Law Commons^™

Scientific Context, Suicide Prevention, And The Second Amendment After Bruen, Eric Ruben

Faculty Journal Articles and Book Chapters

The Supreme Court declared in New York State Rifle & Pistol Ass’n v. Bruen that modern gun laws must be “consistent with this Nation’s historical tradition of firearm regulation” to survive Second Amendment challenges. Scholarship has shown how this test of historical analogy presents difficulties because of how technological, legal, and social change has shaped policy over the centuries. This Article is the first to assess Bruen as it applies to suicide- prevention laws, and, in doing so, illuminates another form of change that complicates Bruen’s implementation: scientific progress.

As this Article shows, early generations of Americans fundamentally misunderstood mental …

Originalism-By-Analogy And Second Amendment Adjudication, Joseph Blocher, Eric Ruben

Faculty Journal Articles and Book Chapters

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court held that the constitutionality of modern gun laws must be evaluated by direct analogy to history, unmediated by familiar doctrinal tests. Bruen’s novel approach to historical decision-making purported to constrain judicial discretion but instead enabled judicial subjectivity, obfuscation, and unpredictability. Those problems are painfully evident in courts’ faltering efforts to apply Bruen to laws regulating 3D-printed guns, assault weapons, large-capacity magazines, obliterated serial numbers, and the possession of guns on subways or by people subject to domestic-violence restraining orders. The Court’s recent grant of certiorari in United …

The Gun Rights Movement And 'Arms' Under The Second Amendment, Eric M. Ruben

Faculty Journal Articles and Book Chapters

After Donald Trump supporters breached the U.S. Capitol on January 6 wielding weapons including tasers, chemical sprays, knives, police batons, and baseball bats, Sen. Ron Johnson (R-WI) remarked that the insurrection “didn’t seem . . . armed.” Johnson, who is A-rated by the National Rifle Association (NRA), observed, “When you hear the word ‘armed,’ don’t you think of firearms?” For many, the answer is likely yes.

This essay describes how the gun rights movement has contributed to the conflation of arms and firearms. In doing so, it shows how that conflation is flatly inconsistent with the most important legal context …

Law Of The Gun: Unrepresentative Cases And Distorted Doctrine, Eric Ruben

Faculty Journal Articles and Book Chapters

There is a familiar saying, “If all you have is a hammer, everything looks like a nail.” The so-called Law of the Hammer takes a distinctive form in adjudication. If all judges see is one repeating fact pattern for a given area of law, they might perceive it as archetypical and build the law around it. If that fact pattern does not accurately reflect the field, however, the result can be analytical distortion in terms of both the choice of doctrine and its implementation.

This Article uses Second Amendment jurisprudence to illustrate this phenomenon. It reveals how District of Columbia …

An Unstable Core: Self-Defense And The Second Amendment, Eric Ruben

Faculty Journal Articles and Book Chapters

In District of Columbia v. Heller, the Supreme Court announced for the first time that self-defense, not militia service, is the “core” of the right to keep and bear arms. However, the Court failed to articulate what that means for the right’s implementation. After Heller, most courts deciding Second Amendment questions have mentioned self-defense only superficially or not at all. Some courts, however, have run to the opposite extreme, leaning heavily on the platitude that firearms have utility for lawful self-defense as a rationale for effectively immunizing them from regulation. This Article examines that inconsistency and considers whether self-defense law …

From Theory To Doctrine: An Empirical Analysis Of The Right To Keep And Bear Arms After Heller, Eric Ruben, Joseph Blocher

Faculty Journal Articles and Book Chapters

As a matter of constitutional doctrine, the right to keep and bear arms is coming of age. But although the doctrine has begun to mature in the decade since District of Columbia v. Heller, scholars, advocates, and judges disagree about (and sometimes simply do not know) how to characterize it.

This Article is the first comprehensive empirical analysis of post-Heller Second Amendment doctrine. Beginning with a set of more than one thousand Second Amendment challenges, we have coded every available Second Amendment opinion — state and federal, trial and appellate — from Heller up until February 1, 2016. The dataset …

You Can Lead A Horse To Water: Heller And The Future Of Second Amendment Scholarship, Eric Ruben, Joseph Blocher

Faculty Journal Articles and Book Chapters

Ten years ago, there was reason to believe that Second Amendment doctrine would—following elements of District of Columbia v. Heller—become rigid and binary. Likewise, scholarship might have followed the same path; digging into the pre-Heller trenches and pitting "pro-gun" against "pro-regulation" views. In "From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller," we showed through empirical study that the doctrinal reality is far more nuanced and interesting. In this essay, we describe how Heller not only inaugurated a new era of constitutional doctrine, but it also helped create a burgeoning new field …

Justifying Perceptions In First And Second Amendment Doctrine, Eric Ruben

Faculty Journal Articles and Book Chapters

Public perceptions often motivate policymakers. But what is the role of perceptions in defending regulations challenged as violating constitutional rights? This article explores how First and Second Amendment doctrine answer that question.

First Amendment free speech doctrine deploys categorical rules and balancing tests to determine the constitutionality of speech restrictions seeking to shape various perceptions. The resulting discrepancies, the article contends, can be explained by motive-based theories of First Amendment doctrine.

In the Second Amendment context, how to handle perception-based regulations remains an open question. Some courts have held that firearm restrictions can pass muster if they preserve the public’s …

Firearm Regionalism And Public Carry: Placing Southern Antebellum Case Law In Context, Eric Ruben, Saul A. Cornell

Faculty Journal Articles and Book Chapters

In recent years, following the Supreme Court’s landmark originalist opinion in District of Columbia v. Heller, courts have been asked to strike down restrictions on the public carrying of handguns on the basis of the original understanding of the Second Amendment. One of the key sources used to justify this outcome is a family of opinions from the antebellum South asserting an expansive right to carry weapons in public. In this essay we explore whether that body of case law reflected a national consensus on the meaning of the right to bear arms or, in the alternative, a narrower regional …