Second Amendment Commons^™

American Loopholes: What Are They, And How Do We Close Them?, Tanner L. Martin

Wyoming Law Review

This Comment examines the existence and impact of alleged loopholes within American gun control laws and explores how these gaps may affect Constitutional rights, legal enforcement, and public safety. In addition to identifying trends in American gun ownership, including patterns of purchasing, possession, and regulatory compliance, this Comment analyzes the current legal standards that determine who is disqualified from owning or possessing a firearm under federal law. These categories include individuals with certain criminal convictions, domestic violence restrictions, or mental health adjudications, and how those legal standards are applied in practice.

Beyond the legal framework, this Comment also considers the …

Cumulative Burdens On Second Amendment Rights, Joseph Blocher, Hayley Lawrence

Faculty Scholarship

No abstract provided.

Death & Taxes: Preserving The Second Amendment From "Absolute Obliteration" With Congress' Powers Of Taxation?, Christian Ketter

University of Cincinnati Law Review

No abstract provided.

Second Amendment Principles, Jamie G. Mcwilliam

William & Mary Bill of Rights Journal

In United States v. Rahimi, the Supreme Court explained that firearm regulations “must comport with the principles underlying the Second Amendment.” This Article examines what those principles are, how to derive them, and how to apply them in concrete cases. It begins with the Second Amendment’s core principle of defense of self and community, which traces its lineage back to classical thinkers like Aquinas and Grotius. The tradition of firearm regulation that surrounded the adoption of the Second Amendment depended on this fundamental principle. But it also developed subsidiary principles that implement the defense principle in specific ways. This …

Take It Or Leavitt: The Criminal Consequences Of Doing The Right Thing, Eva Lynch

University of San Francisco Law Review

No abstract provided.

Second Amendment: Incompatible Methodologies And The Bruen And Heller Opinions' Underlying Misalignment, Henry H. Robinson

Touro Law Review

In its 2022 Bruen opinion, the Supreme Court characterized the Heller opinion as having applied a “methodological approach” for interpretation of the Second Amendment. However, Bruen’s description and summary partially omitted, and was materially misaligned with, Heller’s actual reasoning. In Heller’s first step of constitutional interpretation, which addressed the first clause of the sentence comprising the Second Amendment, the opinion had selectively not applied the methodological approach described in Bruen; Heller’s first step had applied a different, incompatible methodological approach. Bruen’s description was aligned only with the second step of Heller’s constitutional reasoning, which had addressed the sentence’s second clause. …

Going Cashless: Privacy Implications For Gun Control In A Digital Economy, Liza Goldenberg

The Journal of Business, Entrepreneurship & the Law

This paper will examine how, given the United States’ shift toward a cashless economy, the country’s top credit-card companies’ potential decision to implement a new merchant code for firearm-related transactions as a method of gun control will backfire, jeopardizing consumer privacy and leading to unregulated transactions through cryptocurrencies. Since the majority of gun violence stems from firearm transactions not involving credit cards, credit-card companies should abandon the new merchant code that dissuades Americans from exercising their fundamental rights. The American economy should focus on slowing the shift toward a digital economy so that federal and state governments can implement legislation …

Safe Storage Laws And Self-Defense From Heller To Bruen, Joseph Blocher

Faculty Scholarship

This short Essay, written for a symposium honoring Walter Dellinger, explores one of the most underappreciated—and indefensible—holdings of District of Columbia v. Heller, the landmark Second Amendment case that Walter ably argued for the District. Most scholars have focused on Heller’s announcement of an “individual” right to keep and bear arms for private purposes and its invalidation of the District’s prohibition on handguns. But along the way, almost in passing, the Court also struck down the District’s requirement that firearms be kept “unloaded and dissembled or bound by a trigger lock or similar device.” It did this not by asking …

Qualified Immunity As Gun Control, Guha Krishnamurthi, Peter N. Salib

Notre Dame Law Review Reflection

The Supreme Court’s ruling in New York State Rifle & Pistol Ass’n v. Bruen threw the political project of gun regulation into question. Before Bruen, states could enact new kinds of gun restrictions if they passed a relatively stringent means-ends test. That is, if laws meaningfully reduced danger, while not too heavily burdening the right to self-defense, they were allowed. After Bruen, only gun controls actually in force in the Founding Era, and their close analogues, are permissible. Many fewer regulations will now pass the constitutional test.

Here, we suggest an unlikely source of continuing power, after Bruen, for states …

The Fugazi Second Amendment: Bruen's Text, History, And Tradition Problem And How To Fix It, Patrick J. Charles

Cleveland State Law Review

This Article critiques the Supreme Court’s use of text, history, and tradition in New York Rifle & Pistol Association, Inc. v. Bruen. In doing so, not only is the Supreme Court’s approach to history-in-law in Bruen called into question, but also the Article provides the courts with an historically objective and even-keeled ‘way-ahead’ for future Second Amendment cases and controversies.

