The articles from a symposium hosted University of Florida Journal of Law and Public Policy on the Second Amendment are now published and on Westlaw. They include some interesting new empirical pieces and other doctrinal/jurisprudential ones, including one article by my colleague Darrell Miller.
From the Introduction:
Recent historical research casts doubt on whether District of Columbia v. Heller was rightly decided according to originalist methods. . . . [T]these new discoveries are going to be hardest on stout-hearted originalists. The ones who declared Heller an original public meaning masterpiece. The ones who cannot abide the weak soup of “living originalism,” “framework originalism,” or “inclusive originalism.” The ones who–when confronted with precedent that is historically unsound or unsupported (whatever their ideological inclinations)–believe that the precedent must go and a new, purer decision based on originalist reasoning must prevail. It is these originalists who are going to struggle most with this new research on the right to keep and bear arms.
For them I can only say–deal with it. The Court owns Heller now. The Court cannot point to the linguistic usages of eighteenth-century Americans and claim their hands are tied, because all the linguistic evidence suggests the Court got it wrong. This does not mean the Justices must overturn Heller–there are plenty of cases in the constitutional canon that rest on shaky factual foundations–but it does mean they must accept their role in fashioning working rules to implement the right to keep and bear arms. The Second Amendment is in the Court’s hands. How it develops–for good or ill– will be a function solely of the wisdom with which the Court articulates its mandates.
From the Introduction:
Whether in this case [i.e., NYSRPA], or some other, Justice Brett Kavanaugh will have an opportunity to press a jurisprudential approach that he developed in a dissenting opinion while he was on the D.C. Circuit. Then-Judge Kavanaugh contended that Heller requires courts to apply a history-and-tradition test to every issue that is not resolved by the constitutional text. No circuit court has adopted this position. On the contrary, many have employed a version of the means-end analysis that the Supreme Court routinely uses in analogous areas of constitutional law, and no circuit court has rejected the use of such analysis.
This Article will show that then-Judge Kavanaugh misinterpreted Heller, and it will explain why neither he nor other members of the Supreme Court should adopt the approach that he mistakenly imputed to Heller. Other circuit judges have developed a better framework, in which text, history, and tradition are relied on when, and only when, those sources provide reasonably clear guidance. In other cases, which in practice will be much more numerous, judges should engage in a means-end analysis that is informed by what is known about the purpose of the Second Amendment from its text and history.
From the Abstract:
Americans are divided on how to solve the problem of gun violence in the United States. We propose that the divisions reflect underlying differences in perceptions of the role that guns play in satisfying the need for safety. Whereas some people perceive guns as a means to safety and regard gun restrictions as a threat to safety, other people perceive guns as a threat to safety and regard gun restrictions as essential for safety. Support for our proposition comes from a survey of students, faculty, and staff at a large, southeastern university on attitudes and judgments regarding campus carry–the movement to legalize the concealed carry of guns on college campuses. We distinguished between respondents (N = 11,390) who (a) own a gun for protection, (b) own a gun exclusively for reasons other than protection (e.g., collecting, sports), and (c) do not own a gun. Protection owners, who are inclined to perceive guns as means to safety, estimated that gun crimes on campus would decrease if campus carry were legal, reported that they and others would feel safer if the respondent carried a concealed gun, and supported campus carry legislation campus. Non-owners and non-protection gun owners, who are inclined to perceive guns as a threat to safety felt the reverse on all counts. The two groups converged in reports of how safe they would feel having a heated interaction. Most participants reported they currently felt safe having heated interactions, but would feel less safe if campus carry was legal. Nevertheless, the difference was stronger for non-owners and non-protection gun owners than for protection gun owners. Our findings have policy implications and suggest that solving America’s gun problem requires approaches that balance the safety needs of people who view guns as a means to safety versus a threat to safety.
From the Abstract:
The presence of firearms in the house is a risk factor for suicide and homicide, and state laws can play a role in reducing firearm-related injuries. Evidence suggests that such legislation should include limitations on licensing for firearm purchasing and ownership, restriction of certain firearm enhancements, mandates regarding safe storage and locks, and development of community-based violence prevention programs. Some additional, albeit mixed, data also supports gun buy-back programs, hospital-based violence prevention programs, concealed-carry laws, and aggressive policing and incarceration.