Scholarship Highlight: Fourth Amendment Implications, Armed-Group Analogues, and Historical Principles

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

In an article they initially presented at the Center’s 2024 Firearms Law Works-in-Progress Conference hosted at Duke Law School, Peter Salib and Guha Krishnamurthi explore the tension between Second and Fourth Amendment doctrine and the fact that criminal procedure cases often treat gun carrying as an inherently dangerous activity justifying police intrusion.  Salib and Krishnamurthi assess how courts might “preserve Terry for the police’s sake without implying that Heller and McDonald (and Bruen) were wrongly decided,” and they ultimately conclude that Rahimi provides a way to do so by “allow[ing] courts reviewing firearms regulation more flexibility and plasticity than a plain reading of Bruen would suggest.”

In a new article in the Alabama Law Review, Mark Frassetto argues that historical laws enacted to combat the risk of mass violence by armed groups—including lynch mobs, rioters, and private militias—should serve as analogues for some modern “class of arms” restrictions.  According to Frassetto,

These laws were intended to preempt mass violence by making the means—armed groups—illegal even absent any turn to violence. Today’s prohibitions on large-capacity magazines and assault weapons are aimed at the same principle: prohibiting the means of committing mass violence.

And Jamie McWilliam has an article forthcoming in the William & Mary Bill of Rights Journal asserting that the relevant principle underlying historical gun regulation—the "core" principle the Court references in Rahimi—is the “principle of defense of self and community, which traces its lineage back to classical thinkers like Aquinas and Grotius.”  McWilliam then proceeds to examine how that principle cuts in specific Second Amendment cases.

Peter N. Salib and Guha Krishnamurthi, Will Bruen Kill Cops?, 93 Fordham L. Rev. Online 11 (2024)

Abstract:

Criminal procedure is a balancing act. On one hand, it must allow law enforcement officers to protect the public and themselves. On the other hand, criminal procedure must safeguard citizens’ individual constitutional rights—privacy, physical liberty, and bodily integrity. And now, the right to bear arms.

There is a serious tension here. Landmark Fourth Amendment cases like Terry v. Ohio, Pennsylvania v. Mimms, and Chimel v. California give the police wide latitude to seize firearms on the assumption that guns are dangerous. But these doctrines largely evolved before the Second Amendment’s ascendance. In District of Columbia v. Heller, the U.S. Supreme Court first recognized that the Second Amendment protects an individual right to possess firearms. And more recently, in New York State Rifle & Pistol Ass’n v. Bruen, the Court substantially expanded the scope of that right.

Thus, the tension: the Fourth Amendment treats firearms as inherently dangerous, subject to regulation on the basis of such dangerousness alone. But Second Amendment doctrine now explicitly rejects that assumption, enshrining a right to possess firearms unless one of a few non-firearms-related risks is present. In this Essay, we argue that something has to give: either Second Amendment rights will have to give way to officer and public safety, or traditional Fourth Amendment doctrines protecting the police and public will fall to the expanding Second Amendment. We expect the Court to prioritize police discretion to protect themselves and the public. But, we argue, such police exceptionalism is doctrinally difficult to justify without also justifying a much broader range of gun regulations.

Mark Anthony Frassetto, Mass Violence and the Second Amendment: Analogizing Historical Prohibitions on Armed Groups to Modern Prohibitions on Assault Weapons and Large-Capacity Magazines, 76 Ala. L. Rev. 79 (2024)

Abstract:

In the two years since the Supreme Court decided New York State Rifle & Pistol Ass’n v. Bruen, one of the most high-profile ongoing areas of Second Amendment litigation has been cases challenging the constitutionality of prohibitions on assault weapons and large-capacity magazines. Challenges to these laws are especially significant because assault weapons and large-capacity magazines are almost always used in the highest fatality mass shootings. Because Bruen mandated a history-focused analysis in Second Amendment cases, much of this litigation has focused on whether historical prohibitions on weapons like bowie knives or billy clubs and regulations on practices such as gunpowder storage and the concealed carry of firearms provide sufficient historical analogues to justify the modern prohibitions. This Article offers a new historical analogue for modern prohibitions on assault weapons and large-capacity magazines— prohibitions on armed groups.

How mass killings have historically occurred differs from the present day. While today most killings of four or more people are committed by a single person with a firearm, before the twentieth century, that was often not the case. Instead, mass killings tended to be the result of violence perpetrated by armed groups. In response to group mass violence, both the common law and many state statutes prohibited armed groups, sometimes directly declaring them illegal and other times declaring armed groups unlawful assemblies or riots. Later, states would also prohibit private militia organizations, armed assemblies, and armed marches to limit the ability to assemble a force capable of causing mass violence. Today’s prohibitions on large-capacity magazines and assault weapons are aimed at the same principle: prohibiting the means of committing mass violence.

New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court commanded the lower courts to look at whether historical regulations “impose[d] a comparable burden on the right of armed self-defense and whether that burden is comparably justified,” and in United States v. Rahimi, the Supreme Court said that courts should look to whether a “challenged regulation is consistent with the principles that underpin our regulatory tradition.” Historical restrictions on armed groups imposed a similar burden on armed self-defense as modern prohibitions on large-capacity magazines and assault weapons in that they regulated the amount of force a person (or group of people) could assemble. Similarly, like modern regulations on large-capacity magazines, prohibitions on armed groups were intended to prevent the same kinds of mass casualty events. While prohibitions on semi-automatic firearms and magazine capacity, unsurprisingly, did not exist during the Founding Era or the Early Republic, given the gun technology at the time, similar concerns about mass violence did lead to regulations that imposed similar burdens on armed self-defense. These regulations provide important historical analogues justifying modern restrictions on weapon lethality.

Jamie G. McWilliam, Second Amendment Principles, 33 Wm. & Mary Bill Rts. J. (forthcoming 2025)

Abstract:

In United States v. Rahimi, the Supreme Court explained that firearm regulations “must comport with the principles underlying the Second Amendment.” This Article examines what those principles are, how to derive them, and how to apply them in concrete cases. It begins with the Second Amendment’s core principle of defense of self and community, which traces its lineage back to classical thinkers like Aquinas and Grotius. The tradition of firearm regulation that surrounded the adoption of the Second Amendment depended on this fundamental principle. But it also developed subsidiary principles that implement the defense principle in specific ways. This Article analyzes a spectrum of these historical laws from the colonial through the antebellum periods and extracts the “principles that underpin our regulatory tradition.”

While the Court’s explicit direction to rely on these principles is new, its entire line of Second Amendment caselaw, from Cruikshank to Rahimi, engages with them at some level. Implementing these principles as the Court has provides a robust framework for adjudicating contemporary Second Amendment challenges. This Article provides examples of how to apply these principles in cases involving concealed carry regulations, “assault weapons” bans, and felon-in-possession laws. And looking forward, this Article argues that courts need only grapple with the Second Amendment’s fundamental defense principle to understand the “historical tradition of firearm regulation” that now determines the scope of our Second Amendment rights.