Second Amendment Commons^™

New York State Rifle & Pistol Association V. Bruen, T.C. Lisle Whitman Ii

Tennessee Law Review

No abstract provided.

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 …

Selections From The Civil Right To Keep And Bear Arms: Federal And Missouri Perspectives (2023 Edition), Royce De R. Barondes

Faculty Publications

This work contains two chapters from a longer work titled The Civil Right to Keep and Bear Arms: Federal and Missouri Perspectives (2023 Edition). The included chapters address two subjects. First, the chapters address application to select circumstances of the principles adopted in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). Those include (i) non-temporary governmental seizure or retention of individual arms (in contrast to a ban on all a subject's firearms possession and seizures in Terry stops); (ii) changes in Federal regulation mandating indefinite records retention by dealers; (iii) disabilities arising from …

Red-Flag Laws, Civilian Firearms Ownership And Measures Of Freedom, Royce De R. Barondes

Faculty Publications

This essay provides context for an assessment of a part of the recently-enacted Bipartisan Safer Communities Act--federal legislation funding state red-flag procedures, which allow for seizures of firearms from persons who have not committed crimes.

First, it assesses Maryland’s experience during the first year of implementing these procedures. The essay details computations, extrapolating from Maryland’s first-year experience, showing that adoption of these statutes causes blameless persons to be subject to being killed by the government at a rate comparable to or in excess of the murder rate.

Second, the essay identifies an overlooked impact of this federal legislation. The legislation’s …

The Contours Of Gun Industry Immunity: Separation Of Powers, Federalism, And The Second Amendment, Hillel Y. Levin, Timothy D. Lytton

Scholarly Works

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA), granting the firearms industry sweeping immunity from civil lawsuits. However, PLCAA immunity is not absolute. This Article demonstrates that both state and federal courts have fundamentally misread PLCAA when adjudicating cases involving the scope of gun industry immunity. Properly understood, PLCAA permits lawsuits against the gun industry so long as they are based on statutory causes of action rather than common law. While broadly preempting state common law claims, PLCAA affords state legislatures autonomy in deciding how to regulate the gun industry within their borders.

Additionally, this …

The Right To Train: A Pillar Of The Second Amendment, Joseph G.S. Greenlee

William & Mary Bill of Rights Journal

Since the Supreme Court confirmed that the Second Amendment protects “the individual right to possess and carry weapons” in District of Columbia v. Heller, lower courts have been grappling with whether there is also a right to train with those weapons. Courts have considered whether training is a protected activity, whether it is a “core” right, and whether its protection is limited to gaining the minimum competency needed for self-defense.

[...]

No court yet has explored the legal history of the right to train, nor has any article. This Article presents the first in-depth historical exploration of the right. …

Divorcing Guns: How Family Law Could Change Parental Gun Ownership And Save Kids’ Lives, Marcia A. Zug

Washington and Lee Law Review Online

Guns are deadly. They are especially deadly for children yet, currently, parental gun ownership is not a major factor in custody disputes. This needs to change. Making irresponsible gun ownership a routine factor in custody cases could transform parental gun behavior. In other contexts, the potential loss of custody has proven to be an extremely strong deterrent. Moreover, unlike other proposed solutions to gun fatalities, this is a change that can be made right now. Making guns a part of custody disputes does not require the enactment of new legislation or even a judicial determination. By simply raising the issue …

Firearms Regulation Through Constitutional Litigation, Hillel Y. Levin, Timothy D. Lytton

Scholarly Works

The U.S. Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen puts the Court firmly in charge of U.S. firearms policy. The decision also marks the beginning of a new era in which constitutional litigation will replace state and federal legislation as the primary means of resolving deep and enduring disagreements over how to regulate guns.

The Court’s Bruen decision contrasts with its decision in Dobbs v. Jackson Women’s Health Organization, overruling Roe v. Wade, where it declared that “the authority to regulate abortion is returned to the people and their elected representatives.” The …

Presumptively Awful: How The Federal Government Is Failing To Protect The Constitutional Rights Of Those Adjudicated As Mentally Ill, As Illustrated By The 18 U.S.C. § 922(G)(4) Circuit Split, Kaitlyn M. Rubcich

Pepperdine Law Review

The Third, Sixth, and Ninth Circuits are split as to whether the 18 U.S.C. § 922(g)(4) federal firearms ban violates the Second Amendment rights of those who were once adjudicated as mentally ill but have since returned to good mental health. In Beers v. Attorney General, the Third Circuit applied its own unique framework and held that § 922(g)(4) is constitutional. Meanwhile, the Sixth Circuit applied intermediate scrutiny in Tyler v. Hillsdale County Sheriff’s Department and deemed the statute unconstitutional, while in Mai v. United States, the Ninth Circuit also applied intermediate scrutiny but held that § 922(g)(4) is constitutional. …

Once Mentally Ill, Always A Danger? Lifetime Bans On Gun Ownership Under Fire Following Involuntary Commitment, Amanda Pendel

