes in the wake of Heller involve at least a perfunctory Second Amendment challenge, either facially or as applied. As an example, see United States v. Brown, No. CV 11-478-FJP-SCR, 2011 WL 5826606, at *3 (M.D. La. Nov. 18, 2011), where a Second Amendment challenge to the Armed Career Criminal Act was but one of a long list of possible grounds for a post-sentencing appeal. All grounds were dismissed. See id.

(70.) 638 F.3d 458 (4th Cir. 2011).

(71.) Id. at 459.

(72.) See id. at 459-60. Masciandaro also challenged the law as applied to him because the regulation was changed after he was arrested but before he could be tried. See id. The court dismissed this challenge as barred by United States v. Hark. Id. at 463-63 (citing Hark, 320 U.S. 531 (1944)).

Before Heller, the regulation could not be challenged on Second Amendment grounds because federal courts did not recognize the Second Amendment as protecting an individual right to bear arms. See WINKLER, supra note 28, at 33. The regulation was challenged, however, in light of its applicability to Indians. See United States v. Sanders, 799 F.2d 557, 559-60 (9th Cir. 1986) (holding the regulation did not infringe upon a Crow Indian’s reserved hunting rights because it did not affect the game that could be taken or the location where such game could be hunted). Its applicability without prior notice was also challenged. See United States v. Lofton, 233 F.3d 313, 316 (4th Cir. 2000) (holding a park superintendent did not need to post notice that [section] 2.4 prohibited the carrying of guns within a given park). After Heller, the regulation was subject to constitutional challenge because it was not among Heller’s list of presumptively lawful measures and, arguably, implicated individuals’ Second Amendment rights. See Masciandaro, 638 F.3d at 466-67 (observing that a considerable degree of uncertainty remains as to the scope of the Second Amendment right outside the home).

(73.) 36 C.F.R. [section] 2.4(b) (2008). The regulation was later superseded by statute following a rulemaking and subsequent litigation. See 16 U.S.C. [section] la-7b (Supp. 2010) (stating that the Secretary of the Interior shall not promulgate or enforce any regulation that prohibits an individual from possessing a firearm in a unit of the National Park System so long as that individual lawfully possesses that firearm and is in compliance with the firearm laws of the state in which the park is located).

(74.) Masciandaro, 638 F.3d at 465. The court noted, without further comment, that Masciandaro’s home was twenty miles from the site of his arrest, Id. at 461. It is conceivable the proximity of Masciandaro’s home, which seemed to undermine his business-travel defense, could have played some role in the court’s decision.

(75.) See District of Columbia v. Heller, 554 U.S. 570, 628 (2008) (“[T]he inherent right of self-defense has been central to the Second Amendment right.”).

(76.) See Masciandaro, 638 F.3d at 467.

(77.) See id. at 468 (“Because self-defense has to take place wherever a person happens to be, it follows that the right extends to public areas beyond the home.” (internal quotation omitted)).

(78.) See id. at 474 (“In our view it is unnecessary to explore in this case the question of whether and to what extent the Second Amendment right recognized in Heller applies outside the home.”).

(79.) See id. at 473 (“We need not, however, resolve the ambiguity in the “sensitive places’ language in this case, because even if [the national park] is not a sensitive place, as Masciandaro argues, 36 C.F.R. [section] 2.4(b) still passes constitutional muster under the intermediate scrutiny standard.”).

(80.) Id.

(81.) Specifically, Judges Wilkinson and Duffy declined to support Judge Niemeyer’s reading of Heller and instead held the court should decide the issue as narrowly as possible in recognition of the doctrine of constitutional avoidance. See id. at 474-75 (majority opinion).

(82.) See id. at 473-74 (recognizing that the park where Masciandaro was arrested was an “area where large numbers of people, including children, congregate for recreation … [t]he Secretary [of the Interior] could have reasonably concluded that, when concealed within a motor vehicle, a loaded weapon becomes even more dangerous”).

(83.) Id.

(84.) Id.

