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Student Note Scholarship Highlight: The Modern Relevance of the Militia, and a Proposal to Close the "Boyfriend Loophole"

  • Date:
  • June 7th, 2023

By: Andrew Willinger

This post is the second in our mini-series highlighting recent law student notes on firearms law topics (see the initial post here).  

William Reach of William & Mary Law School has written a note for the William & Mary Bill of Rights Journal evaluating the continued relevance of Miller, Presser, and a militia-related right to keep and bear arms.  Reach argues that “elements of the collective right live on in Presser and Miller, with profound and relevant influence on modern gun regulation and the readiness of the modern militia member and soldier.” 

Recent Maine Law graduate Cecilia Shields-Auble examines “the shortcomings of Congress’s efforts to close the boyfriend loophole through the Violence Against Women Reauthorization Act and the Bipartisan Safer Communities Act” in a new Comment in the Maine Law Review.  Shields-Auble argues that the Bipartisan Safer Communities Act’s effort to capture dating partners within domestic-violence prohibitions was inadequate and “failed to provide the context necessary for it to be an effective mechanism of determining which relationships trigger the firearm prohibition.”  Instead, Shields-Auble proposes amending federal law to define “misdemeanor crime of domestic violence” as “an offense that is a misdemeanor under Federal, State, Tribal, or local law and involves conduct or a course of conduct intended to exert power and control over the victim.” 

William Reach, The Collective Right Endures: Pre-Heller Precedent and Our Understanding of the Modern Second Amendment, 31 Wm. & Mary Bill Rts. J. 607 (2022)

Abstract:

Prior to 2008, legal scholars who examined the Second Amendment fell roughly into two camps: those who believed “the right of the people to . . . bear arms” only covered state militias, and those who believed it extended to individual citizens.

After District of Columbia v. Heller conclusively established that the “Second Amendment conferred an individual right to keep and bear arms," discussion of the collective right to bear arms largely receded from public discussion and most litigation surrounding the Second Amendment shifted to define the outer edges of the individual right. But the pre-Heller showdown between these competing viewpoints did not fully encompass or address the nuances of federal precedent. Although the credits may have rolled on the collective versus individual right discussion in the public forum, it left much undiscussed in defining the scope of the Second Amendment.

This Note argues that the dichotomous split in opinion over the Second Amendment pre-Heller led both camps of scholars to overlook particularly important aspects of the collective right that survived Heller in federal precedent through two cases: Presser v. People of the State of Illinois and United States v. Miller. Because Presser and Miller are binding precedent, their holdings still offer insight into our modern understanding of the Second Amendment. Taken together, Presser and Miller clearly and expressly limit the federal government’s ability to regulate firearms when state governments can show a reasonable relationship for militia purposes. These cases essentially give individuals and states a justification to challenge federal assault weapons bans and other regulations, so long as the parties can present a reasonable relationship to a militia function. They also suggest limitations on the reach and extent of the modern individual right by reinforcing traditional areas of state firearm regulation. Although Presser and Miller do not sit neatly within the bounds of the pre-Heller arguments, these cases represent surviving aspects of the collective right framework that have relevant, modern, and practical uses in shaping our use of the Second Amendment.

Cecilia Shields-Auble, What's Love Got To Do With It? Redefining Domestic Violence to Close Federal Firearm Loopholes, 75 Me. L. Rev. 187 (2023)

Abstract:

Closing the “boyfriend loophole” by expanding the definition of a misdemeanor crime of domestic violence to include the abuse of “dating partners” further entrenches the law into an unworkable quasi-marital framework rooted in an antiquated understanding of domestic violence. The federal firearm prohibition would more effectively target high-risk offenders if 18 U.S.C. § 921(a)(33)(A) were revised to eliminate the quasi-marital framework and reflect a modern understanding of the power and control dynamics involved in intimate partner violence.

This Comment begins by summarizing the emergence of federal domestic violence law and describing the limitations of the Lautenberg Amendment. It then examines the shortcomings of Congress’s efforts to close the “boyfriend loophole” through the Violence Against Women Reauthorization Act and the Bipartisan Safer Communities Act. Next, this Comment argues the merits of abandoning the quasi-marital framework entirely by explaining the already broad support that the institution of marriage receives from the American legal system, the unfortunate historical link between marriage and domestic violence, and the stark reality that relationship status does not determine the risk of domestic violence or femicide. It also contends that current law inaccurately criminalizes domestic violence; specifically, that it makes little sense to separately prosecute stalking and domestic violence when the typical femicide case involves a cyclical pattern of both physical and non-physical abuse, including stalking, intended to exert power and control over the victim. Finally, this Comment concludes by proposing a modernized definition of a misdemeanor crime of domestic violence that sheds the quasi-marital framework, imports the “course of conduct” language from stalking statutes, and extends to both physical and non-physical abuse. It also offers a new standard for evaluating the relationship requirement which courts can implement through jury instructions in the absence of legislative innovation.