Gun Rights and Domestic Violence in Rahimi—Whose Traditions Does the Second Amendment Protect?

[This post previously ran as a guest post on the Balkanization blog here.]

Since 1994, persons subjected by courts to qualifying domestic violence restraining orders have been prohibited from possessing a firearm under 18 U.S.C. § 922 (g)(8). In United States v. Rahimi, the Fifth Circuit declared that prohibition unconstitutional under the Second Amendment.

On November 7, the Supreme Court will hear argument in Rahimi. The case provides an occasion for the Justices to clarify the kinds of public safety laws the Second Amendment permits under its recent decision in New York State Rifle & Pistol Association v. Bruen. Will the Roberts Court read the Second Amendment to forbid government from enacting a targeted weapons regulation responding to the well-established link between guns and domestic violence? Today, “[n]early half of all women murdered in the United States are killed by a current or former intimate partner, and more than half of these intimate partner homicides are by firearm. Women are five times more likely to be murdered by an abusive partner when the abuser has access to a gun.”

Rahimi has rightly drawn attention because of the domestic violence stakes and because of the questions the case raises about the historical-analogical method that now governs Second Amendment cases. The lower federal courts have struck down an increasing number of gun laws since Bruen, interpreting it along the lines of the Fifth Circuit’s decision striking down the domestic violence prohibitor in Rahimi.

We show that the domestic violence prohibitor is constitutional under Bruen’s historical test, and explain how the Fifth Circuit and other federal courts are manipulating levels of generality in applying the test so that it can be used to strike down nearly any modern gun law. Rahimi therefore provides a critical occasion for the Court to uphold the domestic violence prohibitor and to reject the asymmetric application of Bruen’s analogical framework that the Fifth Circuit employed in justifying the law’s invalidation.

Both District of Columbia v. Heller and Bruen authorize modern forms of gun regulation. As we demonstrate in prior work, Part III of Justice Scalia’s majority opinion in Heller affirms a common law tradition that has long authorized laws protecting the public against weapons threats. Bruen specifically contemplates change in forms of regulation over time; it directs judges to use history as a guide to determine the kinds of regulation that are “consistent with this Nation’s historical tradition of firearm regulation.”  Bruen does not require gun laws to repeat the past like some kind of grotesque Groundhog Day.

But—ironically enough, on Groundhog Day of last year—the Fifth Circuit struck down 922(g)(8). The law was adopted in 1994 as society came to better recognize women as equal rightsholders. As a critical mass of women entered politics, they demanded that government address the role that guns play in intimate partner violence—in enabling an abusive partner or ex-partner to coerce, threaten, and terrorize and to inflict injury and death, in events that sometimes explode beyond the original target to include multiple victims and even trigger mass shootings.

To justify invalidating 922(g)(8), the Fifth Circuit’s decision in Rahimi employs an approach we have called selective and asymmetric updating. That approach interprets the Second Amendment to protect weapons like AR-15s that did not exist at the Founding, while insisting that government can only regulate the use of such weapons if it enacts laws that closely resemble legislation enacted in the ratification era. The Fifth Circuit invokes Bruen’s history and tradition method to perpetuate, under Second Amendment cover, a tradition of gun violence between intimates that the nation enacted 922(g)(8) to repudiate. Is this tradition of weapons threats and violence a tradition that the Supreme Court is now prepared to entrench and honor in the Second Amendment’s name? 

The Court’s decisions in Heller and Bruen authorize change, consistent with historical tradition, in regulation as well as rights. As Chief Justice Roberts put it at oral argument in Heller, “[W]e are talking about lineal descendants of the arms but presumably there are lineal descendants of the restrictions as well.”

 Bruen suggests that application of its historical-analogical test depends on whether the modern law being challenged addresses a “societal problem” that the Framers might similarly have addressed but choose not to—or whether instead the problem the law addresses is novel, involving “unprecedented societal concerns or dramatic technological changes” unforeseen by the Framers. In the latter case, the burden on the government to show historical analogues is lessened. We show that under either of these paths, the government should prevail in Rahimi, but in doing so we also spotlight how Bruen’s test can be manipulated: judges can require regulation closely to resemble laws of the distant past even as they define the scope of the right expansively to protect weapons whose lethality the framers could not have fathomed.

So what “societal problem” does the domestic violence prohibitor address?

By its terms, 922(g)(8) specifically addresses possession of a “firearm or ammunition” by individuals subject to qualifying domestic violence restraining orders. It does not address domestic violence in any other context. So characterized, 922(g)(8) addresses a societal problem that the Constitution’s ratifiers did not experience.

Domestic violence by gun was not a significant societal problem when the Second Amendment was adopted. In the Founding era, “[f]amily and household homicides—most of which were caused by abuse or simple assaults that got out of control—were committed almost exclusively with weapons that were close at hand,” not loaded guns but rather “whips, sticks, hoes, shovels, axes, knives, feet, or fists.” A drunken, angry, or homicidal abuser would’ve been far less likely to load and fire an unwieldy black powder musket.

It is therefore unsurprising that Founding era legislatures did not adopt laws specifically disarming domestic abusers—their guns were not the problem. Simply put: One important reason that the framers did not regulate the use of guns in domestic violence was that guns did not play a significant role in violence between intimates until much later.

Some advocates, scholars, and judges have framed the relevant societal problem more broadly—as domestic violence full stop, or even interpersonal violence. Rahimi’s brief and others emphasize that Americans at the time of ratification did respond to such violence, but did not enact laws specifically permitting judicial orders disarming those who threatened domestic abuse. The common law instead provided a battered woman, her relatives, and her community various alternative forms of deterrence and protection: homicide law, divorce law, and, as Laura Edwards has shown, peace warrants and sureties. There was, in other words, an “historical tradition” of responding to domestic violence, even if that tradition did not provide women equal protection of the laws. 

In Rahimi the Fifth Circuit points to these earlier forms of regulation as grounds for striking down 922(g)(8) because none of the identified historical antecedents was sufficiently like 922(g)(8) in barring gun possession. In doing so, the court engineers a mismatch by describing the problem and solution at different levels of generality. If the social problem is defined broadly, then the search for regulatory antecedents must be similarly capacious—including not just gun-specific responses, but other modes of constraining domestic violence. Rahimi’s own reading of the historical record then identifies the necessary analogues, including sureties. But the court dismisses them on the grounds that they do not similarly burden the right to bear arms. This is a distinction without a difference if firearms were not prominent instruments of domestic violence at that time.

As we have shown, either of the two “societal problem” frames supports the constitutionality of 922(g)(8). If we characterize the societal problem to which 922(g)(8) responds as domestic violence by gun, the problem to which 922(g)(8) responds has not persisted since the Founding.  In a case of this kind, Bruen calls for a “more nuanced approach” to analogical reasoning where gun regulation responds to “unprecedented societal concerns or dramatic technological changes.” Rahimi involves both forms of change Bruen mentions. The nation employed different types of law to regulate domestic violence as it responded to technological change affecting the instruments of domestic violence and as it responded to an evolving understanding of women’s roles.

If, in the alternative, we start where Rahimi does and find that domestic violence is a persistent societal problem that the Founding generation faced, we should define as historical analogues all legal responses to domestic violence that the common law afforded to deter and remedy the problem.

From this vantage point, we can see that Rahimi manipulates levels of generality to create a one-way ratchet for gun rights that is not mandated by Bruen. The opinion shows how deciding cases on the basis of obscure historical sources does not constrain judicial discretion, as many originalists claim, but instead can conceal expression of a judge’s personal preferences. (Judge Cory Wilson, author of the Rahimi opinion, made clear in an NRA questionnaire—filed as part of a run for office in Mississippi—that he opposes most gun regulation, including universal background checks.)

What the Supreme Court in Rahimi must rule out is this mix-and-match approach by which judges describe societal problems broadly so that they seem continuous with modern life, but then restrict the search for regulatory antecedents narrowly, recognizing as antecedents only laws that closely resemble modern regulations. On this selective appeal to the past, the Second Amendment protects the right of a person subject to a domestic violence restraining order to his AR-15, while at the same time prohibiting government efforts to disarm that person unless the intervention resembles common law interventions at a time when domestic violence by gun was not a leading cause of women’s death.

Our caution that asymmetric updating and manipulation of levels of generality enables judges to enforce—and mask—their values in deciding Second Amendment cases has added force in challenges to the domestic violence prohibitor. If gun-libertarians prevail in Rahimi, they will perpetuate traditions of exclusion and inequality in new form. Rahimi and especially its precursor  United States v. Perez-Gallan exemplify preservation through transformation. Judges invoke feminist accounts of laws’ discriminatory under-protection of women in intimate relations as reason to strike down a law protecting women from violence in intimate relations. The old is all dressed up as new. These decisions illustrate exactly why observers object that the Court’s turn to history and tradition provides cover for entrenching inequality.

Reasoning from history, as Bruen requires, does not mean repeating it. Recognizing traditions that deserve perpetuation unavoidably demands normative judgment.  Indeed, much of what judges, lawyers, and citizens do in arguing from history is to draw cautionary lessons—that is what the Court itself does in Heller and Bruen as it expands the right to keep and bear arms in part as a response to historical disarmament of disfavored groups. But concern about perpetuating inequality must evenhandedly apply to the regulation side of the inquiry as well, or else, once again, it will be the interpreters’ own values—their interest in expanding gun rights, and not concerns about history, equality, or fidelity to the Court’s cases—that is driving the outcome.  

United States v. Perez and Doctrinal Development

Earlier this summer, in United States v. Perez, a divided panel of the Second Circuit rejected a challenge to 922(g)(5)—the federal law prohibiting gun possession by undocumented immigrants. I missed the case at the time, but Law360 has an interesting write up on the decision and how it fits into broader litigation regarding immigrants’ gun rights. Perez itself raises some interesting questions about the basis for 922(g)(5)’s constitutionality and, more generally, the assume-without-deciding approach that many circuit courts have taken with regard to it and other categorical exclusions.

As the panel explained:

[O]ur practice in those cases has been to assume that a given firearm restriction implicates rights guaranteed by the Second Amendment and determine whether the restriction would nonetheless withstand the appropriate level of scrutiny. We see no reason to abandon that approach here.


We need not decide [whether undocumented immigrants like Perez have a constitutional right to possess firearms], because even if we were to assume that Perez has a constitutional right to possess firearms, we find that § 922(g)(5) is a permissible restriction when applied to the facts of this case.

This is a common way of addressing not only 922(g)(5) claims, but other forms of regulation as well—courts regularly assume that the relevant person, firearm, or activity is indeed covered by the Second Amendment, but can nonetheless be prohibited or otherwise regulated. The hard methodological issue is what the assume-without-deciding approach means for the development of doctrine, especially when that approach effectively becomes a rule of decision.

When a court recognizes its own “practice” and defers to it, the line between dicta and holding—never an easy one to draw—starts to get especially blurry. In Perez, the panel majority seems to treat the skip-step-one approach almost as a matter of stare decisis (“[w]e see no reason to abandon that approach”). And if the law would be upheld under intermediate scrutiny anyway, then a holding on whether Perez is covered by the Second Amendment would be unnecessary (and thus, arguably, dicta). But it also suggests that we’ll never get a holding on whether, for example, undocumented immigrants fall within the scope of the Second Amendment, unless and until a court concludes that the prohibition cannot survive intermediate scrutiny.

Judge Menashi’s concurring opinion would simply have held that “illegal aliens cannot invoke the right of the people to keep and bear arms under the Second Amendment.” Indeed, he suggests that the majority has effectively decided the same thing via a circuitous route that harms “American citizens”:

By reaching this conclusion indirectly instead of directly, however, the court undermines the protections of the Second Amendment for American citizens by watering down the intermediate scrutiny the court purportedly applies to the challenged restriction into a form of rational basis review.

Judge Menashi’s opinion, meanwhile, raises another difficult question of Second Amendment hydraulics, because it emphasizes that Perez’s activity (borrowing and firing a gun to break up a fight) falls within the “core” of the Second Amendment and should therefore be protected by more than intermediate scrutiny. Thus, Judge Menashi argues, the only way to justify the application of the federal prohibitor is to conclude that Perez falls entirely outside the Second Amendment. (He also discusses the history of laws disarming non-citizens; Catie Carberry (Duke Law ’21) and I have written on historical laws targeting “dangerous” groups and “outsiders.”)

The tricky thing with that kind of categorical reasoning is when—as here—it sets up a conflict between categorical protections (i.e., the use of guns in self-defense) and categorical exclusions (i.e., in Menashi’s approach, “illegal aliens”). Luke Morgan, who wrote a terrific student note on guns at protests, is currently working on a paper that explores how that kind of doctrinal rule vs. doctrinal rule gets resolved in various areas of constitutional doctrine. Sometimes, as in Perez, the categorical exclusion seems to trump the categorical protection. But sometimes the categorical protection seems to trump the categorical exclusion—as, for example, in R.A.V. v. City of Saint Paul, where Justice Scalia indicates that even unprotected speech like fighting words cannot be regulated on the basis of viewpoint.

According to the Law360 article, Perez’s lawyers declined to comment on whether they’re seeking en banc review or preparing a cert petition.

Takings Claims Against Parking Lot Laws After Cedar Point

Last Term, in Cedar Point Nursery v. Hassid, the Supreme Court found that a California regulation requiring agricultural employers to allow union organizers onto their farms constituted a taking. Noah Levine has a great blog post here about what Cedar Point could mean for takings claims regarding large capacity magazines and other forms of gun-related personal property. There might also be implications for a kind of pro-gun regulation—“parking lot laws” that require certain private property owners to allow guns onto their land.

