Several new pieces exploring issues related to the Second Amendment and firearms law are on SSRN and have been or will be published soon.
In District of Columbia v. Heller, the Supreme Court declared a constitutionally protected individual right to keep and bear arms. Subsequently, the scope of the right has been hotly debated, resulting in circuit splits and lingering questions about what, exactly, the right entails. Despite these splits, the Court has denied certiorari to the myriad gun cases to land on its doorstep. But the balance of the Court has shifted, and likely, too, its willingness to hear these cases. Among the most pressing questions in Second Amendment jurisprudence is the constitutionality of public carry restrictions. With a constitutional challenge inevitable given the Court’s new makeup, the issue demands scrutiny into how the justices should consider the question in light of a growing gun violence epidemic. This Article argues against a rights-as-trumps approach, instead using a population-based perspective to shift the focus from the scope of the right and properly place the rights and liberties of the general public into the equation. This Article uses public health law principles, such as social determinants and its inevitable balancing of protecting the public and safeguarding individual rights, and empirics to examine the true burden on self-defense in comparison to the state’s ability to protect the wider community. In doing so, this analysis proposes that “good cause” restrictions—which have divided the Circuit courts thus far—are a constitutional approach that respects both the individual right declared in Heller and the state’s interest in protecting its citizens from a public health crisis.
The United States Supreme Court, in its decision in Perpich v. Department of Defense, ruled that members of the National Guard are “troops” as that word is used in the Constitution. In doing so, the Court negated a long-standing, but obsolete, definition of the militia. However, this move away from an obsolete definition of the militia posed considerable difficulties that the Court was unable to rectify in its Perpich decision. In this Article, the author hopes to help rectify these difficulties by proposing four necessary characteristics that define the militia: first, the militia is a military force; second, the militia consists of all persons in a state or territory who are of arms-bearing age; third, the militia cannot deploy overseas; and fourth, the militia is under the command of the state’s or territory’s governor. This definition will provide courts a firm foundation upon which to rest future opinions regarding the militia.