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SMOKEYMOUNTAIN
01-31-2011, 5:24 PM
I'm finishing my last year in law school. :)

I'm currenting taking a criminal law theory seminar to finish off my upper division legal writing requirement.

I'm having a problem picking a relevant topic that interests me.

I can choose any issue relevant in criminal law, besides criminal procedure. I want to chose a topic related to guns, because gun law is of interest to me and will likely make me a more diligent and enthusiastic legal researcher.

Some ideas: The comparison of gun control laws between different states and jurisdictions; justifiable homicide, perfect and imperfect self-defense, The Castle Doctrine, The Duty to Retreat, etc.

The problem is that I need to be able to find a relevant issue that is debatable on both sides and/or currently split in different districts and jurisdictions.

BTW, my professor is a extremely liberal female that is definitely anti-gun. But I don't care if I write on a topic that she disagrees with, she might even like that.

Any feedback is welcome!

Thanks!

RandyD
01-31-2011, 5:35 PM
If you are in California, you could write on the assault weapons ban and how law enforcement was granted an exception after the statute was enacted due to the difficulty of understanding the statute.

PhantomII
01-31-2011, 5:57 PM
The ratios between crimes involving firearms committed by persons with a previous felony conviction (prohibited persons) and those committed by people with no prior convictions and how the revolving door prison system affects this ratio along with the failure of any gun control laws to prevent these crimes.

hoffmang
01-31-2011, 8:40 PM
"If the possession of a firearm inside the home for self defense is a fundamental enumerated right, how can that possession be used to enhance the sentence or be the primary charge for someone otherwise growing a controlled substance in the home?"

"The right to keep arms implies the right to sell arms. How does the 'highly regulated business' exception allow warrantless ATF inspections of FFLs while it does not allow warrantless FBI inspections of libraries or bookstores?"

I've got some more if you want 'em :43:

-Gene

otalps
01-31-2011, 9:51 PM
This would make a good topic (http://www.aoc.state.nc.us/www/public/sc/opinions/2009/pdf/488-07-1.pdf) with plenty of debate on both sides. It's about felons and the right to bear arms.

There's a summary at Volokh. (http://volokh.com/posts/1251496843.shtml)

The North Carolina Supreme Court has just held, in Britt v. State, that some felons -- whose crimes are long in the past -- do have a constitutional right to bear arms, at least under the North Carolina Constitution:

Plaintiff pleaded guilty to one felony count of possession with intent to sell and deliver a controlled substance in 1979. The State does not argue that any aspect of plaintiff’s crime involved violence or the threat of violence. Plaintiff ompleted his sentence without incident in 1982. Plaintiff’s right to possess firearms was restored in 1987. No evidence has been presented which would indicate that plaintiff is dangerous or has ever misused firearms, either before his crime or in the seventeen years between restoration of his rights and [the 2004] adoption of N.C.G.S. § 14-415.1’s complete ban on any possession of a firearm by him. Plaintiff sought out advice from his local Sheriff following the amendment of N.C.G.S. § 14-415.1 and willingly gave up his weapons when informed that possession would presumably violate the statute. Plaintiff, through his uncontested lifelong nonviolence towards other citizens, his thirty years of law-abiding conduct since his crime, his seventeen years of responsible, lawful firearm possession between 1987 and 2004, and his assiduous and proactive compliance with the 2004 amendment, has affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety....

Based on the facts of plaintiff’s crime, his long post-conviction history of respect for the law, the absence of any evidence of violence by plaintiff, and the lack of any exception or possible relief from the statute’s operation, as applied to plaintiff, the 2004 version of N.C.G.S. § 14-451.1 is an unreasonable regulation, not fairly related to the preservation of public peace and safety [the constitutional test that the court was applying under the state constitution -EV]. In particular, it is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety.

[Footnote moved:] Because we hold that application of N.C.G.S. § 14-415.1 to plaintiff is not a reasonable regulation, we need not address plaintiff’s argument that the right to keep and bear arms is a fundamental right entitled to a higher level of scrutiny.

The vote was 5-2, with four of the five Justices joining the majority opinion and the fifth concurring in the judgment without written opinion. Note that since this is an interpretation of the North Carolina Constitution, the decision is final, with no basis for further review by the U.S. Supreme Court (though of course it can be overturned through the North Carolina constitutional amendment process, should there be enough support for that).

Kukuforguns
01-31-2011, 9:58 PM
Ok, this proposed topic is taken from Theseus's case.

If every constitutional violation requires some sort of redress, what is the redress for the unreasonable, nonconsensual search for identification papers?

The police would not have been able to identify Theseus but for the fact that the police improperly searched him for his identification. Due to case precedent, Theseus could not use the exclusionary rule as to his identity. Based on my research, I found no disincentive for police not to conduct nonconsensual searches for identifying documents. In fact, immigration officers routinely perform nonconsensual searches for identification papers.

Pisses me off, it does. Plus, if you play up the immigration angle, your lefty professor will not have have an involuntary and negative reaction to your paper.

