Scholarship Highlight: Recent Articles on Bruen, PLCAA Immunity, and Founding-Era Animal Attacks

Today we’re highlighting a few new pieces of Second Amendment scholarship.  The first, an article by Michael Smith, provides a comprehensive critical evaluation of Bruen and its historical-analogy test.  The second, a student note by Nathan Harp, gives an overview of state AG lawsuits under PLCAA’s predicate exception—helpful background for understanding recent suits brought under New York’s gun-industry nuisance statute.   And, finally, an article by Mark Smith makes the historical argument that extending the Second Amendment outside of the home comports with the Founding-era need to protect against wild animal attacks. 

Michael L. Smith, Historical Tradition: A Vague, Overconfident, and Malleable Approach to Constitutional Law

Abstract:

In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court overturned a century-old firearms licensing scheme that required people seeking concealed carry permits to demonstrate that they had a special need for self-defense. Rather than balancing government interests against the scope of firearms restrictions through strict or intermediate scrutiny, the Bruen Court held that a “historical tradition” approach was required. Under this approach, where the Second Amendment’s plain text covers an individual’s conduct, a law restricting that conduct must be consistent with “the Nation’s historical tradition of firearm regulation.”

At first glance, the historical tradition approach may seem desirable. One might agree with the Bruen Court’s assertion that historical legal analysis is easier than the alternative empirical analysis of gun restrictions and their impacts. And the historical tradition approach seems objective, requiring courts to determine historical legal facts rather than engaging in goal-oriented analysis of the desirability and effectiveness of firearms restrictions.

These first impressions are mistaken. The Bruen Court minimizes the difficulty of the historical tradition approach. And, through its vague and virtually nonexistent guidance on drawing historical analogies, the Court leaves numerous avenues for judges and Justices to inject their preferences as they weigh historical evidence and determine whether sufficient evidence exists to establish a historical tradition. This Article examines the Bruen Court’s statement of the historical tradition approach and reveals multiple instances in which the Bruen Court engaged in shoddy historical analysis and took an inconsistent approach to historic evidence in order to arrive at a desired result. In light of the complexity and malleability of the historical tradition approach, the Court will likely continue to twist this approach to achieve its desired ends—a phenomenon that will likely be magnified in the lower courts and in future decisions in Second Amendment and other constitutional cases.

Nathan D. Harp, Imperfect Immunity: How State Attorneys General Could Sue Firearm Manufacturers under the Predicate Exemption to the Protection of Lawful Commerce in Arms Act, 30 Cornell J.L. & Pub. Pol’y 797 (2021)

From the introduction (footnotes omitted):

This Note will examine how States’ Attorneys General could use Soto v. Bushmaster’s legal break-through to sue gun manufacturers under the PLCAA’s predicate exception.

In developing this argument, this Note will first examine the existing legislative framework regarding suits against gun manufacturers. As described above, the PLCAA places severe Federal restrictions on such suits. Yet, many states have enacted their own immunity statutes to shield the gun industry. Understanding the restrictions that State and Federal statues place on Attorneys General is critical for assessing AGs’ potential role in suits against gun manufacturers.

Second, this Note will examine past instances when State Attorneys General have been involved in suits against gun manufacturers. I begin this analysis by exploring lawsuits that Attorneys General directly spearheaded. This discussion must be further bifurcated into pre- and post-PLCAA cases, as Attorneys-General led cases underwent fundamental changes after the PLCAA’s enactment. After considering direct suits against gun manufacturers, I discuss the supporting roles Attorneys General can play in suits other parties spearhead. Namely, State Attorneys General have filed amici briefs in suits filed by municipalities as well as by private parties.

Third, this Note will consider whether State Attorneys General could bring direct actions against gun manufacturers under the PLCAA’s predicate exception. In states that do not afford gunmakers any additional civil protections, Attorneys General may have the opportunity to prosecute actions against gun manufacturers based on unfair or deceptive trade practices. For instance, New York law does not afford civil immunity to gun manufacturers, and the State’s Attorney General can prosecute violations of New York’s unfair trade law. Further, FTC rules or regulations on firearm marketing could potentially overcome gunmakers’ potential defenses under New York law.

Mark W. Smith, 'Wolves and Grizzlies and Bears, Oh My!' - Exploring Contexts for Justice Kennedy's Founding Era Application of the Personal Right to Bear Arms, 46 S. Ill. U. L.J. 467 (2022)

Abstract:

This article focuses attention on an oft-neglected dimension of the individual right to bear arms enshrined in the Second Amendment: the right to self-defense against animals. Although the right to self-defense against criminals and resistance to tyranny have been heavily analyzed as a foundational concern informing the Second Amendment right, the Amendment’s role in protecting people, livestock and crops from animal attacks has been given short shrift. But many of the same concerns that motivated the Founders to keep their guns at the ready for protection from animals, though less in the public eye today, still exist in one form or another.

In the Colonial and Founding eras, defense against wild animal attacks, and protection of home and property against depredation by wild creatures, as well as hunting for sustenance and as a source of income, were some of the most frequent reasons for firearm use.

Though attacks by animals are now rarer than they were, they continue to occur today, and firearms remain a valuable defensive tool against them. And while subsistence and market hunting, common during the Founding period, are less prevalent today, recreational hunting is common, and game still forms an important part of the diet of many Americans and provides a reliable source of high-quality protein.

The importance of the right to bear arms for protection against wild animals in the Founding period confirms that the Second Amendment right was intended to extend beyond the home. The continued need for firearms for self-defense, the protection of crops and livestock, and hunting reaffirms the wisdom of that decision.