Scholarship Highlight: Recent Student Work on Firearms Law

  • Date:
  • January 24th, 2020

By: Jacob Charles

A few new pieces of student scholarship on firearms law and the Second Amendment were recently uploaded to Westlaw. As these articles show, there are lots of interesting open issues in this area of law that ought to continue drawing interest among legal academics.

From the Introduction (footnotes omitted):

Before continuing, it will be helpful to briefly describe three premises under which this Comment analyzes the Second Amendment. The first is the simplest. This Comment distinguishes between the individual right to bear arms and the right to bear arms to form a militia. . . .

The second premise is that there are two distinct groups of arms: arms to which one now has a constitutional right and arms to which one has had--and continues to have--a nonconstitutional right. The importance of this premise is the result of widespread arm ownership with varied use prior to the codification of the individual right. For example, before the codification of the individual right, one had the nonconstitutional right to hunt using a hunting rifle. Now, one still has the nonconstitutional right to own and use a hunting rifle but not necessarily the right to own and use a hunting rifle under the Second Amendment individual right. Conversely, a court ruling restricting the individual right does not imply that the arms at issue lose all legal protections--only the protection of a constitutional right.

The third premise follows from the second. The third premise distinguishes the right to bear arms from other constitutional rights on the basis that arms are--potentially dangerous--goods and thus, present unique regulatory issues. Therefore, in the context of Second Amendment adjudication, arms can be subject to a Commerce Clause analysis. . . . [T]he  Commerce Clause could apply to all Second Amendment claims because arms are goods that are potentially either in or affecting interstate or intrastate commerce. The relationship to the Commerce Clause is of special importance because arms--as goods--generally fall under the Commerce Clause’s purview. This analysis is doctrinally separate but practically, inextricably related to the Second Amendment.

From the Abstract:

While there are numerous instances of college or university mass shootings to be found in previous decades, the contemporary debate over the legal right to carry a firearm on a public college or university campus begins with the Virginia Tech massacre in 2007. It was in the aftermath of this event that the Students for Concealed Carry began a concerted effort to allow persons already permitted by their state to carry concealed firearms to also do so on college campuses--an effort that seems to have jumpstarted a vigorous debate that continues to this day. At the time, the Virginia Tech shooting resulted in the highest death and injury tolls on an American campus since Charles J. Whitman, the “Texas Tower Sniper,” shot and killed 15 and injured more than 30 at the University of Texas at Austin in 1966. It is this historic scale that helps define the current era. Against that backdrop, and in light of persistent efforts to deregulate firearms on and off campuses in New Hampshire, this article both considers and answers the question: Upon what legal bases do the systems and campuses under control of the University System of New Hampshire and the Community College System of New Hampshire prohibit the carrying of firearms on their premises? Along the way, Section I reviews firearms policies in place within both the University System of New Hampshire (USNH) and the Community College System of New Hampshire (CCSNH); Section II reviews New Hampshire state laws establishing and describing the character and governance of those systems of higher education; and Section III reviews New Hampshire state laws regarding possession and carrying of firearms. After those reviews, Section IV presents analysis of a court decision out of New Hampshire addressing issues of preemption and Second Amendment rights, as well as decisions from Oregon and Texas that touch on similar issues; and Section V concludes this analysis by highlighting connections between cases, including Supreme Court decisions Heller and McDonald, and suggesting possible impact of the decisions for policy makers at public campuses across the country.