About half the states have adopted parking lot laws, sometimes known as “take your gun to work” laws. Such laws vary in their particulars, but in general they make it harder (or even criminal) for private entities—businesses, for example—to exclude guns from their property, for example by requiring that they allow employees to leave guns in their cars during working hours. I wrote about these laws—and how they might infringe the Second Amendment rights of property owners—ten years ago in The Right Not to Keep or Bear Arms.

At that time, takings claims against parking lot laws had proven largely unsuccessful. In Ramsey Winch v. Henry, for example, the Tenth Circuit rejected a takings challenge to Oklahoma’s law, which made it illegal for any “person, property owner, tenant, employer, or business entity” to prohibit any person besides a convicted felon from bringing a gun onto “property set aside for any motor vehicle.” The court concluded that “Plaintiffs have not suffered an unconstitutional infringement of their property rights, but rather are required by the Amendments to recognize a state-protected right of their employees.” Following cases like Loretto v. Teleprompter Manhattan CATV Corp., the Tenth Circuit concluded that a “per se taking in the constitutional sense requires a permanent physical occupation or invasion, not simply a restriction on the use of private property.”

But in Cedar Point, the Supreme Court held that “government-authorized invasions of property—whether by plane, boat, cable, or beachcomber—are physical takings requiring just compensation.” California’s law, the Court concluded, “appropriates a right to physically invade the growers’ property—to ‘take access’, as the regulation provides. It is therefore a per se physical taking under our precedents,” notwithstanding the fact that there was no permanent physical occupation.

Cases like Ramsey Winch would seem to come out the other way under Cedar Point’s rule. It is not immediately clear to me how to distinguish “government-authorized invasions of property” by armed individuals from those by labor organizers. If anything, the former would seem to be a more serious invasion of the interests that the right to exclude is thought to protect—things like security and control.

That’s not to say that the argument is easy—as Lee Fennell points out in a forthcoming paper on Cedar Point, implicit takings doctrine feels increasingly like an elaborate escape room. Maybe there’s an argument that parking lot laws—like, for example, anti-discrimination rules that forbid certain kinds of exclusion—are constitutional as applied to businesses open to the public. Cedar Point, it should be noted, distinguished cases like PruneYard Shopping Center v. Robins on the basis that the latter involved a mall that was “open to the public, welcoming some 25,000 patrons a day.” The Court in Cedar Point continued: “Limitations on how a business generally open to the public may treat individuals on the premises are readily distinguishable from regulations granting a right to invade property closed to the public.” But that kind of line-drawing wouldn’t seem to save a law like Oklahoma’s, which appears to apply to prevent any “person, property owner, tenant, employer, or business entity” to prohibit any person besides a convicted felon from bringing a gun onto “property set aside for any motor vehicle.”

This is not an argument for or against the wisdom of parking lot laws. (On that point, see this interesting new paper by Ian Ayres and Spurthi Jonnalagadda on public preferences with regard to “no carry” default rules.) The question is simply whether states must provide just compensation when they take away property owners’ right to exclude others—whether those others are labor organizers or armed individuals.

Scholarship Highlight: “State Preemption of Local Gun Regulations: Taking Aim at Barriers to Change in Firearm Policy”

Although the Second Amendment still tends to get all the attention in debates about firearms law, scholars are starting to pay more attention to state-level preemption laws, which currently present a more significant legal barrier to gun regulation than the Constitution.

Broad changes in preemption law have been a topic of particular concern to scholars of state and local government law in recent years—especially the growth of “the new preemption,” “hyper preemption,” and (as Rich Schragger puts it) the broader attack on American cities. But with a few notable exceptions—Jake’s Securing Gun Rights By Statute being one such example—firearms law scholars (myself included) have tended to focus on core constitutional and historical questions. That’s unsurprising, given the multitude of challenging and interesting issues left in Heller’s wake. But the magnetic pull of the Second Amendment often draws scholarship away from other interesting and important questions that arise under state and local law—I have yet to see a comprehensive scholarly article charting the current state of firearm preemption laws.

Until now, that is. Rachel Simon, a recent Harvard Law graduate now working in private practice, recently posted her article “State Preemption of Local Gun Regulations: Taking Aim at Barriers to Change in Firearm Policy”.  It’s the best single piece I’ve seen on the subject. Here’s the abstract:

Forty-five states have adopted express preemption statutes curtailing or entirely prohibiting local gun regulation, and several jurisdictions now threaten localities with penalties for violating such restrictions. These measures have been remarkably effective in reducing the breadth and variety of gun laws nationwide, but their consequences have only just begun to attract attention. Public debates over guns tend to center on the Second Amendment while overlooking state-level obstacles to local lawmaking, and the scholarship on state-local preemption lacks an analysis devoted exclusively to the gun-policy space.

To fill these gaps, this Article provides a comprehensive account of the firearm preemption phenomenon. Part I argues for greater local autonomy with respect to gun rights and regulations, highlighting what is at stake when states preclude communities from responding to local problems and preferences. In Part II, the Article traces the rise of firearm preemption and offers a framework for classifying the relevant statutes. Part III examines the mechanisms through which these laws derail local gun policymaking, and Part IV evaluates strategies for restoring and expanding local authority over firearms.

Ultimately, the Article demonstrates that state preemption is the primary barrier to local gun regulation and a severe constraint on opportunities for addressing many firearm-related challenges. Absent a concerted effort to scale back firearm preemption provisions, local governments will remain incapable of realizing their potential as sites for effective gun lawmaking. These conclusions yield new insights for both the firearms-law literature specifically and the ongoing dialogue around state-local relations more broadly.

One of the many things I like about Simon’s article is that, in addition to its rich descriptive work, the normative argument is measured and nuanced. She recognizes the existence of compliance costs for gun owners when rules vary from place to place, for example, as well as the costs of statewide uniformity. All too often, arguments about firearm preemption (like arguments about gun rights and regulation more generally) run too quickly to extremes: That cities must be free to do whatever they wish with regard to gun regulation, or conversely that any degree of local control will lead to an incomprehensible patchwork of rules that will ensnare unsuspecting gun owners.

Neither of those extreme positions is particularly convincing. While there are strong arguments that some kinds of gun regulation should be done at the state or even national level, many current preemption laws (like those that prohibit cities from passing any rules “relating to” firearms) unnecessarily hamper local variation and experimentation, restrict the effective implementation of life-saving local policies, and threaten constitutional interests even as they are described as a necessary bulwark to protect them. As Simon points out, local governments were traditionally a key locus for gun regulation, so an expansion of local control would be entirely consistent with approaches focused on history and tradition.

The underlying question for preemption is how best to distribute gun regulation authority between states and cities, and that question is unlikely to have a single trans-substantive answer: the arguments look different for regulations on public carry, classes of weapons, classes of persons, and so on. Thoughtful solutions have to be based on a clear understanding of what current preemption laws actually do, and Simon’s article is a very helpful place to start. I hope to see it in print soon.

When Guns Threaten the Public Sphere: Recovering the Common Law Approach to Public Safety

What can armed protest teach about the case for gun regulation?  Reva Siegel and I have just posted our article, When Guns Threaten the Public Sphere: Recovering the Common Law Approach to Public Safety, which is forthcoming as part of the Northwestern Law Review symposium the Center co-sponsored this past fall. Here is the abstract:

Today, the gun debate focuses on how regulation can reduce the staggering number of Americans who are wounded or killed by guns every year. This Article widens that focus beyond injury-prevention, beyond the horrors of Sandy Hook, Parkland, and constant daily shootings, to examine cases where guns threaten and intimidate without inflicting physical injury—for example, when armed masses flood the legislature (Washington D.C. or Michigan), or when individuals pull guns on citizens in a protest march (St. Louis), or when people use guns to assert coercive control over intimate partners (everywhere).

Guns shape the ways we live together. As we show in an account of the armed protesters who flooded the Michigan legislature, weapons can be used not only to injure but to intimidate. For this reason, the government interest in regulating arms to promote public safety is not only concerned with preventing physical injuries, but also with preventing weapons threats. Recognizing that government regulates guns to prevent social as well as physical harms is a critical first step in building a constitutional democracy where citizens have an equal claim to security and to the exercise of liberties whether or not they are armed and however they may differ by race, sex, or viewpoint. We draw on this principle in developing one of the first accounts of the public safety interest in regulating weapons.

In the wake of the January 6 riots in the United States Capitol, we have updated the Article to show how the assault on the Michigan legislature is connected to violent challenges to the 2020 election. These events, as well as many others from daily life, illustrate the character, scope, and stakes of public safety in a constitutional democracy.

All agree that there is a public safety interest in regulating guns, yet few agree about its scope. Some advocates of public carry are beginning to argue that preventing physical injury is the only legitimate reason for regulating guns.  Other advocates, judges, and scholars claim that the Constitution restricts a democracy’s ability to legislate in the interest of public safety and privileges the claims of citizens who rely on guns, rather than gun laws, to respond to fears of violence.

To counter these arguments, we demonstrate that a different understanding of public safety is deeply rooted in our history. For centuries, the Anglo-American common law has regulated weapons not only to keep members of the polity alive, but to protect their liberties against weapons threats and to preserve public peace and order. That regulatory tradition has long shaped state and federal law. Critically, we show that this regulatory tradition grounds the understanding of the Second Amendment set forth in District of Columbia v. Heller, where Justice Scalia specifically invokes it as a basis for reasoning about the regulation of guns.

Guided by core principles of our constitutional democracy and by traditions informing the Second Amendment itself, government can enact and enforce gun laws that secure public and private spaces for equal enjoyment by all citizens. We dispute scholars who assert that the Constitution privileges the security claims of the armed over the unarmed, or allows the redress of physical but not social injury. We show how concern for the even handed enforcement of gun laws is a core part of the public safety interest. Given the commitments that define our constitutional democracy, government can regulate weapons to ensure that all persons have equal claims to security and to the exercise of liberties whether or not they are armed and however they may differ by race, sex, or viewpoint.

Harvard Law Review NYSRPA Case Comment

It’s fair to say that when the Supreme Court granted cert in NYSRPA, I did not expect that the eventual Harvard Law Review Case Comment about the decision would appear under the header “Article III—Justiciability—Mootness.” But, of course, that’s just how the case ended up.

Still, the Comment, which was just published online (and is uncredited, per HLR convention), does more than ably unpack the mootness decision—it provides a nice glimpse at the major methodological debates still looming for the Second Amendment. Here’s the first paragraph:

After the grand but doctrinally vacant pronouncements of District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court rejected nearly every Second Amendment petition for certiorari for a decade and let the lower federal and state courts turn Heller’s theory into doctrine. Last Term, the Court finally agreed to hear another Second Amendment case. But, in New York State Rifle & Pistol Ass’n v. City of New York (NYSRPA), the Court held the Second Amendment dispute moot after the City and State of New York amended the challenged licensing scheme. The concurrence and dissent suggest that at least four Justices are interested in changing the lower courts’ two-step application of Heller when the Court does reach the merits of a Second Amendment case. But it would be a mistake for the Court to disrupt this dominant mode of review in the lower courts. NYSRPA shows why the lower court test is preferable to a purely historical and textual one and that the Court can enforce the Second Amendment without treating it as a privileged right.

I’m fully in agreement—Darrell and I (along with Eric Ruben of SMU) filed an amicus brief in support of neither side in NYSRPA defending the two-part test against an alternative grounded solely in “text, history, and tradition.”

I also think that the Comment is right to point out that there could well be “much to see and criticize in the lower courts’ application of heightened scrutiny” in certain cases. (pg. 448) Especially given the volume of Second Amendment cases, lower courts will make mistakes—and appellate courts, including the Supreme Court, will have a role to play in correcting those errors. (Consider a case like Caetano.)

But the Comment is also right that “the Court’s perception that lower courts are hostile to the Second Amendment should not lead it to adopt a malleable and impractical historical test.” (pg. 449) Nelson Lund has made a similar point: “Pretending to find the answers in history and tradition will encourage either covert judicial policymaking, which is just what reliance on history and tradition is supposed to prevent, or ill-supported historical stories in defense of results that could honestly and responsibly be justified through normal means-end scrutiny.” Debates about how that scrutiny should be applied—what interests count, how they must be shown—are likely to be more fruitful and important than attempts to reason by strained analogy from remote historical sources.

The Breadth of Judge Barrett’s “Dangerousness” Principle

Judge Amy Coney Barrett opened her dissent in Kanter v. Barr by identifying a historical principle underlying modern gun regulation: “History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.” She went on to suggest that dangerousness is the Second Amendment’s exclusive limiting principle, such that “legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.”

This is a historically contestable position—many scholars and judges conclude that dangerousness was not the exclusive basis for disarmament, and that the Founding generation also denied guns to those thought to be unvirtuous, disloyal, incompetent, and so on. But if “dangerousness” is the operative principle for historically-informed Second Amendment interpretation, how broadly does it sweep? In Barrett’s terms, what do “history and tradition” tell us about the “scope of the legislature’s power to take [the right to keep and bear arms] away?”

Answering that question means considering, in her words, “a category simultaneously broader and narrower than ‘felons’—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness.” In her Kanter dissent (which argued that the federal felon prohibitor was unconstitutional as applied to a non-violent felon), Judge Barrett focused on the latter—felons who might not be dangerous. But it is also important to consider the former: non-felon groups disarmed because they were thought to be dangerous.

