Second Amendment Commons^™

The Waiting Is The Hardest Part: The Constitutionality Of Firearm Waiting Periods, F. Lee Francis

Dickinson Law Review (2017-Present)

This Article examines the constitutionality of firearm waiting period laws through the lens of the Supreme Court’s evolving Second Amendment jurisprudence. Although such laws are frequently defended as prudent public safety measures, their validity turns not on legislative purpose but on constitutional principle, particularly as framed in District of Columbia v. Heller and New York State Rifle & Pistol Ass’n v. Bruen.

Under those decisions, the scope of the Second Amendment is determined not by judicial balancing of contemporary interests, but by reference to the Nation’s historical tradition of firearm regulation. The Article surveys that tradition and finds no …

Lewd, Rude, Obscene, And… Violent? Analyzing Student Clothing Depicting Firearms Under The First Amendment’S Obscenity Test, Luke Gorman

Dickinson Law Review (2017-Present)

Today’s national news and social media have repeatedly exposed our school-age children to the effects of shootings occurring within their schools and communities. Each shooting brings with it commentary, sometimes from the students themselves. While in-school student speech is more limited than speech levied in the outside world, students do not shed their speech rights at the “schoolhouse gate.” As a result, courts have failed to outline a consistent approach for when a student will be punished for wearing a shirt depicting a firearm to school. This Comment addresses this delicate balance by proposing a consistent three-part test framed by …

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

The First Amendment To The Constitution, Associational Freedom, And The Future Of The Country: Alabama’S Direct Attack On The Existence Of The Naacp, Helen J. Knowles-Gardner

Seattle University Law Review

Sixty years ago, on Wednesday, April 8, 1964, Professor Harry Kalven, Jr., gave the second of three lectures at The Ohio State University College of Law Forum. These lectures were published two years later in a book entitled The Negro & the 1st Amendment. In the second lecture, Kalven distinguished between direct and indirect threats to the associational freedom of the National Association for the Advancement of Colored People (NAACP). Kalven categorized the 1958 decision in NAACP v. Alabama ex rel. Patterson as an indirect effort to control the NAACP.

With the benefit of material obtained from numerous archival sources, …

Using Bruen To Overturn New York Times V. Sullivan, Michael L. Smith, Alexander S. Hiland

Pepperdine Law Review

While New York Times Co. v. Sullivan is a foundational, well-regarded First Amendment case, Justice Clarence Thomas has repeatedly called on the Court to revisit it. Sullivan, Thomas claims, is policy masquerading as constitutional law, and it makes almost no effort to ground itself in the original meaning of the First and Fourteenth Amendments. Thomas argues that at the time of the founding, libelous statements were routinely subject to criminal prosecution—including libel of public figures and public officials. This Essay connects Justice Thomas’s calls to revisit Sullivan to his recent opinion for the Court in New York State Rifle & …

When Two Rights Make A Wrong: Armed Assembly Under The First And Second Amendments, Michael C. Dorf

Northwestern University Law Review

No abstract provided.

The Arms Dealer Who Cries, :“First Amendment”, Gustave Passanante

Touro Law Review

No abstract provided.

Lights, Camera, State Action: Manhattan Community Access Corp. V. Halleck, Graham L. Fisher

Cardozo Law Review de•novo

It is a well-established rule that constitutional constraints governing public entities do not extend to private actors—until they do. If this principle seems unclear, it is largely due to the piecemeal jurisprudence that defines the “state action” doctrine. This doctrine applies when courts hold that a private actor is subject to constitutional constraints by virtue of the quasi-public role they have willingly accepted. In these situations, constitutional protections—and the resulting 42 U.S.C. § 1983 actions—may be available to those who demand relief. While questions of what entails a “state action” loom in the face of closely intertwined private and public …

Conflicting Reports: When Gun Rights Threaten Free Speech, Gregory P. Magarian

Scholarship@WashULaw

This Article catalogs and analyzes collisions between free speech and gun rights. The most important and hotly debated of those collisions is the clash between the First Amendment rights to assemble and speak in public political protests and the asserted Second Amendment right to carry firearms openly in public places. Beyond protests, public university students’ First Amendment rights to speak and learn clash with the asserted Second Amendment right to carry concealed weapons on university campuses; First Amendment interests in robust political deliberation clash with Second Amendment interests in promoting and securing the right to keep and bear arms; and …

The Itunes Of Downloadable Guns: Firearms As A First Amendment Right, Sandra Sawan Lara

Catholic University Journal of Law and Technology

As society becomes more technology driven, legal issues continue to arise around the world. From privacy to national security, technology develops at a rate the law simply cannot keep up with. In the United States, one of the biggest legal issues is how the new risks technology brings will interfere with our individual liberties.

