Second Amendment Commons^™

The Evolution Of The Supreme Court's Second Amendment Jurisprudence, Kermit V. Lipez

Maine Law Review

We live in the shadow of an epidemic of gun violence. We dread the next report of an inevitable mass shooting. We no longer feel secure in public places. We fear for the safety of our children and our grandchildren at their schools. We shake our heads in disbelief at the empty ritual of "thoughts and prayers" for victims and their families. As one commentator put it, we suffer from the "[u]nbearable [m]onotony of [g]rief." Why must we live like this? Why are there no solutions? In conversations posing these questions, there are often references to the Supreme Court's Second …

The Flaws Of Bruen And The Principle Of The Second Amendment, Cameron Collins

Catholic University Law Review

With a six Justice majority, the Court is more conservative than it has been in ninety years. No time has been wasted as the conservative Justices take aim at legal precedents left over from a more progressive era on the Court. There being no prior test established by the highest Court to review legal challenges on Second Amendment grounds, the Court took the opportunity to write new precedent in New York State Rifle Pistol Association, Inc. v. Bruen. Rather than stick with the means-end scrutiny framework that had been developing in the circuit courts, the Supreme Court established a …

In Guns We Trust: Nfa Firearm Trusts And Silencing The Hazards Of Nfa Firearm Ownership, Carter Horton

Arkansas Law Review

Individual ownership of firearms has been one of the storied rights of our country. During the Founding Era, firearms were plentiful among the colonists, providing them with protection and the means to hunt for food to sustain their communities. With a rebellion brewing against Great Britain, the ill-equipped colonial governments primarily relied upon the personal arms of their people for defense. Arguably, this fundamental right to bear arms played an important role in sparking the American Revolutionary War at the Battles of Lexington and Concord, in which the British attempted to seize an arms cache from the colonists. The subsequent …

Revisiting “Of Arms And The Militia: Gun Regulation By Legislatively Defining ‘Ordinary Military Equipment’”, Edward J. Curtis ,Jr.

Touro Law Review

In 2021, I published an article arguing that semi-automatic rifles and semi-automatic handguns, among other weapons, could be most effectively regulated by defining the “ordinary military equipment” that the states’ militia members were expected to produce in the event they were called to service. I based my argument on the rationale employed by the United States Supreme Court in its 1939 decision in United States v. Miller, which upheld the National Firearms Act of 1934.

Mitigating Firearm Suicide With Trusted Messengers In Health Care, Michael Ulrich, Cassandra Devaney

Faculty Scholarship

Voluntary firearm safety actions avoid Second Amendment scrutiny, but rely on individuals recognizing their own risks. This could be aided by a network of healthcare professionals that have received proper training and information about all available tools to help prevent firearm-related suicide attempts, and combining the trust of clinicians and firearm owners could represent an opportunity to inform and educate in a manner that will engage patients.

Building Layered Defenses To Reduce Illegal Gun Violence, Samuel Kan

Arkansas Law Review

The government and stakeholders in society must act within their span of control to eradicate excessive and illegal gun violence. It is not surprising that a majority of Americans “say gun violence is a very big problem in the country[,] . . . they expect the level of gun violence to increase[, and] . . . it is too easy to legally obtain a gun” in the United States. This Article tackles this politically charged issue and recommends specific strategies for the government and stakeholders in society to reduce unlawful firearm violence and its harmful effects. At the heart of …

Building Layered Defenses To Reduce Illegal Gun Violence, Samuel Kan

Faculty Scholarship

This article examines a multifaceted approach to reducing illegal gun violence in the United States through the implementation of layered defense strategies. While acknowledging the constitutional protections afforded by the Second Amendment, the author argues that targeted legislative and community-based interventions can effectively reduce gun violence without infringing on lawful gun ownership rights. The analysis explores several key defensive measures, including extreme risk laws (risk protection orders), which allow for temporary firearm removal from individuals posing credible threats to themselves or others—a practice recently upheld by the Supreme Court in United States v. Rahimi. The article further examines the constitutional …

Historical Firearm Licensing And Permitting Laws, Robert J. Spitzer

Dickinson Law Review (2017-Present)

No abstract provided.

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 …

When Rights Require Permission: The Discriminatory History Of Licensing Laws For Firearm Possession, Bob Barr, Joseph G.S. Greenlee

Dickinson Law Review (2017-Present)

No abstract provided.