Through that frame, the historical evidence demonstrates that the “scope of the legislature’s power” was quite broad, notwithstanding the fact that the founding generations applied that power to very different groups than law does today—both more narrowly (for example, by not disarming domestic abusers) and more broadly.

In a forthcoming essay, we analyze two sets of historical gun laws that seem historically distant, but which the “dangerousness” approach makes relevant: laws regulating Native Americans and laws regulating those “disaffected to the cause of America.” These groups—much more so than felons, drug users, domestic abusers, and other groups targeted by contemporary restrictions—were subject to gun regulation by the Founding generations, apparently based on the perceived threat they posed. Relying largely on the Center’s Repository of Historical Gun Laws, the first part of the essay provides a historical overview of these laws, which have not received the same level of scholarly attention as some other historical prohibitions, such as those involving public carry or certain classes of arms.

Comparing these historical laws to contemporary gun restrictions inevitably means reasoning by analogy—as the test of “text, history, and tradition” favored by some originalist judges requires. The key step in analogical reasoning is identifying whether two things are relevantly similar, a process that is hard—and perhaps even impossible—to fully articulate given the invisible abstractions and generalizations that underlie it. Many scholars, including those sympathetic to broad gun rights, have noted some of the difficulties that arise when one looks for historical equivalents of modern laws. But at the very least, a “dangerousness” approach to text, history, and tradition must mean identifying the groups that were disarmed on that basis either in the Founding era or during Reconstruction.

The second part of the essay grapples with a question such regulations raise: What is to be done with the many historical laws that lack modern equivalents? Second Amendment historicism sometimes directs us to the family tree of gun laws in order to identify “lineal descendants” of particular guns or gun laws. But what about the lines of regulation that died out for one reason or another? Should embarrassing ancestors be cropped out of the historical picture entirely, or might they still have something to teach, in roughly the same way as Dred Scott v. Sandford has been invoked to support the “individual right” reading of the Second Amendment?

In some form or another, history is and will remain relevant to the question of whose access to guns can constitutionally be limited. Whether the answer to that question turns on a group’s dangerousness, virtuousness, or some other principle is beyond the scope of our essay. We assume that dangerousness was at least one reason why certain groups were disarmed. But whatever approach one takes, it is important to be clear about the historical record, and the breadth of the government’s power to regulate.

To be clear, the lessons of history can be instructive in a cautionary way—not only with regard to the groups that were wrongly subject to disarmament in the past, but also the potential malleability of a “dangerousness” principle. In particular, the historical record shows an inclination to disarm those who were considered threats to public safety and the political order. Whether and how history can provide guidance with regard to the targets of contemporary prohibition—felons and domestic abusers, for example—is a broader question of constitutional interpretation. Understanding the full historical record, and the breadth of the government’s historical power, is a crucial first step.

ECHR Ruling on the “Right to Life”

Earlier this month, the European Court of Human Rights ruled that Finnish authorities violated the European Convention on Human Rights by failing to take sufficient steps to prevent a school shooting. (h/t Larry Helfer) From the Registrar of Court’s summary of the facts:

The perpetrator had been given a gun licence by the local police station a few months before the attack. Further to certain Internet postings, including a comment about a film on the Columbine High School massacre “being the best entertainment ever”, he was interviewed the day before the attack by the Detective Chief Inspector of the police station to determine whether he posed a danger to society. The inspector decided that was not the case and there was no need to take his weapon.

The next day, the young man appeared at his school and opened fire, killing nine students and a teacher before killing himself.

Article 2 of the Convention protects “the right to life,” and was the basis of the claim, which was filed by relatives of the shooting victims. It would be an understatement to say that I am no expert in Convention jurisprudence, but it appears that the Court rejected the claim that Finnish authorities failed in their “duty to protect life,” but agreed (6-1) that they failed in their “duty of diligence in the protection of public safety, taking into account the context of the case, that is, the use of firearms and the inherent high level of risk to life.”

Further from the Registrar’s summary:

The crucial question was whether there were measures which the domestic authorities might reasonably have been expected to take to avoid the risk to life from the potential danger the perpetrator’s actions had given an indication of.

The precautionary measure of seizing the gun had been available to the police. It would not have caused any significant interference with any competing rights under the Convention and would not have involved any particularly difficult or delicate balancing exercise. Indeed, the Court of Appeal had said that the gun could have been seized according to domestic law as a low threshold precautionary measure.

The Court thus found that seizing the weapon was a reasonable measure of precaution given the doubts about the perpetrator’s fitness to possess a dangerous firearm. The authorities had thus not observed the special duty of diligence incumbent on them owing to the particularly high level of risk to life inherent in any misconduct involving firearms.

It should go without saying that such reasoning does not translate directly to the United States, given that the Second Amendment (and potentially also the First) does enumerate “competing rights” that could be implicated by an effort to confiscate the guns of someone who had made threats online. Nor does the US Constitution clearly create a governmental duty to protect the “right to life” against threats from other private citizens—hence Justice Blackman’s impassioned dissent in DeShaney.

But there are counter-currents as well. Scholars like Leila Nadya Sadat and Madaline M. George have recently written about U.S. obligations under international law (not the Convention itself) to engage in due diligence in protecting citizens from gun violence. And within the framework of domestic law and politics, scholars and advocates are increasingly emphasizing the constitutional interests (not “just” policy interests) in favor of gun regulation—whether through the “constitutional case for gun control,” or the right not to be shot, or briefs emphasizing the human toll of gun violence.

The ECHR ruling, in short, interestingly demonstrates—though of course does not resolve—debates that are percolating in the US gun debate.

Scholarship Highlight Interview: Sheila Simon on Second Amendment Sanctuaries

Sheila Simon, Assistant Professor of Law at Southern Illinois University School of Law, recently published a fascinating paper about gun sanctuary ordinances – On Target? Assessing Gun Sanctuary Ordinances that Conflict with State Law, 122 W. Va. L. Rev. 817 (2020) – which she was generous enough to discuss with me in our most recent scholarship highlight.

In addition to her academic work, Professor Simon has held a variety of positions in state and local government (she was Lt Governor of Illinois from 2011 to 2015), so she has an especially good professional and practical vantage point on the state-local dynamic in play here. And, as we discuss in the interview, Illinois is a particularly useful case study, given that the preemption movement and the gun sanctuary movement both kicked off there. The paper provides a nuanced look at the costs and benefits of sanctuary ordinances, and is well worth a close read.

And if you haven’t already, check out Darrell’s conversation with Shawn Fields on the same topic!

Scholarship Highlight Interview: Natalie Nanasi on Disarming Domestic Abusers

I recently had a chance to talk with Natalie Nanasi, Assistant Professor of Law at SMU Dedman School of Law and Director of the Judge Elmo B. Hunter Legal Center for Victims of Crimes Against Women. Prof. Nanasi has written a lot of incisive scholarship on issues including immigration, domestic violence, and feminist legal theory. In our chat—video below—we talked about her latest piece, “Disarming Domestic Abusers,” which is forthcoming in the Harvard Law & Policy Review, and raises really important and interesting questions about how best to draft, implement, and litigate rules about guns and domestic violence.

Here’s the abstract:

Guns and domestic violence are a deadly combination. Every sixteen hours, a woman is fatally shot by her intimate partner in the United States; the mere presence of a gun in a domestic violence situation increases the risk of homicide for women by 500 percent.

Recognizing these risks, federal law and some states prohibit domestic abusers from possessing firearms. But these laws are not being enforced. Perpetrators of domestic violence are rarely ordered to surrender firearms, and even when they are, there are often no mechanisms to ensure that weapons are safely relinquished.

This Article proposes strategies to disarm domestic abusers, proceeding in three parts. First, it describes legislation that would prohibit perpetrators of intimate partner violence from owning or possessing firearms. Next, it explains the mechanisms required to implement that legislation. Finally, it recommends litigation strategies to ensure meaningful enforcement. Only all three, working in together, have the potential to prevent the gun-related deaths of intimate partners.

Interview here:

Scholarship Highlight: Jennifer Tucker on Public History and Guns

Second Amendment scholars naturally spend a great deal of time and energy focusing on questions about the history of gun rights and regulation, but less time investigating questions about how that history is or should be presented to the public in venues like museum exhibits. Historian Jennifer Tucker (Wesleyan) has done as much as any scholar I know to illuminate such questions, including (as she puts it):

how do firearms differ from other types of material culture in relation to their own historical contexts, and in how they are understood by museum visitors (and curators)? Do museums permit or encourage critical research? What can be done to improve museum/researcher relations? What is the place in firearms museums of the depiction of gun violence? How do museums give insights into history that differ from the accounts available in books?

Through the end of July, the Journal of the History of the Behavioral Sciences is making freely available a really fascinating interview that Prof. Tucker recently did with David Serlin (UC San Diego) about public history, COVID-19, and guns. As she puts it in the interview, “the historical study of gun technologies merits more attention than it currently receives. The study of guns and their social and cultural practices is a perfect example of the importance of inserting the study of technological developments into the history of politics and society.”

You can read the whole thing here. The discussion of guns begins around page 5, and there are some interesting graphics throughout, including of the NRA Firearms Museum.

An Alternative Answer in NYSRPA

[This discussion from Joseph Blocher and Reva Siegel is cross-posted from Oral Argument 2.0]

New York State Rifle & Pistol Association Inc. v. City of New York

No. 18-280 – Argued December 2, 2019

At Issue

Whether a New York City rule banning the transportation of a licensed, locked, and unloaded handgun to a home or shooting range outside city limits violates the Second Amendment, the Commerce Clause, or the constitutional right to travel.


  • Paul D. Clement, for the petitioners
  • Jeffrey B. Wall, for the United States, as amicus curiae, supporting the petitioners
  • Richard P. Dearing, for the respondent

Background and Case Commentary

In New York Rifle & Pistol Association, Richard Dearing—arguing for the government—faced an unusual challenge: Defending the constitutionality of a gun regulation that had already been repealed and replaced by a state statute. That development almost certainly rendered the case moot, and indeed three-quarters of the oral argument focused on the question of mootness.

But some of the Justices also wanted to discuss the constitutionality of the repealed regulation and the scope of Heller’s protections outside the home—and related merits questions we address here. The repealed regulation would have effectively prevented residents of New York from transporting their weapons out of the city, for example to a shooting range or a second home. This was seemingly a unique and relatively recent rule—not the kind of “longstanding” restriction approved as “presumptively lawful” in Heller. Moreover, while the Second Circuit had, in a divided opinion, found that the regulation satisfied intermediate scrutiny, the City could offer little evidence for its effectiveness in preventing gun crime. These merits issues, lurking in the “background” of the case, have received less attention to date.

Dearing, who was making his first-ever Supreme Court oral argument (against veterans Paul Clement and Jeff Wall), did a superb job arguing that the case is moot. But the posture of the dispute made it difficult for Dearing to defend the merits of the now-repealed law or address the government’s compelling interest in regulating guns.

Justice Alito had an exchange with Dearing (at pp. 52-53 of the transcript) in which Dearing, in hindsight, might have more clearly and emphatically defended the government’s authority to adopt the now-repealed law.

The Justice asked “Mr. Dearing, are the – are people in New York less safe now as a result of the enactment of the new city and state laws than they were before?” Dearing responded, “We – we no, I don’t think so.” Justice Alito pressed the point: “Well, if they’re not less safe, then what possible justification could there have been for the old rule, which you have abandoned?” Dearing replied that the prior rule made it easier for law enforcement to verify whether a person transporting a gun in public had a license to do so.

But then the Justice asked another follow-up—the question we address below, whether “The Second Amendment permits the imposition of a restriction that has no public safety benefit”—and Dearing yielded the premise of the question. With respect, as our proposed answer highlights, we think that Dearing could have stood his ground and defended the state’s prerogative to enact a law that might produce a “public safety benefit”—even if those benefits cannot be empirically validated.

To be clear, Dearing was focused on addressing the case’s mootness, not defending its prerogative to adopt the now-repealed regulation, and as we have observed, given the posture of the case, rolling out a more expansive account of the state interest would have been hard to do at oral argument. (With the benefit of time and space, we do so in a separate blog post here.)

That said, it does seem critical to assert that government has compelling interests in regulating guns in ways that cannot always be validated empirically, both because government needs the discretion and flexibility to respond to local circumstances and emergency conditions and because government needs to regulate in ways that preserve public confidence and trust.

New York State Rifle & Pistol Association Inc. v. City of New York on Oyezhttps://www.oyez.org/cases/2019/18-280

Key Questions from Oral Argument

Justice Alito (45:12): So you think the Second Amendment permits the imposition of a restriction that has no public safety benefit?

Reva Siegel and Joseph Blocher: Your honor, two quick points on the concept of “public safety benefit.” First, new forms of gun regulation—like new forms of gun technology—won’t come with a deep empirical record one way or the other. But that fact should not prevent government from trying to address a problem in new ways. We need the states and local governments as laboratories of experimentation attempting to fashion locally appropriate solutions to complex problems of gun violence. Heller doesn’t limit those laboratories to repeating only those experiments they have tried before, nor should the government have to face the impossible burden of proving that a new law will certainly save lives.

Second, even when government lacks data showing that a particular gun law saves lives, the law might still provide an important benefit. The public harms of gun violence reach far beyond crime and injury, and the government’s interest is correspondingly broad as well. This Court has repeatedly recognized—including in strict scrutiny First Amendment cases like Williams-Yulee—that the state has an important and even compelling interest in promoting the public’s confidence and sense of security in institutions like courts and schools. The Court should similarly recognize the importance of such interests in the Second Amendment context.

