Second Amendment Commons^™

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Law School Blogs

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The Second Amendment Is Not Absolute, Sonja R. West

Popular Media

This article written at Slate.com on December 7, 2015 explains that like many other constitutional rights, the right to possess firearms in the 2nd Amendment, may be regulated by Congress.

Hunting And The Second Amendment, Joseph Blocher

Notre Dame Law Review

Debates about the meaning and scope of the Second Amendment have traditionally focused on whether it protects the keeping and bearing of arms for self-defense, prevention of tyranny, maintenance of the militia, or some combination of those three things. But roughly half of American gun-owners identify hunting or sport shooting as their primary reason for owning a gun. And while much public rhetoric suggests that these activities fall within the scope of the Second Amendment, some of the most committed gun-rights advocates insist that the Amendment “ain’t about hunting” and that, no matter their heritage and value, such activities are …

Essays In Response To Michael Waldman's The Second Amendment: A Biography: Introduction, Adam Riff

Cardozo Law Review

No abstract provided.

The Living Constitution And The Second Amendment: Poor History, False Originalism, And A Very Confused Court, Paul Finkelman

Cardozo Law Review

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Can The Quill Be Mightier Than The Uzi?: History "Lite," "Law Office," And Worse Meets The Second Amendment, Martin S. Flaherty

Cardozo Law Review

No abstract provided.

The Law Book: From Hammurabi To The International Criminal Court, 250 Milestones In The History Of Law (Sterling), Michael Roffer

Books

The Law Book explores 250 of the most significant legal issues, cases, trials, and events that have profoundly changed our world. Although the heaviest emphasis is on American law it also touches on more than a dozen countries and the European Union, laws relating to Antarctica and Outer Space, and principles of international law. Among the topics it explores are the earliest legal codes, the role of juries, slavery and emancipation, civil rights, Native Americans, copyright, the press and free speech, immigration, censorship and obscenity, the environment, war and international relations, war crimes and trials, the insanity defense, taxation, prohibition, …

The Right To Remain Armed, Jeffrey Bellin

Faculty Publications

The laws governing gun possession are changing rapidly. In the past two years, federal courts have wielded a revitalized Second Amendment to invalidate longstanding gun carrying restrictions in Chicago, the District of Columbia, and throughout California. Invoking similar Second Amendment themes, legislators across the country have steadily deregulated public gun carrying, preempting municipal gun control ordinances in cities like Philadelphia, Atlanta, and Cleveland.

These changes to substantive gun laws reverberate through the constitutional criminal procedure framework. By making it lawful for citizens to carry guns even in crowded urban areas, enhanced Second Amendment rights trigger Fourth Amendment protections that could …

End The Popularity Contest: A Proposal For Second Amendment 'Type Of Weapon' Analysis, Cody Jacobs

Faculty Scholarship

The Supreme Court’s recognition of an individual Second Amendment right to bear arms for self-defense raised many questions about the scope and content of that right. One issue that will become increasingly important in the years ahead, but that has received relatively little attention from scholars and courts, is the question of which “arms” are protected by that right. The Supreme Court’s decision in District of Columbia v. Heller purports to lay out a test that asks whether the weapon at issue is in “common use” at the time the case is decided. This article critiques that test, arguing that …

A Reason To Resist: The Use Of Deadly Force In Aiding Victims Of Unlawful Police Aggression, Kindaka Sanders

San Diego Law Review

Some two and a half years before the fatal shooting of Michael Brown by a Ferguson, Missouri Police Officer, the Indiana State Legislature enacted Indiana Code § 35-41-3-2 authorizing the use of force, including deadly force against public servants acting unlawfully against the persons or property of Indiana citizens. The statute, passed in March of 2012, is the first of its kind. It was passed in reaction to the Indiana Supreme Court's decision in Barnes v. State, which abolished the common law right to resist an unlawful arrest. Gun rights groups, most notably the National Rifle Association (NRA), responded in …

Analyzing Second Amendment Challenges: Getting Strict With Judges, Lauren Dwarika

Touro Law Review

No abstract provided.

Let’S Not Forget: We Have A State Interest To Promote, Elias Arroyo

Touro Law Review

No abstract provided.

