Second Amendment Commons^™

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 …

Heller After Ten Years, E. Gregory Wallace

Campbell Law Review

No abstract provided.

Style, Substance, And The Right To Keep And Bear Assault Weapons, Allen Rostron

Campbell Law Review

Assault weapons have long been a subject of intense controversy. The debate has intensified in recent years after a series of mass shootings in which perpetrators used AR-15 rifles or other military-style weapons, such as the shootings in Newtown, Aurora, San Bernardino, Orlando, Las Vegas, Sutherland Springs, and Parkland While the federal assault weapon ban has expired, some state legislatures have enacted bans. Critics complain that these laws irrationally condemn certain types of firearms simply because they have a military appearance. Gun control advocates argue that these laws are not just about superficial appearances and that the banned weapons are …

The First Congressional Debate On Public Carry And What It Tells Us About Firearm Regionalism, Mark Anthony Frassetto

Campbell Law Review

In the aftermath of District of Columbia v. Heller, a prominent issue remains unresolved: whether, or to what extent, the Second Amendment protects an individual right to keep and bear arms outside of the home. This Article explores this unresolved issue through a newly uncovered source, the congressional debates surrounding the District of Columbia's public carry law in the 1890s.

These debates provide new insights into the understanding of the right to keep and bear arms in the years following the drafting and ratification of the Fourteenth Amendment. Two conclusions can be drawn from the debate. First, there was no …

From Theory To Doctrine: An Empirical Analysis Of The Right To Keep And Bear Arms After Heller, Eric Ruben, Joseph Blocher

Faculty Journal Articles and Book Chapters

As a matter of constitutional doctrine, the right to keep and bear arms is coming of age. But although the doctrine has begun to mature in the decade since District of Columbia v. Heller, scholars, advocates, and judges disagree about (and sometimes simply do not know) how to characterize it.

This Article is the first comprehensive empirical analysis of post-Heller Second Amendment doctrine. Beginning with a set of more than one thousand Second Amendment challenges, we have coded every available Second Amendment opinion — state and federal, trial and appellate — from Heller up until February 1, 2016. The dataset …

You Can Lead A Horse To Water: Heller And The Future Of Second Amendment Scholarship, Eric Ruben, Joseph Blocher

Faculty Journal Articles and Book Chapters

Ten years ago, there was reason to believe that Second Amendment doctrine would—following elements of District of Columbia v. Heller—become rigid and binary. Likewise, scholarship might have followed the same path; digging into the pre-Heller trenches and pitting "pro-gun" against "pro-regulation" views. In "From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller," we showed through empirical study that the doctrinal reality is far more nuanced and interesting. In this essay, we describe how Heller not only inaugurated a new era of constitutional doctrine, but it also helped create a burgeoning new field …

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 …

The Second Amendment As Positive Law, Joseph Blocher, Darrell A.H. Miller

Faculty Scholarship

No abstract provided.

Guns N' Ganja: How Federalism Criminalizes The Lawful Use Of Marijuana, Ira P. Robbins

Scholarly Articles in Law Reviews & Journals

Federalism is a vital tenet of our Republic. Although federal law is the supreme law of the land, our Constitution recognizes the integral role that state law plays in the national scheme. Like any pharmaceutical drug that withstands rounds of clinical testing, state law functions as a laboratory in which Congress can evaluate and potentially adopt novel policies on a nation-wide basis. Most of the time, federal and state law exist harmoniously, complementing one another; other times, however, the two systems clash, striking a dissonant chord.

In the United States, state marijuana laws are currently on a crash course with …

Keep Your Powder Dry And Your Standards High: Protect The Second Amendment's Core With Strict Scrutiny Review, Rebecca L. Trump

West Virginia Law Review

No abstract provided.

The Misapplication Of The Lautenberg Amendment In Voisine V. United States And The Resulting Loss Of Second Amendment Protection, Cynthia M. Menta

Akron Law Review

Over the past two decades, Congress has enacted various laws aimed at protecting victims of domestic violence. One such law is 18 U.S.C. § 922(g)(9), also known as the Lautenberg Amendment, which prohibits any person convicted of a misdemeanor crime of domestic violence from possessing a firearm. However, because the Second Amendment has been deemed a fundamental right by the Supreme Court, such a restriction on firearms possession is only permissible if it serves a compelling government interest. Unfortunately, since the Lautenberg Amendment was enacted in 1996, the courts have struggled to interpret its ambiguous terms, which has made it …

Beware The "Terror Gap": Closing The Loophole Between The U.S. Terrorist Watchlist System And The Right To Bear Arms, Elizabeth M. Sullivan

Cornell Law Review

No abstract provided.

