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Articles 1 - 30 of 38
Full-Text Articles in Law
Section 898: Targeting The Companies Behind Gun Violence In New York With Public Nuisance Doctrine, Mara Kravitz
Section 898: Targeting The Companies Behind Gun Violence In New York With Public Nuisance Doctrine, Mara Kravitz
William & Mary Law Review
On July 6, 2021, the New York State Legislature enacted sections 898-a to -e of the New York General Business Law (section 898), creating a clear path for public entities and private gun violence victims to sue gun industry members for their role in the gun violence public nuisance in New York. This Note explores why the legislature took a public nuisance approach to curbing gun violence, framing section 898 within public nuisance doctrine’s broader common law history and legal elements.
To unpack how and why New York took this approach, the first Part of this Note traces the history …
The Corporate Right To Bear Arms, Robert E. Wagner
The Corporate Right To Bear Arms, Robert E. Wagner
William & Mary Business Law Review
The ability of a corporation to exercise constitutional protections has been rife with uncertainty and change since the conception of corporate rights came into existence. The history and rapid development of the corporation, combined with the misapplied and misunderstood “corporate personhood” theory, have resulted in an almost unintelligible hodgepodge of corporate constitutional applications. Similarly, the concept of the right to bear arms has equally been muddled and applied very differently at varying times and locations since before the establishment of the Second Amendment. This Article attempts to clarify how an alternative to the “corporate personhood” theory, namely the “purpose” theory …
Second Amendment Exceptionalism: Public Expression And Public Carry, Timothy Zick
Second Amendment Exceptionalism: Public Expression And Public Carry, Timothy Zick
Faculty Publications
In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court recognized a right to carry firearms in public places. The scope of that right will depend on where, why, and how governments regulated public carry during the eighteenth and perhaps nineteenth centuries. The Court claimed that its turn to history for determining the scope of Second Amendment rights “accords with” and “comports with” how the Court has interpreted First Amendment rights. This Article examines and rejects that claim, both in general and specifically as it applies to the public exercise of Second Amendment rights. Although Bruen …
Twilight-Zone Originalism: The Peculiar Reasoning And Unfortunate Consequences Of New York State Pistol & Rifle Association V. Bruen, Albert W. Alschuler
Twilight-Zone Originalism: The Peculiar Reasoning And Unfortunate Consequences Of New York State Pistol & Rifle Association V. Bruen, Albert W. Alschuler
William & Mary Bill of Rights Journal
This Article consists of two Parts and a conclusion. Part I focuses on the Bruen opinion and considers its contradictions, flaws, fallacies, and implications. Part II examines lower-court decisions applying Bruen during the first year after that decision. These decisions make Bruen’s flaws vivid.
This abstract has been taken from the author's introduction.
Let My People Go, Part Two: The Second Amendment Political Necessity Defense And The Storming Of Capital Hill, Kindaka Sanders
Let My People Go, Part Two: The Second Amendment Political Necessity Defense And The Storming Of Capital Hill, Kindaka Sanders
William & Mary Bill of Rights Journal
The Article examines the traditional political necessity defense, extracting elements that are compatible with the Second Amendment and discarding elements that are not. The Article also explores the historical and legal background of the right to rebel and then uses the right to rebel to define the contours of the Second Amendment political necessity defense. Finally, the Article applies the Second Amendment political necessity defense to the storming of the Capitol on January 6, 2020.
Part I of this Article discusses the constitutional basis for the political necessity defense. Part II articulates the political necessity doctrine refined by its Second …
Let My People Go, Part One: Black Rebellion And The Second Amendment Political Necessity Defense, Kindaka Sanders
Let My People Go, Part One: Black Rebellion And The Second Amendment Political Necessity Defense, Kindaka Sanders
William & Mary Bill of Rights Journal
This Article argues that when an individual or group acts to protect a government-assailed constitutional right by criminal means, the doctrine of political necessity may serve as a constitutionally protected defense. The doctrine of political necessity builds on the common law doctrine of necessity. The necessity doctrine, also referred to as the “choice of evils” defense, exonerates an individual who creates a social harm to allay a greater harm to herself or others. Both state and federal courts have been especially reluctant to allow the use of the necessity defense in cases with political implications, in which the defendant acts …
The Collective Right Endures: Pre-Heller Precedent And Our Understanding Of The Modern Second Amendment, William Reach
The Collective Right Endures: Pre-Heller Precedent And Our Understanding Of The Modern Second Amendment, William Reach
William & Mary Bill of Rights Journal
Prior to 2008, legal scholars who examined the Second Amendment fell roughly into two camps: those who believed “the right of the people to . . . bear arms” only covered state militias, and those who believed it extended to individual citizens.
