Second Amendment Commons^™

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 …

Considerations Of History And Purpose In Constitutional Borrowing, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …

Owning Heller, Darrell A. H. Miller

Faculty Scholarship

Recent historical research using big-data techniques casts doubt on whether District of Columbia v. Heller was rightly decided according to originalist methods. These new discoveries put originalists in a bind. Do they embrace “faint hearted” originalism: the idea that as between the need for stability in prior decision making, settled expectations, and the coherence of the law, some adulterated decisions must remain enforced for the greater good? Or do they follow Justice Thomas’s reasoning in Gamble v. United States, remain stout-hearted, and reject any prior decision that cannot be supported by the common linguistic usage of the founding era – …

Constitutional Conflict And Sensitive Places, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Stevens, J., Dissenting: The Legacy Of Heller, Joseph Blocher, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Response: Rights As Trumps Of What?, Joseph Blocher

Faculty Scholarship

No abstract provided.

Bans, Joseph Blocher

Faculty Scholarship

In the universe of legal restrictions subject to judicial review, those characterized as fully denying some aspect of a constitutional right—bans—are often subject to per se rules of invalidity. Whether the subject of the restriction is a medium of expression, the valuable use of property, or a class of weapons, courts in such cases will often short-circuit the standard doctrinal machinery and strike down the law, even if it might have survived heightened scrutiny. Identifying laws as bans can thus provide an end run around the tiers of scrutiny and other familiar forms of means-ends analysis.

And yet it is …

Stop And Frisk In A Concealed Carry World, Shawn E. Fields

Washington Law Review

This Article confronts the growing tension between increasingly permissive concealed carry firearms legislation and police authority to conduct investigative stops and protective frisks under Terry v. Ohio. For decades, courts upheld stops based on nothing more than an officer’s observation of public gun possession, on the assumption that anyone carrying a gun in public was doing so unlawfully. That assumption requires reexamination. All fifty states and the District of Columbia authorize their citizens to carry concealed weapons in public, and forty-two states impose little or no conditions on the exercise of this privilege. As a result, officers and courts …

Won't You Be My Neighbor: Meza-Rodriguez, The Second Amendment, And The Constitutional Rights Of Noncitizens, Blair E. Wessels

West Virginia Law Review

No abstract provided.

Contumacious Responses To Firearms Legislation (Leosa) Balancing Federalism Concerns, Royce De R. Barondes

Faculty Publications

The Law Enforcement Officers Safety Act (LEOSA) is one of the handful of federal statutes that preempt state firearms regulation. It allows covered individuals (certain current and retired qualified law enforcement personnel) to possess firearms notwithstanding assorted state restrictions-to protect themselves and to supplement local law enforcement efforts.

The act reflects a careful legislative balancing of federalism concerns. Although it relies on states and localities to issue the authorizing credentials, it does not mandate states create a licensing regime out of whole cloth. The act ultimately presents issues requiring a nuanced assessment of the doctrine proscribing federal commandeering of the …

The Constitutional Politics Heller Launched, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

The First Amendment, The Second Amendment, And 3d Firearms, Timothy Zick

Popular Media

No abstract provided.

Second Thoughts About Stun Guns, Rene Reyes

Washington and Lee Law Review Online

The Massachusetts Supreme Judicial Court (“SJC”) recently declared that the Commonwealth’s statutory ban on stun guns violates the Second Amendment to the U.S. Constitution. The SJC had previously upheld the statute against constitutional challenge in Commonwealth v. Caetano, but the reasoning behind this holding was rejected in a brief per curium opinion by the U.S. Supreme Court in 2016. However, the guidance given by the Supreme Court in the Caetano litigation was far from unambiguous: it faulted the SJC’s reasoning without opining on the ultimate question of the ban’s constitutionality, thus leaving open the possibility that the statute could pass …

The Context Of Violence: The Lautenberg Amendment & Interpretive Issues In The Gun Control Act, Rachel B. Polan

