Second Amendment Commons^™

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 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.

Self-Defense Exceptionalism And The Immunization Of Private Violence, Eric Ruben

Faculty Journal Articles and Book Chapters

After the high-profile trial of Kyle Rittenhouse, the parameters of lawful self-defense are a subject of intense public and scholarly attention. In recent years, most commentary about self-defense has focused on “Stand Your Ground” policies that remove the duty to retreat before using lethal force. But the reaction to Rittenhouse’s case reflects a different, more extreme way that the law governing defensive force is changing. In particular, advocates and legislators say that private citizens like Rittenhouse who exercise self-defense should be entitled to immunity—an exemption from prosecution—giving them an extraordinary procedural benefit not attaching to other defenses that are adjudicated …

A Vague, Overconfident, And Malleable Approach To Constitutional Law, Michael L. Smith

Faculty Articles

In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court overturned a century-old firearms licensing scheme that required people seeking concealed carry permits to demonstrate that they had a special need for self-defense. The Court did so by applying a “historical tradition” approach to determine the scope of Second Amendment protection. Under this approach, where the Second Amendment’s plain text covers an individual’s conduct, a law restricting that conduct must be consistent with “the Nation’s historical tradition of firearm regulation.” At first glance, the historical tradition approach may seem objective and easier than an empirical analysis …

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, …

The State's Monopoly Of Force And The Right To Bear Arms, Robert Leider

Northwestern University Law Review

No abstract provided.

The Future Of The Second Amendment In A Time Of Lawless Violence, Nelson Lund

Northwestern University Law Review

No abstract provided.

"Gunba Control" The Constitutionality Of Semi-Automatic Robotic Weapons, Steve P. Szymanski

Catholic University Journal of Law and Technology

This piece examines how the Second Amendment, and its recent jurisprudential standards would apply to foreseeable semi-autonomous weapons in the private sector. Following an analysis of the landmark Supreme Court decision in District of Columbia v. Heller and its progeny, the work forecasts how the rules would apply to a home defense drone designed to defend at the exterior of a domicile, an armed “digi-dog” designed for self-defense in public, and an armed robot (“Gunba”) designed to operate entirely within one’s domicile. Ultimately, it concludes that an semi-autonomous robot, designed for in-home use, could conceivably receive Second Amendment protection.

The City's Second Amendment, David Fagundes, Darrell A.H. Miller

Faculty Articles

Cities are increasingly common sites of contestation over the scope and meaning of the Second Amendment. Some municipalities have announced their opposition to firearm restrictions by declaring themselves Second Amendment sanctuaries. Others have sought to curtail gun violence by passing restrictive local regulations. Still others have responded to police violence by moving to demilitarize, disarm, or even disband their police forces. The burgeoning post-Heller legal literature, though, has largely overlooked the relationship between cities, collective arms bearing, and the Second Amendment. In sum, to what extent do cities themselves have a right to keep and bear arms? This Article …

"Good Reason" Laws Under The Gun: May-Issue States And The Right To Bear Arms, Jack M. Amaro

Chicago-Kent Law Review

This note proposes a framework for analyzing the point at which discretionary restrictions on the concealed carry of firearms are unconstitutional under the Second Amendment, which, at its core, guarantees the responsible, law-abiding citizen at least the right to use a firearm for self-defense. Although the Supreme Court has yet to affirmatively answer whether and to what extent this right extends beyond the home, every state allows its residents to publicly carry a firearm in some form—be it open or concealed. But states have the power to limit who may exercise this right; and some states curtail it to the …

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, …

Defending Self-Defense: Why Florida Should Follow The Eleven States That Already Allow For Campus Carry, Jennifer Garcia

St. Thomas Law Review

The supreme law of the land states: ". . .the right of the people to keep and bear arms shall not be infringed." The Supreme Court has found that the right to bear arms for self-defense is protected by the Constitution. Most states have expanded on this right and allow individuals to carry concealed weapons as long as they become licensed by the state. However, this right to carry concealed weapons is surely subject to limitations.' In the state of Florida, concealed weapon permit holders are prohibited from carrying on college or university campuses. This restriction is not beneficial to …

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 …

Disarming State Action; Discharging State Responsibility, Zanita E. Fenton

Articles

No abstract provided.