Second Amendment Sanctuaries: Defiance, Discretion, And Race, Nicholas J. Johnson

Pepperdine Law Review

Second Amendment Sanctuaries deploy nonenforcement policies and strategies in defiance of firearms laws of superior jurisdictions. The scholarship so far has focused on whether Second Amendment Sanctuary policies are legally enforceable. This Article advances the scholarship beyond questions of de jure validity by examining the potential for practical, de facto efficacy of Second Amendment Sanctuary policies. This Article concludes that even where Second Amendment Sanctuaries have weak claims to formal validity, defiant public officials still have broad opportunities to implement Second Amendment Sanctuary policies through the exercise of enforcement discretion. The conclusion that enforcement discretion can effectuate sanctuary policies is …

Firearms Law And Scholarship Beyond Bullets And Bodies, Joseph Blocher, Jacob D. Charles, Darrell A. H. Miller

Faculty Scholarship

Academic work is increasingly important to court rulings on the Second Amendment and firearms law more generally. This article highlights two recent trends in social science research that supplement the traditional focus on guns and physical harm. The first strand of research focuses on the changing ways that gun owners connect with firearms, with personal security, status, identity, and cultural markers being key reasons people offer for possessing firearms. The second strand focuses on broadening our understanding of the impact of guns on the public sphere beyond just physical safety. This research surfaces the ways that guns can create fear, …

Toxic Masculinity And Gender-Based Gun Violence In America: A Way Forward, Hayley N. Lawrence

Faculty Scholarship

No abstract provided.

Guided By History: Protecting The Public Sphere From Weapons Threats Under Bruen, Joseph Blocher, Reva B. Siegel

Faculty Scholarship

Since the Founding era, governments have banned guns in places where weapons threaten activities of public life. The Supreme Court reaffirmed this tradition of “sensitive places” regulation in District of Columbia v. Heller, and locational restrictions on weapons have become a central Second Amendment battleground in the aftermath of New York State Rifle & Pistol Association v. Bruen. Liberals have criticized Bruen for requiring public safety laws to mimic founding practice, while conservatives have criticized it for licensing regulatory change not within the original understanding. In this Article we argue that Bruen’s analogical method looks to the past to guide …

“A Map Is Not The Territory”: The Theory And Future Of Sensitive Places Doctrine, Joseph Blocher, Jacob D. Charles, Darrell A. H. Miller

Faculty Scholarship

In the wake of the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, courts are now confronted with new questions about where guns can be restricted and what justifications support those regulations. This Essay urges that the development of the doctrine governing location-based prohibitions should focus as much on the why as the where. Instead of simply isolating each location and considering the historical pedigree of gun restrictions in that place, judges should evaluate the reasons behind the sensitive places doctrine itself. We aim to recenter these first order questions to avoid haphazard doctrinal development …

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 …

Cities, Preemption, And The Statutory Second Amendment, Joseph Blocher

Faculty Scholarship

Although the Second Amendment tends to dominate the discussion about legal limits on gun regulation, nothing has done more to shape the state of urban gun law than state preemption laws, which fully or partially limit cities’ ability to regulate guns at the local level. The goals of this short Essay are to shed light on this “Statutory Second Amendment” and to provide a basic framework for evaluating it.

Securing Gun Rights By Statute: The Right To Keep And Bear Arms Outside The Constitution, Jacob D. Charles

Faculty Scholarship

In popular and professional discourse, debate about the right to keep and bear arms most often revolves around the Second Amendment. But that narrow reference ignores a vast and expansive nonconstitutional legal regime privileging guns and their owners. This collection of nonconstitutional gun rights confers broad powers and immunities on gun owners that go far beyond those required by the Constitution, like rights to bring guns on private property against an owner’s wishes and to carry a concealed firearm in public with no training or background check. This Article catalogues this set of expansive laws and critically assesses them. Unlike …

Common Use, Lineage, And Lethality, Darrell A. H. Miller, Jennifer Tucker

Faculty Scholarship

Political and legal debates over assault rifles, large-capacity magazines, and other lethal technology are characterized by increasing rancor and hostility. Lack of a common vocabulary to describe the topics of debate, much less facilitate a constructive dialogue, only aggravates this trend. Sorely missing from the current debate is a shared vocabulary for what the public policy and the constitutional doctrine are aiming to achieve. Part I of this Article outlines the state of Second Amendment doctrine with respect to which and what type of arms are protected, and the confused language and goals of that doctrine. Part II provides a …

Race And Guns, Courts And Democracy, Joseph Blocher, Reva B. Siegel

Faculty Scholarship

Is racism in gun regulation reason to look to the Supreme Court to expand Second Amendment rights? While discussion of race and guns recurs across the briefs in New York State Rifle and Pistol Association v. Bruen, it is especially prominent in the brief of legal aid attorneys and public defenders who employed their Second Amendment arguments to showcase stories of racial bias in the enforcement of New York’s licensing and gun possession laws. Because this Second Amendment claim came from a coalition on the left, it was widely celebrated by gun rights advocates.

