Law Commons^™

Firearm Contagion: A New Look At History, Rachel Martin, Michael Ulrich

Faculty Scholarship

Gun violence is widely considered a serious public health problem in the United States, but less understood is what this means, if anything, for evolving Second Amendment doctrine. In New York Pistol & Rifle Association, Inc. v. Bruen, the Supreme Court held that laws infringing Second Amendment rights can only be sustained if the government can point to sufficient historical analogues. Yet, what qualifies as sufficiently similar, a suitable number of jurisdictions, or the most important historical eras all remain unclear. Under Bruen, lower courts across the country have struck down gun laws at an alarming pace, while …

The American Tradition Of Self-Made Arms, Joseph G.S. Greenlee

St. Mary's Law Journal

No abstract provided.

In Defense Of Self And Home: The Problems With Limiting Second Amendment Rights For Young Adults Based On Their Age, Andrew White

University of Cincinnati Law Review

No abstract provided.

A Flawed Case Against Black Self-Defense, Nicholas J. Johnson

Faculty Scholarship

No abstract provided.

Second Amendment Sanctuaries, Shawn E. Fields

Northwestern University Law Review

The term “sanctuary” has long expressed a sympathy for immigrants’ rights and resistance to federal immigration enforcement. Recently, the word has become associated with another divisive political topic, as local governments have begun declaring themselves “Second Amendment Sanctuaries” in defiance of statewide gun-control measures they deem unconstitutional. This gun-rights resistance movement not only flips the political script on the nature of sanctuaries, but also presents important and challenging questions about local–state power sharing, the proper scope of “subfederal commandeering,” and the role of coordinate branches in constitutional decision-making. This Article provides the first scholarly treatment of Second Amendment Sanctuaries. In …

State V. Brown: How Limited A Right To Keep And Bear Arms?, June A. Jackson

Maine Law Review

Most state constitutions contain a clause guaranteeing a right to keep and bear arms. With gun control legislation on the rise, these state constitutional guarantees have come under increasing scrutiny. In State v. Brown defendant Edward Brown, a convicted felon, challenged the Maine statute that forbade him to possess firearms on the ground that it violated his state constitutional right to bear arms. Similar statutes around the country limit the right to bear arms in various ways. Case law has tended to uphold these limitations and to establish that the right to bear arms is a limited right at best. …

The Faces Of The Second Amendment Outside The Home, Take Three: Critiquing The Circuit Courts Use Of History-In-Law, Patrick J. Charles

Cleveland State Law Review

This article seeks to critique the circuit courts’ varying history-in-law approaches, as well as to provide advice on the proper role that history-in-law plays when examining the scope of the Second Amendment outside the home. This article sets forth to accomplish this task in three parts. Part I argues why history-in-law is appropriate when adjudicating Second Amendment decisions outside the home. Part II examines the benefits and burdens of utilizing history-in-law as a method of constitutional interpretation, while breaking down the alternative approaches employed by circuit courts when adjudicating Second Amendment decisions outside the home. Lastly, Part III offers practical …

Considerations Of History And Purpose In Constitutional Borrowing, Robert Tsai

Articles in Law Reviews & Other Academic Journals

This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …

Automatic Authorization Of Frisks In Terry Stops For Suspicion Of Firearms Possession, Royce De R. Barondes

Faculty Publications

The recognition in Heller of an individual right to bear arms has required courts to grapple with the interaction between exercise of this right in public and Terry stops. Core questions are (i) whether reasonable suspicion a person is armed is by itself sufficient to initiate a Terry stop and (ii), if so, whether such a stop inherently authorizes an accompanying frisk. The former issue is examined in a separate forthcoming article, Royce de R. Barondes, Conditioning Exercise of Firearms Rights on Unlimited Terry Stops, 54 Idaho L. Rev. 297.

This article focuses on the second issue. Most fundamentally, insofar …

Keep Your Powder Dry And Your Standards High: Protect The Second Amendment's Core With Strict Scrutiny Review, Rebecca L. Trump

West Virginia Law Review

No abstract provided.

