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  • Mar 2024
  • 23 Pages

In its most recent major Second Amendment decision, New York State Rifle & Pistol Association 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...

  • Oct 2023
  • 15 Pages

Academic work is increasingly important to court rulings on the Second Amendment and firearms law more generally. This article highlights two recent trends in social science research that supplement the traditional focus on guns and physical harm. The first strand of research focuses on the changing ways that gun...

  • Aug 2023
  • 53 Pages
  • Last Revised: 14 Aug 2023

Historical facts are more central to constitutional litigation than ever before, given the Supreme Court’s increasing reliance on originalism and other modes of interpretation that invoke historical practice and tradition. This raises a central tension. The case for originalism has rested largely on its being...

  • Aug 2023
  • 50 Pages

In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court mandated a text, history, tradition, and analogy-only approach to Second Amendment cases.No longer can policymakers rely on empirical data alone to carry their litigation burden. Now such data must conform to a still-emerging...

  • Jul 2023
  • 35 Pages
  • Last Revised: 16 Aug 2023

In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court mandated a text, history, tradition, and analogy-only approach to Second Amendment cases.No longer can policymakers rely on empirical data alone to carry their litigation burden. Now such data must conform to a still-emerging...

  • Jul 2023
  • 35 Pages
  • Last Revised: 1 Aug 2023

In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court mandated a text, history, tradition, and analogy-only approach to Second Amendment cases.No longer can policymakers rely on empirical data alone to carry their litigation burden. Now such data must conform to a still-emerging...

  • Apr 2023
  • 72 Pages
  • Last Revised: 18 Jul 2023

In New York State Rifle & Pistol Association v. Bruen, the Supreme Court held that the constitutionality of modern gun laws must be evaluated by direct analogy to history, unmediated by familiar doctrinal tests. Bruen’s novel approach to historical decisionmaking purported to constrain judicial discretion, but...

  • Apr 2023
  • 30 Pages
  • Mar 2023
  • 68 Pages
  • Last Revised: 17 Sep 2023

In two of its major decisions in the 2021-2022 Term, New York State Rifle & Pistol Association v. Bruen and Dobbs v. Jackson Women’s Health Organization, the Court continued solidifying its originalist method of constitutional interpretation by looking increasingly to historical regulatory practice to construe...

  • Feb 2023
  • 8 Pages
  • Feb 2023
  • 35 Pages
  • Last Revised: 14 Aug 2023

Since the Founding era, governments have banned guns in places where weapons threaten activities of public life. The Supreme Court reaffirmed this tradition of “sensitive places” regulation in District of Columbia v. Heller, and locational restrictions on weapons have become a central Second Amendment battleground...

  • Jan 2023
  • 89 Pages
  • Last Revised: 5 Oct 2023

In June 2022, the Supreme Court struck down a state concealed carry law on Second Amendment grounds. In that decision, New York State Rifle & Pistol Association v. Bruen, the Court declared that future Second Amendment challenges should be evaluated solely with reference to text, history, and tradition. That...

  • Jan 2023
  • 34 Pages
  • Last Revised: 20 Apr 2023

In the wake of the Supreme Court’s transformative decision in New York State Rifle & Pistol Association v. Bruen, courts are now confronted with new questions about where guns can be restricted and what justifications support those regulations. This Essay urges that the development of the doctrine governing...

  • Jan 2023
  • 17 Pages
  • Last Revised: 17 Oct 2023

At a time when Second Amendment doctrine has taken a strongly historical turn and gun rights advocates have increasingly argued that gun regulation itself is historically racist, it is especially important that historical claims about race and guns be taken seriously and vetted appropriately. In this short article,...

  • Jun 2022
  • 19 Pages
  • Mar 2022
  • 29 Pages

Our goal in this chapter is to explore a concrete and seemingly discrete question: Can a legal gun owner face legal liability while cohabiting with a temporarily prohibited possessor? If, for example, a person is subject to an gun-prohibiting order because a judge has found that he poses an immediate risk to others,...

  • Feb 2022
  • 63 Pages

In popular and professional discourse, debate about the right to keep and bear arms most often revolves around the Second Amendment. But that narrow reference ignores a vast and expansive nonconstitutional legal regime privileging guns and their owners. This collection of nonconstitutional gun rights confers broad...

  • Jan 2022
  • 14 Pages

  • Jan 2022
  • 46 Pages
  • Jan 2022
  • 10 Pages
  • Jan 2022
  • Jan 2022
  • 24 Pages
  • Jan 2022
  • 17 Pages

Darrell A.H. Miller, Estoppel by Nonviolence, 85 Law and Contemporary Problems 69-85 (2022)Available at: https://scholarship.law.duke.edu/lcp/vol85/iss3/4

  • Aug 2021
  • 36 Pages

Equilibrium-adjustment theory, first articulated by ProfessorOrin Kerr for Fourth Amendment cases, holds promise for rationalizingSecond Amendment doctrine going forward. Like the Fourth Amendment,the Second Amendment suggests an initial equilibrium—or actually,multiple equilibria—between government power to...

  • Aug 2021
  • 64 Pages

Government regulates guns, it is widely assumed, because ofthe death and injuries guns can inflict. This standard account is radicallyincomplete—and in ways that dramatically skew constitutional analysis ofgun rights. As we show in an account of the armed protesters who invadedthe Michigan legislature in 2020, guns...