Falconis
02-01-2011, 1:54 AM
I would go with whatever Gene suggests as it may help them down the road.


To pick from your list though, I would go with the duty to retreat argument. I thought it ( having to retreat) was BS when I was a kid, a teenager and now.

sighere
02-01-2011, 4:26 AM
How about:
Liberal vs restrictive CCW laws and levels of street crime such as assault/robbery/rape? Is it the level of CCW that creates the disparity (if there is one) or is it other things such as better policing, community involvement etc...?

SMOKEYMOUNTAIN
02-01-2011, 3:46 PM
Great suggestions so far guys. I'm trying to stay away from the statistical and more on the legal side.

I have to submit my topic by 7pm tommorow night.

Keep em coming!

snobord99
02-01-2011, 5:42 PM
If you want to stay firearms-related, personally I would probably do something on the prohibition of firearm possession for all felons regardless of the crime. I don't know how often this topic has been done, but I imagine not much has been written on the topic since Heller so you could probably incorporate standards of review into this discussion. I think this would easily bring in a discussion of governmental interest in keeping, say, a rapist from having a firearm vs., say, allowing Bernie to have one.

SMOKEYMOUNTAIN
02-02-2011, 2:00 PM
Excellent suggestions guys. But some of the suggested topics are super narrow and I doubt I will find good case law on both sides.

So, I have narrowed down my topic selection to the following three:

(1) Retreat in self-defense and the split in jurisdictions over whether
cohabitants must retreat; and the duty to retreat generally;

(2) Comparison of states with different Castle Doctrines; or

(3) Justifiable Homicides: Particularly Imperfect and Perfect Self-Defense.

Please let me know which one is most interesting, can be vigorously debated on both sides, and would have persuasive case law from different states arguing both sides.

Thanks!!!

hoffmang
02-02-2011, 7:45 PM
As to 1 and 2, there is a bunch of interesting information on the Federal common law definition of "self defense" in Chuck Michel's amicus in McDonald and now that self defense is a fundamental individual right, isn't there a federal minimum in all 50 states now?

-Gene

Falconis
02-02-2011, 8:46 PM
set up a poll for this? My vote is still for self defense. Only because I have history with a poli sci professor on this subject (over 10 years ago). His class and he was able to end the discussion after a period of time. I'll let you guess when he ended it.

dantodd
02-02-2011, 10:07 PM
I don't know of any states that require one to retreat.

Tarn_Helm
02-03-2011, 5:52 AM
Excellent suggestions guys. But some of the suggested topics are super narrow and I doubt I will find good case law on both sides.

So, I have narrowed down my topic selection to the following three:

(1) Retreat in self-defense and the split in jurisdictions over whether
cohabitants must retreat; and the duty to retreat generally;

(2) Comparison of states with different Castle Doctrines; or

(3) Justifiable Homicides: Particularly Imperfect and Perfect Self-Defense.

Please let me know which one is most interesting, can be vigorously debated on both sides, and would have persuasive case law from different states arguing both sides.

Thanks!!!

I would have compared laws regarding use of lethal force to defend private property.

Texas is one state that, under certain circumstances, recognizes the right to use of lethal force (including guns) to defend private property.

I would compare the reasons given by Texan legal theorists to the reasons given by those who oppose use lethal force (including guns) to defend private property.

To me, that is a very important, fruitful, and neglected area of legal thought, and an area of the law much in need of legal "reform."

You are not just defending your right to keep and own an inanimate object.

You are defending all of the time, money, and energy which you put into acquiring and maintaining it--none of which are recoverable if it is destroyed or taken from you.

The law should recognize human finitude as a bedrock reason for allowing use of lethal force (including guns) to defend private property.

I can never recover my finite and expended hours of life if someone steals or destroys something of mine.

To me, that is a permanent, irrecoverable loss of one's life, or a portion thereof, which is akin to the concept of loss incurred by victims of mayhem and torture.

Therefore actual or threatened loss of property should be something against which one may legally defend oneself with lethal force.

Here are a few lines of CA Code relevant to this topic:

CALIFORNIA CODES
PENAL CODE (http://www.leginfo.ca.gov/calaw.html)
SECTION 203-206.1
http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=pen&codebody=mayhem&hits=All

203. Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.

204. Mayhem is punishable by imprisonment in the state prison for two, four, or eight years.

205. A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body. For purposes of this section, it is not necessary to prove an intent to kill. Aggravated mayhem is a felony punishable by imprisonment in the state prison for life with the possibility of parole.

206. Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture.
The crime of torture does not require any proof that the victim suffered pain.

206.1. Torture is punishable by imprisonment in the state prison for a term of life.

AJAX22
02-03-2011, 6:30 AM
I would do the paper on the instances in history where the supreme court has heard cases which decided constitutional issues in which no defense was raised.

or when the supreme court has issued a decision which upheld a conviction or set aside a circuit court's dismissal even though the accused was not present/dead... essentially convicting a dead man of a crime for which he was not able to defend himself from.

i.e. the 1938 miller case