Scholarship Highlight – Forthcoming Gun Law Articles
Today, I’m highlighting several forthcoming articles by established scholars and veterans of firearms law scholarship. These pieces raise interesting and often under-explored aspects of the legal regulation of guns.
- Drury D. Stevenson, Workplace Violence, Firearm Prohibitions, and the New Gun Rights, University of San Francisco Law Review, Vol. 55, 2021
Workplace violence is surprisingly common – some estimates suggest there are more than one million incidents per year, including several hundred workplace homicides and suicides. Mass shootings and active shooter rampages also occur at places of employment. In spite of the prevalence of workplace gun violence, and partly in response to it, legislatures and some courts have begun to restrict employers’ ability to prohibit firearms at the workplace facility – especially in employee parking lots, but in some cases, within the workplace building itself. Employees have growing legislative protection and even encouragement to bring guns to work, and customers or patrons may also have enhanced rights to bring guns into businesses or offices that they visit, regardless of the wishes of employers, managers, or shift supervisors. This trend coincides with a larger trend of liberalized laws about carrying concealed or openly displayed firearms; in addition, increasing numbers of gun owners are now carrying handguns outside the home. In half the states, obtaining a concealed carry permit exempts the permittee from undergoing any subsequent federal background checks when purchasing a firearm from a dealer, and in most states, private person-to-person sales do not require background checks, meaning employers cannot rely on regulatory controls to screen unstable or discharged employees, or upset patrons, from purchasing firearms. At the same time, unarmed co-workers, supervisors, and business customers or clients often feel threatened, intimidated, or even bullied by the presence of firearms in their immediate work environment, especially in the wake of highly-publicized mass shootings at workplaces, including stores, schools, and office spaces. The presence of firearms can have a chilling effect on employee communication and interactions and can alter the dynamics of relationships within a workplace, such as declining romantic overtures or responding to teasing by an armed co-worker. This paper will explore the recent legislative and judicial developments in this area (forcing employers to permit guns on workplace grounds or within facilities), the new trend for employers to provide active shooter response training or purchase active shooter insurance policies, the policy arguments and trade-offs regarding gun-free workplaces versus employee gun rights, and the need for employers to reduce the risk of violence, and especially lethal violence, in the workplace.
- Drury D. Stevenson & Jenna Shorter, Revisiting Gun Control and Tort Liability, Indiana Law Review, Forthcoming
Gun violence has long been an intractable policy problem in the United States, pitting gun rights advocates against public health experts against a backdrop of modern Second Amendment jurisprudence. The Supreme Court’s 2008 decision in Heller had the long-term effect of freezing federal firearm statutes in place, even as the number of guns in circulation continues to spiral upward, and mass shootings, gun accidents, and suicides have a detrimental impact on our communities. This Article reexamines longstanding proposals for minimally intrusive regulatory approaches, such as universal background checks and restrictions on certain military-style rifles, which have the pedigree of popular support in an otherwise divisive area. More importantly, this Article revisits the issue of tort liability for gun manufacturers and dealers, and the new wave of court decisions allowing such cases to move forward in spite of a federal statute designed to grant the firearms industry immunity from such lawsuits. An area of tort litigation that was mostly dormant for fifteen years has now become increasingly active, with far-reaching implications for gun policy, gun industry insurance policies. As courts find workaround for the immunity statute or apply the statutory exceptions more broadly, gun manufacturers and retail distributors alike may need to rethink their product lines, marketing, and relationship to the secondary market.
- Drury D. Stevenson & Mia Romano, Litigating the Bump Stock Ban
In 2018, ATF promulgated a regulation that banned bump stocks, a mechanical attachment for semiautomatic rifles that simulates the continuous, rapid-repeat firing of a fully automatic firearm or machinegun. Litigation challenging the rule commenced immediately, and two of the cases have reached the federal circuit courts, though the cases have received little academic attention. A striking feature of the bump stock litigation is that it has not centered around Second Amendment rights, though the rule constitutes a significant regulation of firearms, as hundreds of thousands of bump stocks are (or were) in circulation. Instead, the main cases have focused on important but unsettled issues in administrative law. The bump stock cases will create precedent on the applicability of Chevron deference to agency interpretations of statutory terms, especially for the doctrines of Chevron waiver by the government, whether Chevron should apply to regulations that pose potential criminal sanctions for violators, and the murky distinction between “purely” interpretive rules and legislative rules that are both interpretive and have the force of law. Thus, apart from the rule being the first new federal restriction on firearm ownership in many years, the litigation surrounding the rule could change the trajectory of the Chevron doctrine in federal courts. This Article will provide the first in-depth study and academic analysis of these issues through the lens of the D.C. Circuit’s decision in the bump stock litigation, and will argue that this court, along with the Tenth Circuit on a parallel case, have reached the correct conclusions on the proper parameters of Chevron deference.