Touro Law Review

18 U.S.C. § 922(g)(4) imposes a lifetime ban on those who have been involuntarily committed to a mental institution from purchasing, or possessing a firearm, regardless of an extended passage of time, or a finding that the individual is unlikely to pose a danger to themselves or the public. Three circuits have created a split concerning the constitutionality of this statute. The Third Circuit held in Beers v. Attorney General United States that those involuntarily committed were outside of the scope of the Second Amendment; therefore, the § 922(g)(4)’s categorical ban is constitutional. Next, the Ninth Circuit in Mai v. …

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 …

Ethical Issues With Lawyers Openly Carrying Firearms, Dru Stevenson

St. Mary's Journal on Legal Malpractice & Ethics

Ethical concerns arise when lawyers openly carry firearms to adversarial meetings related to representation, such as depositions and settlement negotiations. Visible firearms introduce an element of intimidation, or at least the potential for misunderstandings and escalation of conflicts. The adverse effects of openly carried firearms can impact opposing parties, opposing counsel, the lawyer’s potential clients, witnesses, and even judges and jurors encountered outside the courtroom. The ABA’s Model Rules of Professional Conduct in their current form include provisions that could be applicable, such as rules against coercion and intimidation, but there is no explicit reference to firearms. Several reported incidents …

Young V. Hawaii: A Dangerous Precedent, Michael Jimenez

Loyola of Los Angeles Law Review

No abstract provided.

Working To Prevent Gun Violence In The United States: The Role Of Policy & Advocacy, Allison Popovits

Political Science & International Studies | Senior Theses

There are several laws in place regarding the legal purchase and possession of firearms in the United States (Giffords Law Center, 2020). There are also laws regarding the prohibited purchase and possession of firearms (Giffords Law Center, 2020). Yet, prohibited persons purchase and possess firearms regularly (Giffords Law Center, 2020). This happens because there are loopholes in the law (Brady United, 2020). For example, federal law requires background checks for gun purchases from licensed firearm dealers, but not at gun shows where sellers may not be licensed. This means that a felon (prohibited purchaser and possessor) buying a gun from …

The Incomplete Record In New York State Rifle & Pistol Association V. City Of New York, Eric J. Mogilnicki, Alexander Schultz

SMU Law Review Forum

A Second Amendment case now pending at the Supreme Court, New York State Rifle & Pistol Ass’n v. City of New York, tests the extent to which New York City may limit the movement of guns along city streets. The briefing in that case is, however, incomplete. Second Amendment jurisprudence calls for an examination of historical analogues to the firearms regulation at issue. Here, the New York State Rifle and Pistol Association asserted that there are none. This Article identifies numerous historical analogues to the City’s transportation restrictions, most of which were not identified in the briefing before the …

Suing Guns Out Of Existence?, Scott R. Thomas, Mystica M. Alexander

Washington and Lee Law Review Online

In an effort to address gun violence, activists and victims’ families have filed lawsuits against the firearms industry seeking damage awards for violence committed by third party unrelated actors. Although Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005 intending to foreclose such lawsuits, since the time of the law’s passage, plaintiffs have brought claims against the firearms industry seeking refuge in an exception embedded in the statute. In a March, 2019 decision, Soto v. Bushmaster Firearms International, LLC, the Connecticut Supreme Court found that the Connecticut Unfair Trade Practices Act fell within an exception …

Gun Safety In The Age Of Kavanaugh, Joseph S. Hartunian

Michigan Law Review Online

This Essay takes stock of the different approaches adopted and advocated for in evaluating constitutional challenges in Second Amendment opinions throughout the country. The author’s hope is that doing so will help highlight the contours for debate when the Supreme Court does finally start to define some of the limits purported to exist by Justice Scalia. Part I analyzes the paths explicitly rejected by Heller I by reviewing the limits considered allowable by Justice Scalia. Part II considers the ongoing debate between the courts on the application of “strict” or “intermediate” scrutiny for Second Amendment challenges. Part III examines then-Judge …

The Business Of Guns: The Second Amendment & Firearms Commerce, Corey A. Ciocchetti

Pepperdine Law Review

Does the Second Amendment protect commerce in firearms? The simple answer is: yes, to an extent. An individual’s right to possess and use a gun for self-defense in the home is black-letter law after District of Columbia v. Heller. The right to possess and use a gun requires the ability to obtain a gun, ammunition, and firearms training. Therefore, gun dealers, servicers, and training providers receive some constitutional protection as facilitators of their customers’ Second Amendment rights. Whether these constitutional rights belong to firearms-related businesses independently of their customers is unclear. The scope of the Second Amendment matters as recent, …

Paying For Gun Violence, Samuel D. Brunson

Faculty Publications & Other Works

Gun violence is an outsized problem in the United States. Between a culture that allows for relatively unconstrained firearm ownership and a constitutional provision that ensures that ownership will continue to be relatively unchecked, it has proven virtually impossible for politicians to address the problem of gun violence. And yet, gun violence costs the United States tens of billions of dollars or more annually. These tens of billions of dollars are negative externalities — costs that gun owners do not bear themselves, and thus that are imposed on the victims of violence and on taxpayers generally.

