Second Amendment Commons^™

Second Amendment Sanctuaries: Defiance, Discretion, And Race, Nicholas J. Johnson

Pepperdine Law Review

Second Amendment Sanctuaries deploy nonenforcement policies and strategies in defiance of firearms laws of superior jurisdictions. The scholarship so far has focused on whether Second Amendment Sanctuary policies are legally enforceable. This Article advances the scholarship beyond questions of de jure validity by examining the potential for practical, de facto efficacy of Second Amendment Sanctuary policies. This Article concludes that even where Second Amendment Sanctuaries have weak claims to formal validity, defiant public officials still have broad opportunities to implement Second Amendment Sanctuary policies through the exercise of enforcement discretion. The conclusion that enforcement discretion can effectuate sanctuary policies is …

Red-Flag Laws, Civilian Firearms Ownership And Measures Of Freedom, Royce De R. Barondes

Faculty Publications

This essay provides context for an assessment of a part of the recently-enacted Bipartisan Safer Communities Act--federal legislation funding state red-flag procedures, which allow for seizures of firearms from persons who have not committed crimes.

First, it assesses Maryland’s experience during the first year of implementing these procedures. The essay details computations, extrapolating from Maryland’s first-year experience, showing that adoption of these statutes causes blameless persons to be subject to being killed by the government at a rate comparable to or in excess of the murder rate.

Second, the essay identifies an overlooked impact of this federal legislation. The legislation’s …

Dangerous And Unusual: How An Expanding National Firearms Act Will Spell Its Own Demise, Oliver Krawczyk

Dickinson Law Review (2017-Present)

The National Firearms Act of 1934 (NFA) is the strictest federal gun control law currently in effect. It criminalizes the mere possession and transfer of specifically enumerated categories of firearms deemed to be especially dangerous and unusual, such as machine guns and silencers. Commensurate with this viewpoint, the NFA imposes on violators harsh felony penalties, from lengthy prison sentences to six-figure fines. However, the NFA permits lawful civilian ownership of these firearms under a taxation and registration scheme administered by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). In its 2008 District of Columbia v. Heller decision, the United …

The Second Amendment Is History: Ninth Circuit Takes Originalist Approach In Finding No Right To Public Carry In Young V. Hawaii, Scott Kingsbury

Villanova Law Review

No abstract provided.

Divorcing Guns: How Family Law Could Change Parental Gun Ownership And Save Kids’ Lives, Marcia A. Zug

Washington and Lee Law Review Online

Guns are deadly. They are especially deadly for children yet, currently, parental gun ownership is not a major factor in custody disputes. This needs to change. Making irresponsible gun ownership a routine factor in custody cases could transform parental gun behavior. In other contexts, the potential loss of custody has proven to be an extremely strong deterrent. Moreover, unlike other proposed solutions to gun fatalities, this is a change that can be made right now. Making guns a part of custody disputes does not require the enactment of new legislation or even a judicial determination. By simply raising the issue …

Abortion Litigation And Second Amendment Litigation After Dobbs And Bruen, Institute Of Bill Of Rights Law At The College Of William & Mary Law School

Supreme Court Preview

No abstract provided.

New Approaches To Disarming Domestic Abusers, Natalie Nanasi

Villanova Law Review

No abstract provided.

An Investigation Of The Unintended Consequences Of Florida’S Stand Your Ground Law And Leadership’S Role In Both Implementing The Law And Revising It, Anthony Keel

Dissertations

The State of Florida has become a negative representation of the Stand Your Ground Law due to the three unintended consequences which developed since that law was passed in 2005. They are the disparity of African American incarceration rates when the law is applied, the increase in justifiable homicides, and the exponential increase in concealed carry permits. The intent of this qualitative research study was to inspire the leadership of the state of Florida to actively support and participate in reexamining, reassessing, and revising the Stand Your Ground Law. The literature review suggested that the law is ambiguous because it …

Pov: As A Nation, Where Are We Now On Gun Policy?, Michael Ulrich

Faculty Scholarship

Last month, the federal government passed the first gun safety legislation in decades, the Bipartisan Safer Communities Act, while at the same time, the Supreme Court declared a constitutional right to carry guns in public. It is important then to assess where this country finds itself with regard to gun policy after these two seemingly contrasting and momentous events.

Firearms And Protest: Lessons From The Black Tradition Of Arms, Nicholas J. Johnson

Connecticut Law Review

Kenosha was no aberration. Our history is filled with episodes of righteous protest boiling over into violence. Where violence is imminent, our traditions and laws allow innocents to use corresponding violence in self-defense. This arrangement is imperfect and demands hard thinking about how to refine and possibly improve it. One source of lessons toward this end is the experience of Black freedom fighters who navigated turmoil that dwarfs our current troubles. The principles that guided their struggle help frame a sphere of legitimate gun use during periods of civil unrest. These principles emerge from a considered philosophy and practice of …

The Next Fight Over Guns In America, Timothy Zick, Diana Palmer

Popular Media

With Thursday’s Supreme Court decision [in New York State Rifle & Pistol Association Inc. v. Bruen], the only real remaining question is not whether Americans can carry firearms, but where.

