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Scholarship Highlight: New Research and Arguments about the Second Amendment

By on May 11, 2022 Categories: , , ,

There’s been a spate of new Second Amendment scholarship, including a just published piece by the Center’s own Joseph Blocher (with co-author Eric Ruben). There are also a couple of wide-ranging student pieces skeptical about/supportive of different gun regulations.

  • Eric Ruben & Joseph Blocher, “Second-Class” Rhetoric, Ideology, and Doctrinal Change, 110 Geo. L.J. 613 (2022)

Abstract:

A common refrain in current constitutional discourse is that lawmakers and judges are systematically disfavoring certain rights. This allegation has been made about the rights to free speech and free exercise of religion, but it is most prominent in debates about the right to keep and bear arms. Such “second-class” treatment, the argument goes, signals that the Supreme Court must intervene aggressively to police the disrespected rights. Past empirical work casts doubt on the descriptive claim that judges and policymakers are disrespecting the Second Amendment, but that simply highlights how little we know about how the second-class argument functions as a matter of rhetoric. What do people mean when they allege that a constitutional right is subject to second-class treatment? What are the relevant audiences for these arguments? And how does such rhetoric travel throughout the legal system–from briefs, for example, into court opinions?

In this Article, we use Second Amendment litigation to illuminate the complex interplay between attorneys and judges invoking the second-class claim. After situating the second-class argument within the literature on law and rhetoric, we empirically investigate its development by isolating each use of second-class rhetoric in briefs and opinions in the decade following District of Columbia v. Heller. We show that the second-class argument is, indeed, increasingly prevalent in litigation as a justification for enhanced judicial protection of the Second Amendment. We also find support for the proposition that advocates use the second-class claim differently depending on the court they are in. Finally, we show how the second-class claim is ideological, appealing to a small but growing number of Republican-nominated judges. Our analysis provides a clearer picture of an increasingly common argument that has the potential to shape individual rights jurisprudence for years to come. And by illustrating a more nuanced picture of how a consequential legal argument operates on a rhetorical level, we hope to advance our understanding of how constitutional change happens.

  • Zachary S. Halpern, Young Guns: The Constitutionality of Raising the Minimum Purchase Age for Firearms to Twenty-One, 63 B.C. L. Rev. 1421 (2022)

Abstract:

In 2008, in District of Columbia v. Heller, the United States Supreme Court held that the Second Amendment protects the right of “law-abiding, responsible citizens” to keep and bear arms to defend their home. The Court’s decision in Heller, however, left novel questions about the scope of the right unanswered, including at what age it vests. Federal law prohibits federally-licensed dealers from selling handguns to persons under twenty-one, but it permits persons over eighteen to possess and use handguns and acquire them through private sales. In 2018, in response to the mass shooting at Marjory Stoneman Douglas High School, Florida raised its minimum purchase age for all firearms to twenty-one. The National Rifle Association immediately challenged the law in federal court, claiming that it violated the Second Amendment rights of young adults aged eighteen to twenty. In 2021, in National Rifle Ass’n v. Swearingen, the U.S. District Court for the Northern District of Florida held that the law is consistent with the Second Amendment. This Note discusses how federal and state statutory regimes interact with the Court’s Second Amendment jurisprudence to govern young adults’ access to firearms. It examines arguments concerning the constitutionality of Florida’s minimum purchase-age provision and contends that the measure is valid because it is analogous to the “presumptively lawful” restrictions identified in Heller and because it survives intermediate scrutiny.

  • Jamie G. McWilliam, The Unconstitutionality of Unfinished Receiver Bans, 2022 Harv. J.L. & Pub. Pol’y Per Curiam 2 (2022)

From the Introduction (footnotes omitted):

There is a long and storied tradition in the United States of privately manufacturing firearms. In fact, at the time of the founding, there were no large-scale firearm manufacturers. Rather, prospective firearm purchasers would either have to make the weapon themselves or find a blacksmith to create a one-off firearm for them. Private firearms were very precise–much more so than what governments could typically afford to provide for their own troops. They were so precise, in fact, that ammunition would have to be made at home to custom match the individual firearm.

In the past, making a firearm at home was an arduous process. A barrel would have to be hammered out of an iron sheet and then welded. The stock would be hand carved from wood. The firing mechanism would have to be fashioned from iron. And the gunpowder for ammunition would be made using foraged sulfur and the charcoal from campfires. This was a time-consuming process that more closely resembled the craftsmanship of an expensive mechanical watch than the computer-controlled machining of the firearm factory today.

Some still engage in this historical process of firearm building. Today, though, the prospective firearm manufacturer has less laborious options for doing so. They can purchase components to build a firearm from pre-built parts. They can also print firearms using one of many commercially available 3D printers. The relative ease with which firearms can be made using modern technology has led to the concern that convicted felons may circumvent their inability to purchase a firearm by making one at home. In response, a number of states have introduced laws to limit the ability of citizens to construct their own firearms.

