Fall 2020 Second Amendment Symposium

We are incredibly excited to announce that the Center’s 2020 Symposium – The Second Amendment’s Next Chapter – will be hosted by the Northwestern Law Review on Friday, October 9, 2020. We have a stellar line-up of prominent scholars from a diverse set of perspectives and methodologies. Given the recent passing of Justice Ruth Bader Ginsburg, the importance of the conversation over the Second Amendment takes on heightened importance. The event will be hosted virtually through Zoom and is open to the public (and qualifies for CLE credit for Illinois lawyers). For more information and to register, please see NLR’s symposium page here.

Prior to December 2, 2019, the Supreme Court had not heard oral arguments in a Second Amendment case for nearly ten years. Even with its blockbuster decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), the Court has offered very little concrete guidance to lower courts as they have grappled with more than a thousand Second Amendment challenges in the years since. New York State Rifle & Pistol Association v. City of New York was poised to change all that, but ended up with a majority dismissing the case as moot. Nonetheless, it is clear that—a decade after Heller—the law and scholarship of the Second Amendment have entered a new era, with new questions. The scholarly, doctrinal, and practical stakes could not be higher. Scholarship has played an incredibly prominent role in shaping the Second Amendment in the past few decades, and we expect that trend to continue.

This Symposium will help provide the necessary foundation for resolving this new set of questions, and setting a scholarly agenda for the Second Amendment going forward. How will the Amendment’s evolving doctrine account for the multiple constitutional interests—the right to keep and bear arms and the “right not to be shot,” for example? How does the right work with other rights, like the right to free speech or equal protection? How does the new composition of the Court change the kinds of evidence and arguments that will shape the right to keep and bear arms? What is the future of gun rights in a world where March for Our Lives and other movement actors are increasingly employing constitutional rhetoric?

Below you can find a schedule of events and our terrific contributors.

Scholarship Highlight: 2019 Center Symposium Articles

We are very excited that the articles from our 2019 Symposium, Gun Rights and Regulation Outside the Home, have now been published by Law & Contemporary Problems. We’re grateful for all the terrific contributors and to the excellent L&CP student editors. Little did we know that the open issues we identified more than a year ago during that Symposium (which you can watch, here) would remain open issues today. With the Supreme Court’s composition set to change in the near future, resolution may come sooner rather than later.

Check out the pieces below:

Foreword, Joseph Blocher, Jacob D. Charles & Darrell A. H. Miller, The Geography of a Constitutional Right: Gun Rights Outside the Home

SCOTUS Gun Watch – Week of 9/21/20

Next week, the Supreme Court begins its work of the new Term one member short. Justice Ginsburg’s death leaves the Court with 8 justices as it considers the cert petitions that have accumulated over the summer recess at its Tuesday conference. What happens with that open seat—and when it gets filled—may have an immense impact on the future of constitutional law, including on the shape of the Second Amendment. For now, the cases below are the major gun cases we’re tracking at the Supreme Court.

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Rodriguez v. San Jose 9th Cir. 21-Feb-20 Warrantless search and seizure of firearms under Second & Fourth Amendments distributed for 29-Sept-20 conf.
Johnson v. United States 4th. Cir. 12-Jun-20 Vagueness challenge to the Armed Career Criminal Act’s elements clause distributed for 29-Sept-20 conf.
Zoie H. v Nebraska Neb. Sup. Ct. 22-June-20


Second and Sixth Amendment challenge to jury-less conviction that can result in gun disqualifer for juveniles distributed for 29-Sept-20 conf.
Caniglia v. Strom 1st Cir. 10-Aug-20 Fourth Amendment challenge to gun removal response due 14-Oct-20
Hobbs v. United States 6th Cir. 13-Aug-20 Guilty plea under 922(g) without knowledge of disqualifying status response due 16-Oct-20

Heller’s Certitude

This week, Joseph and I taught the Heller case in our Second Amendment seminar. That case is complex, and the history is deeply contested by Justice Scalia and Justice Stevens. I’ve read a good chunk of the original sources they debate and many more of the historians whose work they invoke to support their respective views. And, unlike either of them, I’ve been able to read the scholarship by professional historians and linguists since the case was decided that explores more thoroughly debates they elide or gloss over and, in at least some cases, plumb resources that weren’t even available to the justices in 2008.