Three Questions about the Second Amendment and the Temporary Closure of Gun Stores

The closure of “non-essential” businesses in response to the spread of Covid-19 raises a host of difficult legal questions. Among those questions, of course, are some involving right to keep and bear arms. Put simply: Does the Second Amendment permit gun stores be temporarily closed?

Some advocates and commentators have suggested that this is an easy question with a straightforward answer—temporarily closing gun stores is a per se unconstitutional infringement of the right to keep and bear arms, tantamount to a “suspension” of the Second Amendment (or perhaps a “ban”). But that kind of categorical conclusion belies the genuinely complex and interesting constitutional questions that such closures raise. Consider at least three.

  1. Are Gun Stores Different than Other Closed Businesses?

Part of the opposition to gun store closures seems to be rooted in a sense that gun stores are being unfairly targeted—a view consistent with the broader assertion that the Second Amendment is being treated as a “second-class right.”

Without more, it is hard to see how this argument gets very far. The response to the Covid-19 pandemic—a challenge unlike anything the nation has faced in at least a century—has led to the closure of many businesses and institutions important and even necessary to the exercise of constitutional rights. If anything, gun stores seem to be receiving special solicitude, as in the recent Department of Homeland Security (DHS) memo suggesting (albeit in purely advisory fashion) that “essential” workers should include those “supporting the operation of firearm or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges.”

Whatever the policy reasons for this decision, the constitution does not seem to require it, any more than it requires carve-outs for other institutions whose closure impacts the exercise of constitutional rights. Members of congregational religions cannot engage in free exercise. Public school students cannot receive the free educations guaranteed to them by the vast majority of state constitutions. Closing bookstores obviously impacts the freedom of speech, prohibitions on public gatherings essentially forbids peaceable assemblies … the list goes on.

The fact that those rights are temporarily burdened is cause for concern, and civil libertarians are not wrong to keep a close watch on powers the government claims in a time of crisis. But those burdens are not categorically unconstitutional, and it is hard to see why gun stores should be entitled to some kind of special exemption above and beyond those claimed by houses of worship, schools, bookstores, and the like.

To be sure, some gun rights advocates have argued that in fact the Second Amendment is first among equals—“America’s First Freedom”—and so should receive protection above and beyond that of other rights. (Indeed, in some cases this seems to be the actual thrust of the “second-class right” argument.) But unless and until that proposition gains acceptance, courts’ response should probably be the doctrinal equivalent of, “Don’t make this about you.”

That of course does not mean that the government should or must close gun stores—only that the question is one of policy and politics, and is not dictated by the constitution.

  1. What Constitutional Interests Are at Stake?

The fact that gun store closures are not uniquely problematic or per se unconstitutional does not mean that they’re categorically constitutional, either. As with the closure of other constitutionally-relevant institutions mentioned above—houses of worship, schools, bookstores, and the like—there are colorable constitutional questions about the scope of the government’s authority in these extraordinary circumstances. Getting traction on those questions means getting some clarity on some basic elements in the calculus. Assuming that the doctrinal analysis will involve (whether explicitly or not) some kind of scrutiny, that means—at the very least—being precise about the constitutional interests at issue and the governmental interests being asserted.

As to the former, some arguments against gun store closures have misapprehended the private rights at stake. Suspending retail gun sales is not a direct prohibition on self-defense, as some have suggested, nor even a prohibition on armed self-defense. Anyone who possesses one of the roughly 400 million guns in circulation in the United States can still use it for self-defense (subject to the still-applicable legal rules) whether or not gun stores are open. Likewise, closing gun stores does not amount to a prohibition on gun possession. If you have a gun, you can keep it. Nor do these orders affect the right to carry a gun for protection consistent with existing state law.

The burden, of course, falls on those who don’t have guns or—and this matters, too—don’t have the guns that they’d like to have for the constitutionally guaranteed purpose of armed self-defense, which Heller tells us is at its apex in the home. For these people, closing gun stores is undoubtedly a significant burden. Some might seek to purchase from a non-licensed dealer—i.e., from a source other than a store. For obvious reasons, it is hard to know how many guns are sold every year by non-licensed dealers, but even conservative estimates put it at an appreciable percentage (i.e., many millions) of guns.

Even that avenue might not be legally available in some states, though. If a state requires background checks for all sales—rather than just those from licensed dealers, which is the federal rule—then rules shutting down the state background check system (or, for that matter, licensing system) amount to a total (albeit temporary) prohibition on legal purchase.

As noted above, that’s not necessarily any different from the burdens being imposed on other constitutional rights, from free exercise of religion to freedom of speech. But that doesn’t mean it’s not a burden. One factor in assessing that burden is the length of time—and that, of course, is one of the many, many unknowns. A temporary, short-term prohibition on purchase is, after all, simply a waiting period. Courts have upheld waiting periods, licensing requirements, background checks, training requirements, and other delays, and there’s no reason to think that they’re categorically unconstitutional. In short, a temporary suspension of the ability to buy a gun from a licensed dealer does not necessarily amount to a prohibition on the right to keep and bear arms. But the broader and deeper that the suspension lasts, the more significant the burden becomes.

A separate question here is whether the gun stores themselves might assert a Second Amendment right to sell guns. Heller noted that the Second Amendment is consistent with “laws imposing conditions and qualifications on  the  commercial  sale  of  arms,” but there has been some important litigation on the question. Perhaps the most prominent case is the Ninth Circuit’s decision in Teixeira v. County of Alameda. The court there concluded, inter alia, that the Amendment “does not confer a freestanding right on commercial proprietors to sell firearms.”

  1. What Governmental Interests Are At Stake?

Finally, it is important to be clear on what governmental interests are being asserted—that is, what the government is seeking to accomplish by shutting down gun stores. I can think of at least two possible reasons.

The most obvious is that gun stores, like all businesses, are potential sites for transmission of Covid-19. Shutting them down temporarily is, like shutting down bookstores or clothing stores or any other retail establishment, part and parcel of the larger effort to slow the virus’ spread. The broader the orders, the easier it is to see this rationale at work—it is not as if gun stores are being singled out, after all.

That said, it is also worth noting which establishments are being labeled “essential” and allowed to stay open—liquor stores have often been singled out in this regard. If disease-prevention is the reason for the closures, then the argument becomes stronger that whatever works for those businesses (online payments, curbside transfers of merchandise, etc.) might be made to work for gun stores as well. At the very least, as Josh Blackman suggested here, it is worth asking whether gun stores might be able to sell guns in a sufficiently safe (vis-à-vis the virus) manner, roughly akin to how restaurants and other businesses are doing.

But perhaps virus-transmission is not the only motivation behind the restrictions. After all, as gun rights advocates have strenuously argued in recent weeks, the unrest and fear brought on by the pandemic might change benefits and costs of gun ownership itself. For evidence of the asserted benefits, one need look only to statements touting the current moment as a reminder of what the Second Amendment is for, and to the market itself, which has seen a huge spike in sales of arms and ammunition in recent weeks. Many people seemingly feel that armed self-defense is more important now than ever before.

But, of course, the same factors that motivate some people to buy guns as a means of safety will lead others to be and feel less safe. How to accommodate these competing interests is a standard, and difficult, question for Second Amendment analysis. It is not hard to imagine the potentially heightened dangers of various kinds of gun misuse in the current situation: increased gun-related domestic violence, deaths by suicide, accidental shootings (especially of children, who are home from school with distracted or remotely working parents), “false positive” defensive gun uses, and the like.

If the “real” reason behind temporarily closing gun shops is to mitigate these kinds of gun-related risks and harms, then the store closures present standard Second Amendment questions (roughly akin to those in the zoning cases like Teixeira) and should be analyzed as such. In resolving those challenges, courts should presumably give due weight to historical practice during times of emergency (which Darrell is blogging about later this week), and the private and public interests at stake.

In practice, it seems that advocates have little to fear in most places—most shutdown orders have exempted gun stores from closure, and the DHS order this weekend may well give them further support. (Even as I’m writing this, New Jersey has announced that gun stores will now be considered “essential” businesses.) That suggests that there’s no widespread political process failure here, and that the question of whether gun stores can or should be closed can continue to be worked out by the political branches without unnecessary reliance on courts and the Second Amendment.

Why Regulate Guns?

[This post by Reva Siegel and Joseph Blocher was originally published on the Take Care blog on 12/2 and and is cross-posted there.]

The Supreme Court is about to hear argument in its first major Second Amendment case in nearly a decade. The regulation in New York Rifle & Pistol Association v. New York (NYSRPA), which restricted transport of guns outside the home, has been repealed and replaced with a state law that seems to render the case moot. But if the Justices do not declare the case moot, they are expected to expand protections for the right recognized in District of Columbia v. Heller in 2008. Gun advocates are urging the Court to expand Heller beyond the home and to reject the current approach to Second Amendment law in favor of more stringent doctrinal alternatives. If the Court goes down that road and mandates closer scrutiny of governments’ justifications for regulating guns, the ruling could call into question the constitutionality of mainstream laws restricting high capacity magazines or requiring permits for carrying loaded weapons in public places like Walmart.

We write to focus attention on a taken-for-granted feature of the current framework that escalates in importance as the Court applies a more stringent standard of review: the state’s interest in regulating guns. Courts generally recognize that the government has a compelling interest in preventing wrongful shootings. But mechanical recitation of this public-safety interest has blocked consideration of the different communities and the different constitutional values that public safety regulation of guns serves. If the Court mandates increased scrutiny of gun laws, demanding evidence that a law is narrowly tailored to achieve the state’s interests—without properly accounting for what those interests really are—the Court is likely to create a framework that over-protects gun rights and invalidates gun legislation that the public has legitimate interests in enacting. Only by considering the different communities protected and different values vindicated by gun laws can judges determine whether, in a given case, the government has sufficient reasons for enacting a particular restriction on gun use, and what kinds of evidence are appropriate to support the government’s case.

NYSRPA arrives at the Court after years of claims by gun rights advocates that lower courts are “nullifying” the Second Amendment or treating it as a “second class right.” There are empirical reasons to doubt this claim, but in this post we raise a different reason it misdescribes the law. In short: case law narrowly accounts for the states’ important interests in regulating and so is likely to skew analysis if the Court demands closer scrutiny and narrow tailoring. Far from relegating the Second Amendment to a “second class right,” this narrow account of state interests has put the government at a disadvantage it does not necessarily face in other areas of constitutional law.

The state interest question is an important one for the Court to address in NYSRPA. Young Americans who have mobilized against gun violence under the banner of March for Our Lives (MFOL) filed an amicus brief that advances the state interest analysis, by making visible different communities that gun laws protect and important constitutional values that gun laws vindicate. The brief “presents the voices and stories of young people from Parkland, Florida, to South Central Los Angeles who have been affected directly and indirectly by gun violence,” and paints a graphic picture of the direct and indirect costs of gun violence on young people, in an effort to “acquaint the Court with the pain and trauma that gun violence has inflicted on them, and the hope that their ability to advocate for change through the political process affords them.”

The MFOL brief recounts the stories of young Americans who have survived gun violence and turned to the political process in an effort to manage the experience. They seek to persuade others of the importance of enacting gun safety laws that would protect their families, their friends, and themselves from similar violence in the future, and that would make possible safe places to assemble and to learn. The stories in the MFOL brief show that gun laws protect many communities and promote many goods—the laws surely serve state interests beyond the prevention of specific shootings.

Guns in schools do much more than threaten individual students with injury. One recent headline reported “356 victims” over the past ten years—counting only those killed or injured in 180 school shootings during that period. But even if one focuses only on students present in those schools, the true number of students victimized by gun violence is many hundreds times higher than that. Consider the children who hid, or fled, or were marched out of school with their hands in the air, or who lost friends, or (as powerfully described in the MFOL brief) watched their friends die, or wake up with nightmares. Anyone present in a school where a shooting takes place runs a risk of suffering lifelong trauma. By one count, approaching a quarter of a million school children have experienced school violence since Columbine. Through graphic accounts by survivors, the MFOL brief makes plain that shootings reverberate through society ravaging the lives of many more people than those who are shot. Shootings tear through urban communities. They haunt families, and transform the experience of neighborhoods and schools.

The managerial language of public safety does not do justice to the reasons individuals and groups seek to enact gun safety laws.  The “young people coming of age in an era of school shootings and rampant urban gun violence” entering politics to enact gun laws are exercising constitutionally protected freedoms of many kinds as they made plain in naming their movement “March For Our Lives.” When government legislates in response, it is doing more than preventing particular deaths. It is practicing responsive local democracy that simultaneously affirms the lives and voices of a new generation of citizens, affirming the long-standing role of states as laboratories of democracy, as the MFOL brief explains, “to devise solutions to social problems that suit local needs and values.”

But there is more. Guns and gun violence impact people’s ability to enjoy the full range of their constitutionally guaranteed liberty, including the right to speak, to learn, and to peaceably assemble. For that matter, the government may have a compelling interest in legislating so as to improve public confidence in institutions like legislatures and schools—to demonstrate that these institutions can and will respond to the expressed needs of their citizenry, and promote the interest that all share in inhabiting public institutions and spaces in security and confidence and freedom from fear.