(85.) Id. (citations omitted). Here, the Masciandaro court relied on language in Heller referring to nineteenth-century decisions that upheld prohibitions on carrying concealed weapons, though Heller’s laundry list does not include concealed-carry prohibitions. See District of Columbia v. Heller, 554 U.S. 570, 626 (2008). The language the Masciandaro court relied upon precedes the laundry list in the Heller opinion, and supports the idea that the Second Amendment is not unlimited. See id. In the next sentence, the Court declined to “undertake an exhaustive historical analysis” and declined also to declare whether twenty-first-century courts would agree with their nineteenth-century counterparts, Id.

(86.) See Masciandaro, 638 F.3d at 473 (“We need not … resolve the ambiguity in the ‘sensitive places’ language in this case….”).

(87.) See id. at 473-74 (“In this respect, [section] 2.4(b) is analogous to the litany of state concealed carry prohibitions specifically identified as valid in Heller.”).

(88.) These restrictions do not fall into Heller’s list of presumptively lawful measures because misdemeanants are, by definition, not felons, yet the rationale behind the bans (keeping firearms out of the hands of people adjudged to be dangerous to others) is similar to the rationale behind banning felons from possessing guns.

(89.) See Heller, 554 U.S. at 626.

(90.) See United States v. Skoien, 614 F.3d 638, 643-45 (7th Cir. 2010) (en banc) (surveying case law and academic literature regarding the constitutionality of 18 U.S.C. [section] 922(g)(9) (2006) after Heller, and concluding that the provision is lawful under the Second Amendment).

(91.) Heller, 554 U.S. at 626.

(92.) 18 U.S.C. [section] 922(g)(8)-(9) (2006).

(93.) See, e.g., United States v. Joos, 638 F.3d 581, 586 (8th Cir. 2011) (holding it is well-established in post-Heller case law that a federal ban on felons in possession of firearms is constitutional under the Second Amendment). Joos is fairly typical in that it cites to Heller’s list, but does not find it necessary or efficient to discuss why the laundry list measures are constitutional.

(94.) See, e.g., United States v. Barton, 633 F.3d 168, 171-72 (3d Cir. 2011) (holding the presumptively lawful language in Heller is “not dicta” and that it renders statutes preventing felons from possessing guns because of their felon status constitutional).

(95.) [section] 922(g)(8)-(9).

(96.) 614 F.3d 638 (7th Cir. 2010) (en banc).

(97.) Id. at 639.

(98.) Id.

(99.) Id. at 640.

(100.) The court avoided declaring intermediate scrutiny as the appropriate method for determining the constitutionality of criminal penalties for gun possession. Instead, it alluded to intermediate scrutiny and stated the court “need not get more deeply into ‘the levels of scrutiny’ quagmire” because the statute’s goal of “preventing armed mayhem” was an “important government objective.” Id. at 641-42.

(101.) See id. at 643, 645.

(102.) See id. at 640-41 (citing District of Columbia v. Heller, 554 U.S. 570, 604 (2008)).

(103.) See id. at 641-42.

(104.) Id.

(105.) See United States v. White, 593 F.3d 1199, 1205-06 (11th Cir. 2010).

(106.) Id. at 1204.

(107.) Id. at 1205.

(108.) 18 U.S.C. [section] 922(g)(l) (2006).

(109.) See White, at 1205-06 (“[A]lthough passed relatively recently, [section] 922(g)(9) addresses the thorny problem of domestic violence, a problem Congress recognized was not remedied by ‘longstanding’ felon-in-possession laws. We see no reason to exclude [section] 922(g)(9) from the list of longstanding prohibitions on which Heller does not cast doubt.”).

(110.) See id. at 1206 (“We now explicitly hold that [section] 922(g)(9) is a presumptively lawful ‘longstanding prohibition on the possession of firearms.'”).

(111.) See id.

(112.) See id. at 1205-06.

(113.) The Fourth Circuit also relied upon United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), which held a ban on possession of firearms with obliterated serial numbers to be constitutional. See United States v. Chester, 628 F.3d 673,680 (4th Cir. 2010).

(114.) Chester was another domestic violence misdemeanant challenge. See 628 F.3d at 677. The Chester court rejected White as being too close to the rational-basis analysis specifically rejected in Heller. See id. at 679.