Whatever one thinks of the ultimate question of whether Justice Scalia or Stevens was right about the concerns motivating the Second Amendment, one thing is clear to me: the answer isn’t beyond debate. And that’s one reason why every time I read the Heller opinion, I grow frustrated at the tone and demeanor. Neither side, it seems to me, should be claiming the certainty they do for the positions they espouse.

Consider, first, some of the ways Justice Scalia described positions or arguments with which he disagreed in the opinion:

  • “dead wrong”
  • “bordering on the frivolous”
  • “[g]rotesque”
  • “unknown this side of the looking glass”
  • “worthy of the Mad Hatter”
  • “[t]here is nothing to this”
  • “wholly unsupported assertion”
  • “profoundly mistaken”
  • “ignoring the historical reality”
  • “no support whatever”
  • “flatly misreads the historical record”
  • “betrays a fundamental misunderstanding of a court’s interpretive task”
  • “[n]othing so clearly demonstrates the weakness of” the opposing view
  • “cannot possibly be read”
  • “particularly wrongheaded”
  • “demonstrably not true”

Justice Stevens was not quite as biting in dissent, but he also expressed a surprising amount of confidence in conclusions that were polar opposite to Justice Scalia’s. He described opposing views as:

  • “border[ing] on the risible”
  • “fundamentally fails to grasp the point”
  • “no plausible argument”
  • “particularly puzzling”
  • “simply wrong”
  • “utterly failed to establish”

There will surely be more debate about how to understand and best flesh out the Second Amendment’s guarantee. And some of that debate will be heated. But in my view it is incumbent on those of us engaged in the debate to recognize that there are few easy answers to the questions animating concerns of a generation of Americans more than 200 years ago with a completely different set of cultural, historical, and philosophical presuppositions. It’s a good idea to approach the task with a healthy dose of humility. As our colleague Jeff Powell writes in his book Constitutional Conscience, “the constitutional virtue of humility . . . manifests itself in a continuing recognition that the Constitution is primarily a framework for political argument and decision and not a tool for the elimination of debate.”

Scholarship Highlight Interview: Stoever on Firearms and Domestic Violence Fatalities

For our next interview, I sat down with Jane Stoever to discuss her article, Firearms and Domestic Violence Fatalities: Preventable Deaths, recently published in the Family Law Quarterly. Jane is Clinical Professor of Law at University of California, Irvine School of Law (shout out to UCI, my undergrad alma mater—zot zot), as well as director of UCI Law’s Domestic Violence Clinic and of the UCI Initiative to End Family Violence.

Here’s from her really interesting paper and below is the video of our discussion:

This Article examines the problem of family violence firearm fatalities in the context of the highly gendered nature of victimization within intimate relationships, intimate partner homicides, and firearm ownership. It surfaces some of the hard realities for practitioners and courts, including the gendered knowledge gap as to whether there are guns in the home, the easy access to firearms in the United States, and the implementation gaps that must be closed for laws to be effective. In proposing reforms, the article posits solutions that should receive broad support from the legal profession and bipartisan political support, especially if politicians resolve to stop playing politics with the deadly combination of firearms and family violence.

Heller and Harm-Avoider Constitutionalism

In a fascinating new article, Harm-Avoider Constitutionalism, forthcoming in the California Law Review, Professor Aaron Tang outlines a new type of constitutional methodology with (implicit) support in legal doctrine: “a rich tradition of cases in which the Supreme Court has resolved difficult constitutional disputes by identifying and ruling against the best harm avoider.” Tang does not suggest that this methodology is the dominant framework for resolving constitutional questions or even that it displaces other interpretive modes like originalism, common-law constitutionalism, or political process theories in most cases. Instead, he argues, the Court often employs harm-avoidance principles as a second-order decisionmaking procedure when those first-level theories run out. He argues that the Court should acknowledge its use of this methodology openly. And he contends that use of the methodology serves four values: (1) reducing the harms of erroneous Supreme Court decisions, (2) mitigating public perceptions of the Court as nothing more than nakedly partisan, (3) bolstering the Court’s legitimacy by providing losing parties different ways to respond to defeat, and (4) creating incentives for a better constitutional discourse.

