Law Commons^™

Justice Breyer's Triumph In The Third Battle Over The Second Amendment, Allen K. Rostron

Faculty Works

In recent years, the Supreme Court has issued two landmark decisions about the constitutional right to keep and bear arms. District of Columbia v. Heller rejected the notion that the Second Amendment protects only organized militia activities, and McDonald v. City of Chicago found that the right to keep and bear arms applies to state and local governments via incorporation into the Fourteenth Amendment. Those decisions left important questions unanswered. In particular, the Supreme Court declined to specify what level of scrutiny or test should be used to assess the validity of gun laws. Lower courts are now wrestling with …

The Past And Future Role Of The Second Amendment And Gun Control In Fights Over Confirmation Of Supreme Court Nominees, Allen K. Rostron

Faculty Works

America’s elected representatives do many things well, but making firearms policies and assessing Supreme Court nominees are two with which they have struggled.

Gun control is one of the most volatile public policy issues. Many contend that a heavy price is paid every day because of inadequate controls on firearms. Others believe that legal restrictions on guns are counterproductive and that the freedom to have guns is in peril. This gun control versus gun rights debate has become deeply enmeshed in the political culture wars.

Similarly, few have good things to say about how the U.S. Senate reviews nominations of …

Protecting Gun Rights And Improving Gun Control After District Of Columbia V. Heller, Allen K. Rostron

Faculty Works

The Supreme Court’s decision in District of Columbia v. Heller, rejecting the narrow interpretation of the Second Amendment that most courts previously embraced, might seem to be a significant setback for gun control supporters and a major victory for gun rights advocates. Challenging that conventional wisdom, the author contends that Heller ultimately will help rather than hinder the push toward strong, sensible gun control laws. Justice Scalia’s opinion for the majority in Heller ultimately backs away from the most drastic implications of its reasoning and instead steers toward a more moderate approach under which virtually all existing gun laws should …

Incrementalism, Comprehensive Rationality, And The Future Of Gun Control, Allen K. Rostron

Faculty Works

This article examines the issue of gun control through the lens of the 'comprehensive rationality' and 'incrementalism' models of policymaking and argues that incremental policymaking has been one of the major impediments to progress toward more effective regulation of guns. Gun laws are often an incoherent patch-work of provisions as new restrictions are piled atop old ones in response to particular tragedies or narrow concerns, instead of crafting bills to achieve an optimal approach to the entire problem. Political science and other social sciences literature has closely examined the 'incrementalism' and 'comprehensive rationality' models of policymaking over the past several …

Lawyers, Guns, & Money: The Rise And Fall Of Tort Litigation Against The Firearms Industry, Allen K. Rostron

Faculty Works

As the twentieth century came to a close, the gun industry was under siege. The murders of twelve students and a teacher at Columbine High School in April 1999 brought a chorus of calls for legislation limiting access to guns. A year later, demonstrators gathered in front of the U.S. Capitol building for the Million Mom March, the largest rally ever held in support of gun control measures.

The industry's greatest concern, however, arose in another arena. Gun manufacturers found themselves in courts on an array of tort lawsuits across the country. Many of those asserting claims were individuals injured …

Shooting Stories: The Creation Of Narrative And Melodrama In Real And Fictional Litigation Against The Gun Industry, Allen K. Rostron

Faculty Works

In recent years, gun manufacturers and dealers have faced a wave of tort litigation in courts across the country. Shooting victims and their families have sued, claiming that they suffered injuries attributable to gun companies designing and distributing firearms in unreasonably dangerous ways. Dozens of major cities and counties have sued as well, seeking to recover costs for law enforcement, medical, and other public services allegedly incurred as a result of gun industry practices that foster criminal possession and misuse of guns. Patterned after the lawsuits by state attorneys general that shattered the tobacco industry's aura of legal invulnerability several …

High-Powered Controversy: Gun Control, Terrorism And The Fight Over .50 Caliber Rifles, Allen K. Rostron

Faculty Works

Near the end of the First World War, the German army introduced powerful new anti-tank rifles, and the U.S. military realized that it needed a similar weapon. Legendary American firearm designer John Browning answered the call by developing a heavy-duty machine gun and a new type of .50 caliber ammunition for it. Although rapid improvement in armor plating soon made it obsolete as an anti-tank weapon, Browning's machine gun proved to be enormously successful when deployed against personnel and less heavily armored vehicles. Military forces throughout the world continue to use it today. The ammunition for this gun became known …

The Supreme Court, The Gun Industry, And The Misguided Revival Of Strict Territorial Limits On The Reach Of State Law, Allen K. Rostron

Faculty Works

While tort lawsuits against gun manufacturers and sellers have captured much attention in recent years, there is an intriguing constitutional issue arising in the cases that has largely escaped notice. The gun companies build a defense from statements in a line of recent Supreme Court opinions indicating that the dormant Commerce Clause forbids application of a state statute to commerce occurring wholly outside the state's borders. The gun companies contend that it would be unconstitutional for them to be held liable under state tort law for the manufacture or sale of a gun that occurred outside the state. Several courts …