(115.) This analysis loosely followed the Third Circuit’s opinion in Marzzarella, 614 F.3d 85.

(116.) Chester, 628 F.3d at 680 (citations omitted). The Chester court relied on the analysis in Marzzarella which found a variety of standards of review, including intermediate scrutiny (that typically involves a means-ends analysis), appropriate for evaluating Second Amendment challenges. Marzzarella, 614 F.3d at 96-97. Notably, Marzzarella comes closest to using the evaluative framework described in this Note. See Part III infra.

(117.) Chester, 628 F.3d at 680-81 (analogizing to felon-in-possession statutes and finding the historical data inconclusive).

(118.) Id. at 682 (borrowing from First Amendment jurisprudence).

(119.) Chester’s wife called police after Chester grabbed her by the throat and threatened to kill her after she caught him receiving the services of a prostitute in front of their home. Id. at 684.

(120.) Id. at 683.

(121.) Id.

(122.) See id. (“[W]e conclude that intermediate scrutiny is more appropriate than strict scrutiny for Chester and similarly situated persons?’). Intermediate scrutiny does not require a compelling government interest or the least restrictive measure possible to achieve that interest. See id. (“[T]he government must demonstrate under the intermediate scrutiny standard that there is a ‘reasonable fit’ between the challenged regulation and a ‘substantial’ government objective.” (citing Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469 (2002))). Instead, the State must only show its interest is substantial and the measure is a “tight fit” to achieve the end goal. See supra note 54 and accompanying text (discussing intermediate scrutiny review).

(123.) Chester, 628 F.3d at 682-83.

(124.) As noted previously, the Fourth Circuit had the Seventh’s and Eleventh’s opinions when it issued Chester. See id. at 683,689.

(125.) See id. at 683. On remand, the district court found the statute in question constitutional under the intermediate scrutiny test. See United States v. Chester, 847 F. Supp. 2d 902, 911-12 (S.D.W. Va. 2012).

(126.) District of Columbia v. Heller, 554 U.S. 570, 627 n.26 (2008).

(127.) See Chester, 628 F.3d at 680.

(128.) This is similar to the course advocated by the Fourth Circuit in Chester, however the test here does not require historical analysis to determine the status of the right when the Second Amendment was enacted. See id. (“[I]t appears to us that the Court would apply some form of heightened constitutional scrutiny if a historical evaluation did not end the matter…. Thus, a two-part approach to Second Amendment claims seems appropriate under Heller…. The first question is whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” (internal citations omitted)).

(129.) 638 F.3d 458, 467-68 (4th Cir. 2011) (Niemeyer, J., concurring). Such an approach has been advocated in the scholarly literature as well. See Gould, supra note 22, at 1562-63.

(130.) See, e.g., Darrell A.H. Miller, Guns as Smut: Defending the Home-Bound Second Amendment, 109 COLUM. L. REV. 1278, 1278 (2009) (arguing Heller only protects the right to keep a gun in the home); Eugene Volokh, The First and Second Amendments, 109 COLUM. L. REV. SIDEBAR 97, 98 (2009) (arguing Heller acknowledges a traditional right to carry firearms inside and outside the home).

(131.) See Masciandaro, 638 F.3d at 468 (citing District of Columbia v. Heller, 554 U.S. 570, 628 (2008)) (noting the Second Amendment protected the individual right to bear arms so that people could participate in citizen militias and that the Heller Court implicitly recognized the right to carry a gun outside the home by emphasizing the need “for defense of self, family, and property is most acute” in the home). But see id. at 474-75 (declining to address whether the Second Amendment individual right applies outside the home).

(132.) See supra Part II.

(133.) See Masciandaro, 638 F.3d at 468; see also Heller, 554 U.S. at 628 (finding handguns to be the “class of arms … overwhelmingly chosen by American society for that lawful purpose” (internal quotation marks omitted)).

(134.) For instance, restrictions on machine guns and explosives have not prevented Americans from owning over 100 million guns. See WINKLER, supra note 28, at 19-20.

(135.) See 18 U.S.C. [section] 922(b)(4) (2006) (banning the sale or delivery of machine guns except in certain limited circumstances).

