Scholarship Highlight: Recent Student Law Review Notes

The last several weeks have seen several new student notes published on topics related to the Second Amendment and firearms law. Unfortunately, it doesn’t seem that they’re all available publicly, but it is still great to see such direct engagement with this burgeoning field of law.

• Clare Curran, Walmart and Guns: A Case Study in Modern Corporate Governance, 2020 Colum. Bus. L. Rev. 1071 (2020)

From the Abstract:

In August 2019, the Business Roundtable issued a new Statement on the Purpose of a Corporation. The statement, signed by 181 CEOs, including Doug McMillon of Walmart, declared that corporations should seek to serve the interests of all stakeholders--a marked departure from the Roundtable’s prior embrace of shareholder primacy. This shift in position reinvigorated debate among business and legal scholars about the proper purpose of a corporation.

Using Walmart as a case study, this Note argues that corporations are indeed adopting a more flexible and responsive conception of corporate purpose. This Note begins with a discussion of corporate governance theories, detailing four distinct visions of corporate purpose and control. It then examines Walmart’s decisionmaking process regarding ammunition and firearm sales in the wake of a tragic mass shooting at one of its stores. Finally, it concludes by reconciling Walmart’s conduct with the prevailing theories of corporate governance, ultimately finding team production theory--which calls for balancing stakeholder interests--to be most applicable.

• Joshua Taylor, Is Congress’s Denial of the Second Amendment Right to Medicinal Marijuana Cardholders Substantially Related to Preventing Gun Violence?, 45 T. Marshall L. Rev. 75 (2020)

From the Introduction (footnotes omitted):

The Second Amendment provides: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Congress enacted, and the lower Courts decided the constitutionality of 18 U.S.C. § 922(g)(3), which states, “It shall be unlawful for any person who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802.)” . . . [T]he United States Supreme Court has yet to hear a case on the issue of whether medicinal marijuana cardholders should be prohibited from obtaining a gun license. McDonald characterizes the Second Amendment right as fundamental, and direct invasions of fundamental rights are normally subject to strict scrutiny. Congress directly infringes on one’s Second Amendment right by subjecting a marijuana cardholder or user as a felon under Federal law. This takes away an individual’s choice of medicine and does not treat those in a similar situation--such as alcohol consumers and legally prescribed opioid users--alike.

In a brief filed with the United States Supreme Court on May 6, 2002, the Department of Justice argued the Second Amendment right to own and possess a firearm is subject to reasonable restrictions to prevent those who are unfit from owning a firearm and to also restrict possession of firearms normally used to commit criminal acts. Congress reasoned those who indulge in marijuana are more likely to commit violent crimes when they are under the influence. Congress made these accusations and concluded marijuana should be a Schedule I drug without scientific expert research and the users, legal or illegal have been punished ever since.

• Chelsey Johnson, The Automatic Answer: How Common-Sense Gun Control Legislation and Suing the Gun Industry Can Prevent Mass Shootings, 45 T. Marshall L. Rev. 39 (2020)

From the Introduction (footnotes omitted):

When people think of America, several things come to mind. Baseball, apple pie, and mass shootings. This dark and unfortunate American pastime has woven itself into the fabric and framework of American life. Several times a year, Americans across the country hold their breath as they hear, or witness news of another mass tragedy unfold in front of them. Twenty-two massacred inside of a Walmart in Texas. Twenty-seven murdered in an elementary school in Connecticut. Forty-nine slain in a nightclub in Florida. Fifty-eight killed outside a Las Vegas concert. Over the past decade, American mass shootings occur so frequently and regularly that the country has been identified and marred by them. . . . Hiding under the veil of the Second Amendment, gun advocates are firm in their position that Americans have an unlimited right to guns and that laws and policies regulating gun rights will serve no use. Yet, several policies such as red flag laws, extensive background checks, and ceasing production of certain types of guns and ammunition could drastically reduce these tragedies. Additionally, several families and victims of mass shootings not only have to grieve with loss, but also have to deal with the inability to receive justice. Families and victims of these mass shootings are given no legal recourse, as laws such as the 2005 Protection of Lawful Commerce in Arms Act (PLCAA) prevent most lawsuits against gun manufacturers. The inability to sue gun manufacturers gives them a license to release dangerous weaponry into the marketplace with impunity. The inability to hold gun manufacturers accountable allows access to guns for individuals who should not be able to have guns. Additionally, this leaves the families and victims no ability to seek or recover for their loss and no voice or power to advocate for themselves.

The obsession with gun culture, the influence of the gun industry, and the malfeasance of Congress requires a radical resolution to protect the lives of millions of Americans. To drastically reduce mass shootings, lawmakers need to pass common sense gun control policies that incorporate comprehensive protections and regulations, and gun manufacturers should be able to be sued to reduce the incidents of these types of shootings.