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Full-Text Articles in Law
Permissible Negligence And Campaigns To Suppress Rights, Glenn Harlan Reynolds
Permissible Negligence And Campaigns To Suppress Rights, Glenn Harlan Reynolds
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In his The Second Amendment Right To Be Negligent, 68 Fla. L. Rev. 1 (2016), Andrew McClurg looks at statutory protections shielding gun owners and sellers from liability in cases of theft, etc. in terms of what he calls a constitutional “right to be negligent” under the First and Second Amendments. In this brief response, I look at that question, and also touch, briefly, on the to-me interesting aspect that the protection enjoyed by publishers under the First Amendment was created by judicial action, while that enjoyed under the Second Amendment was instead the product of legislation. But, in short, …
Second Amendment Limitations, Glenn Harlan Reynolds
Second Amendment Limitations, Glenn Harlan Reynolds
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This paper looks at recent cases that suggest that the so-called "Heller Safe Harbor," allowing limitations on gun ownership and possession in some circumstances, is facing additional scrutiny from lower courts, with previously accepted gun restrictions being struck down or limited. It also looks at future changes in limitations on Second Amendment Rights. Paper presented at a Georgetown Law School symposium in November, 2015, to be published in the Georgetown Journal of Law and Public Policy.
Foreword: The Second Amendment As Ordinary Constitutional Law, Glenn Harlan Reynolds
Foreword: The Second Amendment As Ordinary Constitutional Law, Glenn Harlan Reynolds
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In recent years, the Second Amendment has gone from a subject of scholarly and political debate with no real judicial role, to a clearly established individual right that is being enforced in lower courts. This Essay, the foreword to a forthcoming Tennessee Law Review symposium on the Second Amendment, explores how that happened, and what is likely to come next.
Second Amendment Penumbras: Some Preliminary Observations, Glenn Harlan Reynolds
Second Amendment Penumbras: Some Preliminary Observations, Glenn Harlan Reynolds
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With the Second Amendment now a working part of the Bill Of Rights in the wake of the Supreme Court's decisions in District of Columbia v. Heller and McDonald v. Chicago, this brief Essay examines the likely extent of penumbral rights under the Second Amendment, as well as the possible effect on unenumerated rights in general of an enforceable right to arms.
Heller, High Water(Mark)? Lower Courts And The New Right To Keep And Bear Arms, Glenn Harlan Reynolds
Heller, High Water(Mark)? Lower Courts And The New Right To Keep And Bear Arms, Glenn Harlan Reynolds
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This paper examines the post-Heller Second Amendment case law in the lower courts and concludes that although federal courts are not rushing to overturn gun laws under the Second Amendment, they are moving more rapidly to implement Heller than under previous 'revolutionary' decisions such as U.S. v. Lopez. There is also some evidence that state courts are taking the right to arms more seriously, with the additional possibility that the new federal right to arms may boost interest in the numerous state right-to-arms provisions. Finally, by characterizing gun ownership as a protected individual right, Heller has served to 'renormalize' firearms …
Heller, High Water(Mark)? Lower Courts And The New Right To Keep And Bear Arms, Glenn Reynolds, Brannon Denning
Heller, High Water(Mark)? Lower Courts And The New Right To Keep And Bear Arms, Glenn Reynolds, Brannon Denning
College of Law Faculty Scholarship
This paper examines the post-Heller Second Amendment case law in the lower courts and concludes that although federal courts are not rushing to overturn gun laws under the Second Amendment, they are moving more rapidly to implement Heller than under previous 'revolutionary' decisions such as U.S. v. Lopez. There is also some evidence that state courts are taking the right to arms more seriously, with the additional possibility that the new federal right to arms may boost interest in the numerous state right-to-arms provisions. Finally, by characterizing gun ownership as a protected individual right, Heller has served to 'renormalize' firearms …
Heller's Future In The Lower Courts, Glenn Harlan Reynolds
Heller's Future In The Lower Courts, Glenn Harlan Reynolds
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The Supreme Court's recent decision in District of Columbia v. Heller not only established an individual right to gun ownership, but also overturned - by a 9-0 margin - lower-court caselaw based on a "collective right" interpretation of the Second Amendment. This article looks at how Heller is likely to fare in the lower courts, based on experience with other recent Supreme Court decisions, and incorporates new scholarship on decision rules and the so-called "new doctrinalism."