Arkansas Open Carry: Understanding Law Enforcement’S Legal Capability Under A Difficult Statute, J. Harrison Berry

Arkansas Law Review

“There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.” Although the United States Supreme Court in District of Columbia v. Heller established a fundamental understanding that individuals have a right to own a gun for personal use, the Court recognized that, as with all fundamental rights, the individual right to keep and bear arms is “not unlimited.” A few limits the Court mentioned included “prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of …

Gun Control: Political Fears Trump Crime Control, Clayton E. Cramer, Joseph Edward Olson

Maine Law Review

No matter how draconian, gun control laws are weakly enforced (at least in the United States) and seldom of any significant effect in reducing crime. The kind of citizen who will comply with a gun law is the opposite of the person who will use a gun to facilitate his or her crimes. The problem of weak enforcement is highlighted by a candid interview with the author of the District of Columbia’s 1968 gun registration scheme while the District’s 1975-76 gun ban was under consideration: The problem, [Hechinger] said, is the failure of the mayor and police department to enforce …

Arming The Second Amendment - And Enforcing The Fourteenth, William Araiza

Faculty Scholarship

No abstract provided.

Guns On Campus: A Look At The First Year Of Concealed Carry At Texas Universities, Aric K. Short

Faculty Scholarship

After years of failed attempts, the Texas Legislature passed "campus carry" in 2015. Under the new law, effective in 2016 for four-year institutions, public universities must allow the concealed carry of handguns by license holders on their premises. Texas's campus carry law is unique when compared to other states that allow concealed carry on college campuses: each university is given the flexibility to create weapons implementation plans, including the establishment of limited gun-free zones. The first year of campus carry implementation by Texas universities has been relatively quiet, with generally uniform implementation rules established by colleges across the state. However, …

Militias, Muskets, And Machine Guns? The Third Circuit Furthers Inapplicability Of Second Amendment Protection To Machine Gun Possession In United States V. One Palmetto State Armory, Peter J. Adonizio Jr.

Villanova Law Review (1956 - )

No abstract provided.

Arming The Second Amendment—And Enforcing The Fourteenth, William D. Araiza

Washington and Lee Law Review

This Article considers the timely and important question of Congress’s power to enforce the Second Amendment. Such legislation would test the Court’s current enforcement power doctrine, which ostensibly acknowledges a congressional role in vindicating constitutional rights while insisting on judicial supremacy in stating constitutional meaning. Second Amendment doctrine is complex and, importantly, methodologically varied. That complexity and variety would require the Court to perform a more nuanced, granular approach to the enforcement power than it has thus far in the modern era.

Part II quickly recaps the Court’s Enforcement Clause jurisprudence. It concludes that its most recent enforcement power cases …

Federalism Implications Of Non-Recognition Of Licensure Reciprocity Under The Gun-Free School Zones Act, Royce De R. Barondes

Faculty Publications

The Gun-Free School Zones Act (GFSZA) criminalizes firearms possession within 1000 feet of an elementary or secondary school in a State unless the possessor "is licensed to do so by the State in which the school zone is located" (or one of a few other exceptions applies). The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has in correspondence opined licensure through reciprocity does not make one so licensed by the State.

School zones covered by the act are ubiquitous. Were the ATF's interpretation adopted, large swaths of many States' non-rural areas would be prohibited zones for non-residents who carry …

The Second Amendment & Private Law, Cody Jacobs

Faculty Scholarship

The Second Amendment, like other federal constitutional rights, is a restriction on government power. But what role does the Second Amendment have to play—if any—when a private party seeks to limit the exercise of Second Amendment rights by invoking private law causes of action? Private law—specifically, the law of torts, contracts, and property—has often been impacted by constitutional considerations, though in seemingly inconsistent ways. The First Amendment places limitations on defamation actions and other related torts, and also prevents courts from entering injunctions that could be classified as prior restraints. On the other hand, the First Amendment plays almost no …

“Time Enough” For Scrutiny: The Second Amendment, Mental Health, And The Case For Intermediate Scrutiny, Benjamin A. Ellis

William & Mary Bill of Rights Journal

No abstract provided.

