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Scholarship Highlight: New Firearms Law Drafts on SSRN

  • Date:
  • March 23, 2022

By: Jacob Charles

Here are a few new articles posted on SSRN in the last few weeks that draw connections between existing legal doctrine and the cultural and statutory changes in gun rights.

When Texas became the most recent state to enact “constitutional carry”—allowing ordinary citizens to carry concealed handguns without a permit—it inadvertently added to the many laws conflicting with the Gun-Free School Zones Act of 1990 (GFSZA). The GFSZA generally makes it a federal crime, punishable by five years in prison, to possess a firearm within 1,000 feet of any K–12 school unless “licensed to do so by the State in which the school zone is located.” Serious doubts remain as to whether the Act, even as amended after United States v. Lopez, is constitutional under the Commerce Clause. Likewise, post-Heller—and with the Supreme Court poised to establish a Second Amendment right to carry a firearm outside the home—doubts exist as to whether the Act is constitutional under the Second Amendment.

Dubious constitutionality aside, numerous public-policy problems have come to plague the overbroad Act, as its specificity conflicts with subsequent developments in state and federal gun laws. Citizens in twenty-one constitutional-carry states can now legally carry concealed firearms for self-defense without a permit. Thus, hundreds of thousands of otherwise law-abiding citizens regularly violate the GFSZA as they go about their everyday lives in urban and suburban areas across the United States. The Act also contains no exceptions for off-duty police officers carrying firearms under the Law Enforcement Officer Safety Act (LEOSA) or for citizens with out-of-state permits carrying under a valid interstate reciprocity agreement. Nor does the GFSZA provide a lawful self-defense exemption to its prohibition on the discharge of a firearm in a school zone. To rectify the myriad issues accumulated by the GFSZA over the last three decades, Congress should amend the Act to establish a more reasonable tie to interstate commerce and to exempt the lawful carry and defensive use of firearms by off-duty police officers and private citizens.

The second amendment regarding the right to bear arms is regarded as one of the most problematic provisions in the US Constitution. Despite its historical roots, “bearing” arms for personal self-defense might no longer be suitable for the 21st century in light of recent jurisprudence and sociology findings. Freedom and autonomy are the foundation upon which the bill of rights was drafted. The bill of rights offers protection for individuals against state interference by granting them, inter alia, the right to bear arms for self-defense, right against self-incrimination, and due process rights. Nonetheless, the Texas Senate Bill 8 was passed to limit the Roe v. Wade right to abortion only to the first six weeks of pregnancy – essentially obliterating Roe v. Wade. The Texas Senate Bill 8 design allowed it to withstand the initial consideration by the US Supreme Court. In this research we ask three interrelated questions. First, does the Second Amendment right constitute an afront to International Law’s right to life under the Universal Declaration of Human Rights (“UDHR”) and the International Covenant of Civil and Political Rights (“ICCPR”)? If yes, can states adopt a design similar to Texas Bill 8 to ban or extensively regulate the second amendment right? Finally, what are the intrinsic differences between the right to bearing arms and the right to abortion? If they are intrinsically different, this research calls for examining each of them under a different scrutiny standard. In order to answer the last question, we assess two landmark cases regarding abortion and right to bear arms currently pending before the US Supreme Court, in an attempt to predict the future of those rights.

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