Given the intriguing technology involved, the legal implications of 3D printed firearms and laws related to them have captured the attention of commentators and scholars. However, a more common, yet less flashy, method has gone largely under the radar: The uses of an unfinished receiver (colloquially known as an 80% lower). This paper examines the constitutionality of legal restrictions on the use of unfinished receivers. Many arguments against such restrictions are based on equal protection or due process, but this paper will focus on their Second Amendment implications.

Part I of this paper examines unfinished receivers and laws regulating them. Part II lays out the proper way to review Second Amendment restrictions. Part III uses this review framework to argue that bans on unfinished receivers are unconstitutional.

  • Laura E. Johnson, Mental Health History Is History: A Lifetime Ban on Gun Possession Due to History of Involuntary Commitment Violates the Second Amendment, 100 N.C. L. Rev. 919 (2022)

Abstract:

Gun control is a widely debated issue in the United States that often centers on whether restricting access to firearms will increase safety. What is often left undiscussed is the stigma and stereotypes that long-lasting bans on firearm possession have on those subjected to gun control laws. Section 922(g)(4) of the Gun Control Act imposes a lifetime ban on gun possession for persons who have a history of involuntary commitment. The Sixth and Ninth Circuits, in Tyler v. Hillsdale County and Mai v. United States, respectively, were asked to decide whether this lifetime ban violates the Second Amendment. Applying intermediate scrutiny, the Sixth Circuit said yes while the Ninth Circuit said no.

This Recent Development examines this resulting circuit split as well as the government’s justifications for § 922(g)(4)–preventing crime and suicide–and argues § 922(g)(4) fails to adequately address those important issues, making it unconstitutional under the Second Amendment. Section 922(g)(4) permanently categorizes those with a history of involuntary commitment as mentally ill, instead of addressing the real issue: keeping guns out of the hands of those who currently present a danger to themselves and others. Recognizing that the government’s interests are nevertheless important, this Recent Development proposes the adoption of a federal extreme risk law that adequately instills measures aimed to prevent crime and suicide while also protecting the rights of those subjected to involuntary commitment.

  • Leah Boston, Does the Second Amendment Entail the Right to Conceal Carry Firearms in Public for Self-Defense? The Proper Cause Issue Finally Addressed, 46 T. Marshall L. Rev. 135 (2022)

From the Introduction (footnotes omitted):

The year 2021 has been a long year for mass shootings, and it is not even halfway over. “18 weeks into 2021,” and the “U.S. has experienced 194 mass shootings,” averaging approximately ten per week. Not surprisingly, “by the end of [2020], at least 20 million guns” had been sold legally, increasing “12.4 million since 2019.” Along with this increase in gun sales, and in response to the death of George Floyd, 2020 saw “tens of thousands” protest and march in many cities around the U.S. The increase in gun sales and protests in the same year seems to correlate with the desire to arm oneself amidst the current events. Yet, Americans who favor some form of gun control are unlikely to see it depending on the state they live in.

America saw “its first significant form of gun control laws between the two World Wars”–an example of Congress’s constitutional authority to regulate. Congress has the power to write a uniform set of national regulations. “Once Congress exercises this right …, the states are constitutionally prohibited from adopting laws inconsistent with the federal” mandate. This is an example of federal preemption. Congress has the right to elect whether it will insert itself or delegate the responsibility to the states to regulate certain industries or activities. Regulation of the firearm industry is an example of Congress’s discretion. Congress has refrained from regulating the firearm industry exclusively, but it has not completely resigned its authority to the states. Instead, the states are free to regulate firearms alongside the federal government. Thus, when purchasing a firearm, an individual must comply with whichever law is the strictest. In turn, for gun rights advocates, states with stricter firearm laws may prove burdensome. Accordingly, firearm laws are frequently litigated. Thus, a possibly more conservative Supreme Court interpreting the Second Amendment is favorable for those who want limited firearm restriction. This paper will address our court systems’ different interpretations of the Second Amendment.

Part II will explain how the Supreme Court’s interpretation of the Second Amendment has evolved over time and will discuss a recent case that has caught the Court’s attention, N.Y. State Rifle & Pistol Ass’n v. Corlett. Part II will also discuss the New York state regulation at issue in that case. Part III will detail the circuit courts’ heavy divide over Second Amendment interpretations and this issue’s relation to the current makeup of the Supreme Court. This analysis will aid in predicting where each Justice stands on topics of the Second Amendment, firearm possession, and legislative gun regulation. Next, this paper will predict how the Supreme Court will rule on this basis. Finally, Part IV will suggest how the Supreme Court should rule in the Corlett case.