Scholarship Highlight - Recent Articles on Gun Rights and Regulation

  • Date:
  • May 6th, 2021

By: Jacob Charles

Today we're highlighting several articles that were recently published or were recently uploaded to Westlaw. In keeping with past trends, there are both arguments that put forward an expanded notion of gun rights and those with a narrower view.

The Abstract (footnotes omitted):

Stand Your Ground laws give jurors too much leeway in determining what constitutes a reasonable threat in defense cases. By removing the traditional duty to retreat, the reasonableness determination makes or breaks a case and inherently discriminates against people of color. This is because reasonableness can all too easily become a character determination instead of an objective adjudgment. Because Stand Your Ground is present at the investigator’s discretion stage, the prosecutorial discretion stage, and finally the judicial stage through jury instructions and juror bias—there is a unique platform for implicit bias to dictate how defendants are advantaged or disadvantaged in their defense. This article examines the history of Stand Your Ground and how it has affected people of color, particularly Black men. The effectiveness of Stand Your Ground on violence, in general, is also examined. Finally, selected solutions are offered in the form of a change to normative reasonableness standards and removing the civil and criminal immunities granted by Stand Your Ground statutes.

The Abstract:

Long before the American War of Independence, English and Welsh subjects enjoyed the right to bear arms under the English Bill of Rights of 1689, which ensured that Protestants would not be persecuted should a Catholic monarch ascend the throne. British American subjects enjoyed no such right enforceable against the Crown. After the United States achieved independence, the Articles of Confederation failed to create an equivalent right enforceable against the federal government. When the Articles proved to form too weak a Union, the Constitutional Convention convened to strengthen the federal government. In response to state sovereignty concerns, the Bill of Rights was drafted to limit federal power under the new Constitution. It was against this backdrop that the Second Amendment was passed and ratified to safeguard individual liberty and a federalist power balance. Since the Supreme Court decided Dist. of Columbia v. Heller in 2008, courts have applied an originalist reading to the Second Amendment, construing it as codifying a preexisting individual right centered around self-defense. In the decade since Heller was decided, “smart” firearm technology, including embedded electronic safeties, has been developed and commercialized. Some proponents of firearms control contend that trigger lock requirements are constitutional because they pose only a de minimis restriction on Second Amendment rights. Biometric trigger locks that lower the risk that the firearm’s owner would be prevented from accessing the weapon for self-defense purposes are available commercially. However, laws requiring that owners secure their weapons’ trigger locks unconstitutionally infringe on citizens’ right to “keep and bear Arms.”

  • Philip Schuster & David Park, Shocking the Conscience: Whether the Right to Bear Arms Overrides the Due Process Right to Life, 56 Willamette L. Rev. 109 (2020)

From the Introduction (footnotes omitted):

This article advances a bold new principle. Now that the doctrine of incorporation has made the Second Amendment applicable to the states, passage of this amendment through the Fourteenth Amendment’s Due Process portal gives states and the people renewed vitality to protect the due process right to life. The article harkens back to the post-civil war Reconstruction Era, and the passage of the Fourteenth Amendment. New insight is uncovered into the interplay between the right to bear arms and the role government and the people were expected to play in ensuring public safety and the protection of life.

The authors posit that the core fundamental right to bear arms for self-defense changes the further one travels from the “hearth and home;” the right intersects with the natural right to the life liberty-interest at a shifting, “evolving point.” This point is the intersection where circumstances dictate that one right must yield to the other right. Those circumstances include the location of the threat, the lethality of the threat, and the persons involved.

This article examines various circumstances where the fundamental right to bear arms might be juxtaposed against the Due Process right to life liberty-interest and associated Bill of Rights guarantees, including the states’ Tenth Amendment police power. The authors conclude that these competing fundamental rights are best judicially reconciled, each with the other so as to fix the “evolving point,” through faithful adherence to the intermediate scrutiny standard of review. Finally, this article critiques federal legislation protecting gun manufacturers and distributors, as well as newly-enacted gun legislation in the states of Washington and Florida. The authors evaluate these standards in the context of the “evolving point” and “intermediate scrutiny” principles developed in the article.