  • Jan 2021
  • 7 Pages

Does the Second Amendment protect those who threaten others by negligently or recklessly wielding firearms? What line separates constitutionally legitimate gun displays from threatening activities that can be legally proscribed? This article finds guidance in the First Amendment doctrine of true threats, which...

  • Jan 2021
  • 6 Pages

Courts reviewing gun laws that burden Second Amendment rights ask how effectively the laws serve public safety — yet typically discuss public safety narrowly, without considering the many dimensions of that interest gun laws serve. “Public safety” is a social good: it includes the public's interest in physical...

  • Jan 2021
  • 28 Pages

The American gun debate is increasingly populated with scenes of people pointing and otherwise displaying guns. What is the legal regime governing gun displays, and how well can it address the distinct social and legal problems they pose? In this Essay, we argue that the current structure of criminal law does not...

  • Jan 2021
  • 8 Pages

Joseph Blocher, Two Concepts of Gun Liberty, 39 Quinnipiac Law Review 363-370 (2021)

  • Jan 2021
  • 68 Pages

Cities are increasingly common sites of contestation over the scope and meaning of the Second Amendment. Some municipalities have announced their opposition to firearm restrictions by declaring themselves Second Amendment sanctuaries. Others have sought to curtail gun violence by passing restrictive local...

  • Oct 2020
  • 60 Pages
  • May 2020
  • 29 Pages

Darrell A. H. Miller, Constitutional Conflict and Sensitive Places, 28 William & Mary Bill of Rights Journal 459-487 (2019)

  • Mar 2020
  • 47 Pages
  • Last Revised: 19 Feb 2021

In fleshing out the contours of the nascent Second Amendment right, both courts and commentators have looked to established constitutional rights for guidance. Many, for example, have imported the analytical scaffolding of the First Amendment, including its heightened protection for “core” constitutional conduct and...

  • Jan 2020
  • 7 Pages

Joseph Blocher et al., The Geography of a Constitutional Right: Gun Rights Outside the Home, 83 Law and Contemporary Problems i-vii (2020)Available at: https://scholarship.law.duke.edu/lcp/vol83/iss3/1

  • Jan 2020
  • 21 Pages

Judge Jeffrey Sutton’s 51 Imperfect Solutions describes and celebrates the crucial role of state constitutional law in “making” American constitutional law. The fact that states do not speak with one voice in doing so is, in Sutton’s account, a feature rather than a bug. The diversity in their approaches permits...

  • Jan 2020
  • 14 Pages
  • Jan 2019
  • 17 Pages

Recent historical research using big-data techniques casts doubt on whether District of Columbia v. Heller was rightly decided according to originalist methods. These new discoveries put originalists in a bind. Do they embrace “faint hearted” originalism: the idea that as between the need for stability in prior...

  • Jan 2019
  • 69 Pages

In the universe of legal restrictions subject to judicial review, those characterized as fully denying some aspect of a constitutional right—bans—are often subject to per se rules of invalidity. Whether the subject of the restriction is a medium of expression, the valuable use of property, or a class of weapons,...

  • Jan 2019
  • 28 Pages

The study of "Rights Dynamism," exemplified in Timothy Zick's new book on the First Amendment's relationship with the rest of the Bill of Rights, can enrich our understanding of constitutional rights. It also opens a door to another potentially fruitful arena: what we call "Doctrinal...

  • Jan 2018
  • 77 Pages

As a matter of constitutional doctrine, the right to keep and bear arms is coming of age. But although the doctrine has begun to mature in the decade since District of Columbia v. Heller, scholars, advocates, and judges disagree about (and sometimes simply do not know) how to characterize it. This Article is the...

  • Jan 2018
  • Jan 2017
  • 18 Pages
  • Jan 2016
  • 51 Pages

District of Columbia v. Heller ruptured the one institution—the militia—that courts had used for centuries to implement the right to keep and bear arms. If the question was “what arms?,” one looked to the militia to find an answer; if the question was “whose arms?,” again, one looked to the militia. Heller loosened...

  • Jan 2016
  • 24 Pages
  • Jan 2016
  • 61 Pages
  • Jan 2015
  • 14 Pages
  • Jan 2015
  • 44 Pages

Debates about the meaning and scope of the Second Amendment have traditionally focused on whether it protects the keeping and bearing of arms for self-defense, prevention of tyranny, maintenance of the militia, or some combination of those three things. But roughly half of American gun-owners identify hunting or...

  • Apr 2014
  • 5 Pages
  • Jan 2014
  • 21 Pages
  • Jan 2013
  • 65 Pages

Second Amendment doctrine is largely becoming a line-drawing exercise, ascourts try to determine which “Arms” are constitutionally protected, which “people” arepermitted to keep and bear them, and in which ways those arms and people can be regulated.But the developing legal regime has yet to account for one...

  • Jan 2013
  • 87 Pages

In District of Columbia v. Heller and McDonald v. City of Chicago, the SupremeCourt made seemingly irreconcilable demands on lower courts: evaluate Second Amendmentclaims through history, avoid balancing, and retain as much regulation as possible. To date,lower courts have been unable to devise a test that satisfies...

  • Jan 2013
  • 11 Pages
  • Jan 2012
  • 54 Pages
  • Jan 2011
  • 71 Pages
  • Jan 2011
  • 40 Pages
  • May 2009
  • 65 Pages
  • Jan 2009
  • 79 Pages