(136.) See id. at [section] 922(a)(7)-(8) (prohibiting manufacture and sale of armor-piercing ammunition except in certain limited circumstances).

(137.) See Heller, 554 U.S. at 627 (explicitly recognizing the prohibition on “the carrying of dangerous and unusual weapons” as among the lawful restrictions on the Second Amendment right not upset by the Heller decision, including the ban on machine guns (internal quotation marks and citations omitted)).

(138.) See id.

(139.) When the Court rejected rational basis in Heller, it did so specifically in reference to laws affecting core enumerated constitutional rights, not ancillary laws such as ammunition bans or regulations. See Heller, 554 U.S. at 628 n.27; see also supra note 52.

(140.) Skoien, 614 E3d at 641-42.

(141.) See id. Any intermediate scrutiny analysis involving criminal gun statutes will put what is nearly always a substantial government interest, public safety, against the total prohibition on the exercise of a fundamental constitutional right, possessing a handgun for self-defense. Such an analysis appears to be at equipoise and will not yield consistent results.

(142.) See Miller, supra note 130 (proposing the treatment of the Second Amendment’s right to keep and bear arms should be “the same as the fight to own and view adult obscenity under the First Amendment–a robust right in the home, subject to near-plenary restriction by elected government elsewhere”).

(143.) See United States v. White, 593 F.3d 1199, 1205-06 (11th Cir. 2010) (holding felons and domestic violence misdemeanants to be persons not entitled to blanket Second Amendment protection because they are not “law-abiding citizens”).

(144.) One common example is the right to vote, as protected by the Fourteenth Amendment’s Equal Protection Clause, which may be stripped from felons even after they have completed their sentences. See Richardson v. Ramirez, 418 U.S. 24, 56 (1974) (holding that a state may disenfranchise felons without violating said felons’ equal protection rights under the Fourteenth Amendment).

(145.) See District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008) (“[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill….”). This Note presumes the Court was referring to individuals subject to involuntary civil commitment because they have been found to be a danger to themselves or others, as codified in 18 U.S.C. [section] 922(g)(4) (2006).

(146.) See, e.g., Richardson, 418 U.S. 24 (providing for felon disenfranchisement).

(147.) See Kansas v. Crane, 534 U.S. 407, 412 (2002) (explaining individuals who have some control over their behavior but are “highly dangerous persons suffering severe mental abnormalities” may be subject to civil commitment).

(148.) See Parham v. J.R., 442 U.S. 584, 600 (1979) (examining the liberty interest implicated in the commitment of a child to a mental hospital and finding “[i]t is not disputed that a child, in common with adults, has a substantial liberty interest in not being confined unnecessarily for medical treatment”).

(149.) See Buckley v. Valeo, 424 U.S. 1, 18 (1976).

(150.) Though the literature is rife with such analogies. See, e.g., Volokh, supra note 130, at 98. It has also become common in lower court decisions post-Heller. See United States v. Masciandaro, 638 F.3d 458,470 (4th Cir. 2011).

(151.) See Ward v. Rock Against Racism, 492 U.S. 937 (1989) (upholding noise regulation as not violating free speech rights of performers).

(152.) District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008).

(153.) See Erznoznik v. City of Jacksonville, 422 U.S. 205, 209-11 (1975) (evaluating whether prohibition on nude films was content-neutral to determine whether a city regulation was an impermissible burden on plaintiff’s First Amendment rights).

(154.) Regulations that address only certain types of “dangerous or unusual weapons” would be presumptively lawful. See Heller, 554 U.S. at 627 (citations omitted).

(155.) Because a TPM restriction necessarily would apply to a prohibition on the possession or use of any firearm for self-defense, it would by definition be “neutral.” The author is unaware of any criminal gun laws that allow the possession of handguns in, for instance, a sensitive government area, but not the possession of machine guns.

(156.) See, e.g., Masciandaro, 638 F.3d at 473 (holding the government had a substantial interest in limiting the possession of loaded guns in national parks in order to promote public safety).

