Scholarship Highlight: Articles from the Minnesota Law Review’s Recent Symposium
The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.
The Minnesota Law Review has just published a set of articles on the Second Amendment and gun regulation that written for the journal’s Fall 2023 Symposium, Aiming for Answers: Balancing Rights, Safety, and Justice in a Post-Bruen America.
The articles cover topics including doctrinal development post-Bruen, age restrictions, the relevance of scientific advances under the Bruen framework, and the racial dimensions of gun crime and alternatives to aggressive incarceration for gun offenders. You can access the articles through the links below or directly on the journal’s website here.
Jacob D. Charles, Firearms Carceralism, 108 Minn. L. Rev. 2811 (2024)
Abstract:
Gun violence is a pressing national concern. And it has been for decades. Throughout nearly all that time, the primary tool lawmakers have deployed to stanch the violence has been the machinery of the criminal law. Increased policing, intrusive surveillance, vigorous prosecution, and punitive penalties are showered on gun offenders. This Article spotlights and specifies this approach—what it calls “firearms carceralism”—and details how a decades-long bipartisan consensus generated a set of state-centered solutions to gun violence that has not meaningfully impacted the problem. Instead, those policies have exacerbated racial inequity and compounded civic and community harms.
The Article traces the escalating punitive measures imposed on gun offenders over the past half century. It first peers down into one microcosmic exemplar of firearms carceralism etched into federal mandatory minimum provisions and Supreme Court case law magnifying those penalties. It describes how criminal justice reforms have traditionally excluded those whose offenses are categorized as violent, and specifically and emphatically those who offend with guns by their side. It then draws out promising hints of a path to including gun offenders in efforts to reform or reimagine the criminal legal system.
Most fundamentally, however, the Article wages a sustained critique of the system of firearms carceralism that fronts aggressive law enforcement and draconian terms of incarceration. It describes the unjustifiable breadth and depth of these practices and the harmful, racialized, and exclusionary values they simultaneously draw from and reinscribe.
Finally, the Article argues in favor of three alternative paths to equitable peace and safety. First, it outlines private sector steps to, for example, dampen illicit firearms supply. Second, it highlights civil legal interventions like red flag laws and tort lawsuits against irresponsible gun sellers. Third, and most prominently, it underscores the promise of community violence intervention and restorative justice programs to bring meaningful safety apart from the carceral tools of coercive control.
Cynthia Lee, Firearms and the Homeowner: Defending the Castle, the Curtilage, and Beyond, 108 Minn. L. Rev. 2889 (2024)
Abstract:
In the spring of 2023, a series of back-to-back shootings shook the nation. A Black teenager in Missouri trying to pick up his two younger siblings went to the wrong door and rang the doorbell. The homeowner came to the door with a gun and, without saying a word, fired two shots at the Black teenager, hitting him in the face and the arm. A few days later, a Caucasian woman and her friends in upstate New York, looking for a party, drove up the wrong driveway. The homeowner came out of his house with a shotgun and fired two shots at the car; one of those shots killed the woman. That same day in South Florida, two Instacart delivery shoppers were having trouble finding a customer’s home and mistakenly pulled up onto the wrong property. As they were trying to leave, the homeowner came out of his house and fired three shots at them, hitting the car. A few nights later, a cheerleader got into a car in a supermarket parking lot in Texas, thinking it was her own. Startled when she saw a man she didn’t know in the passenger seat, she went back to her friend’s car, then realized she had gotten into the wrong car. The man who was in that car shot the cheerleader and one of her friends as she was trying to apologize to him.
When we think of gun violence, we usually think about mass shootings or drive-by shootings by gang members. We don’t expect to get shot if we knock on the wrong door or get into the wrong car. Recently, the United States has seen a marked increase in gun violence initiated by homeowners and other individuals attempting to protect their property. Regardless of whether these tragic events were the result of ringing the wrong doorbell or driving up the wrong driveway, many people may be surprised to learn that the individuals pulling the trigger may not be held criminally liable for their actions if they are in a state with a relaxed form of a little-studied criminal law defense called the defense of habitation that allows homeowners and others to use deadly force in defense of their homes, cars, and workplaces, even if they are not being threatened with deadly force. This Article examines the defense of habitation and issues of accountability arising from the use of deadly force by homeowners and others who can utilize this defense.
Megan Walsh & Saul Cornell, Age Restrictions and the Right to Keep and Bear Arms, 1791–1868, 108 Minn. L. Rev. 3049 (2024)
Abstract:
The disproportional misuse of firearms by eighteen-to-twenty-year-olds has long been a problem in America. The concerns are not novel. Nor are legislative responses to this problem a recent development in American law. These limitations are deeply rooted in American legal history.
