NYU Law Seminar: Regulation of Weaponry in a Democratic Society

We taught a two-credit Second Amendment/Regulation of Weapons seminar at NYU School of Law in spring and fall 2019. We used the regulation of weapons as a powerful exemplar of the institutional structures and relationships that constitute the American system of government, including (1) the nature of American federalism and the constitutional relationship between national and state governments; (2) the scope and limits of the judicial power to resolve constitutional issues, including available methods of constitutional argument, interpretation, analysis, and/or decision; and (3) the scope and limits of constitutional claims to liberty.

Firearms, of course, present various polarizing questions, so we were very mindful not to take any ideological positions. Our focus was on weapons regulation as a constitutional and regulatory challenge, not the desirability of civilian ownership of firearms in general. A couple of our students owned and had substantial experience with firearms, but most did not. The atmosphere was very collegial – always good discussions, but never overheated or contentious. At the end of the semester, we believe that our students were more than convinced that “it’s complicated.”

The seminar consisted of 14 two-hour classes (with a 10-minute break in the middle). We graded students based on a take-home examination and two short (3-5 pages) “response papers,” which the students could schedule as they preferred and presented at the outset of our class sessions. The first time we taught the seminar we had no guest speakers; the second time we had two. These guests worked out well – we had plenty of opportunity to pepper them with questions.

We aimed for a comprehensive survey of Second Amendment and firearms regulatory issues. For the fall 2019 seminar, we had separate class sessions on various debates, including those relating to:

• Firearm costs and benefits (including mass shootings and gun crime)
• The militia-centric vs. self-defense-centric interpretations of the Second Amendment – Heller v. District of Columbia
• Fourteenth Amendment incorporation – McDonald v. City of Chicago
• Self-defense as a natural, common law, and constitutional right
• Federal firearms regulatory policy
• State preemption of local weapons regulation
• The right to carry handguns in public
• The regulation of “assault weapons” and large capacity magazines
• The constitutional and regulatory status of non-firearm weapons (knives, tasers, chemical sprays)
• Keeping firearms out of the hands of dangerous and irresponsible persons (such as previously convicted felons, mentally ill and domestic violence abusers)
• Implementing and enforcing firearms disqualifications (including the efficacy of background checking)
• Offenses and sentence enhancements when firearms are used in crime
• Tort remedies against manufacturers, wholesalers, retailers and third parties (schools, hotels, government institutions).

We assigned quite a bit of reading, including judicial opinions, law review articles, policy and empirical articles, government reports, and advocacy organization documents. In addition to required reading, we listed many recommended readings for each class in case students (now or in the future) are interested in a particular topic or wanted to incorporate additional views into their reaction papers. This was also a good way for us to organize sources that we might want to refer to in future articles. On the seminar’s companion webpage, we posted a list of all Supreme Court decisions involving firearms and a list of current events articles that caught our eyes.

Even though we covered a lot of ground, we were not able to cover all the key topics that we would have liked (for example, firearm suicides and unintentional firearms injuries). This course could easily be a three-credit seminar.

Both of us have been researching and writing about firearms issues for years, but we learned a lot by teaching the seminar, especially from each other. Ruben will be taking the seminar to his new teaching post at SMU Dedman School of Law.  Jacobs hopes to teach the seminar again at NYU.

Eric Ruben

James B. Jacobs

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