Law Commons^™

The Fugazi Second Amendment: Bruen's Text, History, And Tradition Problem And How To Fix It, Patrick J. Charles

Cleveland State Law Review

This Article critiques the Supreme Court’s use of text, history, and tradition in New York Rifle & Pistol Association, Inc. v. Bruen. In doing so, not only is the Supreme Court’s approach to history-in-law in Bruen called into question, but also the Article provides the courts with an historically objective and even-keeled ‘way-ahead’ for future Second Amendment cases and controversies.

Fear And Firearms, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Text, History, And Tradition: What The Seventh Amendment Can Teach Us About The Second, Darrell A. H. Miller

Faculty Scholarship

In District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court made seemingly irreconcilable demands on lower courts: evaluate Second Amendment claims through history, avoid balancing, and retain as much regulation as possible. To date, lower courts have been unable to devise a test that satisfies all three of these conditions. Worse, the emerging default candidate, intermediate scrutiny, is a test that many jurists and scholars consider exceedingly manipulable.

This Article argues that courts could look to the Supreme Court’s Seventh Amendment jurisprudence, and in particular the Seventh Amendment’s “historical test,” to help them devise a …

Guns As Smut: Defending The Home-Bound Second Amendment, Darrell A. H. Miller

Faculty Scholarship

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees a personal, individual right to keep and bear arms. But the Court left lower courts and legislatures adrift on the fundamental question of scope. While the Court stated in dicta that some regulation may survive constitutional scrutiny, it left the precise contours of the right, and even the method by which to determine those contours, for 'future evaluation."

This Article offers a provocative proposal for tackling the issue of Second Amendment scope, one tucked in many dresser drawers across the nation: Treat the Second Amendment …

The Peculiar Story Of United States V. Miller, Brian L. Frye

Law Faculty Scholarly Articles

On April 18, 1938, the Arkansas and Oklahoma state police stopped Jack Miller and Frank Layton, two washed-up Oklahoma bank robbers. Miller and Layton had an unregistered sawed-off shotgun, so the police arrested them for violating the National Firearms Act (“NFA”). Surprisingly, the district court dismissed the charges, holding the NFA violates the Second Amendment. The Supreme Court reversed in United States v. Miller, holding the Second Amendment does not guarantee the right to keep and bear a sawed-off shotgun as a matter of law.

Seventy years later, Miller remains the only Supreme Court opinion construing the Second Amendment. …

Radicals In Robes: A Review, Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book about conservative activists in the federal judiciary. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an …

The Gold Standard Of Gun Control - Book Review Of Joyce Malcolm, Guns And Violence: The English Experience, David B. Kopel, Joanne D. Eisen, Paul Gallant

David B Kopel

Guns and Violence tells a remarkable story of a society's self-destruction, of how a government in a few decades managed to reverse six hundred years of social progress in violence reduction. The book is also a testament to the amazing self-confidence of British governments; Labour and Conservative alike have proceeded with an extreme anti-self-defense agenda, although the agenda has never had much supporting evidence beyond the government's own platitudes.

Self-Defense: The Equalizer, David B. Kopel, Linda Gorman

David B Kopel

Experiments in tightening gun-control laws have eroded the right of self defense and failed to stop serious crime. Studies Japan, the United Kingdom, Canada, and Australia.

Bearing Arms In Washington State, Hugh D. Spitzer

Articles

Article I, Section 24 of the Washington State Constitution directly affects two "hot topics" today: first, the increase in the carrying of weapons by the citizenry (particularly concealed weapons, with or without permits) and, second, the increase in "citizen militias" in various parts of the state. Article I, Section 24 also presents interesting issues from a pure state-constitutional-law standpoint, because it represents one of the striking characteristics of state constitutions: these basic documents of civil society for each state represent centuries of buildup and accretion. State constitutional provisions can often be analyzed in terms of layering. In preparing a state …

It Isn't About Duck Hunting: The British Origins Of The Right To Arms, David B. Kopel

Michigan Law Review

A Review of To Keep and Bear Arms: The Origins of an Anglo-American Right by Joyce Lee Malcolm