Tang’s article is thought-provoking, and I found his descriptive account of past practice persuasive. In his view, this framework helps to explain why some even contentious decisions like the Court’s foray into the right to die in Cruzan v. Director, Missouri Department of Health did not create massive public backlash. The Court found in favor of the state in that case because the groups represented by the plaintiff (those who wanted life-saving medical care withdrawn in certain circumstances) had an easier opportunity to avoid the harm of an adverse ruling: they could sign advance directives expressing their wishes and the like. Tang discusses the methodology in other cases concerning individual rights (e.g., abortion) as well as in those cases about structural concerns (e.g., separation of powers and federalism cases). In some not insignificant number of cases, the Court pins liability on the group best ability to mitigate harm, whether through public avoidance or private avoidance. As he succinctly describes the framework:

Under harm-avoider constitutionalism, the Supreme Court decides hard constitutional cases against the group that can best avoid the harm it would suffer from an adverse decision using public and private avoidance techniques.

Reading Tang’s article got me thinking about how the approach might work in cases arising under the Second Amendment. To be clear, it’s not obvious to me that Tang would recognize its applicability in this context – he notes that it won’t be relevant in every case. And it is fairly obvious to me that many of the judges and justices most solicitous of the Second Amendment would reject its application here. After all, for Tang, harm-avoider constitutionalism typically takes over when the traditional tools of interpretation provide no clear guidance on constitutional meaning: “it is precisely the difficulty and divisiveness of these cases that leads to the theory’s suggestion that courts should minimize harms instead of rendering some best guess as to the Constitution’s meaning.” The majority in Heller saw no uncertainty in the Second Amendment, and would have no use for such a theory. But for those who think the text, history, original understanding, and even implications from a living constitution model leave the question of the Second Amendment unclear, what would a harm-avoider approach teach?

First, consider the descriptions of the respective harms in Heller. Tang argues (sensibly, in my view) that courts generally ought to take groups’ descriptions of the harms they confront from an adverse ruling at face value. In Heller, the harm to the residents represented by the plaintiffs was the inability to use their preferred means of self-defense in the home in case the need arose. The harm to the District (and other residents) from legalized handgun possession was the increased possibility for homicide, suicide, and accidental shootings.

Second, consider the possible mitigation strategies. The plaintiffs challenging the law had both public and private avoidance techniques available. As a public avoidance measure, they could have lobbied for a change in the law. This may in fact have been successful, as a majority of members of Congress signed a brief in support of their position. Given its formal legal authority over the District, Congress likely could have blocked or overturned the District rule, rather than filing a brief against it. (I should add the caveat that I’m no expert on D.C.’s Home Rule Act, so I may be missing something that foreclosed such a path here.) Tang provides an example of this kind of public-avoidance technique—the political power to push for a change in the law—influencing the harm-avoidance calculus in Minnesota v. Clover Leaf Creamery. There, shortly after losing a dormant commerce clause challenge to a law banning the sale of milk in plastic cartons, “the in-state dairy industry prevailed upon the state legislature to repeal its plastic container ban and replace it with a far more limited intervention.”

What about private avoidance techniques? One might suggest that the plaintiffs could have just used different weapons in self-defense, but that wouldn’t mitigate their self-identified harm as not being able to use their preferred weapon. Short of that, those who wanted home handgun possession could have moved to a friendlier jurisdiction across the Potomac. “Of course,” as Tang acknowledges, “foot voting will be a less realistic avoidance strategy in some constitutional disputes than others, since some losing groups may lack sufficient means to move.”

What about the District’s harm-avoidance techniques? As a matter of public avoidance, the District could have amended its law. Lawmakers could have invoked “less harmful legislative means” to still “attain their desired ends.” Instead of a near-ban on handguns, the city council could have enacted licensing or permitting requirements that include background checks or training requirements. It could have allowed home possession but barred individuals from carrying their guns in public or sharply curtailed the right to public carry. As it turns out, this is in fact what much of the post-Heller legislative activity in the District looked like, as the saga of Heller II, Heller III, Wrenn, and other cases tells. As a private avoidance measure, people concerned with the impact of increased gun violence could also have moved.

