Scholarship Highlight - New Firearms Law Publications

  • Date:
  • March 19, 2021

It is exciting to see the field of firearms law continue to grow, with new articles each week discussing various aspects of gun laws and the Constitution. Below I highlight the ones that have just recently appeared on Westlaw.

From the Abstract:

18 U.S.C. § 922(g)(4) prohibits previously committed persons from purchasing or possessing firearms. On March 11, 2020, in Mai v. United States, the U.S. Court of Appeals for the Ninth Circuit assumed, without deciding, that § 922(g)(4) burdens the Second Amendment rights of individuals no longer living with mental illness. It then agreed with the Sixth Circuit Court of Appeals—the lone other circuit to reach the question—in holding that intermediate scrutiny applies. Unlike the Sixth Circuit, however, the Ninth Circuit concluded that the provision survives intermediate scrutiny. The Third Circuit also considered an as-applied challenge to § 922(g)(4), but it did not address the scrutiny issue because it held that the law does not burden constitutionally protected conduct. This Comment argues that the Ninth Circuit’s approach is correct because it does not give undue weight to ambiguous historical evidence in determining the scope of the Second Amendment’s protections and it demonstrates appropriate deference to Congress.

From the SSRN version Abstract:

This article responds to various claims by gun-control advocates that there are highly negative, even catastrophic, consequences in America when individual States adopt a “Shall Issue” or “Right-to-Carry” (“RTC”) regime for issuing a Concealed Handgun License (“CHL”) to all law-abiding, qualified applicants.

In contrast to these fears, law enforcement officers strongly support issuance of CHLs to qualified, law-abiding citizens. The most distinguished, non-partisan research institutes in the country have concluded that there is no good evidence that the enactment of an RTC law increases firearms violence. In addition, an inherent shortcoming of nearly all research on RTC laws is that it fails to focus on handgun crime and is therefore muddled by the data on other types of violence (i.e., suicides, knife violence). This article also addresses and rebuts the speculative assertions that RTC laws will lead to increases in other types of crime.

The fundamental error of opponents of RTC laws is that they view restrictions on gun ownership as a matter of social policy subject to utilitarian-inspired cost benefit analyses instead of a fundamental right under the U.S. Constitution—namely, the Second Amendment right to keep and bear arms. Properly viewed, social science research on the consequences of RTC laws should be irrelevant because the Constitution expressly protects the right to bear arms.

Therefore, as the D.C. Circuit concluded, laws that bar typical law-abiding citizens from carrying firearms in public for self-defense are categorically unconstitutional. See Wrenn v. District of Columbia, 864 F.3d 650, 667 (D.C. Cir. 2017). But even if the social science were relevant, the available evidence fails to meet the requirements that would apply under a heightened standard of constitutional scrutiny to justify laws that meaningfully restrict the right of law-abiding citizens to carry firearms in public for self-defense. As Judge Richard Posner of the Seventh Circuit — no fan of the Heller decision — concluded after a thorough review of the evidence, “the theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense.” Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012).

In drafting this article, I have tried to write from the perspective of an attorney seeking to litigate questions about whether the government could satisfy a standard of review such as strict or intermediate scrutiny. This constitutional question may become a purely academic one once the U.S. Supreme Court rules in New York State Rifle & Pistol, Inc. v. New York City, 18-280. The tiers of scrutiny judicial review standards, including strict and intermediate scrutiny, should be rejected by the Supreme Court in that case. Nevertheless, the exercise undertaken in this article is warranted because several lower federal courts have embraced the tiers of scrutiny review standards in constitutional challenges to gun control laws under the Second Amendment — despite the Supreme Court’s decision in District of Columbia v. Heller, which expressly rejected the use of such balancing tests by courts.

Regardless, I have not attempted to become (nor do I claim to be) a criminologist or statistician, but instead I have approached the available data as a reasonably informed professional interested in the subject matter who desires to obtain an understanding of the status of statistical proofs and the effect of right to conceal carry laws, if any, on public safety.

From the Abstract:

The North Carolina pistol-purchase permit system, originating in the Jim Crow Era, remains an obstruction for North Carolinians seeking to exercise their Second Amendment rights. The permit system requires that an individual possess a permit to purchase a handgun. Permits can only be obtained by applying to one’s local county sheriff’s office, assuming the applicant satisfies a myriad of conditions and pays the five-dollar per-permit fee.

Such a system directly implicates the core of the Second Amendment by posing a direct burden on the ability of one to acquire a handgun for possession in the home. Under the modern two-part test for the Second Amendment, the permitting system falls short of satisfying strict scrutiny, as well as intermediate
scrutiny. In addition, the permitting system faces difficulties in the face of the Fourteenth Amendment.

As a whole, the system is largely redundant with federal law, adding cost, time, and frustration for handgun purchasers. Furthermore, the permitting system is ripe for abuse by allowing denials for subjective “good cause.” This subjective criteria for denial is suspect since Black applicants are rejected at a rate near three times as high as White applicants. Finally, when compared to states without the permitting requirement, North Carolina’s crime rates are within a few percentage points of theirs, indicating that the permitting system is not sensible policy.

From the Introduction:
This article argues that the public health and legal community, using literature studying firearms and the impact of laws on gun violence, can help to fill this void by viewing Second Amendment constitutional litigation as an opportunity to educate the judiciary. While research data will not be dispositive in most cases, it can help create a more thorough ruling that better understands the context in which these seemingly narrow legal decisions are made. There is strong evidence to suggest that the judiciary can be educated through social science and, thereby, influenced in their legal analysis. Justices are more likely to turn to social science in prominent cases of controversy, of which Second Amendment cases would assuredly qualify. Moreover, the judiciary is more likely to take amicus briefs seriously when presented by expert, reliable sources.
A consensus has emerged amidst the tragic events that have continuously unfolded in the United States over the last several years. As one mass shooting has led to another, a call to recognize gun violence as a public health problem has become the norm. Those in public health may have recognized this need for years, but large portions of the public, community leaders, politicians, and policymakers now join them. It is time for the judiciary to do the same.
Second Amendment rights, however they are ultimately defined, are not absolute. Thus, regardless of the fact that the Amendment protects the right to keep and bear arms, the courts must consider this right in conjunction with the state's interest in limiting those rights to protect the public. In some cases, the data may suggest a broader authority to limit Second Amendment rights. But in other areas, it may suggest less authority. In either case, a better understanding of the role the Second Amendment decisions will have on gun violence will make these decisions more objective, more constitutionally precise, and, hopefully, more acceptable to a fiercely divided public. Thus, constitutional litigation is an opportunity for the public health community, in particular, to play a key role in demonstrating a path forward that properly balances the protections of the individual and the public, and that is grounded in evidence.