Brooklyn Law Review

Few areas of the law are as hotly debated as gun control, or as universally condemned as domestic violence – and the Supreme Court’s decisions on the Lautenberg Amendment address both. An amendment to the Gun Control Act, it prohibits persons convicted of a misdemeanor crime of domestic violence from owning a firearm. The amendment qualifies a predicate conviction as one that has a “force clause” as an element. In particular, while looking at the force in domestic violence, the Supreme Court has acknowledged that one must also look to context: a “squeeze of an arm” of an intimate partner …

Dignity And Second Amendment Enforcement—Response To William D. Araiza’S, Arming The Second Amendment And Enforcing The Fourteenth, Darrell A. H. Miller

Washington and Lee Law Review Online

William Araiza’s insightful article, Arming the Second Amendment, has one essential, hidden component: dignity. Dignity helps explain the peculiar hydraulics of Congress’s power to enforce section five of the Fourteenth Amendment—a jurisprudence in which the less scrutiny the Court itself applies to a given class or right, the more scrutiny it applies to congressional efforts to protect that same class or right. Dignity helps explain the Court’s halting approach to Reconstruction Amendment enforcement power more generally – an approach in which constitutional versus unconstitutional legislation turns on seemingly insignificant regulatory distinctions. And dignity’s role in § 5 enforcement helps explain …

The Privileges And Immunities Of Non-Citizens, R. George Wright

Cleveland State Law Review

However paradoxically, in some practically important contexts, non-citizens of all sorts can rightly claim what amount to privileges and immunities of citizens. This follows from a careful and entirely plausible understanding of the inherently relational, inescapably social, and essentially reciprocal nature of at least some typical privileges and immunities.

This Article contends that the relationship between constitutional privileges and immunities and citizenship is more nuanced, and much more interesting, than usually recognized. Crucially, allowing some non-citizens to invoke the privileges and immunities of citizens often makes sense. The intuitive sense that non-citizens cannot logically claim the privileges or immunities of …

Domestic And International Firearm Laws: Can Implementation Be Used To Nationally Decrease Firearm Violence And Mass Shootings, Kenneth Banuelos

Themis: Research Journal of Justice Studies and Forensic Science

The issue of firearm violence in the United States is highly controversial, as there are sound arguments on both sides of the discussion. Advocates of stricter gun laws often refer to both international and domestic examples that highlight the effectiveness of more restrictive firearm policies. Japan and Australia are two such countries that are continually referred to when a tragedy, such as a mass shooting, occurs in the United States and initial reactions often emphasis a need for fewer guns in the general public. Opposition to the proposed reforms of firearm policies cite the importance of the Second Amendment which …

18 U.S.C. § 922(G)(1) Under Attack: The Case For As-Applied Challenges To The Felon-In-Possession Ban, Kari Lorentson

Notre Dame Law Review

Part I of this Note outlines the relevant statutory scheme governing the felon-in-possession ban, along with its applicable exceptions. Part II surveys landmark Supreme Court precedent related to the Second Amendment— namely, District of Columbia v. Heller and McDonald v. City of Chicago. In Part III, this Note conducts an overview of the current circuit split percolating in the courts of appeals. Part IV presents a rationale and justification for permitting judicial review of as-applied challenges to § 922(g)(1). Finally, Part V provides a critique of the Binderup analysis and puts forth an alternative standard to analyze similar cases.

Heller And “Assault Weapons”, David Kopel, Jonathan Lowy, Allen Rostron

Law Review Symposia

A discussion of how Heller has been applied to “assault weapon” bans, with special attention given to the Fourth Circuit’s en banc decision in Kolbe v. Hogan, which held that the popular AR-15 rifle and other “assault weapons” are not protected arms under the Second Amendment.

Moderated by Professor E. Gregory Wallace.

Heller And Public Carry Restrictions, Brannon Denning (Moderator), Joseph Blocher, Jonathan Lowy, George Mocsary, Glenn Reynolds

Law Review Symposia

A discussion of how lower courts have applied Heller to various restrictions on the carrying of firearms in public places, with special attention given to the District of Columbia Circuit’s decision in Wrenn v. District of Columbia, the Ninth Circuit’s en banc decision in Peruta v. County of San Diego, and the Fourth Circuit’s decision in Woollard v. Gallagher.