Even after this exercise, it is not entirely clear to me which path of avoidance is easier. A majority of federal lawmakers signed onto an amicus brief to support striking down a law they probably could have changed themselves (with caveats again). If an available route, that seems fairly easy. On the other hand, the fact that other localities that care about gun violence did not ban home handgun possession may show that it would have been easy for the District to craft a narrower law that served its desired ends. (I should be clear here that Justice Breyer, dissenting in Heller, characterized the harm differently and thus saw no narrower option: “The reason there is no clearly superior, less restrictive alternative to the District’s handgun ban is that the ban’s very objective is to reduce significantly the number of handguns in the District.”) Nor is it clear whether the ability to move would be easier for those wanting guns or those wanting to avoid them. Both groups no doubt include some for whom that sort of mobility is beyond their means or desires.

So what can we say then about harm avoidance in the Second Amendment? It’s complicated, and I am not so sure the methodology would help much in resolving disputes about whether the right protects gun use for private purposes, as Heller held. But it may be a useful tool in cases testing the limits of regulations in certain places, or on certain weapons, or to certain permitting or licensing requirements. Yet, as Tang notes, even if the harm-avoidance calculus leaves us with no clear answer, we’re just back to the start: “resolve these cases using [a court’s] best judgment with respect to the traditional, first-order tools of interpretation—arguments based on the Constitution’s text and original meaning, history, structure, precedent, and so on.” In these cases, “the Court finds itself in no worse a position than it would have been otherwise.”

Ninth Circuit Rejects En Banc Review for Application of Mental Health Prohibitor Over Sharp Dissent

As we previously highlighted on the blog, a Ninth Circuit panel in March upheld the federal lifetime firearm ban as applied to an individual involuntary committed to a mental institution twenty years prior. In Mai v. United States, the panel split with the Sixth Circuit on the issue, joining a Third Circuit panel rejecting an as-applied challenge to 18 U.S.C. § 922(g)(4). Yesterday the Ninth Circuit declined to take Mai en banc over the heated dissent of 8 judges. I’ve recently written on how courts treat questions of prohibited persons in Second Amendment cases, so I have some sympathy for the dissents’ criticism of several conceptual moves in these types of cases. But I can’t say I find the acerbic hostility to a broader range of reasonable Second Amendment methodologies or outcomes altogether convincing.

Here’s a snippet from the dissents to the court’s denial of rehearing en banc.

Judge Collins:

…I have substantial doubt that the framework of rules that this court uses to analyze Second Amendment claims properly construes the controlling principles set forth in District of Columbia v. Heller, 554 U.S. 570 (2008), and granting en banc review in this case would have given us a welcome opportunity to reexamine that framework. I respectfully dissent from our failure to rehear this case en banc.

Judge Bumatay (joined by Judge VanDyke in whole and in part by Judges Ikuta, Bade, Hunsaker, Bennett, Collins, and Bress):

Today, our court advances an extraordinarily sweeping view of government power. Against the text, history, and tradition of the Second Amendment, we hold that the government may forever deprive a person of the individual right to bear arms—if that person spends even one day committed involuntarily, even as a juvenile, and no matter the person’s current mental health soundness. Of course, we only adopt this view for the Second Amendment. For other, more fashionable constitutional rights, we would not countenance such an abridgment.

If operating on a clean slate, I would hew to Heller’s and McDonald’s fidelity to the Second Amendment’s history, tradition, and text. The precise contours of such a review should be subject to further refinement; but we might, as Justice Scalia suggested in Heller itself, look to the original meaning of the First Amendment. See Heller, 554 U.S. at 635, 128 S.Ct. 2783 (suggesting categorical exceptions to the First Amendment as recognized at the Founding, such as obscenity, libel, and disclosure of state secrets); see also Tyler, 837 F.3d at 712 (Sutton, J., concurring) (opining that “Heller creates an on-off switch to the right to bear arms”). Under this view, a law may only constitutionally prohibit the core right to keep arms in the home for self-defense if the prohibition falls within an exception understood to be outside of the Amendment’s scope at the time of the Founding.

Judge VanDyke (joined by Judge Bumatay):

In the final paragraph of its opinion rejecting Mai’s Second Amendment claim, the panel emphasized that “[w]e emphatically do not subscribe to the notion that ‘once mentally ill, always so.’ ” Mai v. United States, 952 F.3d 1106, 1121 (9th Cir. 2020). I believe them. Yet just like the government’s position in this case, the panel’s decision inescapably effectuates exactly that ethic. How can this court purport to be applying “heightened” scrutiny, yet bless a legal position and practical outcome everyone insists isn’t true?