Presumptively Awful: How The Federal Government Is Failing To Protect The Constitutional Rights Of Those Adjudicated As Mentally Ill, As Illustrated By The 18 U.S.C. § 922(G)(4) Circuit Split, Kaitlyn M. Rubcich

Pepperdine Law Review

The Third, Sixth, and Ninth Circuits are split as to whether the 18 U.S.C. § 922(g)(4) federal firearms ban violates the Second Amendment rights of those who were once adjudicated as mentally ill but have since returned to good mental health. In Beers v. Attorney General, the Third Circuit applied its own unique framework and held that § 922(g)(4) is constitutional. Meanwhile, the Sixth Circuit applied intermediate scrutiny in Tyler v. Hillsdale County Sheriff’s Department and deemed the statute unconstitutional, while in Mai v. United States, the Ninth Circuit also applied intermediate scrutiny but held that § 922(g)(4) is constitutional. …

Corpus Linguistics Criticisms Of Heller Misuse Corpus Linguistics, Michael Showalter

SMU Law Review Forum

A number of linguistics experts have asserted that new corpus-linguistics evidence undermines the U.S. Supreme Court’s conclusion in District of Columbia v. Heller that the Second Amendment phrase keep and bear arms means to possess and carry weapons. At the time of ratification, the term bear arms carried both an idiomatic sense meaning “to serve as a soldier” and a literal sense meaning “to carry weapons.” The Heller majority concluded that the Second Amendment uses the literal sense, partly because the idiomatic reading has the absurd implication of causing the Amendment to protect a right to serve as a soldier. …

We Clerked For Justices Scalia And Stevens. America Is Getting Heller Wrong., Katherine A. Shaw, John Bash

Online Publications

In the summer of 2008, the Supreme Court decided District of Columbia v. Heller, in which the court held for the first time that the Second Amendment protected an individual right to gun ownership. We were law clerks to Justice Antonin Scalia, who wrote the majority opinion, and Justice John Paul Stevens, who wrote the lead dissent.

In Defense Of Self And Home: The Problems With Limiting Second Amendment Rights For Young Adults Based On Their Age, Andrew White

University of Cincinnati Law Review

No abstract provided.

Nysrpa V. Bruen And The Future Of The Sensitive Places Doctrine: Rejecting The Ahistorical Government Security Approach, Carina Bentata Gryting, Mark Anthony Frassetto

Boston College Law Review

On November 3, 2021, the Supreme Court heard oral arguments in New York State Rifle & Pistol Ass’n v. Bruen, a Second Amendment case challenging New York’s concealed carry licensing system. The justices’ questions focused not only on who may obtain a license to carry a firearm in public, but also where those with a license may or may not bring their weapons. These questions acknowledged that the Court’s decision in District of Columbia v. Heller provided a carveout for firearms restrictions in “sensitive places,” providing “schools and government buildings” as just two examples. In the fourteen years since …

Young Guns: The Constitutionality Of Raising The Minimum Purchase Age For Firearms To Twenty-One, Zachary S. Halpern

Boston College Law Review

In 2008, in District of Columbia v. Heller, the United States Supreme Court held that the Second Amendment protects the right of “law-abiding, responsible citizens” to keep and bear arms to defend their home. The Court’s decision in Heller, however, left novel questions about the scope of the right unanswered, including at what age it vests. Federal law prohibits federally-licensed dealers from selling handguns to persons under twenty-one, but it permits persons over eighteen to possess and use handguns and acquire them through private sales. In 2018, in response to the mass shooting at Marjory Stoneman Douglas High …

Second Amendment Realism, Michael Ulrich

Faculty Scholarship

In District of Columbia v. Heller, the Supreme Court declared a constitutionally protected individual right to keep and bear arms. Subsequently, the scope of the right has been hotly debated, resulting in circuit splits and lingering questions about what, exactly, the right entails. Despite these splits, the Court has denied certiorari to the myriad gun cases to land on its doorstep. But the balance of the Court has shifted, and likely, too, its willingness to hear these cases. Among the most pressing questions in Second Amendment jurisprudence is the constitutionality of public carry restrictions. With a constitutional challenge inevitable given …

Disgust And Guns: Conduct, Identity, And Second Amendment Animus, William D. Araiza

Northwestern University Law Review

In Second Amendment Animus, Professor Jacob Charles examines whether the burgeoning doctrine of unconstitutional animus should play any role in adjudicating Second Amendment claims. This Essay responds to Professor Charles’s important work. While it concludes that he is likely correct to reject animus as a grounding for Second Amendment claims, it points out areas where the analysis is more nuanced than he suggests. After considering Professor Charles’s analysis, the Essay examines the Second Amendment animus issue through the theoretical lens provided by Professor Martha Nussbaum’s work on disgust as a motivating factor for the types of exclusionary and subordinating …

Constitutional Law—Large-Capacity Magazine Bans And The Second Amendment, Jared Self

University of Arkansas at Little Rock Law Review

No abstract provided.