Scholarship Highlight: Civil Liability for Gun Manufacturers, Early American Court Reporting, and Case-by-Case Dangerousness

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

In a new article that will be published in the Yale Law Journal Forum, Heidi Li Feldman examines the recent wave of state nuisance statutes specifically written to fall within PLCAA’s predicate exception and pre-enforcement challenges to those laws by the firearms industry.  Feldman argues that “the right to keep and bear arms is not connected to commerce in arms” and that these new-wave statutes satisfy Bruen’s historical-analogical test. 

I have a new essay forthcoming in the Duke Law Journal Online that assesses early American court reporting practices and how gaps in the record of decisional law—especially from the Founding Era—may present challenges for Bruen­-style originalism and its focus on the lack of judicial scrutiny of historical laws. 

Last but not least, in an article for the Texas Tech Law Review, F. Lee Francis argues for a narrow construction of the historically-supported dangerousness limitation on Second Amendment rights.  Francis contends that a fact-specific inquiry into dangerousness is necessary in individual cases, with judges examining  whether there is “demonstrable evidence that a person poses a significant and imminent risk of causing public injury."

Heidi Li Feldman, What It Takes to Write Statutes that Hold the Firearms Industry Accountable to Civil Justice, Yale Law Journal Forum (forthcoming 2024)

Abstract:  This Essay defends statutes that create public nuisance and consumer protection causes of action against firearms industry actors for their failure to take reasonable measures to control the flow of their products to criminal users. I show how such laws qualify as predicate statutes under The Protection of Lawful Commerce in Arms Act (PLCAA). Furthermore, though some courts may be tempted to use challenges to such statutes to further expand the reach of the Second Amendment, I explain that these statutes neither implicate nor infringe the constitutional right to bear arms, not even under the test adopted by the U.S. Supreme Court in New York State Rifle & Pistol Ass’n v. Bruen.

Andrew Willinger, Missing Pieces: Gaps in the Record of Early American Decisional Law, Duke Law Journal Online (2024)

Abstract:  In its most recent major Second Amendment decision, NYSRPA v. Bruen, the Supreme Court suggested that historical laws “rarely subject to judicial scrutiny” are not especially illuminating because “we do not know the basis of their perceived legality.” Legal scholars have defended Bruen’s approach to historical evidence in part by arguing that the decision requires merely an artificially-limited historical inquiry into internal legal sources to discern overarching principles accepted across the country in the Founding Era. But modern-day lawyers and judges actually know far less than they might believe about whether certain laws were subject to judicial scrutiny during crucial eras of American history because many court decisions—especially from the Founding Era—were simply never recorded for posterity. Those omissions were not random and they do not represent merely what we today would consider insignificant holdings. Rather, omissions from the surviving record of decisional law are the product of curation by early court reporters, newspaper editors, and other actors often motivated by profit or partisan bias. Therefore, it is often perilous to extrapolate “the general law” from the extant, unrepresentative caselaw that happens to be preserved today.

This Essay examines how the non-legal choices and preferences of those who recorded early American decisional law prior to the gradual emergence of more consistent reporting of judicial decisions in the late 19th century shaped the historical record of early decisional law that exists today. Part I chronicles the largely inconsistent and at times chaotic practice of court reporting at and after the Founding and explores how judicial decisions were preserved and published during that time. Part II addresses how modern originalist theories should approach and appreciate the “curated” nature of legal history from that time. I argue that the record of early American decisional law has been profoundly influenced by various actors (legal and non-legal) according to considerations other than preserving an accurate, comprehensive snapshot of “general law” at the time—namely, based on motives including profit and partisanship. This reality, I suggest, means that it is crucial to expand the universe of historical sources when possible to capture what may be missing from the universe of preserved decisional law.

F. Lee Francis, Defining Dangerousness: When Disarmament is Appropriate, Texas Tech Law Review (forthcoming 2024) 

Abstract:  This paper argues that while dangerousness as a limitation on one’s right to bear arms does comport with the history and tradition of the Second Amendment, such a limit must be narrowly defined. This paper attempts to provide a concrete and practical test for determining when an individual is so dangerous that the right to bear arms should be curtailed. Many courts have simply relied on the word “dangerous” to prohibit an individual from possessing or owning firearms. I argue that more is needed. The relevant inquiry centers on illicit use and imminent danger. That is, do the facts and circumstances prove that an individual is in fact a danger. To put it another way, disarmament is appropriate when there exist demonstrable evidence that a person poses a significant and imminent risk of causing public injury.