Scholarship Highlight: Recent Firearms Law Articles

In the past few weeks, there’s been some interesting Second Amendment and related firearms law scholarship published. Joseph Blocher highlighted one such paper last week. Here’s a few more that have caught my eye recently.

• Victoria Bell, The “White” to Bear Arms: How Immunity Provisions in Stand Your Ground Statutes Lead to an Unequal Application of the Law for Black Gun Owners, 46 Fordham Urb. L.J. 902 (2019).

From the Abstract:

Twenty-five states across the country have enacted some form of “Stand Your Ground” (SYG) laws, undercutting the traditional notion of a duty to retreat when faced with a perceived threat. Proponents of SYG argue that these laws derive from a fundamental right of self-defense and are intended to safeguard all citizens from imminent threats of bodily harm. However, the application and enforcement of SYG laws do not offer the same protections to black shooters as they do white shooters. Of these twenty-five SYG jurisdictions, six provide immunity from arrest for those who stand their ground in “reasonable” self-defense. While there are various factors that contribute to the unequal enforcement of SYG law, this Note examines the statutory responsibility placed on law enforcement to make the initial determination of what is “reasonable.” Because immunity determinations are largely formed on the basis of police discretion, human nature and implicit biases inform the reality that this discretion is being exercised in a biased way. As a result, immunity determinations reinforce a presumption that black shooters are inherently unreasonable, leading to a disparate impact of increased arrest and prosecution for black shooters.

• Alex A. Tsiatsos, When the First and Second Amendments Collide: The Free Speech Implications of West Virginia’s Business Liability Protection Act of 2018, 121 Va. L. Rev. 893, 893–94 (2019).

From the Introduction (footnotes omitted):

West Virginia’s “Business Liability Protection Act” of 2018 purports to protect property owners, employers and others from claims related to firearms stored inside the vehicles of employees and customers parked on business property. The Act, in part, does what its title claims. As long as the employee or customer securely stores his or her guns as provided in the Act, the employer or property owner is immune from related civil liability. But the Act does more than that. In fact, it creates a new cause of action against property owners. If a property owner merely asks whether a firearm is locked in a customer’s or employee’s car, the Act authorizes the Attorney General and private parties to sue the property owner for as much as $5,000 per violation and attorney’s fees. . . . [T]he West Virginia Legislature has every right to fully protect its citizens’ rights to travel with their firearms. But it cannot do so by restricting the right to speak freely. The importance of gun rights makes discussion of guns a matter of national importance and intense public debate. By threatening to punish speech about guns, the West Virginia Legislature has violated the First Amendment to the United States Constitution.

• Cameron W. Arnold, Standing in the Line of Fire: Compulsory Campus Carry Laws and Hostile Speech Environments, 49 Seton Hall L. Rev. 807 (2019).

From the Introduction (footnotes omitted):

This Article asserts that the argument against standing in cases where plaintiffs challenge compulsory campus laws on First Amendment grounds is based on a narrow and imprecise view of injury and causation, and a misunderstanding of the plaintiffs’ allegations in these cases. Plaintiffs who raise First Amendment challenges to compulsory campus carry laws do not solely claim that their speech is chilled by a potential threat of future violence; they also claim that the “mere presence,” or even potential presence, of firearms in the classroom presently creates an environment hostile to speech. Therefore, this Article proposes adopting a “hostile speech environment” framework for purposes of analyzing injury and causation in cases involving campus carry laws. The hostile speech environment framework adapts a Title VII “hostile work environment” framework to a First Amendment context. This framework would permit plaintiffs to demonstrate that, although campus carry laws do not explicitly prohibit speech on campus, when state and university officials enact or implement such laws, they engage in conduct that is hostile toward classroom speech in a manner “‘sufficiently severe or pervasive’ as to reasonably affect [that] speech and create an environment objectively abusive towards that speech.” The hostile environment itself is a present injury causally connected to the conduct of state and university officials.

• Alicia L. Granse, Gun Control and the Color of the Law, 37 Law & Ineq. 387 (2019).

From the Introduction (footnotes omitted):

While perhaps nowhere else in the world is the idea that one has the right to carry a gun for protection from violence so enshrined in the cultural ethos, that right does not extend to everyone. Instead, statutes criminalizing firearm possession help reinforce the social concept that White gun owners are heroes protecting their homes and their families, whereas Black gun owners are thugs, gangbangers, and super-predators. The history of the Second Amendment, gun regulation, and the War on Drugs support that conclusion. Recent data showing that gun possession conviction rates for Black people in Minnesota are shockingly disproportionate to their percentage of the population--sometimes six times what would be their ‘fair share’--provides strong evidence that the state’s law, and likely the many similar laws that have been enacted across the nation, are discriminatory in effect, if not in intent. . . . This Note contends that if a right is granted to one class of citizens, the denial of that right and the subsequent negative consequences of that denial are at odds with the principal value expounded in the nation’s founding documents, that all people are created equal. As the emotional push and pull for gun regulation continues, states must be careful to construct gun regulations that do not further contribute to racial inequality and the mass incarceration of Black people.