The Year Of The Gun: Second Amendment Rights And The Supreme Court, Glenn Harlan Reynolds
The Year Of The Gun: Second Amendment Rights And The Supreme Court, Glenn Harlan Reynolds
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This Essay looks at issues that the Supreme Court can duck - and those that it can't - in deciding the District of Columbia Second Amendment case, D.C. v. Heller. It also looks at political and institutional pressures placed on the Supreme Court by the Heller case.
Guns And Gay Sex: Some Notes On Firearms, The Second Amendment, And 'Reasonable Regulation', Glenn Harlan Reynolds
Guns And Gay Sex: Some Notes On Firearms, The Second Amendment, And 'Reasonable Regulation', Glenn Harlan Reynolds
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In light of the Supreme Court's grant of certiorari in Heller v. District of Columbia, this Essay contains some thoughts inspired by Adam Winkler's "Scrutinizing the Second Amendment," 105 Mich. L. Rev. 683 (2007). Winkler argues, correctly, that judicial acceptance of an individual-rights interpretation of the Second Amendment would not end all firearms regulation. However, Winkler's understanding of what constitutes "reasonable regulation" is excessively broad. In "Guns and Gay Sex," I look at two overlapping lines of Tennessee cases on the right to arms and the right to privacy and conclude that even a "reasonable regulation" model of the right …
Telling Miller's Tale, Glenn Harlan Reynolds
Telling Miller's Tale, Glenn Harlan Reynolds
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The case of United States v. Miller, 307 U.S. 174 (1939), is often cited in gun-control arguments and arguments over the meaning of the Second Amendment. In this Article, we take a close look at Miller, and the arguments made before the Supreme Court. When the decision is read closely and the arguments available (and not available) to the Court are taken into account, the decision is best understood as leaving open the opportunity for courts to adopt the Standard Model reading of the Second Amendment. What Miller plainly does not do is deny that an individual's right to keep …
Telling Miller's Tale, Glenn Reynolds, Brannon Denning
Telling Miller's Tale, Glenn Reynolds, Brannon Denning
College of Law Faculty Scholarship
The case of United States v. Miller, 307 U.S. 174 (1939), is often cited in gun-control arguments and arguments over the meaning of the Second Amendment. In this Article, we take a close look at Miller, and the arguments made before the Supreme Court. When the decision is read closely and the arguments available (and not available) to the Court are taken into account, the decision is best understood as leaving open the opportunity for courts to adopt the Standard Model reading of the Second Amendment. What Miller plainly does not do is deny that an individual's right to keep …
Guns, Privacy, And Revolution, Glenn Harlan Reynolds
Guns, Privacy, And Revolution, Glenn Harlan Reynolds
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No abstract provided.
The Second Amendment And States' Rights: A Thought Experiment, Glenn Harlan Reynolds
The Second Amendment And States' Rights: A Thought Experiment, Glenn Harlan Reynolds
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Proponents of the so-called "collective right" model of the Second Amendment often assert that the right to bear arms exists only on the part of state militias, and not as any sort of individual right. Without addressing the merits of that claim, this Article examines the consequences of taking such a view seriously as a matter of constitutional law, and suggests that those consequences might be quite drastic.
A Critical Guide To The Second Amendment, Glenn Harlan Reynolds
A Critical Guide To The Second Amendment, Glenn Harlan Reynolds
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This Article surveys case law, history, and scholarship on the Second Amendment. Examining both "individual right" and "collective right" theorists, it synthesizes a so-called "Standard Model" of Second Amendment interpretation, and briefly addresses questions of what weapons might be protected under a more expansive treatment of the Second Amendment than exists today.