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112 J. Crim. L. & Crimin. Online 1 (2022-2023)

handle is hein.journals/jclconl112 and id is 1 raw text is: THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 112 Online Copyright © 2022 by Francesca Laguardia CANNIBALIZING THE CONSTITUTION: ON TERRORISM, THE SECOND AMENDMENT, AND THE THREAT TO CIVIL LIBERTIES FRANCESCA LAGUARDIA* This article explores the links between internet radicalization, access to weapons, and the current threat from terrorists who have been radicalized online. The prevalence of domestic terrorism, domestic hate groups, and online incitement and radicalization have led to considerable focus on the tension between counterterror efforts and the First Amendment. Many scholars recommend rethinking the extent of First Amendment protection, as well as Fourth, Fifth, and Sixth Amendment protections, and some judges appear to be listening. Yet the Second Amendment has avoided this consideration, despite the fact that easy access to weapons is a necessary ingredient for the level of threat posed by online incitement. This article clarifies the way these civil liberties interact to create the threat, suggesting that pro-democracy rights such as protections on speech and privacy should not bear all the burden of compromise for the sake of protection from terrorism. IN TR O D U CTIO N ............................................................................ 2 I. THE NEW AGE OF TERRORISM-FASTER, SMALLER T H R E A T S............................................................................. 5 A. What Makes Terrorism (Really) Dangerous................... 6 B. Modern Terrorism-Quantity Over Quality................... 8 II. EATING AWAY AT THE ANTI-TYRANNICAL BILL O F RIG H TS ................................................................. 9 A . The First Am endm ent .................................................... 10 B. Criminal Procedure as Anti-Tyranny............................. 13 * Associate Professor, Justice Studies at Montclair State University; Criminal Justice Fellow at the Center on National Security at Fordham University School of Law; J.D. New York University School of Law 2007; Ph.D. New York University Institute for Law and Society 2012. The author would like to thank Amanda Gvozden, Evan Binder, Danny Dvorak, and the staff of the Journal of Criminal Law & Criminology for their work on this article. 1

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