The answer is a simple four-letter word: guns. It is hard to conceive of any other area of the law where, given the opportunity to apply heightened scrutiny, this court would countenance for a moment an outcome rooted in the scientifically indefensible, morally repugnant, and legally insufficient concept of “once mentally ill, always so.” Mr. Mai could understandably take personally this court’s labeling of him as a second-class citizen (more on that below). But he shouldn’t. Our court cannot really believe that, just because a currently healthy individual decades ago suffered from mental illness, they are permanently relegated to a disfavored status impervious to even heightened scrutiny. Mr. Mai is not a second-class citizen—not in this court’s eyes or anyone else’s. He’s just seeking to exercise a second-class right. He is another innocent casualty of this court’s demonstrated dislike of things that go bang. Perhaps Mr. Mai can take faint solace in the fact that, were he seeking to exercise any other right entitled to heightened scrutiny, he would no doubt get the judicial review he plainly merits.

To the rational observer, it is apparent that our court just doesn’t like the Second Amendment very much. We always uphold restrictions on the Second Amendment right to keep and bear arms. Show me a burden—any burden—on Second Amendment rights, and this court will find a way to uphold it. Even when our panels have struck down laws that violate the Second Amendment, our court rushes in en banc to reverse course. See, e.g.Teixeira v. County of Alameda, 873 F.3d 670, 690 (9th Cir. 2017) (en banc) (reversing panel’s invalidation of a regulation prohibiting the right to purchase and sell firearms); Peruta v. County of San Diego, 824 F.3d 919, 942 (9th Cir. 2016) (en banc) (reversing panel’s invalidation of city law requiring showing of special self-defense need to obtain conceal carry permit where open carry was also prohibited); Young v. Hawaii, 896 F.3d 1044, 1074 (9th Cir. 2018) (discussed above), reh’g en banc granted, 915 F.3d 681 (9th Cir. 2019). Other rights don’t receive such harsh treatment. There exists on our court a clear bias—a real prejudice—against the Second Amendment and those appealing to it. That’s wrong. Equal justice should mean equal justice.

Amicus Brief Trends in Second Amendment Cases at the Supreme Court

The other day I was reading a fascinating new paper by Center faculty affiliate Kristin Goss and her co-author, Matt Lacombe, Do Courts Change Politics? Heller and the Limits of Policy Feedback Effects. One of the things they said got me thinking about the trendline of amicus briefing in the three Second Amendment cases that have had merits-stage briefing and oral argument in the Supreme Court: District of Columbia v. Heller, McDonald v. City of Chicago, and New York State Rifle & Pistol Association v. City of New York. Using SCOTUSBlog, I counted up the share of the amicus briefs in these cases supporting each party (and neither party).

There are a few interesting observations–to me at least. First is that the overall number of amicus briefs seems to be declining in these cases (see chart below). Second, the percentage of briefs supporting the government seems to be increasing. And third, the briefs in support of neither party are on the rise. Of course, with a grand total sample of 3 cases, none of these observations are tell us much in isolation. Each can probably be explained by idiosyncrasies with the cases more than with any overarching theory about shifting public or legal opinion on these questions. But the data are interesting nonetheless for those thinking about Second Amendment advocacy at the high court. A few caveats on that data: I counted up the briefs on SCOTUSblog, and it’s possible there were other briefs not recorded there or that I simply miscounted; it’s common for multiple organizations/entities/individuals to join together in one brief, so the total number of briefs does not always tell the full story; briefs filed in support of a party have varying degrees of support–they might support the government because they believe the case is moot, not because they believe the law satisfies the Second Amendment (as in NYSRPA), or they might support the government because the lower court applied the wrong standard but was right on the meaning of the Second Amendment (as in Heller). Even with all those caveats, the data here might be useful as more Second Amendment cases reach the Supreme Court in the coming years.

Scholarship Highlight: Recent Student Notes of Note

A recent smattering of student notes on issues related to firearms law and the Second Amendment have been published in the last week. Check out the abstracts below!

