Second Amendment Commons^™

Guns, Analogies, And Constitutional Interpretation Across Centuries, Frederick Schauer, Barbara A. Spellman

Notre Dame Law Review

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court acknowledged the difficulties in applying its constitutional originalism to the question of firearms regulation. After all, the fully automatic assault rifles whose sale, possession, and use lie at the center of many contemporary debates about gun control and the Second Amendment simply did not exist in 1791, when the Second Amendment was ratified. Nor did they exist in 1868, when the Fourteenth Amendment, the vehicle for applying the Second Amendment to the states, was added to the Constitution. The firearms that existed in 1791 were largely …

Bruen’S Enforcement Puzzle: Unearthing And Adjudicating The Historical Enforcement Record In Second Amendment Cases, Andrew Willinger

Notre Dame Law Review

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations. The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced. In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue. Historical enforcement data appear to …

Technology, Tradition, And “The Terror Of The People”, Darrell A.H. Miller, Alexandra Filindra, Noah Kaplan, Craig M. Burnett

Notre Dame Law Review

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court mandated a text, history, tradition, and analogy–only approach to Second Amendment cases.

No longer can policymakers rely on empirical data alone to carry their litigation burden. Now such data must conform to a still-emerging “historical tradition of firearm regulation” to meet constitutional muster. Some despair that reams of data, careful experiments, and rigorous statistical analyses no longer have any relevance to the gun debate.

But those that claim that Bruen signals the end of empirically grounded policy solutions badly misread the opinion. Empirical studies can still …

Diverse Originalism, History & Tradition, Christina Mulligan

Notre Dame Law Review

The Supreme Court’s New York State Rifle & Pistol Ass’n v. Bruen decision appears to be an originalist opinion, ostensibly looking for the meaning of the Constitution’s text by looking to the public’s understanding of the language used. But Bruen's test actually fails to follow a public meaning originalist methodology. The Court focuses present-day constitutional interpreters on evidence of constitutional meaning that only reflects a portion of the public—the politically empowered men who were in a position to pass legislation. Two unfortunate outcomes follow. First, by limiting potential evidence of public meaning so severely, the Court raises the risk …

The General-Law Right To Bear Arms, William Baude, Robert Leider

Notre Dame Law Review

In this Article, we argue that Bruen's intended methodological shift has been widely misunderstood by the bench and bar. This has led to confusion and misapplication in the lower courts, as well as much scholarly criticism of the test that is, we think, misdirected. As we will explain, Bruen calls for a form of legal originalism, applying a classical view of fundamental rights as a form of unwritten customary law. This is consistent with the text and history of the Constitution and leads to results that are less mechanical and more sensible than many lower courts have thought. Understanding …

Historical Fact, Ryan C. Williams

Notre Dame Law Review

The growing emphasis on history as a criterion of constitutional decision-making in Supreme Court jurisprudence has raised the importance of a distinctive type of judicial fact-finding—namely, the investigation and resolution of contested questions of historical fact. Although history has always played an important role in constitutional adjudication, its primary role has traditionally been as an input to constitutional interpretation. But in cases like New York State Rifle & Pistol Ass’n v. Bruen, the Court has increasingly demanded that factual determinations regarding the content, meaning, purposes, and effects of decisions taken in the distant past should also guide the lower …

What Originalism Can Teach Historians: History As Analogy, Means-Ends Tests, And The Problem Of History In Bruen, Kunal M. Parker

Notre Dame Law Review

There is a long tradition of professional historians’ critiques of lawyers’ truncated understandings and clumsy deployments of the past. The intellectual historian J.G.A. Pocock’s The Ancient Constitution and the Feudal Law, with its depiction of a “common-law mind” obdurately committed to the continuity of law and unable to grasp the significance of situating law in historical context, might be taken as the origin point of a post–World War II tradition. Historians’ critiques have enjoyed a fresh lease of life since constitutional originalism began to assume prominence in the closing decades of the twentieth century. As legal scholars and judges …

University Of The District Of Columbia Law Review, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.

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 …

Garland V. Vanderstok: Brief Of Major Cities Chiefs Association; Police Executive Research Forum; And Current And Former National Security Officials, Law Enforcement Officers, And Prosecutors As Amici Curiae In Support Of Petitioners, Barbara Mcquade

Appellate Briefs

Amici are the Major Cities Chiefs Association, the Police Executive Research Forum, and numerous current and former national security officials, law enforcement officers, and prosecutors.

The Major Cities Chiefs Association (MCCA) is a professional organization of police executives representing the largest cities in the United States and Canada. The mission of MCCA is to provide a forum for police executives from large population centers to address the challenges and issues of policing, to influence national and international policy that affects police services, to enhance the development of current and future police leaders, and to encourage and sponsor research that advances …

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 …

The Second Amendment’S Domestic Violence Problem: How Rahimi Exposes The Flaws Of Bruen’S Problematic Historical Analogue Test, Conner Greene

Cleveland State Law Review

This Article exposes the flaws of the Supreme Court’s historical analogue test established in Bruen. It details how modern Second Amendment jurisprudence evolved to a tenuous position through Heller and McDonald where the Supreme Court seemingly acknowledged the applicability of means-end scrutiny to the Second Amendment, before the Supreme Court more recently repudiated its use in Bruen in lieu of an inherently flimsy history-only standard that fails to account for modern societal issues. This approach not only severely undermines modern gun regulations—unanimously upheld as constitutional pre-Bruen—but it elevates the Second Amendment to a special status unlike other …

Dol Fiduciary Rule 3.0 Strikeout, Base Knock, Or Home Run?, Antolin Reiber

DePaul Business & Commercial Law Journal

No abstract provided.