Fitting A Gun In A Circle–A How-To Guide: A Comprehensive Look At The Standard Of Review For Gun Regulations Under The Second Amendment, Beth Coplowitz

University of Miami Law Review

In District of Columbia v. Heller, the Supreme Court’s landmark Second Amendment case, the Court held that the right to bear arms is an individual right aimed at self-defense in the home. Two years later, McDonald v. City of Chicago extended this right to the states through the Fourteenth Amendment. However, lower courts were left with little guidance on what level of scrutiny to apply to gun regulations. As a result, courts have applied various levels of scrutiny including intermediate scrutiny, strict scrutiny, a two-step inquiry that leads to either intermediate or strict scrutiny, and an undue burden standard. Of …

The “True Man” And His Gun: On The Masculine Mystique Of Second Amendment Jurisprudence, C. D. Christensen

William & Mary Journal of Race, Gender, and Social Justice

The Supreme Court’s recent Second Amendment jurisprudence raises serious normative questions for the use of self-defense with a firearm. This jurisprudence also implicates our prevailing social norms with respect to socially constructed and structurally pervasive gender roles. I argue that a peculiarly American conception of masculinity underpins the judicial construction of the Second Amendment’s core purpose as guaranteeing the right to armed defense of one’s self and one’s home. The Court’s recent Second Amendment rulings create an individual protection for gun ownership and incorporate the same against the States. But the Court’s reasoning entangles this protection with an implicit valuation …

Classrooms & Curriculum, Devin Walz, Anh Doan, Cathy Tran, Loraina Galarza

Collin College Undergraduate Interdisciplinary Student Research Conference

Panel Chair: Lisa Roy-Davis

Papers Presented:

"Should the State of Texas Allow Public Universities and Colleges to Permit Guns on Campuses?" By Devin Walz

"Pets in the Elementary Classroom" by Anh Doan

"Technology Case Study of K-12 Students" by Cathy Tran

Abstract: Technology is an exponentially revolutionizing tool that has pushed all aspects of society to adapt and grow in the time known as the “Information Age”. The way that humans process information, and the speed at which humans can process information, with technology allows humans to grow more efficiently and effectively. Technology is continually designed to become more optimal …

To Have And To Hold: Factors To Consider Before Divorcing South Carolina From The Concealed Weapons Permit Requirement, Joseph D. Spate

South Carolina Law Review

No abstract provided.

Tort Law Inside Out, Cristina Carmody Tilley

Faculty Publications

For more than a century, scholars have been looking at tort law from the outside in. Theorists committed to external goals like efficient allocation of resources or moral justice have treated tort as a mere vehicle for the achievement of their policy preferences, rather than as a body of law with a discernible internal purpose. It is time to revisit tort on its own terms.

This Article takes its cue from the New Doctrinalists, who urge that extralegal normative insights from fields such as economics or philosophy aid adjudication only when they are directly tethered to legal concepts; that is, …

Kolbe V. Hogan: Hewing To Heller And Taking Aim At A Standard Of Strict Scrutiny For Comprehensive Firearms Legislation, Brett S. Turlington

Maryland Law Review

No abstract provided.

Creating Precedents Through Words And Deeds, Harold Krent

All Faculty Scholarship

Book review: Untrodden ground: how presidents interpret the Constitution. By Harold H. Bruff. Chicago: University of Chicago Press, 2015. 557 pages. Reviewed by Harold J. Krent

The Second Amendment And “The People”: Who Has The Right To Bear Arms?, 51 J. Marshall L. Rev. 199 (2017), Kasim Carbide

UIC Law Review

No abstract provided.

Gun Control Through Tort Law, Richard C. Ausness

Law Faculty Scholarly Articles

I have been asked to respond to an article by Professor Andrew Jay McClurg that recently appeared in the Florida Law Review. In this article, the author, a longtime advocate of firearms regulation, argues that owners and commercial sellers of firearms who negligently fail to secure them against theft should be held liable when persons are killed or injured by firearms used in the commission of a crime.

In the past, believing that existing federal and state laws were inadequate to halt the spread of gun-related deaths and injuries, proponents of stricter gun control measures proposed a number of tort …