This highlight focuses on recently-published pieces of law student scholarship. With the end of the academic year, we are going to run a short series highlighting new student notes on firearms-related topics.
First, a note by rising third-year student Morgan Band in the Fordham Law Review evaluates the “Concealed Carry Improvement Act” that New York passed shortly after Bruen and considers First and Second Amendment objections to various provisions of that law. Band proposes that the state address these concerns by “[h]aving experts create a list of criteria for licensing officials to use” and imposing higher evidentiary burdens to deny a permit application, thus “limit[ing] licensing officials’ discretion.” Specifically, Band suggests rewriting the “good moral character” requirement to “[g]rant a permit to every individual except those who are found to have improper character,” requiring the licensing official to find by “clear and convincing evidence” that the applicant poses a danger before denying a permit application based on social media accounts and other submitted materials, and allowing applicants to present evidence in their defense to rebut such a finding.
Second, a student note by 2023 J.D. candidate Brandon Raynes just published in the South Dakota Law Review evaluates the argument that the United States should adopt elements of Australian firearms regulation. Raynes argues that “the right to own firearms within the United States is justifiably supported in light of jus cogens norms to be free from government tyranny and the imposition that individuals have a nonnegotiable right to self-defense.” The note chronicles efforts to adopt elements of stricter gun regulatory frameworks (such as Australia’s) in the U.S., argues that these efforts have been unsuccessful, and ultimately endorses codification of what Raynes terms a “jus cogens norm” that “individuals [should be allowed] to possess firearms as a basic human right.”
Morgan Band, Don’t Pull the Trigger on New York’s Concealed Carry Improvement Act: Addressing First and Second Amendment Concerns, 91 Fordham L. Rev. 1943 (2023)
Despite the increasing prevalence of mass shootings in the United States, the U.S. Supreme Court in New York State Rifle & Pistol Ass’n, Inc. v. Bruen struck down a 100-year-old New York statute that had restricted access to concealed carry permits. The statute had required applicants to demonstrate a “proper cause” for needing a concealed carry permit. But even if an applicant made the necessary showing, licensing officials retained discretion under the statute to decline to issue a permit. In striking down the statute, the Court distinguished between “may-issue” jurisdictions, such as New York, which give licensing officials discretion in issuing permits, and acceptable “shall-issue” jurisdictions, which automatically issue permits if applicants satisfy the statutory criteria. New York responded to this decision by removing the “proper cause” showing from its licensing regime and enacting the Concealed Carry Improvement Act, which imposed additional requirements. These requirements include having applicants turn over access to their social media accounts to determine if they have “good moral character.”
These new requirements raise First and Second Amendment concerns, including the difficulty of determining if a particular social media post is troublesome, the uncertainty of deciding the type and number of online posts that should suffice as adequate evidence of future danger, and whether other activities on social media platforms–such as “liking” a post–should be considered. This Note begins by examining the legal background of the First and Second Amendments before discussing the debate surrounding how to balance these constitutional rights with protecting public safety. It concludes by suggesting how New York and other states can address these concerns, comport with Bruen, and allow for stronger gun control legislation to prevent additional tragedies from occurring.
Brandon Raynes, The Shot Heard Around the Outback: Why Adopting Australia’s Firearm Laws Would Flout American Constitutionalism and Jus Cogens Norms, 68 S.D. L. Rev. 133 (2023)
Ever since the infamous Port Arthur massacre, Australia has not only lacked mass shootings, but has seen a dramatic decline in firearm-related homicides nationwide following a significant overhaul in its gun laws. As a result, legal commentators, political pundits, and scholars from around the globe have consistently argued that the United States is missing out on crucial gun law reforms that Australia implemented without any noticeable recourse. These reforms included, among other things, gun ownership licensure, a national firearm registry, and a ban on “military-style” weapons, such as assault rifles. Nevertheless, the contention that the United States ought to either adopt or substantially mirror the radically imposed firearm laws of Australia is based on a precarious misunderstanding of American constitutionalism and a blatant example of “jumping the gun” on policy reform as a whole. Moreover, as this article will defend, the right to keep and bear firearms should evidently be viewed as a fundamental predicate of international jus cogens norms, including the individual right to self-defense and the imperative that citizens ought to have the unfettered ability to rebel against a tyrannical government. Therefore, not only should the United States be the nation that sets the global standard for firearm policy, but the argument that it should change its ways in comparison to Australia must suitably be put to rest, once and for all.