Second Amendment Commons^™

Firearms, Extreme Risk, And Legal Design: "Red Flag" Laws And Due Process, Joseph Blocher, Jacob D. Charles

Faculty Scholarship

The most prominent recent development in gun regulation has been the spread of extreme risk protection order (ERPO) laws—often called “red flag” laws—which permit the denial of firearms to individuals who a judge has determined present an imminent risk of harm to themselves or others. Following a wave of adoptions in the wake of the Parkland murders, such orders are now authorized by law in eighteen states and the District of Columbia, and under consideration in many others. Advocates argue that they provide a tailored, individualized way to deter homicide, suicide, and even mass shootings by providing a tool for …

A Different Approach To The National Gun Control Debate: Whether Direct Negotiations Between Interest Groups Can Facihtate The Creation Of Meaningful Legislative Policy, Arielle Kraus

Cardozo Journal of Conflict Resolution

This Note aims to shed light on a different approach to the national gun debate. The Background of this Note will explore the origin of the gun debate from both sides, the evolution of both the Gun Rights Lobby, spearheaded by the NRA, and the Gun Control Lobby, and the ways in which their evolutions have impacted the national debate today. The current state of the gun debate addresses the relationship between the polarity of the extreme positions and the political climate. Moderate democratic voices have seemed to disappear altogether, and in their place, extremists on both sides have filled …

An Unstable Core: Self-Defense And The Second Amendment, Eric Ruben

Faculty Journal Articles and Book Chapters

In District of Columbia v. Heller, the Supreme Court announced for the first time that self-defense, not militia service, is the “core” of the right to keep and bear arms. However, the Court failed to articulate what that means for the right’s implementation. After Heller, most courts deciding Second Amendment questions have mentioned self-defense only superficially or not at all. Some courts, however, have run to the opposite extreme, leaning heavily on the platitude that firearms have utility for lawful self-defense as a rationale for effectively immunizing them from regulation. This Article examines that inconsistency and considers whether self-defense law …

Second Amendment Background Principles And Heller's Sensitive Places, Adam B. Sopko

Publications

Judges and commentators have widely acknowledged that history enjoys a privileged status in Second Amendment cases, but its precise role is undertheorized and rarely controls case outcomes. In particular, courts have been unable to decide "sensitive places" cases—challenges to location-based gun laws—in a manner that adheres to Supreme Court precedent because existing Second Amendment doctrine lacks a test for sensitive places cases that uses history and tradition in a principled way. This Article proposes a solution to address that problem.

An untapped source of guidance is the Court’s takings jurisprudence. Interpreting their respective constitutional provisions, Justice Scalia observed that both …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Conflicting Reports: When Gun Rights Threaten Free Speech, Gregory P. Magarian

Scholarship@WashULaw

This Article catalogs and analyzes collisions between free speech and gun rights. The most important and hotly debated of those collisions is the clash between the First Amendment rights to assemble and speak in public political protests and the asserted Second Amendment right to carry firearms openly in public places. Beyond protests, public university students’ First Amendment rights to speak and learn clash with the asserted Second Amendment right to carry concealed weapons on university campuses; First Amendment interests in robust political deliberation clash with Second Amendment interests in promoting and securing the right to keep and bear arms; and …

Guns In The Private Square, Cody Jacobs

Faculty Scholarship

The regulation of guns has been one of the most hotly debated public policy issues in the United States throughout the country’s history. But, up until recently, it has always been just that — a debate about public policy. Two recent developments have changed the landscape and moved the debate about publicly carrying firearms from the realm of public policy, to the realm of private decision-making and private law. First, laws related to publicly carrying firearms have been dramatically loosened throughout the United States to the point that, in the vast majority of states, anyone who is legally allowed to …

A Public Health Law Path For Second Amendment Jurisprudence, Michael Ulrich

Faculty Scholarship

The two landmark gun rights cases, District of Columbia v. Heller and McDonald v. City of Chicago, came down in 2008 and 2010, respectively. In the decade that has followed, two things have become abundantly clear. First, these cases provide little clarity about the nature and scope of Second Amendment rights, resulting in chaos and circuit splits in the lower courts. Second, growing empirical evidence has revealed that, in the background of the debate on individual constitutional rights, a serious gun violence epidemic is intensifying around the country. In one corner, gun rights advocates worry that increased firearm regulation will …

The Constitutional Case For "Red Flag" Laws, Timothy Zick

Popular Media

No abstract provided.

