Given the recent spate of merits and amicus briefing in the Bruen case that challenges New York’s concealed carry law, some new scholarship analyzing that issue is especially timely. Below I highlight those and some other new firearms law scholarship:
From the Introduction (footnotes omitted):
The claim that the Second Amendment was enshrined to protect the peaceable carrying of weapons in public places is relatively new. It was invented in the mid-1970s, largely at the behest of the National Rifle Association (NRA) and other gun rights advocates, as part of a wider, organized campaign to advance a broad, individual rights interpretation of the Second Amendment. However, after the Supreme Court decided District of Columbia v. Heller, and historians began examining the history of weapons laws in detail, the ‘peaceable carry’ interpretation of the Second Amendment was discredited as being based on really nothing more than legal conjecture, historical hyperbole, and even a few myths.
Yet recently, many of the same writers responsible for the now discredited ‘peaceable carry’ narrative are once again trying to reassert it as true. As this article will outline, this resurgence of the ‘peaceable carry’ Second Amendment is based on a similar combination of ideologically inflected legal conjecture, historical distortion, and myth. The writers leading this resurgence are particularly tilting at windmills with the allegation that professional historians are attempting to rewrite the historical record to “negate” or “cancel” the Second Amendment right to “bear arms.” One writer has gone so far to label the research and writings of historians an “Illuminati-like conspiracy … to turn the right to bear arms into the crime of bearing arms.” Such allegations appear to be nothing more than an attempt to muddle any history that the ‘peaceable carry’ writers do not favor–history that has consistently shown itself to be reliable and is based on copious amounts of historical evidence.
This article is broken into three parts. Part I explores the story behind the organized campaign to advance a broad, individual rights interpretation of the Second Amendment. Part II examines the precipitous rise and equally dramatic collapse of the ‘peaceable carry’ Second Amendment. Lastly, Part III examines why the recent resurgence of the ‘peaceable carry’ Second Amendment is merely the latest example of gun rights advocates advancing a distorted narrative to further a political agenda.
From the Abstract:
In 2019, at least 39,000 Americans were killed by guns. Given this epidemic of gun violence, it is no surprise when legislatures enact gun control measures; in fact, they should be applauded for doing so. However, the right to keep and bear arms is a fundamental constitutional right protected by the Second Amendment. While the precise scope of this right is unclear, it appears to include at least some right to carry guns outside of the home.
States have three categories of licensing schemes for those who wish to carry guns in public. In unrestricted or “constitutional carry” jurisdictions, citizens of the state do not need any license to carry. In “shall-issue” jurisdictions, citizens are required to have a permit, but the permitting entity has no discretion; provided that the applicant meets certain requirements, the government must issue the permit. In “may-issue” jurisdictions, the permitting entity has discretion as to whether to issue the permit, even if the applicant meets all the conditions. Most “may-issue” jurisdictions require applicants to prove that they have a good reason for wanting to carry a gun, such as a compelling need for self-defense. Even when these jurisdictions do not have this requirement, they give the permitting authority discretion as to whether to issue the license.
I argue in this Article that may-issue laws are unconstitutional. I examine four other fundamental constitutional rights: free speech, free exercise of religion, freedom from unreasonable searches and seizures, and access to abortion. While the government may constitutionally limit each of these rights, it may not do so based on the subjective decisions of government officials, and certainly not based on the otherwise-lawful exercise of that right. Therefore, I argue that if the right to carry a gun outside the home is protected by the Second Amendment, then laws that require citizens to prove a good reason for needing to exercise that right are unconstitutional.
From the Introduction (footnotes omitted):
The deadliest mass shooting in American history took place at the Route 91 Harvest music festival in Las Vegas, Nevada on October 1, 2017. A lone gunman sprayed bullets from the 32nd floor of the Mandalay Bay Resort and Casino into a crowd of 22,000 concertgoers. The gunman singlehandedly fired over 1,100 rounds of ammunition, killing fifty-eight people and injuring more than 800. The shooting lasted just ten minutes.
For much of the American public, this was the first time they learned of the existence of a particular firearm accessory–the bump stock. A bump stock is a device that can be attached to semiautomatic rifles, which shoot one bullet per trigger-pull, to increase the firing rate. The Las Vegas shooter used rifles equipped with legally-owned bump stocks, enabling him to do more damage in less time. Following the shooting, the public and elected officials called for bump stocks and similar devices, such as rapid fire trigger activators, to be banned nationwide. As lawmakers began looking into changing firearms regulations, Gun Owners of America released a statement pledging its support for the “half a million bump stock owners [who] will have the difficult decision of either destroying or surrendering their valuable property.”
In Maryland Shall Issue, Inc. v. Hogan, the United States Court of Appeals for the Fourth Circuit considered whether a statute that deprived property owners of the right to possess, manufacture, sell, purchase, transfer, transport in-state, or receive a rapid fire gun trigger activator device was a “taking” requiring just compensation under the United States Constitution’s Fifth Amendment Takings Clause. The court held that the statute was not a taking because it did not involve direct physical appropriation of personal property by the government. The court myopically decided the case, relying on a wholly literal interpretation of the statute instead of analyzing the statute’s impact on property rights under the conceptual framework frequently used by the Supreme Court. By summarily dismissing the appellants’ arguments, the majority disregarded the Supreme Court’s complex regulatory takings precedent.
The starkly different approaches employed by the majority and dissenting opinions in Maryland Shall Issue, Inc. showcase the inconsistencies in Takings Clause precedent. By performing an incomplete analysis, the majority missed an opportunity to draw attention to the need for the Supreme Court to revisit this area of law. The Supreme Court must address two questions confounding its takings jurisprudence: (1) whether real and personal property should be treated differently under the Takings Clause; and (2) whether the creation of categorical tests is an effective means of analyzing regulatory takings cases.
As to the first issue, the Court should hold that real property and personal property must be given equal consideration under the Takings Clause. As to the second issue, the Court should reconsider its use of categorical takings classifications and instead rely on a multi-factor test that can account for the myriad of elements frequently encountered in modern takings cases. If the Supreme Court clarifies its takings jurisprudence, cases like Maryland Shall Issue, Inc. could be decided by lower courts more consistently.