Money Is Morphing - Cryptocurrency Can Morph To Be An Environmentally And Financially Sustainable Alternative To Traditional Banking, Clovia Hamilton

DePaul Business & Commercial Law Journal

No abstract provided.

Survey Evidence In Trademark Actions, Ioana Vasiu And Lucian Vasiu

DePaul Business & Commercial Law Journal

No abstract provided.

Corporate Governance And Compelled Speech: Do State-Imposed Board Diversity Mandates Violate Free Speech?, Salar Ghahramani

DePaul Business & Commercial Law Journal

No abstract provided.

The Real Persons Are The Corporations We Made Along The Way, Leonard Brahin

DePaul Business & Commercial Law Journal

No abstract provided.

Front Matter

DePaul Business & Commercial Law Journal

No abstract provided.

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.

Systemic Racism Transformed To Shalom Justice., Bobby West

Doctor of Ministry Projects and Theses

ABSTRACT

April 27, 2024

SYSTEMIC RACISM TRANSFORMED TO SHALOM JUSTICE

This study examines the pervasive culture of systemic racism in the church and non-church communities and its impact on America. It argues how culture and systemic racism impact marginalized people (particularly African Americans and brown people) through policies and systems related to money, employment, education, health care, etc. Providing a description or argument for systemic racism formation offers a historical context of changes to shalom justice (society race in the image of God), relational and unilateral power with, power to, power within transformation from injustice to Shalom justice. An exploration …

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.

Section 898: Targeting The Companies Behind Gun Violence In New York With Public Nuisance Doctrine, Mara Kravitz

William & Mary Law Review

On July 6, 2021, the New York State Legislature enacted sections 898-a to -e of the New York General Business Law (section 898), creating a clear path for public entities and private gun violence victims to sue gun industry members for their role in the gun violence public nuisance in New York. This Note explores why the legislature took a public nuisance approach to curbing gun violence, framing section 898 within public nuisance doctrine’s broader common law history and legal elements.

To unpack how and why New York took this approach, the first Part of this Note traces the history …

Standing Up To Bounty Laws: Examining State Standing Jurisprudence And Its Effect On Laws Enforced Through Private Rights Of Action, Olivia A. Luzzio

Washington and Lee Journal of Civil Rights and Social Justice

The Texas Heartbeat Act (SB 8) adopted a unique enforcement scheme that succeeded in circumventing Roe v. Wade’s protection of a woman’s right to abortion before viability. By prohibiting enforcement of the Act by public officials and instead authorizing enforcement solely through civil actions by “any person,” SB 8 effectively ended a women’s right to abortion after a fetal heartbeat is detected. The passage of this law placed the protection of other constitutionally endowed rights in jeopardy and facilitated the passage of similarly constructed legislation, such as California’s Senate Bill 1327, which authorizes “any person” to sue anyone who manufactures …

Long-Range Analogizing After Bruen: How To Resolve The Circuit Split On The Federal Felon-In-Possession Ban, Sean Phillips

Fordham Law Review

In 2023, over the course of one week, two U.S. courts of appeals ruled on Second Amendment challenges to 18 U.S.C. § 922(g)(1), the federal statute prohibiting firearm possession for those convicted of felonies. Both courts applied the U.S. Supreme Court’s “history and tradition” test from New York State Rifle & Pistol Ass’n v. Bruen. In the U.S. Court of Appeals for the Eighth Circuit, criminal defendant Edell Jackson did not succeed. There, the court found that the nation’s history and tradition supported the validity of a law banning firearm possession by felons, regardless of the details of their …

A New Federalist Approach To Reducing Gun Violence: Model State Policy For Medicaid-Funded, Hospital-Based Violence Intervention Programs, Racquel Bozzelli

Buffalo Law Review

No abstract provided.

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.

The Corporate Right To Bear Arms, Robert E. Wagner

William & Mary Business Law Review

The ability of a corporation to exercise constitutional protections has been rife with uncertainty and change since the conception of corporate rights came into existence. The history and rapid development of the corporation, combined with the misapplied and misunderstood “corporate personhood” theory, have resulted in an almost unintelligible hodgepodge of corporate constitutional applications. Similarly, the concept of the right to bear arms has equally been muddled and applied very differently at varying times and locations since before the establishment of the Second Amendment. This Article attempts to clarify how an alternative to the “corporate personhood” theory, namely the “purpose” theory …

Does Minnesota’S Red Flag Bill Violate The Second Amendment?, Sherian Anikie

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

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 …