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Race, History, and North Carolina’s Handgun Permit Law

Posted by and on March 8, 2023

An effort is currently underway in North Carolina to repeal the state’s requirement that anyone seeking to purchase a handgun first receive a permit from the local sheriff.  The bill passed the house in late February and is on its way to the state senate, but the real question is whether it will garner a […]

Litigation Highlight: Ninth Circuit Hears Oral Argument in Challenge to Hawaii’s Butterfly Knife Ban

Posted by on March 3, 2023

First principles of federalism suggest that state-to-state variety is a feature, not a bug, of the American system. Each state can generally determine for itself how to exercise its police power and provide for public safety. However, recent litigation following the Supreme Court’s Bruen decision suggests that differentiation among state weapons regulations may raise constitutional […]

The Third Circuit Wrestles with “Inherently Dangerous” Felonies

Posted by on March 1, 2023

In a November 16 panel opinion, the Third Circuit upheld the application of 18 U.S.C. § 922(g)(1), the federal ban on felon possession of firearms, to an individual convicted of making false statements when applying for federal welfare benefits.  We covered that opinion in Range v. Attorney General here, and this earlier post by Dru […]

Judge Higginson and the Role of the Solicitor General in United States v. Quiroz

Posted by on February 22, 2023

On February 8, 2023, the Fifth Circuit heard oral argument in United States v. Quiroz to consider whether 18 U.S.C. § 922(n)—receipt of a firearm while under felony indictment—can withstand a Second Amendment facial challenge. Below, Judge Counts in the Western District of Texas had dismissed the government’s indictment, under Bruen, holding that “unlike the […]

A Founding-era Analog for Modern Serial Number Requirements

Posted by on February 10, 2023

As Andrew Willinger wrote here recently, in December a federal district court in Indiana rejected a challenge to the federal law, 18 U.S.C. § 922(k), that criminalizes possession of a firearm with the factory-embossed or engraved serial number removed or altered. As Andrew explained, what is particularly noteworthy about the opinion is its rigorous approach […]

Is it Unethical for Judges to Conduct Independent Historical Research?

Posted by on January 25, 2023

In reply to Andrew Willinger’s insightful post about judges undertaking historical research in applying the historical-analogical test set forth in NYSPRA v. Bruen, I would like to add a brief comment about the ethics of judges undertaking independent historical research, as opposed to their competence in doing so (not as legal experts, but as amateur […]

The Perils of Independent Judicial Analysis of Historical Sources

Posted by on January 17, 2023

The Bruen majority writes that “[t]he job of judges is not to resolve historical questions in the abstract” (emphasis added).  Rather, the legal inquiry is distinct from traditional historical study in that it demands answers even when history may not speak clearly and relies on adversarial presentation to resolve difficult historical questions.  In other words, […]

Litigation Highlight: Rhode Island Federal Judge Rejects Challenge to State’s Large-Capacity Magazine Ban

Posted by on December 28, 2022

In a December 14 decision in Ocean State Tactical v. Rhode Island, District Judge John J. McConnell, Jr. denied a motion to preliminarily enjoin Rhode Island’s recent statutory prohibition of “Large Capacity Feeding Devices,” or LCMs.  The Rhode Island law, which was passed and became effective in June, bans the possession of magazines that are […]

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

[NOTE: For a more in-depth examination of Bruen‘s approach to territorial laws and the topics in this post, see the forthcoming article “The Territories under Text, History, and Tradition.”] 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 […]

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 […]

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