In this Essay we address issues …

Constitutional Gun Litigation Beyond The Second Amendment, Joseph Blocher, Noah Levine

Faculty Scholarship

No abstract provided.

How The Gun Control Act Disarms Black Firearm Owners, Maya Itah

Washington Law Review

Through 18 U.S.C. § 924(c), the Gun Control Act (GCA) outlaws the possession of a firearm “in furtherance of” a drug trafficking crime. The statute’s language is broad, and federal courts have interpreted it expansively. By giving prosecutors wide discretion in charging individuals with § 924(c) violations, the language enables the disproportionate incarceration of Black firearm owners.

This Comment addresses this issue in three parts. Part I discusses the ways early gun control laws overtly disarmed Black firearm owners. Additionally, Part I provides context for the passage of the Gun Control Act of 1968, which coincided with the backlash to …

Quantitative Literacy And Guns, William Briggs

Numeracy

Briggs, William. 2017. How America Got Its Guns: A History of the Gun Violence Crisis; (Albuquerque, University of New Mexico Press). 352 pp. Paperback: ISBN 978-0-8263-5813-4. E-book ISBN 978-0-8263-5814-1.

Quantitative literacy and statistics are just two of many disciplines required to understand the problem of gun violence in America. However, it’s also useful to appreciate their limitations in an issue that is so complex.

The Odious Intellectual Company Of Authority Restricting Second Amendment Rights To The “Virtuous”, Royce De R. Barondes

Faculty Publications

To the woes of the victims of American over-criminalization, we can add deprivation of the suitable tools for self-defense during national emergency and civil unrest. Federal law disarms “unlawful users” of controlled substances (including medical marijuana), and imposes a permanent firearms ban on substantially all those with prior felony convictions. A notable exception is made for white-collar criminals with felony violations of antitrust and certain business practice statutes.

The constitutionality of these restrictions typically is founded on the view that one is tainted as “non-virtuous” for any serious criminal conviction, which includes any felony conviction. Using extensive sampling, this article …

When Guns Threaten The Public Sphere: A New Account Of Public Safety Regulation Under Heller, Joseph Blocher, Reva B. Siegel

Faculty Scholarship

Government regulates guns, it is widely assumed, because of the death and injuries guns can inflict. This standard account is radically incomplete—and in ways that dramatically skew constitutional analysis of gun rights. As we show in an account of the armed protesters who invaded the Michigan legislature in 2020, guns can be used not only to injure but also to intimidate. The government must regulate guns to prevent physical injuries and weapons threats in order to protect public safety and the public sphere on which a constitutional democracy depends.

For centuries the Anglo-American common law has regulated weapons not only …

Two Concepts Of Gun Liberty, Joseph Blocher

Faculty Scholarship

No abstract provided.

Workplace Violence, Firearm Prohibitions, And The New Gun Rights, Dru Stevenson

University of San Francisco Law Review

No abstract provided.

The Gun Subsidy, Christian Turner, Justin Van Orsdol

Scholarly Works

Despite thousands of gun deaths annually, the United States has failed to reach consensus on any means of addressing the public health crisis that is gun violence. The issue has become politically polarized, constitutionalized, and an object of pessimism and despair. We propose a regulatory system in which gun manufacturers would be strictly liable to a federal fund for deaths caused by their guns, paired with a subsidy that will serve to ensure the availability of guns sufficient to meet the rights the Supreme Court has found in the Second Amendment. While strict liability of this kind can indeed serve …

A Comparative Analysis Of The Politics Of Gun Control In The United States And Australia, Nicholas Leone

College Honors Program

This thesis centers on the interrelationships and differences in firearm legislation and culture within the United States of America and Australia. As a result of the Port Arthur Massacre on April 28, 1996, Australia was faced with an unprecedented mass shooting that completely shifted Australian politics and culture regarding firearm safety and availability. Thus, the thesis inquiries into the effectiveness of Australia’s buyback program as well as the cultural and political factors that allowed for such legislation to be passed. After suffering 118 mass shootings in the U.S. since 1982, the history of the United States regarding gun control is …

Firearms Law Workshop Mini-Symposium, Part Iii: Framing The Second Amendment: Gun Rights, Civil Rights, And Civil Liberties, Timothy Zick

Popular Media

No abstract provided.