The Wrongly Read Right: Insurrection And The Second Amendment Right To Bear Arms, Aman Mcleod, Jacob M. Jones

Dickinson Law Review (2017-Present)

Several judges and scholars have interpreted the Second Amendment as creating a right to bear arms to facilitate armed resistance against the government whenever it threatens to impose tyranny. These arguments have been made in books, scholarly articles, and court decisions. Many of the proponents of the pro-armed insurrection interpretation of the Second Amendment root this point of view in the history of the right to bear arms in the Anglo-American legal tradition. This Article argues that the Second Amendment does not create a right to bear arms to resist government authority because such a right is inconsistent with several …

Big Business As Gun Control, David B. Kopel, George A. Mocsary, Bhav Ninder Singh

Dickinson Law Review (2017-Present)

Gun control increasingly bypasses direct legislative enactments by co-opting the commercial marketplace. Financial institutions and insurers often face regulatory pressures, frequently articulated through vague notions of “reputational risk,” to terminate or restrict services for lawful firearms businesses and advocacy groups. The debanking tactic, seen in initiatives such as Operation Choke Point, can deny essential financial products to firearm owners, merchants, and organizations, curtailing the practical exercise of constitutionally protected rights. Simultaneously, government agencies sometimes pursue warrantless data collection from bank records and merchant category codes, building profiles of lawful purchasers and eroding privacy and due-process norms.

Social media platforms compound …

Dangerous And Unusual: How Heller’S Ahistorical Assumption Violates The Founders’ Original Intent, Oliver Krawczyk, Gilbert Ambler

Dickinson Law Review (2017-Present)

When the U.S. Supreme Court ended its generational silence on the Second Amendment in District of Columbia v. Heller, the Court held that “a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society” is “invalid.” In so holding, the Court suggested that the Constitution protects only those weapons “in common use at the time,” a limitation thought to be “fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” The Court defined none of these terms then, and it has not since.

Over a decade of constitutional infidelity ensued. …

Just To Be Safe, Let’S Keep Ignoring What “Arms” Meant In 1791, Jack Thorlin

Dickinson Law Review (2017-Present)

The Supreme Court held in District of Columbia v. Heller and reaffirmed in New York State Rifle & Pistol Ass’n v. Bruen that “arms,” referred to in the Second Amendment, are common weapons useful for lawful purposes. The majority argued that militiamen fought with whatever common weapons they had on hand for civilian purposes, such as self-defense and hunting. Therefore, under Heller, only those weapons are covered by the Second Amendment. However, Heller did little to ground the “self-defense” theory of “arms” in original public meaning or even actual history. Commonality and lawful purpose have proved difficult for lower …

Cars Don’T Stop For Yellow Lights: Turning Maine’S Yellow Flag Law Red, Jamison Rhoads-Doyle

Maine Law Review

This Case Note is about Maine’s Extreme Risk Protection Order law, Title 34-B, Section 3862-A, of the Maine Revised Statutes. The purpose of Maine’s law and others like it is to proactively take firearms away from individuals who present a substantial risk of violently harming themselves or others. In the aftermath of the mass shooting which occurred in Lewiston, Maine on October 25, 2023, there was debate over whether law enforcement could have used Section 3862-A to proactively prevent the shooting, as well as over whether Section 3862-A was an effective tool for preventing violence in the first place. This …

Smoking Guns In The Rearview Mirror: Defending Washington's Firearm Regulations With Historical Analogues, Hyejin Lee

Washington Law Review

Mass shootings and gun violence are inescapable facts of American life. America is the only developed country where mass shootings occur almost daily. Despite the widespread sentiment of hopelessness surrounding this problem, state and local governments have been enacting various gun restriction laws. However, in a series of recent cases, the U.S. Supreme Court established an originalist standard for evaluating Second Amendment claims that poses significant challenges to the constitutionality of state and local gun laws. To survive constitutional muster, gun laws today must share common regulatory purpose and mechanism with historical analogues from the period between the founding and …

Constitutional Law—Arkansas’S Unconstitutional Gun Restrictions For The Formerly Mentally Ill, Michael Frost

University of Arkansas at Little Rock Law Review

No abstract provided.

Rahimi And The Future Of (The Rest Of) The Protection Order Prohibition, Bonnie Carlson

Articles

In the summer of 2024, the Supreme Court considered United States v. Rahimi. Scholars and lawyers watched with bated breath to see how the court would interpret and apply the foundation-shifting Second Amendment test it established in New York State Rifle & Pistol Ass’n v. Bruen two years earlier. Ultimately, the Court upheld the federal law which temporarily bans some protection order respondents from possessing firearms. But the Court provided little in the way of additional guidance that lower courts desperately needed as evidenced by the disparate outcomes on gun cases nationwide following Bruen. Rather, the Court opted for a …

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 …

Loyalty Disarmament And The Undocumented, Pratheepan Gulasekaram

Publications

Since the Supreme Court's District of Columbia v. Heller decision in 2008, lower federal courts have wrestled with Second Amendment claims raised by categories of people excluded from gun possession. Among those cases, several have been brought by noncitizens challenging their prosecutions under 18 U.S.C. § 922(g)(5), the federal criminal ban on possession by unlawfully present noncitizens. In the post-Heller § 922(g)(5) cases, judges have opined on whether unlawfully present noncitizens were among "the people" who had the right to bear arms and whether the government regulation met the appropriate level of constitutional scrutiny. More recently, however, the Supreme Court …

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. …

The Second Amendment’S Second Sex, Michael Ulrich

Faculty Scholarship

This Essay explores how the Supreme Court’s Second Amendment doctrine perpetuates gender hierarchies and a male monopoly on lethal self-defense. It critiques the narrow “true man” framing that ignores women’s experiences and advocates for a justice-centered framework that incorporates power and privilege into the gun-rights discourse.