While minimum age gun laws routinely survived constitutional challenges before the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, the majority of courts applying Bruen have struck down firearms restrictions based on age. Bruen fundamentally altered the way courts evaluate the constitutionality of firearms regulations, requiring them to judge modern gun laws based on history, text, and tradition. As Bruen requires, courts have turned to history to adjudicate these challenges. Unfortunately, many courts have discounted the relevant history and tradition.
At the time of the Founding, individuals under the age of twenty-one were viewed as lacking sufficient judgment to make responsible decisions. These individuals, categorized as “infants” at the time, were unquestionably not full members of the political community. Their ability to contract was limited, which prevented them from obtaining arms without the assistance of parents or guardians. Although those under the age of twenty-one served in the militia, statutes mandating militia service do not demonstrate a right to keep and bear arms outside of militia service. Instead, these statutes demonstrate the government’s power over eighteen-to-twenty-year-olds, and represent the obligation of minors to serve, not an independent right to possess firearms.
The nation’s tradition of regulating firearms based on age expanded after the Founding. By the time of the adoption of the Fourteenth Amendment, such regulations were commonplace and widely viewed as a core exercise of state and local police power. Bruen’s directive that modern-day firearms regulation must be guided by history supports limits on minors’ access to deadly weapons.
Anglo-American law has always countenanced restrictions based on age, and recent developments in neuroscience have vindicated historical wisdom on this matter. Brain development of eighteen-to-twenty-year-olds is incomplete, a fact that limits their ability to evaluate risk and heightens their inclination to make reckless decisions. Indeed, while our understanding of the place of women and minorities in society and the political community has rightfully transformed since the time of the Founding, the view of teenagers’ limited capacity to make responsible decisions has not changed, but, instead, has been bolstered by scientific development. Applying Bruen’s analytical framework to these facts leads to the conclusion that modern-day firearm regulations based on age are justified by history, text, and tradition.
Eric Ruben, Scientific Context, Suicide Prevention, and the Second Amendment After Bruen, 108 Minn. L. Rev. 3121 (2024)
Abstract:
The Supreme Court declared in New York State Rifle & Pistol Ass’n 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 are far afield from the more effective ways to prevent suicide that we have developed through modern science 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.
Brannon P. Denning & Glenn H. Reynolds, Trouble’s Bruen: The Lower Courts Respond, 108 Minn. L. Rev. 3187 (2024)
Abstract:
New York State Rifle & Pistol Ass’n v. Bruen revolutionized the understanding of how Second Amendment cases are to be adjudicated. Rejecting the tiered-scrutiny analysis around which the lower courts had coalesced since the 2008 Heller decision, the Court instructed courts to look to history and tradition after it was determined that state or federal regulations limited activities that fell within the protections afforded by the Second Amendment’s text. Justice Thomas’s opinion, however, left open significant questions about how the history-and-tradition method is to operate in practice. The Court recently held oral arguments in United States v. Rahimi, in which the justices will have an opportunity to provide answers to some of those questions, should it choose to do so. In many ways, Rahimi is a good vehicle for the Court to fill in the lacunae created by Bruen, which the lower courts have struggled with in the last two years. Using Rahimi as our point of departure, we will summarize the case, highlight what we think are the significant open questions the Court should address, and then look at how the courts of appeals have answered those questions. While our approach here is largely descriptive, we do include some opinions about what the correct answers to those open questions are.
Daniel S. Harawa, The Second Amendment’s Racial Justice Complexities, 108 Minn. L. Rev. 3225 (2024)
Abstract:
The relationship between the Second Amendment and racial justice is complicated. That’s because the relationship between pe- nal administration and racial justice is complicated. The briefing in New York State Rifle & Pistol Association v. Bruen perfectly proves this point. A group of public defenders favored striking down New York’s concealed carry licensing law to further racial justice, while a group of civil rights organizations argued that the law should be upheld to further racial justice. What the briefing revealed is that Black people have an interest in being free from racially disparate policing and prosecution of all criminal laws, including gun laws. But Black people also have an interest in being safe from gun violence, which they are disproportionately victims of—both at the hands of private citizens and police. Bruen ignored these interests when it announced a “history and tradition” test for judging the constitutionality of gun laws, a test that disempowers Black people by tying the constitutionality of gun regulation to a time when Black people were not fully part of the polity. In so doing, the Court frustrated another racial justice interest: the democratic interests of communities of color to regulate firearms in a manner they best see fit. When “aiming for answers,” we must acknowledge the racial justice complexities that arise in the context of gun regulation, and propose solutions that promote Black people’s interests in liberty, safety, and self-governance.