  • Jessica A. Lowe, Analyzing the Void-for-Vagueness Doctrine As Applied to Statutory Defenses: Lessons from Iowa’s Stand-Your-Ground Law, 105 Iowa L. Rev. 2359 (2020)

From the Abstract:

In State v. Wilson, an Iowa district court found that a provision in Iowa’s recently enacted stand-your-ground law, Iowa Code section 704.13, was unconstitutionally vague. This decision constituted an unusual application of the void-for-vagueness doctrine because courts seldom consider vagueness challenges to statutory defenses and rarely, if ever, strike them down under such challenges. On appeal, the Iowa Supreme Court did not explicitly address the district court’s unusual holding that Iowa Code section 704.13 was void for vagueness. As a result, Wilson raises the following question: Is the void-for-vagueness doctrine an appropriate remedy for ambiguous statutory defenses? To answer this question, this Note examines traditional rationales underlying the void-for-vagueness doctrine. It also explores the potential expansion of the void-for-vagueness doctrine in the U.S. Supreme Court’s recent decisions. Ultimately, this Note concludes that the void-for-vagueness doctrine is not an appropriate remedy for ambiguous statutory defenses.

  • T.M. Clint Harris, One Gun Too Many: Double-Counting the Same Offense in Iowa, 105 Iowa L. Rev. 2329 (2020)

From the Abstract:

The average Iowan would be shocked to learn that the commission of a firearm possession crime in Iowa would expose them to the risk of being sent to federal prison for a time period 25 percent longer than that of a citizen of a neighboring state. This Note argues that the Eighth Circuit’s ruling in United States v. Walker was an erroneous interpretation of the U.S. Sentencing Guidelines and that governmental action should be taken in one of three major arenas–judicial, administrative, or legislative–to remedy the resulting sentencing disparities. Ultimately, this would be one step towards returning fairness and justice to similarly situated defendants in the federal criminal system.

  • Skylar Petitt, Tyranny Prevention: A “Core” Purpose of the Second Amendment, 44 S. Ill. U. L.J. 455 (2020)

From the Abstract:

This Note argues that “tyranny prevention” is a core purpose of the Second Amendment which therefore necessitates protection for some quantum of military-style weaponry. It does so by examining the Second Amendment through the lens of the most commonly accepted modes of constitutional interpretation. This analysis is especially relevant today as courts struggle to decide what kinds of weapons are protected by the Second Amendment–and why. Although courts are understandably reluctant to engage with the topic of tyranny prevention and military weaponry, courts will not be able to properly define the scope of the right without engaging in a serious examination of the right’s core purposes. This Note seeks to do just that.

Litigation Highlights: Public Carry, Third-Party Standing and (More) LCMs

In the past several weeks, there have been some important Second Amendment cases decided. I examined the Ninth Circuit’s decision on large-capacity magazines last week and offered some thoughts on the reasoning that led the court to strike down CA’s ban. There have also been a few other notable developments.

  • In Association of New Jersey Rifle and Pistol Clubs v. Attorney General, the Third Circuit reaffirmed its disagreement with the Ninth Circuit’s conclusion on LCMs. On Tuesday, the panel concluded it was bound by a prior panel’s decision that New Jersey’s 10-round magazine cap does not substantially burden core protected conduct and need only satisfy intermediate scrutiny, which it did. One noteworthy aspect of the case is that another dissenting judge argued that the circuit should scrap its methodological approach to Second Amendment questions and replace it with the Kavanaugh-inspired “text, history, and tradition” approach. With the Third Circuit now numbering more Republican-appointed judges than Democratic-appointed ones, a call for en banc here might give those judges a chance to work the change in circuit doctrine. We’ve hosted a fair amount of commentary on this blog about the text, history, and tradition approach—here are just a few examples.
  • In Maryland Shall Issue v. Hogan, the Fourth Circuit held that a gun seller had standing to raise its and (through third-party standing) its customers’ Second Amendment claims against Maryland’s handgun licensing law. That case will now return to the lower court for analysis of those claims.
  • In Baird v. Becerra, a district judge in the Eastern District of California preserved a challenge to California’s open carry licensing regime. The court denied both the plaintiff’s request for a preliminary injunction stopping the law from going into effect and also parts of the defendant’s motion to dismiss the case. That case—and most importantly the Second Amendment claim—will move forward in the district court.