The Addiction Restriction: Addiction And The Right To Bear Arms, F. Lee Francis

West Virginia Law Review

This Article is the culmination of a yearlong research project, and it is the first to address addiction and drug use in the area of Second Amendment law. I argue that addicts may be disarmed, if they are dangerous. My dangerousness test centers on illicit use and imminent danger. That is, do the facts and circumstances prove that an individual is in fact a danger? To put it another way, disarmament is appropriate when there exists demonstrable evidence that a person poses a significant and imminent risk of causing public injury. This Article develops and expands upon some themes and …

The Politics Of Possession And Gun Violence: The Bruen Decision's Impact On Firearm Regulation, Jacob Butler

JCLC Online

States struggle to implement new firearms policies because they are

limited by two major forces: the political feasibility of passing new firearms

legislation and an increasingly broad and individualized Second Amendment

right. Due to this conflict, states continually return to one of few

constitutional yet politically popular methods of gun control: enacting

possession-based firearms laws. These laws are largely ineffective at

reducing gun violence.

In the 2022 Supreme Court decision New York Rifle and Pistol

Association v. Bruen, the Court further expanded the scope of the Second

Amendment to protect the individual’s right to bear arms outside of the …

A De-Regulated Militia: The Diminished Training Requirements For Ohio Teachers To Carry Weapons In Schools, Richard Sharp

University of Cincinnati Law Review

No abstract provided.

The History Of Bans On Types Of Arms Before 1900, David B. Kopel, Joseph G.S. Greenlee

Journal of Legislation

This Article describes the history of bans on particular types of arms in America, through 1899. It also describes arms bans in England until the time of American independence. Arms encompassed in this article include firearms, knives, swords, blunt weapons, and many others. While arms advanced considerably from medieval England through the nineteenth-century United States, bans on particular types of arms were rare.

Salvaging Federal Domestic Violence Gun Regulations In Bruen’S Wake, Bonnie Carlson

Washington Law Review

Congress passed two life-saving laws in the mid-1990s: a protection order prohibition, which bars firearm possession for protection order respondents, and the Lautenberg Amendment, which bars firearm possession for those convicted of misdemeanor crimes of domestic violence. Both laws have been repeatedly upheld by federal courts nationwide in the nearly thirty years since their enactment. Both faced renewed constitutional challenges after the United States Supreme Court’s foundation-shifting decision in New York State Rifle & Pistol Ass’n v. Bruen on June 23, 2022. The Lautenberg Amendment has fared well; every court to consider it post-Bruen has upheld it. Courts have …

What It Takes To Write Statutes That Hold The Firearms Industry Accountable To Civil Justice, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

This Essay defends statutes creating public nuisance and consumer protection causes of action against firearms industry actors for their failure to take reasonable measures to control the flow of their products to criminal users. Such laws are predicate statutes under PLCAA and do not infringe the Second Amendment.

Trouble’S Bruen: The Lower Courts Respond, Glenn Harlan Reynolds, Brannon P. Denning

Scholarly Works

New York State Rifle & Pistol Ass'n v. Bruen revolutionized the understanding of how Second Amendment cases are to be adjudicated. Rejecting the tiered-scrutiny analysis around which the lower courts had coalesced since the 2008 Heller decision, the Court instructed courts to look to history and tradition after it was determined that state or federal regulations limited activities that fell within the protections afforded by the Second Amendment's text. Justice Thomas's opinion, however, left open significant questions about how the history-and-tradition method is to operate in practice. The Court recently held oral arguments in United States v. Rahimi, in which …

Reconciling Domestic Violence Protections And The Second Amendment, Natalie Nanasi

Faculty Journal Articles and Book Chapters

In March of 2023, the Fifth Circuit Court of Appeals held that individuals subject to domestic violence protective orders could not be required to give up their guns. The decision was the first of a federal court to overturn a firearm regulation pursuant to New York State Rifle & Pistol Association v. Bruen, a 2022 Supreme Court opinion that created a new standard for determining the constitutionality of gun restrictions. After Bruen, only laws that are “consistent with this Nation’s historical tradition of firearm regulation” pass constitutional muster.

The Fifth’s Circuit decision in U.S. v. Rahimi, which …