Scholarship Highlight: New Student Notes on Guns

A few new student notes about firearms law have been published recently or will be soon. Once again, it's great to see the field growing!

Danny Li, The First Amendment Weaponized: When Guns Become Public Discourse, William & Mary Bill of Rights. J. (forthcoming)

Here's the Abstract:

This Article discusses First Amendment challenges asserted against laws regulating the open carry of firearms—inside and outside our courts. It explains at length why existing doctrinal approaches to resolving these challenges fail, providing an alternative account of why the First Amendment should not be construed liberally to protect the open carry of firearms—using armed protests as a test case. As guns in public spaces and protests become commonplace, we can expect not only continual First Amendment challenges to gun control measures, but also the growing prevalence of First Amendment claims asserted in the public by advocates and gun owners to justify open carry—and the forging of new constitutional meanings and social norms. This Article speaks to judicial and non-judicial interlocutors, mapping a doctrinal path that judges should take to reject these challenges while providing a conceptual language for bystanders to reassert and reclaim their rights to public safety and participation from open carriers trying to weaponize the First Amendment.

To judicial interlocutors, the Article argues that the practice of open carry is too divorced from the value of democratic self-governance to constitute public discourse deserving of First Amendment coverage. It also suggests that, to overcome radically divergent social interpretations of arms bearing, courts should engage in normative analysis that takes account of the constitutional values at stake in extending First Amendment coverage to public carry. Courts should deny First Amendment coverage to gun carry both because bearing arms in public does not facilitate the formation of public opinion and because doing so preserves the social and legal norms that exclude guns from the public sphere. These norms—encoded in commonplace gun control laws—serve important constitutional values and interests central to the First Amendment.

The Article suggests that these First Amendment challenges illustrate the extent to which pro-gun rights movements transcend the jurisprudential boundaries of the Second Amendment. Evolving popular beliefs about the right to bear arms trickle down into popular beliefs about other, adjacent constitutional rights like the First Amendment right to freedom of speech. Once we consider these First Amendment challenges to gun control measures and look beyond their lack of judicial success, we can begin to see how popular beliefs about the right to bear arms are gradually evolving to incorporate First Amendment values. Guns are transformed into public discourse—symbols and forms of political speech.

To non-judicial interlocutors, the Article concludes with a call for advocates of gun control to flip the script on these First Amendment claims and forcefully articulate the ways that guns in public spaces threaten the free and equal exercise of constitutional rights to free speech, assembly, and political participation more broadly.

Esther Ness, Moving Beyond Thoughts and Prayers: A New and Improved Federal Assault Weapons Ban, 44 Fordham Int'l L.J. 1087, 1087–88 (2021)

Here's the Abstract:

The United States is infamous for its high levels of gun violence and a significant number of mass shootings. Each time the United States experiences a new mass shooting, public debates arise on changing US gun laws. Australia's strict gun laws that were enacted in response to a 1996 mass shooting are often used as an example of what the United States could do. Recently, New Zealand has been added to the discussion because it implemented strict gun laws within a week of mass shootings at two mosques in 2019. Critics opposing similar large-scale changes to gun laws in the United States argue that the United States is too different from these other countries to create successful reforms because of the Second Amendment and a strong gun culture. Yet, the federal government was not always reluctant to reform gun laws in response to mass shootings. The United States tried implementing large-scale change when it passed the Federal Assault Weapons Ban in 1994, but since its expiration in 2004, attempts to enact similar measures have failed. This Note proposes a new federal assault weapons ban that incorporates lessons from Australia, New Zealand, and past attempts for reform in the United States. This Note analyzes how the different approaches to gun control in Australia and New Zealand will likely fare in the United States by discussing each country's gun culture and history with guns, how these factors shape the various legal challenges to gun control in the United States, and considerations that must be accounted for when constructing a new ban. A new law formulated with these challenges in mind can achieve long-lasting success and make the United States safer.