(157.) See Winkler, supra note 54 (providing an in-depth analysis of myriad empirical studies, finding the studies inconclusive and, because of the high level of variability between communities and contributing factors, finding that they may always be inconclusive, despite scholars’ best efforts).

(158.) This is presumably the “tragic act of mayhem” Judge Wilkinson feared in Masciandaro, 638 F.3d at 475.

(159.) Heller, 554 U.S. at 636 (citations omitted) (emphasis added).

(160.) Id. at 626.

(161.) Id. at 626-27.

(162.) See Nat’l Socialist Party of Am. v. Village of Skokie, 432 U.S. 43 (1977) (upholding the First Amendment rights of Nazis to march through a predominantly Jewish city).

(163.) See Heller, 554 U.S. at 636 (“We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution…. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”).

(164.) Id.

(165.) In these cases, the government can satisfy the compelling-interest prong by raising the issue of public safety, provided it is sufficiently well developed.

(166.) See United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000) (holding that under strict scrutiny, if a less restrictive alternative would accomplish the government’s objective, the government must use that alternative).

(167.) See WINKLER, supra note 28 (analyzing strict scrutiny cases, though none involving criminal gun statutes, where the government has been able to meet this heavy burden).

(168.) See Order Granting Defendants’ Motion for Summary Judgment, Doe v. Wilmington Hous. Auth., No. 1:10-cv-00473-LPS (D. Del. July 27, 2012), http://www.delawarelitigation.com/files/2012/08/doe-v.-whaopinion.pdf.

(169.) See supra Part II.

(170.) 18 U.S.C. [section] 922(g)(9) (2006).

(171.) See Wilmington Hous. Auth., No. 1:10-cv-00473-LPS, http://www.delawarelitigation.com/files/2012/08/ doe-v.-wha-opinion.pdf.

(172.) Under Heller, such a restriction would be forbidden as a prohibition on the possession of a gun in the home for self-defense. However, as in Wilmington Hous. Auth., a prohibition extending to the common areas of a housing complex would be upheld. See id.

(173.) Perry Educ. Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37, 45 (1983) (holding the government may restrict access to a school for use by a union for expressive activities even though the school had traditionally been opened for other expressive activities).

(174.) Every U.S. state except Illinois allows concealed carry, though legal fights over the measures continue. See Ray Long, Quinn Stands by Opposition to Conceal Carry in Illinois, CHI. TRIB. (June 22, 2011), http:// articles.chicagotribune.com/2011-06-22/news/chi-quinn-stands-by-opposition-to-conceal-carry-in-illinois- 20110622_l_weapons-issue-gun-policy-illinois.

(175.) For the purposes of this example, it is assumed that Judge Niemeyer was correct and the Second Amendment right in Heller extends outside the home. See United States v. Masciandaro, 638 F.3d 458, 467 (2011); see also Moore v. Madigan, Nos. 12-1788, 12-1269, 2012 WL 6156062 at *2 (7th Cir. Dec. 11, 2012) (Posner, J.) (holding the Second Amendment guarantees a right to bear arms outside one’s home).

(176.) I am expressly contrasting an extreme version of concealed carry with “open carry” (carrying a handgun in a holster that is fully visible to anyone) for illustration purposes.

(177.) See U.S. DEP’T OF EDUC. ET AL., REPORT TO THE PRESIDENT ON ISSUES RAISED BY THE VIRGINIA TECH TRAGEDY 1 (2007).

(178.) Masciandaro, 638 F.3d at 475.

This next article starts off by talking about the terrible event of the Virginia Tech School shooting. thirty two people died in this event and it’ll go down as one of Americas worst school shootings. this article goes on to explain how the laws around guns are way to complicated and how something drastic needs to be done. rather then focusing on making new laws this article focuses on banning guns all together.

it goes on to talk about more school shooting and how laws didnt prevent anything. it states that no matter the laws in place that beef up background checks these shootings will happen. the only thig to do is to not allow them for sale and to ban them.

the one major problem i had with this article was that it was too biased. It took one side and stuck with it. rather then validating opposing points it just sticks with its view point. the problem with this view is that if they ban guns the only people with the guns are going to be the law breakers.