Gun Control: Political Fears Trump Crime Control, Clayton E. Cramer, Joseph Edward Olson

Maine Law Review

No matter how draconian, gun control laws are weakly enforced (at least in the United States) and seldom of any significant effect in reducing crime. The kind of citizen who will comply with a gun law is the opposite of the person who will use a gun to facilitate his or her crimes. The problem of weak enforcement is highlighted by a candid interview with the author of the District of Columbia’s 1968 gun registration scheme while the District’s 1975-76 gun ban was under consideration: The problem, [Hechinger] said, is the failure of the mayor and police department to enforce …

Arming The Second Amendment—And Enforcing The Fourteenth, William D. Araiza

Washington and Lee Law Review

This Article considers the timely and important question of Congress’s power to enforce the Second Amendment. Such legislation would test the Court’s current enforcement power doctrine, which ostensibly acknowledges a congressional role in vindicating constitutional rights while insisting on judicial supremacy in stating constitutional meaning. Second Amendment doctrine is complex and, importantly, methodologically varied. That complexity and variety would require the Court to perform a more nuanced, granular approach to the enforcement power than it has thus far in the modern era.

Part II quickly recaps the Court’s Enforcement Clause jurisprudence. It concludes that its most recent enforcement power cases …

Federalism Implications Of Non-Recognition Of Licensure Reciprocity Under The Gun-Free School Zones Act, Royce De R. Barondes

Faculty Publications

The Gun-Free School Zones Act (GFSZA) criminalizes firearms possession within 1000 feet of an elementary or secondary school in a State unless the possessor "is licensed to do so by the State in which the school zone is located" (or one of a few other exceptions applies). The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has in correspondence opined licensure through reciprocity does not make one so licensed by the State.

School zones covered by the act are ubiquitous. Were the ATF's interpretation adopted, large swaths of many States' non-rural areas would be prohibited zones for non-residents who carry …

Gun Rights Or Gun Control? How California's Waiting Period Law Can Pave The Way To Increased Regulation, Natasha Tran

Loyola of Los Angeles Law Review

No abstract provided.

Palmer V. District Of Columbia, Brian Noel

NYLS Law Review

No abstract provided.

The Second Amendment In The 21st Century: An In-Depth Examination Of Firearm Freedoms And Their Relationship With Public Safety And Interests, Mathew E. Klein

Honors Undergraduate Theses

One of the most hotly contested topics in the world today revolves around an object. An object that has caused debate among all members of society both in the United States, and all across the globe. But how could an object, something that on its own does nothing, spur such heated argument? This object is the evolution of invention and the product of fighting amongst each other. This object changes the way people think and how they act. This object can be used for both good and bad. This object is a gun.

This research project will explore the Second …

Second Amendment Right To Bear Arms, Quilici V. Village Of Morton Grove, Mark Benedic

Akron Law Review

From the colonial firelock to today's inexpensive handgun, the United States has toiled over the right to keep and bear arms. In 1981, the United States District Court for the Northern District of Illinois addressed this recurring issue in Quilici v. Village of Morton Grove. The arguments espoused in Quilici consisted of both traditional and novel hypotheses on this uncertain subject. Delivered within an atmosphere of renewed concern over the use and possession of firearms, the arguments in Quilici provide insight into the reasoning on both sides of the gun-control issue.

The following note reviews the potential ramifications of the …

Resurrecting The "Dead" Second Amendment: How The Libertarian Legal Movement Has Shaped Gun Control Litigation, Anthony M. Sierzega

Politics Honors Papers

For nearly two centuries following its adoption, the Second Amendment was largely ignored and even referred to as a “dead amendment.” Virtually all legal scholarship considered the right protected by the amendment to be a collective right written into the Constitution to protect local militias from a powerful federal standing army. However, beginning in the late 1970s a surge of libertarian scholarship began to emerge promoting the Second Amendment as a safeguard for an individual right to bear arms without any connection to military service. Promoted by the National Rifle Association and libertarian theorists, the individual-right theory began to gain …

Statutory Restrictions On Concealed Carry: A Five-Circuit Shoot Out, Justine E. Johnson-Makuch

Fordham Law Review

In District of Columbia v. Heller, the U.S. Supreme Court clarified a citizen’s core Second Amendment right to keep a firearm at home; however, the Court left open the question of how the Second Amendment applies beyond the home. Since Heller, lower courts have struggled to determine the constitutionality of concealed carry laws in light of this new understanding of the Second Amendment.

Many states have enacted laws that restrict a citizen’s ability to obtain a concealed carry permit, and some of the restrictions are not controversial, such as the requirements to be above a certain age and have a …

Identity Politics And The Second Amendment, Michael C. Dorf

Michael C. Dorf

No abstract provided.

