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Litigation Update: Antonyuk Round 3; Judge Grants Preliminary Injunction of Large Portions of New York’s Post-Bruen Law

Posted by on November 18, 2022

On November 7, Judge Glenn Suddaby of the Northern District of New York issued a 184-page opinion granting in part and denying in part the plaintiffs’ motion for a preliminary injunction of New York’s post-Bruen gun regulations in Antonyuk v. Hochul.[1]  Judge Suddaby previously analyzed the same plaintiffs’ likelihood of success on these claims in […]

The Center’s September 2022 Symposium with the NYU Law Review

Posted by on November 2, 2022

On September 23, 2022, the Center co-hosted a symposium in New York, in coordination with the New York University Law Review, on the theme of Gun Rights and Regulation after Bruen.   The symposium was a tremendous success and the Center would like to thank all those who participated, attended in person, and tuned into the live stream.  […]

Worrying Trends In the Lower Courts After Bruen

Posted by on September 30, 2022

There are several extremely worrying trends from what I’ve seen in the still nascent post-Bruen Second Amendment case law. These concerns don’t arise from disagreement with constitutional originalism or with the Supreme Court’s interpretation of the Second Amendment. They are concerns about lower courts’ capacity (and perhaps willingness) to apply a historical method in a […]

State Court Justice Questions How to Apply Bruen

Posted by on September 23, 2022

In a recent case pending before the Ohio Supreme Court, State v. Philpotts, a majority of the justices sua sponte ordered the parties to file supplemental briefs addressing Bruen’s effect on the case. The challenged Ohio law in that case bars those under indictment for violent felonies from possessing firearms pending the disposition of the […]

Federal Court Declines to Enjoin San Jose’s Gun Liability Insurance Mandate

Posted by on August 10, 2022

Last week, in National Association for Gun Rights v. San Jose, a federal judge in California declined to preliminarily enjoin a San Jose ordinance that requires gun owners to obtain and maintain liability insurance and pay an annual fee. The case is significant not only for its discussion of the constitutionality of mandated gun insurance, […]

What the Panthers Meant By Self-Defense: Race, Violence, and Gun Control

Posted by on August 9, 2022

NOTE:  Portions of this blog post are reformulations of my Master’s Thesis “Picking Up The Gun” completed for the M.St. in U.S. History at the University of Oxford in 2015. [This is a guest post based on a paper that was presented at the Center’s 2022 Firearms Law Works-In-Progress Workshop.] The Supreme Court in Bruen […]

Territorial Gun Regulation and the “Lost” History of the Federal Second Amendment

Posted by on August 8, 2022

The Court’s opinion in Bruen considered five territorial gun laws—passed in the Arizona, New Mexico, Wyoming, Idaho, and Oklahoma territories between 1869 and 1890—that supported New York’s position and, in some cases, imposed even broader restrictions on the right to public carry.  The Court proceeded to disregard all five as “exceptional” outliers.  The Court relied […]

Synthesizing Bruen, Heller, and NFIB v. OSHA: The Relevance of the Original Version of the Second Amendment

Posted by on July 27, 2022

Should the original version of the Second Amendment matter, if it was not the version sent to the states for ratification? The original draft of the Amendment that the House debated and voted to adopt included a clause, omitted from the later Senate version, protecting the rights of those “religiously scrupulous” of bearing arms.  In […]

Hawaii’s Public-Carry Law and the Challenge of Pre-State Historical Tradition

Posted by on July 20, 2022

The Supreme Court recently sent four Second Amendment cases back to the appellate level for reconsideration post-Bruen.  One of those cases is Young v. Hawaii, a challenge to Hawaii’s restrictive permitting scheme.  Of the four cases that were granted, vacated, and remanded, at first glance Young seems like the most obviously suspect under Bruen because […]

The Original Version of the Second Amendment: Religiously Scrupulous of Bearing Arms

Posted by on July 19, 2022

[This is a guest post based on a paper that was presented at the Center’s 2022 Firearms Law Works-In-Progress Workshop.] In District of Columbia v. Heller, the Supreme Court relied heavily on (hotly contested) historical evidence about the original meaning of the Second Amendment.  In NYSRPA v. Bruen, the Court doubled down on this approach, […]

Bruen, Analogies, and the Quest for Goldilocks History

Posted by on June 28, 2022

On June 23, 2022, the Supreme Court issued its first major Second Amendment decision in a dozen years. In New York State Rifle & Pistol Association v. Bruen, the Court declared New York’s restrictive may-issue licensing law unconstitutional. The 6-3 decision written by Justice Thomas supercharges the Second Amendment and upends a host of settled […]

NYSRPA v. Bruen and the Future of the Sensitive Places Doctrine

Posted by and on June 22, 2022

As we await the Supreme Court’s decision in NYSRPA v. Bruen—which will address the extent to which states can regulate public carry through licensing—the question of whether states can prohibit firearms in specific locations has become increasingly salient. During the Bruen oral argument, the justices posed hypothetical questions as to whether states could restrict firearms […]

The Myth of the “Massachusetts Model”