Even in First Amendment cases, the Court has recognized that the government has a legitimate interest in defending values and interests that go beyond remedying or preventing particular instances of wrongful conduct. In Roberts v. Jaycees, for example, the Court upheld a law prohibiting discrimination in public accommodations against a freedom of association challenge, noting that the law was designed to protect citizens “from a number of serious social and personal harms,” that discrimination in public accommodations “deprives persons of their individual dignity and denies society the benefits of wide participation in political, economic, and cultural life,” and that the state’s interest is not limited to “assuring equal access limited to the provision of purely tangible goods and services.”  The Jaycees case is important as it recognizes that public accommodation laws promote equal opportunity for individuals and communities by affirming equality values as well as by fairly distributing access to goods and services. The discussion of state interests in the Jaycees case illuminates the state interests in enacting gun laws as well. It suggests that states enacting gun laws can vindicate individual as well as societal interests. The Court’s analysis in Jaycees further suggests that the government can do more than promote its citizens’ bare interest in survival or freedom from physical harm. Government also has valid interests in protecting forms of public participation in community life, as well as cultivating the confidence of citizens in the responsiveness, effectiveness, integrity, and safety of its institutions.

Consider also a more recent state interest analysis: Chief Justice Roberts’ majority opinion in Williams-Yulee v. Florida Bar, which rejected a First Amendment challenge to a Florida law prohibiting judicial candidates from soliciting campaign funds. The Chief Justice’s majority opinion upheld the challenged law despite applying strict scrutiny. In doing so, the Chief Justice found that the Florida law was narrowly tailored. Not only did the law further the prevention of quid pro quo corruption, but it advanced the “State’s compelling interest in preserving public confidence in the integrity of the judiciary.” Can public confidence in the safety of schools be any less compelling?

This account of the state interests that legislation may serve has important implications for the constitutionality of gun laws going forward. If the government interest in enacting gun laws is understood as an interest in public safety, and public safety is understood as an interest in deterring wrongful shootings, measurable by deaths and injuries that a law can be shown to prevent, then the constitutionality of a gun regulation will depend on an empirical showing. And while there is plenty of good empirical evidence of this kind, framing the means-ends analysis in this framework can impose a heavy, and sometimes, insurmountable, burden on the government. The difficulties may be particularly acute for novel laws designed to address novel problems, where evidence (empirical comparisons of jurisdictions with and without such laws, for example) may not always be available, especially given the well-known difficulties in funding research on gun violence. That, in turn, could lead a skeptical judge to strike down a law on the tailoring prong, even while recognizing the compelling state interest in preventing wrongful deaths.

Recognizing a broader interest means that the constitutionality of a gun law need not pivot exclusively on how many shootings it can be shown to prevent. Instead a court may allow evidence that a law contributes to public confidence and a sense of safety in other ways that might not be subject to ready empirical evaluation. The government might still bear the burden, as it always does under heightened scrutiny, but it would not be required to carry that burden using empirical studies. Again, this is how constitutional adjudication sometimes works. In abortion cases, for example, courts do not require empirical evidence of how a particular restriction furthers state interests like the respect for potential life. Or, as the Chief Justice put it in Williams-Yulee, “The concept of public confidence in judicial integrity does not easily reduce to precise definition, nor does it lend itself to proof by documentary record. But no one denies that it is genuine and compelling.”

Too often, the gun debate is presented as if there are constitutional rights on one side (that of gun owners) and only nebulous policy “interests” on the other. But that frame misses precisely what is hard about the gun debate, and which our alternative conception of the state interest can potentially help show: Both sides feel urgently that they must do all they can to keep themselves and their children safe from gun violence. Both sides can appeal to constitutional values. As Justice Stevens recognized in McDonald, “in evaluating an asserted right to be free from particular gun-control regulations, liberty is on both sides of the equation. Guns may be useful for self-defense, as well as for hunting and sport, but they also have a unique potential to facilitate death and destruction and thereby to destabilize ordered liberty. Your interest in keeping and bearing a certain firearm may diminish my interest in being and feeling safe from armed violence.”

Gun owners regularly point to reassurance they feel in owning or carrying guns, even knowing that only a small fraction of them will ever use a gun in self-defense. As the stories in the MFOL brief powerfully demonstrate, advocates of regulation seek the same piece of mind through democratic politics. The Constitution is on both sides.

SCOTUSBlog Symposium: Disrupting the consensus on Second Amendment doctrine would be a mistake

[This post is part of a symposium on New York State Rifle & Pistol Association v. City of New York, hosted on SCOTUSblog and is cross-posted there.]

Joseph Blocher is Lanty L. Smith ’67 Professor of Law at Duke Law School, where he co-directs the Center for Firearms Law. Eric Ruben is Assistant Professor of Law at SMU Dedman School of Law and a Brennan Center Fellow. Along with Darrell A.H. Miller of Duke Law School, they filed an amicus brief in support of neither side in New York State Rifle & Pistol Association v. City of New York.

In one sense, the stakes in New York State Rifle & Pistol Association v. City of New York couldn’t be lower: The challenged regulation, a one-of-a-kind New York City restriction on transporting licensed handguns outside city limits, has already been repealed, arguably rendering the case moot. But when it comes to Second Amendment doctrine and methodology, the stakes are higher than they’ve been in a decade. If the petitioners have their way, the Supreme Court could reject the mainstream approach for deciding Second Amendment questions in favor of a more radical test focused solely on “text, history, and tradition” and without consideration of contemporary realities of guns and gun violence. That would be a mistake.

The methodological debate animating this case began 10 years ago in District of Columbia v. Heller, in which the court held that the Second Amendment protects an “individual” right to keep and bear arms for private purposes like self-defense, and that the right—like all constitutional rights—is subject to regulation. But, aside from listing some “presumptively lawful” measures, the court did not identify a doctrinal mechanism to evaluate those regulations (tiers of scrutiny, adequate alternatives, substantial burden, etc.), instead leaving the task to the lower courts.

In more than 1,000 cases since Heller, the doctrinal dust has begun to settle, and the outlines of constitutional rules and standards have become clearer. Of course, no constitutional right is governed by a single doctrinal test; even the canard that fundamental rights get strict scrutiny—repeated often by the petitioners in this case—is simply false. (Free speech claims, to take one obvious example, are governed by a wide range of tests.) But courts have nonetheless converged, with striking unanimity, on a general framework for adjudicating Second Amendment cases. That framework is frequently called the “two-step test.”

The first step is a threshold inquiry about whether the Second Amendment comes into play at all. As Heller makes clear, there’s no scrutiny necessary for bans on possession by felons (with arguable and limited exceptions for as-applied challenges), or “dangerous or unusual” weapons such as machine guns, or weapons in “sensitive places.” For those regulations that do raise Second Amendment questions, courts proceed to the second step and apply something like a sliding scale of means-end scrutiny to evaluate the relationship between the state interest served by the regulation and the methods employed to further that interest. The more seriously a regulation interferes with the “core” interest of self-defense in the home, the more scrutiny it gets.

This framework is so basic as to be archetypal—constitutional rights adjudication frequently involves a threshold inquiry into the right’s applicability, followed by some context-specific scrutiny of burden, purpose and tailoring. In the First Amendment context, for example, courts regularly ask whether an activity—campaign contributions, for example—counts as “speech” before applying whatever doctrinal test is appropriate.

In short, as some constitutional law scholars have concluded, using the two-part framework means treating the right to keep and bear arms like the fundamental right that it is. The two-part framework, moreover, accommodates both historical analysis and consideration of contemporary costs and benefits; it includes both bright-line rules (prohibitions on laws that go “too far”) and standards. And the fact that it has been endorsed by every federal court of appeals is a resounding vote of confidence.

And yet the petitioners in this case contend that applying this common methodology converts the Second Amendment into a “second-class right.” Courts are too lenient with regard to the tailoring analysis, the argument goes, or misconstrue the historical element of the framework. They say the two-part test has been systematically misapplied.

Of course, “mistakes” are inevitable in any high-volume area of constitutional litigation, and some have undeniably occurred in Second Amendment cases. One court, for example, found that the amendment protected only those “arms” in existence at the nation’s founding—not modern-day weapons like stun guns—a decision overturned by a unanimous Supreme Court. In truth, such mistakes have been relatively rare. Most Second Amendment cases are weak to begin with. This is partly because of Heller itself, which blessed as “presumptively lawful” various regulations that are often challenged, like felon-in-possession laws. It’s also due to the fact that gun politics prevent most stringent regulations from being enacted in the first place—this is not a target-rich environment for gun-rights litigators. When a court errs in upholding an unconstitutional law, however, the typical way to correct the error is through appellate decisions. In this case, by contrast, the Supreme Court is being asked to forgo the typical approach, toss out the consensus methodology and supercharge the Second Amendment with a new set of rules.

The most prominent alternative to the two-part framework is the one articulated by then-judge Brett Kavanaugh in a dissent in the U.S. Court of Appeals for the District of Columbia Circuit: That gun regulations should not be evaluated using any level of scrutiny, but rather by looking to text, history and tradition alone.

Some advocates of this new test hope and expect that it would expand the right to keep and bear arms to some imagined historical ideal, immune from regulation. But that historical image is itself ahistorical: Gun rights and regulations have coexisted for centuries. The laws have changed, because guns and gun violence have changed, but from the very beginning we’ve had versions of safe-storage requirements, bans on “dangerous and unusual” weapons, restrictions on public carrying and even outright bans on public carry – including in supposed gun havens like Dodge City and Tombstone. Guns are a part of American history, but so, too, is gun regulation. For reference, there are more than 1,500 entries in Duke’s Repository of Historical Gun Laws, a searchable, non-comprehensive database of firearms regulations that predate the federal government’s first major intervention into the field in 1934. A properly applied historical test should uphold a lot of gun regulation.

The main problem with relying solely on text, history and tradition, however, is that it doesn’t provide useful guidance for modern-day regulations that respond to modern-day gun violence. The text alone can’t tell you whether a machine gun is an “arm” or whether convicted felons are among “the People” the Second Amendment protects. The 27 words of the amendment are silent on many questions, and history and tradition don’t speak with one voice—there were and are significant regional differences in approaches to gun regulation, as well as divisions between urban and rural areas.

Perhaps in some extreme cases (a total ban on public carry, for example), text, history and tradition would provide relatively clear rules. But for most standard forms of modern gun regulation—restrictive licensing schemes for public carry, for example, or prohibitions on high-capacity magazines or on gun possession by people convicted of domestic violence—all of the work would be done by analogical reasoning. Judges would have to decide for themselves whether certain modern guns or gun laws are relevantly similar to laws from 150 or 200 years ago.

How would such a “test of judicial analogies” work in practice? Is a rocket launcher like a musket, because you can lift it, or is it like a cannon, because it’s so powerful? How is an AR-15 like a musket? Do you compare barrel lengths? Muzzle velocity? Relative deadliness? Such questions place a lot of weight on judges’ own, perhaps unexamined intuitions. In this way, the test of text, history and tradition simply cloaks judicial discretion in an air of objectivity.

In practice, the supposedly historical inquiry eventually comes back, in a roundabout and less transparent way, to the same kinds of questions that are front and center for means-end scrutiny. Good analogical reasoning requires finding relevant similarities, and what’s most relevant about guns is their function, especially their usefulness for what Heller says is the “core lawful purpose” of self-defense. If automatic weapons are prohibited, but semi-automatic handguns are permitted, does that materially interfere with people’s ability to defend themselves in their homes? If so, has the government shown that the prohibition is appropriately tailored to a sufficiently strong interest? The two-part framework makes those questions explicit, rather than laundering them through a subjective form of historical formalism.

Text, history and tradition absolutely matter in the context of the Second Amendment, just as in other areas of constitutional law. But to make them the sole measure of constitutionality wouldn’t give much useful guidance in hard cases, and would invite a lot of unarticulated, potentially hidden judicial discretion and power. Second Amendment scholar Nelson Lund puts the point well: “Pretending to find the answers in history and tradition will encourage either covert judicial policymaking, which is just what reliance on history and tradition is supposed to prevent, or ill-supported historical stories in defense of results that could honestly and responsibly be justified through normal means-end scrutiny.”

The Supreme Court is being asked in this case to reject a doctrinal framework unanimously endorsed by the federal courts of appeals and widely used in constitutional-rights jurisprudence, and to adopt instead a brand-new doctrinal test that would almost certainly invite broad judicial discretion. We hope that the court declines that invitation.

Unbannable Arms?

When it comes to the “Arms” protected by the Second Amendment, the conceptual space is typically divided into two categories. Some weapons, like those that are “dangerous and unusual,” can be banned without raising any constitutional problems. For those that are not dangerous and unusual, the government has to satisfy some requisite level of scrutiny. But—and I hate to do this again, having just made a conceptually similar argument about the Two Part test—there also seems to be a third category: Weapons that cannot be banned without categorically violating the Second Amendment.

Heller itself provides a ready example. The Court there applied no particular form of means-end scrutiny, instead writing that DC’s “handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose.” The Court concluded that handguns have a unique relationship to the core Second Amendment interest in self-defense, and no prohibition on them can be justified:

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. . . . Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

The availability of other weapons for self-defense—long guns, for example—was therefore not enough to save DC’s law.

What arguably emerges from Heller, then, are not two but three categories of arms. “Dangerous and unusual” weapons are categorically excluded from coverage and can be banned without raising any constitutional concerns. They are the equivalent of libel or securities fraud under the First Amendment. Weapons “in common use” are covered by the Second Amendment, so bans involving them are subject to scrutiny—a prohibition on high-powered rifles or high capacity magazines, for example, must be appropriately tailored to a sufficient government interest. Finally, within the general set of constitutionally covered common-use weapons, some classes cannot be banned, regardless of the efficacy of the law or the government interests involved. This last category includes handguns, which Heller emphasized have a unique connection to self-defense. Are there other classes of arms that are similarly immune from bans? (I try to unpack that and related questions in “Bans,” which is forthcoming soon in the Yale Law Journal and from which some of this discussion is drawn.)