Technologies like three-dimensional (“3D”) printing have transformed everything from lifesaving surgeries to gun manufacturing. This technology has led to a whole new way of communicating via computer coding, with the online open source movement leading innovation by allowing for the sharing and editing of files freely. …

Political And Non-Political Speech And Guns, Gregory P. Magarian

Scholarship@WashULaw

Constitutional rights depend on justifications. Some combination of theory, his- tory, and practical reasoning needs to establish why and to what extent a given right warrants legal protection. The justifications that courts and theorists articulate for a given right determine the right’s breadth and the specific contours of its protection. Justification has particular importance at the formative stage of a newly recognized constitutional right. At present, courts are building doctrine around the Second Amendment “right of the people to keep and bear Arms,”1 recognized as an individ- ual right just over a decade ago in District of Columbia v. Heller.2 …

Tort Law Inside Out, Cristina Carmody Tilley

Faculty Publications

For more than a century, scholars have been looking at tort law from the outside in. Theorists committed to external goals like efficient allocation of resources or moral justice have treated tort as a mere vehicle for the achievement of their policy preferences, rather than as a body of law with a discernible internal purpose. It is time to revisit tort on its own terms.

This Article takes its cue from the New Doctrinalists, who urge that extralegal normative insights from fields such as economics or philosophy aid adjudication only when they are directly tethered to legal concepts; that is, …

Justifying Perceptions In First And Second Amendment Doctrine, Eric Ruben

Faculty Journal Articles and Book Chapters

Public perceptions often motivate policymakers. But what is the role of perceptions in defending regulations challenged as violating constitutional rights? This article explores how First and Second Amendment doctrine answer that question.

First Amendment free speech doctrine deploys categorical rules and balancing tests to determine the constitutionality of speech restrictions seeking to shape various perceptions. The resulting discrepancies, the article contends, can be explained by motive-based theories of First Amendment doctrine.

In the Second Amendment context, how to handle perception-based regulations remains an open question. Some courts have held that firearm restrictions can pass muster if they preserve the public’s …

The Cost To Carry: New York State’S Regulation On Firearm Registration, David D. Pelaez

Touro Law Review

No abstract provided.

Docs Versus Glocks: N.R.A. Takes Aim At Florida Physicians’ Freedom Of Speech: Leaving Patients’ Health, Safety, And Welfare At Risk, Michelle Foody

Cardozo Law Review de•novo

Part I of this Note provides background on the Act at issue, its legislative history, the current status of the Supreme Court’s free speech jurisprudence, and it also introduces the constitutional interests at stake. Part II considers the constitutionality of the Act under the existing First Amendment standard and addresses the State’s assertions under the Second Amendment. Part III proposes that the Court’s standard ought to be recalibrated, taking into account the would-be listeners’ cognizable interest in the information. Part III goes on to legitimate the proposal by reconciling this new examination standard with existing free speech jurisprudence and justifications, …

Speaking Truth To Firepower: How The First Amendment Destabilizes The Second, Gregory P. Magarian

Scholarship@WashULaw

When the Supreme Court in District of Columbia v. Heller declared that the Second Amendment protects an individual right to keep and bear arms, it set atop the federal judicial agenda the critical task of elaborating the new right’s scope, limits, and content. Following Heller, commentators routinely draw upon the First Amendment’s protections for expressive freedom to support their proposals for Second Amendment doctrine. In this article, Professor Magarian advocates a very different role for the First Amendment in explicating the Second, and he contends that our best understanding of First Amendment theory and doctrine severely diminishes the Second Amendment’s …