Posted by on June 16, 2022

The title of Saul Cornell’s recent blog post—The Myth of Non-enforcement of Gun Laws in Nineteenth Century America—leaves the impression that I will argue that nineteenth-century gun restrictions went unenforced.  I will make no such argument.  In some places, laws regulating the carrying of weapons were enforced strictly.  In others, they were ignored.  Some authorities […]

The Myth of Non-enforcement of Gun Laws in Nineteenth Century America: Evidence vs Ideology in Second Amendment Scholarship

Posted by on June 1, 2022

In his Bruen oral argument, former solicitor general Paul Clement erroneously claimed that there was no evidence of enforcement of restrictive gun laws before the Civil War. The non-enforcement thesis is the latest example of ideology distorting Second Amendment scholarship. Indeed, during the oral argument in Bruen, Justice Breyer took the unusual step of characterizing […]

Eleventh Circuit Upholds Federal Firearm Prohibitions For Aliens Unlawfully Present

Posted by on May 27, 2022

On May 23, in United States v. Jimenez-Shilon, the 11th Circuit rejected a Second Amendment challenge to 18 U.S.C. § 922(g)(5)(A), which prohibits firearm use or possession by any “alien” who is “illegally or unlawfully in the United States.”  The holding itself is in some ways unremarkable – it joins every other federal circuit court […]

Shinn, Jimenez-Shilon, and the Hierarchy of Rights  

Posted by on May 26, 2022

Earlier this week, in United States v. Jimenez-Shilon, the Eleventh Circuit rejected a Second Amendment challenge to the federal law barring undocumented immigrants from possessing firearms. Dru Stevenson will be guest posting about the case on this blog. But I want to highlight a few aspects of Judge Newsom’s majority and separate concurring opinions—and compare […]

Ninth Circuit Strikes Down CA’s Law Restricting Young Adult’s Ability To Purchase Rifles

Posted by on May 18, 2022

Last week, in Jones v. Bonta, a split panel of the Ninth Circuit ruled that California’s restriction on rifle purchases by 18- to 20-year olds violates the Second Amendment. The case is a major victory for gun-rights proponents, but that victory is likely to be short-lived. The en banc Ninth Circuit tends to reverse panels […]

Text, History, and Tradition: A Workable Test that Stays True to the Constitution

Posted by on May 4, 2022

Last week Professor Charles highlighted the burgeoning legal controversies involving “ghost guns” (homemade firearms that have no serial numbers) to illustrate what he perceives to be problems with a judicial test based on text, history, and tradition (THT). As an advocate of the THT Test, I offered a response, which Professor Charles graciously accepted. I […]

Ghost Guns, History, and the Second Amendment

Posted by on April 27, 2022

The Biden Administration recently pushed out a new rule to restrict “ghost guns”—firearms without a serial number. The rule would require that kits for homemade do-it-yourself firearms are manufactured only by federal firearm licensees (FFLs) and that the kit’s frame or receiver be marked with a serial number. It also requires that any FFLs or […]

Announcing A New Center Research Affiliate: Joshua Aiken

Posted by on April 15, 2022

We are thrilled to announce the Center’s new Research Affiliate for the 2022-23 year: Joshua Aiken. Josh is a J.D./Ph.D. in History and African-American Studies at Yale. Below is his description of the dissertation project he’s working on. We’re happy to welcome Josh to his affiliation with the Center! My dissertation project, tentatively titled The […]

The Road to The Sandy Hook Settlement

Posted by on April 8, 2022

Over a recent five week period, $430 million was awarded to victims of gun violence in court cases:  a federal judge in Texas ordered the Air Force to pay $230 million to victims of the Sutherland Springs church shooting; the U.S. Department of Justice agreed to pay $127 million to victims of the Parkland High […]

THT and Analogy

Posted by on March 30, 2022

On his Legal Theory blog, Larry Solum recently highly recommend a piece by Frederick Schauer & Barbara A. Spellman, Precedent and Similarity, forthcoming in T. Endicott, H. Kristjansson & S. Lewis (eds), Philosophical Foundations of Precedent (Oxford University Press). The piece describes a problem endemic in legal reasoning—the difficulty of establishing just what makes one […]

The Problem with Assumptions: Reassessing the Historical Gun Policies of Arkansas and Tennessee

Posted by on January 20, 2022

Scholarship on the subject of historical firearm laws has, whether knowingly or not, tended to take certain ideas for granted. Chief among these assumptions is that post-Civil War public carry laws have been the primary vehicle for creating a racially inequitable right to arms. There is also widespread acceptance of the notion that openly carrying […]

Native Nations and The Right to Bear Arms in a Post McGirt World

Posted by on January 12, 2022

In 2012, I published an article examining the interplay between Indians (Indigenous Americans) and guns.[1] That article traced the relationship between Indians – individually and as members of Native Nations – and firearms, stretching from the earliest days of contact between Natives and colonizers, up to present day. The complex historical and legal dynamics discussed […]

The Racial Justice Gambit

Posted by on January 5, 2022

Racial justice has become a pawn in Second Amendment litigation. In New York State Rifle & Pistol Association, Inc. v. Bruen, both petitioners and respondents raised the racialized history of gun regulation to support their positions on the constitutionality of New York’s concealed carry licensing scheme. Moreover, groups from across the ideological spectrum filed amicus […]

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