Arming The Good Guys: School Zones And The Second Amendment, Grant Arnold

Brigham Young University Education and Law Journal

No abstract provided.

Clearing The Smoke From The Right To Bear Arms And The Second Amendment, Anthony J. Dennis

Akron Law Review

Despite raging battles in Congress, in the press and in state legislatures over gun control, the Second Amendment of the United States Constitution, the very source of every U.S. citizen's right to possess firearms, is one of the most ignored and overlooked parts of the American Bill of Rights. Much of what has been said about the Second Amendment is hostile to the very rights so plainly guaranteed in that provision. Law school constitutional law classes frequently study the First Amendment, "close their eyes" to the Second and move immediately on to study the Fourth Amendment. Some have speculated that …

"Your Weapons, You Will Not Need Them." Comment On The Supreme Court's Sixty-Year Silence On The Right To Keep And Bear Arms, Anthony Gallia

Akron Law Review

Interpretation of the Second Amendment can be divided into two different schools of thought; individual rights theorists, and collective rights theorists. Individual rights theorists argue that the Second Amendment creates a right in every person to keep and bear arms. Collective rights theorists advance the position that the Second Amendment creates a collective right in the people as a whole. The purpose of this comment is to emphasize the controversy surrounding the Second Amendment and the need for guidance on the issue by the United States Supreme Court. Part II of this article discusses the text of the Second Amendment …

A Preliminary Consideration Of Issues Raised In The Firearms Sellers Immunity Bill, Frank J. Vandall

Akron Law Review

Snipings, mass-murders by disgruntled employees, children shooting children, and a vast number of spousal murders are everyday news across the country. In the numerous lawsuits brought by individual victims and over 30 cities, it has been alleged that gun manufacturers and sellers have an important role to play in designing guns to be safer and in closely monitoring gun sales. The courts are weighing these issues and have dismissed a large number of individual and city suits for various reasons. As the Senate debates the Bill (S. 659) that shields those in the gun trade from liability, several issues need …

Questioning The Necessity Of Concealed Carry Laws, William J. Michael

Akron Law Review

The State of Ohio recently became the thirty-seventh state to pass some form of concealed carry legislation, under which persons may carry concealed firearms. Given the Second Amendment to the United States Constitution, such legislation appears unnecessary since individuals have a constitutional right to carry firearms.

In this article, I argue that the Second Amendment’s text guarantees an individual’s right (not a state’s right or a “collective” right) to keep and bear firearms. Part I of this article contains that argument. If the text is binding—and I believe it is—further analysis regarding whether the Second Amendment guarantees an individual’s right …

Gonzales V. Raich: How To Fix A Mess Of "Economic" Proportions, Gregory W. Watts

Akron Law Review

The Note examines the history, evolution, elements, and application of the Commerce Clause doctrine. Part II, Sections A through C, concentrate on the history of the Supreme Court’s interpretation of the Commerce Clause, focusing extensively on Wickard v. Filburn, which the majority in Raich held controlling, and United States v. Lopez and United States v. Morrison, which the dissent would have held as controlling. Part II, Sections D and E, provide an overview of the Controlled Substances Act, whose constitutionality was challenged as applied in Gonzales v. Raich, and the Compassionate Use Act of California, which led to the conflict …

Statutory Misinterpretations: Small V. United States Darkens The Already Murky Waters Of Statutory Interpretation, Michelle Schuld

Akron Law Review

Part II of this Note will examine the background of this issue by exploring the history and purpose of the Gun Control Act of 1968 and the circuit split arising over the interpretation of the words “any court” under § 922(g)(1). Part III will focus on Small v. United States in detail, including the underlying facts, procedural history, and majority and dissenting opinions. Part IV will analyze this decision and argue that the majority misused canons of statutory interpretation to reach an interpretation that is contrary to the plain meaning of the statute. The section will also discuss the majority’s …

The Second Amendment In The Twenty-First Century: What Hath Heller Wrought?, Patrick J. Charles

William & Mary Bill of Rights Journal

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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 …

Carrying The Second Amendment Outside Of The Home: A Critique Of The Third Circuit's Decision In Drake V. Filko, Ryan Notarangelo