What can we do …

Contumacious Responses To Firearms Legislation (Leosa) Balancing Federalism Concerns, Royce De R. Barondes

Faculty Publications

The Law Enforcement Officers Safety Act (LEOSA) is one of the handful of federal statutes that preempt state firearms regulation. It allows covered individuals (certain current and retired qualified law enforcement personnel) to possess firearms notwithstanding assorted state restrictions-to protect themselves and to supplement local law enforcement efforts.

The act reflects a careful legislative balancing of federalism concerns. Although it relies on states and localities to issue the authorizing credentials, it does not mandate states create a licensing regime out of whole cloth. The act ultimately presents issues requiring a nuanced assessment of the doctrine proscribing federal commandeering of the …

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 …

Shooting Down Oliphant: Self-Defense As An Answer To Crime In Indian Country, Adam Crepelle

Lewis & Clark Law Review

Crime is a dire public safety problem in Indian country as Indians suffer violent crime at twice the rate of any other racial group. Indian country’s unique and confusing jurisdictional scheme combined with a shortage of police leave Indians easy targets for those looking to commit crimes. A largely unexplored answer to crime in Indian country is self-defense. This Article posits that the United States self-defense jurisprudence may make self-defense the most practical solution to crime in some parts of Indian country.

The Article discusses the history of self-defense laws and the relationship between self-defense laws and firearms. The Article …

The "Scourge" Of Armed Check Fraud: A Constitutional Framework For Prohibited Possessor Laws, Jeffrey Giancana

University of Michigan Journal of Law Reform

Prohibited possessor statutes have been a part of American law for decades. Put simply, these laws prohibit any person who has been convicted of a felony from possessing a firearm, a prohibition that lasts for the felon’s entire life. The Supreme Court’s modern Second Amendment jurisprudence has held that the right to possess a firearm is a fundamental individual right. In light of this new paradigm, the constitutionality of such broad prohibitions must be called into question—despite the eagerness of courts across the country to dismiss such challenges by pointing to a single line in Heller. This Note challenges the …

Federalism Implications Of Non-Recognition Of Licensure Reciprocity Under The Gun-Free School Zones Act, Royce De R. Barondes

Faculty Publications

The Gun-Free School Zones Act (GFSZA) criminalizes firearms possession within 1000 feet of an elementary or secondary school in a State unless the possessor "is licensed to do so by the State in which the school zone is located" (or one of a few other exceptions applies). The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has in correspondence opined licensure through reciprocity does not make one so licensed by the State.

School zones covered by the act are ubiquitous. Were the ATF's interpretation adopted, large swaths of many States' non-rural areas would be prohibited zones for non-residents who carry …

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 …

Trending @ Rwu Law: Dean Yelnosky's Post: What The Tragedy In Orlando Means For Rwu Law 6/17/2016, Michael Yelnosky

Law School Blogs

No abstract provided.

The Second Amendment In The 21st Century: An In-Depth Examination Of Firearm Freedoms And Their Relationship With Public Safety And Interests, Mathew E. Klein

Honors Undergraduate Theses

One of the most hotly contested topics in the world today revolves around an object. An object that has caused debate among all members of society both in the United States, and all across the globe. But how could an object, something that on its own does nothing, spur such heated argument? This object is the evolution of invention and the product of fighting amongst each other. This object changes the way people think and how they act. This object can be used for both good and bad. This object is a gun.

This research project will explore the Second …

Guns, Gender, Geography: Exploring Reasons For Gun Ownership, Lauren N. Kadet

College of Graduate Studies: Theses & Dissertations

This study was aimed to depict patterns of gun ownership in the United States and to outline the reasons for gun ownership and the influential variables associated with people’s reasons for owning handguns and long guns. This study used data derived from the 2004 National Firearm Survey to examine how respondents’ geographic region of residency, gender, race, age, rural location and education level influenced the likelihood of, and reasons for owning a firearm. The findings from this study suggest that being a male, living in the south and participants’ age was significant in determining the likelihood of participants owning a …

The Law And Politics Of Firearms Regulation In Reconstruction Texas, Mark Anthony Frassetto

Texas A&M Law Review

In District of Columbia v. Heller, Justice Scalia instructed that the historical understanding of the right to keep and bear arms should inform our present day understanding of the Second Amendment. This means an accurate accounting of the history of firearms regulation is essential for understanding the scope of the Second Amendment. The current state of scholarship on Second Amendment history paints post-Civil War firearms regulations as racist efforts by Southern states to prevent blacks from defending themselves against racial violence. This reading distorts the historical record by ignoring the actors responsible for numerous gun laws across the former Confederacy. …