What Does The Second Amendment Mean Today?, Michael C. Dorf

Michael C. Dorf

A growing body of scholarship argues that the Second Amendment protects a right of individuals to possess firearms, regardless of whether those individuals are organized in state militias. Proponents of the individual right view do not merely disagree with those who champion the competing view that the Second Amendment poses few if any obstacles to most forms of gun control legislation by the state or federal governments. They appear to believe that the Second Amendment has been subject to uniquely shabby treatment by the courts and, until recently, academic commentators. This Article argues that the Second Amendment has not been …

2015 Update: Can I Bring My Gun? A Fifty State Survey Of Firearm Laws Impacting Policies Prohibiting Handguns In Public Libraries, Diana Gleason

diana gleason

In Capital Area District Library v. Michigan Open Carry, 826 N.W. 2d 736 (2012), the Michigan Court of Appeals concluded that state law preempted the library’s weapons policy prohibiting firearms in the library. My article, Can I Bring My Gun? A Fifty State Survey of Firearm Laws Impacting Policies Prohibiting Handguns in Public Libraries,* asked how laws in each state impact similar policies prohibiting handguns in public libraries. The article warned that many states and the federal government were in the process of amending laws to increase or decrease gun restrictions, and that ongoing change could be expected. In fact, …

The Posse Comitatus And The Office Of Sheriff: Armed Citizens Summoned To The Aid Of Law Enforcement, David B. Kopel

David B Kopel

Posse comitatus is the legal power of sheriffs and other officials to summon armed citizens to aid in keeping the peace. The posse comitatus can be traced back as least as far as the reign of Alfred the Great in ninth century England. The institution thrives today in the United States; a study of Colorado finds many county sheriffs have active posses. Like the law of the posse comitatus, the law of the office of sheriff has been remarkably stable for over a millennium. This Article presents the history and law of the posse comitatus and the office of sheriff …

Beyond The Fourth Amendment: Additional Constitutional Guarantees That Mass Surveillance Violates, Nadine Strossen

Articles & Chapters

The ongoing dragnet communications surveillance programs raise multiple statutory and constitutional problems. Each problem alone, and even more so the whole combination, provides a serious ground at least for vastly curbing such programs, if not ending them. This Article reviews constitutional challenges to these programs to evaluate the likely success of current and future litigants.

Anti-Evasion Doctrines And The Second Amendment, Brannon P. Denning

Brannon P. Denning

This article, written for a symposium on the Second Amendment, examines recent lower court decisions for evidence that courts are -- or are not -- creating and applying "anti-evasion doctrines" (AEDs) in Second Amendment cases. Such doctrines prevent form-over-substance evasion of constitutional principles on the part of government actors. Early evidence suggests that courts are willing to employ AEDs to frustrate legislative efforts to nullify the core of the right to keep and bear arms for self-defense in the home recognized in Heller and McDonald.

Doe V. Wilmington Housing Authority: The Common Area Caveat As A Paradigmatic Balance Between Tenant Safety And Second Amendment Rights, Iyen Acosta

Catholic University Law Review

No abstract provided.

No Resolution In Sight In Debate On Gun-Control Laws, Alan E. Garfield

Alan E Garfield

No abstract provided.

Guns, Violence, And Schools: Policies To Prevent And Respond To School Shootings, Mark A. Velez

Mark A. Velez

The United States continues to deal with school shootings. The most recent massacre occurred in 2012 at the Sandy Hook Elementary School in Newtown, Connecticut. Several strategies have been used to try and prevent such tragedies from happening. These strategies have included tough gun laws, gun-free school zones, and updating school policies and infrastructure. However, despite these, and other, strategies, school shootings continue to occur. Unfortunately, when a school shooting occurs, school personnel and children are left helpless until the police arrive or the shooter decides to end the rampage. During this time many lives may be lost. Therefore, it …

Guns And Ammo: For Convicted Americans Viewing Pictures Of Others Enjoying Their Constitutional Right To Bear Arms In A Magazine Is The Closest They Will Ever Get To Seeing The Second Amendment At Work - People V. Hughes, Ronald P. Perry

Touro Law Review

No abstract provided.

Mcdonald V. Chicago, The Fourteenth Amendment, The Right To Bear Arms And The Right Of Self-Defense, Richard L. Aynes

Akron Law Faculty Publications

The Supreme Court of the United States has granted certiorari in the case of McDonald v. City of Chicago to consider this question:

"Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses."

This case follows and seeks to build upon District of Columbia v. Heller which held that the Second Amendment protects both the right to self-defense and what has been termed an individual right to bear arms. Of course, Heller’s application is limited to the federal government and has no direct …