Some judges seem to have concluded that any arm (or “hardware”) in common use is immune to prohibition. In Duncan v. Becerra—an unusual opinion involving California’s restriction on high capacity magazines, which, it’s safe to say, will not be the last word on the subject—the district court concluded that Heller provides a test that is “simple” and “crystal clear.” According to the judge in that case, “It is a hardware test. Is the firearm hardware commonly owned? Is the hardware commonly owned by law-abiding citizens? Is the hardware owned by those citizens for lawful purposes? If the answers are ‘yes,’ then the test is over.”

The test is simply stated, perhaps, but hardly “crystal clear” in practice, for reasons that Eugene Volokh and many others have pointed out ever since Heller. What counts as “common”? For that matter how does one separate one set of “hardware” from another? For purposes of evaluating constitutionality in a case involving high-capacity magazines, does one count all magazines over 10 rounds? 20?

The definitional problems are even harder when one tries to apply them to firearms. Handguns might seem like a natural category, and maybe it is. But if one tries to get much more specific than that, the divisions feel less like a taxonomic exercise and more like an effort to list cosmetic features. Indeed, one common line of argument against assault weapons bans is that they are an irrational effort to target scary-looking guns. But that definitional argument cuts both ways. If would-be regulators can’t define a class of arms with requisite precision, can gun rights advocates do any better?

Fundamentally, though, the problem has less to do with definitions than it does with constitutional principle. Under what plausible account of the right to keep and bear arms should a weapon’s commonality render it immune to prohibition? What Second Amendment value does that protect? Adopting a rule that is “crystal clear” but tracks no underlying constitutional principle means not just elevating form over substance, but actually ignoring the latter.

In their concurring opinion in Caetano, Justices Alito and Thomas wrote that “the right to bear other weapons is ‘no answer’ to a ban on the possession of protected arms,” citing Heller. But the cited passage from Heller (the one quoted above) says only “[i]t is no answer to say … that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.” And since Heller also emphasizes that “ the American people have considered the handgun to be the quintessential self-defense weapon,” the passage seems to be saying only that there is no adequate alternative to handguns, not that the Second Amendment forbids any consideration of adequate channels of self-defense.

If handguns are the quintessential self-defense weapon, then it seems clear that long guns—including semi-automatic rifles—cannot be. They might be important, and they might be constitutionally protected, but that doesn’t make them immune to prohibition. As the D.C. Circuit put it in Heller II:

We simply do not read Heller as foreclosing every ban on every possible sub-class of handguns or, for that matter, a ban on a sub-class of rifles. . . . [T]he Court in Heller held the District’s ban on all handguns would fail constitutional muster under any standard of scrutiny because the handgun is the “quintessential” self-defense weapon. The same cannot be said of semi-automatic rifles.

In short, the fact that the handgun ban in Heller went too far and was per se unconstitutional does not mean that all “class of arms” rules should be subject to the same treatment.

I suspect that per se rules will continue to gain support among some judges, especially those who see themselves as limiting judicial discretion and providing principled protection for gun rights. I have my doubts that invocation of “bans” will deliver on either of those values.

Part Three of the Two Part Test

In the wake of Heller, state and federal courts have overwhelmingly applied what has come to be known as the “Two Part Test.” The first part is a threshold inquiry about whether the challenged regulation intersects with the Second Amendment at all. If the answer to that inquiry is yes, then courts move on to the second part: Typically some kind of means-end scrutiny, the stringency of which depends on how much the law burdens the “core” right of self-defense.

The desirability of the Two Part Test is, in many ways, the most important question currently before the Supreme Court in NYSRPA. (The constitutionality of the challenged regulation hardly matters, since that regulation—which, as best as anyone can tell, was unique and maybe not even enforced—has already been repealed, rendering the case moot for all intents and purposes.) Along with Darrell Miller and Eric Ruben, I’ve filed an amicus brief in support of neither party generally defending the two part approach against doctrinal alternatives like the test of “text, history, and tradition.”

But there’s another important question about the test, which is not whether it should be adopted, but how many parts it actually has. Although the two step, coverage-protection framework outlined above accounts for the vast majority of Second Amendment litigation, there’s a subset of cases (and a somewhat broader set of dissenting opinions) in which judges don’t apply any kind of scrutiny at all at part two. Instead, they blow right past the tiers of scrutiny, or any other standard doctrinal machinery, and apply per se rules of invalidity.

What justifies these per se rules? So far as I can tell, they are not predicated on a view that the Second Amendment’s right is absolute—a position that Heller clearly rejects—or that it always behaves as a Dworkinian “trump.” Rather, some judges seem inclined to adopt per se rules when they think that a challenged law has gone too far in terms of the burden it imposes on rightsholders. In those situations, no tailoring analysis is necessary or appropriate, and the law must be struck down.

The emerging part three of the two-part test, then, is the application of per se rules to certain especially burdensome gun laws. Heller itself is arguably an example, since the Supreme Court struck down DC’s handgun restriction without application of any standard doctrinal tests. The D.C. Circuit majority in Wrenn effectively made the same move by characterizing the DC public carry restrictions as a “ban,” and thus unconstitutional under any level of scrutiny. And a number of prominent dissenting opinions (including Judge Kavanaugh’s in Heller II) have essentially applied that approach in cases involving prohibitions on certain classes of arms (“assault weapons,” for example), eschewing means-end tailoring in favor of per se rules.

The downside of these per se rules, however, is that they can generate a false sense of clarity while hiding a great deal of judicial discretion. After all, what makes a restriction a “ban” in the first place? Most likely, the label is simply shorthand for saying that it is a really serious, and probably impermissible, restriction on a constitutional right. But that seems like something that should be the result of transparent legal reasoning, rather than a way to short circuit it. To call something a ban subject to per se invalidity is a legal conclusion, after all, not simply a threshold determination about which kind of doctrinal test to apply. It would seem better to reach that conclusion through a more thorough and transparent consideration of how the “core” interest of self-defense is impacted by a particular regulation.

I think that doing so would inevitably involve some kind of adequate alternatives analysis: If really serious burdens on rightsholders should be subject to per se invalidity, then prohibitions—even “bans” on particular arms or activities—that have minimal impact should not. In other words, one must consider not only what a legal regime forbids, but what it permits. Maybe assault weapons are banned, but handguns (the “quintessential self-defense weapon,” per Heller) are permitted, meaning that the constitutional interest in self-defense is itself not being prohibited. And if that’s the case, it means that some judges have gone astray in treating weapons in “common use” as being immune to prohibition.

I’ll have more to say about that particular question in a blog post tomorrow. And I try to address the broader phenomenon—which is not limited to the Second Amendment—in “Bans,” forthcoming soon in the Yale Law Journal. Short version: I have my doubts that the concept of a “ban” is doing any real or defensible work, but that the best case in favor of it would be the functionalist analysis described above.

Domestic Violence and the Home: Hard Questions for the Second Amendment

October was Domestic Violence Awareness Month, and as Jake noted in his post earlier this week, the Center fortunately had a chance to help coordinate a well-attended event on the topic, which was co-sponsored by the Duke Human Rights Center at the Franklin Humanities Institute, the Duke Human Rights Center at the Kenan Institute for Ethics, the Coalition Against Gendered Violence, the Human Rights Law Society, the International Law Society, and the Women Law Students Association. The breadth of the sponsorship and positive response to the event were appropriate, since there is broad support for the wisdom and constitutionality of laws targeting the link between firearms and domestic violence (DV). Such laws are politically popular, and have been overwhelmingly upheld against Second Amendment challenges.

And yet, at least at a conceptual level, the application of DV prohibitors to gun possession in the home raises some difficult questions for standard positions in the Second Amendment debate. As readers of this blog will know, the degree to which the right to keep and bear arms is home-bound—or at least home-centric, in the sense that it is strongest within the home—is perhaps the most important and most contested issue in Second Amendment law and scholarship. But that debate has not always grappled forthrightly with the possibility that limiting the right to the home, or at least identifying the home as its apex (a goal of many gun regulation supporters) might fail to address, and could even exacerbate, the threat of armed domestic violence.

Roughly half of all firearms-related homicides occur within the home, rather than in the mass shootings—let alone dark alleys and parking lots—that tend to be central in the public gun debate. Put simply, a great deal of gun violence in the United States is “private.” And while it certainly makes sense to focus on gun rights and regulation in public places, since that’s where many of the current political and constitutional controversies lie, it is important not to lose sight of what is—especially for women—the primary site of gun violence: the home.

Those gendered differences are impossible to ignore. Men and women face strikingly different realities with regard to gun-related violence, including homicides. For women, the primary threats are not lurking strangers, but intimate partners. A recent study from the Centers for Disease Control, for example, suggests that most women who are murdered in the United States are killed by an intimate partner, and that more than half of those murders involve a firearm. Roughly 4.5 million women in the United States have been threatened by an intimate partner, and about 1 million have been shot, or shot at, by one.

Of course, there are a variety of responses to these numbers. One would be to say that victims of intimate partner violence (who are overwhelmingly but not exclusively women) should arm themselves in self-defense. But studies have suggested that gun ownership is ineffective as a means of self-defense for women facing intimate partner violence, and can even exacerbate the risks. At the very least, when the threat emanates from within the home, the prospect of arming oneself against it presents serious complications.

This is nothing new for feminist legal scholars, who have spent decades unpacking the concept of “the home” and the division between public and private. (Here’s Jeannie Suk explaining some of the themes from her book, At Home in the Law.) But Second Amendment scholars should also take note: An uncritical embrace of the home-centric right to keep and bear arms could weaken the constitutional foundations of DV laws by providing abusers with a stronger argument for “private” gun possession in their homes.

To be clear, DV laws are not in immediate danger. Federal law, and the laws of many states, already restrict gun possession by those convicted of a DV misdemeanor or subject to a DV restraining order, and enforcement efforts are apparently ramping up in recent years. Those laws have almost universally been upheld against Second Amendment challenges. And as a statutory matter, in cases like Voisine and Castleman, the Court has generally interpreted the domestic violence prohibitor broadly.

Still, there may be some cause for unease. In Voisine, the Court held that the federal DV prohibitor applies to a person convicted under a misdemeanor assault statute encompassing “reckless” conduct. What drew attention, however, was not that narrow legal question, but the fact that it marked the first time in a decade that Justice Thomas asked a question at oral argument. As the attorney for the government was concluding, the Justice spoke up. “One question,” he said. “[T]his is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?” The question proved to be a reliable indicator of his views. In a dissenting opinion, Justice Thomas argued that the majority’s construction of the statute rendered it unconstitutional. No other Justice joined that part of his opinion.

But Justice Thomas was also writing for himself in Printz when he noted the “impressive array of historical evidence” and the “growing body of scholarly commentary [that] indicates that the ‘right to keep and bear arms’ is, as the Amendment’s text suggests, a personal right.” Eleven years later, the Court held as much in Heller. An uncritical adoption of the home-centric view of the Amendment could raise similar challenges for DV laws in the future.

*This post is adapted from “Domestic Violence and the Home-Centric Second Amendment,” forthcoming in the Duke Journal for Gender Law & Policy.

Scholarship and the “Constitutional Case for Gun Control”

Earlier this week, Yale law students Joshua Feinzig and Joshua Zoffer published a powerful piece in The Atlantic describing the “A Constitutional Case for Gun Control.” Inspired in part by Robert Cover’s work on the essential role of narrative in imbuing law with moral authority, they argue that the narrative-driven brief filed by the March for Our Lives Action Fund in NYSRPA “marks the beginning of a long-needed effort to offer a pro-gun-control constitutional narrative, one that calls attention to the constitutional rights and goods vindicated by gun regulation.”

The MFOL brief is indeed an extraordinary document, and Feinzig and Zoffer highlight the ways in which it differs from standard defenses of gun regulation, which tend to invoke doctrine, history, or empirics. As Darrell pointed out to me, the brief is also a notable example of what Jamal Greene calls “Pathetic Argument in Constitutional Law”—an argument that appeals to pathos; a reader’s emotions. Gun rights advocates have made powerful use of those arguments over the years by tying the right to keep and bear arms to the right of self-defense (sometimes conflating the two), and Feinzig and Zoffer note that supporters of gun regulations are invoking the same underlying interests in personal safety: “Gun-control advocates need their own constitutional narrative, one that incorporates a broader conception of self-defense into its vision.”

At a broader level, they are quite right to point out that “the right to bear arms is not the only constitutional commitment implicated in the guns debate ….” And indeed, one of the most important trends in Second Amendment scholarship over the past few years has been increasing recognition and exploration of that fact. As the book’s title suggests, Darrell and I try to do some of that (while emphasizing the importance of a positive constitutional narrative) in The Positive Second Amendment.

But other scholars have done much more thorough work on various other “rights and interests of constitutional magnitude” that intersect with—and might be in tension with—the Second Amendment. Feinzig and Zoffer point to the First Amendment’s rights of assembly and expression, about which Tim Zick, Luke Morgan, and Greg Magarian (among others) have written insightful pieces. Eric Ruben has done important work on the relationship between self-defense and the right to keep and bear arms (“An Unstable Core: Self-Defense and the Second Amendment,” forthcoming soon in the California Law Review) and has a nuanced argument about the ways in which perceptions of safety—not just direct prevention of shootings—can be invoked to support the constitutionality of gun regulations. Jon Lowy and Kelly Sampson have described a “Right Not to Be Shot.”

