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Scholarship Highlight: Federal Firearms Crimes, Product Safety Regulations and the Quaker Role in Second Amendment Debates

  • Date:
  • June 1st, 2023

By: Andrew Willinger

In a new article that is forthcoming in the University of Pennsylvania Journal of Constitutional Law, Brandon Beck seeks “to create a holistic framework for thinking about the modern federal approach to firearms by situating it, historically and conceptually, as a fundamentally distinct era within the larger story of federal firearms criminalization.”  Beck separates the history of federal firearms criminalization into four distinct eras— the Interwar Period, the 1960s Reforms, the Reagan Era, and the Federal War on Guns—and argues that recent judicial decisions represent the beginnings of a fifth “act” that is “push[ing] back on the federal government’s unfettered ability to enforce its most potent and prevalent firearms law.”  In concluding, Beck observes that, “[i]f Bruen is not limited by a new Supreme Court case, it appears to be veering toward a dismantling of the federal firearms scheme."

Benjamin Cavataro, in a new paper that is forthcoming in the George Washington Law Review, argues that “Congress should empower the [Consumer Product Safety Commission] to regulate the safety of guns as products, without granting the Commission authority over ‘gun control’ as traditionally understood.”  The paper traces the history of the gun and ammunition exception to the CPSC’s regulatory scope, proposes applying CPSC’s ordinary product-safety approach to the gun industry (including mandatory reporting of manufacturing defects and product-safety standards), and argues that such an approach is consistent with Bruen—either because “conditions and qualifications on the commercial sale of arms” are carved out by Heller, or because historical proving laws and other measures designed to ensure that manufactured guns functioned properly serve as analogues.

Finally, in an essay recently published in the University of Detroit Mercy Law Review, Dru Stevenson examines an interesting historical figure who was involved in debates at the Constitutional Convention about a proposed “religiously scrupulous” exemption—or conscientious objector clause—ultimately dropped from the Second Amendment.  Stevenson’s paper “focuses on William Rotch, a prominent Quaker merchant from Nantucket, as an example of the complex legal and political issues that the Quakers posed for the Framers, which in turn may help illuminate the original public meaning of the Second Amendment.”

Brandon Beck, The Federal War on Guns: A Story in Four-and-a-Half Acts, 26 U. Pa. J. Const. L. _ (forthcoming)

Abstract:

Beginning in the early 1990s, the Executive Branch took a novel approach to the enforcement of federal firearms offenses. It replaced traditional notions of restraint with a newfound willingness to exercise its power broadly, leading to a sharp increase in the number of federal firearms offenders that continues today. A recent development, however, threatens to dismantle the core of the federal firearms scheme. Decided in 2022, the effects of New York State Rifle & Pistol Association, Inc. v. Bruen are already being felt. Several courts, including one circuit court, have already struck down a potpourri of federal firearms statutes. This trend may continue to gain momentum or it may be stopped in its tracks by a new Supreme Court decision that places limits on Bruen. But it is unlikely to fizzle out on its own.

This article seeks to understand these recent events as distinct modern phenomena. To do so, it creates a holistic, conceptual framework that situates the developments of the last thirty years within the broader, global history of the federal government’s approach to firearms crime. The framework organizes the story of federal firearms policy into a series of conceptual narrative clusters—or acts—each with its own characters, conflicts, and shared views about the role of law in society. Through this framework, themes and trajectories emerge, shedding valuable light on our understanding not only of where we are and where we have been, but also of where we are going in our federal approach to firearms crime. As the first article that paints a comprehensive picture of federal firearms policy in this way, and as one of the first to address the emerging post-Bruen legislation, it will also add structure, focus, and energy to important ongoing scholarly discussions.

Benjamin L. Cavataro, Regulating Guns as Products, 92 Geo. Wash. L. Rev. _ (forthcoming 2024)

Abstract:

Toy guns are subject to federal product safety regulation. Real guns are not. If a defect in an air rifle causes it to discharge without warning, the manufacturer would be required to promptly notify a safety regulator (the Consumer Product Safety Commission); to recall the air rifle; and to provide a repair, replacement, or refund to consumers. Yet when such defects occur in real guns, the firearms industry has no such obligation. This unique immunity from product safety regulation allows gun defects to go unremediated for far too long. The result is tragic: needless deaths and injuries of police officers, ordinary gun owners, children, and bystanders.

This article argues that the status quo is unacceptable, and proposes a clear, workable solution. Congress should empower the Commission to regulate the safety of guns as products, without granting the Commission authority over "gun control" as traditionally understood. This approach resolves the inadequacies of industry self-regulation, tort, and state consumer law; appropriately leverages the existing Consumer Product Safety Act framework; and is consistent with the Commission’s longstanding oversight of holsters, gun locks, and gun safes. Under this approach, the firearms industry would be obligated to report safety defects, recall dangerously defective firearms, and offer remedies to consumers. The Commission could also consider adopting common-sense product safety standards (such as regulations to ensure that new firearms have functional safety devices, and do not discharge without a trigger pull), just as the Commission adopts safety standards for many other consumer products. But the Commission would be precluded from regulating guns to curtail gun violence or suicide, or to reduce guns’ prevalence.

This approach is fully compatible with the Second Amendment in light of New York State Rifle and Pistol Association v. Bruen (2022). And lifting the firearms industry’s immunity from product safety law—thereby regulating guns as products—has helpful implications for broader debates on gun law and policy. By establishing that Commission regulation could simultaneously protect the public from harm and facilitate the right to lawful self-defense, this Article’s proposal demonstrates that some gun regulations can concurrently respect gun rights, uphold consumers’ rights, and protect lives—and, in doing so, reveals fissures between the interests of the gun industry and gun owners.

Dru Stevenson, William Rotch and Second Amendment History, 100 U. Det. Mercy L. Rev. 413 (2023)

Abstract:

The Supreme Court held in NYSPRA v. Bruen that courts must decide Second Amendment cases based on the text of the Amendment and the history surrounding it. The Congressional debates about what became the Second Amendment revolved around the Quakers and a clause in the original version that exempted Quakers and other religious pacifists from military service.

In the Founding Era, William Rotch was one of the most prominent American Quakers, as his family enterprise had a virtual monopoly over the country’s whale oil industry. Rotch was well-known to many of the Founders, and at various points throughout his career had feuds with John Hancock, Thomas Jefferson, and John Adams. Rotch and his brother owned the ships that were stormed in the Boston Tea Party; Rotch was summoned before a revolutionary tribunal because he sank a boatload of desperately needed bayonets at sea to prevent their use in the war; and he faced treason charges over his attempt to declare his home island of Nantucket neutral or independent during the war. He was in France during the French Revolution, and he spent his last years building the town of New Bedford and advocating for the abolition of slavery. William Rotch exemplifies the plight of the Quakers in the early republic, as well as the fears, concerns, and resentments many members of Congress harbored about the Quakers as they debated the clause in the Second Amendment that related to the sect. Rotch’s story is important for enriching our understanding of the historical context and public meaning of many important legal texts from the Founding era.