Firearms In The Family, Carolyn B. Ramsey

Publications

This Article considers firearms prohibitions for domestic violence offenders, in light of recent Supreme Court decisions and the larger, national debate about gun control. Unlike other scholarship in the area, it confronts the costs of ratcheting up the scope and enforcement of such firearms bans and argues that the politicization of safety has come at the expense of a sound approach to gun control in the context of intimate-partner abuse. In doing so, it expands scholarly arguments against mandatory, one-size-fits-all criminal justice responses to domestic violence in a direction that other critics have been reluctant to go, perhaps because of …

End The Popularity Contest: A Proposal For Second Amendment 'Type Of Weapon' Analysis, Cody Jacobs

Faculty Scholarship

The Supreme Court’s recognition of an individual Second Amendment right to bear arms for self-defense raised many questions about the scope and content of that right. One issue that will become increasingly important in the years ahead, but that has received relatively little attention from scholars and courts, is the question of which “arms” are protected by that right. The Supreme Court’s decision in District of Columbia v. Heller purports to lay out a test that asks whether the weapon at issue is in “common use” at the time the case is decided. This article critiques that test, arguing that …

Analyzing Second Amendment Challenges: Getting Strict With Judges, Lauren Dwarika

Touro Law Review

No abstract provided.

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 …

Doe V. Wilmington Housing Authority: The Common Area Caveat As A Paradigmatic Balance Between Tenant Safety And Second Amendment Rights, Iyen Acosta

Catholic University Law Review

No abstract provided.

Knives And The Second Amendment, David B. Kopel, Clayton E. Cramer, Joseph Edward Olson

University of Michigan Journal of Law Reform

This Article is the first scholarly analysis of knives and the Second Amendment. Under the Supreme Court’s standard in District of Columbia v. Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense. There is no knife that is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on carrying handguns set the upper limit for restrictions on carrying knives. Prohibitions on carrying knives in general, or of particular knives, are unconstitutional. For example, bans of knives that open in a convenient way (e.g., …

Firearms Policy And The Black Community: An Assessment Of The Modern Orthodoxy, Nicholas J. Johnson

Faculty Scholarship

The heroes of the modern civil rights movement were more than just stoic victims of racist violence. Their history was one of defiance and fighting long before news cameras showed them attacked by dogs and fire hoses. When Fannie Lou Hamer revealed she kept a shotgun in every corner of her bedroom, she was channeling a century old practice. And when delta share cropper Hartman Turnbow, after a shootout with the Klan, said “I don’t figure I was being non-nonviolent, (yes non-nonviolent) I was just protecting my family”, he was invoking an evolved tradition that embraced self-defense and disdained political …

Firearm Localism, Joseph Blocher

Faculty Scholarship

Second Amendment doctrine is largely becoming a line-drawing exercise, as courts try to determine which “Arms” are constitutionally protected, which “people” are permitted to keep and bear them, and in which ways those arms and people can be regulated. But the developing legal regime has yet to account for one potentially significant set of lines: the city limits themselves. In rural areas, gun crime and gun control are relatively rare, and gun culture is strong. In cities, by contrast, rates of violent gun crime are comparatively high, and opportunities for recreational gun use are scarce. And from colonial Boston to …

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.

Second Things First: What Free Speech Can And Can’T Say About Guns, Joseph Blocher

Faculty Scholarship

Professor Blocher responds to Gregory Magarian’s article on the implications of the First Amendment for the Second.

Retail Rebellion And The Second Amendment, Darrell A. H. Miller

Faculty Scholarship

When, if ever, is there a Second Amendment right to kill a cop? This piece seeks to answer that question. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment codifies a natural right to keep and bear arms for self-defense. That right to self-defense extends to both private and public threats, including self-defense against agents of a tyrannical government. Moreover, the right is individual. Individuals -- not just communities -- have the right to protect themselves from public violence. Individuals -- not just militias -- have the right to defend themselves against tyranny. In McDonald …

Guns, Inc.: Citizens United, Mcdonald, And The Future Of Corporate Constitutional Rights, Darrell A. H. Miller

Faculty Scholarship

The Supreme Court began its 2009 Term by addressing the constitutional rights of corporations. It ended the Term by addressing the incorporated rights of the Constitution. In Citizens United v. Federal Election Commission, a five-member majority of the Court held that corporations have a First Amendment right to spend their own money on political advocacy. A corporation generally is no different than a natural person when it comes to the First Amendment - at least as it relates to political speech. In McDonald v. City of Chicago, a plurality of the Court held that the Second Amendment to the United …

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 …