After District of Columbia v. Heller conclusively established that the “Second Amendment conferred an individual right to keep and bear arms," discussion of the collective right to bear arms largely receded from public discussion and most litigation surrounding the Second Amendment shifted to define the outer edges of the individual right. But the pre-Heller showdown between these …
The Right To Train: A Pillar Of The Second Amendment, Joseph G.S. Greenlee
The Right To Train: A Pillar Of The Second Amendment, Joseph G.S. Greenlee
William & Mary Bill of Rights Journal
Since the Supreme Court confirmed that the Second Amendment protects “the individual right to possess and carry weapons” in District of Columbia v. Heller, lower courts have been grappling with whether there is also a right to train with those weapons. Courts have considered whether training is a protected activity, whether it is a “core” right, and whether its protection is limited to gaining the minimum competency needed for self-defense.
[...]
No court yet has explored the legal history of the right to train, nor has any article. This Article presents the first in-depth historical exploration of the right. …
The Next Fight Over Guns In America, Timothy Zick, Diana Palmer
The Next Fight Over Guns In America, Timothy Zick, Diana Palmer
Popular Media
With Thursday’s Supreme Court decision [in New York State Rifle & Pistol Association Inc. v. Bruen], the only real remaining question is not whether Americans can carry firearms, but where.
The Constitutional Right To Carry Firearms On Campus, Jared A. Tuck
The Constitutional Right To Carry Firearms On Campus, Jared A. Tuck
William & Mary Law Review
Do individuals have the fundamental right under the Second Amendment to carry firearms on the campus of a public university? Additionally, can a public university totally ban firearms on its campus without impeding on the constitutional right to keep and bear arms protected by the Second Amendment? This Note will argue that individuals have a narrow, but constitutionally guaranteed, right to carry firearms on the campus of a public university. Therefore, it is beyond the power of states and public universities to totally ban firearms from campus premises.
The Second Amendment Has Become A Threat To The First, Diana Palmer, Timothy Zick
The Second Amendment Has Become A Threat To The First, Diana Palmer, Timothy Zick
Popular Media
No abstract provided.
Judging History: How Judicial Discretion In Applying Originalist Methodology Affects The Outcome Of Post-Heller Second Amendment Cases, Mark Anthony Frassetto
Judging History: How Judicial Discretion In Applying Originalist Methodology Affects The Outcome Of Post-Heller Second Amendment Cases, Mark Anthony Frassetto
William & Mary Bill of Rights Journal
This Article aims to assess how the federal appellate courts have applied the originalist methodology in Second Amendment cases in the decade since Heller. It reviews how courts’ varying approaches to historical analysis—specifically, how courts have addressed what historical period to look to, how prevalent a historical tradition must be, and whether to address history at a high or low level of generality—can drastically affect the outcome of cases. As Justice Scalia acknowledged in McDonald, “Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to …
Framing The Second Amendment: Gun Rights, Civil Rights And Civil Liberties, Timothy Zick
Framing The Second Amendment: Gun Rights, Civil Rights And Civil Liberties, Timothy Zick
Faculty Publications
Gun rights proponents and gun control advocates have devoted significant energy to framing the constitutional right to keep and bear arms. In constitutional discourse, advocates and commentators have referred to the Second Amendment as a "collective, ""civic republican," "individual," and 'fundamental" right. Gun rights advocates have defended the right to keep and bear arms on "law and order" grounds, while gun control proponents have urged regulation based on "public health, " "human rights, " and other concerns. These frames and concepts have significantly influenced how the right to keep and bear arms has been debated, interpreted, and enforced. This Article …
Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai
Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai
William & Mary Bill of Rights Journal
No abstract provided.
Constitutional Conflict And Sensitive Places, Darrell A. H. Miller
Constitutional Conflict And Sensitive Places, Darrell A. H. Miller
William & Mary Bill of Rights Journal
No abstract provided.
Political And Non-Political Speech And Guns, Gregory P. Magarian
Political And Non-Political Speech And Guns, Gregory P. Magarian
William & Mary Bill of Rights Journal
No abstract provided.
The Constitutional Case For "Red Flag" Laws, Timothy Zick
The Constitutional Case For "Red Flag" Laws, Timothy Zick
Popular Media
No abstract provided.
Brief Of Constitutional Law Professors As Amici Curiae In Support Of Respondent, Vincent Levy, Timothy Zick, Gregory P. Magarian
Brief Of Constitutional Law Professors As Amici Curiae In Support Of Respondent, Vincent Levy, Timothy Zick, Gregory P. Magarian
Briefs
No abstract provided.
The First Amendment, The Second Amendment, And 3d Firearms, Timothy Zick
The First Amendment, The Second Amendment, And 3d Firearms, Timothy Zick
Popular Media
No abstract provided.