The list could go on, which is really the point: From a variety of perspectives, legal scholars are increasingly exploring how the right to keep and bear arms intersects with other constitutional rights and interests. That does not necessarily translate directly into advocacy, nor should it—recognizing a multiplicity of constitutional interests is a way to frame the inquiry, not to answer it. But, at least in this instance, scholarship may have something useful to add.

Scholarship Highlight: “Libertarian Gun Control”

Most legal scholarship and public debate about gun rights and regulation focuses on whether and how gun laws can prevent homicide—understandably so, given the astounding number of gun homicides in the United States every year. But as those closer to the debate are well aware, the majority of gun deaths are by suicide. And far less discussion has been devoted to that uncomfortable and seemingly-intractable topic.

All of which means that Ian Ayres and Fred Vars’ “Libertarian Gun Control,” just published in the University of Pennsylvania Law Review, is an especially welcome addition to the literature. In it, they describe a system by which people could choose to waive their right to keep and bear arms—and to credibly communicate that decision to others, thereby setting up something of an associational marketplace. Such a system (distinct from the waiver that Dru Stevenson has discussed on this blog) could help prevent both homicides and suicides, all based on individual choice rather than traditional regulation.

From the abstract:

Individuals should have the option to waive their Second Amendment rights to keep and bear arms by adding their names to the National Instant Criminal Background Check System. Every year, over 20,000 Americans kill themselves with firearms. We present a low-cost and constitutional system that could, in just a few years, easily save thousands of lives as people with mental health or other recurring problems, during moments of clarity, rationally opt to restrain their future selves. Moreover, our system, which includes the option of providing email notifications of an individual’s waiver to third parties, can promote a marketplace of informed association. Just as Heller emphasizes the Second Amendment right to keep and bear arms as furthering the “core” individual right to self-defense, credibly communicated waiver of Second Amendment rights can facilitate the self-defense choices of individuals to limit association with those who may possess weapons. Forcing Second Amendment interests to contend with First Amendment associational interests can thus enhance the joint liberty of those seeking to best defend themselves.

Admittedly, I’m sympathetic to this general frame, having argued that the Second Amendment itself encompasses a right not to keep or bear arms. But Ayres and Vars have a broader take, both as a matter of theory and a matter of practice. As to the former, they note the ways in which constitutional rights and interests appear on both sides of the ledger when it comes to gun possession. This is manifested, for example, in the degree to which one person’s right to keep and bear arms can come into tension with another person’s right not to associate with gun-carriers.

As a practical matter, the immediate response might be: “No one would ever sign up for a ‘No Guns’ list!” But the Ayres/Vars proposal anticipates this objection, and includes the results of an interesting survey suggesting that roughly a third of the general population—and an even higher proportion of those previously diagnosed with a mental health concern—would be willing to do so. And this makes sense, logically, if one accepts that those battling a mental health condition can be fully aware of the risks they face and looking for ways to limit them: what Vars has elsewhere called “self-defense against suicide.”

In short, the article is well worth a read.

The Second Amendment of Things (and Grievances)

[This post is part of a symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019), hosted on the Balkinization blog and is cross-posted there.]

The second chapter of Mary Anne Franks’ exceptional new book, Cult of the Constitution, shows how constitutional fundamentalism distorts debates about gun rights and regulation. In doing so, it offers novel contributions to the increasingly vibrant scholarly literature on the Second Amendment. I’ll focus on two; one conceptual and the other doctrinal. The first is Franks’ focus on the physical instrument (the gun) that is central to the right; the second is what her argument suggests about the future of Second Amendment doctrine.

The chapter is titled “The Cult of the Gun,” rather than “The Cult of the Second Amendment,” and the difference between those framings is subtle but potentially significant. The Second Amendment—perhaps more than any other constitutional right—is centered on an instrument, rather than an activity or status. The Amendment’s verbs (“keep” and “bear”) do real work, but it is the “arm” that gives them literal and figurative force. Subtract it, and the right makes no sense. Of course, other constitutional rights might also protect particular means of their own effectuation: the “press” being an obvious example, at least on some accounts. But even if the difference is a matter of degree rather than kind, the Second Amendment has a notable focus on a particular class of things.

Understanding the Second Amendment as a thing-centered right can have important implications for law and theory—witness the generative debates about property as the “law of things.” In particular, it raises interesting questions about the relationship between the constitutionally specified means (arms) and the underlying end that Heller identifies (self-defense). That relationship is not as straightforward as one might suppose. The right to keep and bear arms is often conflated with a right to self-defense, but the two are distinct—the individual right to self-defense preceded Heller, after all, and doesn’t depend on the Second Amendment. What the Second Amendment adds, per Heller, is a right to have a particular instrument on hand, should the need for such actions—or, on some accounts, other actions like revolution—ever arise. It constitutionally generates a means to an already constitutionally protected end. And the linkage between right and interest is not necessarily as tight as it is in some other contexts: Most self-defense actions do not involve guns, and the vast majority of guns are never used for self-defense. That disconnect is not unique—many speech acts don’t plausibly further free speech values of truth or democracy, for example—but is often elided.

The centrality of the instrument, rather than an action or status (as is the case for many other rights), helps explain the frustrating symmetries of the gun debate, because so many arguments based on instrumental characteristics can be self-negating. As Justice Breyer put it in his Heller dissent, “the very attributes that make handguns particularly useful for self-defense are also what make them particularly dangerous.” Likewise, opponents of assault weapon bans often argue that such bans are pointless because they only forbid cosmetic features like barrel shrouds and telescoping stocks. But that very argument also undermines the Second Amendment case against such bans, unless there is some kind of constitutionally relevant interest in cosmetic features. All sides find themselves feeding ammunition to the others.

This feature of the gun debate is not merely a matter of conceptualism (what does the right mean?), but also a basic point about the gun debate—it’s about guns. And, to return to Franks’ chapter title, that’s why it is important not to lose sight of the “Arms” in the Amendment. As Dan Baum described in Gun Guys: A Road Trip, “It wasn’t so much the Constitution or its authors that gun guys loved; it was guns.” Or, as Australian comedian Jim Jeffries put it, a bit more colorfully: “There is one argument, and one argument alone for having a gun, and this is the argument: ‘F___ off, I like guns.’ …. And there’s nothing wrong with saying, ‘I like something, don’t take it away from me.’”

What does this mean, concretely, for law? While Franks’ primary focus is on the constitution outside the courts, and especially outside the Supreme Court, her account does have important implications for constitutional doctrine. In particular, the Second Amendment provides an unusually useful illustration of how what she calls “victim-claiming” can translate more or less directly into legal rules. This matters not only for the statutory changes that Franks discusses—expansion of stand your ground laws, for example—but for Second Amendment doctrine.

The dominant refrain in gun rights advocacy these days is that the right to keep and bear arms is being treated as a “second-class right.” That assertion regularly appears in op-eds, briefs, and scholarship, and has found sympathetic ears in the judiciary. Justice Thomas in particular has repeatedly asserted it in written opinions, as well as in his first questions at oral argument in nearly a decade. Perhaps most memorably, he recently suggested that the Court was treating the right to keep and bear arms as a “constitutional orphan.”

The second-class right argument is, in many ways, a prime instance of what Franks describes as victim-claiming—“a reversal technique that puts the powerful in the space of the vulnerable ….” As she illustrates throughout the chapter, it is an article of faith for some gun owners that they are a persecuted outgroup akin to a racial or religious minority. Connecting that sense of powerlessness to the second class rights argument, some have alleged that lower courts are engaged in “massive resistance” against the right articulated in Heller, a phrasing apparently meant to invoke Southern resistance to integration after Brown.

It is easy enough to dismiss such comparisons, since it is hard to say with a straight face that gun owners are relevantly similar to the petitioners in Brown with regard to political and social power, or that their interests are not represented in the US political process. Most Americans support the individual right to keep and bear arms recognized in Heller, after all. And although the Democratic primary has featured prominent discussion of gun regulation proposals, most candidates (including those who support regulation) still swear fealty to the “individual” right to keep and bear arms—just as then-candidates John McCain and Barack Obama did in the days after Heller was handed down. The NRA was one of President Trump’s most significant financial supporters, and has by all accounts enjoyed significant White House access. As I and many others have argued elsewhere, these are not the hallmarks of a political process failure demanding an active role for judicial review.

One measure of this political power is that, despite (or perhaps because of) the victim-claiming, even modest, enormously popular reforms like expanded background checks remain unenacted. In fact, existing laws actually protect guns in ways that extend “the right to keep and bear arms” far beyond the right articulated in Heller. Franks explores some of these laws, including the Protection of Lawful Commerce in Arms Act (currently subject of a major post-Sandy Hook lawsuit). In a forthcoming piece, my colleague Jake Charles calls them part of the “Right to Keep and Bear Arms Outside the Second Amendment.”

Of course, as both Franks and Charles carefully note, there is not necessarily a bright line around “the Second Amendment”—all of these developments, in one way or another, make claims on the constitution. But even if one focuses on on court-articulated rules and holdings in Second Amendment cases, it is not hard to see the possible doctrinal impact of the second-class/victim-claiming argument. Until now, the Second Amendment doctrine that has developed in more than 1,000 post-Heller challenges (which Eric Ruben and I describe in this piece, to which Sandy responded here) generally forbids outlier laws like prohibitions on handguns or public carrying, but permits the kinds of reasonable, mainstream regulation that are the focus of most gun violence prevention advocates. That could soon change. And if it does, it seems likely that the forces Franks describes will be the driving factor.

As Franks’ book was going to press, the Supreme Court granted cert in New York State Rifle & Pistol Association v. City of New York (NYSRPA), which will be the first Second Amendment dispute argued before the Court in almost a decade. The stakes of the case have almost nothing to do with the particular New York regulation at issue (which even petitioners describe as unique, and which has been since been altered in ways that seem to moot the case), and everything to do with the methodology that courts use to evaluate Second Amendment claims. If the Court agrees with the NYSRPA petitioners and amici that lower courts and legislators are “drain[ing] Heller . . . of meaning” by systematically disregarding the right to keep and bear arms, the Justices might be inclined to upend the doctrine developed in the lower courts by, for example, applying strict scrutiny across the board.

But the second-class right argument also suffers from some of the same kinds of internal tensions and contradictions as the handgun and assault weapons arguments discussed above. A natural implication of the second-class argument—invoking a kind of equality norm, albeit not the one in which Franks finds the seeds of constitutional redemption—is that all rights are on a par. And indeed one main theme of the petitioners’ argument has been that applying less-than-strict scrutiny to Second Amendment claims would be akin to establishing an impermissible “hierarchy” of fundamental rights. (The suggestion that all fundamental rights get strict scrutiny is false, of course, but that’s an issue for another day.) And yet many gun rights advocates demand not identical or equal treatment, but favored treatment for the right to keep and bear arms. After all, the NRA’s official journal is called “America’s First Freedom.” As Franks notes, Wayne LaPierre himself has said that “some rights are more important to the whole than others” and that the Second Amendment is “the one right that all the others lean on the most.” Maybe Baum and Jeffries were right—it’s just about guns.

As a matter of law, strict scrutiny is not the only option. The most prominent doctrinal alternative to strict scrutiny—one that then-Judge Brett Kavanaugh advocated in a prominent Second Amendment dissent—would evaluate the constitutionality of gun regulations by reference to “text, history, and tradition.” The implications of such a change could be profound, as it would mark a potentially radical departure from the two-part test that has been uniformly adopted by the federal courts of appeal. (Full disclosure: Along with Eric Ruben and Darrell Miller, I filed an amicus brief in support of neither side making this argument at length.) In terms of case outcomes, a properly applied historical test should lead to many of the same results, since gun regulation is a well-established (albeit often underappreciated) fact—Duke’s Repository of Historical Gun Laws includes more than 1,500 pre-1934 laws, and even that number is not comprehensive.

Text, history, and tradition alone are unlikely to provide clear answers to questions like whether a modern AR-15 is a “descendant” of a colonial-era musket. Where those sources run out, Kavanaugh suggested, judges will instead have to reason by analogy, which seems sensible. But although he did not say as much, it seems clear that that’s where all the work is going to happen—the test of text, history, and tradition will in practice become a “test of judicial analogies” or “test of judicial intuition.” Judges will have to decide for themselves whether certain modern guns or gun laws are relevantly similar to laws from 150 or 200 years ago. Is a modern grenade launcher “like” a musket, because you can lift it, or is it like a cannon, because it’s so powerful? How is an AR-15 “like” a musket? Do you compare barrel lengths? Muzzle velocity? Relative deadliness compared to other weapons?

Those may sound like historical questions, but it is hard to avoid the suspicion that the answers will depend on inarticulable intuitions and beliefs—a kind of faith.

Does the Second Amendment Have a “Private Infrastructure”?

The traditional model of constitutional rights puts the government on one side and individuals on the other; rights restrain the power of the former over the latter. But that model is a little bit over-simplified in a world of pluralistic rights disputes where constitutional interests arise on many sides simultaneously. Once one goes beyond the simple binary model, hard questions arise about who has what kind of duties with regard to rightsholders—including whether and how constitutional rights need some kind of private (that is, non-governmental) “infrastructure.” Those questions are increasingly important for the Second Amendment—I’ll try to frame them here, and offer a few tentative thoughts.

