Second Amendment Commons^™

Owning Heller, Darrell A. H. Miller

Faculty Scholarship

Recent historical research using big-data techniques casts doubt on whether District of Columbia v. Heller was rightly decided according to originalist methods. These new discoveries put originalists in a bind. Do they embrace “faint hearted” originalism: the idea that as between the need for stability in prior decision making, settled expectations, and the coherence of the law, some adulterated decisions must remain enforced for the greater good? Or do they follow Justice Thomas’s reasoning in Gamble v. United States, remain stout-hearted, and reject any prior decision that cannot be supported by the common linguistic usage of the founding era – …

Constitutional Conflict And Sensitive Places, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Revisionist History? Responding To Gun Violence Under Historical Limitations, Michael Ulrich

Faculty Scholarship

In the D.C. Circuit case Heller v. District of Columbia (Heller II), Judge Kavanaugh wrote that “Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Now Justice Kavanaugh, will he find support on the highest court for what was then a dissenting view? Chief Justice Roberts, during oral arguments for Heller I, asked “Isn’t it enough to…look at the various regulations that were available at the time…and determine how these—how this restriction and the scope of this …

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 …

The Second Amendment & Private Law, Cody Jacobs

Faculty Scholarship

The Second Amendment, like other federal constitutional rights, is a restriction on government power. But what role does the Second Amendment have to play—if any—when a private party seeks to limit the exercise of Second Amendment rights by invoking private law causes of action? Private law—specifically, the law of torts, contracts, and property—has often been impacted by constitutional considerations, though in seemingly inconsistent ways. The First Amendment places limitations on defamation actions and other related torts, and also prevents courts from entering injunctions that could be classified as prior restraints. On the other hand, the First Amendment plays almost no …

Creating Precedents Through Words And Deeds, Harold Krent

All Faculty Scholarship

Book review: Untrodden ground: how presidents interpret the Constitution. By Harold H. Bruff. Chicago: University of Chicago Press, 2015. 557 pages. Reviewed by Harold J. Krent

The Absurd Logic Behind Florida’S Docs Vs. Glocks Law, Dahlia Lithwick, Sonja R. West

Popular Media

This article published at Slate.com on January 8, 2016, reviews the Wollschlaeger v. Governor of the State of Florida case in which the Florida legislature passed a law that bars health care workers from discussing or recording anything about their patients’ gun ownership or safety practices that could be deemed in bad faith, irrelevant, or harassing.

Second Amendment Traditionalism And Desuetude, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

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.

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 …

Hunting And The Second Amendment, Joseph Blocher

Faculty Scholarship

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 …

Gun Rights Talk, Joseph Blocher

Faculty Scholarship

No abstract provided.

Analogies And Institutions In The First And Second Amendments: A Response To Professor Magarian, Darrell A.H. Miller

Faculty Scholarship

In this essay, Professor Darrell Miller responds to Professor Gregory Magarian's criticism of the manner in which judges, advocates, and scholars have used the First Amendment to frame Second Amendment interpretive questions.

The Right To Defensive Arms After District Of Columbia V. Heller, Michael P. O'Shea

West Virginia Law Review

No abstract provided.

From Ballots To Bullets: District Of Columbia V. Heller And The New Civil Rights, Anders Walker

All Faculty Scholarship

This article posits that the Supreme Court's recent Second Amendment ruling District of Columbia v. Heller is a victory for civil rights, but not in the sense that most activists from the 1960s would recognize. Rather than a product of mid-century legal liberalism, Heller marks the culmination of almost forty years of coalition-based popular constitutionalism aimed at transforming the individual right to bear arms and the common law right to "employ deadly force in self-defense" into new civil rights. The implications of this are potentially great. By declaring the right to use deadly force in self-defense an "essential" right, the …

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 …

Shot Down: The D.C. Circuit Disarms Gun Control Laws In Parker V. District Of Columbia, Allison L. Mollenhauer

Villanova Law Review (1956 - )

No abstract provided.

United States V. Emerson: The Second Amendment As An Individual Right--Time To Settle The Issue, Scott A. Henderson

West Virginia Law Review

No abstract provided.