Heller In The Lower Courts, Brannon Denning, Dennis Henigan, David Kopel, Hannah Shearer

Law Review Symposia

A discussion of how federal circuit courts have applied Heller, with a focus on lower court views of Heller’s holding and scope, the extent to which Heller provides a general framework for constitutional analysis in Second Amendment cases, what guidance Heller provides for resolving cases involving the right to arms in public places, the development of analytical frameworks beyond Heller, and whether lower courts have given proper deference to Heller in their Second Amendment decisions.

Moderated by Professor Sarah Ludington.

Heller: Past, Present, And Future, Joseph Blotcher, Alan Gura, Dennis Henigan, Glenn Reynolds

Law Review Symposia

A wide-ranging discussion of the Supreme Court’s 2008 decision in District of Columbia v. Heller recognizing the individual right to keep and bear arms, whether that decision has been applied properly in the lower courts, and what the Supreme Court is likely to do with the constitutional right to arms in the future.

Hb 280 - Campus Carry, Taylor Morgan Koshak, Nicholas J. Roger

Georgia State University Law Review

The Act broadens lawful gun owners’ rights by allowing weapons carry license holders to carry concealed guns on property owned or leased by public institutions of postsecondary education. The Act creates exceptions for sporting events, student housing, childcare spaces, classes for a college and career academy and other specialized schools, classrooms for dual enrollment programs, and spaces for administrative disciplinary proceedings. The law creates a misdemeanor penalty for noncompliance, and provides definitions for clarification.

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 …

Will It Ever End? Preventing Mass Shootings In Florida & The U.S., Vanessa Terrades, Shahabudeen Khan

Faculty Scholarship

No abstract provided.

Is The Second Amendment Becoming Irrelevant?, A Winkler

Indiana Law Journal

Why might the Second Amendment cease to serve this vital constitutional function? The explanation begins with the difference between how the Second Amendment is invoked in political debates and how the amendment is invoked in court. There are, it seems, two Second Amendments. There is a Judicial Second Amendment comprised of court decisions interpreting the provision, and there is an Aspirational Second Amendment that is used in political dialogue. These two versions of the Second Amendment are different; the aspirational one is far more hostile to gun laws than the judicial one.

Moreover, the Aspirational Second Amendment is overtaking the …

"Assault Weapon" Myths, E. Gregory Wallace

Scholarly Works

No abstract provided.

Second Amendment: D.C. Circuit Court Creates Split On The Constitutionality Of Good-Reason Laws, Madeleine Giese

SMU Law Review

No abstract provided.

The State Department Can Gun Down 3-D Printed Firearms, Derk Westermeyer

Washington Journal of Law, Technology & Arts

In 1976, Congress enacted the Arms Export Control Act (“AECA”), giving the President broad power to control imports and exports of defense articles. At the time, defense articles included any “technical data” relating to weapons, such as the manufacturing blueprints of a firearm. Generally, this technical data was only in the hands of weapon manufacturers. After forty years of technological advances, however, this “technical data” can now be accessed by anyone in the world in a matter of seconds. Thanks to 3-D printing, a person can use this data to personally manufacture a fully functional plastic weapon within a few …

The "Scourge" Of Armed Check Fraud: A Constitutional Framework For Prohibited Possessor Laws, Jeffrey Giancana

University of Michigan Journal of Law Reform

Prohibited possessor statutes have been a part of American law for decades. Put simply, these laws prohibit any person who has been convicted of a felony from possessing a firearm, a prohibition that lasts for the felon’s entire life. The Supreme Court’s modern Second Amendment jurisprudence has held that the right to possess a firearm is a fundamental individual right. In light of this new paradigm, the constitutionality of such broad prohibitions must be called into question—despite the eagerness of courts across the country to dismiss such challenges by pointing to a single line in Heller. This Note challenges the …