Competition for the First Amendment—Teaching Firearms Law and the Second Amendment

  • Date:
  • July 08, 2019

It would be misleading to say that I “teach” my Firearms Law and the Second Amendment seminar.  Rather, the class is a student-driven, instructor-guided conversation.  There is substantial debate about what the law in this area should be.  It also has the advantage of being one with substantial disagreement about what the law is, both from an originalist and positive perspective.  It is a law professor’s dream.

The class and I go through each piece of covered material—whether it be a seventeenth-century English statue or a day-old case—with students sharing their thoughts on its meaning and implications.  Students do most of the talking.  This is the most important feature of the class, not the least because it is quite theory-heavy.  The class pushed students to understand concepts underlying arguments for and against civilian armament, reason through their merits and flaws, and explain these and one’s own ideas about the subject matter.  An unanticipated, but welcome, result of all this is that each semester of the class has its own theme, developed by the students.  In one semester, for example, the discussion kept returning to race-related issues.  In another, it was tyranny control.  In a third it was different conceptions of liberty.  It is gratifying to teach a class in which one, as the instructor, can learn so much.

I guide the discussion based on what is said about the material in (1) roughly 400-word reaction papers on the week’s reading that students turn in a day or two before a given week’s first class,[1] and (2) scholarly and judicial opinions.  A great deal of what I say challenges claims or assertions in or about the material—whether in a case, a scholarly claim, etc.—or to a comment made by a discussion participant (including myself).  I tell students on the first day that they are free to disagree with anything said in the class, including (and, perhaps, especially) by the instructor.

The course is structured in three parts, generally following my and my coauthors’ book, Firearms Law and the Second Amendment:  Regulation, Rights, and Policy.  The first covers the social science examining firearm use and misuse.  This empirical unit of the course sets a practical baseline from which the remainder of the course proceeds.  The course’s second part is generally arranged chronologically, with some cross-referencing between eras.  For example, when discussing Blackstone’s 1769 Commentaries on the Laws of England, we also discuss St. George Tucker’s early-American 1803 treatment of that work.  We begin with arms rights, duties, and restrictions in the precolonial United Kingdom.  Next is colonial America, followed by American firearms law through District of Columbia v. Heller and McDonald v. City of Chicago.  We then cover the Two-Part Test and its alternatives developed by lower courts to adjudicate Second Amendment claims.  Study of the Test is closely integrated with one area of post-McDonald case law—typically public firearm carriage.  The course concludes by covering material selected by the class.  This student-selected material is typically aligned with the course’s theme.  For the race, tyranny, and freedom themes mentioned above, we would expect to cover the book’s chapter on Firearms Policy and Status, appendix on Tyranny Control, and section on Prohibited Persons.

This dynamic class, which blends the past and present, theory and practice, and normative and positive, typically fills up quickly with students passionate about its subject matter.  It is a delightful semester-long discourse.

[1] I borrowed this feature from my former professor, now coauthor, Nicholas J. Johnson, who used it to great effect in his Gun Control Law class at the Fordham University School of Law.

[Ed. Note: This post is part of a week-long mini-symposium on teaching firearms law.]