“Time Enough” For Scrutiny: The Second Amendment, Mental Health, And The Case For Intermediate Scrutiny, Benjamin A. Ellis
“Time Enough” For Scrutiny: The Second Amendment, Mental Health, And The Case For Intermediate Scrutiny, Benjamin A. Ellis
William & Mary Bill of Rights Journal
No abstract provided.
The “True Man” And His Gun: On The Masculine Mystique Of Second Amendment Jurisprudence, C. D. Christensen
The “True Man” And His Gun: On The Masculine Mystique Of Second Amendment Jurisprudence, C. D. Christensen
William & Mary Journal of Race, Gender, and Social Justice
The Supreme Court’s recent Second Amendment jurisprudence raises serious normative questions for the use of self-defense with a firearm. This jurisprudence also implicates our prevailing social norms with respect to socially constructed and structurally pervasive gender roles. I argue that a peculiarly American conception of masculinity underpins the judicial construction of the Second Amendment’s core purpose as guaranteeing the right to armed defense of one’s self and one’s home. The Court’s recent Second Amendment rulings create an individual protection for gun ownership and incorporate the same against the States. But the Court’s reasoning entangles this protection with an implicit valuation …
The Right To Remain Armed, Jeffrey Bellin
The Right To Remain Armed, Jeffrey Bellin
Faculty Publications
The laws governing gun possession are changing rapidly. In the past two years, federal courts have wielded a revitalized Second Amendment to invalidate longstanding gun carrying restrictions in Chicago, the District of Columbia, and throughout California. Invoking similar Second Amendment themes, legislators across the country have steadily deregulated public gun carrying, preempting municipal gun control ordinances in cities like Philadelphia, Atlanta, and Cleveland.
These changes to substantive gun laws reverberate through the constitutional criminal procedure framework. By making it lawful for citizens to carry guns even in crowded urban areas, enhanced Second Amendment rights trigger Fourth Amendment protections that could …
The Dormant Second Amendment: Exploring The Rise, Fall, And Potential Resurrection Of Independent State Militias, Michael J. Golden
The Dormant Second Amendment: Exploring The Rise, Fall, And Potential Resurrection Of Independent State Militias, Michael J. Golden
William & Mary Bill of Rights Journal
The term “militia” is polarizing, misunderstood, misapplied, and generally difficult for modern Americans to digest. That is not surprising, given the depth and breadth of American militia history and militias’ substantial evolution over four centuries.
Historically, militia simply refers to a broad-based civic duty to protect one’s fellow citizens from internal and external dangers and is not limited to activities involving firearms. Reestablishing militia’s true meaning and purpose—and reinvigorating independent state militias in the United States to effect that purpose—has the potential to address states’ emerging financial and security gaps and to produce multiple other significant benefits, including recalibrating federalism. …
Good Guys, Bad Guys And Gun Control, Nathan B. Oman
Good Guys, Bad Guys And Gun Control, Nathan B. Oman
Popular Media
No abstract provided.
Guns And Membership In The American Polity, Pratheepan Gulasekaram
Guns And Membership In The American Polity, Pratheepan Gulasekaram
William & Mary Bill of Rights Journal
No abstract provided.
Where Do We Go From Here? Handgun Regulation In A Post-Heller World, Lindsey Craven
Where Do We Go From Here? Handgun Regulation In A Post-Heller World, Lindsey Craven
William & Mary Bill of Rights Journal
No abstract provided.
Rescuing The Fourteenth Amendment Privileges Or Immunities Clause: How "Attrition Or Parliamentary Processes" Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House, Michael Anthony Lawrence
Rescuing The Fourteenth Amendment Privileges Or Immunities Clause: How "Attrition Or Parliamentary Processes" Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House, Michael Anthony Lawrence
William & Mary Bill of Rights Journal
No abstract provided.
Guns And Speech Technologies: How The Right To Bear Arms Affects Copyright Regulations Of Speech Technologies, Edward Lee
William & Mary Bill of Rights Journal
This Article examines the possible effect the Supreme Court's landmark Second Amendment ruling in District of Columbia v. Heller will have on future cases brought under the Free Press Clause.' Based on the text and history of the Constitution, the connection between the two Clauses is undeniable, as the Heller Court itself repeatedly suggested. Only two provisions in the entire Constitution protect individual rights to a technology: the Second Amendment's right to bear "arms" and the Free Press Clause's right to the freedom of the "press," meaning the printing press. Both rights were viewed, moreover, as pre-existing, natural rights to …
Why Protect Private Arms Possession? Nine Theories Of The Second Amendment, Michael S. Green
Why Protect Private Arms Possession? Nine Theories Of The Second Amendment, Michael S. Green
Faculty Publications
No abstract provided.
An International Human Right To Keep And Bear Arms, Christopher J. Schmidt
An International Human Right To Keep And Bear Arms, Christopher J. Schmidt
William & Mary Bill of Rights Journal
No abstract provided.