Catholic University Law Review

In D.C. v. Heller, the Supreme Court of the United States held that the Second Amendment protects an individual’s inherent right to keep and bear arms for self-defense-most notably, inside the home. Post-Heller, the lower courts are split on the Second Amendment’s protections outside of the home. This Note addresses the Third Circuit’s opinion on that split. In Drake v. Filko, the Third Circuit addressed whether New Jersey’s concealed carry permit law, which requires an individual to demonstrate a “justifiable need” to carry a handgun outside of the home, violated the Second Amendment. The plaintiffs were …

The Right To Remain Armed, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

The laws governing gun possession are changing rapidly. In the past two years, federal courts have wielded a revitalized Second Amendment to invalidate longstanding gun carrying restrictions in Chicago, the District of Columbia, and throughout California. Invoking similar Second Amendment themes, legislators across the country have steadily deregulated public gun carrying, preempting municipal gun control ordinances in cities like Philadelphia, Atlanta, and Cleveland. These changes to substantive gun laws reverberate through the constitutional criminal procedure framework. By making it lawful for citizens to carry guns even in crowded urban areas, enhanced Second Amendment rights trigger Fourth Amendment protections that could …

Challenging The Political Assumption That “Guns Don’T Kill People, Crazy People Kill People!”, Heath J. Hodges, Mario Scalora

Department of Psychology: Faculty Publications

Every time an infamous mass shooting takes place, a storm of rhetoric sweeps across this country with the fury of a wild fire. “Why are we letting these people carry guns?” “Why were they not hospitalized?” “The government needs to crack down on this issue!” What is the government’s response to these cries of concern? Politicians and the media attempt to ease public fears by drawing tenuous connections among a handful of poorly understood tragedies. The salient commonality is that these high-profile shooters had some history of mental illness. A cursory review of the Internet will paint a troubling picture …

The First Century Of Right To Arms Litigation, David B. Kopel

Sturm College of Law: Faculty Scholarship

This Article examines state court cases involving the right to arms, during the first century following ratification of the Amendment in 1791. This is not the first article to survey some of those cases. This Article includes additional cases, and details the procedural postures and facts, not only the holdings. The Article closely examines how the Supreme Court integrated the nineteenth century arms cases into Heller and McDonald to shape modern Second Amendment law.

Part I briefly explains two English cases which greatly influenced American legal understandings. Semayne’s Case is the foundation of “castle doctrine” — the right to home …

Biting The Bullet: Why The Gun Free Schools Act Must Be Repealed To Protect Student Speech, 49 J. Marshall L. Rev. 593 (2015), Aaron Brand

UIC Law Review

No abstract provided.

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 …

Kids, Leave The Guns At Home: Why Maryland's 'Good And Substantial Reason' Requirement Comports With Constitutional Aims In The Post-Heller Era, Julia Johnson

Criminal Law Practitioner

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Disarming The Dangerous: Preventing Extraordinary And Ordinary Violence, M. Fan

Indiana Law Journal

Mass shootings at Navy Yard, Newtown, Aurora, and elsewhere have jolted Congress and the states into considering gun violence prevention. More than 1500 gun-related bills have been introduced since 2013, after the slaughter in Newtown of twenty elementary-school children and six adults. Legislation and debates are shaped by the specter of a heavily armed, mentally ill individual hunting in public places such as schools, businesses, and workplaces. In the states, the most successful type of legislation involves firearms restrictions for the mentally ill. In Congress, the legislation that garnered the most debate was a ban on assault weapons and large-capacity …

Domestic Violence, Gun Possession, And The Importance Of Context, Wesley M. Oliver

Indiana Law Journal

Context is everything.

A federal law prohibits those convicted of committing an act of domestic violence from possessing weapons. 1 This term, the U.S. Supreme Court decided that this statute would apply even to those convicted of crimes that did not necessarily involve violent acts.2 This conclusion strains the ordinary meaning of language, but is quite consistent with a long tradition in criminal cases that favors a pro-government interpretation of a statute when the public welfare is at stake. And domestic violence, Justice Sotomayor stressed in her opinion, has reached epidemic levels, prompting Congress to get guns out of the …