Glorious Revolution To American Revolution: The English Origin Of The Right To Keep And Bear Arms, Diarmuid F. O'Scannlain

Notre Dame Law Review

It is definitively not my intention to wade into such debates about the wisdom of the Second Amendment or to deal with pending or recent court interpretations. Rather, I want to explore how it came to be and what role British history had in its genesis. For Americans like myself, such history helps us to understand the meaning of our own Constitution. For the Britons, it is a powerful example of how your own constitutional principles shaped the legal landscape of far-flung countries once within the British Empire. And for those simply interested in law as a discipline, irrespective of …

The Urgent Need For Legal Scholarship On Firearm Policy, Dru Stevenson

Buffalo Law Review

Restrictions on federal funding for research pertaining to firearm policy have stymied academic inquiry by social science and public health researchers for over two decades. As a result, most researchers agree that our public discourse about this urgent issue is woefully under-informed, or even ill-informed, on both sides of the debate. Legal academia, which does not operate under the same grant-writing regime as most other disciplines, can and should help fill this gap in researching and theorizing the unresolved questions related to firearm policy. In fact, theoretical development and clarification from the legal academy is often a necessary antecedent for …

The “Weaponization” Of Corpus Linguistics: Testing Heller’S Linguistic Claims, Josh Jones

Brigham Young University Journal of Public Law

No abstract provided.

A “Justified Need” For The Constitutionality Of “Good Cause” Concealed Carry Provisions, Andrew Kim

Fordham Law Review

The U.S. Supreme Court’s landmark decision in District of Columbia v. Heller held that the prohibition of handguns in the home was unconstitutional and the Court extended this holding to the states through the Fourteenth Amendment in McDonald v. City of Chicago. Through these cases, the Court clarified that the core of the Second Amendment was self-defense. However, it did not specify the scope of this self-defense “core” and left the lower courts with room for interpretation—for example, it is unclear whether and to what extent the Second Amendment applies to the public space. Furthermore, the Supreme Court did …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Arming America's K-12 Teachers, The Second Amendment And The Gun-Free School Zones Act: A Public Policy Analysis, Joseph R. Uliano

Seton Hall University Dissertations and Theses (ETDs)

According to the Second Amendment of the United States Constitution, “A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed,” (U.S. Const. amend II), which is the absolute “right of the people.” The Bill of Rights further indicates, “Any right given to the people cannot be revoked by the government, limiting its power over the people.” However, educators and school administrators in most U.S. states must check this fundamental right at the door, as they are governed by their respective state governments …

Suing Guns Out Of Existence?, Scott R. Thomas, Mystica M. Alexander

Washington and Lee Law Review Online

In an effort to address gun violence, activists and victims’ families have filed lawsuits against the firearms industry seeking damage awards for violence committed by third party unrelated actors. Although Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005 intending to foreclose such lawsuits, since the time of the law’s passage, plaintiffs have brought claims against the firearms industry seeking refuge in an exception embedded in the statute. In a March, 2019 decision, Soto v. Bushmaster Firearms International, LLC, the Connecticut Supreme Court found that the Connecticut Unfair Trade Practices Act fell within an exception …

Firearms Law Workshop Mini-Symposium, Part Iii: Framing The Second Amendment: Gun Rights, Civil Rights, And Civil Liberties, Timothy Zick

Popular Media

No abstract provided.

Brief Of Constitutional Law Professors As Amici Curiae In Support Of Respondent, Vincent Levy, Timothy Zick, Gregory P. Magarian

Briefs

No abstract provided.

Sane Gun Policy From Texas? A Blueprint For Balanced State Campus Carry Laws, Aric Short

Faculty Scholarship

merican universities are caught in the crosshairs of one of the most polarizing and contentious gun policy debates: whether to allow concealed carry on campus. Ten states have implemented "campus carry" in some form; sixteen new states considered passage last year; and a growing wave of momentum is building in favor of additional adoptions. Despite this push towards campus carry, most states adopting the policy fail to strike an effective balance between the competing rights and interests involved. When states give universities the option to opt out of the law, for example, they almost always do. Other states impose a …

A Public Health Approach To Gun Violence, Legally Speaking, Michael Ulrich

Faculty Scholarship

The call for a public health approach to gun violence has largely ignored what role the nascent Second Amendment jurisprudence will play in hindering change. Given the state interest for infringing on Second Amendment rights is nearly always public safety, public health law doctrine provides an apt framework for analysis.