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Scholarship Highlight: Recent Student Notes on Firearms Law

By on February 2, 2022 Categories: ,

In the past month, there’s been a flurry of wide-ranging student publications related to various issues in firearms law. Check them out!

  • Ellen Stephano, Note, Living Heller: Large-Capacity Magazine Bans and the Circuit Courts’ Search for Clarity on Second Amendment Constitutional Scrutiny, 54 Suffolk U. L. Rev. 573 (2021)

From the Introduction (footnotes omitted):

The ten deadliest shootings of the past decade in the United States involved large-capacity magazines. Magazine capacity dictates how many times a shooter may fire a gun without stopping to reload. In response to a rise in the frequency and lethality of mass shootings, regulating magazine capacity has become a priority for gun control advocates. Accordingly, as of August 2020, nine states and the District of Columbia restrict the sale of large-capacity magazines or ban their possession entirely. Additionally, since 2019, five separate bills restricting magazine capacity have been introduced in Congress, and legislation is pending in eleven additional states.

In August 2020, a divided three-judge panel of the Ninth Circuit Court of Appeals dealt a blow to gun control advocates and struck down California’s ban on large-capacity magazines. The Ninth Circuit split from the First, Second, Third, Fourth, Seventh, and D.C. Circuits as to the constitutionality of bans on large-capacity magazines and to the applicable level of constitutional scrutiny. The split may be temporary considering the Ninth Circuit’s recent decision to rehear Duncan v. Becerra en banc, but the split’s existence emphasizes the uncertainty surrounding all Second Amendment claims. …

This Note examines the push to regulate large-capacity magazines following the disturbing increase in mass shootings over the past decade in the United States. After detailing current and pending legislation, this Note discusses the Supreme Court’s recent Second Amendment jurisprudence. Focusing on the circuit split Duncan v. Becerra created, this Note examines and critiques the approaches taken by circuit courts in determining the constitutionality of large-capacity magazine bans. Finally, this Note proposes that courts should apply intermediate scrutiny to bans on large-capacity magazines challenged under the Second Amendment, and encourages the Supreme Court to clarify the Second Amendment’s constitutional landscape.

  • Sean Tenaglia, Note, Regulating Armed Private Militia Gatherings: A Constitutional State-Level Proposal to Promote Public Safety in A Post-Heller World, 63 Wm. & Mary L. Rev. 679, 684–85 (2021)

From the Introduction (footnotes omitted):

This Note argues that state laws that regulate private militia groups are constitutional and not violative of the Second Amendment. To supplement this argument, this Note proposes that all states should adopt the same standard to consistently regulate armed militia gatherings in public spaces. This standard, modeled on Alabama’s statute regulating unauthorized military organizations, would cover a variety of armed groups gathering at protests, rallies, and public events. Additionally, this proposed law would increase penalties for those convicted to enhance deterrence and give the law more bite. The application of this standard across all fifty states could de-escalate tensions, prevent violence, and save lives.

To begin its analysis of laws regulating armed groups, this Note must first define what constitutes a “private militia,” a term that has taken on new meaning in recent years. Part I defines the term and examines key differences between unofficial private militias and state-sanctioned forces. Part I also traces the origins of militia groups in America, from their colonial roots through the present day, exploring some of the key features animating the modern movement. Part II examines recent Second Amendment jurisprudence to analyze some of the theories that private militias draw on in arguing for their right to gather in public while armed.

Part III describes the existing provisions used to regulate armed groups and examines their constitutionality under the Second Amendment. Part IV then details this Note’s proposed standard, addressing practical challenges of implementation and responding to anticipated counterarguments. Finally, a brief conclusion summarizes this Note’s argument and reexamines the current landscape for private militia groups. States have the tools at their disposal to limit the negative influence of armed private militias. These laws are constitutional, and states can, and should, use them to protect communities.

  • Bowie Duncan, Dynamic Incorporation, Rights Restoration, and 18 U.S.C. S 922(g)(1), 15 NYU J.L. & Liberty 233, 236 (2021)

From the Introduction (footnotes omitted):

[T]his Note focuses on how states’ mechanisms for restoring felons’ civil and gun rights influence the federal felon-in-possession law, which prohibits persons convicted of federal or state felonies from possessing firearms. It does so through the lens of “dynamic incorporation,” a process by which Congress incorporates the changing policy judgments of state legislatures into federal law. . . .

This Note proceeds in three parts. Part I briefly diagnoses a problem that has been diagnosed many times before: the federalization of criminal law. It then provides an overview of dynamic incorporation, a potential solution to this problem, and offers two scholars’ differing views on the benefits and costs of dynamic incorporation. Part I concludes by introducing the federal felon-in-possession law and examining how it dynamically incorporates state law, including through the rights-restoration provision. Part II begins by surveying how courts have interpreted the rights-restoration provision and related provisions in § 921(a)(20). It then reviews the diverse ways states restore civil and gun rights, using three states’ restoration procedures as examples. Finally, drawing on lessons from Parts I and II, Part III proposes three amendments to § 921(a)(20) that would allow states to more directly influence how the federal felon-in-possession law applies.