Scholarship Highlight: The History of Suicide Prevention, Immigration Exceptionalism, and Innocent Transitory Possession

The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.

This post highlights three new and forthcoming pieces of Second Amendment scholarship.  In an article forthcoming in the Minnesota Law Review, Eric Ruben examines Bruen’s application to laws focused on suicide-prevention and how advances in medical and scientific conceptions of suicide may frustrate historically-focused approaches.  Ruben posits that “early generations of Americans fundamentally misunderstood mental illness and suicide,” complicating the Bruen analysis for modern laws—including extreme risk laws, waiting periods, and safe storage laws—that are intended largely to address the problem of gun suicide.

In a new essay in the Vanderbilt Law Review En Banc, Deep Gulasekaram critiques a recent district court decision upholding the federal ban on gun possession by undocumented immigrants.  The decision in Vazquez-Ramirez, Gulasekaram argues, is an example of "immigration exceptionalism" in that it improperly concludes that gun prohibitions that impact only non-citizens should be subject to a more deferential review under the Second Amendment. 

Finally, in a student note that will be published in the Texas Tech Law Review, Eva Lynch examines “innocent transitory possession” of a firearm in the context of federal status-based prohibitions (for example, a convicted felon who takes possession of a duffel bag assuming it only contains clothes and personal items, but later discovers that the bag also contains a gun).  Lynch identifies a circuit split regarding when and under what circumstances innocent transitory possession is available as an affirmative defense to a 922(g) charge.  She argues that the defense is warranted by both public policy and historical tradition and identifies several avenues for expanding the defense—through Congress, the courts, or the U.S. Sentencing Guidelines. 

Eric Ruben, Scientific Context, Suicide Prevention, and the Second Amendment After Bruen, 108 Minnesota Law Review (forthcoming 2024)



The Supreme Court declared in New York State Rifle & Pistol Association v. Bruen that modern gun laws must be “consistent with this Nation’s historical tradition of firearm regulation” to survive Second Amendment challenges. Scholarship has shown how this test of historical analogy presents difficulties because of how technological, legal, and social change has shaped policy over the centuries. This Article is the first to assess Bruen as it applies to suicide-prevention laws, and in doing so, illuminates another form of change that complicates Bruen’s implementation: scientific progress.

As this Article shows, early generations of Americans fundamentally misunderstood mental illness and suicide, and that misunderstanding influenced societal approaches to suicide prevention. Theories about the causes of suicide and mental illness ranged from the supernatural to the pseudo-scientific; from demonic possession to erroneous views about blood-borne disease. Americans pursued policies and prevention measures consistent with those explanations, such as posthumous criminal punishment and intentional bleeding. Such approaches run counter to what we have learned through modern science are more effective ways to prevent suicide, like psychotherapy, medication, and, importantly for gun policy, restricting access to firearms—the most lethal method commonly used in U.S. suicides.

The state of mental health science at the Founding renders comparisons of past and present suicide-prevention measures pursuant to Bruen’s doctrinal mandate fraught from the get-go. The Article concludes by discussing implications, including suggesting other ways that scientific context informs gun policy that warrant further consideration.

Pratheepan Gulasekaram, Second Amendment Immigration Exceptionalism, 77 Vanderbilt Law Review En Banc 51 (2024)

From the Essay:


Recently, a federal district court in United States v. Vazquez-Ramirez upheld the federal criminal prohibition on firearm possession by unlawfully present noncitizens codified in 18 U.S.C. § 922(g)(5). Vazquez-Ramirez is just the latest in a string of post-New York State Rifle & Pistol Assoc. v. Bruen rulings from lower federal courts upholding that particular provision against Second Amendment challenges. In fact, only one court—the Western District of Texas in United States v. Sing-Ledezma—thus far has struck down the federal “alien-in-possession” ban as violative of the Second Amendment. 

What distinguishes the Vazquez-Ramirez opinion, however, is its explicit immigration exceptionalism. Judge Peterson’s analysis begins by flatly positing that the constitutional test for evaluating § 922(g)(5) is not the same as the standard used for other federal gun restrictions. The dispositive difference, according to the court, was § 922(g)(5)’s focus on immigration status in comparison to the other categorical prohibitions in the federal statute: “Bruen’s new test does not apply to §922(g)(5) in the same way that it applies to other 922(g) provisions . . . because the statute focuses on noncitizens.” Having segregated immigrant gun laws from citizen gun laws, the court applied highly deferential scrutiny instead of mainstream constitutional assessment. In that lax inquiry, the court summarily concluded that banning unlawfully present individuals from firearm possession rationally related to the government’s legitimate interest in reducing crime and ensuring public safety.

Eva Lynch, Take It or Leavitt: The Criminal Consequences of Doing the Right Thing, Texas Tech Law Review (forthcoming 2024) (student note)



Several provisions of 18 U.S.C. § 922(g)—the federal statute prohibiting firearm possession by certain persons—have recently been called into question by the Supreme Court’s reiteration of the history-and-tradition test for government regulations of firearm possession in N.Y. State Rifle and Pistol Ass’n v. Bruen. Bruen established that any law regulating the right to bear arms must be sufficiently based in the Nation’s history and tradition. The statute requires renewed attention both because of Bruen’s history-and-tradition test and because it was enacted in the absence of District of Columbia v. Heller’s interpretation of an individual right to bear arms.

Innocent transitory possession is an affirmative defense to 18 U.S.C. § 922(g) that recognizes the absence of a guilty state of mind where the defendant (1) obtained possession of a firearm unintentionally, (2) possessed it without criminal intent, and (3) took adequate measures to get rid of it. Recognizing innocent transitory possession is necessary post-Bruen because the defense provides a much-needed updated interpretation of the law, ensures that § 922(g) is enforced constitutionally, and furthers the public policy that provoked Congress to enact the law in the first place.

Recognizing innocent transitory possession also preserves defendants’ Sixth Amendment right to present a fair and complete defense, respects established purposes of punishment, and furthers the law’s legislative intent. While § 922(g)(1) only requires a mens rea of “knowingly,” courts are not precluded from further inquiry into defendants’ intent in possessing a firearm; the function of mens rea requirements in general demand that defendants only be convicted where they commit a crime with a guilty mind.

Innocent transitory possession can be recognized in three ways: the legislature can amend the law to include innocent transitory possession as an affirmative defense; courts can independently recognize innocent transitory possession; or the United States Sentencing Commission can amend the Guidelines in conjunction with Congress to reflect the elements of innocent transitory possession in base offense level reductions. This Article explores the necessity of recognizing innocent transitory possession as well as the pros and cons of the three solutions explained above.