- David B. Kopel & George A. Mocsary, Errors of Omission: Words Missing from the Ninth Circuit’s Young v. State of Hawaii, 2021 U. Ill. L. Rev. Online (forthcoming 2021)
The en banc Ninth Circuit on March 24 held that the Second Amendment right does not encompass the open handgun carriage. The decision in Young v. State of Hawaii complements the Circuit’s 2106 en banc Peruta v. San Diego, which held that concealed carry is categorically outside the Second Amendment. Thus, according to the Ninth Circuit, a state may ban both open and concealed carry. There is no right to bear handguns. According to the Ninth Circuit, carrying arms in public for defense is “not within the scope of the right protected by the Second Amendment.” This Article examines the majority opinion on its own terms. Most revealing about the majority opinion is how it selectively quotes the sources that it cites. When the Ninth Circuit’s sources are examined in detail, they support the conclusion opposite from the one reached by the court. Although carrying defensive arms may be regulated, it may not be prohibited.
- George A. Mocsary & Debora Person, A Brief History of Public Carry in Wyoming, 21 Wyoming Law Review (2021, Forthcoming)
The history of gun carry laws in Wyoming parallels that of many other Western states, impacted the presence of great changes in national and regional events. From the time that Wyoming first became a territory in 1868, the treaties with the Cheyenne, the Crow, the Sioux, and the Arapahoe peoples distributing lands in Wyoming were in force. The Wind River Reservation was created for the Shoshones. The Homestead Act was recently passed, and the Pony Express, the Oregon Trail, the Overland Trail, the Mormon Trail, and the Bozeman Road crossed the plains and mountains of the territory. The Civil War had just ended and recovery was painful. The U.S. government had granted land to the Union Pacific for the transcontinental railroad, bringing with the project an itinerant population of railroad workers, many of whom were immigrants of minority status. Raids and skirmishes between settlers, migrants, and frustrated Indian Nations were increasing, and federal military outposts were built. The Territory of Wyoming encompassed an expansive geographical area, but the population was sparse. Vast prairies surrounded homes and towns, and the arm of justice was often far away. For the few short years that a portion of Wyoming existed as part of the Dakota Territory, the seat of government in Yankton, Dakota Territory, was 500 miles from Cheyenne, with limited access to the courts.
Parts of Wyoming were lawless and dangerous, at times exceedingly so. At a time when guns were carried openly upon a person for business or for protection, carrying a concealed weapon came to be viewed with distrust. One Wyoming newspaper editor went so far as to infer intent to harm just by the act of arming oneself.
“We take the point that the very act of arming oneself as a result of a quarrel or in anticipation of trouble constitutes malice and premeditation in a strict sense; that in view of the law prohibiting the carrying of concealed weapons, any person who has a grievance against another and arms himself is deserving of no sympathy when, as a result of his misdeeds, he is brought before the bar of justice.”
In the 150 years since the creation of the territorial government, the State’s stance on gun carrying has undergone many adjustments. It shows that peaceable open firearm carriage has almost always been allowed everywhere, and always allowed somewhere, in Wyoming. Concealed carry, on the other hand, has a mixed history. It came to be held in disdain, and highly regulated, in the early part of Wyoming’s history. But it became the accepted and default mode of public carry in recent years. Wyoming today has some of the most liberal gun laws in the country. This essay surveys the development of these laws from positive, public-discourse, and comparative perspectives to the extent possible given the relative paucity of sources on the topic.
- Josh Blackman, The ‘Essential’ Second Amendment, Texas Review of Law & Politics, Vol. 26, No. __, 2021
Constitutional litigation over the Second Amendment has followed a familiar pattern. In the decade since Heller, countless cases have turned on a foundational question: how much danger does the weapon pose? But in 2020, the courts were suddenly presented with a novel constitutional question: how much danger does obtaining the weapon pose? During the COVID-19 pandemic, state and local governments enacted complete prohibitions on the acquisition of firearms. Willing buyers were ready to comply with all extent gun-control regulations. But these governments shuttered firearm stores completely. These policies were adopted not to stop the sale of guns, but to stop the spread of the novel coronavirus. In short order, these governments deemed the Second Amendment as “non-essential.” The ability to purchase firearms was treated no differently than the ability to purchase other conveniences. Still, the practices in the overwhelming majority of the states reflected what should be a basic tenet of constitutional law: enumerated fundamental constitutional rights must be “essential” rights. And the state cannot impose an absolute and arbitrary prohibition on the exercise of the essential Second Amendment.
This article proceeds in four parts. Part I considers what the word “essential” really means. Part II undertakes a fifty-state survey of restrictions imposed on the right to keep and bear arms during the pandemic. Part III analyzes another metric to decide whether the right to keep and bear arms is essential: the people. During the COVID-19 pandemic, gun sales surged. In times of civil unrest, millions of Americans viewed the acquisition of firearms as essential. Part IV revisits two district court decisions that upheld restrictions on the right to keep and bear arms during the pandemic. These cases followed the framework Chief Justice Roberts established in South Bay Pentecostal Church v. Newsom. These courts should have followed the framework Justice Kavanaugh established Calvary Chapel v. Sisolak. If any businesses are treated as “essential,” firearm stores must presumptively be afforded that same status. The right to keep and bear arms ought to be afforded “most-favored status.” And the state must justify its decision to deprive people of their right to keep and bear arms.