It may be helpful to begin with a comparison. As Jack Balkin has shown, the system of free expression has transformed in ways that the traditional “dualist” conception of rights adjudication is often ill-suited to address. He points to “significant changes in the practices and technologies of free expression, changes that concern a revolution in the infrastructure of free expression. That infrastructure, largely held in private hands, is the central battleground over free speech in the digital era.” Elsewhere, Balkin argues that, as a result, “the protection of digital free expression has increasingly begun to detach from the judicial doctrines of the First Amendment. This makes the First Amendment increasingly irrelevant to protecting digital speech.”

Could the same be said of the Second Amendment?

In many different ways, some of the most interesting and challenging questions for the Second Amendment in recent years are analogous to those confronting the right to free speech: Not just the breadth and strength of the right to keep and bear arms, but whether and how it interacts with other rights. Scholars have increasingly recognized and addressed those questions, especially in the context of free speech. (For a few recent examples, see here, here, and here).

But what about the “infrastructure” question that Balkin raises with regard to free expression? Does the right to keep and bear arms face an equivalent contextual transformation wherein the infrastructure of arms-bearing (whatever that may be) is increasingly held in private hands, and Second Amendment doctrine is increasingly irrelevant to the concerns of gun owners?

Consider the recent headlines about private actors—Walmart, Kroger, and others—asking their customers not to openly carry weapons in their stories. Many gun rights advocates have responded with outrage, and some have invoked the constitution, which raises the question: Do these businesses’ decisions, and others like them, have Second Amendment implications?

Under the traditional model, the easy, obvious, and correct answer is no—there is simply no state action to challenge. These businesses are private actors not bound by the Second Amendment any more than they’re bound by the First, and if they want to discourage or forbid the carrying of weapons on their private property, that’s their right. As the Eleventh Circuit put it a few years ago, “property law, tort law, and criminal law provide the canvas on which our Founding Fathers drafted the Second Amendment.”

But on another level, these developments illustrate the incompleteness of the traditional, binary model of constitutional rights claims as involving just the rightsholders against the government. After all, some businesses have specifically linked their decisions to what they see as shortcomings in the political process. And yet at the same time as they’re making up for government failure, these businesses are also asserting legal interests of their own—most obviously the right to exclude, but also to avoid legal liability for gun misuse or even (albeit not explicitly!) a right not to keep or bear arms.

Perhaps the best version of the gun rights advocates’ complaint is not a straightforward claim that the exclusion of guns violates their Second Amendment rights. Rather, it is a more general argument—a la Balkin—that the right to keep and bear arms depends on an “infrastructure, largely held in private hands,” and that the Second Amendment doctrine is only marginally helpful in resolving the underlying concerns. If a system of free expression properly takes account of important platforms and mediums of communication like Facebook and Google, the argument would go, then a system of arms-bearing must take into account the actions of their gun-related equivalents.

That returns us to the central question: Is there an equivalent “infrastructure” of the Second Amendment? If so, what does it entail? In the context of free expression, the infrastructural transformation that Balkin describes is largely the result of technological change—and, in particular, the digitization of speech. I cannot identify an analogous transformation in arms-bearing which would render the effective exercise of the right dependent upon some non-state actors. While modern expression is heavily dependent on private (primarily technological) intermediaries, it’s hard to say the same of armed self-defense. Certainly some gun owners would like to carry or use weapons on other people’s private property, but most still see the core right of self-defense as being most important in the home. Is the libertarian rhetoric of gun rights really able to accommodate a Second Amendment version of Pruneyard? (The question is not merely rhetorical.)

But perhaps there is more to the argument than that. In a forthcoming piece, Jake describes what he calls “The Right to Keep and Bear Arms Outside the Second Amendment”—the wide range of legal rules that operate between politics and constitutional doctrine to protect the right to keep and bear arms. Maybe there is a complementary story to be told about the private intermediaries on which the right depends. In earlier work, Darrell has explored an institutional approach to the Second Amendment—one in which judges would “recognize   and   potentially   defer   to   salient   organizations,  rules,  traditions,  and  norms  that  both  facilitate  and  constrain  Second  Amendment  activity.” The infrastructural argument, if it has validity, would represent a variation on that theme: constitutional actors (not just judges) might take into account the ways in which such institutions are necessary to vindicate constitutional interests.

To be clear, gun owners do not have Second Amendment claims against private businesses that do not wish to sell guns or allow them on their property. Much if not most of the constitutional rhetoric on this issue has been misguided at best and misleading at worst. The primary disputes here are political, social, and cultural, rather than doctrinal. But the lines between those categories are not always bright or stable. And as private actors continue to fill the void left by legislative inaction, we can expect continuing debates about who and what is bound by the Second Amendment, and how broadly we should conceptualize the right to keep and bear arms.

Scholarship Highlight: James B. Jacobs & Zoe Fuhr, “The Toughest Gun Control Law in the Nation” (NYU Press 2019)

Yesterday, amici filed briefs in support of the City in New York State Rifle & Pistol Association Inc. v. City of New York—the Second Amendment case that many thought (and some still think) might be a blockbuster. (Full disclosure: Along with Darrell Miller and Eric Ruben, I submitted an amicus brief in support of neither side.) There is much to say about the implications for the future of the Second Amendment, but the strange saga of NYSRPA so far also raises interesting questions about the law and politics surrounding New York’s gun laws.

Over the past few years, no scholars have done more to explore those questions than Jim Jacobs and Zoe Fuhr of NYU. (Jacobs is the Chief Justice Warren E. Burger Professor of Constitutional Law and the Courts at NYU School of Law, and Zoe Fuhr earned her LLM at NYU and served as a fellow at the Center for Research in Crime and Justice.) In prior work, they have explored various aspects of New York’s SAFE Act, passed in 2013 in the wake of Sandy Hook. Now they have completed a book on the topic, which will certainly be a standard reference.

The Toughest Gun Control Law in the Nation: The Unfulfilled Promise of New York’s SAFE Act (NYU Press 2019) is, among other things, a lengthy case study of the SAFE Act—the politics that led to its passage, whether it was “necessary,” and how it works in practice. This alone would be a sufficient reason to recommend the book, given the prominence of New York’s gun laws in the broader debate about gun regulation and the Second Amendment. But Jacobs and Fuhr do much more than that, and a few themes in particular are worth highlighting.

For one thing, the book consistently emphasizes the gap between the passage of gun regulations and their implementation and enforcement. It is one thing to forbid persons subject to a domestic violence protection order from possessing a weapon. It is quite another thing to enforce that prohibition, especially in a state where roughly 300,000 such orders were issued in 2015.

In the legal academy, at least, discussions of gun regulation too often focus either on laws-on-the-books or cases-in-the-courts, rather than on law enforcement as such. In that respect, Jacobs and Fuhr help shed light on how gun laws actually work—a virtue their work has in common with Emily Bazelon’s Charged, which among other things explores the roles of prosecutors and gun courts in New York.

Unsurprisingly, Jacobs and Fuhr are not particularly interested in “symbolic” gun regulation or “political theater.” They show how, especially in a state like New York that already has relatively stringent gun regulations, the urge to “do something” in the wake of an atrocity like Sandy Hook might not actually result in meaningful change.

That does not necessarily mean that further regulations would be pointless, only that the implementation problem becomes harder when parts of the state—New York City, for example—is already subject to strict laws and relatively zealous enforcement. The challenge becomes how to make that enforcement more uniform, as Frank Zimring notes in his introduction to the book:

The geographic areas and units of government where the new controls make the most demands on local officials and citizens are also the places where both citizens and law enforcement officials are the least supportive of firearms control and its attendant paperwork. Making programs such as recertification and mental health reporting requirements work well in upstate counties and cities is a challenge that demands careful administrative planning and diplomatic skills in the care and feeding of local enforcement.

Zimring’s introduction, in turn, reminded me of a line from Mike Dorf’s terrific piece in the Duke Law Journal Online last year:

I live and work in a liberal enclave (Ithaca) within a conservative region (central New York State). When I venture a few miles from home I frequently see yard signs that read “Support the Second Amendment: Repeal the SAFE Act.”

Dorf notes that provisions of the SAFE Act have been upheld by the Second Circuit, but that the people who post such signs “would say that the real Second Amendment bars the SAFE Act, regardless of the ruling.”

There will surely be many more such rulings, as the law and politics of the SAFE Act are likely to remain central to the development of the Second Amendment and the broader gun debate. That makes Jacobs and Fuhr’s book essential reading.

The “Handgun Article” in Justice Powell’s Papers

Twenty seven years ago this week, Justice Powell’s clerk sent him a lengthy fax with the subject line “Handgun Article.” Along with Justice Stevens’ post-retirement commentary (about which Darrell and I will have more to say shortly), I think it might be the most thorough statement of a Justice’s views on guns and the Second Amendment outside a legal opinion—that is, of course, if they’re actually his. And yet, until recently, I’d never even seen it.

Let me start with the disclaimer: The memo (described in a cover sheet as “the first rough draft of the handgun article”) doesn’t seem to have been written by Powell. It’s addressed to him by a clerk, and suggests that the prior term’s clerk (who, a bit of Googling suggests, is now a distinguished member of the federal bench) worked on it as well. There are handwritten edits throughout the piece, but only some of them are the Justice’s, according to one former Powell clerk I checked with. As with many papers of Justices—speeches, articles, and draft opinions—it seems entirely plausible that this was penned in large part by clerks, attempting to capture their Justice’s views (i.e., “I hope you will find the basic structure of the article satisfactory”).

Indeed, many of the views expressed in the “article” are consistent with those that Justice Powell himself voiced publicly. I’m not aware of any Second Amendment cases in which he authored opinions, but in August, 1988—a year after retiring from the Court, and four years before the memo—he gave a prominent speech expressing some of the same views on guns that are reflected in the memo. In particular, Justice Powell argued for the constitutionality of handgun regulation (and perhaps even bans), something that’s reflected in the memo and the handwritten comments.

Without the aid of those who knew the Justice well enough to tell which comments are his, I’m reluctant to attribute to him any of the specific views expressed throughout the document. It does seem that he edited the piece, though, so perhaps the unedited or lightly-edited passages received at least tacit approval. That includes an analysis (pgs 11-14) of United States v. Miller, of which the article says: “[N]othing in Miller directly supports the argument that the Second Amendment should be read to guarantee an individual’s right to bear arms for purposes of self-defense or for hunting, in other words for purposes unrelated to participation in a ‘well regulated militia.’” (pgs 13-14)

Much of the article is devoted to policy analysis, and the harms of handgun violence in particular: “Perhaps the most alarming trend of all is the spread of violence to our schools.” (pg. 3) Given the school massacres that have happened since the article was penned, the citations to articles like “First Grader Uses Gun to Threaten Teacher” seem almost quaint.

All that said, the article is not a confiscationist jeremiad. The conclusion—which is particularly hard to attribute to the Justice’s own pen—notes, “my own experience with guns has been a positive one,” but “I have come to be persuaded by those who argue that something must be done about their ready availability and irresponsible use.” (pg. 23) It goes on: “I think it preferable to avoid an outright ban on handguns. While perhaps constitutionally permissible, a ban would strike at the core of our culture,” (pg. 23), and endorses, in its final sentence, “reasonable regulation.” (pg. 24)

I could go on quoting, but that would also mean piling up caveats and interpreting marginalia. Anyone interested should have a look for themselves. At risk of over-emphasis: This is a memo to Justice Powell, which seems to be primarily authored by his clerks. It does, however, largely track views that the Justice himself expressed, and it would be surprising if the article—worked on by different clerks across multiple Terms—were a stark departure from those views.

As far as I can tell, the “Handgun Article” was never published. John Jeffries’ terrific biography of the Justice basically ends with his retirement from the Court, so unsurprisingly does not discuss the article or the handgun speech. In summing up Powell’s service, Jeffries emphasizes Powell’s “most often remarked judicial attribute—an instinct for moderation and compromise. Genuine respect for the views of others directs the mind toward the common ground.” With that in mind, the “Handgun Article” is at the very least an interesting bit of evidence into what the Justice apparently perceived to be common ground on gun rights and regulation.

Firearms Law Works-in-Progress Workshop

On Friday, the Center for Firearms Law hosted the first of what we hope will become an annual Firearms Law Works-in-Progress Workshop. The immediate goal was to give scholars—especially those new to the area—a chance to engage with another’s work. More broadly, and in keeping with the Center’s overall mission, our hope was to help build a scholarly community and to broaden and deepen firearms law as a scholarly discipline.

We were fortunate to have several groups of scholars in attendance: those recently entering the field of firearms law (broadly defined), those who have spent years (and in one case decades) writing on firearms law, and those with substantive expertise in other areas of law who are interested in the development of this new field of scholarship.


The papers represented a wide range of disciplines and methodologies, including: an empirical investigation of the links between state permitting laws and suicide risk; the sometimes-surprising role of police organizations in gun politics; just war theory and an ethic of Christian handgun ownership; the use of tort law to hold businesses liable for the misuse of guns on their property; and the historical role of the U.S. government in developing the national firearms industry.  Those papers (and others) were divided across four panels throughout the day, and the discussion was so engaging that it spilled over each and every time.

Scholarly programming is a central mission of the Center. Along with the historians’ roundtable at Oxford last month, and our first symposium next month—“The Second Amendment Outside the Home,” which will be published in Law & Contemporary Problems—the works-in-progress workshop represents the kind of engaged scholarly discussion we hope to achieve.